Sierra Club v. U.S. Nuclear Regulatory Com'n, 87-7481

• Decision Date: 02 February 1989
• Docket Number: No. 87-7481,87-7481
• Citation: 862 F.2d 222
• Parties: SIERRA CLUB, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents, and Pacific Gas and Electric Company, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 222

862 F.2d 222

SIERRA CLUB, Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents and Pacific Gas and Electric Company, Respondent-Intervenor.

No. 87-7481.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 17, 1988.

Decided Nov. 30, 1988.

As Amended on Denial of Rehearing Feb. 2, 1989.

Dian M. Grueneich and Marcia Preston, San Francisco, Cal., for petitioner.

William H. Briggs, Jr., Sol., William C. Parler, Gen. Counsel, E. Leo Slaggie, Deputy Sol., C. Sebastian Aloot and Geraldine Fehst, U.S. Nuclear Regulatory Com'n, Washington, D.C., for respondents.

Bruce Norton and Richard F. Locke, San Francisco, Cal., for respondent-intervenor.

Petition for Review of a Decision of the United States Nuclear Regulatory Commission.

Before SCHROEDER and WIGGINS, Circuit Judges, and DIMMICK, ^* District Judge.

SCHROEDER, Circuit Judge:

The Sierra Club petitions for review of an order of the Nuclear Regulatory Commission's Atomic Safety and Licensing Appeal Board ("Appeal Board") involving the Diablo Canyon nuclear power station. The Sierra Club intervened in proceedings initiated by Pacific Gas and Electric (PG & E) to amend PG & E's operating licenses to allow expansion of its on-site fuel storage capacity at the facility. During the administrative proceedings, the Sierra Club raised a "contention" ¹ regarding the risk of a loss-of-coolant accident. The Sierra Club based its contention on a recent study prepared for the Nuclear Regulatory Commission (NRC) that described the risks and consequences of such accidents. The report contained recommendations adverse to the type of fuel storage contemplated in the proposed Diablo Canyon license amendments. The Atomic Safety and Licensing Board ("Licensing Board"), however, rejected the Sierra Club's contention as inadmissible, In re Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 26 NRC 159, 167 (Lic.Bd.1987), and the Appeal Board upheld the Licensing Board's disposition, In re Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 26 NRC 449, 456 (App.Bd.1987).

The full Commission did not choose to review the Appeal Board's order. See 10 C.F.R. Sec. 2.786(a) (1988). Accordingly, that order is the final agency decision. The principal issue before us is whether the Licensing Board should have admitted the Sierra Club's contention. We answer in the affirmative because we conclude that the agency acted arbitrarily. We remand for further hearings. See 5 U.S.C. Sec. 706(2)(A) (1982).

BACKGROUND

On May 21, 1986, the NRC issued an environmental assessment (EA) and a finding of no significant impact for the Diablo Canyon license amendments. See 10 C.F.R. Sec. 51.14(a) (1988). ² The proposed amendments were to permit PG & E to expand the spent fuel storage capacity at Diablo Canyon five fold, from 270 to 1324 fuel assemblies per reactor. This expansion would be achieved by a method known as "reracking": replacing existing storage racks with high density racks. The spent fuel racks are stored in a pool of coolant at each reactor site. ³

On May 30, 1986, without having held any hearings on the license amendments, the NRC approved the amendments and made them immediately effective. On September 11, however, this court reversed the NRC decision and remanded the case to the Licensing Board for hearings. See San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268, dissent, 804 F.2d 523 (9th Cir.1986). The proceedings we review in this petition thus flow from that decision.

Hearings were held in June 1987. At the beginning of those hearings, the Sierra Club orally requested the admission of an additional contention concerning the possible consequences of an accident in which there is a loss of the spent fuel coolant. Such an accident could result in a spontaneous burning of the zirconium alloy ("zircaloy") cladding that surrounds the spent fuel elements, causing a significant release of radiation. The Sierra Club based this contention on a January 1987 draft report commissioned by the NRC and authored by the Brookhaven National Laboratory (BNL). The report was entitled "Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82." ⁴ In light of the BNL report, the Sierra Club requested the Licensing Board to order the NRC staff to prepare an environmental impact statement (EIS) on the reracking license amendments.

On September 2, 1987, the Licensing Board rejected the Sierra Club's zircaloy-fire contention because the Board said it did not meet the NRC's standards for admission. See In re Pacific Gas and Elec. Co., 26 NRC at 164, 167. The Board also ruled that an EIS was not required. Id. On September 11, the Licensing Board issued a decision resolving other, unrelated contentions in PG & E's favor and authorizing the issuance of the license amendments. See In re Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 26 NRC 168, 198-99 (Lic.Bd.1987). The Sierra Club appealed the Licensing Board's refusal to admit the zircaloy-fire contention, and its disposition of another contention, designated "Contention I(B)(7)," to the Appeal Board.

