In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents,v.New York State Department of State et al., Appellants.BriefN.Y.October 19, 2016APL-2015-00152 To be Argued by: BARBARA D. UNDERWOOD (Time Requested: 20 Minutes) App. Div. Third Dept. No. 518510; Albany Co. Index No. 1535-13 Court of Appeals of the State of New York IN THE MATTER OF ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR INDIAN POINT 2, LLC, AND ENTERGY NUCLEAR INDIAN POINT 3, LLC, Petitioners-Respondents, -AGAINST- THE NEW YORK STATE DEPARTMENT OF STATE AND CESAR A. PERALES, SECRETARY OF THE NEW YORK STATE DEPARTMENT OF STATE, Respondents-Appellants. RESPONDENTS-APPELLANTS’ BRIEF IN RESPONSE TO THE AMICUS BRIEF FILED BY THE NUCLEAR ENERGY INSTITUTE, INC. BARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General FREDERICK A. BRODIE Assistant Solicitor General LISA M. BURIANEK Assistant Attorney General Environmental Protection Bureau of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents-Appellants The Capitol Albany, New York 12224 (518) 776-2317 (telephone) (518) 915-7724 (facsimile) Dated: July 7, 2016 Reproduced on Recycled Paper i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 ARGUMENT ............................................................................................. 3 THE CZMA AUTHORIZES STATES TO CONDUCT CONSISTENCY REVIEW OF APPLICATIONS FOR NUCLEAR PLANT LICENSES IN COASTAL ZONES, SEPARATE FROM AND IN ADDITION TO NRC REGULATION ................................................................................. 3 A. NEI’s Position is Inconsistent with the View of the NRC Itself, as Well as Past Practice in New York and Other States ............................................................ 3 B. The Atomic Energy Act Does Not Preempt the CZMA or New York’s CMP ..................................................... 5 C. The CZMA Contains No Exemptions from Coastal Consistency Review ................................................................. 8 D. Consistency Review Under the CZMA Differs in Focus from the NRC’s Regulation of Nuclear Plants ..................................................................................... 10 1. Seismic Data ................................................................ 11 2. Groundwater Contamination ....................................... 13 3. Spent Fuel Storage ....................................................... 14 CONCLUSION ........................................................................................ 16 ii TABLE OF AUTHORITIES CASES PAGE California Public Employees’ Retirement Syst. v. WorldCom, Inc., 368 F.3d 86 (2d Cir. 2004), cert. denied, 543 U.S. 1080 (2005) ........................................................................ 7 Islander East Pipeline Co. v. Algonquin Gas Transmission Co., 102 FERC ¶61,054, 2003 WL 245811 (FERC Jan. 17, 2003) ........ 7n Islander East Pipeline Co., LLC v. Conn. Dep’t of Envt’l Protection, 482 F.3d 79 (2d Cir. 2006) .............................................................. 7n Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) .......................................................................... 7 Southern Pacific Transp. Co. v. California Coastal Commission, 520 F. Supp. 800 (N.D. Ca 1981) ..................................................... 9 United States v. Borden Co., 308 U.S. 188 (1939) .......................................................................... 7 Weaver’s Cove Energy, LLC v. R.I. Coastal Resources Mgmt. Council, 589 F.3d 458 (1st Cir. 2009) ............................................................. 9 FEDERAL STATUTES P.L. 83-703, 68 Stat. 919 (Aug. 30, 1954) ................................................. 7 P.L. 92-583, 86 Stat. 1280 (Oct. 27, 1972) ................................................ 7 16 U.S.C. §§ 1451-1464 ..................................................................................... 1 § 1451(a) ......................................................................................... 6 § 1454 .............................................................................................. 6 § 1455(d) ......................................................................................... 6 iii TABLE OF AUTHORITIES (cont’d) FEDERAL STATUTES (cont’d) PAGE 16 U.S.C. (cont’d) § 1455(d)(6) ..................................................................................... 10 § 1456(c)(3)(A) ....................................................................... 