ML12181A490

6/26/12 - Vermont Pub Serv V NRC Opinion

ML12181A490
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	06/26/2012
From:	US Federal Judiciary, Court of Appeals, US Federal Judiciary, District Court for the District of Colorado
To:	Beling J, Burianek L M, Davis M D, Kilian C M, Ed Miller, Roisman A Z, Schneiderman E T, Simeone T J, Sipos J J, Underwood B D, Wagner M B, Wright C J NRC/OGC, Riverkeeper, State of NY, Office of the Attorney General, State of VT, Dept of Public Service
Sean Croston
References
11-1168, 1380703
Download: ML12181A490 (20)

Text

United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUITArgued May 9, 2012Decided June 26, 2012 No. 11-1168 V ERMONT D EPARTMENT OF P UBLIC S ERVICE ET AL

., P ETITIONER v.U NITED S TATES OF A MERICA AND N UCLEAR R EGULATORY C OMMISSION , R ESPONDENTS E NTERGY N UCLEAR O PERATIONS , I NC. AND E NTERGY N UCLEAR V ERMONT Y ANKEE , LLC, I NTERVENORS Consolidated with 11-1177On Petition for Review of a Final Order of the U.S. Nuclear Regulatory CommissionElizabeth Miller, pro hac vice, argued the cause for the petitioners. Anthony Z. Roisman , John Beling and ChristopherM. Kilian were on brief. Tricia K. Jedele entered an appearance.Mark D. Davis and Christopher J. Wright were on brief for amici curiae Riverkeeper et al. in support of the petitioners.

Timothy J. Simeone entered an appearance.

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 1 of 20 2Eric T. Schneiderman

, Attorney General, Office of theAttorney General for the State of New York, and Barbara D.

Underwood, Solicitor General, were on brief for amicus curiaeState of New York in support of the petitioners.

John J. Sipos and Lisa M. Burianek, Assistant Attorneys General, and Monica B. Wagner , Assistant Solicitor General, entered appearances.Sean D. Croston, Attorney, United States NuclearRegulatory Commission, argued th e cause for the respondents.

John E. Arbab, Attorney, United States Department of Justice,Stephen G. Burns, General Counsel, United States NuclearRegulatory Commission, and John F. Cordes, Jr., Solicitor, were on brief.Kevin P. Martin argued the cause for intervenors EntergyNuclear Operations, Inc. et al. David R. Lewis and Elise N. Zoli were on brief. Adam J. White was on brief for amicus curiae Energy Future Coalition in support of the respondents.

Before: H ENDERSON , R OGERS and G ARLAND , Circuit Judges.Opinion for the Court filed by Circuit Judge H ENDERSON.K AREN L E C RAFT H ENDERSON , Circuit Judge: The VermontDepartment of Public Service (DPS) and the New England Coalition (NEC) petition for review of a decision of the Nuclear Regulatory Commission (NRC, Commission), issuing to Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy) a renewed license to operate the Vermont Yankee Nuclear Power Station (Vermont Yankee). The petitioners contend the license renewal was unlawful because Entergy failed to furnish a state Water Quality Certification (WQC) which they assert was required under section 401(a)(1) of the Clean Water Act (CWA), 33 U.S.C.

§ 1341(a)(1). We conclude the petitioners waived their WQC USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 2 of 20 3objection because they repeatedly failed to present it directly tothe Commission and thereby failed to exhaust their administrative remedies.

I.The Atomic Energy Act (AEA) authorizes the NRC to issuean initial license to operate a nuclear power plant for a term ofup to 40 years. 42 U.S.C. § 2133(a), (c). Pursuant to this authority, the Atomic Energy Commission (AEC), the NRC's

predecessor, 1 issued a 40-year license to operate VermontYankee on March 21, 1972. Vermont Yankee Nuclear Power Corp.; Notice of Issuance of Facility Operating License, 37 Fed.Reg. 6345 (Mar. 28, 1972). In April 1970, while the licensing proceeding was ongoing, the Congress amended the Federal Water Pollution Control Act, the precursor to the CWA, to add the provisions of the Water Quality Improvement Act, Pub. L.

