ML080590273
| ML080590273 | |
| Person / Time | |
|---|---|
| Site: | Indian Point, Pilgrim, Vermont Yankee  |
| Issue date: | 02/14/2008 |
| From: | Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OGC |
| Hamrick C, OGC, 301-415-4106 | |
| References | |
| 07-1482, 07-1483 | |
| Download: ML080590273 (16) | |
Text
..........
...i i i : i i
..Nos. 07-1482 and 07-1483 (Consolidated)
- .y,.UNITED STATES COURT. OF:APPEALS.
FO, R THE FIRSTCIRCP:T 4
.'i COMMONWEALTH OFJVIASSACHUSETTS Petitzoner, UNITED, S TATES; UNITED STATES NUCLEAR REGULATOR~Y COMMISSION,
'~es'pondents 44 j nd
ý.,ENTERGY NUCLEAR OPERAONS IýNC..ENT ERGY:NUCLEARý V.ERMON-T--YANKEE LLC AND ENTERGY NU CLEAR GENERATION 44-..
t 4.:
ise f On Petitions for Review of a Final Decision of the United States Nuclea.r Regulatory Commission" SUPPLEMENTAL BRIEF OF INTERVENORS ENTERGY NUCLEAR
~OPERATIONS, INC. ENTERGY NUCLEAR VERMONT YANKEE LLC, AND, ENTERGY NUCLEAR GENER~ATION COMPANY
.'~,David.R.,Lew~is P1ILLSBURY WINTHROP SHAW.
PITTMAN. 'LLP;
`-23aOQN StN Washinfgton;ýDC' 20037 TOlephoie: ('202) ý66,3'8000 Cbunsel -f~fh ne Intervenors
,'~"'Feruayl,'2008.
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TABLE OF CONTENTS TABLE OF AUTHORITIES............................................. 1 INTRODUCTION........................................................................
1 STATEMENT OF THE ISSUE.........................................................
2
SUMMARY
OF ARGUMENT..........................................................
2 AzRGUMENT.............................................................................
3 I. AS AN INTERESTED STATE, THE COMMONWEALTH MAY FULLY.
PROTECT ITS INTERESTS BY FILING A MOTION PURSUANT TO 10 C.F.R. § 2.802(d)......................................................................
3 II. A FINAL DECISION BY THE COMMISSION ON A MOTION PURSUANT TO SECTION 2.802(d) WOULD BE SUBJECT TO JUDICIAL REVIEW....
6 CONCLUSION:.........................................................................
10 1
TABLE OF AUTHORITIES Cases Page Abbott Labs. v. Gardner, 387 U.S. 136 (1967).....................................................
10 ACLU v. FCC, 774 F.2d 24 (1st Cir. 1985).........................................................
7 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)..............................
4 City of W. Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983).................................
6 Clark & Reid Co. v. United States, 804 F.2d 3 (1st Cir. 1986)..............
6 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 N.R.C. 175 (1976).........................................................................................
5,7 Kentucky_ ex rel. Stephens, 626 F.2d 995 (D.C. Cir. 1980).................................
7 Nat'l Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000),
cert. denied, 531 U.S. 1070 (2001).............................................................................
6 NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)............................................
6 Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987).........................................................
8 Ohio ex rel. Celebrezze v. NRC, 812 F.2d 288 (6th Cir. 1987).............
8 Project Management Corp. (Clinch River Breeder Reactor Plant),
ALAB-354, 4 N.R.C. 383 (1976)................................
5,7 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).................
4 Visiting Nurse Ass'n Gregoria Auffant, Inc. v. Thompson, 447 F.3d 68 (1st C ir. 2006).....................................................................................................
.. 4 Statutes & Regulations 10 C.F.R. § 2.3 15(c)...........................................................................................
.. 1 10 C.F.R. § 2.802(d).........................................................................................
p assim H obbs A ct, 5 U.S.C. § 706, et s.e.............................................................
3,6,8 ii
28 U.S.C. § 2344................................................................................................
.. 6 42 U.S.C. § 2021(1).................................................
4 Other Hearings on Federal-State Relationship to the Atomic Energy Field Before the Jt. Comm. on Atomic Energy, 86th Cong., 1st Sess. 300, 312 (1959)........... 5 S. Rep. No. 870, 86th Cong., 1st Sess. (1959),
reprinted in 1959 U.S.C.C.A.N. 2872, 2833..........................
