ML083590072
| ML083590072 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 12/23/2008 |
| From: | Baty M, Jessica Bielecki, Subin L NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 06-849-03-LR, 50-271-LR, RAS M-381 | |
| Download: ML083590072 (6) | |
Text
December 23, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, )
L.L.C., and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
NRC STAFFS REPLY TO MOTION TO SUBMIT BRIEF AMICUS CURIAE INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Motion for Leave to Submit Brief Amicus Curiae in Opposition to Staffs Petition for Review and In Support of Intervenors State of Vermont and the New England Coalition (Motion) dated December 19, 2008.1 For the reasons set forth below, the Staff respectfully submits that the Motion is not authorized by the Commissions regulations at this time and therefore should be denied, and the Brief not considered.
DISCUSSION Section 2.315(d) of the Commissions regulations provides:
If a matter is taken up by the Commission under §2.341 or sua sponte, a person who is not a party may, in the discretion of the Commission, be permitted to file a brief amicus curiae. Such a person shall submit the amicus brief together with a motion for leave to do so which identifies the interest of the person and states the reasons why a brief is desirable. Unless the Commission provides otherwise, the brief must be filed within the 1
Attached thereto was Brief Amicus Curiae By the States of New York and Connecticut, Hudson Riverkeeper, Inc., Hudson River Sloop Clearwater, Inc., and the Prairie Island Indian Community in Opposition to Staff's Petition for Review and in Support of Intervenors State of Vermont and New England Coalition (Dec. 19, 2008) (Brief).
time allowed to the party whose position the brief will support.
Therefore, a motion for leave to file an amicus brief, and an amicus brief are permitted only after the Commission either accepts a petition for review filed pursuant to 10 C.F.R. § 2.341(b) or on its own accord (sua sponte). Commission case law states that the regulations contemplate amicus curiae briefs only after the Commission grants a petition for review, and do not provide for amicus briefs supporting or opposing petitions for review. Louisiana Energy Servs.
(Claiborne Enrichment Center), CLI-97-07, 45 NRC 437, 438-39 (1997) (underlining in original, italics added).2 In this case, the Commission has not yet granted the NRC Staffs Petition for Review of the Licensing Boards Partial Initial Decision, LBP-08-25 (Staff Petition),3 which was filed December 9, 2008, nor has the Commission indicated that it will take review of LBP-08-25 sua sponte. Therefore, the Motion, which seeks leave to oppose the Staffs Petition, is premature and should be denied at this time. The accompanying brief is not authorized because it opposes the staffs request for Commission review of LBP-08-25. 4 In the event the Commission chooses to consider this premature motion and its Brief, the Staff respectfully requests leave to reply to their Brief.
The Commissions regulations require that motions requesting leave to file briefs amicus curiae identify an interest in the proceeding and reasons why an amicus brief is desirable. See 2
See also Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-96-3, 43 NRC 16, 17 (1996) (stating that a state that does not seek party status or to participate as an interested state is not permitted to file a petition for review, but if the Commission takes review the Commission may allow the state to file an amicus curiae brief).
3 Partial Initial Decision (Ruling on Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC ___
(Nov. 24, 2008) (LBP-08-25 or Decision).
4 See generally Brief.
10 C.F.R. § 2.315(d). The movants have not adequately addressed this regulatory standard because the instant Motion focuses on establishing the movants interests in the Vermont Yankee proceeding but fails to state persuasive reasons why their amicus brief is desirable.
With respect to interest, Movants, who are all participants (parties or interested states) in ongoing NRC license renewal proceedings, state that they have an interest in the Commissions response to the Staffs Petition because it seeks to limit public review and adjudication of various license renewal issues, distorts the role of GALL, and conceivably could affect the amicis interests in their respective proceedings. Motion at 1. In addition, the states of New York and Connecticut note their proximity to Vermont Yankee to support their assertion of an interest in the Vermont Yankee proceeding, Motion at 2 n.1, 3, but neither has formally expressed a participation interest in the outcome of the Vermont Yankee license renewal proceeding (i.e. sought to participate as interested states or by filing contentions). Similarly, this is the first time the other movants have expressed a formal participation interest in the Vermont Yankee proceeding.