No.91-224, tit. I, 84 Stat. 91 (1970). Section 21(b) of theFederal Water Pollution Control Act required that any applicant for a federal license or permit to conduct an activity that might"result in any discharge into the navigable waters of the UnitedStates . . . provide a certification from the State in which the discharge originates or will originate . . . that there is reasonableassurance . . . that such activity will be conducted in a manner which will not violate applicable water quality standards."

Id.§ 102, 84 Stat. at 108. Accordingly, because Vermont Yankeeplanned to use water from the Connecticut River to cool its reactor and then discharge the water back into the river, Entergy's predecessor licensee obtained a WQC from the State of Vermont in October 1970 to support its operating license application. In October 1972, after Vermont Yankee's initial 1In 1974, the Congress abolished the AEC and transferred itslicensing and related regulatory functions to the NRC. EnergyReorganization Act of 1974, Pub. L. No.93-438, §§ 104(A), 201(F),88 Stat. 1233, 1237, 1243 (codified at 42 U.S.C. §§ 5814(a), 5841(f)).

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 3 of 20 4operating license issued, the Congress enacted the Federal WaterPollution Control Amendments of 1972 (now the CWA

),incorporating the section 401 WQC requirement as follows:Any applicant for a Federal license or permit toconduct any activity including, but not limited to, the construction or operation of facilities, which may resultin any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the applicable provisions of [33U.S.C. §§ 1311, 1312, 1313, 1316, and 1317]. . . . No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.Pub. L. No.92-500, § 2 (§ 401(a)(1)), 86 Stat. 816, 877-78(1972) (codified at 33 U.S.C. § 1341(a)(1)); Vermont Yankee's1970 WQC "continue[d] in full force and effect" thereafterpursuant to the CWA's savings provision.

Id. § 4, 86 Stat. at 897.An operating licensee may also be required to maintain apermit issued under the "National Pollutant Discharge Elimination System" (NPDES) pursuant to CWA section 402.

Section 402 authorizes the Environmental Protection Agency (EPA) to "issue a permit for the discharge of any pollutant, or combination of pollutants . . . upon condition that such dischargewill meet . . . all applicable requirements under [42 U.S.C. §§]

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 4 of 20 5 1311, 1312, 1316, 1317, 1318, and 1343." 33 U.S.C. § 1342.

2Section 402(b) allows a state to obtain EPA approval toadminister its own NPDES program, 33 U.S.C. § 1342(b), andin 1974, the State of Vermont did just that. Vermont issued Vermont Yankee a NPDES permit in 1978 and has renewed it successively upon expiration or amendment. Most recently the Vermont Agency of Natural Resources (VANR) renewed it fora five-year term in 2001. See In re Entergy Nuclear Vt. Yankee Discharge Permit , 989 A.2d 563, 568-69 (Vt. 2009).

3On January 25, 2006, Entergy filed an application with theNRC for a 20-year renewal of Vermont Yankee's operating license, which was set to expire on March 21, 2012. Included 2"Each permit must set out the specific conditions necessary toensure that the permit holder's discharge of pollution will comply with the water standards mandated by the CWA." Lake Carriers' Ass'n v.

EPA, 652 F.3d 1, 3 (D.C. Cir. 2011) (citing 33 U.S.C. § 1342(a)(2)).

3Although the permit expired by its terms in 2006, becauseEntergy timely filed for renewal on September 30, 2005, VermontYankee has continued to operate under the authority of the 2001 permit pursuant to Vermont law. In re Entergy Nuclear, 989 A.2d at569 n.4 (citing 3 Vt. Stat. Ann. § 814(b) ("When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.")). VANR intends to process the renewal application in summer 2012 after EPA issues a rule addressing effluent limitation standards for cool water intake structures under CWA section 316(b),

33 U.S.C. § 1326(b). Pet'rs' Resp. to Court Req. re: Status of Vt.Yankee Nuclear Power Station Discharge Permit, ex. A (filed May 21, 2012) (March 7, 2012 letter from VANR to Vt. Pub. Serv. Bd.);

see Hydro Res., Inc., 48 N.R.C. 119 (1998).

