ML111640493
| ML111640493 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 06/13/2011 |
| From: | Matthew Smith NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 20446, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML111640493 (11) | |
Text
June 13, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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Entergy Nuclear Generation Co. and
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Entergy Nuclear Operations, Inc.
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Docket No. 50-293-LR
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(Pilgrim Nuclear Power Station)
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NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS CONDITIONAL MOTION TO SUSPEND PILGRIM NUCLEAR POWER PLANT LICENSE RENEWAL PROCEEDING PENDING RESOLUTION OF PETITION FOR RULEMAKING TO RESCIND SPENT FUEL POOL EXCLUSION REGULATIONS The NRC Staff (Staff) hereby files its answer in opposition to the Commonwealth of Massachusetts Conditional Motion to Suspend Pilgrim Nuclear Power Plant License Renewal Proceeding Pending Resolution of Petition for Rulemaking to Rescind Spent Fuel Pool Exclusion Regulations (Conditional Motion to Suspend).1 The Commission should dismiss the Conditional Motion to Suspend because it is procedurally defective. Moreover, even if the Conditional Motion to Suspend were properly before the Commission, it does not advance sufficient reasons to justify the relief it seeks.
PROCEDURAL BACKGROUND The history of this license renewal proceeding spans five years and includes scores of 1 Commonwealth of Massachusetts Conditional Motion to Suspend Pilgrim Nuclear Power Plant License Renewal Proceeding Pending Resolution of Petition for Rulemaking to Rescind Spent Fuel Pool Exclusion Regulations (June 2, 2011) (Agencywide Document Access and Management System (ADAMS) Accession No. ML111530344).
pleadings. Accordingly, only those portions of the procedural history directly relevant to the discussion below will be addressed herein.
By letter dated January 27, 2006, Entergy Nuclear Operations, Inc. (applicant) submitted an application for renewal of Operating License No. DPR-35 for the Pilgrim Nuclear Power Station (Pilgrim) for an additional 20 years.2 On May 26, 2006, Massachusetts filed an initial hearing request,3 which the Atomic Safety and Licensing Board (ASLB or Board) denied.4 Subsequently, Massachusetts participated in these proceedings as an interested state under 10 C.F.R. § 2.315(c).5 On May 25, 2006, the intervenor group Pilgrim Watch filed a petition to intervene in this matter and submitted five contentions for consideration by the Atomic Safety and Licensing Board.6 The Board granted the petition and admitted two contentions.7 The Board granted the applicants motion for summary disposition with respect to the contention that challenged the applicants analysis of severe accident mitigation alternatives (SAMA).8 After an evidentiary 2 Letter from Michael A. Balduzzi, Entergy Nuclear Operations, to U.S. NRC, Re: License Renewal Application (Jan. 25, 2006) (ADAMS Accession No. ML060300026).
3 Massachusetts Attorney Generals Request for a Hearing and Petition for Leave to Intervene wit[h] respect to Entergy Nuclear Operations Inc.s Application for Renewal of the Pilgrim Nuclear Power Plant Operating and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006) (ADAMS Accession No. ML061630088).
4 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006).
5 Commonwealth of Massachusetts Notice of Intent to Participate as an Interested State (May 6, 2008) (ADAMS Accession No. ML081500531).
6 Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006) (ADAMS Accession No. ML061630125).
7 Pilgrim, LBP-06-23, 64 NRC at 341.
8 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131 (2007). Judge Young dissented from the Boards Order. Id. at 156.
hearing on the remaining contention, which challenged the adequacy of the applicants aging management program for buried pipes and tanks, the Board disposed of that contention in favor of the applicant.9 Pilgrim Watch filed an appeal, and on March 26, 2010, the Commission issued CLI 11, reversing in part, affirming in part, and remanding the SAMA contention as limited by the Commissions Order to the Board for further proceedings.10 Pilgrim Watch then filed two new contentions in late 2010.11 At a hearing on March 9, 2011, the Board heard argument on the remanded SAMA contention and the admissibility of the 2010 contentions regarding the implementation of SAMA mitigation alternatives and inaccessible cables.12 The Boards decision on the remanded SAMA contention and the admissibility of the two new contentions is pending. Subsequently, Pilgrim Watch filed two more SAMA contentions in this proceeding.13 On June 2, 2011, Massachusetts filed a new contention,14 a motion to admit the new contention,15 a petition for waiver of the Commissions 9 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-08-22, 68 NRC 590 (2008).
10 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC ___ (slip op. at 39).
11 Pilgrim Watch Request for Hearing on a New Contention (Nov. 29, 2010) (ADAMS Accession No. ML103420305); Pilgrim Watch Request for Hearing on a New Contention: Inadequacy of Entergys Aging Management of Non-Environmentally Qualified (EQ) Inaccessible Cables (Splices) at Pilgrim Station (Dec. 13, 2010) (ADAMS Accession No. ML103500400).
12 Transcript of Hearing Regarding Pilgrim Nuclear Power Station in Plymouth, Massachusetts on March 9, 2011 (ADAMS Accession No. ML110740699).
