Blue Ridge Environmental Defen v. NRC

Filing

OPINION filed [1359064] (Pages: 20) for the Court by Judge Edwards [09-1112, 10-1058]

USCA Case #09-1112

Document #1359064

Filed: 02/17/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2011

Decided February 17, 2012

No. 09-1112
BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE,
PETITIONER
v.
NUCLEAR REGULATORY COMMISSION AND UNITED STATES OF
AMERICA,
RESPONDENTS
TENNESSEE VALLEY AUTHORITY,
INTERVENOR

Consolidated with 10-1058

On Petitions for Review of Orders
of the Nuclear Regulatory Commission

James B. Dougherty argued the cause and filed the briefs
for petitioner.
Jeremy M. Suttenberg, Attorney, U.S. Nuclear Regulatory
Commission, argued the cause for respondents. With him on the
brief were Lane McFadden, Attorney, U.S. Department of
Justice, Stephen G. Burns, General Counsel, U.S. Nuclear
Regulatory Commission, John F. Cordes, Jr., Solicitor, and

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Grace H. Kim, Senior Attorney.
Maria V. Gillen, Attorney, argued the cause for intervenor.
With her on the brief was Harriet A. Cooper, Assistant General
Counsel.
Before: GARLAND and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In December 1974,
Tennessee Valley Authority (“TVA”) received construction
permits from the Atomic Energy Commission, the predecessor
to the Nuclear Regulatory Commission (“the NRC” or “the
Commission”), for the Bellefonte Nuclear Plant, Units 1 and 2
(“the units”). TVA pursued construction under a series of
permit extensions through the late 1980s, when, based on its
projections of diminished energy demand, it decided to place the
units in “deferred status” and establish a maintenance program
under the NRC’s Policy Statement on Deferred Plants (“the
Policy Statement”). See 52 Fed. Reg. 38,077, 38,077–79 (Oct.
14, 1987). Under the Policy Statement, during a deferral period,
a permit holder is required to undertake maintenance and
preservation activities but may halt actual construction. In 2005,
TVA placed the units in “terminated” status under the Policy
Statement. One year later, TVA voluntarily requested that the
NRC withdraw the permits. The NRC granted this request.
In 2008, TVA asked the NRC to reinstate its withdrawn
construction permits. Although neither withdrawal nor
reinstatement are specifically addressed in the Atomic Energy
Act (“the AEA” or “the Act”), see 42 U.S.C. § 2239 (2006), the
NRC granted TVA’s reinstatement request in an order issued on
March 9, 2009 and published in the Federal Register on March
13, 2009.

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On March 30, 2009, the Blue Ridge Environmental Defense
League (“BREDL” or “Petitioner”) filed a petition with this
court, purporting to challenge the NRC’s decision to reinstate
the construction permits. However, in its Statement of Issues To
Be Raised, in its Reply Brief, and during oral argument, BREDL
insisted that it was not challenging the NRC order that was
published in the Federal Register on March 13, 2009. Rather,
BREDL asserted that its March 30, 2009 petition for review
challenges only a compilation of “Response Sheets” filed by
individual Commissioners in December 2008 and January 2009.
BREDL contends that this compilation of Commissioners’
views resulted in a final order on January 27, 2009. We
disagree. After the Commissioners’ “Response Sheets” were
assembled, the matter was referred to the NRC staff for
evaluation. However, it was not until February 18, 2009 that the
NRC authorized the staff to issue an order on behalf of the
agency reinstating the construction permits. That order was
published in the Federal Register on March 13, 2009. Therefore,
BREDL’s petition for review challenging an alleged action of
the NRC taken on January 27, 2009 does not seek review of a
final NRC order.
On May 8, 2009, BREDL, along with some other parties,
petitioned the NRC to intervene in an agency good cause
hearing on the Commission’s action reinstating the construction
permits. The NRC decided to hear BREDL’s legal contentions
first, before addressing technical contentions primarily regarding
the safety of reinstating the construction permits. On January 7,
2010, the NRC issued an opinion rejecting BREDL’s legal
claims and referring BREDL’s remaining claims to the Atomic
Safety and Licensing Board (“the ASLB”) for disposition. On
March 8, 2010, before the ASLB had addressed BREDL’s
remaining contentions, BREDL filed its second petition for
review with this court. This second petition challenges the
NRC’s January 7, 2010 opinion rejecting BREDL’s legal claims.

