ML070740693
| ML070740693 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim, Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 03/15/2007 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | |
| SECY RAS | |
| References | |
| 50-271-LR, 50-293-LR, CLI-07-13, RAS 13247, RAS 13248 | |
| Download: ML070740693 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
DOCKETED 03/15/07 Dale E. Klein, Chairman SERVED 03/15/07 Edward McGaffigan, Jr.
Jeffrey S. Merrifield Gregory B. Jaczko Peter B. Lyons In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE LLC ) Docket No. 50-271-LR and )
ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
)
In the Matter of )
)
ENTERGY NUCLEAR GENERATION COMPANY ) Docket No. 50-293-LR and )
ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Pilgrim Nuclear Power Station) )
)
CLI-07-13 MEMORANDUM AND ORDER Today we deny the Massachusetts Attorney Generals (Mass AGs) Motion for Reconsideration of CLI-07-3.1 In CLI-07-3 we rejected the Mass AGs appeal of decisions by two different Licensing Boards in proceedings to renew the operating license at the Vermont Yankee Power Station in Windam County, Vermont2 and the Pilgrim Nuclear Power Station in Plymouth, Massachusetts.3 1
CLI-07-3, 65 NRC __ (Jan. 22, 2007).
2 LBP-06-20, 64 NRC 131 (2006).
3 LBP-06-23, 64 NRC __(2006).
2 I. BACKGROUND In CLI-07-3, we affirmed the Boards rejection in each proceeding of a contention which disputed findings in the Generic Environmental Impact Statement for license renewal concerning the environmental consequences of spent fuel storage. The contention argued that recent evidence showed that high-density storage in spent fuel pools is more dangerous than previously believed. In our decision, we noted that the Mass AG had filed a petition for rulemaking raising even broader issues than the contention,4 and said that a petition for rulemaking is a more appropriate avenue for resolving generic concerns about spent fuel fires than a site-specific contention in an adjudication.5 The Mass AG argues that CLI-07-3 was ambiguous in terms of its finality and whether the Mass AG is considered a party to the ongoing license proceedings. Her motion asks that the Commission:
(a) confirm [that CLI-07-3] is a non-final decision with respect to the Attorney General, (b) clarify that the Attorney General continues to have party status in the individual license renewal proceedings until those proceedings are concluded, and (c) further clarify that the Attorney General has the right to seek judicial review, as necessary, to ensure the application of the final rulemaking to the individual license renewal proceedings for Pilgrim and Vermont Yankee. 6 The Mass AG pointed to language in CLI-07-3 saying that it would be premature to consider staying the license renewal proceedings to await the outcome of the rulemaking petition because many issues unrelated to the Mass AGs rulemaking petition must also be resolved in 4
See Massachusetts Attorney Generals Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006), see 71 Fed. Reg. 64,169 (public notice).
5 CLI-07-3, 65 NRC __, slip op. at 2.
6 See Massachusetts Attorney Generals Motion for Reconsideration and Clarification of CLI-07-03, at 3 (Feb. 1, 2007).
3 those proceedings.7 The Mass AG contends that if it is premature to rule on her request to halt the license renewal proceedings, then her request is still pending and, therefore, CLI-07-3 is not in all respects a final decision.
The NRC Staff and Entergy8 oppose the Motion for Reconsideration.9 They say that the Mass AGs motion has not shown any basis for us to reconsider the ruling, and the motion is more a request for clarification than a request for reconsideration. They also suggest that the Commission make clear that our previous ruling was final with respect to the Mass AGs participation in the Pilgrim and Vermont Yankee license renewal proceedings.10 II. ANALYSIS A. No Basis for Reconsideration Despite its characterization as a motion for reconsideration, the Mass AGs pleading gives us no reason to reconsider our decision in CLI-07-3. A motion for reconsideration 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.11 The Mass AG calls the decision internally inconsistent, unclear, or potentially prejudicial to her 7
See CLI-07-3, slip op. at 9 n.37.
