NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SAN LUIS OBISPO MOTHERS FOR No. 23-3884 PEACE; FRIENDS OF THE EARTH, Agency No. 50-275 Nuclear Regulatory Commission Petitioners, MEMORANDUM* v.
UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA,
Respondents,
----------------------------------------
PACIFIC GAS & ELECTRIC COMPANY,
Intervenor.
On Petition for Review of an Order of the Nuclear Regulatory Commission
Argued and Submitted November 4, 2024 Phoenix, Arizona
Before: PAEZ, BERZON, and OWENS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Diablo Canyon is a nuclear power plant in San Luis Obispo, California,
owned and operated by Pacific Gas & Electric Company (PG&E). Petitioners San
Luis Obispo Mothers for Peace (SLOMFP) and Friends of the Earth (FOE)
challenge a final order issued by the U.S. Nuclear Regulatory Commission (NRC),
which denied Petitioners an administrative hearing regarding a 2023 change to a
safety-related surveillance program at one of Diablo Canyon’s nuclear reactors
(Unit 1). The change in question is the postponed withdrawal and testing of
Capsule B, one of several surveillance capsules used to monitor the structural
integrity of the reactor vessel surrounding Unit 1’s reactor core. We deny the
petition for review.
1. We have jurisdiction only over the agency’s most recent order denying
Petitioners an administrative hearing on the latest postponement to Capsule B’s
withdrawal (the 2023 “Denial Order”), not the decisions in which the agency
permitted repeated delays in the capsule’s removal (the 2023, 2012, 2010, and
2008 “Extension Approvals”).
For an appellate court to review agency action under the Hobbs Act, the
agency must “promptly give notice” of the “entry” of a “reviewable” and “final”
order “by service or publication in accordance with its rules.” 28 U.S.C. § 2344;
see also id. § 2342; 42 U.S.C. § 2239. “Any party aggrieved by the final order
may, within 60 days after its entry, file a petition to review the order in the court of
2 appeals wherein venue lies.” 28 U.S.C. § 2344. As a “defendant-protective statute
of repose,” the Hobbs Act bars “any suit that is brought [after the] specified time . .
. even if this period ends before the plaintiff has suffered a resulting injury.”
Corner Post, Inc. v. Bd. of Gov. of Fed. Res. Sys., 603 U.S. 799, 812–13 (2024)
(quoting CTS Corp. v. Waldburger, 573 U.S. 1, 7–8 (2014)).
The 2023 Denial Order satisfies the Hobbs Act’s requirements. The four
Extension Approvals, however, are not properly before the court, as Petitioners did
not challenge these decisions within sixty days of their entry.
a. An appellate court may consider an otherwise-time-barred challenge to an
agency action if a more recent agency decision reopens or reconsiders the older
one. See, e.g., Public Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir. 1990). But here,
each of the NRC’s Extension Approvals was a standalone determination the
agency made, using information available at the time the extension was requested
to assess whether postponing Capsule B’s withdrawal would be appropriate and
consistent with the company’s obligations under agency regulations. Each time the
NRC approved Capsule B’s postponed withdrawal, and then when the agency
denied Petitioners’ hearing request on the latest Extension Approval in 2023, the
agency made a new decision; it did not reopen or reconsider an earlier one. Cf. id.
The Extension Approvals do relate to the 2023 Denial Order in that they
concern the timeline for withdrawing Capsule B. But “a timely challenge to one
3 [agency] order” does not ordinarily “allow[]” a party “to challenge any related
earlier orders.” Save Our Skies LA v. Fed. Aviation Admin., 50 F.4th 854, 861 (9th
Cir. 2022).
b. Nor, contrary to Petitioners’ contention in their Reply Brief, are the
challenges to the four Extension Approvals timely on the ground that the agency
never “publishe[d]” notice of these decisions “in the Federal Register” or “g[ave]
some other kind of effective notice.”
First, we ordinarily “review only issues which are argued specifically and
distinctly in a party’s opening brief,” and will not address arguments made only on
reply. Roley v. Google LLC, 40 F.4th 903, 911 (9th Cir. 2022) (quoting Cruz v.
Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012)).
Second, in any case, Petitioners’ argument is unavailing. As we explain
below, the Extension Approvals did not amend Diablo Canyon Unit 1’s operating
license, so notice of those decisions did not need to be published in the Federal
Register.1 See 42 U.S.C. § 2239(a)(2)(B); 10 C.F.R. §§ 2.104(a), 2.105(a), 50.91.
