ML072080303

2007/07/27- Pilgrim - NRC Staff Motion Requesting That Pilgrim Watch'S Answer Opposing NRC Staff Support of Entergy'S Motion to Strike Pilgrim Watch'S Answer to Entergy'S Summary Disposition Motion Not Be Considered by the Board

ML072080303
Person / Time
Site:	Pilgrim
Issue date:	07/27/2007
From:	Uttal S NRC/OGC
To:
S L Uttal, NRC/OGC, 301-415-1582
References
50-293-LR, ASLBP 06-848-02-LR, RAS 13927
Download: ML072080303 (5)

Text

July 27, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) )

ENTERGY NUCLEAR GENERATION CO. )

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR

) (Pilgrim Nuclear Power Station) ) )

) ) ASLBP No. 06-848-02-LR )

NRC STAFF MOTION REQUESTING THAT PILGRIM WATCH'S ANSWER OPPOSING NRC STAFF SUPPORT OF ENTERGY'S MOTION TO STRIKE PILGRIM WATCH'S ANSWER TO ENTERGY'S

SUMMARY

DISPOSITION MOTION NOT BE CONSIDERED BY THE BOARD INTRODUCTION On July 9, 2007, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc., (collectively, Entergy), filed a motion to strike portions of intervenor, Pilgrim Watch's Answer Opposing Entergy's motion for summary disposition of Pilgrim Watch Contention 3.1 On July 17, 2007, Pilgrim Watch filed its answer in opposition to Entergy's motion,2 and on July 19, 2007, the NRC staff (Staff) filed its response in support of Entergy's motion.3 On July 26, 2007, 1 See Entergy's Motion to Strike Portions of Pilgrim Watch's Answer Opposing Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 3 (July 9, 2007) (Motion to Strike).

2 See Pilgrim Watch's Answer Opposing Entergy's Motion to Strike Portions of Pilgrim Watch's Answer Opposing Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 3 (July 17, 2007). 3 See NRC Staff Response in Support of Entergy's Motion to Strike Portions of Pilgrim Watch's Opposition to Motion for Summary Disposition of Contention 3 (Staff Response).

Pilgrim Watch filed an answer to the Staff Response.4 Pursuant to 10 C.F.R. § 2.323 and for the reasons discussed below, the Staff hereby requests that Pilgrim Watch's Answer not be considered by the Atomic Safety and Licensing

Board (Board).

DISCUSSION Pilgrim Watch's Answer is procedurally deficient under 10 C.F.R. § 2.323(c). There is no provision in that regulation, or any other, that permits a responding party to reply to another responding party's response to a motion made pursuant to 10 C.F.R. § 2.323. Parties are permitted to file an answer in support of or in opposition to motions made pursuant to 10 C.F.R. § 2.323. The moving party is given no right to reply without leave of the Board, based on a demonstration of compelling circumstances. No other pleadings are authorized. Unauthorized pleadings, that is, those that are not authorized by the Board and not authorized by the Commission's regulations, are not permitted and should not be considered by the Board in its decision. See, e.g., Yankee Atomic Elec. Co.(Yankee Nuclear Power Station), LBP-98-12, 47 NRC 343, 345-46 (1998) (interpreting 10 C.F.R. § 2.730, the predecessor to 10 C.F.R. §2.323). In this case, Pilgrim Watch has filed an answer to the Staff's response to Entergy's Motion to Strike. Leave of the Board was not sought and an answer to another party's response is not a permissible pleading under the regulations. Therefore, Pilgrim Watch's Answer is unauthorized and procedurally deficient and should not be considered by the Board in its

decision.

4 See Pilgrim Watch's Answer Opposing NRC Staff's Support of Entergy's Motion to Strike Portions of Pilgrim Watch's Answer Opposing Entergy's Motion for Summary Disposition of Contention 3 (Pilgrim Watch's Answer).

CERTIFICATION OF COUNSEL On July 26, 2007, pursuant to 10 C.F.R. § 2.323(b), I e-mailed Mary Lampert, representative of Pilgrim Watch, and David Lewis, counsel for Entergy, in an effort to resolve the issues raised in this motion. Ms. Lampert indicated that Pilgrim Watch opposes this motion. Mr. Lewis indicated that Entergy supports this motion. CONCLUSION Based on the foregoing, the Staff respectfully requests that the Board not consider Pilgrim Watch's Answer in deciding the Motion to Strike filed by Entergy.

Respectfully submitted,

/RA/ Susan L. Uttal Counsel for NRC staff

Dated at Rockville, Maryland

This 27th day of July, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR ) (Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR

) CERTIFICATE OF SERVICE

I hereby certify that copies of the "NRC STAFF MOTION REQUESTING THAT PILGRIM WATCH'S ANSWER OPPOSING NRC STAFF SUPPORT OF ENTERGY'S MOTION TO STRIKE PILGRIM WATCH'S ANSWER TO ENTERGY'S

SUMMARY

DISPOSITION MOTION NOT BE CONSIDERED BY THE BOARD" in the above-captioned proceeding has been served on the following by electronic mail and deposit in the U.S. Mail Service or deposit in the U.S.

Nuclear Regulatory Commission

=s internal mail system, or by deposit in the U.S. mail system or the U.S. Nuclear Regulatory Commission's internal mail system, as indicated by a single asterisk (*), this 27 th day of July 2007.

Richard F. Cole

Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

E-mail: rfc1@nrc.gov Ann Marshall Young, Chair Administrative Judge Atomic Safety and Licensing Board

Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: amy@nrc.gov

Sheila Slocum Hollis Duane Morris LLP

1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Paul B Abramson Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

E-mail: pba@nrc.gov Office of Commission Appellate Adjudication

Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

E-mail: OCAAMail@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff

Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Atomic Safety and Licensing Board*

Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Mary Lampert

Pilgrim Watch 148 Washington Street Duxbury, MA 02332 E-mail: mary.lampert@comcast.net Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency Management Agency

668 Tremont Street

Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Fax: 781-934-6530

Terence A. Burke, Esq.* Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 David R. Lewis, Esq.

Paul A. Gaukler, Esq. Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Town Manager

Town of Plymouth 11 Lincoln St.

Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us

/RA/ _____________________

Susan L. Uttal

Counsel for NRC Staff