3,6,8,10 33 U.S.C. § 1341(a)(1) ..................................................................................... 4n 42 U.S.C. § 2011 .............................................................................................. 10 § 2012 .............................................................................................. 10 FEDERAL RULES AND REGULATIONS 15 C.F.R. § 930.51(a) ........................................................................................ 8 § 930.130(d) ...................................................................................... 9 § 930.130(e) ....................................................................................... 9 47 Fed. Reg. 47,056 (Oct. 22, 1982) ........................................................... 6 71 Fed. Reg. 788 (Jan. 5, 2006) ............................................................................. 6 823 (Jan. 5, 2006) .......................................................................... 6,8 MISCELLANEOUS http://www.dos.ny.gov/opd/programs/pdfs/Consistency/ RE_GinnaConcurrence.pdf (last visited July 5, 2016) .................. 5n http://www.dos.ny.gov/opd/programs/pdfs/Consistency NineMilePointConcurrence.pdf (last visited July 5, 2016) ........... 5n iv TABLE OF AUTHORITIES (cont’d) MISCELLANEOUS (cont’d) PAGE http://www.dos.ny.gov/opd/programs/pdfs/Consistency FitzPatrickConcurrence.pdf (last visited July 5, 2016) ................. 5n Amy Kraft, “Indian Point nuclear plant called ‘disaster waiting to happen’” (Feb. 23, 2016), available at http://www.cbsnews.com/ indian-point-nuclear-power-plant-called-a-disaster-waiting-to happen/ (last visited July 5, 2016) ............................................... 14n Bill Dedman, “What are the Odds? US Nuke Plants Ranked by Quake Risk” (Mar. 17, 2011), available at http://www.nrc.gov/ docs/ML1233/ ML12335A417.pdf (last visited July 5, 2016). ..... 11n David Shortell, “Indian Point nuclear plant leak causes radioactivity in groundwater” (Feb. 6, 2016), available at http://www.cnn.com/2016/02/06/us/nuclear-facility-ground- contamination-new-york/(last visited July 5, 2016) .................... 14n Lynn R. Sykes, John G. Armbruster, Won-Young Kim & Leonard Seeber, “Observations and Tectonic Setting of Historic and Instrumentally Located Earthquakes in the Greater New York City-Philadelphia Area,” Bulletin of the Seismological Society of America, vol. 98, no. 4 at 1717 (Aug. 2008), available at http://www.earth.columbia.edu/sitefiles/file/pressreleases/ 1696.pdf (last visited July 5, 2016). ..................................... 11n,12n S. Rep. No. 753, 92d Congress, 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4776 ................................................................... 8 U.S. Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, Division of License Renewal, “Frequently Asked Questions on License Renewal of Nuclear Power Reactors,” (NUREG-1850 (March 2006) § 4.1.11 .............................................. 4 PRELIMINARY STATEMENT Respondents-appellants the New York State Department of State and its Secretary (together, NYSDOS) respectfully submit this brief, pursuant to this Court’s Rule 500.12(f), in response to the amicus curiae brief of the Nuclear Energy Institute, Inc. (NEI).1 NEI asserts that the Nuclear Regulatory Commission (NRC), as the federal licensing agency, is vested with exclusive responsibility to decide all issues associated with license renewal. The NRC has primary responsibility for licensing nuclear power plants, but the NRC’s authority to approve license applications is subject to a separate review of the nuclear facility’s coastal effects conducted by state agencies under the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1464. In the CZMA, Congress created an additional layer of review for all federal licenses affecting coastal resources. Under the CZMA, a designated agency in the coastal state is authorized to evaluate federal license applications for consistency with the state’s coastal management 1 If additional amici seek leave to appear in support of Entergy, NYSDOS reserves the right to ask this Court to set a deadline by which all amicus briefs must be served, and to provide for a consolidated response by NYSDOS to all other amici. - 2 - policies. Coastal consistency review under the CZMA adds a different perspective to federal license determinations, including the review of nuclear licenses, through the lens of consistency