ML090620677
| ML090620677 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/25/2009 |
| From: | US Federal Judiciary, Court of Appeals, 2nd Circuit |
| To: | NRC/OGC |
| James Adler, 301-415-1656 | |
| References | |
| 08-3903-ag, 08-4833-ag, 08-5571-ag | |
| Download: ML090620677 (13) | |
Text
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse at Foley Square 40 Centre Street, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Caption [use short title]
Docket Number(s): 08-3903-ag(L); 08-4833-ag(CON); 08-5571-ag Motion for: extension of briefing schedule Set forth below precise, complete statement of relief sought:
Petitioners the State of New York, Commonwealth of Massachusetts, and the Attorney General of the State of Connecticut seek a revised briefing schedule: (1) petitioners' briefs due May 5, 2009; (2) respondents' briefs due August 3, 2009; (3) petitioners' reply briefs due August 25, 2009 The State of New York v. United States Nuclear Regulatory Commission OPPOSING PARTY: U.S. Nuclear Regulatory Comm'n MOVING PARTY: The State of New York E] Plaintiff EDefendant
[Z] Appellant/Petitioner-Appellee/Respondent MOVING ATTORNEY: John J. Sipos
[name of attorney, with firm, address, phone number, and e-mail]
Office of the Attorney General The Capitol Albany, NY 12224 (518) 402-2251 john.sipos@oag.state.ny.us OPPOSING ATTORNEY:
[name of attorney, with firm, address, phone number, and e-mail]
See certificate of service.
Court-Judge/Agency appealed from: U.S. Nuclear Reqiulatorv Commission Please check appropriate boxes:
Has consent of opposing counsel:
A. been sought?
B. been obtained?
FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL:
Has request relief been made below?
[
Yes E No
[]
Yes ElNo 71 Yes ElNo Has this relief been previously sought in this Court?
E] Yes E No Is oral argument requested?
El Yes W] No (requests for oral argument will not necessarily be granted)
Requested return date and explanation of emergency:
Has argument date of appeal been set:
E] Yes W]No If yes, enter date Signature of Moving Attorney:
Date:
Has service been effected?
[Attach proof of service]
[]
Yes E] No ORDER IT IS HEREBY ORDERED THAT the motion is 13 GRANTED c DENIED.
FOR THE COURT:
ROSEANN B, MacKECHNIE, Clerk Date:
By:
Form T-1080 (Revised 10/31/02)
RULES OF THE UNITED STATES COURT OF APPEALS FOR THE 2ND CIRCUIT supplementing Federal Rules of Appellate Procedure INSTRUCTIONS LOCAL RULE 27.
(a)
Form of Motion and Supporting Papers for Motion and Opposition Statement.
- 1.
Form of Motion. A motion must be in writing, unless the court otherwise directs, and must conform to paragraphs (A) through (C) below.
(A)
The front page of the motion must follow the form of the Motion Information Statement approved by the Court (T-1080 revised 12/12/01) [printed on the reverse side] and contain all information required by the form.
(B)
The body of the motion, following the Motion Information Statement, must set forth the information and legal argument necessary to support the motion, and, if emergency relief is sought, an explanation of the emergency.
(C)
Formal requirements.
(i) 8-1/2 x 11 inch paper; (ii)
Text double spaced, except for quotations, headings and footnotes; (iii)
Margins of one inch on all sides; (iv)
Pages sequentially numbered (page numbers may be placed in the margins);
(v)
Bound or stapled in a secure manner that does not obscure text; (vi)
Length: no more than 20 pages, not including attachments and the Motion Information Statement; (vii)
Number of copies: original plus four copies; (viii)
Required attachments to motion:
- a.
An affidavit (containing only statements of fact, not legal argument);
- b.
If the motion seeks substantive relief, a copy of lower court opinion or agency decision; C.
Any exhibits necessary to determine the motion;
- d.
Affidavit of service.
- 2.
