ML12107A148
| ML12107A148 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 04/16/2012 |
| From: | Anne Bingham, Lampert M, Sheehan M Pilgrim Watch, Jones River Watershed Association |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22261, 50-293-LR, ASLBP 12-917-05-LR-BD01 | |
| Download: ML12107A148 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application Filed April 16, 2012 PETITIONERS OPPOSITION TO ENTERGYS MOTION TO STRIKE PETITIONERS AFFIDAVIT AND PORTIONS OF PETITIONERS REPLY Petitioners Jones River Watershed Association, Inc. (JRWA) and Pilgrim Watch (PW) hereby submit this opposition to April 5, 2012 Entergys Motion to Strike Petitioners Affidavit and Portions of Petitioners Reply. (Entergys Motion). Entergy moves to strike in its entirety Petitioners Reply Affidavit of Alex Mansfield, dated March 25, 2012) (Mansfield Reply Affidavit) and portions of Petitioners March 26, 2012 Reply (Petitioners Reply) on the grounds that they contain new information not raised in the original petition, and that NRC rules do not allow a reply to a motion to reopen the record. Entergys Motion relies upon case law and a factual record that does not support the Motion as claimed. Therefore, Entergys Motion should be denied.
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Mansfield Reply Affidavit Entergys arguments in support of the motion to strike the Mansfield Reply Affidavit are spurious. First, having submitted its own expert declaration (the Scherer Affidavit) in opposition to the Petitioners contention, Entergy now complains that Petitioners should not be permitted to contest Scherers opinion with its own expert declaration, and claims that somehow Petitioners are making new arguments or new legal theories. Entergy Motion at 2 (emphasis supplied). However, having opened the door to challenge Petitioners contention with its own expert affidavit, Entergys complaint is inconsistent with the Commissions own rule allowing for a reply in these circumstances and standard rules of practice for rebuttal. 10 C.F.R. § 2.309 (h)(2). In essence, Entergy would like the Board to apply a double-standard:
that Entergy be allowed to reply with an affidavit to Petitioners affidavit, but that Petitioners are barred from having the same opportunity.
Indeed, since Entergys opposition to the Petitioners contention relied upon expert-supported arguments that Petitioners had not previously seen, and on new information brought forward by the Scherer Affidavit, necessarily the Petitioners in turn must rely upon their expertise to contest them. See, Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-07-13, 66 N.R.C. 131, 163, n. 40 (2007)(Marshall, J. dissent) citing Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-93-22, 38 N.R.C. 98, 102 (1993).
Second, it is also illogical for Entergy to argue that issues it raised in the Scherer Affidavit in opposition to the Petitioners initial contention and in the supporting Mansfield Affidavit, to which Entergy responded in rebuttal, somehow are new and outside the scope of 2
the matters raised by the initial contention itself. These matters arose from the debate on the Petitioners initial contention, are reasonably inferable from the contention, and thus fall permissibly within its scope. See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 2010, WL 1235387, 15 (2010). Moreover, Entergys claim that these are new issues also is refuted by the factual record. The Mansfield Reply Affidavit did not add new information except to respond to assertions contained in the new Scherer Affidavit.
Entergy claims that the Mansfield Reply Affidavit raises new claims, including multiple paragraphs of allegations concerning the thermal conditions at the PNPS discharge location, Mansfield Reply Affidavit at ¶¶ 6-11, 17 (emphasis in original), even though his initial Affidavit made only brief mention of thermal loading. See Mansfield Affidavit at ¶30. Mansfields Reply Affidavit was a clarification of his original statement, since Scherer's response reflected a misreading or misinterpretation of the statements in the first Mansfield Affidavit about the thermal pollution from PNPS. Mansfields First Affidavit discussed impacts to turtles from discharge; Scherer's response considered Mansfields affidavit as if it concerned the intake only (i.e. impingement and mortality in the intake structure); Mansfields Reply Affidavit clarified this point. Consistent with its right to reply, Petitioners are not constrained from providing additional support in rebuttal, where Entergy has chosen to contest certain issues at the contention admission stage of the proceeding.