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BREDL contends that the agency’s January 7 opinion qualifies
as a final agency action that is subject to judicial review. We
disagree. It is clear on the record here that the NRC’s January
7 opinion was merely an interlocutory action addressing
BREDL’s legal challenges to the Commission’s authority.
BREDL had raised numerous other claims that were referred to
the ASLB, and those claims remained pending before the NRC
when BREDL filed its premature petition for review on March
8, 2010.
Under the Hobbs Act, this court has jurisdiction to review
only “final orders” of the NRC. 28 U.S.C. § 2342(4) (2006).
The March 30, 2009 and March 8, 2010 petitions filed by
BREDL with this court do not seek review of final NRC orders.
Therefore, we lack jurisdiction and must dismiss.
I.
A.

Background

Facts

The AEA provides the general framework that governs the
construction of nuclear power plants. Before a company can
build a plant, it must seek a construction permit from the NRC.
See 42 U.S.C. § 2235(a). All construction permits must specify
the latest date by which construction must be complete, although
the NRC can extend deadlines for good cause. Id. All of a
permit holder’s rights and privileges are “forfeited” when a
permit “expire[s]” on the designated completion date. Id. The
AEA also authorizes the NRC to revoke a construction permit
prior to completion in the event of wrongdoing. See id. § 2236.
But the Act does not account for the possibility that a permit
holder might voluntarily request that the NRC withdraw a valid
construction permit, nor does it address whether the NRC may
reinstate a construction permit that has been withdrawn. See id.
§ 2239.
TVA first applied for construction permits for the units in
1973. See In re Tenn. Valley Auth., 71 N.R.C. 113, 115 (2010),

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reprinted in Joint App. (“J.A.”) 14. The ASLB considered
interested citizens’ intervention requests, conducted an
evidentiary hearing, and issued a favorable decision in
December 1974. The permits for the units were set to expire in
1979 and 1980 respectively. See id. at 115–16. But by 1979,
TVA realized that it would not be able to complete construction
by the deadlines due in part to labor shortages, delivery
problems, and the need for new safety features following the
Three Mile Island accident. See TVA, Bellefonte Nuclear Plant,
Units 1 and 2; Order Extending Construction Completion Dates,
44 Fed. Reg. 76,893, 76,893 (Dec. 28, 1979). TVA thus
requested, and the NRC granted, an extension of the permit
deadlines. See id. But TVA found that it could not complete
construction by the new deadlines, and it again submitted timely
extension requests, which the NRC granted. See TVA,
Bellefonte Nuclear Plant, Units 1 and 2; Order Extending
Construction Completion Dates, 52 Fed. Reg. 25,676, 25,676
(July 8, 1987).
Soon after the 1987 extension, TVA decided to defer
construction of the plants under the Commission’s Policy
Statement. In re Tenn. Valley Auth., 71 N.R.C. at 116. At the
time of deferral, Units 1 and 2 were approximately ninety and
sixty percent complete, respectively. Id. Under the Policy
Statement, a permit holder may resume construction of a plant
only after providing at least an 120-day notice to the NRC and
receiving the NRC’s approval that the plant’s systems,
structures, and components are acceptable. See 52 Fed. Reg. at
38,079. TVA provided notice of its intent to resume
construction in 1993 and requested deadline extensions for its
permits. In re Tenn. Valley Auth., 71 N.R.C. at 116–17. The
NRC granted this request, extending Unit 1’s deadline into 2001
and Unit 2’s deadline into 2004. See In the Matters of TVA
(Bellefonte Nuclear Plant, Units 1 and 2), 59 Fed. Reg. 34,874,
34,874–75 (July 7, 1994). Shortly thereafter, TVA decided that
the units could not be completed without additional financial