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 5 of 20 6with the application was an environmental report, as requiredunder 10 C.F.R. § 51.45. In a section titled "Water Quality(401) Certification," the environmental report stated: As reported in the [Final Environmental Statement](1972), the Vermont Water Resources Board provided a water quality certification on October 29, 1970, as amended on November 26, 1971, reflecting its receipt of reasonable assurance that operation of Vermont Yankee will not violate applicable water quality standards. In addition, the current and effective NPDES permit issued by the Vermont Agency of Natural Resources reflects continued compliance with applicable CWA standards. Excerpts of this permit are included in Attachment D. Vermont Yankee Nuclear Power Station, Applicant'sEnvironmental Report, Operating License Renewal Stage

§ 9.2.1, at 9-1 (Jan. 25, 2006) (Environmental Report).

Appended to its application was a table setting out Vermont Yankee's "Environmental Permits and Compliance Status,"

which identified a 2001 section 402 NPDES permit issued by VANR, set to expire on March 31, 2006, but made no mention of any section 401 WQC.

Id. app. E.On March 27, 2006, the NRC published a notice announcing it had accepted the Vermont Yankee license renewalapplication and planned to prepare a site-specific environmental impact statement therefor as a supplement to its Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants (May 1996) (GEIS) pursuant to the National Environmental Policy Act of 1979 (NEPA), 42 U.S.C.

§§ 4321 et seq., and the NRC's NEPA regulations, 10 C.F.R. pt.

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 6 of 20 7 51.4 Notice of Acceptance for Docketing of the Application andNotice of Opportunity for Hearing Regarding Renewal of

Facility Operating License, 71 Fed. Reg. 15,220, 15,220 (Mar.

27, 2006). The notice declared that "any person whose interestmay be affected" by the proceeding and who wished to participate as a party therein should file a "written request for a hearing and a petition for leave to intervene . . . in accordancewith the Commission's 'Rules of Practice for Domestic Licensing Proceedings' in 10 C.F.R. Part 2."

Id. at 15,221. Thenotice further directed that any petition to intervene set forth thepetitioner's interest and "the specific contentions which thepetitioner/requestor seeks to have litigated at the proceeding" pursuant to 5 C.F.R. § 2.309(a).

Id. Four parties, including DPSand NEC, filed timely motions for a hearing or to intervene and an Atomic Safety and Licensing Board (Board) 5 was established to preside over the renewal proceeding.

DPS and NEC filed, respectively, three and six contentionschallenging Entergy's application, only one of which is relevant here. NEC's "Contention 1" asserted that "Entergy's 4The GEIS, initially promulgated in 1996, addresses issues that"are common to all nuclear power plants, or to a sub-class of plants[;

a]s such, the NRC does not analyze [them] afresh with each individual plant operating license application." Massachusetts v. United States

,522 F.3d 115, 120 (1st Cir. 2008);

see Environmental Review forRenewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467 (June 5, 1996). Instead, the Commission addresses only "non-generic issues that require site-specific analysis for each

individual licensing proceeding."

Massachusetts , 522 F.3d at 120.

5"[T]he Commission is authorized to establish one or moreatomic safety and licensing boards, each comprised of three members,

. . . to conduct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize with respect to the granting, suspending, revoking or amending of any

license or authorization . . . ." 42 U.S.C. § 2241(a).

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 7 of 20 8environmental report (ER) failed to 'sufficiently assess[]' theenvironmental impacts of the license renewal, specifically the impacts of increased thermal discharges into the ConnecticutRiver over the 20-year license renewal period." Entergy Nuclear Vt. Yankee, LLC , 64 N.R.C. 131, 175 (Sept. 22, 2006)(alteration in original). NEC contended in particular: Entergy's reliance solely on its NPDES permit is notsufficient because the permit is under appeal and, even if issued, will only be valid for 5 years, (2006-2011),

and thus will not cover the cumulative impacts of thermal discharges over the 20-year period of the license renewal term (2012-2032).

Id. Entergy answered, inter alia, that once it provided a validVermont NPDES permit, "no further analysis" was required.

Id.at 176. In its reply, NEC asserted, for the first time, that Entergy was "also obligated to obtain a state water certification under

section 401 . . . and that Entergy had not done so."

Id. at 177.Entergy moved to strike portions of NEC's reply, including"NEC's new claims regarding 401 certification" which were not"related to the purported bases for the original contention."

