ML20151C135
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g NUCLEAR REGULATORY COMMISSION 3 h%.,.. E WASHINGTON. D. C. 20555
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DEC 2 ' 1930 MEMORANDUM FOR: William J. Dircks Executive Director for Operations 1
FROM:
Howard K. Shapar Executive Director for Operations
SUBJECT:
ATTACHED COMMISSION PAPER " STEVEN SH0LLY, ET AL. V.
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NRC, ET AL., U.S.C.A., D.C. CIR. NO. 80-1691 - RECOMMENDED FINAL AMENDMENTF (b 10 CFR PART 2, RULES OF PRACTICE, TO IMPLEMENT THE Dt 'SION IN SHOLLY ON HEARING RIGHTS UNDER SECTION 189a OF THE ATOMIC ENERGY ACT FOR N0 SIGNIFICANT L
HAZARDS CONSIDERATION AMENDMENTS" I
The attached Commission paper proposes Cormiission approval of a Federal
. Register notice promulgating a final rule implementing the Court's decision in the Sholly case.
In SECY-A-80-183A (see p. 9) the Commission was infomed that 0 ELD was reviewing NRC's Rules of Practice to detemine whether any changes might be needed to accommodate the Court's interpretation of hearing rights under section 189a. for no significant hazards consideration amendments. Although the Commission has decided to seek judicial review of the Sholly decision, procedures need to be established to enable the Commission to respond promptly to requests for hearing while the issues presented in Sholly are being l
resolved by the courts. On the basis of the OELD review, now completed, I have concluded that, with some minor modifications, the procedures in 10 CFR Part 2 are adequate to deal with the interpretation of section 189a. in L
Sholly. Accordingly, the attached Federal Register Notice of Rulemaking (Enclosure A) contains five minor procedural amendments to be effective I
immediately.
l The Chaiman of the Atomic Safety and Licensing Appeal Panel, the Chaiman of the Atomic Safety and Licensing Board Panel, and the General Counsel have concurred in the recommended final rule. The Director of the Office of L
Nuclear Reactor Regulation has objected to references in the regulation to r
" expressions of interest," suggesting, instead, that only " requests for hearing" be nentioned.
I believe, however, that the regulation should be promulgated as presently drafted.
It simply reflects the Court's language, SiO303czt M 22pp-l
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William J. Dircks 2-while making it abundantly clear that both " expressions of interest" and H
" requests for hearing" will have to meet all of the Commission's require-f' ments in Part 2 in order for a hearing to be granted.
- k ps op Howard K. Shapar J,
Executive Legal Director L
p cc:
A.'S. Rosenthal, ASLAP f
B. P. Cotter, Jr., ASLBP L-L. Bickwit, Jr., GC b
H. R. Denton, NRR i
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K For:
The Conmissioners i
From:
William J. Dircks Executive Director for Operations
Subject:
STEVEN SH0LLY, ET AL. V. NRC, ET AL., U.S.C. A., D.C.
CIR., NO. 80-1691 - RECO:11 ENDED FINAL A' TEND' TENTS TO 10 CFR PART 2, RULES OF PRACTICE. TO IMPLEttENT THE E
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DECISION IN SH0LLY ON HEARING RIGHTS UNDER SECTION 189a.
OF THE ATOMIC ENERGY ACT FOR NO SIGNIFICANT HAZARDS CONSIDERATION AMENDMENTS.
Purpose:
Commission review of a Federal Register notice promul-i gating a final rule contingent upon issuance of the Court's mandate in Sholly.
Discussion:
On November 26, 1980, the General Counsel and the Execu-
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tive Legal Director provided the Commission (SECY-A-80-183A) with the Staff's preliminary views on the impact of the Court's decision in the Sholly case on agency licensing J
functions and on the TMI-2 cleanup operation. Sholly held, among other things, that even where a license amendment involves no significant hazards consideration, an interested person who requests a hearing is entitled to a hearing by section 189a. of the Atomic Energy Act before the amendment becomes effective.
The Sholly decision has no effect upon the Comission's authority to issue immediately effective amendments when the public health, safety, or interest, or the common defense and security so requires.
Nor does Sholly alter existing law with regard to the Commission's pleading requirenents which enable the Commission to detemine whether a person requesting a hearing is, in fact, an " interested person" within the meaning of section 189a. of the Act, f
that is whether the person has demonstrated " standing,"
h indicated the specific aspect or aspects of the subject matter of the proceeding as to which intervention is sought, and identified one or more issues to be liti-L gated.
(See 10 CFR 2.714.)
h In SECY-A-80-183A (see p. 9) the Commission was infomed that 0 ELD was reviewing NRC's Rules of Practice to determine whether any changes might be needed to accommo-date the Court's interpretation of hearing rights under section 189a. for amendments involving no significant el' hazards consideration. The Commission has decided to i
Contact:
Howard K. Shapar Executive Legal Director 492-7308 i
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The Commissioners ?
i seek Suprene Court review of the Sholly decision and the i
Court of Appeals has not yet issued its mandate.
Assuming the Court issues its mandate, procedures need to be established to enable the Commission to respond promptly to requests for hearing while the issues presented in Sholly are being resolved by the courts. On the basis of the OELD review, now completed, the Staff has con-t cluded that, with some minor modifications, the proce-dures in 10 CFR Part 2 are adequate to deal with the interpretation of section 189a. in Sholly. Al though OELD and OGC will examine, once again, whether J
section 189a. requires an adjudicatory hearing (in the context of an amendment involving no significant hazards consideration), the reconnended rule need not be held up pending completion of this review. Accordingly, though no action is needed until the Court's mandate is issued, the Staff is transmitting for Commission review the attached Federal Register Notice of Rulemaking (Enclo-sure A) containin six minor procedural amendments to il 2.700, 2.701(b, 2.704(a), 2.714(a)(1), 2.717(a) and I
2.780 in final fom. The amendments are presented in comparative text. New material is underlined.
No dele-tions were made in the Commission's existing regulations.
The purpose of the amendments is to provide procedures 4
for expeditious treatment in all phases of the hearing process of written requests for a hearing (including any written expressions of interest which can reasonably be construed to be requests for a hearing) on proposed amendments to reactor construction permits and operating licenses involving no significant hazards consideration.
The procedures are not applicable to generalized requests dealing with continued or future construction or opera-tion of a particular facility; requests of this type will be considered under other provisions of the Commis-i sion's regulations such as 10 CFR 2.206.
In addition, the Director of the Office of Nuclear Reactor Regulation will infom the requester that, upon written request, the requester's name will be placed upon a mailing list to receive automatic notifhation of requested amendments relating to that facility.
In general, the new procedures are designed to assure that:
(1)
If a request for a hearing or an expression of 4
interest in a pending proposed amendment involving no significant hazards consideration is received, l
it will be expeditiously processed before action is l
The Commissioners -
7 taken on the proposed amendment. Under the new f
procedures, except where the public health, safety, or interest or common defense and security requires h
an effective amendment to be issued inmediately.
issuance of the amendment will be stayed until it is detemined whether a hearing will be held.
If a hearing is to be held, action will not be taken on i
the proposed amendment until after the conclusion of the hearing process and final disposition of the matter.
1 (2) An expression of interest which simply seeks infomation or offers connent on a proposed Commis-sion action is separated from an expression of s
1 interest which can reasonably be construed as a request for a hearing.
(3) When a request for a hearing or an expression of interest which constitutes a request for a hearing is received, unless the Commission wishes to preside, an administrative law judge or an l
atomic safety and licensing board appointed by the Chaiman of the Atomic Safety and Licensing Board Panel, as appropriate, will promptly rule on essen-tial preliminary matters such as " standing" and identification of the aspect or aspects of the i
proposed amendment to be litigated.
(4)
If a hearing is to be held an atomic safety and licensing board will preside, unless the Commis-sion directs otherwise. OELD and OGC wt!1 further explore the feasibility of using administrutive law
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judges to preside at hearings.
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(5) All aspects of the proceeding will be conducted expeditiously, without infringement of the rights of any party.
Thus, the amendments provide that where there is a request for a hearing or an appropriate expression of interest in the subject matter of a pending proposed (t
license amendment as to which prior notice of hearing or h
opportunity for hearing has not been published, an adjudicatory hearing will be ordered and the requester admitted as a party if the requester satisfies the Commission's intervention requirements in 10 CFR 2.714.
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ly,-f, The Commissioners D Recomendation:
That the Commission:
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Review the Federal Register notice (Enclosed) p' promulgating amendments to 10 CFR Part 2, " Rules of Practice for Domestic Licensing Proceedings," in final fom.
No action is necessary until the Court's mandate is issued.
2.
Note that:
V lj (a) The amendments will be effective immediately h
upon publication in the Federal Register, although comment will be sought with a view to whether further amendment is appropriate.
(b) The amendments relate solely.to agency proce-dure and practice and are insignificant from i
the standpoint of environmental impact.
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Therefore, pursuant to 10 CFR 51.5(d)(2), an i
environmental impact statement, negative declaration, or environmental impact appraisal need not be prepared.
t (c) The appropriate Congressional Committees will be infomed.
i (d) A public announcement, will be, prepared by the Office of Public Affairs and issued when the Federal Register notice is filed with the Office of the Federal Register.
Coordination:
The Chaiman of the Atomic Safety and Licensing Appeal Panel, the Chaiman of the Atomic Safety and Licensing Q
Board Panel and the General Counsel concur in the pro-posed final amendments.
l l
H Willian J. Dircks Executive Director for Operations i
Enclosures:
Federal Register Notice of Rulemaking i
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[7590-01]
Nuclear Regulatory Commission 10 CFR Part 2 Requests for Hearings on Amendments Involving No Significant Hazards Consideration AGENCY:
U.S. Nuclear Regulatory Commission (NRC).
ACTION:
Final Rule.
SUMMARY
In order to implement a recent court ruling, NRC is amending its
. regulations with respect to participation in proceedings relating to appli-cations for nuclear facility construction pennit and operating license amendments involving no significant hazards consideration. The amendments specify procedures that the NRC will use when acting on requests for a hear-ing on a pending proposed application for amendment, including expressions of interest in the subject matter of the proposed amendment, where the proposed amendment involves no significant hazards consideration and with respect to which there has been no prior publication of notice of intent to issue the amendment. The amendments are immediately effective because they relate to agency practice and procedure.
However, public comments are invited on the new regulations, which are subject to modification in response to these comments.
DATE: The amendments are effective [Upon publication in FR].
Comments must be received on or before [30 days after publication in FR].
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FOR FURTHER INFORMATION CONTACT: Guy H. Cunningham III, Esquire, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (Telephone (301) 492-7203).
SUPPLEMENTARY INFORMATION:
Background
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i The amendments to 10 CFR Part 2 and the new procedures l
The purpose of these amendments is to implement the Court'.s decision in the 1
Sholly case, though the Commission has decided to seek judicial review of the decision and the decision has not been finally disposed of by the courts and though the amendments may have to be modified at a later date.
The amendments will assure that if, before issuance of a proposed amendment involving no significant hazards consideration, a request for a hearing is received, the Commission's " Rules of Practice for Domestic Licensing Pro-ceedings" in 10 CFR Part 2 provide procedures for expeditious treatment of such a request.
In addition, the amendments will assure that an expression of interest in the subject matter of the pending amendment which is reason-L ably construed as a request for a hearing (hereafter referred to as "an appropriate expression of interest") will be treated in the same way as such a request.
The Commission believes that, with some minor modifications, its Rules in Part 2 are adequate to deal with the Court's interpretation hearing rights under section 189a. for amendments involving no significant hazards consideration. (The Commission recognizes that there may be cases where such requests for hearing or expressions of interest may be received even before a detemination has been made as to whether a requested amendment J
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i involves a significant hazards consideration. These amendments apply to 4
such cases, but nothing in these amendments prohibits the presiding officer,
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either upon his or her own motion or upon motion of a participant, from l
deferring the decision on a request for hearing until the dete mination on significant hazards consideration has been made.)
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Generally, the objective of the new rule and new procedures is to assure that if a request for a hearing or an expression of interest in a proposed m
i amendment involving no significant hazards consideration is received, it will be expeditiously processed before action is taken on the proposed i
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. amendment. The new procedures are designed to assure that an expression of 1
L interest which simply seeks infonnation or offers comment on a proposed c
F Commission action will be separated from an appropriate expression of inter-p est; and, where a request for a hearing or an appropriate expression of interest has been received, a presiding officer will promptly rule on essen-1 tial preliminary matters such as standing and identification of the aspect or aspects of the proposed amendments to be litigated.
Finally, it carnot be overemphasized that the Commission expects presiding officers to conduct the proceeding expeditiously, without, of course, infringing on the rights of any party. Thus, the amendments provide that where there is a request ll for a hearing or an appropriate expression of interest in a pending proposed l-license amendment as to which prior notice of hearing or opportunity for J
hearing has not been published, an adjudicatory hearing will be ordered and l
the requester admitted as a party if the requester satisfies the Commission's intervention ree'iirements in 10 CFR 2.714.
It should be noted that only i
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. l written requests or expressions of interest will be considered within these new procedures, s
Section 189a. of the Act requires the Commission to grant a hearing only upon the request of a person "whose interest may be affected by the pro-
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ceeding." In many cases, a request for a hearing without accompanying information as to the requester's affected interest (s) may leave the Com-mission unable to judge whether the request should be grant,ed; similarly, an 1
expression of interest in a Commission action, without more, may leave the Commission unable to decide whether the person is requesting a hearing, wishes to participate in it, and is legally entitled to participate. Accord-ingly, the Commission believes it necessary that the infonnation called for by the provisions of its intervention rule in 10 CFR 2.714 must be provided before the Commission can formally determine whether or not to grant a hearing. Section 2.714 requires, in essence, that persons requesting a hearing and intervention set forth with particularity their interest in the proceeding, how that interest might be affected by the results of the pro-a ceeding, and the specific aspect or aspects of the subject matter of the proceeding as to which they seek intervention.
Subsequent identification of specific contentions, and the bases therefor, is also required. Conten-tions shall be limited to matters within the scope of the amendment under consideration.
Requests for a hearing, including appropriate expressions of interest, must comply with the Commission's " Rules of Practice for Domestic Licensing Proceedings" in 10 CFR Part 2.
Among other things, this means that under E
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i, 10 CFR 2.701(a), they shall be filed by mail or telegram addressed to the
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Secretary of the Commission, United States Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Chief, Dockyting and Service Section, or may be delivered to the Commission's Public Document Room,1717 H Street, N.W., Washington, D.C.; and, as prescribed in 6 2.701(b), all documents offered for filing must be accompanied by proof of service, k
If a request for a hearing or an appropriate expression of interest in a
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pending proposed amendment (which may involve no significant hazards consid-eration and as to which notice of proposed action pursuant to 10 CFR 2.105 has not been published) is filed with the Secretary as required by these amendments, and, on its face, appears to meet the requirements of 10 CFR 2.714, normally the Secretary will refer the filing to the Chairman of the Atomic Safety and Licensing Board Panel, who will designate an atomic safety and licensing board to preside. Alternatively, the Commission may refer the
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request or appropriate expression of interest to an administrative law judge, who will preside. Either the designated atomic safety and licensing board or administrative law judge will expeditiously make the preliminary determination as to whether the intervention requirements of 6 2.714(a) have been met and a hearing shall be held.
If an atomic safety and licensing board originally presides and determines that a hearing shall be held, normally it may continue to preside.
However, if an administrative law judge originally j
presides and determines that a hearing shall be held, normally the matter may L
be referred to the Chainnan of the Atomic Safety and Licensing Board Panel, who will appoint an atomic safety and licensing board to preside at the hearing.
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g If a hearing is granted, the requester shall be a party to the proceeding, subject to any limitations in the order granting the hearing, and shall have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
F The Commission notes that, independently of whether a request for a hearing L
or an appropriate expression of interest in a proposed amendnent involving no significant hazards consideration is received, it may publish in the FEDERAL REGISTER, in accordance witn 10 CFR 2.105(a)(4), a notice of proposed 7
action on the amendment, if it detennines that general notice of an opportunity for a public hearing is warranted.
I If the request for a hearing or expression of interest in the subject matter I
of a proposed amendment involving no significant hazards consideration is i
filed with the Secretary, and it does not meet the requirements in 10 CFR 2.714, or, if the request or expression of interest is not filed with the i
Secretary, but, rather, sent to a Commissioner or a Commission staff member, the recipient of the request or expression of interest will send it imme-f diately to the Director, Office of Nuclear Reactor Regulation (NRR).
Upon i
receipt of such a request or expression of interest, the Director of NRR will send the originator a letter (1) enclosing a copy of the Commission's procedural rules in 10 CFR Part 2; (2) pointing out the requirements in 10 CFR 2.714; and (3) infonning the author that, unless a request for hearing meeting the procedural requirements of 10 CFR 2.714 is filed with the Secre-tary within 15 days from the date of the letter, it will be assumed that the 1
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't requester has detemined not to formally seek an adjudicatory hearing and 3
party status in that hearing and that the proposed amendment may be granted without further notice.
is The procedures described in this notice and required by the accompanying amendments will be applied only in cases where the person submitting a h
request for a hearing or an appropriate expression of interest has identi-i 4
fled a particular pending proposed amendment action or a subject reatter i
encompassed within such a proposed amendment action. They will not be l:
applied to generalized requests dealing with continued or future construc-tion o' operation of a particular facility (although such generalized requests may require consideration under other provisions of the Commission's regula-tions such as 10 CFR 2.206). However, where a request or an expression of
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interest relates generally to actions affecting a particular facility, rather than to a specific proposed amendment, the Director of NRR will r
infom the author that, upon request, he or she will be placed upon a mail-
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ing list to receive automatic notification of amendrents requested by the facility licensee.
As previously nottd, the Court's decision in Sholly has no effect upon the Commission's authority to issue immediately effective amendments when the public health, safety, or interest, or the common defense and security so s
requires.
Except in those circumstances, however, receipt of a request for a hearing or an appropriate expression of interest in an application for an amendment as to which prior notice of hearing or opportunity for hearing has l
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not been published shall serve to stay issuance of the amendment until it is
- determined, in accordance with the procedures specified in these amendments, whether a hearing shall be held.
If a hearing is to be held, action shall not be taken on the proposed amendment until the matters raised in the request have been detemined.
Finally, although the Commission is not amending 10 CFR 2.718. " Power of presiding officer," it emphasizes that presiding officers are to take expedi-tiously all appropriate actions within the tems of 10 CFR Part 2 to deter-mine whether a hearing is required with respect to any proposed amendment
. involving no significant hazards consideration.
In addition, the Commission expects presiding officers to deal expeditiously with all aspects of the hearing process using all available appropriate techniques in Part 2, such as, among others, the use of summary disposition, expedited schedules for completion of various hearing phases, appropriate prehearing conferences, expedited discovery, expedited schedules for submission of testimony as well as special care to avoid duplicative testimoay, and strict schedules for the submission of findings of fact and conclusions of law.
Because these amendments relate solely to agency procedure and practice, the Commission has found that good cause exists for omitting notice of proposed rulemaking and public procedure thereon, as unnecessary, and for making the amendments effective upon publication in the FEDERAL REGISTER without the customary 30-day notice.
However, public comments are invited on the new regulations, waich are subject to modification in response to these comments.
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o y Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation Act of 1974, as amended, and sections 552 and 553 of Title 5 of the United States Code, the following amendments to Title 10, Chapter 1, Code of Federal Regulations, Part 2, are published as a document subject to codification.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
Section 2.700 is revised to read as follows:
t 6 2.700 Scope of subpart.
The general rules in this subpart govern procedure in all adjudications t
initiated by the issuance of an order to show cause, an order pursuant to i 2.205(e), a notice of hearing, a notice of proposed action issued pursuant to i 2.105, a notice issued pursuant to i 2.102(d)(3), or a request for a hearing or an expression of interest in a pending proposed amendment to a construction permit or operating license for a utilization I
or testing facility as to which prior notice of hearing or opportunity for hearing has not been published.
2.
Section 2.701(b) is revised to read as follows:
6 2.701 Filing of documents.
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(b) All documents offered for filing shall be accompanied by proof of service upon all parties to the proceeding or their attorneys of record as required by law or by rule or order of the Commission.
The staff of the Commission shall be deemed to be a party. Where the document to be filed is a request for a hearing or an expression of interest in the sub-ject matter of a pending proposed amendment as to which prior notice of hearing or opportunity for hearino has not been published. the applicant for the amendnent shall also be served.
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Section 2.704(a) is revised to read follows:
I i 2.704 Designation of presiding officer, disqualification, unavailability.
(a) The Commission may provide in the notice of hearing that one or more I
members of the Commission, or an atomic safety and licensing board, or a named officer who has been delegated final authority in the matter, t
shall preside.
If the Commission does not so provide, the Chainnan of the Atomic Safety and Licensing Board Panel will issue an order designating an
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atomic safety and licensing board appointed pursuant to section 19b of the Atomic Energy Act of 1954, as amended, or, if the Commission has not provided for the hearing to be conducted by an atomic safety and licensing board, the Chief Administrative Law Judge will issue an order
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- v.. designating an adninistrative law judge appointed pursuant to section 3105 of title 5 of the United Stated Code.
k Upon receipt by the Secretary of a request for a hearing on a pending
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proposed anendment to a reactor construction pemit or operating license
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(including an expression of interest is the subject natter of the pending I
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anendment which is reasonably construed as a request for a hearing) a_s, s
to which prior notice of hearing or opportunity for hearing has not been published, filed in accordance with the requirements of 6 2.714, the Comission will nomally direct that the filing be referred to an administrative law judge or to the Chaiman of the Atonic Safety and Licensing Board Panel for designation of an atonic safety and licensing board to detemine expeditiously whether a hearing shall be granted.
if an administrative law judge detemines that a hearing shall be granted, nomally he or she shall refer the matter to the Chaiman of an atonic i
i safety and licensing board designated by the Chaiman of the Atomic Safety I
j and Licensing Board Panel to preside at the hearing.
i 4.
Section 2.714(a)(1) is revised to read as follows:
l 9 2.714 Intervention.
(a)(1)
Any person whose interest riay be affected by a proceeding and who desires to participate as a party shall file a written petition
. I for leave to intervene.
In a proceeding noticed pursuant to 5 2.105, any person whose interest may be affected may also request a haaring.
(The criteria of this section for the granting of a hearing and the admission of a party to that hearino also apply l
to requests for a hearino, or expressions of interest reasonably l
construed as requests for a hearing, concernino a proposed reactor f
construction pennit or operatino license amendment as to which prior notice of hearing or opportunity for hearing has not been published.)
The petition and/or reque:,t shall Le filed not later than the time l
specified in the notice of hearing, or as provided by the Commission,
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the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request, or as provided in i 2.102(d)(3) or within 15 days of the date of any letter, describing P
the requirements in this section, sent to the petitioner / requester by the Director of the Office of Nuclear Reactor Regulation.
Nontimely filings will not be entertained absent a determination by the Com-mission, the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:
i o 5.
Section 2.717(a) is revised to read as follows:
$ 2.717 Commencement and termination of jurisdiction of presiding officer.
L (a) Unless otherwise ordered by the Commission, the jurisdiction of the presiding officer designated to conduct a hearing over the proceeding, including notions and procedural matters, coerences when the proceeding commences.
If no presiding officer has been designated, the Chief Administrative Law Judge has such jurisdiction or, if he or she is unavailable, another administrative law judge has such jurisdiction. A proceeding is deemed to commence when a notice of hearing or a notice of proposed action pursuant to 6 2.105 is issued, or upon referral to l
a presiding officer, pursuant to 6 2.704(a), of a request for a hearing on a pending proposed amendment to a reactor construction permit or operating license (including an expression of interest in the subject matter of the pending amendment which is reasonably construed as a request for a hearino) as to which prior notice of a hearino or oppor-tunity for a hearina has not been published.
When a notice of hearing provides that the presiding officer is to be an administrative law judge, the Chief Administrative Law Judge will designate by order the administrative law judge who is to preside. The presiding officer's jurisdiction in each proceeding will terminate upon the expiration of the period within which the Commission may direct that the record be certified to it for final decision, or when the Commission renders a final decision, or when the presiding officer shall have withdrawn
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k 1 himself from the case upon considering himself disqualified, whichever is earliest.
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6.
Section 2.780(a) is revised to read as follows:
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I 92.780 Ex parte communications,
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(a) Except as provided in paragraph (c) of this section, neither (1) Com-missioners, members of their immediate staffs, or other NRC officials I
and employees who advise the Commissioners in the exercise of their j
quasi-judicial functions will request or entertain off the record except from each other, nor (2) any party to a proceeding for the issuance, denial, amendment, transfer, renewal, modification, suspen-t sion, or revocation of a license or pemit, or any officer employee,
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representative, or any other person directly or indirectly acting in behalf thereof, shall submit off the record to Commissioners or such i
staff members, officials, and employees, any evidence, explanation, I
analysis, or advice, whether written or oral, regarding any substantive
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l matter at issue in a proceeding on the record then pending before the i
NRC for the issuance, dental, amendment, transfer, renewal, modifica-tion, suspension, or revocation of a license or permit.
