ML091740578
| ML091740578 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 06/15/2009 |
| From: | Shadis R New England Coalition |
| To: | Karlin A Atomic Safety and Licensing Board Panel |
| SEC RAS | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, RAS M-429 | |
| Download: ML091740578 (9) | |
Text
DOCKETED USNRC
, June 15, 2009 (3:54pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF New England Coalition VT NH ME MA RI CT NY -
POST OFFICE BOX 545, BRATTLEBORO, VERMONT o5302 June 15, 2009 E-mail: ask2(@nrc.gov Administrative Judge Alex S. Karlin, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Re: Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
Vermont Yankee Nuclear Power Station, Docket No. 50-271LR ASLBP No. 06-849-03-LR New England Coalition's Request for Leave to Reply To Entergy's Answer To New England Coalition's Request for Extension of Time to Reply to Entergy and NRC Staff Oppositions to New England Coalition's Motion for Leave to File a Timely New Contention
Dear Judge Karlin,
New England Coalition (NEC) respectfully request your permission, as presiding officer in the above captioned matter, to Reply To Entergy's Opposition To New England Coalition's Request for Extension of Time to Reply to Entergy and NRC Staff Oppositions to New England Coalition's Motion for Leave to File a Timely New Contention NEC is aware that under 10 CFR §2.323(c),
The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.
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2 NEC/ASLBP June 15, 2009 NEC could not have reasonably anticipated the arguments in Entergy's Opposition.
Entergy has misrepresented and starkly discolored NEC statements in both NEC's Opposition io Entergy's Motion to Strike and NEC's Request for Extension of Time. In the Discussion section of its filing, Entergy has taken NEC to task for arguments NEC never made and selectively ignored arguments that it did make. In a blatant attempt to impugn the character and integrity of NEC, Entergy quotes out of context a three-year old Order from another docket and injects highly colored language, such as "mysterious" to suggest that NEC's computer service problems are spurious or misrepresented.
Specifically,
- 1. Entergy states at page 2, "NEC acknowledges that it has been misrepresenting the mailing date in its certificates..." and "NEC Response at 13. NEC admits that its practice has been to backdate its certificates of service throughout this proceeding..."
NEC did not say that it was "misrepresenting" anything; NEC said that it presumed the meaning of the posting date in a Certificate of Service to encompass the very earliest physically possible posting. Prepaid postage (metered postage) allows for deposit in-house with postal pickup next day, but citizen intervenors, such as NEC, have no such advantage.
Further, NEC did not say that its practice was to backdate its certificates throughout this proceeding. NEC said" it has been operating on the assumption" and that it has "routinely assumed, not that its "practice...throughout" was such-and-such." NEC could not reasonably anticipate such a distortion from Entergy. The Certificate in question, for NEC's Reply was dated when it was signed and placed in an envelope-on May 26, 2009. NEC's Pro Se Representative made no filings in this proceeding until replacing NEC's counsel after the Partial Initial Order was entered on November 24, 2008. It is clear that all of NEC's many filings between May 26, 2006 and November 24, 2008, as made by counsel, were postmarked (via metered postage) or receipted by express service on the day of electronic service. The interpretation of service rules forthis filing is that of NEC's pro se counsel and can only be meant apply to his tenure.
- 2. Entergy says on Page3, "With respect to its failure to timely serve electronic copies of its Reply, and its complete failure to serve counsel for Entergy, NEC recites a complex tale of electronic misfortune (NEC Response at 3-4), culminating in the mysterious "clipping off" of Entergy's counsel from the list of addressees." NEC objects to snide-connotations in Entergy's coloration; all intended to imply that NEC's representation of the facts is untrue. This appears to have the marks of an attempt to controvert with a factless drive-by and should not be countenanced. Attached is an e-mail that NEC received from its server's e-mail delivery system
3 NEC/ASLBP June 15, 2009 on June 13, 2009, which pointedly demonstrates just once example of how addressees can be mysteriously clipped. The e-mail informs NEC, five days after the fact, that its e-mail service of Administrative Judge William Reed of this ASLBP was not delivered due to "time-out." If the movant is not controverted, the movant factual representations must be presumed to be true.'
