ML111511078
| ML111511078 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/31/2011 |
| From: | Gaukler P, Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 20383, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML111511078 (7) | |
Text
May 31, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
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Entergy Nuclear Generation Company and
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Docket No. 50-293-LR Entergy Nuclear Operations, Inc.
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ASLBP No. 06-848-02-LR
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(Pilgrim Nuclear Power Station)
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ENTERGYS ANSWER OPPOSING COMMONWEALTH OF MASSACHUSETTS MOTION TO PERMIT UNAUTHORIZED REPLY Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby oppose the Commonwealth of Massachusetts Motion to Reply to Entergys Answer Opposing Commonwealths Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant and Request for Additional Relief (May 19, 2011) (Motion). The Motion should be denied because the Commissions rules do not allow replies and the Motion does not make the requisite showing of compelling circumstances to overcome the general prohibition against replies.
The Commissions Rules of Practice do not authorize a reply. In particular, 10 C.F.R. § 2.323(c) provides:
The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.
10 C.F.R. § 2.323(c). The Commonwealth makes no show of compelling circumstances.
2 First, there is no merit to the Commonwealths claim that it could not have reasonably anticipated Entergys Answer1 because it was not authorized by the Commissions April 19, 2011 Order.2 The Commonwealth did not just file a response to the Emergency Petition,3 as authorized by the April 19, 2011 Order, but it also requested additional relief based on claims of new and significant information arising from Fukushima.4 Accordingly, the Commonwealths Request constituted a separate, new motion to which Entergy had the right to file an answer under 10 C.F.R. § 2.323. Clearly, nothing in the Commissions Order indicates that either license renewal applicants or other applicants would be precluded from responding to new motions, and any such interpretation would be irreconcilable with fundamental notions of fairness. Consequently, the Commonwealths assertion that it could not have anticipated that Entergy would respond to a request for additional relief is unreasonable and should be disregarded.
Similarly, there is no merit to the Commonwealths claim that it could not have reasonably anticipated Entergys discussion of applicable law under the National Environmental Policy Act, 42 U.S.C. § 4321 (NEPA). Motion at 1.5 The raising of legal arguments in 1 Entergys Answer Opposing Commonwealths Joinder in Petition to Suspend the License Renewal Proceeding for The Pilgrim Nuclear Power Plant and Request for Additional Relief (May 12, 2011) (Entergys May 12 Answer).
2 Scheduling Order of the Secretary Regarding Petitions to Suspend Adjudicatory, Licensing, and Rulemaking Activities (April 19, 2011) (Order).
3 Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (April 14 -
18, 2011) Corrected April 18, 2011 (Emergency Petition).
4 Commonwealth of Massachusetts Response to Commission Order Regarding Lessons Learned from the Fukushima Daiichi Nuclear Power Station Accident, Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant, and Request for Additional Relief (May 2, 2011) (Request) at 3, 13-14.
5 See also, Commonwealth of Massachusetts Reply to Entergys Answer Opposing Commonwealths Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant and Request For Additional Relief (May 19, 2011) (Tendered Reply) at 1.
3 refutation of the arguments presented in a motion is the expected focus of a response to a motion and cannot possibly be claimed to be unanticipated. Entergys May 12 Answer responded to the Commonwealths NEPA claim repeatedly made in its Request that Fukushima constituted new and significant information that must be considered under NEPA prior to relicensing of Pilgrim. See Request at 3, 10-13; Entergy May 12 Answer at 4-8.6 Entergys discussion of the legal standards for considering new and significant information upon which to judge the validity of the Commonwealths NEPA claims was based on well-established, cited case law and Commission precedent set forth in Entergys May 2 Answer to the Emergency Petition.7 Such legal argument does not become unanticipated simply because the Commonwealth characterizes it as such. The Commonwealth had the opportunity to raise every relevant legal argument in support of its Request in the first instance. It was therefore incumbent on the Commonwealth to identify all applicable precedents and distinguish them in its Request and not in a reply.8 Moreover, the Commonwealths Tendered Reply attributes to Entergy claims never advanced by Entergy in its response. Entergys argument that Fukushima does not constitute new and significant information that requires a supplemental environmental impact statement 6 The Commonwealth inappropriately uses its Tendered Reply to essentially recast its arguments. Its Request was largely premised on claims that new and significant information arising from the Fukushima accident showed that (1) NRCs Rulemaking denial of the Commonwealths Rulemaking petition was flawed, and the NRCs findings with respect to SFP risks which should be revisited; [and] 2) the NRCs stated basis to deny the Commonwealths Rulemaking Petition on SFP Risks apparently relied upon incorrect assumptions and studies that did not fully account for the events at Fukushima. Request at 3, 10-11. Furthermore, the Commonwealth repeatedly made references in its Request (e.g., id. at 2-3, 6, 8, 12) to the Commissions allegedly erroneous denial of its Rulemaking Petition. Now the Commonwealth asserts that Entergys defense of the NRCs denial of its Rulemaking Petition taking into account the events at Fukushima is misplaced. Tendered Reply at 3.
