ML11132A175
| ML11132A175 | |
| Person / Time | |
|---|---|
| Site: | Duane Arnold  |
| Issue date: | 05/09/2011 |
| From: | Mullins C, Brabender A, Moreno I NRC/OGC |
| To: | US Federal Judiciary, Court of Appeals, 8th Circuit |
| Charles Mullins, 301-415-1618 | |
| References | |
| 11-1441 | |
| Download: ML11132A175 (18) | |
Text
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Bennett Brown, et al.,
)
Petitioners,
)
- v.
)
No. 11-1441 U.S. Nuclear Regulatory Commission, et al.
)
Respondents.
)
FEDERAL RESPONDENTS' REPLY TO PETITIONERS' RESPONSE TO FEDERAL RESPONDENTS' MOTION TO DISMISS The Federal Respondents have moved to dismiss this case because Petitioners (1) did not file their Petition for Review within 60 days of entry of the NRC Order as the Hobbs Act requires, 28 U.S.C. §2344, and (2) did not exhaust their administrative remedies by fully participating as parties in the NRC hearing process, as the Atomic Energy Act ("AEA") and NRC regulations require.
Petitioners' Response to our Motion is unpersuasive.
Background.
This lawsuit challenges the NRC's environmental review of an application to renew the operating license for the Duane Arnold Energy Center. Petitioners submitted comments either during the environmental scoping process or in response to the publication of the Draft Supplemental Environmental Impact Statement (SEIS). But Petitioners never attempted to intervene or seek a hearing in the administrative proceeding to review the license renewal application.
The NRC issued a Final SEIS in October, 2010, and formally announced it in the Federal Register. See 75 Fed. Reg. 64,748 (Oct. 20, 2010). The NRC then issued the renewed license on December 16, 2010, and formally announced it in the Federal Register on December 29, 2010. See 75 Fed. Reg. 82,091 (Dec. 29, 2010). On February 28, 2011, Petitioners filed this case challenging the NRC's response to their comments more than 60 days after the December 16th entry of the NRC renewal of the license.
The Petition for Review Is Untimely.
The Hobbs Act requires a party aggrieved by a final order to file a petition for review within 60 days of its "entry." In attempting to show their petition is timely, Petitioners argue that the meaning of "entry" differs by party depending on when a party is served or receives notice of the order. They maintain that the 60-day filing period under the Hobbs Act did not start to run until the publication of the Federal Register Notice on December 29, 2010, because that is the date that the Duane Arnold Renewed License became "final, complete, and a matter of public record." Response at 8 (citing Chem-Haulers, Inc. v, United States, 536 F.2d. 610, 616 (5th Cir. 1976)). Petitioners also claim that they did not know how the NRC responded to their comments (both during the scoping process and on the Draft SEIS) until publication of the December 29th Federal Register Notice - the first time they knew (they say) the Final SEIS was available. Response at 8-9 (citing Affidavits of Bennett Brown, Robert Schultes, and Pamela Mackey Taylor).
Petitioners also allege the NRC violated its own regulations by not mailing a copy of the Final SEIS to all who commented. Response at 9.
Petitioners' claims are contradicted by the record. First, as noted above (and in the Motion to Dismiss at page 3), the NRC issued a Federal Register Notice on October 20, 2010, announcing issuance of the Final SEIS. The October Notice also listed an "accession number" - ML102790308 - enabling members of the public to find, view and print the Final SEIS from the NRC's Web-based document retrieval system. See 75 Fed. Reg. at 64,749. And when the final license-renewal order was entered - on December 16 - it was announced in an NRC press release and immediately reported in the press. See Motion to Dismiss at 7 and Exhibit 2.1 Thus, it is simply not true that Petitioners "had no way of knowing the contents of 1Petitioners complain that "even now" they cannot access the renewed license itself on the NRC webpage associated with the Duane Arnold relicensing.
Response at 9. The renewed license is available on the NRC website through the NRC document-retrieval system, ADAMS. See ML102930586. But our Motion incorrectly states the license was made available on December 16th; we have since learned it was made available on December 30th. We apologize for the error - and for the delay. The SEIS is now - and has been since October 20, 2010 - available on the Duane Arnold relicensing webpage for viewing and downloading.
the final order until it appeared in the Federal Register on December 29, 2010."
