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Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor

ELR Citation: 10 ELR 20235
Nos. No. 79-2446, 619 F.2d 231/15 ERC 1394/(3d Cir., 03/17/1980)

The Third Circuit Court of Appeals reverses a decision of a district court dismissing, for lack of subject matter jurisdiction, a complaint seeking injunctive and declaratory relief against the proposed discharge of radioactive effluent from the damaged Three Mile Island nuclear power plant. As to appellants' claim, in count II, that the operators of the plant will violate the Atomic Energy Act (AEA), Nuclear Regulatory Commission (NRC) regulations, and the terms of their operating license if they discharge the contaminated water, the court finds that the district court was technically not without jurisdiction to consider the claim. However, §221 of the AEA provides that suits in federal court to enforce the Act's requirements may be brought only by the Attorney General. Although this claim should thus have been dismissed for failure to state a claim on which relief could be granted, the court affirms the district court's dismissal despite the fact that it was made on jurisdictional grounds. NRC defended the dismissal of Count I, alleging the agency's noncompliance with the environmental impact statement (EIS) requirement of the National Environmental Policy Act (NEPA), on the ground that questions of NEPA compliance that are raised in licensing proceedings may be reviewed only by the courts of appeals under §189 of the AEA. In this case, however, appellants are challenging action that will be taken prior to the conclusion of the proceeding and prior to the preparation of an environmental impact statement. Deeming this a serious question of compliance with NEPA, yet finding no final agency action reviewable in the courts of appeals, the court concludes that this issue was properly considered by the district court in the first instance. The court reverses the district court's dismissal, for failure to exhaust administrative remedies, of Count III, which alleged that the proposed discharge of contaminated water would violate the flat prohibition within §301(f) of the Federal Water Pollution Control Act (FWPCA) against discharges of high-level radioactive wastes. The court agrees with defendants that the Act calls for some degree of judicial deference to NRC's power to investigate and rectify this possible violation within 60 days after it has been brought to the agency's attention. Since the district court's opinion in this case was rendered more than 60 days after the complaint was filed, however, it was error to dismiss this count on exhaustion grounds. Moreover, since appellants alleged injury-in-fact as a result of the proposed discharge and asserted jurisdiction under 28 U.S.C. §1331, they had successfully established an independent cause of action that was expressly preserved by the savings clause in the citizens suit provision of the FWPCA and need comply with the 60-day notice requirement in that provision. Finally, the court rules that while Count IV, which relied on implied causes of actions under various constitutional provisions, may be legally unmeritorious, it was nonetheless within the district court's jurisdiction and was thus improperly dismissed on jurisdictional grounds.

Counsel for Appellants
Albert J. Slap
Public Interest Law Center of Philadelphia
1315 Walnut St., Suite 1600, Philadelphia PA 19107
(215) 735-7200

Jean Royer Kohr
Minney, Mecum & Kohr
121 E. King St., Lancaster PA 17602
(717) 299-5649

Larry B. Selkowitz
Widoff, Reager, Selkowitz & Adler
P.O. Box 15477, Harrisburg PA 17105
(717) 763-1383

Counsel for Private Appellees
George F. Trowbridge, Mark Augenblick, Thomas A. Baxter
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 331-4100

Counsel for Nuclear Regulatory Commission
Leonard Bickwit Jr., General Counsel; Stephen F. Eilperin, Solicitor; E. Leo Slaggie, Stephen Ostrach
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3224

Sanford Sagalkin, Ass't Attorney General; Peter R. Steenland Jr., Chief, Appellate Sectionn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2718

Joined by Higginbotham and Sloviter, JJ.