8 Entergy Nuclear Operations, Inc., together with Entergy Nuclear Generation Company, holds the operating license for the Pilgrim Nuclear Power Station. Entergy Nuclear Operations, Inc. and Entergy Vermont Yankee, LLC, hold the license for the Vermont Yankee Nuclear Power Station. In todays decision we refer to the license applicants collectively as Entergy.
9 See NRC Staff Answer to Massachusetts Attorney General Motion for leave to File and Motion for Reconsideration of CLI-07-03 (Feb. 16, 2007); Entergys Response to Massachusetts Attorney Generals Motion for Reconsiderationand Clarification of CLI-07-03 (Feb. 16, 2007).
10 Id. at 5.
11 10 C.F.R. § 2.323(e).
4 claims,12 but does not contend that it violates our regulations or NEPA. The whole of the Mass AGs argument goes to the supposed ambiguity concerning the decisions finality. She has not demonstrated a clear and material error in our affirming the two Board decisions we were reviewing.
B. Finality of Decision Our decision in CLI-07-3 was final as to the Mass AGs only claims in the two license renewal proceedings. The Mass AG has no claim remaining in either adjudication. Thus, if she wants to pursue judicial review of our rejection of her contentions, she must do so now.13 It is true that the petition for rulemaking currently under consideration might possibly render judicial review moot. But the mere potential that an issue may become moot in the future due to a rulemaking does not affect the finality of the decision today.
To clarify an additional point, under NRC regulations, the Mass AG currently has no right to request that the final decisions in Pilgrim and Vermont Yankee license renewal proceedings be stayed until the rulemaking is resolved.14 As we indicated in CLI-07-3, only a party to the proceedings, or an interested governmental entity participating under 10 C.F.R.
§2.315, may file a request to stay proceedings (pending a rulemaking) under 10 C.F.R.
§2.802.15 The Mass AG is neither. Because she did not offer an admissible contention, she 12 Massachusetts Attorney Generals Motion for Reconsideration, at 2.
13 See Environmental Law and Policy Ctr. v. NRC, 470 F.3d 676, 681 (7th Cir. 2006).
She also has the option of awaiting an NRC decision in her petition for rulemaking. Agency decisions on rulemaking petitions are judicially reviewable. See, e.g., Bullcreek v. NRC, 359 F.3d 536 (D.C.Cir. 2004).
14 The Mass AGs rulemaking petition requested such. CLI-07-3, slip op. at 9 n.37.
15 Id.
5 was never admitted to either of the two proceedings as a party.16 III. CONCLUSION For the forgoing reasons, the Mass AGs motion for reconsideration is denied. Our decision in CLI-07-3 is clarified as above.
For the Commission
/RA/
Annette L. Vietti-cook Secretary of the Commission Dated at Rockville, MD This 15th day of March, 2007 16 A state may participate either as an interested governmental entity or as a party with its own contentions, but not both. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619 626-27 (2004). Therefore, the Mass AG could not have sought participation status under section 2.315 while the appeal on the admissibility of her contention was still pending. But, as at least one contention has been admitted for hearing in each of the Vermont Yankee and Pilgrim proceedings, the Mass AG could seek participant status even now.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE LLC )
)
and ) Docket No. 50-271-LR
)
ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-07-13) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, and NRC internal mail on March 16, 2007.
Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.gov Administrative Judge Administrative Judge Richard E. Wardwell Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: elleman@eos.ncsu.edu E-mail: rew@nrc.gov Mitzi A. Young, Esq. Ronald A. Shems, Esq.
Steven C. Hamrick, Esq. Karen Tyler, Esq.
