ML070510132
| ML070510132 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim, Vermont Yankee  |
| Issue date: | 02/16/2007 |
| From: | Uttal S NRC/OGC |
| To: | NRC/OCM |
| S Uttal, NRC/OGC, 301-415-1582 | |
| References | |
| 50-271-LR, 50-293-LR, ASLBP 06-848-02-LR, ASLBP 06-849-03-LR, RAS 13068, RAS 13069 | |
| Download: ML070510132 (12) | |
Text
February 16, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271 -LR LLC, and ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) ) ASLBP No. 06-849-03-LR In the Matter of )
)
ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY, and ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR NRC STAFF ANSWER TO MASSACHUSETTS ATTORNEY GENERAL MOTION FOR LEAVE TO FILE and MOTION FOR RECONSIDERATION AND CLARIFICATION OF CLI-07-03 INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the Nuclear Regulatory Commission (Staff),
hereby answers the Massachusetts Attorney General (MassAG) motion for leave to file a motion to reconsider and clarify CLI-07-03, and motion to reconsider and clarify CLI-07-03.1 In CLI-07-03, the Commission affirmed the decisions of the Atomic Safety and Licensing Boards (Boards) in the above captioned matters. In each case, the respective Board had rejected the MassAG*s single proposed contention that sought consideration of alleged new information regarding the environmental impacts of fires in high-density spent fuel pools.2 The Mass AG is 1
Massachusetts Attorney General*s Motion for Leave to File Motion for Reconsideration and Clarification of CLI-07-03 (February 1, 2007) (Motion for Leave); Massachusetts Attorney General*s Motion for Reconsideration and Clarification of CLI-07-03 (February 1, 2007) (Motion for Reconsideration).
2 The contentions in both cases raised identical issues.
requesting that the Commission reconsider its decision and confirm that: CLI-07-03 is not a final decision as to the MassAG; the MassAG still has party status in the Pilgrim and Vermont Yankee license renewal proceedings; and the MassAG has the right to seek judicial review if the final rulemaking related to its rulemaking petition3 is not applied to the license renewal proceedings. Motion for Reconsideration at 3. For the reasons discussed below, the MassAG*s Motion for Reconsideration should be denied, to the extent that it requests the Commission reconsider its decision. Should the Commission decide that clarification is warranted, it should clarify that the decision is final as to the MassAGs participation in the license renewal proceedings.
BACKGROUND These cases arise from two applications for license renewal filed pursuant to 10 C.F.R. Part 54. The first application was filed on January 25, 2006 by Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively, Entergy Pilgrim) to renew the operating license for the Pilgrim Nuclear Power Station (Pilgrim) for an additional twenty-year period.4 The second was also filed on January 25, 2006, by Entergy Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy VY) to renew the operating license for the Vermont Yankee Nuclear Power Station (VYNPS) for an additional twenty-year period.5 On May 26, 2006, the MassAG filed requests for hearing and petitions to intervene in the Pilgrim 3
Massachusetts Attorney General*s Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006).
4 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).
5 Letter from William F. Maguire, Entergy, to the NRC Document Control Desk, Vermont Yankee Nuclear Power Station, License No. DPR-28 (Docket No. 50-271), License Renewal Application, dated January 25, 2006 (Agencywide Documents Access and Management System (ADAMS)
Accession Nos. ML060300082, ML060300085, ML060300086).
matter, and in the VYNPS matter, proffering one virtually identical contention in each matter.6 The Staff, Entergy Pilgrim and Entergy VY filed responses to the MassAG*s Petitions.7 On June 29, 2006 and June 30, 2006, the MassAG filed combined replies to the answers of Entergy and the Staff.8 Oral argument was held as to both matters on the admissibility of contentions: On July 6 and 7, 2006 in the Pilgrim matter; on August 1, 2006 in the VYNPS matter. On September 22, 2006, the Board presiding over the VYNPS matter issued LBP-06-20, in which it denied the MassAGs hearing request, finding its sole contention inadmissible. LBP-06-20, slip op. at 23.
