Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Com'n, s. 80-1863

• Citation: 220 U.S.App.D.C. 261,680 F.2d 810
• Decision Date: 11 June 1982
• Docket Number: Nos. 80-1863,80-1864,s. 80-1863
• Parties: , 220 U.S.App.D.C. 261 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, and the United States of America, Respondents (Two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 810

680 F.2d 810

17 ERC 1778, 220 U.S.App.D.C. 261

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, and the United States of America, Respondents (Two cases).

Nos. 80-1863, 80-1864.

United States Court of Appeals District of Columbia Circuit.

Argued March 30, 1982.

Decided June 11, 1982.

As Amended June 11, 1982.

Petitions For Review Of Orders Of The Nuclear Regulatory commission.

Ellyn R. Weiss, Washington, D. C., with whom Lee L. Bishop, S. Jacob Scherr, and William S. Jordan, III, Washington, D. C., were on the brief, for petitioner in Nos. 80-1863 and 80-1864.

Marjorie S. Nordlinger, Atty., Harvey J. Shulman, Acting Sol., U. S. Nuclear Regulatory Com'n, Washington, D. C., with whom Maria A. Iizuka and Peter R. Steenland, Jr., Attys., Dept. of Justice and James A. Fitzgerald, U. S. Nuclear Regulatory Com'n, Washington, D. C., were on the brief, for respondents in Nos. 80-1863 and 80-1864.

James W. Moorman and Dirk D. Snel, Washington, D. C., also entered appearances for respondents.

Before WALD, EDWARDS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The petitions for review in this case arise out of an adjudicatory proceeding before the Nuclear Regulatory Commission ("NRC" or "Commission") concerning proposed amendments to the license of Nuclear Fuel Services, Inc., a facility in Erwin, Tennessee ("NFS-Erwin") that produces a special nuclear fuel used by the Navy. Petitioner Natural Resources Defense Council, Inc. ("NRDC") requested a full adjudicatory hearing on the license amendments, as provided for in the NRC regulations at that time. In response, the Commission promulgated, without notice and comment, an immediately effective rule authorizing the use of alternative hearing procedures for matters involving "military and foreign affairs functions." The Commission simultaneously issued an order granting NRDC's hearing request but providing, under the new "military functions" rule, only a "legislative" type of hearing with limited procedural rights.

NRDC has petitioned for review of both the Commission's adoption of the "military functions" rule and its simultaneous application of the rule to the NFS-Erwin proceeding. NRDC contends that: (1) the "military functions" rule is invalid because it was initially promulgated without notice and comment; (2) the rule cannot be applied to the ongoing NFS-Erwin proceeding because it would substantially prejudice NRDC by eliminating its rights to, inter alia, cross-examination and discovery; and (3) the rule cannot properly be applied to the NFS-Erwin proceeding because that proceeding does not involve "military or foreign affairs functions." As explained in greater detail below, we conclude that none of these issues is properly before the court at this time. The first issue is now moot because the NRC has repromulgated the "military functions" rule in accordance with the notice and comment requirements of section 553 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553 (1976). The remaining two issues concern interlocutory actions by the Commission that are not yet subject to judicial review. Consequently, we dismiss the petitions so that the Commission may conclude the NFS-Erwin proceedings and reach a final decision on the proposed license amendments.

I. HISTORY OF THE PROCEEDINGS

Operating under a license issued by the NRC, the NFS-Erwin facility produces a special, highly enriched uranium fuel that is used in the nuclear reactors that power Navy nuclear vessels. Historically, NFS-Erwin has had difficulty meeting certain requirements in its license and in the NRC regulations for maintaining control over and accounting for special nuclear material. See 10 C.F.R. § 70.51-.59 (1981). On more than one occasion the Commission has required the facility to shut down in order that a reinventory of its special nuclear materials might be conducted. This case has its genesis in a 1979 shutdown and reinventory of NFS-Erwin stemming from the inability of officials at the facility to account for amounts of nuclear material in excess of the limits specified in its license. After conducting an inquiry into the problems at NFS-Erwin, the Commission issued an order on January 21, 1980, J.A. 24, 109-11, authorizing the facility to resume operations under revised physical security measures and material control and accounting requirements. The order also amended the NFS-Erwin license by relaxing its reinventory and shutdown requirements, thereby increasing the permissible amounts of "unaccounted for" nuclear material in the facility.

