ML082690457
| ML082690457 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 09/16/2008 |
| From: | Bessette P Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-168 | |
| Download: ML082690457 (8) | |
Text
- - DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION September 17 2008 (8:30am)
OFFICE OF SECRETARY BEFORE THE COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
) September 16, 2008 (Indian Point Nuclear Generating Units 2 and 3) )
ENTERGY NUCLEAR OPERATIONS, INC. ANSWER OPPOSING WESTCAN ET AL. MOTION TO STRIKE I. INTRODUCTION On September 3, 2008, Westchester Citizen's Awareness Network ("WestCAN"),
Rockland County Conservation Association, Inc. ("RCCA"), Public Health and Sustainable Energy ("PHASE"), Sierra Club - Atlantic Chapter, and New York State Assemblyman Richard L. Brodsky (collectively, "WestCAN" or "Petitioners") filed "Petitioners' Motion and Reply to Entergy's Opposition to Petitioners' Appeal to the Commission" ("Motion and Reply").' While not discussed in the body of the Motion, WestCAN, in the "Conclusion" section, states that it seeks an Order from the Commission to "strike Entergy's Answer to Petitioners' appeal." 2 Therefore, to the extent that WestCAN's filing may be construed as a Motion to Strike, Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant"), hereby files this Answer opposing WestCAN's Motion, pursuant to 10 C.F.R. §§ 2.1204 and 2.323?. As discussed further below, According to the Certificate of Service, on September 3, 2008, WestCAN filed its Motion and Reply only by first-class mail, thereby adding 3 calendar days to the prescribed period for responding, which makes the due date for this Answer September 16, 2008. See 10 C.F.R: § 2.306(b)(1). Note that WestCAN's Motion and Reply were not received by Entergy's counsel until September 10, 2008.
2 Motion and Reply at 9 (unnumbered).
3 Entergy is responding only to WestCAN's Motion to Strike, and not to its Reply.
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the Commission should deny WestCAN's Motion to Strike because it is procedurally flawed and substantively deficient.
II. DISCUSSION By Order dated July 31, 2008, the Board struck WestCAN's Request for Hearing in this license renewal proceeding. Citing primarily WestCAN's lack of credibility and candor surrounding its February 15 Reply, the Board found that it "cannot conduct a fair, orderly, and efficient proceeding if [it] can not rely on the integrity of the parties, and WestCAN has repeatedly demonstrated that [the Board] can not rely on their attorneys to be credible in their dealings with the Board and the parties." 5 On August 8, 2008, WestCAN filed its Appeal of the Board Order, 67and on August 18, 2008, Entergy filed its Answer Opposing WestCAN's Appeal.7 Subsequently, WestCAN filed its Motion and Reply, in which, on the last page of the pleading, WestCAN indicates that it seeks an Order from the Commission to, inter alia, "strike Endrgy's Answer to Petitioners' appeal." 8 Initially, WestCAN describes its pleading, in part, as a "Motion." 9 Nowhere in its filing, however, does WestCAN describe how it complies with the applicable regulatory requirements in 10 C.F.R. § 2.323. Specifically, 10 C.F.R. § 2.323(b) indicates that a motion must be rejected See Licensing Board Order (Striking WestCAN's Request for Hearing) (July 31, 2008) (unpublished) ("Board Order").
Id. at 12.
6 See WestCAN's Notice of Appeal and accompanying Memorandum of Law (August 8, 2008) ("WestCAN's Appeal").
Entergy Nuclear Operations, Inc. Answer Opposing WestCAN et al. Notice of Appeal (August 18, 2008)
("Entergy's Answer"). As discussed in Entergy's Answer, WestCAN filed its Appeal under both 10 C.F.R.
§§ 2.341(b) and 2.311, contrary to the Board's Order, which indicated that any appeal should be filed under 10 C.F.R. § 2.314(c)(3). Thus, Entergy filed an Answer pursuant to 10 CYF.R. §§ 2.34 1(b)(3) and 2.31 (b). To the extent that WestCAN's filing could be construed as an appeal under 10 C.F.R. § 2.314, Entergy sought leave to reply.
8 Motion and Reply at 9 (unnumbered).
9 Id. at 1.
2
"if it does not include a certification by the attorney... that the movant has made a sincere effort to contact the other parties in the proceeding and resolve the issue(s) raised in the motion', and that the movant's efforts to resolve the issue(s) have been unsuccessful." At no time did WestCAN's counsel contact counsel for Entergy to discuss this Motion, nor does WestCAN make any certification regarding its efforts to resolve'the issues in the Motion. Based on these procedural deficiencies alone, the Commission should deny WestCAN's Motion to Strike Entergy's Answer.
A Moreover, WestCAN's Motion is substantively deficient because it fails to provide a justification for striking Entergy's Answer. A motion to strike is normally used to strike "redundant, immaterial, impertinent, or scandalous matter" contained in a pleading.1° It is not a mechanism for Petitioners to have the last word or if Petitioners simply do not agree with Entergy's arguments regarding its Appeal.
In addition, 10 C.F.R. § 2.323 indicates that a motion must "state with particularity the grounds and the relief sought.""'I In its Motion, however, WestCANg does nothing more than baldy assert that the Commission should strike Entergy's Answer to its Appeal."'12 As indicated above, however, Entergy, in compliance with the applicable regulations, filed its Answer to WestCAN's Appeal pursuant to 10 C.F.R. §§ 2.341(b)(3) and 2.3 11(b), and sought leave to rely under 10 C.F.R. § 2.314, as applicable. Because WestCAN fails to provide any grounds or reason why Entergy's Answer should be striken, the Commission should deny WestCAN's Motion.
'0 Fed. R. Civ. P. 12(o.
