ML12152A080

From kanterella
Revision as of 17:48, 28 June 2019 by StriderTol (talk | contribs) (Created page by program invented by StriderTol)
Jump to navigation Jump to search
Final Respondents Brief
ML12152A080
Person / Time
Site: Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date: 03/19/2012
From: Arbab J, Stephen Burns, Cordes J, Croston S, Moreno I
NRC/OGC, US Dept of Justice, Environment & Natural Resources Div, US Dept of Justice, Office of the Attorney General
To:
US Federal Judiciary, District Court for the District of Columbia
Croston, Sean
References
USCA Case #11-1168, 11-1168, 136243
Download: ML12152A080 (78)
v • d • e


Text

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

_____________

Nos. 11-1168 & 11-1177, consolidated

_____________

VERMONT DEPARTMENT OF PUBLIC SERVICE; NEW ENGLAND COALITION, Petitioners, v. U.S. NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Federal Respondents.

___________________

ON PETITION FOR REVIEW OF A FINAL ORDER OF THE U.S. NUCLEAR REGULATORY COMMISSION

___________________

FINAL BRIEF FOR THE FEDERAL RESPONDENTS

______________

IGNACIA S. MORENO Assistant Attorney General

JOHN E. ARBAB Attorney Appellate Section United States Department of Justice Environment & Natural Resources

Division P.O. Box 23795, L'Enfant Plaza Station Washington, D.C. 20026-3795 (202) 514-4046 STEPHEN G. BURNS General Counsel

JOHN F. CORDES, JR.

Solicitor

SEAN D. CROSTON Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (301) 415-2585 March 19, 2012 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 1 of 78 i 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 )

REGULATORY COMMISSION and )

THE UNITED STATES OF AMERICA ) ) Respondents. )

) CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Counsel for the United States Nu clear Regulatory Commission (NRC) certifies the following with respect to the parties, ru lings, and related cases.

A. Parties The Vermont Department of Public Service is the petitioner in Case No. 11-1168, and the New England Coalition is the petitioner in Case No. 11-1177.

NRC and the United States of America are the respondents. Entergy Nuclear Operations, Inc. and Entergy Nuclear Vermont Yankee, LLC ("Entergy") are USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 2 of 78 ii Intervenors in both cases, which have been consolidated. Riverkeeper, Inc., Scenic Hudson, Inc. and New York State are amici on the side of petitioners, while Energy Future Coalition is an amicus on the side of respondents.

B. Rulings Under Review Petitioners seek review of the NRC's final order granting Renewed Operating Facility License No. DPR-28 for the Vermon t Yankee Nuclear Power Station on March 21, 2011. See 76 Fed. Reg. 17,162 (March 28, 2011).

C. Related Cases The NRC license renewal order on review was never previously before this Court or any other court.

Respectfully submitted, /s/___________________________

Sean D. Croston

Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

March 19, 2012 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 3 of 78 iii TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i TABLE OF CONTENTS ................................................................................ iii TABLE OF AUTHORITIES

........................................................................... iv GLOSSARY .................................................................................................. iv JURISDICTIONAL STATEMENT ................................................................. 1 ISSUES PRESENTED ................................................................................... 2 STATEMENT OF THE CASE ........................................................................ 3 STATUTORY AND REGULATORY BACKGROUND ..................................... 6 STATEMENT OF THE FACTS .................................................................... 13

SUMMARY

OF ARGUMENT ...................................................................... 17 ARGUMENT ............................................................................................... 20 Standard of Review ..................................................................................... 20 I. The Petitions for Review must be Dismissed because Petitioners Failed to properly Exhaust their Administrative Remedies before Seeking Judicial Review. ............... 21 II. Petitioners have not Controverted NRC's longstanding Position with respect to Satisfying CWA Requirements through § 402 NPDES Permits ........................... 33 CONCLUSION ............................................................................................ 40 CERTIFICATE OF LENGTH OF BRIEF ....................................................... 42 CERTIFICATE OF SERVICE ....................................................................... 43 ADDENDUM OF STATUTES AND REGULATIONS ................................... 45

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 4 of 78 iv TABLE OF AUTHORITIES (Authorities upon which we chiefly rely are marked with asterisks.)

Cases 21st Century Telesis Joint Venture v. FCC, 318 F.3d 192 (D.C. Cir. 2003) .......... 30 Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) ....................... 35 Alcoa Power Generating, Inc. v. FERC , 643 F.3d 963 (D.C. Cir. 2011) .............. 21 Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011) .......................................... 20 *Ass'n of Flight Attendants-CWA, AFL-CIO v. Chao, 493 F.3d 155 (D.C. Cir. 2007) .................................................................................. 22, 23 Baptist Mem. Hosp. - Golden Triangle v. Sebelius, 566 F.3d 226 (D.C. Cir. 2009) ....................................................................................... 39 Benoit v. USDA, 608 F.3d 17 (D.C. Cir. 2010) ............................................... 23 Boivin v. U.S. Airways, Inc., 446 F.3d 148 (D.C. Cir. 2006) ............................. 22 Cape Cod Hosp. v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011) .............................. 23 Caribbean Shippers Ass'n v. Surf. Transp. Bd

., 145 F.3d 1362 (D.C. Cir. 1998) .. 26 City of Santa Clarita v. DOI, 249 Fed. Appx. 502 (9 th Cir. 2007) ..................... 29 City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) ................................... 34 Communication Workers of America v. AT&T, 40 F.3d 426 (D.C. Cir. 1994) ..... 24 Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) ............................................... 39 *Entergy Nuclear Vermont Yankee, LLC, 68 NRC 763 (2008) ...................... 15, 17 *Entergy Nuclear Vermont Yankee, LLC , CLI-07-16, 65 NRC 371

(2007).. .......................................................................................... 15, 17, 29 *Entergy Nuclear Vermont Yankee, LLC, CLI-10-17, 72 NRC__,

2010 WL 2753783 (July 8, 2010) .......................................................... 15, 17 *Entergy Nuclear Vermont Yankee, LLC , CLI-11-02, 73 NRC __,

2011 WL 864757 (March 10, 2011) .................................................. 5, 15, 17 *Entergy Nuclear Vermont Yankee, LLC, LBP-06-20, 64 NRC 131 (2006) ..................................................................................... 3, 4, 13-15, 31 *Entergy Nuclear Vermont Yankee, LLC , Memorandum and Order (October 30, 2006) ........................................................................... 5, 16, 30 Entergy Servs. v. FERC, 319 F.3d 536 (D.C.

Cir. 2003) ................................... 39 Gage v. AEC, 479 F.2d 1214 (D.C. Cir. 1973) ................................................ 22 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 5 of 78 v Hettinga v. United States, 560 F.3d 498 (D.C. Cir. 2009) ................................. 24 Hydro Resources, Inc., 50 NRC 3 (1999) ......................................................... 29 Jackson County v. FERC, 589 F.3d 1284 (D.C. Cir. 2009) ............................... 38 Malladi Drugs & Pharms., Ltd. v. Tandy , 552 F.3d 885 (D.C. Cir. 2009) ........... 24 Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008) ............................. 11 McCarthy v. Madigan, 503 U.S. 140 (1992) .................................................... 23 McKinley v. Bd. of Governors of the Fed. Reserve Sys

., 647 F.3d 331 (D.C. Cir. 2011) ....................................................................................... 37 Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

41 (1938) ............................... 21 N.J. Envtl. Fed'n v. NRC, 645 F.3d 220 (3d Cir. 2011) .................................... 10 Nat'l Ass'n of Home Builders v. Defenders of Wildlife , 551 U.S. 644 (2007) ........... 38 Nat'l Petrochemical & Refiners Ass'n v. EPA, 630 F.3d 145 (D.C. Cir. 2010) ...... 25 Natural Resources Defense Council

v. NRC, 666 F.2d 595 (D.C. Cir. 1981) ........ 28 Natural Resources Defense Council, Inc. v. Kempthorne, 525 F.Supp.2d 115 (D.D.C. 2007) .......................................................................................... 29 Natural Resources Defense Council, Inc. v. NRC, 680 F.2d 810 (D.C. Cir. 1982) ... 1 New York v. NRC , 589 F.3d 551 (2d Cir. 2009) .............................................. 11 North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997) ................................ 32 Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562 (D.C. Cir. 2007) ...................... 1 Pacific Gas & Elec. Co., 68 NRC 509 (2008) .................................................... 29 PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786 (D.C. Cir. 2004) .......................... 38
  • Private Fuel Storage, LBP-98-7, 47 NRC 142 (1998) .................................. 9, 29 Qwest Corp. v. FCC , 482 F.3d 471 (D.C. Cir. 2007) ........................................ 24 S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370 (2006) .................... 36
  • Sims v. Apfel, 530 U.S. 103 (2000). ......................................................... 20, 23 South Texas Project Nuclear Operating Company, CLI-10-16, 71 NRC__,

2010 WL 2505256 (June 17, 2010) .............................................................. 9 United States v. L.A. Tucker Truck Lines , 344 U.S. 33 (1952) ............................ 23 USEC, Inc., 63 NRC 433 (2006) ................................................................... 29 Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council , 435 U.S. 519 (1978) ....................................................................................................... 35 Wisconsin Pub. Power, Inc. v. FERC , 493 F.3d 239 (D.C. Cir. 2007) ................ 35

  • Woodford v. Ngo, 548 U.S. 81 (2006) .......................................................

