ML080730437

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Entergy Nuclear Operations, Inc. Motion to Strike Westcan, Et Al. Reply to Entergy and the NRC Staff
ML080730437
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 02/22/2008
From: Bessette P
Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To: Lathrop K, Lawrence Mcdade, Richard Wardwell
Atomic Safety and Licensing Board Panel
SECYRAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 15119
Download: ML080730437 (22)
v • d • e


Text

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DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION February 22, 2008 (4:30pm)

ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND Before Administrative Judges: ADJUDICATIONS STAFF Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop

) Docket Nos. 50r247-LR and 50-In the Matter of ) 286-LR ENTERGY NUCLEAR OPERATIONS, .INC. )

) ASLBP No. 07-858-03-LR-S) -,BDOI (Indian Point Nuclear Generating Units 2 and 3))

_ _ _ _ -_ _ ) February 22, 2008 ENTERGY NUCLEAR OPERATIONS, INC. MOTION TO STRIKE WESTCAN, ET AL. REPLY TO ENTERGY AND THE NRC STAFF I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), Entergy Nuclear Operations, Inc.

("Entergy" or "Applicant"), hereby files this Motion to Strike the "Reply of Petitioners Westchester Citizen's Awareness Network (WestCAN), Rockland County Conservation Association, Inc. (RCCA), Public Health and Sustainable Energy (PHASE), Sierra Club -

Atlantic Chapter (Sierra'Club), and Richard L. Brodsky" (collectively "WestCAN") to Entergy and the NRC Staff's Answers to WestCAN's "Petition to Intervene with Contentions and, [sic] Request for Hearing" ("Original Petition"), dated February 15, 2008 ("Reply").'

As discussed more fully below, WestCAN's Reply was untimely, WestCAN did not properly serve its Reply on-Entergy, and numerous exhibits associated with the Reply are incomplete, inconsistent, and improperly labeled. Further, the Reply fails to meet basic standards of As required by 10 C.F.R. § 2.323(b), counsel for Entergy contacted WestCAN's counsel, inan attempt to resolve the issues in this Motion. Counsel for WestCAN did not agree to the relief requested in this Motion. Counsel for the Staff does not oppose this Motion.

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decorum by making baseless accusations against the Atomic Safety and Licensing Board

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("Board"), the NRC Staff and the Applicant. Finally, the Reply contains numerous impermissible new arguments, references and exhibits not previously raised in WestCAN's Original Petition, contrary to 10 C.F.R. Part 2 and established Commission precedent, and also fails to comply with the standards governing late-filed contentions in 10 C.F.R. 2

§§ 2.309(c) and (f)(2). Accordingly, WestCAN's Reply should be stricken in its entirety.

II. BACKGROUND On April 23, 2007, as supjlemented by letters dated May 3, 2007, and June 21, 2007, Entergy submitted an application to the NRC to renew the Indian Point Nuclear Generating Units 2 and 3 ("IPEC") operating licenses (License Nos. DPR-26 and DPR-64) for an additional 20 years ("Application"). 3 The Commission Hearing Notice stated that any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a petition for leave to intervene within 60 days of the Notice (i.e.,

October 1, 2007), in accordance with the provisions of 10 C.F.R. § 2.309. Under the deadline, as /extended by the Board, 5 WestCAN filed its "Petition to Intervene with Contentions and, [sic] Request for Hearing" ("Original Petition") on December 10, 2007. On January 22, 2008, Entergy and the NRC Staff filed timely, separate Answers to the Original 2 WestCAN's Reply also contains statements that it has "withdrawn" Contentions 35, 37, 39, 40 and 49..

Reply at 102, 105-06, 119. There is no deadline associated with such an action by WestCAN, and this action requires no supporting documentation. Thus, Entergy respectfully requests that the Board accept WestCAN's withdrawal of these five contentions, while striking the remainder of the Reply.

Entergy subsequently submitted two amendments to the Application. See Letter from Fred Dacirno, Entergy Vice President, License Renewal, to NRC Document Control Desk (Dec: 18, 2007), available at ADAMS Accession No. ML073650195; Letter from Fred Dacimo, Entergy Vice President, License Renewal, to NRC Document Control Desk (Jan. 22, 2008), available at ADAMS Accession No. ML080290659.

4 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing, 72 Fed.

Reg. 42,134 (Aug.. 1, 2007).

5 Licensing Board Order (Granting an Extension of Time to Within Which to File Requests for Hearing) at 3 (Nov. 29, 2007) (unpublished) ("Nov.. 29 Order").

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Petition. WestCAN requested, and the Board granted, an extension for the due date for WestCAN's reply until "on or before February 15, 2008.. ,6 WestCAN filed its Reply without the approximately 37 associated references and exhibits, electronically (via e-mail) at 12:53 a.m. on Saturday, February 16. A paper copy of the Reply, presumably with associated references and exhibits, appears to have been shipped by WestCAN to Entergy's counsel via DHL at 6:53 p.m. on Monday, February 18, 2008.7 Entergy received a paper copy of the Reply, and some, but not all of the associated references and exhibits, on Tuesday, February 19.