- 3. NEC could not have anticipated Entergy's selective and out-of-context citation to the Board's Order in Docket No. 50-271-OLA /ASLBP No. 04-832-02-OLA (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). NEC, says Entergy was admonished about its "cavalier disregard for the schedule" in filing motions for extension of time. What Entergy does not say is that the Board made this statement under the mistaken impression that NEC was filing a request for Extension of Time for two filings; one due and one overdue, the Board overlooking the fact that the second filing had already been timely filed. The Board later withdrew the uncalled-for second extension of time. Further Entergy does not say that the Motion in question was unopposed2 .
- 4. In arranging its arguments, Entergy ignores the context in which NEC's Request for Extension was brought. This cannot have been anticipated and the Board should not, in considering NEC's Request, follow suit. 3 of NEC has made an attempt to respond to and refute the above NRC Staff's unanticipated arguments in the attached Reply and for all of the good reasons above, NEC respectfully requests that you permit its Reply.
Insofar as the facts relate to the excuse for untimely filing, where they are not controverted by opposing affidavits they must be taken as true. Florida Power& Light Co. (St. Lucie Nuclear Power-Plant, Unit 2),
ALAB-420, 6 NRC 8,13 (1977).
2 Entergy might also have pointed out that the Contention in question, regarding in part cooling tower structural integrity, was mooted when Entergy next presented a contractor's analysis purporting to show that the structures were thoroughly examined and in good condition. NEC withdrawing; the Board declined to pursue the question sua sponte. A little over a year later, in August 2007, the cooling towers sufferred a structural collapse. Every party seek modification for good cause of time limits previously set by a Board.
Moreover, good cause, by its very nature, must be an ad hoc determination based on the facts and circumstances applicable to the particular determination. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-83-26,17 NRC 945; 947 (1983).
3 Any party may seek modification of time limits previously set by a Board for good cause. Further, good cause, by its very nature, must be an ad hoc determination based on the facts and circumstances applicable to the particular determination. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2),
LBP-83-26,17 NRC 945; 947 (1983).
4 NEC/ASLBP June 15, 2009
- 5. Entergy correctly points out that the Initial Scheduling Order requires that an affidavit be attached to any late request for extension of time. It may be argued that NEC should have anticipated this argument, however, NEC's pro se representative was focused on the calendar aspects of the Order for a process which terminated with briefs prior to November 2008 and did not, on taking over NEC's case in December, re-read the Order in depth sufficient to catch that requirement. As NEC was proceeding unaware of the Board's requirement, it could not have anticipated Entergy's argument regarding it. However, both NEC's Response to Entergy's Motion to Strike and its Request are largely in narrative form and are signed by NEC's pro se representative; analogous to an affidavit. Therefore NEC hopes that the Board can accept those aspects of its filings in lieu of an affidavit. Alternatively, NEC requests that the Board grant it permission to now file a corroborating affidavit.
For all of the good reasons stated above, NEC respectfully requests the presiding officer's leave to file a Reply to Entergy's Opposition To New England Coalition's Request for Extension of Time to Reply to Entergy and NRC Staff Oppositions to New England Coalition's Motion for Leave to File a Timely New Contention. NEC would file its Reply by close of business, tomorrow, June 16, 2009.
NEC's pro se representative hereby certifies that a good faith effort was made via e-mail to seek accord with the other parties regarding this filing. NRC Staff indicated that they would not oppose, but that they would reserve the right to comment. Entergy said that it would oppose. At this time NEC has yet to receive response from the states.
