OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC., PETITIONER V. UNITED
STATES NUCLEAR REGULATORY COMMISSION, ET AL.

   No. 86-1390

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Brief for the Federal Respondents in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A4-A9) is reported
at 803 F.2d 258.  An earlier order of the court of appeals (Pet. App.
A1-A3) is unreported.  The memorandum and order of the Nuclear
Regulatory Commission (Pet. App. B1-B17) is reported at 23 N.R.C. 233.
 The memorandums and orders of the Atomic Safety Licensing and Appeal
Board are unreported.  /1/

                             JURISDICTION

   The judgment of the court of appeals was entered on October 14,
1986.  A petition for rehearing was denied on November 25, 1986 (Pet.
App. A11-A12).  The petition for a writ of certiorari was filed on
February 21, 1987.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether a Nuclear Regulatory Commission order refusing to allow a
party to reopen the administrative record to introduce new evidence in
a pending licensing proceeding is a "final order" reviewable in the
court of appeals under 28 U.S.C. 2342(4) and 42 U.S.C. 2239(b).

                               STATEMENT

   1. a. In 1980, respondent Cleveland Electric Illuminating Company
(CEI) and other public utilities applied to the Nuclear Regulatory
Commission (NRC or Commission) for a license to operate the Perry
Nuclear Power Plant, a two-unit facility located on the shore of Lake
Erie in northeastern Ohio.  /2/ The following year, the NRC began
hearings on whether to issue an operating license for the plant, and
petitioner was permitted to intervene in the proceedings as a party.
The hearings were conducted by the Atomic Safety and Licensing Board
(Licensing Board), which issued partial initial decisions in favor of
plant operation on December 2, 1983 (18 N.R.C. 1365), and on September
3, 1985 (22 N.R.C. 514).  Petitioner appealed the Licensing Board's
decision to the Atomic Safety and Licensing Appeal Board (Appeal
Board).

   On January 31, 1986, while petitioner's appeal was pending before
the Appeal Board, an earthquake of magnitude 5.0 occurred
approximately ten miles south of the Perry plant.  /3/ Three days
later, petitioner filed with the Appeal Board a motion to reopen the
administrative record, seeking leave to raise a new claim challenging
the adequacy of the plant's seismic design (Pet. App. B2).  Attached
to the motion was a newspaper article about the earthquake (id. at
A5), but the motion was devoid of any technical basis for believing
the plant's design to be inadequate.  The Commission staff and the
applicants opposed the motion to reopen the record.  In its reply
pleading filed with the Appeal Board, petitioner conceded that, to the
extent that the earthquake caused high frequency vibrations exceeding
those expected from a "Safe Shutdown Earthquake," those "high
frequency exceedances * * * do not have engineering significance" (id.
at B6).  Petitioner further conceded that the earthquake had caused
little or no damage to the Perry plant (ibid.).  The Appeal Board
concluded that it was unable to decide whether the motion to reopen
should be granted, and, by an unpublished order dated March 20, 1986,
the Appeal Board scheduled an exploratory hearing to consider the
matter further (id. at B2-B3).

   b. On April 18, 1986, the Commission, acting sua sponte, vacated
the Appeal Board's March 20 order and denied petitioner's motion to
reopen the administrative record, on the ground that the Appeal
Board's decision was contrary to established NRC precedent (Pet. App.
B1, B8).  The Commission ruled that the Appeal Board should have
denied petitioner's motion, rather than schedule a hearing, if the
Board found itself unable to conclude, on the basis of the papers
before it, that petitioner had raised a safety question of sufficient
significance to warrant reopening the record (id. at B4-B5).  /4/ The
Commission instructed its staff, however, to be prepared to discuss
the matters raised in the Appeal Board's March 20 order as part of the
staff's upcoming presentation to the Commission on the question
whether to issue a full-power operating license for the Perry facility
(id. at B8).

   2. On April 23, petitioner filed a petition for review of the
Commission's April 18 order in the court of appeals.  On September 4,
1986, one day before the Commission was scheduled to discuss and
possibly to vote on the question whether to issue a full-power
operating license for the Perry plant, the court of appeals, at
petitioner's request and by a divided vote, issued a stay barring the
Commission from taking "any possible vote" on the Perry license (Pet.
App. A2).  /5/ On October 14, the court, over one dissent, dissolved
the stay and dismissed the petition for review, on the ground that the
Commission's order denying petitioner's motion to reopen the record
was not a "final order" reviewable in the court of appeals under 28
U.S.C. 2342(4) and 42 U.S.C. 2239 (Pet. App. A7-A8).  /6/ The court
concluded that judicial review should be postponed until the
Commission granted or denied the license application, since all
challenges raised during the course of an NRC proceeding can be
resolved at that time (id. at A8).  /7/

                               ARGUMENT

   The decision of the court of appeals is correct, it does not
conflict with any decision of this Court or of any other court of
appeals, and it presents no significant legal question.  Accordingly,
review by this Court is not warranted.