III. LEGAL STANDARDS A. Proper Service of Documents The general requirements for service are set forth in 10 C.F.R. §§ 2.302 and 2.305.

These requirements include: .(1) "accurate'and complete" certificates of service, so that the Board and the parties are not "left uncertain as to whom, and when, pleadings have been provided"; 8 (2) service of paper copies on all parties, "unless granted a dispensation from that requirement by the Presiding Officer or the Commission"; 9 and (3) the provision that service via mail is complete upon deposit in the mail, properly stamped and addressed, while e-mail 6 Licensing Board Order (Granting an Extension of Time to File Reply) at 2 (Feb. 1, 2008) (unpublished)

("Feb. 1 Extension Order").

7 See DHL Tracking Results Detail for 53769121442, available at http://www.dhl-usa.com/home/home.asp.

8 Licensing BoardMemorandum and Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) at 2 (Oct. 29, 2007) (unpublished) ("Oct. 29 Order"); see also Licensing Board Order (Granting NRC Staff s Motion to strike FUSE's Superceding Request for Hearing) at 4 (Feb.

1, 2008) (unpublished) ("Feb. 1 FUSE Order"); 10 C.F.R. § 2.302(b).

9 Feb. I FUSE Order at3 (citing 10 C.F.R. § 2.305(c)). In this proceeding, the Board has authorized service by CD-ROM, "[i]f files are too large for e-mail or paper service on all parties." Licensing Board Order (Concerning Certain Exhibits Submitted by WestCAN and Associated Petitioners) (Feb. 1 2008) at 4 (unpublished) ("Feb. 1 WestCAN Exhibits Order").

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service is complete upon e-mail transmission, "and service of a copy by another method of service ... ",0 In this proceeding, the Board clearly and specifically directed. all of the parties' attention to these requirements over three months ago, in its October.29, 2007 Order, and again in its November 29 Order. The Board's February 1 Order regarding WestCAN's Original Petition exhibits reminded WestCAN of these requirements yet again, and provided clear guidance on the filing of exhibits. Specifically, "[e]xhibits must be accompanied by a table of contents that describes all of the documents adequately, and identifies them unambiguously"' and "[b]oth electronic and paper copies of exhibits must be clearly marked 2

with the exhibit identification (number or letter) on the first page of the document itself.1 Further, "[i]f multiple methods are used to file a document . .. all filings must be identical in every respect."'13 B. Control of and Decorum in Adjudicatory Proceedings The Commission has delegated to licensing boards all powers necessary to fulfill their duties to conduct fair and impartial hearings, to control the prehearing and hearing process, to avoid delay, and to maintain order.' 4 Those powers include the power to strike pleadings or issue other orders, as necessary, to carry out the Board's duties and. responsibilities., 5 In exercising its control over an orderly hearing, the Board is aided by the long-standing, 0 10 .C.F.R. § 2.305(e)(3) (emphasis added).

'l Feb. I WestCAN Exhibits Order at 3 (emphasis added).

12 Id. at 4.

13 Id. at 3.

14 10 C.F.R. §§.2.321(c), 2.319.

15 10 C.F.R. § 2.319(d), (q); see alsoDominionNuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 643-44 (2004) (noting the propriety of a Board imposing sanctions under 2.319(g) for repeated refusal to comply with the Board's direction).

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generally-applicable Rules of Practice at 10 CFR 2, Subpart C. Those rules include a requirement for appropriate decorum by all participants in NRC adjudicatory hearings. 16 The Board's power to enforce these standards include "reprimand, censure or suspension from the 7

proceeding" of either a party or its representative.'

Ad hominem attacks on the licensee's character have no place in pleadings before the Board. "[F]or management character to be an appropriate issue for adjudication in a licensing proceeding there must be some direct and obvious relationship between the character issues and the licensing action in dispute."' 8 When such issues are raised, they must be directly germane to the challenged licensing action.!9 Even then, character allegations are subject to strict limits and must be of more than historical significance. When making allegations regarding integrity and character, the petitioner must have some basis for.

those charges and exercise care in asserting them. 20 "[L]ack of resources is no excuse. If charges of this type cannot be accurately documented, they should not be made."21 Pleadings containing baseless allegations or which otherwise do not live up to the high standards of NRC practice may be stricken. 22 This Board has already taken action ,to correct similar statements by another intervenor, by first censuring, and later barring an individual from 16 10 C.F.R. § 2.314(a) ("parties and their representatives in proceedings subject to this subpart are expected to conduct themselves with honor, dignity,and decorum as they should before a court of law").

10 10C.F.R. § 2.314(c).

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-O1-24, 54 NRC 349, 365-367 (2001) (affirming rejection of contentions based on past criminal conduct) (citing Commonwealth Edison Co., (Zion Nuclear Power Station, Units I and 2), CLI-99-4, 49 NRC 185, 189 (1999)) (internal quotations omitted).

'9 Millstone, CLI-01-24, 54 NRC at 366-67.