For the purposes of this section, the tem " proceeding on the record then pending before the NRC" shall include any application or matter which has been noticed t
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- 17 for hearing or concerning which a hearing has been requested pursuant to this part, except that, where a request for a hearing on a pending proposed amendment to a reactor construction pennit or operating license 1.
(including an expression of interest treated as a request for hearing) has been received, the proceeding on the record shall be deemed to commence with referral of the request or expression of interest to an administrative law judge or atomic safety and licensing board.
(Secs.161,189, Pub. L.83-703, as amended, 68 Stat. 948, 955, (42 U.S.C.
I 2201, 2239); Pub. L. 90-23, 81 Stat. 54 (5 U.S.C. 558(c)); sec. 201, Pub.
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L.93-438, 88 Stat.1242 (42 U.S.C. 5841)).
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Dated at Washington, D.C., this day of
,198.
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FOR THE NUCLEAR REGULATORY COMMISSION l
I Samuel J. Chilk
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Secretary of the Commission I
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D.
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y Office of the Secretary RECOMMENDED DISTRIBUTION SHEET
. on a Originating Office Contact Ext.
Title.of Proposed Paper O
Paper Type:
Policy Session Comissioner Action Consent Calendar Inforrration Report 1
f CHAIRMAN AHEARNE (3)
ADMINISTRATION (3)
COMMISSIONER GILINSKY (2)
CONTROLLER (3) p C0mISSIONER KENNEDY (6 )
EXECUTIVE LEGAL DIR (2)
J I
COMMISSIONER HENDRIE (3)
MANAGEMENT & PROGRAM ANALYSIS (S) 5 k
COMMISSIONER BRADFORD (3)
EQUAL EMPLOYMENT OPPORTUNITY (1)
L CONGRESSIONAL AFFAIRS (1)
STATE PROGRAMS (2)
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PUBLIC AFFAIRS (1)
INTERNATIONAL PROGRAMS (2) h-GENERAL COUNSEL (5)
NUCLEAR REACTOR REGULATION (10) /c INSPECTOR & AUDITOR (2)
STANDARDS DEVELOPMENT (5)
POLICY EVALUATION (4)
NUCLEAR MATERIAL SAFETY AND SAFEGUARDS (4)
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~
CCERATIO"AL DATA (2)
AS& LAP (2)
TOTAL NO. OF COPIES
~l RETURN ORIGINAL TO g
.J
?
lMua PoR December 19, 1980 Note to: Tom Engelhardt From:
Stephen H. Lewis Thru:
Larry Chandler
Subject:
IMPACT OF SHOLLY ON LICENSING ACTIONS PROPOSED TO BE TAKEN WITHOUT A LICENSE AMENDMENT At Joe Scinto's request, I am bringing to your attention a question which has arisen with respect to the attached proposed licensing action on TMI-2. The question arises because of the statement in Sholly that any Commission action which authorizes "any significant change in the operation of a nuclear facility" (slip op_. at 23) requires an implementing license amendment.
In this proposed action, the Staff would amend the Recovery Operations Plan to specify certain additional reactor collant chemistry surveillance requirements.
The conditions of the February 11, 1980 Ortler of the Director, NRR, pursuant to which the facility is currently being maintained, provide that 1.2.
The Recovery Operaticns Plan shall describe unit Operations Requirements for the implementation of these Technical Specifica-tions. This plan, and changes thereto, shall be approved by the Comission prior to implementation.
Section 4.0.1 of these conditions provides that Surveillance Requirements shall be performed in accordance.with the Recovery Operations Plan, but that the plan shall not be considered a part of the Technical Specifications.
Based upon the fact that the Plan is not part of the Technical Specifications, the Staff proposes to implement the amendment to the Plan without the necessity of seeking an amendment to the license.
In support of its action the Staff has prepared an Evaluation. In order to justify the manner in which this action is proposed to be undertaken, the Evaluation should contain a finding that the action does not authorize "any significant chan<Je in the operation" of the facility. Such a finding is presently lacking.
Actioils which the Staff proposes to adertake without license amendments will occur in many other cases and it may Le desirable, therefore, to develop some guidance to the Staff regarding the necessity to make the finding of no sig-nificant change in the operation of the facility.
Joe Scinto also suggested that Mr. Shapar might want to focus on this question since he has been closely involved in the interpretation of the Sholly decision.
Assam N.nua 0 617 Stephen H. Lewis v
M/ PDR 780 651 FEDERAL REPORTER,2d SERIES and (3) the Commission's order authorizing Steven SHOLLY and Donald E, the licensee to vent the atmosphere of the Hoesler, Petitioners, reactor containment building was a license v.
amendment within the scope of the Atomic UNITED STATES NUCLEAR REGULA* Energy Act and, therefore, the Commis-TORY COMMISSION et al and United sion's failure to hold requested hearing pri-States of America, Respondenta.
or to issuance of the order was a violation of the Act.
Metropolitan Edison Company et al., Intervenors.
Order accordingly.
Petition for rehearing denied. D.C.Cir.,
PEOPLE AGAINST NUCLEAR 651 F.2d 792.
ENERGY, Petitioner, v.
UNITED STATES NUCLEAR REGULA.
- 1. Declaratory Judgment *=124 TORY COMMISSION; John Ahearne.
Act. ion seekm.g declaratory j. dgment u
Victor Gilinsky, Richard T. Kennedy, Jo-u** ' * *' ReWaW Comnussion violat.
seph M. Hendrie, and Peter A. Bradford, ed the Atom.ic Energy Act by failing to hold In Their Individual Capacities; and the
- N**
- OE
- '**"* K d
United States of America, Respondents.
which temporarily modified nuclear power Metropolitan Edison Company, Jersey plant operatir.g license to permit licensee to Power & Light Company, and Pennsyl. release radioactive gas into the atmosphere vania Electric Company, Intervenors.
at a faster rate and authorized licensee to vent atmosphere of reactor containment In Re PEOPLE AGAINST NUCLEAR building, was not moot, although the licen-ENERGY, Petitioner.
see had completed the venting of the reac-Nos. 80-1691, 80-1783 and 80-1784.
tor building and both of the orders had expired, since the Commission's conduct United States Court of Appeals, District of Columbia Circuit.
was " capable of repetition, yet evading re-view."
Atomic Energy Act of 1951 Argued Sept. 8,1980.
5189(a) as amended 42 U.S.C.A. $ 2239(a).
Decided Nov. 19, 1980.
- 2. Action *=6 Certiorari Granted May 26,1981.
In order to invoke the " capable of repe-See 101 S.Ct 3004.
tition, yet evading review" exception to the mootness doctrine, petitioner must not only Petition was filed seeking review of show that "the challenged action was in its s
N two orders of the Nuclear Regulatory Com-duration too short to be fully litigated prior x
mission, which temporarily modified nuclear to ts cessation or expiration," he must also power plant operating license to permit the show that "there was a reasonable expecta-licensee to release radioactive gas into the tion that the same complaining party would atmosphere at a faster rate and authorized be subjected to the same action again."
the licensee to vent the atmosphere of nu-U.S.C.A.Const. Art. 3,6 2, cl.1.
clear containment building. The Court of Appeals held that: (1) petitioner's claims
- 3. Electricity *=8.5(2) that the Commission violated the Atomie Nuclear Regulatory Commission's find-Energy Act by failing to hold requested ing of "no significant hazards considera-hearing prior to issuing the orders was not tion" did not entitle the Commission to dis-moot; (2) the Commission's finding of "no pense with requested hearing prior to is-significant hazards consideration" did not suance of an order which temporarily modi-entitle the Commission to dispense with re-fled operating license of nuclear power quested hearing prior to issuance of the plant to permit the licensee to release radio-order for temporary modification of license; active gas into the atmosphere at a faster s
m --'
SHOLLY v. UNITED STATES NUCLEAR REGULATORY COM*N 781 5
Che as sSI F.2d 7s0 0904) r rate, and the Commission's failure to pro-with whom E. Leo Slaggie, Atty., U. S.
vide such a hearing violated the Atomic Nuclear Regulatory Commission, was on n
Energy Act. Atomic Energy Act of 1954, brief, for respondent United States Nuclear g
6189(a) as amended 42 U.S.C.A. 5 2239(a). Regulatory Commission.
_[
E
- 4. Electricity *=8.5(2)
David A. Strauss, Atty., Dept. of Justice, Nuclear Regulatory Commission's order Washington, D. C., with whom James W.
y at.thorizing nuclear power plant licensee to Moorman, Asst. Atty. Gen., and Peter R.
-=
I vent the atmosphere of reactor containment Steenland, Jr., Atty., Dept. of Justice, r
building was a license amendment within Washington, D. C., were on brief, for re-
~
3 the scope of the Atomic Energy Act,in that spondent United States of America. Stan-E it granted the licensee authority to do ford Sagalkin and leis Schiffer, Attys.,
t something it otherwise could not have done Dept. of Justice Washington, D. C., also under the existing license authority, and, entered appearances for respondent United r
=
therefore, the Commission's failure to hold States of America.
a requested hearing prior to issuance of the Mark Augenblick, Washington, D.
C.,
order was a violation of the Act. Atomic with whom George F. Trowbridge and Ma-r Energy Act of 19M, $ 189(a) as amended 42 tias F. Travieso-Diaz, Washington, D. C.,
U.S.C.A. % 2239(a).
were on brief, for intervenors. Robert E.
l
- 5. Electricity *=8.4 Zahler, Washington, D. C., also entered an p
Under the Atomic Energy Act, the Nu-
"PP**#*"#* I # I"t**"*
clear Regulatory Commission is required t
&fm WRIGHT, Chief Judge, and g
hold a hearing on a nuclear power plant MIKVA and EDWARDS, Circuit Judges.
operatmg license amendment whenever in-
~
terested parties request one. Atomic Ener-Opinion PER CURIAM.
gy Act of 19M, % 189(a) as amended 42 U.S.C.A. 5 2239(a).
PER CURIAM:
[
' l In this case petitioners seek review of Petitiens for Review of Orders of the two orders by the Nuclear Regulatory Com-
[
't United States Nuclear Regulatory Commis-mission (NRC) permitting the Metropolitan sion and for Writ of Mandamus.
Edison Company to release radioactive gas into the atmosphere from the Three Mile t
l Robert Hager, Washington, D. C., with Island nuclear plant.8 The claim here is
[
whom Daniel P. Sheehan, Washington, D.
that the orders issued by the NRC were g
C., was on brief, for petitioners.
made effective without affording petition-
-5 Stephen F. Eilperin, Sol., U. S. Nuclear ers their statutory rights to notice and a
=
Regulatory Commission, Washington, D. C.,
hearing.8
=
I.
Metropolitan Edison Co., Pennsylvania Elec-son whose interest may be affected by the tric Co., and Jersey Central Power and Ught proceedmg, and shall admit any such person Co. Jointly hold the operatmg hcense to the as a party to such proceedmg. The Commis.
Three Mile Island nuclear plant. In this opm-sion shall hold a hearing after thirty days' lon they are called co!!cctively either "the hcen.
notice and publication once in the Federal see" or "Metropohtan Edison."
Register, on each application for a con-struction permit for a facihty
[T]he
- 2. The petitioners primarily re'y on i 189(a) of the Atomic Energy Act of 1954, 42 U.S C.
Commission may,in the absence of a request i 2239(a) (1976), as amended in 1957 Pub L therefor by any person whose interest may n
No 85-256, 5 7. 71 Stat. 579 (1957), and in be affected, issue an amendment to an 1962, Pub LNo.87-415, $ 2,76 Stat. 409 (1962).
operating license without a hearing but upon e
F Section 189(a) reads in pertinent part as fol.
thirty days' notice and pubhcation once in lows:
the Federal Register of its intent to do so.
In any proceeding, under this chapter, for the The Commission may dispense with such granting, suspending. revoking. or amending thirty days' notice and pubhcation with re-7 of any license the Commiss6on shall spect to any apphcation for an amend.
grant a hearmg upon the request of any per.
ment to an operating hcense upon a determi.
s
l-r I:
782 e51 FEDERAL CEPODTER,3d SERIES h'
[
On June SS,1980, this court denied peti-disposal process." id. The NRC Statement es l
tioners' request for emergency injunctive of Policy diameted the agency's staff tl relief to block the release of the radioactive to include in the programmatic enviros-l.
gas. Now that the radioactive gas from the mental impact statement on the decontasi.
P nuclear plant has been fully vented into the ination and disposal of TMI-2 wastes P
l-atinosphere, the petitionere seek only de-an overall description of the planned se-t; -
claratory relief from this court.
tivities and a schedule for their comple.
a tion along with a discussion of alterna-I. BACKGROUND tives considered and & rationale for I
I This came arises in the aftermath of a choices made.
widely publicised accident that occurred on Id.
March 28, im at " Unit 2" of & Three r
Mile Island nuclear plant. As a result of On February 11, 1980, the NRC issued l
the accident, dangerous concentrations of another order, 45 Fed. Reg. 11,282 (1980),
y which stated that
[.
radioactive gas collected in the reactor con, y
l tainment building, inhibiting cleanup and the facility's operating license should be t
l maintenance werk.
modified so as to:... (8) Prohibit vent-g Three months after the accident, the Ing or Purging or other treatment of the
]
NRC issued an " Order for Modification of reactor building atmosphere until t,
License," 44 Fed. Reg. 45,271 (Im), sus-each of these activities has been approved
(!
pending Metropolitan Edison's authority to by the NRC, consistent with the Commis-el operate Unit 2 of the Three Mile Island sion's Statement of Policy and Notice of Ii plant (TMI-2), and requiring it to " main-Intent to Prepare a Programmatic Envi-1l tain the facility in a shutdown condition."
renmental Impact Statement.
- l Id.8 The NRC order indicated that, in Id.8
- l about thirty days, the Commission would Six weeks later the NRC published a issue a " Safety Evaluation" addressing "the notice of the " Availability of Environmen-imposition of new and/or revised Technical tal Assassment for Decontamination of the Specifications setting forth approprtate Three Mile Island Unit 2 Reactor Building license conditions." Id.
Atmosphere," 46 Fed. Reg. 20,265 (1980).
g L
In fact, the NRC issued no such evalua. The notice stated that the Ama-ment " con-tion. Instead, on November 21, Im, the siders five alternative methods for deconta-NRC issued a " Statement of Policy and minating the reactor building atmosphere
.I Notice of Intent to Prepare a Programmat-and recommends that the building atmo.
le Environmental Impact Statement," 44 sphere be decontaminated by purging to the Fed. Reg. 67,788 (1979), which was to be an environment through the building's hydro-(.
"overall study of the decontamination and gen control system." Id.' The NRC staff N N nation by the Commission that the amend.
and property" or "whether the provisions of
{
N meat involves no _
N-hazards consid-this Order would significantly affect the quahty t
erotica.
of the human environment." id. st 11,283.
l
- 3. Much of the factual basis for the NRC's ac-
"" " E*'I tions is contained in its report, the " Final Envi-l ronmental Assessment for Decontamination of id l
the Three Mile Island Unit 2 Reactor Buildmg Atmosphere"(May 1980), which is reprinted in l
the latervonor-R_ _,
...s Appendix (App.)
could begin to clean the building. maintain the t
- 4. The February 11, 1900 order specified that equipment, and prepare to remove the dem-any interested person or the beensee could re.
aged fuel from the reactor core. Removing the quest a hearing before March 21,1900 on radioactive gas from the reactor containment whether the proposed changes in the tarhnical buildmg was only the first step in an extensive specifications would be suffielent "to protect cleanup.
beelth and safety or to minimize danger to life I-1
t e
SHOILY v. UNITED STATES NUCLEAR REGULATORY COM*N 783 Che as asi F.sd 7ss tisas) ent concluded in the Assessment that venting On June 16, petitioners wrote a letter to the gas into the atmosphere would "not the NRC requesting that it reconsider its on-constitute a significant environmental im-finding of "no significant hazards consider-un-pact and, accordingly, the staff does not ation" and its decision to make the June 12 tes propose to prepare a separate Environmen-orders effective immediately. The NRC did ac, tal Impact Statement on this action." Id. not respond.
.te.
at 20,265-66. Public comments on the As-n.
sessment originally were due by April 11, On June 23, petitioners filed a petition in 1980, but the period was extended to May this court for review of the two June 12 16,1980. 45 Fed. Reg. 30,760 (1980).
rders." Three days later th.is court dem. d e
the petitioners requests for emergency in-In May of 1980, the NRC issued the "Fi-junctive and declaratory relief. The next nal Environmental Assessment for Deconta-g day, one day before the venting began, the mination of the Three Mile Island Unit 2 petitioners filed a request for a hearing Reactor Building Atmosphere." On June with the NRC on the two June 12 orders.
12,1980, the NRC issued without a hearing be The hearing request was refsrred to an two final orders. entitled " Order for Tem-Atomic Safety and Licensing Board. On
't-porary Modification of License," 45 Fed.
July 3, one of the petitioners in No.1691 1*
Reg. 41,251 (1980), and " Memorandum and Order," 2 Nuclear Reg. Rep. (CCH) 130,498.-
moved the Board to suspend the venting *-
til
"* N MI 01 (1980). The first order modified the operstm.g license, to permit the licensee to withdrawn, on July 8, shortly before the s-g
)
release the radioactive gas from the reactor i-building at a faster rate than the existing Metropolitan Edison began to vent the specifications allowed.' The first order also reactor building on June 28,1980, at a rate expressly stated that, because the NRC had that was within the original license specifi-found that the modification of the operat-cations for a normally operating reactor.
ing license involved 'no significant hazards On July 8, the licensee began to vent the g
consideration," requests for a hearing radioactive gas at a faster rate, pursuant to e
would not stay the implementation of the the specifications set in the June 12 license g
g order. 45 Fed. Reg. at 41, 253.8 The second amendment. The venting was completed order authorized release of radioactive gas on July 11. As the NRC had anticipated, from the reactor building.' Venting was to the off-site doses from the venting were begin on June 22.
below the limits set in the June 12 radiation
- 4. As part of its argument the NRC contends
- 9. The NRC made no finding thit this order 3
that the second order, permitting purgmg. was involved "no significant hazards considera.
not a license amendment. However, the NRC tion." See Brief for Respondent Nuclear Regu-admits that the first order amended the TMI-2 latory Commission at 30,35.
operating license.
- 10. By making the orders effective immediately.
- 7. Before the accident of March 28,1979. the the Commission failed to give any notice in the TM1-2 operating license authorized periodie re-Federal Register of the Ilcense amendment.
lease of specified amounts of radioactive gas The Commission contends that so long as it into the atmosphere as a normal and necessary makes a findmg of "no significant hazards con.
part of plant operations.
sideration." the governing statute does not im-pose such a notice requirement. See note 2
- 8. Part of the basis for the Commission's deter.
supra for statutory notice and hearing require-mination of "no significant hazards considera-ments.
tion" was its conclusion that. although existing release rate limits would be exceeded. off-site ll. On July 8.1980. a petition for review (No.
dose limits would not be breached. Smce the 84-1783) and an accompanymg petition for NRC's concern was the effect of the venting on writ of mandamus (No. 80-1784) were filed in human health, the Commission felt that the the Third Circuit. On the NRC's motion.those more direct measure--off. site dose limsts-cases were transferred to this court and consol.
would provide a satisfactory standard to deter, idated for review with No. 80-1691 the case mine the appropriate limits on the venting of origmally filed in this court, the radioactive gas.
_s I
~ ~
7M
$51 FEDERAL REPORTER,2d SERIES license amendment. In its draft Program-controversy of the kind that must exist if 310 (191 matic Environmental Impact Statement, we am to avoid advisory opinions on ab.
that tect NUREG-0683, issued August 14,1980, the stract propositions of law." Hall v. Beals, they inv Commission stated that it did not anticipate 396 U.S. 45,48,90 S.Ct,200,201,24 led 2d repetitio a recurrence of the purging of the reactor 214 (1969). The case or controversy re.
31 S.Ct.
p building atmosphere, but that some minor quirement " preserves the separation of yA
[
releases of gas might be necessary for data powers" and "* limit {s] the business of fed-
"the liti gathering purposes. See Brief for Respon-eral courts to questions presented in an o
immedia dent Nuclear Regulatory Commission at 6 adversary context and in a form historically tion or 1 n.4 & 20 n.11.
viewed as capable of resolution through the and cont judicial process.'" Tennessee Gas Pipeline k
Co. v. Federal Power Comm'n, 606 F.2d gape, 7 II. MOOTNESS 416 U.S.
[1] Because the licensee has completed 1373,1379 (D.C.Cir.1979) (quoting Flut v.
the venting of the reactor containment Cohen,392 U.S. 83,95,88 S.Ct.1942,1950, 1700, 40 demonsts
=
building, and because both of the June 12 20 led 2d N7 (1968)).
bor disps.
7 orders have expired, the Commission and Cases arising from agency action, no less for comr I
the licensee claim that petitioners' claims than cases involving only private parties, versies t b
for injunctive and declaratory relief are are subject to the mootness doctrine. Yet, must not moot.88 However, because we find that as this court has recently noted, "the con.
the impo these cases are " capable of repetition, yet cept of mootness is placsd under some putes pri evading review,"18 we hold that the peti-strain in the context of administrative or-1700-170 tioners' claims are justiciable in this court.l*
ders whose formal legal effect is typically Southern The mootness doctrine is primarily based shortlived." Tennessee Gas Pipeline Co. 5.
must not on artic5 III of the United States Constitu-Federal Power Comm'n,606 Fad at 1379-action wa tion, which limits federal court jurisdiction 80. The strain is relieved somewhat by an fully litig to " cases" or " controversies." Courts have exception first articulated in Southern Pse.
ration," }
interpreted the constitutional provision to Terminal Co.
v.
Interstate Commerre a reason limit their jurisdiction to **a present, live Comm*n,219 U.S. 498,31 S.Ct. 279,55 led.
complaini
- 12. Metropohtan Edison seems to argue that considerations are involved---but that future
__^
since petitioners
- claims for injunctive rehef are claims mil not evade review-since "there is
{
fod,423
{
moot (1. e., the reactor bulding atmosphere has no reason to beheve that (NRC] actions wdl led.2d 2 h
been purged), the case should be dismissed.
charactenstically be irreversible." Memoran.
This argument, however, misstates the nature dum of Respondent United States at 4. Conse-h of the rehef sought by petitioners. They have quently, the United States also argues that the whether i p
sought both injunctive and declaratory rehef in petitions should be dismissed as moot.
g_
this action. Although petitioners cannot now tor buildi p
obtain injunctive rehef to prevent the purging
- We reject the Government's position for two ing notict they contmue to pursue their claim for a de-reasons. First, as we explam in the text of the h,gh claratory judgment that the NRC must grant opinion, many NRC license amendments are 7
them statutorily mandated notice and a hearing rre ers ! TM facts in th present case Hlus-of mak.m w
whenever it amends a license. See, c g,, Super trate how making an amendment effective im.
amendme N..
Tire Engineering Co. v. AfcCorkle,41611.5.115.
mediately can preclude complete judicial re-even thou E
94 S.Ct.1694. 40 led.2d I (1974) (the Court view. Second. we beheve that it is unreason-ever the i
found that even though the strike had been able for the Government to take the position settled, mooting injunctive relief, the petitioner that, in order to seek judicial review of a
- 15. This a alleged sufficient facts in support of declarato.
hcense amendment, a petitioner must race to stan Edis E-ry rehef so that the case should not be dis.
the courthouse before the NRC takes an irrev-b--
missed as moot).
ersible action. Even if a petitioner could file dence th repeated.
the petition before the NRC acted, a court more F
- 13. See Southern Pac. Terminal Co. v. Interstate politan E often than not will decime to grant emergency Commerce Comm'n,219 U.S. 498,515,31 S.Ct.
mental s.
rehef. Indeed. such a request for emergency 279,283. 55 led. 310 (1911)-
e that it wt rehef was denied in this case. Consequently,
- e. g.,Afu
- 14. We note that the United States has taken because a petitioner will not receive complete 1959). ces L
the position that the petitioners
- claims are judicial review of his claim. even though it led.2d *,
E
" capable of repetition"-since the Commission might be mentorious. we find that these claims contrast.
E has stated that it will continue to deny request.
evade review.
E-tion to <
ed hearings when it finds no significant hazards conduct-
_E E___
ee j
l SHO11Y v. UNITED STATES NUCLEAR REGULATORY COM'N 785 CNe as ssi FJd 7s4 (Isee) t if 310 (1911), where the Supreme Court held involves "no significant hazards considera-r,b.
that technically moot cases are justiciable if tion."
they involve "short term orders, capable of Under this view of the issues in this case,
.2d repetition, yet evading review." Id. at 515, the conditions for avoiding dismissal on re-31 S.Ct. at 283.
