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IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT
Bennett Brown, et al., )Petitioners, )
v. ) No. 11-1441U.S. Nuclear Regulatory Commission, et al. )
Respondents. )
FEDERAL RESPONDENTS' REPLYTO PETITIONERS' RESPONSE
TO FEDERAL RESPONDENTS' MOTION TO DISMISS
The Federal Respondents have moved to dismiss this case because
Petitioners (1) did not file their Petition for Review within 60 days of entry of the
NRC Order as the Hobbs Act requires, 28 U.S.C. §2344, and (2) did not exhaust
their administrative remedies by fully participating as parties in the NRC hearing
process, as the Atomic Energy Act ("AEA") and NRC regulations require.
Petitioners' Response to our Motion is unpersuasive.
Background.
This lawsuit challenges the NRC's environmental review of an application
to renew the operating license for the Duane Arnold Energy Center. Petitioners
submitted comments either during the environmental scoping process or in
response to the publication of the Draft Supplemental Environmental Impact
Statement (SEIS). But Petitioners never attempted to intervene or seek a hearing
in the administrative proceeding to review the license renewal application.
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The NRC issued a Final SEIS in October, 2010, and formally announced it
in the Federal Register. See 75 Fed. Reg. 64,748 (Oct. 20, 2010). The NRC then
issued the renewed license on December 16, 2010, and formally announced it in
the Federal Register on December 29, 2010. See 75 Fed. Reg. 82,091 (Dec. 29,
2010). On February 28, 2011, Petitioners filed this case challenging the NRC's
response to their comments more than 60 days after the December 16th entry of the
NRC renewal of the license.
The Petition for Review Is Untimely.
The Hobbs Act requires a party aggrieved by a final order to file a petition
for review within 60 days of its "entry." In attempting to show their petition is
timely, Petitioners argue that the meaning of "entry" differs by party depending on
when a party is served or receives notice of the order. They maintain that the 60-
day filing period under the Hobbs Act did not start to run until the publication of
the Federal Register Notice on December 29, 2010, because that is the date that
the Duane Arnold Renewed License became "final, complete, and a matter of
public record." Response at 8 (citing Chem-Haulers, Inc. v, United States, 536
F.2d. 610, 616 (5th Cir. 1976)). Petitioners also claim that they did not know how
the NRC responded to their comments (both during the scoping process and on the
Draft SEIS) until publication of the December 29th Federal Register Notice - the
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first time they knew (they say) the Final SEIS was available. Response at 8-9
(citing Affidavits of Bennett Brown, Robert Schultes, and Pamela Mackey Taylor).
Petitioners also allege the NRC violated its own regulations by not mailing a copy
of the Final SEIS to all who commented. Response at 9.
Petitioners' claims are contradicted by the record. First, as noted above (and
in the Motion to Dismiss at page 3), the NRC issued a Federal Register Notice on
October 20, 2010, announcing issuance of the Final SEIS. The October Notice
also listed an "accession number" - ML 102790308 - enabling members of the
public to find, view and print the Final SEIS from the NRC's Web-based document
retrieval system. See 75 Fed. Reg. at 64,749. And when the final license-renewal
order was entered - on December 16 - it was announced in an NRC press release
and immediately reported in the press. See Motion to Dismiss at 7 and Exhibit 2.1
Thus, it is simply not true that Petitioners "had no way of knowing the contents of
1Petitioners complain that "even now" they cannot access the renewed
license itself on the NRC webpage associated with the Duane Arnold relicensing.Response at 9. The renewed license is available on the NRC website through theNRC document-retrieval system, ADAMS. See ML102930586. But our Motionincorrectly states the license was made available on December 16th; we have sincelearned it was made available on December 30th. We apologize for the error - andfor the delay. The SEIS is now - and has been since October 20, 2010 - availableon the Duane Arnold relicensing webpage for viewing and downloading.
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the final order until it appeared in the Federal Register on December 29, 2010."
Second, the SEIS itself lists the names of all those to whom copies were
mailed. The SEIS mailing list (attached as Exhibit 1) includes the Petitioners in
this lawsuit. See Exhibit 1, pp.4 & 5. "[A] presumption of regularity attaches to
the actions of government agencies." U.S. Postal Service v. Gregory, 534 U.S. 1,
10 (2001). "[I]n the absence of clear evidence to the contrary, courts presume that
[public officials] have properly discharged their official duties." United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). See also Wilburn v. Astrue,
626 F.3d 999, 1034-04 (8th Cir. 2010). Thus, this Court must presume the NRC
did indeed mail copies of the Final SEIS to Petitioners, as the SEIS itself states.