Non-Compliance Sanctions. If the moving party has not complied with this rule, the motion may be dismissed by the clerk without prejudice to renew upon proper papers. If application is promptly made, the action of the clerk may be reviewed by a single judge. The court may impose costs and an appropriate fine against either party for failure to comply with this rule.
MOTION INFORMATION FORM UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The State of New York v. United States Nuclear Regulatory Commission DOCKET NO. 08-3903-ag(L); 08-4833-ag(CON); etc.
Assistant Solicitor General John J. Sipos
, Assistant Attorney General New York State Office of the Attorney General New York State Office of the Attorney General 120 Broadway, 25th Floor State Capitol New York, NY 10271 Albany, NY 12224 Attorney(s) for Attorney(s) for State of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THE STATE OF NEW YORK; RICHARD BLUMENTHAL, ATTORNEY GENERAL OF THE STATE OF CONNECTICUT; and THE COMMONWEALTH OF MASSACHUSETTS, Petitioners, V.
Nos. 08-3903-ag(L);
08-4833-ag(CON);
08-5571-ag(CON)
UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents, ENTERGY NUCLEAR OPERATIONS, INC.
Intervenor-Respondent.
MEMORANDUM IN SUPPORT OF JOINT MOTION TO EXTEND BRIEFING SCHEDULE The Petitioners the States of New York, the Commonwealth of Massachusetts, and the Attorney General for the State of Connecticut submit this motion to modify the briefing schedule in this combined proceeding. The Federal Respondents, the U.S. Nuclear Regulatory Commission-and the United States of America, agree to and join in the proposed modified schedule as does Intervenor-Respondent Entergy Entergy Nuclear Operations, Inc.
As described in more detail in the accompanying declaration, given the press of work, the petitioner States seek a sixty-day extension of time for petitioners to file their briefs, which are currently due on March 6, 2009. The motion also seeks an extension of time for the federal respondents and Entergy to file their response briefs and a short extension of time for the states to file their reply briefs.
These combined proceedings challenge an August 8, 2008 decision by the respondent U.S. Nuclear Regulatory Commission not to require review during proceedings examining the renewal of a reactor's operating license of the-environmental impacts of the continued storage of spent nuclear fuel at power reactor sites pursuant to the National Environmental Policy Act and other applicable laws and regulations.
Preparation of briefs will require additional coordination and review by the States.
Accordingly, the Petitioner States, Federal Respondents, and Intervenor-Respondent Entergy respectfully request that the Court grant the motion and amend the briefing schedule as follows:
(1) petitioners to file their opening briefs on May 5, 2009; (2) respondents to file their responsive briefs on August 3, 2009; and (3) petitioners to file their reply briefs on August 25, 2009.
February 24, 2009 Respectfully submitted, JOHN J. SIPOS JANICE A. DEAN Assistant Attorneys General State of New York The Capitol Albany, NY 12224 (518) 402-2251 JOHN CORDES, Solicitor Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 (301) 415-1656 MATTHEW BROCK Assistant Attorney General The Commonwealth of Massachusetts Office of the Attorney General McCormack Building One Ashburton Place Boston, MA 02108-1598 (617) 727-2200 x 2425 JOHN E. ARBAB Environment and Natural Resources Division - Appellate Section U.S. Department of Justice PO Box 23795 L'Enfant Plaza Station Washington, DC 20026-3795 (202) 514-4046 ROBERT D. SNOOK Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (860) 808-5020 CATHERINE STETSON JESSICA ELLSWORTH Hogan & Hartson LLP Columbia Square 555 13th Street, NW Washington, DC 20004 (202) 637-5600 main Counsel for Entergy UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THE STATE OF NEW YORK; RICHARD BLUMENTHAL, ATTORNEY GENERAL OF THE STATE OF CONNECTICUT; and THE COMMONWEALTH OF MASSACHUSETTS, Petitioners, V.
UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, DECLARATION IN SUPPORT OF JOINT MOTION FOR EXTENSION OF TIME Nos. 08-3903-ag(L);
08-4833-ag(CON);
08-5571-ag(CON)
Respondents, ENTERGY NUCLEAR OPERATIONS, INC.
Intervenor-Respondent.
John J. Sipos declares as follows pursuant to 28 U.S.C. § 1746:
- 1.
I am an Assistant Attorney General in the Office of Andrew M. Cuomo, Attorney General of the State of New York, and represent petitioner State of New York in this review proceeding. I submit this declaration in support of a joint motion to extend the briefing schedule.
The motion requests that the briefing schedule be modified as follows:
(1) petitioners to file their opening briefs on May 5, 2009; (2) respondents to file their responsive briefs on August 3, 2009; and (3) petitioners to file their reply briefs on August 25, 2009.
The motion requests a sixty-day extension of time for petitioners to file their briefs, which are currently due on March 6, 2009. The motion also seeks to extend the time for the filing of the respondents' response briefs and the petitioners' reply briefs.
- 2.
These combined petitions seek judicial review of the Nuclear Regulatory Commission's August 2008 decision not to review or revise the Commission's 1996 determination that the storage of spent nuclear reactor fuel in cooling pools located at nuclear power plants does not have significant environmental impacts and, as a result, operating licenses that allow such storage do not require any additional environmental review under the National Environmental Policy Act in connection with any proceeding examining the extension of the licenses. In August 2006, the Attorney General of Massachusetts filed a petition for rulemaking that requested that NRC:
(1) revoke its regulations codifying that determination and precluding any consideration of the environmental impacts of spent fuel storage in future licensing actions; and (2) require that Environmental Impact Statements (EISs) be issued in future licensing actions involving such storage. In March 2007, the Attorney General of California filed a petition seeking similar administrative action. The Attorney General of New York submitted comments in support of the two petitions.
The States of Connecticut and Vermont also supported Massachusetts' rulemaking petition. In August 2008, NRC denied both petitions. 73 Fed. Reg. 46204 (Aug. 8, 2008). New York, Massachusetts, and Connecticut 1 have filed petitions for judicial review of that determination, which have been consolidated in this Court.2 The petitions for review implicate the National Environmental Policy Act, the Administrative Procedure Act, the Atomic Energy Act,-and other applicable laws and regulations.
- 3.
The State-of New York seeks a sixty-day extension of time due 1The State of Vermont and the State of Vermont Department of Public Service filed a motion to intervene in Blumenthal v. U.S. Nuclear Regulatory Com'n, No. 08-4833-ag, pursuant to Fed. R. App. P. 15. The Court denied the motion without prejudice to renew and also indicated that Vermont could participate as an amicus.
2 On January 29, 2009, this Court denied a motion to transfer the venue of the proceedings to the First Circuit.
to the press of other work, including recent efforts to prepare the State of New York's filing in Brodsky v. Nuclear Regulatory Commission, Second Circuit No. 08-1454-AG (filed February 3, 2009), comments in an ongoing NRC rulemaking proceeding, In re Waste Confidence Decision Update, NRC Docket 2008-0482 (filed February 6, 2009), as well as discovery and review and preparation of contentions and comments in the ongoing license renewal proceeding for Indian Point Unit 2 and Unit 3 before a NRC Atomic Safety and Licensing Board, ASLBP No. 07-858-03-LR-BD01 (including February 27, March 11, March 18, and March 30 filing dates).
- 4.
In addition, Connecticut Assistant Attorney General Robert Snook, Counsel for the petitioner Richard Blumenthal, has been and will be occupied with various litigation matters including Connecticut Commissioner of Environmental Protection v. Federal Energy Regulatory Commission, Second Circuit No. 08-5087-AG (brief due March 6, 2009) and County of Rockland (New York) v. Federal Aviation Administration, D.C.
