ML15230A071

Entergy Answer Opposing Sierra Club Motion for Permission to File Amicus Curiae Brief

ML15230A071
Person / Time
Site:	Palisades
Issue date:	08/17/2015
From:	Bessette P, O'Neill M Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-255-LA-2, ASLBP 15-939-04-LA-BD01, RAS 28176
Download: ML15230A071 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of: ) Docket No. 50-255-LA-2

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ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 15-939-04-LA-BD01

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(Palisades Nuclear Plant) ) August 17, 2015

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ENTERGYS ANSWER OPPOSING THE SIERRA CLUBS MOTION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Operations, Inc. (Entergy) files this Answer opposing the Motion for Permission to File Amicus Curiae Brief (Motion) filed by the Sierra Club on August 7, 2015 in the above-captioned matter.1 The Sierra Club filed the Motionalong with an Amicus Brief2in response to Entergys July 13, 2013 Appeal, submitted pursuant to 10 C.F.R. § 2.311, of the Atomic Safety and Licensing Boards (Board) decision in LBP-15-20.3 In that decision, a split Board admitted Petitioners only proposed contention, which purports to challenge Entergys November 12, 2014 license amendment request (LAR) for the Palisades Nuclear Plant (Palisades).4 The LAR seeks Nuclear Regulatory Commission (NRC) 1 See Motion by Sierra Club for Permission to File Amicus Brief (Aug. 7, 2015) (Motion), available at ADAMS Accession No. ML15219A427.

2 See Amicus Curiae Brief by Sierra Club in Support of Atomic Safety and Licensing Bard Decision (Aug. 7, 2015)

(Amicus Brief), available at ADAMS Accession No. ML15219A428.

3 See Entergys Notice of Appeal of LBP-15-20 (July 13, 2015) and Brief in Support of Entergys Appeal of LBP-15-20 (July 13, 2015) (Appeal), available at ADAMS Accession No. ML15194A503; Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), LBP-15-20, 81 NRC __, slip op. (June 18, 2015) (LBP-15-20),

available at ADAMS Accession Mo. ML15169A273.

4 See Petition to Intervene and for a Public Adjudication Hearing of Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis (Mar. 9, 2015), available at ADAMS Accession No. ML15068A458 (Petition). The Petitioners are Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future - Shoreline Chapter, and the Nuclear Energy Information Service. The Petitioners

approval of a Westinghouse equivalent margins analysis (EMA) for the Palisades reactor pressure vessel (RPV), submitted to meet the requirements of 10 C.F.R. Part 50, Appendix G.5 As discussed below, the Sierra Clubs Motion and Amicus Brief should be rejected because the Amicus Brief is not authorized by NRC regulations. In addition, the Commission should decline to grant the Sierra Clubs Motion as a matter of discretion. The Motion and Amicus Brief are legally and factually flawed and thus fail to add any value to the record or to inform the Commissions decision on Entergys pending Appeal. If the Commission nevertheless grants the Motion and accepts the Amicus Brief as a matter of discretion, then Entergy respectfully requests the opportunity to respond to the Amicus Brief more fully.

II. ARGUMENT A. NRC Regulations Do Not Authorize the Filing of Amicus Curiae Briefs In Connection with Appeals Filed Pursuant to 10 C.F.R. § 2.311 The Sierra Clubs Motion and Amicus Brief should be rejected because NRC regulations do not authorize the filing of amicus briefs in the present circumstances.6 Specifically, the relevant NRC regulation, 10 C.F.R. § 2.315(d), authorizes the filing of an amicus brief under very limited circumstances (or at the Commissions discretion). Section 2.315(d) states that:

filed a brief opposing Entergys Appeal on August 7, 2015. See Petitioners Brief in Opposition to Entergy Appeal of LBP-15-20 (Aug. 7, 2015), available at ADAMS Accession No. ML15220A000.

5 See PNP 2014-099, Letter from A. Vitale, Site Vice President, Entergy Nuclear Operations, Inc. - Palisades Nuclear Plant, to NRC Document Control Desk, Re: License Amendment Request for Approval of Palisades Nuclear Plant 10 CFR 50 Appendix G Equivalent Margins Analysis (Nov. 12, 2014), available at ADAMS Accession No. ML14316A370 (LAR). The EMA demonstrates that certain RPV materials predicted to possess Charpy upper-shelf energy (USE) values less than 50 foot-pounds will provide margins of safety against fracture, equivalent to those required by Appendix G of Section XI of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code). See LAR, Attachment 5, Westinghouse WCAP-17651-NP, Revision 0, Palisades Nuclear Power Plant Reactor Vessel Equivalent Margins Analysis (Feb. 2013),

available at ADAMS Accession No. ML14316A208.