24, 27 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 6 of 78 vi Statutes 28 U.S.C. § 2342 ........................................................................................... 1 28 U.S.C. § 2344 ..................................................................................... 1, 22 3 V.S.A. § 814 ............................................................................................. 14 *33 U.S.C. § 1341 .............................. 2, 4-7, 12-17, 19-21, 27, 28, 30, 32-38, 40 *33 U.S.C. § 1342 ....................................... 2, 7, 8, 12, 16, 19, 20, 32, 34-38, 40 42 U.S.C. § 2133 .................................................................................... 10, 13 *42 U.S.C. § 2239 ............................................................................... 1, 21, 31 42 U.S.C. § 2241 ......................................................................................... 31 42 U.S.C. § 4332 ......................................................................................... 11 *5 U.S.C. § 706 ...................................................................................... 20, 37 Regulations 10 C.F.R. § 2.1212 ...................................................................................... 27 *10 C.F.R. § 2.309

.....................................................................8, 9, 17, 26, 27 *10 C.F.R. § 2.341 ............................................................................ 10, 22, 27 10 C.F.R. § 51.20 ........................................................................................ 11 *10 C.F.R. § 51.45 ........................................................................ 8, 14, 29, 30 10 C.F.R. § 51.71 .......................................................................................... 9 10 C.F.R. § 54.23 ........................................................................................ 14 10 C.F.R. § 54.27 ........................................................................................ 10 10 C.F.R. § 54.31 ........................................................................................ 10 Other Authorities

  • 1 NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plan ts" (1996) ................................................ 12, 19, 35 Federal Register Notices 61 Fed. Reg. 28,467 (June 5, 1996) .............................................................. 12 71 Fed. Reg. 15,220 (M ar. 27, 2006) .......................................................... 3, 8 71 Fed. Reg. 76,706 (D ec. 21, 2006) ....................................................... 12, 16 72 Fed. Reg. 44,186 (Aug. 7, 2007) ......................................................... 12, 17 76 Fed. Reg. 17,162 (Mar. 28, 2011) ........................................................ 5, 17 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 7 of 78 vii GLOSSARY AEC Atomic Energy Commission Board Atomic Safety and Licensing Board (NRC)

CWA Clean Water Act Entergy Entergy Nuclear Operations, Inc. and Entergy Nuclear Vermont Yankee, LLC GEIS Generic Environmental Impact Statement NEC New England Coalition

NEPA National Environmental Policy Act NPDES National Pollutant Discharge Elimination System NRC Nuclear Regulatory Commission

SEIS Supplemental Environmental Impact Statement VANR Vermont Agency of Natural Resources

Vermont Vermont Department of Public Service Vermont Yankee Vermont Ya nkee Nuclear Power Station USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 8 of 78 1 JURISDICTIONAL STATEMENT This Court has jurisdiction under the Hobbs Act, 28 U.S.C. § 2341 et seq., to review the Nuclear Regulatory Commission's (NRC) order granting a renewed operating license for the Vermont Yankee Nuclear Power Station (Vermont Yankee). Under 28 U.S.C. § 2342, the courts of appeals have exclusive jurisdiction over agency actions made reviewable by 42 U.S.C. § 2239(b), and § 2239(b) in turn makes ag ency actions specified in § 2239(a) reviewable. These actions include final or ders entered in proceedings to grant a license. See, e.g., Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562 (D.C. Cir.

2007); Natural Resources Defense Council, Inc. v. NRC , 680 F.2d 810, 815 (D.C.

Cir. 1982). The Hobbs Act allows parties 60 days from a reviewable final order to file a petition for review.

See 28 U.S.C. § 2344. Petition ers filed for review in this Court on May 20, 2011-60 days after NRC's March 21, 2011 final order granting Vermont Yankee's renewed operating license. Their petitions were therefore timely under the Hobbs Act.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 9 of 78 2 ISSUES PRESENTED

1. Exhaustion of Administrative Remedies. NRC's hearing tribunal, the Atomic Safety and Licensing Board, received no admissible contention from petitioners or anyone else raising a Clean Water Act (CWA) challenge to the issuance of Vermont Yankee's renewed operating license. Nor did petition ers or anyone else raise a CWA issue of any kind before the Commi ssion. Thus, neither the Board nor the Commission addressed the merits of petitioners' CWA concerns in the license-renewal proceeding. Were petitioners required to exhaust available administrative remedies at NRC regarding their CWA grievance before filing suit on that ground in this Court?
2. Satisfaction of Clean Water Act Requirements. Petitioners' opening brief argues that Vermont Yankee lacks a water-quality certification required by § 401 of the CWA. Vermont Yankee has a valid "NPDES" permit under § 402 of the CWA, and NRC's Generic Environmental Impact Statement fo r License Renewal (GEIS) states that the water-quality requirements of §§ 401 and 402 of the CWA are often coextensive. Petitioners nowh ere have challenged the statement in the GEIS or argued that it does no t apply in this particular case. If USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 10 of 78 3 this Court reaches the merits, did NRC act lawfully, with respect to the CWA, in renewing Vermon t Yankee's operating license?

STATEMENT OF THE CASE Vermont Yankee Nuclear Power Statio n (Vermont Yankee) is located five miles south of Brattleboro, Ve rmont. In 1972, th e Atomic Energy Commission issued Vermont Yankee's initial operating license, which would expire after 40 years (in March 2012). Therefore, on January 25, 2006, Ente rgy submitted an application for a 20-year renewal of Vermont Yankee's operating license, and NRC published a notice of an opportunity for an NRC hearing shortly thereafter.

See 71 Fed. Reg. 15,220 (Mar. 27, 2006), Record Appendix ("RA") 46. The notice required any person who wished to participate as a party to file a petition for leave to intervene, stating specific contentions that the petitioner sought to litigate at a hearing before the NRC's Atomic Safety and Licensing Board (Board).

Id. at RA47. The Vermont Department of Public Service (Vermo nt) and the New England Coalition (NEC), among others, brought several challenges to Entergy's license renewal application before the Board. Only NEC USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 11 of 78 4 "Contention 1" discussed water-quality issues of any kind.

See Entergy Nuclear Vermont Yankee, LLC , LBP-06-20, 64 NRC 131 (2006

)(Board decision), RA302.

As originally submitted, Contention 1 alleged that the environmental report submitted as part of Entergy' s license application did not properly consider the environmental effects of Vermont Yankee's continued thermal discharges into the Conne cticut River under the National Environmental Policy Act (NEPA).

See RA324. Entergy opposed Contention 1, arguing that it should not be admitted for an evidentiary hearing. In its reply, NEC added a claim that Entergy had not complied with

§ 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, because it had not obtained a fresh § 401 wate r quality certification in connection with license renewal. See id.; NEC's Reply to Entergy and NRC Staff Answers to Petition for Leave to Intervene, Request for Hearing, and Contentions at 6 & 14 (June 30, 2006), RA69, RA77. Entergy successfully mo ved to strike petitioners' § 401 argument-raised for the first time in NEC's reply-as untimely and outside the scope of NEC's orig inal NEPA contention.

