CY-12-006, Entergy'S Response to Pilgrim Watch and Jones River Watershed Association'S Opposition to SECY-12-0062
| ML12130A278 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/09/2012 |
| From: | Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 22422, 50-293-LR, ASLBP 06-848-02-LR, ASLBP 12-917-05-LR-BD01, SECY-12-0062 | |
| Download: ML12130A278 (8) | |
Text
May 9, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
)
Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR
)
(Pilgrim Nuclear Power Station) )
ENTERGYS RESPONSE TO PILGRIM WATCH AND JONES RIVER WATERSHED ASSOCIATIONS OPPOSITION TO SECY-12-0062 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby respond to the Pilgrim Watch and Jones River Watershed Association Joint Opposition to NRC Staffs Request for Authorization [to] Renew Pilgrim Stations License (SECY-12-0062, April 23, 2012) (PW/JRWA Opp.), which Pilgrim Watch and the Jones River Watershed Association (PW/JRWA) filed with the Commission on April 30, 2012. The opposition by PW/JRWA to the NRC Staffs request to issue the renewed operating license for the Pilgrim Nuclear Power Station (Pilgrim) is meritless and inconsistent with the NRCs immediate effectiveness rule. Further, any acceptance of PW/JRWAs opposition would condone their ongoing tactic of attempting to delay completion of this proceeding by filing multiple, successive untimely motions to admit new contentions.
The gravamen of PW/JRWAs opposition is that the Commission may not issue the renewed license until a hearing has been held and an initial decision rendered on all contested issued pending before the Atomic Safety and Licensing Board (Licensing Board) or Commission. But in this proceeding, which has been ongoing for over six years, two evidentiary hearings have been held, and the Licensing Board has in fact issued two Initial Decisions that
together have resolved all contentions previously admitted into controversy. LBP-08-22, 68 N.R.C. 590, 610 (2008), affd CLI-10-14, 71 N.R.C. 449, 453, 477 (2010); LBP-11-18, 74 N.R.C. __, slip op. at 2, 34 (July 19, 2011), affd CLI-12-01, 75 N.R.C. __, slip op. at 31 (Feb. 9, 2012). Indeed, in a subsequent decision denying the last of five motions to reopen the proceeding then before it, the Licensing Board ruled that as there are no pending contentions or remaining issues to be resolved by this Licensing Board, the proceeding is hereby TERMINATED. LBP-12-01, 75 N.R.C. __, slip op. at 27 (Jan. 11, 2012). PW/JRWAs assertion that the Board has not issued any such initial decision is simply false.
Further, PW/JRWAs claims that there are several contentions still pending before the ASLB or Commission (PW/JRWA Opp. at 2) is at best misleading. There are no admitted contentions pending in this proceeding. All that is pending is (1) Commission review of LPB-12-01 denying Pilgrim Watchs fifth motion to reopen and terminating the proceeding;1 and (2) two subsequent motions by PW/JRWA (neither of which has been granted) to reopen the closed, terminated proceeding.2 The Commissions immediate effectiveness rule, at 10 C.F.R. § 2.340(a), provides that, after the presiding officer makes findings in any initial decision on matters in controversy in a contested proceeding on an application for an operating license (specifically including renewal of an operating license),3 the Commission, the Director, Office of Nuclear Reactor Regulation 1
LBP-12-01, 74 N.R.C. __, slip op. (Jan. 11, 2012).
2 Jones River Watershed Association Petitions for Leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the Alternative 10 C.F.R. § 2.309(e) and Jones River Watershed Association and Pilgrim Watch Motion to Reopen Under 10 C.F.R. § 2.326 and Request for a Hearing Under 10 C.F.R. § 2.309(a) and (d) in Above Captioned License Renewal Proceeding (Mar. 8, 2012); Jones River Watershed Association and Pilgrim Watch Motion To Reopen, Request For Hearing And Permission To File New Contention In The Above-Captioned License Renewal Proceeding On Violations Of The Endangered Species Act With Regard To The Roseate Tern (May 2, 2012).