Finally, and most importantly, Petitioners' argument that the December 29th
Federal Register Notice started their 60-day window to file their Petition for
Review contradicts the plain terms of the Hobbs Act, which provides that any
lawsuit must be filed within 60 days of the "entry" of the agency order challenged.
See 29 U.S.C. § 2344. "Entry" of a decision, order, or judgment refers to one
specific time, e.g., "the court entered judgment on [a specific date]." Under
Petitioners' argument, the date of "entry" would differ depending on when any
given party learned of the order. But the Hobbs Act does not say a petition must
be filed within 60 days after "service" of the order or after it was first "noticed"- it
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specifies "entry" of the order as the trigger date. "[W]ith respect to filing deadlines
a literal reading of Congress' words is generally the only proper reading of those
words." United States v. Locke, 471 U.S. 84, 93 (1985).2
Section 2344 also states that "on entry of a final order ... the agency shall
promptly give notice thereof by service or publication in accordance with its
rules[,]" showing that "entry" is something different from "notice," "service," or
"publication." Here, as required by Section 2344, the NRC promptly gave notice
of the "entry" of the decision by publication in the Federal Register. Thus, the
December 29th Federal Register Notice placed Petitioners on notice of that the
agency decision was "entered" on December 16, 2010. While the question may be
more complicated when the agency fails to provide any notice of a decision, that is
not this case. Here, the NRC published timely notice of the decision and correctly
identified the date of "entry" as December 16.
In sum, even if Petitioners were unaware of the "entry" of the license until
December 29th, they were still obligated to file suit within 60 days of the order's
actual "entry," i.e., by February 14, 2011. Because they did not file this petition
2See also Avia Dynamics v. FAA, __ F.3d _,201.1 WL 1466330 at *3-*5(D.C. Cir., Apr. 19, 2011); Heide v. FAA, 110 Fed. App'x 724, 725 (8th Cir. 2004).
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for review until February 28 - 2 weeks later - their lawsuit should be dismissed as
untimely.
Petitioners Failed to Exhaust Their Administrative Remedies.
The Hobbs Act permits suits only by "parties" to agency proceedings. See
28 U.S.C. § 2344. Petitioners argue that by virtue of filing comments they became
"parties," within the meaning of the Hobbs Act, to the NRC administrative
proceeding to review the license renewal application, held under Section 189a of
the AEA, 42 U.S.C. § 2239(a). Thus (they argue), they did not need to intervene in
the NRC's hearing process. See Response at 13-15. This argument misapprehends
the nature of the interplay between the Hobbs Act and the AEA.
If this Court has jurisdiction over the petition for review, that jurisdiction is
based on the Hobbs Act, 28 U.S.C. § 2341, et seq. That statute gives this Court
jurisdiction over "all final orders of the [Nuclear Regulatory] Commission made
reviewable by section 2239 of title 42." 28 U.S.C. § 2342(4). In turn, 42 U.S.C.
§ 2239(b) provides
[t]he following Commission actions shall be subject to judicial review under[the Hobbs Act and the Administrative Procedure Act]: (1) Any final orderentered in any proceeding of the kind specified in subsection (a).
Subsection (a) provides:
In any proceeding under this Act, for the granting, suspending, revoking, oramending of any license[,] ... the Commission shall grant a hearing upon the
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request of any person whose interest may be affected by the proceeding, andshall admit any such person as a part)' to the proceeding.
42 U.S.C. § 2239 (a)(1) (emphasis added). Here, Petitioners challenge the granting
of the 20-year renewal of the Duane Arnold operating license. So to challenge the
NRC decision to issue the renewed license under the Hobbs Act, Petitioners must
show they were a "party" to a "proceeding" as defined in 42 U.S.C. § 2239(a).
Here, Petitioners argue that they became a "party" for purposes of the Hobbs
Act by participating in the "scoping process" or by commenting on the draft SEIS.
Response at 14-16. But the nature of an NRC proceeding is defined by NRC
regulations, which explicitly state that participation in the scoping process (or
commenting on environmental documents) is not participation in the NRC's
administrative hearing process. See 10 C.F.R. § 51.28(c). Instead, persons who
wish to challenge the issuance of a license must participate in the NRC
adjudicatory process. This includes claims under the National Environmental
Policy Act (NEPA), 42 U.S.C. § 4321, etseq. See 10 C.F.R. § 2.309(0(2).