On October 16, 2006, the Board presiding over the Pilgrim matter issued LBP-06-23 denying the MassAG*s hearing request,9 finding the sole contention inadmissible. LBP-06-23, 6
Massachusetts Attorney General*s 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; Massachusetts Attorney General*s Request for a Hearing and Petition for Leave to Intervene With Respect To Entergy Nuclear Operations Inc.*s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operation and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Accidents, dated May 26, 2006.
7 NRC Staff Answer Opposing Massachusetts Attorney General*s Request for Hearing and Petition for Leave to Intervene and Petition for Backfit Order (June 22, 2006) (Pilgrim); Entergy*s Answer to the Massachusetts Attorney General*s Request for a Hearing, Petition for Leave to Intervene, and Petition for Backfit Order (June 22, 2006)(Pilgrim); NRC Staff Answer Opposing Massachusetts Attorney Generals Request for Hearing and Petition for Leave to Intervene and Petition for Backfit (June 22, 2006)
(VY); Entergys Answer to the Massachusetts Attorney Generals Request for Hearing, Petition for Leave to Intervene, and Petition for Backfit Order (June 22, 2006) (VY).
8 Massachusetts Attorney General*s Reply to Entergy*s and NRC Staff*s Responses to Hearing Request and Petition to Intervene With Respect to Pilgrim License Renewal Proceeding (June 29, 2006); Massachusetts Attorney General*s Reply to Entergy*s and NRC Staff*s Responses to Hearing Request and Petition to Intervene With Respect to Vermont Yankee License Renewal Proceeding (June 30, 2006).
9 Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch), LBP-06-23, 63 NRC __ (October 16, 2006) (Contention Order). The Contention Order also granted the hearing request of Pilgrim Watch as to Contentions 1 and 3 which relate, respectively, to the aging management program for Pilgrim 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. The Contention Order further denied admission of Pilgrim Watch*s contentions 2, 4, and 5. On October31, 2006, Pilgrim Watch filed an (continued...)
slip op. at 31. On October 3, 2006, the MassAG filed a notice of appeal and supporting brief in the VYNPS matter and on October 31, filed a notice of appeal and supporting brief in the Pilgrim matter.10 On January 22, 2007, the Commission issued CLI-07-03, denying both appeals and affirming the Board decisions denying admission of the contention. CLI-07-03, slip op. at 1.
On February 1, 2007, the MassAG filed its Motion for Leave and Motion for Reconsideration.
The Staff hereby files its answer to both motions.
DISCUSSION Legal Standards A motion for reconsideration of a Commission decision must meet the requirements of 10 C.F.R. § 2.323(e), which requires that a petition may not be filed absent leave of the Commission and must demonstrate compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. The standard is applied strictly and motions are not lightly granted.
Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC (2006), slip op. at 2 (November 9, 2006). See also Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004).
9
(...continued) appeal, under 10 C.F.R. § 2.311, requesting Commission review of the Board*s decision denying admission of Contention 4. See Pilgrim Watch Brief on Appeal of LBP-06-23, October 31, 2006.
Contention 4 is similar to the Mass AG*s contention, in that they both raise issues concerning spent fuel pool accidents. Contention Order at 20-21.
10 Massachusetts Attorney General*s Notice of Appeal of LBP-06-20 and Brief on Appeal of LBP-06-20 (October 3, 2006); Massachusetts Attorney General*s Notice of Appeal of LBP-06-23 and Brief on Appeal of LBP-06-23 (October 31, 2006).
