ML20155E601
Text
%,j / /- A PDR.
A E
R TO S 0
UNITED STATES I
NUCLEAR REGULATORY COMMISSION-ACTION: SMITH' SO
)
j W ASHIN 2 TON. D.C. 20555 CyS:
DirCkS 8
March 10, 1981 Cornell
%,**u
,o Rehm DentOn
, OFFICE OF THE Shap3r SECRETARY MEMORANDUM FOR:
William J.
Dircks, Executive Director for Operations Leonard Bickwit, Jr., Gener Counsel 3-FROM:
Samuel J.
Chilk, Secretar
SUBJECT:
SECY-81 THE SHOLLY D ON -
LEGISLATIVE OPTIONS This is to advise you that the Commission (with all Commissioners approving) has agreed to the proposed legislation as modifica in Attachment 1.
In approving the proposed legislation the Commission requested that:
1.
the OGC prepare a legislative package; (SECY Suspense:
3/24/81) m 2.
the staff submit a proposed final rule on the definition of "no significant hazards consideration".
k~-
(SD) (SECY Suspense: 5/1/81) (tdA 4/.23/)
The Office of the Executive Legal Director was informed of this action by telephone on March 10, 1981.
Attachment:
as modified cc:
Chairman Hendrie Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne Commission Staff Offices Exec Legal Director Chairman, ASLBP Chairman, ASLAP CONTACT:
A. Bates (SECY) 41410 i
- /st 8604170604 860327
/
i PDR PR
)
2 45FR20491 PDR I
s m
-mm-+
Ac-~Ae A
~
lg
<rQ e
i l
\\
i N.,Tf i
?
J-(;9fEf t, ?
gyahy '<j,, {, -j :st..
r s.
Jo.O QW) 0
' ' fr
/;
9tI,p.)
,l./ffjj W*i, l
e pe QMsp} ;n). j.,,.[,,
?
v y,/y, -
+Y
/
/
l(4r'ge
- )/',',,-
/
l t
)
gl'J; i
,p-l t,h
,b
,P
//*jo.ht lkd i
,if
... f {gf
, at3.bc.
u
,e p
y e,,. < 0 -
,9h u
~' /
y bs..s-
~
j pr
,w
, f.,(s -AW pW p<,,.-
J
.s e,
DRAFT LEGISLATION Ap)
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, that:
Section 189 of the Atomic Energy Act of 1954, as amended, is amended by adding the following new sentences at the end of paragraph (a) thereof:
"The Commission is authorized to issue and to make immediately effective an amendment to a license upon a determination by the Commission that the amendment involves no significant hazards consideration, notwithstanding the pendency before it of a request for a hearing from (j
any person.
The Commission is authorized to issue and to make immediately effective any amendment to a license, or any order to govern any activity subject to this Act, as it may deem necessary upon a determination that immediate effectiveness is required to protect the public health, safety, and interest or the common defense and security."
C
r-
.'"} 9 gQ
- T r,R ' T0 ' S 61-12' NUC' {' e e, GULATORY COMMISSION 4
n g g g.g 3 NCTION: SMITH. 50 f $
.4 y
n. e :cios.o c.cosss Cys: Dircks
-s nl March 10, 1981 Cornell
%,' '....,/
Rehm l.
- CFFCE OF THE Sh3 Par i
- SECRETARY o
MEMORANDUM FOR:
William J.'Dircks, Executive Director for Operations Leonard Bickwit, Jr., Gener Counsel
.FROM:
Samuel J. Chilk, Secretar l
SUBJECT:
SECY-81 THE SilOLLY_D ION -
LEGISLATIVE OPTIONS i
This is to advise you that the Commission (with all Commissioners approving) has agreed to the proposed legislation as modified in Attachment 1.
l In approving the proposed legislation the Commission requested.
that:
1.
the OGC prepare a legislative packager (SECY Suspense:
3/24/81)
I l
2.
the staff submit a proposed final rule on the definition of "no significant hazards consideration".
i
(
(SD) ISECY Suspense 5/1/81)f#134, (/.f#/)
The Office of the Executive Legal Director was informed of this action by telephone on March 10, 1981.
Attachment:
as modified i
l cc Chairman Hendrie Commissioner Gilinsky i
commissioner Bradford Commissioner Ahearne Commission Staf f Of fices Exec Legal Director Chairman, ASLBP l
Chairman, ASLAP l
CONTACT:
A. Bates (SECY) 41410 d
r,
't b' (
l
w,,,-
r DRAFT LEGISLATION Be it enacted by the Senate and the !!ouse of Representatives t
of the United States of America in Congress assembled, that:
Section 189 of the Atomic Energy Act of 1954, as amended, is i
l amended by adding the following new sentences at the end of paragraph (a) thereof:
l
,"The Commission is authorized to issue and to make immediately effective an amendment to a licence upon a determination by the Commission that the amendment involves no significant hazards consideration, notwithstanding l
the pendency before it of a request fcr a hearing from l
any person.
