ML12152A106

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Entergy Final Brief
ML12152A106
Person / Time
Site: Vermont Yankee Entergy icon.png
Issue date: 03/19/2012
From: Doris Lewis, Martin K, Zoli E
Entergy Nuclear Operations, Goodwin Procter, LLP, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:
NRC/OGC, US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Croston, Sean
References
USCA Case #11-1168, 11-1168, 11-1177, 364259
Download: ML12152A106 (103)
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Text

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 1 of 103 ORAL ARGUMENT SCHEDULED FOR MAY 9, 2012 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nos. 11-1168 and 11-1177, consolidated VERMONT DEPARTMENT OF PUBLIC SERVICE and NEW ENGLAND COALITION, INC.,

Petitioners, v.

UNITED STATES OF AMERICA and NUCLEAR REGULATORY COMMISSION, Respondents, and ENTERGY NUCLEAR OPERATIONS, INC. and ENTERGY NUCLEAR VERMONT YANKEE, LLC, Intervenor-Respondents On Petition for Review of a Decision of the United States Nuclear Regulatory Commission FINAL BRIEF OF INTERVENORS ENTERGY NUCLEAR OPERATIONS, INC. AND ENTERGY NUCLEAR VERMONT YANKEE, LLC Elise N. Zoli, Esq. David R. Lewis, Esq.

Kevin P. Martin, Esq. Pillsbury Winthrop Shaw Pittman LLP Goodwin Procter LLP 2300 N Street 53 State Street Washington, DC 20037 Boston, MA 02109-2802 (202) 663-8474 (617) 570-1000 Counsel for Intervenors March 19, 2012

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 2 of 103 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Counsel for Intervenors certifies the following:

Parties and Amici: All parties, intervenors, and amici appearing in this Court are listed in the Brief for the Respondents.

Rulings Under Review: The relevant ruling for review in this Court is the NRCs March 10, 2011 Memorandum and Order terminating the license renewal proceeding for the Vermont Yankee Nuclear Power Station. Entergy Nuclear Vermont Yankee, LLC, CLI-11-02, 73 N.R.C. __, slip op. (Mar. 10, 2011)

[RA897].

Related Cases: There are no related cases within the meaning of D.C. Cir. Rule 28(a)(1)(C).

ii

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 3 of 103 CORPORATE DISCLOSURE STATEMENT Entergy Nuclear Vermont Yankee, LLC, is a Delaware limited liability company formed to hold the assets of the Vermont Yankee Nuclear Power Station and engaged principally in the business of selling its electric energy at wholesale in the United States.

Entergy Nuclear Vermont Yankee, LLC, is a direct, wholly-owned subsidiary of Entergy Nuclear Vermont Investment Company, LLC, and an indirect, wholly-owned subsidiary of Entergy Nuclear Holding Company #3, LLC; Entergy Nuclear Holding Company; and Entergy Corporation. No other publicly held company has 10 percent or more equity interest in Entergy Nuclear Vermont Yankee, LLC.

Entergy Nuclear Operations, Inc. is a Delaware corporation engaged principally in the business of operating nuclear power facilities owned by its affiliates in the northeastern United States. Entergy Nuclear Operations, Inc. is a direct, wholly-owned subsidiary of Entergy Nuclear Holding Company #2 and an indirect wholly owned subsidiary of Entergy Corporation. No other publicly held company has 10 percent or more equity interest in Entergy Nuclear Operations, Inc.

iii

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 4 of 103 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............ ii CORPORATE DISCLOSURE STATEMENT ....................................................... iii TABLE OF CONTENTS ......................................................................................... iv TABLE OF AUTHORITIES .....................................................................................v GLOSSARY............................................................................................................ xii COUNTER-STATEMENT REGARDING JURISDICTION...................................1 STATEMENT OF THE ISSUES...............................................................................6 STATUTES & REGULATIONS ..............................................................................6 STATEMENT OF FACTS ........................................................................................6

SUMMARY

OF ARGUMENT ...............................................................................12 ARGUMENT ...........................................................................................................14 I. Standard of Review........................................................................................14 II. Petitioners Did Not Exhaust Their Administrative Remedies.......................14 III. Petitioners Substantive Arguments are Meritless because Entergy Possessed a Valid, Unexpired WQC When it Applied for a Renewal License. ............20 A. The Existing WQC Supports the License Renewal Application .............21 B. NRC Was Not Required to Indicate Affirmatively Its Reliance on the WQC Identified by Entergy and Already in NRCs Files........................29 C. The Desirability of Further Explanation Is At Most Harmless Error.......32 CONCLUSION ........................................................................................................34 ADDENDUM iv

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 5 of 103 TABLE OF AUTHORITIES Cases Page 21st Century Telesis Joint Venture v. FCC, 318 F.3d. 192 (D.C. Cir. 2003) .......... 17 American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997) ..................................... 26-27 Bethesda Chevy Chase Broadcasters, Inc. v. FCC, 385 F.2d 967 (D.C. Cir. 1967) ................................................................................... 2 Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,

419 U.S. 281 (1974) ................................................................................................. 30 Carolina Envtl. Study Grp. v. AEC, 510 F.2d 796 (D.C. Cir. 1975) ......................... 3 Citizens for Fair Util. Regulation v. NRC, 898 F.2d 51 (5th Cir. 1990) ............... 2-3 Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291 (D.C. Cir. 1975) .................... 3 City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998) ............................................. 3 City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) ................................... 29-30 Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) .......................................... 14 County of Rockland v. FAA, 335 Fed. Appx. 52 (D.C. Cir. 2009) .......................... 34 Authorities upon which Intervenors chiefly rely are marked with an asterisk.

v

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 6 of 103

  • Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 N.R.C. 131 (2006) ....................................................................................... 8-9, 15
  • Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-08-25, 68 N.R.C. 763 (2008) .........................................................................................11, 16
  • Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 N.R.C. __, slip op. (Oct. 28, 2010) ....................................................................... 5 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 N.R.C. __, slip op. (Mar. 10, 2011) ........................................................1, 3, 5, 11 Envirocare of Utah, Inc. v. NRC, 194 F.3d. 72 (D.C. Cir. 1999) .............................. 3 Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676 (7th Cir. 2006)............................... 2 Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984) ................................................................................................. 21 Honeywell, Intl, Inc. v. EPA, 372 F.3d 441 (D.C. Cir. 2004)................................. 31
  • Honicker v. NRC, 590 F.2d 1207 (D.C. Cir. 1978) ................................................. 1 In re Entergy Nuclear/Vermont Yankee Thermal Discharge Permit Amendment, No. 89-4-06 Vtec, slip op. (Vt. Envtl. Ct. Jan. 9, 2007) ......... 33 In re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 189 Vt. 140, 989 A.2d 563 (2009) ........................................................................... 32 vi

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 7 of 103 Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) ............................................. 22, 30

  • Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991) ....................................... 2, 5 Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000) ......................3, 34 NARUC v. FCC, 746 F.2d 1492 (D.C. Cir. 1984) ............................................. 31-32 NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008) ........................................ 18
  • Nevada v. DOE, 457 F.3d 78 (D.C. Cir. 2006)................................................ 33-34 N.J. Envtl. Fedn v. NRC, 645 F.3d 220 (3d Cir. 2011) ............................................ 2 North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997) ..................................... 18 Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465 (D.C. Cir. 1989) ....................................... 17 NRDC v. NRC, 666 F.2d 595 (D.C. Cir. 1981).......................................................... 1 Power Co. of Am., L.P. v. FERC, 245 F.3d 839 (D.C. Cir. 2001) ........................... 18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-24, 52 N.R.C. 351 (2000)............................................................................ 16 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-22, 62 N.R.C. 542 (2005)............................................................................ 20 Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) .............................. 30-31 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006) ........... 2 vii

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 8 of 103 San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir. 2011) ........... 2 Save Our Heritage, Inc. v. FAA, 269 F.3d 49 (1st Cir. 2001) ................................. 33 Sierra Club v. NRC, 862 F.2d 222 (9th Cir. 1988) ................................................ 3, 5 Southern Pac. Transp. Co. v. ICC, 69 F.3d 583 (D.C. Cir. 1995)..................... 30-31 UCS v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) ......................................................... 20 Village of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006).................................. 31

