ML12003A297

Entergy'S Answer Opposing Commonwealth of Massachusetts' Motion to File a Reply to Entergy'S and NRC Staff'S Answers

ML12003A297
Person / Time
Site:	Pilgrim
Issue date:	01/03/2012
From:	Gaukler P, Doris Lewis Entergy Corp, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
RAS 21690, 50-293-LR, ASLBP 06-848-02-LR
Download: ML12003A297 (11)

Text

January 3, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission 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) )

ENTERGYS ANSWER OPPOSING COMMONWEALTH OF MASSACHUSETTS MOTION TO FILE A REPLY TO ENTERGYS AND NRC STAFFS ANSWERS Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Generation Company and Entergy Nu-clear Operations, Inc. (collectively Entergy) respond in opposition to the Motion1 and Prof-fered Reply2 filed on December 23, 2011 by the Commonwealth of Massachusetts (the Com-monwealth). On December 8, 2011, the Commonwealth filed its Appeal3 of the Atomic Safety and Licensing Boards (Boards) decision in LBP-11-354 under the interlocutory review provi-sions of 10 C.F.R. § 2.311, which provide for no reply. Having chosen to appeal under Section 2.311,5 the Commonwealth now seeks leave to file a reply under 10 C.F.R. § 2.323(c), claiming 1

Commonwealth of Massachusetts Motion to Reply to NRC Staff and Entergy Oppositions to Commonwealth Ap-peal of LBP-11-35 (Motion).

2 Commonwealth of Massachusetts Brief in Reply to NRC Staff and Entergy Oppositions to Commonwealths Ap-peal of LBP-11-35 (Proffered Reply).

3 The Commonwealths filings on appeal consist of: (1) the Commonwealth of Massachusetts Notice of Appeal of LBP-11-35 (Dec. 8, 2011); and (2) the Commonwealth of Massachusetts Brief on Appeal of LBP-11-35, Denying Admission of the Commonwealths Contention, Hearing Request, Associated Waiver Petition, and Alternative Re-quest for Rulemaking, on New and Significant Information Arising from the Accident at Fukushima and the Signifi-cance of that Information for the Pilgrim Relicensing Proceeding (Dec. 8, 2011) (Commonwealth Brief), which contains the Commonwealths substantive arguments on appeal. The documents shall be referred to herein collec-tively as the Appeal.

4 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 N.R.C. __, slip op. (Nov. 28, 2011) (LBP-11-35).

5 As explained in Entergys Answer Opposing the Commonwealths Appeal of LBP-11-35 (Dec. 19, 2011) (En-tergy Answer), the review provisions of 10 C.F.R. § 2.341(b) apply under this proceedings current posture. En-tergy Answer at 6 & n.27. While Section 2.341 permits replies, the Commonwealth ignores and violates the explicit page limitations imposed under Section 2.341.

that compelling circumstances exist in that it could not have reasonably anticipated certain ar-guments made by Entergy and the NRC Staff in their respective oppositions6 to the Common-wealths Appeal. Motion at 2. The Commission should deny the Motion and strike the Proffered Reply from the record for multiple reasons. First, the Proffered Reply runs afoul of the Commis-sions requirements governing page limitations for petitions for review of licensing board deci-sions, resulting in unfair advantage for the Commonwealth. Second, there are no circumstances (let alone compelling circumstances) warranting a reply from the Commonwealth under 10 C.F.R. § 2.323(c). Even a brief review of LBP-11-35 and Entergys and the NRC Staffs filings before the Board opposing the Commonwealths initial hearing request reveals that the Com-monwealth should have anticipated the arguments that Entergy and the NRC Staff would make in opposing the Commonwealths Appeal of LBP-11-35.

I. THE COMMONWEALTHS REPLY CONTRAVENES THE COMMISSIONS PAGE LIMITATION REQUIREMENTS FOR PETITIONS FOR REVIEW Acceptance of the Commonwealths Motion and Proffered Reply would circumvent the Commissions explicit page limit requirements for petitions for review of licensing board deci-sions. Among other things, the Commissions page limit requirements are intended to hold all parties to the same number of pages of argument.7 Contrary to this intent, the Commonwealth seeks unfair advantage by filing a reply that either is not permitted at all under Section 2.311, or exceeds the prescribed page limitation for a reply permitted under Section 2.341(b).

The Commonwealth petitioned for review of LBP-11-35 under the interlocutory review provisions in 10 C.F.R. § 2.311. Commonwealth Brief at 1. Under Section 2.311, which refer-ences the format requirements of Section 2.341(c)(2), briefs are limited to 30 pages, and no reply 6

Entergy Answer; NRC Staffs Answer to the Commonwealth of Massachusetts Brief in Support of Appeal from LBP-11-35 (Dec. 19, 2011) (NRC Staff Answer).

