Sholly v. U.S. Nuclear Regulatory Com'n
| Decision Date | 26 May 1981 |
| Docket Number | Nos. 80-1691,80-1783 and 80-1784,s. 80-1691 |
| Citation | 651 F.2d 780,209 U.S.App.D.C. 59 |
| Parties | , 209 U.S.App.D.C. 59, 40 P.U.R.4th 317, 11 Envtl. L. Rep. 20,329 Steven SHOLLY and Donald E. Hossler, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION et al. and United States of America, Respondents, Metropolitan Edison Company et al., Intervenors. PEOPLE AGAINST NUCLEAR ENERGY, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION; John Ahearne, Victor Gilinsky, Richard T. Kennedy, Joseph M. Hendrie, and Peter A. Bradford, in Their Individual Capacities; and the United States of America, Respondents, Metropolitan Edison Company, Jersey Power & Light Company, and Pennsylvania Electric Company, Intervenors. In Re PEOPLE AGAINST NUCLEAR ENERGY, Petitioner. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the United States Nuclear Regulatory Commission and for Writ of Mandamus.
Robert Hager, Washington, D. C., with whom Daniel P. Sheehan, Washington, D. C., was on brief, for petitioners.
Stephen F. Eilperin, Sol., U. S. Nuclear Regulatory Commission, Washington, D. C., with whom E. Leo Slaggie, Atty., U. S. Nuclear Regulatory Commission, was on brief, for respondent United States Nuclear Regulatory Commission.
David A. Strauss, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., and Peter R. Steenland, Jr., Atty., Dept. of Justice, Washington, D. C., were on brief, for respondent United States of America. Stanford Sagalkin and Lois Schiffer, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondent United States of America.
Mark Augenblick, Washington, D. C., with whom George F. Trowbridge and Matias F. Travieso-Diaz, Washington, D. C., were on brief, for intervenors. Robert E. Zahler, Washington, D. C., also entered an appearance for intervenors.
Before WRIGHT, Chief Judge, and MIKVA and EDWARDS, Circuit Judges.
Opinion PER CURIAM.
In this case petitioners seek review of two orders by the Nuclear Regulatory Commission (NRC) permitting the Metropolitan Edison Company to release radioactive gas into the atmosphere from the Three Mile 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. 2
On June 26, 1980, this court denied petitioners' request for emergency injunctive relief to block the release of the radioactive gas. Now that the radioactive gas from the nuclear plant has been fully vented into the atmosphere, the petitioners seek only declaratory relief from this court.
This case arises in the aftermath of a widely publicized accident that occurred on March 28, 1979 at "Unit 2" of the Three Mile Island nuclear plant. As a result of the accident, dangerous concentrations of radioactive gas collected in the reactor containment building, inhibiting cleanup and maintenance work.
Three months after the accident, the NRC issued an "Order for Modification of License," 44 Fed.Reg. 45,271 (1979), suspending Metropolitan Edison's authority to operate Unit 2 of the Three Mile Island plant (TMI-2), and requiring it to "maintain the facility in a shutdown condition." Id. 3 The NRC order indicated that, in about thirty days, the Commission would issue a "Safety Evaluation" addressing "the imposition of new and/or revised Technical Specifications setting forth appropriate license conditions." Id.
In fact, the NRC issued no such evaluation. Instead, on November 21, 1979, the NRC issued a "Statement of Policy and Notice of Intent to Prepare a Programmatic Environmental Impact Statement," 44 Fed.Reg. 67,738 (1979), which was to be an "overall study of the decontamination and disposal process." Id. The NRC Statement of Policy directed the agency's staff
to include in the programmatic environmental impact statement on the decontamination and disposal of TMI-2 wastes an overall description of the planned activities and a schedule for their completion along with a discussion of alternatives considered and the rationale for choices made.
On February 11, 1980, the NRC issued another order, 45 Fed.Reg. 11,282 (1980), which stated 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.
Id. 4
Six weeks later 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 the Assessment "considers five alternative methods for decontaminating the reactor building atmosphere and recommends that the building atmosphere be decontaminated by purging to the environment through the building's hydrogen control system." Id. 5 The NRC staff concluded in the Assessment that venting the 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 on the Assessment originally were due by April 11, 1980, but the period was extended to May 16, 1980. 45 Fed.Reg. 30,760 (1980).
