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October 12, 1979

SUSQUEHANNA VALLEY ALLIANCE, Ronald L. Davis, Betty Tompkins, Beverly M. Hess, Doreen E. Snell, Plaintiffs,
THREE MILE ISLAND NUCLEAR REACTOR, general Public Utilities, Metropolitan Edison company, Jersey Central Power & Light Co., Pennsylvania Electric Co., Nuclear Regulatory Commission, Joseph A. Hendrie, Herman Dieckamp, Walter M. Creitz, W. A. Verrochi, Shepard Bartnoff, Defendants

The opinion of the court was delivered by: RAMBO


This case is a sequel to the nuclear accident which occurred on March 28, 1979, at Unit No. 2 of the Three Mile Island (TMI) nuclear power plant. The island on which the power plant was built is in the Susquehanna River near Harrisburg, Pennsylvania. As a result of the accident, there are several hundred thousand gallons of radioactively contaminated water in the containment building of Unit No. 2 and in tanks in auxiliary buildings. The water is of varying levels of contamination. The dispute at hand concerns the steps being taken to dispose of the contaminated water.

 Plaintiff, Susquehanna Valley Alliance, was formed in 1979 to preserve and protect the environmental quality of the Susquehanna River and the surrounding area. The individual plaintiffs live in Lancaster County, downstream from the damaged reactor. They allege that they drink and bathe in water whose source is the Susquehanna.

 It is undisputed that the private defendants have proceeded with the construction of a system, known as Epicor II, which is designed to treat the intermediate level contaminated water. Highly contaminated water will be treated by another system which is still in the study and design stage. NRC did not require the private defendants to apply for a construction permit prior to building Epicor II, nor has it yet determined if the private defendants must apply for a modification of their license before operating Epicor II.

 The complaint contains four counts which set forth the following claims. Count I charges that the steps being taken to deal with the radioactive wastes at TMI are major federal actions within the meaning of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321, et seq. NEPA requires that, whenever the federal government plans to take action which may have an impact on the environment, the agency contemplating the action study and report on the potential environmental impact of the planned activity. 42 U.S.C. § 4332. Because the waste water processing and disposal activity is claimed to be within the scope of NEPA, plaintiffs request that the court declare that the defendants are in violation of NEPA, and compel NRC to prepare an environmental impact statement.

 Count II deals with NRC regulations and parts of the Atomic Energy Act, 42 U.S.C. § 2011, et seq. It is plaintiffs' contention that, under the statute and regulations, NRC should have required the nuclear plant operators to apply for a construction permit prior to building Epicor II, and should require that TMI's license be amended before permitting Epicor II to operate. The court is asked to declare that the defendants are in violation of the Atomic Energy Act and to enjoin activities related to the disposal of high level radioactive water until both the utilities and NRC comply with all applicable federal statutes.

 Count III states that the defendants will violate Section 301(f) of the Clean Water Act of 1977, 33 U.S.C. § 1311(f), because "high level radioactive pollutants may be discharged into the river" through failure of the pollution control technology to treat these wastes. Count IV raises constitutional issues. It charges NRC with violations under the first, fifth, ninth, tenth and fourteenth amendments which allegedly protect plaintiffs' right "to be born and to live mentally and physically unimpaired."

 On the same day that the present action was filed, NRC issued a statement directing its staff to prepare an environmental assessment dealing with proposals to decontaminate and dispose of radioactively contaminated waste water at the TMI facility. In that statement, NRC declared that:

(t)he assessment should include discussion of potential risks to the public health and safety, including occupational exposures and the risk of accidental releases, and a discussion of alternatives to the Epicor II system.

 The NRC directive ordered that, until the assessment on processing the intermediate radioactive waste water was completed, and the public had been given an opportunity to comment on the staff report resulting from the assessment, the licensee was not to operate Epicor II for other than testing purposes. NRC permitted the testing to proceed on the condition that only nonradioactive water was to be utilized in the trial operations.

 Reports assessing the environmental consequences of disposal of the intermediate level processed contaminated water and the processing and disposal of the highly radioactive water have yet to be released. They also will be subject to public scrutiny prior to adoption by NRC.

 Both NRC and the private defendants filed motions to dismiss the case for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction in this court. *fn1" They contend that Count I should be dismissed as moot because NRC has undertaken an environmental assessment of the actions related to the cleanup operation at TMI-2. With regard to the issues raised in all four counts, defendants urge that this court lacks subject matter jurisdiction because plaintiffs must first exhaust their administrative remedies by seeking through NRC the relief sought in this court. Should NRC render a decision adverse to plaintiffs, defendants believe those ...

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