ML071440207
| ML071440207 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 05/04/2007 |
| From: | Gaukler P Entergy Nuclear Generation Co, Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, 1st Circuit |
| Cordes John (301) 415--1600 | |
| References | |
| 07-1482, 07-1483 | |
| Download: ML071440207 (22) | |
Text
United States Court of Appeals For the First Circuit Nos. 07-1482 COMMONWEALTH OF MASSACHUSETTS.
Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents No. 07-1483 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents ENTERGY'S OPPOSITION TO THE COMMONWEALTH OF MASSACHUSETTS' MOTION TO HOLD THE PETITIONS FOR REVIEW IN ABEYANCE Pursuant to Rule 27(a)(3) of the Federal Rules of Appellate Procedure, Entergy Nuclear Operations, Inc., Entergy Nuclear Vermont Yankee LLC, and Entergy Nuclear Generation Company (collectively, "Entergy") file' their opposition to the Commonwealth of Fed. R. App. P. 27(a)(3) allows "[a]ny party" to the proceeding to file a response to a motion. Although not as yet a party to this proceeding, currently pending before this Court is Entergy's April 20, 2007 Motion for Intervention as of Right which neither the Petitioner nor the Respondents oppose. Thus, Entergy respectfully requests this Court to consider its Opposition to the Commonwealth of Massachusetts' Motion to Hold the Petitions for Review in Abeyance.
Massachusetts' ("Commonwealth" or "Massachusetts") April 24, 2007 Motion to Hold Petitions For Review In Abeyance ("Abeyance Motion").2 Holding the Commonwealth's Petitions for Review in abeyance is inappropriate. The Commonwealth's petition for rulemaking currently pending before the Commission concerns generic industry-wide issues wholly separate and distinct from the Commission decisions that
- denied the Commonwealth intervention in the Vermont Yankee Nuclear Power Station
("VYNPS") and Pilgrim Nuclear Power Station ("PNPS") license renewal proceedings. Indeed, the Nuclear Regulatory Commission ("NRC" or "Commission") decisions 3 challenged in the Commonwealth's Petitions for Review are final agency action fully ripe for immediate judicial review. There is no basis to hold in abeyance this Court's consideration of the Petitions for Review until the conclusion of either theVYNPS or PNPS license renewal proceedings, or until the.Commission rules on the Commonwealth's petition for rulemaking.
I. BACKGROUND As the Commonwealth acknowledges, the NRC rejected basically identical spent fuel pool contentions in the VYNPS and PNPS license renewal proceedings on the "procedural ground" that the contentions impermissibly challenged NRC regulations. Abeyance Motion at 4.
Briefly explained, both NRC regulation and Commission precedent expressly prohibit the admission of contentions that challenge the NRC's regulations in plant specific licensing 2 Fed. R. App. P. 27(a)(3) and 26(a)(2) provide for 8 days, excluding weekends and legal holidays, to file a response to a motion. Fed. R. App. P. 26(c) provides an additional 3 calendar days for service where, as is the case here, the filing is not delivered on the date of service stated in the proof of service. Thus, Entergy's Opposition is due on May 7, 2007.
3 Entergy Nuclear Vermont Yankee LLC and Enteray Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 N.R.C. 131 (Sept. 22, 2006); Entermv Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257 (Oct. 16, 2006); Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) and Entergy Nuclear Generation Co. and Entercy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 03, __ N.R.C. __ (Jan. 22, 2007), reconsideration denied, CLI-07-13, __ N.R.C. _ (Mar. 15, 2007).
2
proceedings absent a waiver being granted by the Commission. 10 C.F.R. § 2.335(a) & (b)4 ;
CLI-07-03, slip op. at 3. The regulation at issue here is the Commission's generic determination that "spent fuel from an additional 20 years of operation can be safely accommodated ... with small environmental effects" at nuclear power plants whose licenses are renewed. CLI-07-03, slip op. at 3 & n. 14 (emphasis added). This generic determination has been "expressly incorporated" into the Commission's regulations. CLI-07-03, slip op. at 3; 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 "Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants."
Here, the Commonwealth chose not to petition for a waiver of the regulation but nevertheless advanced a contention in both the VYNPS and PNPS license renewal proceedings that directly challenged this Commission regulation. Both Licensing Boards rejected the contentions for impermissibly challenging the regulation. LPB-06-20, 64 N.R.C. at 155, LBP-06-23, 64 N.R.C. at 288. The Commission affirmed. CLI-07-03, slip op. at 10.
These decisions are in line with long standing Commission precedent. The Commission has repeatedly held that its generic determinations, such as the spent fuel pool issue finding, cannot be challenged in an individual licensing proceeding. See CLI-07-03, slip op. at 6 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 N.R.C. 3 (2001)). Rather, the Commission has promulgated a rule embodying its policy determination that its regulations cannot be attacked in individual licensing proceedings. 10 C.F.R. §2.335(a). As applied to the instant proceeding, the Commission simply believes that
"[ijt makes more sense" for the NRC to address generic concerns "relating to spent fuel storage for all plants across the board" rather than in individual licensing proceedings. CLI-07-03, slip 4 For the convenience of the Court, a copy of 10 C.F.R. § 2.335 is provided at Exhibit 1.
3
op. at 7 (emphasis added). Indeed, apparently recognizing the appropriate means to seek redress of its spent fuel pool concerns, on August 25, 2006, the Commonwealth file a rulemaking petition that seeks redress of its spent fuel pool concerns "across the board" to all reactors.
