ML12088A085

Fed Respondents Opposition to Motion to Strike No.11-1168 and 11-1177 (Consolidated)

ML12088A085
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	03/15/2012
From:	Croston S, Arbab J, Cordes J NRC/OGC, US Dept of Justice, Environment & Natural Resources Div
To:	US Federal Judiciary, District Court for the District of Columbia
Croston S
References
11-1168, 1363908
Download: ML12088A085 (8)

Text

ORAL ARGUMENT SCHEDULED FOR MAY 9, 2012 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

THE STATE OF VERMONT ) DEPARTMENT OF PUBLIC SERVICE, )

and the NEW ENGLAND COALITION ) )

Petitioners, )

) v.

) Nos. 11-1168

) and 11-1177 UNITED STATES NUCLEAR ) (Consolidated) REGULATORY COMMISSION, and ) the UNITED STATES OF AMERICA )

)

Respondents. )

) FEDERAL RESPONDENTS' OPPOSITION TO PETITIONERS' MOTION TO STRIKE AMENDMENTS TO THE CERTIFIED INDEX OF THE RECORD The Federal Respondents - the Nuclear Regulatory Commission (NRC) and the United States - oppose petition ers' March 5, 2012 moti on to strike all references to four documents from the amended certified index of the record for the above-captioned cases, which the Federal Respondents filed on February 24, 2012. Petitioner s' motion is meritless. 1. Generally, when an NRC rule or order faces judicial challenge, the NRC's Office of the Secretar y prepares the certified in dex of the record for the USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 1 of 8 case by listing items contained in the ad judicatory or rulemaking docket she has compiled during the administrative proceeding. In this case, petitioners' centra l claim in this Court - the NRC's allegedly unlawful failure to obtain a new Clean Water Act § 401 certification from Entergy before relicensing En tergy's Vermont Yankee nuclear power plant - was raised only briefly by petiti oners before the NRC's Atomic Safety Licensing Board, which rejected it on procedural grounds. Petitioners then seemingly dropped the claim. They took no administrative appeal to the Commission. As our brief explai ns (at pp. 21-33), in light of petitioners' failure to exhaust administrative re medies, at the time of th eir lawsuit the agency did not have in hand the same kind of pre-determined and useful record for judicial review as it normally would.

See, e.g., McCarthy v. Madigan , 503 U.S. 140, 145-46 (1992) ("produc[ing] a useful record for subsequent judicial consideration" is one of the key rationales for the exhaustion of remedies rule).

As a result, some documents relevant to the Clean Water Act question were never entered into the NRC's adjudicatory hearing docket, and did not appear among the 759 items listed on the original 121-page certified index prepared by the NRC's Secret ary, which we filed with this Court on July 1, 2011. The NRC's counsel initially (and inadvertently) overlooked this omission when reviewing the draft certified index.

USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 2 of 8

2. After recognizing later that we may have inadvertently omitted some relevant documents from the original certified index of the record, we contacted the other parties by email to ascertain whether there were any pertinent items they believed should be added to the record. Petitioners did not request any additions, but the intervenors suggested a few more documents. On February 17, 2012, staff from this Court's Clerk's office, including a senior staff attorney, advised us by teleph one that the proper procedure in this situation is to file an amended certified index to corr ect all lingering omissions in our initial certified index. After consulting with the parties, we had identified 19 additional documents, so we included them in our amended certified index, which (following the advi ce of the Clerk's office) we then filed in this Court.

Petitioners now oppose the addition of four of the 19 additional documents. Those four documents relate to Vermont Yankee's original state certification under § 401 of the Clean Water Act. 3. Petitioners imply that our filing of an amended certified index was procedurally improper.

See Pet. Motion to Strike at

2. But Rule 16(b) of the Federal Rules of Appellate Procedure, wh ile stating that the parties may supply any omission in the certified index of the record by stipulation, does not rule USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 3 of 8 out other approaches. Here, we followed an alternative path suggested by this Court's Clerk's office.

4. Procedural niceties aside, there is no reason for this Court to strike the four record items that petitioners find objectionable. This Court has held that "any document that might have infl uenced the agency's decision" may be properly considered part of the "record" under Fe deral Rule of Appellate Procedure 16(a) and 28 U.S.C. § 2112(b). See National Courier Assoc. v. Bd. of Gov. of Fed. Res. Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975). See also Pers. Watercraft Indus. Ass'n v. Dep't of Commerce, 48 F.3d 540, 546 n.4 (D.C. Cir.