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support, and it suspended further construction pending
completion of a comprehensive evaluation of its power needs.
Although the units were in deferred status, TVA requested
further extensions in 2001. See In re Tenn. Valley Auth., 71
N.R.C. at 117. NRC approved this request in March 2003,
extending the permits for Units 1 and 2 into 2011 and 2014,
respectively. See In the Matters of TVA (Bellefonte Nuclear
Plant, Units 1 and 2); Order, 68 Fed. Reg. 11,415, 11,415–16
(Mar. 10, 2003). As completion continued to be delayed,
however, TVA placed the units in terminated status, concluding
that they could not be justified economically. See In re Tenn.
Valley Auth., 71 N.R.C. at 117. TVA’s board of directors voted
to cancel construction, and, in 2006, TVA formally requested
that the NRC withdraw the permits. The Commission granted
TVA’s request by letter that same year. See id.
TVA recounts that, in 2008, a number of factors – the
estimated cost per kilowatt of installed capacity among
generation alternatives, the number of worldwide suppliers
capable of providing necessary reactor components, and the
number of entities expressing interest in developing new nuclear
generation capacity – augured in favor of completing
construction of the units.
In light of these changed
circumstances, TVA requested by letter that the NRC reinstate
the permits and return the plants to “deferred” status, such that
TVA could resume preservation and maintenance activities to
prepare the plants for construction. See id. at 117–18.
B. Procedural History
Because this court’s jurisdiction under the Hobbs Act turns
on the finality of the challenged agency actions, we offer a
somewhat detailed description of both the internal procedures
followed by the NRC with respect to TVA’s reinstatement
request and BREDL’s petitions for review.
In a “tasking memorandum” issued on October 30, 2008,

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the NRC Chairman directed the NRC staff to provide its views
and recommendations on TVA’s reinstatement request. See
Memorandum from R. W. Borchardt, Exec. Dir. for Operations,
to Chairman Klein, Commissioner Jaczko, Commissioner
Lyons, and Commission Svinicki 1 (Dec. 12, 2008) (“Borchardt
Memo”), reprinted in J.A. 92 (describing staff’s responsibilities
under Chairman’s tasking memo). The staff submitted its
response on December 12, 2008, asking for authorization from
the Commissioners “for the recommendation to go forward with
the review and action on [TVA’s] request.” Id. The staff’s
memorandum states:
If the Commission agrees with the staff’s recommendation,
the staff will evaluate TVA’s request for reinstatement to
determine whether it is supported by good cause,
considering the totality of the circumstances. If the staff
finds the request acceptable, it will prepare an order
granting the request, with conditions, an environmental
assessment, and a supporting safety evaluation.
Id. (emphasis added).
In the weeks that followed, the four NRC Commissioners
submitted individual “Response Sheets” to the staff’s
memorandum. Three indicated their general approval of the
reinstatement request, although they recommended that the units
be placed in “terminated,” rather than “deferred,” status. See
Response Sheet from Chairman Klein to Annette Vietti-Cook
(Jan. 9, 2009); Response Sheet from Commissioner Lyons to
Annette Vietti-Cook (Jan. 7, 2009); Response Sheet from
Commissioner Svinicki to Annette Vietti-Cook (Dec. 22, 2008),
reprinted in J.A. 1–2, 9–13. The fourth Commissioner to
respond, Commissioner Jaczko, disapproved of the
reinstatement request. See Response Sheet from Commissioner
Jaczko to Annette Vietti-Cook (Jan. 27, 2009), reprinted in J.A.
3–8.

