ML091380503
| ML091380503 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 05/11/2009 |
| From: | Burton N - No Known Affiliation, Connecticut Coalition Against Millstone |
| To: | NRC/OGC, US Dept of Justice, Environment & Natural Resources Div, US Federal Judiciary, Court of Appeals, 2nd Circuit |
| Robert Rader, 301-415-1955 | |
| References | |
| 09-1901-ag, FOIA/PA-2011-0115 | |
| Download: ML091380503 (6) | |
Text
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AGENCY APPEAL PRE-ARGUMENT STATEMENT (FORM C-A) -
E:1 APPLICATION FOR ENFORCEMENT Wl PETITION FOR REVIEW
- 3. STAPLE ALL ADDITIONAL PAGES 1, SEE NOTICE ON REVERSE.
- 2. PLEASE TYPE OR PRINT CAPTION:
AGENCY NAME:
U.S. Nuclear RRe~in1 afrrv Cnonmi s.*,i n AGENCY NO.:
Nancy Burton, Petitioner V.
United States of America, United States Nuclear Regulatory Comm-mission, Dominion Nuclear Energy Inc.,
Respondents DATE THE ORDER UPON WHICH ALIEN NO:
REVIEW OR ENFORCEMENT IS (Immigration Only)
SOUGHT WAS ENTERED BELOW:
March 5, 2009 DATE THE PETITION OR APPLICATION WAS FILED:
May 4, 2009 Is this a cross-petition for review /
cross-application for enforcement?
[YES
[71 o Contact Counsel's Name:
Address:
Telephone No.:
Fax No.:
E-mail:
for Nancy Burton 147,Cross Highway, Reddingq,-Ridge.CT 06876 Petitioner(s)
Tel. 203-938-3952 Fax 203-938-3952 Email NancyBurtonCT@aol.com A tto r ney Contact Counsel's Name:
Address:
Telephone No.:
Fax No.:
E-mail:
Information Please see attached.
fo r Respondent(s)
Attorney:
JURISDICTION APPROX. NUMBER APPROX.
Has this matter been before this Circuit previously?
Dly es
[
No OF THE COURT OF PAGES IN THE NUMBER OF OF APPEALS RECORD:
EXHIBITS IN If Yes, provide the following:
(provide U.S.C.
THE RECORD:
title and section):
Case Name:
28 USC 500 0
2d Cir. Docket No.:
Reporter Citation: (i.e., F.3d or Fed. App.)
§2342 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 THE BASIS FOR THIS PETITION FOR REVIEW OR APPLICATION FOR ENFORCEMENT.
ADDENDUM "B": COUNSEL MUST ATTACH TO THIS FORM: (1) THE RELIEF REQUESTED; (2) A LIST OF THE PROPOSED ISSUES; AND (3) THE 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
[;OTHER PARTY CIRCUMSTANCES UPON WHICH VENUE IS BASED:
II NON-PARTY (SPECIFY STANDING):
Petitioner resides in the state of Connecticut (28 USC §2343)
IMPORTANT. COMPLETE AND SIGN REVERSE SIDE OF THIS FORM.
FORM C-A (Rev. April 2006)
Pagoe Iof 2
PART B: NATURE OF ORDER UPON WHICH REVIEW OR ENFORCEMENT IS SOUGHT (Check as many as apply)
TYPE OF CASE:
[
ADMINISTRATIVE REGULATION/ RULEMAKING' ZBENEFITS REVIEW I IUNFAIR LABOR HEALTH & SAFETY D*
COMMERCE ffiD ENERGY D
IMMIGRATION-includes denial of an asylum claim mIMMIGRATION-does NOT include denial of an asylum claim J
TARIFFS SOTHER:
(SPECIFY)
- 1. Is any matter relative to this petition or application still pending below? DYes, specify:
[J.o
- 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 ?
-Yes
-"No (B)
Involves an issue that is substantially similar or related to an issue in this petition or application ?
DYes No If yes, state whether -"A," or 7"B," oflboth are applicable, and provide in the spaces below the following information on the oher action(s):
Case Name:
Docket No.
Citation:
Court or Agency:
Name of Petitioner or Applicant:
May 11, 2009 NOTICE TO COUNSEL Once you have filed your Petition for Review or Application 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 c with the Clerk of the Second Circuit.
- 2.
Pay the S450 docketing fee to the Clerk of the Second Circuit, unless you are authorized to prosecute the appeal without paymen opy t.
PLEASE NOTE:
IF YOU DO NOT COMPLY WITH THESE REQUIREMENTS WITHIN TEN (10) CALENDAR DAYS, YOUR PETITION FOR REVIEW OR APPLICATION FOR ENFORCEMENT WILL BE DISMISSED. SEETHE CIVIL APPEALS MANAGEMENT PLAN OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
FORM C-A (Rev. April 2006)
Page 2 of-2
Addendum "A" (1) Nature of the Action The proceedings below concern the application to the respondent, U.S. Nuclear Regulatory Commission ("NRC"), by Dominion Nuclear Connecticut, Inc. ("Dominion")
on July 13, 2007 to amend the license for its Millstone Nuclear Power Station Unit 3 nuclear reactor located in Waterford, Connecticut, to allow for a 7+ per cent electrical power generation "uprate."
The petitioner, an individual residing in Redding, Connecticut, on her own behalf and on behalf of the Connecticut Coalition Against Millstone, petitioned the NRC to become an intervening party to the proceedings on March 17, 2008, pursuant to 10 C.F.R.
§2.309, and for a hearing on nine proposed contentions, which alleged with the support of declarations of two expert witnesses that Dominion's license renewal application posed "grave potential to increase safety risks and diminish safety margins at Millstone Unit 3."
The Atomic Safety and Licensing Board ("ASLB") established by the NRC to consider all challenges to the Dominion license renewal application rejected the petition to intervene and request for a hearing by Memorandum and Order entered on June 4, 2008 (attached hereto).
The petitioner filed an appeal of the ASLB's decisions with the NRC. By Memorandum and Order (CLI-08-17) dated August 13, 2008 (attached hereto), the NRC affirmed the ASLB decision and dismissed petitioner's petition to intervene and request for hearing.
I
While the proceedings remained pending, the petitioner submitted additional contentions based on newly-discovered information revealed at a conference of the NRC's Advisory Committee on Reactor Safeguards on July 8, 2008. By Memorandum and Order issued on October 27, 2008 (attached hereto), the ASLB rejected the motions. The NRC affirmed the ASLB Memorandum and Order at an affirmation session on March 5, 2009 (SECY-09-0008)(attached hereto).
(2) The Result Below The agency, affirming the decisions of the Atomic Safety and Licensing Board, d ismissed the Petitioner's Petition to Intervene and Request for Hearing and motions to'..
submit new contentions based on newly-discovered information.
(3) Copy of All Relevant Opinions/Orders Forming the Basis for this Petition for Review A. SECY-09-0008 (March 5, 2009)
B. Memorandum and Order (October 27, 2008)
C. Memorandum and Order (CLI-08-17)(August 13, 2008)
D. Memorandum and Order (June 4, 2008) 2
Addendum "B" (1) The Relief Requested The petitioner prays that her petition be sustained; that her petition be found to present admissible contentions pursuant to 10 C.F.R. § 2.309; that her motions to submit new contentions based on newly-discovered information be granted; and that this matter be remanded to the agency for a hearing on the merits of said petition.
(2) List of the Proposed Issues A. Did the Commission err in dismissing the Petition to Intervene and Request for Hearing for failure to proffer admissible contentions?
B. Did the Commission err in dismissing the petitioner's motions to submit new contentions based on newly-discovered information?
(3) Applicable Appellate Standard of Review for Each Proposed Issue With regard to both issues, the standard for review is whether, based on the record developed to date, the agency's action was unlawful and should be set aside because it was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with laws, was in excess of its statutory authority, or was unsupported by substantial evidence.
I
United States Department of Justice Environment and Natural Resources Division P:O. Box 23795 L'Enfant Plaza Station Washington DC 20026-3795 John.Arbabausdoj.gov David Lewis, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street NW Washington DC 20037-1122 David. Lewis@pillsburylaw.com Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Mail Stop 015-D21 Rockville MD 20852 OGCMailCenter@nrc.gov