  • Woodford v. Ngo, 548 U.S. 81 (2006) ............................................................. 14-15 Federal Statutes and Regulations Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq. .......................................... 1,19
  • Water Quality Improvement Act of 1970, Pub. L. No.91-224, § 21(b), 84 Stat. 91, 108-109 (1970), reprinted in 1970 U.S.C.C.A.N. 97 . ...................................................................................................... 7 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.92-500, § 401(a), 86 Stat. 816, 877-80 (1972) ....................................... 7
  • 5 U.S.C. § 706 ...................................................................................... 14, 30-31, 33
  • 28 U.S.C. § 2344 .............................................................................................. 1-2, 4 28 U.S.C. § 2347(a) ................................................................................................... 4 33 U.S.C. § 1251 note ................................................................................................ 7 viii

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 9 of 103 33 U.S.C. § 1311 ...................................................................................................... 28

  • 33 U.S.C. § 1341(a)(1) .................................................... 6-13, 16, 18, 19-23, 26-31
  • 33 U.S.C. § 1341(a)(3) ......................................................................... 21-22, 24-28
  • 33 U.S.C. § 1342 .................................................................................................... 28 42 U.S.C. § 2239(a) ................................................................................................. 15 10 C.F.R. § 2.309 ...........................................................................................8, 11, 15 10 C.F.R. § 2.332(d) .................................................................................................. 5 10 C.F.R. § 2.336 ..................................................................................................... 28 10 C.F.R. § 2.340(a)................................................................................................... 5 10 C.F.R. § 2.341(b) ..........................................................................................11, 16 10 C.F.R. § 2.1212 ................................................................................................... 11 10 C.F.R. Part 2, App. B, § II .................................................................................... 5 10 C.F.R. § 51.71(c)................................................................................................. 10 10 C.F.R. § 54.17(e)................................................................................................. 30 40 C.F.R. §§ 122 - 136 ............................................................................................. 28 40 C.F.R. §§ 400 - 501 ............................................................................................. 28 ix

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 10 of 103 State Statutes and Regulations 10 V.S.A. § 1263(c) ................................................................................................. 32 Vt. Water Pollution Control Permit Regulations § 13.11 ........................................ 27 Other Authorities 56 Fed. Reg. 29,403 (June 27, 1991) ......................................................................... 3 71 Fed. Reg. 6,102 (Feb. 6, 2006) ............................................................................. 7 71 Fed. Reg. 15,220 (Mar. 27, 2006) ......................................................................... 8 71 Fed. Reg. 20,733 (Apr. 21, 2006) ......................................................................... 8 71 Fed. Reg. 76,706 (Dec. 21, 2006) ....................................................................... 10

  • 115 Cong. Rec. H9,264 (daily ed. Apr. 16, 1969) ........................................... 25-26
  • H.R. Rep. No.91-127 (1969), reprinted in 1970 U.S.C.C.A.N. 2691 .................. 24
  • Conf. Rep. No.91-940 (1970), reprinted in 1970 U.S.C.C.A.N. 2712 ........... 23, 25
  • NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (1996) ............................................................................................. 31 D.C. Cir. Rule 28(a)(1)(C) ....................................................................................... ii D.C. Cir. Rule 28(d)(2) ........................................................................................6, 20 x

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 11 of 103 Blacks Law Dictionary (9th ed. 2009) ................................................................... 18 xi

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 12 of 103 GLOSSARY Abbreviation Term AEC Atomic Energy Commission ASLB Atomic Safety and Licensing Board CWA Clean Water Act DPS Vermont Department of Public Service EIS Environmental Impact Statement NEC New England Coalition NEPA National Environmental Policy Act NPDES National Pollutant Discharge Elimination System NRC Nuclear Regulatory Commission VANR Vermont Agency of Natural Resources WQC Water Quality Certification xii

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 13 of 103 COUNTER-STATEMENT REGARDING JURISDICTION The NRC had jurisdiction over this matter pursuant to the broad grant of authority contained in the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq.

The Court of Appeals, however, does not have jurisdiction over this matter.

Under the Hobbs Act, any party aggrieved by an agencys final order may, within sixty days of the order, petition for review of the order in the geographically appropriate court of appeals. 28 U.S.C. § 2344. The 60 day period for seeking judicial review . . . is jurisdictional in nature, and may not be enlarged or altered by the courts. NRDC v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981) (footnote omitted).

In this case, the NRC issued a Memorandum and Order, CLI-11-02, on March 10, 2011, which constituted its final order because it resolved all challenges brought by DPS and NEC and terminated the proceeding. Entergy Nuclear Vermont Yankee, LLC, CLI-11-02, 73 N.R.C. __, slip op. at 18 (Mar. 10, 2011) (CLI-11-02)

[RA897]. DPS and NEC petitioned for judicial review on May 20, 2011, seventy days after NRC filed its final order. Their petitions are, therefore, untimely and must be dismissed for lack of jurisdiction.

Final orders are those that impose an obligation, deny a right, or fix some legal relationship. Honicker v. NRC, 590 F.2d 1207, 1209 (D.C. Cir. 1978) (per curiam).

Generally . . . an NRC order is final if it disposes of all issues as to all parties in the licensing proceeding, that is, if it consummates the

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 14 of 103 agencys decisionmaking process and results in granting, denying, suspending, revoking, or amending a license.

Massachusetts v. NRC, 924 F.2d 311, 322 (D.C. Cir. 1991).

A final order is not necessarily the last order in a proceeding. See Bethesda Chevy Chase Broadcasters, Inc. v. FCC, 385 F.2d 967, 968 (D.C. Cir. 1967).

When the NRCs final adjudicatory decision results in the issues raised by a party being fully and finally adjudicated, such that that party has no further role to play in the administrative proceedings, the order is reviewable under the Hobbs Act even if the license has not yet issued. See, e.g., Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676, 681 (7th Cir. 2006) (holding that an NRC decision resolving the petitioners contentions in a licensing proceeding constituted a final order, even though the license had not yet issued, because that order determined the [partys]

rights, and legal consequences flowed from that determination.). See also N.J.

Envtl. Fedn v. NRC, 645 F.3d 220, 227-28, 237 (3d Cir. 2011) (reviewing Commissions Final Decision affirming Licensing Board Initial Decision and denying intervenors motion to reopen and petition for review).1 This Court, for 1

See also San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109, 1120-21 (9th Cir. 2011) (following Commissions final adjudicatory decision, reviewing orders denying a closed hearing on sensitive information and rejecting certain contentions); San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1024 (9th Cir. 2006) (Commission decision denying petition for review of Licensing Board decisions was final order reviewable by the court under 28 U.S.C. § 2344); Citizens for Fair Util. Regulation v. NRC, 898 F.2d 51, 56 (5th Cir. 1990)

(reviewing Commission order denying late-filed intervention in licensing 2

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 15 of 103 example, has taken immediate review of NRC orders denying a party leave to intervene in licensing proceedings. See Natl Whistleblower Ctr. v. NRC, 208 F.3d 256, 258, 261 (D.C. Cir. 2000) (reviewing Commission decision affirming Licensing Board decision denying intervention); Envirocare of Utah, Inc. v. NRC, 194 F.3d 72, 74 (D.C. Cir. 1999) (reviewing NRC final order denying request to intervene in licensing proceedings).

