ML15072A462
| ML15072A462 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 03/13/2015 |
| From: | Bessette P M, Kuyler R P, Raimo S H Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-271-LA-2, RAS 27368, TBD | |
| Download: ML15072A462 (12) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) Docket No. 50-271-LA-2
)
ENTERGY NUCLEAR VERMONT YANKEE, )
LLC, and ENTERGY NUCLEAR )
OPERATIONS, INC. ) March 13, 2015
)
(Vermont Yankee Nuclear Power Station) )
) ENTERGY'S ANSWER OPPOSING STATE OF VERMONT'S MOTION TO STAY THE LICENSE AMENDMENT PROCEEDING PENDING COMMISSION RECONSIDERATION Pursuant to 10 C.F.R. §§ 2.323(c) and 2.342(d), Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy") submit this Answer opposing the State of Vermont's ("State") Motion to Stay the License Amendment Proceeding Pending Commission Reconsideration, re-filed late this afternoon ("Motion").
1 The Motion continues the State's pattern of flouting the NRC Rules of Practice in 10 C.F.R. Part 2. As set forth below, the Board should summarily deny the State's Motion on numerous grounds.
2 BACKGROUND Under 10 C.F.R. § 2.309(i)(2), the State's re ply to Entergy and the NRC Staff's Answers 3 opposing the State's Petition to Intervene 4 in this proceeding is due today. The State's Motion
1 Earlier today, the Atomic Safety and Licensing Board ("Board") rejected an earlier version of the Motion, filed at 11:41 pm yesterday, March 12, 2015, because the State failed to certify that it had made a sincere effort to consult with the parties as required under 10 C.F.R. § 2.323(b).
See Licensing Board Order (Denying Motion to Stay the Proceeding) (Mar. 13, 2015) (unpublished). The Motion was accompanied by a "Notice of Refiled Motion" and a "Certificate of Consultation."
2 Under 10 C.F.R. §§ 2.323(c) and 2.342(d), Entergy's response to the Motion is due on Monday, March 23. Entergy is voluntarily submitting this answer in opposition to the Motion in advance of that deadline.
3 Entergy's Answer Opposing Petition for Leave to Intervene and Hearing Request (Mar. 6, 2015); NRC Staff's Answer to State of Vermont's Petition for Leave to Intervene and Hearing Request (Mar. 6, 2015).
2seeks to stay this proceeding pending a Commission ruling on the State's "Petition for Reconsideration of Commission Decision Approving Entergy's Exemption Requests" ("Petition for Reconsideration") filed at 10:52 p.m. last night.
5 Alternatively, the State requests a seven day extension of time to file its reply. The Motion asserts that this proceeding is directly related to the emergency planning exemptions addressed in the Petition for Reconsideration, and that given the Commission's recent approval of the exemptions, the State "cannot reasonably be expected to formulate responses
[to Entergy and the Staff's Answ ers] that are dependent on the now-unknown disposition of the NRC exemption approval it now contests."
6 ARGUMENT As a threshold matter, the Board should yet again summarily deny the Motion because the State has continued to fail to engage in a si ncere consultation with En tergy or the NRC Staff, as required by 10 C.F.R. § 2.323(b). Requests for Commission or licensing board action or permission are treated as motions under the NRC's Rules of Practice.
7 Under 10 C.F.R. § 2.323(b), a motion "
must be rejected if it does not include a certi fication by the attorney or representative of the moving party that the movant has made a si ncere effort to contact 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." Emphasis added.
4 State of Vermont's Petition for Leave to Intervene and Hearing Request (Feb. 9, 2015).
5 State of Vermont's Petition for Reconsideration of Commission Decision Approving Entergy's Exemption Requests (Mar. 12, 2015).
6 Motion at 2.
7 See, e.g., FirstEnergy Nuclear Operating Co. (Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1), CLI-06-2, 63 NRC 9, 18 n.36 (2006) (denying petitioners' "Request for Clarification" as an untimely motion for clarification under 10 C.F.R. § 2.323(a)); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 237 (2002) (treating petitioners' request to suspend proceeding as a general motion under 10 C.F.R. § 2.730 (predecessor to § 2.323)).
