ML111511041
| ML111511041 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/31/2011 |
| From: | Uttal S NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 20378, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML111511041 (7) | |
Text
May 31, 2011 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 STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO FILE REPLY TO STAFF RESPONSE TO MOTION TO HOLD LICENSING BOARD DECISION IN ABEYANCE PENDING THE COMMISSIONS DECISION ON MOTION TO SUSPEND PROCEEDINGS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby files its answer in opposition to Commonwealth of Massachusetts (Massachusetts) motion to file a reply to the Staffs (and Entergys) response to Massachusetts motion to hold the Atomic Safety and Licensing Boards (Board) decision in this matter in abeyance pending further direction from the. . .Commission on the lessons learned from the Fukushima accident.1 As discussed more fully below, the Reply Motion does not demonstrate the compelling circumstances needed to justify a reply under the Commissions regulations. 10 C.F.R.
§ 2.323(c). Therefore, the Reply Motion should be denied.
1 Commonwealth of Massachusetts Motion to Reply to the Answers of the NRC Staff and Entergy in Opposition to the Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident, May 19, 2011 (Reply Motion).
PROCEDURAL BACKGROUND The history of this license renewal proceeding as relevant to this matter was recited in the Staffs answer2 to the Motion in Abeyance3 and is incorporated herein by reference.
On May 19, 2011, Massachusetts filed the instant motion to file a reply to the Staff and Entergys oppositions to its motion to hold the Boards decision in Pilgrim in abeyance pending action by the Commission. At the same time, Massachusetts also filed an unauthorized reply.4 LEGAL STANDARDS FOR MOTIONS TO PERMIT A REPLY Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply (emphasis added).
There is also a requirement that the parties filings contain arguments and assertions that are supported by appropriate and accurate references to legal authority and factual basis.
10 C.F.R. § 2.323(d).
Massachusetts asserts that it could not have reasonably anticipated that the Staff would 2
NRC Staff Answer in Opposition to Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident at 2-4, May 12, 2011 (Staff Answer).
3 Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident, (May 2, 2011) (Motion in Abeyance).
4 Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to Commonwealth Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident, May 19, 2011 (Proposed Reply).
unfairly characterize the NRCs licensing and decision making process relevant to the contested matters arising from the accident at Fukushima, Reply Motion at 1-2,5 but fails to demonstrate that this is so.
DISCUSSION Massachusetts advances one reason why the Board should consider its proposed reply, but does not demonstrate the compelling circumstances envisioned by the regulation.
Massachusetts states that it could not have reasonably anticipated the NRC Staffs Answer which unfairly characterizes the NRCs licensing and decision making process to the contented matters arising from the accident at Fukushima . . . . Reply Motion at 1-2. As discussed below, Massachusetts could have anticipated the arguments to which it now seeks leave to reply. Massachusetts had an unfettered opportunity to raise every relevant argument in support of its Motion in Abeyance in the first instance. There is no injustice in denying Massachusetts request to make arguments it should have first raised in their Petition.
Massachusetts should have anticipated the Staffs answer to the Motion in Abeyance.
The Motion in Abeyance appeared to have been based on the mistaken belief that the renewed license would be issued by the Board, and emphasized Massachusetts concern that the Board might act and issue the renewed license before the Commission could address the issues raised in the Emergency Petition for Suspension. Motion in Abeyance at 1, 3. The Staff Answer pointed out Massachusetts error stating that the Director of NRR, not the Board, would issue the license if authorized by the Commission. Staff Answer at 5. In support of the Staff Answer, the Staff cited the Commissions regulations (10 C.F.R. § 4.29), Commission case law 5
The Reply Motion does not contain numbered pages, but consists of only two pages.
(Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 400, n.18 (2008)) and a Staff Requirements Memorandum (Memorandum from Annette Vietti-Cook, Secretary, to William D. Travers, Executive Director of Operations re: Staff Requirements - SECY 02-0088 - Turkey Point Nuclear Plant, Units 3 and 4, Renewal of Full-Power Operating License (June 5, 2002) (ADAMS Accession No. ML021560479)). All of these documents are publicly available and were available well before Massachusetts Motion in Abeyance was filed.
In light of this Commission precedent, Massachusetts should have foreseen that the Staff would argue that the Boards jurisdiction is limited in license renewal cases in that the Board would not itself issue the renewed license. As a result, the Staffs assertion that the Board does not issue the license does not constitute a compelling circumstance that would support the request to file a reply.
The bare bones statement in the Reply Motion does not demonstrate compelling circumstances. Massachusetts kept its Reply Motion relatively brief, providing only a one sentence argument regarding both the Staff and Entergys responses to the Motion in Abeyance. This argument is built upon the Proposed Reply, which Massachusetts appended to its as-yet-ungranted Reply Motion. In the Staffs view, Massachusetts cursory Reply Motion invites the Board to read the Proposed Reply in order to decide whether to allow it, effectively defeating the regulatory presumption against allowing such replies and the requirement that parties file them with permission. 10 C.F.R. § 2.323(c). Absent such permission, the Proposed Reply effectively does not exist, and so should not be relied upon.
Therefore, Massachusetts has not met the requirement to demonstrate why it could not have reasonably anticipated that the Staff would respond by pointing out that the Board cannot
and will not issue the renewed license. Thus, the Reply Motion does not demonstrate that compelling circumstances warrant a reply brief.
CONCLUSION As demonstrated above, Massachusetts request to file a reply should be denied.
Respectfully submitted,
/Signed Electronically By/
Susan L. Uttal Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O15-D21 Washington, DC 20555 Telephone: (301) 415-1582 E-mail: Susan.Uttal@nrc.gov Dated at Rockville, Maryland this 31st day of May 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 NRC Staffs Answer in Opposition to Commonwealth of Massachusetts Motion to File Reply to Staff Response to Motion to Hold Licensing Board Decision In Abeyance Pending the Commissions Decision on Motion to Suspend Proceedings has been served upon the following by the Electronic Information Exchange, this 31st day of May, 2011:
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: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 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.Resource@nrc.gov E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov
Sheila Slocum Hollis Terence A. Burke, Esq.
Duane Morris LLP Entergy Nuclear 505 9th St., NW, Suite 1000 1340 Echelon Parkway Washington, DC 20004 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 E-mail: tburke@entergy.com Mary Lampert David R. Lewis, Esq.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.
668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald Matthew Brock Town Manager Assistant Attorney General 878 Tremont Street Commonwealth of Massachusetts Duxbury, MA 02332 One Ashburton Place E-mail: macdonald@town.duxbury.ma.us Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
/Signed Electronically By/
Susan L. Uttal Counsel for the NRC Staff
.