ML14329B352
| ML14329B352 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/20/2014 |
| From: | Fagg B Exelon Corp, Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OGC, US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit |
| Creedon, Meghan | |
| References | |
| 14-1225, 1523507, 50-352-LR, 50-353-LR, CLI-12-19 | |
| Download: ML14329B352 (9) | |
Text
USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 1 of 9 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, INC.,
Petitioner, vs. Case No. 14-1225 UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, November 20, 2014 Respondents.
EXELONS UNOPPOSED MOTION FOR LEAVE TO INTERVENE Pursuant to 28 U.S.C. § 2348, Rules 15(d) and 27 of the Federal Rules of Appellate Procedure, and Circuit Rules 15(b) and 27, Exelon Generation Company, LLC (for these purposes, Exelon), respectfully moves for leave to intervene in the above-captioned proceeding, in which the Petitioners seek review of the U.S. Nuclear Regulatory Commissions (NRC or Commission) orders, In the Matter of Exelon Generation Company, LLC (Limerick Generating Station, Units 1 and 2), Docket Nos. 50-352-LR and 50-353-LR, CLI-12-19 (October 23, 2012); CLI-13-07 (October 31, 2013); LBP-14-15 (October 7, 2014); and the Renewed Facility Operating License Nos. NPF-39 and NPF-85, 79 Fed. Reg.
DB1/ 81351913.1
USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 2 of 9 63,650 (October 24, 2014). Counsel for Petitioners and Respondents have represented that they do not oppose this motion.
Exelon is the owner of Units 1 and 2 of the Limerick Generating Station (Limerick), located in Limerick Township, Pennsylvania, and the current holder of the NRC operating licenses for Limerick. On June 22, 2011, Exelon filed an application to renew the operating licenses for Limerick. The resulting NRC adjudication, to which Exelon was a party, is the subject of the petition for review in this Court. Exelons interests will be affected directly if the agency order that is the subject of the petition for review is enjoined, set aside, or suspended, because such an action could adversely affect the status of Exelons license renewal application and Exelons future operation of Limerick. Therefore, pursuant to 28 U.S.C. § 2348, Exelon may appear as of right in any proceeding to review the order. Exelon wishes to intervene as a respondent in support of the order.
Petitioner filed a prior petition in this Court, No. 13-1311, involving the same underlying agency proceeding, in which Exelon was granted the right to intervene. By per curiam order dated November 13, 2014, the Court removed matter No. 13-1311 from the oral argument calendar, and dismissed matter No. 13-1311 as moot in light of petitioners filing of No. 14-1225. The Court further directed the Clerk to process case No. 14-1225 in the normal course. This DB1/ 81351913.1 USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 3 of 9 motion is brought within thirty days of the filing of the petition in No. 14-1225, as required by Fed. R. App. P. 15(d).
This Court has routinely granted intervention and party status to affected NRC licensees or applicants in lawsuits brought against the NRC. See, e.g.,
Sustainable Energy & Econ. Dev. v. Nuclear Regulatory Commn, 2012 U.S. App.
LEXIS 5546 (D.C. Cir. 2012) (identifying the NRC licensee as intervenor in petition for review proceeding challenging NRCs issuance of that license, where the licensee sought intervention under 28 U.S.C. § 2348); Devia v. Nuclear Regulatory Commn, 492 F.3d 421, 423 (D.C. Cir. 2007) (recognizing the NRC licensee as intervenor in an appeal of a Commission order authorizing the NRCs issuance of that license); Carstens v. Nuclear Regulatory Commn, 742 F.2d 1546, 1555 (D.C. Cir. 1984) (recognizing nuclear utility that received operating license for two nuclear reactors as intervenor in petition for review proceeding brought by environmental group and citizen, challenging NRCs issuance of licenses to that nuclear utility), cert. denied, 471 U.S. 1136 (1985)); Lorion v. Nuclear Regulatory Commn, 712 F.2d 1472 (D.C. Cir. 1983) (recognizing the owner and operator of the nuclear plant at issue as an intervenor), revd sub nom. on other grounds, Fla.
Power & Light Co. v. Lorion, 470 U.S. 729 (1985); c.f., City of Cleveland v.
Nuclear Regulatory Commn, 17 F.3d 1515, 1517 (D.C. Cir. 1994) (denying a motion for leave to intervene under 28 U.S.C. § 2348 because the movant, an DB1/ 81351913.1 USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 4 of 9 electric cooperative, was not the owner or operator of the facility at issue and had no other economic relationship with the power plant at issue).