3 Following the Board's summary rejection of the original motion for failure to engage in the requisite consultation under Section 2.323(b) earli er today, Mr. Landis-Mari nello, an attorney for the State, contacted Entergy and the NRC Staff at 12:05 p.m. this afternoon with an e-mail stating: "Will you and a representative from Entergy please respond with a reply-all to this email by 2pm today whether you consent to the State's Motion to Stay?"
8 Entergy and the NRC Staff responded by the State's requested deadline.
9 At 2:19 p.m., Mr. Landis-Marinello called Entergy counsel to further discuss the Motion.
10 Despite the call, this is not a sincere consultation at this point in time. The State's reply is due today. As one Board has explained, "consultations should not be initiated at the last minute, but instead commenced sufficiently in advance to provide enough time for the possible resolution of the matter or issues in question."
11 Numerous Boards have rejected motions for failure to adequately consult.
12 This Board should do the same.
13 8 See E-mail from R. Kuyler to K. Landis-Marinello, RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration (Mar. 13, 2015) (showing a string of e-mails between the parties) (Attached to this Answer). Mr. Landis-Marinello has not filed a notice of appearance in this matter. Section 2.323(b) requires the attorney or representative of a party to certify consultation. The Certificate of Consultation, signed by counsel for the State, describes Mr. Landis-Marinello as "my representative."
9 See E-mail from R. Kuyler to K. Landis-Marinello, RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration (Mar. 13, 2015).
10 The State sent a second e-mail, requesting yet another immediate response. Again, Entergy complied with the State's demand.
See id. The State repeatedly cites "fairness" as a basis for its Motion.
See Motion at 2. Entergy notes that this claim of fairness is in tension with the State's actions in filing its eleventh-hour motion and demanding multiple, short-turnaround responses to consultation requests.
11 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Denying New York's Motion in Limine and Holding Riverkeeper's Motion in Limine in Abeyance) at 2 (unpublished) (June 1, 2012), available at ADAMS Accession No. ML12153A173.
12 See, e.g.
, Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-08-29, 68 NRC 899, 902 n.12 (2008) (rejecting a motion for failing to comply with consultation requirements of Section 2.323(b)); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-12-27, 76 NRC 583, 601-02 (2012) (rejecting motions for failure to properly consult and provide the required certification); FirstEnergy Nuclear Operating Co.(Davis-Besse Nuclear Power Station, Unit 1), LBP-11-34, 74 NRC 685, 695 (2011) (rejecting a motion and proposed contention as "hopelessly flawed" for failure to consult with the applicant or provide the requisite certification, and concluding that the motion "can therefore be rejected on this ground alone").
4 In addition to the consultation deficiency, the Motion is further saddled with several substantive fatal flaws. First, the request for a stay, pursuant to 10 C.F.R. § 2.342, must be denied because there is no decision or action of the presiding officer that is potentially subject to a stay request. Under Section 2.342, a party may seek a stay of a decision or action of a presiding officer pending the filing a nd resolution of a petition for review.
14 The Board has not issued any decision in this procee ding that is subject to this regulatory provision, so the rules governing stays cannot be relied upon as the ba sis for the relief re quested by the State. Second, the Motion must be denied because it neither addresses nor satisfies the standards for seeking a stay in Section 2.342(e).
The State's failure to even address the stay standards is reason enough to deny its Motion.
15 In determining whether to grant or deny an application for a stay under 10 C.F.R. § 2.342, the Commission considers various factors.
16 Of these factors, irreparable injury is the most important factor.
17 Without a showing of irreparable injury, the moving party must make an overwhelming showing of likely success on the merits.
18
13 Despite its familiarity with the requirements of Section 2.323(b) from another proceeding, and the Board's explicit direction earlier today to comply with that regulation in this proceeding, the State continues to avoid meaningful consultation.
See Entergy's Answer Opposing the State of Vermont's Submission of Additional Information and Request to File Supplemental Briefing Addressing New Information and Argument Raised at Oral Argument at 4 (Dec. 19, 2014), available at ADAMS Accession No. ML14353A346; NRC Staff Answer to State of Vermont's Submission of Additional Information and Request to File Supplemental Briefing Addressing New Information and Argument Raised at Oral Argument at 5 (Dec. 18, 2014), available at ADAMS Accession No. ML14352A208. Should this pattern continue, the Board is authorized to impose sanctions.