See Entergy Nuclear Vermont Yankee, LLC, LBP-06-20, 64 NRC 131, 182 (2006), RA328.

When NEC subsequently filed a motion to amend its NEPA-based Contention 1 to include the § 401 issue, Ente rgy asserted that "Whe ther a USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 12 of 78 5 § 401 certification is required is - simply irrelevant to NEC' s contention that Entergy failed to assess impacts to water quality. Further, 401 certification is addressed in another section of the a pplication (ER § 9.2.

1), which NEC has never challenged-." See Entergy's Answer to New England Coalition's Late Contention at 7 (August 17, 2006), RA241.

Although the Board found that NEC's § 401 claim was timely, it accepted Entergy's argument that § 401 compliance was irrelevant to the NEPA bases underlying NEC's Contention 1, and thus denied NEC's motion to amend Contention 1 to add that claim.

See Entergy Nuclear Vermont Yankee, LLC, Memorandum and Order (October 30, 2006) (unpublished Board order), RA 435-436. Neither NEC nor Vermont sought Commission review of the Board's procedural decision or attempted to submit a separate, late-filed contention alleging a § 401 violation.

Almost five years later, after reso lving other contentions filed by NEC and accepted for review by the Boar d, NRC concluded its adjudicatory consideration of Entergy's application and granted a renewed operating license for Vermont Yankee.

See 76 Fed. Reg. 17,162 (Mar ch 28, 2011), RA903; Entergy Nuclear Vermont Yankee, LLC, CLI-11-02, 73 NRC __, 2011 WL 864757 (March 10, 2011), RA880.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 13 of 78 6 Vermont and NEC then filed suit in this Court-making none of the arguments they had litigated to a conclusion on the merits at NRC, and claiming only that NRC erred by granting the license without requiring Entergy to first obtain another CWA § 401 certification.

STATUTORY AND REGULATORY BACKGROUND

1. Clean Water Act Like most nuclear power plants, Vermont Yankee sits near a large body of water, the Connecticut River. Plant operators remo ve water from the river, use it to cool the reactor, and then return it to the river. Vermont Yankee must ensure that this "discharge" complies with applicable water-quality laws. In particular, the CWA is a source of many such water-quality requirements. Under § 401(a)(1) of the CWA, applican ts for federal licenses or permits to conduct any activity that may result in any discharge to navigable waters must "provide the licensing agency . . . a certification from the State in which the discharge . . . will originate." 33 U.S.C. § 1341(a). That state certification must determine that an applicant's proposed discharge wi ll comply with the relevant provisions of CWA §§ 301, 302 , 303 (which is also incorporated by reference in § 301), 306, and 307, as well as with the state's own water-quality standards and "any other appropriate water quality requirements," which USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 14 of 78 7 essentially become binding license co nditions for the federal licensee.

See 33 U.S.C. §§ 1341(a), (d). In addition, § 401(a)(1) declares that "[n]o license . . . shall be granted until the certific ation required by this section has been obtained."

Id. Section 401 also contains certain notification requirements.

See 33 U.S.C. §§ 1341(b). In addition, it provides that, unless a state objects on specified grounds, a water-quality certif ication obtained "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." 33 U.S.C. § 1341(a)(3).

A separate provision of the CWA, § 402, authorizes EPA to issue discharge permits under the "National Pollutant Discharge Elimination System" (NPDES). 33 U.S.C. § 1342(a). NPDES permits issued under § 402 impose limits, conditions, and monitoring requirements on ef fluent discharges.

Like § 401 certifications, NPDES permits require compliance with CWA §§ 301, 302, 303 (through incorporation by reference in § 301), 306, and 307, and relevant state water-quality standards (also through incorporation in § 301). See 33 U.S.C. §§ 1342(a)(1), (b)(1).

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 15 of 78 8 Section 402 also has provisions allowing states to take over NPDES permitting authority from EP A, as Vermont did in 1974.

See 33 U.S.C.

§ 1342(b). Unlike § 401 certifications, wh ich have no stat utory expiration dates, state-issued NPDES permits are issued "for fixed terms not to exceed five years." 33 U.S.C. § 1342(b)(1)(B).

2. NRC's Intervention and Hearing Regulations When NRC docketed Entergy's a pplication for Vermont Yankee's renewed operating license, the agency indicated that its general standards for intervention at 10 C.F.R. § 2.309 woul d apply to any subsequent hearing.

See 71 Fed. Reg. 15,221 (Mar. 27, 2006), RA47.

Those standards allow prospective intervenors sixty days to file challenges to an application, known in NRC parlance as "contentions," that must in clude "a specific statement of the issue of law or fact to be raised or controverted," and "a brief explanation of the bases of each contention."

Id., citing § 2.309(f). NRC regulations require that a licens e applicant's environmental report (which accompanies an application) contain a discussion of all applicable permits, "including . . . water pollution limitations or requir ements." 10 C.F.R.

§ 51.45(d). Likewise, NRC regulations mandate that the agency's draft environmental impact statem ent for a renewed operating license must list the USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 16 of 78 9 permits and approvals required for renewal.

See 10 C.F.R. § 51.71(c). And NRC's intervention standards provide that errors or omissions in an applicant's environmental report or th e agency's draft or final environmental impact statement are appropri ate grounds for a contention.

See 10 C.F.R.

§ 2.309(f)(2);

Private Fuel Storage , LBP-98-7, 47 NRC 142, 197-98 (1998) (admitting for hearing properly-filed contentions under 10 C.F.R. § 51.45(d) regarding proof of compliance with the CWA). In addition, NRC's procedural re gulations provide intervenors the opportunity to submit late-filed contenti ons or to reopen closed records under certain limited circumstances. See 10 C.F.R. §§ 2.309(c), (f)(2).

If the presiding officer at a licensing hearing (g enerally a three-judge panel of the NRC's Atomic Safety and Licensing Board) rejects some contentions as inadmissible but admits others, no immediate "appeal" lies as such, but at the end of the Board hearing process a party may challenge the merits result on the admitted contentions and the earlier, interlocutory, decision not to admit certain contentions.

See, e.g., South Texas Project Nuclear Operating Company, CLI-10-16, 71 NRC__, 2010 WL 2505256 (June 17, 2010).

NRC's regulations specifically provide a vehicle for such appeals-a petition USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 17 of 78 10 for review under 10 C.F.R. § 2.341, which must be filed within fifteen days of the Board's final merits decision.

All petitions for review "must contain" summaries of "the matters of fact or law" at issue, and mu st show how these matters "were previously raised before the presiding officer" at the hearing or "could not have been raised." 10 C.F.R. § 2.341(b)(2). As noted above, petitions for review may also challenge decisions by a presiding officer not to admit part icular contentions for hearing. Finally, the same regulati on mandates that parties "must file a petition for Commission review before seeking judicial review of an agency action." 10 C.F.R.

§ 2.341(b)(1).

3. NRC License-Renewal Reviews Under 42 U.S.C. § 2133(c), a commercial nuclear power plant may be initially licensed for a term not to ex ceed 40 years. A license may be renewed upon expiration.

Id.; 10 C.F.R. § 54.31(b). Requ irements and standards for license renewal are contained in 10 C.F.R. Part 54. As the Third Circuit recently explained, the license rene wal process focuses on aging issues. See N.J. Envtl. Fed'n v. NRC , 645 F.3d 220, 224 (3d Cir. 2011). NRC offers an opportunity for anyone whose interest may be affected by renewal of the operating license to request a hearing.

See 10 C.F.R. § 54.27.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 18 of 78 11 In addition, under the National Environmental Policy Act (NEPA), each federal agency must prepare an Enviro nmental Impact Statement (EIS) before taking a major action that significantly affects th e quality of the "human environment." 42 U.S.C. § 4332(2)(C). The renewal of a nuclear power plant's operating license requires an EIS under NRC regulations.

See 10 C.F.R.

§ 51.20(b)(2).

The EIS required for license renewal at nuclear power plants covers both generic and plant-specific environmen tal impacts. As the Second Circuit explained, "Category I impacts" "are common to all nuclear power plants" and do not require plant-specific mitigation, while "Category II impacts require site-by-site evaluation. Since Category I impacts are common to each license renewal, the N RC has produced a Generic Environmental Impact Statement (GEIS) that applie s to these common issues."

