People of Three Mile Island Through Three Mile Island Alert, Inc. v. Nuclear Regulatory Com'rs

• Decision Date: 29 October 1984
• Docket Number: No. 83-3454,83-3454
• Citation: 747 F.2d 139
• Parties: , 15 Envtl. L. Rep. 20,020 The PEOPLE OF THREE MILE ISLAND acting Through THREE MILE ISLAND ALERT, INC., Bradford, Louise and Kline, Michael, class co-representatives, et al., Appellants, v. NUCLEAR REGULATORY COMMISSIONERS Joseph M. Hendri, Richard T. Kennedy, John Ahearne, Victor Gilinsky, Peter A. Bradford, and Metropolitan Edison Company, General Public Utilities, Robert Arnold, Herman Dieckamp, and John Herbein.
• Court: U.S. Court of Appeals — Third Circuit

Page 139

747 F.2d 139

21 ERC 1926, 15 Envtl. L. Rep. 20,020

The PEOPLE OF THREE MILE ISLAND acting Through THREE MILE

ISLAND ALERT, INC., Bradford, Louise and Kline,

Michael, class co-representatives, et

al., Appellants, v. NUCLEAR REGULATORY COMMISSIONERS Joseph M. Hendri, Richard

T. Kennedy, John Ahearne, Victor Gilinsky, Peter A.

Bradford, and Metropolitan Edison Company, General Public

Utilities, Robert Arnold, Herman Dieckamp, and John Herbein.

No. 83-3454.

United States Court of Appeals, Third Circuit.

Argued June 14, 1984.

Decided Oct. 29, 1984.

Robert Hager (argued), Christic Institute, Washington, D.C., for appellants; Joanne Doroshow, Harrisburg, Pa., of counsel.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., David Dart Queen, U.S. Atty., Harrisburg, Pa., Barbara L. Herwig, W. Philip Jones (argued), Attys., Civil Div., U.S. Dept. of Justice, Washington, D.C., for appellees.

Before SEITZ and ADAMS, Circuit Judges, and STEWART, Associate Justice ^*.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Appellants, the People of Three Mile Island, seek review of the district court's ruling that their suit against the Commissioners of the Nuclear Regulatory Commission (NRC) was barred by the doctrine of qualified immunity. Suit was brought against the Commissioners, Metropolitan Edison Company, General Public Utilities Company and several officials of these companies. In it, appellants alleged that the Commissioners had authorized the release of harmful radioactive gas without holding a prior hearing as required by Sec. 189(a) of the Atomic Energy Act of 1954 (AEA), 42 U.S.C. Sec. 2239(a) (1976). The district court granted the federal defendants' motion for judgment on the pleadings and the present appeal followed. ¹

I.

This case arises in the aftermath of the widely publicized accident which occurred on March 28, 1979, at the Three Mile Island Nuclear Station, Unit 2 reactor (TMI-2). A partial meltdown of the reactor core caused the atmosphere in the TMI-2 reactor containment building to become contaminated with dangerous levels of various radioactive gases. On July 20, 1979, almost four months after the accident, the NRC issued an "Order for Modification of License" which suspended the operating license for TMI-2 and ordered Metropolitan Edison Company, the licensee, ² "to maintain the facility in a shutdown condition." 44 Fed.Reg. 45,271 (1979). On November 21, 1979, the Commission issued a "Statement of Policy and Notice of Intent to Prepare a Programmatic Environmental Impact Statement." 44 Fed.Reg. 67,738 (1979). The NRC described this proposed statement as an "overall study of the decontamination and disposal process" and directed the Commission's staff to consider alternative methods for decontamination of TMI-2.

On February 11, 1980, the NRC issued a further order providing that

the facility's operating license should be modified so as to: ... (3) Prohibit venting or purging or other treatment of the reactor building atmosphere ... 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 Programmatic Environmental Impact Statement.

45 Fed.Reg. 11,282 (1980) (footnote omitted). This order indicated that the licensee or any other person whose interest might be affected could request a hearing prior to March 21, 1980, on whether the proposed changes in the technical specifications were sufficient "to protect health and safety or to minimize danger to life and property." Id. at 11,283.

In late March of 1980, the NRC published a "Notice of the Availability of Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere." 45 Fed.Reg. 20,265 (1980). The notice stated that in the Assessment the NRC considered "five alternative methods for decontaminating the reactor building atmosphere and recommend[ed] that the building atmosphere be decontaminated by purging to the environment through the building's hydrogen control system." Id. The NRC concluded that venting the radioactive gas into the atmosphere would "not constitute a significant 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 comments were permitted on the Assessment. In May of 1980, the Commission filed its "Final Environmental Assessment for Decontamination of [TMI-2] Reactor Building Atmosphere," NUREG-0662, Vol. 1 (1980).