Massachusetts Attorney General; Receipt of Petition for Rulemaking, 71 Fed. Reg. 64,169, 64,170 (Nov. 1, 2006). 5 II. THE COMMONWEALTH'S PETITION FOR RULEMAKING IS WHOLLY SEPARATE AND DISTINCT FROM ITS REJECTED INTERVENTION PETITIONS IN THE VYNPS AND PNPS LICENSE RENEWAL PROCEEDINGS.
It is only the NRC's procedural ruling denying the Commonwealth's intervention petition in each license renewal proceeding that is the subject of the Petitions for Review before this Court. However, the Commonwealth. seeks to entangle its Petitions for Review - which concern the simple procedural issue of whether the Commonwealth impermissibly sought to challenge generic Commission regulations in the context of individual licensing proceedings -
with its separate petition for rulemaking currently pending before the Commission, which seeks to amend the Commission's generic regulation that the environmental impacts of on-site spent fuel storage are "small" because of alleged new and significant information. 6 The validity of the Commission's procedural decisions in the VYNPS and PNPS licensing proceedings under review here are in no way affected by the resolution of the generic rulemaking proceeding.
Therefore, the Commonwealth's effort to entangle the rulemaking proceeding with the license renewal proceedings should be rejected.
5 For the convenience of the Court, a copy of the Petition for Rulemaking is provided at Exhibit 2.
6 Despite the Commonwealth's claims of new and significant information, the issue raised by the Commonwealth has been extensively studied and no new and significant information exists that would in any way alter the Commission's generic determination that the environmental impacts of on-site spent fuel storage are "small." See Nuclear Energy Institute's Comments on the Massachusetts Attorney General's "Petition for Rulemaking to Amend 10 C.F.R. Part 51" (PRM-51-10), dated Mar. 19, 2007 at 5; see also LBP-06-20, 64 N.R.C. at 160 ("This ground is well trod.").
4
Furthermore, the Commonwealth's petition for rulemaking, on its face, seeks remedies that would impact all nuclear power plants, not just VYNPS or PNPS. The rulemaking petition seeks to "revoke[] 'across the board"' "NRC's conclusion regarding the degree of vulnerability of high-density spent fuel storage pools to fire" because the conclusion is "contained in numerous NEPA and other licensing documents, and affects many licensing decisions." 71 Fed.
Reg. at 64,170. Thus, it would be inappropriate to focus on the license renewal proceedings of two nuclear power plants pending resolution of a generic issue that impacts all nuclear plants.
Even assuming that the Commission found any portion of the rulemaking petition to have merit (see note 6 supra, the Commission could still extend the licenses of the two plants and undertake any. actions it thought necessary to address the rulemaking petition. The Commission has a quiver full of regulatory arrows at its-disposal (e.g., issuing a fleet-wide order; promulgating a rule; commencing a generic environmental impact proceeding) that are the appropriate means to redress the Commonwealth's "across the board" concerns at issue in its petition for rulemaking.
Moreover, postponing review of the Commonwealth's Petitions for Review would not, "significantly advance [this Court's] ability to deal with the legal issues presented nor aid [this Court] in their resolution." Duke Power Co. v. Carolina Envt'l. Study Group 438 U.S. 59, 82 (1978). Waiting for either license renewal proceeding to conclude will not render any more clear whether the Commission appropriately applied its regulations and denied the Commonwealth's intervention petitions into the VYNPS and PNPS license renewal proceedings. Likewise, waiting for the Commission to rule on the Commonwealth's petition for rulemaking will not help to answer whether the Commission appropriately rejected the Commonwealth's contentions because they impermissibly challenged its regulations. Deferring action on the Commonwealth's Petitions for Review could only potentially delay the license renewal proceedings should this 5
Court conclude that the Commission acted wrongfully in denying the Commonwealth's intervention petitions and, remand the matter to the Commission for further action.
Lastly, the Hobbs Act governs judicial review of NRC decisions. 28 U.S.C. § 2342(4);
Massachusetts v. NRC, 878 F.2d 1516, 1519 (1st Cir. 1989). In enacting the Hobbs Act, Congress has declared its strong preference for immediate review of NRC decisions by providing a short time limitation - 60 days - for a party aggrieved by an NRC action to file, a petition for review. 28 U.S.C. § 2344; see Eagle-Picher Indus. v. EPA, 759 F.2d 905, 918 (D.C. Cir. 1985)
(stating that "Congress has emphatically declared a preference for immediate review" of agency action where it provided a ninety day limitation on petitions for review) (emphasis added); Ass'n of Am. R.R.s v. ICC, 846 F.2d 1465, 1469 (D.C. Cir. 1988) (holding that Eagle-Picher "applies with full force" to appeals filed under the Hobbs Act). Thus, it would be contrary to congressional intent to hold the Petitions for Review in abeyance pending any one of the three triggering events suggested by the Commonwealth.
III. CONCLUSION For the reasons set forth above, this Court should deny the Commonwealth's Motion to Hold the Petitions for Review in Abeyance.
