ML20057B511
| ML20057B511 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 04/04/1980 |
| From: | Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-050, SECY-A-80-50, NUDOCS 9309220156 | |
| Download: ML20057B511 (45) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION WA$HINGTON, D. C. 20555 e
April 4, 1980 SECY-A-80-50 INFORMATION REPORT ADJUDICATORY ITEM i
For:
he Comissioners
.d I
h m:
Stephen F. Eilperin, Solic(tor
.;1 Subj ect :
Susquehanna Valley Alliance, et al. v. n ree Mile Island Nuclear Reactor, et al., Civil Action No.79-658, U.S.D.C.,
M.D. Pa.
Purpose:
To inform the Comission that[~
Discussion:
ne attached letter to the Department of Justice
/ recommends that i
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also think the j
While we do not think 3
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'f l'IUIU3IICU CONTACT:
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9309220156 930428
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5 Stephen F. Eilperin Solicitor 3
>1 Attachments:
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Ltr to DOJ I-2.
District Court decision 4
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Circuit Court decision
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Conmission Statement 1:
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DISTRIBUTIO,4 3
Coranissioners i
Comrnission Staff Offices i
Exec Dir for Operations j
Secretariat 1
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Civil A tiac Ib.79-658
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MEMORANDDM L
p 2ds case is a seq.r.1 to the exle2r MW whidb occu= red en i
Farch 28, 1979, at thit 16. 2 of the 7.ree Mile bland (M) r-rier p:wer
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i plant. Om island on which the pcuer plant w.s built is in the Susgw's mm.
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River near Ead a~g, Pe_msylvania. As a nsult of the acci. 9._ t, there am f'
several br: dred t.%.:sa.-d g>11r-.s of radioactively core.2::c rated w.ter in the e
cmtai::ent building of thit Ib. 2 and in tanks in adib"y bui.ldings.
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water is of varying hels of ccnta=ir.ation. O.e disp.ea at ha.-d conce.:c.s the
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steps being t.Aen to d spese of the co.ta-inated water.
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Plaintiff, Sus; der.na valley Alliance, was f0=:ed in 1579 to preserve
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and p:ctect the envia..c:ntal quality of the Sesq.:channa River and the
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h sr.rrounding area. ?.e in:'ividual plaintiffs live in Iancaster C:e.nty, ge cb-utrea:n frcm the da -aged react =r.
They allege that they drir.k and p-j b
hathe in sater st.cse sce.rce is t.':e Sesruehan.a.
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Plaintiffs fear that the treat:nent tec.$rcicgy aval.lable to deal with the centa tinated water prchlem ray ret be adequate to decen'x.1. ate the j
A liquid witicut high risks cf additicmal releases of radioactive pollutants f
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fato the air a.d suter. Ps a result of thase fears, a suit was filed en N
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Fay 25,1979, against the reacter itse.lf, the IA: clear Pegulatory Cmr-issica
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(tGC), the private ccr.722.ies stich an :MI (General Public Ut.ilities Ccrp-cration, thtr cclit.. T'h--. Cm.y, Ce:sef Central Pcstr ar.d Light, and k
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positi<xts with eithe.r 2GC or the private c::rpesies.
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'.g It is ter'.is;uted that the privats defe~.'.2.nts hsve proceeded with the l
ccristructicn of a systen, k:x>m as Ipicer u, e.ich is designed to treat g
h the ine-ete le.e.1 centearited water. niguy ce,tc.ated e vin 1:e treated by arcther systect eich is stin 1. che stufy and design stage.
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IGC did rot regire the private defe:*nts to a; ply for a const:nctico I
pe=:it pric: to % " A 49g Epicor H, rx:: has it yet deterined if the private defe:xiants rust apply fcr a cer" cation of their lice =se befeit
,I cgerating Epicor H.
ne ec plaint cenmix fx: cocats c'4 set fc:th the folleving clairs.
Cbant I chm;es that the steps being taken tod:a1 with the rw ce.lve unstes at OC are rajor federal acticas within the reaning of the 1h-%21 Dni.wal Policy Act of 1959 CNI?A), 42 U.S.C. $ 4321, et sec. im re:;uires that, w^eever the f* '21 geven..r.nt plans to take action Wich Vi tay h:r.n an i pac:. cc the e=vi-- r.t, tie agency cente: plating the actico I,
stby a:d tw cn the Ecte-*W e=virmtal i Ea=* of the p's med activi W.
P 42 U.S.C. S 4332. Because the wastster p:cw',g and dLs;csal activity is r
I c'ai-ed to be vit.Aln the scope of le ra, ;. lain *4"s repest that the court i.
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declare that tie deferdants are in viciatica cf 1m, and ctrpel PGC to p:e-L 4
pare an envi_ t.c=tal i. ;ert state ent/
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'l Cburt n deals with E rep.:latic=s aM parts cf t}rt Atcric D.cr.;y E-A~:, 42 U.S.C. 5 2011, et se. It is plaintiffs' c=.tentien t!.at, trder g
the statute a:d replations, ?GC s.buld 1zve regired the ruelear pla.
i crerators to apply for a cm.structica er.it pric: to 5 31<* ng Ipicer H, a:d j
should repire that DC's Jicense be e e:ded before peritting Epic =r H to t
cperate. On c=urc is asked to de_la.re that the defe.f. ants are in viclation
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I cf the Atc:-ic Energy Act and to enjcin activities related to the dispesal of 1
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high level radicactim water tmtil both the utilities a:d }CC c:rply with au Ll applicable federal statutes.
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e Cbunt HI states that the deferda: ts will violate Secticn 301(f) of the Clean Watc:- Act of 1977, 33 U.S.C. S 1311(f), because 'hish le.>el ra:iic-5
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l active pollutants rey be disc.harged into the river
- through failu:e cf the C:mt IV raises con-paut::irr. c:ntrul tec'rcicgy to treat these wastes.
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Ch the a day that the present acticn ses flied, h".d '" =4 c i',
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state
- st directi.y its staff to prepare ~an e=h r ital m>+~
t h11rq with prtresals to decenta=i:uta and_?is-ese.pf rw*im-tively ccc*xdnated waste water at the r!I f a-41'ty.
7: thE. statem-t, !GC <*elr-ed that:
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[t]he assesc.ent sbald include <*'&
rn of potential risks to the pW11e health and safety, dix::1udi.m occupaticnal e:cesures and.the risk of acr-WPal rele"es, a.-d a discussics of alte.r.atives to the 4 ico II systre
';he NT directive cr:'ered that, until the amw': cn W<in: the intsr-m'# ate rad'm-tive waste water was cr:pleted, a:x! the public haf been given an op;crtunity to c::= rent on the staff rp resulti:x; f::tz: the -M, the licersce was mt to cperate Ipiccr H fer other than testing p..jeses.
f hT pe - 'ttaf the testing to proceed on the ceru'ltien that cnly acreadicactive l
bater was to be Utilired in the t*ial cperations.
2e first phase c ~
- a envire rental m.-
- t was released en ;g.:st 14, 1979. Be.W. concluded that the pregesed use of r; b--- II for the processine of the inter erdiate radicactive szstes in the DC-2 amiliary b
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h3ilding wcr:Id mt sigr'#'Cantly affect the quality Cf the hC2.3 e:v/20 :::e:.t.
1 Serefcre, the hT so" ree.. erd.ed that oc c=viu enti1 impact statece:::
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be prepared for the pr::x esting stage related to in a
'4*te level c::n**-'*.atit.
l ee assesment, and the cer.clusi.,_ regareing an ene.
..mx i pae sta.e ent l
are sdject to a period of u...rnt by the pmlic and other federal agencies.
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_See 44 Ted. ?eg. 46829 (7a.:st 20,1979). 2en NT will de-"* stether to f
at:pt the staff recernendatica and allow Ipicer II to process t.% intaM'>te 3
level szste ater.
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Peperts assessing the e.virc. rental cc. seq.:ences of dis osal of the i
f--ocess ed inte. ediate ic.el 6cnta c.sted water and the p:ccessing erd disposal of the
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i highly radicactiw water have yet t:0 be released. *: hey also will te sdject l
l to public sc: utiny prior to adcption by bT.
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Ecth hT and the private defen *. ants filed :x:tions to dis =iss the case for fa.ilure to state a claim t;ca which relie' can be grzmed and fer lack of subject retter ju-isdiction in this cere.rt.
Dey centerd that Co=t I should I
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l me federal deferdants had ;:revicusly filed a rctien to trensfer ve: :e i
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be dimissed as scot because MC has u:-dertaken an envizanental essessnant'
..i of the acticas reinted 'to the cleant:p cperatica at 'D2-2.
With regard to the issues raised in all four crants, defendants urge that this court lacks i
i subject : natter jurisdiction because plaintiffs ::ast first et.aust their I
- +intratise renedies by seekine th:::;5 MC the relief sea;ht in this court. Should h% render a decision adverse to plaintiffs, defendants j
i believe those decisic.s w::rald fall within the naardng of "firal licensi.g" l
i orders, and contend that ju:-isdicticn to c=: sider a c::ntested mc ruling is 4
in the court of e.n. *k, rot the disrict cct:t.
t In order to decide if the dafendants are a::cect in stating that t
plainti!!s have failed to ek.aust their at:iristrative recedies, the court rust dete.=ine @.at ar'--%istrative re edies, if any, are cpen to plain *"N.
':Se fi:st gaesticn to cer: sider is eether er net plainH f4 have standing to see.k GC action. thier the folleving t% rere.1ation, gra.::ps or individ als with ce,cer.s sirilar to plaintiffs have a riS5t of re::ourse to the Cx:v.ssien:
10 C.T.R. Section 2.206 i
I (a) Ary persen ay file a regest fc : the Di.% of 26 clear Peac=r Terala-W., di_ec: : cf n: clear Mater.a1 i
Safety and Safeguards, Director, Office of I wien and Dicrcerent, as e,.v.ria:e, to i.sti=e a pro:eeti=5 pc -
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a suant to S 2.202 to.W"y, suspe-d cr reveke a lice.se, er fcr such other actica as ray be pr:per....
