ML083520523

Entergy'S Response in Opposition to New England Coalition'S Motion to Extend Time to File Petition for Review

ML083520523
Person / Time
Site:	Vermont Yankee
Issue date:	12/10/2008
From:	Bob Nelson Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-370
Download: ML083520523 (8)

Text

ZAk& H-376 DOCKETED USNRC December 10, 2008 (4:25pm)

OFFICE OF SECRETARY December 10, 2008 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

.In the Matter of )

)

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271 -LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

ENTERGY'S RESPONSE IN OPPOSITION TO NEW ENGLAND COALITION'S MOTION TO EXTEND TIME TO FILE PETITION FOR REVIEW Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Vermont Yankee, LLC and Entergy, Nuclear Operations, Inc. (collectively "Entergy") respond in opposition to the "New England Coalition, Inc.'s (NEC) Motion to Extend Time to File Petition for Review," dated December 8,

.2008 ("NEC Motion for Extension of Time"). The NEC Motion for Extension of Time requests that the U.S. Nuclear Regulatory Commission ("Comnission") extend the deadline for NEC to file a petition for review of the Atomic Safety and Licensing Board ("Board")'s Partial Initial Decision ("Decision")1 from December 9, 2008, to'"15 days after the date the [Board] issues its decision of [sic] NEC's pending motion for reconsideration." NEC Motion for Extension of Time at 1. NEC's Motion for Extension of Time should be denied because it is not supported by good cause (see 10 C.F.R. § 2.307), is inconsistent with the Commission's regulations at 10 C.F.R. §§ 2.341 (b)(1) and (6), and would cause an unwarranted and potentially significant delay in the completion of this proceeding.

Partial Initial Decision (Ruling on Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC __ (Nov. 24, 2008) (slip op.) ("LBP-08-25").

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I. THE NEC MOTION TO DELAY IS INCONSISTENT WITH THE COMMISSION'S REGULATIONS In-response to an NEC motion, the Board granted NEC until December 15, 2008 to file any motion for reconsideration of the Board's decision in LBP-08-25. Order (Granting NEC's Motion to Extend Time) (Dec. 4, 2008) ("Dec. 4 Order"). Without the extension, any motion for reconsideration would have been due on December-4, 2008. NEC's primary justification for seeking to delay its filing of a petition forreview of LBP-08-25 is that '.'[t]he ASLB Order-of December 4, 2008 . has moved the deadline for filing a Motion for Reconsideration past the deadline for a Petition for review," (NEC Motion to Extend Time at3) does not support the extension sought. Under the Commission's policy on the conduct of adjudicatory proceedings, applicants are entitled to a prompt resolution of disputes concerning their applications.

Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 19 (1998). The deadlines established for petitions for review should not be set, aside without good cause. Both this policy and the requirements of 10 C.F.R. § 3.41(b)(1) would be negated by a request, such as NEC has made here, for a Licensing Board to extend the time for filing a motion for reconsideration to a date later than that prescribed for filing a petition for review with 2

the Commission.

The Board's action in granting NEC an extension of time in which to file a motion for reconsideration should not result in altering the time in which a petition for review must be filed under 10 C.F.R. § 3.41(b)(1). Such a result wouldnegate the specific deadlines for filing notices of appeal set forth in that regulation, and would allow a Board to effectively grant an extension 2 Potentially, the Commission's consideration of a petition for review, or a portion thereof, may be delayed until after a Board has ruled on a timely filed motion for reconsideration where it is filed contemporaneously with a petition for review. See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI 1, 53 NRC 1, 3 (2001), c International Uranium Corp. (White Mesa Uranium Mill), CLI-97-9, 46 NRC 23, 24-25 (1997). However, the petition for review must still be filed within the time prescribed by 10 C.F.R. §

ý2.341(b)(1).

2

of the period.in which a party must, filea petition for review with the Commission, an authority that the Board does not have. See Duquesne Light Co. (Beaver Valley Power Station, Unit 1),

ALAB-310, 3 NRC 33 (1976). Only the Commission may vary the time for taking appeals.