Here, CLI-11-02 was the final NRC Order that disposed of all issues that DPS and NEC had put in controversy. It ended DPS and NECs participation as parties and terminated the adjudicatory proceeding. This Courts decision in City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998), does not compel any different result. While that decision states it is the order granting or denying the license that is ordinarily the final order (id. at 825), the case involved a request for review of an interlocutory NRC Staff determination that neither resolved all issues nor authorized license issuance. Moreover, the decision did not involve a proceeding in which a hearing had been held and a final adjudicatory decision rendered.

proceeding); Sierra Club v. NRC, 862 F.2d 222, 225 (9th Cir. 1988) (decision of Appeal Board affirming Licensing Board decision was final reviewable order);

Carolina Envtl. Study Grp. v. AEC, 510 F.2d 796, 798 (D.C. Cir. 1975) (decision of Atomic Safety and Licensing Appeal Board was the final order); Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1293 n.1 (D.C. Cir. 1975) (reviewing final decision and order of Atomic Safety and Licensing Appeal Board). It should be noted that the NRCs Atomic Safety and Licensing Appeal Board presided over administrative appeals in NRC adjudicatory proceedings until 1991, when the Board was abolished. See 56 Fed. Reg. 29,403 (June 27, 1991).

3

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 16 of 103 Treating the final adjudicatory decision resolving the disputes that a party has raised in a hearing as the relevant final order under the Hobbs Act aligns judicial review of agency action with the requirement found elsewhere in the Hobbs Act limiting the right to petition for review to a party aggrieved. 28 U.S.C. § 2344. Further, 28 U.S.C. § 2347(a) requires judicial review based on the record consisting of the pleadings, evidence adduced, and proceedings before the agency when the agency has held a hearing (as in this case). For these reasons, the relevant, reviewable final order should be the agencys adjudicatory order finally resolving all issues raised by the petitioner.

Construing final order as the final adjudicatory decision resolving the disputes that a party raised in a hearing (as opposed to the subsequent administrative issuance of a license) is also appropriate as a matter of policy. If the final adjudicatory decision were not considered the final order under 28 U.S.C. § 2344, then parties whose hearing requests are resolved (and, thus, whose participation has ended) early in a licensing proceeding would have to wait until license issuance to seek redress. Conversely, parties who unsuccessfully opposed licensing in an NRC hearing could delay seeking judicial review until after license issuance - which can occur much later if a hearing request is resolved early in a proceeding - thus threatening to disrupt or delay the licensed activity. These 4

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 17 of 103 outcomes would be inconsistent with the judicial interest in ensuring prompt review. See Sierra Club, 862 F.2d at 225.

Moreover, in this case, CLI-11-02 not only terminated NECs and DPS participation and resolved all issues that they had placed in controversy, but also consummated the agencys decisionmaking process and resulted in NRC granting of the renewed license. See Massachusetts, 924 F.2d at 322. Under the NRC rules, the evidentiary hearing in a contested proceeding occurs after the NRC Staff has completed its final safety evaluation report and final environmental impact statement (i.e., after the NRC Staff has completed its review and formulated its findings). See 10 C.F.R. § 2.332(d); 10 C.F.R. Part 2, App. B, § II. That procedure was followed below. See Entergy Nuclear Vermont Yankee, LLC, LBP-10-19, 72 N.R.C. __, slip op. at 3 (Oct. 28, 2010) [RA853]. Thus, with the issuance of CLI-11-02, the Staff was authorized to issue the renewed license. See 10 C.F.R. § 2.340(a). Indeed, as the Commission publicly announced, that Order was the final step in the NRCs detailed technical and legal process of examining whether its appropriate to issue a renewed license. Press Release, NRC, No.11-041, NRC Will Renew Vermont Yankees Operating License for an Additional 20 Years (Mar. 10, 2010) [RA901-02].

5

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 18 of 103 STATEMENT OF THE ISSUES In the event the Court determines it has jurisdiction over Petitioners claims, the substantive issues presented are the following:

1. Whether the petitions must be dismissed because DPS and NEC failed to exhaust their administrative remedies.
2. Whether the petitions must be dismissed because NRC possessed a valid water quality certification (WQC) applicable to Entergys application for license renewal.
3. Whether the petitions must be dismissed because Petitioners have shown no harm from any alleged error.

STATUTES & REGULATIONS Statutes and regulations referenced herein are attached in the addendum.

STATEMENT OF FACTS Consistent with D.C. Cir. Rule 28(d)(2), Entergy will not repeat Respondents Statement of Facts, but provides the following elaboration. As Respondents correctly observe, Section 9.2.1 of Entergys Environmental Report explicitly relied upon a WQC issued in 1970 in connection with Vermont Yankees initial licensing to satisfy Entergys obligations under Section 401 of the Clean Water Act, 33 U.S.C. § 1341, and also identified Vermont Yankees current and effective NPDES permit as reflecting continuing compliance with applicable CWA 6

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 19 of 103 standards. [RA45]. The 1970 WQC had been issued by Vermont while Vermont Yankee was still under construction and two years before the receipt of the facilitys initial operating license.2 Vermont Yankee forwarded this WQC to AEC shortly after its issuance;3 it remains in NRCs files to this day.4 This WQC on its face contains no terms or conditions (e.g., expiration date) precluding its use in support of a license renewal.

After publishing notices of the availability and acceptance of Entergys application,5 the NRC solicited comments on the scope of environmental review and on identification of other environmental review and consultation requirements 2

Vermont Yankees WQC was issued under Section 21(b) of the Federal Water Pollution Control Act, as added by the Water Quality Improvement Act of 1970, P.L.91-224. In the Federal Water Pollution Control Act Amendments of 1972, P.L.92-500, Congress adopted Section 21(b) as Section 401(a) with only minor changes. Congress simultaneously adopted a savings provision at Section 4(b) of P.L.92-500 with respect to previous Section 21(b) certifications. The savings provision provides, in relevant part, that:

all . . . certifications . . . duly issued . . . pursuant to the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act, and pertaining to any . . . requirements, . . . under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act, shall continue in full force and effect after the date of enactment of this Act until modified or rescinded in accordance with the Federal Water Pollution Control Act as amended by this Act.

See 33 U.S.C. § 1251 note. Vermont has never taken any action to modify or rescind Vermont Yankees WQC.

3 Letter from J. Ritsher to AEC (Nov. 13, 1970) [DRA1-2].

4 The WQC is publicly available from NRCs public document room under Accession No. 027369.

5 See 71 Fed. Reg. 6,102 (Feb. 6, 2006); 71 Fed. Reg. 15,220 (Mar. 27, 2006).

7

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 20 of 103 related to the proposed action. 71 Fed. Reg. 20,733, 20,734 (Apr. 21, 2006). The Vermont state water quality certification authority (the Vermont Agency of Natural Resources (VANR)) responded to this request in language reflective of Section 401, informing the NRC that [t]he requirements of the Clean Water Act and the NPDES permit will provide assurance that the impacts of the permitted intake structures and discharges meet the applicable federal and state requirements.6 Subsequently, the NRC met and consulted with VANR on at least two occasions.7 Neither VANR nor any other agency or member of the public took issue with Entergys reliance on the 1970 WQC and NPDES permit, or stated that a new WQC was necessary during this consultation process.8 Further, the NRC provided an opportunity for hearing. See 71 Fed. Reg. at 15,220. Although both the hearing notice (id. at 15,221) and NRCs rules (10 C.F.R. § 2.309(a), (f)(1), (f)(2)) required any hearing request to set forth the specific contentions to be litigated, DPS and NECs hearing requests did not include any contentions challenging - or even mentioning - the discussion of 401 6

Memorandum from VANR to NRC, Scoping Comments for Vt. Yankee Nuclear Power Station License Renewal (June 23, 2006) at 1 [RA61].

7 See NRC Summary of Envtl. Site Audit Related to the Review of the License Renewal Application for Vt. Yankee Nuclear Power Station (July 11, 2006)

[RA116-18]. See also Email from R. Emch (NRC Environmental Project Manager) to C. Gjessing (Aug. 7, 2006) [RA198-99].

