ML12054A726
| ML12054A726 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 02/23/2012 |
| From: | Gaukler P, Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 21947, 50-293-LR, ASBLP 06-848-02-LR | |
| Download: ML12054A726 (6) | |
Text
February 23, 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 MOTION TO STRIKE PILGRIM WATCHS REPLY Pursuant to 10 C.F.R. § 2.323(a), Entergy Nuclear Generation Company and Entergy Nu-clear Operations, Inc. (collectively Entergy) move to strike Pilgrim Watchs February 13, 2012 Reply.1 Pilgrim Watchs Reply impermissibly raises new claims for the first time on appeal, and also exceeds the page limit. Pilgrim Watchs disregard for the Commissions procedures should not be countenanced.
I. BACKGROUND On January 11, 2012, the Licensing Board issued LBP-12-01,2 in which a majority of the Board denied Pilgrim Watchs last remaining request for hearing on a new contention related to the Fukushima Daiichi accident in the Pilgrim license renewal proceeding. On January 26, 2012, Pilgrim Watch petitioned for review of the Board majoritys decision, [p]ursuant to 10 C.F.R. § 2.341.3 On February 6, 2012, Entergy and the NRC Staff filed their respective oppositions to Pilgrim Watchs Petition, complying with the 25-page-limitation set forth in Section 1
Pilgrim Watchs Reply to Entergys and NRC Staffs Answers to Pilgrim Watchs Petition for Review of LBP 01 (Feb. 13, 2012) (Reply).
2 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-12-01, 74 N.R.C. __, slip op. (Jan. 11, 2012) (LBP-12-01). Administrative Judge Ann Marshall Young dissented in a separate statement (Dissent).
3 Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Request for Hearing on a New Contention Relating to Fukushima Accident) LBP-12-01 January 11, 2012 (Jan. 26, 2012) (Petition) at 1.
2.341(b)(3).4 On February 13, 2012, Pilgrim Watch filed its 10-page-reply, stating that the Re-ply was [i]n accordance with § 2.323(c). Reply at 1.
II. PILGRIM WATCH IMPERMISSIBLY SEEKS TO RAISE NEW ISSUES FOR THE FIRST TIME ON APPEAL The Commission has long held that an issue raised for the first time on appeal will not be entertained.5 Here, Pilgrim Watchs Reply asserts for the first time (and with no support) that, even assuming Entergys data concerning the atmospheric radiological releases from Fukushima is accurate, it is months old and that [e]ven today nobody . . .knows exactly how much radio-active contamination was, and continues to be released. Reply at 8 (emphasis omitted). Before the Board, Entergys experts attested that (among other things) the Pilgrim severe accident miti-gation alternatives (SAMA) analysis accounted for atmospheric radiological release far greater than the atmospheric and aqueous radiological releases that occurred at Fukushima for the three damaged reactors combined.6 Neither Pilgrim Watch nor its expert challenged this attestation.
Indeed, all Pilgrim Watch stated in response was that [o]ne would have to still believe in Santa Claus to agree with Entergys experts.7 Accordingly, Pilgrim Watchs attempt to challenge the data addressed by Entergy should not entertained.
4 Entergys Answer Opposing Pilgrim Watchs Petition for Review of LBP-12-01 (Feb. 6, 2012); NRC Staffs An-swer to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Request for Hearing on a New Contention Relating to Fukushima Accident) (Feb. 6, 2012).
5 See, e.g., Hydro Resources, Inc. (2929 Coors Road Suite 101, Albuquerque, NM 87120), CLI-00-08, 51 N.R.C.
227, 243 (2000) (intervenor must raise an issue before the licensing board or it will be precluded from supplement-ing the record before the Commission); Hydro Resources, Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-29, 64 N.R.C. 417, 421 (2006).
6 See, e.g., Declaration of Mr. Joseph R. Lynch and Dr. Kevin R. OKula In Support of Entergys Answer Opposing Pilgrim Watch Request for Hearing On a New Contention Regarding Inadequacy of Environmental Report, Post-Fukushima (Dec. 13, 2011) at ¶¶ 40-64.
7 Pilgrim Watch Reply to Entergys and the NRC Staffs Answer to Pilgrim Watch Request for Hearing on A New Contention Regarding Inadequacy of Environmental Report, Post Fukushima - Aqueous Discharges (Dec. 20, 2011) at 35.
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III. THE REPLY EXCEEDS THE COMMISSIONS PAGE LIMITATION The Commission should also strike Pilgrim Watchs Reply because it runs afoul of the Commissions requirements governing page limitations for petitions for review of licensing board decisions. The Commissions page limit requirements are intended to hold all parties to the same number of pages of argument.8 Pilgrim Watch, however, has filed a reply that exceeds the prescribed page limit for a reply under Section 2.341(b).
Under Section 2.341, replies are limited to five (5) pages. 10 C.F.R. § 2.341(b)(3). Here, Pilgrim Watchs Reply is ten (10) pages long, five (5) pages over the limit. Pilgrim Watch made no attempt to seek leave to exceed the page limit, or to provide any reason for doing so.
Instead, Pilgrim Watch states that its Reply is filed in accordance with 10 C.F.R. § 2.323(c). That provision governs answers to motions, not replies relating to petitions for review.
Obviously, 10 C.F.R. § 2.323(c) does not override the 5-page limit on replies in 10 C.F.R. 2.341(b)(3). In fact, Section 2.323(c) does not even permit replies.
IV. CONCLUSION For the foregoing reasons, the Reply should be struck from the record.
CERTIFICATION As required by 10 C.F.R. § 2.323(b), Counsel for Entergy certifies that he consulted with the NRC Staff and Pilgrim Watch and made a sincere effort to resolve the issues raised in this motion. The efforts to resolve the issues raised in this Motion have been unsuccessful.
8 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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Respectfully Submitted,
/signed electronically by David R. Lewis/
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 Counsel for Entergy Dated: February 23, 2012 4
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 Motion to Strike Pilgrim Watchs Reply, dated February 23, 2012, were provided to the Electronic Information Exchange for service on the in-dividuals below, this 23rd day of February, 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 403327123v6
Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Maxwell C. Smith, Esq. Commonwealth of Massachusetts Brian Harris, Esq. Office of the Attorney General Beth Mizuno, Esq. One Ashburton Place Lauren Woodall, Esq. Boston, MA 02108 Office of the General Counsel Martha.Coakley@state.ma.us Mail Stop O-15 D21 Matthew.Brock@state.ma.us U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan.Uttal@nrc.gov; Maxwell.Smith@nrc.gov; brian.harris@nrc.gov; beth.mizuno@nrc.gov; Lauren.Woodall@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 Hillary Cain, 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 Hillary.Cain@nrc.gov
/signed electronically by David R. Lewis/
David R. Lewis 2