ML20094G763
| ML20094G763 | |
| Person / Time | |
|---|---|
| Issue date: | 04/02/2020 |
| From: | Andrew Averbach, Clark J, Heminger J, Jennifer Scro NRC/OGC, US Dept of Justice, Environment & Natural Resources Div |
| To: | US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1836428, 19-1240, DJ 90-13-3-1-15901 | |
| Download: ML20094G763 (15) | |
Text
ORAL ARGUMENT NOT YET SCHEDULED No. 19-1240 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NUCLEAR ENERGY INSTITUTE Petitioner,
- v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.
On Petition for Review of Action by the Nuclear Regulatory Commission RESPONDENTS REPLY TO PETITIONERS OPPOSITION TO MOTION TO DISMISS JEFFREY BOSSERT CLARK Assistant Attorney General ERIC GRANT Deputy Assistant Attorney General JUSTIN D. HEMINGER Attorney Environment and Natural Resources Division U.S. Department of Justice Post Office Box 7415 Washington, D.C. 20044 justin.heminger@usdoj.gov (202) 514-5442 ANDREW P. AVERBACH Solicitor JENNIFER SCRO Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 andrew.averbach@nrc.gov (301) 415-1956 USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 1 of 15
TABLE OF CONTENTS INTRODUCTION..................................................................................................... 1 ARGUMENT............................................................................................................. 2 I.
The 2019 letter cannot reasonably be read as a change to the 2016 regulatory issue summary......................................................................................... 2 II.
The 2019 Letters bare, single-sentence mention of the potential for case-by-case enforcement discretion does not convert the 2019 Letter into final agency action........................................................................................... 4 CONCLUSION.......................................................................................................... 9 USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 2 of 15
ii TABLE OF AUTHORITIES Judicial Decisions Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000)....................................................................... 8 AT&T Co. v. EEOC, 270 F.3d 973 (D.C. Cir. 2001)......................................................................... 5 Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000)........................................................................... 7 Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207 (D.C. Cir. 2007)......................................................................... 8 Center for Auto Safety v. National Highway Traffic Safety Administration, 452 F.3d 798 (D.C. Cir. 2006)......................................................................... 8 Clayton County, v. FAA, 887 F.3d 1262 (11th Cir. 2018)....................................................................... 9 Community Financial Services Association of America v. FDIC, 132 F. Supp. 3d 98 (D.D.C. 2015)................................................................... 7 General Motors Corp. v. EPA, 363 F.3d 442 (D.C. Cir. 2004)......................................................................... 8 Independent Equipment Dealers Association v. EPA, 372 F.3d 420 (D.C. Cir. 2004)......................................................................... 9 Reliable Automatic Sprinkler Co. v. Consumer Products Safety Commission, 324 F.3d 726 (D.C. Cir. 2003)......................................................................... 7 U.S. Army Corps of Engineers v. Hawkes Co.,
136 S. Ct. 1807 (2016)..................................................................................... 6 Valero Energy Corp. v. EPA, 927 F.3d 532, 538 (D.C. Cir. 2019)................................................................. 9 USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 3 of 15
iii Statutes and Regulations 42 U.S.C. § 2021.................................................................................................... 3, 4 10 C.F.R. § 20.2002................................................................................................... 8 10 C.F.R. § 50.109..................................................................................................... 6 USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 4 of 15
INTRODUCTION Petitioner Nuclear Energy Institute (NEI) has responded to our motion to dismiss (Motion) by asserting that the NRCs September 16, 2019, letter (2019 Letter) constitutes final agency action from which direct and appreciable legal consequences flow. Specifically, it asserts that the 2019 Letter (1) does not restate a prior NRC position; and (2) imposes new obligations on NRC licensees. NEIs Opposition to Respondents Motion to Dismiss 11, 13, Document #1833123 (Mar. 11, 2020) (Opposition). NEI is wrong on both counts.