See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 643-44 (2004).
14 See Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (2011);
see also 10 C.F.R. § 2.342(a).
15 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 399 (2008). 16 Those factors are: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies. 10 C.F.R. § 2.342(e).
17 S. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 and 4), CLI-12-11, 75 NRC 523, 529 (2012).
18 See id. The Petition for Reconsideration itself is entirely baseless, as Entergy's exemption request is not the subject of an adjudicatory proceeding under the Rules of Practice in 10 C.F.R. Part 2. Thus, there is no 5The State has made no showing on any of the stay f actors, much less has it shown either that it is facing imminent, irreparable harm or that its Petition for Reconsideration is overwhelmingly likely to be successful.
19 As such, the request to stay this proceeding lacks any basis whatsoever and must be denied.
Third, with respect to the alternative request in the Motion for a se ven-day extension of time, the State has failed to show the requi site "unavoidable and extreme circumstances" necessary to support an extension of filing deadlines.
20 The State cites no case law in support of its request to extend the deadlines for filing its reply, and does not explain why it meets the appropriate legal standards. On the contrary, the only basis for the requested extension is the State's own decision to file the Petition for Reconsideration, and th e resulting purported uncertainty it creates for the State.
21 There is no unavoidable or extreme circumstance that even arguably warrants an extension of the State's imminent deadline for its reply (
i.e., later today).
22
showing of any likelihood of success on the merits, let alone an overwhelming likelihood. Entergy reserves its right to file a response to the Petition for Reconsideration at the appropriate time.
19 Even if the exemption request or the license amendment were at the point of issuance, there would still be no irreparable injury because either or both can be set aside after issuance. See Oyster Creek, CLI-08-13, 67 NRC at 399-400.
20 See Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 & 2), CLI-10-26, 72 NRC 474, 476 (2010); Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (quoting Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998)) ("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.").
21 See Motion at 2 (The State cannot reasonably be expected to formulate responses [to Entergy and the Staff's Answers] that are dependent on the now-unknown disposition of the NRC exemption approval it now contests.").
22 Cf. Bellefonte, CLI-10-26, 72 NRC at 476 ("other obligations" do not justify the extension of filing deadlines).
6CONCLUSION Together, these deficiencies necessitate the summary rejection of the State's Motion. For the foregoing reasons, Entergy respectfully re quests that the Board deny the Motion in its entirety.
Respectfully submitted, Signed (electronically) by Raphael P. Kuyler Susan H. Raimo, Esq.
Entergy Services, Inc.
101 Constitution Avenue, N.W.
Washington, D.C. 20001
Phone: (202) 530-7330
Fax: (202) 530-7350 E-mail: sraimo@entergy.com Paul M. Bessette, Esq.
Raphael P. Kuyler, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Phone: (202) 739-5796
Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com
Counsel for Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.
Dated in Washington, DC this 13th day of March 2015
Attachment 1:
E-mail from R. Kuyler to K. Landis-Marinello, RE: NRC Docket No.
50-271 - Vermont's Petition for Reconsideration (Mar. 13, 2015) 1Kuyler, Raphael Philip From:Kuyler, Raphael Philip Sent:Friday, March 13, 2015 4:38 PM To:'Landis-Marinello, Kyle' Cc:Mizuno, Beth; Young, Mitzi; sraimo@entergy
.com; Bessette, Paul M.; Wachutka, Jeremy; Kisicki, Aaron
Subject:
RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration Kyle, If the State intends to file its motion today, then it should represent Entergy's position as stated in my first e-mail: "Entergy does not agree that the State has engaged in a sincere effort to resolve the issues raised in its motion, as required. Entergy objects to the proposed motion and reserves its right to respond."