Circuit No. 07-1363 (brief due March 6, 2009). Petitioner Commonwealth of Massachusetts also joins in the request to modify the briefing schedule.
- 5.
The requested extension will assist the petitioner States in this proceeding to consult with each other during the preparation of their submissions to the Court. Accordingly, petitioners request that petitioners' time to file their brief be extended by sixty days to May 5, 2009.
- 6.
I have discussed the proposed request with John Cordes, the Solicitor for the respondent U.S. Nuclear Regulatory Commission. NRC and the United States agree to the proposed schedule so long as the federal respondents receive additional time to submit their response brief. To accommodate the time needed to consult with the U.S. Department of Justice concerning the preparation of the federal respondents' submission to the Court as well as the birth of a child to the NRC's lead attorney assigned to this proceeding, NRC requests that it be permitted to file its response brief 90 days following petitioners' filings.
- 7.
I have also discussed the request with Catherine Stetson of Hogan and Hartson, counsel for intervenor-respondent Entergy Nuclear Operations, Inc. Entergy agrees to and joins in the motion.
- 8.
In view of the foregoing, the state petitioners, the federal respondents, and intervenor -respondent Entergy jointly request that the briefing schedule be modified as follows:
(1) petitioners to file their opening briefs on May 5, 2009; (2) respondents to file their responsive briefs on August 3, 2009; and (3) petitioners to file their reply briefs on August 25, 2009.
WHEREFORE, for the foregoing reasons, it is respectfully requested that this motion, on consent, to extend the brief schedule be granted.
Dated:
New York, New York February 24, 2009 By:
John J. Sipos Assistant AttorneyGeneral (518) 402-2251 AFFIDAVIT OF SERVICE STATE OF NEW YORK
)
- SS,:
COUNTY OF NEW YORK)
CAITLIN E. CAMPBELL, being duly sworn, deposes and says:
(1)
I am over eighteen years of age and an employee in the office of Andrew M. Cuomo, Attorney General of the State of New York, attorney for appellant herein.
(2)
On the 25th day of February, 2009, I served the attached Motion in the following manner:
(i) one copy by regular United States postal service; and (ii) one PDF copy via electronic mail.
(3)
I served the above-referenced document upon the following named persons:
MATTHEW BROCK Assistant Attorney General The Commonwealth of Massachusetts Office of the Attorney General McCormack Building One Ashburton Place Boston, MA 02108-1598 Matthew.Brock@state. ma.us ROBERT D. SNOOK Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert. snook@po. state.ct.us JOHN E. ARBAB Environment and Natural Resources Division -Appellate Section U.S. Department of Justice PO Box 23795 L'Enfant Plaza Station Washington, DC 20026-3795 John.Arbab@usdoj. gov CATHERINE STETSON JESSICA ELLSWORTH Hogan & Hartson LLP Columbia Square 555 1 3 th Street, NW Washington, DC 20004 CECStetson@HHLAW.com JOHN CORDES, Solicitor Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 JFC@nrc.gov Caitlin E. Campbell Sworn to before me this 25th day of February, 2009 Assistant Solicitor General
ANTI-VIRUS CERTIFICATION FORM See Second Circuit Interim Local Rule 25(a)6.
State v. US NRC CASE NAME:
DOCKET NUMBER: 08-3903;08-4833;08-5571 Caitlin Campbell I, (please print your name) ___
certify that I have scanned for viruses the PDF version of the attached document that was submitted in this case as an email attachment to
<agencycases(&2ca2.uscourts.gov>.
D- <criminalcases(Z2ca2.uscourts.gov>.
Z7 <civilcases(aca2.uscourts.gov>.
D- <newcases(aca2.uscourts.gov>.
D <prosecases(,ca2.uscourts.gov>.
and that no viruses were detected.
Please print the name and the version of the anti-virus detector that you used VirusScan Enterprise 8.0.0 If you know, please print the version of revision and/or the anti-virus signature files (Your Signature)
Date: 02/25/2009