Entergy's Mot. to Strike Portions of NEC's Reply 10 (July 10, 2006). Entergy explained that "the allegations concerning Contention 1 in NEC's Petition related solely to whether the Environmental Report had adequately addressed the impacts of a 1° increase in the thermal effluent limitations recently approved in an amendment to the NPDES permit" and neither Contention 1 nor Entergy's response "had anything to do with the need for a section 401 certification," which was "newly alleged."

Id. In reply, NEC stated it was "important to note that§[ ]401 Water Quality Certification is jurisdictional and imposes an independent obligation on En tergy and the NRC, regardlessof whether the need for certification is raised as a contention."

NEC's Opp'n to Entergy's Mot. to Strike Portions of NEC's

Reply 7 (July 20, 2006).

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 8 of 20 9Following oral argument before the Board in August 2006,NEC filed a "Late Contention or, Alternatively, Request for Leave to Amend or File a New Contention" (Late Contention/Req. to Amend) (Aug. 7, 2006), which attempted to add the section 401 objection as a further basis for Contention 1:Further basis demonstrating the inadequacy ofEntergy's amended environmental report is the absence of a CWA § 401 Water Quality Certification. Entergy is on notice that its requested license extension cannot issue without a § 401 Certification. Yet Entergy'samended environmental report makes no mention of

any effort to seek and obtain § 401 Certification. Late Contention/Req. to Amend, at 4-5. After Entergy and NRC staff responded in opposition, NEC filed a reply stating:Based on NEC's prior filings in this matter, Entergyis on notice that its requested license extension cannot issue without a Clean Water Act § 401 certification.

Astonishingly, Entergy's Amendment 6 to its Environmental Report nonetheless makes no mention

of this issue. . . .

1 ________________________

1Additionally, Entergy has an independent obligation toobtain a §[ ]401 certification, and the NRC is jurisdictionally limited to acting in conformity with §[ ]401 requirements. 33 U.S.C. § 1341; S.D. Warren v. State ofMaine, 547 U.S. [370, 373] (2006).NEC's Reply to Entergy & NRC Staff's Answers to NEC's LateContention/Req. to Amend, at 5-6 & n.1 (Aug. 28, 2006).

On September 22, 2006, the Board admitted for hearingseveral of NEC's contentions, including Contention 1, but granted Entergy's motion to strike the "portions of NEC's Replythat relate[d] to certification under 401," "agree[ing] with Entergy that NEC's attempt to introduce an entirely new USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 9 of 20 10argument regarding the alleged need for a section 401certification is not permissible in a reply."

Entergy Nuclear Vt.Yankee, LLC, 64 N.R.C. 131, 182 (Sept. 22, 2006).

6 On October2, 2006, the Board denied NEC's Late Contention/Request for Leave to Amend as moot because "the Board "s[aw] no difference between NEC Contention 1, as admitted, and the proposed amended contention." Mem. and Order, at 6, Entergy Nuclear Vt. Yankee, LLC, Docket No. 50-271-LR (Oct. 30,2006). With regard to the absence of a new section 401 permit, the Board rejected the assertion by its staff and Entergy that

NEC's objection was "too late" but agreed with Entergy that"the need for a CWA § 401 certification is simply irrelevant toNEC's contention that Entergy failed to assess impacts to waterquality."

Id. at 7. The Board explained: "A CWA § 401certification is a document issued by the State certifying that a proposed discharge satisfies the State's water quality standards and criteria. But a CWA § 401 certification is simply an independent statutory requirement, and neither NEPA nor 10

C.F.R. Part 51 incorporates or requires it."

Id. at 7-8.In December 2006, the NRC published a DraftSupplemental Environmental Impact Statement (Draft SEIS).

Generic Envtl. Impact Statement for License Renewals of Nuclear Plants, Supp. 30 (Regarding Vt. Yankee Nuclear PowerPlant) (Dec. 2006) (Draft Report for Comment). An appendix to the Draft SEIS enumerated the required governmental approvals, pursuant to 10 C.F.R. § 51.71, citing Entergy's 2001 NPDES permit but making no mention of a section 401 WQC.

Id. app. E. Both the Draft SEIS text and a separate Federal 6The NRC subsequently reversed the Board's order insofar as itagreed to hear Contention 1 on the ground that Vermont had already addressed effluent limitations in its NPDES permit and the AEA precludes the Commission from "second-guessing the conclusions in NPDES permits or imposing [its] own effluent limitations."

