Sierra Club v. U.S. Nuclear Regulatory Com'n

• Decision Date: 21 August 1987
• Docket Number: No. 85-7003,85-7003
• Citation: 825 F.2d 1356
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: 18 Envtl. L. Rep. 20,020 SIERRA CLUB; Southern California Alliance for Survival Resources Center; and Tim Carpenter, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION; and the United States of America, Respondents. Southern California Edison Company and San Diego Gas & Electric Company, Intervenors-Respondents.

Page 1356

825 F.2d 1356

18 Envtl. L. Rep. 20,020

SIERRA CLUB; Southern California Alliance for Survival Resources Center; and Tim Carpenter, Petitioners, v. UNITED STATES NUCLEAR REGULATORY COMMISSION; and the United States of America, Respondents Southern California Edison Company and San Diego Gas &amp Electric Company, Intervenors-Respondents.

No. 85-7003.

United States Court of Appeals, Ninth Circuit.

Argued Oct. 11, 1985.

Submitted Nov. 7, 1985.

Decided Aug. 21, 1987.

Julie E. McDonald, San Francisco, Cal., for petitioners.

Herzel H.E. Plaine, William H. Briggs, Jr., E. Leo Slaggie and Carolyn Jourdan, Washington, D.C., for respondents.

David R. Pigott, San Francisco, Cal., for intervenors-respondents.

Petition for Review of an Order of the Nuclear Regulatory Commission.

Before SNEED and BRUNETTI, Circuit Judges, and HUPP, ^* District Judge.

BRUNETTI, Circuit Judge:

I

FACTS AND PROCEEDINGS BELOW

Petitioners challenge two orders of the Nuclear Regulatory Commission (NRC or Commission) relating to the operation of San Onofre Unit 1 (Unit 1 or SONGS 1), a nuclear reactor located on the California coast near Oceanside. The first of the challenged orders, dated November 21, 1984, permitted restart of Unit 1 which had been shut down since 1982 pursuant to Commission order, for upgrading. The second order, dated February 19, 1985, denied petitioners' request for stay and a hearing on the November 1984 order.

San Onofre Unit 1, operated by intervenor Southern California Edison (Edison), was first licensed for operation in 1967. The original seismic design basis for the plant required that safety related plant systems meet 0.5g Housner response spectra for "functional limits," based on the Commission's determination that the maximum earthquake that could be expected at the San Onofre site (the Safe Shutdown Earthquake In 1973, when Edison sought permission to construct two additional nuclear power plants at San Onofre (Units 2 and 3), it discovered an additional fault zone lying approximately five miles from Unit 1. The Commission realized it had underestimated the seismicity of the San Onofre site, and that the maximum expected earthquake could give rise to ground motion of 0.67g. Accordingly, Units 2 and 3 were by regulation required to meet a seismic design basis of 0.67g. Unit 1, however, remained for the moment as it was.

or SSE) would generate ground motion of 0.5g.

Subsequently, in 1973, Edison undertook to reevaluate and modify as necessary the capability of Unit 1 to withstand a 0.67g earthquake. Edison's analysis indicated that certain systems and structures had resistance capacities in excess of those required to meet 0.67g Housner Spectra; other components were modified during a plant outage in 1976-1977.

In 1977, the Commission began a Systematic Evaluation Program (SEP) to assess the design and operation of older operating nuclear power plants, as against current safety criteria, and to provide the basis for integrated and balanced plant backfitting decisions. As part of the SEP, the Commission required Edison to submit details of the seismic evaluation program for Unit 1. Submissions by Edison in 1982 revealed unexpected high stress values for certain equipment. NRC staff then became concerned whether Unit 1 met its original design basis of 0.5g. Following a meeting with Edison in May 1982, NRC staff determined that Edison needed to demonstrate that Unit 1 met its licensed design basis before the plant, then in an outage, could be permitted to restart.

Apparently the original design calculations and supporting materials for Unit 1 had been destroyed. However, Edison announced it would extend the outage until the plant had been upgraded to 0.67g, and thus demonstrate that the plant met its original design basis, and, presumably as well, assure that the plant could survive the maximum earthquake expected at the San Onofre site.