The Commission is authorized to issue and to make immediately ef fective any amendment to a license, t
or any order to govern any activity subject to this l
Act, as it may deem necessary upon a determination that immediate ef fectiveness is required to protect the public health, safety, and interest or the common defence and security."
l l
l 1
l l
l t
[.
W y(l4 Poz
' Neti cThfa epinion h erb.'cet to forms! reviven before putrot'e la the- +!cral Reporter er U.S. App.D.C. He fs ur.r. io.,a,,ih.t co,arta. Usere set ser;ocated to riotif the C:e. ef any mo o.
y..ed. wror, e,. La..i -.
' " m"
~
.x 1
i Kititch $1: ten Gottri of Appenis V
FOR TIIE DIS'rRICP OF COLUMBIA CIRCUIY No. 80-1691 d'l 4
N+
STEvr.N SIIOLLY and DONALD E. HossLER, PETITIONERS
&b *-
v.
%,; n.u.
e UNrtED STATES NUCLcAR REOULAWRY COltMIP N
et al., and UNITED STATES OF AMERICA, RESPONDEN*IT METROPOLITAN EDISON COMPANY et al.,
INTERVENORS l
No. 80-1783 PEOPLE AGAINST NUCLEAR ENEROY, PETITIONER 5v y-UNITED STATES NUCLEAR REOULAwR Courtist;i.N; JOIIN AntEAnNE, Vicr0R GILINSKY, RICifARD T'.
l KENNEDY, J0sEru M. IIENDRIE, and PETER h BRADFORD, in their Individual capacitics; and Tus Ut rEn STATES OF AMERICA, RESPONDEND METROP0uTAN EDISON CottPANY, JERSEY P0ivra k LIOuT COMPANY, and PENNSYLVANIA ELEcrRK COMPANY,INTERVENORS i
Dma of conta must be fJed within 14 dopo after entry ofjsdgment. %e eeur leone
=lth dieferer vpun anodone te TJe bm. of costs out of thne.
(
e 9
e N
)
g e
r,
- [-
g a
1
7
~
No. S0-1L'.
In R::
ProPrx AGAINfrr NucL7.An ENEROY, PETITIONER p
. = ~ - -
p.
d
').
'ON DUCOEFrloN h0R REllCARINC EN DANC v
I FILED 4 MARCH 1981 Before: McCouAN, Chief Judge, WatcitT, TAMM, Ron!Nsow, MACKINNON, Ross, WILxsY, WAI.D, M!!cvA,'EowAnos and GINSDURC, Circuit. fudges.
i' ORDER The F'!ggeStlon for rqhjarjngenjand of the Public Utill-ties ht.iheen circulated (o_the, fu]Leourt and a majority of the contt has not voted in favor thereof. On consideration of th}e (origoing, it'!C ^ "
ORDERED, by the Court, en banc, that the suggestion of the Public Utilities is d_ent,ed.
Per Cunam i
Circult' Judges Tamm, MacKinnon, Robb and Wilkey would grant s eheering en bane. Their statement is attached.
g m
O e
+
.me G
e e
h 9
g e
e m
e 9
O.
y, i
t h
m ---
m.
___.______________.____,____._____..m_
{
STATerzan; c:: DN!A. or REHEARINC Et! UANO TAau, L!ACM!NN0y, RODD and WILMEY, Circuit Judyrs:
W; would grant a reh:aring en bre in Sim!ly, et ut. v.
United States Nuc! car Regulatory Commis:iun. et al., No.
E0-1601 (D.C. Cir.10 Nov.1980) to review the startHng proposition found with'in that opinion: that even when the Nuclear Regulatory Commission (NRC) has express!y found that a proposed amendment to an existing nuclear power plant operating license poses "no significant haz-ards" to human' health or safety, the Nuclear Regulatory Commission is nevertheless required to provide a pre-amendment hearing to anyone who has expreded " contin-ued interest in-and opposition to" its actions on related matters. Siip up, at 10 n.25.8 (h AfNa The panel's action raises an issue of" exceptional impor-6 1 p i) v tance." Fed. R. App. P. 35(a). Under the rubric of statuto-ry interpretation, the panel has inade a pol:cy decision of major consequence. The panel has read into section 189(a) of the Atomic Energy Act of 1954, 42 U.S.C. 6 2Z19(u)
(1970), ns amended, the requirement that even notwith-standing a finding of"no significant hazards consideration" in a proposed license amendment, the NRC must nonethe-less hold a prior hearing on the proposed amendment upon i
request of any interested person. By then drystically loos-ening the ttandard for what constitutes a " request" for n hearing, the panel has thrust upon the NRC the burden of holding full.Dedged hearinga before even the most trivial amendments to NRC operating licenses may be adopted.
