ML080640468
| ML080640468 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/03/2008 |
| From: | Subin L, Sherwin Turk NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| Indian Point 2 & 3, RAS E11 | |
| Download: ML080640468 (7) | |
Text
March 3, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS ANSWER TO ENTERGYS MOTION TO STRIKE THE REPLY OF WESTCAN, ET AL.
TO THE RESPONSES FILED BY ENTERGY AND THE NRC STAFF INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff) hereby responds to the motion filed by Entergy Nuclear Operations, Inc.
(Entergy or Applicant") on February 22, 2008, to strike the "Reply of Petitioners Westchester Citizen's Awareness Network (WestCAN), [et al.] (WestCANs Reply) to Entergys and the NRC Staffs responses to WestCAN's "Petition to Intervene with Contentions and Request for Hearing" ("Petition to Intervene"), dated February 22, 2008. 1 For the reasons set forth below, the Staff supports Entergys motion and recommends that it be granted.
BACKGROUND On August 1, 2007, the NRC published in the Federal Register a notice of acceptance for docketing and opportunity for hearing of Entergys application, under 10 C.F.R. Part 54, to renew the Indian Point Nuclear Generating Units 2 and 3 operating licenses for an additional 1
Entergy Nuclear Operations, Inc. Motion to Strike WestCAN, et al. Reply to Entergy and the NRC Staff (Motion), dated February 22, 2008.
20 years. 2 Pursuant to several extensions of time, WestCAN timely filed its Petition to Intervene 3 on December 10, 2007. On January 22, 2008, Entergy and the NRC Staff filed their answers to WestCANs Petition. The Licensing Board then granted WestCANs unopposed motion for an extension of time to file its Reply, requiring that its reply be filed on or before February 15, 2008. 4 WestCAN failed to file its reply within the time set by the Licensing Board. Rather, it transmitted its unsigned Reply to the Staff -- without references and Exhibits attached - by E-mail, on Saturday, February 16, 2008, at 12:00 AM. Three days later, on Monday evening, February 18, 2008, DHL picked up WestCANs paper copy of its Reply for delivery, to which WestCAN had attached its references and exhibits. The Staff received WestCANs DHL delivery on Tuesday, February 19, with some (but not all) of WestCANs references and exhibits attached. 5 On February 22, 2008, Entergy filed the instant Motion, seeking to strike WestCANs Reply on the grounds that the Reply was untimely filed and improperly served (Motion at 1, 3-4, 11-12); various exhibits were incomplete, inconsistent and improperly labeled (id. at 1, 10-14);
the Reply fails to meet proper standards of decorum insofar as it makes baseless accusations against the Licensing Board, the Staff and the Applicant (id. at 1-2, 4-6, 14-15); the Reply improperly presents new arguments, references and exhibits that were not contained in WestCANs Petition; and presents new contentions without meeting the standards governing late-filed contentions, set forth in 10 C.F.R. §§ 2.309(c) and (f)(2) (Motion at 2, 6-9,15-18).
2 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing, 72 Fed. Reg. 42,134 (Aug. 1, 2007).
3 See Order (Granting an Extension of Time Within Which to File Requests for Hearing)
(Nov. 29, 2007), at 3.
4 Order (Granting an Extension of Time to File Reply) (Feb. I, 2008), at 2.
5 The Staff notes that in its Reply, WestCAN stated, inter alia, that the Petitioners have now "withdrawn" Contentions 35, 37, 39, 40 and 49. See WestCAN Reply at 102, 105-06, 119.
DISCUSSION The Staff has reviewed WestCANs Reply and the Applicants Motion. Like Entergy, the Staff did not receive timely service of WestCANs Reply or the exhibits and references attached to that document. The Staff concurs in Entergys view that WestCANs Reply was untimely served and fails to meet the Commissions requirements governing proper service of pleadings.
Further, based on its review of WestCANs Reply and the Applicants Motion, the Staff shares Entergys view that WestCANs Reply impermissibly seeks to introduce numerous new arguments and exhibits in support of its contentions, contrary to well-established requirements that replies may only address the arguments presented in the responses to a petition to intervene. See Entergy Motion at 6-9, and cases cited therein.
WestCANs untimely service of its Reply - after the Licensing Board had granted it an extension of time in which to file - and its improper filing of new arguments and exhibits, has diverted Staff resources which are otherwise needed to prepare for oral argument next week.
The Staff respectfully submits that WestCANs egregious disregard of established legal requirements governing the filing of replies, and its unjustifiable and untimely attempt to introduce new arguments and materials in support of its contentions, warrant that its Reply be stricken at this time. Accordingly, the Staff supports Entergys Motion, and recommends that WestCANs Reply be stricken in its entirety.
