ML110770143
| ML110770143 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/10/2011 |
| From: | Bessette P, Dennis W, O'Neill M, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS E-488 | |
| Download: ML110770143 (9) | |
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- March 11, 2011 (8:30 a.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. " 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
.__) March 10, 2011 APPLICANT'S ANSWER TO HUDSON RIVER SLOOP CLEARWATER, INC. AND RIVERKEEPER, INC.'S MOTION FOR EXTENSION OF TIME TO FILE AN ANSWER TO APPLICANT'S MOTION TO STRIKE Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Board ("Board")
July 1, 2010 Scheduling Order, Entergy Nuclear Operations, Inc. ("Entergy") submits this Answer to the "Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'s Motion for Extension of Time to Respond to Entergy's Motion to Strike" ("Motion"), dated March 9, 2011.
In the Motion, Riverkeeper, Inc. ("Riverkeeper") and Hudson River Sloop Clearwater, Inc.
("Clearwater") seek a seven-day extension of the March 14, 2011 deadline, in which to file an answer to Entergy's Motion to Strike, which was filed on March 4, 2011.
As an initial matter, Entergy has on numerous occasions not objected to reasonable, justified extensions of time to the Board's established deadlines. Entergy, however, is concerned that requests for extensions of time have become the norm in this proceeding rather than the exception, and that continued requests for extensions of time are likely to have a material impact on the schedule for hearing. For these reasons and because Clearwater and Riverkeeper fail to demonstrate unavoidable and extreme circumstances justifying the requested extension of time, the Board should deny the Motion.
DB 1/66819335
,7-CLr-sk 4 so
NRC regulations require that answers to motions be filed within 10 days.' Under 10 C.F.R. § 2.307(a), an established regulatory deadline may be extended by the Board upon a showing of good cause. The Commission has made clear that the standard for granting 2
extensions of time requires a demonstration of unavoidable and extreme circumstances.
Riverkeeper and Clearwater claim that multiple filing deadlines and limited resources are justification for an extension. 3 While it is appropriate for the Board to take into account the special circumstances of a party in ruling on an extension of time, "the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations."4 Such circumstances are simply an established part of the NRCadjudicatory process and are by no means special or unusual in NRC adjudications or other types of complex litigation. Therefore, such reasons cannot be considered automatic grounds for what are now becoming routine requests for extensions of time.
5 Entergy also understands from the Motion that Clearwater is reorganizing its legal team.
The Motion, however, provides no explanation as to why this amounts to an unavoidable and extreme circumstance. For example, Riverkeeper and Clearwater never indicate why their other joint identified representatives assisting in this proceeding-particularly those that are not part of Clearwater's unexpected reorganization-are unable to prepare any necessary answer.
Therefore, the Motion should be denied.
I 10 C.F.R. § 2.323(c).
2 See Bait. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units I & 2), CLI-98-25, 48 NRC 325, 342-43 (1998); Statement of Policy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
3 See Motion at 2.
4 Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452, 454 (1981).
5 See Motion at 3-4.
CERTIFICATION OF COUNSEL UNDER 10 C.F.R. § 2.323(b)
Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving parties, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Respectfully submitted, Lahryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
MORGAN, LEWIS & BOCKIUS LLP Il 11 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com William C. Dennis, Esq.
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
Dated in Washington, D.C.
this 10th day of March 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
._) March 10, 2011 APPLICANT'S ANSWER TO NEW YORK STATE'S MOTION FOR EXTENSION OF TIME TO FILE REPLY TO ANSWERS TO FSEIS CONTENTIONS Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Board ("Board")
July 1, 2010 Scheduling Order, Entergy Nuclear Operations, Inc. ("Entergy") submits this Answer to the "Motion of the State of New York for a Four Day Extension of Time to File Replies to NRC Staff and Entergy's March 7, 2011 Answers" ("Motion"), dated March 9, 2011.
In the Motion, New York State ("NYS") seeks a four-day extension of the March .14, 2011 deadline, in which to file replies to the Entergy answer and the U.S. Nuclear Regulatory Commission ("NRC") Staff answer to proposed NYS Contentions 12C and 37.
As an initial matter, Entergy has on numerous occasions not objected to reasonable, justified extensions of time to the Board's established deadlines. Entergy, however, is concerned that requests for extensions of time have become the norm in this proceeding rather than the exception, and that continued requests for extensions of time are likely to have a material impact on the schedule for hearing. For these reasons and because NYS fails to demonstrate unavoidable and extreme circumstances justifying the requested extension of time, the Board should deny the Motion.
DB 1/66821752
1 NRC regulations require that the reply to answers to contentions be filed within 7 days.
Under 10 C.F.R. § 2.307(a), an established regulatory deadline may be extended by the Board upon a showing of good cause. The Commission has made clear that the standard for granting 2
extensions of time requires a demonstration of unavoidable and extreme circumstances.