Entergy Nuclear Vt. Yankee, LLC , 65 N.R.C. 371, 376-77 (Apr. 11, 2007).

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 10 of 20 11Register notice published concurrently solicited comments onthe Draft SEIS. The petitioners submitted no responsive comment objecting to the lack of a section 401 WQC. The NRCissued its Final Supplemental Environmental Impact Statement (Final SEIS) in August 2007, again listing the section 402 approval but not mentioning section 401. Again, the petitioners made no response to section 401's absence. The Board held an evidentiary hearing in July 2008 and, onNovember 24, 2008, issued a Partial Initial Decision resolving all but one of the remaining admitted contentions.

EntergyNuclear Vt. Yankee, LLC, 68 N.R.C. 763 (2008). The order stated:With the exception of [two contentions resolved infavor of NEC and DPS and the one unresolved contention] and the opportunity to seek reconsiderationof 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 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. Both of the regulations the Board's decision cited-10 C.F.R. §§ 2.1212 and 2.341-plainly state: "Unless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial review of an agency action."

7 7Regulation 2.1212, titled "Petitions for Commission review ofinitial decisions," states in its entirety:Parties may file petitions for review of an initial decision USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 11 of 20 12On March 10, 2011, the Commission issued a Memorandumand Order affirming a Board rejection of a contention litigatedby NEC (but unrelated to section 401) and purporting to "terminate this proceeding."

Entergy Nuclear Vt. Yankee, L.L.C., Docket No. 50-271-LR, CLI-11-02, 2011 WL 864757,at *8 (Mar. 10, 2011 NRC) (emphasis omitted). Accordingly, on March 21, 2011, the Commission issued a renewed license to operate Vermont Yankee for a twenty-year term. Entergy Nuclear Operations, Inc.; Vermont Yankee Nuclear Power Station; Notice of Issuance of Renewed Facility Operating License No. DPR-28 for an Additional 20-Year Period; Record of Decision, 76 Fed. Reg. 17,162 (Mar. 28, 2011). NEC and DPS petitioned for review and Entergy intervened.

II.The court has jurisdiction under the Hobbs Act, 28 U.S.C.§§ 2341 et seq., to review "all final orders" of the NRC that are"made reviewable by section 2239 of title 42." 28 U.S.C. §§under this subpart in accordance with the procedures set outin § 2.341. Unless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial review of an agency action.10 C.F.R. § 2.1212. Regulation 2.341in turn provides in relevant part:(b)(1) Within fifteen (15) days after service of a full orpartial initial decision by a presiding officer, and within fifteen (15) days after service of any other decision or action by a presiding officer with respect to which a petition for review is authorized by this part, a party may file a petition for review with the Commission on the grounds specified in paragraph (b)(4) of this section. Unless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial review of an agency action.

10 C.F.R. § 2.341(b)(1).

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 12 of 20 132342(4); see Honeywell Int'l, Inc. v. NRC , 628 F.3d 568, 575(D.C. Cir. 2010).

8 We nonetheless decline to exercisejurisdiction because the petitioners failed to exhaust their administrative remedies and accordingly waived their section 401 argument.We have recognized two distinct species of exhaustionrequirements: (1) "non-jurisdictional exhaustion," which is "a judicially created doctrine requiring parties who seek to challenge agency action to exhaust available administrative remedies before bringing their case to court"; and (2)

"jurisdictional exhaustion," which "arises when Congress requires resort to the administrative process as a predicate tojudicial review." Avocados Plus Inc. v. Veneman , 370 F.3d1243, 1247 (D.C. Cir. 2004) (internal quotation marks omitted).

"We presume exhaustion is non-jurisdictional unless 'Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come 8Section 2239 makes "subject to judicial review . . . [a]ny finalorder entered in any proceeding" under the AEA, 42 U.S.C. ch. 23, "for the granting, suspending, revoking, or amending of any license."