20 Houston Lighting & Power Co. (South Texas Project Units I and 2), LBP-85-45, 22 NRC 819, 828 (1985)

(criticizing intervenor's baseless allegationsof withholding documents).

21 Id.

22 Id.

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i' 23 further participation in this proceeding.

The Commission has also held that derogatory descriptions of the NRC Staff in pleadings before the agency violate the decorum standard and are inappropriate in such pleadings. 24 In Curators,the petitioner characterized the NRC Staff as being "incapable of making [a] determination in a sensible fashion." 25 The Commission characterized this remark as "another example of the intemperate, even disrespectful, rhetoric that has characterized their pleadings' throughout this proceeding" and found it contrary to the requirements of 10 C.F.R. § 2.314(a). 26 C. New Arguments and Supporting Information are Prohibited in Reply Briefing WestCAN cannot introduce additional information or make new arguments in its reply brief. "It is well-established in NRC proceedings that a reply cannot expand the scope of the arguments set forth in the original hearing request.'27 Because a reply is intended solely to give a party an opportunity to address arguments raised in answers, it may not use its reply as a vehicle to introduce new arguments or support, may not expand the scope of arguments set forth in its original petition, and may not attempt to cure an otherwise deficient 28 contention. Rather, ."[r]eplies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it."29 23 Licensing Board Order (Censure of Sherwood Martinelli) (Dec. 3, 2007) (unpublished); Licensing Board Order (Barring Sherwood Martinelli From Further Participation. In This Proceeding) (Dec. 13, 2007)

(unpublished); see also Feb. I FUSE Order at 6 n. 19 (noting "with disniay" FUSE's failure to delete language that did not meet common standards or decorum or that made false, unsupported accusations against the Board, while striking FUSE's Petition to Intervene on other grounds).

24 Curators of the University of Missouri, CLI-95-17, 42 NRC 229, 232 n.il (1995).

25 Id 26 Id. (citing previous section number as 10 C.F.R. § 2.713) (quotations and citation omitted).

27 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

28 See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 198 (2006) (finding that petitioners impermissibly "expand[ed] their arguments" by filing a I-WA/2929572 6

The Commission's prohibition on new arguments in reply briefing, found in 10 C.F.R. Part 2 and in Commission precedent, is rooted in the Commission's interest in conducting adjudicatory hearings efficiently and on basic principles of fairness. The Commission has recognized that "[a]s we face an increasing adjudicatory docket, the need for parties. to adhere to our pleading standards and for the Board to enforce those standards are paramount."3 ° It has further stated that NRC contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners. But there would be no end to NRC licensing proceedings if petitioners could 'disregard our timeliness requirements every time they realize[d] ... that maybe there was something after all to a challenge it either originally opted not to make or which simply did not occur to it at the outset.31 Accordingly, a party must include all of its arguments'and claims in its initial filing.

Allowing a party to amend or supplement its pleadings in reply to the applicant's answers would run afoul of the Commission's clear directives:

Allowing contentions to be added, amended, or supplemented at any time would defeat the purpose of the specific contention requirements ... by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them later. The Commission has made numerous efforts over the years to avoid unnecessary second declaration from their expert in a reply brief that provided additional detail regarding the proposed contention). The Board in the same proceeding struck all portions of the petitioners' expert's second declaration relating to a steam dryer aging management contention, as Well as the entire testimony of a state engineer before the state public service department, finding that these portions of the reply and its supporting documents "include[d] new arguments and factual information that were not included in the initial petition and do not directly address challenges in the answers, and that therefore exceed the permissible scope of a reply." Id. at 191; see also Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant),

LBP-06-10, 63 NRC 314, 334-51 (2006) (striking references to various letters, NRC Staff Presentations, and briefings from public meetings not included in the original petition as of the sort that might have been included in the original bases for the contention).

29 Palisades,CLI-06-17, 63 NRC at 732.

30 La. Energy Servs., L.P. (National Enrichment Facility), CLJ-04-25, 60 NRC 223, 225 (2004) ("LES").

31 Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I and 2),

CLI-03-07, 58 NRC 419, 428-49 (2003) (internal quotati.ons omitted).

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delays and increase the efficiency of NRC 32 adjudication and our contention standards are a cornerstone of that effort.

Moreover, because NRC regulations do not allow the applicant to respond to a Petitioner's reply, principles of fairness mandate that the Petitioner restrict its reply brief to addressing issues raised in the applicant's answer: "[a]llowing new claims in a reply not only would defeat the contention-filing deadline, but would unfairly deprive other participants an opportunity to rebut the new claims." 34 Thus, "[i]n Commission practice, and 'in litigation practice generally, new arguments may not be raised for the first, time in a reply brief.",35 Accordingly, "[amny reply should be narrowly focused on the legal or logical. arguments presented in the applicant/licensee or NRC staff answer." 36 Any arguments that improperly expand upon that must be stricken.37 D. A Petitioner Attempting to Introduce New Information Must Satisfy thi Commission's Late-Filed Contention Criteria New arguments or support for a contention "cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the 32 La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622-23 (2004) ("LES").