(b) Within a reascnable tire after a regaest pursuant to paragraph (a) of this sectic= has bee. received, the Directer of :bclear Reacter Tegulatien. Oirec:cr of INelear Yaterial Safety and Safegua:ds, tiractcr, Cffice of :~.s:e:ticn l
and DJc ce e.t, as a,_.,_riate s'-*11 either institute the r
regested p:cceeding in acc::rdance vie. this subpart er shall advise the pers:n uhc ra.ie the re7:est in writing th:t s
to procwitng v.11 be instituted in 4:le cr in part, with q
respect to his repest, a:.d the reascns therefer.
i (c) (1) Director's decisions trier this se: tion will he filed with t.te Cffice of the Secre.2ry. Within twenty i
(20) days after the date cf a Direc:cr's decirien under this secticn that no p:o:eeding vill be i.stitute:! or ot.'er acticn t2. ken in dele er in part, t'e Cxr-issien ray cn its cwn otien revie.i that decisic., in whole er in i
part, to dete=1.~e if the Direc:cr has i:n:>' his discretien.
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N qteted regulaticn alle-s plaintiffs to ask h% fer all tM relief i
scught in this court.
te phrase *cr fcr such cther acticn as ray be I
i p:cper" gives latit.xie to challe.ge a variety cf ar.lvities related to the i
1 constructicn and cssible use cf E::icer II a-2 future decc. 2-instien
II shculd be suNect to a 12 cms.n9 me.:nent. st w a m.<
y licmsirq c:e dber;t is apprrp:d. ate, then the Cc:rlssion'a envi s.tal i
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regulations vill have to be follcwed. See 10 C.T.R. SS 51.5 thrmp2 51.26.
e If plaintiffs desire a 2:: ore cc:gre.he.sive er.vir:raental analysis th:n that which hr has q:wi to provife.,, th2 breadth of the regulatice raild pe=:it a reg.:est fca Jtn integr:ted e_7vi c =er:tal fr-a-t stat. cent on the i
entire deconta::ina' h.a process. 'ax:s, Cbunt I, if not ncot, is subject to the I
i exhs:.:sticn requi.em -t
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Cbunt III, which is terrxx:s at test because it is basedcn apassible fut..=e actien, is also subject to the exhaustion principle. Plaintiff nay request a preceeding to dete---Ne whether tMre is a danger th=.: the deccnta=i-ration p:ccess will result in the discharge of high level radicactive gol-lutants into the river. Siz:ilarly, Cbu;t 1v is subject to ad:rinistrative re--
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view before it rsy be censidered by the en:rt. It is within the Crdssica's c:vertise to deter ".e what her.lth harards, if any, are posed by the recere.ry 8
activities at 2 2.
l If 1K re. fuses to institute preceedings req.:estai tmder 10 C.T.R.
e i 2.206, cr, if plaintiffs elect to c.k='lenge a final cr&t rr.ulting f:c::
pW,.ings held by hT,. plaintiffs have a right of appeal.
Cag. css c'r<ignater k L
the forun of review cf certain firal orders cf 5% when it exacted 2S U.S.C.
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5 2342, which pr:vides:
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"he court cf afgeels has exclusive jt:-isdiction to p
enjoin, set aside, suspe~f (in wt. le er in part), or to f,
T-l dere i~.e the validity of -
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(4) all final c:ders of the At=le D.e:gy
}j Title 42....gde revic&1e by secticn 2239 of
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Ct rlssicn r
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Section 2229 of Title 42 of the C.ited States Code rakes reviedle:
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[A]ny procee.-2 g u.:ier t5is chep er for the granting, kl P '
suspending, rev:9dag, er a. erding of any license er constnaction pe=it or applicaticn to transfer controla
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and... any p.6g for the issuance er redificatien cf rules a.d rep.:lati:ns dealing th the ac ivities of pf licc= sees....
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The jurisdiction vested by the two q.:0ted secticns of Title 42 has g"
alled the courts of appeals to review a variety of hr decisicas shich are
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Q relevant to the relief s.:>.vght by plaintif fs. A dete=inarlen by 1E that it g,
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suspend or revoke" a special nuclear raterial limnse was considered bf the f
Seventh Circuit Cour: of,% peals. Pee le of the State of Illinois v. M: lear 5
Recuhtory Ctrmissida, 591 F. 2d 12 (7th Cir.1979).
In another case ::PO decided that a parti::.:lar p:oject did not fall within its licensing aut.crity. c.at fi a1 order was reviewd by the Court of Appeals for the Dist-ict of Cbhnd-ia. The cou:t stated that it was -
reviewing tGC's dera --% tion en licensing jurisdiction directly, rather than reviewing a district court's prior ruling on the sa e issue, because the district c:ra:t lacked j=isdiction to review the gaestion of Nic's licensing jurisdiction. Naticral Resources Defe-se Co.:nsel, Inc. v. t.'nited States l
l Itriear Reculatorv Car-irsion, res. 77-1489, 78-1576, and 78-1699, D.C. Cir.,
A. vast 17, 1979. *:1 ras, if phintiffs regaest that IGC either asser: licensing jurisdictica cverthe re=nery activitin, or that it chtnge the present states of the lice.se for ':MI-2, a decision on th:se regaests sculd be reviewahle in t
the c:urt of appe=%.
9--4 ' a-ly, if !GC de<-W that the operation of Ipicor II stould be subject to a licensing change, the co=t of appeals c:rald review l
the sufficiency ci :GC's considaraticn cf envir. rental fact =:s during the.
Ve_ n:.t Ya..e-ibelea-Pc-er Cere. v. ! GOC, 435 U.S.
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licensing proce~'i~:s.
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519, 555 (1978); C.:all-icn fer Sa'e !belez reve.- v. thite:f States At:rie I
Dw::.* C : rissien, 463 T. 2d 954 (D.C. Cir.1972).
It is a well esttblished principle of law that a plaintiff r s seek redress of Meva.ces with t'.e app:Opriate ad.l..istrative agency, in this i
case ?GC, p:ior to asking the coct to ta*.e acticn on 7-atters within the jurisdiction of an agency. Cralition for Safe ibelear Fe-e, suerz. ?.is st=e interference s-ith agency regairc ent has deveicped to p event pru p:ocesses, and to alle. the agency the cppo..:nity to revies its em de:isic.s.
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Etirhercer v. Salfi, 422 U.S. 749, 765 (1975).
t, f
- 'i Plaintiffs acA.wledge the dx 14 of exha
- :stion of ad-inistrative re edies, but conte.x! thatthis case is s.:biect to certain e.xceptic.s to that 3
t dcctri-e. Citing City ?>nk Far e-s : ast C =any v. Schnader, 291 U.S. 24 (1934), for the prirciple that e.vhustien is not regaired when seeki.g an s
ad-dnist_ative re edy sculd be futile, plaintiffs r:lai that recourse to IGC r m 11v si. liar to City Bank. In
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j tx:ntaxability would be denied. O.e court %.ized the futility cf forcits '
e the plaintiff to await conficaticn of that denial sten ho sculd ci: ply I
have to file suit again. In the present case plainH m do set allege that 1
I they have had any c::nnriication with MC, in spite of the fact tfat 1GC 1
I regulations recognire and provide for the right of concerned citizens to question h.C d e icns. Bey argue that the fact that !GC did rot aquiru I
a f
the reacter owners to apply for a const.uction p-4t before the h 41r"w of Epicor n decc.stn.tes the fu*4Hty of approacWg the agercy for relief.
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Be situation created by the accident at ':MI is highly
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IUC rirf sv_ll have been acting in accod with the totality of its regulatory Chli- [ :'.
gatica when it alloeed tM c=nstructica of Ipico II to p::ceed. 'that decisi:c' '
cbes not indicate the futility of the definite na+xre which is necessary to i '-
allow a court to bypass the prerequisite of exhausticn of ad=inistrative
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!4 nrndies. It wocid be an unjustified interference with MC auth: city for l ('
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this court to intervene in the present instance, when the agency itself.ay 9
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dec.ide to grant plaintiffs the relief they seek.
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d Be secc -d theory wt.ich plaintiffs adva-ce to skirt the exhausticn
~J rule is that NRC has viciated clear, nc.xiiscretic ary legal d.: ties. First E'
L they charge that, because MC has not issue:! zn envirc. ental 1 pact state-rent regarding the procesed recer.rery cperaticns at ':M -2, !GC has disregarded y
l the rarxiates of the Naticral E:vi-..cntal Policy Act.3 4h.
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3 Be issue of whether a district court ray exercise co.r.:rrent juris-dicticn because a viclation of E?A is alleced was decided in City cf Tccheste- [* '
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- v. Ecrx!. Ib. 78-1353, D.C. Cir., rarch 29,1979.
':~:e court rejec:e::i tne t. es:s l
that a district court could exercise concurrent jurisdiction because the ccn-Ei plaint alleged a m2A violatien. The following reasoning is equally applic-able to the present case:
2e rationale for statutcry review is that coherence
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an:! econcx y are test served if all suits pertaining to 1
desig ated agency decisions are sc-gregated in particular i
cocrts. De choice of for.ra is, as se have said, for I
C3ngress' and we cannet i.ugine that Congess in+2rded the exclusivity wl non of statutory revies to depe ri en the s6stantive infir uty alleged.
he policy behind having a special revies procedere in the first place si:nilarly disfavors hife ating jurisdictica over various sdstantive grounds between district ecurt and the caert of appea.ls.
ne likelih:cd cf d.: plication z-d inconsistency sould i
exist in eithe: case.
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f 337 T. Sc;:p. 287 (D.D.C.1971). In I:eak Halton the Osited St.tes District
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Ox2rt for the Dict dct of Colt:614 did firi that it had jurisdicticn to
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censide.: a ci.im that tM At:rle Ice.,;y Cndssion (AC had violated a clear, n:rriiscreticnary stat:. :y =2ndate under isA. ':he Arf had revisad i
its regulations t pe=it the issuance of an interis cperating license for a nuclear pcr.er statiori prior to the preparation of a E!'PA statecent.#
t Ib interim license had been issaaf, but the court held that finality w.s 4
esuM Mai by the regulaticas the:selves stich did not regaire an evaluatica of e=vir= rental facters tefere interi: M-%g.
In that case the court ws ret called upon to rake a je6 :ent en the sufficiency of the censideratica, t 7
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of envuu...e.:ntal facters, but rather had to decide shether the AEC reSe.laticns ! ;
w.re in viclation of trA.