See New York v. NRC , 589 F.3d 551, 553 (2d Ci

r. 2009), citing Massachusetts v. United States , 522 F.3d 115, 120 (1st Cir. 2008). "The GEIS, combined with a site-specific EIS, constitutes the complete EIS required by NEPA for the major federal action of a plant's license renewal."

Id. NRC issued the GEIS for license renewal in 1996, after a full USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 19 of 78 12 notice-and-comment process.

See Environmental Review for Renewal of Nuclear Power Plant Operating Licenses , 61 Fed. Reg. 28,467 (June 5, 1996). As relevant to this case, the 1996 GEIS says that "[u]nder Section 401 of the CWA (33 USC 1341), an applicant for a federal license or permit (the utility in this case) must obtain a state water quality certification."

See 1 NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" at § 4.2.

1.1 (1996), RA43. The GEIS adds that "issuance of an NPDES permit by a stat e water quality agency [under Section 402] implies certification under Section 401."

Id. Vermont submitted a lengthy set of comments on the draft GEIS, bu t did not address the above statements.

In December 2006, NRC also published a draft supplemental (site-specific) environmental impact statement (SEIS) for Vermont Yankee and requested comments.

See 71 Fed. Reg. 76,706 (Dec. 21, 2006), RA449. Appendix E of the draft SEIS listed the permits and approvals that NRC believed were required for license rene wal. RA472. The list included a § 402 (NPDES) permit, but not a new § 401 certification.

Id. Likewise, NRC's final SEIS did not identify any need for a new § 401 certification. See 72 Fed. Reg.

44,186 (Aug. 7, 2007), RA484, RA766. Pe titioners did not comment on these lists. USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 20 of 78 13 STATEMENT OF THE FACTS In December 1967, NRC's predecesso r, the Atomic Energy Commission (AEC), issued an initial construction permit for Vermont Yankee. See RA35. By its terms, that initial permit expired on De cember 31, 1971. See Disputed Record Appendix ("DRA") 4. In April 1970, during Vermont Yankee's construction, the CWA became law. Fo ur months later, Vermont Yankee's owners applied for a § 401 certificatio n, which Vermont granted in October 1970. See Letter from John A. Ritsher to AEC (Nov. 13, 1970) (enclosing Vermont water-quality certificate), DRA1-2. In December 1971, the AEC renewed the construction permit for one year. See DRA3-4. Soon thereafter, the facility's construction ended, and th e AEC then issued an initial operating license for Vermont Yankee on March 21, 1972. Under the Atomic Energy Act, th e maximum term for an operating license is "forty years from the authorization to commence operations." 42 U.S.C. § 2133(c). Because Vermont Yank ee's original forty-year operating license was set to expire on March 21, 2012, Entergy applied for a renewed operating license in 2006. See generally Entergy Nuclear Vermont Yankee, LLC , LBP-06-20, 64 NRC 131 (2006), RA302.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 21 of 78 14 As required by NRC regu lations, Entergy's environmental report - which accompanied its application-assessed water-quality compliance under the heading "Water Quality (401) Certification."

1 See Vermont Yankee Nuclear Power Station License Re newal Application, App. E, Applicant's Environmental Report, 9-1 (Jan. 25, 2006), RA45. En tergy claimed that Vermont Yankee's original § 401 certification from 1970 and its po ssession of a "current and effective NPDES perm it issued by [Vermont]"

2 indicated its "continued compliance with applicable CWA standards."

Id. During the renewal proceedings, Vermont and NEC, among others, brought several challenges to Entergy' s license renewal application before NRC's adjudicatory hearing tribunal, the Atomic Safe ty and Licensing Board. The Board admitted for hearing several contentions filed by Vermont and NEC, but found others inadmissible.

See Entergy Nuclear Vermont Yankee, LLC , 64 NRC 131 (2006), RA302.

3 Among the contentions found inadmissible in 1 See 10 C.F.R. §§ 51.45(d) & 54.23.

2 Vermont last issued a new NPDES pe rmit for Vermont Yankee in 2001, but that permit has remained valid under Vermont's "timely-renewal" statute because Vermont Yankee applied for a ne w permit in 2006, which has not yet been acted on.

See 3 V.S.A. § 814 (b). That 2006 application remains pending before the Vermont Agency of Natural Resources.

3 The Board found inadmissible the on ly contentions submitted by the Massachusetts Attorney General and the Town of Marlboro, Vermont.

See 64 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 22 of 78 15 part was NEC's "Contention 1," which was the only proposed contention that even mentioned CWA compliance, albeit only in a reply and attempted amendment, not in the original contention.

Id. at 182, RA328.

As originally submitted, Contention 1 alleged that Entergy's report did not properly consider the environm ental effects of Vermont Yankee's continued thermal disc harges under NEPA.

See id. at 175, RA324. Entergy submitted a filing opposing this Contention. NEC then filed a reply arguing for the first time that Entergy had no t complied with § 401 of the CWA.

See id.; NEC's Reply to Entergy and NRC Staff Answers to Petition for Leave to Intervene, Request for Hearing, and Contentions at 6, 14 (June 30, 2006), RA69, RA77.

Entergy successfully moved to strike petitioners' § 401 argument because it was first raised in a reply brief, see 64 NRC at 182, RA328, and then successfully opposed NEC's subsequent motion to amend Contention 1 to include the § 401 issue. On that motion, the Board ruled that § 401 was "simply irrelevant to [the rest of] NE C's contention that Entergy failed to

NRC at 161, 201, RA338. Likewise, the Board rejected some of Vermont and NEC's contentions, but admitted five of their contentions for hearing.

Id. at 162-201, RA318-338. Vermont and NEC settle d one contention with Entergy, before Entergy eventually prevailed in several years of litigation before the Board and Commission regarding the merits of the remaining contentions. See CLI-11-02, 73 NRC __, 2011 WL 864757 (M arch 10, 2011); CLI-10-17, 72 NRC__, 2010 WL 2753783 (July 8, 2010); 68 NRC 763 (2008); 65 NRC 371 (2007). USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 23 of 78 16 assess impacts to water quality" under NEPA.

See Entergy Nuclear Vermont Yankee, LLC, Memorandum and Order (October 30, 2006) (unpublished Board order), RA435-436. Neither NEC nor Vermont then or later sought Commission appellate review of these procedural Board rulings. Moreover, th e Board ruled that the § 401 issue was not submitted "too late

" for adjudicatory consideration.

RA435. This meant that petitioners might have pursued their § 401 claim as a stand-alone "late-filed" contention , but neither party ever did so.

Two months after the Board's last order on petitioners' abortive § 401 contention, NRC published the draft supplemental environmental impact statement (SEIS) for Vermont Yank ee's license renewal and requested comments.

See 71 Fed. Reg. 76,706 (Dec. 21, 2006), RA449. Appendix E of the draft SEIS identified the permits and approvals that NRC believed were required for license renewal, which included a § 402 (NPDES) permit but not a new CWA § 401 certification. RA472. NRC provided a 75-day comment period and scheduled multiple public meetings regarding the draft SEIS.

See 71 Fed. Reg. 76,707, RA450. Petitioners submitted no comments arguing for the necessity of a new § 401 certification and filed no new contentions before the Licensing Board based on the absence USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 24 of 78 17 of a new § 401 certification in the draft SEIS. (As noted above, in NRC practice, such contentions are permissi ble under 10 C.F.R. § 2.309(f)(2).) Similarly, petitioners filed no objections with NRC after the agency published the final SEIS, see 72 Fed. Reg. 44,186 (Aug. 7, 2007), RA484, which like the draft SEIS did not list a new § 401 ce rtification in Appendix E. RA766. After several years of litigation at NRC, all adjudicatory proceedings, including Board hearings and Commission decisions on appellate review, 4 concluded and the Commission granted Entergy's application for a renewed operating license on March 21, 2011. See 76 Fed. Reg. 17,162 (March 28, 2011), RA903. Petitioners now seek to reverse that decision.

SUMMARY

OF ARGUMENT The record contains no detailed Commission decision concerning petitioners' CWA grievance. That is because, despit e extensive adjudicatory proceedings at NRC, peti tioners essentially sat on their hands (with the exception of one half-hearted and th en-abandoned attempt by NEC) when given numerous chances to properly raise their CWA compliance claims before the NRC's Atomic Safety and Licensing Board and the Commission.