As the Supreme Court noted years ago in a landmark NRC case,
"administrative agencies should be free to fashion their own rules of procedure and
to pursue methods of inquiry capable of permitting them to discharge their
multitudinous duties." Vermont Yankee Nuclear Power Corp. v. NRDC, 415 U.S.
519, 543 (1978) (internal quotation marks and citations omitted). See also,
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Citizens Awareness Network v. United States, 391 F.3d 338, 349 (1st Cir. 2004);
Union of Concerned Scientists v. NRC, 920 F.2d 50, 53-54 (D.C. Cir. 1990). Thus,
the NRC has acted well within its authority in requiring persons seeking to litigate
environmental issues to proceed through its "adjudicatory process" rather than
allowing them to proceed through a "comment process."
In addition, the "party" analysis under the Hobbs Act necessarily is linked to
the kinds of administrative remedies available. While it is true that some agencies
provide participation by "comment" only, the NRC requires persons who wish to
litigate environmental issues to seek an agency hearing at the earliest possible
moment. See 10 C.F.R. § 2.309(f)(2); Motion to Dismiss at 4. The NRC provides
an extensive hearing process to have complaints heard by, and remedied by, the
agency prior to judicial review. See Motion to Dismiss at 5 & nn. 2-3.
The NRC's additional "public comment" process covering environmental
documents such as the SEIS flows from the NEPA, 42 U.S.C. § 4321, et seq., not
from the AEA, 42 U.S.C. § 2201, et seq. Thus, mere participation in a NEPA
"comment" process does not entitle a "person" to become a "party" in an NRC
administrative proceeding held under the authority of the AEA's Section 189a, 42
U.S.C. § 2239(a). Instead, to be a "party" under the Hobbs Act, a person must
seek to intervene as a "party" in an AEA proceeding under the NRC's rules.
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The Hobbs Act's "party" requirement, in essence, codifies the general
administrative law requirement that those seeking judicial relief first exhaust their
administrative remedies. A person participating in an agency proceeding cannot
simply stop in the middle of the process and, ignoring any remaining available
steps, proceed immediately to court. As the Supreme Court has held repeatedly, a
court should dismiss a lawsuit where the litigant did not fully exhaust available
administrative remedies. E.g., Woodford v. Ngo, 548 U.S. 81, 90 (2006). This
Circuit has consistently followed that principle, requiring parties to exhaust all
available remedies before proceeding to court, regardless of the statute involved.
See, e.g., U.S. v. Dico, Inc., 136 F.3d 572-575-76 (8th Cir. 1998); Sharps v. U.S.
Forest Service, 28 F.3d 851, 853-54 (8th Cir. 1994); Madsen v. Department of
Agriculture, 866 F.2d 1035, 1038 (8th Cir. 1989); United States v. Bisson, 839
F.2d 418 (8th Cir. 1988). Here, Petitioners effectively acknowledge they did not
exhaust their administrative remedies because they failed to seek intervention and
request a hearing. Had they done so, they might have obtained relief from the
NRC, obviating the need to seek relief in this Court.
Finally, Petitioners make much of Massachusetts v. United States, 522 F.3d
115 (1st Cir. 2008), but misinterpret the case. Response at 17-19. In that case, the
Court held principally that the Commonwealth could not obtain party status to
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challenge an NRC regulation in an agency adjudicatory proceeding. 522 F.3d at
119-25. But the NRC acknowledged that the Commonwealth could "participate"
in the proceeding under 10 C.F.R. § 2.3 15 (which allows participation by states),
id. at 125, 128, and that if it participated in the proceeding under that provision, it
would be considered a "party" for Hobbs Act purposes if it later decided to
challenge the result of the proceeding in Federal Court. Id. at 130-31. The Court
stated that in that situation the Commonwealth would appear to have "directly and
actually ... participated in the administrative proceedings." Id. at 131 (quoting
Clark & Reid Co. v. U.S. 804 F.2d 3 (1st Cir. 1986)). The Court then held that
because participation in the NRC proceeding under section 2.315 was still
available, the Commonwealth had not yet exhausted its administrative remedies.
Id. at 132.