We i.elieve that the panel's innexible blanket rule vio-lates the Suprerne Court's unanimous rnandate in Vmnunt Yankee rejecting judicial irnposition of administrative pro.
cedures upon an agency in excess of the statutory minirna prescribed by Congress. Vermont Yankee Nuclear Power Corp. v. NRDC,435 U.S. 510, TA3 (1978). Furthermore, by 8 We would only 1. ave this court reconsider pages 12-21 of the panel opinion, where this proposition is set forth.
e I
4 2
b; J
d
-n 1*
2 IN rovusing long-standing NitC policy, the panel's deelsion l:
- forces a major reallocation of Commission resources, which l
ap;e2rs likely both to overwhelm the agency's hearing ma-F chln ry and to divert staff attention from safety issues of d;
greaer significance; Finally, the panel decision threatens
)
to n sult in the closing-for as much as nine months-of num :rous power plants currently awaiting license amend-ments pending comp!ction of hearings, when post hoe hear-Ingu might in fact be moro than adequate to ventilate any
)
hed! h and safety issues posed by most amendments.
9!.
Tl 3 licenso amendment in this case-a temporary modifi-catitn of the Three Mile Island nuclear power plant's ope.*atinglicense to permit post-accident release of radioac-m tive gaa from the reactor building at rates exceeding ex-e Ist!r.g specificaticne-was atypical among NItC operating liccano amendments.* Only a tiny fraction of all license sThe pecullar circumatances under which the Sholly appeal arou made th!s case prrticularly inappropriate for judicial ar-t!cdl.}t!an of sweep'ng pre cdurc! ru!ca. In th6 aftarmath of the widely pub!!cized Three hfile Island incident, the N!tC had sus-I pended the lleensco's authority to operate the stricken plant, l
requring th.:t the facility be maintained in a ahutdown condi-tion. S!ip op. at 4. Defore the accident, the p! ant's operating II-censa had expressly authorized periodie release of specified emounts of " radioactive gas into the atmosphere as part of the plant's normal and neceaary operations. /J. at 6 n.7. Decatae the lie! dent had caused " dangerous concentrations of radioat-tive fas (tn] co!!cet( ) within (the power plant's! reactor con-a tairn mt bi!! ding, Inhibiting cleanup and maintenance work,"
g id.'s' 4, the NltC proceeded to prepare an overall study of the 9
envir mments! Impacts likely to result from decontamination l
and c isposal of wastes resulting from the incident. In the mean-l Lime he Commission modified the faci!!ty's operating licence to j
prohi dt any venting or purging of the reactor building atmos-
^
pherd,per.dtng exp!! cit future approva!. Id. at 5.
e g
Al i:ost a year after the incident, after extensive environtnen-tal attesament and after concludinj that raleuse of gas from the
4 3
l amendm:nts invo?ve emergency matters sa subject to fac-tu:1 dispute cs th ; ha:tards atti ndant to venting radioactive gas into the atmosphere. The Commission acts on an aver-age of more than 400 license amendments per year. NitC's Motion to Stay Issuance of Mandate at 3. For the seventy-or,e power reactors currently licensed for operation, some 3
800 license amendment actions are presently before the Commission. The vast bu!!c of these concern matters such as: changing or mhling to the myriad Technical Speci6ca-tions embedded in a given power plant's 400-page operating license, detailing a plant's operating conditions, modifying I,
p! ant would not constitute a significant' environmental impact, the Commission tentatively recommended that the reactor building atmosphere be decontaminated by venting the gas through the building's hydrogen control system. Id. at 5-G. On l
12 June 1980 the NitC :nodified the plant's operating license to
{
permit the licensce to vent the gas from the reactor building at a rate faster than n!! owed by existing specifications, based on its explicit finding that offsite radioactive dose limits would not i
be breached if the gas were vented at a rato in excess of ex-lating release nite limits. Id. at G & n.8.
~
l The Commission further expressly found that modification of the operating license would involve "no significant hazards con.
sideration." /d. at C. The petitioners who later challenged the NRC's deelsion not to provide a hearing on that modification did not file a requent for a hearing until the day before venting was to begin. Id. at 7. When venting Snally began, release pro-ceeded at first at a rate within the levels previously speci6cd for normally operating reactors. Id. During this period petition-ers moved to suspend the venting but then subsequently with-drew their request on 8 July. On the same day as the s equest was withdrawn, the licensee began to vent gas at the. faster rate permitted by t!.e 12 June license amendment. Venting was com.
l pfeted in three days, prc,ducing offsite desen well under the ex.
pected limits; shortly thereafter the 12 June venting orders ex-pired. The Commission has asserted, and petitioners have not controverted, that any future purgirg of the Three Mile Island t
reuctor atmosphero will be at worst sninor and sporadie. /d. ut 8.
y b
e
}
f i
~
-4.
c.
s l
1
.1 t
s' L
4 o
I surv eillance requirements, administrative controle, design featcres or the like. Affidavit of Roger S. Boyd, Former
. l.