1GC's supervisica of the rec:very cperations at. DC-2 presents a dif-
,I ferent set of facts. IUC has prepared an envi_ mea 1 assessrent cencerni.:q ' ;
u.
the pmcessine of the i.+ ediate level szstenter by Epic== II. It is j
trxier ccu:t c: der to 60 an envi crental assess:ent on the ot!r.: pH.ee of I
f 2::s PDC is c=cplyi. ; with reA tecause it is evaluatir.g the the re::7.'ery.
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envinrcental c:=.segaences cf its actions. *he sufficiency of that gli-g ance is a separate issue.
- n Iraak Walt-. Ar4 had rade a decisica, via its I
regulatic.s, rot to do this basic evaluati:n. "' hat was the viclati:n of a f
8 clear, r em-eticna:y dety s'.ic. vested t.% district court s-Ith jurisdic ~ <
I 4avler current NR reralati ns a 15A state =e. is pthlishef after an l
envirc::enta.1 evaluati:n. It ray take the fe.. cf a full scale envirt.=ent.1 t
frpact statecer.t, or ray be stat is te_- ed a negative de:laraticn, i.e. a state ent that, because t'.e ec.te. plated actica vill have ::o sig.ificant effe:t en the envirc.- er.t, no e. vim.- a. z1 i. pa:_ statece. vill be prepared. rither fc=n of trA stats ent is available to the public. See 10 C.T.R. SS 51.1-51.52.
5In Natic-2.1 res ur.es refe.se co=sel, In. v. thised States !belear Te7alatcrf Ccr:r.issicn, !cs. 77-14E9, 72-1576 and 75-1698, D.C. Cir., A.;7ast 17, 1979, the cocrt of appeals reccy.i:ed the jurisdic. ion cf a distric,.
coart to consider the sufficiency of a DA evaluatica rade 4 the E.ergy Tesearch ar.d tevelop ent Ad-i.istraticn. ik: wever, as the coe: totet in fcotncte thirteen, the E.e:sy.9esearch a.-d reveleptent Ad-irls. cation is not subject to a special statutcry :vview pacesiing as is 5:C.
"has, Coy;ress I
had ret divested the district ccert of jurisdictic. cver LCA procesii.:gs as it has in the case of L.C.
e' Plaintiffs further w/wd that by allowing the const=uctlas of
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r Ipicer n viticut requiring the reactor c7.ners to apply for a cchst uctics
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pe=dt NBC has viciated arcther clear, rendiscride.ary duty. D ey claim
- hat, if IUC decides to,allcw the pro:essing of the conte =inated sater prior to cx=pellirs the owners to c2 rain an are-bent to their cperating
< lea, rm h~etiona:y duty will a
- Hm, an additicnal viciation of a
- be c:rart does nc1 agree with t.%se p,vdticns.
bt all c:nstrue-cccur.
tien, not every alteratico at a rmi w p>cr plzat requires a const=uctia pendt. Neither is it obvious, under the existing stat:.:te, that an cpting l-license h -ust be cbtained before Ipic=r H cay process the suste-sater. 24 technical e:qertise rMrd to evaluate whether or not the recovery activities are subject to ;er: tits ce licensing ahd.s exists within 1GC.6 nat is the agency designated by C:ngress to regulate the naMear indust:y, the district c:n:t is not. Cmgress ha.s previded that IUC's licensin; decisicns ray be reviewed by the c:urts, but it has vested 1e i
that p>er in the court of appeils. Certainly, given the tec.Mical na+._-::
s of the fa: tors !GC rust weigh in taking its licensing dec.'.sices, this court I
rr is rot in a positicn to declare that IUC has violated a t-7a.ar, radis, etiona:y t,
,L t
e duty.
g e
Oe excepticns to the exhausticn doctrine do cot apply to the facts of fi this case. De relief plaintiffs seek cust be requested f:tzn FUC. Chly I
after ?UC has issu<d a final c: der uit.h respect to the reisest vill it be L
t.-
I ri;e fer cc-.sida_ ration by the courts. Because plaintiffs have failed to 7
exhaust thel: ad r'nistrative renedies, the r~
imb:t is dismissed for Iack of
[
f subject ratter jurisdiction, but without prejudice to plaintiffs' right of
(
twe to the Nuclear Te,ralat=Iy Msien.
j tf Dated: Cetcher 12, 1979 sylvfa E. Ra..%
l1 thited States District Judge I
6: C ::. st decide whether an alteratica is involved constituting a a
cha.ge f:cm the technical specifications previously ince:jorated in the f
license (10 C.F.R. S 50.54 (n)); whether an "u-.revie.ed safety gaestica,"
as defined in 200 re7alaticns, is involved (10 C.T.R. S 50.59 (a)); whether a "significant hazards consideration" is involved (10 C.F.R. 5 50.91); cr whether a "raterial alteration of a licensed facility" is involved (10 l
r C.T.R. 5 50.91).
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LNIUD S7_~7S DI.CRIC CDL7:7 l
IDR 7EE girrr DISplCT CF PE%VEGA l
h h't.A MI2ZY AI?tD.'CE,
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et al.,
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Plainti.*fs
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Civil Action Ib.79-658
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THREE MEII ISIRC NDCIZAR
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RocKr., et al.,
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Eefe:xitats
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t ORDER RC la?, this 12th day cf Oct er,1979, far the reasces statad'in
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the rencrana.= filed this date, t.5m explaint is this ratteiis <"Mesed I
I for lack of subjec catte jMc'h ncn, but with:ut prejudice to pla.intiff's i
t right of recourse to the Ib:-lear Pe7alatory on ission.
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' LBERT J. SLAP, ESQUIRE (Argued) d
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Pubbe Interest Law Center Z
of Philadelphia J.".
JEAN ROYER KOHR, ESQUIRE
.i Minney, Mecum & Kohr j
LARRY B. SELKOWITZ., ESQUIRE Widoff, Reager, Selkowitz & Adler
~
1315 Walnut Street, Suite 1600 Philadelphia, Pennsyh ania 19107 Attorneys for Appellants GEORGE F. TROWBRIDGE, ESQUIRE MARK AUGENBLICK, ESQUIRE THOMAS A. BAXTER, ESQUIRE (Argued)
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036 (f
Attorneys for Prit ate Appellees LEONARD BICKWIT, JR.
General Counsel SANFCRD SAGALKIN i
Acting Assistant Attorney Genera]
l STEPHEN F. EILPERIN (Argued) e Solicitor
- PETER R. S rEENLAND, JR.
Chief. AppeDate Section E. LEO SLAGGIE o
STEPHEN S. OSTRACH Attorneys U.S. Nuclear Regulatory Commission Office of the Geneni Counsel Washington, D.C. 20555
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'9" UNITED STATES COURT OF APPEALS
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No. 79 2446 si;i x.=y9
_ o SUSQUEHANNA VALLEY ALLIANCE.
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--d DAVIS. Ronald L.. TOMPKINS. Bem..
HESS. Beverly M.. SNELL. Doreen E.,
Appellants
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THREE MILE ISLAND NUCLEAR REACTOR. GEN-
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9 ERAL PUBLIC UTILITIES METROPOLITAN EDISON COMPANY, JERSEY CENTRAL POW-31 3
ER 6; LIGHT CO., PENNSYLVANIA ELECTRIC c.-.
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CO.. NUCLEAR REGULATORY COMMISSION.
HENDRIE, Joseph A..
DIECKAMP. Herman.
CR EITZ, Waher M.,
VERROCHI.
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j BARTNOFF. Shepard.
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A pellees P
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(D.C. Chil No. 79-0658)
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ON APPEAL'FROM THE UNITED STATES DISTRICT COL'RT
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FOR THE MIDDLE DISTRICT OF PENNSYl.VANIA Argued November 13.1979
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i fefore: GIBBONS. HIGGINBOTHAM and SLOVITER.
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Cirruit Jud.ges (Opinion Filed March 17.1980) j
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I-JACQUES B. GELIN Attorney h
Land and Natural Resources Division'
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U.S. Department of Justice
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C Washington, D.C. 20530 Attorneys for Appellee.
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Nuclear Regulatory Commission y
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Y OPINION OF THE COURT I
GlBB0NS. Circuit Judge.
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The Susquehanna Valley Alliance, an unincor-
[
porated associadon of residents of Lebanon. York, and t
t Lancaster Counties in the Commonwealth of Pennsylva-J.
nia dedicated to preservation of the environme it of the F
Susquehanna River, and four Lancaster County resi-L l @
dents, (collectively the Alliance) appeal from an order r,.
dismissing their complaint seeking injunctive and de-f claratory relief for lack of subject matter jurisdiction. We l'
conclude that the complaint states some claims over
(.
which the distnct court has junsdiction, and we will t
reverse.
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- 1. Proceedings in the District Court b
The defendants'are~the Nuclear Regulatory Com-p mission (NRC), Joseph A. Hendrie, its Chairman. Gen-eral Public Utilities and several ofits subsid: aries. who F
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own and operate Unit 2 of the Three Mile Island Nuclear i
i, i
Power Station at Middletown. Dauphin County. Penn-i l'
sylvania (collectively the Operators) and several officers
[
i of the Operators. The complaint alleges. and it is cone.ed-g i
ed by all parties. that on March 28,1979, an accident at j
Unit 2 made it nicsssarp to bring that' Unit to a cold y
[v shutdown, and that as a r'esult of the shutdown 600.000 g
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tl gallons of water, contaminated by a high level of radioac-
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tive waste, have accumulated in the reactor containment i
buildng and 250,000 gaDons of water contaminated by an imermediate level of radioactive waste have accumu-L lated m the Unit's auxiliary bu0 ding and associated i
tanks.8 The complaint aDeges that the defendants have planned an attempt to partiaDy decontaminate the water T
and threaten to release this water eventuaDy into the t
Susquehanna River, w here because of the ptoposed de-
=
contamination system's technological limitations it will g
contaminate both municipal water systems and fi;h and e
other wildlife used by the plaintiffs for food. More spe-
?,
cifically. the complaint aDeges that NRC has authorized F
th.e Operators to purchase, erect, and begin the opera-uon of a system, known as Epicor II, for treatment of contaminated water. The system will decontaminate the
[
water by passing it throug. resin beds in which isotopes
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other than hydrogen and oxygen will bind to the resin.
j while the decontaminated water wiU be discharged.
