ML092370425

Answer of Entergy Nuclear Operations, Inc. to New York State'S Motion for Extension of Time

ML092370425
Person / Time
Site:	Indian Point
Issue date:	08/18/2009
From:	Bessette P Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel, NRC/SECY/RAS
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-274
Download: ML092370425 (8)

Text

RAS

-- DOCKETED USNRC August 18, 2009 (3:30pm)

UNITED STATES OF AMERICA OFFICE OF SECRETARY RULEMAKINGS AND NUCLEAR REGULATORY COMMISSION 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 18, 2009 ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. TO NEW YORK STATE'S MOTION FOR EXTENSION OF TIME I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), Entergy Nuclear Operations, Inc. ("Entergy")

hereby responds to New York State's ("NYS's")."Motion for Extension of Time for the State ofNew York to Seek Summary Disposition on a Fundamental Issue Raised by Contention 16/16A"

("Motion"), filed on August 13, 2009. NYS requested that the Atomic Safety and Licensing Board

("Board") approve a filing date of August 28, 2009 for NYS's planned motion for summary disposition of Contention 16/16A based on its apparent identification of a document on July 27, 2009. NYS correctly indicated in its Motion that Entergy does not oppose the Motion. Although the Board granted the Motion on August 18, 2009, Entergy herein further explains its reasons for not opposing the Motion to ensure a complete and accurate record in this proceeding.

In summary, Entergy believes that the 10-day deadline for motions in 10 C.F.R. § 2.323(a) cited by NYS is inapplicable to motions for summary disposition. Instead, such motions are governed by more specific regulations-namely, 10 C.F.R. § 2.1205(a) in Subpart L proceedings-that set forth deadlines for summary disposition motions. While it is certainly within the Board's discretion to alter the summary disposition deadlines set forth in the Commission's regulations, the Board has not yet done so in this proceeding. Thus, absent a Board order establishing an alternative n3

deadline, any such motion is timely if it is filed more than 45 days before the commencement of the hearing.1 II. DISCUSSION A. Timeliness Requirements for Motions for Summary Disposition Prior to the 2004 amendments to the Commission's Rules of Practice in 10 C.F.R. Part 2, summary disposition motions could be "filed at any time."2 The 2004 amendments to NRC's regulations, however, expressly established a time limit after which a summary disposition cannot be filed. Specifically, 10 C.F.R. § 2.1205(a) now states that, "[u]nless the presiding officer or the Commission directs otherwise, motions for summary disposition may be submitted to the presiding officer by any party no later than forty-five (45) days before the commencement of hearing." 3 Thus, under Section 2.1205, and absent any order from the Board indicating otherwise, any motion for summary disposition is timely so long as it is filed no later than 45 days before the beginning of the hearing.

In its Motion, NYS cites only to 10 C.F.R. § 2.323(a) to support its position, a regulation generally governing motions, which provides that "[a] motion must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.". While NYS believes that Section 2.323(a) establishes a deadline for motions for summary disposition different than the deadline in Section 2.1205(a), NRC regulations contain rules of interpretation to resolve these arguably conflicting deadlines. Namely, 10 C.F.R. § 2.3 provides that "[i]n any conflict between a general rule in subpart C of this part and a special rule in another subpart or other part of this chapter applicable to a particular type of proceeding, the special rule governs." Thus, applying Section 2.3, Entergy does not respond herein to any of NYS's arguments regarding the purported contents of the cited document but will do so in response to any such motion, should NYS choose to go forward with it.

10 C.F.R. § 2.749(a) (2003).

3 10 C.F.R. § 2.1205(a) (emphasis added). This summary disposition deadline governs Subpart L proceedings; however, in Subpart G proceedings, such motions "must be filed no later than twenty (20) days aftIer the close of discovery." 10 C.F.R. § 2.710(a) (emphasis added).

2

the special rule in Subpart L (i.e., Section 2.1205) setting forth deadlines for summary disposition motions governs over the more general rule in Subpart C (i.e., Section 2.323). Accordingly, NYS's request for an extension of time to file a motion for summary disposition by August 28,2009 was unnecessary.

B. The Board Has Not Altered the Generic Deadline for Motions for Summary Disposition Although it is within the Board's authority to alter the deadlines for motions for summary disposition set forth in the Commission's regulations, 4 during the January 14, 2009 Prehearing Conference, the Board indicated that "setting a date for the submission of summary disposition seems to be premature, given the fact that we haveno idea at this point exactly when we will go to hearing, or whether we'll be going in a ýingle hearing, or a bifurcated hearing."'5 The Board explained that while it did not "want to set a specific date . . .prior to the hearing at this point in time," it wanted to notify the parties that it "will set a date for submission of summary disposition motions that is, significantly in advance of the hearing, so that it won't.., interfere with the preparation of the other parties and the Board for the hearing." 6 As the Board made clear, summary disposition motions would be considered timely, so long as they complied with the deadlines set forth in the Board's future order. Given that the Board had not yet issued such an order, there was simply no need for NYS to request an extension of time, as the default deadline for summary disposition motions in Section 2.1205(a) continued to apply.