Second, the SEIS itself lists the names of all those to whom copies were mailed. The SEIS mailing list (attached as Exhibit 1) includes the Petitioners in this lawsuit. See Exhibit 1, pp.4 & 5. "[A] presumption of regularity attaches to the actions of government agencies." U.S. Postal Service v. Gregory, 534 U.S. 1, 10 (2001). "[I]n the absence of clear evidence to the contrary, courts presume that
[public officials] have properly discharged their official duties." United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). See also Wilburn v. Astrue, 626 F.3d 999, 1034-04 (8th Cir. 2010). Thus, this Court must presume the NRC did indeed mail copies of the Final SEIS to Petitioners, as the SEIS itself states.
Finally, and most importantly, Petitioners' argument that the December 29th Federal Register Notice started their 60-day window to file their Petition for Review contradicts the plain terms of the Hobbs Act, which provides that any lawsuit must be filed within 60 days of the "entry" of the agency order challenged.
See 29 U.S.C. § 2344. "Entry" of a decision, order, or judgment refers to one specific time, e.g., "the court entered judgment on [a specific date]." Under Petitioners' argument, the date of "entry" would differ depending on when any given party learned of the order. But the Hobbs Act does not say a petition must be filed within 60 days after "service" of the order or after it was first "noticed"- it specifies "entry" of the order as the trigger date. "[W]ith respect to filing deadlines a literal reading of Congress' words is generally the only proper reading of those words." United States v. Locke, 471 U.S. 84, 93 (1985).2 Section 2344 also states that "on entry of a final order... the agency shall promptly give notice thereof by service or publication in accordance with its rules[,]" showing that "entry" is something different from "notice," "service," or "publication." Here, as required by Section 2344, the NRC promptly gave notice of the "entry" of the decision by publication in the Federal Register. Thus, the December 29th Federal Register Notice placed Petitioners on notice of that the agency decision was "entered" on December 16, 2010. While the question may be more complicated when the agency fails to provide any notice of a decision, that is not this case. Here, the NRC published timely notice of the decision and correctly identified the date of "entry" as December 16.
In sum, even if Petitioners were unaware of the "entry" of the license until December 29th, they were still obligated to file suit within 60 days of the order's actual "entry," i.e., by February 14, 2011. Because they did not file this petition 2See also Avia Dynamics v. FAA, __ F.3d _,201.1 WL 1466330 at *3-*5 (D.C. Cir., Apr. 19, 2011); Heide v. FAA, 110 Fed. App'x 724, 725 (8th Cir. 2004).
for review until February 28 - 2 weeks later - their lawsuit should be dismissed as untimely.
Petitioners Failed to Exhaust Their Administrative Remedies.
The Hobbs Act permits suits only by "parties" to agency proceedings. See 28 U.S.C. § 2344. Petitioners argue that by virtue of filing comments they became "parties," within the meaning of the Hobbs Act, to the NRC administrative proceeding to review the license renewal application, held under Section 189a of the AEA, 42 U.S.C. § 2239(a). Thus (they argue), they did not need to intervene in the NRC's hearing process. See Response at 13-15. This argument misapprehends the nature of the interplay between the Hobbs Act and the AEA.
If this Court has jurisdiction over the petition for review, that jurisdiction is based on the Hobbs Act, 28 U.S.C. § 2341, et seq. That statute gives this Court jurisdiction over "all final orders of the [Nuclear Regulatory] Commission made reviewable by section 2239 of title 42." 28 U.S.C. § 2342(4). In turn, 42 U.S.C.
§ 2239(b) provides
[t]he following Commission actions shall be subject to judicial review under
[the Hobbs Act and the Administrative Procedure Act]: (1) Any final order entered in any proceeding of the kind specified in subsection (a).
Subsection (a) provides:
In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license[,]... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a part)' to the proceeding.
42 U.S.C. § 2239 (a)(1) (emphasis added). Here, Petitioners challenge the granting of the 20-year renewal of the Duane Arnold operating license. So to challenge the NRC decision to issue the renewed license under the Hobbs Act, Petitioners must show they were a "party" to a "proceeding" as defined in 42 U.S.C. § 2239(a).