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Thus, the radwactive isotopes win be trapped in resin f
beds while the non-binding hydrogen and oxygen will be
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discharged.2 The complaint aDeges that there is no known technology available to maintain the integrity of F
the resin beds and that if they disintegrate radioactive waste maurials wiD be discharged into the river or the l
l.
2 L.
av While the Operators propose to treat only the inter-3 i;
mediate level radioacuve water by means of the Epicor il
[i system. that water is alleged to contain "high-level radio-p.
acuve waste"within the meaning of section 301(f)of the i ^
Federal Water Pollution Control Act (FWPCA).3 which f
i 1.1: is further conceded that approumately 100.000 gallons of
[.,
high level radioacuve waste water has e accumulated m the re. actor's
(
pnmae coohng system. from which approximately 1.000 to 1.500 k
talions per day is leaking mio the containment buildmg.
- 2. 5er Office of Nuclear Reactor Regulanon. Nuclear Regula-f[
torv Comm'n. Use of EPICOR.Il at Thwe Mile Island. Unit 2 ll3.3.
p 51-5.2 ( Aug.14.1979).
('
33 L'.S.C. 61311(f)(1976 & Supp. I)(also referred to by the y*
3 short title of Clean Water Act of 1977's.
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prohibits discharge of such waste into the navigable wa-ters of the United States. Moreover. the complaint al-leges. neither the Operators nor the NRC have any over-au plan to deal with the entire contammated water problem, or any feasible plan for disposal of the highly
~
radioactive resin residue which Epicor II will produce.
1 Fina:Jy. it is alleged that because the containment build-ing and the aux 1Dary building are presently secure there is no immediate necessity for putting the Epicor Il sys-tem into operation.
Jurisdiction is invoked pursuant to 28 U.S.C.
i31361. 1331. and 1337 as web as 33 U.S.C.
ll365(a)(2) and 5 U.S.C. 61704. 706. The complaint
!j, aDeges the jurisdictional amount required by 28 U.S.C.
$ 1331. Plainti1Ts* complamt dages that the actions and inact;ons of the NRC and the actx.m of the Operators have given nse to four substantive claims. Count I charges violations of section 102 of the National Emi-ronmental Policy Act of 1969 (NEPA) 42 U.S.C.
j f 4321-4361. 4332 (1976), and of a provision of the Op-erators' operating license requiring that the Deensee, be-fore engaging in additional construction or operational activity, prepare and record an emironmental evaluation of such activity. Count 11 charges violadons of various provisions of the Atomic Energy Act. 42 U.S.C.2011 2296 (1976 & Supp. I). regulations of the NRC issued pursuant to that Act. and the Operators' bcense. I Count 111 charges violations of section 301(O of the Fed-eral Water Pollution Contro! /.ct. 33 U.S.C. {1311(f). n Count IV alleges that the action of the NRC permitung the Operators to discharge radioactive waste violates plaintiffs' rights under various provisions of the United States Constitudon. The district court, without separately analyzing the four Cc.unts of the complaint. concluded that the relief requested was unavailable from any source other than the NRC. that the plaintifrs had failed to exhaust admin-istrative remedies before that acency, and that the court K ,ll I
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~ ?-- 6 . " -....* ; dd."......... Jacked subject matter jurisdiction. The complaint thus ~~ was " dismissed for lack of subject matter jurisdiction. = but withe;t prejudice to plaintiffs' right of recourse to ZI:~T ~ the (NRC).* Since the order appealed from dealt only with whether the complaint stated any cause of aedon within the subject matter jurisdiction of the district
- =f" court, we must first consider that question with respect
"'~ ~.;.. r to each count.5 Although the complaint pleads the viola-tion of the National Environmental Policy Act of 1969 as ~ the first Count, we think that the interaction of several -. ~:::.. - - federal statutes upon which the panies rely can better be understood by commencing our discussion with the al- ~" ~ leged violations of the Atomic Energy Act. i II. The Atomic Energy.1ct. 42 U.S.C. 55201!-2296 ^ = ;N= : (1976 & Supp. !) The Ene gy Reorganization Act of 1974. Pub. L h No 93-438. 88 Stat.1233. codified in relevant part at 42 [ t U.S C. [5841. reprinted in (1974} U.S. Code. Cong. & ('f Ad. News 1401. established the Nuclear Regulatory l Commission (NRC) and transferred to it the licensing { jurisdiction over private nuclear power plants originally l created in the Atomic Energy Act of 1954, Pub. L. No. 83-703. { { 1,101-110. 68 Stat. 919, 921, 936-39. codified [, at 42 U.S C. { {2011, 2131-2140, and which were for-i merly exercised by the Atomic Energy Commission. The [ {', Act as amended authorizes the NRC to presenbe regula. [ tions "to govern any activity authorized pursuant to this I chapter. including standards and restrictions governing ' ( 1
- 4. See Susquehanna Va!1ey Alliance v. Three Mile Island Nu-
[> f clear Heacror. -F.Supp. . No 79-658. sbp op. a 9 (W.D. Pa. Oct 12. 1979). 5 A panel of this court on October 17.1979. denied a mouon i bv appe!! ants f or injuneuve reberpendmg appeal. In view of our d2s-pasioon on the ments of the distnct court's junsdictional ruhng. i that court is hee to consider any appbcauon for prehminary injunc. tive reher which may be brought before it. L 1 I (L f M b
by;;..,.. 3=== ' " ~' ' ~ ~%.. ~ " ~ ~ ' * " ~ ~ ~~~ ~~E. ~ w_ r .1-g.. ~~ 7 w o JJ. the design, location, and operation of facilides used in ?. '. ~ the conduct of such activity, in order to protect health - ' "~~:.':.~~.. ~ and to minimize danger to life and property." 42 U.S.C. [2201(f)(3) (1976 & Supp. I). The NRC has adopted reguladons setting forth procedures for imposing re-quirements by or'er, or for modification, suspension, or ~ revocation of licenses.10 C.F.R. { {2.200.206 (1978). As cunently codified, the Act provides for hearings in any proceedmgs "for the granting, suspending, i I revoking, or amending of any license or construction i permit." 42 U.S.C. {2239(a). Finally, the Act pmvides that [ajny final order entered in any proceeding of the kind specified in subsection (a) of this section shall ~ be subject to judicial review in the manner pre-scribed in the Act of December 29,1950, as amend-ed, and to the provisions of section 10 of the Admm-istrative Procedure Act, as amended. Id. {2239(b). The Act of December 29.1950 referred to in the quoted provision. Is the Administrative Orders Re-view Act, which provides in relevant part that ltJhe Court of Appeals has exclusive jurisdjetion to enjoin, set aside, suspend (in whole or in part), or to determme the validity of-(4) All final orders of the Atomic Energy Commis-6 sion made reviewable by section 2239 of title 42.. 28 U.S.C. {2342 (footnote added). NRC contends that its coniideration of the problem of disposing of contami. nated water at Unit 2 is a license proceeding falhng
- 6. Smee nhe NRC is now esetasing cenaan of the power > io inerly exeiri>ed by the Aronne Energy Coinrnission. 42 l' S C.
4554] t19761 this proosion ghes the coun of,rppe. tis jun>dicuon I oser the NRC"> oiders that are truewable under -12 U.S.C. !2239 Ii l
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E.'. 8 . f F within sectjon 2239(a). It urges that the judicial review E provision in section 2239(b) is an exclusive remedy, that no fmal order has yet been entered in that proceeding. and that in the absence of a final order no coun can re-view its action or inaction. The allegations of the com-plaint, however, are to the effect that the Operators threaten construction and operation of the Epicor II sys-tem without the required license or construction permit and therefore in violation of the Atomic Ene'rgy Act. 4 I Thus, fairly read, the complaint seeks more than judicial review ofincomplete agency action;it seeks to enjoin ac-tivity of the bcensee said to violate the Act and to endan-ger the health of the community. Recognizing this, NRC contends that it is the sole tribunal authorized to enter-tain a charge of such a viola: ion. It points to its regula-tion,10 C.F.R.12.206, which authorizes any person to file a request with the Director of Nuclear Material Safe-ty and Standards or the Director, OfBce of Inspection j [V '; and Enforcement, to inst rr. a proceedmg to modify, } i suspend or revoke a bcense or take such other action as may be proper. NRC thus argues that the Alliance must first seek admmistrative relief under section 2.206 and 3 that once NRC's final order in that proceedmgis issued, the exclusive review provision of section 2342,28 U.S.C. [2342, will govern. Moreover, NRC suggests, this exclu-l sive review mechanism is adequate to protect the pubbe } even from pendente lite harm, since a reviewing court also has the power to issue interlocutory injunctions. 28 U.S.C. [2349(b). It is tme that section 2349(b) permits the court of appeals to grant pendente lite relief, but that power ex-ists only in cases over which the court has jurisdiction. It has jurisdiction only over final orders of the agency, however, and thus section 2349(b) affords no authority for the court of appeals to grant reliefin order to prevent irreparable injury before the agency gets around to tak-ing action. The Alliance charges that the Operators are in violation of the Act and about to cause irreparable in-(] 1
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......,.1 -,.n e z. . ::.===.=: -r 9 I7 . ?... 5E ~" lury, and that NRC has done nothing to prevent that in-jury. If NRC is correct in arguing that only it can consid- ~~ "E er the charge of a violation of the Act in the first instance, and that review under the Administrative Or-ders Review Act is exclusive, then the unavailabiBry of i . i pendentelite reliefduring the time when the agency has
- 1 the case under consideracon would seem, superficially u..
