ML080350681
| ML080350681 | |
| Person / Time | |
|---|---|
| Site: | Indian Point, Oyster Creek, Pilgrim, Vermont Yankee |
| Issue date: | 02/04/2008 |
| From: | James Adler, Baty M, Chandler C NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-219-LR, 50-247-LR, 50-271-LR, 50-286-LR, 50-293-LR, RAS 15031, RAS 15032, RAS 15033, RAS 15034 | |
| Download: ML080350681 (14) | |
Text
February 4, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
AMERGEN ENERGY COMPANY, LLC
)
Docket No.
(Oyster Creek Nuclear Generating Station)
)
50-219-LR
______________________________________)
In the Matter of
)
)
ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket Nos.
(Indian Point Nuclear Generating
)
50-247-LR Units 2 and 3)
)
and 50-286-LR
______________________________________)
In the Matter of
)
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ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket No.
(Pilgrim Nuclear Power Station)
)
50-293-LR
______________________________________)
In the Matter of
)
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ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket No.
(Vermont Yankee Nuclear Power Station)
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50-271-LR
______________________________________)
NRC STAFFS RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO REPLY INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the Commissions January 11, 2008 Order,1 the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Motion by Nuclear Information and Resource Service; Jersey Shore Nuclear Watch, Inc.; Grandmothers, Mothers, and More for Energy Safety; New Jersey Public Interest Research Group; New Jersey 1 The Order states that the Petition is governed by 10 C.F.R. §§ 2.306 and 2.323. The Order stated that replies to any answers are governed by 10 C.F.R. § 2.323(c).
Sierra Club; New Jersey Environmental Federation; Riverkeeper, Inc; Pilgrim Watch and New England Coalition (Petitioners) For Leave to Reply to Oppositions to Petition to Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies (Motion) filed January 25, 2008, along with Reply by [Petitioners] to Opposition to Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies (Reply). The Staff submits that the Motion should be denied, on the grounds the petitioners have not demonstrated that they have met the criterion set forth in 10 C.F.R. § 2.323(c) for filing a reply.
DISCUSSION Petitioners move for leave to file a reply to answers filed in opposition to their January 3, 2008 Petition.2 They claim that they could not have anticipated either the procedural arguments or the arguments concerning the significance of the Audit of NRCs License Renewal Review Program (OIG-07-A-15) (Sept. 6, 2007) (OIG Report) raised in answers to their Petition and therefore the compelling circumstances contemplated by 10 C.F.R. § 2.323(c) for the filing of replies exist. Motion at 1-2. Petitioners, however, have not met the standard.
Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply (emphasis added). In 2004, the Commission added the compelling 2 Petition for Nuclear Information and Resource Service; Jersey Shore Nuclear Watch, Inc.;
Grandmothers, Mothers, and More for Energy Safety; New Jersey Public Interest Research Group; New Jersey Sierra Club; New Jersey Environmental Federation; Riverkeeper, Inc; Pilgrim Watch and New England Coalition to Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies (Jan. 3, 2008) (Petition).
circumstances standard to its rules governing motions for leave to file replies to motions
(§ 2.323(c)) and motions for leave to file motions for reconsideration (§ 2.323(e)).3 See Changes to Adjudicatory Process (Final Rule), 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004). In so doing, the Commission stated that it was raising the standard in § 2.323(e) to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier. Id. Similarly then, a demonstration of compelling circumstances in a motion for leave to reply should show that manifest injustice would occur in the absence of a reply and that the arguments raised in the reply could not have been raised earlier.
Petitioners have not demonstrated compelling circumstances. As the moving party, it was incumbent on the petitioners to identify all applicable rules and case precedents and distinguish them in their Petition and not in their Reply. Because Petitioners elected to file under 10 C.F.R. § 2.323, there was no page limitation and Petitioners had an unfettered opportunity to raise every relevant argument in support of their Petition in the first instance.4 There is no injustice in denying Petitioners request to make arguments they could have first raised in their Petition.
Petitioners have not shown that they could not have raised the arguments in their Reply earlier. Petitioners could have reasonably anticipated arguments that their Petition did not meet the requirements of 10 C.F.R. § 2.323. Petitioners expressly filed their Petition pursuant to 10 C.F.R. § 2.323. Petition at 1, 7. Therefore they should have reasonably anticipated 3 Section 2.323(e) requires a showing of compelling circumstances such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.