Here, Petitioners argue that they became a "party" for purposes of the Hobbs Act by participating in the "scoping process" or by commenting on the draft SEIS.
Response at 14-16. But the nature of an NRC proceeding is defined by NRC regulations, which explicitly state that participation in the scoping process (or commenting on environmental documents) is not participation in the NRC's administrative hearing process. See 10 C.F.R. § 51.28(c). Instead, persons who wish to challenge the issuance of a license must participate in the NRC adjudicatory process. This includes claims under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, etseq. See 10 C.F.R. § 2.309(0(2).
As the Supreme Court noted years ago in a landmark NRC case, "administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." Vermont Yankee Nuclear Power Corp. v. NRDC, 415 U.S.
519, 543 (1978) (internal quotation marks and citations omitted). See also, Citizens Awareness Network v. United States, 391 F.3d 338, 349 (1st Cir. 2004);
Union of Concerned Scientists v. NRC, 920 F.2d 50, 53-54 (D.C. Cir. 1990). Thus, the NRC has acted well within its authority in requiring persons seeking to litigate environmental issues to proceed through its "adjudicatory process" rather than allowing them to proceed through a "comment process."
In addition, the "party" analysis under the Hobbs Act necessarily is linked to the kinds of administrative remedies available. While it is true that some agencies provide participation by "comment" only, the NRC requires persons who wish to litigate environmental issues to seek an agency hearing at the earliest possible moment. See 10 C.F.R. § 2.309(f)(2); Motion to Dismiss at 4. The NRC provides an extensive hearing process to have complaints heard by, and remedied by, the agency prior to judicial review. See Motion to Dismiss at 5 & nn. 2-3.
The NRC's additional "public comment" process covering environmental documents such as the SEIS flows from the NEPA, 42 U.S.C. § 4321, et seq., not from the AEA, 42 U.S.C. § 2201, et seq. Thus, mere participation in a NEPA "comment" process does not entitle a "person" to become a "party" in an NRC administrative proceeding held under the authority of the AEA's Section 189a, 42 U.S.C. § 2239(a). Instead, to be a "party" under the Hobbs Act, a person must seek to intervene as a "party" in an AEA proceeding under the NRC's rules.
The Hobbs Act's "party" requirement, in essence, codifies the general administrative law requirement that those seeking judicial relief first exhaust their administrative remedies. A person participating in an agency proceeding cannot simply stop in the middle of the process and, ignoring any remaining available steps, proceed immediately to court. As the Supreme Court has held repeatedly, a court should dismiss a lawsuit where the litigant did not fully exhaust available administrative remedies. E.g., Woodford v. Ngo, 548 U.S. 81, 90 (2006). This Circuit has consistently followed that principle, requiring parties to exhaust all available remedies before proceeding to court, regardless of the statute involved.
See, e.g., U.S. v. Dico, Inc., 136 F.3d 572-575-76 (8th Cir. 1998); Sharps v. U.S.
Forest Service, 28 F.3d 851, 853-54 (8th Cir. 1994); Madsen v. Department of Agriculture, 866 F.2d 1035, 1038 (8th Cir. 1989); United States v. Bisson, 839 F.2d 418 (8th Cir. 1988). Here, Petitioners effectively acknowledge they did not exhaust their administrative remedies because they failed to seek intervention and request a hearing. Had they done so, they might have obtained relief from the NRC, obviating the need to seek relief in this Court.
Finally, Petitioners make much of Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008), but misinterpret the case. Response at 17-19. In that case, the Court held principally that the Commonwealth could not obtain party status to challenge an NRC regulation in an agency adjudicatory proceeding. 522 F.3d at 119-25. But the NRC acknowledged that the Commonwealth could "participate" in the proceeding under 10 C.F.R. § 2.3 15 (which allows participation by states),
id. at 125, 128, and that if it participated in the proceeding under that provision, it would be considered a "party" for Hobbs Act purposes if it later decided to challenge the result of the proceeding in Federal Court. Id. at 130-31. The Court stated that in that situation the Commonwealth would appear to have "directly and actually... participated in the administrative proceedings." Id. at 131 (quoting Clark & Reid Co. v. U.S. 804 F.2d 3 (1st Cir. 1986)). The Court then held that because participation in the NRC proceeding under section 2.315 was still available, the Commonwealth had not yet exhausted its administrative remedies.
