ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0658)
Before Gibbons, Higginbotham and Sloviter, Circuit Judges.
The Susquehanna Valley Alliance, an unincorporated association of residents of Lebanon, York, and Lancaster Counties in the Commonwealth of Pennsylvania dedicated to preservation of the environment of the Susquehanna River, and four Lancaster County residents, (collectively the Alliance) appeal from an order dismissing their complaint seeking injunctive and declaratory relief for lack of subject matter jurisdiction. We conclude that the complaint states some claims over which the district court has jurisdiction, and we will reverse.
I. Proceedings in the District Court
The defendants are the Nuclear Regulatory Commission (NRC), Joseph A. Hendrie, its Chairman, General Public Utilities and several of its subsidiaries, who own and operate Unit 2 of the Three Mile Island Nuclear Power Station at Middletown, Dauphin County, Pennsylvania (collectively the Operators) and several officers of the Operators. The complaint alleges, and it is conceded by all parties, that on March 28, 1979, an accident at Unit 2 made it necessary to bring that Unit to a cold shutdown, and that as a result of the shutdown 600,000 gallons of water, contaminated by a high level of radioactive waste, have accumulated in the reactor containment building and 250,000 gallons of water contaminated by an intermediate level of radioactive waste have accumulated in the Unit's auxiliary building and associated tanks.*fn1 The complaint alleges that the defendants have planned an attempt to partially decontaminate the water and threaten to release this water eventually into the Susquehanna River, where because of the proposed decontamination system's technological limitations it will contaminate both municipal water systems and fish and other wildlife used by the plaintiffs for food. More specifically, the complaint alleges that NRC has authorized the Operators to purchase, erect, and begin the operation of a system, known as Epicor II, for treatment of contaminated water. The system will decontaminate the water by passing it through resin beds in which isotopes other than hydrogen and oxygen will bind to the resin, while the decontaminated water will be discharged. Thus, the radioactive isotopes will be trapped in resin beds while the non-binding hydrogen and oxygen will be discharged.*fn2 The complaint alleges that there is no known technology available to maintain the integrity of the resin beds and that if they disintegrate radioactive waste materials will be discharged into the river or the air. While the Operators propose to treat only the intermediate level radioactive water by means of the Epicor II system, that water is alleged to contain "high-level radioactive waste" within the meaning of section 301(f) of the Federal Water Pollution Control Act (FWPCA),*fn3 which prohibits discharge of such waste into the navigable waters of the United States. Moreover, the complaint alleges, neither the Operators nor the NRC have any overall plan to deal with the entire contaminated water problem, or any feasible plan for disposal of the highly radioactive resin residue which Epicor II will produce. Finally, it is alleged that because the containment building and the auxiliary building are presently secure there is no immediate necessity for putting the Epicor II system into operation.
Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1361, 1331, and 1337 as well as 33 U.S.C. § 1365(a)(2) and 5 U.S.C. §§ 704, 706. The complaint alleges the jurisdictional amount required by 28 U.S.C. § 1331. Plaintiffs' complaint charges that the actions and inactions of the NRC and the actions of the Operators have given rise to four substantive claims. Count I charges violations of section 102 of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361, 4332 (1976), and of a provision of the Operators' operating license requiring that the licensee, before engaging in additional construction or operational activity, prepare and record an environmental evaluation of such activity. Count II charges violations of various provisions of the Atomic Energy Act, 42 U.S.C. §§ 2011-2296 (1976 & Supp. I), regulations of the NRC issued pursuant to that Act, and the Operators' license. Count III charges violations of section 301(f) of the Federal Water Pollution Control Act, 33 U.S.C. § 1311(f). Count IV alleges that the action of the NRC permitting the Operators to discharge radioactive waste violates plaintiffs' rights under various provisions of the United States Constitution.
The district court, without separately analyzing the four Counts of the complaint, concluded that the relief requested was unavailable from any source other than the NRC, that the plaintiffs had failed to exhaust administrative remedies before that agency, and that the court lacked subject matter jurisdiction. The complaint thus was "dismissed for lack of subject matter jurisdiction, but without prejudice to plaintiffs' right of recourse to the (NRC)."*fn4 Since the order appealed from dealt only with whether the complaint stated any cause of action within the subject matter jurisdiction of the district court, we must first consider that question with respect to each count.*fn5 Although the complaint pleads the violation of the National Environmental Policy Act of 1969 as the first Count, we think that the interaction of several federal statutes upon which the parties rely can better be understood by commencing our discussion with the alleged violations of the Atomic Energy Act.
II. The Atomic Energy Act, 42 U.S.C. §§ 2011-2296 (1976 & Supp. I)
The Energy Reorganization Act of 1974, Pub.L.No.93-438, 88 Stat. 1233, codified in relevant part at 42 U.S.C. § 5841, reprinted in (1974) U.S.Code Cong. & Admin.News, p. 1401, established the Nuclear Regulatory Commission (NRC) and transferred to it the licensing jurisdiction over private nuclear power plants originally created in the Atomic Energy Act of 1954, Pub.L.No.83-703, §§ 1, 101-110, 68 Stat. 919, 921, 936-39, codified at 42 U.S.C. §§ 2011, 2131-2140, and which were formerly exercised by the Atomic Energy Commission. The Act as amended authorizes the NRC to prescribe regulations "to govern any activity authorized pursuant to this chapter, including standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life and property." 42 U.S.C. § 2201(i)(3) (1976 & Supp. I). The NRC has adopted regulations setting forth procedures for imposing requirements by order, or for modification, suspension, or revocation of licenses. 10 C.F.R. §§ 2.200-.206 (1978). As currently codified, the Act provides for hearings in any proceedings "for the granting, suspending, revoking, or amending of any license or construction permit." 42 U.S.C. § 2239(a). Finally, the Act provides that
(a)ny final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the provisions of section 10 of the Administrative Procedure Act, as amended.