Diretor of the Division of Project Afanagement, NRC Of-3 L'
fice of Nuclear Reactor Regulation at 3, attached to Intrvenor-Respondents' Petition for Rehearing and Sug-gesfon for Rehearing En Bane [Iloyd Affidavit}.
l
'Ilh NRC staff completes review of some fifty of these i
ame.Mdments per month; typically, it refuses to make a find-L Ing f "no significant hasards consideration" in a proposed amp dment unless (1) the proposed change raises no signifi-2,*dw !$ 2 #O p
cant new safety Information of a type not previously consid-g g4) 3 :.
erep in prior safety reviews, (2) the change raises no signif-T
[
Icard inerenso in the probabi!Ity or consequences of an %; Alu p,fa 5'c 9/ W r.celdent, or (3) the change offers no significant decrease in f
j
_the plant's safety margin. Id. at 3-4. Over the past four (j
ca!imdar years, the NRC has pub!!shed notice in the Feder-t al.Tegiste of more than 15C0 cmendments to operating iI plant IIcon:en which the NRC staff found to have "no signif-l 3 icant h.nards conalderat!ons." Id. at 4. The NRC has ree-g,f..
ogn!zcd that delay In Insunneo of!!censo amendments would
. rcqtiro plant shutdown if agency review is not expeditious-(l., ' * ;
l ly e3mputed.8 hIoreover, p!anta aircady shutdown for re-
,i
- [' 'h;jf.y.
. fuel'r.g or other rencona cannot restart until such review is
/
.< 3 6 i
- 4,,' ' com.picted.Thus NRC, practico and regulations have long callel for approval of heense amendments without hearing upor',a finding of no significent hazards, accompanied by po:t.2ppnWal pub!! cat!on of notico in the Federal Regia.
ter.Q
- f W i bel!cyo that the agency's past prnctice comp!!ed fully with statutory mandctes. Whether or not a finding of "no 1
8T: e former Director of the NRC's Division of Project Man-agem mt estimatca that there are about 50. license amendrnent
)
appili itions now pending before the NltC which are likely to be clainMed as having "no significant hazards considerations" and I
wh!ci,if not approved within the next few months, will result in
)(n) the a tutdown of the re:ctor involved. Doyd Affidavit at 5.
' \\ s' W. at C.
c r,
i I
dgnificant hazards consider.ition" haa Leen rnada, no hear-I ing is rcquired und:r tha app!!caa!3 language of section ISD(n) of the Atomic Energy Act, 42 U.S.C. 5 223D(a)
(197G), unless a hearing han first been specifically re-quested. The first sentence of section 18D(n) only requires the NItC to grant u heari.+g on a license amendment pro-posal "upon the request of any person whose interest may be affected by the proceeding." (Emphasis added.) The third sentence, however, permita the NltC "in the absence of a request therefor by" such a person to issue an amend.
ment without a hearing, "upon thirty days' notice and pub.
liention once in the Federal Register of its intent to do so."
(Emphasis added.) Without mentioning hearings, the fourth sentence then specifies that the Commission may even dispense with auch " thirty days' notice and publiention i
... upon a determination by the Commission that the j
nmendment involves no significant hazards considerution."'
j
.h r.
8Section 180(a) of the Atomic Energy Act of 1954,42 U.S.C.
12239(n) (1976), ma amended in 1057, Pub. L. No.85-25G,17, d.' -
- 71 Stat. 679 (1957), and in 1002, Pub. L. No. 87-G15, 5 2, 76 l.
- a. h Stat. 409 (1062), reeds In part!nent part es fo!!awa:
i; i i..
In any proceeding, under thfs chapter, for the granting, suspending, revoidng, or amending of any license... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the procee ling, and shall admit any much person as a party to such proceeding. The Commia-sion shall hold a hearing after thirty days' notice and publication once in the Federal flegister, on each up-plication... for a construction permit for a facility
.... iT]he Commission may, in the absence of u re-l quest therefor by any person whose Interest may be i ;
affected, issue... an amendment to an operating li-cense without a hearing, but upon thidy days' notice und publication once in the Fedtra! Itegister of its in-tent to do so. The Commission may dispense with
- such thhty days' notice und publication with respect to any application for... an amendment to un g
_m
.+4 O
)
_.~
i r
>Q_
G: 'q
. [jQ [
f.
TL
-.,... g Wy,e
& >,q ~ '
L.,
% 4D
)
}
'p.
\\j e.
L
',[.
- 6 h
Tin Shelly panel read this language to conclude that the agercy has for years in fact been operating in violation of 5'
.see.bn 189(a). The panel firct argued that this court had prav ously held in Brooks v. Atomic Energy Comm'n,476
[
F.2d 924,926 (D.C. Cir.1973) *that the fourth sentence (of sect!on 189(a)] only dispenses with requirements of notice and publiention," not the requirement of a hearing. Slip op.
l st 14. Furthermore, the panel then Independently read the sta'.utory language to require the same conclusion, finding l(f that because the fourth sentence of section 189(a) refers b
only to thirty days' notice and publication, it " plainly dem-onstrates that Congress did... Intend to disentangle the b
two requirements of notice and hearing." Slip op. at 15.
Thu legislative history of the 1962 amendments to section 18S(e), the panel concluded, demonstrates that " Congress
'V) per:elved the changes to section 18C(a) as permitting the NHC to dispense only with notice and publication-not a I
hering-upon a finding of"no significant hazards consider-l ation." Id. at 18.
f 1.'e be!! ave that the panel urdustifiably relied on this L
cottt's brief per curiam opinion in Brooks to support its f
ceu ral proposition. We further be!!cvo that the panel'a in-i
's der mdent interpretation of the relevant language in see-t!or 18C(a) Ignored logie and distorted the legislative histo-l ry.,f that section.