3 See 10 C.F.R. § 2.340(a) (In any initial decision in a contested proceeding on an application for an operating license (including . . . renewal of an operating license) . . .). Thus, when the immediate effectiveness rule refers 2
[NRR] or Director, Office of New Reactors [NRO], as appropriate, after making the requisite findings, will issue, deny or appropriately condition the license. 10 C.F.R. § 2.340(a)
(emphasis added). Both 10 C.F.R. § 2.340(f) and 10 C.F.R. § 2.1210(d) (the NRCs informal hearing procedures, under which the Pilgrim license renewal proceeding was governed) make it clear that a presiding officers initial decision resolving all issues is immediately effective, notwithstanding any petition for review.
Pending review and final decision by the Commission, an initial decision resolving all issues before the presiding officer is immediately effective upon issuance, except . . . [if there is a stay order] . . . or as otherwise provided by this part (e.g. § 2.340) or by the Commission in special circumstances.
10 C.F.R. § 2.1210(d) (emphasis added). LBP-11-18, which was issued in July 2011 and resolved the last admitted contention before the Board, constituted that initial decision.
The pending requests to reopen the proceeding for hearing on new contentions do not alter the immediate effectiveness of the Licensing Boards decision. The plain language of the NRC rules makes the Boards decision immediately effective. See 10 C.F.R. § 2.340(a)
(referring to an initial decision in which the Board has made findings on the matters put into controversy by the parties) and 10 C.F.R. § 2.1210(d) (making immediately effective an initial decision resolving all issues before the presiding officer). The phrase all issues before the presiding officer in Section 2.1210(d) must be read as synonymous with matters put into controversy by the parties in Section 2.340(a) - i.e., they both refer to admitted contentions.
Otherwise, any opponent would be able to delay indefinitely the effectiveness of a Licensing to proceedings for an operating license, it is specifically including license renewal proceedings. Moreover, the Commission renews operating licenses by issuing new licenses. See 10 C.F.R. § 54.31. See also 56 Fed. Reg.
64,943, 64,961-62 (Dec. 13, 1991). Therefore, any issuance of a renewed license is the issuance of an operating license. The NRCs license renewal rules also contemplate that renewed licenses will be issued while an administrative appeal is pending. See 10 C.F.R. § 54.31(c) (If a renewed license is subsequently set aside upon further administrative or judicial appeal, the operating license or combined license previously in effect will be reinstated unless its term has expired and the renewal application was not filed in a timely manner.) (emphasis added).
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Board decision resolving all admitted contentions merely by filing successive motions to reopen the record or litigate new contentions. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554-55 (1978) (there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening if the litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered).
The filing by Pilgrim Watch, now joined by JRWA, of seven successive motions to reopen suggests that such delay is indeed their objective. If the Commission permits this tactic to succeed, its immediate effectiveness rule will have been rendered meaningless. Nor should the Commission accept PW/JRWAs presumption that its pending petition for review or most recent requests to reopen the record have any merit. Pilgrim Watch previously claimed that each of the proposed contentions raised in its first five motions to reopen involved timely, significant, grave issues, yet not one of those contentions was found to meet the reopening standards.
PW/JRWAs assertion that the NRC Staffs request for authorization to issue the renewed license is contrary to SECY-02-0088 (PW/JRWA Opp. at 3) is also incorrect. SECY-02-0088 authorized the Staff to issue renewed licenses in uncontested proceedings without Commission approval. That authorization in no way precludes the NRC from issuing a renewed license in a contested proceeding with the Commissions authorization, as the Staff is seeking here. To the contrary, as the Commission has explained, all this means is that, [w]hen a proceeding is contested, the Staff, as a matter of policy, seeks Commission approval to issue the license, even 4
though issuance of the license is not stayed by the petition for review. AmerGen Energy Co.,
LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 N.R.C. 235, 285 (2009).4 Nor is there any validity to the suggestion that intervenors rights are being cut off (PW/JRWA Opp. at 5) or that there has been a rush to license (id. at 6). Since this proceeding is now in its seventh year, which far exceeds the Commissions goal for efficient decision-making,5 the suggestion that there has been a rush is truly remarkable. Moreover, applicants too have rights. As the Commission stated, applicants for a license are . . . entitled to a prompt resolution of disputes concerning their applications. See, e.g., Statement of Policy on the Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 19 (1998). Here, Pilgrim Watch has had years to present its case, and its last minute tactic of repeatedly seeking to reopen the proceeding to litigate issues that could have been raised long ago should not now trample Entergys right to have this proceeding at last brought to completion.