Of grounds of mootness, set forth in B' einstein,
[2] A case is conside-ed justiciable if are met. The Commission has candidly con-
' ed-
"the litigant show{s) the existence of an ceded that immediate and definite governmental ac.
at some point in the TMI-2 cleanup, per-NY
, the tion or policy that has adversely affected haps on more than one occasion, the Com-U"'
and continues to affect a present interest."
mission will amend the utility's license in
.2d Super Tire Engineering Co. v. AfcCorkle, respects so minor that the Commission 416 U.S.115,125-26, 94 S.Ct.1694,1699-will think itself justified in making the 1700, 40 led.2d 1 (1974). As this case amendment immediately effective based Jemonstrates, administrative orders, like Ia-
".pon a no significant hazards considera-bor disputes, often "do not last long enough ta n finding. Certainly, that kind of less for complete judicial review of the contro-f nding has been utilized in the past.
versies they engender The judiciary Brief for Respondent Nuclear Regulatory at, must not close the door to the resolution of Commission at 23.is The Commission plain-n-
the important questions these concrete dis-ly intends to adhere to its policy of denying j-me putes present." Id. at 126-27, 94 S.Ct. at a hearing c;i a license amendment, under or-1700-1701. Yet, in order to invoke the certain etrcumstances, even though interest-4-
ly Southern Pacific exception, the petitioner ed parties specifically request a hearing.
. v.
must not only show that "the challenged The chances of recurrence are more than j.
action was in its duration too short to be 8peculative; buse the NRC policy win k en "E
c anup, h fully litigated prior to its cessation or expi-ac is a reasonable expectation that the same ration," he must also show that "there was a reasonable expectation that the same complaining part{ies)" will be denied their rce Ed.
complaining party would be subjected to alleged statutory rights to hearing and no-tice.
the same action agnin." Weinstein v. Brad-fortf,423 U.S.147,149,96 S.Ct. 347,349,46 8 the present case demonstrates, chal-ugg, 33, g,73).
lenges to the NRC s poh,ey of denying a The issue in the present case is not simply hearing on license amendments may well escape review. The difficulty here is that the whether the NRC will again purge the reac-the orders are often shortlived and the NRC tor building atmosphere without first giv-actions, like venting, may be irreversible.
wo ing notice and holding a hearing. At stake The difficulty is compounded when the y
is whether the NRC will continue its policy NRC elects, as in this case, to make its of making immediately effective license orders effective immediately. These con-us.
im-amendments without holding a hearing, siderations indicate that future challenges re-even though petitioners request one, when-to the NRC policy may easily " evade re-y ever the NRC finds that the amendment view."
a
- 15. This admission entirely undercuts Metropol-effective immediately without holding a re-to itan Edison's argument that there is no evi-quested hearing or giving notice. We think it v-de dence that the actions complained of wi!I be obvious that the NRC will also continue to rely repeated. In each of the cases cited in Metro-on the second method employed in this case for politan Edison's brief, the challenged govern-avoiding the notice and hearing requirements CY mental activity had ceased with no indscation of $ 189(a)--descnbing an order as something I-that it would be continued at a later time. See.
other than a license amendment. See note 6 Y
- e. g., Afurphy v. Benson. 270 F.2d 419 (2d Cir.
supra. The Commission's continued belief in it 1959), cert. denied. 362 U.S. 929,80 S.Ct. 750, 4 ita authority to follow this policy makes peti.
1 Ed.2d 747 (1960). In the present case, by tioners' challenge to the pohey " capable of rep-s contrast, the NRC has clearly stated its inten-etition." See Nader v. Volpe. 475 F.2d 916 tion to continue with its allegedly unlawful (D.C.Cir.1973).
conduct-. making certain license amendments
786 651 FEDERAL REPORTER,2d SERIES This court has stated that "[t]he situa-proceeding, and shall admit any such per-y, A s tions [ involving appellate consideration of son as a party to such proceeding.
93 (
recurrent controversies] are necessarily var-The NRC and Metropolitan Edison do not sound iant, and tho variables complex.
[T]he dispute that the OTML constituted a license fourtl court's decision to maintain the appeal, in amendment subject to the terms of section catek the interest of sound judicial administra-189(a). They do maintain, however, that with tion, is dependent on a prediction of a re-under the fourth sentence of the section the amen-currence or continuation of what is per-Commission muld dispense with a hearing.
Cot /'
ceived to be essentially the same legal dis-The fourth (and lasts.catence of section n-pute." Alton & Southern Railway Co. v.
189(a) reads:
Inte. national Ass'n of Afachinists & Aem-The Commission may dispense with such space Workers,463 F.2d 872,879 (D.C.Cir.
thirty days' notice and publication with 1972). "While an ' effective remedy
- for the respect to any application for an amend.
immediate dispute is not obligatory, there ment to a construction permit or an must be at least a capacity for a declaration amendment to an operating license upon of legal right concerning a future a determination by the Commission that projection of the actual dispute that precipi-the amendment involves no significant tated the litigation." Id. at 879-80. In the hazards consideration.
p,,,
present case, that capacity exists, and we The NRC and the licensee argue thLt the faileo hold that this case is not moot.
NRC properly made a finding of "no signif-case.
icant hazards consideration" with respect to Moi III. THE ORDER FOR TEMPORARY the OTML, and that consequently a hearing bound MODIFICATION OF LICENSE was not required. Although the last sen-the E The NRC issued without a hearing the tence of section 189(a) only explicitly " dis-tence
" Order for Temporary Modification of pense [s] with thirty days' notice and of,,,
License" (OTML) of June 12,1980, which publication" upon a determination of "n a find substituted off-eite dosage limits for release significant hazards consideration," the NRC erstio limita in the TMI-2 operating license. The and the licensee contend that such a deter-Wrir petitioners contend that the NRC's failure mination also permits the Commission to g
to provide a hearing violated section 189(a) dispense with a hearing because notice and ment's of the Atomic Energy Act of 19M. The a hearing are inextricable.
first sentence of that section provides in
[3] We are convinced that such a find-88' 3'
relevant part:
ing did not permit the NRC to dispense In any proceeding under this chapter, with a hearing that is otherwise required by with-for the granting, suspending, revoking, or section 189(a)." This is not the first case in dete' amending of any license or construction this circuit in which it has been argued that
d*
permit.
the Commission shall grant a a finding of "no significant hazards consid-goe,I hearing upon the request of any person eration" permits the NRC to issue a license vida whose interest may be affected by the amendment without a hearing. In Brooks nor.
s dect<
- 18. The petitioners, challenging the correctness days' notice and publication once. the Fed.
to tt s "
of the "no significant hazards consideration" eral Register of its intent to do so.
histo determmation, also contend that the NRC was (Emphasis added.) Since, however, we hold place required under the third sentence of $ 189(a) to that the petitioners requested a hearing, see C8D(
l provide 30 days' notice and pub! cation in the note 25 infra, and that the NRC was required to j
hl Federal Register of the Commission's intent to hold a heanng, we need not reach the question 16 sa issue the license amendment without a hearing.
whether the Commission was required to pro-The third sentence provides that vide 30 days' notice of its intent to issue the
- 20. %
the Commission may, in the absence of a license amendment without a hearing-mean request therefor by any person whose inter.
l 181 g
est may be affected, issue an operating a
g g
license or an amendment to a construction ourt gg permit or an amendment to an operating license without a hearing, but upon thirty 189(a)of the Atomic Energy Act. See Memo-d randum of Respondent United States at 4-21 g,,
t
g- -
S11011Y v. UNITED STATES NUCLEAR REGULATORY COM'N 787 cna as esi r.u m om>
- v. Atomic Energy Comm'n, 476 F.2d 924, only to the requirements of notice and pub.
926 (D.C.Cir.1973) (per curiam) this court lication. Despite the plain, unambiguous soundly rejected the contention that the language contained in the last sentence, the fourth sentence in section 189(a) "indi-NRC and Metropolitan Edison suggest that cate[d] Congressional irtant to dispense the requirements of hearing and notice are with hearings in construction permit so intertwined that the reference to notice amendment proceedings when the in the fourth sentence must also compre-Commission determines that the amend-hend a hearing. While it is true that re-ment involves 'no significant hazards con. quirements of notice and hearing are in-sideration.'" Instead this court, after an terrelated, it is clear that Congress was not examination of the legislative history of merging them in section 189(a). That is section 189(a), held that the fourth sentence demonstrated by the third sentence of the only dispenses with requirements of notice section where Congress made explicit refer-snd publication. Because this circuit has ence to the hearing requirement.t' That previously rejected the very construction of sentence plainly demonstrates that Con-section 189(a) offered by the NRC and the gress did indeed intend to disentangle the licensee,is the doctrine of stare decisis com-two requirements of notice and hearing,8' pels us to hold that the NRC improperly and "to lessen the mandatory hearing re-failed to provide a hearing in the instant quirement only when there was no request case.
for a hearing." Brooks v. Atomic Energy Moreover, even if this court were not Comm'n,476 F.2d at 927.
i bound by stare decisis, we would still adopt A review of the legislative history of the the Brooks interpretation of the last sen-1962 amendments to section 189(a)-by tence of section 189(a). The plain language which the last two sentences of the section of section 189(a) dispels any notion that by were added-also firmly persuades us that a finding of "no significant hazards consid-the Brooks court properly construed the last eration" the NRC may dispense with the sentence of section 189(s.). That history hearing requirement. The fourth sentence demonstrates that the 1962 amendments to makes no mention of the hearing require-section 189(a) had their origin in congres-ment's being 1 ssened, but makes reference sional concern over a hearing requirement
- 18. It is true, of course, that 15 months after the the NRC need not provide a hearing when one l
Brooks decision this court stated in dictum in a has not been requested. As the NRC and the footnote that "la]n amendment can be made licensee note, it is difficult to imagine how a i
without opportunity for a hearing if the AEC hearing can be requested when the NRC issues determmes that it ' involves no significant haz.
a license amendment without notice. This ards consideration.'" Union of Concerned Sci-
- paradoxical result" did not occur, however, in
(
entists v. Atomic Energy Comm'n. 499 F.2d the instant case. Although petitioners did not 1069,1084 n.36 (D.C.Cir.1974). The court pro-formally request a hearing prior to issuance of Mded no support for its far. reaching statement, the OTMI., their prior expressions of interest nor did it even make mention of the recently constituted in effect a request for a hearing.
decided Brooks case, which had squarely held See note 25 infra. It is also unclear whether to the contrary on the basis of the legislative the " paradoxical result" will ever in fact occur, history of l 189(a). We accordingly decline to As the NRC conceded at oral argument, there place any reliance on the dictum in Union of may be some t>pe of notice requirement--al.
Coocerned Scientists.
though perhaps not 30 days' notice and publi-cation in the Federal Register--4mplicit in the
- 19. For the text of the third sentence, see note Pponunhy to seek Ndicial rMew of detM 16 supra.
nations of "no significant hazards considera.
- 24. We are cognizant of the fact that the plain tion." Moreover, our decision today does not meaning of the third and fourth sentences of reach the question whether some notice of the
$ 189(a), when read together, produces in theo-NRC's intention to amend a license is required ry a somewhat paradoideal result. Under the under the due process clause of the Flfth fourth sentence the NRC may issue a license Amendment or the Administrative Procedure amendment without providing 30 days' notice Act notwithstanding a finding of "no signift-and publication in the Federal Register of its cant hazards consideration."
s1*
Intent to do so. while under the third sentence w
-e a
788 651 FEDERAL REPORTER,2d SERIES SHC l
in uncontested cases--that is, when a hear-only with notice and publication-not a tunity to a ing had not been requested.22 Representa-hearing-upon a finding of "no significant vene.
tive of that concern was the statement by hazards consideration"-
Staff of the J Raoul Berger, serving as an American Bar la the absence of a request for a hearins-gy, 87th Con Association spokesperson, that issuance of an amendment to a construe.
Regulatory 1 14 out of 15 of [the Atomic Energy Com-tion permit, or issuance of an operating mission's] cases have been uncontested.
license, or an amendment to an operating (Comm%)t language 01 And the central problem appears to be license, would be possible without formal whether trial-type proceedings should be proceedings, but on the public record.
plain mMn' employed under sections 7 and 8 of the cates thd '
to issue Administrative Procedures [ sic] Act in Finally, it is expected that the authori-uncontested cases hearin-ty given AEC to dispense with notice and AEC Regulatory Problems: Hearings on publication would be exercised with great 7,qua H.R.12336 and S. 3491 Before the Sub-care and only in those instances where r
comm. on Legislation of the Joint Comm. on the application presented no significant
- Cha, Atomic Energy, 87th Cong., 2d Sess. 64 hazards consideration.
ic Ene (1962)(statement of Raoul Berger)(empha-H.R. Rep.No.1966, 87th Cong., 2d Sess. 8 sis added).22 Accord, e. g., id. at 32 (state- (1962), U.S. Code Cong. & Admin. News 1962, r reint ment of Herzel H. E. Plaine, Chairman, pp. 2207, 2214, S. Rep.No.1677, 87th Cong.,
rts' Both Special Comm. on Atomic Energy Law, 2d Sess. 8 (1962), U.S. Code Cong. & Admin.
the **an ABA). Thus an interpretation of section News 1962, pp. 2207,2214 (emphasis added).
" * *I limi 189(a) that would permit the NRC to issue a And in a committee hearing one year prior, 30 days' not contested license amendment without a the Joint Committee on Atomic Energy had Register of '
hearing would enlarge section 189(a) be-noted:
D' yond the scope originally intended.
- (
When no substantial safety question is unique in th The 1962 Report of the Joint Committee involved in the amendment the legislative i on Atomic Energy also suggests that Con-public interest would be protected by.
- 2th **D'8' gress perceived the danges to section publication of an apt notice in the Feder.
20 s
,,g,,,
y 189(a) as permitting the NRC to dispense al Register M and the giving of an oppor-respect to
- 21. Indeed, counsel for Metropolitan Edison tes-
- 22. In support of its interpretation of i 189(a) whether a considerstk tafied in 1961 before the Joint Committee on the NRC quotes from a letter wntten in 1961 by Mth a hear Atomic Energy and argued for retention of a former AEC Commissioner L K. Otson to the hearing requirement when a hearing has been Joint Committee on Atomic Energy, repnnted
- 25. Wther requested:
in Staff of the Joint Comm. on Atomic Energy, hearing wa I hope that tius committee will seriously 87th Cong.. lst Sess.. lmprovmg the Regulatory respondent consider repeal of the mandatory hearing re-Process, Vol. II, at 578-87 (Comm. Pnnt 1961).
that ~{t)t is quirements of section 189(a), leaving intact.
The quoted portions of the letter suggest, in 8"*k" of course, the provisions for a hearing at the ambiguous terms, that the Commissioner was spondent t request of any person whose interest may be of the view that the AEC should be able to vinced that affected by the licensing proceedings.
dispense with heanngs on license amendments I" 8
Radiation Safety and Regulation: Hearings Be-upon a finding that "no substantial new safety 924, M @
fore the Joint Comm. on Atomic Energy,87th s
questions" are presented. See Reply Bnef for held that e Cong., 1st Sess. 266 (1961) (testimony of George F. Trowbridge).
Respondent Nuclear Regulatory Commission at cient to m
9.
Even if Commissioner Olson intended his the
- 22. In response the staff counsel to the Joint comments to apply to contested matters. It is wd op Committee noted; clear from the rest of the legislative history
.g.MI-2 Mr. Berger, I think you are absolutely cor.
that Congress did not share the Commission-hearing. I rect that the difficulty, the background that
- 8 **'
the many '
led to the Joint Committee study and the May 1980 ston's Enw bits, was the concern over the handling by
- 24. It is not entirely clear what the Committee mination o AEC of uncontested cases.
meant by the phrase "pubhcation of an apt tor Buildin AEC Regulatory Problems: Hearings on H.R.
notice in the Federal Register." Presumably it 12336 and S. 3491 Before the Subcomm. on only refers to publication of the amendment aupra.
1.egislation of the Joint Comm. on Atomic En.
after the Commission has issunfit. This is not
' 24. As part l ergy, 87th Cong., 2d Sess. 70 (1962) (remarks inconsistent with the fourth sentence of pubuc util of David Toll).
5169(a), adopted in 1962, which dispenses with Atotnic E8i k
i O
^
SHOLIX v. UNITED STATES NUCLEAR REGULATORY COM'N 789 Che as $si F.24 Tse (lseen tunity to any interested party to inter
- party to intervene and request a hearing at vene.
some later stage, nor doen it affect the right Staff of the Joint Comm. on Atomic Ener. of the Commission to he'I a hearing on its own motion." 108 Cong. Rec. 16,548 (1962) gy, 87th Cong.,1st Sess., improving the Regulatory Process, Vol. II, at 49-50 (remarks of Rep. Holifield); see id. at 15,-
(Comm. Print 1961) (emphasis added). - The 746 (remarks of Sen. Pastore). The inter-language of the reports, consonant with the pretation that the NRC and the public utili-ties press upon us,88 however, would plain meaning of section 189(a), thus indi.
cates that the section only permits the NRC " limit { ] the right of an interested party to to issue a license amendment without a intervene ar.d request a hearing."
hearing when there has been no hearing in sum, we are confident that Brooks was rquest.25 properly decided and that it dictates the Statements by Representative Holifield, construction that must be attached to the Chairman of the Joint Committee on Atom-last sentence of section 189(a). Because the ic Energy, and Senator Pastore, Vice-Chair-NRC*a finding of "no significant hazards man, on the floors of their respective houses consideration" did not entitle the Commis-further reinforce the language in the re-sion to dispense with a rquested hearing ports. Both individuals explicitly stated prior to issuance of the OTML, we hold that i
that the " amendment [to section 189(a)] in its failure to provide a hearing violated no way limits the right of an interested section 189(a) of the Atomic Ene.
Act.
30 days' notice and publication in the Federal ation of the NRC, consistently interpreted tl.e Register of the Commission's intent to issue a section as permitting license amendments to be license amendment without a hearing.
issued without a hearing upon a finding of "no 1his ambiguity in the quoted language is not sigmficant hazards consideration." See 10 unique in the context of i 189(a). The text and C.F.R. 5 2.105(ax3) 0980); id. 6 50.58(b); id.
legislative history of the section are replete i 50 59(c) 0963); 45 Fed Reg. 42,908 (1980);
with ambiguities and inconsistencies. Cf. note 45 Fed Reg. 20,491-92 0 060); 43 Fed. Reg.13 20 supra. But there is no ambiguity in the 928 0 978), 41 Fed. Reg. 10.482-83 (1976); 40 legislative history or the text of i 189(a) with Fed Reg. 18.231 0975h 39 Fed Reg.10.554 respect to the question before this court-0 974); 39 Fed. Reg. 1.875-76 0974); 27 Fed.
whether a finding of "no significant hazards Reg.12,184 0962); Consumers Power Co., 7 consideration" permits the NRC to dispense A E.C. 297 0974); General Elcetric Co., I with a hearing.
A E.C. 5410960). Even if the history of regu.
lations and administrative practice by the AEC j
- 25. Whether petitioners did in fact request a and the NRC were unambiguous-which we do hearing was not argued by the parties. While not think it is-deference to the agencies' inter-respondent United States suggests in a footnote pretations would be inappropriate in this case.
that "[I)t is not wholly clear that petitioners did As we have indicated, the statute and legisla-4 make such a request" Memorandum of Re-tive history are in our vtew unambiguous:
a spondent United States at 6 n.2, we are con-finding of "no significant hatards considera-vinced that the petitioners requested a hearing.
tion" does not permit the NRC to dispense with In Brooks v. Atomic Energy Comm*n,476 F.2d a hearing. As the Supreme Court has noted, 924,926 (D.C.Cir.1973) (per curfam ), this court
"[A)dmimstrative practice does not avail to held that expressions of interest may be suffi-overcome a statute so plain in its commands as cient to constitute a request for a hearing. In to leave nothing for construction." Norwegian the instant case petitioners' continued interest Nitrogen Products Co. v. Unned States, 288 irsand opposttion to-the actions of the NRC U.S. 294, 315, 53 S.Ct. 350, 358, 77 led. 796 at TMI-2 clearly constituted a request for a hearing. Indeed, the petitioners were among (1933)-
the many that submitted comments in April-It is also worth noting that because of to-May 1980 to the NRC regarding the Commis-day's decision the NRC will not be able to put sion's Environmental Assessment for Deconta.
into effect a regulation proposed earber this mination of the Three Mile Island Unit 2 Reac.
year that would exphcitly permit the NRC to ter Building Atmosphere. See text at notes 5-6 dispense with hearings on 'Ac.mse amend'aents upon a f% ding of "no significant hazards con-
- supra, sideration." See 45 Fed. Reg 20.491-92 0 980).
- 26. As part of their argument the NRC and the Such a regulation would be clearly inconsistent public utilities contend that the NRC, and the with the congressM.ial mandate in i 189(a).
Atomic Energy Commission prior to the cre-I N
g --
790 651 FEDERAL REPORTER,2d SERIES
!~
IV. THE NRC'S MEMORANDUM condition or for coping with foreseeable a purging AND ORDER cff-normal conditions. Moreover, certain at 29,456-l
[4,5) The second orxler issued by the Portions of the facility's operating license Order sup:
NRC on June 12, 1980, entitled "Memoran.
relate to or govern power operation of of it as a : l dum and Order"(Venting Order), authoriz.
the facility, the authority for which was authority.
ed Metropolitan Edisor, to vent the atmo.
suspended by the Order of July 20, 1979.
pears as a,
sphere of the reactor containment building.
These provisions are now simply inappli-amendmer j Respondents argue that section 189(a) did cable to the facility in its present post-ac.
Because t~
not require a hearing with respect to the cident condition.
fled the F,i Venting Order because the order was not a 45 Fed. Reg. 11,282 (1980) (emphasis added).
licensee a I license amendment. We reject respondents' The NRC concluded that "the facility's op-otherwise description of the order and find that sec-erating license should be modified so as to:
existing li tion 189(a) was indeed applicable and, as a
. [p]rohibit venting or purging until der was a consequence, that petitioners were entitled approvad by the NRC." Id. (emphasis
~
scope of a to a hearing on the Venting Order.
added).
Our rea Section 189(a), quoted in pertinent part in There is no indication that this order was supported note 2 supra, requires that a hearing be intended or perceived as a mere suspension section 18 given upon request "[i]n any proceeding of the licensee's existing authority to vent.
request u under this chapter, for the g anting, sus-In February 1980, it appeared that ade-suspend [ei perding, revoking, or amending of any quate venting of the reactor building might gress app license or construction permit." 42 U.S.C.
not be possible under the existing license ested par
% 2239(a) (1976). Respondents maintain authority. Consequently, the NRC acted to I
before an that because the Venting Order merely lift-modify-and thus amend-the TMI-2 tion of a ed a prior suspension of the licensee's au-license in order to regulate the plant in an Venting i thority to vent, and did not authorize re-
"off-normal" condition and to facilitate such a ch: 1 lease of a gmater amount of radioactive gas whatever venting scheme might be deter-As we than was permitted by the original techni-mined to be necessary. By its very terms, cal specifications of the operating license, it the February 11, 1980 order was a license the NRC was not a license amendment. However, on amendment intended to reflect TMI-2's hold a h the facts here, this characterization of the post-accident condition. Given that the whenem Venting Order appears to be nothing more original operating license was inapplicable, Petitior.er than an after-the-fact rationalization, which the NRC could not simply rely on its terms supra, ani finds no support in the record of this case. as authority for the venting. Authority for 27, w,,
The NRC's July 20,1979 " Order for Modi. venting-in this case the June 12 Venting ues brief fication of License" suspended Metropolitan Order-therefore had to come in the form ig Edison's authority to operate TMI-2 and of a heense amendment.
32 4 E directed the licensee to " maintain the facili-The specific language of the June 12 a see:
ty in a shutdown condition in accordance Venting Order further corroborates our in-su
's with the approved operating and contingen-terpretation of that order as a license quired it i N
cy procedures." 44 Fed. Reg. 45,271 (1979). amendment. In the Venting Order, the 3,,
N.
In a second order, dated February 11,1980, NRC noted that TMI-2 was being operated uonersri the NRC recognized that TMI-2's operatir.g according to the provisions of the February the on l license did not permit venting as part of a 11, 1980 order, see 2 Nuclear Reg. Rep.
(*d8"
cleanup operation because the license speci- (CCH) 130,498.01, at 29,456 (1980), and the and the fications pertained only to normal operation Venting Order did nothing to change that.
somewh. i of the facility:
TMI-2's operating license was not simply C3 h' l
[I]n the present post-accident status of "unsuspended" by the Venting Order. In-
,nu the facility, the license itself does not stead, in the words of the NRC, "[i]n the would h !
include explicit provisions or Technical present order we give the approval contem-lic'a** * !
