ML083510087

Entergy'S Opposition to New England Coalition'S Motion to Extend Time to File Motion for Reconsideration

ML083510087
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	12/04/2008
From:	Doris Lewis Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 09-849-03-LR, RAS M-375
Download: ML083510087 (7)

Text

DOCKETED USNRC December 4, 2008 (12:36pm)

OFFICE OF SECRETARY December 4, 2008 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271 -LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

ENTERGY'S OPPOSITION TO NEW ENGLAND COALITION'S MOTION TO EXTEND TIME TO FILE MOTION FOR RECONSIDERATION Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively "Entergy") hereby oppose the "New England Coalition, Inc.'s (NEC) Motion to Extend Time to File Motions for Reconsideration," dated December.3, 2008 ("NEC Motion"). The NEC Motion requests that the Atomic Safety and Licensing Board

("Board") extend the deadline for NEC to file "its intended Motion for Reconsideration" of the Board's Partial Initial Decision ("Decision") from December 4, 2008, to December 15, 2008, and to extend the period for answers to the motion for reconsideration to January 5, 2009. NEC Motion at 1. NEC's Motion should be denied because it is not supported by the requisite good cause (see 10 C.F.R. § 2.307) and would significantly and unjustifiably delay the completion of this proceeding. The Commission's policy mandates that applicants are entitled to a prompt resolution of disputes concerning their applications. Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 19 (1998). The Commission's rules set out specific deadlines for review following a Board decision. These NEC Motion lacks the good cause required to set aside these deadlines.

NEC's primary justification - that its counsel is withdrawing from this representation and needs time "for transfer of the case files and forpro-se counsel to come up 'to speed" (NEC Motion at 2) - provides no good cause for an extension. The switch in NEC counsel at this late date is an unilateral decision by the intervenor and such a switch could have-been planned and implemented in the five months since the close of the evidentiary hearing.1 In any event, it is well established that a pro se participant in an NRC licensing proceeding has to meet the same scheduling requirements as other parties: "The right of participation accorded pro se representatives carries with it the corresponding responsibilities to comply with and be bound by the same agency procedures as all other parties, even where a party is hampered by limited resources." Entergy Nuclear Vermont Yankee, L.L.C. And Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), Order (Granting Motion for Enlargement of Time Related to NEC Contention 4 and Granting Enlargement of Time, Subject to Sanction, Related to NEC Contention 3) (Mar. 23, 2006) at 2-3, quoting Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 N.R.C. 1193, 1247-(1984).

The other reasons offered by NEC are equally unpersuasive. The vacation of NEC counsel Ms. Tyler does not excuse NEC from fulfilling its obligations. Mr. Shems, of Ms.

Tyler's office, is also counsel to NEC and was served with the Board's decision on November 24, 2008. Either he or Mr. Raubvogel could have taken the necessary steps to prepare a timely motion in Ms. Tyler's absence. And, sincethe Board's rulings are based on the record of this Although NEC has not disclosed the identity of its "pro-se counsel," it may well be Mr. Raymond Shadis, who was NEC's pro-se representative in the earlier VY power uprate proceeding. Mr. Shadis attended the license renewal hearings in July, listened in on several pre-hearing conferences during the course of the proceeding, and has made a number of statements to the press commenting on the hearing and its results. Mr. Shadis is therefore intimately familiar with the proceeding. If Mr. Shadis is NEC's proposed "pro-se counsel," NEC's argument supporting this Motion has even less merit.

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proceeding and ate described in detail in the Decision, no assistance from NEC's technical experts would have been required to prepare such a motion.

Further, NEC offers no explanation of the substantive issues in the Decision for which it seeks reconsideration that warrant extending the proceeding by nearly a month. Indeed, when Entergy's -counsel inquired"[w]hatportion 'of the Board's decision willNEC ask the Board to reconsider," NEC's counsel responded "[t]hey haven't let me know yet." Subsequently, NEC's counsel advised that "NEC's incoming pro-se representative hasn't let me know. specifically what the Motion for Reconsideration will address, but I think it will be quite broad, requesting the Board's reconsideration of multiple factual findings with-respect to Contentions 3 and 4, and possibly 2A and 2B as well."

NEC must meet stringent requirements to file a motion for reconsideration. Pursuant to 10 C.F.R. § 2.323(e), a motion for reconsideration may only be filed with the leave of the presiding officer upon a showing of compelling circumstances, such as the existence of a clear error in a decision, which could not reasonably have been anticipated, and which renders the decision invalid. In light of this high standard, Entergy submits that a motion for an extension should not be granted without some showing that the standards for reconsideration will be met.

Here, that showing is entirely absent.

Indeed, the statements by NEC's counsel in fact indicate that its motion for reconsideration will not meet applicable standards. NEC counsel's assertion that the motion will be broad and address multiple factual findings implies either that (1) NEC will be claiming multiple clear material errors on every contention - an unreasonable position which the Board should not countenance, or (2) that NEC is seeks to quarrel with the Board's findings of fact and 3

weighing of the evidence - an implication inconsistent with the standards for reconsideration.2 Thus, it seems that NEC intends to use a motion for reconsideration to raise issues more appropriate~for an appeal. In-so doing, NEC is seeking to give itself an extension of its appeal deadline, and is also trying to take two bites at the apple.