Consolidated Edison Co. (Indian Point Station, Unit 3), ALAB-281, 2 NRC 6 (1975).

The filing of a petition.for review, even if there is a pending motion for reconsideration, is required by l0 C.F.R. § 3.41(b)(i) with respect to any issues not already pending in the motion for reconsideration. See 10 C.F.R. § 3.41(b)(6). There is no motion for reconsideration pending before the Board at this time, and one - if filed - might not be filed until December 15, 2008.

See Dec. 4 Order. Therefore, 10 C.F.R. § 3.41(b)(1) requires a petition for review to be timely filed identifying all issues on which NEC will seek Commission review by December 9, 2008.

Such identification is implemented by having timely-filed motions for reconsideration and petitions.for review filed simultaneously. See Private Fuel Storage, L.L.C., 53 NRC at 3. Here NEC has not disclosed the issues on which it may seek reconsideration of the Board's decision in LBP-08-25 or those as to which it seeks Commission review. The door would be open, therefore, for NEC to pick and choose which issues it would have the Board re-examine on a motion for reconsideration (subject to a subsequent petition for Commission review) and which it might keep in reserve to potentially raise at a later time solely in a petition for review with the Commission. That is clearly contrary to the intent of 10 C.F.R. 2.341.

II. THERE IS NO GOOD CAUSE FOR NEC'S MOTION TO DELAY Good cause must be shown in order to extend the time limits set forth in the Commission's regulations. 10 C.F.R. § 2.307(a). NEC has not demonstrated good cause.for the delay it seeks in filing its petition for review with the Commission. NEC claims that being required to file a timely petition for review "would result in negating the Commission's long-standing policy of deference to the judgment of the ASLB." NEC Motion for Extension of Time

.3

at 3. However, there is no judgment of the Board in this case to which the Commission would pay deference or for which a petition for review should be delayed. The judgment of the Board is contained in LBP-08-25, whichhas not been controverted by NEC. NEC itself concedes that the presumption of correctness of a licensing board's decision must be given weight by the Commission as a reviewing body. Id. at 3, n.2. However, it is the timely filing of a petition for review of LBP-08-25 that NEC seeks to avoid with its Motion for Extension of Time.

Indeed, no good cause has been shown by NEC either for the delay in filing a motion neither for reconsideration with the Board below nor for the additional delay that NEC now, seeks from the Commission in filing a petition for review. NEC's primary justification for the delay it sought from the Board on a motion for reconsideration was that NEC was switching counsel and needed time "for transfer of the case files and for pro-se counsel to come up to speed." Such an alleged justification provides no good cause for an extension either below or here. The switch in NEC counsel was a unilateral decision by the intervenor and such a switch could have been planned and implemented in the five months since the close of the evidentiary hearing. Moreover, NEC has now revealed that its "pro se counsel" in this proceeding is Mr.

Raymond Shadis, who attended the license renewal hearings, listened in on several pre-hearing conferences during the course of the proceeding, and made a number of statements to the press commenting on the licensing hearing and its results. He is, therefore, intimately familiar with the proceeding and his need to "come up to speed" was minimal, if any. 3 For the same reason, Mr.

Shadis should have been able to identify, in the fifteen days since the issuance of LBP-08-25, 3 It is well established that a pro se participant in an NRC licensing proceeding has to meet the same schedule requirements as other parties: "The right of participation accorded pro se representatives carries with it the corresponding responsibilities to comply with and be bound by the same agency procedures as all other parties, even where a party is hampered by limited resources?' Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 N.R.C. 1193, 1247 (1984) 4

those issues he believes warrant the filing of a petition for review of that decision.; Thus, NEC lacks good, cause for the extension of time it seeks.