16 Broo!:s two utility compan!cs petitioned the Atomic i
Emrgy Comm!ssion to modify the provisional construction j.
pet nits for two nuclear power plant unita in order to ex-ter.I the " latest completion date" specified in the permits.
Peitioners, persons living near the proposed construction i
site, had earlier filed c timely request for a hearing with re-6[
sp<rt to two issues:,whether the provisional construction permits should b3 mad! fled to protect environmental values opernt!ng license upon a determination by the Com-i misa!on that the amondment involves no significant t
g\\_j hazarda cons! derat!ca.
t l
l i
2n necerence vnth NEPA and whether opaatir.; !! censes l
f;r those frcR!en chould issus. 47G F.2d e. 025-2G. The i
l Commission nave pctiti:ncru notice that a hearing would he l
held on the eccond matter, "but inexplicably failed" to give notice that the proceedings would also permit discussion of the first issue:inodification of the construction permits. Id.
at 92G & n.G.
In ordering a hearing on the issue of extension of permit I
completion dates, the court made two points. Noting timt I
the Commission's order summariff extending those dates had given "no indication whatsoever that the amen hnent involved no significant hazards consideration," the court stated "the Commission must surely make the required sig-nificant hazards determination, and note such determimi-l tion in its order, if it intends to put forward such determi-l nation as the basis for its denial of a hearing." Id. at 1)26.
- j Second, the court stated that because petitioners had made un undeniable request for a hearing on inodification of per-i mits, the Commission had erred in issuing the order with-out notice that the hearing scheduled to take place would niso concern permit modification.
We believe Brooks to be plainly inapposite here. The Brooks court was addressing two questions not before the Sholly panel: whether the Commission could dispense with a hearing without first making a finding of no significant hazards, and whether the Commission could dispense with the notice statutorily requiref.! in the third sentence of ure-fion 189(a) when a clear request for a hearing has been I
made. The Brooks court plainly did not seek tn lay down the broad rule which the panel here articulates: that the fourth sentence of section 180(a) requires a hearing even j
when the Commission has made a "no significant hazanis i
consideratior." finding. If that rule has indeed been the law of this Circuit since Brooks, it comen as a great surprise to us. At least one member of this court, addressing the prop-osition directly in a case decided after Brooks, stated the view that "[n]n amendment can be made without opportuni-ty for a hearing if the AEC determines that it " involves no N
e
,.dt
' $. ;'&.'N O.
.a
- l. ; l '. 1 ~ -
~-w-
. as._..
l, M
4 t
<e 2
h
Y.
4 3,
%..j,.
'n-
.c 74~
~.
s
- i s -cm e-1:
cL _,-
~
C'
}
}-
)
,i g
- 1, 2
significant hazards consideration.'" Union of Concerned l
Sci.rnfists % ABC, 499 F.2d 1069,1034 n.3G (D.C. Cir.
t 1971) (5fe'Gowan, J.), Furthermore, some thirteen NRC i
l' regla!ations and cases listed within the panel opinion, but 5
h*
sun marily dismissed there, Indicate that both before and l
I i
~
gfier Brooks the NRC consistent!y interpreted section f
ISS(a) to permit issuance of license amendments even with-j-
out hearings upon a finding of"no significant hazards con-sidorntion." Slip op. at 20 n.26.
(
The panel buttresses its puzzling statutory construction
.j-witi cits!!on from a legislative history which it concedes to i-be " replete with ambiguities and inconsistencies." Slip op.
t f
at IS-19 n.24. We would submit that the confusion inherent k[((7 within that legislative history is alone sufficient reason why
)
It af au!d not have been cited selectively in support of the 1.
pam:l's sweeping rule. While the panel holds that the l*
NIics *no significant hazards consideration" finding did not i ntitio the Commission to dispense with a hearing priur to tFe IIcon::o amendment, elip op. at 20, none of the legia-
,.).