toleave a large gap in the pmtection available to the pub-F lic. However, that gap appears to be fiUed by the All L Writs Act,7 for in FTC v. Dean Foods Co.,384 U.S. 597 2, (1966), the Supreme Court held that section 1651(a) au-thonzed courts of appeals to issue prehrninary injunc. E tions preserving the status quo, pending final agency ac- [ tion, of matters over which, by vinue of section 11(c) of E the Clayton Act,15 U.S.C. [21(c)(1976), they had ex-f clusive review jurisdiction. 384 U.S. at 604-05. The [ Dean Foocs analysis appears to be equally applicable to E cases before the NRC. Thus the Alliance could have E asked NRC to act, see 10 C.F.R. 52.206(a), and could [ have asked the appropriate coun of appeals to grant _t-pendente ble rebef while NRC considered the case. E The pendente lite relief available under 28 U.S.C. } il2349(b) and 1651(a), while it makes the NRC argu-E ment for absence of district court jurisdiction more pal. E atable. does not decide the question. In other instances [ m which there was exclusivejurisdiction in the court of i appea]s under the Administrative Orders Review Act i this court has reserved decision on the question whether a district court may entertam cases challenging the E timeliness of agency action. City ofTrenton v FCC 441 E l F.2d 1329.1333 & n.8 (3d Cir.1971); Bucks County Ca- [ ble TV, Inc. v. United States, 427 F.2d 438, 442 (3d ) Cir. ), cert. denied. 400 U.S. 83) (1970); see Citizensfor i i
- 7. 28 U.S C.11651 (1976). That Act pmodes in relesant pan-that the courts of appeals mayissue all wnts necessar';or appropn and pnneiples oflaw."Id. il65)(alate in a)d of the2r respective junsdicuon and a L
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........._._._3, ~ ~ ~ ~ ~ ~ ......~.2...--.. 10. a Safe Environment v. Atomic Energy Comm'n,'489 F.2d 1018,1022-23 (3d Cir.1974)(expressing no view as to whether Commission's order could be reviewed in dis-trict court proceeding for injunctive, declaratory or man-damus relief). Tacidy, at least, we have assumed that de-spite the exclusive jurisdiction language in 28 U.S.C. 52342 there may be room for district coun rehef which did not amount to judicial review of a final agency order. We have not heretofore considered whether, since relief against the Agency is available in the court of appeals i under the All Writs Act, we should countenance any ero-j sion of the exclusivity provision. Nor have we considered a whether, when an agency has jurisdiction to consider a ' claim that the Act it is charged with enforcing has been violated, there may still be jddicici enforcement against ? the alleged violator, rather than the against the agency. -L Certainly, however, the answer to the latter question is not to be found in the exclusivity provision. 28 U.S.C. e 52342. For if there is a substantive cause of acca.i avail- /T d able against violators in a non-agency forum, the exclu-V4 sne review provision of that statute would not apply to the actions of that forum. Rather, the inquiry must be whether the statutor,f scheme has expressly or imphedly confined enforcement to a single agency, precluding re-Lef in a non-agency forum. The statutory scheme in issue authorizes no person or agency other than the NRC to grant, suspend, revoke or amend a hcense to operate a nuclear power reactor. 42 U.S.C. [2239(a). But that section does not in so many words say that a license suspension proceeding is the only method of enforcing the prohibitions of the Act. Pe-cubarly, however, there are found m the subchapter of l the Atomic Energy Act deahng with enforcement, 42 U.S.C.162271-2282, provisions not called to our atten-tion by any of the parties, which appear to preclude pri-vate enforcement. The enforcement subchapter pro-vides for three types of enforcement: criminal prosecuuons. id, ll2772-2278b: injunction actions, id. F
........._..--.-..:-:...---*r---~*~=:-~~~~~":~- E...~ ~"' ~ . v**.. d 11 ~ $2280; and civil penalties, id. [2282. Obviously cnmmal enforcement is entirelyin the hands of the governrr.cnt. Id. ((227)(b), 227)(c). The civil penalty prosis2on, which was added by the Atomic Energy Act Amend-ments of 1969, Pub. L. No. 91-161, f 4,83 Stat. 444, au-thonzes the Commission to impose such penalties in the first instance,42 U.S.C. (2282(a), while their colleccon is by a civil action instituted by the Attomey General at the Commissioner's request. Id. 32282(c). As to the in-junctive remedy, the Act, as currently codiBed, provides: Wheneverin thejudgment of the Commission [ any person has engaged or is about to engage in any 1 acts or practices which constitute or will constitute j a violation of any provision of this chapter, or any r, regulation or orderissued thereunder, the Attomey General on behalf of the United States may make f application to the appropriate court for an order en-I joining such acts or practices, or for an order enfore-a gg ing compliance with such provision, and upon a [ showing by the Commission that such person has engaged or is about to engage in any such acts or pracoces, a permanent or temporaryinjunction. re-p straining order, or other order may be granted. [ Id. 62280. The statutory setting for the Commission's i l authonty to request injunctive relief must, however. be f read in conjunction with section 221(c), the general en-i forcement provision of the Act id.1227](c). which ~ pavides: t No action sha)) be brought against any individ-ual or person for any violation under this chapter unless and until the Attorney General of the United States has advised the Commission with respect to such action and no such action shall be commenced i except by the Attorney General of the United States ... And provided further, that nothing in this subsection shall be construed as applying to admin-istrative action taken by the Commission. 4
..&... t..- ~. _.. ~. 12 Id. The injunctive relief provision first appeared in sec-tion 16(c)of the Atomic Energy Act of 1946, Pub. L No. 585, $16(c),60 Stat. 755. It authorized the Atomic Ener-gy Commission to commence suits for injunctive relief. In the Atomic Energy Act of 1954, the injunctive rem-edy was carried forward in section 232, but the authority to sue was given to the Attomey General. Atomic Energy l Act of 1954. Pub. L. No. 83-703, $232,68 Stat. 959. 7.:e general prohibition against suits by anyone other than the Attorney General first appeared in section 221(c) of the 1954 Act. Id. $221(c),68 Stat. 958. The final protiso, g excepting admmistrative action by the Commissien from that prohibition, was added when the Act was amended in 1969. Atomic Energy Act Amendments of 1969, Pub. L. No. 91-161, 5,83 Stat. 444. 3 We have nr.t found very much by way oflegislative j history illuminating the reasons for the adoption of sec-1 t tion 22)(c).8 But the meaning of that section's language prohibiting judicial enforcement by anyone other than ~ 7 the Attomey General or administrative enforcement by p the Commission (now the NRC with respect to private r acle,ar power reactors) seems plain. "No action shall be brought against any individual or person for any siola-except by the Attomey General of the United tion.. States. 42 U.S.C. {2271(c). The only exception for pn-l
- 8. The Senate Report which accomparued the Senate sersion of the bill states. with respect to secuon 221(c r
... No action may be brought for any oolation of the act until the Attorney General has adosed the Commission mth respect to such action All actions are required to be brought by the At-sorney General as the legal representauve of the Commission before the courts. In those cases invohing the death penalty, acoon may be brought on the express direction of the Attornes General himself. 954;t. S. 5 Rep No.1699. 83d Cong. 2d Sen rcprinted in 1: Ccde Cong. & Ad. News 3456. 3485 86-The two Conference Com-See H H Conf. truttee repons make no reference to section 221 Rep. No. 2639. 83d Cong. 2d Sess. reprinted in 119541 l' S Code Cong, & Ad. ' Jews 3529. H.R. Con!. Rep No 2666. 8"td Conc 2d Sess. reprinted in 13954] U.S. Code Cong & Ad News 3534. I
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~-" =.. 13 ^ _.. - "....... vate enforcement appears to be the opportunity to par-ticipate in the NRC's administrate proceedmg as pro. c vided in the Commission's regulations and seek judicial ~ " ~ =. review under section 2239 a (1978) (permitting any pers(on). See -10 C.F.R. {2.206 1. to request initiation of .~ commission proceedings to revoke, suspend, modify or take other action with respect to an operator's license). It is true that the "no action" language in section 221(c)is ~ not couched in jurisdictional terms. Compare 42 U.S.C. 5227)(c) with the Norris-LaGuardia Act, il,29 U.S.C. [101 (1976). But it is also true that Count II seeks relief which under the enforcement scheme of the Atomic En-E L ergy Act a district court may not afford to a private liti-gant'Retuming that Count to the district court for the E entry of a dismissal under Fed. R. Civ. P.12(b)(6), radi-er than under Fed. R. Civ. P.12(b)(1). would be a futile L t exercise. The dismissal of Count il murt be affumed be- [ cause it fails to state a claim upon which relief may be E granted. i s 111. Nationo! Environmental Policy Act of 1969. 42 i U.S.C. 554321-4361 (1976) Turning to Count I. which charges defendants with i_ I sioladons of section 102 of the National Environmental of 1969. 42 U.S.C. ji4321-4361. 4332 I Policy Act (1976), we note at the outset that the statute is directed i toward the activities not ofprivate parties but of the fed-i E eral govemment. Thus although Count I alleges that the Operators have violated the provisions of their Operating [ License for Unit 2 by falling to provide a written evalua-t tion of the environmentalimpact of their actions. Com-l plaint T80 that allegation adds nothing of substance to i the charge that the National Emironmental Policy Act has been violated.*Indeed the analysis we have madein v
- 9. The National Env2ronmental Pohey Act s requirement th.it l
an environrnentalimpact statement be prepared is durered at the t atencies of the federal government. not at pnvare parties Ser.h i 1 6
- Nu - ~~;.--.. ~........:.. ~ ~ 14 Part II. supra, compels the conclusion that the distrlet court may not consider the aDeged violation of the Oper-ating License. The sufDefency of Count I must be deter-mined by the aDegations that are d2rected against NRC. The NRC has recognized its obligation to comply with the National Environmental Policy Act by promul-gating regulations governing licensing and regulatory policy and procedures with respect to emironmentalg protection. See 10 C.F.R. j 151.1 to.56 (1978). The NRC requires applicants for construction or operation permitsb ,+ to file an emironmental report. Id. {51.20. A draft envi- 'i ronmental impact statement is then prepared by the NRC staff and is distributed to appropziate federal agen-6" cies and published in the Federal Register. Id. { {51.22 ] to.25. After comments have been received, the Director i of Nuclear Reactor Regulation or the Director of Nuclear ,j Material Safety and Safeguards or their designee pm-k pares a finaj erwironmental impact statement. Both thef draft statement and the final statement accompany th-application through the NRC review process. Id.151.26. 3 The regulations recognize that the Director of Nuclear II Reactor Regulation or the Director of Nuclear Material
- j Safe'ty and Sa(eguards may determine that no emiron-mental impact statement need be prepared for a particu-lar acnon. but provide that any pany to an NRC proceed- ;.
mg may take a position and offer evidence on the aspects f of the proposed action claimed to fab within the Act. Id. i $ 51.5(c ). 51.50(d). 51.51(b)(1). The adequacy of NRC j compliance with the National Environmental Policy Act in any license proceeding is reviewable in the court off appeals pursuant to 42 U.S.C. j2239fb) and 28 U.S.C. 3 f 2342. See verrnant Yankee Nuclear Potter Corp. t.Nat-ural Resources Defense Council, Inc., 435 U.S. 519, . OTE 9 'Cununuedo uonal Enuronmentaj Pobey Au of 1969. L IO2r2/Cs. -12 L'.S,C. .= Vn2t2 f C o t 19%.
