ML12003A205
| ML12003A205 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 01/03/2012 |
| From: | Uttal S NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 21680, 50-293-LR, ASLBP 06-848-02-LR, LBP-11-35 LBP-11-35 | |
| Download: ML12003A205 (9) | |
Text
January 3, 2012 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) )
NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH APPEAL OF LBP-11-35 INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby files its answer in opposition to Commonwealth of Massachusetts (Massachusetts) motion to file a reply to the Staffs response to the Massachusetts appeal of the Atomic Safety and Licensing Board (ASLB) decision in LBP-11-35.1 As discussed more fully below, the Reply Motion does not demonstrate that necessity or fairness requires an opportunity to submit a reply or that the reply will add anything of substance to Massachusetts position. In addition, the Motion to Reply is mistaken in several respects.
1 Commonwealth of Massachusetts Motion to Reply to NRC Staff and Entergy Oppositions to Commonwealth Appeal of LBP-11-35, December 23. 2011(Reply Motion); NRC Staff s Answer to Commonwealth of Massachusetts Brief in Support of Appeal from LBP-11-35, December 19, 2011(Staff Response).
Therefore, the Reply Motion should be denied.
PROCEDURAL HISTORY The history of this proceeding has been presented in numerous pleadings before the Commission and the Board, including in the Staffs Answer, and will not be repeated in its entirety herein. Rather, in brief, we focus on the most recent submissions to the Commission.
On June 2, 2011, more than five years after the initiation of this case, Massachusetts filed a motion to admit a new contention, accompanied by a request for waiver, challenging the site-specific Pilgrim severe accident mitigation alternatives (SAMA) analysis based on information related to the March 2011 Fukushima accident.2 The Staff (and Entergy) opposed the motion.3 On August 11, 2011, Massachusetts filed a motion to supplement the bases of its proposed contention.4 On November 28, 2011, a Board Majority ruled on Massachusetts Motion, denying the Stay Request, Waiver Request, and Motion to Admit, while granting the leave to supplement.5 Massachusetts filed its appeal of the Boards denial of its motions and 2
Commonwealth of Massachusetts Motion to Admit Contention and, If Necessary, to Reopen Record Regarding New and Significant Information Revealed by Fukushima Accident (June 2, 2011)
(Motion to Admit) (ADAMS Accession No. ML111530340); 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) (ADAMS Accession No. ML111530342).
3 NRC Staffs Answer to the Commonwealth of Massachusetts Brief in Support of Appeal from LBP-11-35 (December 19, 2011) (Staff Contention Answer) (ADAMS Accession No. ML11353A448).
4 Commonwealth of Massachusetts Motion to Supplement Bases to Commonwealth to Commonwealth Contention to Address NRC Task Force Report on Lessons Learned from the Radiological Accident at Fukushima (Aug. 11, 2011) (ADAMS Accession No. ML11223A284).
5 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-11-35, 74 NRC ___ (Nov. 28, 2011) (slip op. at 70) (ADAMS Accession No.
(continued. . .)
requests on December 8, 2011.6 The Staff Response was filed on December 19, 2011.
Entergy filed its answer on the same day. On December 23, 2011, Massachusetts filed its Reply Motion, accompanied by an unauthorized reply.7 The Staff now files this answer in opposition to the Reply Motion.
LEGAL STANDARDS FOR MOTIONS TO PERMIT A REPLY Massachusetts stated that it filed its Reply Motion pursuant to 10 C.F.R. § 2.323(c).
Reply Motion at 1. Massachusetts contends that it should be allowed to submit the reply pursuant to § 2.323(c) because it could not have reasonably anticipated the arguments that the Staff would put forth in their answers to Massachusetts Appeal of LBP-11-35. But 10 C.F.R. § 2.323(c) only applies to replies to motions, not to appeals. See 10 C.F.R. § 2.232(c)
(providing only for answers to motions). As the Commission has observed, when reply briefs are permitted, our rules provide explicitly for their filing (10 C.F.R. § 2.341(b)(3), or set strict conditions on their filing. U.S. Dept. of Energy (High-Level Waste Repository), CLI-08-12, 67 NRC 386, 393 (2008). Although the regulations in 10 C.F.R. § 2.341(b)(3) provide specifically for the possibility of filing reply briefs in appeal, the regulations in 10 C.F.R. § 2.311(b) do not.
10 C.F.R. § 2.341(b)(3); 10 C.F.R. § 2.311(b). Specifically, [t]he Commissions regulations
(. . .continued)
ML11332A152). Judge Young filed a separate opinion concurring in the results only. Id. at 72. For ease of reading, the Board Majority will be referred to as the Board, the Board Majority opinion will be referred to as the Board Order or the Boards decision.
6 Commonwealth of Massachusetts Notice of Appeal of LBP-11-35 and Brief in Support of Appeal (December 8, 2011) (ADAMS Accession No. ML11342A168) (Massachusetts Appeal).
7 Reply Motion; Commonwealth of Massachusetts Brief in Reply to NRC Staff and Entergy Oppositions to the Commonwealths Appeal of LBP-11-35 (December 23, 2011) (Massachusetts Brief).
governing appeals from the denial of intervention provide for a notice of appeal with a supporting brief, and for a brief opposing the appeal, but [t]he regulations do not provide for replies. USEC Inc. (American Centrifuge Plant), CLI-06-09, 63 NRC 433, 438-39 (2006); see also Nuclear Engineering Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737, 745 n. 9 (1978) (merit to motion to strike reply brief; regulation governing appeals does not provide for reply briefs).