The 2019 Letter barely spans one page. It states that the 2016 Regulatory Issue Summarywhich NEI had by previous letter requested that the agency rescindcorrectly concluded that requests to use an alternative method of disposal of radioactive material must be submitted to the authority that licensed use of the material in the first instance. And, rather than imposing a requirement of its own, the 2019 Letter states that the agency will consider enforcement discretion for licensees who are not in compliance with the agencys regulations.
Simply stated, the 2019 Letter broke no new ground and did nothing to change the legal landscape or its licensees obligations. Rather, it responded to an unsolicited letter and informed NEI that the agency would adhere to its existing interpretation of its own regulation. Deeming an informal communication of this USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 5 of 15
2 type to be judicially reviewable agency action would chill agency efforts to engage in good governance by responding to stakeholders concerns, and the Court should decline NEIs invitation that it do so.
ARGUMENT I.
The 2019 letter cannot reasonably be read as a change to the 2016 regulatory issue summary.
NEI asserts that [u]ntil the 2019 Letter, NRCs policy related to [very low-level waste] disposal had not settled, and therefore the legal effect challenged here did not exist before the 2019 Letter fully and clearly communicated the agencys position to the regulated industry. Opposition 14. But as we explained, Motion 12-14 (citing Independent Equipment Dealers Association v. EPA, 372 F.3d 420 (D.C. Cir. 2004)), the 2019 Letter cannot reasonably be read as a change from the position articulated in the 2016 Regulatory Issue Summary; by its terms, it is a respon[se] to NEIs request[] that the NRC rescind the Issue Summary, and a decision not to do so. Motion Exhibit 1, 2019 Letter at 1.
NEI ignores the workaday nature of the 2019 Letter and nonetheless asserts that, embedded within its one paragraph (two sentence) explanation of its conclusion is a brand new legal theory. Opposition 2. Presumably, it is referring to the statement in the Letter that, In the case of 10 CFR Part 50 or 52 licensees, th[e] requirement [to seek NRC approval for alternate methods of disposal] is based on the NRCs jurisdiction over the operation of nuclear power plants, which USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 6 of 15
3 cannot be delegated to an Agreement State. Motion Exhibit 1, 2019 Letter at 1; see Opposition 17-18 (characterizing the sentence as a dramatic change in NRCs interpretation of the [Atomic Energy Act] and its delegation authority). But the NRC made the same point in the 2016 Regulatory Issue Summarythat with respect to nuclear power plants (i.e., Part 50 and 52 licensees), this request should be made to the NRC because the NRC is the regulatory authority that issued the license for use of the radioactive material. Motion Exhibit 4, 2016 Regulatory Issue Summary at 2.
It is true that, in the Issue Summary, the agency did not expressly refer to the non-delegability of jurisdiction over nuclear power plants. But this limitation has existed since the Agreement State program was adopted in 1959. See 42 U.S.C.
§ 2021(c)(1) (No agreement entered into pursuant to subsection (b) shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of-(1) the construction and operation of any production or utilization facility or any uranium enrichment facility....).
And the Issue Summarys directions concerning the appropriate regulatory authority to issue 10 C.F.R. § 20.2002 approvals are premised on precisely this statutory limitation. Pursuant to these directions, Part 50 and Part 52 licensees (i.e., operators of nuclear power plants) seeking an alternate method of waste disposal must obtain approval from the NRC, but persons authorized to possess USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 7 of 15
4 source, byproduct, or certain special nuclear material (authority over which can be discontinued pursuant to an agreement under 42 U.S.C. § 2021(b)), should obtain such approval either from the NRC (in non-Agreement States) or from Agreement States, as applicable. Motion Exhibit 4, 2016 Regulatory Issue Summary at 2.
Thus, the 2019 Letter does not articulate a new legal theory; it simply refers to the underlying and widely-known justification for the conclusion that the agency expressed three years earlier. NEIs suggestion that the 2019 Letter breaks new legal ground therefore fails.
II.
The 2019 Letters bare, single-sentence mention of the potential for case-by-case enforcement discretion does not convert the 2019 Letter into final agency action.
