ML082040461

Spano V. USNRC, No. 07-1276ag (Con) - Motion by Amici Curiae States of New York and Connecticut for Permission to Present Oral Argument

ML082040461
Person / Time
Site:	Indian Point
Issue date:	07/17/2008
From:	Sipos J State of NY, Office of the Attorney General
To:	NRC/OGC, US Federal Judiciary, Court of Appeals
Grace Kim
References
07-0324ag, 07-1276ag
Download: ML082040461 (6)

Text

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ANDREWM. Cuomo July 17 , 2008 DivISION OF SOCIAL JUSTICE ATTORNEY GENERAL ENVIRONMENTAL PRTOTECTION BUREAU Catherine O'Hagan Wolfe Clerk of the Court U.S. Court of Appeals, Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, New York 10007 Re: Spano v. United States Nuclear Regulatory Commission, No. 07-0324ag N.J. Environmental Federation v. United States Nuclear Regulatory Commission, No. 07-1276ag (CON)

Dear Ms. Wolfe:

Enclosed please find an original and 4 copies of a Motion by Amici Curiae States of New York and Connecticut for Permission to Present Oral Argument in this combined matter. Copies of the motion are being served on counsel for the parties via overnight courier. In addition, copies are being served on counsel and the Second Circuit Clerk's Office via e-mail.

Please enter these submissions in the docket for this case.

Respectfully submitted, John 'J. Sipos Assistant Attorney General 518-402-2251 cc: Grace H. Kim, Esq.

Ann Peterson, Esq.

Matthew Miklave, Esq.

Charlene M. Indelicato, Esq.

Richard Webster, Esq.

8ý4 74-50)6 0 Fax (5 18) 4 73-2 534 0 The Capitol. AIE.anv, N' AY. 12 224-034 1 & Phone (5 51

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 ruse short title]

Docket Number(s): 07-0324ag & 07-1276ag (CON)

Spano, et al.

Motion for: Permission to participate in oral argument as amici curiae V.

Set forth below precise, complete statement of relief sought: United States Nuclear Regulatory Commission Amici Curiae States of New York and Connecticut request permission to participate in oral argument and seek five minutes of argument time.

MOVING PARTY: Amicus Curiae States NY & Conn. OPPOSING PARTY:.US Nuclear Regulatory Commission E] Plaintiff E]Defendant E] Appellant/PetitionerE]Appellee/Respondent MOVING ATTORNEY: John J. Sipos, AAG OPPOSING ATTORNEY: Grace H. Kim, Esq.

fname of attorney, with firm, address, phone number, and e-maill [name of attorney, with firm, address, phone number, and e-mail]

Office of the New York State Attorney General Nuclear Regulatory Commission The Capitol Office of General Counsel Albany, NY 12224 11555 Rockville Pike Mail (518) 402-2251 Washington, DC 20555 john.sipos@oag.state.ny.us (301) 415-3605 Court-Judge/Agency appealed from: US Nuclear Regiulatory Commission Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL:

Has consent of opposing counsel: Has request relief been made below? E] Yes [] No A. been sought? [I Yes LI No B. been obtained? F1 Yes .[]No Has this relief been previously sought in this Court? MI Yes []No Is oral argument requested? 91 Yes FI No (requests for oral argument will not necessarily be granted) Requested return date and explanation of emergency:

Has argument date of appeal been set: 1 Yes EL No If yes, enter date Seotember 12. 2008 Signature of Moving Attorney:

Date:J vk zos Has service been effected? 17 Yes [] No

[Attach proof of service]

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

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court Date: By:

Form T-I080 (Revised 10/31/02)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ANDREW J. SPANO, as County Executive of the County of Westchester, COUNTY OF WESTCHESTER, NEW JERSEY ENVIRONMENTAL Docket Nos. 07-0324ag &

FEDERATION, and NEW JERSEY CHAPTER OF 07-1276ag (CON)

THE SIERRA CLUB, DECLARATION OF Petitioners, JOHN J. SIPOS IN SUPPORT OF NEW YORK AND V. CONNECTICUT'S MOTION TO APPEAR AND PARTICIPATE UNITED STATES NUCLEAR REGULATORY IN ORAL ARGUMENT AS COMMISSION, and UNITED STATES OF AMICI CURIAE

AMERICA, Respondents.

STATE OF NEW YORK )

) SS.:

COUNTY OF ALBANY )

JOHN J. SIPOS hereby declares under penalty of perjury of the laws of the United States that the following is true and correct:

1. I am an Assistant Attorney General in the Environmental Protection Bureau in the office of Andrew Cuomo, Attorney General of the State of New York, The Capitol, Albany, New York 12224. I make this declaration pursuant to Federal Rule of Appellate Procedure 29(g) in support a motion by amici curiae States of New York and Connecticut for permission to participate in oral argument in the above-reference matter and to be allotted five minutes of argument time in addition to the time allotted to the petitioners.

2. This case presents a question of great concern to the citizens of New York and Connecticut: whether the Nuclear Regulatory

Commission ("NRC") may renew a license to operate an aging nuclear power plant for an additional twenty years without considering all of factors that bear on the plant's safety and security in proceedings in which the public can participate. County Executive Andrew J. Spano and the County of Westchester ("Westchester Petitioners") and the New Jersey Environmental Federation and the New Jersey Sierra Club ("New Jersey Petitioners") filed petitions asking the NRC to amend its Part 54 regulations governing the relicensing of nuclear power plants, which narrow the scope of review to age-related degradation of passive structural components and do not require an existing licensee to demonstrate compliance with ongoing safety regulations. Petitioners requested NRC amend its Part 54 relicensing regulations so that it may consider siting and safety criteria - such as changes in local demographics, the adequacy of emergency evacuation plans, and the threat of a terrorist attack -

in license renewal proceedings. These criteria have changed significantly since many nuclear power plants were initially licensed in the 1960s and 1970s. The NRC denied petitioners' request, and petitioners have appealed that decision to this Court.

3. On July 10, 2007, the States of New York and Connecticut filed an amici curiae brief in support of petitioners. As set forth more fully in the States' brief, New York and Connecticut have an interest in protecting their citizens and environment by assuring the safe and secure operation of nuclear power plants. A'major radiation 2

release at the IndianPoint Energy Center ("Indian Point"), which is located in a densely populated area near New York City and Connecticut, would damage the health and property of millions of people in both New York and Connecticut and could shut down the financial center of the nation. Thus, when NRC considers relicensing an aging nuclear power plant such as Indian Point, New York and Connecticut have a keen interest in ensuring that NRC takes into account all issues that may affect publ~ic health and the environment during the period of extended operation.

4. To have a full and fair opportunity to be heard on this important issue, amici curiae States of New York and Connecticut move for permission to participate in oral argument of this case. The two States are actively involved in the license renewal proceedings for the Indian Point reactors as well as other regulatory matters before the NRC and, as such, may be able to provide a unique perspective to the Court during the'oral argument. The States request five minutes of oral argument time in addition to the time allotted to the parties.

5. I have conferred with Matthew Miklave, Esq., counsel for Petitioners Spano and Westchester County, and Richard Webster, counsel for Petitioners New Jersey Environmental Federation and New Jersey Chapter of the Sierra Club, who both consent to the States' participation in oral argument. I have also conferred with Grace H.

Kim, Esq., counsel for respondent NRC, which does not consent to the 3

CERTIFICATE OF SERVICE I hereby certify that on July 17, 2008, I caused two copies of the attached Motion for Permission to Present Oral Argument for Amici Curiae States of New York and Connecticut to be served by Federal Express on the following counsel for the parties:

Grace H. Kim, Esq.

U.S. Nuclear Regulatory Commission 1 White Flint North, 15D21 11555 Rockville Pike Rockville, MD 20852-2738 Ann Peterson, Esq.

Appellate Section Environment and Natural Resources Division U.S. Department of Justice 950 Pennsylvania Ave., N.W.

Washington, DC 20530 Matthew Miklave, Esq.

Epstein Becker & Green, P.C.

250 Park Avenue New York, NY 10177-1211 Charlene M. Indelicato, Esq.

Office of the County Attorney for the County of Westchester 148 Martine Avenue White Plains, NY 10601 Richard Webster, Esq.

Eastern Environmental Law Center Suite 1525 744 Broad Street Newark, NJ 07102 On the same date, copies of the motion were also sent to the above-listed attorneys via e-mail.

Dated: July 17, 2008

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