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On February 18, 2009, the Commission authorized the staff
to issue an order reinstating the construction permits and place
Bellefonte Units 1 and 2 in “terminated” status under the
agency’s Policy Statement, rather than the “deferred” status
TVA sought. In re Tenn. Valley Auth., 71 N.R.C. at 118. The
Commission also directed the staff to offer a hearing opportunity
on the question of whether TVA had established “good cause”
for reinstatement. The staff “then prepared an environmental
assessment which concluded that reinstatement of the
construction permits would not result in a significant
environmental impact.” Id.
On March 9, 2009, an order was issued by the agency
authorizing reinstatement of the construction permits for Units
1 and 2. The order was published in the Federal Register on
March 13, 2009. See In the Matter of TVA (Bellefonte Nuclear
Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13,
2009). The order states “it is hereby ordered that [construction
permits] . . . for the construction of [Bellefonte] Units 1 and 2,
respectively, are reinstated, and the facility returned to a
terminated plant status . . . . It is also ordered . . . that the
expiration dates defining the latest construction completion
dates . . . are October 1, 2011, and October 1, 2014,
respectively.” Id. at 10,970 (second emphasis added) (citation
omitted). The order also provided notice that parties could
request a limited agency hearing to address whether good cause
supported reinstatement and invited participation in that hearing.
See id. at 10,969.
On March 30, 2009, BREDL filed a petition with this court,
“for review of the final determination by [the NRC] to reinstate
construction permits that had previously been issued by the
NRC to the [TVA] and were subsequently withdrawn and
rendered void.” Pet. for Review 1, Mar. 30, 2009. The petition
stated that, “[t]hough the exact date on which the NRC took
final action reinstating the construction permits is uncertain, the

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action was announced in the March 13, 2009 edition of the
Federal Register.” Id. Copies of the NRC Commissioners’
“Response Sheets” were attached to BREDL’s petition for
review. On April 30, 2009, BREDL filed a Statement of Issues
To Be Raised, advising the court that, “[o]n information and
belief, the final action of the NRC was taken on January 27,
2009, in a compilation of written decision[s] by the four
individual NRC Commissioners.” Pet’r’s Statement of Issues
To Be Raised 1, Apr. 30, 2009. This point was emphasized
further by BREDL in its Reply Brief to the court, which states:
The NRC asserts (NRC Br. at 12), incorrectly, that BREDL
filed the first petition for review in this Court “[i]n response
to the [March 13] Federal Register notice” . . . . What
actually happened is that BREDL challenged the January
27, 2009 Commission decision, and it attached a copy of
the four-part decision, not the subsequent Federal Register
notice, to its petition for review.
Pet’r’s Reply Br. at 3 (first and second alterations in original).
On May 8, 2009, while its first petition for review was
pending before this court, BREDL, along with other
environmental groups, petitioned the NRC to intervene in the
agency’s good cause hearing. See In re Tenn. Valley Auth., 71
N.R.C. 118–19. The petition offered nine “contentions”
opposing the reinstatement – including both legal claims that the
NRC lacked authority to reinstate withdrawn permits under the
AEA and technical contentions addressing other concerns
related to reinstatement. See id. In an order issued on May 20,
2009, the NRC advised the parties that it intended “to resolve
[BREDL’s] threshold ‘authority’ issue before taking action on
Petitioners’ other contentions.” In re Tenn. Valley Auth., Order,
reprinted in J.A. 243. The Commission also directed the parties
and the NRC staff to submit briefs “addressing the question
whether the NRC possesses the statutory authority to reinstate
the withdrawn construction permits.” Id. Finally, the

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Commission’s order made it clear that
[t]he remainder of Petitioners’ proposed contentions will be
held in abeyance, pending the Commission’s ruling on the
threshold “authority” issue. The Commission may refer
Petitioners’ remaining contentions to the Atomic Safety and
Licensing Board Panel at a future date.
Id., reprinted in J.A. 244. Meanwhile, on June 11, 2009, this
court granted the NRC’s unopposed motion to hold in abeyance
BREDL’s March 30, 2009 petition for review, pending the
NRC’s disposition of the challenges raised by BREDL in its
petition to intervene in the agency’s good cause hearing. See
Clerk’s Order, June 11, 2009.
On January 7, 2010, after receiving arguments on BREDL’s
legal contentions, the NRC issued an opinion holding that the
Commission has authority under the AEA to reinstate previously
withdrawn construction permits. See In re Tenn. Valley Auth.,
71 N.R.C. at 115. The opinion also referred BREDL’s technical
contentions to the ASLB. On this point, the opinion says:
This decision addresses the “authority” question only, a
question raised in Petitioners[’] Contentions 1 and 2. We
hold that NRC has authority to reinstate surrendered
construction permits. We refer the remainder of the petition
to intervene and request for hearing, including Petitioners’
July 15, 2009, supplemental filing to the Atomic Safety and
Licensing Board Panel for further proceedings. Once a
Licensing Board is convened, it will have to decide in the
first instance whether Petitioners have established standing
and have raised admissible contentions and if so, given their
claims, whether reinstatement on the particular facts
presented here is lawful and proper – that is, whether there
is “good cause” for reinstatement.
Id. at 126.