7 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 N.R.C. 370, 393 (2001) (citing Hydro Resources Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 N.R.C. 31, 46 (2001)).

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is permitted. 10 C.F.R. §§ 2.311(b), 2.341(c)(2). Thus, under Section 2.311, the Commonwealth is not permitted to any reply8 and, as discussed infra in Section II, has provided no legitimate jus-tification warranting a reply.

Were the Commonwealths Appeal reviewed under Section 2.341(b), any reply would be limited to five (5) pages. 10 C.F.R. § 2.341(b)(3). Here, the Commonwealths Reply is eleven (11) pages long, six (6) pages over the limit. Further, the Commonwealths initial Brief in sup-port of its appeal was thirty (30) pages long, which exceeds the twenty-five (25) page limitation for Section 2.341 petitions for review by five (5) pages. Id.9 Thus, acceptance of the Proffered Reply would result in over 40 pages of argument by the Commonwealth when only 30 pages of total briefing is allowed under 10 C.F.R. § 2.341(b).

Therefore, whether reviewed under Section 2.311 or Section 2.341, the Commonwealths Proffered Reply violates the Commissions page limitations for petitions for review. Such disre-gard for the Commissions procedural requirements - and the corresponding disadvantage to En-tergy and the NRC Staff - should not be countenanced.

II. THE COMMONWEALTH PROVIDES NO LEGITIMATE BASIS WARRANT-ING A REPLY Furthermore, the Commonwealth provides no basis for filing a reply under Section 2.323(c). The Commonwealths claim of compelling circumstances - that it could not have anticipated certain arguments made by Entergy and the NRC Staff in their respective oppositions to the Commonwealths Appeal, Motion at 1-2 (citing 10 C.F.R. at § 2.323(c)) - is baseless.

Even assuming an inability to anticipate arguments could provide an appropriate justification for 8

A motion for leave to file a reply should be denied where the Commissions rules do not provide for a reply. U.S.

Dept of Energy (High-Level Waste Repository), CLI-08-12, 67 N.R.C. 386, 393 (2008).

9 Entergys and the NRC Staffs Answers in opposition to the Commonwealths Appeal conformed to the twenty-five (25) page limitation set forth in Section 2.341(b)(3).

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filing a reply (or one that exceeds the Commissions page limitations),10 such circumstances do not exist here. As discussed below, each of the three Entergy and NRC Staff arguments made in their respective Answers opposing the Appeal identified in the Commonwealths Motion could have been anticipated. Consequently, there are no circumstances, let alone compelling circum-stances, justifying the Commonwealths Proffered Reply.

First, there is no basis for the Commonwealths assertion that it could not have antici-pated that Entergy and the NRC Staff would argue that review of the Commonwealths Conten-tion against the reopening standards satisfies the Commissions NEPA obligation to take a hard look at proffered new and significant information. Motion at 1; Proffered Reply at 5-7. Entergy made this precise argument in initially opposing the Commonwealths Contention. Entergy ar-gued that (1) the Commission equates the standard for raising a significant environmental issue under Section 2.326 with the standard that governs whether supplementation of an environmental impact statement (EIS) is required; and (2) a determination that the Commonwealth failed to raise a significant environmental issue fulfills the Commissions NEPA obligation to take a hard look at its purported new and significant information. Entergy Contention Answer11 at 28, 67.

Entergy also cited multiple judicial cases demonstrating that courts have allowed agencies to employ many different approaches to determining whether allegedly new and significant impacts are sufficiently significant to warrant supplemental analysis and formal supplementation of exist-ing NEPA documents. Id. at 66 & nn.112-16. These are the same cases cited in Entergys An-swer opposing the Commonwealths Appeal. Entergy Answer at 12 & nn.46-50.

10 Section 2.323(c) provides that the proponent of a motion is not entitled to file a reply except upon demonstration of compelling circumstances, such as where the moving party demonstrates that it could not reasonably have an-ticipated the arguments to which it seeks leave to reply. 10 C.F.R. § 2.323(c). The Commonwealth cites no case law suggesting that this provision - which on its face applies to motions - should apply to a petition for review of a licensing board decision.

11 Entergys Answer Opposing Commonwealth Contention and Petition for Waiver Regarding New and Significant Information Based on Fukushima (June 27, 2011) (Entergy Contention Answer).

