OPINION OF THE COURT
GIBBONS, Circuit Judge.
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.
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]."
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  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
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
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
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 be found in the exclusivity provision. 28 U.S.C. § 2342. For if there is a substantive cause of action available against violators in a non-agency forum, the exclusive review provision of that statute would not apply to the actions of that forum. Rather, the inquiry must be whether the statutory scheme has expressly or impliedly confined enforcement to a single agency, precluding relief in a non-agency forum.
The statutory scheme in issue authorizes no person or agency other than the NRC to grant, suspend, revoke or amend a license to operate a nuclear power reactor. 42 U.S.C. § 2239(a). But that section does not in so many words say that a license suspension proceeding is the only method of enforcing the prohibitions of the Act. Peculiarly, however, there are found in the subchapter of the Atomic Energy Act dealing with enforcement, 42 U.S.C. §§ 2271-2282, provisions not called to our attention by any of the parties, which appear to preclude private enforcement. The enforcement subchapter provides for three types of enforcement: criminal prosecutions, id. §§ 2272-2278b; injunction actions, id. § 2280; and civil penalties, id. § 2282. Obviously criminal enforcement is entirely in the hands of the government. Id. §§ 2271(b), 2271(c). The civil penalty provision, which was added by the Atomic Energy Act Amendments of 1969, Pub.L.No.91-161, §4, 83 Stat. 444, authorizes the Commission to impose such penalties in the first instance, 42 U.S.C. § 2282(a), while their collection is by a civil action instituted by the Attorney General at the Commissioner's request. Id. § 2282(c). As to the injunctive
Id. § 2280. The statutory setting for the Commission's authority to request injunctive relief must, however, be read in conjunction with section 221(c), the general enforcement provision of the Act, id. § 2271(c), which provides:
Id. The injunctive relief provision first appeared in section 16(c) of the Atomic Energy Act of 1946, Pub.L.No.585, § 16(c), 60 Stat. 755. It authorized the Atomic Energy Commission to commence suits for injunctive relief. In the Atomic Energy Act of 1954, the injunctive remedy was carried forward in section 232, but the authority to sue was given to the Attorney General. Atomic Energy Act of 1954, Pub.L.No.83-703, § 232, 68 Stat. 959. The general prohibition against suits by anyone other than the Attorney General first appeared in section 221(c) of the 1954 Act. Id. § 221(c), 68 Stat. 958. The final proviso, excepting administrative action by the Commission from that prohibition, was added when the Act was amended in 1969. Atomic Energy Act Amendments of 1969, Pub.L.No.91-161, §5, 83 Stat. 444.
We have not found very much by way of legislative history illuminating the reasons for the adoption of section 221(c).
III. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4361 (1976)
Turning to Count I, which charges defendants with violations of section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4361, 4332 (1976), we note at the outset that the statute is directed toward the activities not of private parties but of the federal government. Thus although Count I alleges that the Operators have violated the provisions of their Operating License for Unit 2 by failing to provide a written evaluation of the environmental impact of their actions, Complaint ¶ 80, that allegation adds nothing of substance to the charge that the National Environmental Policy Act has been violated.
The NRC has recognized its obligation to comply with the National Environmental Policy Act by promulgating regulations governing licensing and regulatory policy and procedures with respect to environmental protection. See 10 C.F.R. §§ 51.1 to .56 (1978). The NRC requires applicants for construction or operation permits to file an environmental report. Id. § 51.20. A draft environmental impact statement is then prepared by the NRC staff and is distributed to appropriate federal agencies and published in the Federal Register. Id. §§ 51.22 to .25. After comments have been received, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards or their designee prepares a final environmental impact statement. Both the draft statement and the final statement accompany the application through the NRC review process. Id. § 51.26. The regulations recognize that the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards may determine that no environmental impact statement need be prepared for a particular action, but provide that any party to an NRC proceeding may take a position and offer evidence on the aspects of the proposed action claimed to fall within the Act. Id. §§ 51.5(c), 51.50(d), 51.51(b)(1). The adequacy of NRC compliance with the National Environmental Policy Act in any license proceeding is reviewable in the court of appeals pursuant to 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 526-27, 98 S.Ct. 1197, 1203-04, 55 L.Ed.2d 460 (1978) (final decision of AEC with respect to licensing and compliance with National Environmental Policy Act requirements is reviewable in court of appeals under 28 U.S.C. § 2342 and 42 U.S.C. § 2239); New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 93 (1st Cir.1978) (final environmental impact statement of NRC is reviewable).