   The Hobbs Act provides the courts of appeals with exclusive
jurisdiction to review "all final orders of the (Nuclear Regulatory
Commission) made reviewable by" Section 189 of the Atomic Energy Act
of 1954, 42 U.S.C. 2239 (28 U.S.C. 2342(4)), and the latter statute
authorizes judicial review of a "final order" entered by the
Commission in a proceeding "for the granting * * * of any license" (42
U.S.C. 2239(b)).  It is well settled that the "final order" in a
licensing proceeding is an order granting or denying a license.  NRDC
v. NRC, 680 F.2d 810, 815 (D.C. Cir. 1982);  Citizens for a Safe
Environment v. AEC, 489 F.2d 1018, 1021 (3d Cir. 1974);  Thermal
Ecology Must Be Preserved v. AEC, 433 F.2d 524, 525 (D.C. Cir. 1970);
see Ecology Action v. AEC, 492 F.2d 998, 1001 (2d Cir. 1974);  cf.
Stringfellow v. Concerned Neighbors in Action, No. 85-184 (Mar. 9,
1987), slip op. 4 (quoting Catlin v. United States, 324 U.S. 229, 233
(1945)) (a final judgment under 28 U.S.C. 1291 "ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment").  The Commission's April 18, 1986, order in this case,
which simply denied petitioner's motion to reopen the administrative
record in a pending licensing proceeding, is plainly not a "final
order" under the above decisions.

   Nor does that order constitute an immediately appealable collateral
order.  To qualify as a collateral order, a decision must conclusively
determine a disputed question, it must resolve an important question
completely separate from the merits of the case, and it must be
effectively unreviewable on appeal from a final judgment.  E.g.,
Stringfellow, slip op. 4;  Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978).  Because petitioner can raise its claim on appeal from the
order entered by the Commission issuing a license, the Commission's
April 18 order does not satisfy the third requirement noted above and
is not immediately reviewable in the court of appeals.  Stringfellow,
slip op. 5-6 (district court order placing restrictions on an
intervenor's participation in the case is not an appealable collateral
order);  see Ecology Action, 492 F.2d at 1001 ("an order excluding
evidence would normally be the archetype of a non-final order, since
any error would be inconsequential if the proponent prevails and can
be corrected on review of the final order if he loses");  Thermal
Ecology, 433 F.2d at 525-526 (NRC order denying an intervenor the
opportunity to introduce certain evidence at a licensing hearing is
not final).  /8/

   Petitioner's underlying argument is that its safety claims are
significant and that the NRC improperly refused to consider them in
the Perry licensing proceeding.  But that issue was not before the
court of appeals in this case.  The court of appeals addressed that
subject in its March 17, 1987, decision, in which the court upheld the
Commission's refusal to reopen the administrative record to consider
petitioner's claims.  /9/ Petitioner cannot obtain review of that
decision in this case, however, and its challenge to the correctness
of the NRC's April 18, 1986, order is not properly before the Court at
this time.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   ROBERT L. KLARQUIST

   DIRK D. SNEL

      Attorneys

   WILLIAM C. PARLER

      General Counsel

   WILLIAM H. BRIGGS, JR.

      Solicitor

   PETER G. CRANE

      Attorney United States Nuclear Regulatory Commission

   MARCH 1987

   /1/ The memorandums and orders of the Atomic Safety Licensing and
Appeal Board are not reprinted in the appendix to the petition.  We
have lodged copies with the Clerk of the Court.

   /2/ The applicants for the license were CEI, Duquesne Light
Company, Ohio Edison Company, Pennsylvania Power Company, and the
Toledo Edison Company.  These applicants were intervenors in the court
of appeals and are respondents in this Court.

   /3/ The plant was constructed to shut down safely in the event of
an earthquake of magnitude 5.3 (App., infra, 3a).

   /4/ Commissioner Asselstine, the sole dissenter, believed that the
Appeal Board correctly decided to hold a brief exploratory hearing
before ruling on the motion (Pet. App. B10-B17).  He did not express
any opinion, however, whether the record should have been reopened.

   /5/ Judge Nelson dissented on the ground that the court lacked
authority to stay a Commission vote on a full-power operating license
application (Pet. App. A2-A3).

   /6/ Judge Jones dissented on the ground that the Commission's order
refusing to reopen the record was an appealable collateral order (Pet.
App. A10).