The MassAGs Motions In the Motion for Leave the MassAG asserts that it has met the standard for reconsideration because the motion meets the criteria of 10 C.F.R. § 2.323(e). The Staff disagrees. The regulation requires that motions for reconsideration not be filed absent leave of the Commission upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. 10 C.F.R. § 2.323(e). Nowhere in either of her motions does the MassAG demonstrate a clear and material error that renders the decision invalid. The motions are more in the nature of a request for clarification, not reconsideration. While the Staff opposes the request for reconsideration as unwarranted, if the Commission determines that clarification is warranted, the Staff submits that the Commission should make it clear that the decision in this matter is final as to the MassAGs participation in the Pilgrim and VYNPS license renewal proceedings.11 The MassAG first asserts that CLI-07-03 is unclear regarding finality for purpose of review under the Hobbs Act, 28 U.S.C. § 2342. Motion for Leave at 2; Motion for Reconsideration at 2, 6-9. In support of this assertion, she points to two alleged indicia that the Commissions decision is not final. First while acknowledging that the Commission did, in fact, affirm the Boards decisions rejecting her contention, and taking final action as to the MassAG, id. at 6, she asserts that two factors create the uncertainty alleged: the Commissions statement that the merits of MassAGs contention have not been addressed (Motion for Reconsideration at 7); and, the Commissions citation of 10 C.F.R. § 2.802 when discussing the MassAGs request to suspend the license renewal proceedings until the rulemaking has been 11 The Commission has, in the past, on motion, clarified the terms of its orders. See, e.g.,
Curators of the University of Missouri (Trump-S Project), CLI-95-8,41 NRC 386, 389-91(1995).
completed. Motion for Reconsideration at 7-8. The MassAG interprets the citation as an offer of the use of provisions of section 2.802 at a later date. Id. at 8.
The Staff does not agree with the MassAG that CLI-07-03 is unclear or ambiguous in any way. It is abundantly clear that the Commission affirmed the Boards decisions not to admit the contention and, without an admitted contention, the Mass AG is not a party to the renewal proceedings. A decision denying a request for a hearing or dismissing a partys contentions is a final decision. See Environmental Law and Policy Center v. NRC, 470 F.3d 676, 681 (Cir. 2006).
As to the merits of the MassAGs contention not being addressed in the license renewal proceedings, the merits were not addressed because the subject matter of the contention was clearly outside the scope of the proceedings. The Commission agreed with the Boards decision that the Turkey Point case is controlling. CLI-07-03, slip op. at 6-8. See also Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001). The Commission, thus, affirmed the Boards decisions holding that the contention was inadmissible because on-site spent fuel management is a Category 1 issue pursuant to 10 C.F.R. Part 51, Appendix B, and thus could not be addressed in the absence of a waiver of 10 C.F.R. § 51.53(c)(3)(i). CLI-07-03, slip op. at 6-7. [A]ny contention on a category one issue amounts to a challenge to our regulation that bars challenges to generic environmental findings. Id. at 7. The fact that the merits of the contention were not addressed puts this case in the same posture as any case where a contention has been deemed inadmissible. If a contention is deemed to be inadmissible at this stage, there is no merits decision. Thus, the MassAGs claim that the lack of a decision on the merits somehow creates confusion as to finality is baseless.
The second prong of the MassAGs argument is that the Commissions discussion in footnote 37 of CLI-07-03 is somehow an offer of a future remedy. Motion to Reconsider at 7-8.
In that footnote, the Commission discussed the MassAGs rulemaking petition and the request therein to suspend the renewal proceedings until resolution of the rulemaking. CLI-07-03, slip op. at 9, n. 37. The Staff submits that the Commission, in citing to section 2.802, was merely reciting relevant provisions of the regulation, which provides that such a request may be made in a rulemaking petition by a party to a licensing proceeding, in order to provide a context for the MassAG's request. The Commission was, in the Staff's view, merely pointing out the regulation under which the MassAG claimed the right to make the request to suspend the renewal proceedings, not offering an opportunity to participate in proceedings in which the MassAG participation has been denied.
Because the Mass AGs request that the Commission reconsider its decision and clarify that it is not final does not demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid and because it has no basis in law or fact, it should be denied.
CONCLUSION For the foregoing reasons, the MassAGs Motion for Leave and Motion for Reconsideration should be denied. The Staff does not object to the motion, in so far as it requests clarification. If the Commission grants the Motion for Leave as to the request for clarification, the Staff respectfully requests that the Commission clarify that CLI-07-03 is a final decision.
Respectfully submitted,
/RA/
Susan L. Uttal Counsel for the NRC Staff
/RA/
Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of February, 2007
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 STAFF ANSWER TO MASSACHUSETTS ATTORNEY GENERAL MOTION FOR LEAVE TO FILE and MOTION FOR RECONSIDERATION AND CLARIFICATION OF CLI-07-03 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 16th day of February, 2007.