8 Environmental Impact Scoping Process: Summary Report (Oct. 2006) [RA353-428].

8

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 21 of 103 certification in Entergys Environmental Report. See Entergy Nuclear Vermont Yankee, LLC, LBP-06-20, 64 N.R.C. 131, 162-199 (2006) (LBP-06-20) [RA317-37] (identifying DPS and NECs contentions).9 NECs proposed Contention 1 challenged, under the National Environmental Policy Act (NEPA), whether Entergys Environmental Report sufficiently assessed the impacts of thermal discharges into the Connecticut River. LBP-06-20, 64 N.R.C. at 175 [RA324]. As Respondents correctly state, the Board struck as improper NECs subsequent attempt to introduce an entirely new argument regarding the alleged need for a section 401 certification . . . in a reply concerning Contention 1 (id. at 182 [RA328]). NEC thereafter moved to amend Contention 1 to add, as an additional basis supposedly supporting the original contention, an allegation that Entergys Environmental Report made no mention of any effort to obtain a WQC.10 Entergy responded that this allegation was untimely and irrelevant to the contention, but also pointed out that certification was addressed in Section 9.2.1 of the Environmental Report, which NEC had not challenged.11 In its reply, NEC made no attempt to challenge the sufficiency of the WQC referenced in 9

DPS also moved to adopt NECs original contentions, which the ASLB later granted to the extent that the . . . NEC contentions have been admitted. LBP-06-20, 64 N.R.C. at 208 [RA342].

10 NECs Late Contention or, Alternatively, Request for Leave to Amend or File a New Contention (Aug. 7, 2006) at 5 [RA210]. DPS has acknowledged that it made no attempt to adopt the proposed amended contention. Pet. Brief at 6 n.5.

11 Entergys Answer to NECs Late Contention (Aug. 17, 2006) at 17 [RA251].

9

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 22 of 103 the Environmental Report.12 The ASLB denied NECs motion to amend, reasoning that the need for a WQC was irrelevant to NECs contention that Entergy had failed to assess thermal impacts. Unpublished Memorandum & Order (Oct. 30, 2006) at 7-8 [RA435-36].

In December 2006, the NRC issued its draft EIS and made it available for comment. See 71 Fed. Reg. 76,706 (Dec. 21, 2006). Pursuant to 10 C.F.R. § 51.71(c), which requires a draft EIS to list all Federal permits, licenses, approvals, and other entitlements which must be obtained in implementing the proposed action and will describe the status of compliance with those requirements, Appendix E of the draft EIS identified the permits, consultations and approvals required for license renewal. [RA472-74]. Appendix E did not identify a need for a new Section 401 certification. The NRC provided a 75-day period for written comments and also scheduled two public meetings at which comments could be provided. 71 Fed. Reg. at 76,707. In addition, the NRC forwarded a copy of the draft EIS to both the DPS and VANR.13 Neither these Vermont agencies nor NEC 12 New England Coalition Inc.s (NEC) Reply to Entergy and NRC Staff Answers to NECs Late Contention, or Alternatively, Request for Leave to Amend or File a New Contention (Aug. 28, 2006) at 5-6 [RA281-82].

13 See Letter from R. Franovich to U.S. EPA, Notice of Availability of the Draft Plant-Specific Supplement 30 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS) Regarding Vermont Yankee Nuclear Power Station (Dec. 13, 2006) [RA440-48].

10

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 23 of 103 provided comments asserting a need for a new Section 401 certification.14 Further, although the NRC rules provide an opportunity for parties to submit additional contentions based on information in a draft or final EIS (10 C.F.R. § 2.309(f)(2)),

neither DPS nor NEC exercised this right.

Following an evidentiary hearing on the admitted contentions (i.e.,

contentions unrelated to 401 certification), the ASLB issued a Partial Initial Decision resolving all but one of those contentions. Entergy Nuclear Vermont Yankee, LLC, LBP-08-25, 68 N.R.C. 763 (2008) [RA769-850-] (LBP-08-25).

This Partial Initial Decision provided:

With the exception of [the contention left open unrelated to water quality] and the opportunity to seek reconsideration of facts officially and judicially noticed, this Partial Initial Decision shall constitute the final decision of the Commission forty (40) days after the date of its issuance, unless, within fifteen (15) days of its service, a petition for review is filed in accordance with 10 C.F.R. §§ 2.1212 and 2.341(b).

Filing a petition for review [with the Commission] is mandatory for a party to exhaust its administrative remedies before seeking judicial review. 10 C.F.R. § 2.341(b)(1).

Id. at 897 [RA843-44]. While the NRC rules allow parties to seek review of any prejudicial procedural error by the ASLB (10 C.F.R. § 2.341(b)(1), (b)(4)), neither NEC nor DPS attempted to appeal the ASLB rulings that had rejected NECs earlier efforts to raise a 401 certification issue. Even after the Commission issued CLI-11-02 resolving the final issues and terminating the proceeding, and publicly 14 Appendix A to the final EIS summarizes comments received during the environmental review. [RA486-765].

11

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 24 of 103 announced that the renewed license would be issued soon (NRC Press Release No.11-041, supra [RA901-02]), neither DPS nor NEC made any attempt to alert the Commission to any impediment.

SUMMARY

OF ARGUMENT The petitions must be dismissed because NEC and DPS failed to exhaust their available and - under NRC regulations - mandatory administrative remedies before filing their petitions for judicial review. Entergy stated in the Environmental Report accompanying its license renewal application that it was relying on the 1970 WQC and NPDES permit, and the NRC indicated in its draft and final EIS that a new 401 certification was not required. DPS passed on numerous opportunities before the NRC to assert that Entergys license renewal application required a new WQC. NEC protested that Entergy had not obtained a WQC, but only in an untimely and procedurally improper manner that never challenged the validity or sufficiency of Vermont Yankees existing WQC.

Neither Petitioner filed an administrative appeal of the ASLBs decisions that 401 certification had not been properly raised. Neither Petitioner availed itself of subsequent opportunities to raise the issue of 401 certification through comments on or new contentions challenging the draft or final EIS. Having failed to present their argument regarding a new WQC to NRC in accordance with NRC rules, Petitioners cannot do so now. Indeed, Petitioners make no attempt to argue before 12

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 25 of 103 this Court that the ASLBs relevant procedural decisions were arbitrary and capricious. Having failed to challenge those procedural decisions in their petitions or opening brief, Petitioners cannot now do so in their reply.

Even if Petitioners failure to exhaust were excusable, their petitions fail on the merits because Entergy identified a valid WQC satisfying Section 401 when it submitted its license renewal application. Entergy documented its reliance on the earlier WQC in its Environmental Report, and the NRC had a copy of the WQC in its files. Nothing in the CWA precludes the use of a WQC issued in connection with initial licensing from being used to support subsequent applications for license renewal. Regardless of how the 1970 WQC (issued to Vermont Yankee while the facility was under construction) is classified, it is sufficient to support Entergys license renewal application.

Petitioners suggest that state water quality standards will be evaded if a new WQC is not required. This argument ignores the fact that, as VANR itself reported to the NRC, the requirement that Vermont Yankee hold and periodically renew its NPDES permit under Section 402 of the CWA assures continued compliance with state water quality standards. For this same reason, any claimed inadequacy in the NRCs explanation of its decision is (apart from being largely of Petitioners own making) at most harmless error.

13

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 26 of 103 ARGUMENT I. Standard of Review This Court examines de novo whether it has jurisdiction over this appeal.

See Cohen v. United States, 650 F.3d 717, 722 (D.C. Cir. 2011). The Court may only set aside an NRC grant of a renewal license if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).

II. Petitioners Did Not Exhaust Their Administrative Remedies Neither DPS nor NEC exhausted their NRC-mandated administrative remedies by challenging Entergys reliance on the 1970 WQC and NPDES permit in accordance with NRCs procedural rules. [A]s a general rule . . . courts should not topple over administrative decisions unless the administrative body not only has erred, but has erred against objection made at the time appropriate under its practice. Woodford v. Ngo, 548 U.S. 81, 90 (2006) (emphasis in original)

(citation omitted). The administrative exhaustion requirement gives agencies a fair and full opportunity to adjudicate claims presented to them by requiring that litigants use all steps that the agency holds out, and d[o] so properly (so that the agency addresses the issues on the merits). Id. (emphasis in original) (citation omitted). Proper exhaustion demands compliance with an agencys deadlines and other critical procedural rules because no adjudicative system can function 14

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 27 of 103 effectively without imposing some orderly structure on the course of its proceedings. Id. at 90-91 (footnote omitted).