1995) (the "whole record" co ntains all materials "pertaining to the [challenged] regulation");

Amfac Resorts, LLC v. DOI, 143 F. Supp. 2d 7, 12-13 (D.D.C.

2001) ("First and most basi cally, a complete admini strative record should include all materials that 'might have influenced the agency's decision,' and not merely those on which the agency relied in its final decision") (citations omitted).

Likewise, this Court has explained that"[i]f a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision. . . ." Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (citations omitted).

See also IMS, P.C. v. Alvarez, 129 F.3d 618, 623-24 (D.C.

USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 4 of 8 Cir. 1997) (materials outside the record ar e those that were not available to the agency when it took the acti on being challenged).

5. As petitioners point ou t, the Commission's final licensing order in this case did not address the conti nuing validity of Vermont Yankee's original

§ 401 water-quality certification.

See Pet. Motion to Strike at 3. But that is because petitioners did not properly raise and litigate that issue before the Commission. Contrary to petitioners' apparent belief, the Commission never determined that the original certific ation documents had no potential legal significance, or that they were irrelevant to this case. On the contrary, the orig inal § 401 certification documents were and are available in the NRC's own files and are potentially pertinent to the agency action in this case, as demonstrated by the arguments in the intervenor's brief in this Court (pp. 20-32) and by intervenor's license-renewal application at NRC. See Certified Index #740 (Entergy's License Renewal Application for Vermont Yankee, which references th e original § 401 ce rtification).

There is no reason to strike from the record documents available in agency files and relied on by one of the parties (intervenor) in its application to NRC and in its brief before this Court. Notably, petitioners do not object to 15 of the 19 documents added to the original certified index. Their own brief cites a number of those documents.

USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 5 of 8

6. The Federal Rules of Appellate Procedure requir e the agency to compile the record, and are premised on the presumption that agency recordkeepers, here the NRC Secretary, will be faithful to this task.

See, e.g., Citizens for Alternatives to Radioactive Dumping v. U.S. Dept. of Energy , 485 F.3d 1091, 1097 (10th Cir.

2007) ("Designation of the administrative record, like any established administrative procedur e, is entitled to a presumption of administrative regularity. The court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary.") (internal citation omitted).

See also United States v. Chem. Found., 272 U.S. 1, 14-15 (1926)

("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties");

Starr v. FAA, 589 F.2d 307, 315 (7th Cir. 1979) (the "normal presumption of good faith . . .

must be refuted by well-nigh irrefragable proof").

Here, petitioners have not shown that the four documents added to the amended certified index of the record were irrelevant or unavailable to the agency in this case, because they cannot do so. Instead, they generally allege that some malevolent "desire to distract" the Court, Pet. Motion to Strike at 5, or to unfairly aid the intervenor's arguments motivated the agency's action, rather than our simple desire to ensure that the Court had before it all USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 6 of 8 documents potentially relevant to its review in this case. But petitioners' allegations are based on nothing but unfo unded speculation, and cannot defeat the presumption of good faith attendant to agency record-filing.

Conclusion For the foregoing reasons, this Court should deny petitioners' motion to strike the four identified documents from the certified index of the record.

Respectfully submitted, ____/s/__________________

____/s/_________

______________ JOHN E. ARBAB JOHN F. CORDES Attorney Solicitor U.S. Department of Justice Appellate Section

Environment & Natural Resources ___/s/________________________ Division SEAN D. CROSTON P.O. Box 7415 Attorney Washington, D.C. 20044 U.S.

Nuclear Regulatory 202-514-4046 Commission John.Arbab@usdoj.gov Office of the General Counsel Mail Stop O15 D21 Washington, D.C. 20555 301-415-2585

Sean.Croston@nrc.gov Dated: March 15, 2012

USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 7 of 8 CERTIFICATE OF SERVICE I hereby certify that, on March 15, 2012, a copy of foregoing "FEDERAL RESPONDENTS' OPPOSITION TO PETITIONERS' MOTION TO STRIKE AMENDMENTS TO THE CERTIFIED INDEX OF THE RECORD" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system, and parties may access the fili ng through that system.

/s/ SEAN D. CROSTON USCA Case #11-1168 Document #1363908 Filed: 03/15/2012 Page 8 of 8