4 See CLI-11-02, 73 NRC __, 2011 WL 864757 (March 10, 2011); CLI-10-17, 72 NRC__, 2010 WL 2753783 (July 8, 2010); 68 NRC 763 (2008); 65 NRC 371 (2007).

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 25 of 78 18 Now, after years of silenc e, petitioners in effect ask this Court to undo a completed, five-year license-renewal pr oceeding on grounds never pursued at NRC. Petitioners simply defaulted on any CWA issues by failing to pursue them during NRC's adjudicatory process. Litigating th ese complaints now, for the first time in this Court, runs afou l of well-settled la w that parties must exhaust all available administrative remedies before resorting to judicial review. There is no reason to disregard the exhaustion doctrine in this case, as petitioners had every opportunity to pursue their claims at NRC. And had they done so, the agency may have granted them relief. Moving forward without a full agency record would potentially waste scarce judicial resources and encourage litigants to bypass NRC's hearing process, which is designed to create a record for judicial review and also to resolve disputes at the agency level, often avoiding judicial review. This Court, in short, need go no fu rther than the exhaustion-of-remedies doctrine to resolve this case against petitioners. But in the event this Court reaches the merits it should still ru le against petitioners because their underlying legal claims are unpersuasive.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 26 of 78 19 Vermont Yankee indisputably has a valid Vermont NPDES permit under § 402 of the CWA, as noted in Entergy's application for a renewed operating license from NRC. And NRC's Generic Environmental Impact Statement for License Renewal-issued in 1996 after a full notice-and-comment process (in which Vermont participated but did not raise objections on these grounds)-has long indicated the agency's position that in some cases, the water-quality protections of CWA §§ 401 and 402 are coextensive, such that a state-issued NPDES permit provides water-quality protections equivalent to those ensured by a state-issued § 401 certificate. Given Entergy's application and the GEIS discussion of §§ 401 and 402, the thrust of petitioners' opening brief-that the record "off ers no basis" for finding CWA compliance, see Pet. Brief at 3-is si mply wrong. Notably, petitioners' brief ignores the Entergy submission and this part of the GEIS. Petitioners also failed to present any plausible evidence of concrete harms to their interest in "ensur[ing] protection of Vermont's water resources." Pet. Brief at 2. Thus, even if th ere were any NRC error here on CWA compliance, the error was one of form rather than su bstance, and was harmless in the context of this case. Vermont remains capable ev en now of ensuring that USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 27 of 78 20 its water-quality standards will be enfo rced through its § 402 NPDES permit process. Petitioners have shown no prejudicial harm.

Finally, amici attempt to introduce several new arguments on the merits, but because these were not raised in petitioners' opening brief, they should not be considered now.

ARGUMENT Standard of Review Normally, whether a petitioner has su fficiently exhausted administrative remedies "is a question of la w, which this court reviews de novo." Artis v.

Bernanke, 630 F.3d 1031, 1034 (D.C. Cir. 2011) (citation omitted). Also, the Supreme Court has recognized that wher e "an agency's regulations . . . require issue exhaustion in administ rative appeals . . . , courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues."

Sims v. Apfel , 530 U.S. 103, 108 (2000). This Court should not set aside th e NRC's decision unless the Court finds it "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To the extent that this Court finds it necessary to consider the meaning of § 401 of the Clea n Water Act, its USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 28 of 78 21 "review of the Commission's in terpretation of Section 401 is de novo."Alcoa Power Generating, Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011).

5 I. The Petitions for Review must be Dismissed because Petiti oners Failed to properly Exhaust their Administrative Remedies before Seeking Judicial Review.

1. Established law requires dismissal of the petitions for review.

The petitions for review in this case should be dismissed because of petitioners' failure to exhaust their available administrative remedy at NRC-namely, the agency's full hearing process for licensing actions. See generally 42 U.S.C. § 2239(a); 10 C.F.R. Part 2. Simply put, petitioners may not file a lawsuit after sitting on their hands when given the chance to properly raise issues before the agency. This Court need go no further than that simple point in order to resolve this lawsuit.

For over 70 years, American courts have followed the basic rule of prudent judicial administration that "no one is entitled to judicial relief for a supposed or threatened inju ry until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp

., 303 U.S. 41, 50-51 (1938). Exhaustion, in other words, is the default process-it is presumptively required, whether an underlying statut e provides for exha ustion or not.

See, 5 EPA is the federal agency directed by st atute to administer the CWA. It has not addressed the merits of the question in this case.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 29 of 78 22 e.g., Ass'n of Flight Attendants-CWA, AFL-CIO v. Chao, 493 F.3d 155 (D.C. Cir.

2007); Boivin v. U.S. Airways, Inc., 446 F.3d 148 (D.C. Cir. 2006). In the case of direct judicial re view of NRC action s under the Hobbs Act, exhaustion is not simply prudential. The Act makes "party" status in an NRC proceeding-"and the 'exhaustio n' doctrine impl icit therein," Gage v. AEC , 479 F.2d 1214, 1218 (D.C. Cir. 1973)-a mandatory prerequisite to judicial review.

See 28 U.S.C. § 2344. And an NRC rule expressly says that participants in NRC hearings first "must file a petition for Commission review before seeking judicial re view of an agency action." 10 C.F.R. § 2.341(b)(1). Moreover, the petition for Commission re view "must contain" descriptions of "the matters of fact or law" at issue, and must show how these matters "were previously raised before th e presiding officer" at the hearing or "could not have been raised." 10 C.F.R. § 2.341(b)(2). Here, petitioners neither filed their Clean Water Act claims properly before NRC's hearing tribunal, the Atomic Safety and Licensing Board, nor brought their claims before the Commission on agency appellate review.

Instead, petitioners seek initial review in this Court, despite the longstanding exhaustion requirement. Where, as here, "an agency's regulations . . . require issue exhaustion in admini strative appeals," the Supre me Court has noted that USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 30 of 78 23 courts generally "ensure against the bypa ssing of that requirement by refusing to consider unexhausted issues." Sims v. Apfel , 530 U.S. 103, 108 (2000). In addition to its se ttled legal basis, the requirement to exhaust administrative remedies is a matter of "simple fairness." Cape Cod Hosp. v. Sebelius , 630 F.3d 203, 211 (D.C. Cir. 2011), quoting United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952) (stating the "general rule that courts should not topple over administrative decision s unless the administrative body not only has erred but has erred against ob jection made at the time appropriate under its practice"). This is because the requirement gives agencies and other interested parties an opportunity to address particular claims before they are presented in court, and it is also a ma tter of sound judicial policy. This Court repeatedly has pointed to the many advantages of the default rule that parties must fully contest issues at the agency level before seeking judicial review:

  • The exhaustion doctrine "serves th e twin purposes of protecting administrative agency authority and promoting judicial efficiency,"

by "ensur[ing] that agencies-and not the federal courts-take primary responsibility for implementing the regulatory programs assigned by Congress." Ass'n of Flight Attendants-CWA, AFL-CIO v.

Chao , 493 F.3d 155, 158 (D.C.

Cir. 2007), quoting McCarthy v.

Madigan , 503 U.S. 140, 145 (1992).

  • Requiring "review within the [age ncy] gives the [agency] 'the opportunity to correct its own errors,' and thereby to avoid unnecessary litigation." Benoit v. USDA , 608 F.3d 17, 23 (D.C. Cir.

2010), quoting McCarthy at 145. USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 31 of 78 24

  • Fully contesting all possible claims before the agency "may produce a useful record for subsequent judicial consideration."

Id., quoting McCarthy at 145-46.

  • Ignoring exhaustion requirements would "encourage people to ignore an agency's procedures by allowing litigants who . . . could have petitioned the agency directly for the relief [sought] in [a] lawsuit" to "seek those forfeited administrative remedies from the court later."

Malladi Drugs & Pharms., Ltd. v. Tandy , 552 F.3d 885, 890 (D.C. Cir.

2009) (citations omitted).