The NRC provides administrative hearings, typically before an ASLB, to address disputes by any person regarding an application. See 42 U.S.C. § 2239(a)(1)(a). To obtain such a hearing and party status, a person must file a petition specifying admissible contentions to be litigated. See 10 C.F.R. § 2.309(a). NRC rules require contentions to address documents available when the petition is filed (e.g., an applicants Environmental Report), but also allow a petitioner to file additional or amended contentions based upon new developments in the proceeding (e.g., the issuance of a draft or final EIS). See 10 C.F.R. § 2.309(f)(1), (f)(2).

Petitioners persistently failed to comply with these clear procedural requirements. Petitioners claim that DPS and NEC diligently and directly asserted the WQC issue (see Pet. Brief at 6) is belied by the fact that the ASLB informed Petitioners in two separate rulings that a WQC issue had not been properly raised. See LBP-06-20, 64 N.R.C. 162, 182 [RA328] (rejecting NECs attempt to introduce new allegations in a reply); Unpublished Memorandum and Order (Oct. 30, 2006) at 7-8 [RA435-36] (rejecting as procedurally inappropriate an attempt to interject irrelevant material into an existing contention). Petitioners ignore this part of the record.

15

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 28 of 103 For its part, DPS failed to raise the WQC issue before the ASLB or NRC at all. Throughout the NRC proceedings, DPS never once suggested the need for a new WQC or questioned the sufficiency of Vermont Yankees existing WQC.

Further, neither NEC nor DPS made any attempt to appeal the ASLB rulings rejecting as procedurally improper NECs attempt to inject a 401 certification issue into the proceeding. Under NRC rules, after an ASLB issues an initial decision a party may seek Commission review of any prejudicial procedural error. See 10 C.F.R. § 2.341(b)(1), (b)(4)(iv). Thus, prior rulings denying admission of contentions are appealable after a Partial Initial Decision. See Private Fuel Storage, L.L.C., CLI-00-24, 52 N.R.C. 351, 353 (2000). Petitioners simply failed to take advantage of this opportunity, despite having been informed that [f]iling of a petition for review [with the Commission] is mandatory for a party to exhaust its administrative remedies before seeking judicial review. 10 C.F.R. § 2.341(b)(1).

LPB-08-25, 68 N.R.C. at 897 [RA844].

Petitioners compounded these failures by not availing themselves of additional opportunities to challenge Entergys reliance on the existing WQC.

Neither the NRCs draft nor final EIS identified a need for a new WQC in its listing of permits, consultations, and approvals required for license renewal. While both Petitioners could have submitted comments or filed new and/or amended contentions challenging these documents for not identifying a need for a new 16

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 29 of 103 certification, neither did so. Petitioners make no effort to explain in their brief why, despite having filed comments with NRC on the draft EIS with respect to other subjects, they never once mentioned any need for a new WQC.

Petitioners gloss over the failure to exhaust their administrative remedies by arguing that they raised the WQC issue before the ASLB, and therefore provided NRC an opportunity to respond to the merits of these arguments. Pet. Brief at

27. Petitioners thus imply that NRCs lack of response to the WQC issue was arbitrary and capricious, regardless of how the issue was raised. NRC, however, did respond; the ASLB found that the issue had not been raised in accordance with NRC procedural rules because it was raised for the first time in a reply brief and subsequently in a motion to amend an unrelated contention. An agency is not required to address the merits of an argument raised in contravention of its procedural rules. 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192, 200 (D.C. Cir. 2003). The efficiency and fairness values served by exhaustion principles would be seriously compromised if agencies were obliged to furnish such second bites at the apple. Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 471 (D.C.

Cir. 1989) (footnote omitted).

Importantly, Petitioners do not allege any error in ASLBs relevant procedural decisions. Having failed to challenge those procedural decisions in their petitions or opening brief, Petitioners have waived any such claim.

17

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 30 of 103 NetworkIP, LLC v. FCC, 548 F.3d 116, 128 n.10 (D.C. Cir. 2008) ([A]rguments not raised in opening brief are waived); Power Co. of Am. v. FERC, 245 F.3d 839, 845 (D.C. Cir. 2001) (refusing to address arguments first raised in a reply brief).

Nor is there any validity to Petitioners argument previously advanced on motion before this Court that the statutory procedure in Section 401 pre-empts this Courts application of judicially created principles of exhaustion.15 Petitioners relied on North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997), for the proposition that Section 401 leaves no room for issue preclusion; however, that case does not address exhaustion.16 In North Carolina, the Court held that a State was not precluded from raising the need for an additional 401 certification in a FERC licensing proceeding by virtue of not having raised this claim in a previous construction-related proceeding before a different agency involving the same issues, parties, and discharge. 112 F.3d at 1185. North Carolina did not involve a case where, as here, the State failed to raise the need for a new 401 certification before the agency whose action was being challenged. Moreover, Petitioners never explain why NRCs statutory obligations under Section 401 are uniquely immune 15 Petitioners Reply and Memorandum in Opposition to Respondents Motion to Dismiss and Intervenors Cross Motion for Summary Reversal (Aug. 26, 2011) at 21 (Pet. Opp.).

16 The term issue preclusion means that when a particular issue has been litigated, further litigation of the same issue is barred. Blacks Law Dictionary 1425 (9th ed. 2009).

18

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 31 of 103 from application of the exhaustion doctrine when NRCs other no-less important statutory obligations under the Atomic Energy Act and NEPA are subject to the exhaustion doctrine.

Finally, Petitioners suggestion that the issue of 401 certification was beyond the scope of the NRC hearing is inaccurate. Contrary to Petitioners claim (Pet.

Brief at 7 n.6), neither Entergy nor NRC ever asserted that 401 certification was beyond the scope of the hearing. Rather, Entergy merely argued that NECs late attempts to raise this issue (first in a reply brief, and then by seeking to shoehorn it into an irrelevant contention) were procedurally improper.17 Similarly, the ASLBs statement that 401 certification is independent of NEPA and the NRCs implementing rules (see Pet. Brief at 9) simply explained, in the course of denying NECs motion to amend, why 401 certification was not relevant to a contention raising a wholly different issue: Entergys assessment of thermal impacts as part of the NEPA process.18 The record nowhere contains statements by the NRC to 17 Entergys Answer to NECs Late Contention (Aug. 17, 2006) at 3, 7, 17

[RA237, 241, 251]; Entergy's Motion to Strike Portions of New England Coalition's Reply (July 10, 2006) at 9-11 [RA105-07]; NRC Staff Answer Opposing NECs Late Contention, or Alternatively, Request for Leave to Amend or File a New Contention (Aug. 17, 2006) at 11 n.9 [RA265].

18 Unpublished Memorandum and Order (Oct. 30, 2006) at 8 [RA436].

19

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 32 of 103 the effect that the NRC would not have considered a contention relating to 401 certification had it been properly and timely filed.19 Because Petitioners repeatedly failed to exhaust their available remedies before the NRC, their petitions must be denied.

III. Petitioners Substantive Arguments are Meritless because Entergy Possessed a Valid, Unexpired WQC When it Applied for a Renewal License.

Even if Petitioners had preserved their arguments by raising them properly before the ALSB and administratively appealing the ALSBs decisions to the Commission, their substantive arguments regarding NRCs compliance with Section 401 would be without merit. As Respondents explain (Resp. Br. at 34-37),

an NPDES permit is equivalent to 401 certification. Consistent with D.C. Cir.

Rule 28(d)(2), Entergy will not repeat but fully agrees with Respondents position.

