ML19309E778
| ML19309E778 | |
| Person / Time | |
|---|---|
| Issue date: | 11/01/2019 |
| From: | Andrew Averbach, Clark J, Grant E, Heminger J NRC/OGC, US Dept of Justice, Environment & Natural Resources Div, US Dept of Justice, Office of the Attorney General |
| To: | US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 1813833, 19-1198 | |
| Download: ML19309E778 (8) | |
Text
ORAL ARGUMENT NOT YET SCHEDULED No. 19-1198 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT COMMONWEALTH OF MASSACHUSETTS Petitioner,
- v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.
On Petition for Review of Actions by the Nuclear Regulatory Commission FEDERAL RESPONDENTS OPPOSED MOTION FOR EXTENSION OF TIME ANDREW P. AVERBACH Solicitor Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852 andrew.averbach@nrc.gov JEFFREY BOSSERT CLARK Assistant Attorney General ERIC GRANT Deputy Assistant Attorney General JUSTIN D. HEMINGER Attorney Environment and Natural Resources Division U.S. Department of Justice Post Office Box 7415 Washington, D.C. 20044 justin.heminger@usdoj.gov USCA Case #19-1198 Document #1813833 Filed: 11/01/2019 Page 1 of 8
1 The U.S. Nuclear Regulatory Commission and the United States of America (together, the Federal Respondents) request that the Court grant an extension of time until November 22, 2019 to file a joint combined submission (the Combined Submission) that (1) opposes Petitioner Commonwealth of Massachusettss Motion for a Stay Pending Appellate Review, Doc. No. 1812979 (Oct. 28, 2019) (the Stay Motion), and (2) seeks dismissal of Massachusettss petition for review.
Under Circuit Rule 27(h)(2), counsel for Federal Respondents sought Massachusettss consent to this extension, and counsel for Massachusetts stated that although it would not oppose a shorter extension to November 15, 2019, it opposed an extension of one more week. Counsel for Massachusetts also represented that it will file an opposition to this motion.
The putative Intervenors support the Federal Respondents motion and request the same extension for a similar Combined Submission on behalf of the putative Intervenors, if the Court grants the putative Intervenors pending Motion to Intervene, Doc. No.
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2 1811165 (Oct. 16, 2019), or if that motion remains pending as of the due date for the Combined Submission.1 This motion is timely filed under Circuit Rule 28(h)(1).
In support of this motion, Federal Respondents state as follows:
- 1.
On September 25, 2019, Massachusetts filed a petition for review challenging seven actions by the Nuclear Regulatory Commission. Petition for Review, Doc. No. 1808410 (Sept. 25, 2019).
Federal Respondents position is that Massachusettss petition is premature because none of the seven actions constitutes reviewable final agency action. Federal Respondents therefore intend to file a dispositive motion seeking dismissal of the petition, which under the Courts Scheduling Order would be due on November 12, 2019.
- 2.
On October 28, 2019, more than 30 days after filing its petition for review and on the last day possible under the Courts Scheduling Order, Massachusetts filed the Stay Motion. Massachusetts did not request emergency relief. Moreover, Massachusetts has 1 The putative Intervenors are Entergy Nuclear Operations, Inc., Holtec International, Holtec Decommissioning International, LLC, and Holtec Pilgrim, LLC (formerly known as Entergy Nuclear Generation Company, LLC).
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3 requested that the Nuclear Regulatory Commission stay the effectiveness of the underlying regulatory decisions, and that request is still pending with the Commission.
- 3.
Under Federal Rule of Appellate Procedure 27(a)(3)(A),
Federal Respondents opposition to the Stay Motion is due on November 7, 2019. Massachusetts indicated that it would not oppose an extension of time until November 15, 2019, for the Federal Respondents to file a combined response to the Stay Motion and a motion to dismiss the petition for review. But for the following reasons, Federal Respondents request an additional weekuntil November 22, 2019to file their submission.
- 4.
First, Massachusettss Stay Motion raises multiple issues related to a complex, ongoing regulatory matter pending before the Nuclear Regulatory Commission. Illustrating this complexity, Massachusetts included 693 pages of materials in an Addendum to its Stay Motion, Doc. No. 1812979, and it seeks review of seven underlying agency actions, Doc. No. 1812924.
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4
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Second, to further the Courts interests in efficiency, under Circuit Rule 8(b), Federal Respondents plan to file a combined opposition to the Stay Motion and motion to dismiss the petition for review for lack of finality. Preparing a combined submission requires additional time, especially where Massachusetts challenges no less than seven agency actions.
- 6.
Third, the Nuclear Regulatory Commission and the United States intend to file a single brief that represents their respective interests, which will require additional time for review and coordination between the Commission and the Department of Justice.
- 7.
Fourth, undersigned counsel for the United States has other litigation matters that require immediate attention, including an over-length brief due on November 7, 2019. Similarly, undersigned counsel for the Nuclear Regulatory Commission has other pressing matters that require attention in the coming weeks.
- 8.
For these four reasons, Federal Respondents request an additional week, until November 22, 2019, to file their joint submission.
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5 Accordingly, Federal Respondents request that the Court grant an extension of time until November 22, 2019, to file a joint combined submission opposing the Stay Motion and seeking dismissal of the petition for review. If the Court grants intervention to the putative Intervenors, they request that the Court apply this same extension to their submissions.
/s/ Andrew P. Averbach ANDREW P. AVERBACH Solicitor Office of the General Counsel U.S. Nuclear Regulatory Commission Respectfully submitted,
/s/ Justin D. Heminger JEFFREY BOSSERT CLARK Assistant Attorney General ERIC GRANT Deputy Assistant Attorney General JUSTIN D. HEMINGER Attorney Environment and Natural Resources Division U.S. Department of Justice DJ Number 90-13-3-15867 November 1, 2019 USCA Case #19-1198 Document #1813833 Filed: 11/01/2019 Page 6 of 8
CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)
I certify that this filing complies with the requirements of Fed. R.
App. P. 27(d)(1)(E) because it has been prepared in 14-point Century Schoolbook, a proportionally spaced font.
I further certify that this filing complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 702 words, excluding the parts of the filing exempted under Fed. R. App. P. 32(f),
according to the count of Microsoft Word.
/s/ Justin D. Heminger JUSTIN D. HEMINGER Counsel for Respondent United States of America USCA Case #19-1198 Document #1813833 Filed: 11/01/2019 Page 7 of 8
CERTIFICATE OF SERVICE I hereby certify that on November 1, 2019, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
/s/ Justin D. Heminger JUSTIN D. HEMINGER Counsel for Respondent United States of America USCA Case #19-1198 Document #1813833 Filed: 11/01/2019 Page 8 of 8