Id. at 132.
The applicability of Massachusetts to this case is obvious. Here, Petitioners
- like the Commonwealth - have not exhausted their administrative remedies.
CONCLUSION For the foregoing reasons, and the reasons stated in our Motion to Dismiss, this court lacks jurisdiction over the petition for review and it must be dismissed.
Respectfully submitted, IGNACIO S. MORENO Assistant Attorney General
_s/Allen M. Brabender/cem Attorney, U.S. Department of Justice Environment and Natural Resources Division, Appellate Section P.O. Box 23795, L'Enfant Plaza Station Washington, D.C. 20026-3795 (202) 514-5316 JOHN F. CORDES, JR.
Solicitor s/Charles E. Mullins Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852 (301) 415-1618 May 9, 2011
FEDERAL RESPONDENTS' REPLY TO PETITIONERS" RESPONSE TO FEDERAL RESPONDENTS' MOTION TO DISMISS EXHIBIT 1
12.0 LIST OF AGENCIES, ORGANIZATIONS, AND PERSONS TO WHOM COPIES OF THE SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT ARE SENT Name and Title Mr. M. S. Ross Managing Attorney Ms. Marjan Mashhadi Senior Attorney T. 0. Jones Vice President, Nuclear Operations Steven R. Catron Manager, Regulatory Affairs Affiliation and Address Florida Power & Light Company P.O. Box 14000 Juno Beach, FL 33408-0420 Florida Power & Light Company 801 Pennsylvania Avenue, NW Suite 220 Washington, DC 20004 Mid-West Region Florida Power & Light Company P.O. Box 14000 Juno Beach, FL 33408 Duane Arnold Energy Center 3277 DAEC Road Palo, IA 52324 Resident Inspector's Office U.S. Nuclear Regulatory Commission Resident Inspector's Office Rural Route #1 Palo, IA 52324 Florida Power & Light Company P.O. Box 14000 Juno Beach, FL 33408 Mr. Mano Nazar Senior Vice President and Nuclear Chief Operating Officer Mr. D. A. Curtland Duane Arnold Energy Center Plant Manager 3277 DAEC Road Palo, IA 52324-9785 Vice President, Engineering Support Florida Power & Light Company P.O. Box 14000 Juno Beach, FL 33408 Melanie Rasmusson Bureau of Radiological Health Iowa Department of Public Health Bureau of Radiological Health 321 East 12th Street Lucas State Office Building, 5th Floor Des Moines, IA 50319-0075 NUREG-1437, Supplement 42 October 2010 12-1
List of Agencies, Organizations, and Persons Name and Title Affiliation and Address Affiliation and Address Chairman Linn County Board of Supervisors 930 1st Street SW Cedar Rapids, IA 52404 Florida Power & Light Company P.O. Box 14000 Juno Beach, FL 33408-0420 Peter Wells Acting Vice President, Nuclear Training and Performance Improvement Mark E. Warner Vice President, Nuclear Plant Support George Thurman
.Principal Chief Florida Power & Light Company P.O. Box 14000 Juno Beach, FL 33408-042 Sac and Fox Nation of Oklahoma Route 2 Box 246 Stroud, OK 74079 Fredia Perkins Sac and Fox Nation of Missouri Chairperson 305 North Main Street Reserve, KS 66434 Christie Modlin Iowa Tribe of Oklahoma Chairperson Route 1, Box 721 Perkins, OK 74059 Steve Cadue Kickapoo Tribe in Kansas Chairman P.O. Box 271 Horton, KS 66439 Steve Ortiz Prairie Band of Potawatomi Indians Chairman 16281 Q Road Mayetta, KS 66509 Joshua Weston Flandreau Santee Sioux Tribe President P.O. Box 283 Flandreau, SD 57028 Mr. Roger Trudell Santee Sioux Nation Chairman 108 Spirit Lake Avenue, West Niobrara, SD 68760-7219 John Blackhawk Winnebago Tribe of Nebraska Chairman 100 Bluff Street P.O. Box 687 Winnebago, NE 68071 NUREG-1437, Supplement 41 12-2 October 2010
