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 )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No.
(Pilgrim Nuclear Power Station) ) 50-293-LR
______________________________________)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No.
(Vermont Yankee Nuclear Power Station) ) 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 )
)
AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR
)
(Oyster Creek Nuclear Generating 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.
E. Roy Hawkens, Chair Office of the Secretary Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov E-mail: ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta Adjudication Administrative Judge Mail Stop O-16G4 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission E-mail: OCAAmail@nrc.gov Washington, DC 20555-0001 E-mail: AJB5@nrc.gov Emily Krause Law Clerk Paul B. Abramson Atomic Safety and Licensing Board Panel Administrative Judge Mail Stop: T-3F23 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission E-mail: EIK1@nrc.gov Washington, DC 20555-0001 E-mail: PBA@nrc.gov
J. Bradley Fewell, Esq.*
Suzanne Leta Liou* Exelon Corporation NJ Public Interest Research Group 4300 Warrenville Road 11 N. Willow St. Warrenville, IL 60555 Trenton, NJ 08608 E-mail: bradley.fewell@exeloncorp.com E-mail: sliou@environmentnewjersey.org Paul Gunter, Esq.*
Richard Webster, Esq.* Kevin Kamps*
Julia LeMense, Esq.* Nuclear Watchdog Project & Nuclear Eastern Environmental Law Center Information and Resource Service 744 Broad Street, Suite 1525 6930 Carroll Ave., Suite 340 Newark, NJ 07102 Takoma Park, MD 20912 Email: rwebster@easternenvironmental.org E-mail: paul@beyondnuclear.org jlemense@easternenvironmental.org kevin@beyondnuclear.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 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 )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
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 Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: LGM1@nrc.gov E-mail: OCAAMAIL@nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: REW@nrc.gov E-mail: HEARINGDOCKET@nrc.gov Dr. Kaye D. Lathrop Zachary S. Kahn Atomic Safety and Licensing Board Panel Law Clerk 190 Cedar Lane E. Atomic Safety and Licensing Board Panel Ridgway, CO 81432 Mail Stop - T-3 F23 E-mail: KDL2@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Atomic Safety and Licensing Board Panel E-mail: ZXK1@nrc.gov U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001
William C. Dennis, Esq.* Manna Jo Greene*
Assistant General Counsel Hudson River Sloop Clearwater, Inc.
Entergy Nuclear Operations, Inc. 112 Little Market Street 440 Hamilton Avenue Poughkeepsie, NY 12601 White Plains, NY 10601 E-mail: Mannajo@clearwater.org E-mail: wdennis@entergy.com Justin D. Pruyne, Esq.*
Kathryn M. Sutton, Esq.* Assistant County Attorney Paul M. Bessette, Esq.* Office of the Westchester County Attorney Martin J. ONeill, Esq.* 148 Martine Avenue, 6th Floor Morgan, Lewis & Bockius, LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW E-mail: jdp3@westchestergov.com Washington, D.C. 20004 E-mail: ksutton@morganlewis.com Daniel E. ONeill, Mayor*
E-mail: pbessette@morganlewis.com James Seirmarco, M.S.
E-mail: martin.o'neill@morganlewis.com Village of Buchanan Municipal Building Michael J. Delaney, Esq.* Buchanan, NY 10511-1298 Vice President - Energy Department E-mail: vob@bestweb.net New York City Economic Development Corporation (NYCDEC) John J. Sipos, Esq.*
110 William Street Charlie Donaldson, Esq.
New York, NY 10038 Assistants Attorney General E-mail: mdelaney@nycedc.com New York State Department of Law Environmental Protection Bureau Susan H. Shapiro, Esq.* The Capitol 21 Perlman Drive Albany, NY 12224 Spring Valley, NY 10977 E-mail: john.sipos@oag.state.ny.us E-mail: mbs@ourrocklandoffice.com Joan Leary Matthews, Esq.*
Arthur J. Kremer, Chairman* Senior Attorney for Special Projects New York Affordable Reliable Electricity New York State Department of Alliance (AREA) Environmental Conservation 347 Fifth Avenue, Suite 508 Office of the General Counsel New York, NY 10016 625 Broadway, 14th Floor E-mail: ajkremer@rmfpc.com Albany, NY 12233-1500 kremer@area-alliance.org E-mail: jlmatthe@gw.dec.state.ny.us John LeKay* Diane Curran, Esq.*
FUSE USA Harmon, Curran, Spielberg & Eisenberg, 351 Dyckman Street LLP Peekskill, NY 10566 1726 M Street, NW, Suite 600 E-mail: fuse_usa@yahoo.com Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com
Robert Snook, Esq.* Victor Tafur, Esq.*
Office of the Attorney General Phillip Musegaas, Esq.
State of Connecticut Riverkeeper, Inc.
55 Elm Street 828 South Broadway P.O. Box 120 Tarrytown, NY 10591 Hartford, CN 06141-0120 E-mail: phillip@riverkeeper.org E-mail: robert.snook@po.state.ct.us vtafur@riverkeeper.org Daniel Riesel, Esq*. Richard L. Brodsky, Esq.*
Thomas F. Wood, Esq. 5 West Main St.
Ms. Jessica Steinberg, J.D. Elmsford, NY 10523 Sive, Paget & Riesel, P.C. E-mail: brodskr@assembly.state.ny.us 460 Park Avenue richardbrodsky@msn.com New York, NY 10022 E-mail: driesel@sprlaw.com Elise N. Zoli, Esq.*
jsteinberg@sprlaw.com Goodwin Procter, LLP Exchange Place Ms. Nancy Burton* 53 State Street 147 Cross Highway Boston, MA 02109 Redding Ridge, CT 06876 E-mail: ezoli@goodwinprocter.com E-mail: nancyburtonct@aol.com
/RA/
February 4, 2008 ___________________________
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 Office of Commission Appellate Richard F. Cole Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov E-mail: rfc1@nrc.gov Office of the Secretary Administrative Judge Attn: Rulemaking and Adjudications Staff Ann Marshall Young, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: hearingdocket@nrc.gov Washington, DC 20555-0001 E-mail: amy@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 Administrative Judge U.S. Nuclear Regulatory Commission Paul B. Abramson Washington, DC 20555-0001 Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Sheila Slocum Hollis*
U.S. Nuclear Regulatory Commission Duane Morris LLP Washington, DC 20555-0001 1667 K Street, NW, Suite 700 E-mail: pba@nrc.gov 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
/RA/
James E. Adler February 4, 2008 Counsel for NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Vermont Yankee 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.
Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: hearingdocket@nrc.gov Thomas S. Elleman Marcia Carpentier, Esq.
Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Mail Stop: T-3F23 5207 Creedmoor Road, #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: elleman@eos.ncsu.edu E-mail: mxc7@nrc.gov Jmr3@nrc.gov Office of Commission Appellate Adjudication Sarah Hofmann, Esq.*
Mail Stop: O-16C1 Director of Public Advocacy U.S. Nuclear Regulatory Commission Department of Public Service Washington, DC 20555-0001 112 State Street - Drawer 20 E-mail: OCAAmail@nrc.gov Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.gov
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
/RA/
February 4, 2008 Mary C. Baty Counsel for NRC Staff