In May of 1980, the NRC issued the "Final Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere." On June 12, 1980, the NRC issued without a hearing two final orders, entitled "Order for Temporary Modification of License," 45 Fed.Reg. 41,251 (1980), and "Memorandum and Order," 2 Nuclear Reg.Rep. (CCH) P 30,498.01 (1980). The first order modified the operating license 6 to permit the licensee to release the radioactive gas from the reactor building at a faster rate than the existing specifications allowed. 7 The first order also expressly stated that, because the NRC had found that the modification of the operating license involved "no significant hazards consideration," requests for a hearing would not stay the implementation of the order. 45 Fed.Reg. at 41, 252. 8 The second order authorized release of radioactive gas from the reactor building. 9 Venting was to begin on June 22. 10
On June 16, petitioners wrote a letter to the NRC requesting 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 respond.
On June 23, petitioners filed a petition in this court for review of the two June 12 orders. 11 Three days later this court denied the petitioners' requests for emergency injunctive and declaratory relief. The next day, one day before 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 Licensing Board. On July 3, one of the petitioners in No. 1691 moved the Board to suspend the venting; however, this request was subsequently 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 12 license amendment. The venting was completed on July 11. As the NRC had anticipated, the off-site doses from the venting were below the limits set in the June 12 radiation license amendment. In its draft Programmatic Environmental Impact Statement, NUREG-0683, issued August 14, 1980, the Commission stated that it did not anticipate a recurrence of the purging of the reactor building atmosphere, but that some minor releases of gas might be necessary for data gathering purposes. See Brief for Respondent Nuclear Regulatory Commission at 6 n.4 & 20 n.11.
Because the licensee has completed the venting of the reactor containment building, and because both of the June 12 orders have expired, the Commission and the licensee claim that petitioners' claims for injunctive and declaratory relief are moot. 12 However, because we find that these cases are "capable of repetition, yet evading review," 13 we hold that the petitioners' claims are justiciable in this court. 14
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 must exist if we are to avoid advisory opinions on abstract propositions of law." Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201, 24 L.Ed.2d 214 (1969). The case or controversy requirement "preserves the separation 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.' " Tennessee 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, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968)).
Cases arising from agency action, no less than cases involving only private parties, are subject to the mootness doctrine. Yet, as this court has recently noted, "the concept of mootness is placed under some strain in the context of administrative orders whose formal legal effect is typically shortlived." Tennessee Gas Pipeline Co. v. Federal Power Comm'n, 606 F.2d at 1379-80. The strain is relieved somewhat by an exception first articulated in ...
To continue reading
Request your trial
-
Deukmejian v. Nuclear Regulatory Com'n
...the circumstances in which hearings are to be held."), reprinted in 3 LEGISLATIVE HISTORY, supra note 139, at 3175.147 651 F.2d 780 (D.C.Cir.1980) (per curiam), vacated on other grounds, 459 U.S. 1194, 103 S.Ct. 1170, 75 L.Ed.2d 423 (1983).148 Id. at 781.149 Id. at 790.150 Id.151 Id. at 791......
-
City of West Chicago, Ill. v. U.S. Nuclear Regulatory Com'n
...the D.C. Circuit declined to rule on the nature of the hearing required by Section 189(a) in the context of a license amendment. Sholly v. NRC, 651 F.2d 780, certiorari granted, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981).11 Of course, if a formal adjudicatory hearing is mandated b......
-
Tucker v. Defense Mapping Agency
...505, 48 S.Ct. 331, 333, 72 L.Ed. 673 (1928); Baxter v. Claytor, 652 F.2d 181, 185 (D.C.Cir.1981); Sholly v. United States Nuclear Regulatory Commission, 651 F.2d 780, 791 n. 28 (D.C.Cir.1980). See Davis, Administrative Law Treatise § 20.07 at 99 (1958). An essential element of the claim of ......
-
Environmental Defense Fund, Inc. v. Gorsuch, s. 81-2025
...EDF's characterization of EPA's action--to effectively suspend any promulgated RCRA regulation. See Sholly v. United States Nuclear Regulatory Com'n, 651 F.2d 780, 785 (D.C.Cir.1980), vacated and remanded, --- U.S. ----, 103 S.Ct. 1170, 75 L.Ed.2d 423 (1983). Under this formulation of the i......