5 iii
INTRODUCTION In response to this Court's direction during oral argument, and as required by this Court's Order of December 6, 2007, Entergy Nuclear Operations, Inc.,
Entergy Nuclear Vermont Yankee LLC, and Entergy Nuclear Generation Company (collectively "Entergy") submit this supplemental brief addressing whether the procedures identified in the U.S. Nuclear Regulatory Commission
("NRC" or "Commission") orders on review in this proceeding (CLI-07-03' and CLI-07-13 2) provide an available and sufficient remedy for the Commonwealth of Massachusetts ("Commonwealth"). In those orders, the Commission found premature a request by the Commonwealth to defer decisions in the Vermont Yankee and Pilgrim license renewal proceedings until completion of a rulemaking, but carefully explained to the Commonwealth how it could-seek such relief at a more appropriate time by participating in a license renewal proceeding as an "interested state" ("IS") 3 and filing a motion pursuant to 10 C.F.R. § 2.802(d).4 1 JA 1; CLI-07-03, 65 N.R.C. 13 (2007).
2 JA 7; CLI-07-13, 65 N.R.C. 241 (2007).
3 The NRC's rules allow a state to participate in adjudicatory proceedings without having to plead and prosecute admissible contentions. 10 C.F.R. § 2.315(c). A state participating under this procedure is referred to as an "interested state" or "interested governmental entity."
4 10 C.F.R. § 2.8 02(d) provides that a petitioner for rulemaking may request that the Commission suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking.
I
See JA6; CLI-07-03, 65 N.R.C. at 22 & n.37; JA.9; CLI-07-13, 65 N.R.C. at 214-15 & n. 16. During oral argument, the Court explored the Commonwealth's suggestions that these procedures might not be available to it or not subject to judicial review. As discussed below, the Commonwealth's suggestions have no merit.
STATEMENT OF THE ISSUE Whether the Commonwealth, participating as an IS in the Vermont Yankee and Pilgrim license renewal proceedings, has the right to request that those proceedings be suspended pending a decision on its rulemaking petition and seek judicial review if such request is denied.
SUMMARY
OF ARGUMENT The Commission has interpreted its regulations as allowing an IS to file a motion-pursuant to 10 C.F.R. § 2.802(d). This interpretation is fully consistent with longstanding precedent affording an IS essentially all of the rights of parties, and is entitled to great weight. Further, even if this interpretation were inconsistent with the NRC rules, which it is not, the Commission has the authority to modify its procedural rules in individual adjudications. Thus, the procedure identified by the Commission is clearly available to the Commonwealth, as both the NRC and Entergy have stipulated.
2
Further, a final Commission order denying a motion filed pursuant to 10 C.F.R. § 2.802(d) would be subject to judicial review before this Court. The Commission's longstanding interpretation of the rights of an IS recognize that an IS has appellate rights with respect to matters in which it participated. Further, irrespective of how an agency labels a participant; a person is considered a party aggrieved under the Hobbs Act if such person participated "directly and actually" in the administrative proceeding. Finally, both the NRC and Entergy have represented to this Court that such a decision would be subject to judicial review.
Thus, the Commonwealth's interests in those proceedings are fully protected under the Commission's regulations and case law if it participates as an IS. What effect the rulemaking petition will eventually have, therefore, is neither properly before this Court nor ripe for review.
ARGUMENT I.
AS AN INTERESTED STATE, THE COMMONWEALTH MAY FULLY PROTECT ITS INTERESTS BY FILING A MOTION PURSUANT TO 10 C.F.R. § 2.802(d)
The Commission's determination that the Commonwealth, participating as an IS, may make a request pursuant to 10 C.F.R. § 2.802(d) is dispositive. The Commission held in the proceeding below (and has represented to the Court) that an IS may file a motion pursuant to 10 C.F.R. § 2.802(d). CLI-07-13 (JA 9, n.16).
The NRC's interpretation of its own regulation is given "controlling weight unless 3
it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 355 (1989); Visiting Nurse Ass'n Gregoria Auffant, Inc. v. Thompson, 447 F.3d 68, 76 (1st Cir. 2006).
The Commission's interpretation of its own regulations in this proceeding is completely consistent with Congress' intent to facilitate State participation in license proceedings. It is also completely consistent with longstanding Commission case law holding that an IS has the same right to participate fully in a licensing proceeding as a party.
The ability of the Commonwealth to participate as an IS is statutorily guaranteed by Section 274.1 of the Atomic Energy Act, 42 U.S.C. § 2021 (1), which provides that:
With respect to each application for Commission license authorizing an activity as to which the Commission's authority is continued pursuant to subsection (c) of this section, the Commission... shall afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application without requiring such representatives to take a position for or against the granting of the application.
This Congressional mandate is intended to facilitate a state's participation in licensing proceedings, not restrain it. The determination to facilitate states' participation reflected "appropriate recognition of the interest of the States in 4
activities which are continued under Commission authority." S. Rep. No. 870, 86th Cong., 1st Sess. (1959), reprinted in 1959 U.S.C.C.A.N. 2872, 2883. See also Hearings on Federal-State Relationship in the Atomic Energy Field Before the Jt.
