ML111751812
| ML111751812 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 06/24/2011 |
| From: | Gaukler P, Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 20494, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML111751812 (9) | |
Text
June 24, 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) )
)
ENTERGY ANSWER OPPOSING COMMONWEALTH OF MASSACHUSETTS MOTION TO PERMIT UNAUTHORIZED REPLY TO ENTERGY AND NRC STAFF ANSWERS OPPOSING CONDITIONAL MOTION FOR SUSPENSION Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby oppose the Commonwealth of Massachusetts Motion to Reply to NRC Staff and Entergy Oppositions to the Commonwealth of Massachusetts Motion to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant (June 16, 2011) (Motion). The Motion should be denied because the Commissions rules do not allow replies and the Motion fails to make the requisite showing of compelling circumstances to overcome the general prohibition against replies. Furthermore, the Commonwealth appears to be making a practice of filing impermissible replies along with a motion requesting leave to file the reply. This Motion constitutes the third time in less than two months that the Commonwealth has undertaken such a course of action.1 Accordingly, the Commission should deny the Motion and disregard the proffered reply.
1 See 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); Commonwealth of Massachusetts Reply to Entergys Answer Opposing Commonwealths Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power
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.
First, there is no merit to the Commonwealths claim (Motion at 1-2) that it could not have reasonably anticipated the argument in the NRC Staffs Answer2 that the Commonwealths Conditional Motion3 to suspend should be denied for being premature because there is not an active petition for rulemaking pending before the Commission. Given that its motion for suspension is conditional pending action by the Atomic Safety and Licensing Board (Licensing Board) on the Commonwealths request for a waiver, the Commonwealth should have certainly anticipated arguments that its Conditional Motion was premature. Indeed, its Petition for Waiver or in the Alternative for Rulemaking4 specifically requests that the Commission exercise its rulemaking authority to rescind the spent fuel exclusion regulations Plant and Request for Additional Relief (May 19, 2011); 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); 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).
2 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 (June 13, 2011) (NRC Staffs Answer).
3 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) (Conditional Motion).
4 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) (Petition for Waiver or in the Alternative for Rulemaking).
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only in the event the Licensing Board denies its petition for a waiver. The Commonwealths Petition for Waiver or in the Alternative for Rulemaking states as follows:
In the alternative, in the event that the ASLB denies the waiver petition, the Commonwealth asks the Commission to rescind the spent fuel pool exclusion regulations in a rulemaking.
In the alternative, in the event that the ASLB rejects the Commonwealths Waiver Petition, pursuant to 10 C.F.R. § 2.802(a), the Commonwealth asks the NRC to rescind the spent fuel pool exclusion regulations across the board, in a rulemaking.
For the foregoing reasons, the ASLB should hold that the Commonwealth has made a prima facie case that a waiver is justified and refer this petition to the Commission. In the alternative, the Secretary should commence a proceeding to rescind the spent fuel pool exclusion regulations.
Petition for Waiver or in the Alternative for Rulemaking at 5, 30-31 (emphasis added).
Thus, because the Commonwealths Petition for Waiver or in the Alternative for Rulemaking clearly requests the Secretary to act on its alternative petition for rulemaking only in the event its waiver petition is denied, it is unreasonable for the Commonwealth to now argue that it could not have reasonably anticipated arguments opposing its Conditional Stay for being premature because there was no active rulemaking ongoing before the Commission. Indeed, Entergy made the same argument in its Answer.5 Similarly incorrect based on the arguments made by the Commonwealth in their pleadings is the Commonwealths claim that it could not have anticipated Entergys argument responding to the Commonwealth claims that it is entitled to an adjudicatory hearing under the National Environmental Policy Act (NEPA) and the Atomic Energy Act (AEA) with respect to its purported new and significant information on the lessons of Fukushima. Entergy quoted 5
Entergy Answer Opposing Commonwealth of Massachusetts Conditional Motion to Suspend License Renewal Proceeding (June 13, 2011) at 2, n.2.
