ML20155C076
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Mr. Robert Lowenstein, Esq.
Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Suite 1214 Washington, D.C.
20036
Dear Mr. Lowenstein:
This is to close out the petition for proposed rule making we received from you on May 7, 1976. As you know, events such as the Sholly case and new legislation have superseded your petition. Though we have denied your petition, as explained in the three Comission papers we enclose for your information(SECY 83-16,83-16A and 83-16B), we believe we have met the spirit of your proposal by promulgating an interin, final rule containing i
standards (for reviewing significant hazards issues) that are as precise and t
predictable as possible. We are also promulgating an interim final rule on public notice and coment and State consultation procedures, as described in the enclosed documents.
p We would be pleased to review whatever coments you may have on the interim final rules.
Sincerely yours, Guy H. Cunningham, III Executive Legal Director q
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Enclosures:
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Mr. Robert Lowenstein, Esq.
Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Suite 1214 Washington, D.C.
20036
Dear Mr. Lowenstein:
This is to close out the petition for proposed rule making we received from you on May 7, 1976. As you know, events such as the Sholly case and new legislation have superseded your petition. Though we have denied your petition, as explained in the three Comission papers we enclose for your information(SECY 83-16,83-16A and 83-168), we believe we have met the spirit of your proposal by promulgating an interim final rule containing standards (for reviewing significant hazards issues) that are as precise and predictable as possible. We are also promulgating an interim final rule on public notice and coment and State consultation procedures, as described in the enclosed documents.
We would be pleased to review whatever coments you may have on the interim final rules.
Sincerely yours, a*m f' ~
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Executive Legal Director a
Enclosures:
As stated 1
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UNITED STATES COURT OF APPEALS
@Q CECRGE A. FISHER FOR THE DISTRICT OF COLUMBIA CIRCulT M
WASHINGTON D. C. 20001 cu= =
ROUTING St.IP Olmstead MC April 4, 1983
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P RE: No. 80-1691 - Steven Sholly, Donald E. Hossler v. U.S. Nuclear et al.
Regulatory Commission, et al., and the United States of America' W
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Dear Counsel:
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I am enclosing herewith a copy of an order entered'today in the above entitled case.
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Christine M. Smith b
Opinions Clerk Enclosu're Distribution:
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Stanford Sagalkin, Esquire Stephen F. Eilperin, Esquire k
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FOR T HC DISTfuC1 of COLU$sGt A Ct8400:'
No. eo-lcel September Term,19n Steven Sholly, Donald E. Hossler, Petitioners, v.
U.S. Nuclear Regulatory Commission, et al., and United States of America, Respondents,
""d United States Court of Appeals Metropolitan Edison Company, et al.,
Intervenors.
FILED APR 41983 i Nos. 80-1783, 80-1784 GEORGE A. FISHER cm People Against Nuclear Energy, Petitioners, v.
af U.S. Nuclear Regulatory Commission, et al., and United States of America, Respondents, and Metropolitan Edison Company, et al.,
Intervenor-Respondents, Before:
WRIGHT, MIKVA, EDWARDS, Circuit Judges.
ORDER These cases came before the Court for consideration on petitions to review two orders of the Nuclear Regulatory Commission (NRC).
The' orders modified the operating license of Metropolitan Edison Company, authorizing it to release radioactive gas.into the atmosphere at a faster rate than the existing specifications allowed and to vent the atmosphere of the nuclear containment building at the Three Mile Island plant.
On November 19,'1980 this Court held that the orders were license amendments within the scope of 5 189(a) of the Atomic Energy Act' (Act), 42 U.S.C. S 2239(a)
t.
(1979), and that, as such, NRC's failure to hold a requested hearing prior to the issuance of these orders was a violation of' e
the Act.
Sholly v. Nuclear Regulatory Commission, 651 F.2d 780 i
(D.C. Cir. 1980) (per curiam).
Both the NRC and Metropolitan Edison Company. petitioned for and were granted a writ of certiorari.
On February 22, 1983 the Supreme Court vacated this 3
Court's opinion as moot 'nd directed this Court to reconsider the a
case in light of Pub. L. No.97-415, 96 Stat. 2067 (1983).
Public Law 97-415 is an act authorizing appropriations for the NRC.
It also includes, however, a substantive amendment to S 189(a), which is set out in section 12.
96 Stat. 2073-74 (to be codified at.42 U.S.C. $ 2239 (a) (2)).
This amendment allows the NRC to issue and make a license amendment immediately effective if it makes a finding that no.significant hazards consideration is involved.
The legislative history of this amendment makes clear that the only legal significance of this change is the timing of the hearing; a hearing is still required, but, if no significant hazards. considerations exist, it need not be held prior to the effective date of a license amendment.
H.R. Rep. No.97-884, T/th Cong., 2d Sess. 37 (1982).
In furtherance of this change, Congress also directed the NRC to promulgate regulations establishing standards for determining whether significant hazards are involved and criteria for providing prior notice in emergency situations.
NRC's authority to issue and make immediately effective a license
. amendment does not itself take effect until these regulations are f
promulgated.
Having considered Public Law 97-415, we find that the portion of our opinion holding that a hearing requested under 5 189 (a) of the'Act must be held prior to a license amendment's becoming effective will be moot as soon as NRC promulgates the regulations to which we refer above.