4 Since the issuance of the OIG Report, Petitioners had over three months to contemplate arguments that they could raise in support of their Petition as well as arguments that might be raised against their Petition.
arguments that their Petition did not comply with the timeliness and consultation requirements contained in § 2.323.
Petitioners could reasonably have anticipated arguments that they had not met the requirements for suspension of proceedings because they relied upon a case applying those standards in their Petition. See Petition at 7 (citing Pacific Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230 (2002)).
Petitioners cannot rely on a case as the basis for their Motion and then claim to be surprised when that same case and other relevant cases are used in arguments against their Motion.
Moreover, anticipation of an argument does not become unreasonable simply because a party disagrees with the arguments interpretation of precedent.
Petitioners could have reasonably anticipated arguments that they have not met the standards for reopening of records (10 C.F.R. § 2.326) and stays (10 C.F.R. § 2.342) because these are two types of adjudicatory relief that they requested in their Petition. See Petition at 1-2, 30-31. Petitioners filed their Petition as part of four on-going adjudicatory proceedings.
Therefore they could have reasonably anticipated arguments and case law concerning their compliance with the Commissions procedures and standards for adjudicatory relief.
Petitioners have not demonstrated that they could not have reasonably anticipated arguments about the significance (or lack thereof) of the OIG Report. The OIG Report expressly states that its judgmental sample was limited to the operating experience element of only eleven aging management programs that were common to most of the SERs reviewed and thus it does not extrapolate results from the sample to the entire universe of reviews. See OIG Report at 45 nn.24 & 25. The OIG Report does not conclude that the Staffs license renewal review process is inadequate nor does it recommend an overhaul of the Staffs license renewal review process. See OIG Report at 7, 36-37. Thus, petitioners could have reasonably anticipated arguments that the OIG Report does not support their requests for suspension, overhaul, and reopening of records of license renewal proceedings.
CONCLUSION In sum, Petitioners Motion raises nothing that they could not have addressed in their Petition. Petitioners failure to provide a reasonable basis for their assertion of compelling circumstances should result in denial of their Motion.
Respectfully submitted,
/RA/
Mary C. Baty Counsel for NRC Staff
/RA/
James E. Adler Counsel for NRC Staff
/RA/
Christopher C. Chandler Counsel for the NRC Staff Dated at Rockville, Maryland This 4th day of February 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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AMERGEN ENERGY COMPANY, LLC
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Docket No. 50-219-LR
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(Oyster Creek Nuclear Generating Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ANRC STAFFS RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO REPLY in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S mail, first class, this 4th day of February, 2008.
E. Roy Hawkens, Chair Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ERH@nrc.gov Anthony J. Baratta Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: AJB5@nrc.gov Paul B. Abramson Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: PBA@nrc.gov Office of the Secretary ATTN: Docketing and Service Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: HEARINGDOCKET@nrc.gov Office of Commission Appellate Adjudication Mail Stop O-16G4 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: OCAAmail@nrc.gov Emily Krause Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: EIK1@nrc.gov Suzanne Leta Liou*
NJ Public Interest Research Group 11 N. Willow St.
Trenton, NJ 08608 E-mail: sliou@environmentnewjersey.org Richard Webster, Esq.*
Julia LeMense, Esq.*
Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102 Email: rwebster@easternenvironmental.org jlemense@easternenvironmental.org Donald Silverman, Esq.*
Alex S. Polonsky, Esq.*
Kathryn M. Sutton, Esq.*
Ray Kuyler, Esq.*
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 E-mail:dsilverman@morganlewis.com J. Bradley Fewell, Esq.*
Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 E-mail: bradley.fewell@exeloncorp.com Paul Gunter, Esq.*
Kevin Kamps*
Nuclear Watchdog Project & Nuclear Information and Resource Service 6930 Carroll Ave., Suite 340 Takoma Park, MD 20912 E-mail: paul@beyondnuclear.org kevin@beyondnuclear.org rkuyler@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com
/RA/
February 4, 2008 Mary C. Baty Counsel for the NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
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ENTERGY NUCLEAR OPERATIONS, INC. )
Docket Nos. 50-247/286-LR
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(Indian Point Nuclear Generating
)
Units 2 and 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ANRC STAFFS RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO REPLY in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S mail, first class, this 4th day of February, 2008.
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: LGM1@nrc.gov Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: REW@nrc.gov Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane E.