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directly from page 2 of the Commonwealths Conditional Motion where the Commonwealth asserted that the Pilgrim license renewal proceeding must be suspended to allow sufficient time for the Commission to consider the Commonwealths alternative petition for rulemaking and to rescind the spent fuel exclusion regulations, and further quoted from page 4 of the Conditional Motion the Commonwealths raison d'etre for rescission, namely that rescission of the regulations is necessary to ensure that the Commonwealth receives a hearing on its NEPA claim regarding new and significant information, which the Commonwealth claims is material to the Pilgrim NPP license renewal decision. Entergy Answer at 5, quoting from the Commonwealths Conditional Stay at 2, 4 (emphasis added). In its Proffered Reply,6 the Commonwealth refers to a statement on page 8 in the Conditional Motion, which it claims recognizes the discretion of the Commission to craft an appropriate process - adjudicatory hearing or generic rulemaking - to comply with NEPA and the AEA.7 However, the Commonwealth ignores that the relief it is seeking in its rulemaking petition - stated repeatedly in its Conditional Motion8 - is rescission of the regulation so it can have a hearing which it claims is necessary under NEPA and the AEA.
Thus, although the Commonwealth does note the discretion of the Commission under well established Supreme Court precedent to choose adjudicatory hearing or generic rulemaking for implementing NEPA, in fact, as clearly stated in its Conditional Motion, the relief that the Commonwealth seeks is rescission of the Commissions generic rule so that it can have the hearing it claims it is entitled to under NEPA and the AEA. As such, the Commonwealth should 6
Commonwealth of Massachusetts Reply to Oppositions of NRC Staff and Entergy to Commonwealth Motion to Suspend Pilgrim License Renewal Proceeding (June 16, 2011) (Proffered Reply).
7 Proffered Reply at 3.
8 See e.g., Conditional Motion at 2, 4, 8.
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have reasonably anticipated arguments that its claimed right to a hearing under NEPA and the AEA does not exist, as articulated in Entergys Answer.
Finally, the Commonwealths claim that it could not have reasonably anticipated that the Staff apparently would admit to errors in the Staffs environmental documents which, without more, support a suspension of the Pilgrim proceeding9 misstates the Staffs Answer. The Staffs is simply asserting that errors in an environmental impact statement (EIS), as claimed by the Commonwealth here, do not pose a threat to public health and safety, which is obviously true since an EIS is not a safety document. Furthermore, all of the arguments that the Commonwealth responds to in its Proffered Reply (many of which are not identified in its Motion requesting leave to file a reply) should have been reasonably anticipated by the Commonwealth. For example:
- The Commonwealth should have anticipated the Staffs argument that the Conditional Motion should be denied because the Commonwealth has not demonstrated that continuing the Pilgrim proceeding 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.10 Such an argument should have been reasonably anticipated since this is the standard that the Commission has articulated for judging requests for suspension of a hearing. Indeed, this standard is the same standard set forth in the Commonwealths Conditional Motion.11 Thus, there is no basis for the Commonwealth to assert that it could not have reasonably anticipated this argument by the Staff.
- The Commonwealth should have also anticipated the Staffs argument that denial of its suspension does not foreclose the relief the Commonwealth seeks because (i) 9 Motion at 2.
10 Proffered Reply at 4, quoting Staff Answer at 7.
11 See Conditional Motion at 4.
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additional actions are required by the Licensing Board before a license is issued; (ii) the Director of Nuclear Reactor Regulation (NRR), and not the Licensing Board, will issue the renewed license; and (iii) the Director of NRR will issue a renewed license in contested proceedings only after notice to, and authorization by, the Commission.12 These are essentially the same arguments that the Staff made in response to the Commonwealths motion to the Licensing Board to hold the proceeding in abeyance pending Commission action on its request to suspend the proceeding.13 Thus, there is no basis for the Commonwealth to assert that it could not have reasonably anticipated the Staffs arguments.
- Likewise, the Commonwealth should not have been surprised at Entergys argument that consideration of the Commonwealths claim under the standards for reopening the record (which require a showing that a materially different result would be or would have been likely had the newly proffered evidence been considered initially) or for a waiver (which requires a prima facie showing) would be sufficient to comply with NEPA requirements.14 The legal precedent for Entergys argument is the same case law as cited in Entergys answer opposing the petition to suspend all licensing proceedings.15 Thus, again there is no basis for the Commission to claim exceptional circumstances.
