Sholly v. U.S. Nuclear Regulatory Com'n
| Decision Date | 04 March 1981 |
| Docket Number | Nos. 80-1691,80-1783 and 80-1784,s. 80-1691 |
| Citation | 651 F.2d 792 |
| Parties | , 209 U.S.App.D.C. 71, 11 Envtl. L. Rep. 20,336 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 |
On Suggestion for Rehearing En Banc.
Before McGOWAN, Chief Judge, and WRIGHT, TAMM, ROBINSON, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
The suggestion for rehearing en banc of the Public Utilities has been circulated to the full court and a majority of the court has not voted in favor thereof. On consideration of the foregoing, it is
ORDERED, by the Court, en banc, that the suggestion of the Public Utilities is denied.
Their statement is attached.
We would grant a rehearing en banc in Sholly, et al. v. United States Nuclear Regulatory Commission, et al., No. 80-1691, --- F.2d ---- (D.C.Cir. 19 Nov. 1980) to review the startling proposition found within that opinion: that even when the Nuclear Regulatory Commission (NRC) has expressly found that a proposed amendment to an existing nuclear power plant operating license poses "no significant hazards " to human health or safety, the Nuclear Regulatory Commission is nevertheless required to provide a preamendment hearing to anyone who has expressed "continued interest in and opposition to" its actions on related matters. At ---- n.25. 1
The panel's action raises an issue of "exceptional importance." Fed.R.App.P. 35(a). Under the rubric of statutory interpretation, the panel has made a policy decision of major consequence. The panel has read into section 189(a) of the Atomic Energy Act of 1954, 42 U.S.C. § 2239(a) (1976), as amended, the requirement that even notwithstanding a finding of "no significant hazards consideration" in a proposed license amendment, the NRC must nonetheless hold a prior hearing on the proposed amendment upon request of any interested person. By then drastically loosening the standard for what constitutes a "request" for a hearing, the panel has thrust upon the NRC the burden of holding full-fledged hearings before even the most trivial amendments to NRC operating licenses may be adopted.
We believe that the panel's inflexible blanket rule violates the Supreme Court's unanimous mandate in Vermont Yankee rejecting judicial imposition of administrative procedures upon an agency in excess of the statutory minima prescribed by Congress. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543, 98 S.Ct. 1197, 1211, 55 L.Ed.2d 460 (1978). Furthermore, by reversing long-standing NRC policy, the panel's decision forces a major reallocation of Commission resources, which appears likely both to overwhelm the agency's hearing machinery and to divert staff attention from safety issues of greater significance. Finally, the panel decision threatens to result in the closing for as much as nine months of numerous power plants currently awaiting license amendments pending completion of hearings, when post hoc hearings might in fact be more than adequate to ventilate any health and safety issues posed by most amendments.
The license amendment in this case a temporary modification of the Three Mile Island nuclear power plant's operating license to permit post-accident release of radioactive gas from the reactor building at rates exceeding existing specifications was atypical among NRC operating license amendments. 2 Only a tiny fraction of all license amendments involve emergency matters so subject to factual dispute as the hazards attendant to venting radioactive gas into the atmosphere. The Commission acts on an average of more than 400 license amendments per year. NRC's Motion to Stay Issuance of Mandate at 3. For the seventy-one power reactors currently licensed for operation, some 800 license amendment actions are presently before the Commission. The vast bulk of these concern matters such as: changing or adding to the myriad Technical Specifications embedded in a given power plant's 400-page operating license, detailing a plant's operating conditions, modifying surveillance requirements, administrative controls, design features or the like. Affidavit of Roger S Boyd, Former Director of the Division of Project Management, NRC Office of Nuclear Reactor Regulation at 3, attached to Intervenor-Respondents' Petition for Rehearing and Suggestion for Rehearing En Banc (Boyd Affidavit).
The NRC staff completes review of some fifty of these amendments per month; typically, it refuses to make a finding of "no significant hazards consideration" in a proposed amendment unless (1) the proposed change raises no significant new safety information of a type not previously considered in prior safety reviews, (2) the change raises no significant increase in the probability or consequences of an accident, or (3) the change offers no significant decrease in the plant's safety margin. Id. at 781 - 782. Over the past four calendar years, the NRC has published notice in the Federal Register of more than 1500 amendments to operating plant licenses which the NRC staff found to have "no significant hazards considerations." Id. at 782. The NRC has recognized that delay in issuance of license amendments would require plant shutdown if agency review is not expeditiously completed. 3 Moreover, plants already shutdown for refueling or other reasons cannot restart until such review is completed. Thus NRC, practice and regulations have long called for approval of license amendments without hearing upon a finding of no significant hazards, accompanied by post-approval publication of notice in the Federal Register. 4
We believe that the agency's past practice complied fully with statutory mandates. Whether or not a finding of "no significant hazards consideration" has been made, no hearing is required under the applicable language of section 189(a) of the Atomic Energy Act, 42 U.S.C. § 2239(a) (1976), unless a hearing has first been specifically requested. The first sentence of section 189(a) only requires the NRC to grant a hearing on a license amendment proposal "upon the request of any person whose interest may be affected by the proceeding." (Emphasis added.) The third sentence, however, permits the NRC "in the absence of a request therefor by" such a person to issue an amendment without a hearing, "upon thirty days' notice and publication 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 such "thirty days' notice and publication ... upon a determination by the Commission that the amendment involves no significant hazards consideration." 5
The Sholly panel read this language to conclude that the agency has for years in fact been operating in violation of section 189(a). The panel first argued that this court had previously held in Brooks v Atomic Energy Comm'n, 476 F.2d 924, 926 (D.C.Cir. 1973) "that the fourth sentence (of section 189(a)) only dispenses with requirements of notice and publication," not the requirement of a hearing. 651 F.2d At 786. Furthermore, the panel then independently read the statutory language to require the same conclusion, finding that because the fourth sentence of section 189(a) refers only to thirty days' notice and publication, it "plainly demonstrates that Congress did ... intend to disentangle the two requirements of notice and hearing." At 787. The legislative history of the 1962 amendments to section 189(a), the panel concluded, demonstrates that Congress perceived the changes to section 189(a) as permitting the NRC to dispense only with notice and publication not a hearing upon a finding of "no significant hazards consideration." Id. at 788.
We believe that the panel unjustifiably relied on this court's brief per curiam opinion in Brooks to support its central proposition. We further believe that the panel's independent interpretation of the relevant language in section 189(a) ignored logic and distorted the legislative history of that section.
In Brooks two utility companies petitioned the Atomic Energy Commission to modify the provisional construction permits for two nuclear power plant units in order to extend the "latest completion date" specified in the permits. Petitioners, persons living near the proposed construction site, had earlier filed a timely request for a hearing with respect to two issues: whether the provisional construction permits should be modified to protect environmental values in accordance with NEPA and whether operating licenses for those facilities should issue. 476 F.2d at 925-26. The Commission gave petitioners notice that a hearing would be held on the second matter, "but inexplicably failed" to give notice that the proceedings would also permit discussion of the first issue: modification of the construction permits. Id. at 926 & n.6.
In ordering a hearing on the issue of extension of permit completion dates, the court made two points. Noting that the Commission's order summarily extending those dates had given "no indication whatsoever that the amendment involved no significant hazards...
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