ML063200174
| ML063200174 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 11/13/2006 |
| From: | Uttal S NRC/OGC |
| To: | NRC/OCM |
| Giitter R | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, LBP-06-23, RAS 12510 | |
| Download: ML063200174 (9) | |
Text
November 13, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR
)
NRC STAFFS BRIEF IN OPPOSITION TO PILGRIM WATCHS APPEAL OF LBP-06-23 INTRODUCTION Pursuant to 10 C.F.R. § 2.311(a), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to the Pilgrim Watch Brief on Appeal of LBP-06-23," dated October 31, 2006 (Pilgrim Watch Brief). In LBP-06-23, the Atomic Safety and Licensing Board (Board) granted the hearing request of Pilgrim Watch as to Contentions 1 and 3 as limited by the Board, denied admission of Pilgrim Watchs Contentions 2, 4, and 5, and denied admission of the Massachusetts Attorney Generals sole contention.1 For the reasons discussed below, Pilgrim Watchs Appeal should be denied on the grounds that the Commissions criteria for interlocutory review of rulings on requests for hearings and petitions to intervene have not been met.
BACKGROUND By letter dated January 25, 2006, Entergy Nuclear Operations, Inc. (Entergy) submitted an application, under 10 C.F.R. Part 54, to renew the operating license for the Pilgrim Nuclear 1
Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch). 63 NRC __ (October 16, 2006), slip op. at 31, 66, 75, 101 and 111.
Power Station (Pilgrim) for an additional 20-year period.2 In response to the notice of acceptance for docketing and opportunity for hearing published in the Federal Register on March 27, 2006, Pilgrim Watch and the Attorney General of the Commonwealth of Massachusetts (MassAG) filed intervention petitions.3 Pilgrim Watchs Petition included five contentions; the Petition filed by the MassAG proffered a single contention. Subsequently, on June 5, 2006, Pilgrim Watch gave notice pursuant to 10 C.F.R. §§ 2.309(f)(3) and 2.323 of its adoption of the contention filed by the MassAG.4 On June 15, 2006, the Staff filed its Response to Pilgrim Watchs Notice of Adoption and to the Petitions of Pilgrim Watch and the MassAG on June 19 and 22, 2006, respectively.5 Entergy filed its Answer to the MassAGs Petition on June 22, and responded to the Pilgrim Watch Petition on June 26, 2006, including therein a response to Pilgrim Watchs Notice of Adoption of Contention.6 On June 29, 2006, the MassAG filed a combined Reply to the 2
See Letter from Michael Balduzzi, Entergy Nuclear Operations, to U.S. NRC, Re: License Renewal Application, (January 25, 2006) (Agencywide Documents and Access Management System (ADAMS) Accession No. ML060300028).
3 See 71 Fed. Reg. 15,222 (March 27, 2006); Request for Hearing and Petition to Intervene, May 25, 2006; Massachusetts Attorney Generals Request for a Hearing and Petition to Intervene with Respect to Entergy Nuclear Operations, Inc.s Application for Renewal of the Pilgrim Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents, May 26, 2006.
4 See Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006).
5 See NRC Staffs Response to Request for Hearing and Petition to Intervene Filed by Pilgrim Watch (June 19, 2006); NRC Staff Answer Opposing Massachusetts Attorney Generals Request for Hearing and Petition for Leave to Intervene and Petition for Backfit Order (June 22, 2006).
6 See Entergys Answer to the Massachusetts Attorney Generals Request for a Hearing, Petition for Leave to Intervene, and Petition for Backfit Order (June 22, 2006); Entergys Answer to the Request for Hearing and Petition to Intervene by Pilgrim Watch and Notice of Adoption of Contention (June 26, 2006).
Answers of Entergy and the NRC Staff. Pilgrim Watch filed its Replies to the Answers of the NRC Staff and Entergy on July 3, 2006.7 On July 6 and 7, 2006, the Board held oral argument on the Petitioners contentions in Plymouth, Massachusetts, with the Petitioners, the NRC Staff, Entergy, and the Town of Plymouth participating. Following oral arguments, the participants filed supplemental briefs pursuant to the Boards Order dated July 14, 2006.8 On October 16, 2006, the Board issued a Memorandum and Order granting the hearing request of Pilgrim Watch and admitting Contentions 1 and 3 which relate, respectively, to the aging management program for PNPS with regard to inspection for corrosion of buried pipes and tanks and detection of leakage of radioactive water that might result from undetected corrosion and aging; and to certain input data that Pilgrim Watch asserts should have been considered by the Applicant in its severe accident mitigation alternatives (SAMA) analysis.9 The Board denied Pilgrim Watchs Contentions 2, 4, and 5, as well as the MassAGs sole Contention.10 Subsequently, on October 31, 2006, Pilgrim Watch filed a Brief on Appeal of LBP-06-23 (Pilgrim Watch Brief), arguing that the Board erred in its refusal to hear its Contention 4. Pilgrim Watch Brief at 1.