  • "[A]gency proceedings 'generally . . . resolve claims much more quickly and economically' than courts.'" Qwest Corp. v. FCC , 482 F.3d 471, 475 (D.C. Cir. 2007), citing Woodford v. Ngo , 548 U.S. 81, 89 (2006). These policies apply in full force he re, where petitioners have asked the Court to resolve a CWA issue that th ey never presented to the Commission itself and did not press before the Commission's subordinate hearing tribunal, the Licensing Board. Likewise, this Court overlooks a fa ilure to exhaust agency remedies "only in the most exce ptional circumstances." Communication Workers of America v. AT&T, 40 F.3d 426, 432 (D.C. Cir. 199 4). Examples are excessive delay, agency bias, or a lack of agency authority to grant relief. See Hettinga v.

United States , 560 F.3d 498, 503 (D.C. Cir. 2009). None of those circumstances is present here. Petitioners ha ve never claimed otherwise.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 32 of 78 25 Indeed, petitioners' failure to bring their CWA contention before the Commission deprived the Commission of an opportunity to address any alleged defects and forces lawyers for NRC and the United States to defend NRC's position without the benefit of the Commission's fully-considered judgment, an undesirable situation to say the least.

See, e.g., Nat'l Petrochemical

& Refiners Ass'n v. EPA , 630 F.3d 145, 164 (D.C. Ci

r. 2010). This odd posture underscores the practical problem-a limited agency record and no specific agency response to petitioners' concerns-caused by petitioners' failure to exhaust their administrative remedies before s eeking judicial review. 2. Petitioners' arguments on exhaustion are unpersuasive. Petitioners vigorously opposed our original Motion to Dismiss, whic h rested on their failure to exhaust administrative remedies at NRC. See Petitioners' Reply and Memorandum in Opposition to Respondent's Motion to Dismiss and Intervenor's Cross-Motion for Summary Reversal (August 26, 2011). Acting on our motion, this Court, by Order dated Au gust 31, 2011, explicitly directed the parties "to address in their briefs the issues presented in the motions to dismiss rather than incorporate those arguments by reference." Nevertheless, in their opening brief, petitioners essentially ignored this Court's directive. Indeed , the words "exhaust" or "exhaustion" appear USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 33 of 78 26 nowhere in their brief. Instead, they provide only re mote and oblique allusions to the issue.

See, e.g., Pet. Brief at 6-7, 26-27.

We expect, however, that petitioner s will use their reply brief to again oppose our exhaustion argument. Notwithstanding petitioners' failure to follow the Court's August 31 Order, which puts the government at a disadvantage, we can anticipate some of their response s based on their previous filings, which are addressed below.

In their opposition to our motion to dismiss, petitioners themselves warned of "

post-hoc rationalizations created by co unsel" that should "carr[y]

no weight on review." Pet.

Opp. 3-4. But this compla int surely "runs afoul of the Court's chutzpah doctrine." See Caribbean Shippers Ass'n v. Surface Transp.

Bd., 145 F.3d 1362, 1365 n.3 (D.C. Cir. 1998). The reason why the NRC record is mostly silent on petitioners' CWA claim is petitioners' own failure to bring it properly before NRC's Licensing Board or before the Commission. Petitioners' procedural default, and no t any oversight by NRC, resulted in the underdeveloped record on the CWA issue. Following the Licensing Board's initial rejection of petitioners' amended CWA contention as improp er, NRC rules gave petition ers the opportunity to file a new, separate CWA contention, see 10 C.F.R. § 2.309(f)(2), or to seek USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 34 of 78 27 Commission review of the Board's procedural decision.

See 10 C.F.R. §§ 2.341 & 2.1212. But petitioners chose to sit sile ntly instead, while (in the case of petitioner NEC) continuing to pursue other issues before the Board and on appellate review before the Commission.

See n.3, supra. 6 Moreover, as petitioners' opening brief acknowledges, NRC's draft and final supplemental environmental impact statements for Vermont Yankee did not list a new § 401 certif ication as a permit requ ired by law for Vermont Yankee's license renewal. See Pet. Brief at 7-8; RA472, RA766. Yet although they had 75 days to file comments contesting this position, the opportunity to present their claims in several public meetings, and a chance to file a new contention on these grounds before the Lice nsing Board under 10 C.

F.R.

§ 2.309(f)(2), petitioners failed to take advantage of any of these opportunities to contest NRC's position on the nece ssity of a new § 401 certification. Petitioners, in short, did not "use all the steps the agency holds out" to file "objection[s] . . . at the time appropriate under [NRC's] practice."

Woodford v. Ngo , 548 U.S. 81, 90 (2006) (holding that a court should dismiss a lawsuit where the litigant did not fully exhaust administrative remedies). Had they 6 Indeed, even in their brief in this Court, petiti oners do not challenge the Board's procedural ruling that their attempt to modify their original NEPA-based contention to add the CWA issue was improper because it went beyond the scope of the original contention.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 35 of 78 28 used the procedures established by NRC, petitioners might have prevailed on some of their concerns-or at least have been better informed as to the NRC's position, leading them not to challenge the agency decision at all.

To entertain CWA-based claims now, several years after petitioners abandoned such claims in NRC's proceedings, and where the Commission was never presented with such claims, would condone, and indeed reward, petitioners' unexplained failure to take advantage of their opportunities to raise their objections before the agency. For that reason, this Court has discouraged petitions by those "who had the opportunity to participate in the underlying Commission proceedings but who had failed to take advantage of it."

Natural Resources Defense Council

v. NRC , 666 F.2d 595, 601 n.42 (D.C. Cir. 1981). Petitioners' opposition to our motion to dismiss maintained that adjudication of CWA claims must take place outside NRC's hearing process (Pet. Opp. 16-19), and they now state in their opening brief that "NRC has determined that the issue of compliance with the requirements of Section 401 is not an issue that is to be resolved in a license renewal hearing." Pet. Brief at 27 n.13. This is entirely incorrect.

There is no reason to believe that CWA issues cannot be addressed in NRC license renewal hearings, or th at CWA issues are somehow immune USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 36 of 78 29 from ordinary exhaustion-o f-remedies principles. In deed, in cases involving other agencies, reviewing courts have had little difficulty in barring CWA claims for "failure to raise the issue during . . . earlier administrative proceedings."

Natural Resources Defense Council, Inc. v. Kempthorne , 525 F.Supp.2d 115, 124 (D.D.C. 2007); see also City of Santa Clarita v. DOI, 249 Fed. Appx. 502, 505 (9th Cir. 2007). Similarly, NRC's hearing process is not limited to claims under the Atomic Energy Act, as petitioner s' brief implies, but encompasses any claim of unlawfulness that would defeat issuing a license, including (for example) claims under the National Environmenta l Policy Act, the National Historic Preservation Act, and the CWA itself.

7 Thus, NRC Licensing Boards have considered CWA claims in the past.

See, e.g., Private Fuel Storage , LBP-98-7, 47 NRC 142, 197-98 (1998) (Board order admitting properly-filed contentions under 10 C.F.R. § 51.45(d) regarding compliance with, among other laws, the CWA).

7 See, e.g., Pacific Gas & Elec. Co., 68 NRC 509 (2008) (adjudicating NEPA claim); Entergy Nuclear Vermont Yankee, LLC , 65 NRC 371 (2007) (adjudicating CWA claim); USEC, Inc., 63 NRC 433 (2006) (adj udicating NEPA and National Historic Preservation Act claims);

Hydro Resources, Inc., 50 NRC 3 (1999) (adjudicating Native American Graves Protecti on and Repatriation Act claim). USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 37 of 78 30 NRC's regulations at 10 C.F.R. § 51.45(d)-requiri ng applicants to list CWA permits (which Vermont Yankee's application did)-gav e petitioners an obvious initial trigger point for litigating their CWA-compliance claim as part of the NRC hearing proce ss. Indeed, briefly and ineffectively, petitioners attempted to do so through a CWA contention that they later abandoned.

Petitioners complain in their opening brief that, "[i]n opposing NEC's proposed new contention . . . raising the absence of a § 401 certification, . . .

NRC [never] sought to defend the absence of such a Certification," but instead (successfully) attacked its procedural flaws. Pet. Brief at 7 n.6. But that complaint ignores this Court's settled rule that where a petitioner's "hearing arguments were not properly presented [

under the agency's procedural rules], . . . the Commission was under no obligation to review them."