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35 526-27 (1978)(final decision of AEC with respect to h-I censing and compliance with National Emironmental Policy Act requirements is reviewable in court of appeals under 28 U.S.C. 52342 and 42 U.S.C. {2239); New Eng- .[ land Coalition on Nuclear Pollution v. NRC,582 F.2d
- 87. 93 (1st Cir.1978)(final environmental impact state-ment of NRC is reviewable).
d What the Alliance charges in this suit is that NRC. by fragmenting its consideration of the problem of I disposing of the contaminated water in Unit 2, and au-E thorizing the erection and operation of Epicor 11 to F dispose of the Intermediate level contaminated water. I without preparation or consideration of either a draft or a t final emironmentalimpact statement, has frustrated the Act and violated NRC's plain statutory duty.' Segmen-j. tation of a large or cumulative project into smaller com-E ponents in order to avoid designating the project a major i federal action has been held to be unlawful." Thus the E y
- 10. The NRC. in resisung the grant of an injuncuon pendmg
[ appeal disputed that charge, contendmg that it had directed its staff [ to prepare a draft emironmental impact statement. It is not i d2sputed. however. that NRC gate the Operators oral approval to be-3 cm the installacon of Epicor II. without awa2ung the preparacon of r that draft statement. [
- 11. E g.. City of Rochester v. United States Postal Serv. 541 E
F.2d 967. 972 (2d Ctr.1976)("To permit noncomprehenswe con-i siderauon of a project diusible into smaller parts. each of which tak-t en alone does not have a sigmTscant impact but which taken as a [ whole has cumulauve significant impact. would prende a clear t y loophole to NEPA.7). Scienusts* Inst. for Pub. Informauon. Inc. t. J AEC. 481 F.2d 1079.1086 n.29.1086 89 (D C. Ctr.1973) (state-ment required for overall project where indmdual actions are relat-t i ed logically or Eeographically). See pentrally W. Rodgers. E.nviron- } mental Law il7.7. 7.9 (1977) (discussing problems ansing from scope and unung of emironmental impact statementst The Su-j preme Court, however...as made clear that there is no afnrmatne I obligation to reponahre a proposal under NEPA: a project of genu-1 inely small scope of course would not be an impermissible segmen- ] tation. See Kleppe v. Sierra Club 427 U.S. 390. 399-402 (1976)(no obligation to prepare impact statement as to regional effects where no regional action proposed).
. ~ .J'*".*""".**/~~~"'" "*"" ;.*.*Jf.""":!... 7Tove. - T,5-r :weimmvi.ssure.'Saknwiar= - - munimes:--- ] )1 .. -.-.=.. ], 16 ,.....m. '.4 legalissue presented by Count Iis whether, despite the ? i.;_ availability of review in the court of appeals when the j NRC issues a final crder, the district court has jurisdic-1 ~ ~ ~ " " ~' tion to compel compliance with the National Environ-f o mental Policy Act by prohibiting such segment - 9. Enforcement of r.he envircomental impaa sate-ment requirement generally has been assumed to be within the subject matter jurisdiction of the district courts. E.g., Flint Ridge Dev. Co.v. Scenic Rivers Ass'n., y 426 U.S. 776, 782-83 (1976); Environmental Defense j Fund v. Tennessee Valley Auth.,468 F 'd 1164 (6th Cir. 1972). Moreover, the analysis of i e enforcement subchapter of the Atomic Energy Act in Part II, supra,is i inapplicable. Count I is not directed to a violation of that Act. but to a violation of the National Environmental Pol-i l icy Act of 1969, and private enforcement of that statute 'j has been the rule. Whatever were the policy reasons for ~ concentrating enforcement of the Atomic Energy Actin [ c the hands of the Attomey General. they do not apply to b; Count I. Where, however, an agency provides an opportunity .i for private parties to intervene and raise the issue of the N necessity for preparation of an environmental impact 'I statement, and where both review and pendente lite re-lief can be obtained in the coun of appeals. it would not j be an unreasonable construction of the Administrative Orders Review Act,28 U.S.C.12342, that enforcement of the National Environment Policy Act against that fi agency is availat.le only in the court of appeals. That is the construction which is sought by NRC. In Scientists' Institutefor Public Information,Inc.v. AEC(SIPI),481 1 F.2d 1079 (D.C. Cir.1973), the Court of Appeals for the i District of Columbia Circuit held that the district court C could, and should, entertain an action to enforce the en-jf vironmental impact statement requirement against the .j Atomic Energy Commission, to which the same review ! I scheme applies. In that case Judge Wright gave consid-erable attention to the significance of timing of the im-k I a k I
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w=s;=. l~ ' :..:.:: 1.:. 4._..; : c=.~ ,. 7 _ c.. .1 .. f ~~ "Z:. 17 ~ '.;. ~.".1 prt statement. Id. at 1093 98. The Alliance makes.he i ~~~ ~ l; - vadd point that when by fragmentating its consideration the NRC postpones preparation of an impact statement ~ ~ until after private pardes have been permitted to expend h large sums on construction, the resulting change in the status quo has the almos~t inevitable effect of distoning the later view of both the agency and the reviewing court as to the desirability of the action in question. See Cal-vert Cliffs' Coord. Comm. v. AEC,449 F.2d 1109,1127 5 + (D.C. Cir.1971) (AEC should not be permitted to fore-close alternative solutions by delaying environmental impact statements). Although the Supreme Court has E i repudiated the list of factors relevant to timing that were [ enumerated by Judge Wright in SIPI, see Kleppe v. Sier-ra Club,427 U.S. 390. 403-06 (1976) and has described [ NEPA's requirement that an emironmental impact 2 statement be prepared as " precise," id. at 406, the sig-nificance of the timing decision cannot be ignored. Like other agencies. NRC must be afforded some flexibility , f{ with respect to timing of the preparation ofimpact state- ? ments. See Aberdeen & Rockfish R.R. Co. v. SCRAP,422 U.S. 289,320 (1975)(preparation of statement required by statute once proposal submitted): Westinghouse Elec. Corp. v. NRC,598 F.2d 759,776-78 (3d Cir.1979)(Na- [ tional Emironmental Policy Act permits NRC to defer E E statement preparation pending policy decisionh Neu-England Coalition on Nuclear Pollunon v. NRC, 582 [ F.2d 87. 93-94 (1st Cir.1978)(agency not required to E 2
- ~
revise statement when proposal revised). But the timing [ problem is a real one especially when private parties are ~ p p permitted by a federal agency to make major construc-i tion expenditures in advance of consideration of emi-ronmental issues. The Supreme Court in Kleppe held. l that once the agency, here the NRC. is presented with a ' proposal. as in the instant case, then the IHipact state-t ment must be prepared. 427 U.S. at 405-06, quonng Aberdeen & Rochfish R.R. Co. v. SCRAP 422 U.S. at f 320: see Kleppe v. Sierra Club. 427 U.S. at 419 n.1 (Mar-l L i I d I
l.qi.r5,_ <, w.... u --. > + ..ww w _;--- === ~~ _ _.: - ~ ~... -.. .:.w - - _ _'.: ::== - ---- 3.: .;, =.... =-. .--==w== -m,..- -.-. ~.._.. _.- 1 ,},...........-:... 1 'T."... 1..-.. "-~T.~1i 18 shall, J., concurring in pan and dissenting in part) (ma-1 jority opinion does not pennit agency to delay prepara-j don of statement once proposal submitted). Thus the s NRC does not have unfettered discredon, and the real A issue before us is whether the court of appeals or the dis-( trict coun can consider the claim that such a course of f action should not be permitted. i It is conceivable that the All Writs Act,3 U.S.C. 61651, as interpreted in FTC v. Dean Foods Co., 384 U.S. 597 (1966), may authorize the coun of appeals to enforce timely compliance with the National Environ-j menta! Policy Act with respect to agency proceedings } that it may ultimately review. Another conceivable ap-I proach is to hold that whenever NRC takes any action ~l having the effect of permitting a licensee to commence l construction of any facility there is a Snal order within i the meaning of 42 U.S.C. 62239(b). Neither approuh l when a(n impact statement should be prepared wdl re-esirable. In many instances determination of seems i quire a record. While the coun of appeals can deuse pro-cedures for the preparation of a record in a section 1651 proceeding, the district coun has both procedures and facilities at hand for that task. Thus reson to the more ordinary remedy of a suit for declaratory or injunctive re-lief. or to the mandamus remedy authorized by 28 U.S.C. 61361 seems preferable to inviting htigation here. The approach of treating any NRC action which permits a licensee to do anything as a final order, aside from the problems arising from the absence of a record, poses the additional problem of proliferation oflitigation over what agency action is final for purposes ofreview. See Westinghouse Elec. Corp. v. NRC,598 F.2d at 768 n.35. This is not a case in which the administrative rec-ord is complete and a final order has undoubtedly been . ? made. E.g., Natural Resources Defense Council, Inc. v. j s NRC, 606 F.2d 1261,1264-66 (D.C. Cir.1979). We conclude, therefore, that a claim that NRC is not complying with the National Environmental Policy i t i <L
T*** ~~ ... J.' C." "1 5 ,3 ~~~~,-- 5.~~ *~.:., _ *.-.; ~- :-'~:~ ~ * ' 1 - -- - ~ ; \\ i f. 19 l Act states a cause of action over which the district courts have subject matter jurisdiction, and that dismissing Count I forlack of subject matterjurisdiction was error. "~ 7 Our holding that there is subject matterjurisdiction over I Count I should not be construed as an indication that L the requested relief, injunctive or declaratory, should be granted. It may be that NRC will convince the court that its fragmentation of the contaminated water problem was entirely proper, or at least within the range of per-missible agency discretion on the timing of emironmen-talimpact statements. It may be appropriate, moreover, for the district coun to stay its hand pending further { agency proceedings, while retaining jurisdiction. These are issues which on the present record are not before us. Nor on this record do we have any occasion to determine what effect the NRC's November 21,1979 Statement of Policy and Notice of Intent to Prepare a Programmatic EmironmentalImpact Statement may have on the prop-( er disposition of Count I. IV. Federal Water Pollution Control Act, 33 U.S.C. 551251-1376 (1976 & Supp.1) In Count Ill the Alliance charges that the Operators are threatening to violate section 301(f) of the Federal Water Pollution Control Act. 33 U.S C. i{1251-1376. 1311(f)(1976 & Supp.1), which provides: Notwithstanding any other provisions of this chap-ter it shall be unlawful to discharge any radiological. chemical,'or biological warfare agent or high-level radioactive waste into the navigable waters. Id. 61311(f). in dealing with Count III the district court ruled: Count III, which is tenuous at best because it is based on a possible futt.re action, is also subject to the exhaustion principle. I P L
