ML12066A177

Petitioners Motion to Strike Amended Cert 11-1168

ML12066A177
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	03/06/2012
From:	Zoli E, Beling J, Iarrapino A, Kilian C, Roisman A Goodwin Procter, LLP, Conservation Law Foundation, National Legal Scholars Law Firm, PC, State of VT, Dept of Public Service
To:	Croston S NRC/OGC
References
11-1168
Download: ML12066A177 (9)

Text

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