Respectfully submitted, David R. Lew s Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 Dated: May 4, 2007 Counsel for Entergy 6
EXHIBIT 1
§ 2.335 10 CFR Ch. I (1-1--06 Edition)
(1) Whether the requesting party has a provision of it) would not serve the exercised due diligence to adhere to the purposes for which the rule or regula-schedule; tion was adopted. The petition must be (2) Whether the requested change is accompanied by an affidavit that iden-the result of unavoidable cir- tifies the specific aspect or aspects of cumstances; and the subject matter of the proceedingas (3) Whether the other parties have to which the application of the rule or agreed to the change, and the overall ef- regulation (or provision of it) would fect of the change on the schedule of not serve the purposes for which the the case. rule or regulation was adopted. The af-(c) The presiding officer shall provide fidavit must state with particularity written notification to the Commission the special circumstances alleged to any time during the course of the pro- justify the waiver or exception re-ceeding when it appears that there will quested. Any other party may file a re-be a delay of more than forty-five (45) sponse by counter affidavit or other-
.days in meeting any of .the dates for wise..
major activities in the hearing sched- (c) If, on the basis of the petition, af-ule established by the presiding. officer fidavit and any response permitted under 10 CFR 2.332(a), or that the com- under paragraph (b) of this section, the pletion of the record or the issuance of presiding officer determines that the the initial decision will be delayed petitioning party has not made a prima more than' sixty (60) days beyond the facie showing that the application of time. specified in the hearing schedule the specific Commission rule or regula-established under 10 CFR 2.332(a). The tion (or provision thereof) to a par-notification must include an, expla- ticular aspect or aspects of, the subject nation of the reasons for the projected matter of the proceeding would not delay and a description of the actions, serve the purposes for which the rule or if any, that the presiding officer or the regulation was adopted and that appli-Board proposes to take to avoid or cation of the rule or regulation should mitigate the delay. be waived or an exception granted, no (70 FR 20461, Apr. 20, 2005] evidence may be received on that mat-ter and no discovery, cross-examina-
§ 2.335 Consideration of Commission tion or argument directed to the mat-rules and regulations in adjudica- ter will be permitted, and the presiding tory proceedings. officer may not further consider the (a) Except as provided in paragraphs matter.
(b), (c), and (d) of this section, no rule (d) If, on the basis of the petition, af-or regulation of the Commission, or fidavit and any response provided for in any provision thereof, concerning the paragraph (b) of this section, the pre-licensing of production and utilization siding officer determines that the prima facilities, source material, special nu- facie showing required by paragraph (b) clear material, or byproduct material, of this section has been made, the pre-is subject to attack by way of dis- siding officer shall, before ruling on the covery, proof, argument, or other petition, certify the matter directly to means in any adjudicatory proceeding the Commission (the matter will be subject to this part. certified to the Commission notwith-(b) A party to an adjudicatory pro- standing other provisions on certifi-ceeding subject to this part may peti- cation in this part) for a determination tion that the application of a specified in the matter of whether the applica-'
Commission rule or regulation or any tion of the Commission rule or regula-provision thereof, of the type described tion or provision thereof to a par-in paragraph (a) of this section, be ticular aspect or aspects of the subject waived or an exception made for the matter of the proceeding, in the con-particular proceeding. The sole ground text of this section, should be waived for petition of waiver or exception is or an exception made. The Commission
.that special circumstances with re- may, among other things, on the basis spect to the subject matter of the par- of the petition, affidavits, and any re-ticular proceeding are such that the sponse, determine whether the applica-application of the rule or regulation (or tion of the specified rule or regulation 60
Nuclear Regulatory Commission § 2.336 (or provision thereof) should be waived the relevant document, data compila-or an exception be made. The Commis- tion, or tangible thing.
sion may direct further proceedings as (3) A list of documents otherwise re-it considers appropriate to aid its de- quired to be disclosed for which a claim termination. of privilege or protected status is being (e) Whether or not the procedure, in made, together with sufficient infor-paragraph (b) of this section is avail- mation for assessing the claim of privi-able, a party to an initial or renewal li- lege or protected status of the docu-censing proceeding may file a petition ments.
for rulemaking under §2.802. (b) Except for proceedings conducted under subpart J of this part or as oth-
§ 2.336 General discovery. erwise ordered by the Commission, the presiding officer, or the Atomic Safety (a) Except for proceedings conducted and Licensing Board assigned to the under subparts G and J of this part or proceeding, the NRC staff shall, within as otherwise ordered by the Commis-thirty (30) days of the issuance of the sion, the presiding officer or the Atom- order granting a request for hearing or ic Safety and Licensing Board assigned petition to intervene and Without fur-to the proceeding, all parties, other ther order or request from any party, than the NRC staff, to any proceeding disclose and/or provide, to the extent subject to this part shall, within thirty available (but excluding those docu-(30) days of the issuance of the order ments for which, there is: a claim of granting a request for hearing or peti- privilege or protected status):
tion to intervene and without further (1) The application and/or applicant/
order or request from any party, dis- licensee requests *associated with the close and provide: application or proposed action that is (1) The name and, If known,,the ad- the subject of the proceeding; dress and telephone: number of any per- (2) NRC correspondence with the ap-.
son, including any expert, upon whose plicant or licensee associated with the opinion the party bases its claims and application or proposed action that is contentions and may rely upon as a the subject of the proceeding; witness, and a copy of the analysis or (3) All documents (including docu-other authority upon which that per- ments that provide support for, or op-son bases his or her opinion; position to, the application or proposed (2)(1) A copy, or a description by cat- action) supporting the NRC staff's re-egory and location, of all documents view of the application or proposed ac-and data compilations in the posses- tion that is the subject of the pro-sion, custody, or control of the party ceeding; that are relevant to the contentions, (4) Any NRC staff documents (except provided that if only a description is those documents for which there is a provided of a document or data com- claim of privilege or protected status) pilation, a party shall have the right to representing the NRC staffs deter-request copies of that document and/or mination on the application or pro-data compilation, and posal that is the subject of the pro-(ii) A copy (for which there is no ceeding; and claim of privilege or protected status), (5) A list of all otherwise-discover-or a description by category and loca- able documents for which a claim of tion, of all tangible things (e.g., books, privilege or protected status is being publications and treatises) in the pos- made, together with sufficient infor-session, custody or control of the party mation for assessing the claim of privi-that are relevant to the contention. lege or protected status of the docu-(iii) When any document, data com- ments.