David E. Roth, Esq. Shems Dunkiel Kassel & Saunders, PLLC Office of the General Counsel 91 College Street Mail Stop - O-15 D21 Burlington, VT 05401 U.S. Nuclear Regulatory Commission E-mail: rshems@sdkslaw.com; Washington, DC 20555-0001 ktyler@sdkslaw.com E-mail: may@nrc.gov; sch1@nrc.gov; der@nrc.gov
2 Docket No. 50-271-LR COMMISSION MEMORANDUM AND ORDER (CLI-07-13)
Sarah Hofmann, Esq. Anthony Z. Roisman, Esq.
Director for Public Advocacy National Legal Scholars Law Firm Department of Public Service 84 East Thetford Rd.
112 State Street - Drawer 20 Lyme, NH 03768 Montpelier, VT 05620-2601 E-mail: aroisman@nationallegalscholars.com E-mail: sarah.hofmann@state.vt.us Matthew Brock, Esq. Diane Curran, Esq.
Assistant Attorney General Harmon, Curran, Spielberg, Office of the Massachusetts Attorney General & Eisenberg, L.L.P.
Environmental Protection Division 1726 M Street, NW, Suite 600 One Ashburton Place, Room 1813 Washington, DC 20036 Boston, MA 02108-1598 E-mail: dcurran@harmoncurran.com E-mail: matthew.brock@ago.state.ma.us Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Town of Marlboro P.O. Box 30 SelectBoard Marlboro, VT 05344 P.O. Box 518 E-mail: dmacarthur@igc.org Marlboro, VT 05344 E-mail: cbnewton@sover.net David R. Lewis, Esq. Jennifer J. Patterson, Esq.
Matias F. Travieso-Diaz, Esq. Office of the New Hampshire Pillsbury Winthrop Shaw Pittman LLP Attorney General 2300 N Street, NW 33 Capitol Street Washington, DC 20037-1128 Concord, NH 03301 E-mail: david.lewis@pillsburylaw.com; E-mail: jennifer.patterson@doj.nh.gov matias.travieso-diaz@pillsburylaw.com
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 15th day of March 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
)
(Pilgrim Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-07-13) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, and NRC internal mail on March 16, 2007.
Office of Commission Appellate Administrative Judge Adjudication Ann Marshall Young, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: AMY@nrc.gov 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-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 E-mail: RFC1@nrc.gov E-mail: pba@nrc.gov Susan L. Uttal, Esq. Diane Curran, Esq.
Marian L. Zobler, Esq. Harmon Curran, Spielberg & Eisenberg, L.L.P.
Molly L. Barkman, Esq. 1726 M. Street N. W., Suite 600 Office of the General Counsel Washington, D.C. 20036 Mail Stop - O-15 D21 E-mail: dcurran@harmoncurran.com U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: slu@nrc.gov E-mail: mlz@nrc.gov E-mail: mlb9@nrc.gov E-mail: OGCMailCenter@nrc.gov
2 Docket No. 50-293-LR COMMISSION MEMORANDUM AND ORDER (CLI-07-13)
Matthew Brock, Assistant Attorney General Terence A. Burke, Esq.
Environmental Protection Division Entergy Nuclear Office of the Attorney General 1340 Echelon Parkway One Ashburton Place Mail Stop M-ECH-62 Boston, MA 02108 Jackson, MS 39213 E-mail: matthew.brock@ago.state.ma.us E-mail: tburke@entergy.com Molly H. Bartlett, Esq. David R. Lewis, Esq.
52 Crooked Lane Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury Winthrop Shaw Pittman LLP E-mail: mollyhbartlett@hotmail.com 2300 N Street, N.W.
Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com; paul.gaukler@pillsburylaw.com Mary E. Lampert, Sheila Slocum Hollis, Esq.
Director of Pilgrim Watch Town of Plymouth MA 148 Washington Street Duane Morris, LLP Duxbury, MA 02332 1667 K. Street, N.W.
E-mail: lampert@adelphia.net Suite 700 Washington, D.C. 20006 E-mail: sshollis@duanemorris.com Mark D. Sylvia Town Manager Town Managers Office 11 Lincoln Street Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 15th day of March 2007