with the state’s coastal policies. The NRC and other licensing agencies are not charged with undertaking such a review. Congress regarded the coastal states’ perspective as essential, and thus created no exceptions to the review requirement. Consequently, the NRC itself has recognized that its decisions on applications to renew the operating licenses for nuclear facilities in coastal areas must be preceded by consistency determinations conducted by the responsible state agencies. In New York, NYSDOS reviews license renewal applications pursuant to the CZMA for consistency with the enforceable coastal policies in the State’s federally approved Coastal Management Program (CMP). - 3 - ARGUMENT THE CZMA AUTHORIZES STATES TO CONDUCT CONSISTENCY REVIEW OF APPLICATIONS FOR NUCLEAR PLANT LICENSES IN COASTAL ZONES, SEPARATE FROM AND IN ADDITION TO NRC REGULATION NEI argues that “the licensing and regulation of the radiological safety of nuclear power plants” is a matter within the “exclusive jurisdiction” of the NRC. (NEI Br. 2.) NEI further contends that “[s]tate review” of a nuclear energy license application “is neither authorized under the Supremacy Clause of the U.S. Constitution nor necessary.” (NEI Br. 2.) As shown below, NEI is incorrect: the CZMA is a federal statute and, as even the NRC acknowledges, the CZMA added a new, federally-authorized state review of nuclear operating licenses and renewals for consistency with state coastal policies. A. NEI’s Position is Inconsistent with the View of the NRC Itself, as Well as Past Practice in New York and Other States The NRC does not have “exclusive” authority over license renewals for nuclear plants. State agencies are expressly provided review authority in that federal process, and others, under the CZMA. See 16 U.S.C. §1456(c)(3)(A). The NRC itself recognizes that its license renewals must - 4 - comply with the CZMA. According to an NRC guidance document answering “Frequently Asked Questions on License Renewal of Nuclear Power Reactors”: Apart from the National Environmental Policy Act (NEPA), does the NRC have to comply with other environmental laws, regulations, or Executive Orders? The NRC has to comply with all applicable Federal environmental laws, regulations, and Executive Orders, including . . . those promulgated by other Federal agencies, so long as compliance would not be inconsistent with other statutory requirements. Some of the laws, regulations, and Executive Orders that pertain to the license renewal process include the following: * * * • Coastal Zone Management Act of 1972, with respect to natural resources and land or water use of the coastal zone U.S. Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, Division of License Renewal, “Frequently Asked Questions on License Renewal of Nuclear Power Reactors,” NUREG-1850 (March 2006) § 4.1.11 (emphasis added). Thus, states have an important regulatory role to play in nuclear operating license renewals.2 2 Similarly, the Clean Water Act provides for state review of federal licenses and requires a certification from the State that any discharge will comply with the Act. See 33 U.S.C. § 1341(a)(1) (“No license or permit shall be granted if certification has been denied by the State. . . .”). - 5 - New York shares the NRC’s understanding of the CZMA’s effect. The state’s CMP expressly lists the issuance of an operating license for a nuclear facility as subject to coastal consistency review. (R.293, 295.) NYSDOS’s uniform practice has been to conduct consistency reviews of the license renewals for nuclear plants: it reviewed the relicensing of the R.E. Ginna nuclear plant in 2004,3 the Nine Mile Point nuclear reactors in 2006,4 and the James A. FitzPatrick nuclear plant in 2008.5 The practice outside New York is similar: at least twenty nuclear plant license renewals in other states have been subjected to coastal consistency review. (R.3312, 4314.) B. The Atomic Energy Act Does Not Preempt the CZMA or New York’s CMP NEI errs in suggesting that the Atomic Energy Act somehow preempts the CZMA and New York’s CMP (see, e.g., NEI Br. 2-3, 13-14, 21). The CZMA is a federal statute, and it assigns coastal consistency 3 See http://www.dos.ny.gov/opd/programs/pdfs/Consistency/ RE_GinnaConcurrence.pdf (last visited July 5, 2016). 4 See http://www.dos.ny.gov/opd/programs/pdfs/Consistency/ NineMilePointConcurrence.pdf (last visited July 5, 2016). 