Third, Entergy misrepresents the purpose of its Scherer Affidavit in claiming that it was not submitted to address the factors of 2.309, but only the reopening standards of 2.326. The Scherer Affidavit itself states that he will offer his expert opinion that potential impact of the continued operation of PNPS will have no discernible effects on ESA-listed species. Scherer Aff. ¶ 5. Entergys own March 19, 2012 Answer to the JRWA and PW motion to reopen and hearing request relies on the Scherer affidavit in arguing that the 10 C.F.R. 2.309 standards are 3
not met (see, e.g. Parts V and VI of Entergys Answer Energy has demonstrated that no materially different result would be likely, p. 42)
Fourth, Entergys Motion complains that Petitioners Reply is an impermissible reply relating to the reopening standards, stating that NRC rules do not allow a reply to a motion to reopen under 10 C.F.R. 2.326. Entergy Motion, p. 2. This argument gains Entergy nothing, as the Mansfield Reply Affidavit and Petitioners Reply address the contention factors of 10 C.F.R. 2.309 and the factors of 2.326. The mere fact that § 2.326 also requires that a petition to reopen address some of the same factors as does § 2.309 (such as showing there is a significant safety or environmental issue, 2.326(a)(2) and a materially different result, 2.326(a)(3)), by necessity meaning that a motion to reopen under § 2.236 and hearing petition under 2.309 will overlap, does not provide grounds for striking Petitioners reply and accompanying Mansfield Reply Affidavit. Compare 2.326(a)(2) and (3) to 2.309(f)(1) and (2).
Portions of Petitioners Reply Entergy moves to strike part of Petitioners Reply, claiming the Replys chart laying out in detail how Petitioners original affidavits track § 2.326 is new information. This argument is spurious on its face. Entergy contends that under NRC case law, a deficient contention cannot be saved by statements submitted in a reply. See e.g. Entergy Motion at page 2, citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 N.R.C. 223 (2004).
However, the Petitioners contention as initially filed clearly satisfies the NRCs pleading requirements. Therefore the cases relied upon by Entergy have no application to this case.
Entergy complains that the Reply should be stricken in part because it contains allegations and arguments to which it has not had a chance to respond. Entergy Motion, p. 4. As 4
an example, Entergy says "This includes the allegation that the 2006 BA and the 2012 Supplemental BA do not consider action area, cumulative effects, destruction or adverse modification, and effects of the action, Reply at 8-10, whereas Petitioners initial filings (incorrectly) claimed only that the Pilgrim SEIS failed to consider specified cumulative impacts and the action area. Mansfield Affidavit at ¶¶ 29-30." Entergy is grasping at straws: the 2006 biological assessment is an appendix to the SEIS, hence the Mansfield Affidavit by referring to the SEIS by its terms included a reference to the 2006 biological assessment, and Entergy could have easily responded to this point in is March 19, 2012 answer. Making this same claim with regard to the February 29, 2012 supplemental biological assessment that the NRC Staff submitted to the National Marine Fisheries Service (NMFS), Entergy is merely highlighting that the NRC Staff is continuing to build the record in this proceeding, necessitating reopening of the environmental impact statement, as required by the National Environmental Policy Act (NEPA) (see Petitioners March 8, 2012 filing).1 Conclusion Entergys motion to strike should be denied because the facts and law establish that the Petitioners Reply and the Mansfield Reply Affidavit fall squarely within the scope of what is allowed under NRC rules.
1 Notably, Entergy does not complain that the NRC Staff in its March 26, 2012 Answer to Correction and Supplement to Jones River Watershed Association and Pilgrim Watchs Petitions to Intervene and Motions to Supplement added an entirely new document to the record: The March 26, 2012 NMFS letter saying that the agency does not concur with the NRC Staff no effects finding in the 2006 and 2012 biological assessments.
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Respectfully submitted, (Electronically signed)
Margaret Sheehan 61 Grozier Road Cambridge MA 02138 Tel. 508-259-9154 Email: meg@ecolaw.biz April 16, 2012 (Electronically signed)
Anne Bingham 78A Cedar St.
Sharon, MA 02067 Tel. 781-414-1399 Email: annebinghamlaw@comcast.net April 16, 2012 (Electronically signed)
Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel. 781-934-0389 Email: mary.lampert@comcast.net March 6, 2012 6