ML090480487

Brodsky V. USNRC 08-1454-ag - Petition for Review of an Administrative Agency Decision

ML090480487
Person / Time
Site:	Indian Point
Issue date:	02/09/2009
From:	Shapiro S State of NY, State Assembly
To:	Citizens Awareness Network, NRC/OGC, Public Health & Sustainable Energy (PHASE), Rockland County Conservation Association, Sierra Club, US Federal Judiciary, Court of Appeals, 2nd Circuit
Grace Kim, 415-3605
References
Download: ML090480487 (8)

Text

MILTON B. SHAPIRO ATTORNEYS AT LAW SUSAN H. SHAPIRO 21 PERLMAN DRIVE

• SPRING VALLEY, NEW YORK 10977 (845) 371-2100 (800) 645-8662 (845) 371-3721 - FAX mbs@officeonline.ws February 9, 2009 Clerk's Office United States Court of Appeals for the Second Circuit United States Court House 500 Pearl Street New York, New York 10007

Dear Clerks:

Enclosed please find original and four copies of a Petition for Review of an Administrative Agency decision. Also enclosed is a certificate of service. The Clerk's fee, as required by Second Circuit Local Rule § 0.17, is not contained herein because one of the petitioners is Richard Brodsky, New York State Assemblyman, 92"d District in the State of New York.

The following are enclosed:

1. Petition for Review;

2. Certificate of Service; Thank you for your assistance in this matter.

Respectfully submitted, L A-N--H .1HAPIR,0 CC: (Petition for Review without attachments)

United States Department of Justice John Cordes, Esq. U.S. Nuclear Regulatory Commission

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

........................................................... ----- *--x RICHARD L. BRODSKY, NEW YORK STATE ASSEMBLYMAN, FROM THE 92ND ASSEMBLY DISTRICT IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES, WESTCHESTER CITIZEN'S AWARENESS NETWORK (WESTCAN), PETITION FOR REVIEW ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE),

AND SIERRA CLUB -ATLANTIC CHAPTER (SIERRA CLUB),

Docket No.

Petitioners,

-against-U.S. NUCLEAR REGULATORY COMMISSION, Respondent.

---

X On the 9th day of December 2008, without consideration of its merits, the Nuclear Regulatory Commission ("NRC") Commission denied Petitioners appeal from the Atomic Safety Licensing board which struck Petitioners pleadings from a proceeding to relicense the operating license for Indian Point Units 2 and 3. Petitioners assert that barring Petitioners from participation in relicensing hearings due to minor clerical errors and bilateral electronic filing issues of the reply, that were cured in a timely manner, are an abuse of discretion and evidence of prejudicial treatment against Petitioner' by the NRC and ASLB.

Pursuant to § 189 of the Atomic Energy Act, 42 U.S.C. § 2239, 28 U.S.C. §§ 2341-2344, and Rule 15 of the Federal Rules of Appellate Procedure, Petitioners, New York 'State Assemblyman Richard L. Brodsky, for the 92 District, Westchester County of

the State of New York, Westchester Citizens Awareness Network, Sierra Club Atlantic Chapter, the Rockland County Conservation Association, and Public Health and Sustainable Energy, through their attorney hereby petition this Court for review of the United States Nuclear Regulatory Commission's ("NRC") Order affirming the ALSB order dated July 31, 2008 striking their petition to intervene in the license renewal proceeding for Indian Point Nuclear Generating Units and request for a hearing entered on the 9 th day of December, 2008.

Jurisdiction as is required by Circuit Rule 28-2.2(a), is set forth under 28 U.S.C. § 2342; 42 U.S.C. § 2239. The NRC has subject matter jurisdiction over the subject of this litigation - renewal of license to operate a nuclear power generating facility under the Atomic Energy Act, 42 U.S.C. 2201(b) and the procedures required by law to issue such exemptions.

Venue is appropriate within the Second Circuit pursuant to 28 U.S.C. § 2343 since the Assemblyman Richard Brodsky resides in and maintains his principal office within the Second Circuit.

Dated: February 9, 2009 Spring Valley, New York ttorney or Pet6ti er Susan . Shapiro Sworn to before me this 9th day of February, 2009.

N6tary Public PATRICIA E. FRENCH Notary Public, State of New York No. 01 FR5041486 Qualified in Rockland County Commission Expires 04/0312011

STATE OF NEW YORK )) SS.:

AFFIDAVIT OF SERVICE BY OVERNIGHT EXPRESS COUNTY OF ORANGE ) MAIL I, SUSAN SHAPIRO, being duly sworn, depose and say that deponent is not a party to the action, is over 19 years of age and resides at Goshen, New York, County of Orange.