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On March 8, 2010, after the Commission had rejected
BREDL’s legal contentions, but before the ASLB could consider
BREDL’s remaining contentions, BREDL filed its second
petition for review with this court. This second petition
challenges the NRC’s January 7, 2010 opinion holding that the
agency has the authority to reinstate the construction permits for
Units 1 and 2. BREDL’s consolidated petitions are now before
us.
II.

Analysis

A. Standard of Review
The Hobbs Act grants appellate courts jurisdiction to review
“final orders” issued by the NRC. 28 U.S.C. § 2342(4). Thus,
we must determine de novo whether either of BREDL’s
petitions seeks review of a final order. See, e.g., Waters v.
Rumsfeld, 320 F.3d 265, 271 (D.C. Cir. 2003) (“[W]e have an
independent obligation to determine jurisdiction de novo.”
(citation omitted)).
“[T]he relevant considerations in determining finality are
whether the process of administrative decisionmaking has
reached a stage where judicial review will not disrupt the orderly
process of adjudication and whether rights or obligations have
been determined or legal consequences will flow from the
agency action.” Port of Bos. Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)
(citations omitted); see also Massachusetts v. U.S. Nuclear
Regulatory Comm’n, 878 F.2d 1516, 1519–20 (1st Cir. 1989). In
Bennett v. Spear, 520 U.S. 154 (1997), which addressed the
requirement of finality under the Administrative Procedure Act,
5 U.S.C. § 704 (2006), the Supreme Court explained that
[a]s a general matter, two conditions must be satisfied for
agency action to be “final”: First, the action must mark the
“consummation” of the agency’s decisionmaking process –
it must not be of a merely tentative or interlocutory nature.

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And second, the action must be one by which “rights or
obligations have been determined,” or from which “legal
consequences will flow.”
520 U.S. at 177 (citations omitted). Finality under the Hobbs
Act is to be “narrowly construed[;] . . . [a]n order is final if it
‘imposes an obligation, denies a right, or fixes some legal
relationship, usually at the consummation of an administrative
process.’” Natural Res. Def. Council, Inc. v. U.S. Nuclear
Regulatory Comm’n, 680 F.2d 810, 815 (D.C. Cir. 1982)
(citations omitted). And in the context of administrative
adjudications, “a final order is [normally] one that disposes of
all issues as to all parties.” Citizens for a Safe Env’t v. Atomic
Energy Comm’n, 489 F.2d 1018, 1021 (3d Cir. 1973) (citation
omitted).
B. Finality
1.

BREDL’s March 30, 2009 Petition for Review

As noted above, when BREDL filed its first petition for
review on March 30, 2009, it was not entirely clear what
specific NRC action BREDL sought to have reviewed. That
petition states:
Petitioner Blue Ridge Environmental Defense League
hereby petitions this Court for review of the final
determination by Respondent Nuclear Regulatory
Commission (“NRC”) to reinstate construction permits that
had previously been issued by the NRC to the Tennessee
Valley Authority (“TVA”) and were subsequently
withdrawn and rendered void. The construction permits in
question, which were issued December 24, 1974, had
authorized TVA to construct two nuclear reactors –
Bellefonte Units 1 and 2 – in Jackson County, Alabama.
Though the exact date on which the NRC took final
action reinstating the construction permits is uncertain, the

