ML092380112

Answer of Entergy Nuclear Operations, Inc. to New York State'S Motion for Extension of Time to Respond to Entergy'S Motion for Summary Disposition of Contention NYS-8

ML092380112
Person / Time
Site:	Indian Point
Issue date:	08/19/2009
From:	Bessette P 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-275
Download: ML092380112 (7)

Text

DOCKETED USNRC August 20 2009 (8:30am)

.UNITED STATES OF AMERICA OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF 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) ))

_) August 19, 2009 ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. TO NEW YORK STATE'S MOTION FOR EXTENSION OF TIME TO RESPOND TO ENTERGY'S MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION NYS-8 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Operations, Inc. ("Entergy") hereby responds to New York State's ("NYS") "Motion for Extension of Time to Respond to Entergy's Summary Disposition" ("Motion"), filed on August 18, 2009.1 NYS seeks an additional 20 days (beyond the 20 days provided by 10 C.F.R. § 2.1205) to respond Entergy's August 14, 2009 motion for summary disposition of Contention NYS-8. 2 NYS also seeks an opportunity-not specifically provided for by Section 2.1205-to respond to the NRC Staff s anticipated answer to Entergy's summary disposition motion.3 In particular, NYS "moves for the establishment of a briefing schedule whereby NRC Staff responds within 20 days of service of Entergy's motion, and the State responds to both Entergy and Staff pleading by September 23, 2 0 0 9 ."4 As set forth below, Entergy opposes NYS's Motion because it contravenes the clear intent of Section 2.1205 and fails to demonstrate "unavoidable and extreme 5

circumstances" for the requested extension of time.

Although it is dated August 14, 2009, NYS's Motion was filed on August 18, 2009.

2 See Motion at 2; see also Applicant's Motion for Summary Disposition of Contention New York State 8 (Electrical Transformers) (Aug. 14, 2009).

3 Motion at 2.

4 Id.

5 The NRC Staff also opposes NYS's Motion. See Motion at 3.

A +W 3r-s 623

II. ARGUMENT A. NYS's Procedural Requests Are Contrary to the Clear Intent of Section 2.1205, Which Establishes a "Simplified Procedure" for Summary Disposition First, the Motion is contrary to the clear intent of 10 C.F.R. § 2.1205, which governs the submittal of summary disposition motions (and responses thereto) in Subpart L proceedings. Section 2.1205(b) provides that, upon the filing of a summary disposition motion, "[a]ny other party may serve an answer supporting or opposing the motion within twenty (20) days after service of the motion." As NYS itself observes, Section 2.1205 "contain[s] no automatic right of reply for the State to arguments that the Staff may raise in its reply." 6 This is not due to any oversight by the Commission. Indeed, it is by design. Specifically, in revising Part 2 in 2004, the Commission emphasized that "Section 2.1205 provides a simplifiedprocedure for summary disposition in informal proceedings."' 7 That "simplified procedure" provides for the concurrent filing of answers by other parties supporting or opposing the summary disposition motion within 20 days and no subsequent replies.

Furthermore, the Commission has made clear that it considers 20 days to be adequate time for preparing a response and, in fact, rejected one commenter's proposal that "[t]he party opposing a motion for summary disposition should have 30 days to respond, not 20."8 The Commission stated:

The commenter provided no basis suggesting that 20 days is insufficient time to respond to a motion for summary disposition. The Commission, in this rulemaking, is seeking to increase the efficiency and effectiveness of the adjudicatory process and thus, is attempting to limit the delays caused by motions for summary disposition. Accordingly, 9 the Commission declines to adopt the commenter's suggestion.

6 Motion at 2.

7 Changes to the Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2228 (Jan. 14, 2004) (emphasis added).

8 Responses to Comments Not Addressed in the Statement of Considerations for Changes to the Adjudicatory Process:

Final Rule, at 51 (Dec. 17, 2003), available at http://www.nrc.gov/about-nrc/regulatory/adjudicatory/source-materials.html. Here, NYS seeks 40 days to prepare its answer.

9 Id. Adherence to this Commission-established, simplified procedure is particularly warranted here, where the admission of multiple contentions may give rise to the submittal of additional summary disposition motions by the parties.