7 See Pilgrim Watch Reply to Entergy Answer to Request for Hearing and Petition to Intervene by Pilgrim Watch (July 3, 2006); Pilgrim Watch Reply to NRCs and Entergys Answers to Notice of Adoption of Contention by Pilgrim Watch.
8 See Entergys Brief on New and Significant Information in Response to Licensing Board Order of July 14, 2006 (July 21, 2006); Massachusetts Attorney Generals Brief Regarding Relevance to this Proceeding of Regulatory Guides Definition of New and Significant Information (July 21, 2006);
NRC Staffs Response to July 14, 2006 Licensing Board Order (July 21, 2006).
9 See Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Wach), LBP-06-23, 63 NRC (October 16, 2006) slip op. at 66 and 101.
10 Id. at 31, 75, and 111.
DISCUSSION Interlocutory review of rulings on requests for hearings and petitions to intervene are authorized in only limited circumstances - none of which are present here. An order ruling on a request for hearing or a petition to intervene may be appealed to the Commission, only in accordance with the provisions of [10 C.F.R. § 2.311] within (10) days after the service of the order. No other appeals from rulings on requests for hearings are allowed.
10 C.F.R. § 2.311(a) (emphasis added). The regulation limits such appeals to three situations:
(b) An order denying a petition to intervene and/or request for hearing is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.
(c) An order granting a petition to intervene and/or request for hearing is appealable by a party other than the requestor/petitioner on the question as to whether the request/petition should have been wholly denied.
(d) An order selecting a hearing procedure may be appealed by any party on the question as to whether the selection of the particular hearing procedures was in clear contravention of the criteria set forth in § 2.310.
10 C.F.R. § 2.311(b)-(d). There is simply no provision for an appeal by a petitioner of an order granting the hearing request and petition to intervene but rejecting one or more, but not all, proffered contentions. Only those orders which are directly concerned with the dispositive grant or denial of status as an intervenor are excepted by 10 C.F.R. § 2.311 from the general prohibition against interlocutory review. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-11, 59 NRC 203, 208 (2004); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 136 (1987).
The procedural requirements of 10 C.F.R. § 2.311 are well established by Commission precedent applying its substantively identical predecessor, former rule, § 2.714a (2004). See Paina Hawaii, LLC (Material License Application), CLI-06-13, 63 NRC 508, 509 n. 3 (May 15, 2006). For a petitioner to take an appeal pursuant to § 2.714a(b), the petitioner must claim that, after considering all pending contentions, the Board has erroneously denied a
hearing. Catawba, CLI-04-11, 59 NRC at 208. One who has been permitted to intervene may not invoke that Section [2.714a(b)] to obtain interlocutory review of an order which does no more than to exclude from consideration in the proceeding certain of the issues which he has sought to raise. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-329, 3 NRC 607, 610 (1976).
In River Bend, the State of Louisiana was granted intervention as a party under
§ 2.715(c)11 and appealed the Licensing Boards refusal to hear its additional issues. Id. at 608.
The Appeals Board stated that § 2.714a allows interlocutory appeals only for those orders which are directly concerned with the grant or denial of status as an intervenor. Id. at 610.
The Appeals Board denied the States interlocutory appeal because it had been granted intervention, thus affording it full opportunity to participate in the proceedings. Id. at 611. The State could not obtain interlocutory relief solely to broaden the scope of the issues the State wanted to include in the hearing. Id; See also, Shoreham, ALAB-861, 25 NRC at 136 (If at least one of its contentions [is] accepted and its petition is granted, an interlocutory appeal will not lie.) (citing Puget Sound Power and Light Co. (Skagit/ Hanford Nuclear Power Project, Units 1 and 2), ALAB-712, 17 NRC 81 (1983)) (emphasis added).
The Commission has maintained the same policy through the new rule, § 2.311, in more recent cases. In Clinton, the Board granted the intervenors hearing request and found portions of its contention admissible. Exelon Generation Co. (Clinton ESP Site), CLI-04-31, 60 NRC 461, 464-65 (2004). Nevertheless, the intervenor sought interlocutory review of the Boards decision to exclude certain aspects of the admitted contention. Id. Again, the Commission denied the request for interlocutory review based on the fact that the intervention request was granted, not denied in its entirety as required by §2.311(b). Id. at 468.
