ML071500024

Vermont Yankee - NRC Staff Motion to Strike NEC Response to NRC Staff'S Summary Disposition Answer

ML071500024
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	05/29/2007
From:	Baty M NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Baty, Mary - OGC - 301-415-1324
References
50-271-LR, ASLBP 06-849-03-LR, FOIA/PA-2007-0313, RAS 13697
Download: ML071500024 (6)

Text

May 29, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

NRC STAFF MOTION TO STRIKE NEC RESPONSE TO NRC STAFFS

SUMMARY

DISPOSITION ANSWER INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), the NRC Staff moves to strike New England Coalition, Inc.s (NEC) Response to NRC Staffs Answer in Support of Entergys Motion for Summary Disposition of New England Coalition Contention 3 (Steam Dryer) (Response).

NECs Response is not authorized under 10 C.F.R. § 2.1205(c) or the Boards November 17, 2006, scheduling order. In addition, the Response is not limited to responding to the Staffs answer in support of Entergys motion. Rather, it makes arguments that should have been made in NECs answer to Entergys motion. Accordingly, the Board should strike NECs Response.

DISCUSSION On April 19, 2007, Entergy sought summary disposition of NEC Contention 3. See Entergys Motion for Summary Disposition of New England Coalitions Contention 3 (Steam Dryer) (SD Motion). On May 9, 2007, NEC and the Staff each filed answers to Entergys SD Motion. See New England Coalition Inc.s (NEC) Opposition to Entergys Motion for Summary Disposition of NECs Contention 3 (Steam Dryer) (NEC Answer); NRC Staffs Answer In Support of Entergys Motion for Summary Disposition of New England Coalitions

Contention 3 (Steam Dryer) (Staff Answer). On May 18, 2007, without first seeking permission from the Board, NEC filed a response to the Staff Answer.

NECs response should be stricken. Neither the rules governing a 10 C.F.R Part 2, Subpart L proceeding nor the Boards initial scheduling order give NEC permission to file a response to the Staff Answer. See 10 C.F.R. § 2.1205(c) (In ruling on motions for summary disposition, the presiding officer shall apply the standards for summary disposition set forth in subpart G of this part.); Initial Scheduling Order (Nov. 17, 2006) (unpublished) at 7. Although the Staff does not dispute that an opponent to a summary disposition motion in a Subpart G proceeding may file a response to new facts and arguments presented in any statement filed in support of a summary disposition motion, see 10 C.F.R. § 2.710(a),1 that provision is not part of the standard for a Board summary disposition ruling in a Subpart L proceeding and was not incorporated by reference into 10 C.F.R. § 2.1205(c) when the Commission revised its Rules of Practice in 2004. See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2228, 2268 (Jan. 14, 2004). The substantive standard for ruling on summary disposition is whether the filings, etc. in the proceeding support a finding that there is no genuine issue of material fact.

10 C.F.R. § 2.710(d)(2). See, e.g., Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations (Vermont Yankee Nuclear Power Station), LBP-06-05, 63 NRC 116, 121-122 (2006)

(the movant must show no genuine as to any material fact and that the movant is entitled to a decision as a matter of law as required by 10 C.F.R. §§ 2.1205(c) and 2.710(d)(2)).

In fact, the revised rule included, for the first time in Subpart L, a provision that expressly provided for summary disposition motions in Subpart L proceedings. Compare 69 Fed. Reg.

at 2268 with 10 C.F.R. § 2.1237 (2003). In so doing, the Commission did not give Subpart L 1

The Staff notes that NEC does not confine its unauthorized response to new facts or arguments in the Staffs Answer, but in large part makes arguments addressing facts presented by Entergy. See Response, at sections A & B. Such arguments should have been included in NECs Answer to Entergys summary disposition motion.

parties any procedural right to respond to answers to summary disposition motions. See 10 C.F.R. § 2.1205; 69 Fed. Reg. at 2268. The Commission incorporated by reference only the substantive standard of § 2.710(d)(2) for Board rulings on motions for summary disposition.

See 69 Fed. Reg. at 2228 (Section 2.1205 provides a simplified procedure for summary disposition in informal proceeding. The standards to be applied in ruling on such motions are those set out in Subpart G.) Accordingly, a party wishing to respond to an answer to a motion for summary disposition in a Subpart L proceeding must obtain permission to respond from the Board via a motion filed pursuant to 10 C.F.R. § 2.323.

Given that NECs Response is not authorized by the rules and orders governing this proceeding, it should be stricken.

Pursuant to 10 C.F.R. § 2.323(b), the Staff has made a sincere effort to contact the other parties in this proceeding to resolve the issue raised in this motion but has not been successful:

NEC opposes this motion; Entergy does not object to this motion; and the Department of Public Service and the State of New Hampshire do not take a position on this motion.2 2

The Staff has been informed that Jennifer J. Patterson no longer works for the New Hampshire Attorney Generals Office. The Office of the Secretary has no record of Ms. Patterson filing a notice of withdrawal. Prior to filing this motion, the undersigned counsel spoke with Peter C.L. Roth of the New Hampshire Attorney Generals Office. As a courtesy, the Staff has added Mr. Roth to the service list.

CONCLUSION For the reasons discussed above, NECs Response should be stricken in its entirety.

Respectfully submitted,

/RA/

Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 29th day of May, 2007

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies NRC STAFF MOTION TO STRIKE NEC RESPONSE TO NRC STAFFS

SUMMARY

DISPOSITION ANSWER of in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 29th day of May, 2007.

Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: hearingdocket@nrc.gov Thomas S. Elleman* Sarah Hofmann, Esq.*

Administrative Judge Director of Public Advocacy Atomic Safety and Licensing Board Department of Public Service 5207 Creedmoor Road, #101 112 State Street - Drawer 20 Raleigh, NC 27612 Montpelier, VT 05620-2601 E-mail: elleman@eos.ncsu.edu E-mail: sarah.hofmann.state.vt.us Richard E. Wardwell Ronald A. Shems, Esq*

Administrative Judge Karen Tyler, Esq.

Atomic Safety and Licensing Board Shems Dunkiel Kassel & Saunders, PLLC U.S. Nuclear Regulatory Commission 91 College Street Washington, DC 20555-0001 Burlington, VT 05401 E-mail: rew@nrc.gov E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com Office of Commission Appellate Adjudication Marcia Carpentier, Esq.

Mail Stop: O-16C1 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: OCAAmail@nrc.gov Washington, DC 20555-0001 E-mail: mxc7@nrc.gov

Jennifer J. Patterson, Esq.* Anthony Z. Roisman, Esq.*

Peter C.L. Roth, Esq. National Legal Scholars Law Firm Environmental Protection Bureau 84 East Thetford Rd.

Office of the Attorney General Lyme, NH 03768 33 Capitol Street E-mail:

Concord, New Hampshire 03301 aroisman@nationallegalscholars.com E-mail: jennifer.patterson@doj.nh.gov peter.roth@doj.nh.gov David R. Lewis, Esq.*

Matias F. Travieso-Diaz Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.co

/RA/

Mary C. Baty Counsel for the NRC Staff