42 U.S.C. § 2239(b)(1), (a). Entergy contends the court lacks Hobbs Act jurisdiction here because the petitioners failed to timely petition for review within 60 days following the NRC's March 10, 2011 order, which "resolved all challenges brought by DPS and NEC and terminated the proceeding." Intervenor's Br. 2 (citing EntergyNuclear Vt. Yankee, LLC, CLI-11-02, 2011 WL 864757, at *8);

see 28U.S.C. § 2344 ("Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the courtof appeals wherein venue lies."). The cited order, however, which was unrelated to the petitioners' section 401 objection, is not the "final order" the petitioners claim aggrieved them. Their claimed aggrievement is the absence of a section 401 WQC when the license renewal itself issued ten days later, on March 21, 2011; the petitionsfor review were timely filed within 60 days thereafter, on May 20, 2011.USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 13 of 20 14to a decision.' "

Id. at 1248 (quoting I.A.M. Nat'l Pension FundBenefit Plan C v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C.Cir. 1984)). The language of the Hobbs Act offers no such unequivocal bar.

Cf. Daniels v. Union Pac. R.R. Co., 530 F.3d936, 941 n. 9 (D.C. Cir. 2008) (relying in part on exhaustion's non-jurisdictional presumption in declining to affirm district court's dismissal of Hobbs Act action based on jurisdictional failure to exhaust). Precedent, however, counsels against our reviewing the petitioners' unexhausted section 401 claim. In Sims v. Apfel, the United States Supreme Court observedthat when "an agency's regulations [] require issue exhaustion in administrative appeals[,] . . . courts reviewing agency actionregularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues." 530 U.S. 103, 108 (2000). In Environmentel, LLC v. FCC, relying on Sims , weconcluded the petitioner had waived two issues it urged on appeal-one it had presented to a Federal Communications Commission (FCC) bureau but not to the FCC itself and one it had not raised at all at the administrative level. 661 F.3d 80, 84 (D.C. Cir. 2011). We based our conclusion on an FCC regulation which (1) authorizes a "person aggrieved by any action taken pursuant to delegated authority [to] file an

application requesting review of that action by the [FCC]," (2) requires a party seeking review by the full Commission of a decision by a delegated bureau to "concisely and plainly state the questions presented for review" and (3) provides that the "filing of an application for review shall be a condition precedent to judicial review of any action taken pursuant todelegated authority." 47 C.F.R. § 1.115(a), (b)(1), (k);

see Environmentel, 661 F.3d at 83-84. Under the regulation, wedetermined, "the full FCC must have the opportunity to review all cases and all aspects of those cases before parties may exercise their statutory right to appeal to this Court." 661 F.3dat 84. We find the NRC regulations applicable here are materially indistinguishable from the FCC regulations in USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 14 of 20 15 Environmentel. In combination, 10 C.F.R. §§ 2.341 and 2.1212(1) authorize "a party [to] file a petition for review with the Commission" of an initial decision or action by "the presiding officer"-here the Board; (2) require that the petition contain a"concise statement why in the petitioner's view the decision or action is erroneous" and (3) provide that "[u]nless otherwise authorized by law, a party to an NRC proceeding must file a petition for Commission review before seeking judicial reviewof an agency action." 10 C.F.R. § 2.341(b)(1), (b)(2)(iii),

§ 2.1212. Thus, like the petitioner in Environmentel , thepetitioners here were required under agency regulations to affordthe full Commission an opportunity to pass on the section 401 issue before seeking judicial review. And they had repeated opportunities to do so.They could have petitioned the Commission forinterlocutory review of the Board's denial of their Late Contention/Request to Amend pursuant to 10 C.F.R.

§ 2.341(f)(2). Or they could have filed a new, separatecontention limited to their section 401 objection either immediately after the Board's denial (which advised that, although the objection was not "too late," it involved "an independent statutory requirement" that was "simply irrelevant to [Contention 1]") or upon discovering that neither the Draftnor the Final SEIS mentioned a section 401 WQC, see 10 C.F.R.§ 2.309(c), (f)(2)-and, if the Board rejected the contentions, they could have petitioned the NRC for review. Or they could have submitted a comment for the Commission's review in response to the December 2006 Draft SEIS and the Commission's express solicitation of comment thereon. Or, they could have filed a petition for Commission review following the Board's November 24, 2008 Partial Initial Decision (which omitted any mention of section 401) pursuant to 10 C.F.R. § 2.341(b)(1). Yet, notwithstanding all of theseopportunities to fulfill the exhaustion requirement-and the Board's admonition that "[f]iling a petition for review is USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 15 of 20 16mandatory for a party to exhaust its administrative remediesbefore seeking judicial review[,] 10 C.F.R. § 2.341(b)(1),"