The applicability of Massachusetts to this case is obvious. Here, Petitioners
- like the Commonwealth - have not exhausted their administrative remedies.
CONCLUSION
For the foregoing reasons, and the reasons stated in our Motion to Dismiss,
this court lacks jurisdiction over the petition for review and it must be dismissed.
Respectfully submitted,
-11 -
IGNACIO S. MORENOAssistant Attorney General
_s/Allen M. Brabender/cemAttorney, U.S. Department of JusticeEnvironment and Natural Resources
Division, Appellate SectionP.O. Box 23795, L'Enfant Plaza StationWashington, D.C. 20026-3795(202) 514-5316
JOHN F. CORDES, JR.Solicitor
s/Charles E. MullinsSenior AttorneyOffice of the General CounselU.S. Nuclear Regulatory
Commission11555 Rockville PikeRockville, Maryland 20852(301) 415-1618
May 9, 2011
FEDERAL RESPONDENTS' REPLYTO PETITIONERS" RESPONSE
TO FEDERAL RESPONDENTS' MOTION TO DISMISS
EXHIBIT 1
12.0 LIST OF AGENCIES, ORGANIZATIONS, AND PERSONS TOWHOM COPIES OF THE SUPPLEMENTAL ENVIRONMENTAL IMPACT
STATEMENT ARE SENT
Name and Title
Mr. M. S. Ross
Managing Attorney
Ms. Marjan MashhadiSenior Attorney
T. 0. JonesVice President, Nuclear Operations
Steven R. CatronManager, Regulatory Affairs
Affiliation and Address
Florida Power & Light CompanyP.O. Box 14000Juno Beach, FL 33408-0420
Florida Power & Light Company801 Pennsylvania Avenue, NWSuite 220Washington, DC 20004
Mid-West RegionFlorida Power & Light CompanyP.O. Box 14000Juno Beach, FL 33408
Duane Arnold Energy Center3277 DAEC RoadPalo, IA 52324
Resident Inspector's Office U.S. Nuclear Regulatory CommissionResident Inspector's OfficeRural Route #1Palo, IA 52324
Florida Power & Light CompanyP.O. Box 14000Juno Beach, FL 33408
Mr. Mano Nazar
Senior Vice President and Nuclear ChiefOperating Officer
Mr. D. A. Curtland Duane Arnold Energy CenterPlant Manager 3277 DAEC Road
Palo, IA 52324-9785
Vice President, Engineering Support Florida Power & Light CompanyP.O. Box 14000Juno Beach, FL 33408
Melanie RasmussonBureau of Radiological Health
Iowa Department of Public Health
Bureau of Radiological Health
321 East 12th StreetLucas State Office Building, 5th Floor
Des Moines, IA 50319-0075
NUREG-1437, Supplement 42October 2010 12-1
List of Agencies, Organizations, and Persons
Name and Title Affiliation and AddressAffiliation and Address
Chairman Linn CountyBoard of Supervisors930 1st Street SWCedar Rapids, IA 52404
Florida Power & Light CompanyP.O. Box 14000Juno Beach, FL 33408-0420
Peter WellsActing Vice President, Nuclear Training andPerformance Improvement
Mark E. WarnerVice President, Nuclear Plant Support
George Thurman.Principal Chief
Florida Power & Light CompanyP.O. Box 14000Juno Beach, FL 33408-042
Sac and Fox Nation of OklahomaRoute 2 Box 246Stroud, OK 74079
Fredia Perkins Sac and Fox Nation of MissouriChairperson 305 North Main Street
Reserve, KS 66434
Christie Modlin Iowa Tribe of OklahomaChairperson Route 1, Box 721
Perkins, OK 74059
Steve Cadue Kickapoo Tribe in KansasChairman P.O. Box 271
Horton, KS 66439
Steve Ortiz Prairie Band of Potawatomi Indians
Chairman 16281 Q RoadMayetta, KS 66509
Joshua Weston Flandreau Santee Sioux Tribe
President P.O. Box 283Flandreau, SD 57028
Mr. Roger Trudell Santee Sioux Nation
Chairman 108 Spirit Lake Avenue, WestNiobrara, SD 68760-7219
John Blackhawk Winnebago Tribe of NebraskaChairman 100 Bluff Street
P.O. Box 687Winnebago, NE 68071
NUREG-1437, Supplement 41 12-2 October 2010
List of Agencies, Organizations, and Persons
Name and Title Affiliation and Address
Ronald Johnson Prairie Island Indian CommunityPresident 5636 Sturgeon Lake Road