13 Pilgrim Watch Request for Hearing on Post Fukushima SAMA Contention (May 12, 2011)
(ADAMS Accession No. ML111320647); Pilgrim Watch Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima (June 1, 2011) (ADAMS Accession No. ML111530448).
14 Commonwealth of Massachusetts Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Accident (June 2, 2011) (ADAMS Accession No.
(continued...)
regulations to permit full consideration of the new contention or in the alternative a petition for rulemaking to rescind those regulations (Waiver Petition),16 and the Conditional Motion. The Staff will respond to Massachusetts other pleadings, which are before the Board, in separate answers.
DISCUSSION A. Massachusetts Requests Pursuant to 10 C.F.R. § 2.802(d), Massachusetts requests that the Commission suspend the license renewal proceeding for the Pilgrim nuclear power plant (NPP), pending resolution of the Commonwealths petition for rulemaking to rescind... 10 C.F.R. § 51.71(d) and 10 C.F.R. Part 51 Subpart A, Appendix B... which preclude consideration of spent fuel storage impacts in conducting environmental reviews for license renewal decisions.
Conditional Motion to Suspend at 1. But, Massachusetts notes that its request for rulemaking, and its corresponding suspension request, are conditional upon the denial of a Waiver Petition the Commonwealth has submitted today to the [Board]. Id. The Waiver Petition addresses the same regulations that Massachusetts seeks to rescind in its rulemaking petition.
Massachusetts argues that although § 2.802(d) does not contain a standard for the suspension of a licensing proceeding, the Commission has stated that a stay may be granted
(...continued)
15 Commonwealth of Massachusetts Motion to Admit Contention and, If Necessary, to Re-Open Record Regarding New and Significant Information Revealed by Fukushima Accident (June 2, 2011)
(ADAMS Accession No. ML111530338).
16 Commonwealth of Massachusetts Petition for Waiver of 10 C.F.R. Part 51 Subpart A, Appendix B or, in the Alternative, Petition for Rulemaking to Rescind Regulations Excluding Consideration of Spent Fuel Storage Impacts from License Renewal Environmental Review (June 2, 2011) (ADAMS Accession No. ML111530338) (Waiver Petition).
where it is necessary to protect [the] position or the requestor in a licensing proceeding. Id. at 3-4 (quoting Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI-03-7, 58 NRC 1, 7 (2003)). Massachusetts claims that it meets this standard because proceeding with the Pilgrim adjudication would deprive Massachusetts of an opportunity to seek compliance with the National Environmental Policy Acts (NEPAs) requirement that new and significant information must be considered prior to the issuance of a licensing decision. Id. at 4.
Massachusetts also notes that the Commission has previously required parties seeking a suspension to demonstrate that moving forward with the adjudication will jeopardize the public health and safety, prove an obstacle to fair and efficient decisionmaking, or prevent appropriate implementation of any pertinent rule or policy changes. Id. at 4 (quoting Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI 04, 57 NRC 273, 277 (2003)). But, Massachusetts does not demonstrate how its Conditional Motion to Suspend meets those factors.
B. Staffs Response
- 1. Massachusetts Conditional Motion to Suspend Does Not Meet the Requirements of
§ 2.802(d) Because Massachusetts Does Not Have a Petition for Rulemaking Pending Before the NRC Under 10 C.F.R. § 2.802(a), Any interested person may petition the Commission to issue, amend or rescind any regulation. Section 2.802(d) states that the petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking. 10 C.F.R. § 2.802(d)
(emphasis added). Therefore, the Commissions regulations contemplate that a party may only move to suspend licensing proceedings while it has a petition for rulemaking pending before the NRC.
Massachusetts filed the Conditional Motion to Suspend to protect its interest while the NRC considers its petition for rulemaking. But, Massachusetts notes that its petition for rulemaking is contingent on the Board or Commission dismissing its Waiver Petition.
Conditional Motion to Suspend at 1. At the present time, the Board has not had an opportunity to rule on the Waiver Petition. Therefore, Massachusetts has no interest to protect under § 2.802(d) because it does not have an active petition for rulemaking pending before the NRC.
Moreover, should the Board and Commission elect to grant the Waiver Petition, then Massachusetts rulemaking petition will never become active. Because Massachusetts does not presently have a petition for rulemaking pending before the NRC, and may never have one, it does not meet the requirements of 10 C.F.R. § 2.802(d) at the outset. Consequently, the Commission should deny the Conditional Motion to Suspend.17
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The Conditional Motion to Suspend Does Not Demonstrate that a Suspension is Required Moreover, Massachusetts argument for suspension is fundamentally flawed because it rests on an incorrect understanding of the standard the Commission will apply to a request to suspend a licensing proceeding under § 2.802(d). Massachusetts argues that the Commission will suspend a proceeding to protect the position of a petitioner for rulemaking. Conditional Motion to Suspend at 3-4. But, this claim rests on a misreading of Connecticut Yankee. Id. at 3-4 (citing Connecticut Yankee, CLI-03-7, 58 NRC at 7). In fact, in that case the Commission observed, To protect its position, the rulemaking petitioner may request the Commission to suspend all or any part of any licensing proceeding. Id. (internal quotations omitted).