2

In short, NYS's requests to double the time permitted for responding to Entergy's August 14, 2009 motion, and to file a reply to the NRC Staff's anticipated answer thereto, run directly counter to the "simplified procedure" for summary disposition codified in Section 2.1205.

B. NYS Has Not Shown Good Cause for the Requested 20-day Extension of Time 10 C.F.R. § 2.307(a) permits extensions of time only for "good cause" shown. As Entergy has consistently emphasized in responding to NYS's prior repeated requests for extensions of time, the Commission has interpreted "good cause" to require a showing of "unavoidable and extreme circumstances." 0 "The Commission, of course, recognizes that the boards may grant extensions of time under some circumstances, but this should be done only when warranted by unavoidable and extreme circumstances."'" Thus, "[w]hile a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, 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.,"12 NYS's instant Motion falls far short of meeting the "good cause" standard. In support of its requests, NYS simply cites the "previously-scheduled vacation" of one of at least five attorneys of record representing NYS in this proceeding; the preparation of its own summary disposition motion regarding contention NYS-16/NYS-16A;1 3 "deadlines in other matters," including the filing of a brief in 10 See, e.g., Bait. Gas and Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342-43 (1998) (holding that "construction of 'good cause' to require a showing of 'unavoidable and extreme circumstances' constitutes a reasonable means of avoiding undue delay in this important license renewal proceeding"); Combustion Eng'g.(Windsor Site), Commission Order, 2002 WL 1009297, at *1 (N.R.C. May 10, 2002) (denying requested extension and noting that "[e]xtensions of time in our adjudicatory proceedings are ordinarily to be granted 'only when warranted by unavoidable and extreme circumstances"') (quoting Statement of Policy on Conduct ofAdjudicatory Proceedings,CLI-98-12, 48 NRC 18, 21 (1998)); Hydro Res., Inc. (2929 Coors Road Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (quoting CLI-98-12, 48 NRC at 21) ("We caution all parties in this case, however, to pay heed to the guidance in our policy statement that ordinarily only 'unavoidable and extreme circumstances' provide sufficient cause to extend filing deadlines."). See also Entergy's Answer to Joint Motion for Extension of Time to File Amended/New Contentions Based on Draft Safety Evaluation Report (Feb. 10, 2009)

(discussing the "good cause" standard and case law applying that standard).

CLI-98-12, 48 NRC 18 at21 (1998).

12 Statement of Policy on Conduct of Licensing Proceedings,CLI-81-8, 13 NRC 452, 454 (1981) (emphasis added).

13 Notably, NYS's August 28, 2009, deadline for filing its proposed summary disposition is self-imposed. As Entergy has explained, absent other direction from the presiding officer, under Section 2.1205, summary disposition motions may be 3

federal court; and its desire to "prepare for the September 9 ACRS meeting."'14 Plainly, none of these personal and routine professional commitments that affect equally all the parties to the proceeding constitutes "special" or "unavoidable and extreme circumstances," as contemplated by the Commission.

Accordingly, Entergy also opposes NYS's Motion for lack of good cause shown.

III. CONCLUSION For the foregoing reasons, Entergy respectfully submits that NYS's Motion contravenes the clear intent of Section 2.1205 and fails to demonstrate "unavoidable and extreme circumstances" for the requested extension of time. Accordingly, it should be denied.

Respectfully submitted, William C. Dennis, Esq. Kathryn . Sutton, Esq.

Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 Fax: (914) 272-3205 Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 19th day of August 2009 filed "by any party no later than forty-five (45) days before the commencement of hearing." See Answer of Entergy Nuclear Operations, Inc. to New York State's Motion for Extension of Time (Aug. 18, 2009) (quoting 10 C.F.R.

§ 2.1205(a)).

14 Motion at 2.

4

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) ))

.) August 19, 2009 CERTIFICATE OF SERVICE I hereby certify that copies of the "Answer of Entergy Nuclear Operations, Inc. to New York State's Motion for Extension of Time to Respond to Entergy's Motion for Summary Disposition of Contention NYS-8," dated August 19, 2009, were served this 19th day of August, 2009 upon the persons listed below, by first class mail and by e-mail as shown below.

