ML070250367

New Jersey Department of Environmental Protection'S Notice of Pertinent New Case Law Affecting Appeal and Request for Its Consideration

ML070250367
Person / Time
Site:	Oyster Creek
Issue date:	01/19/2007
From:	Gray V State of NJ, Dept of Environmental Protection, State of NJ, Office of Attorney General
To:	NRC/OCM
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 12909
Download: ML070250367 (5)

Text

DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION January 19, 2007 (4:04pm)

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of: ) January 19, 2007 AmerGen Energy Company, Inc.'

Docket No. 50-219-LR (License Renewal for Oyster Creek Nuclear Generating Station)

)

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION'S NOTICE OF PERTINENT NEW CASE LAW AFFECTING APPEAL AND REQUEST FOR ITS CONSIDERATION Honorable Commissioners:

On January 12, 2007, the United States Supreme Court denied the petition of Pacific Gas and Electric Co. for a writ of certiorari in the case of San Luis Obispo Mothers for Peace v.

Nuclear Regulatory Commission, 449 F.3d 1016 (2006), thereby refusing to entertain an appeal from that decision of the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit ruled that the National Environmental Policy Act of 1969 ("NEPA"),

42 U.S.C. 4321-4337, requires that the question of the vulnerability of a proposed nuclear storage facility to terrorist attack must be included within the NEPA environmental impacts analysis required for licensure of such facility. The decision states that "it is unreasonable for the NRC to categorically IeP(escy 3 Cb V- ~-

dismiss the possibility of terrorist attack" and rejects prior decisions of the Commission on this point. Mothers for Peace is the only decision of a Circuit Court of Appeals on the issue since the tragic events of September 11, 2001.

The New Jersey Department of Environmental Protection

("NJDEP") raised essentially the same contention to support its attempt to become an intervenor in the Oyster Creek relicensure proceeding. The Atomic Safety and Licensing Board (Board) rejected this contention as speculative. In September 2006, the Commission postponed its decision regarding NJDEP's appeal based on this contention because of the Ninth Circuit decision in Mothers for Peace and the later petition by Pacific Gas and Electric Co. for certiorari in that case.

Since the Supreme Court has denied the petition for certiorari in Mothers for Peace, supra, letting the Ninth Circuit's decision stand, NJDEP requests that the Commission acknowledge that decision to be controlling precedent on NJDEP's NEPA contention and correspondingly reverse the Board's decision and grant NJDEP's petition for intervention in this proceeding.

Respectfully submitted, STUART RABNER ATTORNEY GENERAL OF NEW JERSEY By:

Valerie Anne Gr"Ky/

Deputy Attorney Gen*jrl cc: Service List Certificate of Service Attached

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:

January 19, 2007 AmerGen Energy Company, LLC (License Renewal for Oyster Creek Docket No. 50-219-LR Nuclear Generating Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION'S NOTICE OF PERTINENT NEW CASE LAW AFFECTING APPEAL AND REQUEST FOR ITS CONSIDERATION were served this day upon the persons listed below, by E-mail and first class mail, unless otherwise noted.

Secretary of the Commission*

U.S. Nuclear Regulatory Commission Att: Rulemakings and Adjudications Staff One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 (E-mail: HEARINGDOCKET@nrc.gov)

Administative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: pba@nrc.gov)

Administrative Judge E. Roy Hawkens, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: erh@nrc.gov)

Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: aib5@nrc.gov)

Suzanne Leta NJPIRG 11 N. Willow Street Trenton, NJ 08608 (E-mail:sleta@njpirg.org)

Mitzi A. Young Steven C. Hamrick Office of the General Counsel, 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (E-mail:may@nrc.gov)

(E-mail:schl@nrc.qov)

Office of Commission Appellate Adjudication**

U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Richard Webster Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 (E-mail:rwebster@kinoy.rutgers.edu)

Paul Gunter Nuclear Information and Resource Service 1424 1 6 th Street, NW Suite 404 Washington, DC 20036 (E-mail:pgunter@nirs.org)

Debra A. Wolf Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail:dawl@nrc.gov)

• Original and 2 copies

• • First Class Mail only

/,/ Maureen Popp

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