Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission

803 F.2d 258, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 14, 1986
DocketNo. 86-3355
StatusPublished
Cited by1 cases

This text of 803 F.2d 258 (Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission, 803 F.2d 258, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20 (6th Cir. 1986).

Opinions

MILBURN, Circuit Judge.

This matter is before the court on a request to reconsider the order entered by this court on September 4, 1986, wherein we directed that any possible vote on the full-power operation of the Perry Nuclear Power Plant be stayed pending this hearing. By this opinion we dissolve our stay order and dismiss the petition for review filed by the Ohio Citizens for Responsible. Energy, Inc., because we find that the order denying the petitioner’s motion to reopen the proceedings before the Appeal Board of the Nuclear Regulatory Commission was not a final order.

I.

Ohio Citizens for Responsible Energy, Inc. (OCRE) was permitted to proceed in the licensing procedure of the Perry Nuclear Power Plant as an intervenor. The plant was operating at 5 per cent power when on January 31, 1986, an earthquake of 5.0 magnitude occurred ten miles south of the plant. The plant was designed to withstand .15 g (a “g” is a measure of ground acceleration in relation to gravity during an earthquake). However, the January earthquake was estimated to have generated between .19 and .25 g.

Three days after the quake, OCRE filed a motion to reopen the record and submit a new contention to the Atomic Safety and Licensing Appeal Board in light of the earthquake. Newspaper articles were submitted in support of the motion to reopen. In response to the motion, the Nuclear Regulatory Commission (NRC) and the applicant presented extensive technical data refuting the contention that the earthquake was safety significant. The Appeal Board determined that OCRE presented “evidence of a significant safety matter” but that it was “difficult to make an informed judgment on the basis of preliminary written materials where, as here, the combined and complicated fields of geology, seismology, and engineering mechanics come into play.” The Appeal Board decided to hold an exploratory hearing to aid in its determination of whether or not to reopen the Perry Power Plant hearing on the issue of seismic design.

On April 17, 1986, the Nuclear Regulatory Commission held a sua sponte meeting to address the decision of the Appeal Board to hold an exploratory hearing. The Commission found that its “inherent supervisory authority over the conduct of NRC adjudications” gave it the authority to intervene in the matter. After considering [260]*260the instant case in light of the standards established for reopening records, the Commission vacated the Board's order setting an exploratory hearing and denied the motion to reopen.

OCRE filed a petition to review the Commission’s order in this court on April 23, 1986. On August 13,1986, the Commission published notice in the Federal Register that a discussion and possible vote on the full-power operating license for the Perry Plant would be held on September 5, 1986. On August 27, 1986, OCRE was notified of the meeting and on the same date filed a motion for continuance of the hearing with the Commission. The Commission denied the motion on the afternoon of September 4.

An emergency motion for stay of agency proceedings was filed in this court on September 3, 1986. The respondents’ and intervenors’ responses to the motion for stay argued that this court lacked jurisdiction. This court on September 4, 1986, stayed any voting on the Perry license, but denied a stay of the September 5 meeting of the Commission and directed that the case be expedited for hearing on the jurisdictional issue.

On September 8, a motion for expedited reconsideration was filed by the respondent, and a motion for expedited briefing and argument was filed by the intervenors. Reconsideration was denied, and an expedited briefing schedule was set by this court by order entered September 10, 1986. On September 25, 1986, the parties appeared before this court to argue the jurisdictional issue.

II.

This court has jurisdiction under 28 U.S.C. § 2342 to review “all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42.” (emphasis supplied). This court has never defined the term “final order”; however, in making this determination we are guided by well-reasoned precedent from other jurisdictions.

In Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524 (D.C.Cir.1970) (per curiam), the District of Columbia Circuit declined to consider an appeal from the NRC’s order refusing to allow petitioners to offer certain evidence in the course of proceedings. The court held that “[a]n agency’s procedural or evidentiary rulings in the course of a proceeding do not constitute a final order justifying judicial review____ [T]he availability of relief from the final order granting a certificate is sufficient to preclude the ruling denying admission of evidence from being considered a final order.” Id. at 526. See Ecology Action v. United States Atomic Energy Commission, 492 F.2d 998 (2d Cir.1974) (prehearing conference order excluding certain issues from consideration in construction proceedings was not a final order subject to judicial review).

We agree that interlocutory orders such as those considered in Ecology Action and Thermal Ecology should not be reviewed by this court. Although Ecology Action recognized that interlocutory review may be appropriate under certain circumstances, the exception “should be limited to cases where the [interlocutory] ruling is so flagrantly wrong and demonstrably critical as to make it apparent that the agency is not merely courting the possibility of reversal but is running into the certainty of it....” 492 F.2d at 1001.

In the instant case, we cannot conclude that interlocutory review is appropriate. The Commission’s determination that the standards for reopening have not been met is supported by its decision in Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1 (1986), aff'd. Oystershell Alliance v. NRC, 800 F.2d 1201, (D.C.Cir.1986) (per curiam). The only documentation supporting the petitioner’s motion to reopen was a newspaper article. Conversely, respondents presented extensive evidence in opposition to the motion. Accordingly, we hold that the refusal to reopen under these circumstances was not so “flagrantly wrong” as to justify judicial intervention at this stage of the proceedings.

We conclude that, in licensing proceedings before the NRC, a final order is the order granting or denying a license. [261]*261See Natural Resources Defense Council, Inc. v. NRC, 680 F.2d 810 (D.C.Cir.1982); Citizens for a Safe Environment v. Atomic Energy Commission, 489 F.2d 1018 (3d Cir.1974). The District of Columbia Circuit’s decision in Oystershell Alliance v. NRC,

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Bluebook (online)
803 F.2d 258, 17 Envtl. L. Rep. (Envtl. Law Inst.) 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-citizens-for-responsible-energy-inc-v-nuclear-regulatory-commission-ca6-1986.