pilation, or other tangible thing that (c) Each party and the NRC staff must be disclosed is publicly available shall make its initial disclosures under from another source, such as at the paragraphs (a) and (b) of this section, NRC Web site, http: //www.nrc.gov, and/ based on the information and docu-or the NRC Public Document Room, a mentation then reasonably available to sufficient disclosure would be the loca- it. A party, including the NRC staff, is tion, the title and a page reference to not excused from making the required 61
EXHIBIT 2 Federal Register/Vol. 71, No. 211/Wednesday, November 1, 2006/Proposed Rules 64169 19, 2002, to the Commission on the individuals.certified before that date to NUCLEAR REGULATORY proposed amendments to Part 35 that if pursue the alternate pathway. The COMMISSION the requirements for recognition of petitioner believes that the current specialty board certifications were to provision places an undue burden on 10 CFR Part 51 become effective as drafted, there could the medical community and could [Docket No. PRM-51-10]
be potential shortages of individuals result in a shortage of AMPs and RSOs.
qualified to serve as RSOs, AMPs, The petitioner notes that the AMP is Massachusetts Attorney General; ANPs, and AUs because they would no a recent addition to licenses granted Receipt of Petition for Rulemaking longer meet T&E requirements under the under 10 CFR part 35 and Agreement cer tification pathway. The petitioner State regulations. The petitioner AGENCY: Nuclear Regulatory also states that the ACMUI was describes the previous regulations Commission.
concerned that the specialty boards before the concept of the AMNwas ACTION: Petition for rulemaking; notice might be "marginalized" and that introduced as "inconsistent." The of receipt.
ACMUI urged the Commission to *petitioner believes this inconsistency address T&E issues associated with was the basis for the requirement to list
SUMMARY
- The Nuclear Regulatory recognition of specialty boards. The an AMP on licenses. The petitioner also Commission (NRC) is publishing for petitioner notes that the NRC modified states that this requirement specifies public comment a notice of receipt of a the regulation by reinserting Subpart J that an individual must have a petition for rulemaking, dated August until October 24,. 2005. statement signed by a "preceptor AMP" 25, 2006, which was filed with the The petitioner requests that 10 CFR attesting that the individual is capable Commission by Diane Curran on behalf 35.57 be amended to recognize medical of acting independently for the specified of Massachusetts Attorney General. The physicists certified by either the ABR or modality. The petitioner indicated that petition was docketed by the NRC on ABMP on or before October 24,2005,. without medical physicists listed on September 19,2006, and has been "as grandfathered for the modalties that licenses prior to the new regulation, assigned Docket No. PRM-51-10. The they practiced as of October 24, 2005." there is limited opportunity for a petitioner requests that the NRC revoke The petitioner also states that this medical physicist to serve as a certain regulations in their entirety, and amendment "should be independent of preceptor. The petitioner believes that revoke other regulations to the extent whether or not a medical physicist was for a medical physicist to be that these regulations, in the petitioner's named on an NRC or an Agreement "grandfathered" under the new view, state, imply, or assume that the State license as of October 24, 2005.'" regulation, the individual must have environmental impacts of storing spent The petitioner states that 10 CFR 35.57 been listed on a license as of the nuclear fuel in high-density pools are should also be amended to recognize all effective date of the regulation. The not significant; issue a generic individuals certified by the named petitioner has stated that its suggested determination to clarify that the boards in Subpart J for RSOs who have amendment to § 35.57 would allow environmental impacts of high-density relevant work experience even if an individuals to serve as AMvPs or pool storage of spent fuel, will be individual has not been formally preceptor AMNs without having to be considered significant; and require that
."named" as an RSO and that these any NRC licensing decision concerning recognized via the "alternate pathway."
individuals "need to be grandfathered The petitioner also notes that high-density pool storage of spent as an RSO by virtue of certification licensees carnspecify only one nuclear fuel be accompanied by an providing the appropriate preceptor individual as an RSO under the current environmental impact statement that statement is submitted." provisions, unlike the position of AU for addresses the environmental impacts of The petitioner states that although the which there are typically multiple this storage and alternatives for avoiding AAPM, ABR, and ABMP recognize that individuals named on a license. The or mitigating any environmental it was never the NRC's intent to deny petitioner believes this makes it more *impacts. The petitioner is seeking the recognition to any currently practicing difficult for an AMP or other Board generic treatment of spent fuel pool medical physicist or to minimize the diplomates to have acquired the hazards because he believes that a pool importance of a certifying board, these requisite grandfather status before accident at any operating nuclear power organizations remain concerned about October 24, 2005. The petitioner has plant in the New England and Mid-the NRC staff's method used to grant stated that the NRC should recognize Atlantic states could significanily affect recognized status to the process used by individuals who were certified by a the health, environmental, and certifying boards. The petitioner is board listed in former Subpart J for economic well-being of Massachusetts.
concerned that the effective date § 35.50 (RSO) and § 35.51 (AMP) prior DATES: Submit comments by January 16, assigned by the staff once it recognizes to October 24, 2005. 2007. Comments received after this date a board's process may force individuals The petitioner concluded that its will be considered if it is practical to do certified prior to that date to have to proposed amendment should be enacted so, but the Commission is able to assure pursue the alternate pathway. The expeditiously to permit individuals consideration only for comments petitioner indicates that it has affirmed certified by the boards listed in Subpart with the ABR and ABMP that they received on or before this. date.
