City of Benton v. Nuclear Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided February 27, 1998

No. 95-1402

City of Benton, City of North Little Rock, Arkansas,

City of Prescott, Arkansas,

The Conway Corporation,

West Memphis Utilities Commission

and Farmers Electric Cooperative Corporation,

Petitioners

v.

Nuclear Regulatory Commission and

United States of America,

Respondents,

Entergy Corporation, et al.,

Intervenors.

On Petition for Review of an Order

of the Nuclear Regulatory Commission

Zachary D. Wilson, was on brief for the petitioner.

Karen Dee Cyr, General Counsel, United States Nuclear
Regulatory Commission, John F. Cordes, Jr., Solicitor, E. Leo
Slaggie, Deputy Solicitor, and Grace H. Kim, Attorney, Unit-
ed States Nuclear Regulatory Commission, Joel I. Klein,
Assistant Attorney General, Anne K. Bingaman, Assistant
Attorney General at the time the brief was filed, and Robert
B. Nicholson, Robert J. Wiggers and Catherine G. O'Sullivan,
Attorneys, United States Department of Justice, were on
brief for the respondents.

Jane I. Ryan, Douglas G. Green and John L. Jacobus,
were on brief for the intervenors.

Before: Williams, Sentelle and Henderson, Circuit
Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: The petitioners, several municipal utilities in
Arkansas and the Farmers Electric Cooperative Corporation
(collectively Arkansas Cities and Cooperative or ACC), chal-
lenge the antitrust component of a Nuclear Regulatory Com-
mission (NRC) order amending the operating license of the
River Bend Station Unit 1 (River Bend), a nuclear powered
electric generating plant located in West Feliciana Parish,
Louisiana. Because ACC seeks review of a nonfinal, interloc-
utory order, the petition for review must be dismissed.

In 1993, Gulf State Utilities Company (GSU), a majority
owner of River Bend, submitted two license amendment
applications to the NRC seeking to transfer GSU's control of
the River Bend plant to Entergy Corporation and to transfer
operating responsibility and management of River Bend to
Entergy Operations, Inc. (EOI), a subsidiary of Entergy.
The NRC approved both amendment applications, which had
been opposed on safety and antitrust grounds. This court
vacated the orders and remanded for further proceedings
after petitions for review were filed.*

__________
* Cajun Elec. Power Coop., Inc. v. NRC, No. 94-1113 (D.C. Cir.
Mar. 14, 1996) (unpublished).

After the parties filed new submissions, the Director of the
Office of Nuclear Reactor Regulation (Director) made a "new
finding" that there were no significant changes in GSU's and
Cajun Electric's activities warranting an antitrust review of
the proposed license amendment. Finding of No Significant
Antitrust Changes, 60 Fed. Reg. 18,151-52 (1995); see 42
U.S.C. s 2135(c)(2) (in-depth antitrust review is warranted
only if NRC determines there have been significant changes
in licensee's activities). ACC requested a reevaluation of the
determination. Another party also sought review of the
NRC's safety determination in approving the license. On
May 30, 1995, the Director reiterated his finding of no
significant antitrust changes. Reevaluation of Antitrust
Finding, 60 Fed. Reg. 29,720 (1995). Subsequently, the NRC
issued two orders on June 8, 1995, allowing GSU to merge
with Entergy and EOI to operate River Bend. Both orders
took immediate effect.

In its petition ACC asks the court to review the Director's
May 30, 1995 order. Attached to its petition is a copy of the
May 30 order. ACC does not identify any other orders for
review. In its docketing statement, however, ACC cites the
May 30, 1995 order and one of the June 8, 1995 orders as
those on which it seeks review. Further, ACC attaches to
the docketing statement the June 8 NRC order issuing the
contested license amendment.

The court has jurisdiction over "all final orders of the
[NRC] made reviewable by Section 2239 of title 42." 28
U.S.C. s 2342 (Hobbs Act). Section 2239(a) permits review
of "[a]ny final order" entered by the NRC in any proceeding
"for the granting, suspending, revoking, or amending of any
license." Parties aggrieved by a final agency order have 60
days to file a petition for review. 28 U.S.C. s 2344; see
Public Citizen v. NRC, 845 F.2d 1105, 1107 (D.C. Cir. 1988).
A party must "designate the ... order or part thereof to be
reviewed." Fed. R. App. P. 15(a).

Although the Director's May 30 finding addressed the
antitrust issues raised by ACC, it did not discuss the NRC's
safety determination which was still pending before the NRC.

Further, the Director's May 30 finding did not result in the
grant or denial of GSU's request to amend the license. Not
until the license amendments were issued on June 8 did the
NRC conclusively determine the antitrust and safety issues.

ACC concedes, in effect, that it named the wrong order in
its petition but argues that neither the NRC nor Entergy was
prejudiced because both knew that ACC was challenging the
order issuing the license. ACC accuses the NRC and Enter-
gy of relying on technical arguments to defeat its petition.
Alternatively, ACC contends that the Director's May 30 order
could be viewed as having consummated the NRC's decision-
making process regarding its antitrust analysis and thus was
a final appealable order. ACC's argument is incorrect. In a
licensing proceeding, it is the order granting or denying the
license that is ordinarily the final order. See Massachusetts
v. NRC, 924 F.2d 311, 322 (D.C. Cir.), cert. denied, 502 U.S.
899 (1991); Natural Resources Defense Council, Inc. v. NRC,
680 F.2d 810, 815 & n.11 (D.C. Cir. 1982). Although NRC
orders that are given "immediate effect" constitute an excep-
tion to this rule, see Massachusetts v. NRC, 924 F.2d at 322,
the May 30 order was not given immediate effect.

Whichever order ACC intended to ask the court to review,
it named the wrong order in its petition. Fed. R. App. P.
15(a) requires that ACC's petition be dismissed for failing
properly to designate the order to be challenged. See John
D. Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 527 (D.C. Cir.
1988) (petition for review designating one order in a proceed-
ing was not adequate to obtain review of any other order that
was part of the same administrative record); see also Gottes-
man v. INS, 33 F.3d 383, 388 (4th Cir. 1994) (jurisdictional
requirements of Rule 15(a) may not be waived). The court
declines to adopt the reasoning of Castillo-Rodriguez v. INS,
929 F.2d 181, 183 (5th Cir. 1991) (holding that even though
petitioner sought review of immigration judge's nonfinal or-
der only, court would review Board of Immigration Appeal's
final determination on the merits), because to do so would
make unclear the point at which agency orders become final
and thus add unnecessary confusion to the agency's operation
and the court's review of agency determinations.

ACC also argues that Seacoast Anti-Pollution League v.
NRC, 690 F.2d 1025, 1027 (D.C. Cir. 1982), stands for the
proposition that an NRC order refusing to hold a hearing is a
final order for purposes of appeal. In that case the Seacoast
Anti-Pollution League sought a hearing to revoke a nuclear
power plant's construction permit on the ground the NRC
had failed to require the development of an adequate evacua-
tion plan. The court held that the refusal to institute a
revocation proceeding is a reviewable final order. Id. at 1028.
Here, by contrast, ACC seeks review of the Director's inter-
locutory antitrust finding.

Because ACC designated a nonfinal interlocutory order in
its petition for review and failed to designate in a timely
fashion the order it intended to be reviewed, its petition is
dismissed for lack of jurisdiction.

So ordered.