6 In its Motion, the Sierra Club states that Entergy Nuclear Operations and the NRC staff have no objection to the filing of the amicus curiae brief but reserve the right to respond to it. Motion at 2. In actuality, counsel for Entergy conveyed that Entergy did not oppose the Sierra Clubs filing of a motion for leave, as a threshold procedural action, seeking Commission authorization to file an amicus curiae brief.

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(d) If a matter is taken up by the Commission under § 2.341 or sua sponte, a person who is not a party may, in the discretion of the Commission, be permitted to file a brief amicus curiae. Such a person shall submit the amicus brief together with a motion for leave to do so which identifies the interest of the person and states the reasons why a brief is desirable. Unless the Commission provides otherwise, the brief must be filed within the time allowed to the party whose position the brief will support. A motion of a person who is not a party to participate in oral argument before the Commission will be granted at the discretion of the Commission.7 Importantly, the Commission generally accepts amicus briefs only after it grants a petition for review pursuant to 10 C.F.R. § 2.341, and does not provide for amicus briefs supporting or opposing initial petitions for review.8 As noted above, Entergy appealed the Boards decision admitting Petitioners sole contention and granting their intervention petition pursuant to 10 C.F.R. § 2.311not 10 C.F.R. § 2.341. Thus, timing considerations aside, neither Section 2.315(d) nor Section 2.311 authorizes the filing of an amicus brief in connection with an appeal filed pursuant to the latter regulation. Indeed, as the Commission has explicitly stated, Section 2.315(d) provides for the filing of amicus curiae briefs when we have taken up a matter pursuant to § 2.341 or sua sponte, neither of which is the case here.9 Further, the Commission clearly has not taken up any request for review yet, much less one initiated pursuant to Section 2.341. The Commission, therefore, should deny the Sierra Clubs Motion and decline to accept its concurrently-filed Amicus Brief.

7 10 C.F.R. § 2.315(d) (emphasis added).

8 See, e.g., La. Energy Servs. (Claiborne Enrichment Ctr.), CLI-97-7, 45 NRC 437, 438-39 (1997) (citing Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-96-3, 43 NRC 16, 17 (1996)).

9 S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-13-9, 78 NRC 551, 556 n.17 (2013). See also U.S. Dept of Energy (High Level Waste Repository: Pre-Application Matters), CLI-08-22, 68 NRC 355, 359 (2008) (denying Nye Countys motion to file an amicus brief in a 10 C.F.R. Part 2 Subpart J proceeding, noting that [o]ur general rule on amicus briefs, 10 C.F.R. § 2.315(d), as a formal matter applies only to petitions for review filed under 10 C.F.R. § 2.341 or to matters taken up by the Commission sua sponte, not to appeals filed, as here, under 10 C.F.R. § 2.1015.).

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B. The Commission Should Decline to Grant the Sierra Clubs Motion As A Discretionary Matter Because the Amicus Brief Does Not Inform the Commissions Decision-Making Process or Contribute Further to the Record on Appeal As discussed above, 10 C.F.R. § 2.315(d) does not authorize the filing of an amicus brief in this situation. However, it is within [the Commissions] discretion to grant leave for participation as amicus curiae.10 In determining whether to exercise its general discretion to accept amicus briefs, the Commissions decision ultimately depend[s] upon the value afforded to the decision-making process by consideration of the amicus briefs.11 The Commission should decline to grant the Sierra Clubs Motion as a discretionary matter, because it does not appear that the Amicus Brief will contribute any value to the Commissions decision-making process as it pertains to Entergys Appeal. First, the Motion and Amicus Brief rely principally on patently-biased, conclusory arguments that lack factual and legal support and, in some cases, any relevance to the specific issues raised in Entergys Appeal. For example, after expressly noting its opposition to nuclear power in general,12 the Sierra Club states that the attempt by Entergy to shortcut assurances that the reactor vessel is safe is unacceptable.13 It later states that Entergys attempt to avoid following any NRC regulation 10 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC __, slip op. at 5 n.19 (Jan. 13, 2015)

(citing Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-13-4, 77 NRC 101, 104 n.9 (2013)) (Our rules of practice permit persons who are not parties to file a brief amicus curiae if a matter is taken up by the Commission under [10 C.F.R.] § 2.341 or sua sponte. 10 C.F.R. § 2.315(d). Although this rule does not squarely apply here, it is within our discretion to grant leave for participation as amicus curiae.).