J.to continue practicing medical physics ADDRESSES: You may submit comments believed that existing diplomates' and serving as RSOs to assure the certificationt (i.e., certificates issued on this petition by any one of the continuation of high quality patient following methods. Please include before October 25, 2005) would care.
continue to be recognized by the NRC or PRM-51-1O in the subject line of your Dated at Rockville, Maryland, this 26th day comments. Comments on petitions an Agreement State. The petitioner of October 2006.
believes that medical physicists have submitted in writing or in electronic For the Nuclear Regulatory Commission. form will-be made available forpublic demonstrated competence to practice through ABR or ABMP certification and Annette L. Vwtti-Cook, inspection. Because your comments will remains concerned that the effective Secretory of the Commission. not be edited to remove any identifying date assigned by the NRC staff after it- [FR Doc. E6-18363 Filed 10-31-06; 8:45 am] or contact information, the NRC recognizes a board's process may force BILUNG CODE 7590-01-P cautions you against including any HeinOnline -- 71 Fed..Reg. 64169 2006
64170 Federal Register/Vol. 71, No. 211/Wednesday, November 1, 2006/Proposed Rules information in your submission that you of Administrative Services, Office of e Issue a generic determination that do not want to be publicly disclosed. Administration, U.S. Nuclear Regulatory the environmental impacts of high-Mail comments to: Secretary, U.S. Commission, Washington, DC 20555- density pool storage of spent fuel, Nuclear Regulatory Commission, 0001, Telephone: 301-415-7163 or Toll including the environmental impacts of.
Washington, DC 20555-0001, Attn: Free: 1-800-368-5642. accidents arising from this storage, are Rulemakings and Adjudications Staff. SUPPLEMENTARY INFORMATION: significant.
E-mail comments to: SECY@nrc~gov. If e Amend its' regulations concerning you do not receive a reply e-mail Background severe accident mitigation alternatives confirming that we have received your The petitioner states that this petition (SAMAs). The petitioner requests that comments, contactus directly at (301) for rulemaking is a companion to the the body of SAMAs that must be 415-1966. You may also submit contentions filed by the Massachusetts discussed in an environmental impact comments via the NRC's rulemaking Attorney General. on May 26, 2006, statement or related supplement or in an.
Web site at http://ruleforum.lln1.gov. before the NRC's Atomic Safety and environmental assessment, under 10 Address questions about our rulemaking Licensing Board (ASLB) in the license CFR 51.53(c)(3)(ii)(L) and Table B-I Web site to Carol Gallagher (301) 415- renewal proceedings for the Pilgrim and appendix A to 10 CFR part 51 5905; e-mail cag@nrc.gov. Comments Vermont Yankee nuclear power plants, (Postulated Accidents: Severe can also be submitted via the Federal and raises the same substantive concern Accidents) must include alternatives to eRulemaking Portal http:// as those contentions, namely, that spent avoid or mitigate the impacts of high-www.regulotions.gov. fuel stored in high-density fu6l storage density pool fires.
Hand delivercomments to: 11555 pools is much more vulnerable to fire
- Require that any NRC licensing Rockville Pike, Rockville, Maryland than the NRC's NUREG-1437, "Generic decision that approves high-density 20852, between 7:30 a.m. and 4:15 p.m. Environmental Impact Statement for pool storage of spent fuel at a nuclear Federal workdays. (Telephone (301) License Renewal of Nuclear Plants" power plant or any other facility must 415--1966). (May 1996) (GEIS) concludes. The be accompanied by an environmental Fax comments to: Secretary, U.S. petitioner states that the petition relies impact statement that addresses the Nuclear Regulatory Commission at (301) on and incorporates by reference the environmental impacts of high-density 415-1101. legal and technical assertions made in pool storage of spent fuel at that nuclear Publicly available documents related the Massachusetts Attorney General's plant or facility, and presents a to this petition may be viewed contentions. The Massachusetts reasonable array of alternatives for electronically on-the public computers Attorney General's Request for a avoiding or mitigating those impacts.
located at the NRC's Public Document Hearing and Petition to Intervene With Room (PDR), Room 01 F21, One White Respect to Entergy Nuclear Operations Conclusion Flint North, 11555 Rockville Pike, Inc.'s Application for Renewal of the Rockville, Maryland. The PDR Vermont Yankee Nuclear Plant. The petitioner asserts that a generic reproduction contractor will copy Operating License can be found in rulemaking would be the most effective documents for~a fee. Selected NRC's.ADAMS system at accession means to ensure broad protection of documents, including comments, may number ML061640032. public health and the environment. The be viewed and downloaded . The petitioner has filed this petition petitioner states that NRC's conclusion electronically via the NRC rulemaking in the event that the ASLB rules that regarding the degree of vulnerability of Web site at http://ruleforum.llnl.gov. certain NRC regulations render the high-density spent fuel storage pools to Publicly available documents created petitioner's contentions inadmissible. fire is contained in numerous NEPA and or received at the NRC after November other licensing documents, and affects 1, 1999, are available electronically at Petitioner's Request many licensing decisions.