Welch, MN 55089
Stanley R. Crooks Shakopee Mdewakanton Sioux Community ofChairman Minnesota
2330 Sioux Trail NWPrior Lake, MN 55372-9077
Kevin Jensvold Upper Sioux Community of MinnesotaChairman P.O. Box 147
Granite Falls, MN 56241-0147
Wilfred Cleveland Ho-Chunk NationPresident W9814 Airport Road
P.O. Box 667
Black River Falls, WI 54615
Adrian Pushetonequa The Sac and Fox Tribe of the Mississippi:Chairman 349 Meskwaki Road
Tama, IA 52339
Lori Nelson Lower Sioux Indian Community of MinnesotaActing Chair 39527 Res Highway 1
P.O. Box 308Morton, MN 56270
Amen Sheriden Omaha Tribal Council
Chairman P.O. Box 368Macy, NE 68039
Marion E. Frye Kickapoo Tribe of OklahomaChairman P.O. Box 70
McCloud, OK 74851
John Shotton Otoe-Missouria Tribe of Indians8151 Highway 177Red Rock, OK 74651
Leon Campbell Iowa Tribe of Kansas and NebraskaChairman 3345 Thrasher Road
White Cloud, KS 66094
Wayne Gieselman Iowa Department of Natural ResourcesAdministrator Environmental Services Division
502 East 9th StreetDes Moines, IA 50319.
October 2010 12-3 NUREG-1437, Supplement 42
List of Agencies, Organizations, and Persons
Name and Title
Richard Nelson
Field Supervisor
Affiliation and Address
U.S. Fish and Wildlife Service
Rock Island Field Office
1511 4 7th Ave.
Moline, Illinois 61265
Robert F. StewartRegional Environmental Officer
United States Department of the InteriorOffice of the SecretaryOffice of Environmental Policy andComplianceDenver Federal Center, Building 67, Room118Post Office Box 25007 (D-108)Denver, Colorado 80225-0007
Charlene Dwin Vaughn
Assistant Director
Federal Permitting, Licensing, and AssistanceSection
Advisory Council on Historic Preservation
Old Post Office Building1100 Pennsylvania Ave, NW, Suite 803Washington, DC 20004
Office of the State Archaeologist
700 South Clinton Street Building
University of Iowa
Iowa City, IA 52242-1030
John DoershuckState Archaeologist
Jerome Thompson State Historical Society of Iowa
Interim State Historic Preservation Officer 600 East Locust Street
Des Moines, IA 50319
Doug Jones State of Iowa Historical Building (Des Moines)600 East LocustDes Moines, Iowa, 50319515-281-5111
Dusky Terry Central Iowa Power CooperativeCitizen 2600 Grand Avenue, Suite 410
Des Moines, IA 50312
Bennett Brown 1025 Friendly AveCitizen Iowa City, IA 52240
Amir H. Moazzez 3650 Joseph Siewick, Dr. #309Fairfax VA 22033
NUREG-1437, Supplement 41 12-4 October 2010
List of Agencies, Organizations, and Persons
Name and Title Affiliation and Address
Hiawatha Public Library Hiawatha Public Library150 W. William St.,Hiawatha IA
Mr. Joseph Cothern Environmental Services DivisionEnvironmental Review Coordinator USEPA, Region 7
901 North 5th StreetKansas City, KS 66101
Northwest University Northwest University
Northwestern University Library1970 Campus DriveEvanston, IL 60208-2300
Dr. Robert Schultes 1000 Prairie Drive NECedar Rapids, Iowa 52402
W. L. Taylor, Legal Chair and Sierra ClubP. M Taylor, Energy Committee Chair Iowa Chapter Headquarters
3839 Merle Hay RoadSuite 280Des Moines, IA 50310
October 2 010 12-5 NUREG-1437, Supplement 42
CERTIFICATES OF SERVICEFOR DOCUMENTS FILED USING CM/ECF
Certificate of Service When All Case Participants Are CM/ECF Participants
I hereby certify that on May 5, 2011 , I electronically filed the foregoing with the Clerk ofthe Court for the United States Court of Appeals for the Eighth Circuit by using the CM/ECFsystem. I certify that all participants in the case are registered CM/ECF users and that servicewill be accomplished by the CM/ECF system.
s/ Charles E. Mullins