The NRC did file the Extension Approval on its public, online “Agencywide Data
Access and Management System” (ADAMS). That form of publication was
sufficient to “‘put[] aggrieved parties on reasonable notice of the’ action they seek
1 To the extent that Petitioners contend the agency separately violated the Atomic Energy Act by failing to publish the Extension Approvals in the Federal Register, that argument also fails because there was no license amendment.
4 to challenge.” Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972
F.3d 83, 106 (D.C. Cir. 2020) (quoting JEM Broad. Co., Inc. v. FCC, 22 F.3d 320,
326 (D.C. Cir. 1994)). ADAMS is accessible to the public online and searchable by
date and keyword; the effort needed to do so is no greater (and probably less) than
finding decisions in the Federal Register, and not equivalent to “squirrel[ing]
through the Commission’s” physical files, as in Public Citizen. 901 F.2d at 153.
In sum, the only challenged agency decision we may review is the NRC’s
2023 decision to deny Petitioners an administrative hearing regarding the latest
postponed withdrawal of Capsule B.
2. The NRC did not violate the Atomic Energy Act by failing to offer or
hold a hearing on the agency’s 2023 Extension Approval.
Section 189 of the Atomic Energy Act requires that the NRC “grant a
hearing upon the request of any person whose interest may be affected” by a
license amendment proceeding. 42 U.S.C. § 2239(a)(1)(A). The agency need not
provide a hearing where its action does not “in itself [constitute] a license
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SAN LUIS OBISPO MOTHERS FOR No. 23-3884 PEACE; FRIENDS OF THE EARTH, Agency No. 50-275 Nuclear Regulatory Commission Petitioners, MEMORANDUM* v.
UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA,
Respondents,
----------------------------------------
PACIFIC GAS & ELECTRIC COMPANY,
Intervenor.
On Petition for Review of an Order of the Nuclear Regulatory Commission
Argued and Submitted November 4, 2024 Phoenix, Arizona
Before: PAEZ, BERZON, and OWENS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Diablo Canyon is a nuclear power plant in San Luis Obispo, California,
owned and operated by Pacific Gas & Electric Company (PG&E). Petitioners San
Luis Obispo Mothers for Peace (SLOMFP) and Friends of the Earth (FOE)
challenge a final order issued by the U.S. Nuclear Regulatory Commission (NRC),
which denied Petitioners an administrative hearing regarding a 2023 change to a
safety-related surveillance program at one of Diablo Canyon’s nuclear reactors
(Unit 1). The change in question is the postponed withdrawal and testing of
Capsule B, one of several surveillance capsules used to monitor the structural
integrity of the reactor vessel surrounding Unit 1’s reactor core. We deny the
petition for review.
1. We have jurisdiction only over the agency’s most recent order denying
Petitioners an administrative hearing on the latest postponement to Capsule B’s
withdrawal (the 2023 “Denial Order”), not the decisions in which the agency
permitted repeated delays in the capsule’s removal (the 2023, 2012, 2010, and
2008 “Extension Approvals”).
For an appellate court to review agency action under the Hobbs Act, the
agency must “promptly give notice” of the “entry” of a “reviewable” and “final”
order “by service or publication in accordance with its rules.” 28 U.S.C. § 2344;
see also id. § 2342; 42 U.S.C. § 2239. “Any party aggrieved by the final order
may, within 60 days after its entry, file a petition to review the order in the court of
2 appeals wherein venue lies.” 28 U.S.C. § 2344. As a “defendant-protective statute
of repose,” the Hobbs Act bars “any suit that is brought [after the] specified time . .
. even if this period ends before the plaintiff has suffered a resulting injury.”
Corner Post, Inc. v. Bd. of Gov. of Fed. Res. Sys., 603 U.S. 799, 812–13 (2024)
(quoting CTS Corp. v. Waldburger, 573 U.S. 1, 7–8 (2014)).
The 2023 Denial Order satisfies the Hobbs Act’s requirements. The four
Extension Approvals, however, are not properly before the court, as Petitioners did
not challenge these decisions within sixty days of their entry.
a. An appellate court may consider an otherwise-time-barred challenge to an
agency action if a more recent agency decision reopens or reconsiders the older
one. See, e.g., Public Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir. 1990). But here,
each of the NRC’s Extension Approvals was a standalone determination the
agency made, using information available at the time the extension was requested
to assess whether postponing Capsule B’s withdrawal would be appropriate and
consistent with the company’s obligations under agency regulations. Each time the
NRC approved Capsule B’s postponed withdrawal, and then when the agency
denied Petitioners’ hearing request on the latest Extension Approval in 2023, the
agency made a new decision; it did not reopen or reconsider an earlier one. Cf. id.