In summary, there is no basis for the Commonwealth to claim that it could not have reasonably anticipated the arguments in Entergys and the Staffs answers. The arguments should have been reasonably foreseen by the Commonwealth based on the arguments and positions 12 Proffered Reply at 4-5, referencing in part the Staffs argument on this point at Staff Answer at 7-8, 8-9. Also, the Commonwealth misstates the Staffs argument saying that there will be ample time for the ASLB to consider all pending matters (id. at 4) regarding Fukushima. The Staffs Answer never limited consideration of Fukushima issues to the Licensing Board.
13 NRC Staffs 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 (May 12, 2011).
14 Proffered Reply at 6. The Commonwealths Proffered Reply responds to Entergys Answer on this point even though it never addressed this part of Entergys Answer in its Motion.
15 Compare Entergys Answer Opposing Petition to Suspend Licensing Proceedings (May 2, 2011) at 27-28& n.30 with Entergy Answer Opposing Commonwealth of Massachusetts Conditional Motion to Suspend License Renewal Proceedings (June 13, 2011) at 9.
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taken by the Commonwealth in its pleadings and by arguments that Entergy and the Staff have previously made in their opposition to suspend or hold the Pilgrim license renewal proceeding in abeyance. Rather, as stated at the outset of this Answer, this is the third time within two months that the Commonwealth has filed impermissible replies along with a motion requesting leave to file the reply. As such, the Motion reflects that the Commonwealth may be making a routine practice of filing replies even though the Commissions rules limit replies to motions in only exceptional circumstances.
Therefore, for the above stated reasons, the Commission should deny the Motion and disregard the Proffered Reply.
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: June 24, 2011 7
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 to Entergy and NRC Staff Answers Opposing Conditional Motion for Suspension, dated June 24, 2011, was provided to the Electronic Information Exchange for service on the individuals below, this 24th day of June, 2011.
Secretary Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop O-16 C1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: OCAAMAIL@nrc.gov Washington, DC 20555-0001 hearingdocket@nrc.gov Administrative Judge Administrative Judge Ann Marshall Young, Esq., Chair Dr. Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Ann.Young@nrc.gov Paul.Abramson@nrc.gov Administrative Judge Atomic Safety and Licensing Board Dr. Richard F. Cole Mail Stop T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Richard.Cole@nrc.gov
Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Andrea Z. Jones, Esq. Commonwealth of Massachusetts Brian Harris, Esq. Office of the Attorney General Beth Mizuno, Esq. One Ashburton Place Office of the General Counsel Boston, MA 02108 Mail Stop O-15 D21 Martha.Coakley@state.ma.us U.S. Nuclear Regulatory Commission Matthew.Brock@state.ma.us Washington, DC 20555-0001 Susan.Uttal@nrc.gov ;
andrea.jones@nrc.gov ;
brian.harris@nrc.gov ;
beth.mizuno@nrc.gov Ms. Mary Lampert Sheila Slocum Hollis, Esq.
148 Washington Street Duane Morris LLP Duxbury, MA 02332 505 9th Street, NW mary.lampert@comcast.net Suite 1000 Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Richard R. MacDonald Town Manager Town Manager Town of Plymouth 878 Tremont Street 11 Lincoln St. Duxbury, MA 02332 Plymouth, MA 02360 macdonald@town.duxbury.ma.us msylvia@townhall.plymouth.ma.us Chief Kevin M. Nord Katherine Tucker, Esq.
Fire Chief and Director, Duxbury Emergency Law Clerk, Management Agency Atomic Safety and Licensing Board Panel 688 Tremont Street Mail Stop T3-E2a P.O. Box 2824 U.S. Nuclear Regulatory Commission Duxbury, MA 02331 Washington, DC 20555-0001 nord@town.duxbury.ma.us Katie.Tucker@nrc.gov
/Signed electronically by/
Paul A. Gaukler 2
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