ML080580091
| ML080580091 | |
| Person / Time | |
|---|---|
| Site: | Indian Point, Pilgrim, Vermont Yankee, FitzPatrick  |
| Issue date: | 02/21/2008 |
| From: | Cordes J, Hamrick S, Mcfadden L, Slaggie E NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | |
| Hamrick C, OGC, 301-415-4106 | |
| References | |
| 07-1482, 07-1483 | |
| Download: ML080580091 (11) | |
Text
THIS CASE WAS ORALLY ARGUED ON DECEMBER 6,2007 Nos. 07-1482; 07-1483 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT COMMONWEALTH OF MASSACHUSETTS, Petitioner; V.
UNITED STATES; U.S. NUCLEAR REGULATORY COMMISSION, Federal Respondents, ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR VERMONT YANKEE LLC, and ENTERGY NUCLEAR GENERATION COMPANY, Intervenors.
ON PETITIONS FOR REVIEW OF ORDERS OF THE U.S. NUCLEAR REGULATORY COMMISSION FEDERAL RESPONDENTS' REPLY TO THE COMMONWEALTH'S SUPPLEMENTAL BRIEF RONALD J. TENPAS Assistant Attorney General LANE M. McFADDEN Attorney Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 23795 Washington, D.C. 20026-3795 (202) 353-9022 KAREN D. CYR General Counsel JOHN F. CORDES, JR.
Solicitor E. LEO SLAGGIE Deputy Solicitor STEVEN C. HAMRICK Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (301) 415-4106 February 21, 2008
TABLE OF CONTENTS TABLE OF CONTENTS.................................
i TABLE OF AUTHORITIES.........................................
.ii FEDERAL RESPONDENTS' REPLY TO THE COMMONWEALTH'S SUPPLEM ENTAL BRIEF...........................................
1 I.
The Commonwealth's Supplemental Brief Impermissibly Discusses Settlement Negotiations........................
1 II.
A Statement in the Regulatory History of a Recent Amendment to the NRC's Adjudicatory Rules Does Not Prevent an Interested State from Obtaining Judicial Review............
3 CO N CLU SIO N.....................................................
6 i
TABLE OF AUTHORITIES JUDICIAL AUTHORITIES Judicial Decisions Clark & Reid Co. v. United States, 804 F.2d 3 (1st. Cir. 1986).............
4, 6 In re Lake Utopia Paper Ltd., 608 F.2d 928 (2nd Cir. 1979).................
1 First Circuit Rules 1st C ir. R. 33(c)..................................................
1-2 ADMINISTRATIVE AUTHORITIES NRC Regulations 10 C.F.R. § 2.315 4-5 Federal Register Final Rule, "Changes to Adjudicatory Process,"
69 Fed. Reg. 2,182 (Jan 14, 2004)............................
3-4 ii
FEDERAL RESPONDENTS' REPLY TO THE COMMONWEALTH'S SUPPLEMENTAL BRIEF Two passages in the Commonwealth's recently-filed supplemental brief call for a short reply. One passage suggests, Wrongly and inappropriately, that it was NRC's "new demands...
for concessions" that scuttled settlement negotiations suggested by this Court. The other passage takes out of context an NRC remark in a 2004 rulemaking proceeding and argues, incorrectly, that the remark contradicts our legal position in this case.
I.
The Commonwealth 's Supplemental Brief Impermissibly Discusses Settlement Negotiations.
In footnote 19 of its supplemental brief, the Commonwealth suggests that NRC is to blame for the inability of the parties to settle this lawsuit, claiming that "new demands by the NRC for concessions by the Commonwealth on its substantive case" derailed the settlement negotiations. See Pet. Sup. Br. at 12, n.19.
Under First Circuit Rule 33(c), counsel are "prohibited from disclosing any substantive information emanating from the conference to anyone other than their clients or co-counsel." Only "the fact of the conference having taken place, and the bare result thereof (e.g., 'settled,' 'not settled,' 'continued')," are not considered confidential. Id. First Circuit Rule 33(c) references In re Lake Utopia Paper Ltd., which explained that "[t]he guarantee of confidentiality permits and
encourages counsel to discuss matters in an uninhibited fashion." 608 F.2d 928, 930 (2nd Cir. 1979). Otherwise, counsel will feel constrained to conduct themselves "in a cautious, tight-lipped, non-committal manner more suitable to poker players.., than to adversaries attempting to arrive at a just resolution of a civil dispute." Id.
The NRC certainly engaged in settlement talks in good faith and disagrees with the Commonwealth's suggestion that NRC "demands" led to the unsuccessful result. It is apparent from the failure of the parties to reach an agreement that both sides maintained a position with which the other was not comfortable. The Commonwealth's self-serving characterization of the negotiations violates both this Court's rules and the parties' understanding that their discussions would be used solely for the purpose of attempting to reach a settlement. See 1 st Cir. R.
33(c). The Commonwealth's attempt to assign blame to the NRC goes further than simply reporting "settled," "not settled," or "continued," and therefore violates First Circuit Rule 33(c). Accordingly, the Court should ignore the phrase "as well as new demands by the NRC for concessions by the Commonwealth on its substantive case" in footnote 19 of the Commonwealth's brief.
2
II.
A Statement in the Regulatory History of a Recent Amendment to the NRC's Adjudicatory Rules Does Not Prevent an Interested State from Obtaining Judicial Review.