The Extension Approvals do relate to the 2023 Denial Order in that they
concern the timeline for withdrawing Capsule B. But “a timely challenge to one
3 [agency] order” does not ordinarily “allow[]” a party “to challenge any related
earlier orders.” Save Our Skies LA v. Fed. Aviation Admin., 50 F.4th 854, 861 (9th
Cir. 2022).
b. Nor, contrary to Petitioners’ contention in their Reply Brief, are the
challenges to the four Extension Approvals timely on the ground that the agency
never “publishe[d]” notice of these decisions “in the Federal Register” or “g[ave]
some other kind of effective notice.”
First, we ordinarily “review only issues which are argued specifically and
distinctly in a party’s opening brief,” and will not address arguments made only on
reply. Roley v. Google LLC, 40 F.4th 903, 911 (9th Cir. 2022) (quoting Cruz v.
Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012)).
Second, in any case, Petitioners’ argument is unavailing. As we explain
below, the Extension Approvals did not amend Diablo Canyon Unit 1’s operating
license, so notice of those decisions did not need to be published in the Federal
Register.1 See 42 U.S.C. § 2239(a)(2)(B); 10 C.F.R. §§ 2.104(a), 2.105(a), 50.91.
The NRC did file the Extension Approval on its public, online “Agencywide Data
Access and Management System” (ADAMS). That form of publication was
sufficient to “‘put[] aggrieved parties on reasonable notice of the’ action they seek
1 To the extent that Petitioners contend the agency separately violated the Atomic Energy Act by failing to publish the Extension Approvals in the Federal Register, that argument also fails because there was no license amendment.
4 to challenge.” Bhd. of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin., 972
F.3d 83, 106 (D.C. Cir. 2020) (quoting JEM Broad. Co., Inc. v. FCC, 22 F.3d 320,
326 (D.C. Cir. 1994)). ADAMS is accessible to the public online and searchable by
date and keyword; the effort needed to do so is no greater (and probably less) than
finding decisions in the Federal Register, and not equivalent to “squirrel[ing]
through the Commission’s” physical files, as in Public Citizen. 901 F.2d at 153.
In sum, the only challenged agency decision we may review is the NRC’s
2023 decision to deny Petitioners an administrative hearing regarding the latest
postponed withdrawal of Capsule B.
2. The NRC did not violate the Atomic Energy Act by failing to offer or
hold a hearing on the agency’s 2023 Extension Approval.
Section 189 of the Atomic Energy Act requires that the NRC “grant a
hearing upon the request of any person whose interest may be affected” by a
license amendment proceeding. 42 U.S.C. § 2239(a)(1)(A). The agency need not
provide a hearing where its action does not “in itself [constitute] a license
amendment proceeding.” San Luis Obispo Mothers for Peace v. NRC, 100 F.4th
1039, 1056 (9th Cir. 2024).
The NRC’s 2023 Extension Approval did not amend Unit 1’s operating
license. A license amendment in 2006 allowed PG&E to “recover” to its license
term the time Unit 1 spent in low-power testing mode, before receiving its full-
5 power license. Contrary to Petitioners’ argument, the Safety Evaluation appended
to the 2006 license amendment did not upgrade Unit 1’s reactor vessel surveillance
program from a three-capsule program to a four-capsule program, making the
withdrawal of Capsule B part of PG&E’s licensing obligations.
Capsule B was never a mandatory component of Unit 1’s initial term reactor
vessel surveillance program. Instead, it was installed to collect embrittlement data
that would inform a license renewal application. Neither the text of the 2006
license amendment nor the text of the 2006 Safety Evaluation upgraded Unit 1’s
surveillance program from a three-capsule to a four-capsule program.
The 2006 license amendment extended Unit 1’s initial license term from
September 22, 2021 to November 2, 2024; it did not mention capsule withdrawal.
The Safety Evaluation “amend[ed] the projected withdrawal for Capsule B,” while
confirming that, under Appendix H, the industry standard “of record” for Unit 1’s
surveillance program was American Society for Testing and Materials (ASTM)
Standard Practice E185-70. That standard only mandates the withdrawal of three
surveillance capsules. The Safety Evaluation concluded that the recovery of Unit
1’s low-power testing time was permissible because the surveillance capsule
withdrawal schedule for Unit 1 “remain[ed] in compliance” with Appendix H and
“the ASTM E185 version[] of record for the unit[].”