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action was announced in the March 13, 2009 edition of the
Federal Register, 74 Fed. Reg. 10969.
A copy of the NRC decision document (actually a
compilation of decisions[] by each of the four sitting NRC
Commissioners) is attached.
Pet. for Review 1–2, Mar. 30, 2009.
At first blush, one might suppose that BREDL meant to
contest the agency’s order that was published in the Federal
Register on March 13, 2009. It is true that the petition says that
the “exact date on which the NRC took final action reinstating
the construction permits is uncertain.” But the petition was filed
after publication of the Commission’s order, and it explicitly
acknowledges that the agency’s “action was announced in the
March 13, 2009 edition of the Federal Register, 74 Fed. Reg.
10969.” Indeed, the briefs filed by the NRC and Intervenor
TVA appear to assume that BREDL’s March 30, 2009 petition
for review challenges the agency order that was published on
March 13, 2009. It is therefore somewhat perplexing that
BREDL insists otherwise.
As noted above, in its Statement of Issues To Be Raised,
BREDL asserted that “the final action of the NRC was taken on
January 27, 2009, in a compilation of written decision[s] by the
four individual NRC Commissioners.” Pet’r’s Statement of
Issues To Be Raised 1, Apr. 30, 2009. Then in its Reply Brief
filed with the court, BREDL made it clear that its March 30,
2009 petition sought review only of “the January 27, 2009
Commission decision, . . . not the subsequent Federal Register
notice.” Pet’r’s Reply Br. at 3. And during oral argument, when
pressed on this point, BREDL’s counsel positively confirmed
that the petition for review was meant to focus solely on the
composite statements of the NRC Commissioners as expressed
in their “Response Sheets” written in December 2008 and
January 2009.

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In light of these facts, there is only one, inescapable
conclusion. By repeatedly insisting that it never sought review
of the order that was published in the Federal Register on March
13, 2009, BREDL has effectively confirmed that it did not seek
review of a final order.
There are several reasons why BREDL was incorrect to
conclude that the Commissioners’ “Response Sheets” constitute
a final order. First, as recounted above, the NRC staff’s
memorandum to the Commissioners seeking authorization to
consider TVA’s request makes explicit that such authorization
was only the first step toward a final reinstatement order. See
Borchardt Memo 1, reprinted in J.A. 92.
After the
Commissioners returned their “Response Sheets,” the staff still
had to exercise its independent judgment to prepare an
environmental assessment.
Second, the Commissioners clearly anticipated that after
submitting their “Response Sheets,” the NRC staff would
engage in deliberation and independent review before issuing a
reinstatement order on behalf of the agency. The following
statements from the “Response Sheets” – dealing primarily with
whether to place the units in “deferred” or “terminated status”
– are particularly illustrative of the fact that the “Response
Sheets” do not constitute, or even resemble, the consummation
of the administrative process.
•

“I approve the staff’s request to proceed with the
review of TVA’s request, and I approve the
reinstatement of the [construction permits] if the staff
concludes that TVA’s request is acceptable. However,
I disapprove the proposal for concurrent placement of
the facility in a deferred plant status; instead, I support
the sequential approach for placing the facility in a
deferred plant status . . . .” Response Sheet from
Chairman Klein to Annette Vietti-Cook (Jan. 9, 2009)
(emphasis added), reprinted in J.A. 2.

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•

“The staff . . . requests Commission authorization to
review and take action on TVA’s request. As
proposed, if the staff were to find the request
acceptable, it would prepare an order reinstating the
construction permits . . . .” Id. (emphasis added).

•

“Therefore, as an alternative, if the request is found
acceptable, the staff should issue an order reinstating
the construction permits, which to my understanding
will de facto place the facility in ‘terminated
status’ . . . .” Id. (emphasis added).

•

“I approve in part and disapprove in part the staff’s
recommendation to reinstate the construction permits
for Bellefonte Units 1 and 2. . . . [T]he agency can
fully accomplish its regulatory role, with no loss of
public involvement, through a path that utilizes
reinstatement of the construction permits, but to a
‘terminated plant’ status.” Response Sheet from
Commissioner Lyons to Annette Vietti-Cook (Jan. 7,
2009), reprinted in J.A. 10.