On February 9, 2009, deponent served the within Petition for Review and accompanying documents upon the following:

John Cordes, Esq. U.S. Department of Justice U.S. Nuclear Regulatory Commission Room B-103 Office of General Counsel 950 Pennsylvania Avenue, N.W.

11555 Rockville Pike Washington, D.C. 1.0530-0001 Mail Stop 0-1 5D21 Rockville, Maryland 20555 The address(es) designated below by said attorney(s) for that purpose by depositing two true copy(ies) of The Petition for Review enclosed in a postpaid properly addressed wrapper in a Post Office Official Overnight Express Mail Depository, under the exclusive custody and care of the United States Postal Service, within the State of New York.

SU:

Sworn to before me this 9th day of February, 2009.

Notary Public PATRICIA E. FRENCH Notary Public, State of New York No. 01 FR5041486 Qualified in Rockland County Commission Expires 04/03/2011

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 N umber(s):

Motion for:

Pro Hoc Vice Brodsky, etal. vs United States Regulatory Commission Set forth below precise, complete statement of relief sought:

Attorney Admission to 2nd Circuit for Appeal of the Attached Petition MOVING PARTY: Erodsky, etal. OPPOSING PARTY: NR US NRC 0 Plaintiff 03 Defendant Appellant/Petitioner 0 Appellee/Respondent Susan H. Shapiro MOVING ATTORNEY: wihfradespoenmerad ____ OPPOSING ATTORNEY [Name]:

[name of attorney, with Firm, address, phone number and c-mail] [name of attorney, with firm, address, phone number and e-mail]

________ 21 PERLMAN Dr qprinq Vall11N7.- NV q.. I/

corn 0t45) 37i 2 00 Nuclear Regulatory Commission Court-Judge/Agency appealed from:

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL:

Has consent of opposing counsel: Has request for relief been made below?. 0 Yes E No A. been sought? [] Yes C1 No B. been obtained? D Yes t No Has this relief been previously sought in this Court? ED Yes [0 No Is oral argument requested? 0 Yes :r No (requests for oral argument will not necessarily be granted) Requested return date and explanation of emergency:

Has argument date of appeal been set? 03 Yes 6 No If yes, enter date Signatur of*ovinV Attorney:

1)atIe: Has service been effected? [f Yes [] No

---

[Attach proof of service]

ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, Clerk of Court Date: _ _ - By:

Form '[-1080 (Revised 10/31/02).

U NI 'FE' ST"I . I t C" JLl i\I CL) I [I'\~L FI-C' (JP 1 1- IN PUCN

-I1

'L AGENCY AIPEAL PRE-ARG LI MEN't STATEN'I ENT (FORM C-Nk)

-- APPLICATION FOR ENFORCEMENT E_ PETITION FOR REVIEW

1. SEE NOTICE ON REVERSE. 2. PLEASE TYPE OR PRINT. 3. STAPLE ALL ADDITIONAL PAGES CAPTION: AGENCY NAME: AGENCY NO.:

Assemblyman Richard L. Brodsky United States Nuclear for 92nd District of the state of New Regulatory Commission York, DATE THE ORDER UPON WHICH ALIEN NO:

REVIEW OR ENFORCEMENT IS (Immigration Only)

Petitioner, SOUGHT WAS ENTERLFD3BELOW:

December 9, 2008 against -

United States Nuclear DATE THE PETITION OR Is this a cross-petition for review /

Regulatory Commission, and APPLICATION WAS FILED: cross-application for enforcement?

United States of America DYES ao Contact Counsel's Name: Address: Telephone No.: Fax No.: E-mail:

Information Susan H. Shapiro (845)371 2100 for 21 Perlman Dr. (845)371 3721 Petitioner(s) Spring Valley, NY Attorney: 10977 mbs@ourrocklandoffice.com Contact Counsel's Name: Address: Telephone No.: Fax No.: E-mail:

Information Not US Nuclear Regulatory Not Known Not Known for Known Commision, Office of Respondent(s) General Counsel Attorney: 11555 Rockville Pike, Mail stop 0-15021 Rn kvi1le , MD 20555 JURISDICTION APPROX. NUMBER APPROX. Has this matter been before this Circuit previously? [-]Yes [ No OF THE COURT OF PAGES IN THE NUMBER OF.

OF APPEALS RECORD: EXHIBITS IN If Yes, provide the following:

(provide U.S.C. 3,000 TýWjer6ý D:

title and section): Case Name:

28 U.S.C.

2342 2d1Cir. Docket No.: Reporter Citation: (i.e., F.3d or Fed. App.)