What the Alliance charges in this suit is that NRC, by fragmenting its consideration of the problem of disposing of the contaminated water in Unit 2, and authorizing the erection and operation of Epicor II to dispose of the intermediate level contaminated water, without preparation or consideration of either a draft or a final environmental impact statement, has frustrated the Act
Enforcement of the environmental impact statement requirement generally has been assumed to be within the subject matter jurisdiction of the district courts. E.g., Flint Ridge Dev. Co. v. Scenic Rivers Ass'n., 426 U.S. 776, 782-83, 96 S.Ct. 2430, 2435, 49 L.Ed.2d 205 (1976); Environmental Defense Fund v. Tennessee Valley Auth., 468 F.2d 1164 (6th Cir.1972). Moreover, the analysis of the enforcement subchapter of the Atomic Energy Act in Part II, supra, is inapplicable. Count I is not directed to a violation of that Act, but to a violation of the National Environmental Policy Act of 1969, and private enforcement of that statute has been the rule. Whatever were the policy reasons for concentrating enforcement of the Atomic Energy Act in the hands of the Attorney General, they do not apply to Count I.
Where, however, an agency provides an opportunity for private parties to intervene and raise the issue of the necessity for preparation of an environmental impact statement, and where both review and pendente lite relief can be obtained in the court of appeals, it would not be an unreasonable construction of the Administrative Orders Review Act, 28 U.S.C. § 2342, that enforcement of the National Environmental Policy Act against that agency is available only in the court of appeals. That is the construction which is sought by NRC. In Scientists' Institute for Public Information, Inc. v. AEC (SIPI), 481 F.2d 1079 (D.C.Cir.1973), the Court of Appeals for the District of Columbia Circuit held that the district court could, and should, entertain an action to enforce the environmental impact statement requirement against the Atomic Energy Commission, to which the same review scheme applies. In that case Judge Wright gave considerable attention to the significance of timing of the impact statement. Id. at 1093-98. The Alliance makes the valid point that when by fragmentating its consideration the NRC postpones preparation of an impact statement until after private parties have been permitted to expend large sums on construction, the resulting change in the status quo has the almost inevitable effect of distorting the later view of both the agency and the reviewing court as to the desirability of the action in question. See Calvert Cliffs' Coord. Comm. v. AEC, 449 F.2d 1109, 1127 (D.C.Cir. 1971) (AEC should not be permitted to foreclose alternative solutions by delaying environmental impact statements). Although the Supreme Court has repudiated the list of factors relevant to timing that was enumerated by Judge Wright in SIPI, see Kleppe
It is conceivable that the All Writs Act, 28 U.S.C. § 1651, as interpreted in FTC v. Dean Foods Co., 384 U.S. 597 (1966), may authorize the court of appeals to enforce timely compliance with the National Environmental Policy Act with respect to agency proceedings that it may ultimately review. Another conceivable approach is to hold that whenever NRC takes any action having the effect of permitting a licensee to commence construction of any facility there is a final order within the meaning of 42 U.S.C. § 2239(b). Neither approach seems desirable. In many instances determination of when an impact statement should be prepared will require a record. While the court of appeals can devise procedures for the preparation of a record in a section 1651 proceeding, the district court has both procedures and facilities at hand for that task. Thus resort to the more ordinary remedy of a suit for declaratory or injunctive relief, or to the mandamus remedy authorized by 28 U.S.C. § 1361 seems preferable to inviting litigation here. The approach of treating any NRC action which permits a licensee to do anything as a final order, aside from the problems arising from the absence of a record, poses the additional problem of proliferation of litigation over what agency action is final for purposes of review. See Westinghouse Elec. Corp. v. NRC, 598 F.2d at 768 n. 35. This is not a case in which the administrative record is complete and a final order has undoubtedly been made. E.g., Natural Resources Defense Council, Inc. v. NRC, 606 F.2d 1261, 1264-66 (D.C.Cir.1979).