In the alternative, in the event that the Licensing Board determines that West CANs Reply was timely and properly served and filed, the Staff respectfully submits that the Licensing Board should nonetheless strike the exhibits and references attached to WestCANs Reply; and it should strike the new arguments presented in its Reply, as set forth in Entergys Motion.
CONCLUSION For the foregoing reasons, the NRC Staff respectfully submits that WestCANs Reply was improperly and untimely served, and that it improperly attempts to introduce numerous new arguments and materials in support of its contentions. Entergys motion to strike WestCANs Reply should therefore be granted.
Respectfully submitted,
/RA/
Sherwin E. Turk Lloyd B. Subin Counsel for NRC Staff Dated at Rockville, MD this 3rd day of March 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 NRC STAFFS ANSWER TO ENTERGYS MOTION TO STRIKE THE REPLY OF WESTCAN, ET AL. TO THE RESPONSES FILED BY ENTERGY AND THE NRC STAFF, dated March 3, 2008, have been served upon the following through deposit in the NRCs internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, as indicated by double asterisk, with copies by electronic mail this 3rd day of March, 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
Marcia Carpentier John LeKay**
Law Clerk FUSE USA Atomic Safety and Licensing Board 351 Dyckman Street Mail Stop: T-3 E2B Peekskill, NY 10566 U.S. Nuclear Regulatory Commission E-mail: fuse_usa@yahoo.com Washington, DC 20555-0001 (E-mail: Marcia.Carpentier@nrc.gov) Manna Jo Greene**
Hudson River Sloop Clearwater, Inc.
William C. Dennis, Esq.** 112 Little Market Street Assistant General Counsel Poughkeepsie, NY 12601 Entergy Nuclear Operations, Inc. E-mail: Mannajo@clearwater.org 440 Hamilton Avenue White Plains, NY 10601 Justin D. Pruyne, Esq.**
E-mail: wdennis@entergy.com Assistant County Attorney Office of the Westchester County Attorney Kathryn M. Sutton, Esq.** 148 Martine Avenue, 6th Floor Paul M. Bessette, Esq. White Plains, NY 10601 Martin J. ONeill, Esq. E-mail: jdp3@westchestergov.com Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Daniel E. ONeill, Mayor**
Washington, D.C. 20004 James Seirmarco, M.S.
E-mail: ksutton@morganlewis.com Village of Buchanan E-mail: pbessette@morganlewis.com Municipal Building E-mail: martin.o'neill@morganlewis.com Buchanan, NY 10511-1298 E-mail: vob@bestweb.net Michael J. Delaney, Esq.**
Vice President - Energy Department John J. Sipos, Esq.**
New York City Economic Development Charlie Donaldson, Esq.
Corporation (NYCDEC) Assistants Attorney General 110 William Street New York State Department of Law New York, NY 10038 Environmental Protection Bureau E-mail: mdelaney@nycedc.com The Capitol Albany, NY 12224 Susan H. Shapiro, Esq.** E-mail: john.sipos@oag.state.ny.us 21 Perlman Drive Spring Valley, NY 10977 Joan Leary Matthews, Esq.**
E-mail: mbs@ourrocklandoffice.com Senior Attorney for Special Projects New York State Department of Arthur J. Kremer, Chairman** Environmental Conservation New York Affordable Reliable Electricity Office of the General Counsel Alliance (AREA) 625 Broadway, 14th Floor 347 Fifth Avenue, Suite 508 Albany, NY 12233-1500 New York, NY 10016 E-mail: jlmatthe@gw.dec.state.ny.us E-mail: ajkremer@rmfpc.com kremer@area-alliance.org
Diane Curran, Esq.** Victor Tafur, Esq.**
Harmon, Curran, Spielberg & Eisenberg, Phillip Musegaas, Esq.
LLP Riverkeeper, Inc.
1726 M Street, NW, Suite 600 828 South Broadway Washington, D.C. 20036 Tarrytown, NY 10591 E-mail: dcurran@harmoncurran.com E-mail: phillip@riverkeeper.org vtafur@riverkeeper.org Robert Snook, Esq.**
Office of the Attorney General Richard L. Brodsky, Esq.**
State of Connecticut 5 West Main St.
55 Elm Street Elmsford, NY 10523 P.O. Box 120 E-mail: brodskr@assembly.state.ny.us Hartford, CN 06141-0120 richardbrodsky@msn.com E-mail: robert.snook@po.state.ct.us Elise N. Zoli, Esq.
Daniel Riesel, Esq**. Goodwin Procter, LLP Thomas F. Wood, Esq. Exchange Place Ms. Jessica Steinberg, J.D. 53 State Street Sive, Paget & Riesel, P.C. Boston, MA 02109 460 Park Avenue E-mail: ezoli@goodwinprocter.com 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
/RA/
Sherwin E. Turk Counsel for NRC Staff