Thank you for your kind attention,
/RS Raymond Shadis Pro se Representative
5 NEC/ASLBP June 15, 2009 New England Coalition Post Office Box 98 Edgecomb, Maine 04556 207-882-7801 Shadisgprexar.com
NEC ATTACHMENT NEC/ASLB 06/15/2009 Original
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To: "'Zachary Kahn'" <Zachary.Kahn@nrc.gov>,
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Cc: "'Alex Karlin'" <Alex.Karlin@nrc.gov>,
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References:
<CEEA97CC21430049B821E684512F6E5EB70AD5E6AA@HQCLSTRO1.nrc.gov>
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Subject:
RE: Today's New England Coalition Filing Date: Mon, 8 Jun 2009 14:39:02 -0400 Message-ID: <51576F326EA5421D841335CFB44D2A99@RaymondPC>
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMM0ISSION 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 New England Coalition's Request for Leave to Reply To Entergy's Answer To New England Coalition's Request for Extension of Time to Reply to Entergy and NRC Staff Oppositions to New England Coalition's Motion for Leave to File a Timely New Contention will be served on the persons listed below by deposit in the U.S. Mail, first class, on the I6te day of June and by electronic mail, this 15th day of June, 2009.
Administrative Judge Office of Commission Appellate Alex S. Karlin, Esq., Chair Adjudication Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAmail@(lrc.gov E-mail: ask2@(nrc.gov Administrative Judge Administrative Judge Dr. Richard E. Wardwell William H. Reed Atomic Safety and Licensing Board Panel 1819 Edgewood Lane Mail Stop T-3 F23 Charlottesville, VA 22902 U.S. Nuclear Regulatory Commission E-mail: whrcville@,embarmail.com Washington, DC 20555-0001 E-mail: rew@pnrc.gov
Office of the Secretary Peter C. L. Roth, Esq.
Attn: Rulemaking and Adjudications Staff Office of the Attorney General Mail Stop: O-16C1 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 03301 Washington, DC 20555-0001 E-mail: Peter.rothkdoi.nh.gov E-mail: hearingdocket@(arc. gov Sarah Hofmann, Esq. David R. Lewis, Esq.
Director of Public Advocacy Matias F. Travieso-Diaz Department of Public Service Pillsbury Winthrop Shaw Pittman LLP 112 State Street, Drawer 20 Montpelier, VT 05620-2601 2300 N Street NW E-mail: sarah.hofinanngstate.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburvlaw.com matias.travieso-diazOtnillsburvlaw.com Lloyd B. Subin, Esq.
Mary C. Baty, Esq. Matthew Brock Susan L. Uttal, Esq. Assistant Attorney General Jessica A. Bielecki, Esq. Environmental Protection Division Office of the General Counsel Office of the Attorney General Mail Stop 0-15 D21 One Ashburton Place, 18th Floor U.S. Nuclear Regulatory Commission Boston, MA 02108 Washington, DC 20555-0001 E-mail: Matthew.Brock(state.ma.us E-mail: lbs3@~nrc.gov; mcbl@,nrc.gov:
susan.uttal@mnrc.gov:
- Lauren Bregman jessica.bieleckianrc.gov Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 Anthony Z. Roisman, Esq. U.S. Nuclear Regulatory Commission National Legal Scholars Law Firm Washington, DC 20555-0001 84 East Thetford Road lauren.bregmanknrc.gov Lyme, NH 03768 E-mail: aroisman@anationallegalscholars.com by:
Zachary Kahn Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Raymond Shadis E-mail: zachary.kahn@nrc.gov Pro se Representative New England Coalition Post Office Box 98 Edgecomb, Maine 04556 207-882-7801 shadis@prexar.com
New England Coalition VT NH ME MA RI CT NY POST OFFICE BOX 545, BRATTLEBORO, VERMONT o5302 June 16, 2009 Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 RE: Docket No. 50-271-LR, ASLBP No. 06-849-03-LR, Vermont Yankee Nuclear Power Station
Dear Rulemaking and Adjudications Staff,
Please find enclosed for filing before the Atomic, Safety and Licensing Board in the above captioned proceeding:
New England Coalition's Request for Leave to Reply To Entergy's Answer To New England Coalition's Request for Extension of Time to Reply to Entergy and NRC Staff Oppositions to New England Coalition's Motion for Leave to File a Timely New Contention Thank you for your kind attention, IRS/
for New England Coalition, Inc.
Raymond Shadis Pro Se Representative Post Office Box 98 Edgecomb, Maine 04556