.. Ittin hbtory cited supports the notion that Congress in-jL, tend d to require a prior hearing.* Furthermore, although f.g..,
o
~
eSrc, e.g., th'a remarks of Representative Italifield and Sena-tor Atoro elted in the panel opinion at p.19: "(Almendment [to cacCon 18!(n In no way limits the right of an interested party to htervena and request a hearing of some later sfuge..." j)' (E.i phasis added). l E.ven if petit!oners sought to bottom their right to a prior j hes"Ing on duo process grounds, rather than on the language of-- { see.lon !!iD(s), cf. al'p op. at 15-16 n. 20, discussed in note 9 in. g. fru. It it not clest why in most license amendment cases that f rigW.could not be secommodated "at a meaningful time and in a j manalngful manner" by a post-smendment hearing. Cf. g Mathetcs v. Eldridge,424 U.S. 319,343-19 (1970). Intervenor-1 Recpondents have suggested that in the vast majority oflicense i! (/'N., ' ami idment cases involving no. significant hazards considera-iAj t!ct.s, opportunity for a hearin2 after the amendment has issued woUd still al!ovt full cons!deration of all !ssues involved without ' i
the panel rejects Judge "cCacan's unambigunus statenmnt in Union of Concerned Scirnti::ts au dictum, its subsequent analysis of the legislative history of the IDG2 umendments { to section 189(a) mn!<es no mention of the broad and careful e q statutory analysis of those amendinents which lay ut'the S-heart of Judge McCowan's we!!-reasoned, opinion.' endangering plant safety or interfering with normal plant oper-ations. See Intervenor-Itespondents' l'utition for Itcheuring and Suggestion for Rehearing En Dene at 12. See also Iloyd Affida-vit at 5; note 11 infra. Certainly the panel could have reached its result without dis-rupting the Commiusion'a prevalling practiec of dispensing with prior hearings on trivial license amendments involving nn signif-icant hazards, simply by adopting the type cf balancing test pro-viously approved by this court in Union of Concerned Scien-tists: l [Aldministrative action ta!<en prior to a full hearing has always been pennissible when the state's Interrst In acting promptly to promote the generul welfare, 1 inc!cding cccnomic wc!l-being, out: ciyhs the individ. ual's interest in having an opportunity to be heard be. ~ fore the state acts, perhaps in error, in ways that may cause him significant Irdury. Union of Concerned Scientists v. AEC, 499 F.2d 10G'), 1081 (D.C. Cir.1974)(emphasis added). This principle a!!ows the de-cision whether or not to grant a prior hearing to be based on tho facts of the individual case, rather than upon a pronouneement as broad as the one inade here. ' Ironically the panel rejects Judge McGowan's statement as I dictum because It]he court provided no support ror its far-I reaching ctatement, nor did it even mnke mention of the recent-ly decided Brooks case," a case which we believe to be inappo-site. Slip op. at 14 n.18. Yet the panel's subsequent analysis of the legislative history of the statutory lan::unge at issue ignored both the general thrust as well as the express language ofJudge McGowan's opinion. In Union of Concerned Scientists, Judge McGowan reud the Atomic Energy Act to " erect [ ] a regulatory scheme virtua!!y s r. e 9 f v ~ -v e e
n p ,...H e + [ ~ C- '. g-E " ,7 r 1 L.. li g ' Die panel's reading of the statute and legislative history becones even more remarkable when combined with its l extraordinarily broad conception of what constitutes a re- . quet.t for a hearing, slip. op. at 19 n.25. Reading Brooks to 'q hold "that expressions of interest may be sufficient to con-st!tute a request for a hearing," the panel ~then finds that
- petitioners' continued interest in-and opposition to-the acti6ns of the NRC at TMI-2 clearly constituted a request g
for :i he ring. s By finding :uch facts to constitute a hear- '.(...",,.
- N:M.. ;.a, l,f -{ l ' "s..., ' u:!de in the degree to wh'ch broad responsibility is reposed in
.4 ' the adm!nktrative agency, free of c!cco presedption in its char-p.;-l ter u to how it shall proceed In achieving the statutory objec-p t!v,e.:," 400 F.2d at 10'17, citing Siegel v. AEC, 400 F.2d 778, ?3 gg jj'lal (1003). The le-h!:tive ge:1 ef tha 1032 amendments, he not-yh,..W.%.{,ncd,! w:s to cllrain:to the klad of unnaces:ary proceduro ? .D$-[@,l:ap s:cd hera: "[T]he pr! mary purpo:a of the 1032 cmendments ,~*',/ [w.2,] to unbun!cn tha Comm!ss!on by authorizing it to... re-
- C
^ motte) the necessity of twiding unnecessary and duplicative p 3 Aarhas." 409 F.2d at 10'7 (D.C. Cir.1974) (emphas!s added). s Furthermore, Judge !!cGowen expressed a marked lack of P sympathy with petitioners' " fundamental misunderstanding of the AEC lleensing process," suggesting that in cases like this one Congrecs d!d not Intend to give the pub!!e an unequivoca! l right ta p:rt!elpstion: The role of the A(tom!el S[afety] L[leensing] D[can!] i ~ t, la not to ecmpth a record; it is to rev!ew a record al-k ready compiled by the Staff and A[dvisory] l J C[ornmittee on] R[ezetor] S(afeguards), who have re-sponsib!!ity for the sufficiency of that record.... In i. the Atom!e Energy Act... [ Congress] suthorized f the Conun!aa!on, in its d!seretion, to determine that I,. I,, t,/ certr!n app!!ca'.!ons present no "a!gniEcant hazards ), J ! (. con.!dernt!ons" ar.d to dispensa with notice and pub!!-
- . cat!ca of Imper.