33 Under-10 C.F.R. § 2.309(h)(3), an applicant/licensee is precluded from filing an answer to a petitioner's reply.

3 Palisades,CLI-06-17, 63 NRC at 732.

3 LES, CLI-04-25, 60 NRC at 225.

36 'Changes .to Adjudicatory Process;'Final Rule, 69 Fed. Reg. 2181, 2203 (Jan. 14, 2004). See also Entergy Nuclear GenerationCo., Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 359 (2006)

(stating that a petitioner may "respond to and focus on any legal, logical, or factual arguments presented in the answer, and [that] the 'amplification' of statements provided in an initial petition is legitimate and permissible.")

37 A Licensing Board has the authority to strike individual arguments and exhibits. See generally 10 C.F.R. § 2.319 (The presiding officer has all the powers necessary "to take appropriate action to control the prehearing... process"). See also 10 C.F.R. § 2.304(c) ("If a document is not signed ...it may be struck"); 10 C.F.R. § 2.319(d) (authorizing the presiding officer to "strike any portion of a written presentation"); 10 C.F.R. § 2.333(b) (authorizing the presiding officer to "strike argumentative, repetitious, cumulative, unreliable, immaterial, or irrelevant evidence"); 10 C.F.R. § 2.705(g)(3) (authorizing a presiding officer to strike an unsigned discovery-related request, response, or objection); .10 C.F.R.

§ 2.1320(a)(9) (authorizing the presiding officer to "strike or reject duplicative, unreliable, immaterial, or irrelevant presentations").

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late-filing criteria set forth in 10 C.F.R. § 2.309 (c), (f(2)."3 8 A Petitioner seeking to submit late-filed contentions is under an affirmative burden to demonstrate that it satisfies the criteria of § 2.309(f)(2):

(1) The' information upon which the amended or new contention is based was not previously available; (2) The information upon which the amended or new contention is based is materially different than information previously available; (3) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information. ..

If a Petitioner cannot satisfy the requirements of § 2.309(f)(2), any contention it is seeking to have admitted is considered "non-timely;" petitioner must then demonstrate that admission of a non-timely contention is warranted by satisfying the eight-factor balancing test in, 10 C.F.R. § 2.309(c).

Allowing a Petitioner to raise new issues and arguments in a reply brief without addressing and satisfying the above criteria "would effectively bypass and eviscerate [NRC]

rules governing timely filing, contention amendment, and submission of late-filed 40 contentions."

IV. DISCUSSION Throughout this proceeding, the Applicant and the Board have patiently taken every possible step to work with WestCAN's various counsel to resolve WestCAN's numerous and repeated inconsistent, incomplete, and deficient filings. Briefly, after the Board's October 38 Palisades,CLI-06-17, 63 NRC at 732.

39 10 C.F.R. § 2.309(f)(2).

40 LES, CLI-04-35, 60 NRC at 623; see also La. Energy Servs., L.P. (National Enrichment Facility), LBP 14, 60 NRC 40, 58 (2004) (reply filings containing new arguments "essentially constituted untimely attempts to .- . address the late-filing factors in [10 C.F.R.] section 2.309(c), (f)(2) [and]ýcannot be considered in. determining the admissibility of their contentions.").

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29, 2007 Order notifying all of the' parties and intervenors in this proceeding of the 41 requirements for proper service of documents under the Commission's Rules of Practice, and after the Board (in part in response to WestCAN's actions) expressed its "amazement that attorneys can not, or will not, follow even the simplestof directions," 42 WestCAN filed its Original Petition with numerous omissions and inconsistencies in the identification and service of exhibits. The Board and the parties ultimately could not fully reconcile WestCAN's exhibits, prompting the Board to index WestCAN's exhibits itself, and issue an Order notifying WestCAN of its intent to strike numerous WestCAN's exhibits unless WestCAN explained to the Board, no later than February 10, 2008, how and when those exhibits had been served. 43 WestCAN's own Answer to that Order includes exhibits that contain e-mails documenting in detail the NRC Staffs and Applicant's extensive, but ultimately futile, efforts to decipher 'WestCAN's Original Petition and its associated 44 exhibits.

At this late, date in this stage of the proceeding, only a few weeks before the anticipated prehearing conference, WestCAN has now repeated its previous mistakes by improperly serving on Entergy and presumably the Board and other parties to the proceeding a late, incomplete pleading with another incomprehensible set of exhibits. Faced with a repetition of previous efforts, yet again requiring significant time and effort on the part of all 41 Oct. 29 Order.

42 Nov. 29 Order at 4. In this Order, the Board also stated its intent to strike duplicative pleadings sua sponte, and "again urge[d] all counsel to read the 10 C.F.R.. Part 2 Rules of Practice and Orders of this Board, and then prepare, file, and serve further pleadings in this proceeding accordingly." Id. at 5-6.

43 Feb. 1 WestCAN Exhibits Order at 2-3.

44 Answer to Order (Concerning Certain Exhibits Submitted by Petitioners WestCAN et. [sic] al.) (Feb. 11, 2008), Exh. C, D, and E.