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Citing Entergys Contention Answer at 28, the Board majority agreed with Entergy that the Commission has indeed expressed the standard[s] for when an environmental issue is sig-nificant for the purposes of reopening a closed record, and that the Commission has equat[ed]

them to its standards for when an EIS is required to be supplemented - there must be new and significant information that will paint a seriously different picture of the environmental land-scape. LBP-11-35 at 56 & n.217. The Board majority then reviewed the Commonwealths claims of significant information and determined that they did not paint a seriously different pic-ture of the environmental landscape. Id. at 57.

Thus, the Commonwealth can hardly contend that it could not have anticipated the argu-ments made by Entergy and the NRC Staff in their oppositions to the Appeal. These arguments were first made in response to the Commonwealths proffered Contention, and relied on in the Board majoritys ruling. Thus, the Commonwealth demonstrates no compelling circumstances warranting a reply (or one that exceeds the Commissions page limitations).12 Second, the Commonwealth asserts that it could not have anticipated that Energy and the NRC Staff would argue that the Board majority correctly ruled that the Commonwealth failed to present evidence on the costs and benefits of a revised SAMA analysis, when such a finding is, allegedly, clearly refuted by the record. Motion at 1-2; Proffered Reply at 8-10. By its very 12 The unfair advantage that the Commonwealth would have should its Proffered Reply be accepted is plainly evi-dent here. The Commonwealth seeks to argue that multiple federal court cases support its position, Proffered Reply at 6, without Entergy or the NRC Staff having a chance to respond. The Commonwealth could have made the same arguments and cited to the same cases not only in its Appeal, but in reply to Entergys Contention Answer, which it did not. In any event, it appears that the cases cited by the Commonwealth do not support its position. For example, if, as the Commonwealth claims, courts consider whether an agency obtains opinions from its own experts [or] ob-tains opinions from experts outside the agency to determine whether an agency has taken a hard look at new in-formation, Proffered Reply at 6 (quoting Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1238-39),

then that test is met here. Both Entergy and the NRC Staff submitted Declarations from expert witnesses in support of their oppositions to the Commonwealths Contention. See Declaration of Joseph R. Lynch, Lori Ann Potts, and Dr. Kevin R. OKula in Support of Entergys Answer Opposing Commonwealth of Massachusetts Contention Re-garding New and Significant Information Revealed by the Fukushima Radiological Accident (June 26, 2011); Affi-davit of Dr. S. Tina Ghosh in Support of the NRC Staffs Response to Massachusetts Motions to Admit New Con-tention and Reopen to Admit New and Significant Information (June 27, 2011).

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nature, this argument cannot demonstrate any legitimate basis (let alone compelling circum-stances) given that both Entergy and the NRC Staff opposed the Commonwealths Contention from the outset. As such, the Commonwealth should have expected that Entergy and the NRC Staff would oppose its Appeal and support the Board majoritys ruling rejecting the Contention.

Moreover, both Entergy and the NRC Staff made similar arguments before the Board in their initial answers opposing the Commonwealths Contention. See e.g., NRC Staff Contention Answer13 at 22 (there is no discussion of how the increased [core damage frequency (CDF)]

factors, based on all the plant experience throughout the world, would generically apply to an in-dividual plant such as Pilgrim . . . . As a result, Dr. Thompson has not shown that an increased CDF would materially alter the Pilgrim SAMA analysis.); Entergy Contention Answer at 43-44 (Pilgrims SAMA analysis considered the installation of a filtered direct torus vent and deter-mined it to be not cost beneficial, and Dr. Thompson nowhere challenged the Pilgrim SAMA analysiss consideration of a filtered direct torus vent).

On appeal, the Commonwealths claims that Dr. Thompson . . . stated specifically that the benefits of filtered containment venting would rise by a factor of ten . . . (i.e. benefit would rise from $872,000 to $8,720,000). Commonwealth Brief at 29 (emphasis added). Consistent with their oppositions to the proffered Contention, both Entergy and the NRC Staff disputed this claim because Dr. Thompson, in fact, nowhere made any such statement. See Entergy Answer at 23 n.72; NRC Staff Answer at 19 n.61. Thus, there simply is no merit to the Commonwealths assertion that it could not have anticipated Entergys and the NRC Staffs arguments on appeal.

The Commonwealth also seeks to expand its arguments opposing the Board majoritys determination that the Commonwealth could have made its direct experience challenge to the 13 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) (NRC Staff Contention Answer).