We conclude, therefore, that a claim that NRC is not complying with the National Environmental Policy Act states a cause of action over which the district courts have subject matter jurisdiction, and that dismissing Count I for lack of subject matter jurisdiction was error. Our holding that there is subject matter jurisdiction over Count I should not be construed as an indication that the requested relief, injunctive or declaratory, should be granted. It may be that NRC will convince the court that its fragmentation of the contaminated water problem was entirely proper, or at least within the range of permissible agency discretion on the timing of environmental impact statements. It may be appropriate, moreover, for the district court to stay its hand pending further agency proceedings, while retaining jurisdiction. These are issues which on the present record are not before us. Nor on this record do we have
IV. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. I)
In Count III the Alliance charges that the Operators are threatening to violate section 301(f) of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, 1311(f) (1976 & Supp. I), which provides:
Id. § 1311(f).
In dealing with Count III the district court ruled:
With no further analysis, the court concluded that it lacked subject matter jurisdiction over Count III. But the prohibition in section 301(f) is absolute; NRC has no discretion to consider whether or not to permit a prohibited discharge. Moreover the Federal Water Pollution Control Act, in sharp contrast with the Atomic Energy Act, provides expressly for private enforcement. See 33 U.S.C. § 1365 (citizens' suit provision). Section 505(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a) provides:
This type of citizens' suit provision is similar to those included in a number of federal environmental statutes.
The complaint alleges that two days prior to the filing of the complaint the Alliance gave the required notice both to the Administrator of EPA and to the NRC. There are exceptions in section 505(b) to the 60-day notice requirement with respect to violations of sections 306 and 307(a) of the statute, 33 U.S.C. §§ 1316 and 1317(a). There is no exception, however, to the waiting period for radioactive waste discharged in violation of section 301(f), 33 U.S.C. § 1311(f). We have been referred to no legislative history revealing why high-level radioactive waste, which many people would consider ultrahazardous, was not included among the exceptions to the waiting period. Appellants have urged that the omission was somehow inadvertent, and that we should read the exceptions as applicable. We decline to do so. While we are puzzled by the omission we are not free to rewrite the statute.
NRC has taken before this court a rather pragmatic approach to the 60-day notice provision. It observes:
Supplemental Brief for Appellee Nuclear Regulatory Commission at 4. The Operators make no such concession. They contend that premature suits should be dismissed for lack of jurisdiction even if at the time when the district court acts upon the motion to dismiss the responsible agency has had notice for sixty days.
We agree with NRC that reading section 505(b) to require dismissal and refiling of premature suits would be excessively formalistic. At the time the district court acted, on the face of the complaint it appeared that NRC had had notice of the alleged violation under consideration for more than sixty days. Certainly, then, the complaint alleged a claim over which the district court had subject matter jurisdiction under section 505(a), 33 U.S.C. § 1365(a).
Moreover, as we recently held in National Sea Clammers Association v. City of New York, 616 F.2d 1222 (3d Cir.1980), the savings clause in the citizens' suit provision, 33 U.S.C. § 1365(e), has independent significance preserving private causes of action for persons who can allege the requisite jurisdictional amount for jurisdiction under 28 U.S.C. § 1331. The complaint pleads the jurisdictional amount and general federal question jurisdiction under section 1331. It charges that the plaintiffs will be injured in fact by the discharge of radioactive waste into the Susquehanna River. Reading the complaint as a whole, it is clear that Count III states a claim within the subject matter of the district court entirely apart from the Federal Water Pollution Control Act's citizens' suit provision. 33 U.S.C. § 1365(a). See National Sea Clammers Ass'n v. City of New York, 616 F.2d at 1227-1228.