With the respect to desirability of an amicus brief, the movants simply state that they would be prejudiced if the Commissioners definitively resolved the matter in favor of Staff at this juncture without considering the amicis brief. Motion at 4. They have not indicated that their perspectives could add to the Commissions decision-making process. In addition, accepting any of the movants as amici could establish a precedent of allowing participants to jump from proceeding to proceeding in an effort to further their plant-specific interests.
Finally, the states of New York and Connecticut assert that they are entitled to file the instant Motion as states pursuant to 42 USC § 2021(l) (§ 274 of the Atomic Entergy Act (AEA)). Motion at 4. The cited section of the AEA is not germane to the states argument.
Section 2021(l) provides that the Commission shall give prompt notice to the State or States in
which the activity will be conducted of the filing . . . [of an application] and shall afford reasonable opportunity . . . for the State to . . . advise the Commission with regard to the application (emphasis added). Vermont Yankee is not in New York or Connecticut. Thus, the rights afforded to states under 42 USC § 2021(l) cannot be relied on to support New York and Connecticuts participation as amici in the Vermont Yankee proceeding.
CONCLUSION For the reasons stated above, the Motion should be denied and the accompanying brief not considered.
Respectfully submitted,
/RA By Mary C. Baty/
Lloyd B. Subin Mary C. Baty Jessica A. Bielecki Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of December, 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, )
LLC and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS REPLY TO MOTION TO SUBMIT BRIEF AMICUS CURIAE in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 23rd day of December, 2008.
Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemakings 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 William H. Reed* Zachary Kahn, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com E-mail: zachary.kahn@nrc.gov Richard E. Wardwell Lauren Bregman, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: rew@nrc.gov E-mail: lauren.bregman@nrc.gov Office of Commission Appellate Peter C.L. Roth, Esq*
Adjudication Office of the Attorney General Mail Stop: O-16G4 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 3301 Washington, DC 20555-0001 E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov
Raymond Shadis* Anthony Z. Roisman, Esq.*
37 Shadis Road National Legal Scholars Law Firm PO Box 98 84 East Thetford Rd.
Edgecomb, ME 04556 Lyme, NH 03768 E-mail: shadis@prexar.com E-mail: aroisman@nationallegalscholars.com David R. Lewis, Esq.* Joan Leary Matthews*
Matias F. Travieso-Diaz, Esq Associate Commissioner Elina Teplinsky, Esq John Louis Parker, Esq.
Blake J. Nelson, Esq Regional Attorney Pillsbury Winthrop Shaw Pittman LLP New York State Department 2300 N Street, NW of Environmental Conservation Washington, DC 20037-1128 625 Broadway, 14th Floor E-mail: david.lewis@pillsburylaw.com Albany, New York 12233-5500 matias.travieso-diaz@pillsburylaw.com E-mail: jlmatthe@gw.dec.state.ny.us elina.teplinsky@pillsburylaw.com jlparker@gw.dec.state.ny.us blake.nelson@pillsburylaw.com Phillip Musegaas Manna Jo Green*
Hudson River Program Director Environmental Director Riverkeeper, Inc . Hudson River Sloop Clearwater, Inc .
828 South Broadway 112 Market St .
Tarrytown, NY 10591 Poughkeepsie, NY 12601 E-mail: phillip@riverkeeper.org E-mail: mannajo@clearwater.org Philip Mahowald, Esq.* Janice A. Dean, Esq.*
General Counsel John J. Sipos, Esq.
Prairie Island Indian Community Assistant Attorneys General 5636 Sturgeon Lake Road Office of the Attorney General Welch, Minnesota 5508 9 for the State of New York E-mail: pmahowald@piic.org The Capitol Albany, New York 12227 E-mail: janice.dean@oag.state.ny.us john.sipos@oag.state.ny.us Sarah Hofmann, Esq.* Richard Blumenthal*
Director of Public Advocacy Attorney General of Connecticut Department of Public Service 55 Elm Street 112 State Street - Drawer 20 Hartford, CT 06106 Montpelier, VT 05620-2601 Robert Snook E-mail: sarah.hofmann@state.vt.us Assistant Attorney General E-mail: robert.snook@po.state.ct.us Matthew Brock*
Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor ___________/RA/________________
Boston, MA 02108 Mary C. Baty E-mail: matthew.brock@state.ma.us Counsel for NRC Staff