21st Century Telesis Joint Venture v. FCC , 318 F.3d 192, 200 (D.C. Cir. 2003). Notably, in rejecting petitioners' contention, NRC's Licensing Board did not rule that CWA claims were immaterial to licensing, or otherwise outside the scope of a license-renewal proceeding, but ruled merely that these particular petitioners' attempted contention was procedurally defective.

See Entergy Nuclear Vermont Yankee, LLC, Memorandum and Order (October 30, 2006) (rejecting attempt to graft CWA claim onto pre-existing NEPA contention), RA435-36; USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 38 of 78 31 Entergy Nuclear Vermont Yankee, LLC , 64 NRC 131, 182 (2 006) (rejecting attempt to raise new CWA claim in reply brief), RA328. Pe titioners did not challenge the Board's proc edural rulings on admini strative appeal to the Commission (or, for that matter, in their brief in this Court).

In their opposition to our motion to dismiss, petitioners attempted to buttress their argument that CWA claims are not litigab le at NRC by pointing out that NRC conducts its hearing proce ss concurrently with state permitting processes, and does not hold hearings in abeyance to await the state outcome.

Pet. Opp. 17-19. Petition ers also noted that NRC does not and cannot second-guess state determinations of clean-water standards.

Id. at 18-19. But none of this is relevant here, where petitioners defaulted on their opportunity to bring their CWA grievance first to NRC-and deprived NRC of an opportunity to consider it-before coming to court.

By statute, the Licensing Board, analogous to a trial court, is the first step on the route to th e courts of appeals. See 42 U.S.C. § 2241 (e stablishing the Board); 42 U.S.C. § 2239(b) (rendering NRC licensing decisions reviewable under the Hobbs Act). A potential litigant in court should not be permitted or encouraged to stand silent at the Boar d or at the Commissi on, or ignore NRC procedural rules; otherwise, courts of appeals would be compelled to review USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 39 of 78 32 legal issues in the first instance, without the benefit of the agency's views, and often with a deficient or non-existent ad ministrative record on those issues. Finally, in their opposition to our moti on to dismiss, petitioners asserted that CWA claims like theirs can't be "waived" through a failure to exhaust NRC remedies, but only through the terms of § 401(a)(1) of the CWA.

See Pet. Opp. 19-22. For this argument, petitioners invoked this Court's decision in North Carolina v. FERC, 112 F.3d 1175, 1183-1185 (D.C. Cir. 1997). But § 401(a)(1) and North Carolina do not speak to the exhaustion-of-remedies doctrine, but merely to the manner in which a state may "waive" issuing an initial water-qu ality certification under th e CWA. This case does not involve that statutory waiver or claim of such a waiver.

At issue in this case is the significance of an existing § 401 or § 402 water-quality certification or permit, as petitioners themselves acknowle dged in the "merits" portion of their opposition to our motion to dismiss (pp. 4-10). The simp le fact is that petitioners never brought this issue before the Commission, despite having ample opportunity to do so. NRC's specific and statutorily-required hearing process is the designated initial adjudicatory forum for dealing with grievances of all kinds regarding NRC license applications. Nothing in the CWA, Atomic Energy Act, or USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 40 of 78 33 Hobbs Act suggests that a li tigant can ask a court of appeals for CWA review in the first instance, as petitioners attempt here.

Thus, these consolidated petitions fo r review should be dismissed for failure to exhaust availabl e NRC remedies. The Court need go no further to decide this case.

II. Petitioners have not Controverted NRC's longstanding Position with respect to Satisfying CWA Requirements through § 402 NPDES Permits Even assuming that this Court finds that petitioners have satisfied the exhaustion-of-remedies requirement, the Court should reject the arguments set forth in their opening brief, which are unpersuasive.

At the outset, we do not dispute peti tioners' self-evident premise that NRC must comply with § 401 of the CWA, as it must comply with all other applicable laws, when issuing licenses. It is the remainder of petitioners' argument that is problematic. Petitioners' argument simply asserts that NRC failed to obtain a § 401 certification (from Entergy) before issuing Vermont Yankee's renewed operating license, an d "never articulated any basis of compliance" with the CWA. Pet. Brief at 27.

Although the record contains no detailed Commission decision concerning petitioners' CWA grievance, it does include Vermont Yankee's USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 41 of 78 34 license-renewal application, which claimed compliance with § 401 on two grounds-Vermont Yankee's original

§ 401 certificate from Vermont and Vermont Yankee's existing

§ 402 (NPDES) permit.

See Vermont Yankee Nuclear Power Station License Re newal Application, App. E, Applicant's Environmental Report, 9-1 (Jan. 25, 2006), RA45.

The Commission has not had occasion to address whether Vermont Yankee's original § 401 certification remains valid for license-renewal purposes , and thus takes no position on that question here. The § 402 question is another matter. Petitioners acknowledge Vermont Yankee's valid § 402 permit, see Pet. Brief at 5, but argue that "[t]he record does not reflect that NRC accepted [this NPDES permit] as a substitute for actual compliance [with § 401] and certainly does not contain an affirmative statement from NRC that [Entergy]

had otherwise demonstrated actual compliance with § 401 on any basis."

See id. at 22-25. Petitioners are wrong.

CWA § 401 does not explicitly requ ire NRC to make any "affirmative statement" of this nature. And unlike the case cited by petition ers in support of this argument, NRC's decision-making here was never properly "called into question" or "challenge[d]" before the agency.

Cf. City of Tacoma v. FERC , 460 F.3d 53, 67-68 (D.C. Cir. 2006) (cited at Pet. Brief 23, 24). Likewise, the USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 42 of 78 35 Supreme Court has previously warned that courts and petitioners cannot "engraft[] their own notions of proper procedures upon agencies entrusted with substantive functions by Congress."

Vermont Yankee Nuclear Power Corp. v. Nat.

Res. Def. Council , 435 U.S. 519, 525 (1978).

In any event, while NRC had no occasion to explain its positi on on § 401 in detail, "the agency's path may reasonably be discerned." See Wisconsin Pub. Power, Inc. v. FERC , 493 F.3d 239, 273 (D.C. Cir. 2007), citing Alaska Dep't of Envtl. Conservation v. EPA , 540 U.S. 461, 497 (2004). The record shows that NRC has long taken the position that § 402 permits can se rve as a proxy for § 401 certificates, and the record supports use of such a proxy here.

Petitioners inexplicably overlook the fact that since 1996, NRC's Generic Environmental Impact Statem ent (GEIS) for License Renewal has explicitly announced the age ncy's position that in so me circumstances a state's § 402 NPDES permit provides water-quality protection s equivalent to those ensured by a state § 401 certificate. See 1 NUREG-1437, "Generic Environmental Impact Statement for Licens e Renewal of Nuclear Plants" at § 4.2.1.1 (1996), RA43. Consistent with the statement in the GEIS, the Supplemental Environmental Impact Statement for the Vermont Yankee USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 43 of 78 36 license renewal lists the § 402 NP DES permit (but not a new § 401 certification) as required for license renewal. RA766.

Although CWA §§ 401 and 402 are not identical, see S.D. Warren Co. v.

Maine Bd. of Envtl. Prot., 547 U.S. 370, 380 (2006), both sections function in large part by requiring compliance with CWA §§ 301, 302, 303, 306, and 307, as well as the state's water-quality standards. Thus, in cases like the current one, where neither an affected state nor anyone else has pointed to water-quality protections available und er § 401 that are not also av ailable under

§ 402, it is reasonab le to assume, as NRC did here, that a state's § 402 NPDES permit can act as, in effect, a proxy for a § 401 water-quality certification.

In this case, to the extent that

§ 401 might be understood to supply additional authority to states, Vermont-which has a federally-approved NPDES program-has never invoked any such authority, and therefore has not suffered any apparent injury to its general interest in "the protection of Vermont's water resources" (Pet. Brief at 2) that could not be addressed through the state's own § 402 permit process. Petitioners never contested NRC's general position on the inter-relationship between §§ 401 and 402, as reflected in the GEIS, in any filing or statement before NRC or in their opening brief in this Court. Thus, they have waived any challenge to NRC's USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 44 of 78 37 reliance on the GEIS here.

See, e.g., McKinley v. Bd. of Governors of the Fed.

Reserve Sys

., 647 F.3d 331, 335 n.7 (D.C. Cir. 2011).