We also find, however, that the NRC is still under a statutory mandate to hold a post hoc hearing, if requested by the parties.
Upon consideration of the foregoing, it is ORDERED, by the Court, that our opinion in Appeal Nos.
80-1691, 80-1783, and 80-1784 is vacated as moot.
And it is FURTHERED ORDERED, by the Court, that the case is remanded to the NRC so that, if the petitioners so desire, the hearing required by 42 U.S.C.
S 2239(a) may be held.
And i,t is FURTHERED ORDERED, by the Court, that the Clerk shall issue the-mandate herein on the seventh day following entry of this j
order.
Per Curiam l
For the Court l
George A. Fisher Clerk
- E1110 of euts must he flied within 14 days after entry of j.
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UNIT D STATES COURT OF APPEALS
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RE:
No. 80-1691 - Steven Sholly, Donald E. Hossler v. U.S. Nuclear -
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et al.
Regulatory Commission, et al., and the United q
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States of America' J
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Dear Counsel:
I am enclosing herewith a copy of an order entered'today in the above entitled case.
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- Yours, El*.
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Christine M. Smith Opinions Clerk Enclosure Distribution:
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Daniel P. Sheehan, Esquire Stanford Sagalkin, Esquire Stephen F. Eilperin, Esquire p,e George F. Trowbridge, Esquire menc-r..
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F OR 1 HC DIST HIC 1 OF Ci>Luut A Ci4 CUP No. eo-ic91 September Term,19a:
Steven Sholly, Donald E.
- Hossler, Petitioners, v.
U.S.
Nuclear Regulatory Commission, et al.,
and United States of America, Respondents,
^"d United States Court of Appeals W Dm d tdem CM Metropolitan Edison Company, et al.,
Intervenors.
FILED APR 41981 Nos. 80-1783, 80-1784 GEORGE A. FISHER cm People Against Nuclear Energy, Petitioners, V.
U.S. Nuclear Regulatory Commission, et al., and
~
United States of America, Re'spondents,
_ and Metropolitan Edison Company, et al.,
~
Intervenor-Respondents, Before:
WRIGHT, MIKVA, EDWARDS, Circuit Judges.
ORDER These cases came before the Court for consideration on petitions to review two orders of the Nuclear Regulatory Commission (NRC).
The orders modified the operating license of Metropolitan Edison Company, authorizing it to release radioactive gas into the atmosphere at a faster rate than the existing specifications allowed and to vent the atmosphere of the nuclear containment building at the Three Mile Island plant.
On November 19, 1980 this Court held that the orders were license amendments within the scope of 5 189(a) of the Atomic Energy Act (Act), 42 U.S.C.
S 2239(a)
7 hv..
9 (1979), and that, as such, NRC's failure to hold a requested hearing prior to the issuance of these orders was a violation of,
the Act.
Sholly v.
Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir. 1980) (per curiam).
Both the NRC and Metropolitan Edison Company petitioned for and were granted a writ of certiorari.
On February 22, 1983 the Supreme Court vacated this Court's opinion as moot and directed this Court to reconsider the case in light of Pub.
L. No.97-415, 96 Stat. 2067 (1983).
Public Law 97-415 is an act authorizing appropriations for the NRC.
It also includes, however, a substantive amendment to S 189(a), which is set out in section 12, 96 Stat. 2073-74 (to be codified at 42 U.S.C. S 2239 (a) (2)).
This amendment allows the NRC to issue and make a license amendment immediately effective if it makes a finding that no significant hazards consideration is that the onfyTligal'si~gnifi~caEce y of this amendment makes clearofitihli change is t involved.
The legislative histor
~
the[iearing; a_ hearing is still required, but,.if no significant hazards considerations exist, it need not be held prior to the elffctiv6 date of a license amendment.
H.R. Rep. No.97-884, 97th Cong., ~2d 'Sess. 37 (1982).
In furtherance of this change, Congress also directed the NRC to promulgate regulations establishing standards for determining whether significant hazards are involved and criteria for providing prior notice in emergency situations.
NRC's authority to issue and make immediately effective a license
. amendment does not itself take effect until these regulations are promulgated.
Having considered Public Law 97-415, we find that the portion of our opinion holding that a hearing requested under 5 189(a) of the'Act must be held priar to a license amendment's becoming effective will be moot as soon as NRC promulgates the regulations to which we refer above.
We also find, however, that the NRC is still under a statutory mandate to hold a post hoc hearing, if requested by the parties.
Upon consideration of the foregoing, it is ORDERED, by the Court, that our opinion in Appeal Nos.
, 80-1691, 80-1783, and 80-1784 is vacated as moot.
And it is FURTHERED ORDERED, by the Court, that the case is remanded to the NRC so that, if the petitioners uo desire, the hearing required ~
by 42 U.S.C.
S 2239(a) may be held.
And i,t is FURTHERED ORDERED, by the Court, that the Clerk shall issue the mandate herein on the seventh day following entry of this order.
Per Curiam For the Court George A.
Fisher Clerk
@ ills cf e ats cust be filed with'in 14 days after 3ntry cf jus:-Tnt.
Tho Court locka rith dir. favor spcn not,io= to file bills of costo cut of ti N.
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