ML11290A182
| ML11290A182 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 10/17/2011 |
| From: | Brock M State of MA, Office of the Attorney General |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 21244, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11290A182 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
Entergy Nuclear Generation Co
)
Docket No. 50-293-LR And Entergy Nuclear Operations, Inc.
)
(Pilgrim Nuclear Power Station)
)
October 17, 2011 COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF ANSWER TO MASSACHUSETTS REQUEST TO STAY COMMISSION DECISION OR IN THE ALTERNATIVE TO STRIKE REFERENCE TO MASSACHUSETTS EXPERT The Commonwealth of Massachusetts hereby replies to the NRC Staffs Opposition1 to the Commonwealths Motion to stay a Commission decision on Pilgrim Watchs Petition for Review or in the alternative to strike reference to Massachusetts expert.2 The Commonwealth submits this Reply because the primary law cited by the Staff to support its Opposition to a stay is not relevant to a decision by the Commission on the housekeeping stay requested by the Commonwealth. The Commission also should reject the Staff's request to proceed to consider the merits of the Commonwealth's expert opinion now, simply because a pro se petitioner has cited excerpts from Massachusetts' filings, since the Commonwealth is not even a party to the present appeal. Moreover, premature Commission review of a portion of the Commonwealth's case, on an incomplete record, also impermissibly would intrude on the jurisdiction of the Pilgrim Atomic Safety and Licensing Board (ASLB) which currently is considering the merits of the Commonwealth's expert-supported contention. Therefore, consistent with NRC regulations, 1 NRC Staffs Answer to Commonwealth of Massachusetts Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts Expert (October 11, 2011)(Staff Opposition).
2 Commonwealth of Massachusetts Answer to Pilgrim Watch Petition for Review, Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts Expert (September 28, 2011).
2 and the Commonwealth's AEA hearing rights, the Commission should reject the Staffs Opposition and allow the Commonwealths Motion.
- 1. The Commonwealth has satisfied the standard for a discretionary housekeeping stay under Commission precedent and need not satisfy the stay requirements under 10 C.F.R. § 2.342(e) to obtain that relief.
The Staff spends much of its Opposition arguing that the Commonwealth has not demonstrated that it is entitled, under 10 C.F.R. § 2.342(e), to a stay of the Pilgrim Watch appeal. See e.g., Staff Opposition at 6 - 8. However, that regulation is irrelevant to the Commonwealths Motion. See Yankee Atomic Electric Co. (Yankee Nuclear Power Station),
CLI-96-5, 43 N.R.C. 53, 60 and FN1 and 7 (1996)(housekeeping stay granted as a matter of Commission discretion and traditional stay factors are not applicable). Indeed, the Commonwealth never cited the regulation relied upon by the Staff in its Motion and does not seek relief under it. Instead, consistent with Commission precedent, the Commonwealth now requests the Commission, in the exercise of its discretion, to issue a housekeeping stay and defer issuing a decision on the Pilgrim Watch appeal in order to ensure the procedural integrity of this case: 1) that the Commonwealth is not prejudiced by the Commissions premature and incomplete review of Massachusetts expert supported contention filings on lessons learned from Fukushima, which are now pending before -- and under the jurisdiction of -- the Pilgrim ASLB3;
- 2) that the Commonwealth, not the pro se petitioner, may present its own and complete case for decision to the NRC, consistent with the Commonwealths AEA hearing right on all issues material to licensing4; and, 3) that, as appropriate, all parties have an orderly opportunity for 3 See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Generating Station), LBP-11-20, __ N.R.C. __, (August 11, 2011)(slip op. at 3).
4 See UCS v. NRC, 735 F. 2d 1437, 1445-46 (D.C. Cir. 1984)(holding Commission rule denying review of issue material to licensing impermissible in light of AEA hearing requirements).
3 judicial review.5 Given the complex and novel issues raised by the lessons learned from Fukushima, and to avoid prejudice to the Commonwealth, the Commission should grant a housekeeping stay pending a decision by the ASLB on the Commonwealths contention. Yankee Atomic, 43 NRC 53 at 60; see also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 N.R.C. 461, *6 (1991).
Moreover, having unnecessarily raised the issue of traditional stay factors, the Staff proceeds to argue that the Commonwealth, for example, has not demonstrated a likelihood of success on the merits. Staff Opposition at 7. This is not surprising since the Commonwealth has never made - or had a need to make - a merits argument to the Commission on the Commonwealth's contention, which remains pending before the ASLB. Yet, by mischaracterizing the Commonwealths Motion as requiring the Commission to consider now the merits of the Commonwealths contention, the Staff inappropriately uses that self-created opportunity to argue that the Commission's prior order denying various emergency petitions for relief in effect means that the Commission already may have considered and rejected a portion of the Commonwealths contention. See Staff Opposition at 7, FN 27. That claim is false, given that the Commission - in the same order cited by the Staff - expressly reserved judgment on the Commonwealths contention filings which will be addressed separately, in the Pilgrim proceeding. See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Generating Station), CLI-11-05, __ N.R.C. __, (Sept. 9, 2011)(slip op. at FN 122).
Similarly, the Staff uses the pro se petitioners appeal as a vehicle for premature Commission review of Massachusetts case by claiming that the Commonwealths contention 5 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 N.R.C. 47, 61 (1992)(discretionary stay granted in view of expected judicial review).