The Commonwealth's supplemental brief cites the NRC's "Statement of Considerations" issued during a 2004 agency rulemaking to support its argument that an "interested state" does not have a right to judicial review. See Pet. Sup. Br.
at 6-7 (citing Final Rule, "Changes to Adjudicatory Process," 69 Fed. Reg. 2,182, 2,223 (Jan 14, 2004)). Taken out of context, the sentence highlighted by the Commonwealth appears to contradict the NRC's position in this case that an interested state can seek judicial review. In context, though, there is no contradiction.
We excerpt the pertinent paragraphs in their entirety -- the Commonwealth relies on the last sentence of the first paragraph:
This section continues largely unchanged the provisions in former
§ 2.715(a) and (b). However, several clarifying changes have been made in the language of this section. For example, in paragraph (a), a sentence has been added to clarify that statements of position submitted by a person who is not a party shall not be considered evidence in the proceeding. In paragraph (d), the language has been clarified to make clear that the motion for leave to file an amicus brief may be submitted with the amicus brief itself. Regardless ofthe nature ofparticipation by a person who is a non-party, that person does not possess any of the rights and privileges of a person who has attained the status ofa party, including taking an appeal to the Commission, or to judicial review of an agency final decision.
3
Substantial changes have been made to § 2.315(c), in part to use language which is consistent with the final version of § 2.309(d), and to reflect the Commission's determination that interested States, governmental bodies (counties, municipalities or other subdivisions) and affected Federally-recognized Indian Tribes must identify prior to the commencement of the hearing the contentions on which they wish to participate. Also, the final rule, unlike existing § 2.715(c), requires each interested State, governmental body and Indian Tribe to designate a single representative for the proceeding; the Commission will no longer permit multiple agencies or offices within a political entity to separately participate under §2.315(c).
69 Fed. Reg. at 2,223 (emphasis added).
The first paragraph (excerpted above) discusses the NRC's rules allowing non-parties to make non-evidentiary "limited appearance statements" to the Licensing Boards and to file amicus curiae briefs with the Commission, under 10 C.F.R. § 2.315(a) and (d), respectively. The paragraph contains no reference whatever to "interested states." Thus, in context, the highlighted sentence -
suggesting that "non-parties" cannot take appeals within the NRC or to the courts
- should be understood to refer to "limited appearance" and amicus participants only, and not to "interested state" participants. This is sensible. The Commission (on an intra-agency appeal) and/or a court of appeals may well not entertain appeals taken by mere "limited appearance" or "amicus" participants - who by choice are virtual bystanders to adjudicatory proceedings. See Clark & Reid Co. v.
United States, 804 F.2d 3, 6 (1st. Cir. 1986).
4
But "interested states" are different. It is the second paragraph (excerpted above) that discusses their participation in NRC proceedings. Nothing in it suggests that "interested states" lack a right of appeal, either within the Commission or outside it (to the courts). In fact, as our supplemental brief makes clear (pp. 4-5), under NRC rules "interested states" enjoy a full panoply of participatory rights going well beyond those of "limited appearance" or amicus participants - including a specific right to appeal Licensing Board decisions to the Commission. See 10 C.F.R. § 2.315(c). This specific right of appeal, in and of itself, shows that the sentence the Commonwealth highlights cannot be understood to apply to "interested states." That sentence rules out intra-agency appeals altogether, whereas an NRC regulation gives "interested states" that right expressly. In any event, because the plain meaning of a regulation controls over remarks made in regulatory history, even if the sentence said what the Commonwealth suggests, it would be simply incorrect.
In the final analysis, of course, the NRC lacks power to deprive this Court of jurisdiction by simply inserting a sentence into the Federal Register. This Court determines whether it has jurisdiction in accordance with the Hobbs Act and judicial precedent. As discussed in our supplemental brief (pp. 8-11), an interested state would be a "party aggrieved" under the Hobbs Act if it "directly 5
and actually participate[s]" in the agency proceeding. See Clark & Reid 804 F.2d at 6.
CONCLUSION For the foregoing reasons, and the reasons given in our main and supplemental briefs, this Court should deny the Commonwealth's petition for review.
Respectfully submitted, RONALD J. TENPAS Assistant Attorney General LANE M. MAcFADDEN' Attorney Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 23795 L'Enfant Plaza Station Washington, D.C. 20026 202-353-9022 KAREN D. CYR General Counsel r*CIý CORDES, Jr.
oliolicitor E. LEO SLAGGIE Deputy Solicitor STEVEN C. HAMRICK Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 301-415'4106 February 21, 2008 6
Certificate of Compliance with Rule 32(a)
Certificate of Compliance With Page Limitation, Typeface Requirements, and Type Style Requirements
- 1. This brief complies with the page limitation of Fed. R. App. P.
32(a)(7)(A) because this brief contains 6 pages, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
- 2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Corel WordPerfect X3 in 14-point Times New Roman font.
Steven C. Hamrick Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Counsel for the Federal Respondents Dated: February 21, 2008
CERTIFICATE OF SERVICE I, Steven Hamrick, hereby certify that on February 21, 2008, I served copies of the Federal Respondents Reply to the Commonwealth's Supplemental Brief on the following parties by way of first class mail:
Diane Curran Harmon, Curran, Spielberg & Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 Matthew Brock Assistant Attorney General, Environmental Protection Division Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 David Lewis Paul Gaukler Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W.
Washington, D.C. 20037 Date Steven C. Hamrick Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission