ORAL ARGUMENT IN CASE NO SCHEDULED FOR NOVEMBER 21, Case Nos and

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1 USCA Case # Document # Filed: 11/05/2014 Page 1 of 7 ORAL ARGUMENT IN CASE NO SCHEDULED FOR NOVEMBER 21, 2014 Case Nos and UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents. PETITIONER S MOTION TO CONSOLIDATE Pursuant to Fed. R. App. P. 3(b(2, Petitioner Natural Resources Defense Council, Inc. ( NRDC hereby moves to consolidate the pending Petition for Review in Case No with the recently filed Petition for Review in Case No (filed November 4, Consolidation is warranted because the two Petitions involve the same parties, arise from the same relicensing proceeding before the Nuclear Regulatory Commission ( Commission, and challenge the same decisions in which the Commission refused to permit NRDC to raise

2 USCA Case # Document # Filed: 11/05/2014 Page 2 of 7 contentions regarding the consideration of Severe Accident Mitigation Alternatives ( SAMAs in the relicensing process. See Fed. R. App. P. 3(b; D.C. Circuit Handbook of Practice and Internal Procedures 23 (2013. NRDC has filed the second Petition for Review out of an abundance of caution and in order to obviate the need for the Court to resolve certain jurisdictional arguments the Commission has raised in No , which is fully briefed. NRDC does not seek to raise any additional issues or arguments in Case No Accordingly, NRDC requests that the Court consolidate the Petitions and proceed with oral argument in Case No , scheduled for November 21, NRDC counsel has conferred with counsel for the Commission and Intervenors in Case No Counsel for the Commission states that Respondents do not consent to consolidating the two cases (DC Cir. nos and Counsel for Intervenor in Case No , Exelon Generation Co. LLC, states that Intervenor takes no position on the motion to consolidate, but does not intend to file any objection, opposition, or response. 1. On December 24, 2013, NRDC filed a Petition for Review over the Commission s October 31, 2013 Order (CLI denying NRDC s Petition to 1 The Orders referred to herein CLI-13-07; CLI-12-19; LBP-14-15; and 79 Fed. Reg. 64,620 are all attached to NRDC s November 4, 2014 Petition for Review, No In No , CLI-13-7 and CLI are in the Joint 2

3 USCA Case # Document # Filed: 11/05/2014 Page 3 of 7 Intervene and Request for a Hearing in the relicensing proceeding for the Limerick Generating Station, Units 1 and 2 ( Limerick. NRDC s Petition to Intervene sought to raise contentions concerning whether the Commission could relicense Limerick without consideration of SAMAs under the National Environmental Policy Act, 42 U.S.C. 4321, et seq., but in CLI together with an earlier ruling on October 23, 2012 (CLI the Commission ruled that (a the contentions could only be pursued through a waiver of a Commission regulation (10 C.F.R (c(3(ii(L, and (b NRDC could not satisfy the requirements for a waiver. 2. The Commission filed a Motion to Dismiss the Petition for Review, arguing the Petition was premature. NRC Mot. to Dismiss in No , DN# (Feb. 10, The Court referred the issues raised to the merits panel and directed the parties to brief jurisdictional issues during merits briefing. Order of May 8, In briefing the Commission has continued to press its jurisdictional arguments. See Final Brief of Respondents ( Resp. Br. (Oct. 9, 2014 at It has also argued that NRDC may not challenge CLI in which the Commission initially ruled that a regulatory waiver is required and remanded the matter to the Atomic Safety Licensing Board ( ASLB to consider Appendix at pages 345 and 184 respectively, while LBP and the final relicensing decision (79 Fed. Reg. 64,620 were filed by the Commission on October 20, 2014 and October 27, 2014 respectively. 3

4 USCA Case # Document # Filed: 11/05/2014 Page 4 of 7 an NRDC waiver request because that interlocutory Order was not specifically identified in NRDC s Petition for Review. Id. at On October 7, 2014 the ASLB terminated the adjudicatory proceeding in which NRDC had sought to raise its SAMA contentions. LBP ( ASLB Termination Order. The proceeding had remained open due to an unrelated contention NRDC had sought to introduce, but which the Commission ruled is categorically barred in individual licensing proceedings. Id. at 4-6. The pendency of the proceeding was one of the bases on which the Commission has argued that NRDC s Petition for Review in No was premature. Resp. Br. at On October 24, 2014, the Commission made its final decision renewing the Limerick license. 79 Fed. Reg. 63,650. The absence of a final licensing decision was another basis on which the Commission has argued that NRDC s Petition in No was premature. Resp. Br. at NRDC maintains that the Court has jurisdiction over the Petition for Review pending in No irrespective of these recent developments. See Petitioners Final Opening Brief (Oct. 9, 2014 at 27-30; Petitioner s Final Reply Brief (Oct. 9, 2014 at Nonetheless, out of an abundance of caution and to facilitate the Court s resolution of the merits, NRDC has filed a new Petition for 2 Although entered on October 7, 2014, LBP states that it did not become a final decision until twenty-five days thereafter, or November 1, LBP at 6. 4

5 USCA Case # Document # Filed: 11/05/2014 Page 5 of 7 Review that both identifies the two Commission decisions denying the SAMA contentions, as well as the ASLB Termination Order and the Limerick Renewal License. Petition for Review in No In No NRDC seeks review of the same underlying Commission decisions at issue in No However, in the event the Court consolidates the Petitions, it will no longer be necessary for the Court to resolve the Commission s jurisdictional arguments. The Commission has argued that NRDC may not challenge the Commission s decision that NRDC may not obtain a hearing on its SAMA contentions until the adjudicatory proceeding has been completed and/ or the renewal license has been issued. Resp. Br. at Both of those events have now occurred, and NRDC has filed another Petition for Review triggered from those decisions. The Commission has also argued that NRDC must identify both CLI and CLI in its Petition for Review. Resp. Br. at In No NRDC has now done so. Accordingly, although NRDC disagrees with the NRC s jurisdictional arguments for the reasons set forth in its pending briefs, the new Petition eliminates any possible jurisdictional objection. 5

6 USCA Case # Document # Filed: 11/05/2014 Page 6 of 7 7. Accordingly, NRDC respectfully requests that the Court consolidate the Petitions for Review in D.C. Cir. Nos and and resolve the Petitions based on the merits briefing provided in No Respectfully submitted, /s/ Howard M. Crystal Howard M. Crystal Meyer Glitzenstein & Crystal 1601 Conn. Ave., N.W., Suite 700 Washington, D.C ( hcrystal@meyerglitz.com Filed this November 5, 2014 Attorney for Petitioner Natural Resources Defense Council, Inc. 6

7 USCA Case # Document # Filed: 11/05/2014 Page 7 of 7 CERTIFICATE OF SERVICE I, Howard M. Crystal, hereby certify that I caused a true and correct copy of Petitioner s Motion To Consolidate to be served by U.S. mail on the following this November 5, They will also be served via CM/ECF: James Adler, Andrew Averbach U.S. Nuclear Regulatory Commission, Office of the General Counsel Division of Legal Counsel Mailstop O-15 D21 Rockville, MD John E. Arbab, Esq., U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, DC Counsel for Respondents United States and U.S. Nuclear Regulatory Commission Brad Fagg, Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC Counsel for Intervenor in No Exelon Generation Co. LLC /s/ Howard M. Crystal Howard M. Crystal 7