6 Nor did the Safety Evaluation accompanying the 2006 license amendment
make the extension of Unit 1’s license implicitly contingent on the withdrawal of
Capsule B. In proposing to implement its supplemental surveillance program in
1992, PG&E had explained that its purpose was to “obtain additional
embrittlement data for . . . the period beyond which the original surveillance
program was designed and to improve the overall surveillance program by
incorporating, where possible, requirements” from later ASTM editions and other
industry standards. When the NRC approved that supplemental surveillance
program, it recognized that the three capsules that the company had already
designated for testing—S, Y, and V—would be removed “to determine the effect
of irradiation during the vessel’s current design life . . . [in a manner that] me[t] the
requirements of ASTM E 185-70.” The supplemental capsules, Capsule B among
them, would “provide data for the license renewal period.”
The 2006 Safety Evaluation accorded with the government and PG&E’s
joint understanding of Capsule B’s purpose: to provide long-term embrittlement
data beyond the initial license term of Unit 1. The Evaluation recognized that the
plan for Capsule B’s withdrawal was consistent with more recent versions of
ASTM E185, but did not purport to change the applicable ASTM “version of
record.” Capsule B’s withdrawal by a particular time was thus not a tacit condition
attached to the extension of Unit 1’s initial operating term.
7 This result is consistent with the NRC’s more general position that a change
in a reactor’s surveillance capsule schedule does not ordinarily constitute a license
amendment. The agency’s “wish to verify in advance that a proposed revision [to
the withdrawal schedule] conforms to the required technical standard” under
Appendix H does not necessarily “alter the terms of the license, and does not grant
the Licensee greater operating authority.” In the Matter of Cleveland Electric Ill.
Co. (Perry Nuclear Power Plant, Unit 1), 44 N.R.C. 315, 1996 WL 813246, at *11
(1996). The agency’s review of adjustments to surveillance capsule withdrawal
schedules typically “enforces license requirements,” rather than changing them. Id.
As PG&E had no obligation to withdraw Capsule B by a particular time
under its existing license, the NRC did not amend that license in 2023 when it
granted PG&E’s request to postpone again the withdrawal of Capsule B. The
agency therefore did not owe SLOMFP and FOE a hearing on that decision. Cf.
San Luis Obispo Mothers for Peace, 100 F.4th at 1056; San Luis Obispo Mothers
for Peace v. NRC, 449 F.3d 1016, 1025–27 (9th Cir. 2006).
3. Because we have jurisdiction only over the 2023 Denial Order, we cannot
substantively consider whether the Extension Approvals were arbitrary and
capricious under the Administrative Procedure Act. See 5 U.S.C. § 706(2)(A).
As to whether the agency acted arbitrarily and capriciously in issuing the
Denial Order itself, Petitioners do not develop this claim in their Opening Brief.
8 Again, we ordinarily do not review issues not argued specifically and distinctly in
a party’s opening brief. Roley, 40 F.4th at 911. In any case, the NRC’s decision to
deny Petitioners’ hearing request was not arbitrary and capricious, both because
they were not entitled to a hearing under the Atomic Energy Act and because the
agency adequately explained the rationale for its Denial Order.
Nor did the NRC violate the Atomic Energy Act by failing to conduct a
health and safety evaluation of the purported changes to Unit 1’s license.
Petitioners’ argument on appeal is misplaced for the same reason its claim to an
administrative hearing fails: There was no license amendment in 2023, so the
amendment-specific regulatory provision that Petitioners cites does not apply. And
in any event, the NRC did conduct a separate Safety Evaluation each time it
considered whether to grant PG&E’s requested postponement and concluded that
each postponement would be acceptable under the relevant standard.
****
We share Petitioners’ concerns about the public health and safety
implications of repeatedly postponing Capsule B’s withdrawal. It has been about
two decades since PG&E withdrew and tested a surveillance capsule from the Unit
1 reactor vessel—and even longer since a surveillance capsule withdrawn from
Unit 1 generated credible data. Although Unit 1’s operating license has now
officially expired, the reactor continues to operate under the NRC’s “timely
9 renewal” rule because PG&E has submitted a license renewal application. San Luis
Obispo Mothers for Peace, 100 F.4th at 1056–58 (citing 10 C.F.R. § 2.109(b)).
Capsule B remains a key source of data for the license renewal period.
Under the current schedule, PG&E is slated to remove Capsule B in the spring of
2025 and use it to inform the company’s pending license renewal application for
Unit 1. Any further delay in Capsule B’s withdrawal will mean that PG&E lacks a
critical data source about the future integrity of the reactor vessel, without which a
future license renewal may be subject to legal challenge.
We conclude that SLOMFP and FOE’s current challenge to the NRC’s 2023
Denial Order cannot be sustained.
PETITION FOR REVIEW DENIED.