Therefore the Commission did not establish a test for when 10 C.F.R. § 2.802(d) requires suspension in Connecticut Yankee. Rather, it noted the reasons why a party may want to seek suspension.
17 The Staff notes that if Massachusetts petition for rulemaking becomes active, Massachusetts is always free to file another request to suspend this proceeding under 10 C.F.R. § 2.802(d).
The Commission later established such a test in response to a request to suspend the Seabrook license renewal proceeding while the Commission considered the requestors petition for rulemaking. The Commission stated,
[O]ur longstanding practice has been to limit orders delaying proceedings to the duration and scope necessary to promote the Commission's dual goals of public safety and timely adjudication. Absent extraordinary cause, however, seldom do we interrupt licensing reviews or our adjudications particularly by an indefinite or very lengthy stay as contemplated here on the mere possibility of change.
Otherwise, the licensing process would face endless gridlock.
In the Matter of Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-01, __ NRC __
(slip op. at 2-3) (Jan. 24, 2011) (ADAMS Accession No. ML110250087) (Seabrook Order).
Thus, the Commission found suspension of licensing proceedings a drastic action that is not warranted absent immediate threats to public health and safety. Id. at 3 (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008)). The Commission concluded that because ample time existed before it would issue a renewed license for Seabrook, the requestors had not shown that proceeding with the adjudication would jeopardize the public health and safety, prove an obstacle to fair and efficient decisionmaking, or prevent appropriate implementation of any pertinent rule or policy changes that might emerge from our important ongoing evaluation. Id. at 4.
Under these standards, Massachusetts Conditional Motion plainly does not meet the Commissions requirements to suspend a proceeding under § 2.802. As discussed above, the Board currently has several contentions pending before it, some of which the parties have not yet briefed. Consequently, several weeks, if not months, will elapse before the Board rules on all of the pleadings before it. In the event the Board decides to pursue some of the issues further, the proceeding may well continue for a significant period of time. Even if the Board dismisses all of the pending contentions, the Boards final ruling on the issues in this proceeding will not automatically result in a renewed license. See Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 400, n.18 (2008). Per established Commission practice, the Director of NRR will issue a renewed license in contested proceedings only after notice to and authorization by the Commission. Id. (citing 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)).
Consequently, this proceeding cannot pose an immediate threat to public health and safety because the NRC is not currently in a position to act through issuing a renewed license.
Moreover, as mentioned above, Massachusetts seeks to ensure compliance with NEPA.
But, the courts have often observed that NEPA is a procedural statute that does not mandate any particular results. E.g. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts. Id.
Therefore, Massachusetts has not shown that suspension is needed in this proceeding to prevent an immediate threat to public health and safety. Rather, Massachusetts argues that suspension is required to ensure full compliance with the procedural dictates of NEPA. While the NRC takes its obligations under NEPA seriously, errors in the Staffs environmental documents do not pose a substantial threat to the public health and safety. Therefore, this claim does not demonstrate an immediate threat to public health and safety.
Likewise, Massachusetts has not shown that proceeding with the adjudication would prove an obstacle to fair and efficient decisionmaking, or prevent appropriate implementation of any pertinent rule or policy changes. Seabrook Order, CLI-11-1, __ NRC __ (slip op. at 4)
(internal quotations omitted). In light of the length of this proceeding and the number of issues still pending before the Board, suspension would actually inhibit fair and efficient adjudication by creating further delay. Additionally, as discussed above, due to the uncertain termination date of this proceeding, suspension is not needed to ensure that appropriate policy changes are implemented in the Pilgrim license renewal.
CONCLUSION For the reasons expressed above, the Commission should deny the Conditional Motion to Suspend. The Conditional Motion to Suspend is not properly before the Commission because Massachusetts does not have a rulemaking petition pending before the NRC.
Moreover, even if Massachusetts petition for rulemaking were pending before the Commission, the accompanying Conditional Motion to Suspend still does not provide a sufficient justification for the relief it seeks.
Respectfully submitted,
/Signed Electronically By/
Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O15-D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: Maxwell.Smith@nrc.gov Dated at Rockville, Maryland this 13th day of June 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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ENTERGY NUCLEAR OPERATIONS, INC.
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Docket No. 50-293-LR
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(Pilgrim Nuclear Power Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS CONDITIONAL MOTION TO SUSPEND PILGRIM NUCLEAR POWER PLANT LICENSE RENEWAL PROCEEDING PENDING RESOLUTION OF PETITION FOR RULEMAKING TO RESCIND SPENT FUEL POOL EXCLUSION REGULATIONS have been served upon the following by the Electronic Information Exchange, this 13th day of June, 2011:
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 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 505 9th St., NW, Suite 1000 Washington, DC 20004 E-mail: sshollis@duanemorris.com Terence A. Burke, Esq.
Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 E-mail: tburke@entergy.com 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: marrighi@townhall.plymouth.ma.us Richard R. MacDonald Town Manager 878 Tremont Street Duxbury, MA 02332 E-mail: macdonald@town.duxbury.ma.us Matthew Brock Assistant Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
/Signed Electronically By/
Maxwell C. Smith Counsel for the NRC Staff
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