the NRC's Electronic Reading Room at The petitioner requests that the NRC: Consequently, the petitioner asserts that http://www.nrc.gov/reading-rm/
- Revoke 10 CFR 51.53(c)(2). and this NRC conclusion should be revoked "across the board" to ensure that future odams.html. From this site, the public 51.95(c), and Table B-1 of appendix A can gain entry into the NRC's to 10 CFR part 51; and revoke 10 CFR NRC licensing decisions are not based Agencywide Document Access and 51.23(a) and (b), 51.30(b), 51.53, 51.61, on inadequate consideration of Management System (ADAMS), which and 51.80(b) to the extent that these environmental risks or measures for provides text and image files of NRC's regulations state, imply, or assume that avoiding or reducing those risks.
public documerits. If you do not have the'environmental impacts of high- Moreover, the petitioner asserts he has access to ADAMS or if there are density pool storage are insignificant an interest in seeking generic treatment problems in accessing the documents and therefore need not be considered in of spent fuel pool hazards because he located in ADAMS, contact the PDR any National Environmental Policy Act believes that a pool accident at any one Reference staff at 1-800-397-4209, 301- of 1969 (NEPA) analysis. The petitioner of the operating nuclear power plants in 415-4737 or by e-mail to pdr@nrc.gov. assets that the revocation of these the New England or Mid-Atlantic states A copy of the petition can be found regulations, which according to the could have a significant effect on the in ADAMS under accession number petitioner, "codify" the use of the GElS health, environmental, and economic ML062640409. A paper copy of the by the NRC, is necessary to ensure well-being of the Commonwealth of petition may be obtained by contacting compliance with NEPA in the Pilgrim Massachusetts.
Betty Golden, Office-of Administration, and Vermont Yankee license renewal Dated at Rockville, Maryland, this 26th day Nuclear Regulatory Commission, cases. In this regard, the petitioner of October 2006.
Washington DC, 20555-0001, telephone asserts that new and significant For the Nuclear Regulatory Commission.
301-415-6863, toll-free 1-800-368- information, provided by the petitioner, Annette L. Vietti-Cook, 5642, or by e-mail bkg2@nrc.gov. shows that spent nuclear fuel stored in high-density fuel storage pools is much Secrelary of the Commission.
FOR FURTHER INFORMATION CONTACT:
Michael T. Lesar, Chief, Rulemaking, more vulnerable to fire than the GEIS [FR.Doc. E6--18364 Filed 10-31-06; 8:45 am]
Directives and Editing Branch, Division concludes. BILLING CODE 7S90-01-P HeinOnline -- 71 Fed. Reg. 64170 2006
United States Court of Appeals For the First Circuit Nos. 07-1482 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents No. 07-1483 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents CERTIFICATE OF SERVICE Pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure and First Circuit Local Rule 15(d), I hereby certify that true copies of the foregoing "Entergy's Opposition to the Commonwealth of Massachusetts' Motion to Hold the Petitions for Review in Abeyance" were served upon the following by United States mail, first class, postage prepaid, on this 4 th day of May, 2007:
John F. Cordes, Jr., Esq. Alberto Gonzales, Esq.
Solicitor Attorney General of the United States Office of General Counsel U.S. Department of Justice U.S. Nuclear Regulatory Commission 950 Pennsylvania Avenue Washington, D.C. 20555-0001 Washington, D.C. 20530
Office of the Secretary Diane Curran, Esq.
U.S. Nuclear Regulatory Commission Harmon, Curran, Spielberg & Eisenberg, LLP Washington, D.C. 20555-0001 1726 M Street, N.W., Suite 600 Washington, D.C. 20036 Matthew Brock, Esq. Anthony Z. Roisman, Esq.
Assistant Attorney General National Legal Scholars Law Firm Environmental Protection Division 84 East Thetford Road Office of the Attorney General of the Lyme, NH 03768 Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 Ronald A. Shems, Esq. Sarah Hofinann, Esq.
Karen Tyler, Esq. Director of Public Advocacy Shems, Dunkiel, Kassel & Saunders, PLLC Vermont Department of Public Service 9 College Street 112 State Street - Drawer 20 Burlington, VT 05401 Montpelier, VT 05620-2601 Jennifer J. Patterson, Esq. Sheila Slocum Hollis, Esq.
Office of the New Hampshire Attorney Duane Morris, LLP General 1667 K St., NW 33 Capitol St. Washington, DC 20006 Concord, NH 03301 Molly Bartlett, Esq.
52 Crooked Lane Duxbury, MA 02332 Paul A. Gaukler 8
United States Court of Appeals For the First Circuit No. 07-1482 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents No. 07-1483 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents ENTERGY'S RESPONSE IN OPPOSITION TO THE NEW ENGLAND COALITION'S MOTION TO INTERVENE AS PETITIONER Pursuant to Rule 27(a)(3) of the Federal Rules of Appellate Procedure, Entergy Nuclear Operations, Inc., Entergy Nuclear Vermont Yankee LLC, and Entergy Nuclear Generation Company (collectively, "Entergy") file' their opposition to the New England Coalition's
("NEC") April 20, 2007 Motion to Intervene as Petitioner ("Motion to Intervene").2 Fed.R.App.P. 27(a)(3) allows "[a]ny party" to the proceeding to file a response to a motion. Although not as yet a party to this proceeding, currently pending before this Court is Entergy's April 20, 2007 Motion for Intervention as of Right which neither the Petitioner nor the Respondents oppose. Thus, Entergy respectfully requests this Court to consider its Response in Opposition to the New England Coalition's Motion to Intervene as Petitioner.
