ML081290396
| ML081290396 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/08/2008 |
| From: | James Adler NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY/RAS | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML081290396 (5) | |
Text
May 8, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Entergy Nuclear Generation Co. and
)
Entergy Nuclear Operations, Inc.
)
Docket No. 50-293-LR
)
)
ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)
)
NRC STAFF MOTION TO STRIKE PILGRIM WATCH MOTION REGARDING THE CUMULATIVE USAGE FACTOR INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby responds to Pilgrim Watch Motion Regarding the Cumulative Usage Factor (CUF) (Motion), filed on May 5, 2008.1 For the reasons set forth below, the Staff submits that Pilgrim Watchs Motion, which is effectively the same pleading Pilgrim Watch filed on April 30, 2008,2 should be stricken from the record.
As explained in the May 2, 2008 NRC Staff Motion to Strike Pilgrim Watch Reply to NRC Staff Response to Pilgrim Watchs Motion to Hold the Record Open, Pilgrim Watchs April 30th Reply was an impermissible reply that violated, among other things, 10 C.F.R. § 2.323(c).3 1 In accordance with 10 C.F.R. § 2.323(b), the Staff has consulted with both Pilgrim Watch and Entergy prior to filing this motion. Entergy stated it supports this motion, but Pilgrim Watch stated that it opposes the motion.
2 Pilgrim Watch Replies to Entergys and NRCs Responses Opposing Pilgrim Watchs Motion Requesting that The [sic] record be Held Open for Sua Sponte Consideration of Cumulative Usage Factors (April 30, 2008) (April 30th Reply).
3 As 10 C.F.R. § 2.323(c) states, replies are permitted only in compelling circumstances, and (continued...)
In response to the Staffs and the Applicants4 motions to strike that impermissible pleading, Pilgrim Watch has now re-titled the pleading as a motion instead of a reply, created a new Background section that includes allegedly new additional information from a Regulatory Issue Summary (RIS)5 that the NRC has put out for public comment as well as two largely unaltered paragraphs from the timeliness section of the April 30th Reply,6 attached a short NRC news release regarding the RIS, and re-filed the pleading.7 Essentially, therefore, it is the same pleading that Pilgrim Watch filed on April 30, with some background information added. Indeed, the Motion (just like the April 30th Reply) requests relief very similar to that requested from the Board in Pilgrim Watchs April 9, 2008 motion that
(...continued) leave must be obtained before filing one.
4 Entergys Motion to Strike Pilgrim Watchs Reply to Entergys and NRCs Responses Opposing Pilgrim Watchs Motion Requesting that the Record Be Held Open for Sua Sponte Consideration of Cumulative Usage Factors (May 1, 2008).
5 The RIS does not contain any new material information, which may explain why Pilgrim Watch relegated its discussion of the RIS to the Background section of its Motion. Notwithstanding the Motions incorrect placement of a quotation mark on page 3, neither the news release nor the proposed RIS itself even mentions Pilgrim. See Motion Att. A; Proposed Generic Communication; Fatigue Analysis of Nuclear Power Plant Components, 73 Fed. Reg. 24094, 24095. Further, the RIS addresses the same issue (non-conservatism of metal fatigue calculations) that was at issue in a November 7, 2007 Vermont Yankee Board decision that Pilgrim Watch cited in its previous pleading. See April 30th Reply at 9; Memorandum and Order (Ruling on NEC Motions to File and Admit New Contentions) (LBP-07-15)
(Vermont Yankee Board decision ruling on proposed metal fatigue contention). As has been previously explained by the Staff in its April 21, 2008 NRC Staff Response in Opposition to Pilgrim Watch Motion Requesting Record Be Held Open at 7-10, Pilgrim Watch has long been on notice about the CUF calculation issues that are being litigated in Vermont Yankee. The only new information contained in the RIS is the NRCs proposed generic approach to the issue.
6 Compare Motion at 1-3 with April 30th Reply at 1-2.
7 Compare Motion at 3-11 with April 30th Reply at 2-10. The only differences the Staff can discern between these sections of the Motion and the April 30th Reply are both infrequent and nonsubstantive.
triggered this series of related pleadings.8 In addition, besides changing the title of its pleading from reply to motion, Pilgrim Watch makes no attempt to respond to the arguments made by the Staff or the Applicant in their respective motions to strike.9 Therefore, the instant Motion can only reasonably be viewed as yet another impermissible reply relating back to Pilgrim Watchs original April 9, 2008 motion on the CUF issue. Accordingly, the same factors that warrant striking the April 30th Reply also support striking the instant Motion.
CONCLUSION For the reasons discussed above, the Staff respectfully requests that the Board strike Pilgrim Watchs Motion.
Respectfully Submitted,
/RA/
James E. Adler Counsel for the NRC Staff Dated at Rockville, Maryland this 8th day of May, 2008 8 Compare Pilgrim Watch Motion Requesting the Record be Held Open So That the Board May Address a New and Significant Issue [Method to Calculate Cumulative Usage Factors (CUF)] Sua Sponte and Provide Pilgrim Watch an Opportunity for a Hearing (April 9, 2008) (We are asking the Board to review this new issue sua sponte and to provide an opportunity for Pilgrim Watch to be heard on the issue in order to assist the Board in building a fair and complete record of adjudication on all issues of importance to public health and safety.) with Motion at 4 (Pilgrim Watch files this Motion to allow for public participation regarding this new and significant issue that has the potential to severely impact public safety at Pilgrim Station where certain plant systems, structures, and components suffer the effects of metal fatigue.), and Motion at 11 (Further review is requiredby the ASLB to assure that it will satisfy the AEA requirements to protect public health and safety and also to ensure that there will be meaningful opportunity for public participation in this important aspect of the licensing decision.), and April 30th Reply at 10 (same as quoted language from Motion at 11).
9 According to Pilgrim Watch, calling the new pleading a motion was all that was required to address the concerns raised in the Applicants motion to strike. Motion at 2. Such a theory would, quite clearly, eviscerate the prohibitions in 10 C.F.R. § 2.323(c) against reply pleadings that are filed absent compelling circumstances and without prior grant of leave.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Entergy Nuclear Generation Co. and
)
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 NRC STAFF MOTION TO STRIKE PILGRIM WATCH MOTION REGARDING THE CUMULATIVE USAGE FACTOR in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S.
Nuclear Regulatory Commissions internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 8th day of May, 2008.
Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Paul.Abramson@nrc.gov Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Ann.Young@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (Via NRC Internal Mail Only)
Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis*
Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Terence A. Burke, Esq.*
Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 Mary Lampert*
148 Washington Street Duxbury, MA 02332 E-mail: mary.lampert@comcast.net David R. Lewis, Esq*.
Paul A. Gaukler, Esq.
Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord*
Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Town Manager*
Town of Plymouth 11 Lincoln St.
Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us James R. Milkey*
Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 jim.milkey@state.ma.us Diane Curran*
Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1726 M Street, N.W., Suite 600 Washington, DC 20036 dcurran@harmoncurran.com
/RA/
James E. Adler Counsel for the NRC Staff