10 C.F.R. § 2.J23(b) (emphasis added).
12 Motion and Reply at 9 (unnumbered).
III. CONCLUSION For the foregoing reasons, the Commission should deny WestCAN's Motion to Strike Entergy's Answer.
R pect ily submitted, Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: ksuttoncDamorganlewis.com E-mail: pbessettegmorganlewis.com E-mail: martin.o' neill(2morganlewis.com William C. Dennis, Esq.
Assistant General Counsel ENTERGY NUCLEAR OPERATIONS, INC.
440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdeinis(2entergy.com Dated at Washington, DC COUNSEL FOR this 16th day of September, 2008 ENTERGY NUCLEAR OPERATIONS, INC.
DB 1/62122856 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and 50-286-LR
)) ASLBP No. 07-858-03-LR-BD01 ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
) September 16, 2008 CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy Nuclear Operations, Inc. Answer Opposing WestCAN et al. Motion to Strike," dated September 16, 2008, were served this 16th day of September, 2008 upon the persons listed below, by first class mail and e-mail as shown below.
Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission Lawrence G. McDade, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamaila~nrc. gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgml gnrc.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: kdl2Da nrc.gov)
(E-mail: rewnrc. gov)
Office of the Secretary
- Sherw*in E. Turk, Esq.
Attn: Rulemaking and Adjudications Staff Beth N. Mizuno, Esq.
U.S. Nuclear Regulatory Commission David E. Roth, Esq.
Washington, D.C. 20555-0001 Jessica A. Bielecki, Esq.
(E-mail: hearingdocket@nrc.gov) Marcia J. Simon, 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: bnml @nrc.gov)
(E-mail: david.roth(ainrc.gov)
(E-mail: jessica.bielecki(2anrc.gov)
(E-mail: marcia.simonainrc.gov)
Zachary S. Kahn Nancy Burton Law Clerk 147 Cross Highway Atomic Safety and Licensing Board Panel Redding Ridge, CT 06876 Mail Stop: T-3 F23 (E-mail: NancyBurtonCTgaol.com)
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxk I @nrc.gov)
Manna Jo Greene Justin D. Pruyne, Esq.
Environmental Director Assistant County Attorney, Litigation Bureau Hudson River Sloop Clearwater, Inc. of Counsel to Charlene M. Indelicato, Esq.
112 Little Market Street Westchester County Attorney Poughkeepsie, NY 12601 148 Martine Avenue, 6th Floor (E-mail: mannajo 2iclearwater.orsz) White Plains, NY 10601 (E-mail: jdp3 @westchestergov.com)
Stephen C. Filler, Board Member Diane Curran, Esq.
Hudson River Sloop Clearwater, Inc. Harmon, Curran, Spielberg, & Eisenberg, 303 South Broadway, Suite 222 L.L.P.
Tarrytown, NY 10591 1726 M Street N.W., Suite 600 (E-mail: sfiller(nanylawline.com) Washington, D.C. 20036 (E-mail: dcurran(ahannoncurran.com)
Phillip Musegaas, Esq. Thomas F. Wood, Esq.
Victor M. Tafur, Esq. Daniel Riesel, Esq.
Riverkeeper, Inc. Ms. Jessica Steinberg, J.D.
828 South Broadway Sive, Paget & Riesel, P.C.
Tarrytown, NY 10591 460 Park Avenue (E-mail: phillipairiverkeeper.org) 'New York, NY 10022 (E-mal: vtafurnriverkeeper.org) (E-mail: driesel~isprlaw.com)
(E-mail: isteinberggsprlaw.com) 2
Robert D. Snook, Esq. Susan H. Shapiro, Esq.
Office of the Attorney General 21 Perlman Drive State of Connecticut Spring Valley, NY 10977 Assistant Attorney General (E-mail: Palisadesart(a aol.com 55 Elm Street mbsaourrocklandoffice.com)
P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert. Snook(a,po.state .ct.us)
Andrew M. Cuomo, Esq. Richard L. Brodsky Attorney General of the State of New York 5 West Main St.
John J. Sipos, Esq. Elmsford, NY 10523 Charlie Donaldson Esq. (E-mail: brodskrgassembly. state.ny. us Assistants Attorney General richardbrodsky(,msn.com)
The Capitol Albany, NY 12224-0341 (E-mail: iohn.siposgoag.state.ny.us)
Joan Leary Matthews, Esq. Janice A. Dean Senior Attorney for Special Projects Office of the Attorney General Office of the General Counsel of the State of New York New York State Department of .Assistant Attorney General Environmental Conservation 120 Broadway, 26th Floor 625 Broadway, 14th Floor New York, New York 10271 Albany, NY 12207 (E-mail: Janice.Dean(Zioag. state.nvy.us)
(E-mail: j Imattheagw.dec.state.ny.us)
Sarah L. Wagner, Esq. John Louis Parker; Esq.
Legislative Office Building, Room 422 Regional Attorney Albany, New York 12248 Office of General Counsel, Region 3 (E-mail: sarahwagneresqggmail.com) NYS Dept. of Environmental Conservation 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: jlparker(,gw.dec.state.ny.us)
J
Mylan L. Denerstein, Esq. Marcia Carpentier, Law Clerk Executive Deputy Attorney General, Atomic Safety and Licensing Board Panel Social Justice U.S. Nuclear Regulatory Commission Office of the Attorney General Mailstop 3 E2B of the State of New York Two White Flint North 120 Broadway, 2 5 th Floor 11545 Rockville Pike New York, New York 10271 Rockville, MD 20852-2738 (E-mail: Mylan.Denersteingoag.state.ny.us) (E-mail: Marcia.Carpentier(2nrc. gov)
- Original and 2 copies Martin J. O'Neill, Esq.
Counsel for Entergy Nuclear Operations, Inc.
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