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j =.:.= = - .=. (. \\ ~~~ [ -. = =.. 20 ~ff 1 i ~V . =.. ... =. -.. With no further analysis, the court concluded that it "~J -~ lacked subject matter jurisdiction over Count III. But i . ~ ~.. ~ . _... =.. the prohibition in section 30)(f)is absolute; NRC has no j discretion to consider whether or not to permit a prohib-Ited discharge. Moreover the Federal Water Pollution ~..... Control Act, in sharp contrast with the Atomic Energy Act, proudes expressly for private enforcement. See 33 U.S C. i1365 (citizens' suit provision). Section 505(a) of ~ ~ '~ the Federal Water Pollution Control Act 33 U.S.C. i1365(a) provides: Except as provided in subsection (b) of this section, any cidzen may ccmmence a civil action on his own j benMf - (1) ngainst any person... who is a]Jeged to be in violation of(A) an effluent standard orlimita-l ..[ .lon under this chapter... or { (2) against the Administrator where thereis al-j Ir gcd a failure of tne Administrator to perfonn any act or duty under this chapter which is not ( j discretionaar with the Administrator. t The 6stnet cou'rts sha)) have jurisdiction without I regard to the amount in controversy or the cituen- } ship of the parties, to enforce such an effluent standard... or to order the Administrator to perform such act or duty. as the case may be... l This type of citizens' suit provision is similar to those in-cluded in a number of fedend entiionmental statutes.32 ~ t 12 Toue substances Control Act. Il20. 21. 15 U.5 C. 1 + i 62619. 2620 (1976). Surface Marung Control and Reclamauon Act l of 1977. j520,30 U.S C. I1270 (1976 & Supp. I); Manne Protec-uon. Research. and Sanctuanes Act of 1972,1105. 33 U.S.C.11415 i { (1976). Deepwater Pon Act of 1974. { 16. 33 U.S.C.11515 (1976)- Safe Dnntsn; Water Act.12(a). 42 U.S.C. j300F8 (1976 & Supp ,f It Noise Control Act of 1972. 512. 42 U.S.C. $4911 (1976): Re. source Conservation and !<ecovery Act of 1976 J2. 42 U.S.C.16972 i 1976 & Supp I): Clear Air Amendments of 1970. [12(a). 42 U.S C. 17604 t 1976 & Supp.1). (.-
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~ [ s s t 21 r Like each of those statutes, the citizens' suit provision in E. the Federal Water PoUution Control Act states that no such action may be brought prior to sixty days after the plaintiff has given nodce of the alleged violation to the f M Admmistrator of the agency responsible for the enforce-ment of the standard aUegedly violated, in this case the E Administrator of the Environmental Protection Agency (EPA). Federal Water PoUution Control Act Amend-F ments {505(b),33 U.S.C. (1365(b). In Train v. Colora-i do Public interest Research Group,426 U.S.1 (1976), the Supreme Court addressed the issue whether the Ad- [ ministrator of the EPA could, under the Federal Water i I PoHution Control Act, regulate discharges into navigable waters of nuclear waste materials which were subject to [ regulation under the Atomic Energy Act. There the [ Court held that the three types of radioactive material 2 defined in the Atomic Energy Act'3 were subject to reg- [ E ulation by the NRC rather than by the EPA. Id. at 25. We do not decide today whether, on the ments, plaintiffs f q( can prove that the threatened discharges from Three 5 A Mile Island are radioactive wastes within the scope of l the Federal Water Pollution Control Act. We hold only J g that plaintiffs
- allegations under that Act were sufficient i
F for the purpose of subject matter jurisdiction. The complaint alleges that two days prior to the fil-I ing of the complaint the Alliance gave the required no- ? dce both to the Administrator of EPA and to the NRC. 5 There are excepuons in secuon 505(b) to the 60-day no-l tice requirement with respect to violadons of sections 306 and 307(a) of the statute 33 U.S.C. E)1316 and 5i 1317(a). There is no exception, howeser, to the waiting j period for radioactive waste discharged in violadon of g secdon 30)(f), 33 U.S.C. [1311(f). We have been re-
- 13. The Atonue Energy Act regulates thne types of radioactne materials: special nuclear matenal, source matenals, and byproduct materia] 42 U.S.C. 6(2014(e) 2014(z). 2014(aah see 42 U.S C.
l' !l2021a. 2002 (disposa] of waste). B k .r ~.
~ '. s..-. .,.a-.......... ~ ....: =.. . a.:.. v.. h::2. .;dk::..-..l" -... -l.. - [ _ _.._'l._ i 7 * -~==5',:f.= :*. ...L._ .';.f_... :. f ~ .j. 22 -'~ ~ ~ ~ ~ - ' ferred to no legislative history revealing why high-level 1 radioacuve waste, which many people would consider ultrahazardous, was not included among the exceptions to the waiting period. Appellants have urged that the omission was somehowinadvenent, and that we should read the exceptions as applicable. We decline to do so. While we are puzzled by the omission we are not free to rewrite the statute. NRC has taken before this court a rather pragmatic approach to the 60-day nodce provision. It observes: 1 The 60-day notice provision in Section 505(b) of the Clean Water Act. 33 U.S.C. [ij 1365(b)is in the nature of a statutorily mandated jurisdictional exhaustion requirement designed to aford an agen-l cy an op.portunity to pass upon claims of alleged vio-3 lanons of the Clean Water Act prior to a citizen's suit to enforce the Act's eMuent limitations. While plainuffs' suit filed 2 days after mailing notice. was therefore premature. dismissal for failure to obsen e ( the 60-day condition of 33 U.S.C. [$j 1365(b) would serve no purpose. The Agencies. EPA and INRC), were in fact given an opportunity to respond to plaintiffs' Clean Water Act claim and did so prior to judicial disposition of the complaint. Both found the Clean Water Act claim to be without merit.... It would have been excessive formalism for the dis-tnet court to have required Count III of the com-plaint to have been re filed on July 231n order to ac-commodate the 60-day notice provision. Supplemental Brief for Appellee Nuclear Regulatorv Commission at 1. The Operators make no such conces-won. They contend that pren.ature suits should be dis-j i nrssed for lack ofjunsdiction even if at the time when l the distnct court acts upon the motion to dismiss the re-sponsible agency has had nonce for sixty days. We agree with NRC that reading section 505(b) to icouire dismissal and refdine of premature suits would i I 1 ~ [ i'
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~== -...:..:.. '~ ~~.~.~i'2.E.3.=."' '? =.i:E - ~ E"~~ =i s "~"" -- ":=- n" '~"""C.. 1.. .. M.. ~ f --y .wi.... M. -- ~"8 23 . I be excessively formalistic. At the time the district coun - l r.cted, on the face of the complaint it appeared that NRC 1. had had notice of the alleged violation under consider-ation for more than sixty days. Certainly, then, the com-plaint alleged a claim over which the district coun had subject matter jurisdiction under section 505(a). 33 U.S.C. il365(a). = Moreover, as we recently held in National Sea Clammers Association v. City of New York,- F.2d 1_ . No. 79-1360 (3d Cir.1979), the savings clause in the cidzens' suit provision,33 U.S.C. !!365(e). has in-dependent significance presening private causes of ac. y don for persons who can allege the requisite jurisdic. E donal amount for jurisdiction under 28 U.S.C. }}331. [ The complaint pleads the jurisdictional amount and general federal question jurisdiction under section 1331. 1 It charges that the plaintiffs will be injured in fact by the E l discharge of radioactive waste into the Susquehanna River. Reading the complaint as a whole, it is clear that e g-Count 111 states a claim within the subject matter of the ( disuict coun entirely apart from the Federal Water Pol-i E Juden Control Act's citizens' suit provision. 33 U.S.C. 1 l1365(a). See National Sea Clammers Ass'n v. City of E i New York, - F.2d - No. 79-1360, slip op. at 11-13. Thus we hold that the district court erred in dis-E I missing Count III for lack of subject matterjunsdiction. The NRC and the Operators. perhaps anticipating that result. urge that the dismissal should nevenheless be al-( j fumed for failure to state a claim upon which reber may be granted. Their theory is that NRC has authority to en-E force the Federal Water Pollution Control Act with re-i to radioactive discharges from nuclear power spect [ reactors. and that the doctrine of exhaustion of adminis-trative remedies prevents a district coun from consider-ing this Complaint. This argument is a variant of that c which we discussed in Pan II, supra, that the alleged t violadon of section 301(0. 33 U.S.C.11311(n. can be l t 5
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= - - - . 4.;.;=:..: =- --~ 5 ~" [ i g considered by the coun of appeals when it reviews a fi-nal order of the NRC. ,1 i There is no room for that argument in the enforce-ment scheme of the Federal Water Pollution Control Y Act. He citizens' suit provision in section 505, 33 1 U.S.C. f1365, contair.s its own specification of the de-gree to which district couns must defer to administrative agencies. Under the plain language of that section, the district courts should defer for sixty days, and at that point determine whether or not the violation has been halted by administrative acdon or otherwise. Ifit has not i' been so halted, the citizens' suit gves forward. It does not wait in what may be a perpetual limbo while the agency decides whether or not to take action. A similar analysis appbes to the pnvate causes of action preserved by section 505(e). 33 U.S.C. il365(e). De very fact that l the savings clause was inserted suggests that there was no intention on the pan of Congress to deprive panies }t i actuaUy injured by conduct violating the Act of access to conventionallegal remedies such as damages or injunc-ute relief. NRC has no authonty to grant relief which uould make such panies whole, and we would have to a find rather compelhng endence of congressionalintent before we would hold that there was no opportunity to l reson to either preventauve or make whole judicial rem-edies while that agency censidered the underlying prob-lem. That is not to suggest that when the district coun l considers this case for injunctive and declaratory relief i on the merits a great deal of deference to NRC's exper- ~ use may be inappropriate. But we can approve dismissal of Count !!! on the theory that it fails to state a claim upon which relief may be granted only if we can fairly [ conclude that at final heanng the Alliance could prove no set of facts upon which either form of relief would bc l warranted. We cannot do so. Since Count Iff states a claim wnhin the subject matter jurisdiction of the dis- [ rnet coun upon which at finalhearing some relief might he given the order dismissing that Count was error. l I J
.= ,I. .,,.7..--.---- --.a....-~="~~~~=. -u.....-.-..... a z -- (- = V. ConstitutionalClaims 1 I In Count IV the Alliance charges that NRC, by allowing efDuents from Unit 2 m excess of those permitted by the operating license, violated various pro-visions of the Constitution, to plaintiffs' injury in that they have en exposed to the risk ofcancer and genetic damag district court dismissed this claim for lack of subjec: matterjurisdiction on the theory that since NRC could consider the same claim, exhaustion of ad-ministrative remedies and resort to court of appeals re-siew under section 2239(b), 42 U.S.C.12239(b), was required. Certainly a complaint alleging a cause of action for private relief imphed from provisions of the United States Consdtution states a claim within the subject 5 matter of the district court. Biteens v. Six Unknouvr i Named Agents of the Fed. Bur. of Narcotics,403 U.S. 388 (1971) BeB v. Hood,327 U.S. 678 (1946). The legal l ( district court did not reach. Whether or not a cause of 2 sufBeiency of that claim is a separate matter, which the f action in favor of the plaintiffs against the NRC, imphed from the Constitution, and seeking protection from ir-( i reparable harm pendente Lte, could be adjudicated by the NRC is at least doubtful, if for no other reason than that its arsenal of remedies includes only those specified in the Atomic Energy Act. Prehminary injunctive rebef to prevent inreparable unconstitutional injury is not ) .E among those remedies. Whether NRC has adjudicatory competence to consider constitutional claims at allis a matter we need not reach." As a judicially created doc. I 1 trine. the requirement of exhaustion has traditionally been waived in three circumstances under the case law of this circuit. We have dechned to require exhaustion j i when the challenged agency action presents a c!:ar and unambiguous siolation of statutory or constitutional
- 14. Ser Weinberger v. Salli. 422 U.S. 749, 765 t 1975).
