ML19295E685

Entergy Motion to Intervene (DC Cir.)(Case No. 19-1198) 10-16-19

ML19295E685
Person / Time
Site:	Pilgrim
Issue date:	10/16/2019
From:	Israel A, Lejeune P, Doris Lewis, Thompson E, Weisburst S Balch & Bingham, LLP, Entergy Nuclear Operations, Holtec Decommissioning International, Holtec, Holtec Pilgrim, Pillsbury, Winthrop, Shaw, Pittman, LLP, Quinn, Emanuel, Urquhart, & Sullivan, LLP
To:	Andrew Averbach NRC/OGC, US Federal Judiciary, District Court for the District of Columbia
Averbach A, NRC/OGC
References
1811165, 19-1198
Download: ML19295E685 (17)

Text

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 1 of 17 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT COMMONWEALTH OF MASSACHUSETTS, Petitioner, No. 19-1198 v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, Respondent.

MOTION OF ENTERGY NUCLEAR OPERATIONS, INC., HOLTEC INTERNATIONAL, HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PIGLRIM, LLC (f/k/a ENTERGY NUCLEAR GENERATION COMPANY, LLC) FOR LEAVE TO INTERVENE Pursuant to Federal Rule of Appellate Procedure 15(d) and D.C. Circuit Rule 15(b), Entergy Nuclear Operations, Inc. (ENOI), Holtec International (Holtec),

Holtec Decommissioning International, LLC (HDI), and Holtec Pilgrim, LLC (formerly known as Entergy Nuclear Generation Company, LLC (ENGC)) (the Holtec entities, together with ENOI, Movants) respectfully move for leave to intervene as party-respondents in the above-captioned matter. Respondent U.S.

Nuclear Regulatory Commission (NRC), by its counsel Justin D. Heminger, Esq.,

has indicated that the NRC does not oppose Movants intervention. Petitioner Commonwealth of Massachusetts, by its counsel, Seth Schofield, Esq., has indicated that the Commonwealth takes no position on the motion.

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 2 of 17 In support of the motion, Movants state as follows:

Introduction

1. Pilgrim Nuclear Power Station (Pilgrim) is a single-unit boiling water nuclear reactor located in Plymouth, Massachusetts, and licensed by the NRC.

2. As a nuclear power plant located in the United States, Pilgrim is subject to extensive regulation by the NRC.

3. Pilgrim received a Construction Permit on August 26, 1968, and an Operating License on June 8, 1972. Pilgrim began operations on December 1, 1972.

4. On November 10, 2015, ENOI notified the NRC that it planned permanently to cease power-generation operations at Pilgrim no later than June 1, 2019.

5. On June 10, 2019, ENOI certified that it had permanently ceased operations at Pilgrim and that all nuclear fuel had been permanently removed from the reactor.

6. In order to effectuate expedited decommissioning of Pilgrim, on November 16, 2018, Movants filed a License Transfer Application (LTA) with the NRC. The LTA sought approval of: the direct transfer of ENOIs authority to conduct licensed activities under the facility license for Pilgrim and the general license for the Pilgrim Independent Spent Fuel Storage Installation to HDI, a wholly-owned subsidiary of Holtec International formed to decommission nuclear plants; 2

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 3 of 17 the indirect transfer of control of those licenses to Holtec International; and a conforming administrative amendment to the facility license to reflect the transfer of ENOIs licensed authority to HDI, the proposed name change of the entity that owns Pilgrim from ENGC to Holtec Pilgrim, LLC, and the deletion of certain license conditions no longer applicable as a result of the license transfers.

7. On August 22, 2019, the NRC staff issued an order approving the LTA, subject to the NRCs authority to rescind, to modify, or to condition the transfer. See Pet., Ex. A; In the Matter of Entergy Nuclear Generation Company, Entergy Nuclear Operations, Inc., Holtec Pilgrim, LLC, Holtec Decommissioning International, LLC, and Pilgrim Nuclear Power Station, 84 Fed. Reg. 45176-01 (Aug. 28, 2019); see also 10 C.F.R. § 2.1327.

8. Pursuant to the NRC staffs order, on August 26, 2019, authority to conduct activities under the Pilgrim licenses was transferred to HDI, and indirect control of the licenses was transferred to Holtec International.

9. On September 25, 2019, the Commonwealth of Massachusetts petitioned this Court for review of NRC staffs order, which, as noted above, had approved the transfer pending disposition of requests for certain review by the NRC Commissioners, and certain other ancillary approvals and findings.