Finally, NEC's motion would create a deadlinefor its reconsideration motion that conflicts with the deadline for petitions for Commission review. Under 10 C.F.R. § 2.341(b)(1),

a petition for review of the Board's Partial Initial Decision is due 15 days after service of the decision - i.e., by December 9, 2008. Once an appeal is filed, jurisdiction is transferred to the Commission. 3 It is therefore not clear how the Board could entertain a motion for:

reconsideration a week later. Perhaps NEC is assuming that the extended deadline for a motion for reconsideration will automatically toll its deadline for a petition for review.4 However, it has long been held that a licensing board may not vary or extend the appeal periods provided in the regulations. Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-310, 3 N.R.C.

33 (1976); Consolidated Edison Co. (Indian Point Station, Unit No.3), ALAB-281, 2 N.R.C. 6 (1975). In seeking the requested extension, NEC appears to be asking the Board to do indirectly what established NRC case law says it may not.

2 As held earlier by the Board in this proceeding, "a reconsideration motion cannot merely repeat prior arguments, but must provide a good reason for the adjudicator to change its mind." Memorandum and Order (Denying NEC

• Motion for Leave to File Motion for Reconsideration of Contention 5) (Dec. 13, 2006) at 5 (citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 N.R.C. 619, 622 n. 13 (2004)).

See Georgia Power Co. (Vogtle Electric GeneratingPlant, Units 1 and 2), ALAB-859, 25 N.R.C. 23, 27 (1987)

(once a Licensing Board issues its decision disposing of an issue and appeals are filed, the appeal board [now the Commission] has jurisdiction over new matters raised in connection with such issue.). Under the NRC rules, only one presiding officer at a time will have jurisdiction over a particular matter. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-25, 17 N.R.C. 681, 688 (1983); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-82-86, 16 N.R.C. 1190, 1193(1982).

10 C.F.R. § 2.341(b)(6) states that a "petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration." (Emphasis added). While this provision may toll the deadline for a petition for review where a motion for reconsideration has been filed and is therefore "pending" before such deadline, nothing in the NRC rules allows a motion for reconsideration after the deadline for appeals to the Commission.

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Finally, a denial of NEC's extension request will not harm NEC. NEC may seek review from the Commission and still has until next week to do so. In sum, rather than injecting a month or more into the completion of this proceeding, if NEC believes that there are errors in the Board's findings, it should pursue review in accordance with the timeframes established by the NRC rules. The orderly conduct of this proceeding, and an applicant's entitlement to a timely completion of an adjudication, demand nothing less.

CONCLUSION For all of the above stated reasons, the NEC Motion should be denied.

Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz Blake J. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP

.2300 N Street, NW Washington, DC 20037-1122 Tel.: (202) 663-8000 Counsel for Entergy Dated: December 4, 2008 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ))

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271-LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power. Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Entergy's Opposition. to New England Coalition's Motion to Extend Time to File Motion for Reconsideration" were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 4 th day-of December, 2008.

• Administrative Judge *Administrative Judge Alex S. Karlin, Esq., Chairman Dr. Richard E. Wardwell Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 ask2@nrc.gov rew(anrc. gov

• Administrative Judge *Secretary Dr. William H. Reed Att'n: Rulemakings and Adjudications Staff 1819 Edgewood Lane Mail Stop 0-16 C1 Charlottesville, VA 22902 U.S. Nuclear Regulatory Commission whrcville(iembargmail.com Washington, DC 20555-0001 secy(@nrc. gov, hearingdocket(2i)nrc. gov

• Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Mail Stop 0-16 C I Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-000 1 OCAAmailinrc.gov

• Lloyd Subin, Esq. *Sarah Hofmann, Esq.

• Mary Baty, Esq. Director of Public.Advocacy

• Jessica A. Bielecki, Esq. Department of Public Service

• Susan L. Uttal, Esq. 112 State Street - Drawer 20 Office of the General Counsel Montpelier, VT 05620-.2601 Mail Stop O-15-D21 Sarah.hofmann(astate.vt.us U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 LB S3(nrc. gov; mcb 1(nrc. gov; jessica~bielecki(anrc.gov; susan.uttal(&nrc.gov

• Anthony Z. Roisman, Esq. *Ronald A. Shems, Esq.

National Legal Scholars Law Firm *Karen Tyler, Esq.

84 East Thetford Road Shems, Dunkiel, Kassel & Saunders, PLLC Lyme, NH 03768 9 College Street aroisman(Znationallegalscholars .com Burlington, VT 05401 rshems(sdkslaw. corn ktyler(csdkslaw.com

• Peter L. Roth, Esq. *Zachary Kahn, Esq.

Office of theNew Hampshire Attorney General Atomic Safety and Licensing Board Panel 33 Capitol Street Mail Stop T-3 F23 Concord, NH 03301 U.S. Nuclear Regulatory Commission Peter.roth(ado'j.nh.gov Washington, DC 20555-0001 zachary.kahn(d)nrc. gov

• Matthew Brock, Esq.

Assistant AttomeyGeneral Office of the Attorney General.

One Ashburton Place, 18 th Floor Boston, MA 02108 Matthew.BrockaDstate.ma.us I

David R. Lewis 2