- Regards, Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: +1.202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Rhonda D. Rollerson l 202.739.5157 l rrollerson@morganlewis.com From: Landis-Marinello, Kyle [1]
Sent: Friday, March 13, 2015 3:28 PM To: Kuyler, Raphael Philip Cc: Mizuno, Beth; Young, Mitzi; sraimo@entergy.com; Bessette, Paul M.; Wachutka, Jeremy; Kisicki, Aaron
Subject:
RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration
Dear Ray,
Thank you for speaking with me this afternoon. The State of Vermont's motion (attached to this email) seeks the following relief:
(1) a stay of the ASLB proceeding until the Commission rules on the State's motion for reconsideration, and (2) an ability to reply in the ASLB proceeding within 7 days of the Commission's ruling or alternatively within 7 days of the ASLB's denial of the motion to stay.
After email and personal phone consultation with NRC Staff and Entergy, both parties have informed the State that they oppose these procedural requests. Ray, in light of our half-hour discussion this afternoon, and the above clarification of exactly what relief we are seeking, would you like to change Entergy's response in any way, or is it still Entergy's view that the State has not engaged in a sincere effort to resolve the matters? Would it be possible to change that statement to reflect the further discussions we have had on this matter? Please let us know by 5:00pm. Thank you.
Best, Kyle From: Kuyler, Raphael Philip [mailto:rkuyler@morganlewis.com
] Sent: Friday, March 13, 2015 1:44 PM To: Wachutka, Jeremy; Landis-Marinello, Kyle; Kisicki, Aaron Cc: Mizuno, Beth; Young, Mitzi; sraimo@entergy.com; Bessette, Paul M.
Subject:
RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration 2
Dear Mr. Landis-Marinello,
Thank you for this e-mail. In your motion to stay, please represent Entergy's position as follows: "Entergy does not agree that the State has engaged in a sincere effort to resolve the issues raised in its motion, as required. Entergy objects to the proposed motion and reserves its right to respond."
- Regards, Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: +1.202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Rhonda D. Rollerson l 202.739.5157 l rrollerson@morganlewis.com From: Wachutka, Jeremy [mailto:Jeremy.Wachutka@nrc.gov
] Sent: Friday, March 13, 2015 1:32 PM To: Landis-Marinello, Kyle; Kisicki, Aaron Cc: Mizuno, Beth; Young, Mitzi; sraimo@entergy.com; Bessette, Paul M.; Kuyler, Raphael Philip
Subject:
RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration Mr. Landis-Marinello:
The NRC Staff has reviewed both Vermont's Petition for Reconsideration and Vermont's Motion to Stay that was denied for lack of consultation.
The NRC Staff would oppose the filing by Vermont today of another Motion to Stay similar to its previous Motion to Stay.
The NRC Staff asks that if Vermont does file such a Motion to Stay today, it represent the Staff's position as follows:
"The NRC Staff objects to the Motion to Stay. The Staff believes that there is no reason why Vermont could not have made the arguments advanced in its Petition for Reconsideration as part of a timely reply to the Staff's and Entergy's Answers to Vermont's Petition. Additionally, the Staff believes that attempting to consult on the day that a motion is to be filed is not effective consultation. For these same reasons, the Staff also objects to a 7 day extension of time for Vermont to file its reply. The Staff is of the opinion that the Board should proceed to decide Vermont's Petition without delay."
Jeremy L. Wachutka Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 415-1571 jeremy.wachutka@nrc.gov This message may contain confidential attorney-client and/or attorney work product information. Do not release unless the Comm ission determines otherwise.
From: Landis-Marinello, Kyle [mailto:kyle.landis-marinello@state.vt.us
] Sent: Friday, March 13, 2015 12:06 PM To: Wachutka, Jeremy; Kisicki, Aaron Cc: Mizuno, Beth; Young, Mitzi; sraimo@entergy.com
- pbessette@morganlewis.com
- rkuyler@morganlewis.com
Subject:
RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration
3
Dear counsel for NRC Staff and Entergy:
Jeremy, thank you for your note. Aaron is out-of-pocket most of today. Will you and a representative from Entergy please respond with a reply-all to this email by 2pm today whether you consent to the State's Motion to Stay?
Thank you for your attention to this matter.