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parties to piece together WestCAN's new pleading, Entergy now seeks to strike WestCAN's Reply in its entirety.45 A. The Board Should Strike WestCAN's Reply in its Entirety As an Untimely Reply, for Inadequate Service, for Failure to Comply with Explicit Board Guidance Governing Filing of Exhibits, and for Lack of Decorum WestCAN's service of its Reply was late, was accompanied by an inadequate and inaccurate certificate of service, and the associated exhibits contain numerous omissions and discrepancies. Each of these reasons alone is sufficientgrounds for the Board to strike the Reply. Together, they paint a picture of a petitioner apparently incapable of meeting even the simplest and basic pleading requirements, despite repeated and explicit direction and warnings from the Board. As with its previous filing, WestCAN has filed an "[i]nconsistent, incomplete, and confusing filing[]," and in doing so has placed "an enormous burden on the Board, other litigants, and even on members of the Petitioners' organizations" to simply identify, obtain, and organize all of the documents WestCAN purportedly relies upon.46 First, WestCAN's Reply was filed late. In accordance with the Board's February 1, 2008 Order, WestCAN's Reply was due "on or before February 15, 2008.,47 WestCAN served its Reply and cover letter via electronic mail at 12:53 a.m. on Saturday, February 16, nearly one hour late. The electronic transmittal did not include the associated exhibits and

4. Counsel for Entergy contacted WesiCAN's counsel in an attempt to resolve the discrepancies in WestCAN's Reply exhibits. WestCAN's attempt to cure has only added to the confusion. On February 21, counsel for Entergy received a new cover letter, Table of Contents, and'CD. According to the cover letter, the documents on the CD "are electronic versions of the hardcopy documents sent February 15, 2008 by courier." The Table of Contents, however, does not match the Table of Contents provided with the original Reply, and the documents on the CD do not match the documents sent on February 18 (not February 15 as stated). Counsel for WestCAN later provided additional information in an e-mail to counsel for Entergy on February 22. None of these additional clarifications have been served on the Board or other parties. While we appreciate WestCAN's ongoing efforts to try to reconcile these many discrepancies in its Reply, it is simply too late.

Considering the continued discrepancies in WestCAN's Reply, this Motion addresses only WestCAN's original Reply.

46 Feb. 1 WestCAN Exhibits Order at 2.

47 Feb. 1 Extension Order at:2.

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references, which were only sent in hard copy. The hard copy transmittal of the Reply and its references and exhibits, however, were apparently delivered by WestCAN to DHL on February 18, 2008, three days after the deadline. Thus, the Board should strike WestCAN's Reply because it is inexcusably late.

Second, the Board should strike WestCAN's Reply because it has not accurately certified proper service on all parties, and because service has not "been made exactly as specified in the Certificate of Service."48 . WestCAN certified that its Reply was filed by electronic mail on February 15, 2008, and that "a courtesy paper copy has been sent to the Staff.". In fact, as described above, the Reply was filed electronically on February 16, and the hard copy version of the Reply and supporting exhibits were apparently served on February 18. Thus, WestCAN served its complete Reply three days after the date that service was certified. Further, contrary to the requirements of 10 C.F.R. § 2.305(c) and (e),

WestCAN did not certify that it sent a copy of its complete Reply, with exhibits, to Entergy, in addition to its e-mail transmission.

Third, the paper copy of the Reply that WestCAN sent to Entergy contains numerous omissions and discrepancies and fails to comply, with the Board's previous directives regarding the filing of documents. These discrepancies include: (i) certain exhibits identified in the Table of Contents that are .entirely missing with no explanation, (2) appended documents that do not appear in the Table of Contents; (3) Table of Contents entries that reference unspecified exhibits that were apparently appended to WestCAN's Original Petition, or that reference Original Petition exhibits that the Board has identified as not properly served; and (4) conflicting entries and incorrect labeling of exhibits in. the Table 48 Oct. 29 Order at 2.

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of Contents-all contrary to the Board's February 1 WestCAN Exhibits Order, ¶¶ 2 and 7.

The table below describes the specific discrepancies in exhibit labeling and accounting in WestCAN's Reply.

Exhibit G Listed in two separate entries in Reply Table of Contents as "Updated Final Safety Analysis Report (Reference 3. p. 10)" - "Provided in Petition Filed Dec.

10 and as clarified" and as "omitted." Only a cover sheet labeled "Exhibit G" was provided in the package of documents received by counsel for Entergy on February 19. No document meeting this description appears in the Board's lists of WestCAN exhibits in the appendices to the Feb. 1 WestCAN Exhibits Order.

Exhibit I Appears to be the same document as Exhibit I to the Original Petition, but it is ambiguously identified in the Table of Contents as "Provided with petition and as clarified." This exhibit is missing from the package of documents received by counsel for Entergy on February 19.

Exhibits N, Appear in the Table of Contents, but are missing from the package of S and T documents received by counsel for Entergy on February 19.

Exhibits U, Ambiguously identified in the Table of Contents as "See petition filed V and W December 10 and clarified." These exhibits are missing from the package of documents received by counsel for Entergy on February 19.

