ML12097A222

Entergy Motion to Strike Petitioners' Affidavit and Portions of Petitioners' Reply

ML12097A222
Person / Time
Site:	Pilgrim
Issue date:	04/05/2012
From:	Walsh T Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Generation Co, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22223, 50-293-LR, ASLBP 06-848-02-LR
Download: ML12097A222 (7)

Text

April 5, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

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) )

ENTERGY'S MOTION TO STRIKE PETITIONERS' AFFIDAVIT AND PORTIONS OF PETITIONERS' REPLY Pursuant to 10 C.F.R. § 2.323(a), Entergy Nuclear Generation Company and Entergy Nu-clear Operations, Inc. (collectivel y "Entergy") move to strike in its entirety the Reply Affidavit of Alex Mansfield (Mar. 25, 2012) ("Mansfield Reply Affidavit") a nd to strike portions of the Reply 1 filed by Jones River Watershed Association and Pilgrim Watch (collectively, "Petition-ers") on March 26, 2012. Petitioners' Reply and the Mansfield Reply Affidavit raise new infor-mation for the first time on reply, which exceeds the permissible sc ope of a reply. Accordingly, the Mansfield Reply Affidavit and the offending portions of the Reply should be struck from the record.

On March 8, 2012, Petitioners filed a petition to intervene, motion to reopen the record and late-filed hearing request in the license renewal proceeding for the Pilgrim Nuclear Power Station ("Pilgrim" or "PNPS").

2 The Petition was accompanied by the affidavits of Ms. Anne Bingham ("Bingham Affidavit"); Mr. Alex Mansfield ("Mansfield Affidavit"); and E. Pine du-

1 Jones River Watershed Association and Pilgrim Watch Reply to Answers of NRC Staff and Entergy to Jones River Watershed Association Petitions to Intervene and for Hearing Under 10 C.F.R. § 2.309 (Mar. 26, 2012) ("Reply").

2 Jones River Watershed Association Petitions for Leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the Alternative 10 C.F.R. § 2.309(e) and Jones River Watershed Association and Pilgrim Watch Motion to Reopen Under 10 C.F.R. § 2.326 and Request for a Hearing Under 10 C.F.R. § 2.309(a) and (d) in Above Captioned License Renewal Proceeding (Mar. 8, 2012) ("Petition").

2 Bois ("duBois Affidavit"). One week after the Petition was filed, Petiti oners filed a Correction and Supplement to [the Petition] (Mar. 15, 2012) ("Supplement"). Both Entergy and the NRC Staff filed Answers opposing the Petition and Supplement.

3 On March 26, 2012, Petitioners filed their Reply. The Commission has long held that a reply may not contain new information that was not raised in either the petition or the answers. USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 N.R.C. 433, 439 (2006) ("The Commission will not permit, in a reply, the filing of new ar-guments or new legal theories th at opposing parties have not had the opportunity to address.") (citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 N.R.C. 223, 225 ("In Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a re ply brief"), reconsideration denied , CLI-04-35, 60 N.R.C. 619 (2004). See also Sequoyah Fuels Corp., CLI-94-4, 39 N.R.C. 187, 189 n.1 (1994). Here, Peti-tioners' Reply and accompanying Mansfield Reply Affidavit contravene this precedent. Further, while NRC rules allow a reply to an answer to a contention (see 10 C.F.R. § 2.309(h)(2)), those rules do not al low a reply to a motion (see 10 C.F.R. § 2.323(c)) such as a Section 2.326 motion to reopen the r ecord. Thus, while Petitioners ha ve the right to reply to le-gal arguments regarding the admi ssibility of their contentions under the standards in Section 2.309, they have no right under the NRC rules to provide new argument on the reopening stan-dards, or to submit a new affidavit in support of reopening. 10 C.F.R. § 2.323(c) ("[t]he moving party has no right to reply, except as permitted . . . . Permission may be granted only in compel-ling circumstances"). And, even where petiti oners can reply under Section 2.309, that limited

3 Entergy's Answer Opposing Jones River Watershed Association's and Pilgrim Watch's Motion to Reopen and Hearing Request (Mar. 19, 2012); NRC Staff's Answer to Jones River Watershed Association and Pilgrim Watch's Petitions for Leave to Intervene and Motions to Reopen the Record, at 2-5 (Mar. 19, 2012); NRC Staff's Answer to Correction and Supplement to Jones River Watershed Association and Pilgrim Watch's Petitions to Intervene and Motions to Supplement (Mar. 26, 2012).

3 reply must "be narrowly focused on the legal or logical arguments" pres ented in Entergy's and the NRC Staff's Answers. Final Rule, Cha nges to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (Jan. 14, 2004). The Section 2.309 re ply is not an opportunity to rehabilitate a flawed con-tention with an affidavit containing "belatedly submitted evidence" for which an applicant has no opportunity to challenge its adequacy. See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 N.R.C. 251, 261 (2008) (rejec ting a standing authorization affidavit sub-mitted with a reply). "'[I]f the contention as originally pled did not cite adequate documentary support, a petitioner cannot remediate the deficien cy by introducing in the reply documents that were available to it during the time fram e for initially filing contentions.'" Id.

at 262 n.32 (quot-ing Nuclear Management Co., LLC (Palisades Nuclear Plan t), CLI-06-17, 63 N.R.C. 727, 732 (2006)). The Mansfield Reply Affidavit should be struck in its entirety because by its very nature - a sworn affidavit from Petitioners' witness - it purports to be new evidence offered in reply.