NEIs second argumentthat the 2019 Letter imposes new legal obligationshinges on the claim that the 2019 Letter made the 2016 Regulatory Issue Summary apply retroactively and raised the specter of NRC enforcement action. Opposition 7-8, 12-13. On this point, it bears emphasizing that the NRC has taken no enforcement action against any NRC licensee for such a violation of 10 C.F.R. § 20.2002. The only instance where even the possibility of enforcement action was raised involved the South Texas Project. But the NRC decided against taking enforcement action in that instance. The NRCs innocuous acknowledgement in the 2019 Letter that it would consider the exercise of enforcement discretion for violations of § 20.2002 on a case-by-case basis reflects USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 8 of 15
5 the unremarkable fact that, as an agency responsible for enforcing legally binding requirements such as 10 C.F.R. § 20.2002, it will have to grapple with how to address what it believes to be instances of noncompliance by its licensees. The agencys statement that some party, somewhere, may be subject to enforcement action based on some hypothetical scenario (including, for example, a licensee that obtained an approval from an Agreement State after the NRC issued the 2016 Regulatory Issue Summary) is not an action from which legal obligations flow.
See AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) (injury sufficiently concrete for purposes of finality inquiry typically is not caused when an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party); see also Center for Auto Safety v. National Highway Traffic Safety Administration, 452 F.3d 798, 812 (D.C. Cir. 2006) (Randolph, J.,
concurring) (Agency action is not final when it does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action. (quoting DRG Funding Corp. v. HUD, 76 F.3d 1212, 1215 (D.C. Cir. 1996)).1 1 NEI asserts that the agency is necessarily foreclosed from requiring licensees to comply with approvals obtained prior to publication of the 2016 Regulatory Issue Summary because a retroactive application of the NRCs interpretation would constitute a backfit, and that even the mere contemplation of enforcement action in these circumstances constitutes a change in the legal regime. See Opposition 16.
Its sweeping assertion is unfounded. The agency has promulgated extensive USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 9 of 15
6 In fact, in responding to NEI and mentioning enforcement discretion, the NRC was doing little more than acting responsively to the concerns raised by NEI on behalf of its members. In direct contrast to cases where courts have found final agency action in informal agency documents that threaten, coerce, or direct significant civil or criminal penalties against the regulated community, the singular sentence in the 2019 Letter referring to the possibility of case-by-case enforcement discretion in hypothetical cases reflects that the agency was looking to work with licensees to bring them into compliance and, using the agencys words, to streamline the process for any licensees who might have obtained Agreement State approvals on the basis of prior guidance. It hardly suggests, as NEI claims, the specter of significant legal and practical consequences, including AEA civil and criminal penalties. Opposition 13; cf. U.S. Army Corps of Engineers v.
Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (noting that persons who defied Corps of Engineers jurisdictional determination without a permit, under belief that they were free from regulation, would run risk of significant civil penalties).
regulations concerning whether the retroactive application of an interpretation of a requirement requires a backfit analysis. See 10 C.F.R. § 50.109 (providing, for example, that adoption of interpretations that are necessary to bring a licensee into compliance with the Commissions regulations or to maintain adequate protection of public health and safety do not require such an evaluation). The agencys recognition in the 2019 Letter that enforcement action could conceivably be appropriate in some cases is perfectly consistent with the case-by-case analysis that its backfiting regulations contemplate.
USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 10 of 15
7 Although NEI attempts to compare the instant case to the circumstances in Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000), and Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000), those cases are inapposite. In Barrick, this Court found that an enforcement letter, issued in concert with a guidance document, constituted agency action from which legal consequences flowed. 215 F.3d at 48-49. Here, however, the NRC has not commenced enforcement action against anyone. See Community Financial Services Association of America v. FDIC, 132 F. Supp. 3d 98, 121 (D.D.C. 2015)
(In this case however, none of the Defendants have issued any enforcement letters and Barrick is not relevant.); see also Reliable Automatic Sprinkler Co. v.