Exhibit X Missing from the Table of Contents and from the package of documents received by counsel for Entergy on February 19.

Exhibits Z, Ambiguously identified in-the Table of Contents as associated with the Original AA, BB, Petition. These exhibits appear to match, the exhibits with the same designations and CC in that Petition. The Board's Feb. 1 WestCAN Exhibits Order indicates that the Board intends to strike these specific exhibits because they were not properly served.

Exhibit DD Table of Contents states that this exhibit is "contained in Exhibit Q"; Exhibit Q does not include any document labeled as Exhibit DD.

Exhibit EE Table of Contents states that this exhibit is "Provided under Exhibit N." As noted above, Exhibit N is missing. Counsel for Entergydid receive a document labeled Exhibit EE, but that document matches the description in the Table of Contents for Exhibit FF. Exhibit E also appears to have the same title as Exhibits N and EE.

As described above, the Board has already admonished WestCAN for similar problems in this proceeding on. multiple occasions, so ,WestCAN should be well aware of the I-WA/2929572 13

requirements for service of documents in the Commission's Rules of Practice, and the Board's standards for this proceeding. In light of WestCAN's repeated failures, its Reply should be stricken for failure to comply with the applicable requirements.

As an alternate independent basis, the Board should strike WestCAN's Reply in its entirety for breaching basic standards of decorum that are required of all participants in NRC adjudicatory hearings. 49 Taking a page from the FUSE Petition, WestCAN's Reply includes baseless attacks upon the character of the Applicant, the NRC Staff, and the Board, including:

0 "The Applicant, as well as the federal agency [the NRC], willfully and knowingly violated the Administrative Procedures Act, and as a result, now has prostitutedthe license renewal application for Indian Point 2.2"50

  • "The breadth and depth of these contentions are extreme. Even if each issue is classified in the narrow confines of the scope of the Rule ... this egregious conduct by the applicant and the regulatory failure raises questions about any statement made in the LRA .. .,l 0 "For those issues raised here, no distinct and independent forum is available to adjudicate the magnitude of the misrepresentationand unlawful acts. The Petitioners question how a Board selected by the Commission can be allowed to judge the acts by the very Commission that selected it .... "52 0 "Entergy and the nuclear industry are spending billions of dollars, including millions of taxpayer dollars,53 to promote false propagandaabout how inexpensive, renewable, and clean. [sic]

As this Board noted regarding similar statements by another party to this proceeding,

"[s]uch language and unsupported allegations have no legitimate role in a serious 49 See South Texas Project, LBP-85-45, 22 NRC at 828 (noting that the Board has "authority ... to strike pleadings which do not live up to the high standards of practice expected before the Commission").

50 Reply at 70 (emphasis added).

I' at 88 (emphasis added).

Id.

52 Id. (emphasis added). Similar, but not identical language appears in WestCAN's Original Petition, at 186.

5' Reply at 118.

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adjudicative proceeding." 54 Thus, the Board should also strike WestCAN's Reply in its entirety for lack of decorum.

B. The Board Should Strike WestCAN's New Arguments, References and Exhibits In the alternative, should the Board decide that WestCAN's Reply should not be stricken in its entirety for above-described deficiencies, the Board should strike the numerous new arguments, references and exhibits that WestCAN impermissibly raises for the first time in its Reply. None of this new material responds directly to arguments raised in Entergy's or the NRC Staff's Answers. Nearly all of this new material was available, or is based on information that was available, at the time WestCAN submitted its Original Petition. Thus, WestCAN's Reply fails to "focus narrowly on the legal or factual arguments first presented in the original petition or raised in answers to it. 55 Instead, WestCAN's Reply-impermissibly attempts to broadly expand the scope of its Original Petition, without addressing the criteria for late-filed contentions and amended contentions in 10 C.F.R.

§ 2.309(f)(2) and (c). Accordingly, the new arguments, exhibits, and references should be stricken. The following table identifies the principal new arguments, exhibits and references that should be stricken.

Reply Reference New Arguments, References, and Exhibits Background New argument regarding fire-protection citing Reference 5, a Pages 5-8, 14 January 200 8 "Inspector General Report." This argument purportedly shows "significant safety issues presently unresolved." Although based in part on an apparently new document, the late-filed contention requirements of] 0 C.F.R.

§ 2.309(f)(2) and(c) are not discussed, nor is this argument clearly identified as a contention.

54 Feb. 1 FUSE Order at 6n.19.

55 Palisades,CLI-06-17; 63 NRC at 732.

I -WA/2929572 15

Contention 2 New argument related to "significant technical errors in the Pages 27-28 TLAA" in the Vermont Yankee license renewal proceeding.

This argument is unrelated to the Applicant's or NRC Staff's Answers, and attempts to introduce an entirely new topic unrelated to the original bases for Contention 2 ("The NRC routinely violates § 51. 101 (b) in allowing changes to the operating license be done concurrently with the renewed proceedings").

