ML091040297
| ML091040297 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/13/2009 |
| From: | Sherwin Turk NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS E-247 | |
| Download: ML091040297 (7) | |
Text
April 13, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 1
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LRI 50-286-LR 1
(Indian Point Nuclear Generating 1 Units 2 and 3) )
NRC STAFF'S ANSWER TO STATE OF NEW YORK'S "MO1-ION TO STRIKE ENTERGY'S MOOTNESS ARGUMENT FROM ITS MARCH 24,2009 ANSWER TO THE STATE OF NEW YORK'S DSElS CON-rENTIONS" Pursuant to 10 C.F.R. 5 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission
("NRC Staff") hereby files its answer to the "Motion To Strike Entergy's Mootness Argument From Its March 24, 2009 Answer To The State Of New York's DSElS Contentions" ("Motion")
filed by the State of New York ("New York" or "State") on March 31, 2009. For the reasons set forth below, the Staff believes that New York's Motion -- although grounded upon a correct view of proper litigation procedures -- should be denied; at the same time, however, the Staff believes that the Atomic Safety and Licensirrg Board ("Board") should disregard the assertions of mootness made by Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant") with respect to New York Contentions 9 and 17, at this time, unless the Board determines to rule sua sponte on the potential mootness of New York Contentions 9 and 17 or the Applicant files a motion to dismiss those contentions as moot.
DISCUSSION On February 27, 2009, the State filed five amended and new contentions' concerning the Staff's Draft Supplement 38 to the "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" ("GEIS"), NUREG-1437 (May 1996), regarding the license renewal application for Indian Point Units 2 and 3.2 On March 24,2009, answers to New York's five DSEIS contentions were filed by Entergy3and the Staff.4 In its response to New York's new and amended environmental contentions, Entergy recited Corr~missionprecedent regarding the potential dismissal of a contention on grounds of mootness, Entergy Response at 11-12, in support of its assertions that New York Contentions 9 and 17, as environmental contentions of omission, have been rendered moot by the issuance of the Staff's Draft SEIS and therefore "should" or "should now be,"5or "must be""ismissed as moot. In response, New York challenges Entergy's assertions, stating that Entergy should have, but did not, file a motion to dismiss Contentions 9 and 17 as moot, and it moves to strike "Entergy's mootness arguments and request from its March 24, 2009 Answer." Motion at 2.
1 "State of New York Contentions Concerning NRC Staff's Draft Supplemental Environmental Impact Statement," dated February 27, 2009 ("New York's DSEIS Contentions").
2 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment,"
NUREG-1437 Supplement 38 (December 2008) ("Draft SEIS" or "DSEIS").
"Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State," filed March 24, 2009 ("Entergy's Response").
4 "NRC Staff's Answer to Amended and New Contentions Filed By the State of New York and Riverkeeper, Inc., Concerning the Draft Supplemental Environmental Impact Statement," filed March 24, 2009 ("Staff Response").
5 See Entergy's Response, at 2, 16, 37, and 66.
6 See Entergy's Response, at 17, 19, 37, and 39.
The Staff shares New York's view that under proper litigation procedures, a request for affirmative relief should be made in the form of a properly titled motion. Indeed, the Staff has recently expressed this view in response to a pleading filed by another intervenor in this proceeding, where that party had sought affirmative action by the Board but its "failure to properly describe the nature of its filing effectively failed to provide proper notice to other parties that a response to its filing might be required.'I7 The Staff believes that principles of fairness require that requests for relief be properly titled, to assure proper notice is provided to parties who may oppose the requested relief. See generally, 10 C.F.R. § 2.323(b); Fed. R. Civ. P.,
Rule 7(b)(l) ("A request for court order must be made by motion").
While a motion for summary disposition or to dismiss a contention as moot may not be strictly required18here, the Applicant's inclusion of mootness arguments in its response to the State's new and amended contentions may limit the ability of other parties to respond to those arguments. To be sure, under 10 C.F.R. § 2.309(h)(2), the State is explicitly afforded an opportunity to reply to the Applicant's Answer, and it therefore has not been prejudiced by the Applicant's inclusion of its mootness arguments in its Response; at the same time, however, the time afforded for the State to reply to the Applicant's Response under 5 2.309(h)(2) (i.e.,
7 days) is shorter than the 10-day period afforded by 10 C.F.R. 9 2.323(c), potentially adversely affecting its ability to reply. Further, although other parties (including the Staff) are afforded the right to respond to motions filed under 10 C.F.R. § 2.323, no opportunity is afforded for such "NRC Staff's Answer to "Riverkeeper, Inc.'s Preservation of Right to Amend Contention TC Flow Accelerated Corrosion Based Upon NRC Staff's Safety Evaluation Report With Open Items," dated March 30, 2008, at 2.
See, e.g., USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444-45 (2006) (a mooted contention may be resolved "as part of the contention admission phase of the proceeding" rather than by the filing of a motion for summary disposition).
parties to reply to arguments contained in a response filed under 10 C.F.R. 5 2.309(h) - and indeed, the filing of such a response is barred by 10 C.F.R. 5 2.309(h)(3).
Notwithstanding this view, the Staff believes that the Applicant's assertions of mootness should not be stricken from its Answer. To the contrary, those arguments provide relevant information that places the State's new and amended contentions in proper context, assuring that the interrelationship of the State's new assertions can be understood and compared to the State's admitted contentions. Rather than striking those arguments, the Staff believes that the Board should disregard the Applicant's assertions that New York Contentions 9 and 17 "should" or "must" be dismissed as moot at this time;gfurther, the Staff believes that if the Applicant wishes to pursue its views regarding the mootness of those contentions, it can and should properly file a motion to dismiss the contentions as moot, in accordance with 10 C.F.R. 5 2.323.