10. This Court has permitted intervention by the owners and operators of a nuclear power plant in cases where petitioners seek to challenge NRC actions 3

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 4 of 17 concerning the plant. See, e.g., Safe Energy Coalition of Mich. v. U.S. Nuclear Regulatory Commn, 866 F.2d 1473 (D.C. Cir. 1989); see also In re: Friends of the Earth, et al., No. 16-1189, Order Granting Mot. to Intervene, ECF No. 1620139 (D.C. Cir. 2016). Movants respectfully request that they be allowed to intervene here.

Background

11. The NRC was created to regulate the activities addressed in the Atomic Energy Act (AEA) and to to ensure the safe use of radioactive materials for beneficial civilian purposes while protecting people and the environment. United States Nuclear Regulatory Commission, About NRC (Sept. 30, 2019),

https://www.nrc.gov/about-nrc.html. In this role, the NRC issues, amends, and oversees licenses for nuclear plant owners and operators. Owners and operators, along with prospective owners and operators, are important stakeholders in the safe promulgation of nuclear power.

12. Pilgrim operated for more than 46 years prior to its permanent shutdown on May 31, 2019. ENGC had acquired ownership of Pilgrim in 1999 from Boston Edison, and it owned the plant and ENOI operated the plant for twenty years before the shutdown. See In the Matter of Bos. Edison Co. & Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), 49 N.R.C. 372, 373 (Apr. 26, 1999).

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USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 5 of 17

13. Decommissioning a nuclear power plant is a process that commences at the end of the plants power generation life and concludes with the restoration of the site for future use. See generally 10 C.F.R. § 50.2. In a broad sense, the process of decommissioning the site includes permanently removing the plant from power generation service, defueling the reactor, transferring spent nuclear fuel to dry cask storage, decontaminating the site, and site restoration.

14. ENOI submitted to the NRC a Post-Shutdown Decommissioning Activities Report (PSDAR) based on ENOIs plan to utilize SAFSTOR, a decommissioning approach that involves maintaining the plant for many years in a state of dormancy, followed by active decommissioning. ENOI anticipated that active decommissioning would not begin prior to the 2070s. See Decommissioning, Pilgrim Nuclear Power Station (Sept. 30, 2019),

http://www.pilgrimpower.com/decommissioning.html.

15. HDI plans to decommission Pilgrim utilizing the DECON approach, which will allow decommissioning to begin in the near-term and to proceed on an expedited basis, completing the process for the vast majority of the Pilgrim site in 2027, years before ENOI would even begin active decommissioning. See Decommissioning, Pilgrim Nuclear Power Station (Sept. 30, 2019),

http://www.pilgrimpower.com/decommissioning.html.

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USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 6 of 17

16. Movants applied to the NRC on November 16, 2018 for approval of transfers of the requisite licenses from the Entergy entities to the Holtec entities (and ancillary approvals). The transaction contemplated a transfer of ownership of the entity that owns the physical plantENGCfrom an Entergy entity to a Holtec entity, after which ENGC would be renamed Holtec Pilgrim, LLC.

17. Shortly thereafter, on February 20, 2019, the Commonwealth of Massachusetts and Pilgrim Watch filed petitions with the NRC seeking to intervene and requesting the NRC to hold a hearing on certain contentions relating to the proposed transaction and approvals.

18. Specifically, Massachusetts and Pilgrim Watch filed contentions challenging the transaction on the grounds that Movants had failed to demonstrate that the transfer would result in reasonable financial assurance for adequate protection for public health and safety, and that the LTA had not been subjected to sufficient environmental review under the National Environmental Policy Act.

19. Movants filed responses with the NRC on March 18, 2019. Further briefing followed. On July 16, 2019, Pilgrim Watch sought to add a new contention to its hearing request, asserting that the NRC staff had not properly investigated whether the Holtec companies and other companies to be involved in the decommissioning as contractors were trustworthy or reliable. Movants opposed the 6

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 7 of 17 addition of the contention. The requests for hearing have not been ruled on by the NRC and are still pending.

20. On August 1, 2019, Massachusetts sought to stay all NRC actions on the LTA pending settlement discussions with the Entergy and Holtec entities.

Movants opposed the motion, and the NRC denied it on August 14, 2019.

21. On August 13, 2019, NRC staff notified the parties that staff intended to issue an order approving the LTA on or about August 21, 2019.