On December 21, 1987, the Appeal Board issued its decision, affirming the Licensing Board's orders. See In re Pacific Gas and Elec. Co., 26 NRC at 454. The Sierra Club filed a petition for review with this court on January 7, 1988.

JURISDICTION

The NRC contends this court lacks subject matter jurisdiction over this petition because the Sierra Club prematurely filed its petition for review. This court's jurisdiction over this case is based on section 189(b) of the Atomic Energy Act, 42 U.S.C. Sec. 2239(b) (1982), and the Hobbs Act, 28 U.S.C. Sec. 2342(4) (1982). See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 733, 105 S.Ct. 1598, 1601, 84 L.Ed.2d 643 (1985). The Hobbs Act gives the courts of appeals exclusive jurisdiction over petitions seeking review of all final orders of the NRC. See 28 U.S.C. Sec. 2344 (1982). The Act requires a party seeking judicial review of an NRC order to file a petition for review within 60 days of the entry of the agency's final order. Id.; see California Ass'n of the Physically Handicapped, Inc. v. Federal Communications Comm'n, 833 F.2d 1333, 1334 (9th Cir.1987) (60-day time limit is jurisdictional). The issue is whether the Sierra Club filed a petition within 60 days of a "final" order.

On December 21, 1987, the Appeal Board issued its decision upholding the Licensing Board's rulings. The Sierra Club filed a petition for review, within 60 days, on January 7, 1988. Under the NRC's rules, however, the Appeal Board decision was subject to sua sponte review by the full Commission for a period of at least forty days (i.e., until February 1, 1988). See 10 C.F.R. Sec. 2.786(a) (1988). On January 27, 1988, the NRC extended the sua sponte review period until February 24, 1988, and then again extended the period until March 11, 1988. Under the NRC regulations, the agency could have extended the review period indefinitely, see 10 C.F.R. Sec. 2.772(f) (1988), but did not extend it in this case past March 11. The NRC maintains that the Appeal Board decision did not become "final" for review purposes until that date.

The Hobbs Act does not define "final order," and this court's interpretation of the statute has not clarified the term's meaning in this context. In cases discussing the appealability of administrative decisions under other laws, however, this court has adopted a flexible and pragmatic approach to finality. See Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation v. Board of Oil and Gas Conservation, 792 F.2d 782, 789 (9th Cir.1986). Generally, administrative orders are final and appealable if they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process. See, e.g., Air California v. United States Dept. of Transp., 654 F.2d 616, 621 (9th Cir.1981).

The Appeal Board's December 21, 1987 order established the parties' rights and was immediately enforceable. See 10 C.F.R. Sec. 2.786(b)(8) (1988) ("Neither the filing nor the granting of a petition for review [by the full Commission] will stay the effect of the decision or action of the Atomic Safety and Licensing Appeal Board, unless otherwise ordered by the Commission."). Hence, the Appeal Board order was final for purposes of judicial review. The fact that the NRC maintained sua sponte review power after the Appeal Board's decision did not destroy that finality. Cf. Abramowitz v. United States Envtl. Protection Agency, 832 F.2d 1071, 1075 (9th Cir.1987) (EPA notice stating that it was "holding open" and "was not taking final action" on a ruling did not destroy finality); County of Rockland v. NRC, 709 F.2d 766, 775 (2d Cir.) (language in the Commission's order that left open the possibility that the Commission might reconsider its decision in the future did not destroy the finality of the decision), cert. denied, 464 U.S. 993, 104 S.Ct. 485, 78 L.Ed.2d 681 (1983). Our conclusion serves the interest of insuring prompt review by deterring lengthy and indefinite extensions of the NRC sua sponte review period. This court has jurisdiction to hear this petition for review.

ADMISSIBILITY OF THE ZIRCALOY-FIRE CONTENTION

The Sierra Club submitted its zircaloy-fire contention at the opening of the Licensing Board hearings on June 16, 1987. The contention, entitled "Motion to Include Issues Raised in Generic Issue 82 as Contentions in This Proceeding and to Direct Preparation of an Environmental Impact Statement," stated: "The proposed action significantly increases the consequences of loss of cooling accidents in that a loss of water in the spent fuel pools could lead to spontaneous ignition of zircaloy cladding of the fuel elements in the high density configuration with significant releases of radiation." In re Pacific Gas...