•

“I approve in part and disapprove in part the staff’s
recommendation to reinstate the construction
permits . . . . In my view, however, it would be
premature to restore Bellefonte all the way to deferred
plant status immediately . . . .” Response Sheet from
Commissioner Svinicki to Annette Vietti-Cook (Dec.
22, 2008), reprinted in J.A. 12.

•

“This does not lead me to conclude, however, that we
should allow TVA to jump immediately to deferred
plant status without a demonstration that Bellefonte
satisfies what we would have required under the Policy
Statement . . . .” Id., reprinted in J.A. 13.

•

“Should physical deficiencies be identified, such as
hardware requiring replacement or records requiring

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reconstitution, I propose that TVA will need to address
those items to [the] staff’s satisfaction.” Id. (emphasis
added).
The Commission did not finally authorize the staff to issue an
order on behalf of the agency until February 18, 2009, and that
order was not published in the Federal Register until March 13,
2009. See In re Tenn. Valley Auth., 71 N.R.C. at 118.
Third, lest there is any possible doubt in this matter, it
cannot be gainsaid that the NRC’s order published on March 13
qualifies as final. The order marked the clear “consummation”
of the NRC’s “administrative process,” Natural Res. Def.
Council, Inc., 680 F.2d at 815 – a process that, here, featured the
staff’s request to proceed with an evaluation of TVA’s request,
and the Commission’s February 18, 2009 authorization which
allowed the staff to pursue its evaluation and then issue an order
on behalf of the agency. Furthermore, the order determined the
“rights [and] obligations” of affected parties. Bennett, 520 U.S.
at 178. The units were placed in “terminated,” rather than
“deferred,” status; interested parties were afforded the right to
“request a hearing . . . within 60 days”; and the scope of the
hearing was limited “to whether good cause exists for the
reinstatement of the [construction permits].” In the Matter of
TVA (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed.
Reg. at 10,969.
BREDL’s March 30, 2009 petition is not saved by
BREDL’s claim at oral argument that it had to treat the
Commissioners’ “Response Sheets” as constituting a final order,
because, as of the date that the last “Response Sheet” was
submitted, BREDL had no way of knowing that the NRC staff
would take subsequent action on TVA’s request. This argument
is belied by the fact that BREDL did not actually submit its
petition until after the NRC published its final order on March
13, 2009. Indeed, BREDL even cited that order in its March 30,
2009 petition for review. Therefore, BREDL easily could have

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amended its petition and Statement of Issues To Be Raised
correctly to seek review of the agency’s order that was published
in the Federal Register on March 13, 2009. Or, at the very least,
BREDL could have filed a protective petition for review of the
March 13, 2009 order. Cf. Massachusetts v. U.S. Nuclear
Regulatory Comm’n, 924 F.2d 311, 315 (D.C. Cir. 1991)
(describing that petitioners filed a “third . . . [duplicative]
petition . . . as a precaution to preserve [their] opportunity for
appellate review of the full power issues”).
We recognize, however, that BREDL still might have
stepped into a jurisdictional frying pan. Under the law of this
circuit, when a party “petitions [an] agency for reconsideration
of an order or any part thereof, the entire order is rendered
nonfinal as to that party.” Bellsouth Corp. v. FCC, 17 F.3d
1487, 1489–90 (D.C. Cir. 1994). The NRC argues that
BREDL’s petition to intervene in the NRC’s good cause hearing
was the functional equivalent of a motion for reconsideration.
In other words, according to the NRC, once BREDL filed its
petition to intervene in the agency’s for cause hearing, its prior
petition for review was “incurably premature.” TeleSTAR, Inc.
v. FCC, 888 F.2d 132, 134 (D.C. Cir. 1989) (per curiam). We
need not address this claim, however, given our conclusion that
BREDL failed to seek review of a final order in its initial
petition.
In sum, BREDL has insisted that its March 30, 2009
petition sought review only of the NRC Commissioners’
“Response Sheets” – documents which led to the NRC’s
February 18, 2009 action authorizing the staff to undertake an
evaluation of TVA’s proposed course of action and then to issue
a final order on behalf of the agency. Because these documents
do not constitute a “final order,” they are not the appropriate
subject of judicial review.