- !ing approval, czeluding the publie
, altogether. Id. at 1078 (emphasis added).. ( ) 311p cp. at 19 n.25. The psael finds the fact that " petitioners 'v we e cmong the msey that submitted comments in Aprit May . ]
ing request, the per enrium q.u aun n.o. s.. t o. 3y w.u!. ut of the statute the requirement th:.t.1 hear kg be neigue:,ted. Yet th] stututory language leavea no thibt that the N!tC has no statutory duty to provide henr!nge on license amend-ments when none are requested. Furthermore, as the panel recognized, slip op. nt 15 n.'.!0, the sintute expressly au. thorizes the NRC to dispense with thirty days' notice und % ^ ~~' publication, even if an e.rpress request for a ficaring is & made, so long as the NRC has made the requisite finding of j "no significant hazards con :!doration." We submit that the panel's interpretation of section e,. 189(n), taken as a whole, renders it virtually impossible for the NRC faithfully to follow the explicit congressional di-rectives found within that section. The panel hus, in effect, eviscerated the congrers!onal mandate found in both the ,,,,'.[!![%'. third c.nd fourth centences of cection ICC(n). Since under,i.,1 a, -y - e 7 1, W ~ the panel's standard almo::t any expression of interest con., '- stltutes a " request," the NRC will rcrely be ab!c confident- .5.',. i i ly to dispense with a hearing on a licensing umendment, de-spite the fuet that Congress authorized it to du su in sentence three. Since the panel recognizes that it is absurd to hold.a hearing without first providing notice to interest-ed persons,' the NRC will never be nb!c safely to dispense 1980" to the NRC regarding the NRC's Environmental Assess-ment of the plant's decontamination comehow to buttress its findin'; of en Individual hearing request. /d. the panel opinion requ!res that even when there is an unsisputed finding of no significant hazards, cleurly permitting l tra Commission' to dispense with the 30 days' notice und publir 4 cation statutorily prerequisite to a hearing, that a hearing must be held nonetheless, even wittwut notice or publication tu any. one who has a continuing Interest in the matter. Whil: 1." ' 2 acknowledging that th!s result is "paradoxleal," alip op. ut + 15-16 n.20, the panel implies that auch a recult might never come about because the due process clause of the Fifth Amend-I ment or the Adminlutrutive Procedure Act may mandate that the Commission give interested persons some form of notice i and publiention prior to amending a license, cuen if fler ufornfe e e e -+ - ---- -=. +-- --- ..y.. ,p. ) g-g 'i I
~ t n;. s ,}' ~~ ~ e o ,._.n-sm.o...e.--- ~e--
- I -
With notice and publication even when a routine amend-l mant undisputedly involves no significant hazards consider-ations, de' pite the fact that Congress authorized it to do so i s = In sentence four.88 y ~ {',inally, while ive believe the question deserves further .l b@fing, we are also troubled by the clear Indientions in the VY 'y. e1. ressly authorizes it to dispense 'with thirty days' notice and ~ pt.9tication. Id. If the panel meant to imply by this tantalizing su gestion that notice and publication were in fact constitution-aly required in this case, we believe it should have made that pc nt exp!!citly so that that finding could properly have been the ' a6Jeet of further rev!ew. ~ -l } Chis repeated evasive tactie by some panels of this court has nC. gone unnoticed. See, e.g., Scalia, Vermont Yankee: The At'A, the D.C. Circuit, and the Supreme Cat.rt,1978 Sur. Cr. l It:V. 315,372 (criticizing this court's tendency to render deci-s!tna wh!ch are defceto unreviewable): l [T]he moat important factor Icading to the de facto unrey!ewability of the D.C. Circuit's positions is the fal!ure of that Court itself to facilitate review, even when the most fundamental issues are at stake. Or to put the. point more critically: The pattern of dieta, s! ternate heldings, and confused holdings out of 1 (g* 1
- f..
wh!ch tha D.C. Circuit's [ hybrid tstema'dng prin~ci-l !' plaa)... to c! car!y and authoritatively emerged hr.d r i, ~ . ' the effect, if not the purposa of assuring complianco '.b3!ow wh!!e avc!dir.g acxuatabi!!!y above, t*Even if the Comm!ssion ma!ces an uncontested finding that nol,s!gn!ticant hazards will result from a license amendment, mt.st it neverthetecs hotd a hearing on that amendment for any. ona wha he.2 previously expressed Interest in or opposition to the NItC in related mattera in the pr.st, so long as that person ,co:stinues to expresa some intercat? Despite the fact that the C2mmlesion is statutor!!y authorized to dispense with thirty duys' not!co and pub!! cation in such a case, is it nevertheles: re- .qvired, euc sponte, to contact anyone who has submitted a com-i ) Tr nt about a re!evant rulemeking in the preceding months to se iif that person wou!d like a hearing? t L. J
