ML11363A042
| ML11363A042 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 12/29/2011 |
| From: | Uttal S NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21660, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11363A042 (7) | |
Text
December 29, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Generation Co., and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. )
)
(Pilgrim Nuclear Power Station) )
NRC STAFFS MOTION TO STRIKE PORTIONS OF PILGRIM WATCHS REPLY INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319(e) and 2.323, the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby moves to strike statements made in 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 -Aqueous Discharges (Reply), filed on December 20, 2011. 1 As discussed below, the statements in Pilgrim Watchs (PW) Reply contain mischaracterizations relevant to this proceeding. Consequently, the Staff requests that the Board strike these statements or not consider them in ruling on the underlying contention.
DISCUSSION Pursuant to 10 C.F.R. § 2.323, the Staff moves the Board to exercise its authority under 10 C.F.R. § 2.319(e) to restrict unreliable statements in this proceeding by striking those 1
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 -
Aqueous Discharges (Dec. 20, 2011) (Agencywide Document Access and Management System (ADAMS) Accession No. ML11354A283).
portions of the Reply that mischaracterize applicable procedural facts. When promulgating 10 C.F.R. § 2.319(e), which lists the powers of the presiding officer to take appropriate action to control the prehearing and hearing and hearing process, the Commission observed that information may be limited or stricken by the presiding officer under 2.319(e) when it is unreliable. Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004). The Reply contains factual or procedural mischaracterizations. As such, these statements constitute unreliable information that the Board should strike pursuant to its authority under 10 C.F.R. § 2.319(e).
On December 13, 2011, the NRC Staff filed an Answer 2 to a contention filed by PW challenging the NRCs consideration of severe accident mitigation alternatives for the Pilgrim license renewal application. 3 The Staff argued that the underlying contention was inadmissible because it was not timely under 10 C.F.R. § 2.309(c) and did not meet the standards for reopening the record in 10 C.F.R. § 2.326. Answer at 2. The reopening standards applied to the new contention because the record in this proceeding closed over three years ago, in 2008.
Id. at 16. In its Answer, the Staff anticipated many arguments advanced by PW in its Reply. As such, the Answer already rebuts most of the assertions in the Reply. However, some statements in the Reply are factually inaccurate. As a result, the Staff asks the Board to strike them from the Reply or not consider them in reaching its determination on the admissibility of the underlying contention.
In its Answer, the Staff argued that the record in this proceeding closed when the Board 2
NRC Staff Answer in Opposition to Pilgrim Watchs Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima (Dec. 13, 2011) (ADAMS Accession No. ML11347A249) (Answer).
3 Pilgrim Watch Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima (Nov. 18, 2011) (ADAMS Accession No. ML113322A080).
issued its final ruling on Contention 1 in 2008, because that was the only remaining issue before the Board. Answer at 16 & n.61. PW asserts that Contention 1 was not the only contention pending at that time; the Remand on [C]ontention 3 was pending also. Reply at 38. But, the Commission did not remand Contention 3 to the Board until 2010. Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 290 (2010). As a result, Contention 3 was not pending before the Board when it closed the record on Contention 1. Thus, the Boards decision to close the record on Contention 1 necessarily closed the entire record for the proceeding.
Next, PW claims that the Boards decision on Contention 1 was a Partial Initial Decision, implying that other issues remained before the Board when it ruled on Contention 1.
Reply at 30. In fact, the Board captioned that ruling as an Initial Decision, not a Partial Initial Decision. Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-08-22, 68 NRC 590, 593 (2008). Removing any doubt on the issue, the Board stated in that order: In this Initial Decision, the Licensing Board rules on the remaining issues outstanding before it in this 10 C.F.R. Part 2, Subpart L proceeding. Id.
Last, PW claims that the Commissions decision in Vermont Yankee is distinguishable because [u]nlike here, the new contention was essentially the same as other contentions previously decided and as to which the record was closed. We agree with the Board that [the Petitioner] has simply rehashed old arguments in Contention 2C. Reply at 42 (quoting Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 53 (2010)). But, Contention 2C was not the subject of a motion to reopen. Rather, because the Petitioner filed it in response to a new analysis submitted by the Applicant, the Commission observed that the Board considered whether it met the standards for a new or amended contention, not the reopening standards. Vermont Yankee, CLI-10-17, 72 NRC at 7, 49-51.
PW ignores or simply disagrees with the portion of the Vermont Yankee decision that actually addressed the reopening standards. Because the Commission remanded an issue to the Board in Vermont Yankee, the Commission observed that during the remand NEC and Vermont are free to submit a motion to reopen the record pursuant to 10 C.F.R. § 2.326, should they seek to address any genuinely new issues related to the license renewal application that previously could not have been raised. Id. at 10 n.37. In fact, while the case was on remand, the Petitioner did file a contention that sought to address a new issue, and the Commission considered whether the contention met the reopening standards on review. Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 NRC __, __ (slip op. at 14-18) (2011) (ADAMS Accession No. ML110691312). Consequently, PWs attempt to distinguish Vermont Yankee rests on a misstatement of the procedural history underlying that proceeding.
As the above quotations demonstrate, PWs Reply rests on inaccurate statements.
Consequently, the Staff asks the Board to either strike those misstatements or not consider them in ruling on the admissibility of PWs underlying contention CERTIFICATE OF CONSULTATION Pursuant to 10 C.F.R. § 2.323(b), On December 22, 2011, Staff counsel contacted the other parties to this proceeding via e-mail to resolve the issues raised in this proceeding. Pilgrim Watch, by its representative, Mary Lampert, objected to this motion. The other parties did not respond.
CONCLUSION For the reasons set forth above, the Board should strike or not consider the portions of the Reply that mischaracterize relevant facts to this proceeding.
Respectfully submitted,
/Signed Electronically By/
Susan L. Uttal Counsel for NRC Staff Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: susan.uttal@nrc.gov Dated at Rockville, Maryland this 29th Day of December, 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Generation Co., and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. )
)
(Pilgrim Nuclear Power Station) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC Staffs Motion to Strike Portions of Pilgrim Watchs Reply have been served upon the following by the Electronic Information Exchange, this 29th day of December, 2011:
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, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov
Sheila Slocum Hollis Terence A. Burke, Esq.
Duane Morris LLP Entergy Nuclear 505 9th St., NW, Suite 1000 1340 Echelon Parkway Washington, DC 20004 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 E-mail: tburke@entergy.com Mary Lampert David R. Lewis, Esq.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.
668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald Matthew Brock Town Manager Assistant Attorney General 878 Tremont Street Commonwealth of Massachusetts Duxbury, MA 02332 One Ashburton Place E-mail: macdonald@town.duxbury.ma.us Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
/Signed Electronically By/
Susan L. Uttal Counsel for the NRC Staff
.