ML062780244
| ML062780244 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 07/03/2006 |
| From: | Hamrick S NRC/OGC |
| To: | |
| References | |
| 50-271-LR, TAC MC2297 | |
| Download: ML062780244 (11) | |
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From: Steven Hamrick To: aroisman@nationallegalscholars.com; Carpentier, Marcia; cbnewton@sover.net; david.lewis@pillsburylaw.com; dcurran@harmoncurran.com; dmacarthur@igc.org; Elleman@eos.ncsu.edu; HearingDocket; Karlin, Alex; ktyler@sdkslaw.com; marcialynn@evl.net; matias.travieso-diaz@pillsburylaw.com; matthew.brock@ago.state.ma.us; OCAAMAIL; rshems@sdkslaw.com; Rund, Jonathan; sarah.hofmann@state.vt.us; Wardwell, Richard Date: 7/3/2006 2:14:33 PM
Subject:
Entergy Nuclear Vermont Yankee LLC (Dkt No. 50-271-LR)
Please find attached for filing in docket number 50-271-LR the NRC Staff's response to NEC's motion for leave for file a reply. Conforming hard copies have been served today via deposit in the U.S. mail, first class, or NRC internal mail, as appropriate. If you have trouble with this transmission, please contact me at the number below.
Steven C. Hamrick Counsel for NRC Staff Office of the General Counsel Mailstop 015D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Phone 301-415-4106
c\empGW 0002"TMP ........
.... .. .. .. . . .. .. .. Page 1 Mail Envelope Properties (44A95E85.233: 3 : 9864)
Subject:
Entergy Nuclear Vermont Yankee LLC (Dkt No. 50-271-LR)
Creation Date 7/3/2006 2:14:29 PM From: Steven Hamrick Created By: SCHI @nrc.gov Recipients ago.state.ma.us matthew.brock (matthew.brock@ago.state.ma.us) eos.ncsu.edu Elleman (Elleman @eos.ncsu.edu) evI.net marcialynn (marcialvnn @evl.net) harmoncurran.com dcurran (dcurran @harmoncurran.com) igc.org dmacarthur (dmacarthur@igc.org) nationallegalscholars.com aroisman (aroisman @nationallegalscholars.com) nrc.gov OWGWPO01.HQGWDOO1 MXC7 (Marcia Carpentier) nrc.gov OWGWPOO2.HQGWDOO1 HearingDocket (HearingDocket) nrc.gov OWGWPOO4.HQGWDOO1 ASK2 (Alex Karlin) nrc.gov TWGWPO03.HQGWDOO1 JMR3 (Jonathan Rund) nrc.gov
f c-.\tempWI00602.TI P Parle 2 !1 Pa~ie2]
c:\temp~GWlOOO02.TMP TWGWPO04.HQGWDOO1 OCAAMAIL (OCAAMAJL)
REW (Richard Wardwell) pillsburylaw.com david.lewis (david.lewis @pillsburylaw.com) matias.travieso-diaz (matias.travieso-diaz @pillsburylaw.com) sdkslaw.com ktyler (ktyler@sdkslaw.com) rshems (rshems@sdkslaw.com) sover.net cbnewton (cbnewton@sover.net) state.vt.us sarah.hofmann (sarah.hofmann @state.vt.us)
Post Office Route ago.state.ma.us eos.ncsu.edu evI.net harmoncurran.com igc.org nationallegalscholars.com OWGWP01.HQGWDO01 nrc.gov OWGWPOO2.HQGWDOO1 nrc.gov OWGWPOO4.HQGWDO01 nrc.gov TWGWPO03.HQGWDO01 nrc.gov TWGWPO04.HQGWDOO1 nrc.gov pillsburylaw.com sdkslaw.com sover.net state.vt.us Files Size Date & Time MESSAGE 957 7/3/2006 2:14:29 PM NRC Staff Response to NEC motion for leave to file a reply.wpd 45525 7/3/2006 2:08:40 PM Options Expiration Date: None Priority: Standard ReplyRequested: No
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July 3, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271 -LR LLC, and ENTERGY NUCLEAR )
OPERATIONS, INC. ) ASLBP No. 06-849-03-LR
)
(Vermont Yankee Nuclear Power Station) )
NRC STAFF ANSWER OPPOSING NEC'S MOTION FOR LEAVE TO FILE REPLIES INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission
("Staff") hereby answers the New England Coalition's ("NEC") "Motion for Leave to File a Reply to NRC Staff Answer to NEC's Notice and Motion to Adopt Contentions; to Entergy's Answer to NEC's Notice and Motion to Adopt Contentions; and to Entergy's Answer to Vermont Department of Public Service's Notice and Motion to Adopt Contentions" ("Motion"), dated June 22, 2006. Because NEC failed to demonstrate compelling circumstances, its request for leave to file replies should be denied. See 10 C.F.R. § 2.323(c).