Entergy Nuclear Vt. Yankee, LLC, 68 N.R.C. at 897-thepetitioners sat silent for two and one-half years thereafter, raising their section 401 objection only after the Commissionissued the license renewal in March 2011. In so doing, the petitioners undermined the functions exhaustion serves: "giving agencies the opportunity to correct their own errors, affording parties and courts the benefits of agencies' expertise, and compiling a record adequate for judicial review."

Avocados Plus, 370 F.3d at 1247 (quotation marks and brackets omitted).By failing to exhaust their section 401 argument, they waived

judicial consideration thereof.

See Environmentel , 661 F.3d at83 ("Environmentel waived its right to raise the ex parte andpublic notice issues because it failed to raise those issues beforethe full Commission . . . .").The petitioners contend it would have been futile to raisethe section 401 issue before the Commission, which "has clearly held that the issue of whether an applicant possesses a requiredCWA authorization is not appropriate for consideration as a contention in NRC licensing proceedings." Reply Br. 19-20.

None of the decisions they cite, however, supports their contention the Commission would have refused to decide the issue here, namely, whether an applicant for license renewal has obtained the requisite section 401 WQC before a license issues.Rather, in each of the decisions, the Commission (or the Board)declined either to undertake to evaluate for itself whether a particular permit was needed, to second guess the EPA or stateagency's decision to issue an environmental permit or to postpone conducting an application proceeding until a required permit or certification had been obtained.

9 As the petitioners 9 See Hydro Res., Inc., 48 N.R.C. 119, 120 (1998) ("Whethernon-NRC permits are required is the responsibility of bodies that issue USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 16 of 20 17acknowledge, the NRC's obligation to insure that operatorsobtain a § 401 WQC is purely "ministerial"-it does not require the NRC "to adjudicate substantive compliance issues under

§ 401 or state law, including the state law determinations of whether water quality standards will be met." Pet'rs' Br. 23.

There is no reason to believe the NRC would have refused to carry out its obligation to ensure compliance with section 401'sWQC requirement.

10 Cf. Commonwealth of Kentucky ex rel.such permits . . . ."); Va. Elec. & Power Co., 68 N.R.C. 294, 329(2008) ("evaluat[ing] whether [cooling unit] will comply with CWA or state and local permitting requirements" was "outside the scope of th[e] proceeding"); Dominion Nuclear Conn. Inc., 67 N.R.C. 421, 447& n.151 (2008) (whether applicant "has a valid NPDES permit is outside the scope of this [Board] proceeding" (citing Dominion Nuclear Conn., Inc., 60 N.R.C. 81, 92-93 (2004) ("While 10 C.F.R.§ 51.45(d) requires an applicant seeking a license renewal to 'list all Federal permits, licenses, approvals, and other entitlements whichmust be obtained in connection with the proposed action,' it does not impose a requirement that the applicant actually possess such permits at the time of application.") (emphasis added))); Pub. Serv. Co. of N.H., 2 N.R.C. 693, 693 (1975) (Board declined to stay NRCproceeding pending outcome of EPA review of its previous determinations, noting "Board, in its discretion, should proceed simultaneously with EPA so that each will reach its conclusions or decision in due course and with all reasonable dispatch"); Wis. Elec.

Power Co., 8 A.E.C. 928, 930 (1974) (denying request to delay NRCproceeding as "premature" because state environmental agency had not yet issued section 401 WQC, noting "[a]s a general rule it is the practice of the Commission to pursue its administrative procedures while other state and local proceedings are under way").