19 Under the NRC rules, a contention in an NRC hearing may raise a genuine dispute with the applicant on any material issue of law or fact. 10 C.F.R. § 2.309(f)(1)(vi); see also UCS v. NRC, 735 F.2d 1437, 1443 (D.C. Cir. 1984)

(hearing opportunity must extend to all material factors bearing on the licensing decision. . . .). The NRC cases that Petitioners discuss to suggest otherwise (Pet. Brief at 9 n.8) indicate only that the NRC will not suspend a hearing while waiting for receipt of a 401 certification or permits from other agencies, and that an NRC hearing is not a proper forum to litigate whether other agencies should issue their permits. Nothing in these decisions would preclude an intervenor from challenging whether an applicant could rely on its existing WQC and/or NPDES permit to satisfy 401 certification requirements. Further, all of the cited cases are licensing board decisions not considered binding precedent by the NRC. See, e.g., Private Fuel Storage, L.L.C., CLI-05-22, 62 N.R.C. 542, 544 (2005).

20

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 33 of 103 In addition, as discussed below, the existing, unexpired WQC was also sufficient to support license renewal.

A. The Existing WQC Supports the License Renewal Application Under its plain language, Section 401(a)(1) requires merely a certification that the discharge from operations will comply with applicable standards.20 On its face, the existing WQC that NRC possessed and Entergy referenced in its application provided that certification. Nothing in federal law (or Vermonts rules) restricts the length of time a WQC remains valid or prohibits a valid WQC issued in support of initial licensing from being used in support of license renewal. Thus, Petitioners miss the mark in claiming that the record is devoid of any evidence that [Entergy] has ever requested a [WQC] . . . with regard to its proposed new operating license. Pet. Brief at 22. Entergy had no need to seek a new WQC in connection to the license renewal because NRC already possessed a valid WQC certifying that Vermont Yankees operations will not violate water quality standards.

The permissibility of relying on prior certifications is not only inherent in Section 401(a)(1), but confirmed by Section 401(a)(3) which provides:

20 Absent a clearly expressed legislative intention to the contrary, it is assumed that Congress expresses its purposes through the ordinary meaning of the words it uses . . . . Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772 (1984).

21

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 34 of 103 The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after notice to the certifying State . . .

which shall be given by the Federal agency to whom application is made for such operating license or permit, the State . . . notifies such agency within sixty days after receipt of such notice that there is no longer reasonable assurance that there will be compliance with the applicable provisions of sections [301, 302, 303, 306, 307] of this title.

33 U.S.C. § 1341(a)(3); see also Keating v. FERC, 927 F.2d 616, 620 (D.C. Cir.

1991) (indicating that under Section 401(a)(3) an agency is obligated to accept a valid WQC absent valid objections by the issuing state). If reliance on a prior construction-related certification is permissible, as Section 401(a)(3) indicates, then perforce so is reliance on a prior operations-related certification, since they both focus on the same operational impacts, as Congress recognized when these certification requirements were originally enacted.21 Petitioners have never identified any reason why Congress would allow a construction-related WQC to support subsequent applications for renewed operating licenses but not permit an operations-related WQC to do so. The most logical reading of the CWA is that an operations-related WQC suffices for any subsequent operating license and, under Section 401(a)(3), a construction-related certificate under certain circumstances suffices as well.

21 See infra note 26.

22

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 35 of 103 This reading is supported by the legislative history, which shows that both the House and Senate intended to allow Federal agencies to rely upon any prior certification. As reflected in the Conference Report on the Water Quality Improvement Act of 1970, which in Section 21(b) first established the water quality certification now found in Section 401, the House Bill before the Conference Committee provided:

In any case where an activity requires two or more licenses or permits by a single Federal agency or multiple Federal agencies and the applicant receives a certification under this section in connection with any one of those licenses or permits, then any Federal agency considering an application for a subsequent license or permit for that same activity, such Federal agency may accept the first certification as meeting the requirements of this section, if, after notice to the affected State or States or interstate agencies or to the Secretary as appropriate, no written objection is made to the granting of such license or permit without a subsequent certification.

Conf. Rep. No.91-940 at 52 (1970), reprinted in 1970 U.S.C.C.A.N. 2712, 2737.

Similarly, the Senate amendment provided:

A certification for Federal license or permit for a particular facility or activity shall satisfy the requirement of certification for any later Federal license or permit necessary for such facility of activity unless, after receiving notice of an application for such later Federal license or permit, a State or the Secretary notifies such Federal licensing permitting agency that there has been a change in the nature of the activity, the design of the facility, the natural characteristics of the waters into which the discharge will be made, or in the water quality standards applicable to such waters, and there is not longer reasonable assurance of compliance with water quality standards. In such instances a second certification will be required.

23

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 36 of 103 Id. at 53-54, reprinted in 1970 U.S.C.C.A.N. at 2739. To conclude that House and Senate conferees intended the conference substitute ultimately passed into law to be narrower than either of the two bills their respective chambers had passed earlier begs reason as it assumes that the House and Senate acceded to statutory language frustrating the legislative purpose clearly expressed in both antecedent bills.

Amicus Riverkeeper mistakenly asserts that the House rejected the proposition that a certification obtained for a facility is valid for subsequent licenses. Riverkeepers Brief at 18-20. Riverkeeper refers to an early bill reported out of the House Committee on Public Works requiring certification for both a construction permit and operating license. H.R. Rep. No.91-127 at 7-8 (1969),

reprinted in 1970 U.S.C.C.A.N. 2691, 2698.22 However, during floor debate, the bills sponsors chose to jettison the language barring the use of an earlier state 22 The bill reported out of the Public Works Committee provided that if the applicant receives a certification for one agency, it need not obtain a certification for another agency or for succeeding permits, or licenses unless the Secretary or the State, upon receipt of notice, objects, except that this provision does not apply to an application for an operating license or permit. H.R. Rep. No.91-127 at 7, reprinted in 1970 U.S.C.C.A.N. at 2697 (emphasis added). Dismissing concerns expressed by the Chairman of the Joint Commission on Atomic Energy, the Public Works Committee initially concluded: the very different character of

[construction permit and operating license] applications, the long period of time that lapses between their issuance, and the uncertainty as to the finality of plants at the construction license stage, all support the requirements for certification with respect to both applications H.R. Rep. No.91-127 at 8, reprinted in 1970 U.S.C.C.A.N. at 2698. As discussed above, this view did not survive floor debates, as is reflected in Section 401(a)(3).

24

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 37 of 103 certification for a subsequent operating license. 115 Cong. Rec. H9,264 (daily ed.

Apr. 16, 1969).23 H.R. 4814 as passed by the House and forwarded to the Senate omitted any prohibition of multi-use certifications.24 Thus, rather than reflecting concern about using a certification over a long period of time, as Riverkeeper argues (see Riverkeepers Brief at 20), the bills that were passed by each chamber specifically recognized and allowed such use.

For the same reasons, there is no validity to or rationale behind Petitioners previously advanced argument that Section 401(a)(3) specifies the only instance in which an applicant may rely on a prior certification (i.e. that only a construction-related certification and not an initial operations-related certification can support issuance of a renewed license).25 To the contrary, the legislative history shows that Congress was trying to make it clear that construction-related certifications were like operational certifications and thus could also be relied upon in subsequent 23 Committee members here explained to the entire House that the revised language eliminated an undue and severe burden on nuclear power generation facilities while still permitting a process by which the states could protect their interest in waters within their boundaries. See 115 Cong. Rec. at H9,264-66 (statements of Reps. Edmonson and Holifield).

24 See Conf. Rep. No.91-940 at 52 reprinted in 1970 U.S.C.C.A.N at 2737.

Riverkeepers assertion that the House ultimately passed the bill without relevant changes to this section (Riverkeepers Brief at 20) is inaccurate. As indicated by the Conference Committee Report, the provision allowing reliance on prior certifications in the bill passed by the House omitted the restrictive language previously included in the bill that had been reported out of the Public Works Committee. See supra note 22.