5 See http://www.dos.ny.gov/opd/programs/pdfs/Consistency/ FitzPatrickConcurrence.pdf (last visited July 5, 2016). - 6 - review to state agencies. When Congress passed the law in 1972, it declared “a national interest in the effective management, beneficial use, protection, and development of the coastal zone.” 16 U.S.C. § 1451(a) (emphasis added). If approved by the U.S. Secretary of Commerce, a state CMP is binding on federal agency actions. See 16 U.S.C. §§ 1454, 1455(d), 1456(c)(3)(A). New York’s CMP was federally approved. See 47 Fed. Reg. 47,056 (Oct. 22, 1982). Because the CZMA authorizes the coastal states to create CMPs, federally approved CMPs are not preempted by other federal laws. The National Oceanic and Atmospheric Administration (NOAA), charged with administering the CZMA on the federal level, explained this in 2006 when considering whether amendments to the Natural Gas Act (NGA) preempted the CZMA. Review for consistency with State coastal policies did not “violate any preemptive effect” of the NGA, wrote NOAA, because “the State review, pursuant to federally approved State enforceable policies, is part of the federal CZMA scheme.” 71 Fed. Reg. 788, 823 (Jan. 5, 2006). Since “[t]he CZMA is part of a Federal scheme allowing State review of federal authorizations for private activities - 7 - that have effects on State coastal uses or resources,” it must be “given the full effect of Federal law.” Id.6 When two federal laws cover the same subject, courts must, if possible, give effect to both provisions. United States v. Borden Co., 308 U.S. 188, 198 (1939); accord Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976). Even when two federal statutes are truly irreconcilable – which is not the case here – a court “‘must give effect to the most recently enacted statute since it is the most recent indication of congressional intent.’” California Public Employees’ Retirement Syst. v. WorldCom, Inc., 368 F.3d 86, 104 (2d Cir. 2004) (citation omitted), cert. denied, 543 U.S. 1080 (2005). This means that, as to the assignment of regulatory authority, the CZMA, enacted in 1972 (see P.L. 92-583, 86 Stat. 1280 (Oct. 27, 1972)), takes precedence over the Atomic Energy Act, enacted in 1954 (see P.L. 83-703, 68 Stat. 919 (Aug. 30, 1954)). 6 Accord Islander East Pipeline Co., LLC, v. Conn. Dep’t of Envt’l Protection, 482 F.3d 79, 84 (2d Cir. 2006) (Federal Energy Regulatory Commission review of natural gas project application “must ensure that the project complies with the requirements of all relevant federal laws, including . . . the Coastal Zone Management Act”); Islander East Pipeline Co. v. Algonquin Gas Transmission Co., 102 FERC ¶61,054, 2003 WL 245811 (FERC Jan. 17, 2003) (“While state and local permits are preempted under the NGA, state authorizations required under federal law [including coastal consistency review] are not.”). - 8 - C. The CZMA Contains No Exemptions from Coastal Consistency Review Neither the Atomic Energy Act nor the CZMA exempts nuclear plant licensing from the CZMA’s comprehensive mandate that “any applicant for a required Federal license” provide a coastal consistency certification. 16 U.S.C. § 1456(c)(3)(A); see also 15 C.F.R. § 930.51(a) (broadly defining “federal license or permit”). As NOAA put it, “[n]o federal license or permit activities are exempt” from coastal consistency review. 71 Fed. Reg. at 823. The CZMA’s legislative history supports that conclusion. Reporting favorably on the legislation, the Senate Commerce Committee wrote that it did “not intend to exempt Federal agencies automatically from the provisions of this Act.” S. Rep. No. 753, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 4776, 4793. Rather, the Committee “deem[ed] it essential that Federal agencies administer their programs . . . consistent with the States’ coastal zone management program.” Id. A federal court likewise recognized the CZMA’s absence of exceptions when it held that the federal Interstate Commerce Commission’s primary authority over railway abandonments did not - 9 - excuse a regulated railroad from compliance with the CZMA. See Southern Pacific Transp. Co. v. California Coastal Commission, 520 F. Supp. 800 (N.D.Ca. 1981). The court observed that the CZMA manifested “Congress’ intention to make compliance with the consistency review procedure mandatory as to any applicant for a required federal license or permit.” Id. at 803. “Congress provided no automatic exemption for CZMA-mandated consistency review even in the sensitive area of defense projects.” Id. The CZMA