On February 6, 1980, petitioner NRDC requested a hearing on the proposed license amendments, as provided for in the Atomic Energy Act of 1954 ¹ and in the NRC regulations. J.A. 29-64. At that time, the Commission regulations provided for full hearing procedures that included discovery and cross-examination. See 10 C.F.R. § 2.740-.744 (1981). On June 26, 1980, however, the Commission promulgated, without notice and comment, an immediately effective rule allowing the agency to use alternative hearing procedures for matters involving "military and foreign affairs functions." J.A. 178-89; 45 Fed.Reg. 45,253 (July 3, 1980). ² Essentially, the new rule incorporated the language of the "military and foreign affairs" exception to the formal adjudication requirements in the APA. 5 U.S.C. § 554(a)(4) (1976). ³ The Commission then issued an Order and a Notice of Hearing that granted NRDC's hearing request but provided only a limited, "legislative" type hearing pursuant to the new "military functions" rule. J.A. 174-77, 190-93.

NRDC filed two petitions for review in this court. The petition in No. 80- 1864 challenged the adoption and application by NRC of the "military functions" rule on the grounds that (1) it was unlawfully promulgated without the notice and comment procedures required by the APA, 5 U.S.C. § 553 (1976), and (2) it could not lawfully be applied to the ongoing NFS-Erwin proceeding because it would substantially prejudice NRDC by eliminating its rights to, inter alia, cross-examination and discovery. The petition in No. 80-1863 challenged the NRC order invoking the "military functions" rule to limit the procedures available to NRDC in the NFS-Erwin proceeding on the ground that the proceeding did not involve "military or foreign affairs functions" within the meaning of both section 554 of the APA and the NRC rule. ⁴ On September 29, 1980, a motions panel of this court granted NRDC's motion in No. 80-1864 for a stay of both the "military functions rule" and the order granting NRDC a limited hearing under that rule. ⁵

On September 30, 1981, the NRC initiated informal rulemaking proceedings to reconsider the "military functions" rule and its application to the NFS-Erwin proceeding. The Commission proposed a "military functions" rule that was essentially the same as the one it had previously issued. It asked for comments on whether the rule should be adopted in that form and on whether it should apply to ongoing proceedings in which a hearing already had been requested. 46 Fed.Reg. 47,799 (Sept. 30, 1981). On January 26, 1982, the Commission adopted the "military functions" rule as proposed, with a section specifically making it applicable to ongoing proceedings. Supp.J.A. 91-106; 47 Fed.Reg. 4490 (Feb. 1, 1982) (to be codified at 10 C.F.R. § 2700a). ⁶

This court postponed consideration of the case while the NRC conducted its rulemaking. ⁷ Now that the Commission has completed that rulemaking, the NRDC petitions for review are once again before the court. As hereafter explained, we conclude that considerations of mootness and finality prevent us from reaching the issues raised in those petitions.

II. MOOTNESS

NRDC continues to press its argument that the NRC promulgated its "military functions" rule in violation of the notice and comment requirements of section 553 of the APA. In light of the Commission's repromulgation of the rule after providing notice and opportunity for comment, we conclude that this issue is now moot.

The "judicial Power" under Article III extends only to "Cases" and "Controversies." U.S.Const. art. III, § 2. We therefore lack jurisdiction to pass upon a question in the absence of a "justiciable" controversy. The Supreme Court has made it clear that "no justiciable controversy is presented ... when the parties are asking for an advisory opinion, (or) when the question sought to be adjudicated has been mooted by subsequent developments ...." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968) (footnotes omitted). Corrective action by an agency is one type of subsequent development that can moot a previously justiciable issue. See, e.g., Commissioner v. Shapiro, 424 U.S. 614, 622-23 n.7, 96 S.Ct. 1062, 1068 n.7, 47 L.Ed.2d 278 (1976) (IRS's proper service of new notice of deficiency and new notices of levy moots question whether previous levies and notice of deficiency were procedurally defective under applicable statute); Sannon v. United States, 631 F.2d 1247, 1250-51 (5th Cir. 1980) (case can be mooted by amendment of regulations or promulgation of new regulations providing relief requested). ⁸

NRDC has maintained that the promulgation by NRC of the "military functions" rule was unlawful because it deprived NRDC and other members of the public of the right to participate in the rulemaking process by not providing notice and an opportunity to comment on the rule. The Commission undeniably provided that opportunity, however, when it repromulgated the rule in accordance with the requirements of section 553 of the APA. Petitioner does not contend that there was any infirmity in the Commission's repromulgation of the rule; rather, it continues to focus its attack on the initial adoption of the rule without notice and comment. Even if this attack was...