2 Fed.R.App.P. 27(a)(3) and 26(a)(2) provide for 8 days, not including Saturdays, Sundays, or legal holidays, to file a response to a Motion. Fed.R.App.P. 26(c) provides for an additional 3 calendar days for service where, as is the
Allowing NEC to intervene is unwarranted because NEC took no part in the proceedings before the U.S. Nuclear Regulatory Commission ("NRC") regarding the issue that gave rise to the review petitions herein. Moreover, NEC chose to rely on Petitioner Commonwealth of Massachusetts Attorney General ("Attorney General") to act as its representative with respect to the issue that is now on appeal. Thus it cannot plausibly claim that its interest on the issue will not be adequately represented by the Attorney General. Accordingly, NEC has no right, reason or need to intervene in this proceeding and its participation would only burden the Court and the parties without benefiting anyone.
I. BACKGROUND On May 26, 2006, the Attorney General and NEC filed separate petitions to intervene in the NRC proceeding for the renewal of the operating license of the Vermont Yankee Nuclear Power Station ('.'VY"). Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations, Inc., (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 N.R.C. 131, 140 (2006) ("LBP-06-20"). The Attorney General sought litigation of a single contention, which alleged that the VY license renewal application failed to satisfy the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f, and the NRC's implementing regulation, 10 C.F.R. § 51.53(c)(3)(iv),
because it did not address the risk of a catastrophic accident in the plant's high-density spent fuel storage pool due to a wide range of causes including terrorist attacks, natural phenomena, operator error, and equipment failure. LBP-06-20, 64 N.R.C. at 152-53. For its part, NEC raised six proposed contentions, none of which related to spent fuel pool accidents. Id. at 175-201.
case here, the filing is not delivered on the date of service stated in the proof of service. Thus, Entergy's Opposition is due on May 7, 2007.
2
On June 5, 2006, NEC moved to "adopt" the Attorney General's contention. Id. at 206.3 Other than filing a motion to adopt the Attorney General's contention, NEC took no-steps to participate in the litigation of the contention. NEC filed no briefs in support of the admissibility of the Attorney General's contention. It did not participate in theoral argument on the contention held on August 1, 2006 by.the Atomic Safety and Licensing Board ("Board") that presides over the VY license renewal proceeding. In LBP.-06-20, the Board issued its decision ruling on petitions to intervene, in which it rejected the Attorney General's contention. LBP 20, 64 N.R.C. at 161. The Attorney General then filed a petition for Commission review of the dismissal of its contention. NEC did not file a response in support of the Attorney General's petition for review, which was denied by the Commission. CLI-07-03, 65 NRC (Jan. 22, 2007). Nor did NEC file a response to the Attorney General's motion for reconsideration, which was also denied. CLI-07-13, 65 N.R.C. (Mar. 15, 2007). In short, NEC chose not to take part in the administrative litigation of the Attorney General's. contention, and was in no way a participant in the proceeding with respect to that contention.
II. ARGUMENT A. NEC has no right to intervene since it was not a party to the proceeding on which the instant petition to review is based It is well established, in this Circuit and elsewhere, that under the Hobbs Act only a "party aggrieved" by a final order of an agency may file a petition for its review in a Federal Court of Appeals. 4 See, e.g., Clark.& Reid, Inc. v. Household Gods Carriers'Bureau,Inc., 804 3 NEC's motion to adopt the Attorney General's contention was never ruled on by the Board because the Board found that the Attorney General's contention was inadmissible.
4 The Hobbs Administrative Orders Review Act, ch. 1189, 28 U.S.C. §§ 2341-2351 ("Hobbs Act") provides for direct Court of Appeals review of the final orders of six agencies (the Interstate Commerce Commission, the Department of Agriculture, the Federal Maritime Commission, the Maritime Administration, and the NRC). 28 U.S.C. § 2344 states in pertinent part that -[a]ny party aggrieved by the final order [of the agency] may, within 60 days of its entry, file a petition to review the order in the court of appeals wherein venue lies."
3
F.2d 3, 6-7 (1st Cir. 1986); American Civil Liberties Union v. FCC,774 F.2d. 24, 25-26 (1st Cir.
1985) ("ACLU"); Blackstone Valley Nat'l Bank v. Board of Governors of the FederalReserve System, 537 F.2d 1146, 1147 (1 t Cir. 1976); Gage v. AEC, 479 F.2d 1214,1218 (D.C. Cir 1973); Sierra Club v. NRC., 825 F.2d 1356, 1360-61 (9th Cir. 1987); Wales Transport,Inc. v.
ICC, 728 F.2d 774, 776 n. 1 (5 th Cir. 1982). It is equally well settled that a "party aggrieved by the final order" is one who participated in the proceeding from which the final order issued.
ACLU, 774 F.2d at 25. This is consistent with the Congressional intent to limit the number of persons entitled to petition for review. Id. at 25-26.
NEC is clearly not a "party aggrieved" by the NRC final order with respect to the spent fuel accident contention because, as discussed above, it took no part in the litigation of the contention and missed two opportunities to present its views on the contention to the ultimate decision-makers, the NRC Commissioners. NEC thus would have no right to file a petition for review of the NRC's final order, and afortiorihas no right to intervene in the review sought by the one aggrieved party, the Attorney General.