4 See 10 C.F.R. § 2.329(c)(4) (indicating that prehearing conferences should consider, among other things, the "timing of summary disposition motions under subparts G and L"); id. § 2.332(a) (indicating that the scheduling order may "establish[] limits for the time to file motions").

$ Tr. at 803 (Jan. 14, 2009).

6 Tr. at 804 (emphasis added). See also Memorandum and Order (Summarizing Pre-Hearing Conference) at 6 (Feb. 4, 2009) (unpublished Board order) (indicating that "the Board declined to set a specific date for when summary disposition motions may no longer be filed" and "advised the parties that it would set a date for submission of motions for summary disposition that would be significantly in advance of the hearing").

3

C. Federal Timeliness Requirements for Motions for Summary Judgment This application of the Commission's regulations also is consistent with the Federal Rules of Civil Procedure ("FRCP").7 As with Section 2.1205(a), Rule 56 of the FRCP generally states that a party may move for summary judgment "at any time" and Rule 56(c) requires that a motion for summary judgment be served at least 10 days before the hearing. In reviewing a district court decision rejecting a summary judgment motion as untimely, the U.S. Court of Appeals for the Third Circuit explained when such motions may be found untimely.

Under the policy of Rule 56, movants are entitled to avoid the expense and tribulations of trial if they can prove that there is no triable issue. But if parties have been warned that they must move by a certain time and do not do so, they have waived their right to summary adjudication .... However, where, as here, parties are not given any deadline and do not violate the ten-day limitation of Rule 56(c), they cannot be said to have waived their right or to have been unfair to their opponents. District courts are entitled to broad deference regarding timeliness restrictions, but they are entitled to that deference only if they state those deadlines explicitly.

We therefore hold that, although a district court may impose reasonable time limitations on summary judgment motions for purposes of judicial economy and fairness, it acts with impermissible arbitrariness and in clear excess of its authority where, as here, it dismisses a summary judgment motion as untimely without 8 having previously set deadlines for the filing of such motions.

"Because the Commission's summary disposition rules borrow extensively from Rule 56 of the Federal Rules, it has long been held that federal court decisions interpreting and applying like provisions of Rule 56 are appropriate precedent for the Commission's rules." Safety Light Corp. (Bloomsburg Site Decommissioning &

License Renewal Denials), LBP-95-9, 41 NRC 412, 449 n. 167 (1995) (citing Cleveland Elec. Illuminating Co.

(Perry Nuclear Power Plant, Units I & 2), ALAB-443, 6 NRC 741, 753-54 (1977)).

8 In re Sch. Asbestos Litig., 977 F.2d 764, 794-95 (3d Cir. 1992) (emphasis added).

4

Similarly, absent a Board order establishing some earlier deadline, it would be impermissible to find a motion for summary disposition that complied with the deadline set forth in Section 2.1205(a) untimely. Accordingly, NYS's request for an extension of time was unnecessary.

III. CONCLUSION For the reasons stated above, Entergy did not oppose NYS's Motion for Extension of Time to file a motion for summary disposition on Contention 16/16A based on its apparent identification of a document on July 27, 2009, because the general 10-day deadline for motions is inapplicable to motions for summary disposition.

Respectfully submitted, athryn Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o'neill@morganlewis.com William C. Dennis, Esq.

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 18th day of August 2009 5

A 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 18, 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," dated August 18, 2009, were served this 18th 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: hearingdocket nre.gov)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgm @Inrc.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: rewp~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 anrc.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: gssl 2westchestergov.com)

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

(E-mail: bnml1@nrc.gov)

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

(E-mail: brian.harris cnrc.gov)

(E-mail: andrea.jones(2nrc.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: mannajo(2clearwater.org) New York, NY 10022 (E-mail: drieseloasprlaw.com)

(E-mail: isteinberg@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@nvlawline.com) 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: jlparker(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: rgouldesqogrmail.com) (E-mail: mdelanev@nycedc.corn)

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: phillipv(riverkeeper.org) 236 Tate Avenue (E-mail: dbranciatogriverkeeper.org) Buchanan, NY 10511-1298 (E-mail: vobna)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.Snookgpo.state.ct.us) (E-mail: Mylan.DenersteinDaoag.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.Dean(aoag.state.nv.us)

(E-mail: john.siposaoag.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: i lmatthendgw.dec.state.ny.us)

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

I 1 P'aul M. B3essette, Esq.

Counsel for Entergy Nuclear Operations, Inc.

DB1/63522635