22. An order of the NRC staff on a license transfer is immediately effective, absent a stay, notwithstanding the pendency of hearing requests, subject to the continuing authority of the NRC Commissioners to rescind, to modify, or to condition the transfer, based on the outcome of any post-effectiveness hearing. See 10 C.F.R. § 2.1327; see also In the Matter of Entergy Nuclear Generation Company, Entergy Nuclear Operations, Inc., Holtec Pilgrim, LLC, Holtec Decommissioning International, LLC, and Pilgrim Nuclear Power Station, 84 Fed. Reg. 45176-01 (Aug. 28, 2019).

23. On August 15, 2019, Massachusetts sought an enlargement of time to file an application to stay the expected NRC staff order approving the LTA. Movants opposed the extension. The NRC granted a five-day extension for Massachusetts to file an application to stay the NRC staff order.

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USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 8 of 17

24. On August 22, 2019, the NRCs Director for the Office of Nuclear Reactor Regulation issued NRC staffs Order Approving Direct and Indirect Transfer of License and Conforming Amendment in In the Matter of Entergy Nuclear Generation Company, Entergy Nuclear Operations, Inc. See Pet., Ex. A.

25. On August 26, 2019, Movants closed on the transaction.

26. Massachusetts filed a motion to stay the effectiveness of NRC staffs order on September 4, 2019. Movants opposed the stay. The motion has not been ruled on by the NRC and is still pending.

27. Massachusetts filed its petition for review in this Court on September 25, 2019.

Grounds for Intervention

28. Rule 15(d) states that a motion to intervene must be filed within 30 days after the petition for review is filed and must contain a concise statement of the interest of the moving party and the grounds for intervention. Fed. R. App. P. 15(d).

To satisfy this rule, a prospective intervenor must simply . . . file a motion setting forth its interest and the grounds on which intervention is sought. Synovus Fin.

Corp. v. Bd. of Governors of Fed. Reserve Sys., 952 F.2d 426, 433 (D.C. Cir. 1991).

Since Rule 15(d) provides no standard for resolving intervention questions, appellate courts have identified two considerations: first, the statutory design of the act and second, the policies underlying intervention in the trial courts pursuant 8

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 9 of 17 to Fed. R. Civ. P. 24. State of Tex. v. U.S. Dep't of Energy, 754 F.2d 550, 551 (5th Cir. 1985) (internal citation omitted); see also Sierra Club, Inc. v. E.P.A., 358 F.3d 516, 517-18 (7th Cir. 2004).

29. Under Federal Rule of Civil Procedure 24, this Court has held that qualification for intervention as of right depends on the following four factors: (1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest; and (4) whether the applicants interest is adequately represented by existing parties. Fund For Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting Fed. R. Civ. P.

24(a)(2)); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233-34 (D.C.

Cir. 2003). Movants satisfy these requirements, as explained below.

The Motion Is Timely

30. This motion is timely because it has been filed within 30 days after the petition for review [was] filed. Fed. R. App. P. 15(d); see also Ala. Power Co. v.

I.C.C., 852 F.2d 1361, 1367 (D.C. Cir. 1988).

Movants Have A Significant Interest In The Transaction That Is The Subject Of The Petition

31. Movants are the entities that asked for, and received, NRC approval to transfer ownership and operating authority (and ancillary approvals) from Entergy 9

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 10 of 17 entities to Holtec entities, for the purpose of expedited decommissioning and a return to beneficial use of the site and its resources. Movants have substantial interests in whether the transfers are allowed to stand.

32. The closing of the transaction enabled the Movants to proceed with executing Holtecs expedited decommissioning plan for Pilgrim and to begin realizing the respective benefits from aligning the risks and potential benefits associated with that decommissioning with their respective business goals and expertise. As a result, Movants clearly have a significant interest in the transaction that is the subject of Petitioners challenge.

Disposition Of The Petition May As A Practical Matter Impair Or Impede the Movants Ability to Protect That Interest

33. Massachusetts seeks, in its petition, a review of NRC staffs rulings and processes relating to the transfers. If this Court were to overturn or forestall these actions or find the NRCs processes improper, the transfers would be affected.

34. As discussed above, if this Court were to grant the relief Petitioner seeks, it would, as a practical matter, adversely affect the benefits that Movants have already realized and expect to realize in the future as a result of the Pilgrim transaction.

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USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 11 of 17 The Federal Agency Respondent May Be Unable To Represent The Movants Unique Interests Adequately

35. A prospective intervenors burden of showing inadequate representation is not onerous, as it need only show that representation of [its]

interest may be inadequate, not that representation will in fact be inadequate.

Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (citing Trbovich

v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).