There is no room for that argument in the enforcement scheme of the Federal Water Pollution Control Act. The citizens' suit provision in section 505, 33 U.S.C. § 1365, contains its own specification of the degree to which district courts must defer to administrative agencies. Under the plain language of that section, the district courts should defer for sixty days, and at that point determine whether or not the violation has been halted by administrative action or otherwise. If is it has not been so halted, the citizen's suit goes forward. It does not wait in what may be a perpetual limbo while the agency decides whether or not to take action. A similar analysis applies to the private causes of action preserved by section 505(e), 33 U.S.C. § 1365(e). The very fact that the savings clause was inserted suggests that there was no intention on the part of Congress to deprive parties actually injured by conduct violating the Act of access to conventional legal remedies such as damages or injunctive relief. NRC has no authority to grant relief which would make such parties whole, and we would have to find rather compelling evidence of congressional intent before we would hold that there was no opportunity to resort to either preventative or make-whole judicial remedies while that agency considered the underlying problem. That is not to suggest that when the district court considers this case for injunctive and declaratory relief on the merits a great deal of deference to NRC's expertise may be inappropriate. But we can approve dismissal of Count III on the theory that it fails to state a claim upon which relief may be granted only if we can fairly conclude that at final hearing the Alliance could prove no set of facts upon which either form of relief would be warranted. We cannot do so. Since Count III states a claim within the subject matter jurisdiction of the district court upon which at final hearing some relief might be given the order dismissing that Count was error.
V. Constitutional Claims
In Count IV the Alliance charges that NRC, by allowing effluents from Unit 2 in excess of those permitted by the operating license, violated various provisions of the Constitution, to plaintiffs' injury in that they have been exposed to the risk of cancer and genetic damage. The district court dismissed this claim for lack of subject matter jurisdiction on the theory that since NRC could consider the same claim, exhaustion of administrative remedies and resort to court of appeals review under section 2239(b), 42 U.S.C. § 2239(b), was required.
Certainly a complaint alleging a cause of action for private relief implied from provisions of the United States Constitution states a claim within the subject matter of the district court. Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.2d 939 (1946). The legal sufficiency of that claim is a separate matter, which the district court did not reach. Whether or not a cause of action in favor of the plaintiffs against the NRC, implied from the Constitution, and seeking protection from irreparable harm pendente lite, could be adjudicated by the NRC is at least doubtful, if for no other reason than that its arsenal of remedies includes only those specified in the Atomic Energy Act. Preliminary injunctive relief
Since it is entirely possible that any relief to which the defendants may be entitled can be awarded on statutory grounds under Count I or Count III, it may be unnecessary for the district court, and thus for this court, to determine whether Count IV states a claim upon which relief, implied directly from one or more of the several constitutional provisions relied upon, may be granted. Consistent with the policy against premature adjudication of constitutional law questions, we hold no more than that the district court has subject matter jurisdiction over Count IV.
Pervading the treatment of the case by the district court, as well as the briefs of appellees, is the notion that the judge-made rule of exhaustion of administrative remedies bears upon the subject matter jurisdiction of the district court. That error is fundamental. Congress can, of course, limit the subject matter jurisdiction of the district courts, and can relegate some matters to the exclusive jurisdiction of an administrative agency. It can also prohibit private enforcement of federal statutes. In Part II, supra, we hold that in the Atomic Energy Act it did both. Where, however, Congress has not given any such clear indication, judge-made rules, such as the requirement of exhaustion of administrative remedies, cannot affect the subject matter jurisdiction of the district courts, but affect
The judgment appealed from will be affirmed insofar as it dismissed Count II of the complaint. In all other respects, it will be reversed.
S.Rep.No.1699, 83d Cong., 2d Sess. reprinted in  U.S.Code Cong. & Admin.News 3456, 3485-86. The two Conference Committee reports make no reference to section 221. See H.R.Conf.Rep.No.2639, 83d Cong., 2d Sess. reprinted in  U.S.Code Cong. & Admin.News, p. 3529; H.R.Conf.Rep. No.2666, 83d Cong., 2d Sess., reprinted in  U.S.Code Cong. & Admin.News, p. 3534.