Edison completed a substantial part, but not all, of the upgrade work. At the request of Edison the NRC staff had by September 1984 decided that it would allow Unit 1 to resume operation. The staff sought advice from the Commission whether the Commission had to hold a public hearing before authorizing restart. The Commission instructed them that the August 1982 Order should be treated as a license suspension, rescission of which would not require a hearing. On November 5 and November 20, the Commission published notice of a public meeting in which it stated that it would discuss "the NRC Staff's technical basis for restart of San Onofre Nuclear Generating Station Unit 1." 49 Fed. Reg. 44253, Nov. 5, 1984; see also 49 Fed. Reg. 45284, Nov. 20, 1984. Those hearings were not conducted, apparently because the Commission concluded that the rescission of the license suspension was not a license amendment.

On November 21, 1984, the staff issued a "Contingent Rescission of Suspension," order allowing restart of Unit 1, provided that the remainder of the seismic reevaluation and upgrade would be completed by the end of the next refueling outage or that Edison would submit an adequate justification for an extension of time. Three days later, Unit 1 resumed operation.

On December 7, 1984, the petitioners filed with the Commission a request for (1) a hearing on the November 21 order, ¹ (2) a On December 10, 1984, the Commission filed a "procedural order" ² in which it denied petitioners' request for an immediate decision, but ordered that the briefing be expedited. The Commission directed the licensees and NRC staff to file responses to petitioners' request on or before December 14, 1984, and directed petitioners to file a reply to the response no later than December 18, 1984. The Commission did not rule on the request for a hearing or the request for a stay. ³

stay of the November 21 order pending a hearing on the order, and (3) a request for expedited treatment--that its requests be heard no later than Wednesday, December 12, 1984.

On December 18, 1984, petitioners filed a lengthy reply to the licensee and NRC staff's opposition to the request for a hearing and a stay, and on December 20, the Commission granted the Edison's motion to extend the time for it to reply to January 9, 1985.

On January 3, 1985, the petitioners filed a petition with this court, seeking review of the November 21, 1984 and December 10, 1984 orders.

On February 19, 1985 the NRC entered an order denying both the request for hearing and the request for a stay.

II

JURISDICTION

We must determine whether we have jurisdiction to hear this petition. National Steel and Shipbuilding Co. v. Director of Workers Compensation Programs, 626 F.2d 106, 107 (9th Cir.1980). Citizens for a Safe Environment v. Atomic Energy Commission, 489 F.2d 1018 (3rd Cir.1973).

If we have jurisdiction in this case, it exists pursuant to 28 U.S.C. Sec. 2344. That section provides: "Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review that order in the court of appeals...." This sixty day period is jurisdictional, and may not be expanded by the courts. Chem-Haulers, Inc. v. United States, 536 F.2d 610 (9th Cir.1976). This jurisdictional bar also applies to petitions filed before a final order has been entered. Western Union Telegraph Co. v. Federal Communications Commission, 773 F.2d 375, 378 (D.C. Cir.1985). Because petitioners have not filed a petition for review of the Commission's February 19, 1985 Order denying the request for a hearing and a stay within this sixty day period, we must dismiss the petition for lack of jurisdiction.

A. The November 21, 1984 Order.

United States Code, section 2342 of Title 28 states The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of--

* * *

(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42;

Jurisdiction is invoked by filing a petition as provided by section 2344 of this title.

28 U.S.C. Sec. 2342.

This statute directs us to review the NRC order to determine if it is a "final order[ ] ... made reviewable by section 2239 of title 42." Assuming that the November 21 Order is the kind of order that is "made reviewable by section 2239," ⁴ we must then look to Sec. 2344 to determine who may invoke our jurisdiction, and how that review is to be sought. Section 2344 declares:

On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. 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 appeals wherein venue lies. The action shall be against the United States.

28 U.S.C. Sec. 2344.

This statutory section allows "[a]ny party aggrieved by the final order ..." 28 U.S.C. Sec. 2344 (emphasis added), to seek direct appellate review. In Gage v. AEC, 479 F.2d 1214, 1218 (D.C. Cir.1973), the District of Columbia Court of Appeals concluded that it did not have jurisdiction where the petitioner had not been a party to the proceedings below. In Simmons v. Interstate Commerce Commission, 716 F.2d 40 (D.C. Cir.1983), the court reexamined its Gage analysis, and explained:

[i]n drafting the special judicial review provisions of the Hobbs Act, Congress did not adopt the "person aggrieved" standard used in the general judicial review provision of the APA, even though the features of that legislation adopted four years earlier were prominently in mind,.... Rather, Congress chose the term "party aggrieved." To give meaning to that apparently intentional variation, we must read "party" as referring to a party before the agency,....

Id. 716 F.2d at 43.

Every circuit that has considered the scope of the statutory language found in the Hobbs Act (28 U.S.C. Sec. 2344) has agreed with this...