ML15288A222
| ML15288A222 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 10/15/2015 |
| From: | Landis-Marinello K State of VT, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-271-LA-3, ASLBP 15-940-03-LA-BD01, RAS 28389 | |
| Download: ML15288A222 (5) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket No. 50-271-LA-3 ENTERGY NUCLEAR VERMONT )
YANKEE, LLC AND ENTERGY ) October 15, 2015 NUCLEAR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
STATE OF VERMONTS RESPONSE TO ENTERGYS MOTION TO FILE REPLY BRIEF According to Entergy and NRC Staff, the State of Vermont is the party with an affirmative duty to demonstrate legal injury to obtain conditions here.1 And because NRC Staff filed an Answer supporting Entergys Motion to Withdraw, the State is the party that could reasonably seek leave to respond to Staffs arguments.2 Yet it is Entergy that seeks to file an additional brief beyond what the rules allow.
The Commission has held that a motion to file a reply brief should be denied if the reply addresses arguments that were logical responses that the moving 1 Entergys Motion to Withdraw Its September 4, 2014 License Amendment Request at 3 (Sept. 22, 2015) (Entergy Motion to Withdraw) (ADAMS Accession No. ML15265A583)
(citing Sequoyah Fuels Corp. (Source Material License No. SUB-1010), CLI-95-2, 41 NRC 179, 192-93 (1995)); NRC Staffs Answer to Entergys Motion to Withdraw at 9 (Oct. 2, 2015) (ADAMS Accession No. ML15275A322).
2 See, e.g., Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2) (Initial Scheduling Order), 70 N.R.C. 640, LBP-09-22, 2009 WL 8519328, at *6 (allowing a party opposing a motionsuch as the State hereto file a response if the NRC Staff or any party files an answer that supports a motion).
1
party should have anticipated.3 Here, not only should Entergy have anticipated the States arguments, but it in fact did. Entergy concedes that it knew what conditions the State intended to seek before Entergy filed its Motion to Withdraw:
During consultation on the Motion to Withdraw, counsel for the State noted the possibility that the State would ask the Board to impose conditions requiring Entergy to provide substantial additional detail in its disbursement notifications to the NRC, and to provide the State with disclosures regarding all past and future trust fund disbursements despite withdrawal of the LAR, and to seek dismissal with prejudice.4 While Entergy claims it could not have anticipated the specific information and arguments the State raised,5 Entergys Motion to Withdraw did anticipate those arguments.6 Consequently, Entergys reply brief is repetitive and unwarranted.7 The reply brief is also unhelpful to the Board. For instance, Entergy misinterprets the States position when Entergy claims that the State has argued that a decision on contention admissibility, alone, is equivalent to a decision on the merits.8 The State has requested a prejudicial ruling only as to contention 3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), 75 N.R.C. 352, 374 n.138 (2012).
4 Entergys Motion for Leave to File Reply and Reply in Support of Motion to Withdraw License Amendment Request at 5 (Oct. 13, 2015) (Entergy Motion for Reply)
(ADAMS Accession No. ML15286A442).
5 Id.
6 Entergy Motion to Withdraw at 5-6.
7 See, e.g., Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2),
CLI-14-03, 2014 WL 582096, at *2 (2014) (holding that when moving party has not presented genuinely new information in its reply . . . neither necessity nor fairness dictates that its reply should be permitted).
8 Entergy Motion for Reply at 7.
2
admissibility, not the merits. Further, the State has argued that Entergyat the time of moving to withdrawchanged its 30-day notice to provide less information than ever before. Entergys reply brief provides no explanation for that change.9 Far from the compelling circumstances required to file a reply brief,10 this is precisely the situation where a reply brief is unnecessary and unhelpful.11 CONCLUSION For these reasons, the Board should deny Entergys motion to file a reply brief. Further, the additional briefing by Entergy (whether allowed or not) highlights the need for oral argument before the Board rules on this matter.
Respectfully submitted,
/Signed (electronically) by/
Kyle H. Landis-Marinello Counsel for the State of Vermont Assistant Attorney General Environmental Protection Division Vermont Attorney Generals Office 109 State Street Montpelier, VT 05609 (802) 828-1361 kyle.landis-marinello@vermont.gov 9 Entergy Motion for Reply at 11 n.56 (stating only that the difference highlighted by the State is not substantive since Entergy believes all its 30-day notice letters suffice).
10 10 C.F.R. § 2.323(c).
11 Entergys motion also appears to be procedurally flawed. See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-04-825-01-CO, 2004 WL 894578, at *3 (2004) (A request for Licensing Board preapproval to file a reply shall be sought in writing no less than three business days prior to the time the reply will be filed.).
3
Aaron Kisicki Counsel for the State of Vermont Vermont Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620 (802) 828-3785 aaron.kisicki@vermont.gov Dated at Montpelier, Vermont this Fifteenth day of October 2015 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT ) Docket No. 50-271-LA-3 YANKEE, LLC AND ENTERGY )
NUCLEAR OPERATIONS, INC. ) October 15, 2015
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the State of Vermonts Response to Entergys Motion to File Reply Brief have been served upon the Electronic Information Exchange, the NRCs e-filing system, in the above-captioned proceeding, this Fifteenth day of October 2015.