Id. § 2239(b). The Act of December 29, 1950, referred to in the quoted provision, is the Administrative Orders Review Act, which provides in relevant part that
(t)he Court of Appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of
(4) All final orders of the Atomic Energy Commission*fn6 made reviewable by section 2239 of title 42 . . .
28 U.S.C. § 2342 (footnote added). NRC contends that its consideration of the problem of disposing of contaminated water at Unit 2 is a license proceeding falling within section 2239(a). It urges that the judicial review provision in section 2239(b) is an exclusive remedy, that no final order has yet been entered in that proceeding, and that in the absence of a final order no court can review its action or inaction. The allegations of the complaint, however, are to the effect that the Operators threaten construction and operation of the Epicor II system without the required license or construction permit and therefore in violation of the Atomic Energy Act. Thus, fairly read, the complaint seeks more than judicial review of incomplete agency action; it seeks to enjoin activity of the licensee said to violate the Act and to endanger the health of the community. Recognizing this, NRC contends that it is the sole tribunal authorized to entertain a charge of such a violation. It points to its regulation, 10 C.F.R. § 2.206, which authorizes any person to file a request with the Director of Nuclear Material Safety and Safeguards, or the Director, Office of Inspection and Enforcement, to institute a proceeding to modify, suspend or revoke a license or take such other action as may be proper. NRC thus argues that the Alliance must first seek administrative relief under section 2.206 and that once NRC's final order in that proceeding is issued, the exclusive review provision of section 2342, 28 U.S.C. § 2342, will govern. Moreover, NRC suggests, this exclusive review mechanism is adequate to protect the public even from pendente lite harm, since a reviewing court also has the power to issue interlocutory injunctions. 28 U.S.C. § 2349(b).
It is true that section 2349(b) permits the court of appeals to grant pendente lite relief, but that power exists only in cases over which the court has jurisdiction. It has jurisdiction only over final orders of the agency, however, and thus section 2349(b) affords no authority for the court of appeals to grant relief in order to prevent irreparable injury before the agency gets around to taking action. The Alliance charges that the Operators are in violation of the Act and about to cause irreparable injury, and that NRC has done nothing to prevent that injury. If NRC is correct in arguing that only it can consider the charge of a violation of the Act in the first instance, and that review under the Administrative Orders Review Act is exclusive, then the unavailability of pendente lite relief during the time when the agency has the case under consideration would seem, superficially, to leave a large gap in the protection available to the public. However, that gap appears to be filled by the All Writs Act,*fn7 for in FTC v. Dean Foods Co., 384 U.S. 597, 86 S. Ct. 1738, 16 L. Ed. 2d 802 (1966), the Supreme Court held that section 1651(a) authorized courts of appeals to issue preliminary injunctions preserving the status quo, pending final agency action, of matters over which, by virtue of section 11(c) of the Clayton Act, 15 U.S.C. § 21(c) (1976), they had exclusive review jurisdiction. 384 U.S. at 604-05, 86 S. Ct. at 1742-43. The Dean Foods analysis appears to be equally applicable to cases before the NRC. Thus the Alliance could have asked NRC to act, see 10 C.F.R. § 2.206(a), and could have asked the appropriate court of appeals to grant pendente lite relief while NRC considered the case.
The pendente lite relief available under 28 U.S.C. §§ 2349(b) and 1651(a), while it makes the NRC argument for absence of district court jurisdiction more palatable, does not decide the question. In other instances in which there was exclusive jurisdiction in the court of appeals under the Administrative Orders Review Act this court has reserved decision on the question whether a district court may entertain cases challenging the timeliness of agency action. City of Trenton v. FCC, 441 F.2d 1329, 1333 & n.8 (3d Cir. 1971); Bucks County Cable TV, Inc. v. United States, 427 F.2d 438, 442 (3d Cir.), cert. denied, 400 U.S. 831, 91 S. Ct. 62, 27 L. Ed. 2d 61 (1970); see Citizens for a Safe Environment v. Atomic Energy Comm'n, 489 F.2d 1018, 1022-23 (3d Cir. 1974) (expressing no view as to whether Commission's order could be reviewed in district court proceeding for injunctive, declaratory or mandamus relief). Tacitly, at least, we have assumed that despite the exclusive jurisdiction language in 28 U.S.C. § 2342 there may be room for district court relief which did not amount to judicial review of a final agency order. We have not heretofore considered whether, since relief against the Agency is available in the court of appeals under the All Writs Act, we should countenance any erosion of the exclusivity provision. Nor have we considered whether, when an agency has jurisdiction to consider a claim that the Act it is charged with enforcing has been violated, there may still be judicial enforcement against the alleged violator, rather than against the agency. Certainly, however, the answer to the latter question is not to ...