Specifications for assuring the continued plated by [the February 11] restriction inso-t ts nt maintenance of the plant in a safe, stable far as necessary for the licensee to conduct revolve.
t N
SHOLLY v. UNITED STATES NUCLEAR REGULATORY COM*N Case as est F.2d 734 (Isee) 791 a purging of the TMI-2 containment."
Id.
fully in tefusing to hold a hearing on the at 29,456-57.
Nowhere does the Venting Venting Order.8' Order support respondents' characterization of it as a reinstatement of some preexisting authority. Rather, the Venting Order ap-V.
CONCLUSION pears as an amendment to the February 11 Because the NRC's actions in this case amendment to TMI-2's operating license, are " capable of repetition, yet evading re-Because the June 12 Venting Onler modi-fied the February 11 order, and granted the view," the issues presented by petitioners are not moot.
We hold that under section licensee authority to do something that it 189(a) the NRC is required to hold a hear-otherwise could not have done under the ing n license amendments whenever tnter-existing license authority, the Venting Or-ested parties request one. Finally, we hold der was a license amendment within the that the June 12 Venting Order, which au-P' thorized the NRC to release radioactive gas Our reading of the Venting Order is also from the disabled nuclear reactor, was a supported by Congress' intent in enacting license amendment subject to the hearing section 189(a). By requiring a hearing upon requirements of section 189(a). Because request whenever a license is " grant {ed]. the petitioners requested a hearing on the suspend [ed), revok[ed], or amend [ed]," Con-two June 121icense amendments, they were gress apparently contemplated that inter-entitled to a hearing under section 189(a).
ested parties would be able to intervene The NRC's refusal to hold a hearing violat-before any significant change in the opera-ed the petitioners' statutory rights.
tion of a nuclear facility. Whatever the Venting Order is called, it certainly was such a change.
As we held in Section III of this opinion, the NRC is required under section 189(a) to a f =t=m sm=>
hold a hearing on a license amendment whenever interested parties request one '
8 Fetitioners did so in this case, see note 25 supra, and the NRC therefore acted unlaw-27.
We note that the NRC and the public utili-ties briefly argued that a full adjudicatory hear-amendment was in the public interest and Ing was not required here. See Brtef for Re-whether it should be sustained.
See 45 Fed.
spondent Nuclear Regulatory Commission at Reg. 41,251, 41.2$2 (1980). It appears from 32-34; Brief for Intervenor. Respondents at 44-this description that petitioners would not have
- 45. Because this question was not fully briefed been permitted to raise their arguments regard-and argued by the parties, we express no opin-ing the NRC's interpretation of $ 189(a). which lon on the precise nature of the hearing re*
formed the basis of this suit. Finally, the Com.
quired by 5189(a).
mistion specifically provided that a request for a hearing would not stay the effectiveness of 28.
Respondent United States argued that peti-the order.
See id. But $ 189(a) required a tioner, requested a hearing, as provided for in the OTML, and then failed to exhaust their hearing upon request on the Venting Order administrative remedies by withdrawing their before it went into effect; a hearing after the The intended scope of that hearing venung had been cornpleted would not have motion.
and the facts surrounding the withdrawal are satisfied the statute's requirement.
For all somewhat muddled by the record.
these reasons. the remedy that petitioners al-What is clear, however, la that the offer of a hearing legedly failed to exhaust was an inadequate one was made only in the OTML and not in the and therefore need not have been pursued. See Venting Order.
t Presumably, then, petitioners McNeese v. Board of Educ.,373 U.S. 668. 674-would have been able to challenge only the
- 76. 83 S.Ct. 1433,1437-38,10 led 2d 622 license amendment substituting off-site dosage(1963); Un/on Pac. R. R. Co. v. Board of Coun-limits for release limits and not the actual deci*
ty Comm'rs. 247 U.S. 282, 38 5.Ct. 510, 62 sion to vent.
Moreover, any hearing was to led.1I10 (1918).
revolve around the issues whether the license
f, 792 651 FEDERAL REPORTER,2d SERIES SU i
TAMM, MacKINNON, ROBB and WIL-unanimous r Steven SHOLLY and Donald E.
KEY, Circuit Judges, would grant rehear-jecting judi<
Hossier, Petitioners, ing en bane. Their statement is attached.
procedures t y,
. statutory m UNITED STATES NUCLEAR REGULA-STATEMENT ON DENIAL OF
- 3 TORY COMMISSION et al., and Unit-REHEARING EN BANC ed States of America, Respondenta, TAMM, MacKINNON, ROBB and WIL-8 y
rs Metropolitan Edison Company et al.,
KEY, Circuit Judges:
panel's deci Intervenors.
We would grant a rehearing en bane in of Commis PEOPLE AGAINST NUCLEAR Sholly, et al. v. United States Nuclear Reg.
likely both 1 ENERGY, Petitioner, ufatory Commission, et al., 651 F.2d 780 ing machine v.
(D.C.Cir. 1980) to review the startling from safet)
UNITED STATES NUCLEAR REGULA-proposition found within that opinion: that Finally, the TORY COMMISSION; John Ahearne, even when the Nuclear Regulatory Com-sult in the Victor Gilinsky, Richard T. Kennedy, J*
mission (NRC) has expresrly found that months-of seph M. Hendrie, and Peter A. Bradford, a proposed amendment to an existing rently awa in their individual capacities: and the uclear P wer P ant operat.ing license poses ing comple-l
',no sigmficant hazards" to human health United States of America, Respondenta, hearings m Metropelitan Edison Company, Jersey or safety, the Nuclear Regulatory Com-quate to v Power & Light Company, and Pennsyl-mission is nevertheless required to pro-issues posen vania Electric Company, Intervenors.
vide a preamendment hearing to any-The h.ee In re PEOPLE AGAINST NUCLEAR one who has expressed " continued interest ENERGY, Petitioner.
in-and opposition to"its actions on related
- "'E I Nos. 80-1691, 80-1783 and 80-1784.
matters. At 789 n.25.8 2.
The peci ShcIly apt United States Court of Appeals, The panel's action raises an issue of "ex-inappropn District of Columbia Circuit.
ceptional importance." Fed.R. App.P. 35(a).
ing proce.
March 4,1981.
Under the rubric of statutory interpreta-
['My tion, the panel has made a policy decision of to operate Certiorari Granted May 26,1981.
major consequence. The panel has read factiity be See 101 S.Ct. 3004.
into section 189(a) of the Atomic Energy 65: F.2d On Suggestion for Rehearing En Banc. Act of 1954,42 U.S.C. $ 2239(a) (1976), as pM Before McGOWAN, Chief Judge, and amended, the requirement that even not.
radioactiv
',h/,Pl*"',
WRIGHT, TAMM, ROBINSON, MacKIN. withstanding a finding of "no significant 7,
NON, ROBB, WILKEY, WALD, MIKVA, hazards consideration"in a proposed license caused s EDWARDS and GINSBURG, Circuit amendment, the NRC must nonetheless tive sas Judge.
hold a prior hearing on the proposed
["',',]
N
,,_N' PER CURIAM.
person. By then drastically loosening the study of ORDER amendment upon request of any interested 782.the '
' 'j,'"
The suggestion for rehearing en bane of standard for what constitutes a " request"
],
the Public Utilities has been circulated to f r a hearing, the panel has thrust upon the meantinu the full court and a majority of the court NRC the burden of holding full. fledged tysopen has not voted in favor thereof. On consid. hearings before even the most trivial 78'"8 dins erstion of the foregoing, it is amendments to NRC operating licenses may Atmost ORDERED, by the Court, en bane, that be adopted.
si e vi the suggestion of the Public Utilities is We believe that the panel's inflexible would nc denied.
blanket rule violates the Supreme Court's tal impa<
mended I. We would only have this court reconsider F.2d. where this proposition is set forth-be decor pages 786-790 of the panel opinion. 65:
the but!d 782-783 9
h
a SHO11Y v. UNITED STATES NUCLEAR REGULATORY COM*N 793 Che as tsl F.2d 7s211:00) unanimous mandate in Vermont Yankee re-Island nuclear power plant's operating I cnd WIL.
1 tnt rehear.
jecting judicialimposition of administrative license to permit post-accident release of is cttached.
procedures upon an agency in excess of the radioactive gas from the reactor building at statutory minima prescribed by Congress. rates exceeding existing specifications-was atypical among NRC operating license Vermont Yankee Nuclear Power Corpu v.
OF
('C NRDC, 435 U.S. 519, 543, 98 S.Ct.1197, amendments.8 Only a tiny fraction of all 1211,55 L.Ed.2d 460 (1978). Fur'hermore, license amendments involve emergency
- and WIL.
by reversing long-standing NRC policy, the matters so subject to factual dispute as the hazards attendant to venting radioactive panen decision forces a major reallocation sa bane in of Commission resources, which appears gas into the atmosphere. The Commission acts on an average of more than 400 license iclear Reg-likely both to overwhelm the agency's hear, amendments per year. NRC's Motion to
, F.2d 780 ing machinery and to divert staff attention Stay Issuance of Mandate at 3.
For the 3 startling from safety issues of greater significance.
seventy-one power reactors currently h,-
inion: that Finally, the panel decision threatens to re-censed for operation, some 800 license utory Com-sult in the closing-for as much as nine amendment actions are presently before the Iound that monthaf numerous power plants cur-Commission. The vast bulk of these cx>n-m existing rently awaiting license amendments pend-cern matters such as: changing or adding cense poses mg completion of hearings, when post hoc myr ad Techm. cal Specifications em-mn he:lth hearings might in fact be more than ade-bedded in a given power plant s 400-page tory Com-quate to ventilate any health and safety operating license, detailing a plant,s operat-d to pro-issues posed by most amendmenta.
mg conditions, modifying surveillance re-
} to e The license amendment in this case-a quirements, administrative controls, design g
temporary modification of the Three Mile features or the like. Affidavit of Roger S.
en achted
- 2. The peculiar circumstances u..*g which the fied the plant's operating hcense to permit the Sholly appeal arose made this case er %iarly licensee to vent the gas from the reactor build-ue cf "cx-inappropriate for judicial articulation of seep-ing at a rate faster than allowed by existing p.P. 35(a).
ing procedural rules. In the aftermath of te specifications. based on its expheit finding that widely pubhcized Three Mile Island incident.
offsite radioactive dose hmits would not be preta-the NRC had suspended the licensee's authority breached if the gas were vented at a rate in decEnon of to operate the strkken plant, requiring that the excess of existing release rate hmits. Ed at has read facihty be maintained in a shutdown condation.
783 & n 8.
651 F 2d at 780. Before the accident, the The Commission further expressly found that jg plant's operating license had expressly autho-modification of the operating hcense would in-(1976), as rized periodic release of specified amounts of
,,iy,..no significant hazards consideration "
even not.
radioactive gas into the atmospl ere as part of Id at 783. The petitioners who later chal-the plant's normal and necessary operations.
g g
.s decision not to provide a
- g Id at 783 n.7.
Because the incident had heanns on that modification did not file a re-Rd license caused " dangerous concentrations of radmac-quest for a heanng until the day before venting metheless tive gas [to] collect [] within [the power was to begin. Id at 783. When venting fmal-plant's) reactor containment buildmg. Inhibit-proposed ing cleanup and maintenance work." id at ly began, release proceeded at first at a rate titerested 782. the NRC proceeded te prepare an overall within the levels previously specified for nor-ming the study of the environmental impacts likely to mally operating nactors. Ed During this peri-result from decontamination and disposal of od at least one of the petitioners moved to wastes resultmg from the incident. In the suspend the venting but then subsequently ipon the meantime the Commission modified the facih-withdrew their request on 8 July. On the same ll. fledged ty's operating license to pruhsbit any venting or day as the request was withdrawn, the hcensee purging of the reactor building atmosphere began to vent gas at the faster rate permitted t trivial pendmg exphcit future approval. Ed at 782.
by the 12 June license amendment. Venting nses may Almost a year after the incident. after exten-was completed in three days. producing offsite sive environmental assessment and after con-doses well under the expected tirruts; shortly ciudmg that reiease of gas from the plant thereafter the 12 June venting orders expired.
, flexibls would not constitute a significant environmen-The Commission has asserted. and petitioners In e Court's tal impact, the Commission tentatively recom*
have not controverted. that any future purging mended that the reactor buildmg atmosphere of the Three Mile Island reactor atmosphere rth.
be occontaminated by venting the gas through will be at worst minor and sporadic. Ed at the building's hydrogen control system. Ed at
- 7g4, 782-783. On 12 June 1980 the NRC modi-
r-y_
F 79(
651 FEDERAL REPORTER,2d SERIES r
Boyd, Former Director of the Division of nied by post-approval publication of notice Atomi Project Management, NRC Office of Nucle-in the Federal Register.4 (D.C.C ar Reactor Regulation at 3, attached to We believe that the agency's past prac-Intervenor Respondents' Petition for tice complied fully with statutory man-Rehearing and Suggestion for Rehearing dates. Whether or not a finding of "no "9" "
En Banc [Boyd Affidavit].
significant hazards consideration" has been The NRC staff compktes review of some made, no hearing is required under the ap-g,'
fifty of these amendments per month; typi. plicable language of section 189(a) of the becaus cally, it refuses to make a finding of "no Atomic Entrgy Act, 42 U.S.C. $ 2239(a) ggg(,)
significant hazards consideration"in a pro- (1976), unless a hearing has first been spe-publica posed amendment unless (1) the proposed cifically requested. The fir t sentence of Congn change raises no significant new safety in-section 189(a) only requir $ the NRC to two rt formation of a type not previously con-grant a hearing on a licente amendment At 78 sidered in prior safety reviews, (2) the proposal "upon the sequest of any person 1962 ai change raises no significant increase in the whose interest may be affected by the pro-el con.
probability or consequences of an accident, ceeding." (Emphasis added.) The third perceis or (3) the change offers no significant de-sentence, however, permits the NRC "in the permit crease in the plant's ar.fety margin. Id.at absence of a request therefor by" such a notice 781-782. Over the past four calendar person to issue an amendment without a upon s years, the NRC has published notice in the hearing,"upon thirty days' notice and pub-considt Federal Register of more than 1500 amend-lication once in the Federal Register of its w,
ments to operating plant licenses which the intent to do so." (Emphasis added.) With-relied i NRC staff found to have "no significant out mentioning hearings, the fourth sen-(
ion in.
hazards considerations." Id. at 782. The tence then specifies that the Commission tion.
NRC has recognized that delay in issuance may even dispense with such " thirty days' indepe:
of license amendments would require plant notice and publication upon a determi-langua shutdown if agency review is not expedi-nation by the Commission that the amend-I distortA tiously completed.: Moreover, plants al-ment involves no significant hazards consid-tion.
ready shutdown for refueling or other rea-eration." 8 In I sons cannot restart until such review is The Sholly panel read this language to tiened completed. Thus NRC, practice and regula-conclude that the agency has for years in modify tions have long called for approval of fact been operating in violation of section for twe license amendments without hearing upon a 189(a). The panel first argued that this to exte finding of no significant hazards, accompa-court had previously held in Brooks v.
~ ified ir living :
- 3. The former Director of the hRC's Division of son whose interest may be affected by the Project Management estimates that there are proceeding, and shall admit any such person had es about 50 license amendment applications now as a party to such proceedng. The Commis.
hearing pending before the NRC which are likely to be sion shall hold a hearing after thirty days' the prt
'w classified as having "no significant hazards notice and publication once in the Federal be mod considerations" and which, if not approved.
Register. on each application for a con-
.,N within the next few months. will result in the in acco struction permit for a facihty (T]he N
shutdown of the reactor involved. Boyd Affi-Commission may,in the absence of a request erating devit at 5.
therefor by any person whose interest may issue.
at M be affected, issue an amendment to an ston ga operating license without a heartng, but upon would
- g. Section 189(a) of the Ato.nic Energy Act of thirty days' notice and publication once in
{nexplit 1954,42 U.S.C. 5 223m)(1376), as amended in the Federal Register of its intent to do so.
1957, Pub.LNo.85-256. t 7, 71 Stat. 579 The Commission may dispense with such proceed (1957) and in 1962, Pub.LNo.87-415. 5 2, 76 thirty days' notice and publication with re-g gj Stat. 400 (1962), reads in pertinent part as spect to any apphcation for an amend.
structic foHows:
ment to an operating Ilcense upon a determi.
In of In any proceeding, under this chapter, for the nation by the Commission that the amend-granting, suspending, revoking, or amending ment involves no significant hazards consid-g;,
of any license the Commission shall eration.
grant a hearing upon the request of any per.
Comm,u q
S110LLY v. UNITED STATES NUCLEAR REGULATORY COM'N 795 ca.as esi r.za to: oseen cf notice Atomic Energy Comm'n,476 F.2d 924,926 those dates had given "no indication what-(D.C.Cir.1973)"that the fourth sentence (of soever that the amendment involved no sig-secti n 189(a)] only dispenses with require-nificant hazards consideration," the court ast prac-ments of notice and publication," not the stated "the Commission must surely make requirement of a hearing. 651 F.2d at the required significant hazards determina-786. Furthermore, the panel then inde-tion, and note such determination in its has been pendently read the statutory language to order, if it intends to put forward such rbe requ re the same conclusion, finding that determination as the basis for its denial of a
') d
- because the fourth sentence of section hearing." Id. at 926. Second, the court M *)
189(a) refers only to thirty days' notice and stated that because petitioners had made an n spe-publication, it " plainly demonstrates that undeniable request for a hearing on modifi-
- "** 'I Congress did intend to disentangle the cation of permits, the Commission had erred NRC to two requirements of notice and hearing." in issuing the order without notice that the ndment At 787. The legislative history of the hearing scheduled to take place would also Person 1962 amendments to section 189(a), the pan-concern permit modification.
the pro-el concluded, demonstrates that Congress We believe Brooks to be plainly inappo-third perceived the changes to section 189(a) as site here. The Brooks court was addressing
,in the permitting the NRC to dispense only with two questions not before the Sholly panel:
such a notice and publication-not a hearing-whether the Commission could dispense out a upon a finding of "no significant hazards w th a hearing without first making a find-pub-consideration." Id. at 788.
Ing of no significant hazards, and whether r cf its We believe that the panel unjustifiably the Commission could dispense with the no-With-relied on this court's brief per curism opin-tice statutorily required in the third sen-8'"~
ion in Bmoks to support its central proposi-tence of section 189(a) when a clear request
,ssion tion. We further believe that the panel's for a hearing has been made. The Brooks days' independent interpretation of the relevant court plainly did not seek to lay down the ter n -
language in section 189(a) ignored logic and broad rule which the panel here articulates:
nd-distorted the legislative history of that sec-that the fourth sentence of section 189(a) nsid-tion.
requires a hearing even when the Commis-In Brooks two utility companies peti. sion has made a "no significant hazards to tioned the Atomic Energy Commission to consideration" finding. If that rule has in modify the provisional construction permits indeed been the law of this Circuit since
'on for two nuclear power plant units in order Brooks, it comes as a great surprise to us.
t this to extend the " latest completion date" spec-At least one member of this court, address-s v.
ified in the permita. Petitioners, persons ing the proposition directly in a case decid-tiving near the proposed construction site, ed after Brooks, stated the view that "[a]n.
had earlier filed a timely request for a amendment can be made without opportu-hearing with respect to two issues: whether nity for a hearing if the AEC determines 3
days' the provisional construction permits should that it ' involves no significant hazards con-eder;l be modified to protect environmental values sideration.' " Union of Concerned Scien.
in accordance with NEPA and whether op-tists v. AEC,499 F.2d 1069,1084 n.36 (D.C.
C'"-
j erating licenses for thoee facilities should Cir.1974) (McGowan, J.).
Furthermore, issue. 476 F.2d at 925-26. The Commis-some thirteen NRC regulations and cases may to c.n sion gave petitioners notice that a hearing listed within the panel opinion, but sum-upon would be held on the second matter, "but marily dismissed there, indicate that both inexplicably failed" to give notice that the before and after Bmoks the NRC consist-
' 18
,,,f proceedings would also permit discussion of ently interpreted section 189(a) to permit the first issue: modification of the con-issuance of license amendments even with-nd-struction permits. Id. at 926 & n.6.
out hearings upon a finding of "no signifi-cant hazards consideration." 651 F.2d at
[
In ordering a hearing on the issue of 789 n.26.
extension of permit completion < es, the court made two points. Noting that the The panel buttresses its puzzling statuto-Commission's order summarily extending ry construction with citation from a legisla-
796 651 FEDERAL REPORTER,2d SEltIES tive history which it concedes to be " replete gress intended to require a prior hearing.s markal with ambiguities and inconsistencies." At Furthermore, although the panel rejects dinaril; 788-789 n.24.
We would submit that Judge McGowan's unambiguous statement tutes a 789 n.:
the confusion inherent within that legisla-in Union of Concerned Scientists as dictum, j
tive history is alone sufficient reason why it its subsequent analysis of the legislative exprest should not have been cited selectively in history of the 196? amendments to section C "8 tit support of the panel's sweeping rule. 189(a) makes no mention of the troad and P""'I'
",ed int While the panel holds that the NRC's "no careful statutory analysis of those amend-i significant hazards consideration" finding ments which lay at the heart of Judge L2 ns o tuted a did not entitle the Commission to dispense McGowan's well-reasoned opinion.,
with a hearing prior to the license amend.
ing sui De Panel's reading of the statute and ment. At 789, none of the legislative
- quest, legislative history becomes even more re-read o history cited supports the notion that Con-that a 1 6.
See, c. g., the remarks of Representative Holi-
- 7. Ironically the panel rejects Judge McGowan's to7 la field and Senator Pastore cited in the panel statement as dictum because "[t]he court pro-opinion, 651 F.2d at p. 789: "[A]mendment vided no support br its far-reaching statement.
NRC h
[to section 189(a)]in no way limits the right of nor dad it even make mention of the recently ings or.
an interested party to intervene and request a decided Brooks case." a case which we beheve request hearing at some later stage (Emphasis to be inapposite. 651 F.2d at 787 n.18. Yet added).
the panel's subsequent analysis of the legisla.
OE" Even if petitioners sought to bottom their tive history of the statutory language at issue authori right to a prior hearing on due process grounds.
Ignored both the general thrust as well as the days' n rather than on the language of section 189(a)-
express language of Judge McGowan's opinion.
p2 m p cf. at 786-787 n.20 discussed an note 9 in.
I"
"#0" OI C0"C"'d S'"'3888-
"d8' as the fra, it is not clear why in most bcense amend-ment cases that nght could not be accmnmo-McGowan read the Atomic Energy Act to g,
dated "at a meaningful time and in a meaning,
" erect [] a regulatory scheme virtually unsque ful manner" by a post-amendment bearing. Cf.
in the degree to which broad responsibihty is g,
gg.
Afa.2ews v. Eldndge. 424 U.S. 319, 341M9, 96 reposed in the administrative agency, free of
" petits S.Ct. 893,909-10,47 led.2d 18 (1976). Inter, close prescription in its charter as to how it rrutted venor Respondents have suggested that in the shall proceed in achieving the statutory objec NRC vast majortty of license amendment cases in.
(sves," 499 F.2d at 1077, citing Siegel v. AEC, nessm volving no significant hazards considerations.
400 F.2d 778, 783 (D.C.Cir.1968). The legista.
.how I opportunity for a heanns after the amendment tive goal of the 1962 amendments. he noted.
' hearin has issued would stall allow full consideration was to eliminate the kmd of unnecessary proce-of all issues in.olved withot.1 erdangering dures imposed here: "[T]he pnmary purpose of 9.
The therei plant safety or interfering with normal plant the 1962 amendments [was] to unburden the hazan operations. See Intervenor. Respondents
- Peti-Commission by authorizing it to. remorfe) tion for Rehearing and Suggestion for Rehear-the necesssty of holdans unnecessary and duph-0' *P" O n st ing En Banc at 12. See also Boyd Affidavit at catiw heanngs." 499 F.2d at 1077 (D.C.Cir.
5; note 11 infra.
1974)(emphasis added).
Certainly the panel could have reached its Furthermore, Judge McGowan expressed a result without disrupting the Commission's I'"
marked lack of sympathy with petitioners' prevailing practice of dispensing with pnor
" fundamental misunderstanding of the AEC li.
hearings on triviallicense amendments involv-censing process," suggesting that in cases hke w
ing no significant hazards, simply by adopting this one Congrev did not intend to g2ve the ess ch the type of balancing test previously approved s
pubhc an unequivocal n. ht to participation:
rrunist
'N' by this court in Uruon of Concerned ScientJsts.
g The role of the A[tomic] S[afety] t.[icensing]
the Cs
[A]fm!nistrative action taken prior to a full hearing has always been permissible when B[oard] is not to compile a record; it is to form c the state's interest in acting prompdy to pro-review a record already compiled by the Staff ing a i mote the general welfare, including economic and A[dvisory] C[ommittee on) R[esctor) thorize well-being, outweighs the indsyfdual's inter-S[afeguards], who have responsibility for the and p est in having an opportunity to be heard sufficiency of that record.