In its Motion, NYS asserts that this most recent extension is needed because of limited expert and consultant availability, the length of the Entergy and NRC Staff answers, and due to its plan to prepare a single, consolidated reply to the answers. 3 Such claims do not constitute unavoidable and extreme circumstances because NYS has long known that its reply briefs would be due in March 2011. The need to file replies this month was established for the parties, including NYS, once the Board granted the intervenors' Unopposed Motion for an Extension of Time that established February 3, 2011, as the deadline for new or amended contentions.4 In fact, NYS has been aware of the exact due date for their reply briefs for weeks-certainly no later than February 23, 2011, when NRC Staff filed its Unopposed Request for an Extension of Time for Answers to new or amended contentions. 5 Furthermore, while it is appropriate for the Board to take into account the special circumstances of a party in ruling on an extension of time, "the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.'" 6 With at least four attorneys having notices of appearance in this matter, NYS appears to have more than 1 10 C.F.R. § 2.309(h)(2).
2 See Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342-43 (1998); Statement of Policy on Conduct ofAdjudicatory Proceedings,CLI-98-12, 48 NRC 18, 21 (1998).
3 See Motion at 2-3.
4 See Order (Granting Intervenor's Unopposed Joint Motion for an Extension of Time) at 2 (Dec. 27, 20 10)
(unpublished).
NRC Staff's Unopposed Request for an Extension of Time for the Staff s and Entergy's Answers to FSEIS Contentions (Feb. 23, 2011), available at ADAMS Accession No. 110540735.
6 Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452, 454 (1981).
adequate resources to respond to the arguments in the two answers within the timeframe contemplated in the regulations. Therefore, the Motion should be denied.
CERTIFICATION OF COUNSEL UNDER 10 C.F.R. 4 2.323(b)
Counsel for Entergy certifies that he has made a sincere effort to rhake himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Respectfully submitted, Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
MORGAN, LEWIS & BOCKIUS LLP IlIII Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com William C. Dennis, Esq.
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
Dated in Washington, D.C.
this 10th day of March 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos.. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) March 10, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the following enumerated submittals were served this 10th day of March, 2011, upon the persons listed below, by first class mail and e-mail as shown below.
- 1. Applicant's Answer to Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'s Motion For Extension of Time to File an Answer to Applicant's Motion to Strike; and
- 2. Applicant's Answer to New York State's Motion for Extension of Time to File Reply to Answers to FSEIS Contentions.
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.
U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2@nrc.gov)
(E-mail: lgml@nrc.gov)
Administrative Judge Office of the Secretary*
Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)
Washington, DC 20555-0001 (E-mail: rew@nrc.gov)
Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: O-7H4M Mail Stop: T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: ocaamail.resource@nrc.gov) Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
DB 1/66825633.1
Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.
Beth N. Mizuno, Esq. Assistant County Attorney David E. Roth, Esq. Office of Robert F. Meehan, Esq.
Brian G. Harris, Esq. Westchester County Attorney Andrea Z. Jones, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: O-15D21 (E-mail: MJR 1@westchestergov.com)
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set@nrc.gov)
(E-mail: bnml @nrc.gov)
(E-mail: david.roth@nrc.gov)
(E-mail: brian.harris@nrc.gov)
(E-mail: andrea.jones@nrc.gov)
Manna Jo Greene Thomas F. Wood, Esq.
Stephen C. Filler Daniel Riesel, Esq.
Hudson River Sloop Clearwater, Inc. Ms. Jessica Steinberg, J.D.
724 Wolcott Ave. Sive, Paget & Riesel, P.C.
Beacon, NY 12508 460 Park Avenue (E-mail: mannajo@clearwater.org) New York, NY 10022 (E-mail: stephenfiller@gmail.com) (E-mail: driesel@sprlaw.com)
(E-mail: j steinberg@sprlaw.com)
Joan Leary Matthews, Esq. John Louis Parker, Esq.
Senior Attorney for Special Projects Office of General Counsel, Region 3 Office of the General Counsel NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Corners Road Environmental Conservation New Paltz, New York 12561-1620 625 Broadway, 14th Floor (E-mail: jlparker@gw.dec.state.ny.us)
Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)
Ross Gould, Esq. Michael J. Delaney, Esq.
Hudson River Sloop Clearwater, Inc. V.P. - Energy 270 Route 308 New York City Economic Dev. Corp.
Rhinebeck, NY 12572 110 William Street (E-mail: rgouldesq@gmail.com) New York, NY 10038 (E-mail: mdelaney@nycedc.com)
Phillip Musegaas, Esq. Daniel E. O'Neill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.
Riverkeeper, Inc. Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue (E-mail: phillip@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: dbrancato@riverkeeper.org) (E-mail: vob@bestweb.net)
(E-mail: smurray@villageofbuchanan.com)
Robert D. Snook, Esq. Janice A. Dean, Esq.
Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 (E-mail: Janice.Dean@oag.state.ny.us)
(E-mail: Robert.Snook@po.state.ct.us)
John J. Sipos, Esq.
Charlie Donaldson Esq.
Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)
Original and 2 copies provided to the Office of the Secretary.
ýo athan M. Iund, Esq.