Indeed, as petitioners' opening brief points out, during NRC's Vermont Yankee license renewal proceeding, Verm ont's Agency of Natural Resources (VANR), responsible for Vermont's programs under §§ 401 and 402, explained to the NRC that "[t]he requirements of the Clean Water Act and the NPDES permit will provide assurance that the impacts of [Vermont Yankee's] permitted intake structures and discharges meet the applicable federal and state requirements."

See Pet. Brief at 8. NRC was entitled to rely on this pronouncement by VANR, the authoriz ed state water-quality agency. Although petitioners' brief maintains otherwise, id., VANR's statement appears to support NRC's stated position that th e § 402 NPDES permit, which incorporates CWA requirements, can be sufficient to ensure water quality.

Notably, VANR's letter did not mention a need for a new § 401 certification. Petitioners have never said, either at NRC or in this Cour t, how a new

§ 401 certification would improve water quality, given the existing § 402 permit. In these circumstance s, even if there were er ror on NRC's part in not requiring a fresh § 401 certif ication, it was one of form rather than substance, and thus harmless, not warranting a judicial remedy.

See 5 U.S.C. § 706 (on USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 45 of 78 38 judicial review, "due account shall be taken of the rule of prejudicial error"). As this Court recognized in another CWA case, "[i]n administrative law, as in federal and criminal litigation, there is a harmless error rule."

Jackson County v.

FERC , 589 F.3d 1284, 1290 (D.C. Cir. 2009), quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 659-60 (2007). "If the agency's mistake did not affect the outcome, if it did not prejudice the petitioner, it would be senseless to vacate and remand for reconsideration."

PDK Labs., Inc.

v. U.S. DEA , 362 F.3d 786, 799 (D.C. Cir. 2004). That is the case here. Were this Court to find that NRC technically should have required a second § 401 certification before relicensing Vermont Yankee, no judicial remedy is necessary. Petitioners have not explained what extra margin of water-quality protection Vermont would impose through a

§ 401 certificate that is not being achi eved under the existing § 402 process.

Vermont remains fully capabl e of ensuring that its water-quality standards will be enforced through Vermont Yankee's § 402 NPDES permit.

Finally, the amici curiae allied with petitioner s attempt to introduce several CWA-compliance arguments not rais ed in petitioners' opening brief or in NRC's hearing process. See, e.g., Brief of Amicus Riverkeeper and Scenic Hudson at 12-18 (disputing potential application of CWA § 401(a)(3) to this USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 46 of 78 39 case). But because petitioners did not properly exhaust their administrative remedies, the Commission has had little or no opportunity to address these merits issues. Moreover, this Court "w ill not consider" i ssues raised in amicus briefs but not raised in proceedings below "or by the parties to th[e] appeal." Baptist Mem. Hosp. - Golden Triangle v. Sebelius, 566 F.3d 226, 230 (D.C. Cir.

2009). See Entergy Servs. v. FERC, 319 F.3d 536, 545 (D.C. Cir. 2003) (new "statutory argument" raised in amicus brief but not in petitioner's brief "is not properly before the court");

Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001) (Court and federal resp ondents may disregard amicus curiae's attempt to "implicate issues that have not been pr esented by the parties to the appeal").

Accordingly, we do not separately address the issues raised in the amicus briefs, except to the extent that they replicate the arguments in petitioners' opening brief.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 47 of 78 40 CONCLUSION Until it filed this laws uit, Vermont had not in dependently raised any CWA water-quality issues at any point since it joined NEC's procedurally-deficient, half-hearted contention in the NRC hear ing process several years ago. Neither Vermont nor NEC sought Co mmission review of the Licensing Board's decision dismissing that contention or ever submitted a properly-pled contention, presumably because they su ffered no harm, given the substantive protections assured by Verm ont's § 402 NPDES permit. Rather than bringing their lega l issues before the Commission, petitioners essentially sat idle until filing this lawsuit. This approach, if allowed by this Court, defeats the integrity of NRC's licensing process. Raising legal objections only after that process is over undermines and diminishes that process, creates confusion, and wastes scarce judicial resources. NRC, moreover, did not err-and certainly did not err in a prejudicial sense-in not obtaining a new § 401 certific ate from Entergy, given the existing water-quality protections in Vermont Yankee's § 402 NPDES permit and given Vermont's failure to identify how a new § 401 certification would further protect water quality in the state.

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 48 of 78 41 For the foregoing reasons, the petiti ons for review shou ld be dismissed for failure to exhaust administrative remedies, or alternatively, denied on the merits. Respectfully submitted, IGNACIA S. MORENO STEPHEN G. BURNS Assistant Attorney General General Counsel

_/s/____________________ _/s/______________________

JOHN E. ARBAB JOHN F. CORDES, JR. Attorney Solicitor Appellate Section Environment and Natural _/s/______________________

Resources Division SEAN D. CROSTON U.S. Department of Justice Attorney P.O. Box 23795 Office of the General Counsel L'Enfant Plaza Station U.S. Nuclear Regulatory Washington, D.C. 20026 Commission (202) 514-4046 Washington, D.C. 20555 (301) 415-2585 March 19, 2012

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 49 of 78 42 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 ) REGULATORY COMMISSION and )

THE UNITED STATES OF AMERICA )

) Respondents. ) ) CERTIFICATE OF LENGTH OF BRIEF I hereby certify that the foregoing Final Brief for Respondents U.S.

Nuclear Regulatory Commission and Un ited States of America contains 8,340 words, excluding the Table of Contents , Table of Authorities, Glossary, and Certificates of Counsel, as counted by the Microsoft Word 2007 program.

Respectfully submitted, /S/______________________

Sean D. Croston Attorney March 19, 2012 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 50 of 78 43 CERTIFICATE OF SERVICE I hereby certify that on March 19, 2012, a copy of the foregoing Final Brief for the Federal Respondents was filed with the Clerk of the Court and served upon the following counsel of re cord in the case through the CM/ECF System: Counsel for New England Coalition Couns el for Vermont Dept. of Pub. Serv. Christopher M. Kilian Anthony Z. Roisman Anthony N.L. Iarrapino John Beling

Counsel for Intervenors Counsel for Amici David R. Lewis Christopher Wright Timothy Simeone Mark Davis Monica Wagner

/S/___________________

Sean D. Croston Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Mail Stop O15 D21 Rockville, MD 20852 (301) 415-2585 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 51 of 78 44

USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 52 of 78 45 ADDENDUM OF STATUTES AND REGULATIONS Except for the following, all applicable statutes, etc., are contained in the Brief for Petitioners.

3 V.S.A. § 814 ............................................................................................. 46 5 U.S.C. § 706 ............................................................................................. 47 28 U.S.C. § 2344 ......................................................................................... 48 42 U.S.C. § 2133 ......................................................................................... 49 42 U.S.C. § 2239 ......................................................................................... 51 42 U.S.C. § 2241 ......................................................................................... 54 42 U.S.C. § 4332 ......................................................................................... 55 10 C.F.R. § 2.1212 ...................................................................................... 56 10 C.F.R. § 2.309 ........................................................................................ 59 10 C.F.R. § 2.341 ........................................................................................ 64 10 C.F.R. § 51.20 ........................................................................................ 66 10 C.F.R. § 54.23 ........................................................................................ 68 10 C.F.R. § 54.27 ........................................................................................ 69 10 C.F.R. § 54.31 ........................................................................................ 70 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 53 of 78 46 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 54 of 78 47 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 55 of 78 48 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 56 of 78 49 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 57 of 78 50 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 58 of 78 51 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 59 of 78 52 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 60 of 78 53 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 61 of 78 54 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 62 of 78 55 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 63 of 78 56 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 64 of 78 57 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 65 of 78 58 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 66 of 78 59 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 67 of 78 60 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 68 of 78 61 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 69 of 78 62 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 70 of 78 63 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 71 of 78 64 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 72 of 78 65 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 73 of 78 66 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 74 of 78 67 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 75 of 78 68 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 76 of 78 69 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 77 of 78 70 USCA Case #11-1168 Document #1364243 Filed: 03/19/2012 Page 78 of 78

Retrieved from "https://kanterella.com/w/index.php?title=ML12152A080&oldid=1764205"