2 U.S.C. 22F9 ADDENDUM "A": COUNSEL MUST ATTACH TO THIS FORM: (1) A BRIEF, BUT NOT PERFUNCTORY, DESCRIPTION OF THE NATURE OF THE ACTION; (2) THE RESULT BELOW; AND (3) A COPY OF ALL RELEVANT OPINIONS/ORDERS FORMING TEIE BASIS FOR THIS PETITION FOR REVIEW OR APPLICATION FOR ENFORCEMENT.

ADDENDUM "B": COUNSEL MUST ATTACH TO THIS FORM: (I) THE RELIEF REQUESTED; (2) A LIST OF THE PROPOSED ISSUES; AND (3) TI-E APPLICABLE APPELLATE STANDARD OF REVIEW FOR EACH PROPOSED ISSUE.

PART A: STANDING AND VENUE STANDING VENUE PETITIONER / APPLICANT IS: COUNSEL MUST PROVIDE IN THE SPACE BELOW THE FACTS OR D AGENCY [MOTHER PARTY CIRCUMSTANCES UPON WHICH VENUE IS BASED:

D NON-PARTY (SPECIFY STANDING): See attached.

IMPORTANT. COMPLETE AND SIGN REVERSE SIDE OF THIS FORM.

FORM C-A (Rev. April 2006) Page I of 2

PARTiB: NATURE OF ORDER UPON WHICH REVIEW OR ENFORCEMENT IS SOUGHT (Check as many as apply)

TYPE OF CASE:

W: ADMINISTRATIVE REGULATION/ RULEMAKING D- IMMIGRATION-includes denial of an asylum claim BENEFITS REVIEW IMMIGRATION-does NOT include denial of an asylum claim F-- UNFAIR LABOR F-1 TARIFFS DXI I HEALTH & SAFETY f OTH ER:

D COMMERCE (SPECIFY)

DX* ENERGY

1. Is any matter relative to this petition or application still pending below? DYes, specify: _'_No

2. To your knowledge, is there any case presently pending or about to be brought before this Court or another court or administrative agency which:

(A) Arises from substantially the same case or controversy as this petition or application ? DYes W]No (B) Involves an issue that is substantially similar or related to an issue in this petition or application ? Yes ] No If yes, state whether E"A," or ]"B," oC]both are applicable, and provide in the spaces below the following information on the other action(s):

CaseName: Brodsky .', E.z], Docket No. Citation: Court or Agency:

v NRC NRC Name of Petitioner or Applicant: Brodsky, Etal NOTICE TO COUNSEL Once you have filed your Petition for Review or Applicatiotn for Enforcement, you have only ten (10) calendar days in which to complete the following important steps:

1. Complete this Agency Appeal Pre-Argument Statement (Form C-A); serve it upon your adversary, and file an original and one copy with the Clerk of the Second Circuit.

2. Pay the $450 docketing fee to the Clerk of the Second Circuit, unless you arc authorized to prosecutc the appeal without payment.

PLEASE NOTE: IF YOU DO NOTCOM PLY WITt-I THESE REQUIREM ENTS WITHIN TEN (10) CALENDAR DAYS, YOUR PETITION FOR REVIEW OR AP)PLICATION FOR ENFORCEM ENT WILL BE DISM ISSEI). SEETHlE CIV\IL A1PPEALS MANAGEMENT PLAN OFTIlE UNITED STATES COURT OF AP13EALS FOR THE SECOND CIRCUIT.

FORM C-A (Rev. April 2006) Page 2 of 2

Attachment to Form C-A ADDENDUM "A" (1) BriefJDescriptionof the Action:

The petition for review challenges final action of the U.S. Nuclear Regulatory Commission (NRC) in striking Petitioners' pleading concerning the relicensing of Indian Point Units 2 and 3. Petitioners contends that DOE's action was arbitrary, capricious, and contrary to law.

(2) The Result Below:

The proceedings below consisted of final NRC action striking Petitioners pleading, without consideration of the merits, thereby dismissing Petitioners from the proceeding.

ADDENDUM "B" (1) The Relief IRequested.

Petitioners intend to request an order vacating the order of the NRC and remanding to the NRC for further proceedings.

(2) List of the Proposed Issues.

Whether NRC's order to strike all of Petitioners' pleadings, without consideration of the merits, based on an alleged minor procedural error concerning one document thereby denying Petitioners right to public participation was arbitrary, capricious, and contrary to law.

(3) Applicable Appellate Standardof Review /br Each ProposedIssue:

The Court will set aside NRC action that is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.

PART A (2) Venue: Venue is proper pursuant to 28 U.S.C. § 2343, § 2239 because Petitioners reside in and/or maintain principal offices within the jurisdiction of the Court of Appeals for the Second Circuit.