provides a mechanism for harmonizing the statute’s mandate with other federal concerns. If a party contests the result of coastal consistency review, it may appeal the state’s objection to the U.S. Secretary of Commerce. The Secretary may override the objection by finding, with support in the record, that the proposed activity is consistent with the CZMA’s national objectives or purposes or is necessary for national security. See 15 C.F.R. § 930.130(d)-(e). The Secretary’s decision may, in turn, be reviewed in the federal courts. Weaver’s Cove Energy, LLC v. R.I. Coastal Resources Mgmt. Council, 589 F.3d 458, 463 (1st Cir. 2009). - 10 - D. Consistency Review Under the CZMA Differs in Focus from the NRC’s Regulation of Nuclear Plants Coastal consistency review under New York’s CMP, as authorized by the CZMA, does not duplicate or conflict with the NRC regulatory efforts described in NEI’s brief. Rather, the CZMA and the CMP create an additional layer of review that is conducted from a different perspective. The CZMA and the Atomic Energy Act differ in focus. The Atomic Energy Act was intended to foster “the development, use, and control of atomic energy.” 42 U.S.C. §§ 2011, 2012. Review of a proposed license under the CZMA, however, focuses on consistency with the host state’s coastal policies – a matter largely outside the NRC’s area of emphasis, but uniquely the concern of NYSDOS, the state agency designated to administer New York’s CMP under 16 U.S.C. § 1455(d)(6). (See R.94-95, 283, 3176.) State agencies such as NYSDOS, acting pursuant to the CZMA, thus approach their review of proposed federal licenses from the perspective of “the enforceable policies of the state’s approved [coastal management] program.” 16 U.S.C. § 1456(c)(3)(A). New York’s CMP describes in detail 44 such policies. (R.64, 141-245.) Developed after - 11 - extensive public input (R.52), those policies reflect numerous environmental, economic, and other concerns that fall outside the NRC’s area of concentration – for example, waterfront development (R.143), transportation (R.151), coastal fish and wildlife (R.160, 165, 168, 170), flooding and erosion (R.172, 174, 176, 177, 179, 181, 182), recreation (R.190, 197, 202, 206), scenery (R.213, 217), and many others. 1. Seismic Data Recent data, not available when Units 2 and 3 were originally licensed, shows that the reactor core sits near the confluence of two active earthquake faults.7 (Cf. NEI Br. 4-8.) An NRC report in 2011 found that Indian Point 3 ranks higher than any other nuclear reactor in the United States for risk of earthquake damage.8 (See also NEI Br. 7 Lynn R. Sykes, John G. Armbruster, Won-Young Kim & Leonard Seeber, “Observations and Tectonic Setting of Historic and Instrumentally Located Earthquakes in the Greater New York City-Philadelphia Area,” Bulletin of the Seismological Society of America, vol. 98, no. 4 at 1717 (Aug. 2008), available at http://www.earth.columbia.edu/sitefiles/file/pressreleases/ 1696.pdf (last visited July 5, 2016). 8 See Bill Dedman, “What are the Odds? US Nuke Plants Ranked by Quake Risk” (Mar. 17, 2011), available at http://www.nrc.gov/docs/ML1233/ ML12335A417.pdf (last visited July 5, 2016). - 12 - 7-8 [NRC concluded that Indian Point reactors “screened in” for further seismic risk evaluation because “new hazard” from earthquakes at facility “exceeds the current licensing basis”]).9 While the NRC can evaluate earthquake risk from a technical perspective, NYSDOS is charged with considering “the vital economic, social and environmental interests of the State and its citizens” and whether a proposed license would “significantly impair valuable coastal waters and resources.” (R.184.) Under NEI’s approach, NYSDOS’s perspective on these crucial State interests would remain unheard and New York’s coastal policies would be ineffectual when applied to nuclear plants. In any event, the content of NYSDOS’s findings and conclusions on earthquake risk must await further proceedings to be reviewed. In the only opinion at issue on this appeal, NYSDOS determined that Indian Point’s relicensing was subject to coastal consistency review. NYSDOS’s advisory opinion did not pass upon the merits of whether 9 The magnitude of the newly-discovered seismic risk was not reflected in the 1970s-era environmental impact statements on which Entergy’s claim for exemption from coastal consistency review is based. (See R.577, 1527, 2122- 2123.) See also Sykes et al. at 1717. - 13 - relicensing would be consistent with New York’s coastal policies, and thus did not discuss earthquake risks. (See R.486-500.) 