State of VT Dept. of Pub. Serv v. Nuclear Regulatory Commission , 684 F.3d 149 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2012 Decided June 26, 2012
No. 11-1168
VERMONT DEPARTMENT OF PUBLIC SERVICE ET AL.,
PETITIONER
v.
UNITED STATES OF AMERICA
AND NUCLEAR REGULATORY COMMISSION,
RESPONDENTS
ENTERGY NUCLEAR OPERATIONS, INC.
AND ENTERGY NUCLEAR VERMONT YANKEE, LLC,
INTERVENORS
Consolidated with 11-1177
On Petition for Review of a Final Order
of the U.S. Nuclear Regulatory Commission
Elizabeth Miller, pro hac vice, argued the cause for the
petitioners. Anthony Z. Roisman, John Beling and Christopher
M. 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.
2
Eric T. Schneiderman, Attorney General, Office of the
Attorney General for the State of New York, and Barbara D.
Underwood, Solicitor General, were on brief for amicus curiae
State 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 Nuclear
Regulatory Commission, argued the cause for the respondents.
John E. Arbab, Attorney, United States Department of Justice,
Stephen G. Burns, General Counsel, United States Nuclear
Regulatory Commission, and John F. Cordes, Jr., Solicitor,
were on brief.
Kevin P. Martin argued the cause for intervenors Entergy
Nuclear 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: HENDERSON, ROGERS and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Vermont
Department 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
3
objection because they repeatedly failed to present it directly to
the Commission and thereby failed to exhaust their
administrative remedies.
I.
The Atomic Energy Act (AEA) authorizes the NRC to issue
an initial license to operate a nuclear power plant for a term of
up 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 Vermont
Yankee 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 the
Federal 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 United
States . . . provide a certification from the State in which the
discharge originates or will originate . . . that there is reasonable
assurance . . . 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 Yankee
planned 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
1
In 1974, the Congress abolished the AEC and transferred its
licensing and related regulatory functions to the NRC. Energy
Reorganization 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)).
4
operating license issued, the Congress enacted the Federal Water
Pollution Control Amendments of 1972 (now the CWA),
incorporating the section 401 WQC requirement as follows:
Any applicant for a Federal license or permit to
conduct any activity including, but not limited to, the
construction or operation of facilities, which may result
in 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 [33
U.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’s
1970 WQC “continue[d] in full force and effect” thereafter
pursuant to the CWA’s savings provision. Id. § 4, 86 Stat. at
897.
An operating licensee may also be required to maintain a
permit 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 discharge
will meet . . . all applicable requirements under [42 U.S.C. §§]
5
1311, 1312, 1316, 1317, 1318, and 1343.” 33 U.S.C. § 1342.2Section 402(b) allows a state to obtain EPA approval to
administer its own NPDES program, 33 U.S.C. § 1342(b), and
in 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 for
a five-year term in 2001. See In re Entergy Nuclear Vt. Yankee
Discharge Permit, 989 A.2d 563, 568-69 (Vt. 2009).3
On January 25, 2006, Entergy filed an application with the
NRC 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 to
ensure 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)).
3
Although the permit expired by its terms in 2006, because
Entergy timely filed for renewal on September 30, 2005, Vermont
Yankee 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).
6
with the application was an environmental report, as required
under 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’s
Environmental 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 renewal
application 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.
7
51.4 Notice of Acceptance for Docketing of the Application and
Notice 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 interest
may 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 accordance
with the Commission’s ‘Rules of Practice for Domestic
Licensing Proceedings’ in 10 C.F.R. Part 2.” Id. at 15,221. The
notice further directed that any petition to intervene set forth the
petitioner’s interest and “the specific contentions which the
petitioner/requestor seeks to have litigated at the proceeding”
pursuant to 5 C.F.R. § 2.309(a). Id. Four parties, including DPS
and 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 contentions
challenging Entergy’s application, only one of which is relevant
here. NEC’s “Contention 1” asserted that “Entergy’s
4
The 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 for
Renewal 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 more
atomic 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).
8
environmental report (ER) failed to ‘sufficiently assess[]’ the
environmental impacts of the license renewal, specifically the
impacts of increased thermal discharges into the Connecticut
River 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 not
sufficient 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 valid
Vermont 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 Entergy and the NRC, regardless
of 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).
9
Following 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 of
Entergy’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’s
amended 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, Entergy
is 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
________________________
1
Additionally, Entergy has an independent obligation to
obtain 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 of
Maine, 547 U.S. [370, 373] (2006).
NEC’s Reply to Entergy & NRC Staff’s Answers to NEC’s Late
Contention/Req. to Amend, at 5-6 & n.1 (Aug. 28, 2006).
On September 22, 2006, the Board admitted for hearing
several of NEC’s contentions, including Contention 1, but
granted Entergy’s motion to strike the “portions of NEC’s Reply
that relate[d] to certification under 401,” “agree[ing] with
Entergy that NEC’s attempt to introduce an entirely new
10
argument regarding the alleged need for a section 401
certification is not permissible in a reply.” Entergy Nuclear Vt.
Yankee, LLC, 64 N.R.C. 131, 182 (Sept. 22, 2006).6 On October
2, 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 to
NEC’s contention that Entergy failed to assess impacts to water
quality.” Id. at 7. The Board explained: “A CWA § 401
certification 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 Draft
Supplemental Environmental Impact Statement (Draft SEIS).