11 See Responses to Comments Not Addressed in the Statement of Considerations for Changes to the Adjudicatory Process: Final Rule, at 19 (Dec. 17, 2003) at 19, available at ADAMS Accession No. ML033510327.

12 See Amicus Brief at 1 (The Sierra Club opposes nuclear power because its fuel cycle from uranium mining to spent radioactive fuel poses grave dangers to the environment. In addition, reliance on nuclear power unjustifiably delays the beneficial transition to clean and renewable energy sources.). See also Motion at 1 (same).

13 Amicus Brief at 2. See also Motion at 2 ([T]he attempt by Entergy to shortcut assurances that the reactor pressure vessel is safe poses grave risks to the Sierra Club and its members in the Michigan Chapter.).

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provides no assurance that the pressure vessel is safe and reliable.14 Such groundless allegations of impropriety or misconduct on the part of Entergy have no place in this license amendment proceeding, and they certainly do not add value to the record or aid the Commissions deliberations on the Appeal.

Second, in attempting to defend the Board majoritys decision to admit Petitioners contention under 10 C.F.R. § 2.309(f)(1), the Sierra Club relies on legal precedent that pre-dates the Commissions current contention admissibility standards, and thus does not accurately characterize a petitioners legal obligations under Section 2.309(f)(1) at the contention pleading stage.15 As the Commission long has noted, [a] contentions proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions.16 In fact, this bedrock legal principle substantially underpins Entergys Appeal, given that Entergy contends that the Board majority impermissibly augmented the contention with information derived from its own independent research and analysis.17 Thus, the Sierra Clubs statement that [t]he Commission and the courts have also made clear that the burden of persuasion is on the licensee, not the petitioner,18 is 14 Amicus Brief at 9-10.

15 See Amicus Brief at 4-5 (citing York Comm. for a Safe Envt. v. NRC, 527 F.2d 812, 815 n.12 (D.C. Cir. 1975)

(where the information necessary to make the relevant assessment is readily accessible and comprehensible to the license applicant and the Commission staff but not to petitioners, placing the burden of going forward on petitioners appears inappropriate); Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978)

(referring to the need only for a showing sufficient to require reasonable minds to inquire further)). Insofar as the Sierra Club is suggesting that the Petitioners should be held to a lesser pleading standard because they allegedly lacked access to necessary information, that claim is unfounded. The Petitioners had full access to the Palisades EMA LAR and its supporting materials, as well as the relevant NRC regulations and guidance, in preparing their proposed contention. Moreover, the Sierra Clubs argument is inconsistent with the Commissions longstanding policy that a petitioner has an iron-clad obligation to examine the publicly available documentary material . . . with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),

CLI-10-27, 72 NRC 481, 496 (2010) (internal quotation marks and citations omitted).

16 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).

17 See Appeal at 3.

18 Amicus Brief at 4.

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incorrect as a matter of law.19 And, insofar as the Sierra Club claims that the authorities cited on page 11 of Entergys appeal brief do not support its argument, those authorities are controlling Commission decisions applying the NRCs contention admissibility standards in Section 2.309.20 Those authorities, which are not subject to challenge here, clearly support Entergys arguments.

In short, there is no question that, [a]t the threshold contention admission stage, the burden for providing support for a contention is on the petitioner.21 Third, the Sierra Club attempts to casually dismiss Entergys appeal as lacking merit by asserting that Entergy simply disagrees with the reasoning of the ASLB majority.22 Entergy certainly disagrees with the majoritys reasoning because, as fully explained in Entergys Appeal, that reasoning rests on multiple reversible errors.23 In that regard, Entergy appropriately has asked the Commission to review and rectify those errorsnot to embark on a journey into the weeds.24 Such baseless allegations by the Sierra Club do not add value to the record or assist the Commissions decision-making process and, therefore, do not support any discretionary decision by the Commission to grant the Motion and accept the Amicus Brief. Moreover, contrary to the Sierra Clubs claim, Entergy has not asked the Commission to determine the merits of the contention.25 Instead, it has asked the Commission to review and reverse the majoritys decision on the basis that it contains numerous clear and reversible errors of law and fact, as identified in Entergys Appeal.