7 Entergys Answer Opposing Petition to Suspend Pending Licensing Proceedings (May 2, 2011) (Entergys Answer to Emergency Petition) at 19-21, 27-28.
8 See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 N.R.C. 461, 469 (1991);
U.S. Department of Energy (High-Level Waste Repository: Pre-Application Matters, Advisory PAPO Board),
Memorandum and Order (Denying Petition to Certify Issue to the Commission and Motion for Leave to File Replies) (Dec. 22, 2008), slip op. at 4-5 (ADAMS Accession No. ML083570498).
4 does not mean that the NRC would ignore or fail to take a hard look at Fukushima in its relicensing decision-making process, as suggested by the Commonwealth throughout its Tendered Reply. Rather, as made clear by the case law cited in Entergys May 2 Answer to the Emergency Petition, including the Marsh decision9 relied upon by the Commonwealth, there are many different avenues by which an agency can document its conclusion that new information is not significant in that it does not paint a seriously different picture of the environmental landscape.10 Public participation through the formal NEPA process and issuance of an environmental assessment is not required to document an agencys determination that new information is not significant. Here, the Commission in its denial of the Emergency Petition and the Commonwealths Request may document its conclusion that Dr. Makhijanis Declaration does not demonstrate the existence of any significant new information that would reveal a seriously different picture of the proposed project,11 i.e., would lead to an impact finding for the license renewal of Pilgrim different from that codified in 10 C.F.R. Part 51. Such consideration would fully satisfy the requirements of NEPA with respect to the license renewal of the Pilgrim plant.
9 Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 383-85 (1989).
10 Entergys Answer to Emergency Petition at 27-28.
11 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31, 52 (2001) (The new circumstance must reveal a seriously different picture of the environmental impact of the proposed project.) (internal quotes and citations omitted).
5 For the above stated reasons, the Commission should deny the Motion and disregard the Tendered Reply attached to it.
Respectfully submitted,
/Signed Electronically By/
David R. Lewis Paul A. Gaukler Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, NW Washington, DC 20037-1128 Phone: (202) 663-8000 E-mail: paul.gaukler@pillsburylaw.com Counsel for Entergy Dated: May 31, 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
)
Entergy Nuclear Generation Company and
)
Docket No. 50-293-LR Entergy Nuclear Operations, Inc.
)
)
ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of Entergys Answer Opposing Commonwealth of Massachusetts Motion to Permit Unauthorized Reply, dated May 31, 2011, was provided to the Electronic Information Exchange for service on the individuals below, this 31st day of May, 2011.
Secretary Attn: Rulemakings and Adjudications Staff Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 hearingdocket@nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL@nrc.gov Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ann.Young@nrc.gov Administrative Judge Dr. Paul B. Abramson Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Paul.Abramson@nrc.gov Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Richard.Cole@nrc.gov Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
2 402937672 Susan L. Uttal, Esq.
Andrea Z. Jones, Esq.
Brian Harris, Esq.
Beth Mizuno, Esq.
Office of the General Counsel Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan.Uttal@nrc.gov ;
andrea.jones@nrc.gov ;
brian.harris@nrc.gov ;
beth.mizuno@nrc.gov Matthew Brock, Assistant Attorney General Commonwealth of Massachusetts Office of the Attorney General One Ashburton Place Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us Ms. Mary Lampert 148 Washington Street Duxbury, MA 02332 mary.lampert@comcast.net Sheila Slocum Hollis, Esq.
Duane Morris LLP 505 9th Street, NW Suite 1000 Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Town Manager Town of Plymouth 11 Lincoln St.
Plymouth, MA 02360 msylvia@townhall.plymouth.ma.us Richard R. MacDonald Town Manager 878 Tremont Street Duxbury, MA 02332 macdonald@town.duxbury.ma.us Chief Kevin M. Nord Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street P.O. Box 2824 Duxbury, MA 02331 nord@town.duxbury.ma.us Katherine Tucker, Esq.
Law Clerk, Atomic Safety and Licensing Board Panel Mail Stop T3-E2a U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Katie.Tucker@nrc.gov
/Signed Electronically By/
Paul A. Gaukler