Sholly v. Nuclear Regulatory Commission

Nos. 80-1691; -1783; -1784 (D.C. Cir. April 4, 1983)

On remand from the Supreme Court, the D.C. Circuit rules that an amendment to § 189(a) of the Atomic Energy Act authorizing the Nuclear Regulatory Commission (NRC) to issue license amendments involving no significant hazard without first holding a hearing has rendered moot a previous decision, 11 ELR 20329, which required the NRC to hold hearings before authorizing release of radioactive gas from the damaged Three Mile Island plant. The court remands the case the the NRC, and notes that the NRC must hold a post hoc hearing if the parties request.

[The court designated this opinion not to be published pursuant to Local Rule 8(f). Local Rule 8(f) reads, in part: "(f) CITATIONS IN BRIEFS . . . . Unpublished orders, including explanatory memoranda of this Court, are not to be cited in briefs or memoranda of counsel as precedents. However, counsel may refer to such orders and memoranda for such purposes as application of the doctrines of res judicata, collateral estoppel and law of the case, which turn on the binding effect of the judgment, and not on its quality as precedent. See Rule 13(c)." — Ed.]

Counsel for Petitioners
Robert Hager
Christie Institute
1324 N. Capitol St., Washington DC 20002
(202) 797-8106

Counsel for Respondents
E. Leo Slaggie
Office of the General Counsel
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3224

Peter R. Steenland
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Counsel for Intervenors
George F. Trowbridge
Shaw, Pittman, Potts & Trowbridge
1800 M St. NW, Washington DC 20036
(202) 822-1000

Before Wright, Mikva, and Edwards, JJ.

[13 ELR 20703]

Per curiam:

Order

These cases came before the Court for consideration on petitions to review two orders of the Nuclear Regulatory Commission (NRC). The orders modified the operating license of Metropolitan Edison Company, authorizing it to release radioactive gas into the atmosphere at a faster rate than the existing specifications allowed and to vent the atmosphere of the nuclear containment building at the Three Mile Island plant. On November 19, 1980 this Court held that the orders were license amendments within the scope of § 189(a) of the Atomic Energy Act (Act), 42 U.S.C. § 2239(a) (1979), and that, as such, NRC's failure to hold a requested hearing prior to the issuance of these orders was a violation of the Act. Sholly v. Nuclear Regulatory Commission, 651 F.2d 780 [11 ELR 20329] (D.C. Cir. 1980) (per curiam). Both the NRC and Metropolitan Edison Company petitioned for and were granted a writ of certiorari. On February 22, 1983 and Supreme Court vacated this Court's opinion as moot and directed this Court to reconsider the case in light of Pub. L. No. 97-415, 96 Stat. 2067 (1983).

Public Law 97-415 is an act authorizing appropriations for the NRC. It also includes, however, a substantive amendment to § 189(a), which is set out in section 12.96 Stat. 2073-74 (to be codified at 42 U.S.C. § 2239(a)(2)). This amendment allows the NRC to issue and make a license amendment immediately effective if it makes a finding that no significant hazards consideration is involved. The legislative history of this amendment makes clear that the only legal significance of this change is the timing of the hearing; a hearing is still required, but, if no significant hazards considerations exist, it need not be held prior to the effective date of a license amendment. H.R. REP. No. 97-884, 97th Cong., 2d Sess. 37 (1982). In furtherance of this change, Congress also directed the NRC to promulgate regulations establishing standards for determining whether significant hazards are involved and criteria for providing prior notice in emergency situations. NRC's authority to issue and make immediately effective a license amendment does not itself take effect until these regulations are promulgated.

Having considered Public Law 97-415, we find that the portion of our opinion holding that a hearing requested under § 189(a) of the Act must be held prior to a license amendment's becoming effective will be moot as soon as NRC promulgates the regulations to which we refer above. We also find, however, that the NRC is still under a statutory mandate to hold a post hoc hearing, if requested by the parties. Upon consideration of the foregoing, it is

ORDERED, by the Court, that our opinion in Appeal Nos. 80-1691, 80-1783, and 80-1784 is vacated as moot. And it is

FURTHERED ORDERED, by the Court, that the case is remanded to the NRC so that, if the petitioners so desire, the hearing required by 42 U.S.C. § 2239(a) may be held. And it is

FURTHERED ORDERED, by the Court, that the Clerk shall issue the mandate herein on the seventh day following entry of this order.