Ridgway, CO 81432 E-mail: KDL2@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 E-mail: OCAAMAIL@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov Zachary S. Kahn Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ZXK1@nrc.gov
William C. Dennis, Esq.*
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis@entergy.com Kathryn M. Sutton, Esq.*
Paul M. Bessette, Esq.*
Martin J. ONeill, Esq.*
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o'neill@morganlewis.com Michael J. Delaney, Esq.*
Vice President - Energy Department New York City Economic Development Corporation (NYCDEC) 110 William Street New York, NY 10038 E-mail: mdelaney@nycedc.com Susan H. Shapiro, Esq.*
21 Perlman Drive Spring Valley, NY 10977 E-mail: mbs@ourrocklandoffice.com Arthur J. Kremer, Chairman*
New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016 E-mail: ajkremer@rmfpc.com kremer@area-alliance.org John LeKay*
FUSE USA 351 Dyckman Street Peekskill, NY 10566 E-mail: fuse_usa@yahoo.com Manna Jo Greene*
Hudson River Sloop Clearwater, Inc.
112 Little Market Street Poughkeepsie, NY 12601 E-mail: Mannajo@clearwater.org Justin D. Pruyne, Esq.*
Assistant County Attorney Office of the Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-mail: jdp3@westchestergov.com Daniel E. ONeill, Mayor*
James Seirmarco, M.S.
Village of Buchanan Municipal Building Buchanan, NY 10511-1298 E-mail: vob@bestweb.net John J. Sipos, Esq.*
Charlie Donaldson, Esq.
Assistants Attorney General New York State Department of Law Environmental Protection Bureau The Capitol Albany, NY 12224 E-mail: john.sipos@oag.state.ny.us Joan Leary Matthews, Esq.*
Senior Attorney for Special Projects New York State Department of Environmental Conservation Office of the General Counsel 625 Broadway, 14th Floor Albany, NY 12233-1500 E-mail: jlmatthe@gw.dec.state.ny.us Diane Curran, Esq.*
Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, NW, Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com
Robert Snook, Esq.*
Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CN 06141-0120 E-mail: robert.snook@po.state.ct.us Daniel Riesel, Esq*.
Thomas F. Wood, Esq.
Ms. Jessica Steinberg, J.D.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com jsteinberg@sprlaw.com Ms. Nancy Burton*
147 Cross Highway Redding Ridge, CT 06876 E-mail: nancyburtonct@aol.com February 4, 2008 Victor Tafur, Esq.*
Phillip Musegaas, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 E-mail: phillip@riverkeeper.org vtafur@riverkeeper.org Richard L. Brodsky, Esq.*
5 West Main St.
Elmsford, NY 10523 E-mail: brodskr@assembly.state.ny.us richardbrodsky@msn.com Elise N. Zoli, Esq.*
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com
/RA/
Christopher C. Chandler Counsel for NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ANRC STAFFS RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO REPLY in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S mail, first class, this 4th day of February, 2008.
Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rfc1@nrc.gov Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: amy@nrc.gov Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pba@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Sheila Slocum Hollis*
Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Terence A. Burke, Esq.*
Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 Mary Lampert*
148 Washington Street Duxbury, MA 02332 E-mail: lampert@adelphia.net David R. Lewis, Esq.*
Paul A. Gaukler, Esq.*
Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord*
Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Town Manager*
Town of Plymouth 11 Lincoln St.
Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us February 4, 2008
/RA/
James E. Adler Counsel for NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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ENTERGY NUCLEAR VERMONT YANKEE,
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Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR
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OPERATIONS, INC.
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(Vermont Yankee Nuclear Power Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ANRC STAFFS RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO REPLY in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S mail, first class, this 4th day of February, 2008.
Alex S. Karlin, Chair Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.gov Thomas S. Elleman Administrative Judge Atomic Safety and Licensing Board 5207 Creedmoor Road, #101 Raleigh, NC 27612 E-mail: elleman@eos.ncsu.edu Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmail@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Marcia Carpentier, Esq.
Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.gov Jmr3@nrc.gov Sarah Hofmann, Esq.*
Director of Public Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us Peter C.L. Roth, Esq*
Office of the Attorney General 33 Capitol Street Concord, NH 3301 E-mail: peter.roth@doj.nh.gov Ronald A. Shems, Esq.*
Karen Tyler, Esq.
Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com Anthony Z. Roisman, Esq.*
National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 E-mail:
aroisman@nationallegalscholars.com David R. Lewis, Esq.*
Matias F. Travieso-Diaz, Esq.*
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com February 4, 2008
/RA/
Mary C. Baty Counsel for NRC Staff