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
1 CLI-07-3, 65 NRC __ (Jan. 22, 2007).
2 LBP-06-20, 64 NRC 131 (2006).
3 LBP-06-23, 64 NRC __(2006).
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
2 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).
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
3 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).
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
4 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.
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
5 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.
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
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 Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Administrative Judge Alex S. Karlin, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.gov Administrative Judge Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.gov Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612 E-mail: elleman@eos.ncsu.edu Mitzi A. Young, Esq.
Steven C. Hamrick, Esq.
David E. Roth, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: may@nrc.gov; sch1@nrc.gov; der@nrc.gov Ronald A. Shems, Esq.
Karen Tyler, Esq.
Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 E-mail: rshems@sdkslaw.com; ktyler@sdkslaw.com
2 Docket No. 50-271-LR COMMISSION MEMORANDUM AND ORDER (CLI-07-13)
Sarah Hofmann, Esq.
Director for Public Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us Anthony Z. Roisman, Esq.
National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 E-mail: aroisman@nationallegalscholars.com Matthew Brock, Esq.
Assistant Attorney General Office of the Massachusetts Attorney General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598 E-mail: matthew.brock@ago.state.ma.us Diane Curran, Esq.
Harmon, Curran, Spielberg,
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Callie B. Newton, Chair Gail MacArthur Lucy Gratwick Town of Marlboro SelectBoard P.O. Box 518 Marlboro, VT 05344 E-mail: cbnewton@sover.net Dan MacArthur, Director Town of Marlboro Emergency Management P.O. Box 30 Marlboro, VT 05344 E-mail: dmacarthur@igc.org David R. Lewis, Esq.
Matias F. Travieso-Diaz, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com; matias.travieso-diaz@pillsburylaw.com Jennifer J. Patterson, Esq.
Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301 E-mail: jennifer.patterson@doj.nh.gov
[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 Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: AMY@nrc.gov Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: RFC1@nrc.gov Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pba@nrc.gov Susan L. Uttal, Esq.
Marian L. Zobler, Esq.
Molly L. Barkman, Esq.
Office of the General Counsel Mail Stop - O-15 D21 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 Diane Curran, Esq.
Harmon Curran, Spielberg & Eisenberg, L.L.P.
1726 M. Street N. W., Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com
2 Docket No. 50-293-LR COMMISSION MEMORANDUM AND ORDER (CLI-07-13)
Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 E-mail: matthew.brock@ago.state.ma.us Terence A. Burke, Esq.
Entergy Nuclear 1340 Echelon Parkway Mail Stop M-ECH-62 Jackson, MS 39213 E-mail: tburke@entergy.com Molly H. Bartlett, Esq.
52 Crooked Lane Duxbury, MA 02332 E-mail: mollyhbartlett@hotmail.com David R. Lewis, Esq.
Paul A. Gaukler, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W.
Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com; paul.gaukler@pillsburylaw.com Mary E. Lampert, Director of Pilgrim Watch 148 Washington Street Duxbury, MA 02332 E-mail: lampert@adelphia.net Sheila Slocum Hollis, Esq.
Town of Plymouth MA Duane Morris, LLP 1667 K. Street, N.W.
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