In the Atomic imply before the state acts, perhaps in error, in Energy Act (Congress] authorized the and p ways that may cause him significant injury.
Commission, in its discretion, to determine requiri Union of Concerned Scientists v. AEC. 499 F.2d that certain appheations present no "signifi-made 1069,1081 (D.C.Cir.1974) (emphasis added).
cant hazards considerations" and to dispense could i 1his principle allows the decision whether or with notice and publication of impend ng ap-review not to grant a prior hearing to be based on the proval, excludmg the public altogether.
This facts of the individual case, rather than upnn a ld at 1078 (emphasis added).
of this pronouncement as broad as the one made here.
- Scalia, m_
l
SHOLLY v. UNITED STATES NUCLEAR REGULATORY COM'N 797 Che as ssl F.sd 7s2 (Isae) ria.'
markable when combined with its extraor.
We submit that the panel's interpretation deets dinarily broad conception of what consti-of section 189(a), taken as a whole, renders raent tutes a request for a hearing,651 F.2d at it sirtually impossible for the NRC faithful-
- tum, 739 n.25.
Reading Brooks to hold "ttat ly to follow the explicit congressional di-ativa expressions of interest may be sufficient to rectives found within that section. The etion constitute a request for a hearing," the panel has, in effect, eviscerated the con-I cnd panel then finds that " petitioners
- e intir,-
gressional mandate found in both the third send-ued interest in-and opposition to--the ac-and fourth sentences of section 189(a).
udge tions of the NRC at TMI-2 clearly consti-Sinc. under the panel's standard almost any tuted a request for a hearing."8 By find-expression of interest constitutes a "re-ing such facts to constitute a hearing
- quest," the NRC will rarely be able confi-g quest, the per curiam opinion has virtually dently to dispense with a hearing on a read out of the statute the requirement licensing amendment, despite the fact that that a hearing be requested. Yet the statu-Congress authorized it to do so in sentence tory language leaves no doubt that the three. Since the panel recognizes that it.is t pro ment.
NRC has no statutory duty to provide hear-absurd to hold a hearing without first pro-tently ings on license amendments when none are ice to. terested persons,' the viding not.
in eueve requested. Furthermore, as the panel rec-NRC will never be able safely to dispense ognised, at 787 n.20, the statute expressly i,.
with notice and publication even when a issue authorizes the NRC to dispense with thirty routine amendment undisputedly involves I
u the days' notice and publication, even if an ex, press request for a hearing is made, so long no significant hazards considerations, de-
'"I as the NRC has made the requisite finding spite the fact that Congress authorized it to of "no significant hazards consideration." do so in sentence four.8' nique lity is 8.
At 789 n 25. The panel finds the fact that Circuit. and the Supreme Court 1978 Sup.Ct.
,,, og
" petitioners were among the many that sub-Rev. 345. 372 (criticizmg this court's tendency 1
ow it mitted comments in Apnl.May 1980" to the to render decisions which are de facto unre-NRC regarding the NRC's Environmental As-viewable):
sessment of the plant's decontamination some-
[T]he most important factor leadmg to the de how to buttress its findmg of an indmduel facto unreviewabihty of the D C. Circuit's heanng request. Id.
positions is the failure of that Court itself to y
facilitate review, even when the most funda-ose of
- 9. The panel opinion requires that even when mental issues are at stake, Or to put the i
a the there is an undasputed findmg of no significant sov[;)
1.azards, clearly permitting the Commission to point more entically: The pattern of dicta, dupli-dispense with the 30 days' notice and publica.
alternate holdings, and confused holdings out C.Cir.
tion statutority prerequisite to a hearing. that a of which the D.C. Circuit's [ hybrid rulemak-hearing must be held nonetheless, even without ing pnnciples) so clearly and authorita.
med a notice or publication to anyone who has a con.
tavely emerged had the effect. if not the pur-tinuing interest in the matter. While acknowl.
pose of assunng comphance below while oners.
edging that this result is " paradoxical." at 786-avoiding accountability above.
- g. gp 787 n 20. the panel imphes that such a result gg might never come about because the due proc.
- 10. Even if the Commission makes an uncon-e the ess clause of the Fifth Amendment or the Ad-tested finding that no significant hazards will ministrative Procedure Act may mandate that result from a license amendment. must it "5"8I the Commission give interested persons some nevertheless hold a heanns on that amendment form of notice and publication pnor to amend-for anyone who has previously expressed inter-ing a hcense, esen if the statute expressly su-est in or opposition to the NRC in related "Ct"d thorizes it to dispense with thirty days' notsce matters in the past, so long as that person or the and publication. Id. If the panel meant to continues to express some interest? Despite tomic imply by this tantalizing suggestion that notice the fact that the Commission is statutorily au-d the and pubhcation were in fact constitutionally thorized to dispense with thirty days' nutice rmine required in this case, we beheve it should have and publication in such a case, is it neverthe-ignifb made that point explicitly so that that fmding less required, sua sponte, to contact at rone pense could properly have been the subject of further who has submitted a comn.ent about a re - snt rulemaking in the precedmg months to see if This repeated evasive tactic by some panels that person would hke a heanng?
of this court has not gone unnoticed. See,e.g Scalia, Vermont Yankee: The APA. the D.C.
I
- v, 798 651 FEDERAL REPORTER,2d SERIES Finally, while we believe the question in Fermont Yankee Nuclear Power O>rp. v.
cy em; deserves further briefing, we are also trou-NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 the cot bled by the clear indications in the opinion L.Ed.2d 460 (1978) (reversing NRDC v.
reach s that the panel stretched to lay down a NRC,547 F.2d 633 (D.C.Cir.1976), and ee-
"best
blanket rule for an cascs in a case that was manding to this court for a determination would arguably moot" and whose facts were of adequacy of the record)."
agencie unique and, at points, ambiguous. The par-In Vennont Yankee, the Supreme Court junctio ties have suggested that the panel erred not spoke to this court with one voice, making and fa only in summarily finding that a proper it " absolutely clear" that "[a]bsent constitu-did no request for a hearing had been made, but tional constraints or extremely compelling adjudi<
also in finding that such a request, even if circumstances the ' administrative agencies
- stance, made, had not later been withdrawn." At should be free to fashion their own rules of a minimum, we would have the parties brief procedure and to pursue methods of inquiry and argue these questions as a prerequisite capable of permitting them to discharge It,' I to determining whether the panel's broad their multitudinous duties.'" 435 U.S. at Supreme ruling was in fact necessary to its disposi-543, 98 S.Ct. at 1211 (citations omitted).
Vermont tion of the case.
The unanimous Court went on specifically than her A number of judges and commentators to caution us against the type of procedur.
Nucles have leveled criticism at this court for its al-imposition which has occurred here:
safesi continuing unwillingness to be guided by
[1]f courts continually review agency pro-Congril the Supreme Court's unequivocal directive ceedings to determine whether the agen.
nueles review II. Although we do not specifically challenge
- 12. See Memorandum of Respondent United the panel's findmg of mootness, slip op. at States of Amenca at 22:
8-12, we express some doubt that the issue At the ASLB hearing,
. petitioner Sholly which the panel chose to resolve was truly one had an opportunity to press his clasm that both " capable of repetition, yet evadmg re-5189(a) entitled him to such a heanng he I
new. " Southern Pac. Term Corp. v. ICC,219 could have attempted to convince the ASLB I
U.S. 498. 515. 31 S.Ct. 279, 283, 55 led. 310 that the hcense amendment was invalid be-(1911) (emphasis added). The Department of cause the Commission had not granteo a pn.
J Justice, the Commission, and intervenors all or hearing. Instead of attemptmg to do so, convincingly argued that although the question he " formally withdrew" his motaon to stop decided herswhether the NRC is required to the release of radioactive krypton pendmg hold a hearing before issuing a license amend-the outcome of the hearing.
He refused ment based on a findmg of "no significant haz.
to go forward with the hearmg. In this way ards"-may well recur in the future, it is un-the Commission was depnved of an early likely to evade review. See Memorandum of opportunity to correct its error.
This is a Respondent United States of America at 4 further reason for believing that the petition
("[Tlhere is no reason to believe that [the is moot.
NRC's) actions will characteristically be irrev-(Emphasis added.)
ersible."); Brief for Respondent Nuclear Regu-latory Commission at 19-25. See also Interve-
- 13. See, e.
g~. Scalia, Vermont Yankee: The nor-Respondents
- Petition for Reheartng and APA. the D.C. Circuit, and the Supreme Court, Suggestion for Rehearing En Banc at 12:
1978 Sup.Ct.Rev. 345, 345 (Vermont Yankee s
The vast majority of operating license brought "Into question the willmaness of the l
N amendments-and particularly those involv.
D.C. Circuit to be guided by the Suprerne s
ing no significant hazards consideration--are Court"X Fnendly, Book Renew. 8 Hofstra
\\
reversible. Changes such as shortened sur.
LRev. 471,481 (1980)(D C. Circuit judges may have become " overly enthusiastic" in imposing l
veillance intervals can be lengthened; re-vised calculational techniques can be re-pr e ural requ nw nts on adnunisuam agencies yse, enn nt YanW aM th N placed with the prior methods.
In this
- ^
respect, the a-nendment facilitating krypton what DJfferent View. 91 Harv.LRev. 1823.1832 venting from Three Mile Island Unit 2 was (1978) (continued judicial imposition of proce-
{
truly exceptional in that once released the dural requirements on agencies reflects insensl.
krypton could not be reclaimed. Even in tivity to the concerns of the agency in deploy-cases where " irreversible action" is involved, ing its resources to conduct its business. undue a subsequent hearing would still have the self. confidence in the assumption that the salutory [ sic) effect of assuring thorough court's procedural presenption is 'best,' and
(
NRC consideration.
lack of trust in the pohtical process
")-
.y
799 SHOLLY v. UNITED STATES NUCLEAR REGULATORY COM*N Cite as as1 F.2d 792 (Isee) cy employed procedures which were, in policy questions appropriately resolved in l
tha court's opinion, perfectly tai!ored to Congress and in the state legislatures are reach what the court perceives to be the not subject to reexamination in the feder-
"best" or " correct" result, judicial review al co2rts under the guise of judicial re-would be totally unpredictable. And the view of agency action. Time may prove agencies, operating under this vague in-wrong the decision to develop nuclear junction to employ the ' wst" procedures energy, but it is Congress or the States and facing the threat of reversal if they within their appropriate agencies which did not, would undoubtedly adopt full must eventually make that judgment. In adjudicatory procedures in every in-the meantime courts should perform their appointed function.
stance.
435 U.S. at 557-58, 98 S.Ct. at 1218-19 Id. at 546,98 S.Ct. at 1213.
It is hard to imagine a case where the (emphasis in original).
Supreme Court's concluding statement in We submit the issues raised by Sholly de-Vermont Yankee could be more apposite mand reconsideration.
than here:
Nuclear energy may some day be a cheap, safe source of power or it may not. But
, "g,,,.,,,g f'-
Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental
~
i F
e
.s 9
j 4/g / Polt I
Notfee: This oplafon is subject to formal revision before publication la the Federal Reporter or U.S. App.D.C. Reports. Users are requested to notify g
the Clerk of any formal errors in order that corrections may be made before 7
the bound volumes go to press.
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.I FOR THE DISTRICT OF COLUMBIA CIRCUIT J
i 1l No. 80-1691 h
);I STEVEN SHOLLY and DONALD E. HOSSLER, PETITIONERS V.
UNITED STATES NUCLEAR REGULATORY COMMISSION et al. and UNITED STATES OF AMERICA, RESPONDENTS 51ETROPOLITAN EDISON COMPANY et al., INTERVENORS No. 80-1783 PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER s
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j V.
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UNITED STATES NUCLEAR REGULATORY COMMISSION;
-l JOHN AHEARNE, VICTOR GILINSEY, RICHARD T.
i KENNEDY, JOSEPH M. HENDRIE, and PETER A.
BRADFORD, in Their Individual Capacities; and THE UNUED STATES OF AMERICA, RESPONDENTS 1
METROPOLITAN EDISON COMPANY, JERSEY POWER &
i LIGHT COMPANY, and PENNSYLVANIA ELECTRIC COMPANY, INTERVENORS BIIIs of costs must be fUed within 14 days after entry ofjudraent. The court looks with disfavor upon motions to fue bills of costs out of time.
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No. 80-1784 j
IN RE: PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER I
l Petitions for Review of Orders of the l
United States Nuclear Regulatory Commission
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and for Writ of Mandamus
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Argued Septer her 8,1980 Decided November 19,1. M Robert Hager, with whom Daniel F. Sheehan was on the brief, for petitioners.
l Stephen Eilperin, Solicitor, United States Nuclear j
Regulatory Commission, with whom E. Leo Slaggie, At-I torney, United States Nuclear Regulatory Commission, l
was on the brief, for respondent United States Nucl, ear
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Regulatory Commission.
i David A. Strauss, Attorney, Department of Justice, with whom James A. Moorman, Assistant Attorney Gen-eral, and Peter R. Steenland, Jr., Attorney, Department of Justice, were on the brief, for respondent United States of America. Stanford Sagalkin and Lois Schiffer, Attor-
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neys, Department of Justice, also entered appearances for
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respondent United States of America.
Mark Augenblick, with whom George F. Trowbridge and Matias F. Travieso-Dia: were on the brief, for inter-
.venors. Robert E. Zahler also entered an appearance for i
intervenors.
Before WRIonT, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.
Opinion per curiam.
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PER CURIAM: In this case petitioners seek review of two orders by the Nuclear Regulatory Commission (NRC) l permitting the Metropolitan Edison Company to release
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radioactive gas into the atmosphere from the Three Mile Island nuclear plant.2 The claim here is that the orders issued by the NRC were made effective without affording i
petitioners their statutory rights to notice and a hearing.2 On June 26,1980, this court denied petitioners' request j
for emergency injunctive relief to block the release of the radioactive gas. Now that the radioactive gas from the nu,-
clear plant has been fully vented into the atmosphere, the petitioners seek only declaratory relief from this court.
2 Metropolitan Edison Co., Pennsylvania Electric Co., and Jersey Central Power and Light Co. jointly hold the operating license to the Three Mile Island nuclear plant. In this opinion they are called collectively either "the licensee" or "Metropoli-tan Edison."
- The petitioners primarily rely on i 189(a) of the Atomic Energy Act of 1954,42 U.S.C. I 2239(a) (1976), as amended in 1957, Pub. L. No.85-256,17, 71 Stat. 579 (1957), and in 1962, Pub. L. No.87-615, i 2, 76 Stat. 409 (1962). Section 189(a) reads in pertinent part as follows:
In any proceeding, under this chapter, for the granting, suspending, revoking, or amending of any license... the
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Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such pro-i ceeding. The Commission shall hold a hearing after thirty days' notice and publication once in the Federal Register, on each application... for a construction permit for a facility.... [T]he Commission may, in the absence of a request therefor by any person whose interest may be af-facted, issue... an amendment to an operating license without a hearing, but upon thirty days' notice and publi-cation once in the Federal Register of its intent to do so.
3 The Commission may dispense with such thirty days' notke and publication with respect to any application for l
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... an amendment to an operating license upon a determi-nation by the Commission that the amendment involves no significant hazards consideration.
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1 I. BACKGROUND This case arises in the aftermath of a widely publicized accident that occurred on March 28,1979 at " Unit 2" of the j
Three Mile Island nuclear plant. As a result of the acci-l dent, dangerous concentrations of radioactive gas collected in the reactor containment building, inhibiting cleanup and i
maintenance work.
l Three months after the accident, the NRC issued an j
" Order for Modification of License," 44 Fed. Reg. 45,271 i
g (1979), suspending Metropolitan Edison's authority to op-erate Unit 2 of the Three Mile Island plant (TMI-2), and requiring it to " maintain the facility in a shutdown condi-j tion." Id.8 The NRC order indicated that, in about thirty 3
days, the Commission would issue a " Safety Evaluation"
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addressing "the imposition of new and/or revised Technical Spccifications setting forth appropriate license condi-tions." Id.
I In fact, the NRC issued no such evaluation. Instead, on November 21,1979, the NRC issued a " Statement of Pol-icy and Notice of Intent to Prepare a Programmatic En-vironmental Impact Statement," 44 Fed. Reg. 67,738 l
(1979), which was to be an "overall study of the decon-tamination and disposal process." Id. The NRC Statement of Policy directed the agency's staff to include in the progragnatic environmental impact statement on the decontamination and disposal of TMI-2 wastes an overall description of the planned activities and a schedule for their ecmpletion along I
with a discussion of alternatives considered and the rationale for choices made.
8Much of the factual basis for the NRC's actions is contained in its report, the " Final Environmental Assessment for Decon-tamination of the Three Mile Island Unit 2 Reactor Building Atmosphere" (May 1980), which is reprinted in the Interven-or-Respondents' Appendix (App.) 18.
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5 Id.
.i On February 11,19S0, the NRC issued another order, 4.5 Fed. Reg. 11,282 (1950), which stated that the facility's operating license should be modified so as to:... (3) Prohibit venting or purging or other j
treatment of the reactor building atmosphere...
i until each of these activities has been approved by the NRC, consistent with the Commission's Statement of Policy and Notice of Intent to Prepare a Programma-i tic Environmental Impact Statement.
d Id."
j Six weeks later the NRC published a notice of the
" Availability of Environmental Assessment for Decon-tamination of the Three Mile Island Unit 2 Reactor Build-ing Atmosphere," 45 Fed. Reg. 20,265 (1980). The notice stated that the Assessment " considers five alternative methods for decontaminating the reactor building atmos-phere and recommends that the building atmosphere be decontaminated by purging to the environment through the building's hydrogen control system." Id.8 The NRC staff concluded in the Assessment that venting the gas into the atmosphere would "not constitute a significant
- The February 11, 1980 order specified that any interested person or the licensee could request a hearing before March 21, 1980 on whether the proposed changes in the technical specifica-tions would be sufficient "to protect health and safety or to minimi a danger to life and property" or "whether the provi-sions of this Order would significantly affect the quality of the human environment." Id. at 11,2S3. The order also provided, 1
however, that a request for a hearing on part (3) of the order would not stay the effectiveness of the order. Id.
- The NRC desired to remove the radioactive gas from the j
reactor building so that workers could begin to clean the build-j ing, maintain the equipment, and prepare to remove the dam-aged fuel from the reactor core. Removing the radioactive gas l
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from the reactor containment building was only the first step in l
an extensive cleanup.
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6 environmental impact and, accordingly, the staff does not propose to prepare a separate Environmental Impact Statement on this action." Id. at 20,265-66. Public com-ments on the Assessment originally were due by April 11, 1980, but the period was extended to May 16,19S0. 45 Fed. Reg. 30,760 (1980).
In May of 1980, the NRC issued'the " Final Environmen-tal Assessment for Decontamination of the Three Mile Is-i land Unit 2 Reactor Building Atmosphere." On June 12, 1980, the NRC issued without a hearing two fm' al orders, entitled " Order for Temporary Modification of License" and " Memorandum and Order," App.119 and 125, respec-tively. The first order modified the operating license
- to i
permit the licensee to release the radioactive gas from the reactor building at a faster rate than the existing specifi-j cations allowed.' The first order also expressly stated that, because the NRC had found that the modification of a
i the operating license involved "no significant hazards con-i sideration," requests for a hearing would not stay the im-plementation of the order. App. 121-23.8 The second order
'As part of its argument, the NRC contends that the second order, permitting purging, was not a license amendment. How-ever, the NRC admits that the first order amended the TMI-2 operating license.
'Before the accident of March 28,1979, the TMI-2 operating license authorized periodic release of specified amounts of radioactive gas into the atmosphere as a normal and necessary part of plant operations.
- Part of the basis for the Commission's determination of "no significant hazards consideration" was its conclusion that, al-though existing release rate limits would be exceeded, off-site dose limits would not be breached. Since the NRC's concern was the effect of the venting on human health, the Commission felt l
that the more direct measure-off-site dose limits-would pro-
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vide a satisfactory standard to determine the appropriate limits on the venting of the radioactive gas.
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7 authorized release of radioactive gas from the reactor building.' Venting was to begin on June 22.20 On June 16, petitioners wrote a letter to the NRC re-i questing that it reconsider its finding of "no significant j
hazards consideration" and its decision to make the June 12 orders effective immediately. The NRC did not re-l spond.
On June 23, petitioners filed a petition in this court for l
review of the two June 12 orders.u Three days later this
..i court denied the petitioners' requests for emergency in-1 junctive and declaratory relief. The next day, one day be-i fore the venting began, the petitioners filed a request for a hearing with the NRC on the two June 12 orders. The hearing request was referred to an Atomic Safety and Li-censing Board. On July 3, the petitioners moved the Board to suspend the venting; however, this request was sub-sequently withdrawn, on July 8, shortly before the venting was completed.
Metropolitan Edison began to vent the reactor building on June 28, 1980, at a rate that was within the original license specifications for a normally operating reactor. On July 8, the licensee began to vent the radioactive gas at a faster rate, pursuant to the specifications set in the June j
- The NRC made no finding that this orderinvolve'd "no sig-nificant hazards consideration." See Brief for Respondent Nu-clear Regulatory Commission at 30,35.
1*By making the orders effective immediately, the Commis-sion failed to give any notice in the Federal Register of the license amendment. The Commission contends that so long as it i
makes a finding of "no significant hazards consideration," the governing statute does not impose such a notice requirement.
See note 2 supra for statutory notice and hearing requirements.
I On July 8,1980, a petition for review (No. 80-1783) and an accompanying petition for writ of mandamus (No. 80-1784) were filed in the Third Circuit. On the NRC's motion, those cases were transferred to this court and consolidated for review with No. 80-1691, the case originally filed in this court.
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12 license amendment. The venting was completed on July
- 11. As the NRC had anticipated, the off-site doses from
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the venting were below the limits set in the June 12 radia-tion license amendment. In its draft Programmatic. En-vironmental Report Statement, issued August 14,19S0, the Commission stated that'it did not anticipate a recur-rence of the purging of the reactor building atmosphere, i
but that some minor releases of gas might be necessary for data gathering purposes. See Brief for Respondent Nu-clear Regulatory Commission at 6 n.4 & 20 n.11.
II. MoOTNESS Because the licensee has completed the venting of the reactor containment building, and because both of the i
June 12 orders have expired, the Commission and the j
licensee claim that petitioners' claims for injunctive and i
declaratory relief are moot.12 However, because we find that these cases are " capable of repetition, yet evading re-view,"28 we > old that the petitioners' claims are justici-l able in thi.=.ourt.24 18 Metropolitan Edison seems to argue t] at since petitioners' j
elaims for injunctive relief are moot (i.e., }the reactor building atmosphere has been purged), the case should be dismissed.
This argument, however, misstates the nature of the relief sought by petitioners. They have sought both injunctive and de-
. claratory relief in this action. Although petitioners cannot now obtain injunctive relief to prevent the purging, they continue to i
pursue their cIAim for a declaratory judgment that the NRC must grant them statutorily mandated notice and a hearing whenever it amends a license. See, e.g., Super Tire Engineening Co. v. McCorkle, 416 U.S.115 (1974) (the Court found that even though the strike had been settled, mooting injunctive relief, the petitioner aIIeged suf5cient facts in support of declaratory relief so that the esse should not be dismissed as moot).
- See Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911).
84We note that the United States has taken the position that l
the petitioners' claims are " capable of repetition"-since the 1
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The mootness doctrine is primarily based on article III of the United States Constitution, which limits federal court jurisdiction to " cases" or " controversies." Courts have interpreted the constitutional provision to limit their jurisdiction to "a present, live controversy of the kind that j
must exist if we are to avoid advisory opinions on abstract I
propositions of law." Hall v. Reals, 396 U.S. 45, 48 (1969).
The case or controversy requirement " preserves the sep-
'aration of powers" and "' limit (s] the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" Tent:essee Gas Pipeline Co. v. Federal Power Comm'n, 606 F.2d 1373,1379 (D.C.
Cir.1979) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)).
Commission has stated that it will continue to deny requested hearings when it finds no significant hazards considerations are involved-but that future 4:sims will not evade review-since "there is no reason to believe that [NRC] actions will charac-
.teristically be irreversible." Memorandum of Respondent United States at 4. Consequently, the United States also argues that the petitions shouM be dismissed as moot.