Consumer Products Safety Commission, 324 F.3d 726, 731-32 (D.C. Cir. 2003)
(agencys letter was not final agency action where it has not yet made any determination or issued any order imposing any obligation on [the petitioner],
denying any right of [petitioner], or fixing any legal relationship and where any enforcement action would require the agency to initiate a formal adjudication).
Further, the NRC concedes that it would not, and indeed could not, rely on the 2016 Regulatory Issue Summary, and certainly not the 2019 Letter, as a basis for enforcement action because neither of those documents has the force and effect of law. Unlike Barrick, any enforcement action would be taken based on a violation of the regulation itself (which requires application to the Commission for USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 11 of 15
8 approval of alternate methods of disposal of licensed material generated in the licensees activities). 10 C.F.R. § 20.2002; compare Barrick, 215 F.3d at 49
([I]f Barrick refuses to abide by the 1999 Guidance, the company will be subject to an enforcement action.).
Similarly, in Appalachian Power v. EPA, this Court, in holding that a nineteen-page EPA guidance document was judicially reviewable, noted that the guidance reads like an ukase and that State authorities, with EPAs Guidance in hand, are insisting on [additional monitoring]. 208 F.3d at 1023. Unlike the guidance at issue in Appalachian Power, however, the 2019 Letter does not command[], does not require[], does not order[], and does not dictate[].
Id.; see also Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 227-28 (D.C. Cir.
2007) (identifying factors that distinguished Appalachian Power, including that EPA does not treat the [agency guidance document] as binding); General Motors Corp. v. EPA, 363 F.3d 442, 451 (D.C. Cir. 2004) (holding that agency letters that did no more than state the obligations set forth in [prior guidance] did not comprise final agency action). Rather, the 2019 Letter reflects the NRCs willingness to work with licensees to address the need to comply with the binding regulatory requirements in 10 C.F.R. § 20.2002.
The 2019 Letter is simply not a coercive tool, and it is difficult to imagine a more innocuous response declining NEIs invitation to rescind the 2016 USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 12 of 15
9 Regulatory Issue Summary. If a one-sentence mention of enforcement discretion in hypothetical, future cases, renders the 2019 Letter final agency action, then all future agency communication would be chilled as the agency would have little incentive to explain or clarify its views. This is precisely the situation this Court has warned against in refusing to find similar informational, workaday agency letters to be judicially reviewable. See, e.g., Valero Energy Corp. v. EPA, 927 F.3d 532, 538 (D.C. Cir. 2019); Independent Equipment Dealers Association, 372 F.3d at 428; see also Clayton County, v. FAA, 887 F.3d 1262, 1269 (11th Cir. 2018).
Finally, we stress that, in the event that the agency actually takes enforcement action against a licensee, that licensee will have a full and fair opportunity to present its arguments concerning the validity of the agencys interpretation of 10 C.F.R. § 20.2002. But there is no reason to dislodge well-settled principles of finality, or to create or extend an exception to the Hobbs Acts 60-day window for challenging final orders, based solely upon the agencys decision to informally communicate its adherence to an interpretation of a regulationa position that it announced more than three years ago.
CONCLUSION For the foregoing reasons, Respondents respectfully request that this Court dismiss the Petition for Review for lack of jurisdiction.
USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 13 of 15
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/s/ Justin D. Heminger JEFFREY BOSSERT CLARK Assistant Attorney General ERIC GRANT Deputy Assistant Attorney General JUSTIN D. HEMINGER Attorney Environment and Natural Resources Division U.S. Department of Justice justin.heminger@usdoj.gov (202) 514-5442 Respectfully submitted,
/s/ Andrew P. Averbach ANDREW P. AVERBACH Solicitor JENNIFER E. SCRO Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission andrew.averbach@nrc.gov (301) 415-1956 DJ 90-13-3-15901 Dated: April 2, 2020 USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 14 of 15
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/s/ Andrew P. Averbach ANDREW P. AVERBACH Counsel for Respondent United States Nuclear Regulatory Commission USCA Case #19-1240 Document #1836428 Filed: 04/02/2020 Page 15 of 15