ML11266A170
| ML11266A170 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 09/23/2011 |
| From: | Gaukler P, Doris Lewis Entergy Corp, Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21120, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11266A170 (8) | |
Text
September 23, 2011 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) )
)
ENTERGY ANSWER OPPOSING COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH MOTION TO SUPPLEMENT BASES OF ITS CONTENTION Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby oppose the Commonwealth of Massachusetts Motion1 to reply to the NRC Staff and Entergy Answers2 opposing the Commonwealths Motion to Supplement the Bases of its Contention.3 The Commonwealths 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.
1 Commonwealth of Massachusetts Motion to Reply to NRC Staff and Entergy Oppositions to Commonwealth Motion to Supplement Bases to its Contention (Sept. 13, 2011) and Commonwealth of Massachusetts Amended Motion to Reply to NRC Staff and Entergy Oppositions to Commonwealth Motion to Supplement Bases to its Contention (Sept. 15, 2011) (collectively referred to as Motion). The September 15, 2011 amended Motion is identical in form to the September 13, 2011 Motion, except that the Motion is recaptioned for submission before the Atomic Safety and Licensing Board. Amended Motion at 1 n.1. Included with the Motion is the proffered Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to Commonwealth Motion to Supplement Bases to Contention on NRC Task Force Report on Lessons Learned from Fukushima (Sept. 13, 2011) (Proffered Reply).
2 NRC Staffs Response to Commonwealth of Massachusetts Motion to Supplement Bases to Proposed Contention to Address NRC Task Force Report on Lessons Learned from Fukushima (Sept. 6, 2011) (NRC Staff Answer);
Entergys Answer Opposing Commonwealth Motion to Supplement Bases to Commonwealth Contention to Address NRC Task Force Report on Lessons Learned from Fukushima (Sept. 6, 2011) (Entergy Answer).
3 Commonwealth of Massachusetts Motion to Supplement Bases to Commonwealth Contention to Address NRC Task Force Report on Lessons Learned from the Radiological Accident at Fukushima (Aug. 11, 2011) (Motion to Supplement).
The Commissions Rules of Practice do not authorize a reply. In particular, the governing regulation provides that [t]he moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. 10 C.F.R. § 2.323(c)
(emphasis added). Further, such
[p]ermission 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) (emphasis added). As discussed below, the Commonwealth makes no showing of compelling circumstances required under the rule for the filing of a reply.
The Commonwealth claims the presence of compelling circumstances because it could not have reasonably anticipated that . . . the arguments of Staff and Entergy would rely upon an incorrect legal standard for contention admission inconsistent with the NRCs obligation to consider new and significant information under NEPA.
Motion at 1 (emphasis added). However, Entergys Answer opposing the Commonwealths Motion to Supplement the bases of its proposed contention relied upon the same contention admissibility standards as briefed in Entergys Answer to the Commonwealths Contention.4 Indeed, Entergys Answer opposing the Commonwealths Motion to Supplement expressly incorporates the legal standards set forth in Entergys Answer to the Commonwealths Contention as follows:
The legal standards applicable to amended contentions, reopening the hearing record, late contentions, admissible contentions, and petitions for waiver of NRC rules are set forth in Entergys [Contention] Answer at 14-18 and 45-48 and are hereby incorporated by reference.
4 Entergys Answer Opposing Commonwealth Contention and Petition for Waiver Regarding New and Significant Information Based on Fukushima (June 27, 2011) (Entergy Contention Answer).
2
Entergy Answer at 6 (emphasis added). Therefore, the standards for contention admissibility relied upon by Entergy in its Answer to the Motion to Supplement were identical to those briefed in Entergys June 27, 2011 Contention Answer. Similarly, in responding to the Commonwealths Motion to Supplement, the NRC Staff relie[d] on its previous responses to the Commonwealths Contention and Waiver Petition. NRC Staff Answer at 5-7.
In short, there is simply no basis for, nor merit to, the Commonwealths claim that it could not have reasonably anticipated that, allegedly, the arguments of Staff and Entergy would rely upon an incorrect legal standard for contention admission . . . . Motion at 1 (emphasis added). The Commonwealth has been on notice of the standards for contention admissibility relied upon by Entergy and the NRC Staff since at least their June 27, 2011 answers to the Commonwealths Contention and Waiver Petition. The Commonwealth thus had weeks to anticipate how Entergy and the NRC Staff would again respond to the same deficient admissibility arguments advanced by the Commonwealth in its Motion to Supplement.
Likewise, there is nothing new with respect to the Commonwealths claim that the record reopening and contention admissibility standards, as briefed by Entergy and the Staff, are allegedly inconsistent with the NRCs obligation to consider new and significant information under NEPA. Motion at 1. The Commonwealth has made this argument previously,5 to which 5
See 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) at 9-11 (Contention Motion); 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) at 5-6; and 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) at 26-28 (Waiver Petition).
