ML080840406

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Joint Motion to Strike Paragraph One of Staffs Pleading Letter Dated March 4, 2008
ML080840406
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 03/06/2008
From: Curran D, Jeremy Dean, Matthews J, Musegaas P, Parker J
Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Riverkeeper, State of NY, Dept of Environmental Conservation, State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECYRAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS-E-25
Download: ML080840406 (10)
v • d • e


Text

PA-,5-.-C d-S UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY LICENSING BOARD

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Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDOI Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and DPR-26, DPR-64 Entergy Nuclear Operations, Inc.

x JOINT MOTION TO STRIKE PARAGRAPH ONE OF STAFF'S "PLEADING" LETTER DATED MARCH 4,2008 Pursuant to 10 C.F.R.'§ 2.323, the State of New York and Riverkeeper, Inc. move to strike the first paragraph of NRC Staff's letter dated March 4, 2008, in which Staff attempts, by letter, to change its response to New York State's Contention 26 and Riverkeeper's Contention TC-1. The regulations do not provide for this kind of "sur-opposition." Moreover, the information upon which Staff relies for its change of position is not relevant to the admissibility of contentions that were required tobe filed onthe basis of the information available at the time petitions were due. Thus, Staff's attempt here is at best premature.

Staff submitted its Response to New York State's and Riverkeeper's petitions to intervene on January 22, 2008. See NRC Staff s Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) the State of New York, (5) Riverkeeper, Inc., (6) the Town of Cortlandt, and (7) [~AA6-/ff7~3CV

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Westchester County, dated January 22, 2008. In its Response, Staff did not oppose New York State's Contention 26 and Riverkeeper's Contention TC-1, which challenged as inadequate Entergy's treatment of metal fatigue in its license renewal application (LRA). Id. at 77-78; 115-18.

Also on JanuarY 22, 2008, Entergy submitted an amendment to its LRA, in which it amended the LRA primarily as to metal fatigue. See Letter from Fred R. Dacimo (Entergy) to NRC Docket Control Desk, dated January 22, 2008 (

Subject:

License Renewal Application Amendment 2) (Entergy Letter NL-08-02 1).

On March 4, 2008, Staff sent a letter to the. Board in which it stated, in the first paragraph, that because of Entergy's January 22, 2008 LRA amendment, the deficiencies cited in New York State's Contention 26 and Riverkeeper's Contention TC-1 had been "cured," and that Staff now intends to oppose the contentions at oral argument, which is scheduled to begin March 10, -2008.

As demonstrated below, the NRC rules do not provide a mechanism for Staffs change in position at this point in the proceeding, and, in any event, Staff s letter constitutes an unaLuthorized method of communication with the Board, in violation of 10 C.F.R. § 2.323.

10 C.F.R. § 2.309(h)(1) allows "NRC staff... [to] file an answer to a request for a hearing, a petition to intervene and/or proffered contentions within twenty-five (25) days after service of the request for hearing, petition and/or contentions." 10 C.F.R. § 2.309(h)(1). 10 C.F.R. § 2.309(h)(2) then authorizes petitioners to file a reply within seven days. 10 C.F.R.

§ 2.309(h)(2). The regulations do not contemplate "sur-opposition" letters which attempt to change a party's position as pled. In fact, the regulations do not contemplate any additional pleadings after petitioners' replies are filed and served. Therefore, the regulations do not afford Staff the right to amend its pleadings, even if based on new information. Notably, Staff does not cite, in its letter of March 4, 2008, any regulatory provision authorizing its communication to the Board. As the Board noted in the Oyster Creek relicensing matter, regulations concerning contention admissibility are "strict by design." Amergen Energy; Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24. 64 NRC l 11, 118-119 (2006). The State of New York and Riverkeeper suibmit that Stafftmust be held to the same strict standards as are applied to petitioner-intervenors.

Staff may not purport to amend its pleading by letter. Arguably, and at the proper time later in these proceedings, i.e., after the Board has ruled on the admissibility of contentions raised in petitions, Staff retains the right to submit a motion pursuant to 10 C.F.R. § 2.323(a). Using letters in lieu of formal pleadings is not authorized by any provision of the Rules of Practice.