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CDF assumed in Pilgrims SAMA analysis at the outset of this proceeding. See Proffered Reply at 10-11. Again, there is no legitimate basis for the Commonwealth to argue that it could not have anticipated Entergys and the NRC Staffs arguments on appeal supporting the Board ma-jority. Entergys response to the Commonwealths Contention expressly argued that the Com-monwealth could have made a direct experience challenge to Pilgrims SAMA analysis at the outset of this proceeding, and therefore the Contention was not timely. Entergy Contention An-swer at 22-27. The Board majority agreed with Entergys argument, LBP-11-35 at 52-53, and Entergy argued that the Commission should uphold this determination on appeal, Entergy An-swer at 18-19, as did the NRC Staff. NRC Staff Answer at 13-14. Thus, there is nothing here that the Commonwealth could not have anticipated, for the argument was expressly raised below.

Third, there is no merit to the Commonwealths claim that it could not have anticipated arguments that characterize the Commonwealths appeal, in part, as an impermissible challenge to NRC regulations. Motion at 1. The Commonwealths Brief on appeal erroneously asserted on multiple occasions that the Board majority - by applying the reopening standards - impermis-sibly imposed a heightened standard for contention admission, and that this heightened standard was contrary to the National Environmental Policy Act (NEPA). Commonwealth Brief at 23-

28. The Commonwealth repeatedly argued that the Commissions Section 2.326 reopening stan-dards should be supplanted with the Commissions more lenient standards for an admissible con-tention in Section 2.309(f)(1), and that failure to do so would violate NEPA. For example, the Commonwealth asserted that it should only be required to provide the basic level of documenta-tion and support that is appropriate at the contention-pleading stage. Commonwealth Brief at 7

24 (emphasis added).14 See also id. at 26 (The ASLB standard of review also goes far beyond what the NRC requires at the contention pleading stage) (emphasis added); id. at 27.

Both Entergy and the NRC Staff appropriately responded to these erroneous arguments in their Answers to the Appeal.15 Moreover, the Entergy and the NRC Staff arguments made be-fore the Commission mirror their arguments made before the Board. In opposition, both before the Board and on appeal before the Commission, Entergy and the NRC Staff argued that, at this very late stage of the proceeding, the Commissions stringent reopening standards clearly apply, that the reopening standards are consistent with the Commissions obligations under NEPA; and that the Commonwealth has failed to meet the Commissions reopening standards.16 In summary, neither Entergy nor the NRC Staff misinterpreted the Commonwealths Ap-peal. Rather, Entergys and the NRC Staffs oppositions to the Appeal directly responded to the arguments made by the Commonwealth that the heightened standard of review under the reopen-ing standards violated NEPA with the same arguments that they made to the Board below. There is therefore no legitimate basis for the Commonwealth to claim that it could not have anticipated Entergys and the NRC Staffs responses to its erroneous arguments.

14 The Commonwealth then immediately quoted from the Statement of Considerations supporting the 1989 rulemak-ing for the Commissions current contention admissibility standards contained in Section 2.309(f)(1): at the con-tention filing stage[,] the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion.). Id.

at 24-25 (emphasis added) (quoting 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989)). Unlike the contention admissibil-ity requirements in Section 2.309(f)(1), the reopening standards explicitly require that an expert witness affidavit ac-company the motion to reopen, 10 C.F.R. § 2.326(b), and that the requirements of Section 2.326(a) be satisfied, in-cluding that the proponent for reopening a closed record demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 10 C.F.R. § 2.326(a)(3) (em-phasis added).

15 See Entergy Answer at 7-15; NRC Staff Answer at 7-10, 14-17.

16 Entergy Contention Answer at 18-44, 64-67; NRC Staff Contention Answer at 5-16.

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III. CONCLUSION For the foregoing reasons, the Motion should be denied and the Proffered Reply should be struck from the record.

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 Tel. (202) 663-8000 E-mail: david.lewis@pillsburylaw.com Dated: January 3, 2012 Counsel for Entergy 9

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission 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 Entergys Answer Opposing Commonwealth of Massachu-setts Motion to file a Reply to Entergys and NRC Staffs Answers, dated January 3, 2012, were provided to the Electronic Information Exchange for service on the individuals below, this 3rd day of January, 2012.

Secretary Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail@nrc.gov hearingdocket@nrc.gov Administrative Judge Atomic Safety and Licensing Board Ann Marshall Young, Esq., Chair 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 Ann.Young@nrc.gov Administrative Judge Administrative Judge Dr. Richard F. Cole 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 Richard.Cole@nrc.gov Paul.Abramson@nrc.gov 403247893v5

Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Brian Harris, Esq. Commonwealth of Massachusetts Beth Mizuno, Esq. Office of the Attorney General Office of the General Counsel One Ashburton Place Mail Stop O-15 D21 Boston, MA 02108 U.S. Nuclear Regulatory Commission Martha.Coakley@state.ma.us Washington, DC 20555-0001 Matthew.Brock@state.ma.us Susan.Uttal@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