10Indeed, the Commission took the position in its GEIS that thesection 401 WQC requirement may be satisfied if an applicant has a NPDES permit because "issuance of an NPDES permit by a state water quality agency implies certification under Section 401." GEIS

§ 4.2.1.1, at 4-4. The NRC asserts this is the rationale it would have USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 17 of 20 18Stephens v. NRC, 626 F.2d 995 (D.C. Cir. 1980) (upholdingNRC construction work authorization based on Indiana WQC and NRC's determination Ohio WQC was not needed because section 401(a)(1) discharge originated in Indiana rather than

Ohio).The petitioners further assert their failure to exhaust shouldbe excused under Avocados Plus. There, we noted a court "may,in its discretion, excuse exhaustion if 'the litigant's interests in immediate judicial review outweigh the government's interestsin the efficiency or administrative autonomy that the exhaustion doctrine is designed to further.' " 370 F.3d at 1247-48 (quoting McCarthy v. Madigan, 503 U.S. 140, 146 (1992)). We find nosuch exculpatory circumstances here. The petitioners profferproffered had the petitioners sought review of the Board's decision asrequired. Appellee's Br. 33-39. In addition, VANR suggested in both its scoping comments and its Draft SEIS comments that a section 402 NPDES permit is sufficient to allay cooling system concerns.

SeeVANR Memo. to NRC 1 (June 23, 2006) ("As we understand it, theseissues are associated with intake structures and thermal dischargeissues which require a NPDES permit. The 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."); VANR Memo. to NRC 5-6 (Mar. 8, 2007) ("[B]ecause the [CWA] requires that the discharge and the cooling water operations and structures comply with stringentstandards that ensure the protection and propagation of a balanced indigenous community of shellfish, fish and wildlife[,] VANR concurswith the NRC conclusion that the impacts of the thermal discharge andfish impingement and entrainment [are] likely to be small. This is true, in large part, because the process associated with the NPDESpermit is iterative in that it entails ongoing monitoring and review, and allows VANR to adjust the permit conditions regarding the cooling system operations and thermal regime. . . . The applicable state and federal standards under the CWA are protective of water quality and the environment and must be renewed every five years.").

USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 18 of 20 19three reasons why "the instant dispute is the 'occasional[]' casein which 'exhaustion will not fulfill these ends' and is unnecessary": (1) there are " 'no facts in dispute,' . . . regardingthe gravamen of Petitioners' §401 claim"; (2) " 'the disputed issue[s]' in this case are purely legal ones, and thus lie 'outsidethe agency's expertise' "; and (3) the petitioners "gave NRC numerous 'opportunit[ies] to correct [its] own errors' . . . bytimely presenting the undisputed fact that, on this record,

[Entergy] did not possess a §401 certification and that no license could be issued without such a certification." Reply Br. 25-28 (quoting Avocados Plus, 370 F.3d at 1247). Addressing the lastpoint first, the petitioners did not at any point in the administrative proceedings squarely present the section 401 issue to the Commission itself, as the regulations require-only to the Board.

See 10 C.F.R. §§ 2.1212, 2.341(b)(1). Moreover,while it is true that the facts are not in dispute, the Commissionwas deprived of the opportunity to advance and explain its position that Entergy's NPDES permit may "impl[y]"

certification under section 401, see supra note 10, or to considerEntergy's claim that the 1970 WQC put it in compliance with the section 401 requirement, see Environmental Report § 9.2.1, supra p. 6. Under these circumstances, we do not find that anyinterest of the dilatory petitioners outweighs the Commission's interest in efficiently administering its own statutory responsibilities and, accordingly, decline to exercise our discretion to excuse the failure to exhaust.

See Woodford v.

Ngo, 548 U.S. 81, 90 2006) ("[A]s a general rule[,] courtsshould not topple over administrative decisions unless the administrative body not only has erred, but has erred againstobjection made at the time appropriate under its practice

."(emphasis in original; quotation marks omitted)); Malladi Drugs& Pharm., Ltd. v. Tandy , 552 F.3d 885, 891, 384 (D.C. Cir.2009) ("Consistent with the concerns underlying exhaustion and waiver of claims, [appellants'] failure 'to pursue normal administrative remedies' here allowed it to 'side-step[ ] a USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 19 of 20 20corrective process which might have cured or rendered moot thevery defect later complained of in court.' " (quoting McGee v.United States, 402 U.S. 479, 483 (1971)) (first alteration added)). For the foregoing reasons, we conclude that the petitionersfailed to exhaust their administrative remedies before the Commission and thereby waived the right to raise their section 401 objection on judicial review. Accordingly, we deny their petitions for review.

So ordered. USCA Case #11-1168 Document #1380703 Filed: 06/26/2012 Page 20 of 20