cpini:n that the panel atretched to lay down n b!anket ru'e f;r cll casca in a case that was arguably moot" imd who:;e facts wers uniqua und, at points, ambiguous. The parties tve suggested that the panel erred not, only in summarily finding that a proper request for a hearing had been made, but also in finding that auch a request, even if made, had. not later been withdrnwn." At a m!nimum, we would have /* y os. H Although we do not specifica!!y cha!!cnge the panel's finding of mootness, slip op, at 8-12, we express some doubt that the issue which the panel chose to resolve was truly one both "cupa-ble of repetition, yet evading review." Southern l'nc. Term Corp. v. ICC, 219 U.S. 498, 615 (1911) (emphasis udded). The Department ofJustice, the Commission, and intervenors all con. vincingly argued that n!though the question decided here-whether the NRC is required to hold a hearing before issuing a license amendment based on a finding of "no significant hazards"-may well recur in the future, it is unlikely to evade review. See f femorandum of Respondent United States of America at 4 ("[T]here is no reason to believe that itho NitC's] netions will characteristienlly be irreversib!c."); !!rief for Re- - spondent Nuclear Regulatory Commission at 19-25. See also Intervenor-Respondents' Petition for Rehearing and Suggestion i for Rehearing En Dane at 12: The vast majority of operating fleense amend ~ menta-and particularly those involving no sigmfi-cant hazards consideration-are reversible. Chunges -~ such as shortened surveillance intervals can be lengthened; revised cateufational techn! ques can be replaced with the prior methods.... In this respect, the amendment fucilitating krypton venting from Three Mile Island Unit 2 was truly exceptional in that once released the krypton could not be reclaimed. Even in cases where "irrevernib!e cetion" is involved, a subsequent' hearing wo~uld still hav6 tho'sa!utory [ ale) effect of assuring thorough NRC consideration. a "See Memorandum of Respondent United States of Amerien at 22: At the ASLB hearing.... petitioner Sho!!y had an opportunity to press his claim that 5189(u) entitled \\ e 4 9- - -. - = ~-----+--~*==m-=*--=*~ "+~- -^ ^"
- P t
b Y Y 1 g 1 ,[ f. g 4 4 __m
I .~ = 1 - s n \\_# n .y': I J'.* tha parties brief and argue these questions as a prerequi-i 'ala to determining whether the panel's broad ruling was in s fs:t necessary to its disposition of the case. .\\ number ofjudges and commentators have leveled criti-ciin at this court for its continuing unwillingness to be 1 i-3 gi.ded by the Supreme Court's unequivocal directive in V rmont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 8 51J (1978) (reversing NRDC v. NRC, 547 F.2d 633 (D.C. C:r.1976), and remanding to this court for a determination of adequacy of the record)." '.n Vermont Yankee, the Supreme Court spoke to this ect.rt with one voice, making it " absolutely clear" that i him to such a hearing; he cou!d have attempted to { ) convince the ASLB that the license amendment was Inva!!d ben.use the Commission had not granted a I prior hearing. Instead of attempting to do so, he " formally withdrew" his mot!on to stop the release of radioactive krypton pending the outcome of the hear-Ing.... He refused to goforward with the hearing.
- In this way the Commission wcs deprived of an early
!. opportunity to correct its error.... This is a further [ rea:en fo.- be!!ev!ng Lhr.t tha pat!!!oa la mcot.... (Einphasis added.) U' See, e.g., Scalla, Vermont Yankee: The APA, the D.C. Cir-cui.', and The Supreme Court,1978 SuP. Cr. REv'. 345, 345 (Ver ncr.: Yanice brought "into question the willingness of the D.C. Circuit to be guided by the Supreme Court"); Friendly, Boah Review, 8 HorsraA L. REY. 471,481 (1980) (D.C. Circuit juc'ges may have become " overly enthusiastic"in imposing pro-cedural requirements on administrative agencies); Ilyse, Ve:mont Yankee and the Evolution of Administrutive Proce-du. et A Somewhat Bifferent View, 91 II Anv. L. REv. 1823,1832 (1918) (continued judicial imposition of procedural requirements on agencies reflects " insensitivity to the concerns of the agency in lep!oying its resources to conduct its business, undue self-cot (idence in the assumption that the court's procedural pre-act ption is 'best,' and !ae:c of trust in the political procear o ) .. "). ~, f* e
- 8
"[a]bsent const!tutional con tr: hts or extremely compelling drcumntancea tha 'adminintrative agencica ahnuhl he free to fashien their own ru!cs cf procedure und to pumue meth-ods ofinquiry capable of permitting them to discharge their multitudinous duties.'" 435 U.S. ut 543 (citations omitted). The unanimous Court went on specifically to caution us against the type of procedural imposition which has I occurred here: [I]f courts continui$1!y review agency proceedings to determine whether the agency employed proce-dures which were, in the court's opinion, perfectly tailored to re=h what the court perceives to be the "best" or " correct" result, judicial review would be tota!!y unpredictab!e. And the ugencies, operating under this vague injunction to employ the "best" procedures and facing the threat of re-versal if they did not, would undoubtedly adopt full adjudicatory procedures in every inst:mee. Id. ut 54G. a It is hard to imagine a case where the Supreme Court's p concluding statement in Vermont Yankee could be more up-posite than here: } Nuclear energy may some day be a cheap, safe i source of power or it may not. Ilut Congresa haa made a choice to at least try nuclear energy, es
- tab!ishing a reasonable review process in which courts are to play only a limited role. The funda-mental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courta un-der the guise of judicial review of agency action.
Time may prove wrong the decision to develop nue! ear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime-courts should perform their appointed functism. 435 U.S. nt 557-58 (emphasis in original). We submit the issues raised by Shully demand reconsidera-y tion. -- -*-- + ~ S. 3* l T / .6}}