III. THE DELAY SOUGHT BY NEC WOULD BE PREJUDICIAL TO ENTERGY NEC alleges that the delay it seeks in filing a petition for review with the Commission will not be prejudicial to Entergy because the Board's decision in LBP-08-25 "has ordered that Entergy perform certain metal fatigue analyses and the Partial Initial Decision also set a 45 day review period following their performance"` NEC Motion for Extension of Time at.3. However, the Board's schedule for ruling on NEC's motion for reconsideration, should NEC.file such a motion by December 15, 2008, is indefinite and could extend past the time for the performance of the cited analyses. 4 At any rate, whatever the schedule of the portions of the case for which.

-additional analyses are pending, it would be prejudicial for Entergy not to have a final adjudication of the remainder of the issues in this case .in a timely manner.

In sum, rather than injecting a month or more into the completion of this proceeding, if NEC believes that there are errors in the Board's findings, -itshould pursue review in accordance with the timeframes established by the NRC rules. The orderly conduct of this proceeding, and an applicant's right to a timely completion of an adjudication, demand nothing less.

Indeed, the Board's order granting NEC's delay in filing its motion for reconsideration until December 15,,2008 also grants an extension to the other parties until January 5, 2009, to file responses to anymotion for reconsideration that NEC may file.

5

CONCLUSION For all of the above stated reasons, the NEC Motion to Extend Time should be denied.

Matias . ravieso iaz Blake.J. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1122 Tel. (202) 663-8000 Counsel for Entergy Dated: December 10, 2008 6

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271 -LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Entergy's Response in Opposition to New England Coalition's Motion to Extend Time to File Petition for Review" were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 10th day of December, 2008.

Hon. Dale E. Klein Hon. Kristine L. Svinicki Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Hon. Peter B. Lyons Hon. Gregory B. Jaczko Commissioner Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

-*Administrative Judge *Administrative Judge Alex S. Karlin, Esq., Chairman Dr. Richard E. Wardwell Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 ask2(@nrc.gov rew@nrc.gov

• Administrative Judge. *Secretary Dr. William H. Reed Att'n: Rulemakings and Adjudications Staff 1819 Edgewood Lane Mail Stop 0-16 Cl Charlottesville, VA.22902 U.S. Nuclear Regulatory Commission whrcville(rembarqmail.com Washington, DC 20555-0001 secy@nrc.gov, hearingdocket@-nrc. gov

• Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop Tý3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail(Nnrc. gov

• Lloyd Subin, Esq. *Sarah Hofiann, Esq.

• Mary Baty, Esq. Director of Public Advocacy

• Jessica A. Bielecki, Esq. Department of Public Service

• Susan L. Uttal, Esq. 112 State Street -Drawer 20 Office of the General Counsel Montpelier, VT 05620-2601 Mail Stop O-15-D21 Sarah.hofmanna~state.vt.us U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 LBS3@,nrc.gov; mcbl(@nrc.gov; jessica.bielecki@nrc.gov; susan.uttal(nrc.;gov

• Anthony Z. Roisman, Esq. *Ronald A. Shems, Esq.

National Legal Scholars Law Firm *Karen Tyler, Esq.

84 East Thetford Road Shems, Dunkiel, Kassel & Saunders, PLLC Lyme, NH 03768 9 College Street aroisman~al)nationallegalscholars.com Burlington, VT 05401 rshelns(dsdkslaw.com ktylergsdkslaw.com

• Peter L. Roth, Esq. *Zachary Kahn, Esq.

Office of the New Hampshire Attorney General Atomic Safety and Licensing Board Panel 33 Capitol Street Mail Stop T-3 F23 Concord, NH 03301 U.S. Nuclear Regulatory Commission Peternroth(adoj.nh.gov Washington, DC 20555-0001 zacharv.kahnm@nrc. gov

• Matthew Brock, Esq.

Assistant Attorney General *Raymond Shadis Office of the Attorney General .37 Shadis Road One Ashburton Place, 18th Floor PO Box 98 Boston, MA 02108 Edgecomb, ME 04556 Matthew.Brock@state.ma.us shadis@prexar.com Bi e .N en 2