Allowing parties to use letters in lieu of the legally authorized pleadings has the net result of the Board receiving informal communications outside the normal procedural formats and thus, absent special orders from the Board, there are is no guidance for how to respond. That problem has already begun to mushroom in this proceeding as the Board has seen from the numerous letters addressing substantive matters. In a proceeding which is already extremely complex, with numerous potential parties and contentions, "letter pleadings" only make matters more complex.

These considerations may have been behind the Board's decision in the Vermont Yankee license renewal proceeding where the Board struck a letter Filed by Entergy, and held:

The Board also Finds it appropriate to advise the parties, at the outset of this proceeding, that the record should not be cluttered with "for your information" letters, documents, general observations, and conclusions of coutsel. Filings in this proceeding shlould be fornal, with the caption of the case and with attached documents or affidavits to support any factual statements or allegations.

Communication with this Board via letter or e-mail is generally inappropriate, except tbr minor procedural questions or corrections.

In the A'fatter of Entergy Nuclear Vermont Yankee, LLC, and Enterig Nuclear Operations, Inc.

(Verimont Yankee Nuclear Power Station), Order, August 11,. 2006 at 2.

Finally, the LRA amendment which forms the basis of the Staff submittal is not relevant to the admissibility of Contention 26 or Contention TC-1. The admissibility of contentions "must be based on documents or other information available at the time the petition is to be filed." 10 C.F.R. § 2.309(f)(2). If the contentions have to be based upon the information available when the petition is filed, and if the use of supplemental information is generally prohibited to attempt to support the contentions (see general/v Entergy Nuclear Operations, Inc.

Motion to Strike Hudson River Sloop Clearwater Inc's Reply to Entergy and NRC Responses to Clearwater Petition to Intervene and Request for Hearing (2/15/08) at 3 et. seq.), the opposing parties cannot use information that arises subsequent to the petition to challenge the admissibility of a contention. This is particularly true where, as here, the information upon which Staff relies is in formation known to Entergy and Staff for years before Entergy filed its LRA but notably absent from the LRA until after New York State and Riverkeeper filed their contentions. See New York State Reply in Support of Petition to Intervene (Feb. 22, 2008) at 126-29. New York State and Riverkeeper note that Staff retains the right to bring a motion to dismiss Contention 26 and Contention TC-1 as moot, or for summary disposition, once the Board has determined contention admissibility if it so chooses, but that now is not the proper time, and Staff has not chosen the proper vehicle, to bring such a challenge.' Moreover, Staffs letter needlessly Even if there were a way for Staff to amend its opposition based upon a new document, (continued...)

complicates the process by presenting petitioner-intervenors with unclear rights of reply, no opportunity for pre-submission consultation, and represents a wasteful use of resources by everyone involved.

New York State and Riverkeeper urge the Board to follow the lead of the Vermont Yankee Board by striking the first paragraph of Staffs March 4, 2008 letter and issuing an Order that requires all parties to use formal pleading practice to communicate with the Board. As the attached certification affirnlms, New York State consulted with Staff and Entergy before filing this Motion and they indicated they would oppose the Motion.

Respectfully submitted, March 6, 2008 J Fnii e A. Dean J h J. Sipos Assistant Attorney General Office of the, Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 j ohn.sipos@oag.state.ny.us J an Leary tv,,_uews

(... continued)

Staff would have had to file a motion pursuant to 10 C.F.R. § 2.323(a), and would have had ten days from the date of the new document to file such a motion. 10 CFR. § 2.323(a).

Communicating with the Board via letter instead of motion circumvents the requirements of 10 C.F.R. §§ 2.323(b) and (c), requiring a party to consult with other parties prior to filing a pleading and establishing procedures for when to respond to such a motion and limiting the right of the inovant to file a reply.

inL.- L -"'a4az.

n L. Parker Regional Attorney, Region 3 New York State Department of Environmental Conservation 21 South Putt Corners New Paltz, New York 12561 (845) 256-3037 jlparkernxgw.dec. state. ny. us Diane Curran, Esq.