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.j - ~ ... _ L ~~~ ~ h - - ~ (. i ~ 26 11ghts. First Jersey Securities, Inc. v. Bergen,605 F.2d s 690. 697 (3d Cir.1979): Barnes v. Chatterton,515 F.2d 916,920 (3d Cir.1975), when resort to administrative 1 procedures is " clearly shown to be inadequate to prevent Irreparable injury," Babcock and Wilcox Co. v. Marshall, F.2d -, No. 79164I, slip op. at 19 (3d Cir. Nov. 16,1979), quoting American Fed'n of Gov't Employees, Local 1004 v. Resor, 442 F.2d 993, 994-95 (3d Cir. 1971), or when exhaustion is " futile," United States ex rel. Marrero v. Warden, Erwisburg Penitentiary, 483 F.2d 656. 659 (3d Cir.1973), rev'd on other grounds,. 3 417 U.S. 653 (1974). The plaintiffs' present allegation of ( irreparable harm to their constitutional right to " life and j libeny" meets the irreparable harm standard.- Cf. ] Honicker v. Hendrie, 465 F. Supp. 414, 419-20 (M.D. h Tenn. I979), affd and opinion of district court adopted, y F.2d , No. 79-1132 (6th Cir. Aug. 7,1979) t (noting that if plaintiff had shown irreparable harm un-j der Atomic Energy Act before available agency action f r "the coun would not feel constrained by the doctnne of W i pnmary junsdiction and would not hesitate to act to pro-I 8 tect plaintiffs rights"). Although we have held that. un-der the Occupational Safety and Health Act,29 U.S.C. ((651-678 (1976), fourth amendment claims are sub-l Ject to the exhaustion requirement, those holdings do i* not suggest the same conclusion here. In those cases. 3 exhausuon is required because the Occupational Safety and Health Review Commission "is the only tribunal available for the development of a factual record." Beth-lehem Steel Corp. v. OSHRC, F.2d . No. 79-1041. shp op. at 9 (3d Cir. Oct. 15,1979) (emphasis added); Babcock & Wilcox Co. v. Marshall, F.2d . No. 79-1641, slip op. at 17, 25 f3d Cir. Nov.16. 1979); Marshall v. Whittaker Corp., F.2d , No. 79-1120 slip op. at 13 (3d Cir. Nov. 16,1979). Because the district court is an available forum for crea' tion of a factual record in the instant case, and is the only forum m which the claim ofirreparable harm can be addressed. 6
Fl i.. ~ . - ~.. s.... *. .. _....... ~.. r=.=....:..-......_,.._.... ~ ..,... ~. _ _ - " ~~~~ M d ---". d Is @ i .1~~ ~ ~~; ~~ '- -1.i:"" ..:-"-~~"l'iki-k).? i I a. [ g 4, 27 L., we hold that it is the appropriate forum for the presenta-tion of these constitutional claims. Thus we conclude that the district coun erred in assuming that Count IV states a claim withm the exclusive jurisdiction of the NRC. Since it is entirely possible that any relief to which the defendants may be endtled can be awarded on statu-E torv gmunds under Count I or Count 111. it may be un-necessarv for the district coun, and thus for this court. to determine whether Cour.t IV states a claim upon which ~ relief. implied directly from one or more of the several consututional provisions relied upon, may be granted. E Consistent with the policy against premature adjudica-tion of constitudonal law quesdons. we hold no more l than that the district coun has subject matter jurisdic-j tion over Count IV. i E VI. Conclusion t l Pervading the treatment of the case by the distnct [ coun as well as the bnefs of appellees. is the notion that the judge-made nale of exhausdon of administradve i. remedies bears upon the subject matter junsdicuon of the district coun. That error is fundamental Congress l t can. of course, limit the subject matter junsdiction of i the distnet couns. and can relegate some matters to the i: exclusive junsdicdon of an administrative agency. It can also prohibit private enforcernent of federal s:atutes. In i Pan ll., supra, we hold that in the Atomic Energy Act it ( + did both. Where, however. Congress has not given any g such clearindication, judge-made rules. such as the re- [ i quirement of exhaustion of adnunistrative remedies, p j r. cannot affect the subject matter jurisdiction of the dis-T tnet couns but afTect only the uming, and in some cases the merits, of the claim for relief. See generally K. Davis. i Administrative Law of the Seventies $20.01 (1976). De-I } termining whether the judge-made rule requinng ex-l haustion of administrative remedies should be rehed 'i e I l,
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.w i......... 28 .a...- upon in a given instance to delay or deny a remedy oth-erwise available from a court requires a careful analysis i of the statutory scheme relied on by the plaintiff. of the 1 completeness or incompleteness of remedies available from the agency of the presence or absence of harm I pendente lite. and of the likely intention of Congress [ with respect to private enforcement. Such analysis is not i likely to be thorough ifit is attempted at the outset on a motion to dismiss under Rule 12. Fed. R. Civ. P.12. The judgment appealed from will be affirmed insolar as it dismissed Count II of the complaint. In all 1 other respects. It will be reversed. 1 r ? ( A True Copy: i
- t Teste:
i Clerk of tlic l~nured states Court ut Appeals for tirr Tinrd Corrust i t: A t I I t .I i ii . A O. L' S Couns. The Lv::.d Inte!!wencer. Ali. P.: 2 <O*55 i
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~ " " ~ " r pyf. 3 km. Th'e staff is directed to p'repare an Environ:nentalJssessment regariling c ~ proposals to decontaminate and dispose of radfoactiveTy contaminated waste = water 'from the Three Mile Island facility. The Assessment 11 be diYided into several portions. The first portion of the Assessment will deal with the proposed " decontamination of' intermediate-level waste water using the EpICOR-II system at THI. The ~ Assessment should include discussion of poten,tial risks to ' the public' health and safety, including occupatierA1.exposem and the risk of accidental releases, and a discussion of alternatives to the EPICOR-II systed.t Pending co=pletion of this portion of the Assessment and opportunity for ~ public conraent, the staff should direct the licensee not to operate the Ep1COR-II s'ystem. Testing of the PICOR-II system without using contaminated waste r.ay proceed. Except for discharge of waste water deconta=inated by the. existing Ep]COR-I decontan:ination sy.ste8 and discharge of industrial waste,. waterE as consistent with the facility operating licenses, no discharge of waste water shall be -permitted until co=pletion of a second portion of the Assessment dealing with any such prEposed discharges. Th's portion shall in-clude a discussion of alternatives to discharge into the Susquehanna River. The decontz=ination and. disposal of high-level waste water will be the subject of a subsequent Assessment., H:> wever,' the Director of the Office of Nuclear Reactor Regukation rray authorize measures deemed necessar;y to cope with an ' nu .9 primarily pre-accident waste water from Unit 1 which has been partially contaminated by water fro:: Unit 2, with an activity level of less than mately 10 je per cc. prior to treatment and with an activity. level approxi ' 1 microcur ,microcuries per cc. in the discharge canal after ' treatment. 1 2/ Waste water slightly contaminated (approxirately 10-7 microcuries per~cc.) ~ ' due to leakage from secondary plant service support systems. The discharge ~ ~ of this industrial waste uter is necessary to maintain TMI Unit 2 in a safe condition.
q>**... 2 l } e energenc.y. If the Director of the Office of Nuclear Reactor. Regulatio r$. e.i lieves the public health and safety requires the use of.the
- system, prior to comple~ tion of the first portion of the Assessment, to the Comission and the Cocnission may thn permit use of th.
+ eport e system. The. staff should inform the termission promptly regarding its es ~ t t for coupleting each portion of the Assessment and for cocp i a - e entire Assessment. t t For the Co, mission n. ~
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_ M % w i -w 6 SAMUEL J. CHILK l Secretary of thd Comission - t . ' Dated a t Washington,.DC; 't this Z 5 day of %f 1979. i [ q 1 I l .l i e l I l l ) L i}}