CONCLUSION For the foregoing reasons, the Staff respectfully opposes New York's Motion, but recommends that the Board disregard the Applicant's assertions that New York Contentions 9 and 17 should or must be dismissed as moot at this time.
Respectfully submitted, Sherwin E. Turk Counsel for the NRC Staff Dated at Rockville, Maryland this 13thday of April 2009 Alternatively, the Board may rule sua sponte on the mootness of New York Contentions 9 and 17, and may, if it chooses, solicit the parties' views on that issue.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LlCENSllVG BOARD In the Matter of 1 j
ENTERGY NUCLEAR OPERAI-IONS, INC. ) Docket Nos. 50-2471286-LR
)
(Indian Point Nuclear Generating Units 2 and 3)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO 'STATE OF NEW YORK'S "MO1-ION TO STRIKE ENTERGY'S MOOTNESS ARGUMENT FROM ITS MARCH 24,2009 ANSWER TO THE STATE OF NEW YORK'S DSElS CONTENTIONS,"'
dated April 13, 2009, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, or, as indicated by an asterisk, by deposit in the U.S. Postal Service, with copies by electronic mail this 13'~day of April, 2009:
Lawrence G. McDade, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAIL.resource@nrc.nov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Richard.WardwellCQnrc.gov E-mail: Hearing.Docket@nrc.gov Dr. Kaye D. Lathrop Zachary S. Kahn Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgway, CO 81432 U.S. Nuclear Regulatory Commission E-mail: Kaye.Lathrop@nrc.gov Washington, DC 20555-0001 E-mail: Zachaw.Kahn@nrc.gov
Atomic Safety and Licensing Board Panel Manna Jo Greene*
U.S. Nuclear Regulatory Commission Hudson River Sloop Clearwater, Inc.
Mail Stop: T-3 F23 112 Little Market Street Washington, DC 20555-0001 Poughkeepsie, NY 12601 (Via Internal Mail Only) E-mail: mannaio@clearwater.orq Kathryn M. Sutton, Esq.* William C. Dennis, Esq.*
Paul M. Bessette, Esq. Assistant General Counsel Martin J. O'Neill, Esq. Entergy Nuclear Operations, Inc.
Morgan, Lewis & Bockius, LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, D.C. 20004 E-mail: wdennis@entergv.com E-mail: ksutton@mornanlewis.com E-mail: pbessette~moraanlewis.com E-mail: martin.o'neill@,mor~anlewis.com Michael J. Delaney, Esq.* Mylan L. Denerstein, Esq.*
Vice President - Energy Department Janice A. Dean, Esq.
New York City Economic Development Executive Deputy Attorney General, Corporation (NYCDEC) Social Justice 110 William Street Office of the Attorney General New York, NY 10038 of the State of New York E-mail: mdelanev@.nvcedc.com 120 Broadway, 25'h Floor New York, NY 10271 E-mail: mylan.denerstein@oaq.state.ny.us janice.dean@oaq.state.ny.us Justin D. Pruyne, Esq.* Diane Curran, Esq.*
Assistant County Attorney Harmon, Curran, Spielberg & Eisenberg, LLP Office of the Westchester County Attorney 1726 M Street, NW, Suite 600 148 Martine Avenue, 6'h Floor Washington, D.C. 20036 White Plains, NY 10601 E-mail: dcurran@harmoncurran.com E-mail: jd~3~westchestersov.com Daniel E. O'Neill, Mayor* John J. Sipos, Esq.*
James Seirmarco, M.S. Charlie Donaldson, Esq.
Village of Buchanan Assistants Attorney General Municipal Building New York State Department of Law Buchanan, NY 10511-1298 Environmental Protection Bureau E-mail: vob@bestweb.net The Capitol Albany, NY 12224 E-mail: john.sipos@oag.state.ny.us
Robert Snook, Esq.* Daniel Riesel, Esq.*
Office of the Attorney General Thomas F. Wood, Esq.
State of Connecticut Ms. Jessica Steinberg, J.D.
55 Elm Street Sive, Paget & Riesel, P.C.
P.O. Box 120 460 Park Avenue Hartford, CN 06141-0120 New York, NY 10022 E-mail: robert.snook@po.state.ct.us E-mail: driesel@sprlaw.com jsteinbera@s~rlaw.com Victor Tafur, Esq.* Joan Leary Matthews, Esq.*
Phillip Musegaas, Esq. Senior Attorney for Special Projects Deborah Brancato, Esq. New York State Department of Riverkeeper, Inc. Environmental Conservation 828 South Broadway Office of the General Counsel Tarrytown, NY 10591 625 Broadway, 14'h lo or E-mail: phillip@riverkeeper.orq Albany, NY 12233-1500 vtafur@riverkeeper.orq E-mail: jlmatthe@qw.dec.state.ny.us dbrancato@riverkeeper.org Elise N. Zoli, Esq.* John Louis Parker, Esq.*
Goodwin Procter, LLP Office of General Counsel, Region 3 Exchange Place New York State Department of 53 State Street Environmental conservation Boston, MA 02109 21 South Putt Corners Road E-mail: ezoli@qoodwinprocter.com New Paltz, NY 12561-1620 E-mail: jlparker@qw.dec.state.nv.us Ross H. Gould, Esq.
10 Park Ave, # 5L New York, NY 10016 T: 917-658-7144 E-mail: r~ouldesq@qmail.com Sherwin E. Turk Counsel for NRC Staff