ML092380112
| 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 ))ENTERGY NUCLEAR OPERATIONS, INC. ))(Indian Point Nuclear Generating Units 2 and 3) )Docket Nos. 50-247-LR and 50-286-LR_) 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 circumstances" for the requested extension of time.5 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 simplified procedure 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, the Commission declines to adopt the commenter's suggestion.
9 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."'1 4 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.Entergy Nuclear Operations, Inc.440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com Kathryn .Sutton, Esq.Paul M. Bessette, Esq.MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.Washington, D.C. 20004 Phone: (202) 739-5738 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 ))ENTERGY NUCLEAR OPERATIONS, INC. ))(Indian Point Nuclear Generating Units 2 and 3) ).)Docket Nos. 50-247-LR and 50-286-LR 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
- Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: hearingdocketgnrc.gov)
Administrative Judge Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: rew(nrc.gov)
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 (E-mail: ocaamail@nrc.gov)
Administrative Judge Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgmlgnrc.gov)
Administrative Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel.190 Cedar Lane E.Ridgway, CO 81432 (E-mail: kdl2@nrc.gov)
Zachary S. Kahn, Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxkl (nrc.gov)
Sherwin E. Turk, Esq.Beth N. Mizuno, Esq.David E. Roth, Esq.Brian G. Harris, Esq.Andrea Z. Jones, Esq.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 Environmental Director Hudson River Sloop Clearwater, Inc.112 Little Market Street Poughkeepsie, NY 12601 (E-mail: mannaio@clearwater.org)
Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.303 South Broadway, Suite 222 Tarrytown, NY 10591 (E-mail: sfiller@nylawline.com)
Ross Gould, Member Hudson River Sloop Clearwater, Inc.10 Park Avenue, #5L New York, NY 10016 (E-mail: rgouldesqg(gmail.com)
Phillip Musegaas, Esq.Deborah Brancato, Esq.Riverkeeper, Inc.828 South Broadway Tarrytown, NY 10591 (E-mail: phillip@riverkeeperorg)(E-mail: dbrancato@riverkeeper.org)
Greg Spicer, Esq.Office of the Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 (E-mail: gss 1 (westchestergov.com)
Thomas F. Wood, Esq.Daniel Riesel, Esq.Ms. Jessica Steinberg, J.D.Sive, Paget & Riesel, P.C.460 Park Avenue New York, NY 10022 (E-mail: driesel@sprlaw.com)(E-mail: isteinbergj@sprlaw.com)
John Louis Parker, Esq.Regional Attorney Office of General Counsel, Region 3 NYS Dept. of Environmental Conservation 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: j lparker@gw.dec.state.ny.us)
Michael J. Delaney, V.P. -Energy New York City Economic Development Corp.110 William Street New York, NY 10038 (E-mail: mdelaney@nycedc.com)
Daniel E. O'Neill, Mayor James Siermarco, M.S.Liaison to Indian Point Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 (E-mail: vob@bestweb.net) 2 Robert D. Snook, Esq.Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snookghpo.state.ct.us)
Andrew M. Cuomo, Esq.Attorney General of the State of New York John J. Sipos, Esq.Charlie Donaldson Esq.Assistants Attorney General The Capitol Albany, NY 12224-0341 (E-mail: iohn.sipos(oag.state.ny.us)
Mylan L. Denerstein, Esq.Executive Deputy Attorney General, Social Justice Office of the Attorney General of the State of New York 120 Broadway, 2 5 th Floor New York, New York 10271 (E-mail: Mylan.Denerstein@oag.state.ny.us)
Janice A. Dean Office of the Attorney General of the State of New York Assistant Attorney General 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Deandoag.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