36. While Movants would expect to be aligned with NRC in the event the NRC Commissioners deny Massachusetts request for a hearing in whole or in part (or grant the request for a hearing but agree with NRC staff on the merits), the NRC hearing process remains pending. And even once it concludes, Movants may have a unique perspective to offer beyond that of the NRC insofar as they are (or have been) the operating and owning entities with respect to Pilgrim. Movants may have different interests from the NRC in this litigation, beyond the shared interest of preserving the NRC regulatory framework and decision-making process, particularly with respect to which party remains the owner and licensee of Pilgrim and the regulatory conditions imposed in connection with the same. As a result, the NRC may not adequately represent Movants interests.

37. To ensure that Movants participation as intervenors is helpful to the Court, Movants will endeavor to coordinate with the NRC to avoid duplicative 11

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 12 of 17 briefing and to ensure that Movants focus on arguments and/or background facts that the NRC may not address.

WHEREFORE, Movants respectfully request that the Court grant Movants leave to intervene as parties-respondents.

Dated: October 16, 2019 Respectfully submitted, QUINN EMANUEL URQUHART &

SULLIVAN, LLP By /s/ Sanford I. Weisburst Sanford I. Weisburst Ellyde R. Thompson QUINN EMANUEL URQUHART

& SULLIVAN, LLP 51 Madison Ave., 22nd Floor New York, NY 10010 (212) 849-7000 David R. Lewis Pillsbury Winthrop Shaw Pittman, LLP 1200 Seventeenth Street, N.W.

Washington, DC 20036-3006 202-663-8474 Attorneys for Entergy Nuclear Operations, Inc.

Peter D. LeJeune Adam K. Israel BALCH & BINGHAM LLP 1901 Sixth Avenue North Suite 1500 Birmingham, AL 35203 (205) 251-8100 12

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 13 of 17 Attorneys for Holtec International, Holtec Decommissioning International, LLC, and Holtec Pilgrim, LLC 13

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 14 of 17 ADDENDUM--CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appeal Procedure 26.1 and D.C. Circuit Rule 26.1, counsel for Entergy Nuclear Operations, Inc. certifies as follows:

Entergy Nuclear Operations, Inc. is a Delaware corporation engaged principally in the business of operating nuclear power facilities owned by its affiliates in the northeastern United States. Entergy Nuclear Operations, Inc. is a direct, wholly-owned subsidiary of Entergy Nuclear Holding Company #2. Entergy Nuclear Holding Company #2 is an indirect wholly-owned subsidiary of Entergy Corporation (NYSE: ETR). No other publicly-held company directly or indirectly holds a 10 percent or more equity interest in Entergy Nuclear Operations, Inc.

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USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 15 of 17 ADDENDUM--CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appeal Procedure 26.1 and D.C. Circuit Rule 26.1, counsel for Holtec International, Holtec Decommissioning International, LLC, and Holtec Pilgrim, LLC certifies as follows:

Holtec International is a Delaware corporation engaged principally in the business of providing equipment, systems, and services to the nuclear industry throughout the world. Holtec International has no parent company, and no publicly-held company directly or indirectly holds a 10 percent or more equity interest in Holtec International.

Holtec Decommissioning International, LLC is a Delaware limited liability company engaged principally in the business of operating and decommissioning shutdown nuclear power plants. Holtec Decommissioning International, LLC is a direct, wholly-owned subsidiary of Holtec Power, Inc., which in turn is a direct, wholly-owned subsidiary of Holtec International.

Holtec Pilgrim, LLC (f/k/a Entergy Nuclear Generation Company, LLC), is a Massachusetts limited liability company engaged principally in the business of owning the shutdown Pilgrim Nuclear Power Station in Plymouth, Massachusetts.

Holtec Pilgrim, LLC is a direct, wholly-owned subsidiary of Nuclear Asset 15

USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 16 of 17 Management Company, LLC, which in turn is a indirect, wholly-owned subsidiary of Holtec International.

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USCA Case #19-1198 Document #1811165 Filed: 10/16/2019 Page 17 of 17 CERTIFICATE OF SERVICE I, Sanford I. Weisburst, a member of the Bar of this Court, hereby certify that on October 16, 2019, I electronically filed the foregoing MOTION OF ENTERGY NUCLEAR OPERATIONS, INC., HOLTEC INTERNATIONAL, HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PIGLRIM, LLC (f/k/a ENTERGY NUCLEAR GENERATION COMPANY, LLC) FOR LEAVE TO INTERVENE with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate ECF system.

/s/ Sanford I. Weisburst Sanford I. Weisburst Dated: October 16, 2019 17