BACKGROUND By letter dated January 25, 2006, as supplemented March 15 and May 15, 2006, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy" or "Applicant") submitted an application, under 10 C.F.R. Part 54, to renew Operating License No. DPR-28 for the Vermont Yankee Nuclear Power Station ('VYNPS").1 On March 27, 2006, the NRC published in the FederalRegistera notice of acceptance for docketing and 1 See Letter from William F. Maguire, Entergy, to the NRC Document Control Desk, "Vermont Yankee Nuclear Power Station, License No. DPR-28 (Docket No. 50-271), License Renewal Application,"
dated January 25, 2006 (Agencywide Documents Access and Management System ("ADAMS") Accession Nos. ML060300082, ML060300085, ML060300086).
opportunity for a hearing.2 In response to this notice, NEC timely filed its Petition on May 26, 2006.3 Three governmental entities, the Vermont Department of Public Service ("DPS"), the Attorney General of the Commonwealth of Massachusetts, and the Selectboard of the Town of Marlboro, Vermont, also submitted petitions requesting a hearing on this matter.4 On June 8, 2006, this Atomic Safety and Licensing Board ("Licensing Board") was established to preside over the proceeding.5 Both NEC and DPS filed motions seeking to adopt the contentions of other parties. See NEC's "Notice of Adoption of Contentions, or, in the Alternative Motion to Adopt Contentions"
("NEC's Notice and Motion"), dated June 5, 2006; DPS's "Notice of Intent to Adopt Contentions and Motion for Leave to Do So" ("DPS's Notice and Motion"), dated June 5, 2006. On June 15, 2006, the Staff filed an answer to NEC's Notice and Motion, and Entergy filed an answer to DPS's Notice and Motion. On June 20, Entergy filed an answer to NEC's Notice and Motion.
On June 21, 2006, the Staff filed an answer to DPS's Notice and Motion.
On June 22, 2006, NEC filed the instant motion for leave to file replies to both the Staff's and Entergy's answers to its Notice and Motion, as well as to Entergy's answer to DPS's Notice and Motion. For the reasons set forth below, NEC's motion should be denied.
2 See Entergy Nuclear Operations, Inc., Vermont Yankee Nuclear Power Station; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. DPR-28 for an Additional 20-Year Period, 71 Fed. Reg. 15,220 (March 27, 2006).
3 Pursuant to the Licensing Board's oral order of June 19, 2006, the deadline for filing this Answer is June 22, 2006.
4 See "New England Coalition's Petition for Leave to Intervene, Request for Hearing, and Contentions," dated May 26,2006; "Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operating License," dated May 26, 2006; "Town 'of Marlboro Selectboard's "Request for Hearing in Entergy Vermont Yankee License Extension Proceeding," dated April 27, 2006.
5 See "Establishment of Atomic Safety and Licensing Board," dated June 8, 2006. 71 Fed. Reg.
34,397 (June 14, 2006).
DISCUSSION Pursuant to 10 C.F.R. § 2.323(c), the moving party has no right to reply to an answer to its motion, except as permitted upon a showing of compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply. NEC asserts that it could not reasonably have anticipated either the Staff's or Entergy's positions on adoption because "both Entergy and the Staff put forth arguments without apparent support in the governing regulations or in [NRC] precedent."
Motion at 3-4. However, both Entergy's and the Staff's position rely explicitly on NRC caselaw.
Anticipation of an argument does not become unreasonable simply because a party disagrees with the argument's interpretation of precedent.
The Staff's position, that NEC must first be admitted as a party to the proceeding, based upon its initial pleading, before being allowed to adopt the contentions of another petitioner, is taken from Commission precedent. See ConsolidatedEdison Co. of New York & Entergy Nuclear Indian Point 2 LLC and Entergy NuclearOperations,Inc. (Indian Point, Units 1 and 2),
CLI-01-19, 54 NRC 109, 131-33 (2001). It is apparent from Indian Pointthat the Commission will not allow adoption of contentions by a petitioner that has not itself presented an admissible contention. Id. at 133 ("[W]e would not accept incorporation by reference of another petitioner's issues in an instance where the petitioner has not independently established compliance with our requirements for admission as a party in its own pleadings by submitting at least one admissible issue of its own"). It is not unreasonable to expect NEC to anticipate arguments based upon recent, binding Commission precedent.