Comm. on Atomic Energy, 86th Cong., 1st Sess. 300, 312 (1959).
Consistent with this Congressional intent, NRC case law holds that the purpose of the IS rule "is to accord States the privilege of fully participating in licensing proceedings and advising the Commission on the resolution of issues considered therein without being obliged in advance to set forth any affirmative contentions....." Project Management Corp. (Clinch River Breeder Reactor Plant),
ALAB-354, 4 N.R.C. 383,393 (1976) (emphasis added). Thus, the non-party status of an IS simply reflects the fact that an IS is not required to (but may) take a positive stand on issues to be decided whereas parties are required to take such a stand. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 N.R.C. 175, 179 (1976). The NRC case law holds that there is no occasion to carry over the distinction between a "party" and "non party" in the rules pertaining to the status and obligations of participants. Id. For example, while the NRC rules provide that a "party" may appeal a Presiding Officer's decision, an IS "is to be treated as a 'party' for purposes of the appellate rights" in proceedings in which it participated.
Id. at 179-80.
5
Even if the Commission's rulings in CLI-07-03 and CLI-07-13 were inconsistent with 10 C.F.R. § 2.802(d) -- which they are not -- the Commission has the authority "'to change its procedures on a case-by-case basis with timely notice to the parties involved."' Nat'l Whistleblower Ctr. v. NRC, 208 F.3d 256, 262 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070 (2001), c City of W.
Chicago v. NRC, 701 F.2d 632, 647 (7th Cir. 1983); NLRB v. Bell Aerospace Co.,
416 U.S. 267, 294 (1974). Therefore, it is the Commission's determination in the Pilgrim and Vermont Yankee license renewal proceedings that the Commonwealth, if it participates as an IS, may' file a motion pursuant to 10 C.F.R.
§ 2.802(d) is the law of the case and controlling.
II.
A FINAL DECISION BY THE COMMISSION ON A MOTION PURSUANT TO SECTION 2.802(d) WOULD BE SUBJECT TO JUDICIAL REVIEW A final Commission order denying a motion filed pursuant to 10 C.F.R. § 2.802(d) would be subject to judicial review before this Court. While under the Hobbs Act, only a "party aggrieved" by a final order may petition for review in the Courts of Appeals (28 U.S.C. § 2344), whether an entity is an aggrieved party is not dependent upon the agency's labeling of an entity as a "party." Clark & Reid Co. v. United States, 804 F.2d 3, 6 (1st Cir. 1986) (this Court does "not equate the regulatory definition of a 'party' in an [agency] proceeding with the participatory 6
party status required for judicial review under the Hobbs Act."). 5 Rather, under the Hobbs Act, the term party encompasses "those who directly and actually participated in the administrative proceedings." Id. at 5, ctn ACLU v. FCC, 774 F.2d 24, 26 (1st Cir. 1985).
Further, as discussed above, Section 274.1 of the AEA is intended to facilitate State participation in NRC proceedings. It would be anomalous, therefore, to interpret the provisions implementing this statutory mandate as depriving a State of judicial review with respect to matters on which it participated.
In the same vein, NRC precedents recognize that an IS may participate fully in licensing proceedings and is treated as a party with appellate rights before the agency with respect to matters on which it participates. River Bend, 3 N.R.C. at
.180; Clinch River, 4 N.R.C. at 393. It would be equally anomalous to suggest that an IS with rights of full participation and appeal before the agency cannot obtain judicial review on an issue in which it participated directly and actually.6 5 If an agency's labeling of participants were controlling, any agency could cut off a person's right to judicial review by simply not calling such person a party.
Obviously, this cannot be the case.
6 Indeed, an IS has appealed a decision of the Commission. In Kentucky ex rel.
Stephens v. NRC, 626 F.2d 995 (D.C. Cir. 1980), the State of Indiana and the Commonwealth of Kentucky each participated as an IS in an NRC licensing proceeding. A dispute over the boundary between the two states arose and Kentucky appealed the Commission's determination regarding the location of the border between the two states to the D.C. Court of Appeals. Id. Similarly, a 7
Here, if the Commonwealth participates as an IS and files a motion pursuant to 10 C.F.R. § 2.802(d), it will have participated directly and actually before the NRC on the issue of whether decisions in the individual license renewal proceedings should be deferred pending the outcome of its rulemaking petition.
Nothing more is required to qualify as a party for judicial review of a final decision on such a motion under the Hobbs Act. Further, both the Commission and Entergy stipulated, at oral argument, that the Commonwealth would be entitled to judicial review.