Finally, contrary to PW/JRWAs suggestion, the ability of Pilgrim to continue to operate under 10 C.F.R. § 2.109(b) does not obviate Entergys need for prompt issuance of the renewed license. As Entergy has previously explained on several occasions, apart from the significant financial costs (not only the litigation costs, but significant monthly capital carrying costs), the uncertainty in whether Entergys renewed license will be issued makes business and investment decisions extremely difficult. The uncertainty makes decisions on fuel procurement very difficult and is an impediment to Entergys ability to enter into contracts for the sale of the 4
Moreover, as Entergy has explained and still maintains, that policy was established before the 2007 amendments to the immediate-effectiveness rule, which eliminated an automatic stay, removed the requirement for direct Commission involvement and specifically authorizing license issuance. Applicants Motion for Issuance of the Renewed License (Aug. 23, 2011) at 9-10, 12.
5 In contested license renewal proceedings, the Commissions goal has been a hearing schedule allowing the issuance of a Commission decision in about two and one half years from the date that the application was received. Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant), CLI-98-14, 48 N.R.C. 39, 42 (1998); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-98-17, 48 N.R.C. 123, 126 (1998).
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plants power beyond its current expiration date. Finally, the uncertainty is unfair to plant employees, who are left to guess at the prospects for continued employment beyond the next year. This uncertain environment makes hiring new employees and retaining current ones increasingly difficult. The timely renewal provision in 10 C.F.R. § 2.109(b) does not eliminate any of this harm. In addition, if the NRCs failure to act in a timely manner were to result in the shutdown of Pilgrim, substantial benefits from the plants operation will be lost.
In sum, there is no merit to PW/JRWAs opposition to the Staffs request to issue renewed operating license for Pilgrim. To the contrary, prompt issuance of that license is compelled by the NRCs immediate effectiveness rule, is required as a matter of fairness to Entergy,6 and is long overdue. For all of these reasons, the NRC Staffs request should be approved.
Respectfully Submitted,
/signed electronically by David R. Lewis/
David R. Lewis PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 E-mail: david.lewis@pillsburylaw.com Counsel for Entergy Dated: May 9, 2012 6
See Applicants Motion for Issuance of the Renewed License (Aug. 23, 2011).
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
)
Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR
)
(Pilgrim Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of Entergys Response to Pilgrim Watch and Jones River Watershed Associations Opposition to SECY-12-0062, dated May 9, 2012, was provided to the Electronic Information Exchange for service on the individuals below, this 9th day of May, 2012.
Secretary Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail@nrc.gov hearingdocket@nrc.gov Administrative Judge Atomic Safety and Licensing Board Ann Marshall Young, Esq., Chair Mail Stop T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ann.Young@nrc.gov Administrative Judge Administrative Judge Dr. Richard F. Cole Dr. Paul B. Abramson 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 Richard.Cole@nrc.gov Paul.Abramson@nrc.gov 403470170v1
Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Maxwell C. Smith, Esq. Commonwealth of Massachusetts Brian Harris, Esq. Office of the Attorney General Beth Mizuno, Esq. One Ashburton Place Office of the General Counsel Boston, MA 02108 Mail Stop O-15 D21 Martha.Coakley@state.ma.us U.S. Nuclear Regulatory Commission Matthew.Brock@state.ma.us Washington, DC 20555-0001 Susan.Uttal@nrc.gov; Maxwell.Smith@nrc.gov; brian.harris@nrc.gov; beth.mizuno@nrc.gov Ms. Mary Lampert Margaret Sheehan, Esq.
148 Washington Street 61 Grozier Road Duxbury, MA 02332 Cambridge, MA 02138 mary.lampert@comcast.net meg@ecolaw.biz Sheila Slocum Hollis, Esq. Mr. Mark D. Sylvia Duane Morris LLP Town Manager 505 9th Street, NW Town of Plymouth Suite 1000 11 Lincoln St.
Washington, DC 20006 Plymouth, MA 02360 sshollis@duanemorris.com msylvia@townhall.plymouth.ma.us Chief Kevin M. Nord Richard R. MacDonald Fire Chief and Director, Duxbury Emergency Town Manager Management Agency 878 Tremont Street 688 Tremont Street Duxbury, MA 02332 P.O. Box 2824 macdonald@town.duxbury.ma.us Duxbury, MA 02331 nord@town.duxbury.ma.us
/signed electronically by David R. Lewis/
David R. Lewis 2
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