19 See, e.g., Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 262 (1996) ([O]ur Contention Rule . . . places an initial burden on Petitioners to come forward with reasonably precise claims rooted in fact, documents, or expert opinion in order to proceed past the initial stage and toward a hearing.).

20 See Appeal at 11 nn.59-62 (citing Commission Orders CLI-99-10, CLI-99-11, CLI-01-24, CLI-09-12).

21 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 15, 75 NRC 704, 714 (2012).

22 Amicus Brief at 6.

23 See generally Appeal at 11-28.

24 Amicus Brief at 6.

25 Id.

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Finally, the Sierra Club does not accurately portray the facts of record. For example, it asserts that the decision in this case will have far-reaching consequences for nuclear safety, and that Entergy [should] not be allowed to set a bad precedent in this case.26 But as Entergy explained in its opposition to the contention and also in its Appeal, EMAs based on the guidance in Regulatory Guide 1.161 and Appendix K to Section XI of the ASME Code have been prepared by licensees, and approved by the NRC, for numerous reactors seeking to comply with the requirements of 10 C.F.R. Part 50, Appendix G.27 Thus, the Sierra Clubs claim of bad precedent is misplaced.

The Sierra Club further claims that the Board found that Entergy is attempting to rely on an NRC staff guidance document that is still in draft form and an industry standard that has not even been approved by the Commission.28 That is incorrect. Entergy prepared the EMA LAR to meet the requirements in Appendix G to 10 C.F.R. Part 50, which permits a licensee to demonstrate, through an ASME Code-compliant analysis, that lower values of Charpy USE will provide margins of safety against fracture equivalent to those required by ASME Code Section XI, Appendix K. Thus, contrary to the Sierra Clubs claim, Entergy relied on NRC regulations, NRC-approved guidance, and longstanding, NRC-approved industry standards in preparing the Palisades LAR.

Additionally, the Sierra Club mischaracterizes the Boards decision by stating that [t]he ASLB majority also noted that the staff guidance document says that it may be used if there is no material, i.e., coupons, available for testing, and that [i]n this case, however, there are more than 26 Amicus Brief at 7, 8.

27 See Appeal at 16 & n.90 (citing examples of previous NRC approvals of EMA license amendments).

28 Amicus Brief at 9.

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enough coupons available for testing.29 The Board majority reached no such conclusion. Rather, it founderroneously in Entergys viewthat the Staffs decision to approve a [RPV surveillance capsule] withdrawal schedule in accordance with Appendix H does not preclude modification of the schedule, and that capsules remain available for subsequent removal and testing.30 Therefore, contrary to the Sierra Clubs assertions, Entergys use of any potentially relevant NRC guidance (e.g., Regulatory Guide 1.161) is not contingent upon the availability or unavailability of additional capsules.

III. CONCLUSION For the reasons stated above, Entergy respectfully requests that the Commission deny the Sierra Clubs Motion and decline to accept the Sierra Clubs Amicus Brief, which is unauthorized and, in any event, does not enhance the record or aid the Commissions decisional process with respect to Entergys Appeal.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Jeanne Cho, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. Morgan, Lewis & Bockius, LLP 440 Hamilton Ave. 1111 Pennsylvania Avenue, N.W.

White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3323 Phone: (202) 739-5796 Fax: (914) 272-3242 Fax: (202) 739-3001 E-mail: jcho1@entergy.com E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.

this 17th day of August 2015 29 Amicus Brief at 9 30 Palisades, LBP-15-20, slip op. at 15, 17.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of: ) Docket No. 50-255-LA-2

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ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 5-939-04-LA-BD01

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(Palisades Nuclear Plant) ) August 17, 2015

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of Entergys Answer Opposing the Sierra Clubs Motion for Permission to File Amicus Curiae Brief were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned proceeding.

Signed (electronically) by Martin J. O'Neill Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com DB1/ 84337875.1