ML12067A089
| ML12067A089 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 03/07/2012 |
| From: | Kilian C, Beling J, Iarrapino A, Roisman A Conservation Law Foundation, National Legal Scholars Law Firm, PC, New England Coalition, State of VT, Dept of Public Service |
| To: | Cordes J NRC/OGC, US Federal Judiciary, District Court for the District of Columbia |
| Cordes J | |
| References | |
| 11-1168, 11-1177, 1361941 | |
| Download: ML12067A089 (9) | |
Text
USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 1 of 9 Oral Argument Scheduled May 9, 2012 Nos. 11-1168 and 11-1177 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT VERMONT DEPARTMENT OF PUBLIC SERVICE, and NEW ENGLAND COALITION Petitioners, v.
UNITED STATES OF AMERICA, and NUCLEAR REGULATORY COMMISSION Respondents, and ENTERGY NUCLEAR OPERATIONS, INC. and ENTERGY NUCLEAR VERMONT YANKEE, LLC Intervenor-Respondents PETITIONERS MOTION TO STRIKE FOUR EXTRA-RECORD REFERENCES CONTAINED IN RESPONDENTS RECENTLY FILED AMENDED CERTIFIED INDEX OF THE RECORD AND IN RESPONDENTS AND INTERVENORS BRIEFS On February 24, 2012, long after Federal Respondents filed their brief on the merits in this proceeding and the Nuclear Regulatory Commissions (NRC) original July 2011 sworn and certified index, NRC filed an Amended Certified Index of the Record. Petitioners object to the filing of the Amended Certified Index 1
USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 2 of 9 because NRC is seeking impermissibly to supplement the record of the proceedings below by including certain documents the NRC admits it did not consider before it finalized the license issuance challenged in the petitions for review. Moreover, NRC filed the Amended Certified Index without Petitioners stipulation and without a request for the Court to order supplementation of the Certified Index of the Record as is required pursuant to Rule 16(b) of the Federal Rules of Appellate Procedure. NRCs amendment seeks to add 19 documents, numbered 760-778 that were not included in the certified list submitted to the Court pursuant to Rule 17(b)(1)(B). Petitioners object to inclusion of four of these documents numbered 760, 761, 762, and 763 and respectfully move that their designation and references to them should be stricken from the Amended Certified Index and from the briefs filed by NRC and ENVY.1 The four documents, dated 1970 or 1971, and identified in the Amended Certified Index as CI 760-763, relate to arguments advanced by Intervenor ENVY, for the first time on appeal, regarding a 1970 water quality certificate issued by the State of Vermont to the previous owners of Vermont Yankee in conjunction with 1
All of the 19 documents included in the purported amendment could be excluded as untimely and procedurally inappropriate. However, Petitioners hereby stipulate to the 15 documents not included in this Motion to Strike in order to address any procedural deficiencies stemming from NRCs failure to affirmatively comply with Rule 16(b).
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USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 3 of 9 the issuance of Vermont Yankees initial operating license. Yet in their merits brief NRC expressly admits that The Commission has not had occasion to address whether Vermont Yankees original § 401 certification remains valid for license-renewal purposes, and thus takes no position on that question here. NRC Brief at
- 34. NRCs omission of these documents from the original Certified2 Index is explained easily by the fact that NRC did not consider issues relating to the 1970 certification before issuing the 2011 license, they are thus not part of the agency record on the 2011 license issuance and have no rightful place in the Certified Index. NRCs attempt to include these documents in the Certified Index now, only after briefing in the case has made clear the extent to which Intervenors argument depends on these extra-record documents, smacks of an impermissible end-run 2
Pursuant to Federal Rule of Appellate Procedure 17, NRC was under an obligation to file the record in this matter with the circuit court clerk within 40 days after being served with the petition for review. Fed. R. App. Proc. 17(a).
NRC complied with this time requirement by filing a certified list of the record with the Court on July 1, 2011. Consistent with the Rules, the certification provided by the NRCs Acting Secretary:
[C]ertif[ied] that the documents listed and described below in the Certified Index of the Record constitute the record for the administrative proceedings resulting in the issuance of the Renewed Facility Operating License No.
DPR-28 for the Vermont Yankee Nuclear Power Station (March 21, 2011),
the decision that is the subject of the Petitions for Review in these consolidated cases.
Document No. 1316309 at 1.
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USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 4 of 9 around the closed-record rule.
While NRCs ersatz attempt to supplement the record may be understandable in light of the way Intervenors arguments have unfolded in this Court, the law is clear that supplementation of the record below is not allowed. It is a widely accepted principle of administrative law that the courts base their review of an agencys actions on the materials that were before the agency at the time its decision was made. Stephens v. Dep't of Labor, 384 Fed. Appx. 5, 7 (D.C. Cir. 2010) (quoting IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir.
1997). As this Court has explained, [i]t would . . . be fundamentally inappropriate for the court to consider . . . new evidence, i.e., evidence that was not made part of the administrative record. Multimax, Inc. v. FAA, 231 F.3d 882, 887 (D.C. Cir.
2000). Indeed, for a court to consider materials outside the record (or that are not subject to judicial notice) would be a denial of due process. Garner v. Louisiana, 368 U.S. 157, 173 (1961).