2. Groundwater Contamination The issue of groundwater contamination (see NEI Br. 8-10) provides another example of how NYSDOS’s coastal consistency review adds a different and valuable perspective to the consideration of a federal license application. NEI points out that the NRC requires groundwater monitoring to “detect leakage” of radioactive material and “allow[]” companies to mitigate “any leaks that do occur.” (NEI Br. 8.) The NRC also requires that licensees “maintain records” of their leaks and “submit annual radiological effluent release reports” to the agency. (NEI Br. 9.) The NRC, however, is not charged with considering whether renewing the license of a leaking nuclear plant would be consistent with New York’s coastal policies. The relevant coastal policies include the State’s commitment to “[p]rotect fish and wildlife resources in the coastal area from the introduction of hazardous wastes and other pollutants which bioaccumulate in the food chain” (R.165); whether “[t]he quality and quantity of surface water and groundwater supplies - 14 - will be conserved and protected, particularly where such waters constitute the primary or sole source of water supply” (R.238); and the objective that “[e]ffluent discharged from major steam electric generating and industrial facilities into coastal waters will not be unduly injurious to fish and wildlife” (R.240). Those coastal policies take on added weight in light of recent revelations that radioactivity levels in the groundwater at Indian Point are 65,000% higher than normal.10 3. Spent Fuel Storage The separate perspective of NYSDOS, founded on New York’s coastal policies, likewise adds value to a discussion of Indian Point’s storage of radioactive waste on-site. (Cf. NEI Br. 10-13.) While the NRC may seek to “ensure[] the safe interim storage of spent nuclear fuel” by setting standards for “reinforced concrete walls” and active monitoring 10 See David Shortell, “Indian Point nuclear plant leak causes radioactivity in groundwater” (Feb. 6, 2016), available at http://www.cnn.com/2016/02/06/us/nuclear-facility-ground-contamination- new-york/ (last visited July 5, 2016); Amy Kraft, “Indian Point nuclear plant called ‘disaster waiting to happen’” (Feb. 23, 2016), available at http://www.cbsnews.com/news/indian-point-nuclear-power-plant-called-a- disaster-waiting-to-happen/ (last visited July 5, 2016). - 15 - of “leakage” (NEI Br. 10-11), coastal consistency review examines whether such a facility is an appropriate use of New York’s coastline. Thus, in addition to protection of the fish and wildlife resources mentioned above (see R.165), the CMP also reflects the State’s desire that the shipment and storage of hazardous materials “prevent or at least minimize spills into coastal waters”; and that the “transport, storage, treatment and disposal” of hazardous wastes within coastal areas “be conducted in such a manner so as to protect groundwater and surface water supplies, significant fish and wildlife habitats, recreation areas, important agricultural lands and scenic resources.” (R. 237, 239.) Accordingly, while an environmental report prepared for the NRC could be taken into account by NYSDOS when reviewing an application for renewal of a nuclear operating license, due to the agencies’ different areas of focus the NRC’s review of environmental matters cannot be substituted for NYSDOS’s review of the application for consistency with New York State’s coastal policies. CONCLUSION The Appellate Division's order and judgment should be reversed for the reasons set forth in NYSDOS's opening brief and reply brief. Dated: July 7, 2016 Albany, New York B ARBARA D. UNDERWOOD Solicitor General ANDREW D. BING Deputy Solicitor General FREDERICK A. BRODIE Assistant Solicitor General LISA M. BURIANEK Assistant Attorney General, Environmental Protection Bureau of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents-Appellants By: 7b~eJ~~ FREDERICK A. B RODIE Assistant Solicitor General The Capitol Albany, New York 12224 Telephone: (518) 776-2317 Facsimile: (518) 915-7724 Reproduced on Recycled Paper - 16 - CERTIFICATION Pursuant to section 500.13(c)(l) of this Court's Rules of Practice, I certify that, according to the word-processing system used to prepare this brief, the body of the brief (including footnotes) contains 2, 799 words. d~A.6-A~ Frederick A. Brodie - 17-