ML090140079

Entergy'S Answer Opposing Motion by New York Et Al. for Leave to Submit Brief Amici Curiae

ML090140079
Person / Time
Site:	Vermont Yankee
Issue date:	12/29/2008
From:	Doris Lewis Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-383
Download: ML090140079 (6)

Text

-*{ - "DOCKETED-K USNRC December 29, 2008 (11:45am)

OFFICE OF SECRETARY December 29, 2008 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OFAMERICA NUCLEAR REGULATORY COMMISSION Before the Commission 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 ANSWER OPPOSING MOTION BY NEW YORK ET AL.

FOR LEAVE TO SUBMIT BRIEF AMICI CURIAE Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

(collectively "Entergy") hereby oppose the motion filed by the States of New York and Connecticut and certain intervenors from other license renewal proceedings to file a brief amici curiae in the Vermont Yankee license renewal proceeding.' This Motion should be denied because the filing of an amicus brief is not permitted under the NRC Rules of Practice unless and until the Commission grants a petition for review.

The ability of person who is not a party to file an amicus brief in a proceeding is governed by 10 C.F.R. § 2.315(d), which 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."

10 C.F.R. § 2.315(d) (emphasis added). As this rule makes clear, an amicus brief is only permissible if and when the Commission has taken up a matter on review. This has not yet Motion for Leave By the States of New York and Connecticut, Hudson Riverkeeper, Inc., Hudson River Sloop Clearwater, Inc., and the Prairie Island Indian Community to Submit Brief Amici Curiae (Dec. 19, 2009)

("Motion").

Qý- as

occurred in this proceeding. The NRC Staff's petition requesting that the Commission take up certain issues on review is currently before the Commission, but the Commission has not yet taken up the matter. The NRC rules do not provide for amicus briefs supporting or opposing petitions for review. Louisiana Energy Services (Claiborne Enrichment Center), CLI-97-07, 45 N.R.C. 437, 438-39(1997).

New York and the other movants attempt, to circumvent this rule by arguing that an amicus brief is appropriate at this juncturebecause the Commission retains the authority to address the arguments raised in the NRC Staffs petition for review without seeking any additional briefing. Motion at 4. This argument is an attack on the sufficiency of the NRC rule governing submittal of amicus briefs, and 10 C.F.R. § 2.335 prohibits NRC rules from being challenged in any adjudicatory proceeding except by petition for waiver upon a showing of special circumstances. The argument also ignores the fact that "[i]f a petitionfor-review is granted, the Commission will issue an order specifying the issues to be reviewed." 10 C.F.R. § 2.341(c)(1). This Order would provide appropriate notice that a matter has been taken up, allowing any appropriate requests to submit an amicus brief at that juncture. New York and the other movants seek to submit a brief when even the parties are not yet permitted to do so.

Moreover, whether a petition for review should be granted is not an appropriate topic to be argued or briefed by persons who are not parties to the proceeding. Parties to a proceeding have the right under 10 C.F.R. § 2.341 to request Commission review of errors in a Licensing Board's decision, or to seek NRC guidance on important questions. It is inappropriate for non-participants to interfere with such requests, or seek to prevent parties from obtaining Commission guidance that may avoid needless litigation.

2

The impermissibility of the Motiofi aside, Entergy submits that the expressions of interest and opposition by-New York, Connecticut and three other intervenors from other proceedings in fact underscores the existence of substantial and important questions of law and policy warranting Commission review. 10 C.F.R. § 2.314(b)(4)(iii). As the NRC Staff observed in its Petition for Review, "The Board's conclusion in this case regarding Contentions 2, 2A and 2B is likely to affect other pending and future license renewal proceedings." NRC Staff s Petition for Review of Licensing Board's Partial Initial Decision,.LBP-08-25 (Dec. 9, 2008) at 23. The vehement arguments of the movants, and their attempt to prevent this issue from being taken up on review, indicate that the NRC Staff's observation is correct - and that Commission guidance is necessary not only to correct the errors in the Licensing Board's decision in the Vermont Yankee proceeding but also to prevent such errors from being perpetuated in other proceedings.

The interests and protestation of these intervenors from other proceedings strongly militate in favor of Commission review.

For all of these reasons, the Motion should be denied.

Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz Blake J. Nelson PILLSBURY WINTHROP SHAWPITTMAN LLP 2300 N Street, NW Washington, DC 20037-1122 (202) 663-8000 Dated: December 29, 2008 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

Dominion Nuclear Connecticut, Inc. ) Docket No. 50-426-OLA

)

(Millstone Nuclear Power Station, Unit 3) ) ASLB No. 08-862-01-OLA CERTIFICATE OF SERVICE I hereby certify that copies of"Entergy's Answer Opposing Motion by New York et al.

for Leave to Submit Brief Amici Curiae" were served on the persons listed below by first class mail, and, where indicated by an asterisk, by e-mail, this 29th day of December, 2008.

Hon. Dale E. Klein Hon. Kristine L. Svinicki Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Hon. PeterB. Lyons Hon. Gregory B. Jaczko Commissioner Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

.*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(-nrc.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(cembarqmail.com Washington, DC 20555-0001 secy(onrc.gov; hearingdocket(cnrc.gov

• Office of Commission Appellate Adjudication Atomic Safety and.Licensing Board Mail Stop 0-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmailgnrc.gov

• Lloyd Subin, Esq. *Sarah Hofrmann, 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.hofinannA~state.vt.us U.S. Nuclear Regulatory Commission Washington, DC.20555-0001.

LBS3 Qnrc.gov; mcbi (a)rc.gov; jessica.bielecki(anrc. gov; susan.uttal(inrc.gov

• Anthony Z. Roisman, Esq. *Raymond Shadis National Legal Scholars Law Firm 37 Shadis Road 84 East Thetford Road PO Box 98 Lyme, NH 03768 Edgecomb, ME 04556 aroismananationallegalscholars.com shadis(iprexar.com

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

Office of the New 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(adoj .nh. gov Washington, DC 20555-0001 zachary.kahn(Thnrc.gov

• Matthew Brock, Esq. *Janice Dean, Esq.

Assistant Attorney General *John J. Sipos, Esq.

Office of the Attorney General Assistant Attorneys General One Ashburton Place, 18th Floor Office of the Attorney General Boston, MA 02108 for the State of New York Matthew.Brocka~state.ma.us The Capitol Albany, New York 12227 ianice.dean(ýoag.state.ny.us j61n.sipos(-,oag.state.ny.us 2

• Richard Blumenthal, Esq. *Phillip Musegaas, Esq.

• Attorney General of Connecticut Hudson River Program Director 55 Elm Street Riverkeeper, Inc.

Hartford, CT 06106 828 South Broadway Robert Snook Tarrytown, NY 10591 Assistant Attorney General phillip(ariverkeeper.org robert. snook(a,-o. state. ct.us

• Manna Jo Greene, *Philip R. Mahowald, Esq.

Environmental Director General Counsel Hudson River Sloop Clearwater, Inc. Prairie Island Indian Community 112 Market St. 5636 Sturgeon Lake Road Poughkeepsie, NY 12601 Welch, MN 55089 mannaioa~cleanwater.ora pmahowald(dpiic.org David R. Lewis 3