Generic Envtl. Impact Statement for License Renewals of
Nuclear Plants, Supp. 30 (Regarding Vt. Yankee Nuclear Power
Plant) (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
6
The NRC subsequently reversed the Board’s order insofar as it
agreed 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).
11
Register notice published concurrently solicited comments on
the Draft SEIS. The petitioners submitted no responsive
comment objecting to the lack of a section 401 WQC. The NRC
issued 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, on
November 24, 2008, issued a Partial Initial Decision resolving
all but one of the remaining admitted contentions. Entergy
Nuclear Vt. Yankee, LLC, 68 N.R.C. 763 (2008). The order
stated:
With the exception of [two contentions resolved in
favor of NEC and DPS and the one unresolved
contention] and the opportunity to seek reconsideration
of 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
7
Regulation 2.1212, titled “Petitions for Commission review of
initial decisions,” states in its entirety:
Parties may file petitions for review of an initial decision
12
On March 10, 2011, the Commission issued a Memorandum
and Order affirming a Board rejection of a contention litigated
by 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 out
in § 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 or
partial 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).
13
2342(4); see Honeywell Int’l, Inc. v. NRC, 628 F.3d 568, 575
(D.C. Cir. 2010).8 We nonetheless decline to exercise
jurisdiction because the petitioners failed to exhaust their
administrative remedies and accordingly waived their section
401 argument.
We have recognized two distinct species of exhaustion
requirements: (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 to
judicial review.” Avocados Plus Inc. v. Veneman, 370 F.3d
1243, 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
8
Section 2239 makes “subject to judicial review . . . [a]ny final
order 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 Entergy
Nuclear Vt. Yankee, LLC, CLI-11-02, 2011 WL 864757, at *8); see 28
U.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 court
of 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 petitions
for review were timely filed within 60 days thereafter, on May 20,
2011.
14
to a decision.’ ” Id. at 1248 (quoting I.A.M. Nat’l Pension Fund
Benefit 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.3d
936, 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 observed
that when “an agency’s regulations [] require issue exhaustion
in administrative appeals[,] . . . courts reviewing agency action
regularly 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, we
concluded 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 to
delegated authority.” 47 C.F.R. § 1.115(a), (b)(1), (k); see
Environmentel, 661 F.3d at 83-84. Under the regulation, we
determined, “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.3d
at 84. We find the NRC regulations applicable here are
materially indistinguishable from the FCC regulations in
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 review
of an agency action.” 10 C.F.R. § 2.341(b)(1), (b)(2)(iii),
§ 2.1212. Thus, like the petitioner in Environmentel, the
petitioners here were required under agency regulations to afford
the 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 for
interlocutory 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, separate
contention 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 Draft
nor 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 these
opportunities to fulfill the exhaustion requirement—and the
Board’s admonition that “[f]iling a petition for review is
16
mandatory for a party to exhaust its administrative remedies
before seeking judicial review[,] 10 C.F.R. § 2.341(b)(1),”
Entergy Nuclear Vt. Yankee, LLC, 68 N.R.C. at 897—the
petitioners sat silent for two and one-half years thereafter,
raising their section 401 objection only after the Commission
issued 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 at
83 (“Environmentel waived its right to raise the ex parte and
public notice issues because it failed to raise those issues before
the full Commission . . . .”).
The petitioners contend it would have been futile to raise
the section 401 issue before the Commission, which “has clearly
held that the issue of whether an applicant possesses a required
CWA 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 state
agency’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) (“Whether
non-NRC permits are required is the responsibility of bodies that issue
17
acknowledge, the NRC’s obligation to insure that operators
obtain 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’s
WQC 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 which
must 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 NRC
proceeding 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 NRC
proceeding 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”).
10
Indeed, the Commission took the position in its GEIS that the
section 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
18
Stephens v. NRC, 626 F.2d 995 (D.C. Cir. 1980) (upholding
NRC 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 should
be 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 interests
in 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 no
such exculpatory circumstances here. The petitioners proffer
proffered had the petitioners sought review of the Board’s decision as
required. 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. See
VANR Memo. to NRC 1 (June 23, 2006) (“As we understand it, these
issues are associated with intake structures and thermal discharge
issues 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 stringent
standards that ensure the protection and propagation of a balanced
indigenous community of shellfish, fish and wildlife[,] VANR concurs
with the NRC conclusion that the impacts of the thermal discharge and
fish impingement and entrainment [are] likely to be small. This is
true, in large part, because the process associated with the NPDES
permit 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.”).
19
three reasons why “the instant dispute is the ‘occasional[]’ case
in which ‘exhaustion will not fulfill these ends’ and is
unnecessary”: (1) there are “ ‘no facts in dispute,’ . . . regarding
the gravamen of Petitioners’ §401 claim”; (2) “ ‘the disputed
issue[s]’ in this case are purely legal ones, and thus lie ‘outside
the agency’s expertise’ ”; and (3) the petitioners “gave NRC
numerous ‘opportunit[ies] to correct [its] own errors’ . . . by
timely 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 last
point 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 Commission
was 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 consider
Entergy’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 any
interest 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[,] courts
should not topple over administrative decisions unless the
administrative body not only has erred, but has erred against
objection 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
20
corrective process which might have cured or rendered moot the
very 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 petitioners
failed 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.