Where reply briefs are not provided for in the regulations for appeals from interlocutory decisions, leave to file such reply briefs should be denied. High-Level Waste, CLI-08-12, 67 NRC at 393. Such extra filings are permitted only where necessity or fairness dictates. Id.
Additionally, a motion for leave to reply to an answer opposing an appeal will be denied if the reply adds nothing of substance to the movants position, but simply provides additional comments regarding the same arguments. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1),
CLI-92-11, 36 NRC 47, 51 n. 8 (1992).
DISCUSSION Massachusetts asserts, in cursory fashion, that it could not have reasonably anticipated that the Staff would (1) incorrectly characterize the Commonwealths appeal, in part, as an impermissible challenge to NRC regulations; (2) erroneously claim that the Boards review of the contention against the NRCs late-filed contention standards is sufficient to satisfy the NRCs legal obligation to take a hard look at new and significant information under NEPA; and (3) argue that the Board was correct that the Commonwealth did not present evidence on the costs and benefits of a revised SAMA analysis. Reply Motion at 1-2. However, Massachusetts fails to demonstrate any basis for these claims.
As discussed below, of the three reasons Massachusetts advances why the Commission should consider its proposed reply, one is an incorrect statement of the Staffs position, one was
argued in the Staffs original contention answer to the Board, and one was simply an arqument by the Staff that the Board itself construed.
Massachusetts states that it could not have reasonably anticipated that the Staff would incorrectly characterize Massachusetts appeal as an impermissible challenge to NRC regulations. Reply Motion at 1. But, in fact, the Staff never made that argument. The Staffs response to Massachusettss Appeal argues that Massachusetts claims fail because 1) the NRCs regulations applying the reopening standard to contentions raised only after the record has closed have been affirmed on review by the pertinent federal court (2) the Board properly applied the contention admissibility requirements, [(3)] it did consider the allegedly new and significant information proffered by the Commonwealth; and [(4)] its determination that the information did not meet the regulatory requirements for admissibility is well-supported by the record. Staff Response at 8-9. The Staff also argued that there is no right to a hearing under NEPA. The right to a hearing arises from the AEA or the Commissions regulations; thus, the Commissions regulations regarding the admissibility of contentions are applicable. Staff Response at 9-11. Nowhere does the Staff characterize Massachusetts position as an improper challenge to the regulations.
Massachusetts also maintains that it could not have anticipated the Staffs argument that the Boards review of the contention against the NRCs late-filed contention standards is sufficient to satisfy the NRCs legal obligations under NEPA. This claim misses the mark, since from the Staffs first response to Massachusetts contention, the Staff has argued that Massachusetts must meet the late-filed contention criteria of 10 C.F.R. § 2.309(c) and the contention criteria in order for its contention to be admissible. The Staff has answered Massachusetts argument by citing prior decisions of both the Commission and the Federal courts, and NEPA itself, which demonstrate that the hearing rights under NEPA stem from the
Atomic Energy Act. Staff Response at 9-10. The Reply Motion provides no information that there is anything further to say on the subject, since Massachusetts had a full opportunity to argue its position when it filed its appeal.
Finally, Massachusetts states that it could not have anticipated that the Staff would argue that the Board was correct that the Commonwealth did not present evidence on the costs and benefits of a revised SAMA analysis. Again, this claim is without merit since the Staff made that very argument on June 27, 2011, in its response to the original motion to admit the late filed contention. Staff Contention Answer at 7-10.
Thus, Massachusetts bases for filing the reply are not supported by the record and, moreover, Massachusetts cites no regulatory or other authority in support of the request to reply. There is nothing in the motion that demonstrates that a reply is necessary or required for fairness, or that it will add anything of substance to Massachusetts arguments.
Massachusetts should have anticipated the arguments to which it now seeks leave to reply. Characterizing the arguments of other parties as unanticipated or erroneous does not by itself provide justification for additional briefs. Massachusetts had an unfettered opportunity to raise every relevant argument in support of its appeal in the first instance. There is no injustice in denying Massachusetts request to make arguments simply because Massachusetts has apparently concluded that that it should strengthen its original pleading. Massachusetts should have anticipated that the Staff would respond to weaknesses in its original reply, would support the Boards decision, and would respond consistent with its prior positions .
Massachusetts provides no authority to support its assertion that any of the Staffs arguments would give rise to a right to reply.
Massachusetts kept its Reply Motion relatively brief, providing no support for its claims that it should be permitted to file a reply to the Staffs Answer. Their argument is built upon the
Proposed Reply, which Massachusetts appended to its as-yet-ungranted Reply Motion. In the Staffs view, Massachusetts cursory Reply Motion invites the Commission to read the Proposed Reply in order to decide whether to allow it, effectively defeating the regulatory presumption against allowing such replies and the requirement that parties file them with permission.
Absent such permission, the Proposed Reply should not be considered or relied upon.
Therefore, Massachusetts does not demonstrate that it should be permitted to reply.
CONCLUSION As demonstrated above, Massachusetts request to file a reply should be denied.
Respectfully submitted,
/Signed Electronically By/
Susan L. Uttal Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O15-D21 Washington, DC 20555 Telephone: (301) 415-1582 E-mail: Susan.uttal@nrc.gov Dated at Rockville, Maryland this 3rd day of January, 2012
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
)
(Pilgrim Nuclear Power Station) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH APPEAL OF LBP-11-35 has been served upon the following by the Electronic Information Exchange, this 3rd day of January, 2012:
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
.