ML11196A181
| ML11196A181 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 07/15/2011 |
| From: | Gaukler P, Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 20612, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11196A181 (6) | |
Text
July 15, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board Panel 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 MOTION TO STRIKE PORTIONS OF PILGRIM WATCH REPLY TO ENTERGY AND THE NRC STAFF ANSWERS OPPOSING PILGRIM WATCH REQUEST FOR HEARING ON A NEW CONTENTION Pursuant to 10 C.F.R. § 2.323(a), Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby move to strike portions of Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima (July 5, 2011)
(Pilgrim Watch Reply or PW Reply). 1 The Pilgrim Watch Reply impermissibly seeks to supplement Pilgrim Watchs Request by adding new bases to the contention as initially proffered. These new items are beyond the scope of a permissible reply and are submitted without any attempt to satisfy the standards for late-filed amendments to contentions set forth in 10 C.F.R. §§ 2.309(c) and (f)(2). Accordingly, the Atomic Safety and Licensing Board (Board) should strike the impermissibly new portions of the Pilgrim Watch Reply identified herein.
1 The Entergy and NRC Staff Answers were filed in response to the Pilgrim Watch Request For Hearing on A New Contention Regarding Inadequcy [sic] of Environmental Report, Post-Fukushima (June 1, 2011) (Pilgrim Watch Request or PW Request).
A reply is to be narrowly focused on the legal or logical arguments presented in the answers of the applicant and NRC Staff. 2 The Commission has squarely ruled that a reply to an answer may not be used to add new bases for or supplement an otherwise deficient contention.
Louisiana Energy Services, L.P. (National Enrichment Facility) (LES), CLI-04-25, 60 N.R.C.
223, 224-25 (2004) (rejecting petitioners late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments and various new claims in support of their contentions in their reply briefs) and CLI-04-35, 60 N.R.C. 619, 623 (2004) (our rules do not allow . . . using reply briefs to provide, for the first time, the necessary threshold support for contentions); Nuclear Management Co. (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 727, 730-32 (2006) (affirming the Licensing Boards rejection of petitioners untimely attempt to supplement their contention on reply); AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 261, 276 (2009) (support for a contention must be provided when the contention is filed, not at some later date) (footnote omitted). In Palisades, the Commission held that allowing new claims in a reply would unfairly deprive other participants of an opportunity to rebut the new claims. CLI-06-17, 63 N.R.C. at 732. Such unfairness would result because NRC regulations do not allow the applicant or other parties to respond to a petitioners reply. 10 C.F.R. § 2.309(h)(3).
Thus, new arguments or support for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2). Oyster Creek, CLI-09-7, 69 N.R.C.
at 261 (quoting Palisades, CLI-06-17, 63 N.R.C. at 732). There simply would be no end to NRC licensing proceedings if petitioners could disregard [the Commissions] timeliness 2
Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (Jan. 14, 2004).
2
requirements and add new bases or new issues that simply did not occur to [them] at the outset. LES, CLI-04-25, 60 N.R.C. at 225 (footnote omitted). Rather, under 10 C.F.R. § 2.309(f)(2), amended or new contentions filed after the initial filing may be submitted only with leave of the presiding officer upon a showing that (i) the information upon which the amended or new contention is based was not previously available; (ii) the information upon which the amended or new contention is based is materially different than information previously available; and (iii) the amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
10 C.F.R. § 2.309(f)(2).
In this case, Pilgrim Watchs Reply goes beyond the scope of an allowable reply by making new arguments without citing or attempting to meet the requirements of 10 C.F.R. § 2.309(f)(2) or the nontimely contention requirements in 10 C.F.R. § 2.309(c). Consequently, the following new support, raised for the first time in Pilgrim Watchs Reply is impermissible and should be stricken.
First, relying on a separate filing by the Commonwealth of Massachusetts and its witness, Pilgrim Watch impermissibly seeks to add a new basis for its Request by asserting the alleged need to increase the Pilgrim baseline core damage frequency estimate by an order of magnitude based on worldwide experience of core damage events. PW Reply at 28-29 (citing the report prepared by Dr. Thompson on behalf of the Commonwealth). Second, Pilgrim Watch impermissibly seeks to add another new basis for its Request by relying on a claim previously raised by Pilgrim Watch in a separate contention. The claim is that the computer code used in Pilgrims SAMA analysis does not model radioactive releases beyond 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, allegedly 3
resulting in minimized offsite consequences. PW Reply at 29 (citing its prior contention).
Neither of these new bases appear in Pilgrim Watchs Request, and Pilgrim Watch makes no showing in its Reply that these arguments meet the requirements of 10 C.F.R. § 2.309(f)(2) and 10 C.F.R. § 2.309(c).
For the foregoing reasons, the Board should strike the impermissibly new claims to support Pilgrim Watchs Request raised by Pilgrim Watch for the first time in its Reply. 3 Respectfully submitted,
/Signed Electronically by Paul A. Gaukler/
David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 paul.gaukler@pillsburylaw.com Counsel for Entergy Dated: July 15, 2011 3
Counsel for Entergy certifies that he has consulted with the other parties as required by 10 C.F.R. § 2.323(b).
Pilgrim Watch opposes this Motion. The NRC Staff does not object to the filing of this Motion and will file a response upon reviewing the substance of the motion if necessary.
4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 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 Entergy Motion to Strike Portions of Pilgrim Watch Reply to Entergy and the NRC Staff Answers Opposing Pilgrim Watch Request for Hearing on a New Contention, dated July 15, 2011, were provided to the Electronic Information Exchange for service on the individuals below, this 15th day of July, 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 Entergy Motion To Strike Portions of PW Reply.doc
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/
Paul A. Gaukler 6
402993266v2