Best, Kyle From: Wachutka, Jeremy [mailto:Jeremy.Wachutka@nrc.gov
] Sent: Friday, March 13, 2015 9:18 AM To: Kisicki, Aaron Cc: Landis-Marinello, Kyle; Mizuno, Beth; Young, Mitzi; sraimo@entergy.com
- pbessette@morganlewis.com
- rkuyler@morganlewis.com
Subject:
RE: NRC Docket No. 50-271 - Vermont's Petition for Reconsideration Mr. Kisicki:
On the late evening of March 12, 2015, you submitted a Motion to Stay in proceeding 50-271-LA-2 that is before the Atomic Safety and Licensing Board; and a Petition for Reconsideration before the Commission which serves as an integral basis for your Motion to Stay. However, you failed to consult with the NRC Staff before filing this motion.
Consultation prior to the filing of motions is required by 10 C.F.R. 2.323(b), which states that:
A motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact 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.
You have been previously provided notice of this NRC procedural regulatory requirement. On December 12, 2014, in proceeding 50-271-LA, you submitted a motion. The NRC Staff opposed this motion stating, in part,
that: Vermont's Motion should be rejected because Vermont failed to consult with the parties to the proceeding prior to filing the Motion. The rule governing motion practice in NRC proceedings provides, "[a] motion must be rejected if it does not include a certification by the attorney . . . of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion . . . ." 10 C.F.R. § 2.323(b). Vermont's Motion did not include such a certification. In fact, counsel for the Staff was never contacted by counsel for Vermont regarding the Motion. Accordingly, Vermont's Motion should be denied
See NRC Staff Answer to State of Vermont's Submission of Additional Information and Request to File Supplemental Briefing Addressing New Information and Argument Raised at Oral Argument, 5 (Dec. 18, 2014) (ADAMS Accession No. ML14352A208).
As an attorney practicing before the NRC, and despite having been given previous notice of the NRC's consultation requirement, you appear to have again disregarded this requirement in your most recent filing. Therefore, the NRC Staff will note in its response to your recent Stay Motion and Petition that this is the second time that you have not complied with the NRC's regulatory consultation requirement.
Jeremy L. Wachutka Attorney Office of the General Counsel 4U.S. Nuclear Regulatory Commission (301) 415-1571 jeremy.wachutka@nrc.gov
This message may contain confidential attorney-client and/or attorney work product information. Do not release unless the Comm ission determines otherwise.
From: Kisicki, Aaron [mailto:Aaron.Kisicki@state.vt.us
] Sent: Thursday, March 12, 2015 10:52 PM To: NRCExexSec@nrc.gov; Docket, Hearing; Julian, Emile; Mizuno, Beth; Young, Mitzi; Wachutka, Jeremy; sraimo@entergy.com
- pbessette@morganlewis.com
- rkuyler@morganlewis.com Cc
- Landis-Marinello, Kyle; Anthony Z. Roisman (aroisman@nationallegalscholars.com
)
Subject:
NRC Docket No. 50-271 - Vermont's Petition for Reconsideration All,
Please find the attached "State of Vermont's Petition for Reconsideration of Commission Decision Approving Entergy's Exemption Request" and companion Exhibits 1 and 2, in regard to NRC Docket No. 50-271.
Thank you,
Aaron Kisicki Special Counsel Vermont Public Service Department 112 State Street Montpelier, VT 05620-2601
802.828.3785 Aaron.Kisicki@state.vt.us DISCLAIMER This e-mail message is intended only for the personal use of the recipient(s) named above. This message may be an attorney-client communication a nd as such privileged and confidential and/or it may incl ude attorney work product.
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DB1/ 82568891 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) Docket No. 50-271-LA-2
)
ENTERGY NUCLEAR VERMONT YANKEE, )
LLC, and ENTERGY NUCLEAR )
OPERATIONS, INC. ) March 13, 2015
)
(Vermont Yankee Nuclear Power Station) )
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify th at, on this date, copies of the foregoing "Entergy's Answer Opposing State of Vermont's Motion to Stay the License Amendment Proceeding Pending Commission Reconsideration" were served upon the Electronic Information Exchange (the NRC's E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Phone: (202) 739-5146
Fax: (202) 739-3001 E-mail: rkuyler@morganlewis.com