/Signed (electronically) by/
Kyle H. Landis-Marinello Counsel for the State of Vermont Assistant Attorney General Environmental Protection Division Vermont Attorney General's Office 109 State Street Montpelier, VT 05609 (802) 828-1361 kyle.landis-marinello@vermont.gov Dated at Montpelier, Vermont this Fifteenth day of October 2015 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket No. 50-271-LA-3 ENTERGY NUCLEAR VERMONT )
YANKEE, LLC AND ENTERGY ) October 15, 2015 NUCLEAR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
STATE OF VERMONTS RESPONSE TO ENTERGYS MOTION TO FILE REPLY BRIEF According to Entergy and NRC Staff, the State of Vermont is the party with an affirmative duty to demonstrate legal injury to obtain conditions here.1 And because NRC Staff filed an Answer supporting Entergys Motion to Withdraw, the State is the party that could reasonably seek leave to respond to Staffs arguments.2 Yet it is Entergy that seeks to file an additional brief beyond what the rules allow.
The Commission has held that a motion to file a reply brief should be denied if the reply addresses arguments that were logical responses that the moving 1 Entergys Motion to Withdraw Its September 4, 2014 License Amendment Request at 3 (Sept. 22, 2015) (Entergy Motion to Withdraw) (ADAMS Accession No. ML15265A583)
(citing Sequoyah Fuels Corp. (Source Material License No. SUB-1010), CLI-95-2, 41 NRC 179, 192-93 (1995)); NRC Staffs Answer to Entergys Motion to Withdraw at 9 (Oct. 2, 2015) (ADAMS Accession No. ML15275A322).
2 See, e.g., Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2) (Initial Scheduling Order), 70 N.R.C. 640, LBP-09-22, 2009 WL 8519328, at *6 (allowing a party opposing a motionsuch as the State hereto file a response if the NRC Staff or any party files an answer that supports a motion).
1
party should have anticipated.3 Here, not only should Entergy have anticipated the States arguments, but it in fact did. Entergy concedes that it knew what conditions the State intended to seek before Entergy filed its Motion to Withdraw:
During consultation on the Motion to Withdraw, counsel for the State noted the possibility that the State would ask the Board to impose conditions requiring Entergy to provide substantial additional detail in its disbursement notifications to the NRC, and to provide the State with disclosures regarding all past and future trust fund disbursements despite withdrawal of the LAR, and to seek dismissal with prejudice.4 While Entergy claims it could not have anticipated the specific information and arguments the State raised,5 Entergys Motion to Withdraw did anticipate those arguments.6 Consequently, Entergys reply brief is repetitive and unwarranted.7 The reply brief is also unhelpful to the Board. For instance, Entergy misinterprets the States position when Entergy claims that the State has argued that a decision on contention admissibility, alone, is equivalent to a decision on the merits.8 The State has requested a prejudicial ruling only as to contention 3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), 75 N.R.C. 352, 374 n.138 (2012).
4 Entergys Motion for Leave to File Reply and Reply in Support of Motion to Withdraw License Amendment Request at 5 (Oct. 13, 2015) (Entergy Motion for Reply)
(ADAMS Accession No. ML15286A442).
5 Id.
6 Entergy Motion to Withdraw at 5-6.
7 See, e.g., Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2),
CLI-14-03, 2014 WL 582096, at *2 (2014) (holding that when moving party has not presented genuinely new information in its reply . . . neither necessity nor fairness dictates that its reply should be permitted).
8 Entergy Motion for Reply at 7.
2
admissibility, not the merits. Further, the State has argued that Entergyat the time of moving to withdrawchanged its 30-day notice to provide less information than ever before. Entergys reply brief provides no explanation for that change.9 Far from the compelling circumstances required to file a reply brief,10 this is precisely the situation where a reply brief is unnecessary and unhelpful.11 CONCLUSION For these reasons, the Board should deny Entergys motion to file a reply brief. Further, the additional briefing by Entergy (whether allowed or not) highlights the need for oral argument before the Board rules on this matter.
Respectfully submitted,
/Signed (electronically) by/
Kyle H. Landis-Marinello Counsel for the State of Vermont Assistant Attorney General Environmental Protection Division Vermont Attorney Generals Office 109 State Street Montpelier, VT 05609 (802) 828-1361 kyle.landis-marinello@vermont.gov 9 Entergy Motion for Reply at 11 n.56 (stating only that the difference highlighted by the State is not substantive since Entergy believes all its 30-day notice letters suffice).
10 10 C.F.R. § 2.323(c).
11 Entergys motion also appears to be procedurally flawed. See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-04-825-01-CO, 2004 WL 894578, at *3 (2004) (A request for Licensing Board preapproval to file a reply shall be sought in writing no less than three business days prior to the time the reply will be filed.).
3
Aaron Kisicki Counsel for the State of Vermont Vermont Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620 (802) 828-3785 aaron.kisicki@vermont.gov Dated at Montpelier, Vermont this Fifteenth day of October 2015 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT ) Docket No. 50-271-LA-3 YANKEE, LLC AND ENTERGY )
NUCLEAR OPERATIONS, INC. ) October 15, 2015
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the State of Vermonts Response to Entergys Motion to File Reply Brief have been served upon the Electronic Information Exchange, the NRCs e-filing system, in the above-captioned proceeding, this Fifteenth day of October 2015.
/Signed (electronically) by/
Kyle H. Landis-Marinello Counsel for the State of Vermont Assistant Attorney General Environmental Protection Division Vermont Attorney General's Office 109 State Street Montpelier, VT 05609 (802) 828-1361 kyle.landis-marinello@vermont.gov Dated at Montpelier, Vermont this Fifteenth day of October 2015 5