25 Pet. Opp., supra note 15, at 6 & n.5.

25

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 38 of 103 licensing.26 Because construction and operation are different activities, a plain reading of Section 401(a)(1) (and former Section 21(b)(1)) might not have allowed a certification for construction to be used later as the certification for operation, absent the clarifying language in Section 401(a)(3). Section 401(a)(3)

(and former Section 21(b)(3)) remedied this by specifically permitting reliance on prior construction-related certifications for subsequent operating licenses - the scenario that had been of particular concern to the Joint Committee on Atomic Energy.27 Further, Section 401(a)(3) also provided specific protection to persons who had received a construction-stage certification by limiting a States ability to revoke the certification in this particular situation. See American Rivers v. FERC, 129 F.3d 99, 108 n.19 (2d Cir. 1997).28 Thus, the only reasonable interpretation is 26 In the floor debates over the amendment to the House bill that recognized the continued validity of a construction-related certification for subsequent operating licenses, the amendment sponsor assured his colleague that the thrust [of a construction-related certification] . . . is that when in operation that facility has to conform to the applicable water standards . . . . 115 Cong. Rec. at H9,266 (exchange between Reps. Edmonson and Cramer) (emphasis added).

27 See supra note 22.

28 Petitioners have previously cited American Rivers for the proposition that the Second Circuit has rejected the Federal Energy Regulatory Commissions attempt to extend Section 401(a)(3) beyond construction permits and licensing.

Pet. Opp., supra note 15, at 6. American Rivers only deals with a Federal agencys ability to reject conditions imposed in a State certification, and nowhere addresses whether a certification in support of an operating license may be used to support subsequent operating licenses. 129 F.3d at 107-11. Moreover, American Rivers in fact supports the multiple use of an operational certification.

It indicates that a State has authority to include conditions in an operational 26

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 39 of 103 that Section 401(a)(3) was necessary to expand Section 401(a)(1), not contract it, and to provide added protection to persons who had relied on a construction-stage certification. This interpretation is the only one that (1) is consistent with the plain statutory language; (2) is consistent with the intent of both houses of Congress; and (3) makes sense.

In any event, even if Petitioners were correct in arguing that only a construction-related certification may be used to support subsequent operating licenses, that argument is irrelevant because Vermont Yankees WQC was obtained not just to support issuance of the AEC operating license but to support construction-related authorizations as well. In particular, the WQC was obtained to fulfill a condition in an order of the Federal Power Commission authorizing use of project lands within its jurisdiction for both construction and operation of pumping facilities, pipes and conduits, roadways (both auto and rail), stacks, and fences.29 Further, as reflected in Respondents Brief, the AEC renewed its certification allowing it to be reopened, amended, or revoked, and shows that Vermont knows how to do so. Id. at 102-03, 107-11. Thus, Vermont has the ability to issue operational certifications with terms that would require new certification in appropriate circumstances. It simply chose not do so in the WQC issued to Vermont Yankee. In the same vein, Vermonts rules governing 401 certifications include no provisions barring use of prior certifications or specifying applications requiring new certifications. See Vermont Water Pollution Control Permit Regulations, § 13.11.

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) [DRA28]. In addition, Vermont 27

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 40 of 103 construction permit in December 1971. Resp. Brief at 13. Thus, Petitioners prior statement to this Court that it is impossible for the original certification to fall within the scope of Section 401(a)(3) (Pet. Opp., supra note 15, at 7) is inaccurate.

To the contrary, Section 401(a)(3) is directly applicable.

Nor is there any validity to Petitioners claims that NRCs action vitiates Vermonts primacy over and ability to protect local water quality (Pet. Brief at 3, 28). These claims ignore other statutory mechanisms in the CWA for ensuring continued compliance with state water quality standards. Any facility discharging pollutants must before commencing operations, and subsequently on a periodic basis, obtain NPDES permits authorizing discharge of pollutants. See 33 U.S.C. §§ 1311(a) & 1342; 40 C.F.R. §§ 122-136, 400-501. While the WQC provides a States forward-looking prediction that a facility will comply with state standards, it is the NPDES permit that provides States an ongoing means of actually enforcing compliance with state water quality standards. 33 U.S.C. §§ 1311(b)(1)(C) &

1342. Indeed, VANR, the Vermont agency actually responsible for water quality certifications and for issuing NPDES permits, specifically indicated to NRC its Yankee applied to the U.S. Army Corps of Engineers on June 30, 1971, for a permit to discharge or work in navigable waters under Section 13 of the Rivers and Harbors Act. See id., Vol. I at 11-5 [DRA13]. Entergy has not located a copy of this application in its files. By virtue of Petitioners failure to have properly raised 401 certification as a contention in the proceeding below, has not had the opportunity to pursue this document through discovery under the NRC rules. See 10 C.F.R. § 2.336.

28

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 41 of 103 satisfaction that [t]he requirements of the Clean Water Act and the NPDES permit will provide assurance that the impacts of the permitted intake structures and discharges meet the applicable federal and state requirements. See supra note 6 (emphasis added).

B. NRC Was Not Required to Indicate Affirmatively Its Reliance on the WQC Identified by Entergy and Already in NRCs Files There is likewise no merit to Petitioners claim that the NRC was arbitrary and capricious for failing to note affirmatively its reliance on the existing WQC or NPDES permit identified in the license renewal application (which no party had challenged in a procedurally proper manner before the ASLB). Pet. Brief at 23-25.

The only support Petitioners marshal for this argument is an out-of-context sentence from City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006).

Specifically, Petitioners contend a federal agency has an obligation to determine that the specific certification required by [section 401] has been obtained, and without that certification, [the agency] lacks authority to issue a license. Pet.

Brief at 23 (quoting City of Tacoma, 460 F.3d. at 68). Thus, Petitioners claim that NRC is required to state affirmatively that it has obtained a WQC whenever it relicenses a facility. Id. at 24. However, in City of Tacoma, the quoted language is applied to a very different requirement: an agencys affirmative duty to determine whether an initial certification granted by a state complies with the requirements of Section 401. See City of Tacoma, 460 F.3d at 68 (This obligation does not require 29

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 42 of 103

[an agency] to inquire into every nuance of the state law proceeding . . . but it does require [the agency] at least to confirm that the state has facially satisfied the express requirements of section 401.). If this were a matter of NRC failing to inquire as to the validity of a new WQC, City of Tacoma would be applicable.

Here, however, the NRC already possessed the valid and verified WQC relied upon by Entergy VYs license renewal application.27 Indeed, where a State has issued a prior certification with respect to construction, the State has the burden of notifying the federal licensing agency of its intention to revoke within 60 days of the time it is itself notified that a new license application is pending. Keating, 927 F.2d at 624.

In any event, although an agency is required to explain adequately its actions to avoid a finding that those actions were arbitrary and capricious under 5 U.S.C. § 706(2)(A), this requirement is not particularly demanding as courts will uphold a decision of less than ideal clarity if the agencys path may reasonably be discerned. Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)

(quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). Thus, the ultimate question . . . is whether the court can discern the 27 Petitioners assert that Entergy did not file a copy of this WQC or provide it to the NRC. Pet. Brief at 5, 16. The NRC rules, however, provide that an application may incorporate by reference information contained in previous applications, statements, correspondence or reports filed with the Commission, provided that the references are clear and specific. 10 C.F.R. § 54.17(e). Thus, there was no need to append the clearly referenced WQC to the application.

30

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 43 of 103 agencys path, based on the record. Southern Pac. Transp. Co. v. ICC, 69 F.3d 583, 594 (D.C. Cir. 1995) (Rogers, J., dissenting). The burden of showing that an agencys action is without any explanation falls to the petitioning party. See Village of Bensenville v. FAA, 457 F.3d 52, 70-71 (D.C. Cir. 2006).

In this case, Entergy submitted to NRC an environmental report that explicitly and clearly referenced the extant WQC and NPDES permit.

Environmental Report at § 9.2.1 [RA45]. That WQC was already present in NRCs files. The NRCs longstanding practice of recognizing a valid NPDES permit as a proxy for Section 401 certifications was already reflected in the NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Plants (1996), at § 4.2.1.1 [RA41-43]. NRC subsequently issued a draft and final EIS, neither of which included a new WQC in the list of certifications that Entergy was still required to provide. Petitioners may demand some explicit statement by the NRC of its possession and the sufficiency of the 1970 WQC and/or NPDES permit referenced by Entergy VYs application to satisfy the requirements of Section 706(2)(A), but NRCs duty was in no way this demanding. See Public Citizen, 988 F.2d at 197; see also Honeywell Intl, Inc. v. EPA, 372 F.3d 441, 448 (D.C.