Office of the Secretary ** Administrative Judge Attn: Rulemaking and Adjudications Staff Lawrence G. McDade, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555-0001 Mail Stop: T-3 F23 (E-mail: hearingdocketgnrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgmlgnrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell 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: rew(nrc.gov)

Office of Commission Appellate Adjudication Zachary S. Kahn, Law Clerk U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: ocaamail@nrc.gov) Washington, DC 20555-0001 (E-mail: zxkl (nrc.gov)

Sherwin E. Turk, Esq. Greg Spicer, Esq.

Beth N. Mizuno, Esq. Office of the Westchester County Attorney David E. Roth, Esq. 148 Martine Avenue, 6th Floor Brian G. Harris, Esq. White Plains, NY 10601 Andrea Z. Jones, Esq. (E-mail: gss 1(westchestergov.com)

Office of the General Counsel Mail Stop: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set@nrc.gov)

(E-mail: bnm ld@nrc.gov)

(E-mail: david.roth@nrc.gov)

(E-mail: brian.harrisgnrc.gov)

(E-mail: andrea.iones@nrc.gov)

Manna Jo Greene Thomas F. Wood, Esq.

Environmental Director Daniel Riesel, Esq.

Hudson River Sloop Clearwater, Inc. Ms. Jessica Steinberg, J.D.

112 Little Market Street Sive, Paget & Riesel, P.C.

Poughkeepsie, NY 12601 460 Park Avenue (E-mail: mannaio@clearwater.org) New York, NY 10022 (E-mail: driesel@sprlaw.com)

(E-mail: isteinbergj@sprlaw.com)

Stephen C. Filler, Board Member John Louis Parker, Esq.

Hudson River Sloop Clearwater, Inc. Regional Attorney 303 South Broadway, Suite 222 Office of General Counsel, Region 3 Tarrytown, NY 10591 NYS Dept. of Environmental Conservation (E-mail: sfiller@nylawline.com) 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: j lparker@gw.dec.state.ny.us)

Ross Gould, Member Michael J. Delaney, V.P. - Energy Hudson River Sloop Clearwater, Inc. New York City Economic Development Corp.

10 Park Avenue, #5L 110 William Street New York, NY 10016 New York, NY 10038 (E-mail: rgouldesqg(gmail.com) (E-mail: mdelaney@nycedc.com)

Phillip Musegaas, Esq. Daniel E. O'Neill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.

Riverkeeper, Inc. Liaison to Indian Point 828 South Broadway Village of Buchanan Tarrytown, NY 10591 Municipal Building (E-mail: phillip@riverkeeperorg) 236 Tate Avenue (E-mail: dbrancato@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: vob@bestweb.net) 2

Robert D. Snook, Esq. Mylan L. Denerstein, Esq.

Assistant Attorney General Executive Deputy Attorney General, Office of the Attorney General Social Justice State of Connecticut Office of the Attorney General 55 Elm Street of the State of New York P.O. Box 120 120 Broadway, 2 5th Floor Hartford, CT 06141-0120 New York, New York 10271 (E-mail: Robert.Snookghpo.state.ct.us) (E-mail: Mylan.Denerstein@oag.state.ny.us)

Andrew M. Cuomo, Esq. Janice A. Dean Attorney General of the State of New York Office of the Attorney General John J. Sipos, Esq. of the State of New York Charlie Donaldson Esq. Assistant Attorney General Assistants Attorney General 120 Broadway, 26th Floor The Capitol New York, New York 10271 Albany, NY 12224-0341 (E-mail: Janice.Deandoag.state.ny.us)

(E-mail: iohn.sipos(oag.state.ny.us)

Joan Leary Matthews, Esq.

Senior Attorney for Special Projects Office of the General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, NY 12207 (E-mail: j lmatthe@gw.dec.state.ny.us)

• • Original and 2 copies provided to the Office of the Secretary.

Martin J. O'Neill, Esq.

Counsel for Entergy Nuclear Operations, Inc.

DB 1/63540098.1 3