3
both Entergy and the Staff have previously answered,6 and to which the Commonwealth has filed a reply.7 Specifically, in the Commonwealths Reply to the Entergy and NRC Staff Contention Answers, the Commonwealth expressly argued that:
[T]he interpretation of NRC regulations supported by the Staff and Entergy, which would deny the Commonwealth a hearing on material SAMA and other Fukushima-related issues it could not have raised previously, is inconsistent with the NRC's obligation under NEPA to consider new and significant information and the Commonwealths hearing right on all issues material to relicensing under the AEA.
Commonwealth Reply at 6 (footnote omitted) (emphasis added). This argument is essentially identical to the argument the Commonwealth claims it could not reasonably anticipate. Thus, the Commonwealths claim that it could not have reasonably anticipated Entergys and the NRC Staffs positions concerning the NRCs obligation under NEPA to consider new and significant information is belied by its own prior Reply.
Also, not new is the Commonwealths claim that the NRC Staff and Entergy allegedly disregard controlling case law on the application of late-filed contention standards which would impermissibly deny the Commonwealth its AEA hearing right. Motion at 1-2. For example, in its Contention Motion, the Commonwealth claimed that
[t]he additional burden placed upon the Commonwealth to reopen a closed record in these circumstances also is contrary to the Commonwealths right under the Atomic Energy Act to a hearing on all issues material to licensing.
Contention Motion at 9 n.4 (emphasis added). See also Waiver Petition at 28-29. Entergy responded to this claim in its Contention Answer at 65-66.8 And the Commonwealth replied, 6
Entergy Contention Answer at 66-67; NRC Staffs Response to Commonwealth of Massachusetts Motion to Admit Contention and, if Necessary, Re-Open Record Regarding New and Significant Information Revealed by Fukushima Accident (June 27, 2011) at 11-13 (NRC Staff Contention Answer).
7 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) at 6.
4
arguing that the interpretation of NRC regulations supported by the Staff and Entergy . . . is inconsistent with . . . the Commonwealths hearing right on all issues material to relicensing under the AEA. Commonwealth Reply at 6 Thus, again this argument was previously raised by the Commonwealth in its initial contention pleadings, to which Entergy answered, and to which the Commonwealth replied. As such, there is no legitimate basis - and certainly no compelling circumstances - for the Commonwealth to claim that it could not have reasonably anticipated the NRC Staff and Entergy arguments on this issue in their responses to its Motion to Supplement.
Finally, the Commonwealth asserts that compelling circumstances exist because it could not have reasonably anticipated Entergys and the NRC Staffs arguments that the Commonwealth has not identified specific SAMAs, previously rejected, which now should be reconsidered under NEPA, based upon the events at Fukushima.
Motion at 1-2. Once again, the Commonwealth should have reasonably anticipated this argument from Entergy and the NRC Staff. In response to the Commonwealths Contention, both Entergy and the NRC Staff argued that the Contention was fatally flawed for failing to sufficiently challenge Entergys SAMA analysis by offering only mere speculation that Entergy should redo the SAMA analysis because purportedly new and significant information revealed by the Fukushima accident might affect the outcome of the analysis. Entergy Contention Answer at 28-29, 41-44, 62-64; NRC Staff Contention Answer at 2, 8-10. The Commonwealth cannot plausibly contend that it could not have reasonably anticipated that Entergy and the NRC Staff would reiterate this line of argument when the Motion to Supplement was deficient for the same reason as is the Contention. As explained by both Entergy and the NRC Staff, nothing in 8
See also Entergy Answer Opposing Commonwealth of Massachusetts Conditional Motion to Suspend License Renewal Proceeding (June 13, 2011) at 5-8, 11-12.
5
the Fukushima Task Force Report (the basis for the Commonwealths Motion to Supplement its Contention) would lead to the identification of one more cost-beneficial SAMA. Entergy Answer at 22; NRC Staff Answer at 8-9. Consequently, the Commonwealth demonstrates no compelling circumstances for the Board to consider the Proffered Reply.9 Therefore, for the above stated reasons, the Board should deny the Motion and disregard the Proffered Reply attached to it.
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 Phone: (202) 663-8000 E-mail: paul.gaukler@pillsburylaw.com Counsel for Entergy Dated: September 23, 2011 9
In addition, the Commonwealth provides, for the first time, in its Proffered Reply a purported quantification of the benefit that would result from filtered venting of the containment. Proffered Reply at 9 & nn. 16, 17. This analysis appears nowhere in any of the declarations or reports prepared by the Commonwealths expert, or any of the Commonwealths other filings. Commission case law proscribes raising issues for the first time on reply.
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). Thus, this argument is impermissibly raised for the first time in an impermissible Proffered Reply, and should not be considered by the Board for this additional reason as well.
Moreover, this new purported quantification is based solely on Dr. Thompsons unfounded and illogical direct experience core damage frequency method, see Entergy Contention Answer at 31-36, and not on any alleged inadequacy in the Pilgrim filtered venting SAMA itself, which is nowhere discussed by Dr. Thompson, see id. at 44.
6
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 Answer Opposing Commonwealth of Massachusetts Motion to Reply to NRC Staff and Entergy Oppositions to Commonwealth Motion to Supplement Bases of Its Contention was provided to the Electronic Information Exchange for service on the individuals below, this 23rd day of September 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/
Paul A. Gaukler 2
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