Cir. 2004) (finding that an agency did not act in an arbitrary and capricious fashion when it determined fish were present in a contaminated area even though it never affirmatively stated that the fish could swim the short distance between the 31

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 44 of 103 contaminated zone and where they had been seen); NARUC v. FCC, 746 F.2d 1492, 1502 (D.C. Cir. 1984) (finding that an agency did not act in an arbitrary and capricious fashion when it relied upon a factual record already in its possession rather than making new affirmative findings of fact).

C. The Desirability of Further Explanation Is At Most Harmless Error Even if this Court were to conclude that further NRC explanation was desirable (and putting aside the fact that any shortcoming was caused by Petitioners persistent failure to object to the use of the existing WQC), the absence of a more complete explanation is at most harmless error. Here, neither DPS nor NEC can complain that there is any issue regarding Vermont Yankees compliance with water quality standards, a precept recently confirmed by the Vermont Supreme Court in specific reference to Vermont Yankee. The State of Vermont issued an amended NPDES Discharge Permit to Vermont Yankee, which was provided to the NRC as part of the license renewal application.30 The issuance of that NPDES permit is predicated upon compliance with water quality standards.31 30 Vermont Yankee Nuclear Power Station, License Renewal Application, Amendment 6 (July 27, 2006) [RA143-97].

31 In re Entergy Nuclear Vermont Yankee Discharge Permit 3-1199, 189 Vt. 140, 989 A.2d 563, 583 (2009) (Vermont permits issued upon a determination that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them and will not violate any applicable provisions of state or federal laws or regulations. See also id. at 581 (finding 32

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 45 of 103 10 V.S.A. § 1263(c). Further, the NPDES permit includes provisions requiring compliance with its terms and conditions, requiring re-application if facility modifications or changes in discharge occur, and allowing the State to modify, suspend or revoke the permit to comply with any newly issued standards. Final Amended Discharge Permit, ¶¶ II.A.1, IIIA [RA155, 161]. As the VANR informed the NRC, [t]he requirements of the Clean Water Act and the NPDES permit will provide assurance that the impacts of permitted intake structures and discharges meet the applicable federal and state requirements. In addition, NEC participated as a party in the proceedings before the Vermont Environmental Court on this amended permit, and thus is estopped from claiming any inadequacy in the permit.32 The doctrine of harmless error is as much a part of judicial review of administrative action as of appellate review of trial court judgments. Indeed, the Administrative Procedure Act, 5 U.S.C. § 706, says that in reviewing agency action, the court shall take due account of the rule of prejudicial error, i.e.,

whether the error caused actual prejudice. Nevada v. DOE, 457 F.3d 78, 90 (D.C.

Cir. 2006); Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 61 (1st Cir. 2001).

that the Vermont Water Quality Standards were correctly applied to Vermont Yankees discharge permit).

32 In re Entergy Nuclear/Vermont Yankee Thermal Discharge Permit Amendment, No. 89-4-06 Vtec, slip op. at 9 (Vt. Envtl. Ct. Jan. 9, 2007), available at http://vermontjudiciary.org/GTC/Environmental/ENVCRT%20Opinions/06-089c.Entergy.mots.pdf.

33

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 46 of 103 Moreover, this Court has been reluctant to find prejudicial error when a petitioner has failed to demonstrate that an agencys adherence to a procedural requirement would have yielded a different finding regarding the environmental impact of an agency decision. See Nevada, 457 F.3d at 90; County of Rockland v. FAA, 335 Fed. Appx. 52, 57 (D.C. Cir. 2009). Indeed, this Courts reluctance has been particularly strong when the party challenging the agency decision has repeatedly failed to avail itself of opportunities to challenge the decision afforded in agency procedure. See Natl Whistleblower Ctr., 208 F.3d at 264-66.

Here, Petitioners repeatedly failed to avail themselves of opportunities to challenge the adequacy of the existing certification, and there is no colorable claim of non-compliance with applicable water quality standards. Thus, there is no reason to disturb the NRCs decision or the relicensing of Vermont Yankee.

CONCLUSION For the foregoing reasons, this Court should deny the petitions.

Respectfully submitted,

__/s/ David R. Lewis_______________

Elise N. Zoli David R. Lewis Kevin P. Martin Pillsbury Winthrop Shaw Pittman LLP Goodwin Procter LLP 2300 N Street, NW 53 State Street Washington, DC 20037 Boston, MA 02109-2802 (202) 663-8474 (617) 570-1000 david.lewis@pillsburylaw.com Counsel for Intervenors Dated: March 19, 2012 34

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 47 of 103 USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 48 of 103 ADDENDUM OF STATUTES AND REGULATIONS FINAL BRIEF OF INTERVENORS ENTERGY NUCLEAR OPERATIONS, INC. AND ENTERGY NUCLEAR VERMONT YANKEE, LLC IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nos. 11-1168 and 11-1177, consolidated VERMONT DEPARTMENT OF PUBLIC SERVICE and NEW ENGLAND COALITION, INC.,

Petitioners, v.

UNITED STATES OF AMERICA and NUCLEAR REGULATORY COMMISSION, Respondents, and ENTERGY NUCLEAR OPERATIONS, INC. and ENTERGY NUCLEAR VERMONT YANKEE, LLC, Intervenor-Respondents On Petition for Review of a Decision of the United States Nuclear Regulatory Commission

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 49 of 103 ADDENDUM OF STATUTES AND REGULATIONS Except for the following, all applicable statutes, etc. are contained in the Briefs for the Petitioners and Respondents.

Water Quality Improvement Act of 1970, Pub. L. No.91-224, § 21(b), 84 Stat. 91, 108-109 (1970), reprinted in 1970 U.S.C.C.A.N 97, 118-21 . . . . . . 4 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.92-500, § 401(a), 86 Stat. 816, 877-79 (1972) . . . . . . . . . . . . . . 9 28 U.S.C. § 2347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 33 U.S.C. § 1311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 10 C.F.R. § 2.332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 10 C.F.R. § 2.336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 10 C.F.R. § 2.340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 2

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 50 of 103 10 C.F.R. § 2.1212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 10 C.F.R. Part 2, App. B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 10 C.F.R. § 51.71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 10 C.F.R. § 54.17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 115 Cong. Rec. H9,264 (daily ed. Apr. 16, 1969) . . . . . . . . . . . . . . . . . . . . . 40 H.R. Rep. No.91-127 (1969), reprinted in 1970 U.S.C.C.A.N. 2691. . . . . . 44 Conf. Rep. No.91-940 (1970), reprinted in 1970 U.S.C.C.A.N. 2712. . . . . . 49 3

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USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 102 of 103 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned certifies that this brief complies with the applicable type-volume limitations. Exclusive of the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Cir. Rule 32(a)(1),

this brief contains 8,715 words, as computed by Microsoft Word 2003. The brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) because it has been prepared in a proportionally spaced font using Microsoft Word 2003 in 14-point Times New Roman type.

Dated: March 19, 2012

__/s/ David R. Lewis_______________

David R. Lewis Counsel for Intervenors

USCA Case #11-1168 Document #1364259 Filed: 03/19/2012 Page 103 of 103 CERTIFICATE OF SERVICE I hereby certify that on this 19th day of March, 2012, the Final Brief of Intervenors Entergy Nuclear Operations, Inc. and Entergy Nuclear Vermont Yankee, LLC was served via the D.C. Circuits Case Management/Electronic Case Files system on the following counsel of record.

Counsel for U.S. Nuclear Regulatory Commission and United States of America John F. Cordes, Jr.

Sean D. Croston John E. Arbab Counsel for New England Coalition Christopher M. Kilian Anthony N.L. Iarrapino Counsel for Vermont Dept. of Pub. Serv.

Anthony Z. Roisman John Beling Counsel for Amici Christopher Wright Timothy Simeone Mark Davis Monica Wagner Adam J. White

__/s/ David R. Lewis_______________

David R. Lewis Counsel for Intervenors

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