On June 12, 1980, the NRC issued two final orders. These orders, executed without providing for a pre-implementation hearing, form the predicate of the present action. The first, the Commission's "Order for Temporary Modification of License" (OTML), modified Metropolitan Edison's operating license for TMI-2 to permit the release of radioactive gas from the reactor building at a rate faster than that permitted under the TMI-2 operating license in effect before the accident. 45 Fed.Reg. 41,251 (1980). Specifically, the Commission found that the increased rate involved "no significant hazards consideration" and stated that a request for a hearing would not stay the execution of the order. ³

The second order, entitled "Memorandum and Order" (Venting Order), authorized the licensee to release radioactive gas from the TMI-2 reactor building into the atmosphere and provided no opportunity for a hearing at all. 2 Nuclear Reg.Rep. (CCH) p 30,498.01 (1980). The Commission directed that the two orders be effective immediately and permitted venting to begin after June 21, 1980.

On June 16, 1980, Steven Sholly and others wrote to the NRC requesting that it reconsider making the two June 12 orders effective immediately; the NRC declined to do so. Sholly then filed a petition for emergency injunctive and declaratory relief in the District of Columbia Circuit (D.C. Circuit) on June 23, 1980. Three days later the court denied the request for emergency declaratory and injunctive relief. See Sholly v. United States Nuclear Regulatory Commission, 651 F.2d 780, 783 (D.C.Cir.1980) (per curiam), reh'g denied, 651 F.2d 792 (D.C.Cir.1981), vacated, 459 U.S. 1194, 103 S.Ct. 1170, 75 L.Ed.2d 423, vacated and remanded, 706 F.2d 1229 (D.C.Cir.1983). One day before the venting was scheduled to commence, Sholly filed with the D.C. Circuit a request for a hearing on the two orders. The court referred the demand for a hearing to the Atomic Safety and Licensing Board. No hearing was held, however, and venting commenced on June 28.

Metropolitan Edison proceeded to vent the TMI-2 reactor building at a rate within the original license specifications for a normally operating reactor. On July 8, Metropolitan Edison accelerated the venting of radioactive gas to the increased rate permitted by the OTML. The licensee completed its venting of the reactor building atmosphere on July 11, 1980. As the NRC had anticipated, the off-site radiation levels did not exceed the limits set forth in the OTML.

Sholly continued to seek declaratory relief after the venting had been completed, and the D.C. Circuit ultimately ruled that the NRC had violated Sec. 189(a) of the AEA by failing to hold a hearing prior to the venting. Sholly, 651 F.2d at 789. Until amended in 1983, section 189(a) stated that:

In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit ... the 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 proceeding.... In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating license or an amendment to a construction permit or an amendment to an operating license without a hearing, but upon thirty days' notice and publication once in the Federal Register of its intent to do so. 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 determination by the Commission that the amendment involves no significant hazards consideration.

42 U.S.C. Sec. 2239(a) (1976).

The D.C. Circuit held that Sec. 189(a) required the Commission to hold a hearing on license amendments whenever interested parties request one. Moreover, it determined that both June 12 orders were license amendments. ⁴ Because the Commission had refused to hold the requested hearings, the court concluded that the NRC had violated the petitioners' statutory rights.

Subsequently, the NRC petitioned the D.C. Circuit for rehearing. Four judges dissented from the en banc denial of the request. Sholly, 651 F.2d 792 (D.C.Cir.1981) (dissent from denial of rehearing). The dissenting judges argued that the court had misconstrued the statute when it held that a pre-amendment hearing was required even if the Commission made a no significant hazards determination.

Thereafter, the NRC petitioned the Supreme Court to grant certiorari on the issue whether the Commission was required to hold a hearing on an operating license amendment notwithstanding the Commission's finding that the amendment involved no significant hazards consideration. The Court granted certiorari on this limited question. Sholly, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981). At the same time, the NRC was also attempting to gain its desired goal--permission to forego hearing requests in certain situations--by legislative action. The Commission urged Congress to amend Sec. 189(a) of the AEA to authorize the NRC to waive the hearing requirement whenever the amendment involved no significant hazards consideration. See Authorizing Appropriations to the Nuclear Regulatory Commission, Report to Accompany...