We reject the Government's position for two reasons. First, as we, explain in the text of the opinion, many NRC license amendments are irreversible. The facts in the present case illus-trate how making an amendment effective branediately can pre-clude complete judicial review. Second, we believe that it is un-reasonable for the Government to take the position that, in order to seek judicial review of a license amendment, a petitioner must race to the courthouse before the NRC takes an irmversible action. Even if a petitioner could file the petition before the NRC acted, a court more often than not will decline to grant emergency relief. Indeed, such a request for emer-gency relief was denied in this case. Consequently, because a petitioner will not receive complete judicial review of his claim, even though it might be meritorious, we find that these claims evade review.
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l Cases arising from agency action, no less than cases in-volving only private parties, are subject to the mootness doctrine. Yet, as this court has recently noted, "the con-1 cept of mootness is placed under some strain in the context
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of administrative orders whose formal legal effect is typi-cally shortlived." Tennessee Gas Pipeline Co. v. Federal Power Comm'n, 606 F.2d at 1379-80. The strain is re-IIeved somewhat by an exception first articulated in Southern Pac. Terminal Co. v. Interstate Commerce
.l Comm'n, 219 U.S. 498 (1911), where the Supreme Court held that technically moot cases are justiciable if they in-i i
volve "short term orders, capable of repetition, yet evad-ing review." Id. at 515.
A case is considered justiciable if "the litigant show[s]
-l the existence of an immediate and definite governmental action or policy that has adversely affected and continues to aflect a present interest." Super Tire Engineering Co.
- v. AlcCorkle, 416 U.S.115,125-26 (1974). As this case demonstrates, administrative orders, like labor disputes,
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often "do not last long enough for complete judicial review of the controversies they engender.... The judiciary must not close the door to the resolution of the important questions these concrete disputes present." Id. at 126-27.
Yet, in order to invoke the Southern Pacific exception, the petitioner must not only show that "the challenged ac-tion was in its duration too short to be fully litigated prior to its cessation or expiration," he must also show that "there was a reasonable expectation that the same com-plaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S.147,149 (1975).
The issue in'the present case is not simply whether the NRC will again purge the reactor building atmosphere without first giving notice and holding a hearing. At stake is whether the NRC will continue its policy of making im-mediately effective license amendments without holding a j
hearing, even though petitioners request one, whenever I
the NRC finds that the amendment involves "no signifi-cant hazards consideration."
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11 Under this vieve of the issues in this case, the conditions for avoiding dismissal on grounds of mootness, set forth in Weinstein, are met. The Commission has candidly con-a ceded that at some point in the TMI-2 cleanup, perhaps on more than one occasion, the Commission will amend the utility's license in respects so minor that the Commis-sion will think itself justified in making the amend-ment immediately effective based upon a no signifi-cant hazards consideration finding. Certainly, that kind of finding has been utilized in the past.
Brief for Respondent Nuclear Regulatory Commission at 23.** The Commission plainly intends to adhere to its pol-icy of denying a hearing on a license amendment, under certain cire istances, even though interested parties spe-cifically request a hearing. The chances of recurrence are I
more than speculative; because the NRC policy will be l
carried out during the TMI-2 cleanup, there is a " reason-able expectation that the same complaining part[ies]" will
- This admission entirely undereuts Metropolitan Edison's argument that there is no evidence that the actions complained of will be repeated. In each of the cases cited in Metropolitan I
Edison's brief, the challenged governmental activity had ceased with no indication that it would be continued at a later time.
- See, e.g., Murphy v. Benson, 270 F.2d 419 (2d Cir.1959), cert.
denied, 362 U.S. 929 (1960). In the present case, by contrast, the NRC has clearly stated its intention to continue with its al-legedly unlawful conduct-making certain license amendments effective immediately without holding a requested hearing or giving notice. We think it obvious that the NRC will also con-tinue to rely on the second method employed in this case for avoiding the notice and hearing requirements of i 189(a)-
describing an order as something other than a license amend-ment. See note 6 aupra. The Commission's continued belief in its authority to follow this policy makes petitioners' challenge to the policy " capable of repetition." See Nader v. Volpe, 475 F.2d 916 (D.C. Cir.1973).
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be denied their alleged statutory rights to hearing and i
notice.
l As the present case demonstrates, challenges to the NRC's policy of denying a hearing on license amendments may well escape review. The difficulty here is that the or-ders are often shortlived and the NRC actions, like vent-ing, may be irreversible. The difficulty is compounded when the NRC elects, as in this case, to make its orders effective immediately. These considerations indicate that j
future challenges to the NRC policy may easily " evade re-view."
i' This court has stated that "[t]he situations (involving j
appellate consideration of recurrent controversies) are necessarily variant, and the variables complex.... [T]he i
court's decision to maintain the appeal, in the interest of l
sound judicial administration, is dependent on a prediction of a recurrence or continuation of what is perceived to be essentially the same legal dispute." Alton & Southern l
Railway Co. v. International Ass'n of Machinists &
Aerospace Workers, 463 F.2d 872, 879 (D.C. Cir.1972).
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"While an ' effective remedy' for the immediate dispute is not obligatory, there must be at least a capacity for a dec-laration oflegal right concerning a future projection of the actual dispute that precipitated the litigation." Id. at 879-80. In the present case, that capacity exists, and we hold that this case is not moot.
III. THE ORDER FOR TEMPORARY MODIFICATION OF LICENSE
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The NRC issued without a hearing the " Order for Tem-porary Modification of License"(OTML) of June 12, 1980, which substituted off-site dosage limits for release limits in the TMI-2 operating license. The petitioners contend that the NRC's failure to provide a heaHng violated see-tion 189(a) of the Atomic Energy Act of 1954. The first j
sentence of that section provides in relevant part:
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In any proceeding under this chapter, for the j
granting, suspending, revoking, or amending of any t
license or construction permit... the Commission j
shall grant a hearing upon the request of any person i
whose interest may be affected by the proceeding, j
and shall admit any such person as a party to such proceeding.
The NRC and Metropolitan Edison do not dispute that the OTML constituted a license amendment subject to the terms of section 189(a). They do maintain, however, that j
under the fourth sentence of the section the Commission
.i could dispense with a hearing. The fourth (and last) sen-tence of sect on 189(a) reads:
The Commission may dispense with such thirty days' notice and publication with respect to any application for an amendment to a construction permit or an amendment to an operating license upon a determina-tion by the Commission that the amendment involves no significant hazards consideration.
The NRC and the licensee argue that the NRC properly made a finding of "no significant hazards consideration" with respect to the OTML, and that consequently a hear-ing was not required. Although the last sentence of section 189(a) only explicitly " dispense [s] with... thirty days' notice and publication" upon a determination of "no sig-nificant hazards consideration," the NRC and the licensee contend that such a determination also permits the Com-
' mission to dispense with a hearing because notice and a hearing are inextricable.28 i
1sThe petitioners, challenging the correctness of the "no sig nificant hazards consideration" determination, also contend that the NRC was required under the third sentence of i 189(a) to i
provide 30 days' notice and publication in the Federal Register of the Commission's intent to issue the license amendment with-out a hearing. The third sentence provides that the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an
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i 14 We are convinced that such a finding did not permit the NRC to dispense with a hearing that is otherwise required l
by section 189(a).17 This is not the first case in this circuit L
in which it has been argued that a finding of"no significant l
hazards consideration" permits the NRC to issue a license 1.
amendment without a hearing. In Brooks v. Atomic I
Energy Comm'n, 476 F.2d 924, 926 (D.C. Cir.1973) (per curiam), this court soundly rejected the contention that f
the fourth sentence in section 189(a)" indicate [d] Congres-i sional intent to dispense with hearings in construction l
permit amendment proceedings... when the Commission j
determines that the amendment involves 'no significant hazards consideration.'" Instead this court, after an l
examination of the legislative history of section 189(a),
held that the fourth sentence only dispenses with require-ments of notice and publication. Because this circuit has previously rejected the very construction of section 189(a) offered by the NRC and the licensee,18 the doctrine of I
j operating license or an amendment to a construction per-mit or an amendment to an operating license without a 3
hearing, but upon thirty days' notice and publication once in the Federal Register of its intent to do so.
(Emphasis added.) Since, however, we hold that the petitioners requested a hearing, see note 25 infra, and that the NRC was
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required to hold a hearing, we reed not reach the question whether the Commission was required to provide 30 days' notice ofits intent to issue the license amendment without a hearing.
t'It is noteworthy that respondent United States concedes-indeed argues-that the NRC's failure to provide a hearing violated i 189(a) of the Atomic Energy Act. See Memorandum of Respondent United States at 4-21.
- It is true, of course, that 15 months after the Brooks deci-sion this court stated in dictum in a footnote that "[aln amend-ment can be made without opportunity for a hearing if the AEC i
determines that it ' involves no significant hazards considera-l tion.'" Union of Concerned Scientists v. Atomic Energy 1
Comm'n, 499 F.2d 1069, 3084 n.36 (D.C. Cir.1974). The court j
provided no support for its far-reaching statement, nor did it I
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I stare decisis compels us to hold that the NRC improperly failed to provide a hearing in the instant case.
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Moreover, even if this court were not bound by stare decisis, we would still adopt the Brooks interpretation of j
the last sentence of section 189(a). The plain language of j
section 189(a) dispels any notion that by a finding of "no i
significant ha,zards consideration" the NRC may dispense with the hearing requirement. The fourth sentence makes
- i no mention of the hearing requirement's being lessened, 1
but makes reference only to the requirements of notice 1
and publication. Despite the plain, unambiguous language contained in the last sentence, the NRC and Metropolitan Edison suggest that the requirements of hearing and notice are so intertwined that the reference to notice in the fourth sentence must also comprehend a hearing.
While it is true that requirements of notice and hearing are interrelated, it is clear that Congress was not merging them in section 189(a). That is demonstrated by the third sentence of the section where Congress made explicit ref-erence to the hearing requirement.18 That sentence plainly demonstrates that Congress did ir. deed intend to disen-tangle the two requirements of notice and hearing," and even make mention of the recently deelded Brooks case, which
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had squarely held to the contrary on the basis of the legislative history of i 189(a). We accordingly decline to place any reliance '
on the dictum in Union of Concerned Scientists.
- For the text of the third sentence, see note 16 supra.
"We are cognizant of the fact that the plain meaning of the third and fourth sentences ofi 189(a), when read together, pro-I duces in theory a somewhat paradoxical result. Under the fourth sentence the NRC may issue a license amendment with-out providing 30 days' notice and publication in the Federal Register ofits intent to do so, while under the third sentence the NRC need not provide a hearing when one has not been requested. As the NRC and the licensee note, it is difficult to imagine how a hearing can be requested when the NRC lasues a license amendment without notice. This " paradoxical result" did 1
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n 16 "to lessen the mandatory hearing requirement only when there was no request for a hearing " Brooks t. Atomie Energy Comm'n, 476 F.2d at 927.
1 A review of the legislative history of the 1962 amend-ments to section 189(a)-by which the last two sentences of the section were added-also firmly persuades us that the Brooks court properly construed the last sentence of section 189(a). That history demonstrates that the 1962 amendments to section 189(a) had their origin in congres-sional concern over a hearing requirement in uncontested
- cases-that is, when a hearing had not been requested.85 y
L Representative of that concern was the statement by 1
not occur, however, in the instant case. Although petitioners did i
not formally request a hearing prior to issuance of the OTML, j
their prior expressions of interest constituted in effect a re-quest for a hearing. See note 25 igra. It is also unclear whether the " paradoxical result" will ever in fact occur. As the NRC l
conceded at oral argument, there may be some type of notice requirement-although perhaps not 30 days' notice and publica-tion in the Federal Register-implicit in the opportunity to seek 7
judicial review of determinations of "no significant hazards i
consideration." Moreover, our decision today does not reach the
. question whether some notice of the NRC's intention to amend a license is required under the due process clause of the.Four-teenth Amendment or the Administrative ?rocedure Act not-withstanding a finding of"no significant hazards consideration."
82Indeed, counsel for Metropolitan Edison testified in 1961 before the Joint Committee on Atomic Energy and argued for i
retention of a hearing requirement when a hearing has been re-quested:
I hope that this committee will seriously consider repeal of the mandatory hearing requirements of section 189(a),
leaving intact, of coune, the provisions for a hearing at the request of any penon whose interest may be affected by the licensing proceeJings.
Radiation Safety and Regulation: Hearings Before the Joint Comm. on Atomic Energy,87th Cong.,1st Sess. 266 (1961)(tes-l timony of George F. Trowbridge).
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spokesperson,,thatRaoul Berger serving as an Ame i
i 14 out of 15 of [the Atomic Energy Commission's]
cases have been uncontested. And the central prob-i lem appears to be whether trial-type proceedings should be employed under sections 7 and 8 of the Ad-ministrative Procedures [ sic] Act in uncontested 1
CGoes....
AEC Regulatory Problems: Hearings on H.R.12336 and S. 3491 Before the Subcomm. on Legislation of the Joint Comm. on Atomic Energy,87th Cong.,2d Sess. 64 (1962)
J (statement of Raoul Berger)(emphasis added).88 Accord, ti e.g., id. at 32 (statement of Herzel H.E. Plaine, Chairman, Special Comm. on Atomic Energy Law, ABA). Thus an interpretation of section 189(a) that would permit the NRC to issue a contested license amendaent withou hearing would enlarge section 189(a) beyond the scope originally intended.88 88In response the staff counsel to the Joint Committee noted:
Mr. Berger, I think you are absolutely correct that the difficulty, the background that led to the Joint Committee study and the bills, was the concern over the handling by AEC of uncontested cases....
AEC Regulatory Problems: Hearings on H.R.12336 and S. 3491 Before the Subcomm. on Legislation of the Joint Comm. on Atomic Energy, 87th Cong., 2d Sess. 70 (1962) (remarks of David Toll).
881n support of its interpretation of i 189(a) the NRC quotes from a letter written in 1961 by former AEC Commissioner L.K. Olson to the Joint Committee on Atomic Energy, re-printed in Staff of the Joint Comm. on Atomic Energy, 87th Cong.,1st Sess., Improving the Regulatory Process, Vol. II, at 578-87 (Comm. Print 1961). The quoted portions of the letter suggest, in ambiguous terms, that the Commissioner was of the view that the AEC should be able to dispense with hearings on license amendments upon a finding that "no substantial new safety questions" are presented. See Reply Brief for Re-spondent Nuclear Regulatory Commission at 9. Even if Com-
~~~'-
eeumw @ 6.eme e 4
18 The 1962 Report of 'the Joint Committee on Atomic
~
Energy also suggests that Congress perceived the changes i
to section 189(a) as permitting the NRC to dispense only j
with notice and publication-not a hearing-upon a find-i b
ing of "no significant hazards consideration":
in the absence of a requestfor a hearing, issuance of
.I an amendment to a construction permit, or issuance of ij an operatin ing license,g license, or an amendment to an operat-
.i would be possible without formai pro-
.j ceedings, but on the public record....
3 j
Finally, it is expected that the authority given AEC to dispense with notice and publication would be exercised with great care and only in those in-stances where the application presented no significant hazards consideration.
H.R. Rep. No. 1966,87th Cong.,2d Sess. 8 (1962); S. Rep.
No.1677,87th Cong.,2d Sess. 8 (1962) (emphasis added).
And in a committee hearing one year prior, the Joint Committee on Atomic Energy had noted:
I i
When no substantial safety question is involved in
... the amendment... the public interest would be protected by... publication of an apt notice in the Federal Register (**3 and the giving of an opportunity to any interested party to interrene....
^
missioner Olson intended his comments to apply to contested matters, it is clear from the rest of the legislative history that 1
l Congress did not share the Commissioner's view.
- It is not entirely clear what the Committee meant by the phrase " publication of an apt notice in the Federal Register."
Presumably it only refers to publication of the amendment after tAs Commission has issued it. This is not inconsistent with the i
fourth sentence of i 189(a), adopted in 1962, which dispenses l
with 30 days' notice and publication in the Federal Register of the Commission's intent to issue a license amendment without a hearing.
This ambiguity in the quoted language is not unique in the context of i 189(a). The text and legislative history of the sec-b i
-9,,
.., _....... - -. - = * * = = = " * * -
- m 4
i 19
~
Staff of the Joint Comm. on Atomic Energy,87th Cong.,
1 1st Sess., Improving the Regulatory Process, Vol. II, at 49-50 (Comm. Print 1961) (emphasis added). The language of the reports, consonant with the plain meaning of section 189(a), thus indicates that the section only permits the NRC to issue a license amendment without a hearing when there has been no hearing request.**
Statements by Representative Holifield, Chairman of j
the Joint Committee on Atomic Energy, and Senator d
Pastore, Vice-Chairman, on the floors of their respective j
houses further reinforce the language in the reports. Both individuals explicitly stated that the " amendment [to sec-tion 189(a)] in no way limits the right of an interested 4
party to intervene and request a hearing at sc 'e later stage, nor does it affect the right of the Commission to hold a hearing on its own motion." 108 Cong. Rec.16,54S (1962) (remarks of Rep. Holifield); see id. at 15,746 (re-marks of Sen. Pastore). The interpretation that the NRC tion are replete with ambiguities and inconsistencies. Cf. note 20 supra. But there is no ambiguity in the legislative history or the text of i 189(a) with respect to the question before this court-whether a finding of"no significant hazards considers-tion" permits the NRC to dispense with a hearing.
- Whether petitioners did in fact request a hearing was not argued by the parties. While respondent United States suggests in a footnote that "li]t is not wholly clear that petitioners did make such a request," Memorandum of Respondent United States at 6 n.2, we are convinced that the petitioners requested a hearing. In Brooks v. Atomic Energy Comm'n, 476 F.2d 924, 926 (D.C. Cir.1973) (per curiam), this court held that expres.
sions oflaterest may be sufficient to constitute a request for a I
hearing. In the instant case petitioners' continued interest in-
.)
and opposition to-the actions of the NRC at TMI-2 clearly constituted a request for a hearing. Indeed, the petitioners were among the many that submitted comments in April-May 1980 to
. i the NRC regarding the Commission's Environmental Assess-ment for Decontamination of the Three Mile Island Unit 2 Rese-ter Building Atmosphere. See text at notes 5-6 supra.
t
.S 7
P
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s.,
2 :
.~,j 20 and the public utilities press upon n's,88 however, would
" limit [] the right of an interested party to intervene and request a hearing."
l In sum, we are confident that Brooks was properly de-cided and that it dictates the construction that must be attached to the last sentence of section 189(a). Because the NRC's finding of"no significant ha:ards consideration" did 1
not entitle the Commission to dispense with a requested
}
hearing prior to issuance of the OTML, we hold that its
- {
/l
- As part of their argument the NRC and the publie utilities contend that the NRC, and the Atomic Energy Commission prior to the creation of the NRC, consistently interpreted the section as permitting license amendments to be issued without a hearing upon a finding of"no significant hazards consideration."
See 10 C.F.R. I 2.105(a)(3) (1950); id. I 50.55(b); id. I 50.59(c)
(1963); 45 Fed. Reg. 42,908 (1980); 45 Fed. Reg. 20,491-92 (1980); 43 Fed. Reg. 13,938 (1978); 41 Fed. Reg. 10,452-83 (1976); 40 Fed. Reg. 18,231 (1975); 39 Fed. Reg. 10,554 (1974);
39 Fed. Reg. 1,875-76 (1974); 27 Fed. Reg. 12,184 (1962);
Consumers Power Co., 7 A.E.C. 297 (1974); General Electric Co.,1 A.E.C. 541 (1960). Even if the history of regulations and administrative practice by the AEC and the NRC were unambiguous-which we do not think it is-deference to the j
agencies' interpretations would be inappropriate in this case. As we have indicated, the statute and legislative history are in our i
i view unambiguous: a finding of "no significant hazards consid-erstion" does not permit the NRC to dispense with a hearing.
As the Supreme Court has noted, "[A}dministrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction." Norwegian Nitrogen Prod.
l sets Co. v. United States, 288 U.S. 294,315 (1933).
j It is also worth noting that because of today's decision the NRC will not be able to put into effect a regulation proposed e
l earlier this year that would explicitly permit the NRC to dis-
}
pense with hearings on license amendments upon a finding of "no significant hazards consideration." See 45 Fed. Reg.
20,491-92 (1980). Such a regulation would be clearly inconsist-ent with the congressional mandate in i 189(a).
r
.O 21
~
j failure to provide a hearing violated section 189(a) of the
-l Atomic Energy Act.
t IV. THE NRC's MEMORMDtJM MD ORDER l
The second order issued by the NRC on June 12, 1980, entitled " Memorandum and Order" (Venting Order), au-i thorized Metropolitan Edison to vent the atmosphere of the reactor containment building. Respondents argue that section 189(a) did not require a hearing with respect to the Venting Order because t' he order was not a license 1
amendment. We reject respondents' description of the order and find that se j
and, as a consequence,ction 189(a) was indeed applicab hearing on the Venting Order.that petitioners were entitle Section 189(a), quoted in pertinent part in note 2 supra, requires that a hearing be given upon request "[i]n any proceeding under this chapter, for the granting, suspend-Ing, revoking, or amending of any license or construction permit." 42 U.S.C. I 2239(a)(1976). Respondents maintain that because the Venting Order merely lifted a prior sus-pension of the licensee's authority to vent, and did not au-thorize release of a greater amount of radioactive gas than was permitted by the original technical specifications of the operating license, it was not a license amendment.
However, on the facts here, this characterization of the Venting Order appears to be nothing more than an after-the-fact rationalization, which finds no support in the ree-ord of this case.
The NRC's July 20,1979 " Order for Modification of License" suspended Metropolitan Edison's authority to operate TMI-2 and directed the licensee to " maintain the q
facility in a shutdown condition in accordance with the ap-
]
proved operating and contingency procedures." 44 Fed.
1 Reg. 45,271 (1979). In a second order, dated Februar/11, 1980, the NRC recognized that TMI-2's operating license did not permit venting as part of a cleanup operation be.
cause the license specifications pertained only to normal
]
operation of the facility:
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[I]n the present post-accident status of the facility, the license itself does not include explicit provisions or Technical Specifications for assuring the continued maintenance of the plant in a safe, stable condition or i
for coping with foreseeable off-normal conditions.
-j Moreover, certain portions of the facility's operating license relate to or govern power operation of the j
facility, the authority for which was suspended by the
.4 Order of July 20, 1979. These provistons are note simply inapplicable to the facility in its present
}
post-accident condition.
45 Fed. Reg. 11,282 (1980) (emphasis added). The NRC concluded that "the facility's operating license should be 1
modified so as to:... [p]rohibit venting or purging...
until... approved by the NRC." Id. (emphasis added).
L There is no indication thx this order was intended or perceived as a mere susp, asion of the licensee's existing authority to vent. In February 1950, it appeared that adequate venting of the reactor building might not be pos-sible under the existing license authority. Consequently, the NRC acted to modify-and thus amend-the TMI-2 license in order to regulate the plant in an "off-normal" condition and to facilitate whatever venting scheme might be determined to be necessary. By its very terms, the 1
I February 11, 1980 order was a license amendment in-tended to reflect TMI-2's post-accident condition. Given i
that the origind operating license was inapplicable, the NRC could not simply rely on its terms as authority for the venting. Authority for venting-in this case the June 12 Venting Order-therefore had to come in the form of a license amendment.
I The specific language of the June 12 Venting Order fur-
}
ther corroborates our interpretation of that order as a j
license amendment. In the Venting Order, the NRC noted l
that TMI-2 was being operated according to the provisions
~
l of the February 11,1980 order, see Venting Order at 10, reprinted in App.134, and the Venting Order did nothing to change that. TMI-2's operating license was not simply b
a-y 1
l n
1l "unsuspended" by the Venting Order. Instead, in the l
words of the NRC, "[i]n the present order we give the j
approval contemplated by [the February 11] restriction in-l sofar as necessary for the licensee to conduct a purging of the TMI-2 containment." Id. at 11, reprinted in App.135.
1 Nowhere does the Venting Order suppoit respondents'
_]
characterization of it as a reinstatement of some pre-d existing authority. Rather, the Venting Order appears as
- i an amendment to the February 11 amendment to TMI-2's 1
operating license. Because the June 12 Venting Order
'}
' modified the February 11 order, and granted the licensee authority to do something that it otherwise could not have done under the existing license authority, the Venting Order was a license amendment within the scope of section 189(a).
Our reading of the Venting Order is also supported b'y Congress' intent in enacting section 189(a). By requiring a hearing upon request whenever a license is " grant [ed),
suspend [ed], revok[ed), or amend [ed)," Congress appar-ently contemplated that interested parties would be able to intervene before any significant change in the operation of a nuclear facility. Whatever the Venting Order is called, it certainly was such a change.