B. NEC has provided no evidence that its interest cannot be adequately represented by the Attorney General Under the NRC's regulations, if a petitioner seeks to adopt the contention of another sponsoring petitioner, the petitioner who seeks to adopt the contention must agree that the sponsoring petitioner shall actas the representative with respect to that contention. 10 C.F.R. § 2.309(f)(3). Indeed, in its motion to adopt the Attorney General's contention, NEC averred that the Attorney General "shall be the representative for its Contention." New England Coalition's Notice of Adoption of Contentions, or in the Alternative, Motion to Adopt Contentions (June 5, 2006) at 2. Having agreed that the Attorney General would take the lead in the litigation of the 4
spent fuel accident contention, and having allowed the Attorney General to bear the full brunt of the litigation before the NRC, NEC can hardly argue now that the Attorney General will not be capable of representing NEC's interests. Indeed, NEC has provided nothing to suggest that the Attorney General "is incapable of competently and aggressively representing" NEC's interest during this Court's review. A CLU, 774 F.2d at 26. To the contrary, the Attorney General has assiduously pursued the spent fuel pool accident issue in two different NRC proceedings and has filed a petition for rulemaking currently pending before the Commission which seeks to amend the Commission's generic regulation that the environmental impacts of on-site spent fuel storage are "small" because of alleged new and significant information. Therefore, NEC's interest is adequately represented by the Attorney General and NEC's participation in this proceeding is unnecessary..5 III. CONCLUSION For the reasons set forth above, this Court should deny NEC's Motion to Intervene.
Respectfullyl s ibmitted David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 Dated: May 4, 2007 Counsel for Entergy NEC suggests that "Massachusetts may not fully represent NEC's interests in this matter. Massachusetts' position will be influenced by a broad spectrum of policy considerations and constituencies, and may not be fully consistent with that of NEC . . ." Motion to Intervene at 3. NEC offers no basis for this speculative argument, which is inconsistent with the history of this proceeding. If the concern is that the Attorney General may somehow settle this proceeding, the very authority that NEC cites in support of its argument - Sierra Club v.
EPA, 358 F.3d 516 ( 7 th Cir. 2004) - makes it clear that "fear[] that the parties will settle the proceeding... is a reason to deny rather than allow intervention.... Officious intermeddlers ought not to be allowed to hijack litigation that the real parties in interest can resolve to mutual benefit." 358 F.3d at 518.
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United States Court of Appeals For the First Circuit No. 07-1482 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents No. 07-1483 COMMONWEALTH OF MASSACHUSETTS Petitioner V.
UNITED STATES; UNITED STATES NUCLEAR REGULATORYCOMMISSION Respondents CERTIFICATE OF SERVICE Pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure and First Circuit Local Rule 15(d), I hereby certify that true copies of the foregoing "Entergy's Response in Opposition to the New England Coalition's Motion to Intervene as Petitioner" were served upon the -following by United States mail, first class, postage prepaid, on this 4 th day of May, 2007:
John F. Cordes, Jr., Esq. Alberto Gonzales, Esq.
Solicitor Attorney General of the United States Office of General Counsel U.S. Department of Justice U.S. Nuclear Regulatory Commission 950 Pennsylvania Avenue Washington, D.C. 20555-0001 Washington, D.C. 20530
Office of the Secretary Diane Curran, Esq.
U.S. Nuclear Regulatory Commission Harmon, Curran, Spielberg & Eisenberg, LLP Washington, D.C. 20555-0001 1726 M Street, N.W., Suite 600 Washington, D.C. 20036 Matthew Brock, Esq. Anthony Z. Roisman, Esq.
Assistant Attorney General National Legal Scholars Law Firm Environmental Protection Division 84 .East Thetford Road Office of the Attorney General of the Lyme, NH 03768 Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 Ronald A. Shems, Esq. Sarah Hofmann, Esq.
Karen Tyler, Esq. Director of Public Advocacy Shems, Dunkiel, Kassel & Saunders, PLLC Vermont Department of Public Service 9 College Street 112 State Street - Drawer 20 Burlington, VT 05401 Montpelier, VT 05620-2601 Jennifer J. Patterson, Esq. Sheila Slocum Hollis, Esq.
Office of the New Hampshire Attorney Duane Morris, LLP General 1667 K St., NW 33 Capitol St. Washington, DC 20006 Concord, NH 03301 Molly Bartlett, Esq.
52 Crooked Lane Duxbury, MA 02332 Paul A. Gaukler 7
2300 N Street NW Tel 202.663.8000 Washington, DC 20037-1122 Fax 202.663.8007 www.pillsburylaw.com Winthrop Shaw Pittman,,
May 4, 2007 Paul A. Gaukler Phone: 202.663.8304 paul.gaukler@pillsburylaw.com Mr. Richard Cushing Donovan Clerk of Court United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210
Subject:
Consolidated Case Nos. 07-1482, 07-1483 Commonwealth of Massachusetts v. United States; United States Nuclear Regulatory Commission
Dear Mr. Donovan:
On behalf of Entergy Nuclear Operations, Inc., Entergy Nuclear Vermont Yankee LLC, and Entergy Nuclear Generation Company (collectively "Entergy"), please find enclosed for filing an original and three photocopies of (1) "Entergy's Opposition to the Commonwealth of Massachusetts' Motion to Hold the Petitions for Review in Abeyance"; and (2) "Entergy's Response in Opposition to the New England Coalition's Motion to Intervene as Petitioner."
I have also enclosed an additional copy of each filing to be date stamped and returned via the enclosed self addressed, stamped envelope for our files.
As indicated on the Certificate of Service, a copies of the filings have been served on all parties to the administrative proceeding below, pursuant to Fed. R. App. P. 15(d).
Sincerely yours, Paul A. Gaukler Enclosures cc: Service List