ML071500024
| 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 STAFF'S
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 Staff's Answer in Support of Entergy's Motion for Summary Disposition of New England Coalition Contention 3 (Steam Dryer)" ("Response"). NEC's Response is not authorized under 10 C.F.R. § 2.1205(c) or the Board's November 17, 2006, scheduling order. In addition, the Response is not limited to responding to the Staff's answer in support of Entergy's motion. Rather, it makes arguments that should have been made in NEC's answer to Entergy's motion. Accordingly, the Board should strike NEC's Response.
DISCUSSION On April 19, 2007, Entergy sought summary disposition of NEC Contention 3.
See Entergy's Motion for Summary Disposition of New England Coalition's Contention 3 (Steam Dryer) ("SD Motion"). On May 9, 2007, NEC and the Staff each filed answers to Entergy's SD Motion.
See New England Coalition Inc.'s (NEC) Opposition to Entergy's Motion for Summary Disposition of NEC's Contention 3 (Steam Dryer) ("NEC Answer"); NRC Staff's Answer In Support of Entergy's Motion for Summary Disposition of New England Coalition's 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. NEC's response should be stricken. Neither the rules governing a 10 C.F.R Part 2, Subpart L proceeding nor the Board's 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 Staff's 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 NEC's Answer to Entergy's 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 NEC's 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 General's 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 General's Office. As a courtesy, the Staff has added Mr. Roth to the service list.
CONCLUSION For the reasons discussed above, NEC's 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 STAFF'S
SUMMARY
DISPOSITION ANSWER" of in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRC's 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
Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.gov
Thomas S. Elleman*
Administrative Judge Atomic Safety and Licensing Board 5207 Creedmoor Road, #101
Raleigh, NC 27612
E-mail: elleman@eos.ncsu.edu
Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: rew@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
Sarah Hofmann, Esq.*
Director of Public Advocacy Department of Public Service 112 State Street - Drawer 20
Montpelier, VT 05620-2601
E-mail: sarah.hofmann.state.vt.us
Ronald A. Shems, Esq*
Karen Tyler, Esq. Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com
Marcia Carpentier, Esq.
Atomic Safety and Licensing Board Panel
Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.gov
Jennifer J. Patterson, Esq.*
Peter C.L. Roth, Esq.
Environmental Protection Bureau Office of the Attorney General 33 Capitol Street Concord, New Hampshire 03301 E-mail: jennifer.patterson@doj.nh.gov peter.roth@doj.nh.gov
Anthony Z. Roisman, Esq.* National Legal Scholars Law Firm
84 East Thetford Rd. Lyme, NH 03768 E-mail:
aroisman@nationallegalscholars.com
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