As we held in Section III of this opinion, the NRC is
' i required under section 189(a) to hold a hearing on a license I
amendment whenever interested parties request one.st Petitioners did so in this case, see note 25 supra, and the j
NRC therefore acted unlawfully in refusing to hold a hearing on the Venting Order.88 i
8'We note that the NRC and the public utilities briefly argued t
that a full adjudicatory hearing was not required here. See Brief for Respondent Nuclear Regulatory Commission at 32-34; Brief
.i for Intervenor-Respondents at 44-45. Because this question was not fully briefed and argued by the parties, we express no opin-ion on the precise nature of the hearing required by i 189(a).
seRespondent United States argued that petitioners re-l quested a hearing, as provided for in the OT3!L, and then failed I
i 1
1 I
i
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L j
A 24 l
l V. CoNCLtJSION 1
j Because the NRC's actions in this case are " capable of i
2 repetition yet, evading review," the issues presented by J
petitioners are not moot. We hold that under section l
189(a) the NRC is required to hold a hearing on license i
amendments whenever interested parties request one. Fi.
l nally, we hold that the June 12 Venting Order, which au.
thorized the NRC to release radioactive gas from the dis.
e abled nuclear reactor, was a license amendment subject to the hearing requirements of section 189(a). Because the petitioners requested a hearing on the two June 12 license amendments, they were entitled to a hearing under sec.
tion 189(a). The NRC's refusal to hold a hearing violated the petitioners' statutory rights.
to exhaust their adr'ninistrative remedies by withdrawing their L
motion. The intended scope of that hearing and the facts sur.
rounding the withdrawal are somewhat muddled by the record.
What is clear, however, is that the offer of a hearing was made only in the OTML and not in the Venting Order. Pnsumably, then, petitioners would have been able to challenge only the license amendment substituting off-site dosage limits for release
, limits and not the actual decision to vent. Moreover, any hear.
Ing was to revolve around the issues whether the license amendment was in the public interest and whether it should be sustained. See App.123. It appears from this description that petitioners would not have been perrr.itted to raise their argu.
ments regarding the NRC's interpntation of i 189(a), which j
formed the basis of this suit. Finally, the Commission specif.
leally provided that a request for a hearing would not stay the effectiveness of the order. See id. But i 189(a) requind a hear.
Ing upon request on the Venting Order before it went into ef.
fact; a hearing after the venting had been completed would not have satisfied the statute's requimment. For all these masons, the remedy that petitioners allegedly failed to exhaust was an Inadequate one and thenfon need not have been pursued. See McNane v. Board of Edue., 373 U.S. 668, 674-76 (1963); Union I
1 Pac. R.R. Co. v. Board of County Comm'rs, 247 U.S.
282 (1918).
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Notice: This opinion is subject to formal revision befare publication in the Federal Reporter or U.S. App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.
{
E'hlltilcD htics (0111*l Of hppC21ls FOR THE DISTRICT OF COLU5tBIA CIRCUIT No. 80-1691 l
STEVEN SHOLLY and DONALD E. HOSSLER, PETITIONERS v.
UNITED STATES NUCLEAR REGULATORY C031511SSION et al. and UNITED STATES OF A5 ten!CA, RESPONDENTS SIETROPOLITAN EDISON C05tPANY et al., INTERVENGRS s
No. 80-1783 PEOPLE AGAINST NUCLEAR ENERGY, PETITIONER v.
UNITED STATES NUCLEAR REGULATORY C051511SSION; JOHN AHEARNE, VICTOR GILINSKY, RICIIARD T.
KENNEDY, JOSEPH 51. HENDRIE, and PETER A.
BRADFORD, in Their Individual Ccpacities; and THE UNITED STATES OF A5! ERICA, RESPONDENTS 31ETROPOLITAN EDISON COh!PANY, JERSEY POWER &
LIGHT C051PANY, and PENNSYLVANIA ELECTRIC C05f PANY, INTERVENORS l
r
.,s, I
j II Bills of costs must ba filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
L
2 No. 30-1734 IN RE: PEOPLE AGAINST Nt: CLEAR ENERGY. PETITIONER Petitions for Review of ()rders of the United States Nuclear Regulatory Commission and for Writ of 31andamus Argued September 8 1930 Decided November 19,1930 Rohrrt Haver. with s hom thirur i P S h.. h a,. s us on the brief. for petitii.ners Ste phe r E,lp, r, n So hcit o r. l'nited St ates Nuclear l
Regulatory Commission. with w hom E L, o Slay,v,. A t.
l torney. I'nited States Nuclear Regulatory Comnu% ion.
was on the brief. for respondent United States N uclear Regulatory Commission.
Da r al A S t ro " x x. Attorney. Depart ment of J u-tice with whom Jo,"rs A..\\f oo rrno n. Assistant Attorney (;en-eral, and l'eter R St+ r"/o rol. Jr A ttorney. Department of Justice, were on the brief, for respondent I'mted States of America. Sta nt oral Sagalk n and la s Sc h, r t. r.
A t t o r-neys, Departmer',f Justice also entered appearances for respondent United State < of America.
.\\ta rk A ag+ n blo ck, wit h v. hom G, o rg, F 7'roahrolgo and 3fotiox F Tranrun-D,o: were on t he brief. for int er-venors. Roh, et E Zoll, r also entered an appearance fo r intervenors Before W RIG H T.
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PER CURIAM: In this case petitioners seek review of two orders by the Nuclear Regulatory Commission (NRC)
ETITIONER permitting the Metropolitan Edison Company to release radioactive gas into the atmosphere from the Three 5 tile Island nuclear plant.1 The claim here is that the orders issued by the NRC were made effective without affording
+
petitioners their statutory rights to notice and a hearing.8 ssion On June 26, 1980, this court denied petitioners
- request i
for emergency injunctive relief to block the release of the radioactive gas. Now that the radioactive gas from the nu-clear plant has been fully vented into the atmosphere, the petitioners seek only declaratory relief from this court.
e
$51etropolitan Edison Co., Pennsylvania Electric Co., and Jersey Central Power and Light Co. jointly hold the operating license to the Three Stile Island nuclear plant. In this opinion they are called collectively either "the licensee" or "5fetropoli-U.
r,t was on tan Edison."
s Nuclear
- The petitioners primarily rely on i 189(a) of the Atomic ggie, At-Energy Act of 1954, 42 U.S.C. I 2239(a) (1976), as amended in mmission' 1957, Pub. L. No.85-256, 6 7, 71 Stat. 579 (1957), and in 1962, s Nuclear Pub. L. No.87-615, i 2, 76 Stat. 409 (1962). Section 189(a) reads.m pertinent part as follows:
3 v
if Justice, In any proceeding, under this chapter, for the granting,
?
rney Gen-suspending, revoking, or amending of any license... the Commission shall grant a hearing upon the request of any T
.1 epartment Person whose interest may be affected by the proceeding, ted States y
and shall admit any such person as a party to such pro-1 rr, A t tor-ceeding. The Commission shall hold a hearing after thirty
.I rances for days' notice and publication once in the Federal Register, t
on each application... for a construction permit for a facility.... iTlhe Commission may, in the absence of a
/
rowbridge request therefor by any person whose interest may be af-1 f r inMr-fected, issue... an amendment to an operating h,eense trance for w thout a hearing, but upon thirty days' notice and publi-cation once in the Federal Register of its intent to do so.
The Comuission may dispense with such thirty days' KVA and notice anil publication with respect to any application for 3
an amendment to an operating b,eense upon a determi-nation by the Commission that the amendment involves no 9
significant hazards consideration.
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1 BwxGRot3D This case arises in the aftermath of a widel,s pubhcued 3
accalent that occurred on March 2s 1979 at Tnit 2" of t he Three Mile Island nuclear plant. As a result of the acci
, lent. dangerous concentrations of radioactis e gas collected m the reactor containment build:ng, inhibiting cleanup atol maintenance work Three months after the acci le nt the N it( ' i--ued an "t irder for Modification of Licen-e.
41 fed I? c e 11271 il9791 suspending Metropohtan Edison's aut hor:t.s t o op-erate l~ nit 2 of the Thr e Mile 131and plan' i T M I-2 ' and in a -hutdow n condt-reqmrme it to "maintam the faciht.s
' lu n I,i 3 The N RC order mdicated ihat. m ab"u t t hirt.s days the Commiri,n w ouhi irue a "Safet s E s alua' 'n addrerlile "the imposition of new and or res i-ed Technica!
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N os ember 21.1979. t he NIO ~ is<ued a 'Nt atement of Poi-and Notice of Intent to Prepare a Pr..erammai n En
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act is ilIP-anal a Wht"lu}t' f.,r t heir ci >m } >!et i..it al,ng w it h a <l t-<'u--i.> n < > f alt e rnat is es c< in s tile re 1 a t sl
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blicized On February 11, 1980, the NRC issued another order,
'ofthe 45 Fed. Reg. 11,282 (1980), which stated that te acci-the facility's operating license should be modified so ellected as to:... (3) Prohibit venting or purging or other
.up and treatmer.t of the reactor building atmosphere...
until each of these activities has been approved by the NRC, consistent with the Commission's Statement of j 8"
"[j'3 Policy and Notice of Intent to Prepare a Programma-tie Environmental Impact Statement.
to op-Id.*
2), and Six weeks later the NRC published a notice of the condi.
thirty
" Availability of Environmental Assessment for Decon-tamination of the Three Mile Island Unit 2 Reactor Build-sation" t hnical ing Atmosphere," 45 Fed. Reg. 20,265 (1980). The notice stated that the Assessment " considers five alternative t ondi-methods for decontaminating the reactor building atmos-phere and recommends that the building atmosphere be ad,on decontaminated by purging to the environment through or poi, the building's hydrogen control system." Id.S The NRC ic En.
staff concluded in the Assessment that venting the gas
,;7,73g into the atmosphere would "not constitute a significant
- elecon, L
ement
- The February 11, 1980 order specified that any interested person or the licensee could request a hearing before March 21, mpact
, sal of 1980 on whether the proposed changes in the technical specifica-tions would be sufficient "to protect health and safety or to
'anned minimize danger to life and property" or "whether the provi-along sions of this Order would significantly affect the quality of the id the human environment." Id. at 11,283. The order also provided, however, that a request for a hearing on part (3) of the order l
would not stay the effectiveness of the order. Id.
- The NRC desired to remove the radioactive gas from the tained reactor building so that workers could begin to clean the build-i I C ""
ing, maintain the equipment, and prepare to remove the dam-
?
niding aged fuel from the reactor core. Removing the radioacti re gas from the reactor containment building was only the first step in rven-an extensive cleanup.
i 6
ensironmental impact and, accordingly, the staff doe 3 not propose to prepare a separate Environmental Impact Statement on this action. Id at 20.265-66. Public com ments on the Assessment originally were due by April 11.
1930, but the period was extended to May 16.19% 43 Fed. Reg 30,76u i 1930t in Slay of 1930, the NRC issued the ' Final Environmen-tal Assessment for Decontamination of the Three Stile Is-land Unit 2 Reactor Building Atmosphere. On June 12.
1980, the N RC issued without a hearing two final orders.
entitled " Order for Temporary Modification of I.icense and ' Memorandum and Order, App 119 and 125. respec-tively. Tne first order modified the operatmg licen-e*
to permit the licensee to release the radioactis e gas from the reactor buildmg at a faster rate than the e xisting specifi-cations allow ed 7 The first order also expre 313 stated that, because the NRC had found that the modificat;o of the operating license ms ols ed "no sigmftcant hazard > < on-sideration, requests for a hearing w ould not stay t he im.
plbmentation of the order. App 121-23 " The second order
" A part of it s argament. t he N it ( ' contends that t he ecor.d order, permittmg purgmg. was not a heen3e amendment flow ever, the Nit (' admits that the first order amended the TMl-2 i
operating licen-e
' Before the accident of March 23. 1979, t he TM I-2 opera' irs license authorized periodic relea<e of specified amount-
.t radioactis e gas into the at mosphere as a normal arui nece-sar:,
part of plant operation-
- part of the basis for the ('ommission3 determinatlor of "no N gr.ifican t hazards consnieration" w as its conclu-ion t hat. al though exisung o non rate hmit-w ould be e xceeded. off--i'c do<e hmits would not be breached Since the N it("- corn ern w a-the effect of t he venting on human healt h. t he ('ommi-ion fel' that the more direct mea <ure -off+ite do e hnut 3 - w ould pro s ide a satisfactory <tandard to determme the appropr at e lumt-on the s enting of t he radioactis e gas m.:
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.es not authorized release of radioactive gas from the reactor mpact building.' Venting was to begin on June 22.50 C C "-
On June 16, petitioners wrote a btter to the NRC re-P.I II m0. 4a,'
questing that it reconsider its finding of "no significant hazards consideration" and its decision to make the June 12 orders effective immediately. The NRC did not re-enmen-spond.
(
life Is-On June 23, petitioners filed a petition in this court for L
ne 12, review of the two June 12 orders." Three days later this
>rders court denied the petitioners' requests for emergency in-C*"8e, junctive and declaratory relief. The next day, one day be-
'espec-fore the venting began, the petitioners filed a request for a ise' t r
h' earing with the NRC on the two June 12 orders. The im the hearing request was referred to an Atomic Safety and Li-1
- pecifi-censing Board. On July 3, the petitioners moved the Board L
stated to suspend the venting; however, this request was sub-tion of sequently withdrawn, on July 8, shortly before the venting I8 C "'
was completed.
m he im-E 1 order
.iletropolitan Edison began to vent the reactor building r
on June 28, 1980, at a rate that was within the original i
license specifications for a normally operating reactor. On July 8, the licensee began to vent the radioactive gas at a j
see nd faster rate, pursuant to the specifications set in the June
}
.How-
[
.The NRC made no finding that this order involved "no sig-f 5
nificant hazards consideration." See Brief for Respondent Nu-
?
h erating clear Regulatory Commission at 30,35.
ints of L_
ioBy making the orders effective immediately, the Commis-assary sion failed to give any notice in the Federal Register of the 7
license amendment. Tht Commission contends that so long as it F
of "no makes a finding of "no significant hazards consideration," the a
F tat, al-governing statute does not impose such a notice requirement.
off-site See note 2 supra for statutory notice and hearing requirement-rn was L
i'On July 8,1980, a petition for review (No. 80-1783) and w,
. P i<;n felt accompanying petition for writ of mandamus (No. 801784) were ild pro-filed in the Third Circuit. On the NRC's motion, those cases i
r limits were transferred to this court and consolidated for review with No. 80-1691, the case originally filed in this court.
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8 12 license amendment. The venting was completed on luly
- 11. As the NRU had anticipated, the off-site dose.- from the venting were below the hmits 3et in the June 12 radia-tion license amendment. In its draft Programmatic En-vironmental Report Statement, issued August 14, l e o.
the Commission stated that it did not anticipate a recur-rence of the purging of the reactor buildmg atmosphere.
but that some minor releases of gas might be necessary for data gathering purposes S,,
Brief for Respondent Nu-clear Regulatory Commission at 6 n 4 & 20 n.11 II. 3100TNESS Because the licensee has completed the venting of the reactor containment building, and because both of t he June 12 orders have expired, the Commission and t he licensee claim that petitioners' claims for injunctn e and declaratory relief are moot. 2 However. because w e find that these cases are " capable of repetition, yet a ading re-view, ' 3 we hold that the petitioners' claims are ju,tici-able in this court."
2 51etropohtan Edison seems to argue that <irce omtioners claims for injunctive relief are moot (i.e the reactor buiMing atmosphere has been purgedi the case should be dismi-3ed This argument. how ever, misstates the nature of the re he f sought by petitmners. They have sought both injunctive and de-claratory relief in this action. Although petitioners cannot now obtain injunctive relief to pres ent the purging they continue to pursue their claim for a declaratory judgment that the N R('
must grant them statutorily mandated notice and a hearing whenever it amends a license. S,,,, y S o p, r T, r, E o n. i., r, q fo McCorkle. 416 C S.115 (1974 > < the Court found that es en though the strike had been settled, mooting irynctive rehef the petitioner alleged sufficient facts in support of declaratory rehef so that the case should not be dismissed as moot >
See Saa thern Pac Terno nal Co (n t, raa r, t 'o noo e rc, v
Co m m 'v. 219 U. S. 498 515 (1911 L "We note that the United States has taken the position that the petitioners' claims are " capable of repetition' -m ce the
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ed on July ases from The mootness doctrine is primarily based on article 111 j
12 radia-of the United States Constitution, which limits federal natic En.
court jurisdiction to " cases" or "controverries." Courts 7
14, 1980, have interpreted the constitutional provision to limit their j
e a recur-jurisdiction to "a present, live controversy of the kind that
- nosphere, must exist if we are to avoid advisory opinions on abstract 4
3 essary for propositions of law." Hall c. Beals, 396 U.S. 45,48 (1969).
ident Nu-The case or controversy requirement " preserves the sep-aration of powers" and "' limit [s] the business of federal m.'
courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" Tennessee Gas Pipeline ing of the C. v. Federal Power Comm*n, 606 F.2d 1373,1379 (D.C.
ith of the Cir.1979) (quoting Flast v. Cohen, 392 U.S. 83, 95
'3 n and the (1968)).
L tetive and 2
4e we find vading re-
.re justici.
Commission has stated that it will continue to deny requested hearings when it finds no significant hazards considerations are involved-but that future claims will not evade review-since
~
"there is no reason to believe that iNRC) actions will charac-i " ',
~
lj'rb1 din teristically be irreversible." Memorandum of Respondent g-United States at 4. Consequently, the United States also argues
?
dismissed that the petitions should be dismissed as moot.
I the relief
- ive and de-We reject the Government's position for two reasons. First, as we explain in the text of the opinion, many NRC license cannot now s
amendments are irreversible. The facts in the present case illus-continue to L
t the NRC trate how making an amendment effective immediately can pre-7 I a hearing clude complete judicial review. Second, we believe that it is un-l lngineering reasonable for the Government to take the position that, in id that even order to seek judicial review of a license amendment, a 3
- tive relief, petitioner must race to the courthouse before the NRC takes an
?
declaratory irreversible action. Even if a petitioner could file the petition r/
^
before the NRC acted, a court more often than not will decline 4
ot).
to grant emergency relief. Indeed, such a request for emer-gency relief was denied in this case. Consequently, because a
['
petitioner will not receive complete judicial review of his claim,
.osition that even though it might be meritorious, we find that these claims e
-since the evade review.
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10 Case 3 arisme from agency act'on. n< !c-- t han case-voh me only prn ate parties, are subjet t t the mootne--
d< etrme Yet. as this court has recently noted. "t!.e c. n-cept of mootness is placed under some st ram m t h: context of administrative orders w hose formal legal effect 13 F.,', o '
spu cally shortlived T. r, io s s., Gox l'o.,/,,o e'
l'o a e r ( 'o m,,
606 F 2d at 1379 wo The 3t rain i-re-lieved some hat by an exception fir t articulated in So, t h, r ri I ac T, r rr,, n a ! t '
f r. t s a t, tbo 1,. r, r
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219 U S. 493 (1911 >. w here t he Supreme ('ourt held that techmcally moot cases are ju3tienib!c if t hc3 n~
s oh e "short term orders. capable of ropeti'imn. 3 ct e, ad-ine review I,! a t.; 1.1 A ca3e 13 considere. J u 3t icia ble if the h tear * -r m -
the existence of an immediate and definite cos err.me r
.o action or polic3 that has ad s er3cly affected and c"r.'.r. w-to affect a present mterest S ".., T r.
6,/., o, r,,1 <
.11, ( ' o rk /,. 416 U. S.
11.3. 12.5-26 (1974i A-t his ca-c demonstrate. administratn e order. hke labor m-put e3
.lten "do not last long enough for complete judicial res wu of the contros erries t h e:, engender The iudwtar, must not close the door to the resolution of t he impurtar t quesnons these concrete dispute 3 present
/,/ at 12f,- 2 7 Yet. in order to mvoke t he So, th e rn l'o,
'o except "n the petitioner must not only <how that "t he cha!!cr.ec ! ac-tion w a m its duration too -hort to be fully hticated prior to itc ce sation or expiration. he mu t also -how t hat "there w as a reasonable expectation that t he same c o m --
plaining party w ould be subjected to the same actimn again.
W,, e s t,.,,
B rn,lt o r,! 423 U. S. 14 7. 14 9 i l 97.~o.
The issue in the present ca3e is not simply w hether :he N R(' will agair purge the reactor buildirg at mo-phere without first givine notice and hokhne a hearing A * -take is w hether the NRC will contmue its pohey of makmg mo mediatek effective bcense amendments without hohhne a hearmg. even though petitioners req uest one, wheneser the NRC fmds that the amendment ins ok es "no 3ier.:fe cant hazard 3 consideration
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4 11 cases in-Under this view of the issues in this case, the conditions nootness the con-for avoiding dismissal an grounds of mootness, set forth in
. context Weinstein, are met. The Commission has candidly con-t is typi-ceded that 6
Foleral at some point in the T311-2 cleanup, perhaps on more in is re-than one occasion, the Commission will amend the lated in utility's license in respects so minor that the Commis-i sion will think itself justified in making the amend-mmerce ie Court ment immediately effective based upon a no signifi-cant hazards consideration finding. Certainly, that they in.
kind of finding has been utilized in the past.
et evad, Brief for Respondent Nuclear Regulatory Commission at i
23.55 The Commission plainly intends to adhere to its pol-show[s]
icy of denying a hearing on a license amendment, under
.nmental certain circumstances, even though mterested parties spe-
~
ontinues cifically request a hearing, The chances of recurrence are
..;,y' cy, more than speculative; because the NRC policy will be 3
his case carried out during the T311-2 cleanup, there is a " reason-j
- isputes, able expectation that the same complaining part[ies)" will M,
l review udiciary sportant 126-27.
85This admission entirely undercuts Metropolitan Edison's j
- eeption, argument that there is no evidence that the actions complained 3
>ged ac.
of will be repeated. In each of the cases cited in Metropolitan
{
Edison's brief, the challenged governmental activity had ceased
,y ed prior
^
with no indication that it would be continued at a later time.
sw that S"' '4" Vurph n Benson, 270 F.2d 419 (2d Cir.1959), cert.
denied, 362 U.S. 929 (1960). In the present case, by contrast, ne com-the NRC has clearly stated its intention to continue with its al-
,.1, a 1on
}g
)*
~
legedly unlawful conduct-making certain license amendments
-2.
' her the effective immediately without holding a requested hearing or
) sphere giving notice. We think it obvious that the NRC will also con-9 tt stake tinue to rely on the second method employed in this case for
- ing im-avoiding the notice and hearing requirements of i 189(a)-
,lding a describing an order as something other than a license amend-y ment. See note 6 supra. The Commission's continued belief in tenever its authority to follow this policy makes petitioners
- challenge to
.*ignifi-the policy " capable of repetition." See Nader v. Volpe, 475 F.2d P
916 (D.C. Cir.1973).
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12 be denied their alleged statutory right 3 to hearing and n< it 'ce.
A3 the pre 3ent case demonst rate. challenges to the N RC's policy of denying a hearmg on heense amendment 3 may w ell escape res tew The difficult.s here is t hat t he or-ders are often shorthved and the N RC actions, like s ent-ing, may be irreversible. The difficulty i-compounded w hen the N RC elec ts. as in this care to make it s orders effective immediately. The-e consiileration-irnhcate that future challenges to the N RC pohey ma.s easily "es ade re-v it'w.
This court ha- -tated that "It jhe -it uat io n-i m s i,is :':e appeMate con nleratis an < >f recurrent t.
"' r, s e r-it - are necessarily s ariant, and the variable 3 complex T. h.
court's decision to maintain the appea! in inc i n ' e re s' t
sour.d judicial admin 13t ratl<in. Is depcmlent iin a preilic' id.
of a recurrence iir ciintindatiiin of w hat is perce;s ed 'ii he essentially the <ame legal di.-put e.
Alt," x.C R o d ra s l'o In t. rn a t o v al A n ~ ~' ilo.i s
. ~
A, r, o.po r, Wo rk, e 463 }'.2d 372,
- 79 i [) ( ' ( 'ir 1972 s.
"While an 'effectis e remedy' for the.mmeiha'e dispute is not ohhgators t here must he at least a capaci'y f,>r a ilec-laratb>n inf leeal right concerning a fut ure pri ject ><,n af t he actual di3pute that precipit at ed t he lit leat li.n
/
a'
- 79 N I. In t he present case, t hat ca;iacity e xi-t - anit n e holtl that this ca3e 13 not mont Ill. THE ( PRDER FOR TF..th)R A RY Mt:DIFIF ATD iN OF l.!FENSE The NRU issued without a hearing the "t irder for Tem porary Modification of License' u >TM L > of. lune 12. 19-o.
w hich substituted off-site do-age hmit3 for release hnuts in the TM!-2 operat mg hee': 3e The pet:tioner-contend that the N R ( "- failure to pros nie a hearine s :oiated -ec tion lw9(a ) of the Atomic Energy Act of 19.34 Th. fir t sentence of t hat section pros ide-in rele s ant part -
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ing and in any proceeding under this chapter, for the granting, suspending, revoking, or amending of any to the license r construction permit... the Commission tdments shall grant a hearing upon the request of any person f
whose interest may be affected by the proceeding, the or-and shall admit any such person as a party to such ce vent-proceeding.
sounded
~
e orders The NRC and Metropolitan Edison do not dispute that the OTML constituted a license amendment subject to the ite that
.ade re-terms of section 189(a). They do maintain, however, that under the fourth sentence of the section the Commission could dispense with a hearing. The fourth (and last) sen-
.. v Irm.g
"*I ^#'
tence of section 189(a) reads:
f 1
.[T]he The Commission may dispense with such thirty days'
.Y rest of notice and publication with respect to any application
",liction for an amendment to a construction permit or an o to be amendment to an operating license upon a determina-i
.uthern tion by the Commission that the amendment involves O'8 E no significant hazards consideration.