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2.

BREDL’s March 8, 2010 Petition for Review

On May 8, 2009, BREDL petitioned to intervene in the
NRC’s good cause hearing on the reinstatement order. See Pet.
for Intervention and Req. for Hr’g by the Blue Ridge
Environmental Defense League, Its Chapter Bellefonte
Efficiency and Sustainability Team and the Southern Alliance
for Clean Energy 1, reprinted in J.A. 187. BREDL’s petition
advanced nine specific contentions against reinstatement: two
legal contentions regarding the NRC’s authority to reinstate
withdrawn construction permits under the AEA and seven
technical contentions regarding the safety of reinstating the
permits. See id. at 12–38.
The NRC viewed the legal contentions as “potentially
dispositive,” In re Tenn. Valley Auth., 71 N.R.C. at 118, and
consequently directed the parties to brief and argue them
exclusively, id. The remaining seven contentions were held in
abeyance. Id. at 118–19. On January 7, 2010, the NRC issued
an opinion rejecting BREDL’s legal contentions, holding that
the Commission has the authority to reinstate withdrawn
construction permits under the AEA. See id. at 115. The NRC
then “refer[red] the remainder of the petition to intervene and
request for hearing . . . to the [ASLB] Panel for further
proceedings.” Id. at 126. BREDL filed a petition for review
with this court on March 8, 2010, seeking review of the NRC’s
January 7 opinion. But once again, BREDL sought review of a
nonfinal action.
Even after the NRC issued its opinion on January 7, the
ASLB still had to consider BREDL’s outstanding nonlegal
contentions. Therefore, it is axiomatic that the January 7
opinion did not “dispose[] of all issues as to all parties,” Citizens
for a Safe Env’t, 489 F.2d at 1021, or fix the parties’ rights and
obligations. Instead, the NRC’s January 7 opinion was a
“nonfinal, interlocutory order,” similar to the order challenged
in City of Benton v. Nuclear Regulatory Commission, 136 F.3d

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824, 825 (D.C. Cir. 1998) (per curiam).
In City of Benton, the petitioners, several municipal utilities,
opposed an NRC amendment to an operating license on antitrust
grounds, see id. at 824–25, while another party challenged the
NRC’s initial licensing decision on safety grounds, see id. at
825. An individual NRC director issued a ruling on May 30,
finding no significant antitrust issues. Id. On June 8, the NRC
issued final orders allowing the proposed amendments to go into
effect. Id. The petitioners sought this court’s review of the May
30 antitrust ruling, not the final orders. But as this court
explained,
[a]lthough the Director’s May 30 finding addressed the
antitrust issues . . ., 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 [the] 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.
Id. Thus, the court dismissed for lack of jurisdiction. See id. at
826. The same reasoning compels dismissal here.
BREDL seeks refuge in this court’s cases carving out an
exception to the Hobbs Act’s finality rule when the Commission
issues an “immediate effectiveness” ruling. But this exception
is unavailing to Petitioner. In the context of NRC actions, an
order issued during ongoing administrative proceedings is
reviewable pursuant to this exception if, for example, it
authorizes a plant operator to operate at full power pending
further review by the Commission. See Massachusetts, 924 F.2d
at 322. But as BREDL concedes, even after the agency’s
issuance of its January 7, 2010 opinion, TVA remained many
steps away from even reinitiating construction, let alone
generating actual electricity. Thus, the NRC’s ruling was not
equivalent to an “immediately effective order”; instead, it

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merely narrowed the issues confronting the ASLB in the good
cause hearing.
In sum, BREDL’s March 8, 2010 petition seeks review of
an interlocutory ruling by the NRC. And because the ruling was
not a final order subject to our jurisdiction under the Hobbs Act,
we must dismiss the petition for review.
III.

Conclusion

The petitions for review are hereby dismissed for want of
jurisdiction.
It is so ordered.

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