Contention 7 New argument related to core damage frequency analysis, Page 42 purportedly supporting contention related to "fire initiated by a light airplane strike." The new argument cites a new Exhibit D (two documents: Power Authority of the State of New York and Consolidated Edison Company, "Indian Point Probabilistic Safety Study," dated Spring 1982, and NUREG/CR-2859,.,

"Evaluation of Aircraft Crash Hazards Analyses for Nuclear Power Plants," dated June 1982). The new argument also includes a reference to a "Monte Carlo" method, purportedly summarized in "Attachment 1," which was not provided in WestCAN's Reply.

Contention 8 New argument purportedly supporting fire protection Page 44 exemption contention that "480 volt EDG output is unique requires [sic] different cable sizing, different heat dissipation, and additional analysis to show circuit integrity' through the event."

Contention 13 New argument purportedly providing examples of "the Pages 53-54 Applicant's failure of full disclosure," unrelated to the Applicant's or NRC Staff's Answers. The argument cites two new exhibits: E, an NRC Office of Inspector General Audit Report, OIG-07-A- 15, dated September 6, 2007, and F, a new declaration from Mr.-Ulrich Witte, dated February 15, 2008.

(Exhibit E appears to be the same document as Exhibits N and EE.) The original contention alleged that the LRA was incomplete because commitments were unenforceable.

Contention 14 New discussion of alleged "inadequacies, as compared to Page 56 several EIS scoping documents" apparently in other license renewalproceedings, supported-by new Exhibit H (ISG-2006-02, dated 2006). This discussion is unrelated to the Applicant's or NRC Staff's Answers. The original contention alleged that the LRA failed to "include Final License Renewal Interim Staff Guidance" but did not mention ISG-2006-02.

.I-WA/2929572 16

Contention 15 New argument that "A contention about a matter not covered Page 57 by a specific rule need only allege that the matter poses a significant safety problem." The original contention alleged that "all criteria for a new license must be fully considered" at the license renewal stage.

Contention 16 New argument that "Once Petitioner is admitted as a party, Page 62 Petition [sic] will seek a waiver to compel reanalysis of Class I piping, and Class 2 piping." The original contention demanded an "Updated Seismic Analysis."

Contention 18 New argument, allegedly supporting an emergency planning Page 66 contention, that "Entergy's non-working sirens is [sic] an aging management issue."

Contention 19 New statement of adoption of other (unspecified) parties' Page 67 contentions. The original contention alleged that the LRA did not adequately address security against sabotage and terrorism.

Contention 20 New argument that "once Petitioners are parties, we will seek Page 69 a waiver of the issues that should be considered as category 2 environmental issues."

Contentions 22-25 New Exhibit Q purportedly supporting general design criteria Page 69 contention: "Supplemental Declaration of Ulrich Witte regarding misrepresentation of design, construction and operation of Unit 2 and Unit 3 to draft GDCs." WestCAN does not attempt to explain how this document responds to the Applicant's or NRC Staff's Answers.

Contention 36 New Exhibit M purportedly supporting flow-accelerated Page 103-04 corrosion contention: "Supplemental Declaration of Ulrich Witte regarding Flow-accelerated Corrosion." WestCAN appears to cite, but does not explain this document in the Reply Brief.

Contention 41 New discussion of [unspecified] Diablo Canyon "ASLB" Page 106 decision. This discussion appears to attempt to introduce NEPA-terrorism related allegations into Contention 41 (storage of high-level waste) for the first time.

Contention 41 New citation to "the expert testimony of Gordon Thompson" Page 107, related to "Robust Spent Fuel Storage" originally submitted in support of Contention 16.

Contention 42 New statement that "Once Petitioner is accepted as a party, we Page 109 [sic] will apply for a waiver to consider this issue [unspecified, but apparently related to dry cask storage-the. topic of the original contention] as a Category 2, site specific issue."

I-WA/2929572 17

Contention 42 New, vague discussion of the Diablo Canyon "spent fuel Page 109 storage facility." This discussion appears to attempt to introduce NEPA-terrorism related allegations into Contention 42 (dry cask storage) for the first time.

Contention 47 New statement that "Once Petitioner is accepted as a party, we Page 118 [sic] will apply for a waiver to consider this issue [unspecified, but apparently related to alleged elevated cancer rates near IPEC-the topic of the original contention] as a Category 2, site specific issue."-

Contention 48 New statement of adoption of an unspecified contention Page 119 proffered by Clearwater.

Contention.48 New statement that "Once Petitioner is accepted as a party, we Page 119 [sic] will apply for a waiver to consider this issue [unspecified, but apparently related to'environmental justice or 'corporate welfare'-the topics of the original contention] as a Category 2, site specific issue."

Exhibit 0 New Curriculum Vitae of Ulrich Witte. This document is not cited in the Reply Brief, but only in Exhibits F, Q, and M (Witte's Supplemental Declarations).

V. CONCLUSION For the foregoing reasons, the Board should strike WestCAN's Reply in its entirety.

In the alternative, should the Board determine that WestCAN's Reply should not be stricken I-WA/2929572 18

for improper service or impermissible breaches of decorum, the Board should strike WestCAN's new arguments, references, and exhibits identified above.