The NRC and the licensee argue that the NRC properly 1972).
pute is made a fm' ding of "no significant hazards consideration" with respect to the OTML, and that consequently a hear-a dee-iofthe ng was not required. Although the last sentence of section
,i Id. at 189(a) only explicitly " dispense [s] with... thirty days' notice and publication" upon a determination of "no sig-j and we nificant hazards consideration," the NRC and the licensee d
't contend that such a determination also permits the Com-o mission to dispense with a hearing because notice and a f
hearing are inextricable.28 e
'4 r Tem-
"The petitioners, challenging the correctness of the "no sig-
,1980, nificant hazards consideration" determination, also contend that e
limits the SRC was required under the third sentence of i 189(a) to g
antend Provide 30 days' notice and publication in the Federal Register y
d see-of the Commission's inter,t to issue the license amendment with-
{
e first out a hearing. The third sentence provides that
'n the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an
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14 We are convinced that such a fin <hng did not permit the NRC to dn-pense with a hearing that 13 otheru ise required by section IM4 ai " This is not the first case in this circui' t
in w hich it has been areued that a fmdmg of"no significant hazards consideration" permits the N RC to issue a heense amendment w it hout a hearing. In B roob,
A t o,,.
E m rq ; ( ' o n oJ,, 476 F.2d 924. 926 ilt U Cir 1973,(p r ramt this court soundly rejected the contention that the fourt h.-entence in secnon 1*9t a ' mdicateld ! Congres-
~
sional intent to dispense with hearmgs in construction permit amendment proceedings u hen t he ('ommission determine 3 that the amendment ins oh es 'no sigmficant hazards consideration Instead this cou rt. after an T
examination of the leg:3!ative history of section 1-91 a.
=
held that the fourth -entence on)s d13penses wit h require-ments iif notice and pubhcat).in. Because t his circuit ha-presiously rejected the s ery con 3* ruction of section 1-9t a i offered by t he N RC and the b e e n s e e. "' the doctrme ut opera'mg !a en-e or an amendment
'o a cor. ' ruc' r n pe r mit or an amendment t.
an operanne heen-e w it t'.* a hearme but apon inirty da3 - nota e and pun i at on oo.
L in the Federai Ree;-ter of a mient 'o do so
( Emphasis added., Smce. however. we hold that the pe n t io ne rs requested a hearme.
1 ote 25
- ro, and t hat t he N R(' w a-required to hold a hearme w e need not reach the quesuon w hether the Commi3sion w as required to provide 3h da.si no' cc g
of it3 mient to issue the been-e amendment withou a hearme "It is noteworthy that respondent United State 3 concede -
in ieed argue--that the N R("< fa:i u re to pro s ide a hearme s iolated s 1-9'a. of the Atomic Energy Act S., Emorandum f
,f Respondent United States at 4-21 h
"' I t is t rue, of co u rse t hat 15 mo n t h-aft e r t he Rmos s deca sion this "our' stated in du tum m a fo.. note that 'a!n aniend-f ment can be made w ithout opport unit y for a hearmg if t he A E t '
dete emmes that it 'ir.v o k e 3 no sigm fica n t hazard 3 con >uiera E,,ry,
?
tion.
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o'
( ' o n c e r n, r! S.. v w t s A ro v
( ' on n, ' n. 499 f.2d 1069.10 4 n 36 ! D ('ir 1971-The court y
provided no support for its far-reachme statement nor di.i it
-w l-y
, n i
15 t the s f o n 'i, c, x, s-compels us to hold that the NRC improperly
. tired failed to provide a hearing in the instant case.
reuit Lreover even if this court were not bound by ston k
'ieant d, nsis, w e would still adopt the Brooks interpretation of ense the last sentence of section IMHat The plain language of i
,onc section 189(a) dispels any notion that by a finding of "no
( p< r sigmficant hazards consideration" the NRC may dispen: >
that with the hearing requirement. The fourth sentence makes gres-no mention of the hearing requirement's being lessened, etion but makes reference only to the requirements of notice t
ssion i
and publication. Despite the plain. unambiguous language
'icant contained in the last sentence. the NRC and Metropohtan r an Edison suggest that the requirements of hearing and 9(a).
4.
notice are so intertwined that the reference to notice in tuire-the fourth sentence must also comprehend a hearing.
.t has While it is true that requirements of notice and hearing 1 *9t a )
are interrelated. It is clear that Congress was not merging ne of them in section l>9'al That is demonstrated by the third i
sen ence of the section where Congress made explicit ref-n per-erence to the hearing requirement.
- That sentence plainly mut demonstrates that Congress did indeed intend to disen-n once taner the two requirements of notice and hearing.2" and i
tieners C w as even make mention of the recently decided Brooks case which
/
- estion had squarely held to the contrary on the basis of the legislatis e notice history of 4 lh9(a). We accordmgly decline to place any rehance tring.
on the dictum in Iboon at ('oncerned Srn nt,xts edes-
"For the text of the third sentence. xu note 16 sopra waring 2"We are cogmzant of the fact that the plain meanme of the andum third and fourth sentences of n IM9(a), w hen read together, pro-
~~
duces in theory a somewhat paradoxical result. Under the
, deci.
fou rt h sen te-the NRC may issue a license amendment with-imend.
out provid in g 30 days' notice and pubhcation in the Federal i
e AEC Register of its intent to do so, while under the third sentence
-id era-the NRC need not provide a hearmg w hen one has not been j
t
- ,, e rg y req uested As the NRC and the licensee note. it is difficult to
{
imagine how a hearing can be requested when the NRC issues a Jl e court r aid it license amendment without notice. This " paradoxical result" did t
i I
).-
a
_h
M r;
16 "to lessen the mandatory hearing requirement only when there was no request for a hearing.' B rooks n Atomic Ein rey Com m'n. 47ti F.2d at 927.
A review of the legislative history of the 1962 amend-ments to section 169ta)-by which the last two sentences of the section were added-also firmly persuades us that the Brooks court properly construed the last sentence of l
I section lo9ta). That history demonstrates that the 1962 amendments to section 169ta) had their origin in congres-sional concern over a hearing requirement in o " conte st, d cases-that is, when a hearing had not been requested.2i Representative of that concern w as the statement by not occur. however, in the mstant case. Although petitioners did not formally request a hearing prior to issuance of the OTML their prior expressions of interest constituted in effect a re-quest for a hearing. Se e note 25 Mro it is also unclear w hether the " paradoxical result" will ever in fact occur As the NRC conceded at oral argument, there may be some ;ype of notice requirement-elthough perhaps not 30 days' notice and publica-tion in the Federal Register-implicit m the opportunity to seek hazards judicial review of determinations of "no significant consideration? Morem er. our decision today does not reach the question whether some notice of the N RC's intention to amend a license is required under the due procen clause of the Four-teenth Amendment or the Admmistrative Procedure Act not-withstanding a finding of "no sigmficant hazards consideration."
21Indeed. counsel for Metropolitan Edison testified in 1961 before the Joint Committee on Atomic Energy and argued for retention of a hearing requirement when a hearing has been re-quested:
I hope that this committee wul seriously consider repeal of the mandatory hearmg requirements of section Is9 tai.
leaving mtact, of course. the provisions for a hearing at the request of any person whose interest may be affected by the licen.; r.g proceedir.gs.
Radiation Safety and Regulation-Hearmgs Before the Joint Comm. on Atomic Energy. ^7th Cong. Ist Sess. 266 ( 1961 ) ( te s-j timony of George F. Trow bridge).
_.t
.a._
7,.
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td r.
s 17 v
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Raoul Berger, serving as an American Bar Association en
,;c spokesperson, that 14 out of 15 of [the Atomic Energy Commission's]
'd-cases have been uncontested. And the central prob-4 lem appears to be whether trial-type proceedings should be employed under sections 7 and 8 of the Ad-
?
at j
ministrative Procedures [ sic] Act in uncontested of cases....
69,[
F AEC Regulatory Problems: Hearings on H.R.12336 and S. 3491 Before the Subcomm. on Legislation of the Joint 21 Comm. on Atomic Energy,87th Cong.,2d Sess. 64 (1962)
Y (statement of Raoul Berger) (emphasis added).22 Accord, y.
l e.g., id. at 32 (statement of Herzel H.E. Plaine, Chairman, eg; Special Comm. on Atomic Energy Law, ABA). Thus an h'
id interpretation of section 189(a) that would permit the L.
NRC to issue a contested license amendment without a j
4 hearing would enlarge section 189(a) beyond the scope riginally intended.22
)
C
.-/
- e r
a-l 88In response the staff counsel to the Joint Committee noted:
~
k Mr. Berger, I think you are absolutely correct that the 9y difficulty, the background that led to the Joint Committee study and the bills, was the concern over the handling by i1 AEC of uncontested cases....
i a
J, r-AEC Regulatory Problems: Hearings on H.R.12336 and S. 3491 t-Before the Subcomm. on Legislation of the Joint Comm. on J
d Atomic Energy, 87th Cong., 2d Sess. 70 (1962) (remarks of David Toll).
,1
- 1 r
281n support of its interpretation of i 189(a) the NRC quotes from a letter written in 1961 by former AEC Commissioner L.K. Olson to the Joint Committee on Atomic Energy, re-d Printed in Staff of the Joint Comm. on Atomic Energy, 87th Cong.,1st Sess., Improving the Regulatory Process, Vol. II, at t;
578-87 (Comm. Print 1961). The quoted portions of the letter f:4 e
e suggest, in ambiguous terms, that the Commissioner was of the
.-;p.,
view that the AEC should be able to dispense with hearings on y-l j
t license amendments upon a finding that "no substantial new Jr safety questions" are presented. See Reply Brief for Re-(
g.
spondent Nuclear Regulatory Commission at 9. Even if Com-
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The 1962 Report of the Joint Committee on Atomic Energy also suggests that Congress perceiv d the changes e
to section 1*ma) as permitting the NRC to dispense only 7
w ith notice and publication-not a hearine-upon a find-h ing of "no significant hazards consideration" lo the a bs, o ca or a regir st for a he a ri ng i3~.uance of i-an amendment to a construction permit, or issuance ot.
_2
___m an operating license, or an amendment to an operat-R ing license. would be possible w it hout formal pro-d p
ceeding<. but on the public record.
_]--
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_-_-g Finally. it is expected that tl, n ~ rl o r, t v v,"
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A l,l, to d > <p,r so unth roof re O nt!. p it,'I ?ra t 'u r n ussuld e
m be exercised with great care and only in thow in-M Z
stances w here the appheation presented no -leruficant
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nazards consideration.
V
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H.R. Rep No. 1966. *7th Cong 2d Ser. * < 1962 t S Rep.
_m No. 1677. 37t h Cone. 2d Sess. 3(1962) <emphasir added '
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And in a committee hearing one year prior, t he Jomt Committee on Atomic Energt had noted-i_
When no substantial safety question is ins olved in the amendment the public interest u ould be L
protected by publication of an apt notice in t he Federal Recister
- and t he en me of o " "pf e'",
N to o n y i n t, ro s ta d pa r? q to vie e', ne.
N~
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N missioner Ulson intended hi3 com me n t s to apply to co n t
.s te d matters. it is clear from the rest of the legislatn e hotors that PM Congre n did not share the ('ommioioneri view -
vg' e_-:
24 1: is not entirely clear w hat the Committee meant by the e
phrase " publication of an apt notice m the Federal Register '
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Presumably it only refers to publication of the amendment o", r od t This is not inconsistent w ith tbc M
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fourth sentence of 61*9'a t adopted in 1962, w hich disper <r -
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with 30 days' notice and publication m the Federal Register of a heense amendment wit t.<.t the Commission's, v t+ vt to
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a hearing-
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w-This ambieuity in the quoted language is not unique in the M
context of 41*94 a i The text and legolative history of t he er-
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Staff of the Joint Comm. on Atomic Energy,87th Cong.,
1st Sess., Improving the Regulatory Process, Vol. II, at hanges
<e only 49-50 (Comm. Print 1961) (emphasis added). The language of the reports, consonant with the plain meaning of section a find.
189(a), thus indicates that the section only permits the NRC to issue a license amendment without a hearing when
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there has been no hearing request.25
>perat-Statements by Representative Holifield, Chairman of al pro-the Joint Committee on Atomic Energy, and Senator Pastore, Vice-Chairman, on the floors of their respective houses further reinforce the language in the reports. Both gicen individuals explicitly stated that the " amendment [to sec-would tion 189(a)] in no way limits the right of an interested party to intervene and request a hearing at some later ose in-stage, nor does it affect the right of the Commission to iificant l
hold a hearing on its own motion." 108 Cong. Rec.16,548
, 5. Rep.
(1962) (remarks of Rep. Holifield); see id. at 15,746 (re-l ulded).
marks of Sen. Pastore). The interpretation that the NRC e Joint
~l tion are replete with ambiguities and inconsistencies. Cf. note j
20 supra. But there is no ambiguity in the legislative history or
'ved in
$uld be the text of 9 IS9(a) with respect to the question before this e urt-whether a finding of "no significant hazards considera-7, in the tion" permits the NRC to dispense with a hearing.
,.tu m'G 85Whether petitioners did in fact request a hearing was not
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l argued by the parties. While respondent United States suggests l utested in a footnote that "[ilt is not wholly clear that petitioners did 4'
ry that l
n.ake such a request," Memorandum of Respondent United States at 6 n.2, we are convinced that the petitioners requested by the a hearing. In Brooks r. Atomic Energy Comm'n, 476 F.2d 924, eister."
926 (D.C. Cir.1973) (per curiam), this court held that expres-it after sions of interest may be sufficient to constitute a request for a g
cith' the hearing. In the instant case petitioners
- continued interest m-
<penses and opposition to-the actions of the NRC at TMI-2 clearly ister of constituted a request for a hearing. Indeed, the petitioners were without among the many that submitted comments in April-May 1980 to
- ~
the NRC regarding the Commission's Environmental Assess-in the ment f r Decontamination of the Three Mile Island Unit 2 Reac-
[
!.he see-tor Building Atmosphere. See text at notes 5-6 supra.
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20 and the public utilities press upon us.2s how ever, w ouhi "limitl I the right of an interested party to intervene and request a hearing.
In sum, w e are confident that Br,"-ks was properly de-cided and that it dictates the constructior that must be attached to the last sentence of section 1*9t a t Recause the NRC's finding of "no significant hazards consideration" dal not entitle the Commission to dispense with a requested hearing prior to issuance of the OTML we hohl that it s 2* As part of their argument the N RC and the pubhc utiht ie-u;ntend that the NRC and tne Atomic Energy Commm prior to the creation of the NRC consistently mterpreted t b section as permittmg license amendments to be issued w it nor a hearmg upon a findmg of "no sienificant hazards consnieration So 10 C. F. R. s 2. lo5e a n 3 > ( 1930 )..d 4 50 5N b i., a t 50 594 c, (1963). 45 Fed Reg 42.993 (19%o; 45 Fed Reg 20.491-92 (1930' 43 Fed Reg 13.923 '197 u 41 Fed Reg 10.4 2 *3 (1976>. 40 Fed Reg 1s.231 i1975i 39 Fed Reg 10.554 i1974-39 Fed Reg 1.375-76 (1974 c 27 Fed Reg 12.1 4 < 1 M2
('oasu m ery Po.,,r ('o 7AEC 297 (1974): G# n, rol E l, Co 1 A. E. C 541 ( 1960 t Even if t he history of regulations an.1 administrative practice by the A EC and the N RC w ere unambiguous -w hich w e do not think it i3 - d e fe re n ce to t r.e agencies' interpretations w ould be inappropriate m th:3 case A3 we have indicated. the statute and legislative history are in our view unambiguous: a finding of "no significant hazard 3 co n sid -
eration" does not permit the NRC to dispense with a hearmg As the Supreme Court has noted. "( A }dministrative pract we does not avail to overcome a statute so plain in its commands as to leave nothing for construction. Xo rn, c o n Naroq, >. P rod-acts C o. r U n a, d State s. 2Aw U.S. 294. 315 (1933 t It ic also worth noting that because of today's decision the NRC will not be able to put into effect a regulation proposed earber this year that would expheitly pennit the NRC to d is-pense with hearmgs on license amendments upon a finding of "no significant hazards corsideration S,
45 Fed Ree 20.491-92 (19x0L Such a regulation would be clearly incon-i-t ent with the congressional mandate in s 1s9(a, k [ N&f W
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2 21 failure to provide a hearing violated section IS9(a) of the er, would Atomic Energy Act.
vene and i
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IV. THE NRC's SIEMORANDt'M AND ORDER b
The second order issued by the NRC on June 12, 1980, perly de-must be entitled "31emorandum and Order" (Venting Order), au-
- ause the thorized 31etropolitan Edison to vent the atmosphere of tion" did the reactor containment building. Respondents argue that i
equested section 189(a) did not require a hearing with respect to the Z
. that ita Venting Order because the order was not a license y
amendment. We reject respondents' description of the iML order and find that section 189(a) was indeed applicable and, as a consequence, that petitioners were entitled to a e
mmissio hearing on the Venting Order.
m reted the without a Section IS9(a), quoted in pertinent part in note 2 upm,
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leration."
requires that a hearing be given upon request "[iln any n 50.59(c) proceeding under this chapter, for the granting, suspend-10,491-92 ing, revoking, or amending of any license or construction
.0,482-83 permit." 42 U.S.C. 5 2239(a)(1976). Respondents maintain 14 0974h that because the Venting Order merely lifted a prior sus-
=
4 pension of the licensee's authority to vent, and did not au-thorize release of a greater amount of radioactive gas than tions and was permitted by the original technical specifications of IC were the operating license, it was not a license amendment.
- :e to the However, on the facts here, this characterization of the case. As tre in our Venting Order appears to be nothing more than an after-s consid-the-fact rationalization, which finds no support in the ree-7 hearing.
ord of this case.
practice The NRC's July 20,1979 " Order for 31odification of
- "d 8 ""
License" suspended 31etropolitan Edison's authority to M
p7 f operate T311-2 and directed the licensee to " maintain the facility in a shutdown condition in accordance with the ap-proveil operating and contingency procedures." 44 Fed.
.. "1 p,,
Reg. 45,271 (1979). In a second order, dated February 11, 6_
C to dis-1980, the NRC recognized that T311-2's operating license inding of did not permit venting as part of a cleanup operation be-C_
- d. Reg.
cause the license specifications pertained only to normal i
neonsist-operation of the facility:
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22 llin the present post-accalent st at us of the facihty.
the beense itself does not include exphcit pros isions or Technical Specifications for assurmg t he continued mamtenance of the plant in a safe stable condition or for coping with foreseeable off-normal conditions
.\\1oreos er, certain portions of t he faciht y's operating beense relate to or govern pow er operation of t he facility. the authority for w hich w as suspended by the
()rder of.luly 20 lii7t+. T/o s, p ro i, x o, " s on
",o, sirup!a : n a p pi, ca bl, to t i,, raci!,ty
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post m eid, u t cond,t o" 1.; Fed Iteg. 11.232 (limn (emphasis addedi The N I(( '
concluded that "the facihty's operating license shoubt be on,d, t,, J so as to-
[pirohibit s enting or purgmg untd appr,s ed by t he Nih'
/d (emphasis addril.
There is no n. 'ication t hat this order w as intended or percen ed as a me re suspension of the licenseci e xist m g authority to s ent. In February It+so, it appeared t hat adequate s ent mg of t he reactor buildmg nught not be pos -
sible under the exi3t mg license aut hority. ('onse piently.
moihf -and thus amemt the T\\11 2 the N IU ' acted to 3
heense in order to regulate the plant in an "off nm -.:
condit oin and to facihtate w hates er s enting scheme
.e.
be determmed to be necessary. By it s very terms the February 11. Itaxo order w as a license amendment m tended to renect T.\\11-2's,>os t -ace n le n t comlition Gn en inapplicable. the that t he origmal operating license w as NIh' couhl not simply rely on it s terms as aut hority for the venting. Aut hority for venting -in t his case t he. lune 12 Venting Order-therefore had to come in t he form of a license amendment.
The specific language of the lune 12 Venting ()rder fur-t her corroborates our interpretation of t hat order as a heense amendment In t he Vent mg ()rder, t h. NIO ' not ed t hat T.\\11-2 w as bemg operat ed accoribne t o t he pros isions
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of the February 11. l>n order,s,, Venting < >rder at in.
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repr n ted," App 131. and t he Venting tirder dal not hme to change that. T.\\11-2N operat mg beense was not mnply
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3
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23 "unsuspended" by the Venting Order. Instead, in the 4
words of the NRC, "[iln the present order we give the I
approval contemplated by [the February 11] restriction in-
." l sofar as necessary for the licensee to conduct a purging of
- l j
the TMI-2 containmer_t." Id. at 11, reprinted in App.135.
Nowhere does the Venting Order support respondents' characterization of it as a reinstatement of some pre-existing authority. Rather, the Venting Order appears as an amendment to the February 11 amendment to TMI-2's operating license. Because the June 12 Venting Order modified the February 11 order, and granted the licensee authority to do something that it otherwise could not have
~
done under the existing license authority, the Venting Order was a license amendment within the scope of section 189(a).
Our reading of the Venting Order is also supported by l
Congress' intent in enacting section 189(a). By requiring a hearing upon request whenever a license is " grant [ed],
i suspend [ed], revok[ed], or amend [ed)," Congress appar-ently contemplated that interested parties would be able
~
to intervene before any significant change in the operation of a nuclear facility. Whatever the Venting Order is called, it certainly was such a change.
As we held in Section III of this opinion, the NRC is required under section 189(a) to hold a hearing on a license f
i amendment whenever interested parties request one.27 Petitioners did so in this case, see note 25 supra, and the e
NRC therefore acted unlawfully in refusing to hold a A
3 hearing on the Venting Order.28 i
"We note that the NRC and the public utilities briefly argued
~
that a full adjudicatory hearing was not required here. See Brief i
I for Respondent Nuclear Regulatory Commission at 32-34; Brief 4
for Intervenor-Respondents at 44-45. Because this question was not fully briefed and argued by the parties, we express no opin-X, ion on the precise nature of the hearing required by 6189(a).
7
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2* Respondent United States argued that petitioners re-
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quested a hearing, as provided for in the OTML, and then failed 0
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b 24 V. CONCL1'SION Because the NRC's actions in this case are " capable of repetition yet, evading review," the issues presented by petitioners are not moot. We hold that under section 189(a) the NRC is required to hold a hearing on license amendments whenever interested parties request one. Fi-nally, we hold that the June 12 Venting Order, which au-thorized the NRC to release radioactive gas from the dis.
abled nuclear reactor, was a license amendment subject to the hearing requirements of section 189(a). Because the petitioners requested a hearing on the two June 12 license amendments, they were entitled to a hearing under see-tion 189(a). The NRC's refusal to hold a hearing violated the petitioners' statutory rights.
to exhaust their administrative remedies by withdrawing their motion. The intended scope of that hearing and the facts sur-rounding the withdrawal are somewhat muddled by the record.
What is clear, however, is that the offer of a hearing was made only in the OTML and not in the Venting Order. Presumably, then, petitioners would have been able to challenge only the license amendment substituting off-site dosage limits for release limits and not the actual decision to vent. Moreover, any hear-ing was to revolve around the issues whether the license amendment was in the public interest and whether it should be sustained. See App.123. It appears from this description that petitioners would not have been permitted to raise their argu-ments regarding the NRC's interpretation of 6189(a), which formed the basis of this suit. Finally, the Commission specif-ically provided that a request for a hearing would not stay the effectiveness of the order. See id. But i 189(a) required a hear.
ing upon request on the Venting Order before it went into ef-l fect; a hearing after the venting had been completed would not have satisfied the statute's requirement. For all these reasons, the remedy that petitioners allegedly failed to exhaust was an inadequate one and therefore need not have been pursued. Su McNerse r. Board of Educ., 373 U.S. 668, 674-76 (1963); Union Pac. R.R. Co. v. Board of Cou nty Corn rn'rs, 247 U.S.
282 (1918).
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