Harmon, Curran, Spielberg, &

Eisenberg, LLP Suite 600 1726 M Street NW Washington, DC 20036 (202) 328-3500 dcurran@harmnoncurran.com Phillip Musegaas, EQ.U UT Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 (914) 478-4501 x 224 phillip@riverkeeper.org CERTIFICATION On behalf of the movants, Assistant Attorney General Janice A. Dean, certifies pursuant to 10 C.F.R. § 2.323(b) that the movants have made a sincere effort to contact other parties in the proceeding and to resolve the issues raised in the motion. Specifically, I contacted counsel for Entergy and NRC Staff to obtain their a*reement to this motion and proposed hearing process and both opposed this motion.

anice A. Dean March 6, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION x

In re:

License Renewal Application Submitted by Entergy Nuclear Indian Point 2. LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

x Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BDO0 DPR-26, DPR-64 CERTIFICATE OF SERVICE Pursuant to 28 U.S.C. § 1746 Teresa Fountain hereby declares:

I am over 18 years old and am an employee in the New York State Office of the Attorney General.

On March 6, 2008, 1 served copies of a Joint Motion to Strike Paragraph One of Staff s "Pleading" Letter dated March 4, 2008 upon the following persons at the following addresses by depositing true copies thereof, properly enclosed in a sealed, postpaid wrapper, in the Office of the Attorney General's Mail Room for delivery to the Capitol Station Post Office in the City of Albany, New York, a depository uinder the exclusive care and custody of the United States Post Office Department:

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 igml @nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission M/failstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 rew@nrc.gov Kaye D. Lathrop

,Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 190 Cedar Lane E.

Ridgway, CO 81432 kdl2@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Conmmission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738

-I-

Zachary S. Kaln, Esq.

Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 zxk1Q@nrc.gov Marcia Carpentier Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 E2B Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Marcia.Carpentier@nrc.gov Office of Comnlission Appellate Adjudication U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@gnrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket nrc.gov Sherwin E. Turk, Esq.

David E. Roth, Esq.

Lloyd B. Subin, Esq.

Beth N. Mizuno, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 set@dIuc.gov der(ibnrc.gov lbs3@(onrc.gov blrml@(Jnrc.gov Kathryn M. Sutton. Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

Maulri T. Leinoncelli, Esq.

Morgan, Lewis & Bockius LLP II-1 Pennsylvania Avenue, NW Washington, DC 20004 ksuLtton Ciomorganlewis.com pbessette@,morganlewis.corn martin.o'neill ornorganlewiscom mlemoncelli @Lmorganlewis.comn cadams@morganlevis.com Elise N. Zoli. Esq.

Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601 wdennis(i.entergy.com Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert.snook@po.state.ct.us Justin D. Pruyne, Esq.

Assistant County Attorney Office of thle Westchester County Attorney M ichaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 jdp3 @mwestchestergov.comr Daniel E. O'Neill, Mayor James Seirmnarco, M.S.

Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net

Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Jessica Steinberg, J.D.

Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 driesel@sprlaw.com jsteinberg@sprlaw.com Michael J, Delaney, Esq.

Vice President - Energy Department New York City Economic Development Corporation (NYCEDC) 110 William Street New York, NY 10038 mdelaney@nycedc.con Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016 kremer@area-alliance.org ajkremer@rnmfpc.com Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.

112 Little Market St.

Poughkeepsie,.NY 12601 Mannajo~&9clearwater.org Susan i-. Shapiro, Esq.

Weschester Citizen's Awareness Network 21 Perlman Drive Spring Valley, NY 10977 mbs@ourrocklandoffice.com Nancy Burton 147 Cross Highway Redding Ridge, CT 06876 NancylfurtonCT@,aol.com Richard L. Brodsky, Esq.

Assemblyman Suite 205 5 West Main Street Ehnstobrd, NY 10523 brodskr@assembly.state.ny.Ls ric hardbrodsky@msn.com John LeKay FUSE USA 351 Dyckman Street Peekskill, NY 10566 fuseusa@yahoo.corn Diane Curran, Esq.

Harmnon, Curran, Speilberg

& Eisenberg, LLP Suite 600 1726 M Street, NW Washington, DC 20036 dcurran(Zlharmoncurran.com Phillip Musegaas, Esq.

Victor Ta fur, Esq.,

Riverkeeper, Inc.

828 South Broadway Tarrytownr, NY 10591 phillip@riverkeeperorg vtaliir@riverkeeper.org In addition, copies of the documents were sent to the e-mail addresses listed above.

I declare tinder penalty of petjury that the foregoing is true and correct.

Executed on:

this 6th day of March 2008 Albany, New York Teresa Foulntain

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