ML112020235
| ML112020235 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 07/21/2011 |
| From: | Brock M State of MA, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 20633, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML112020235 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )
(Pilgrim Nuclear Power Station) ) July 21, 2011 COMMONWEALTH OF MASSACHUSETTS ANSWER IN OPPOSITION TO ENTERGYS MOTION TO STRIKE PORTIONS OF MASSACHUSETTS REPLY The Commonwealth of Massachusetts (Commonwealth) hereby submits this Answer in opposition to Entergys Motion to Strike1 the Commonwealths Reply.2 Entergys Motion relies upon case law and a factual record that do not support the Motion as claimed; the Motion also impermissibly seeks to have the ASLB make premature decisions on the scope and substance of the Commonwealths contention which should be resolved later in the adjudicatory process. Therefore, the Motion should be denied.
First, Entergy claims that portions of the Commonwealths Reply should be struck because, under NRC case law, a deficient contention cannot be saved by statements submitted in a reply. See e.g. Entergy Motion at 2 citing Louisiana Energy Services, L.P.
(National Enrichment Facility), CLI-04-25, 60 N.R.C. 223 (2004). However, the 1
Entergy Motion to Strike Portions of the Commonwealth of Massachusetts Reply to Entergy and NRC Staff Answers Opposing Waiver Petition and Motion to Admit Contention (July 15, 2011) (Entergy Motion).
2 Commonwealth of Massachusetts Reply to the Responses of the NRC Staff and Entergy to Commonwealth Waiver Petition and Motion to Admit Contention or in the Alternative for Rulemaking (July 5, 2011) (Commonwealth Reply); Declaration of Gordon R. Thompson in Reply to Entergys Answer of June 27, 2011 and NRC Staffs Response of June 27, 2011( July 5, 2011).
Commonwealths contention as initially filed clearly satisfies the NRCs pleading requirements;3 therefore the cases relied upon by Entergy have no application to this case.
Second, having submitted expert declarations in opposition to the Commonwealths contention, Entergy now complains that the Commonwealth should not be permitted to contest those opinions with an expert reply declaration of its own, and that the Commonwealth is impermissibly making new arguments and impermissible new claims. Entergy Motion at 4 -5. However, having opened the door to challenge the Commonwealths contention with its own expert declaration, Entergys complaint is inconsistent with the Commissions own rule allowing for a reply in these circumstances4 and standard rules of practice for rebuttal.5 For example, Entergy claims it is impermissible rebuttal for the Commonwealths expert to discuss direct experience at Fukushima as an appropriate measure to test Entergys PRA analysis and related matters, see Entergy Motion at 5, even though Entergy itself previously and repeatedly argued incorrectly that direct experience has no place in PRA analysis.6 Similarly, when the Staff in opposition claimed that a SAMA analysis has no direct safety or environmental significance, the Commonwealth 3
See e.g. Commonwealth of Massachusetts Motion to Admit Contention and, if Necessary, to Re-open Record Regarding New and Significant Information Revealed by the Fukushima Accident (June 2, 2011).
4 10 C.F.R. § 2.309 (h)(2).
5 Indeed, since Entergys opposition to the Commonwealths contention relied upon expert-supported arguments that the Commonwealth had not previously seen, necessarily the Commonwealth in turn must rely upon its own expert to contest them. See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-07-13, 66 N.R.C. 131, 163, n. 40 (2007)(Marshall, J. dissent) citing Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 N.R.C. 98, 102 (1993); see also American Manufacturers Mutual Co. v. American Broadcasting - Paramount Theaters, Inc., 388 F. 2d 272, 280 (2nd Cir. 1967)(party opposing motion for summary disposition must proffer rebutting evidence to demonstrate a genuine material issue in dispute for trial).
6 See Commonwealth Reply at 8 - 9 (discussing Staff and Entergy challenges to the use of direct experience).
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appropriately rebutted that claim.7 It also is illogical for Entergy to argue that issues which it raised in opposition to the Commonwealths initial contention and expert declaration,8 and which the Commonwealth then responded to in rebuttal, somehow are new and outside the scope of the matters raised by the initial contention itself. To the contrary, these matters arose from the debate on the Commonwealths initial contention, are reasonably inferable from the contention, and thus fall permissibly within its scope.
See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 2010 WL 1235387, *15 (2010). 9 Moreover, Entergys claim that these are new issues also is refuted by the factual record. For example, Entergy asserts that the Commonwealths expert initially did not address the issue of the NRCs Accident Sequence Precursor (ASP) program.
Entergy Motion at 6. Yet a report relied upon by Dr. Thompson in his Report expressly did so.10 Entergy also argues that the Thompson Report did not raise a nuclear safety regulation claim, but was only an environmental contention seeking to challenge Pilgrims SAMA analysis. Entergy Motion at 4. That assertion is incorrect because the Commonwealths NEPA claims overlap and in part rely upon the same impacts of concern as do AEA safety concerns. See Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 730 (3rd Cir. 1989)(noting the overlap in AEA and NEPA issues and indicating that 7
See Commonwealth Reply at 7 quoting NRC Staffs response to Commonwealth of Massachusetts Motion to Admit Contention and, if Necessary, Reopen the Record Regarding New and Significant Information Revealed by the Fukushima Accident (June 27, 2011).
