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. § 1342.2

Section 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 at

569 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”).

10Indeed, 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.