11 This provision affording an interested state participation in a hearing is now § 2.315(c).
Similarly, in Oyster Creek, the Licensing Board granted standing to intervenor citizen groups and admitted one proposed contention in a narrowed form. CLI-06-24, 63 NRC at ,
slip op. at 8. Intervenors appealed the Boards denial of their motion for leave either to add contentions or to supplement the basis of their original contention. Id., slip op. at 4. The Commission noted that in their appeal, intervenors made only passing reference to § 2.311 and ignored the regulations conditions for appeal. Id., slip op. at 16. The Commission held that
§ 2.311 was unavailable to intervenors because the Boards decision regarded only the scope of a contention, and did not rule on a request for hearing, petition to intervene, or selection of hearing procedures, and thus denied the appeal. Id.
In the instant case, Pilgrim Watch filed five contentions with the Board of which two were admitted. Therefore, interlocutory review is unavailable; as stated in Shoreham, if at least one of [intervenors] contentions [is] accepted and its petition is granted, an interlocutory appeal will not lie. ALAB-861, 25 NRC at 136. The Board has permitted Pilgrim Watch to intervene and fully participate in the hearing, admitting two of its contentions. As such, Pilgrim Watch may not invoke interlocutory review of the Boards order which merely excludes some of its contentions from consideration. See River Bend, ALAB-329, 3 NRC at 610.
Pilgrim Watch does nothing to distinguish its § 2.311 appeal from the numerous cases in which the Commission denied interlocutory review under the same or similar circumstances, namely, where a successful intervenor sought interlocutory review as of right only in an attempt
to alter the scope of the ongoing proceeding. See Pilgrim Watch Brief. Thus, Pilgrim Watch has not satisfied the requirements of § 2.311, nor has it articulated a basis for the Commission to exercise its discretion to entertain this appeal.12 Accordingly, the Commission should deny this appeal.
CONCLUSION For the foregoing reasons, the Staff submits that the Commission should decline Pilgrim Watchs Appeal of the Boards rejection of Contention 4.
Respectfully submitted,
/RA/
Susan L. Uttal Counsel for NRC Staff Dated at Rockville, MD this 13th day of November, 2006 12 If the Commission, in its discretion, deems it appropriate to entertain Pilgrim Watchs appeal, the staff respectfully requests that the Commission establish a briefing schedule and permit the parties to address the merits of Pilgrim Watchs appeal.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR
)
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS BRIEF IN OPPOSITION TO PILGRIM WATCHS APPEAL OF LBP-06-23 in the above-captioned proceeding have been served on the following by electronic mail and deposit in the U.S. Mail Service or by deposit in the U.S.
Nuclear Regulatory Commissions internal mail system as indicated by a single asterisk(*), or by deposit in the U.S. mail system, as indicated by a double asterisk (**) this 13th day of November, 2006.
Administrative Judge* Administrative Judge*
Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: rfc1@nrc.gov E-mail: pba@nrc.gov Administrative Judge* Office of Commission Appellate
- Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov E-mail: amy@nrc.gov Office of the Secretary*
Diane Curran, Esq. Attn: Rulemaking and Adjudications Staff Harmon, Curran, Spielberg Mail Stop: O-16C1
& Eisenberg, L.L.P. U.S. Nuclear Regulatory Commission 1726 M Street, NW., Suite 600 Washington, DC 20555-0001 Washington, DC 20036 E-mail: hearingdocket@nrc.gov E-mail: dcurran@harmoncurran.com
Atomic Safety and Licensing Board*** Terence A. Burke, Esq.**
Mail Stop: T-3 F23 Entergy Nuclear U.S. Nuclear Regulatory Commission 1340 Echelon Parkway Washington, DC 20555-0001 Mail Stop: M-ECH-62 Jackson, MS 39213 Matthew Brock, Esq.
Assistant Attorney General David R. Lewis, Esq.
Office of the Massachusetts Attorney Paul A. Gaukler, Esq.
General Pillsbury, Winthrop, Shaw, Pittman, LLP Environmental Protection Division 2300 N Street, NW One Ashburton Place, Room 1813 Washington, DC 20037-1137 Boston, MA 02108-1598 E-mail: david.lewis@pillsburylaw.com E-mail: matthew.brock@ago.state.ma.us paul.gaukler@pillsburylaw.com Molly H. Bartlett, Esq. Town Manager 52 Crooked Lane Town of Plymouth Duxbury, MA 02332 11 Lincoln St.
E-mail: mollyhbartlett@hotmail.com Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us Richard R. MacDonald Town Manager Sheila Slocum Hollis 878 Tremont Street Duane Morris LLP Duxbury, MA 02332 1667 K Street, NW, Suite 700 E-mail: macdonald@town.duxbury.ma.us Washington, DC 20006 E-mail: sshollis@duanemorris.com
/RA/
Susan L. Uttal Counsel for the NRC Staff