8 Declaration of Dr. Gordon R. Thompson in Support Of Commonwealth Of Massachusetts Contention and Related Petitions And Motions (June 1, 2011); New and Significant Information from the Fukushima Daiichi Accident in the Context of Future Operation of the Pilgrim Nuclear Power Plant (June 1, 2011) (collectively, Thompson Report).
9 Entergy suggests that the Commonwealths impermissibly new and burdensome claims extend even to such foundational statements by the Commonwealths expert as that Entergy should uphold high scientific standards. See Entergy Motion at 5.
10 See Thompson Report at fn. 35, citing H. Hirsch et al., IAEA Safety Targets and Probabilistic Risk Assessment (Hannover, Germany: Gesellschaft fur Okologische Forschung und Beratung, August 1989)(report discussing ASP program, see pp 36-41).
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both statutes must be satisfied to support licensing). Entergys assertion also is incorrect because the Thompson Report challenged six separate deficiencies at Pilgrim - not just the SAMA analysis - based upon the lessons learned from Fukushima. Thompson Report at 29 - 31 (summary of findings).
Finally, the ASLB should decline Entergys request to preempt the standard discovery and litigation process by speculating at this time on all issues or interpretations of fact or law that may be raised by the Commonwealths contention. Cf. Entergy Motion at 4 - 5. The Commonwealth is not required to prove its case at the contention admission stage of the proceeding or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset. Louisiana Energy Services, L.P. (National Enrichment Facility),
CLI-04-35, 60 N.R.C. 619, 623 (2004). The Commonwealth has met this initial burden.
Beyond this, and consistent with its right of reply, the Commonwealth is not constrained from providing additional support in rebuttal, where Entergy has chosen to contest certain issues at the contention admission stage of the proceeding. And consistent with the Commissions rules of practice, the Commonwealth expects to offer further evidentiary support for its contention later in the discovery and litigation process.
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Conclusion Entergys Motion should be denied.
Respectfully submitted, Signed (electronically) by Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 Tel: (617) 727-2200 Fax: (617) 727-9665 matthew.brock@state.ma.us 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety And Licensing Board In the Matter of )
Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )
(Pilgrim Nuclear Power Station) ) July 21, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the Commonwealth of Massachusetts Answer in Opposition to Entergys Motion to Strike Portions of Massachusetts Reply, dated July 21, 2011, were provided to the Electronic Information Exchange for service on the individuals below:
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, D.C. 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge U.S. Nuclear Regulatory Commission Ann Marshall Young, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAMail.Resource@nrc.gov E-mail: Ann.Young@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the Secretary Mail Stop: T-3 F23 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 HearingDocket@nrc.gov
Richard S. Harper, Esq. U.S. Nuclear Regulatory Commission Susan L. Uttal, Esq. Office of Nuclear Reactor Regulation Andrea Z. Jones, Esq. Mail Stop: O11-F1 Beth N. Mizuno, Esq. Washington, D.C. 20555 -0001 Brian G. Harris, Esq.
Maxwell C. Smith U.S. Nuclear Regulatory Commission Office of General Counsel Mail Stop: O15 D21 Washington, D.C. 20555 OGCMailCenter.Resource@nrc.gov, richard.harper@nrc.gov, susan.uttal@nrc.gov, axj4@nrc.gov, beth.mizuno@nrc.gov, brian.harris@nrc.gov, maxwell.smith@nrc.gov Pillsbury, Winthrop, Shaw, Pittman LLP Entergy Nuclear 2300 N Street, N.W. 1340 Echelon Parkway Washington DC, 20037-1128 Mail Stop M-ECH-62 Jackson, MS 39213 David R. Lewis, Esq.
David.lewis@pillsburylaw.com Terence A. Burke, Esq.
Paul A. Gaukler, Esq. tburke@entergy.com Paul.gaulker@pillsburylaw.com Jason B. Parker, Esq.
Jason.parker@pillsburylaw.com Duane Morris L.L.P. Katherine Tucker, Law Clerk 505 9th Street, NW, Suite 1000 Katie.tucker@nrc.gov Washington, D.C. 20004-2166 Edward Williamson Sheila Slocum Hollis, Esq. Edward.williamson@nrc.gov SSHollis@duanemorris.com Pilgrim Watch Town of Plymouth Mary Lampert Town Managers Office 148 Washington Street 11 Lincoln Street Duxbury, MA 02332 Plymouth, MA 02360 Mary.Lampert@comcast.net Melissa Arrighi, Acting Town Manager marrighi@townhall.plymouth.ma.us 2
Kevin M. Nord, Chief Richard R. MacDonald Duxbury Fire Department and Emergency 878 Tremont Street Management Agency Duxbury, MA 02332 668 Tremont Street Also by E-mail:
Duxbury, MA 02332 macdonald@town.duxbury.ma.us nord@town.duxbury.ma.us Town of Duxbury Nuclear Advisory Laura Pinson Committee laura@nealgross.com 31 Deerpath Trl.
North Duxbury, MA 02332 Rebecca Chin, Vice Chair rebeccajchin@hotmail.com Signed (electronically) by Matthew Brock 3