ML11357A111

Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Commonwealth of Massachusetts Request for Stay, Motion for Waiver, and Request for Hearing on a New Contention Relating..

ML11357A111
Person / Time
Site:	Pilgrim
Issue date:	12/23/2011
From:	Lampert M Pilgrim Watch
To:	NRC/OCM
SECY RAS
References
RAS 21645, 50-293-LR, ASLBP 06-848-02-LR
Download: ML11357A111 (4)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Entergy Nuclear Generation Co. and )

Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR

)

) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)

December 23, 2011 Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watchs Petition For Review Of Memorandum And Order (Denying Commonwealth Of Massachusetts Request For Stay, Motion For Waiver, And Request For Hearing On A New Contention Relating To The Fukushima Accident) Nov. 28, 2011 INTRODUCTION Pilgrim Watch respectfully requests leave to file a response to Entergys and NRC Staffs Answers to Pilgrim Watchs Petition For Review Of Memorandum And Order (Denying Commonwealth Of Massachusetts Request For Stay, Motion For Waiver, And Request For Hearing On A New Contention Relating To The Fukushima Accident) Nov. 28, 2011.

Entergy and NRC Staff make essentially the same comments in their respective answers; for efficiency, Pilgrim Watch will reply to both in this one filing.

Contrary to Entergys and the NRC Staffs arguments:

1. Pilgrim Watch has a right to appeal the denial of the Massachusetts Attorney Generals contention.

2. Pilgrim Watchs Petition for Review demosntrated an error of fact and law in the Boards rulings.

PROCEDURAL BACKGROUND Pilgrim Watch is a party to these proceedings. Pilgrim Watch on December 8, 2011 sought review of aspects of the Massachusetts Decision that directly affect Pilgrim Watch.

DISCUSSION Entergy was correct in pointing out that a party may act to vindicate its own rights in the proceeding; it has no standing, however, to assert the rights of others. (Entergy 1-2, citing Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-345, 4 N.R.C. 212,213 (1976). Entergy somehow missed the point that Pilgrim Watchs Petition asked for review of portion of the Massachsuetts Decision that directly affects Pilgrim Watch, including the Massachusetts Decision's apparent holding that the Commonwealth was required to meet a "reopening rquirement" (Massachusetts Decision, 69), and more particularly:

a. The Majority's statements that

i. "We originally closed these proceedings by order issued June 4, 2008" (Massachusetts Decision, 3), and ii. "[T]he evidentiary record in this proceeding remains closed" (Massachusetts Decision, 71); and also 2

b. The Majority's attempt to use the Massachusetts Decision to retroactively support its decisions of August 11, 2011 (referred to by the Majority as the "Pre-Fukushima Order") and September 8, 2011 (referred to by the Majority as the "Post Fukushima Order", these Orders are collectively referred to as the "Pilgrim Watch Decisions) that improperly rejected Requests for Hearing filed by PW, and Requests for Review of which have for some time been pending before the Commission:

[T]he status of this proceeding was, at the time this contention [of the Commonwealth of Massachusetts] was submitted, was to address the narrow portion of Pilgrim Watch's Contention 3 remanded to us ... and address five new contentions filed by Pilgrim Watch since the remand, all of which were previously resolved or are resolved by this Order." (Massachusetts Decision 64, fn 232, underlining added)

Does Entergy or anyone else seriously believe that if the Commission upheld the ASLBs incorrect finding that the record was closed would not adversely affect Pilgrim Watch by setting a Commission precedent?

NRC Staff (at 5) errorneously claimed that PWs challenges do not focus on legal conclusions or findings of fact and, therefore, do not meet the bases contemplated by the regulations for filing such a petition. Entergy , in fewer words, says the same: [I]ts Petition fails to demonstrate any clear error of law in the Boards ruling. (Entergy, 2) They both are wrong because:

1. Whether the record in this proceeding is open or closed is a fact; and

2. Whether the Commonwealth here, and PW in its previously filed Requests for Hearing, was required to move to reopen under 10 CFR 2.326 is a question of law.

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For the reasons set forth above, the Commission should accept Pilgrim Watchs Petition for Review of LBP-11-35 and review and reverse the Massachuetts Decision insofar as it is directed to the status of the record in this proceeding, or to the circumstances under which a Motion to Reopen is required. We have fully met the requriements of § 2.341.

Respectfully submitted, (Signed Electronically)

Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury MA 02332 Tel 781-934-0389 Email: mary.lampert@comcast.net December 23, 2011 December 23, 2011 On December 22, 2011, Pilgrim Watch notified all parties of record via email of its intent to make this filing and requested that they response if they objected. Paul Gaukler, representing Entergy, indicated that Entergy objects. Susan Uttal, NRC, objects.

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