For these reasons, in reviewing administrative decisions, this Court often has denied motions to file a supplemental joint appendix or to attach supplemental authority as an exhibit to a brief and has held that it must disregard the arguments in [a] brief that rest on [a] report that is not in the record. Friends of the Earth, Inc. v. EPA, 2003 U.S. App. LEXIS 4453, *2-3 (D.C. Cir. 2003) (per curiam; 4
USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 5 of 9 citing IMS v. Alvarez), or to strike supplemental materials that were outside the administrative record. Sierra Club v. EPA, 2004 U.S. App. LEXIS 1689, *2 (D.C.
Cir. 2004).
Clean Water Act § 401(a) prohibits a federal licensing agency such as NRC from issuing a federal license like the one challenged here unless and until the agency obtains the requisite state-issued water quality certification supporting the license. 33 U.S.C. § 1341(a)(1) (No license or permit shall be granted until the certification required by this section has been obtained). Petitioners challenge NRCs licensing decision specifically on the grounds that the record created by NRC as it reviewed and approved the Intervenors license application is completely devoid of any evidence affirmatively showing that NRC complied with its obligations under § 401(a). Br. of Petitioners at 20-25. NRCs attempt to add material to the record so long after its proceedings closed and this litigation began appears motivated by a desire to distract from the patent Clean Water Act violation demonstrated by the state of the record as originally sworn and certified. The Court should not allow NRC to proceed in this manner.
NRC seeks to inject the four extra-record documents into this case solely in support of extra record post hoc rationalizations of counsel for Intervenors. Courts have consistently refused to consider post hoc rationalizations on review of final 5
USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 6 of 9 agency action.3 The Court should similarly disregard extra-record documents in support of such post hoc arguments and should strike the extra-record documents from the Certified Index and all references and citations to them from the briefs of Federal Respondents and Intervenors.
Therefore, Petitioners request the Court strike items 760-763 from the Amended Certified Index of the Record and strike the references to any of those four non-record 1970 and1971 documents that appear on page 13 (See Letter from John A. Ritsher to AEC (Nov. 13, 1970) (enclosing Vermont water-quality certificate), App. ___.) of Federal Respondents Brief and pages 7 n.3 (Letter from J. Ritsher to AEC (Nov. 30, 1970) [App. __].), and 27-28 n.29 (See Vermont Yankee Nuclear Power Station, Supplement to Environmental Report (Dec. 21, 1971), Vol. II, App. E, Item L (FPC Order Approving Use of Project Lands and Reservoir (July 31, 1970) [App. __] . . . See id., Vol. I at 11-5 [App.
3 Post-hoc rationalization carries no weight on review. Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 739 (D.C. Cir. 2000)(internal citation omitted). The nature of this Courts review of final agency action by agencies like NRC, is to judge the propriety of such action solely by the grounds invoked by the agency and not to to substitute their or counsels discretion for that of the Commission. Burlington Truck Lines v. United States, 371 U.S. 156, 169 (U.S.
1962). If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis because such action would propel the court into the domain which Congress has set aside exclusively for the administrative agency.
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
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USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 7 of 9
__]) of Intervenors Brief.
RESPECTFULLY SUBMITTED BY:
/s/ Christopher M. Kilian /s/ Anthony Z. Roisman Christopher M. Kilian, Esq. Anthony Z. Roisman, Esq.
/s/ Anthony Iarrapino National Legal Scholars Law Firm Anthony Iarrapino, Esq. (on the brief) 241 Poverty Lane, Unit 1 Conservation Law Foundation Lebanon, NH 03766 15 East State St. #4 603-443-4162 ph Montpelier, VT 05602 aroisman@nationallegalscholars.com 802.223.5992 ph, 802.223.0060 fx Counsel for State of Vermont ckilian@clf.org Department of Public Service aiarrapino@clf.org Pro Bono Counsel for New England /s/ John Beling Coalition John Beling, Esq.
Director Department of Public Service Public Advocacy Division 112 State Street Montpelier, Vermont 05620-2601 (802) 828-3167 John.Beling@state.vt.us Counsel for State of Vermont Department of Public Service This 5th day of March 2012.
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USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 8 of 9 United States Court of Appeals, District of Columbia Circuit Vermont Department of Public Service, )
and New England Coalition, )
Petitioners ) Consolidated Case Nos. 11-1168
) and 11-1177
- v. )
)
United States Nuclear )
Regulatory Commission and )
United States of America, )
Respondents )
and )
Entergy Nuclear Operations, Inc., and )
Entergy Nuclear Vermont Yankee, LLC )
Intervenor-Respondents )
CERTIFICATE OF SERVICE I hereby certify that on March 5, 2012, I electronically filed Petitioners Motion to Strike with the Clerk of the Court using the CM/ECF filing system.
Service of Petitioners Motion to Strike will be accomplished via the CM/ECF system to participants in this case that are registered CM/ECF users in consolidated Case Nos. 11-1168 and 11-1177. The following non CM/ECF participants will receive service, postage prepaid, by United States mail:
Ms. Zoli, Elise Nigro Goodwin Procter LLP 53 Exchange Place 8
USCA Case #11-1168 Document #1361941 Filed: 03/05/2012 Page 9 of 9 Boston, MA 02109 Mr. Burns, Stephen Gilbert U.S. Nuclear Regulatory Commission 11555 Rockville Pike One White Flint North Rockville, MD 20852 Mr. Martin, Kevin Paul Goodwin Procter LLP 53 State Street Exchange Place Boston, MA 02109 Dated this 5th day of March 2012
/s/ Christopher M. Kilian Christopher M. Kilian, Esq.
Conservation Law Foundation 15 East State St. #4 Montpelier, VT 05602 802.223.5992 ph ckilian@clf.org Pro Bono Counsel for New England Coalition 9