Moreover, the procedures identified by the Commission and the opportunity for judicial review are completely adequate to protect the Commonwealth's state that was denied IS status by the Commission appealed that determination under the Hobbs Act. Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987). There was no dispute that Ohio had the right to appeal the Commission's denial of its motion to intervene as an IS, even though it did not have IS or party status in the underlying proceeding. Moreover, the Sixth Circuit stayed the implementation of the full-power operating license for the Perry nuclear power plant pending the court's determination of the merits of the appeal. Ohio ex rel. Celebrezze v.
NRC, 812 F.2d 288 (6th Cir. 1987).
7 Indeed, both the NRC and Entergy stipulated during oral argument that a decision on a Section 2.802(d) motion would be considered a decision in the individual license renewal proceedings. This is consistent with 10 C.F.R. § 2.802(d), which allows such a motion to be brought by a party in the adjudicatory proceeding. Further, moving to stay decisions in an adjudicatory proceeding is inherently an action in an individual proceeding, with respect to which the adjudicatory participants have a right to respond. Because a decision on a Section 2.802(d) motion would be decisions in the Vermont Yankee and Pilgrim license renewal proceedings, jurisdiction and venue would remain in the First Circuit.
8
interests. As part of a motion pursuant to 10 C.F.R. 2.802(d), the Commonwealth will be able to argue, if it so chooses, that the NRC must or should decide its rulemaking petition before granting the renewed licenses. The Commonwealth will also be able to argue, if it so chooses, that the final decision on the rulemaking proceeding must be plugged back in to the individual proceedings. It will be free to argue the standards that the Commission should apply in ruling on such a motion. Any such issue raised in the Section 2.802(d) motion would be properly before the Court if judicial review of a final decision is sought.
Thus, the Commonwealth has an adequate administrative remedy before the Commission that the Commonwealth has not exhausted. The Commonwealth will have the opportunity to seek judicial review of a Commission decision on any request to suspend the proceedings through an appeal if and when the controversy is ripe. However, the Commission deserves the right to make a decision on any such request in the first instance.
In contrast, the Commonwealth seeks to have the Court immediately instruct the Commission that it has no discretion. This cannot be the case because it would imply that Commission's duly promulgated substantive rules are immediately negated by any rulemaking petition that alleges new and significant information. It 9
would also mean that any opponent of a licensing proceeding may perpetually delay a licensing proceeding simply by filing a succession of rulemaking petitions challenging the Commission's generic determinations. Clearly, such issues involve not only significant matters of agency policy but also the specific facts at the time the issue becomes ripe. As a matter of judicial prudence, the Commission should be allowed to formalize its position on such issues and render a concrete decision in the first instance. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).
CONCLUSION For the foregoing reasons, and as discussed in Entergy's main brief, the Commonwealth's petitions for review should be denied.
Respectfully submitted, David R. Lewis Blake J. Nelson Pillsbury Winthrop Shaw Pittman LLP 2300 N St., NW Washington, DC 20037 Telephone: (202) 663-8000 Counsel for Intervenors - Entergy Nuclear Operations, Inc., Entergy Nuclear Vermont Yankee LLC, and Entergy Nuclear Generation Company Dated: February 14, 2008 10
Attorney's Certificate of Compliance with Rule 32(a)
Certificate of Compliance With Type-Volume Limitation, Typeface Requirements and Type Style Requirements
- 1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 2,314 words, 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 Microsoft Office Word 2003 in 14 point Times New Roman font.
David R. Lewis Counsel for Intervenors Dated: February 14, 2008
C1 ~r-r~+.
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I certify that on February 14, 2008 copies of the foregoing brief were served by first class mail upon the following persons:
John F. Cordes, Jr., Esq.
Solicitor Office of General Counsel U.S. Nuclear Regulatory Commission U.S. NRC Mail Stop 0-15D21 Washington, D.C. 20555-0001 Steven C. Hamrick, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. NRC Mail Stop 0-15D21 Washington, DC 20555 Ronald J. Tenpas Acting Assistant Attorney General Appellate Section Environmental and Natural Resources Division U.S. Department of Justice P.O. Box 23795 Washington, DC 20026-3795 Matthew Brock, Esq.
Assistant Attorney General Office of the Attorney General Environmental Protection Division One Ashburton Place Boston, MA 02108 (617) 727-2200 X 2425 Diane Curran, Ecn.
Harmon, Curran, Spielberg &
Eisenberg, L.L.P.
1726 M Street N.W. Suite 600 Washington, D.C. 20036 (202) 328-3500 Lane M. McFadden Attorney Appellate Section Environmental and Natural Resources Division U.S. Department of Justice P.O. Box 23795 Washington, DC 20026-3795 David R. Lewis Counsel for Intervenors