NEC's argument regarding the difficulty of anticipating Entergy's argument is even less persuasive in light of the fact that Entergy made a similar argument against an NEC adoption request in the Vermont Yankee uprate proceeding and even relied on the same case as precedent. See Entergy Nuclear Vermont Yankee, LLC, Entergy Nuclear Operations,Inc.,
(Vermont Yankee Nuclear Power Station) (unpublished order), (Feb. 16, 2005). In that case, Entergy relied on an Appeal Board decision concerning the South Texas Project for the proposition that participants seeking to adopt contentions must address the Commission's late-filed contention standards. See Id. at 3 (citing Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 381-82 (1985)). The Licensing Board denied NEC's adoption request without having to address Entergy's argument and specifically declined to rule on Entergy's argument.6 See Id. This is the same argument, relying on the same case, made now by Entergy in its answers to the NEC and DPS adoption motions. Regardless of whether this Licensing Board ultimately agrees with the argument set forth by Entergy, it is certainly not unreasonable to expect NEC to anticipate it making the same argument in this case that it made against NEC less than two years ago.
Additionally, 10 C.F.R. § 2.323(c) only provides for replies by the moving party. Replies by other parties are not contemplated by the rule. There is no procedural mechanism by which NEC may reply to answers filed in response to a DPS Motion. NEC acknowledges this fact, but argues that an exception should be made due to its "strong interest in DPS' participation." See Motion at 4. If truly compelling circumstances existed, DPS, which is represented by able counsel, would no doubt seek leave to reply on its own, and represent its own interests.
6 Therefore, NEC's description of the Licensing Board's holding inthe Vermont Yankee uprate case is incorrect and misleading. The Licensing Board did not hold that any adoption motion filed within ten days is persetimely. Itsimply held that NEC's adoption request, made several months after the filing of the original contentions was not timely. See Memorandum and Order, slip op. at 3.
CONCLUSION NEC has failed to provide Compelling circumstances to reply to answers filed by the Staff and Entergy. Accordingly, NEC's Motion for Leave to File Replies should be denied.
Respectfully submitted,
)RAI Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 3rd day of July, 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ))
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )
OPERATIONS, INC. ) ASLBP No. 06-849-03-LR
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the "NRC STAFF ANSWER TO NEC'S MOTION FOR LEAVE TO FILE REPLIES" in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRC's internal mail system or, as indicated by an asterisk, by electronic mail with copies by U.S. mail, first class, this 3rd day of July 2006.
Administrative Judge Administrative Judge Alex S. Karlin, Chair Richard E. Wardwell Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.qov E-mail: rew@nrc.gov Administrative Judge Office of the Secretary Thomas S. Elleman* Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: 0-1 6C1 5207 Creedmoor Road, #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: elleman@eos.ncsu.edu E-mail: hearinpqdocket@nrc.gov Office of Commission Appellate Sarah Hofmann, Esq.*
Adjudication Director of Public Advocacy Mail Stop: 0-1 6Cl Department of Public Service U.S. Nuclear Regulatory Commission 112 State Street - Drawer 20 Washington, DC 20555-0001 Montpelier, VT 05620-2601 E-mail: OCAAmail@nrc.gov E-mail: sarah.hofmann @state.vt.us
Diane Curran, Esq.* Anthony Z. Roisman, Esq.*
Harmon, Curran, Spielberg National Legal Scholars Law Firm
& Eisenberg, L.L.P. 84 East Thetford Rd.
1726 M Street, NW., Suite 600 Lyme, NH 03768 Washington, DC 20036 E-mail: aroisman@ nationalleqalscholars.com E-mail: dcurran@harmoncurran.com Matthew Brock, Esq.*
Ronald A. Shems, Esq.* Assistant Attorney General Karen Tyler, Esq. Office of the Massachusetts Attorney Shems Dunkiel Kassel & Saunders, PLLC General 91 College Street Environmental Protection Division Burlington, VT 05401 One Ashburton Place, Room 1813 E-mail: rshems@sdkslaw.com Boston, MA 02108-1598 Ktyler@sdkslaw.com E-mail: matthew.brock@aaqo.state.ma.us Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Marcia Hamilton P.O. Box Box 30 Town of Marlboro Marlboro, VT 05344 Selectboard E-mail: dmacarthur@iqc.orgq P.O. Box 518 Marlboro, VT 05344 E-mail: cbnewton@sover.net David R. Lewis, Esq.*
marcialynn @evi .net Matias F Travieso-Diaz Pillsbury Winthrop Shaw Pittman LLP Marcia Carpentier, Esq. 2300 N Street, NW Jonathan M. Rund, Esq. Washington, DC 20037-1128 Atomic Safety and Licensing Board Panel E-mail: david.lewis@pillsburylaw.com Mail Stop: T-3F23 matias.travieso-diaz @pillsburylaw.com U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.qov Jmr3@nrc.gov
)RAI Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland, this 3rd day of July 2006