   /7/ On October 23, petitioner sought rehearing en banc in the court
of appeals, and on October 27 petitioner again sought a stay from that
court, asserting that the Commission could not issue an operating
license for the Perry plant, because the court of appeals had not yet
issued the mandate from its October 14 decision.  The court of appeals
denied the stay request on November 7 and denied rehearing on November
25.  On January 5, 1987, petitioner applied to Justice Scalia for a
stay of the mandate of the court of appeals pending the filing of a
petition for a writ of certiorari.  Justice Scalia denied the
application on January 8.  Ohio Citizens for Responsible Energy v.
NRC, No. A-499.

   Other proceedings have been ongoing in the meantime.  On September
5, 1986, the State of Ohio sought leave from the Commission to
intervene as a party to the Perry licensing proceedings.  The
Commission denied the state's request on October 30, and Ohio filed a
petition for review of the Commission's decision in the court of
appeals (Ohio ex rel. Celebrezze v. NRC, No. 86-4019).  On November 7,
at the state's request, the court of appeals issued a stay barring the
Commission from issuing a full-power license for the Perry plant.  The
court of appeals lifted the stay on November 11 and authorized the
Commission to issue a license for the Perry plant.  The license was
issued two days later, November 13.  On the same day, the court of
appeals in the Ohio proceeding issued a new stay barring the licensee
from using the license for full-power operation.  The court of appeals
eventually set the stay aside on December 23.  Petitioner applied to
Justice Scalia for a stay of the court of appeals' December 23 order,
and the application was denied on December 31.  Ohio Citizens for
Responsible Energy, Inc. v. NRC, No. A-480.

   In the interim, Ohio commenced another proceeding in the court of
appeals seeking review of the Commission's decision to issue an
operating license for the Perry plant (Ohio ex rel. Celebrezze v. NRC,
No. 86-4038).  The petitioner in this case did the same (Ohio Citizens
For Responsible Energy, Inc. v. NRC, No. 86-4037).  The court of
appeals consolidated all three petitions (i.e., Ohio's petition
seeking review of the Commission's order denying it party status (No.
86-4019), and the petitions filed by the petitioner in this case and
Ohio seeking review of the Commission's decision to grant a full-power
operating license for the Perry plant (Nos. 86-4037 and 86-4038)), and
heard argument on December 3, 1986.  On December 23, the court of
appeals, in the same consolidated proceeding, lifted the stay barring
full-power operation at the Perry plant.

   Finally, on March 17, 1987, the court rendered a decision on the
three consolidated petitions.  The court upheld the Commission's
refusal to permit Ohio to intervene in the Perry licensing proceeding,
as well as the Commission's decision to issue a full-power operating
license for the Perry plant.  For the convenience of the court, the
court of appeals' March 17 decision is reprinted in an appendix to
this brief.  App., infra, 1a-14a.  The correctness of that decision,
however, is not before the Court in this case.

   /8/ Petitioner errs in asserting (Pet. 16-17) that the decision
below conflicts with Westinghouse Elec. Corp. v. NRC, 598 F.2d 759 (3d
Cir. 1979).  In that case, the Commission issued an order suspending
its work on a generic environmental impact statement regarding the
reprocessing of spent nuclear fuel, as well as its consideration of
pending applications to construct reprocessing plants.  Six months
later, the Commission issued a statement giving its reasons for the
first order.  The court of appeals expressly declined to decide which
order was "final" under 28 U.S.C. 2342(4) and 42 U.S.C. 2239(b), since
every party had filed a timely petition for review from each order.
598 F.2d at 766, 768.

   /9/ In that decision, the court of appeals observed that the only
evidence petitioner offered to support its concern with seismic
activity was a newspaper article (App., infra, 6a).  The court of
appeals continued (id. at 6a-7a):

         Even if the NRC had permitted (the Appeal Board) to proceed
      with its exploratory hearing, (petitioner) planned to offer no
      information or analysis of its own, but intended instead to
      conduct a cross-examination of witnesses presented by (the
      license applicant) and the NRC staff.  Furthermore, (petitioner)
      had conceded that the January (1986) earthquake did little or no
      damage to the plant and that "the high frequency exceedances of
      the SSE (Safe Shutdown Earthquake) design acceleration recorded
      in the January 31, 1986 earthquake do not have engineering
      significance." Instead, (petitioner) sought to introduce a new
      theory based on the improbable contention that a discoverable
      "capable fault" (as defined in 10 C.F.R. Part 1, App. A, III(g))
      caused the earthquake, even though such faults have rarely been
      identified east of the Rocky Mountains, and that the NRC staff
      had accordingly applied the wrong standards in making its
      seismic calculations.

   The court of appeals concluded that petitioner's submissions
comprised merely "the barest of allegations that the * * * earthquake
has undermined the technical premises of the plant's structural
design," and that these allegations were "palpably lacking in proof"
(id. at 7a).

   APPENDIX