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*
Sheila Slocum Hollis** Attn: Rulemaking and Adjudications Staff Duane Morris LLP Mail Stop: O-16C1 1667 K Street, NW, Suite 700 U.S. Nuclear Regulatory Commission Washington, DC 20006 Washington, DC 20555-0001 E-mail: sshollis@duanemorris.com E-mail: hearingdocket@nrc.gov
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 Molly H. Bartlett, Esq.**
52 Crooked Lane David R. Lewis, Esq.**
Duxbury, MA 02332 Paul A. Gaukler, Esq.
E-mail: mollyhbartlett@hotmail.com Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Chief Kevin M. Nord** Washington, DC 20037-1137 Fire Chief & Director Duxbury Emergency E-mail: david.lewis@pillsburylaw.com Management Agency paul.gaukler@pillsburylaw.com 668 Tremont Street Duxbury, MA 02332 Town Manager**
E-mail: nord@town.duxbury.ma.us Town of Plymouth Fax: 781-934-6530 11 Lincoln St.
Plymouth, MA 02360 Diane Curran, Esq.** E-mail: msylvia@townhall.plymouth.ma.us Harmon, Curran, Spielberg
& Eisenberg, L.L.P. Matthew Brock, Esq.**
1726 M Street, NW., Suite 600 Assistant Attorney General Washington, DC 20036 Office of the Massachusetts Attorney E-mail: dcurran@harmoncurran.com General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598 E-mail: matthew.brock@ago.state.ma.us
/RA/
Susan L. Uttal Counsel for the NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, 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 NRC STAFF ANSWER TO MASSACHUSETTS ATTORNEY GENERAL MOTION FOR LEAVE TO FILE and MOTION FOR RECONSIDERATION AND CLARIFICATION OF CLI-07-03 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 16th day of February, 2007.
Administrative Judge Administrative Judge Alex S. Karlin, Chair Richard E. Wardwell Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: rew@nrc.gov Administrative Judge Office of the Secretary Thomas S. Elleman* Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 5207 Creedmoor Road, #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: elleman@eos.ncsu.edu E-mail: hearingdocket@nrc.gov Office of Commission Appellate Sarah Hofmann, Esq.*
Adjudication Special Counsel Mail Stop: O-16C1 Department of Public Service U.S. Nuclear Regulatory Commission 112 State Street - Drawer 20 Washington, DC 20555-0001 Montpelier, VT 05620-2601 E-mail: OCAAmail@nrc.gov E-mail: sarah.hofmann@state.vt.us
Diane Curran, Esq.* Anthony Z Roisman, Esq.*
Harmon, Curran, Spielberg National Legal Scholars Law Firm
& Eisenberg, L.L.P. 84 East Thetford Rd.
1726 M Street, NW., Suite 600 Lyme, NH 03768 Washington, DC 20036 E-mail: aroisman@nationallegalscholars.com E-mail: dcurran@harmoncurran.com Matthew Brock, Esq.*
Ronald A. Shems, Esq.* Assistant Attorney General Karen Tyler, Esq.* Office of the Massachusetts Attorney Shems Dunkiel Kassel & Saunders, PLLC General 91 College Street Environmental Protection Division Burlington, VT 05401 One Ashburton Place, Room 1813 E-mail: rshems@sdkslaw.com Boston, MA 02108-1598 Ktyler@sdkslaw.com E-mail: matthew.brock@ago.state.ma.us Marcia Carpentier, Esq. David R. Lewis, Esq.*
Atomic Safety and Licensing Board Panel Matias F. Travieso-Diaz*
Mail Stop: T-3F23 Pillsbury Winthrop Shaw Pittman LLP U.S. Nuclear Regulatory Commission 2300 N Street, NW Washington, DC 20555-0001 Washington, DC 20037-1128 E-mail: mxc7@nrc.gov E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com Jennifer J. Patterson*
Senior Assistant Attorney General Environmental Protection Bureau Office of the Attorney General 33 Capitol Street Concord, New Hampshire 03301 E-mail: jennifer.patterson@doj.nh.gov
/RA/
Steven C. Hamrick Counsel for the NRC Staff