4 filings are very similar to PWs post-Fukushima contentions. Staff Opposition at 7, FN 27.
That claim also is false because Massachusetts' contention relies upon an independent and site specific expert analysis of the Pilgrim plant, in light of the accident at Fukushima, which is unrelated to the Pilgrim Watch filings.6 Indeed, the primary purpose for the Commonwealths Motion is to avoid just the type of record confusion and piecemeal and premature review of the Commonwealths contention filings in which the Staff indulges in its Opposition. At the same time, the Commonwealth's Motion recognized the potential overlap in the subject matter of the claims raised by the Commonwealth and PW in the same proceeding, the potential for duplicative litigation, and the importance for Commission guidance on the lessons learned from Fukushima based upon a complete record.
Therefore, it is additionally appropriate for the Commission to grant a discretionary stay until the ASLB has ruled on the Commonwealth's contention.7 In the alternative, if the Commission declines to grant a discretionary stay, the Commonwealth requests that the Commission strike and disregard the references in the Pilgrim Watch appeal to Massachusetts' case. Commonwealth Answer at 4.8 6 This position does not reflect any comment on the strength of the PW appeal. PW has litigated against the Staff and Entergy for years regarding Pilgrim, including a successful appeal before the Commission, and may do so again.
7 These factors are consistent with the factors cited by the Staff that warrant holding the PW appeal in abeyance until the ASLB rules on the Commonwealth's contention. See Staff Opposition at 8 - 9.
8 The Staff seems not to oppose this alternative request for relief. See Staff Opposition at 10 (PW reference to Massachusetts' filing is a new issue).
5 Respectfully submitted,
/s/ Matthew Brock 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 Certificate of Counsel On October 14, 2011, the Commonwealth notified all parties of record that the Commonwealth intended to file a Reply to NRC Staffs answer to Massachusetts request to stay. The NRC Staff has advised that it objects to the Commonwealths Reply.
/s/Matthew Brock
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
Entergy Nuclear Generation Co.
)
Docket No. 50-293-LR And Entergy Nuclear Operations, Inc.
)
(Pilgrim Nuclear Power Station)
)
October 17, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF ANSWER TO MASSACHUSETTS REQUEST TO STAY COMMISSION DECISION OR IN THE ALTERNATIVE TO STRIKE REFERECE TO MASSACHUSETTS EXPERT, dated October 17, 2011, were provided to the Electronic Information Exchange (EIE) for service on the individuals below and by electronic mail as indicated by an asterisk*:
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair E-mail: Ann.Young@nrc.gov Administrative Judge Richard F. Cole E-mail: Richard.Cole@nrc.gov Administrative Judge E-mail: Paul.Abramson@nrc.gov Hillary Cain, Law Clerk Hillary.cain@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-15 D21 Washington, DC 20555-0001 Richard S. Harper, Esq.
Susan L. Uttal, Esq.
Andrea Z. Jones, Esq.
Beth N. Mizuno, Esq.
Brian G. Harris, Esq.
Maxwell C. Smith, Esq.
Edward Williams, Esq Brian Newell, Paralegal 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 edward.williams@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Office of the Secretary Mail Stop: O-16C1
2 Mail Stop: O-16C1 Washington, DC 20555-0001 OCAAMail.Resource@nrc.gov Washington, DC 20555-0001 HearingDocket@nrc.gov U.S. Nuclear Regulatory Commission Office of Nuclear Reactor Regulation Mail Stop: O11-F1 Washington, D.C. 20555 -0001 Lisa Regner*
Senior Project Manager Division of License Renewal E-mail: Lisa.Regner@nrc.gov Pillsbury, Winthrop, Shaw, Pittman LLP 2300 N Street, N.W.
Washington DC, 20037-1128 David R. Lewis, Esq.
David.lewis@pillsburylaw.com Paul A. Gaukler, Esq.
Paul.gaulker@pillsburylaw.com Jason B. Parker, Esq.
Jason.parker@pillsburylaw.com
- Maria.webb@pillsburylaw.com Entergy Nuclear 1340 Echelon Parkway Mail Stop M-ECH-62 Jackson, MS 39213 Terence A. Burke, Esq.
tburke@entergy.com Town of Plymouth Town Managers Office 11 Lincoln Street Plymouth, MA 02360 Melissa Arrighi, Acting Town Manager*
marrighi@townhall.plymouth.ma.us Duxbury Emergency Management Agency 686 Tremont Street Duxbury, MA 02332 Kevin M. Nord, Fire Chief & Director*
E-mail: nord@town.duxbury.ma.us Town of Plymouth, MA Duane Morris L.L.P.
505 9th Street, NW, Suite 1000 Washington, D.C. 20004-2166 Sheila Slocum Hollis, Esq.*
SSHollis@duanemorris.com Pilgrim Watch 148 Washington Street Duxbury, MA 02332 Mary Lampert, Director Mary.Lampert@comcast.net Town of Duxbury Nuclear Advisory Committee 31 Deerpath Trl.
North Duxbury, MA 02332 Rebecca Chin, Vice Chair*
rebeccajchin@hotmail.com
/s Matthew Brock Matthew Brock