Indeed, such intervention is consistent with this Courts position that a party that is the subject of an administrative action has a self-evident right to participate in the review of that action. See Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 899-900 (D.C. Cir. 2002) (In many if not most cases the petitioners standing to seek review of administrative action is self-evident . . . . In particular, if the complainant is an object of the action (or forgone action) at issue
-- as is the case usually in review of a rulemaking and nearly always in review of an adjudication -- there should be little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992)).
For the foregoing reasons, Exelon respectfully requests that this Court once again grant Exelon leave to intervene, with the full rights attendant thereto.
DB1/ 81351913.1 USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 5 of 9 Respectfully submitted,
/s/ Brad Fagg Brad Fagg (Counsel of Record)
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004 Tel: (202) 739-5191 bfagg@morganlewis.com J. Bradley Fewell Vice President and Deputy General Counsel Exelon Corporation 200 Exelon Way Kennett Square, PA 19348 Tel: (610) 765-5706 bradley.fewell@exeloncorp.com Counsel for Dated: November 20, 2014 Exelon Generation Company, LLC DB1/ 81351913.1 USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 6 of 9 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, INC.,
Petitioner, vs. Case No. 14-1225 UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, November 20, 2014 Respondents.
EXELON CERTIFICATES AND DISCLOSURES Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Circuit Rule 26.1, Exelon Generation Company, LLC provides the following Disclosure Statement to accompany Exelons Unopposed Motion for Leave to Intervene:
Exelon Corporation is the parent company of Exelon Generation Company, LLC, and the only publicly-held company with a 10% or greater ownership interest in Exelon Generation Company, LLC. No other publicly-held company has a financial interest in the outcome of this proceeding.
In addition, pursuant to Circuit Rules 27(a)(4), and 28(a)(1)(A), the undersigned counsel for Exelon Generation Company, LLC, certifies as follows:
DB1/ 81351913.1
USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 7 of 9 (1) The following parties appeared before the U.S. Nuclear Regulatory Commission:
(a) Applicant: Exelon Generation Company, LLC.
(b) Former Intervenor: Natural Resources Defense Council, Inc.
(2) The following parties appear before this Court:
(a) Petitioner: Natural Resources Defense Council, Inc.
(b) Respondents: U.S. Nuclear Regulatory Commission and the United States of America.
(c) Intervenor: Exelon Generation Company, LLC.
/s/ Brad Fagg Brad Fagg Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004 Tel: (202) 739-5191 bfagg@morganlewis.com Counsel for Dated: November 20, 2014 Exelon Generation Company, LLC DB1/ 81351913.1 USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 8 of 9 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, INC.,
Petitioner, vs. Case No. 14-1225 UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, November 20, 2014 Respondents.
CERTIFICATE OF SERVICE Pursuant to Rule 25 of the Federal Rules of Appellate Procedure and Circuit Rule 25.1 of this Court, I hereby certify that I have this 20th day of November, 2014, served the foregoing documents, Exelons Unopposed Motion for Leave to Intervene and Exelon Certificates and Disclosures, through the CM/ECF system, which will send a notice of electronic filing to the following individuals:
Howard M. Crystal Andrew Paul Averbach Counsel for Petitioners U.S. Nuclear Regulatory Commission 1601 Connecticut Ave., N.W. 11555 Rockville Pike Suite 700 One White Flint North Washington, D.C. 20009 Rockville, MD 20852 James E. Adler DB1/ 81351913.1 1
USCA Case #14-1225 Document #1523507 Filed: 11/20/2014 Page 9 of 9 U.S. Nuclear Regulatory Commission Mail Stop 15 D21 11555 Rockville Pike One White Flint North Rockville, MD 20852 For the following parties, who have not yet consented to electronic service, I served the foregoing documents via First Class Mail, pursuant to Federal Rule of Appellate Procedure 25 and Circuit Rule 25(c):
Annette Vietti-Cook Eric H. Holder, Jr.
Secretary Attorney General U.S. Nuclear Regulatory Commission U.S. Department of Justice 11555 Rockville Pike 950 Pennsylvania Ave., N.W.
Rockville, MD Washington, D.C. 20004 In addition, pursuant to Electronic Case Filing Rule ECF-6 and Circuit Rule 27(b), on January 14, 2014, I submitted four paper copies of these documents by hand delivery to the Clerk.
/s/ Brad Fagg Brad Fagg Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue N.W.
Washington, D.C. 20004 (202) 739-5191 bfagg@morganlewis.com Counsel for Dated: November 20, 2014 Exelon Generation Company, LLC DB1/ 81351913.1 2