Res /'fully sub itted, K)athryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette(2morganlewis.com E-mail: martin.o'neillhmorganlewis.com William C. Dennis, Esq.

Assistant General Counsel ENTERGY NUCLEAR OPERATIONS, INC.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com Dated at Washington, DC COUNSEL FOR this 22nd day of February, 2008 ENTERGY NUCLEAR OPERATIONS, INC.

1-WA/2929572 19

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop In the Matter of ) Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 07-858-03-LR-BDOI

. d )

(Indian Point Nuclear Generating* Units 2 and 3) )

February 22, 2008 CERTIFICATE OF SERVICE I hereby certify that copies of Entergy Nuclear Operations, Inc. Motion to Strike WestCAN, et al. Reply to Entergy and the NRC Staff, dated February 22, 2008 were served this 22nd day of February 2008 upon the persons listed belOw, by first class mail and e-mail as shown below.

Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission Lawrence G. McDade, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail@,nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: !gml @nrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2gnrc. gov)

(E-mail: rew@nrc.gov)

Office of the Secretary

  • Sherwin E. Turk, Esq.

Attn: Rulemaking and Adjudications Staff Lloyd B. Subin, Esq.

U.S. Nuclear Regulatory Commission Beth N. Mizuno, Esq.

Washington, D.C. 20555-0001 Kimberly A. Sexton, Esq.

(E-mail: hearingdocketgnrc.gov) Christopher C. Chandler, Esq.

David E. Roth Office of the General Counsel Mail Stop: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set@nrc.gov)

(E-mail: lbs3gnrc.gov)

(E-mail: bnml@,nrc.gov)

(E-mail: kimberly.sexton@nrc.gov)

(E-mail: christopher.chandler@nrc. gov)

(E-mail: David.Roth@(nrc.gov)

Zachary S. Kahn Nancy Burton Law Clerk 147 Cross Highway Atomic Safety and Licensing Board Panel Redding Ridge, CT 06876 Mail Stop: T-3 F23 (E-mail:. NancyBurtonCTgaol.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxk1(@nrc.gov)

Manna Jo Greene Justin D. Pruyne, Esq.

Environmental Director Assistant County Attorney, Litigation Bureau Hudson River Sloop Clearwater, Inc. of Counsel to Charlene M. Indelicato, Esq.

112 Little Market Street Westchester County Attorney Poughkeepsie, NY 12601 148 Martine Avenue, 6th Floor (E-mail: mannaiogclearwater.org) White Plains, NY 10601 (E-mail: idp3c@westchestergov.com)

Stephen C. Filler, Board Member Diane Curran, Esq.

Hudson River Sloop Clearwater, Inc. Harmon, Curran, Spielberg, & Eisenberg, 303 South Broadway, Suite 222 L.L.P.

Tarrytown, NY 10591 1726 M Street N.W., Suite 600 (E-ýmail: sfiller@nylawline.com) Washington, D.C. 20036 (E-mail: dcurran@harmoncurran.com)

Phillip Musegaas, Esq. Thomas F. Wood, Esq.

Victor M. Tafur, Esq. Daniel Riesel, Esq.

Riverkeeper, Inc. Ms. Jessica Steinberg, J.D.

828 South Broadway Sive, Paget & Riesel, P.C.

Tarrytown, NY 10591 460 Park Avenue (E-mail: phillipldriverkeeper.org) New York, NY 10022 (E-mal: vtafurgriverkeeper.org) (E-mail: driesel@sprlaw.com (E-mail: isteinbergkspriaw.com) 2

Robert D. Snook, Esq. Susan H. Shapiro, Esq.

Office of the Attorney General 21 Perlman Drive State of Connecticut Spring Valley, NY 10977 Assistant Attorney General (E-mail: Palisadesartgaol.com 55 Elm Street mbs@ourrocklandoffice.com)

P.O. Box 120 Hartford, CT 06141-0120

(E-mail: Robert. Snook@po.state.ct.us)

Andrew M. Cuomo, Esq. Richard L. Brodsky Attorney General of the State of New York 5 West Main St.

.John J. Sipos, Esq. Elmsford, NY 10523 Charlie Donanldson Esq. (E-mail: brodskr@assembly.state.ny.us Assistants Attorney General richardbrodskvamsn.com)

The Capitol Albany, NY 12224-0341 (E-mail: john.sipos(2oag.state.ny.us)

Joan Leary Matthews, Esq. Janice A. Dean Senior Attorney for Special Projects Office of the Attorney General Office of the General Counsel of the State of New York New York State Department of Assistant Attorney General Environmental Conservation 120 Broadway, 26th Floor 625 Broadway, 14th Floor New York, NewYork 10271 Albany, NY 12207 (E-mail: Janice.Deangoag.state.ny.us)

(E-mail: ilmatthe@gw.dec.state.ny.us)

Sarah L. Wagner, Esq.

Legislative Office Building, Room 422 Albany, New York 12248 (E-mail: sarahwagneresqc(gmail.c6m)

  • Original and 2 copies hWael P. Kyler I-WA/2930267.1 3
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