List of Agencies, Organizations, and Persons Name and Title Affiliation and Address Ronald Johnson Prairie Island Indian Community President 5636 Sturgeon Lake Road Welch, MN 55089 Stanley R. Crooks Shakopee Mdewakanton Sioux Community of Chairman Minnesota 2330 Sioux Trail NW Prior Lake, MN 55372-9077 Kevin Jensvold Upper Sioux Community of Minnesota Chairman P.O. Box 147 Granite Falls, MN 56241-0147 Wilfred Cleveland Ho-Chunk Nation President W9814 Airport Road P.O. Box 667 Black River Falls, WI 54615 Adrian Pushetonequa The Sac and Fox Tribe of the Mississippi:
Chairman 349 Meskwaki Road Tama, IA 52339 Lori Nelson Lower Sioux Indian Community of Minnesota Acting Chair 39527 Res Highway 1 P.O. Box 308 Morton, MN 56270 Amen Sheriden Omaha Tribal Council Chairman P.O. Box 368 Macy, NE 68039 Marion E. Frye Kickapoo Tribe of Oklahoma Chairman P.O. Box 70 McCloud, OK 74851 John Shotton Otoe-Missouria Tribe of Indians 8151 Highway 177 Red Rock, OK 74651 Leon Campbell Iowa Tribe of Kansas and Nebraska Chairman 3345 Thrasher Road White Cloud, KS 66094 Wayne Gieselman Iowa Department of Natural Resources Administrator Environmental Services Division 502 East 9th Street Des Moines, IA 50319.
October 2010 12-3 NUREG-1437, Supplement 42
List of Agencies, Organizations, and Persons Name and Title Richard Nelson Field Supervisor Affiliation and Address U.S. Fish and Wildlife Service Rock Island Field Office 1511 4 7th Ave.
Moline, Illinois 61265 Robert F. Stewart Regional Environmental Officer United States Department of the Interior Office of the Secretary Office of Environmental Policy and Compliance Denver Federal Center, Building 67, Room 118 Post Office Box 25007 (D-108)
Denver, Colorado 80225-0007 Charlene Dwin Vaughn Assistant Director Federal Permitting, Licensing, and Assistance Section Advisory Council on Historic Preservation Old Post Office Building 1100 Pennsylvania Ave, NW, Suite 803 Washington, DC 20004 Office of the State Archaeologist 700 South Clinton Street Building University of Iowa Iowa City, IA 52242-1030 John Doershuck State Archaeologist Jerome Thompson State Historical Society of Iowa Interim State Historic Preservation Officer 600 East Locust Street Des Moines, IA 50319 Doug Jones State of Iowa Historical Building (Des Moines) 600 East Locust Des Moines, Iowa, 50319 515-281-5111 Dusky Terry Central Iowa Power Cooperative Citizen 2600 Grand Avenue, Suite 410 Des Moines, IA 50312 Bennett Brown 1025 Friendly Ave Citizen Iowa City, IA 52240 Amir H. Moazzez 3650 Joseph Siewick, Dr. #309 Fairfax VA 22033 NUREG-1437, Supplement 41 12-4 October 2010
List of Agencies, Organizations, and Persons Name and Title Affiliation and Address Hiawatha Public Library Hiawatha Public Library 150 W. William St.,
Hiawatha IA Mr. Joseph Cothern Environmental Services Division Environmental Review Coordinator USEPA, Region 7 901 North 5th Street Kansas City, KS 66101 Northwest University Northwest University Northwestern University Library 1970 Campus Drive Evanston, IL 60208-2300 Dr. Robert Schultes 1000 Prairie Drive NE Cedar Rapids, Iowa 52402 W. L. Taylor, Legal Chair and Sierra Club P. M Taylor, Energy Committee Chair Iowa Chapter Headquarters 3839 Merle Hay Road Suite 280 Des Moines, IA 50310 October 2 010 12-5 NUREG-1437, Supplement 42
CERTIFICATES OF SERVICE FOR DOCUMENTS FILED USING CM/ECF Certificate of Service When All Case Participants Are CM/ECF Participants I hereby certify that on May 5, 2011
, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Charles E. Mullins