See Palisades , CLI-08-19, 68 N.R.C. at 261. Further, as the Affidavit of Dr. Scherer was submit-ted to demonstrate that Petitioners failed to m eet the reopening standards, the Mansfield Reply Affidavit is clearly an attempt to submit an impermissible reply relating to the reopening stan-dards. Moreover, the Mansfield Reply Affidavit raises new claims, including multiple para-

graphs of allegations concerning the "thermal conditions at the PNPS discharge location," Mans-field 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.

Petitioners could have raised such claims in the Petition or the initial Affidavits, but did not. Because these claims are raised for the first time in the Reply, Entergy has not been afforded the opportunity to respond to them. Accordingly, they should not be considered by the Board in ruling on the Petition.

4 Likewise, the Reply impermissibly contains new allegations and arguments to which En-tergy has not been provided an opportunity to respond. This includes th e allegation that the 2006 BA and the 2012 Supplemental BA do not consider "action area," "cumu lative effects," "de-struction or adverse modification,"

and "effects of the action," Re ply at 8-10, whereas Petitioners initial filings (incorrectly) claimed only that the Pilgrim SEIS failed to consider specified "cumu-lative impacts" and the "acti on area." Mansfield Affidavit at ¶¶ 29-30. The impermissible new information in the Reply also includes an attempt "to further demonstrate compliance with § 2.326 requirements" by submitting a chart that purports to show where the initial affidavits ad-dressed each of the Section 2.326(a)(i)-(iii) criteria, id.

at 21-22.

4 All of this material is imper-missibly new on reply and, therefore, should be struck from the record.

For the foregoing reasons, the Mansfield Re ply Affidavit and the offending portions of the Reply should be struck from the record.

4 The Petitioners attempt to reconstruct how the affidavits met the reopening standards fails the strict requirements that are explicitly set forth in Section 2.326(b). Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 N.R.C. __, slip op. at 8-9 (Sept. 27, 2011) (quoting licensing board order). In Vogtle , the Commission affirmed a licensing board decision that rejected the suggestion that the licensing board "could fill in the blanks itself by examining the [affidavit] to find something to satisfy each of the § 2.326(a) criteria," and "'decline[d] this offer to hunt for information that the agency's procedural rules required to be explicitly identified and fully explained.'" Id. (footnote omitted).

5 CERTIFICATION As required by 10 C.F.R. § 2.323(b), Counsel for Entergy certifies that he consulted with the NRC Staff, Jones River Watershed Association, and Pilgrim Watch, and made a sincere ef-fort to resolve the issues raised in this Motion. The NRC Staff supports the Motion to the extent it moves to strike new claims and bases raised in the Reply and the Mansfield Reply Affidavit, and reserves the right to take a position on the remainder of th e Motion. Jones River Watershed Association opposes the Motion. Pilgrim Watch di d not respond to Entergy Counsel's consulta-tion request. Respectfully Submitted,

/signed electronically by Timothy J. V. Walsh

/ _________________________________

David R. Lewis

Paul A. Gaukler Timothy J. V. Walsh PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW

Washington, DC 20037-1128 Tel. (202) 663-8455 E-mail: timothy.walsh@pillsburylaw.com Counsel for Entergy Dated: April 5, 2012 403372159v4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

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 Entergy's Mo tion to Strike Petitioners' Affidavit and Por-tions of Petitioners' Reply, dated April 5, 2012, were provided to the Electronic Information Ex-change for service on the individuals below, this 5th day of April 2012.

Secretary Att'n: Rulemakings and Adjudications Staff

Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

hearingdocket@nrc.gov

Office of Commission Appellate Adjudication Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAmail@nrc.gov Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Ann.Young@nrc.gov

Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Richard.Cole@nrc.gov Administrative Judge Dr. Paul B. Abramson Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Paul.Abramson@nrc.gov Atomic Safety and Licensing Board Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 2 Susan L. Uttal, Esq. Maxwell C. Smith, Esq.

Brian Harris, Esq.

Beth Mizuno, Esq.

Lauren Woodall, Esq.

Office of the General Counsel

Mail Stop O-15 D21

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

Matthew Brock, Assistant Attorney General Commonwealth of Massachusetts Office of the Attorney General

One Ashburton Place

Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us Ms. Mary Lampert 148 Washington Street

Duxbury, MA 02332 mary.lampert@comcast.net Margaret Sheehan, Esq.

61 Grozier Road Cambridge, MA 02138 meg@ecolaw.biz Sheila Slocum Hollis, Esq.

Duane Morris LLP 505 9th Street, NW

Suite 1000

Washington, DC 20006 sshollis@duanemorris.com Richard R. MacDonald Town Manager 878 Tremont Street

Duxbury, MA 02332 macdonald@town.duxbury.ma.us Mr. Mark D. Sylvia Town Manager

Town of Plymouth

11 Lincoln St.

Plymouth, MA 02360 msylvia@townhall.plymouth.ma.us

Hillary Cain, Esq.

Law Clerk, Atomic Safety and Licensing Board Panel

Mail Stop T3-E2a

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Hillary.Cain@nrc.gov Chief Kevin M. Nord

Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street

P.O. Box 2824

Duxbury, MA 02331 nord@town.duxbury.ma.us

/signed electronically by Timothy J. V. Walsh

/ __________________________________ Timothy J. V. Walsh