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| issue date = 10/27/2011
| issue date = 10/27/2011
| title = NRC Staff'S Answer in Opposition to Commonwealth of Massachusetts' Motion to Reply to Staff Response to Motion to Stay Commission'S Decision on Pilgrim Watch'S Appeal of Board Decision Denying Admission of Post-Fukushima Contentions
| title = NRC Staff'S Answer in Opposition to Commonwealth of Massachusetts' Motion to Reply to Staff Response to Motion to Stay Commission'S Decision on Pilgrim Watch'S Appeal of Board Decision Denying Admission of Post-Fukushima Contentions
| author name = Harris B G
| author name = Harris B
| author affiliation = NRC/OGC
| author affiliation = NRC/OGC
| addressee name =  
| addressee name =  
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{{#Wiki_filter:October 27, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  
{{#Wiki_filter:October 27, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of                                  )
                                                  )
Entergy Nuclear Generation Co. and                )
Entergy Nuclear Operations, Inc.                  )          Docket No. 50-293-LR
                                                  )
                                                  )          ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)                    )
NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSIONS DECISION ON PILGRIM WATCHS APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby files its answer in opposition to Commonwealth of Massachusetts (Massachusetts) motion to file a reply (Reply Motion) to the Staffs response to Massachusetts motion to stay the Commissions decision on Pilgrim Watchs request for review of the Atomic Safety and Licensing Boards (Board) decision denying admission of two post-Fukushima contentions.1 As discussed more fully below, the Reply Motion does not demonstrate the compelling circumstances needed to justify a reply under the Commissions regulations. 10 C.F.R.
§ 2.323(c). Therefore, the Reply Motion should be denied.
1 Commonwealth of Massachusetts Motion to Reply to NRC Staff Answer to Massachusetts Request to Stay Commission Decision on Pilgrim Watch Appeal or in the Alternative to Strike Reference to Massachusetts Expert, October 17, 2011(Reply Motion); NRC Staff s Answer to Commonwealth of Massachusetts Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts Expert, October 11, 2011 (Staff Answer).


BEFORE THE COMMISSION In the Matter of )
PROCEDURAL HISTORY The history of this proceeding is discussed in the Staffs Answer and will not be repeated in its entirety herein. Rather, in brief, we focus on the most recent submissions to the Commission.
)
On September 23, 2011, Pilgrim Watch (PW) filed a petition for review of the Boards denial of the admission of two contentions relating to the Fukushima accident.2 On September 28, 2011, Massachusetts filed an answer to the petition which also requested that the Commission stay its decision on PWs petition.3 Thereafter, the Staff filed its Answer. On October 17, 2011 Massachusetts filed its Reply Motion, accompanied by an unauthorized reply.4 The Staff now files this answer in opposition to the Reply Motion.
Entergy Nuclear Generation Co. and )
LEGAL STANDARDS FOR MOTIONS TO PERMIT A REPLY Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply (emphasis added).5 2
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR  )  ) ASLBP No. 06-848-02-LR  (Pilgrim Nuclear Power Station) )
Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Requests for Hearing on New Contentions Relating to Fukushima Accident, September 23, 2011.
NRC STAFF'S ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS' MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSION'S DECISION ON PILGRIM WATCH'S APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff ("Staff") hereby files its answer in opposition to Commonwealth of Massachusetts' ("Massachusetts") motion to file a reply ("Reply Motion") to the Staff's response to Massachusetts' motion to stay the Commission's decision on Pilgrim Watch's request for review of the Atomic Safety and Licensing Board's ("Board")
3 Commonwealth of Massachusetts Answer to Pilgrim Watch Petition for Review, Request to Stay Commission Decision or in the Alternative to Strike reference to Massachusetts Expert, September 28, 2011 (Massachusetts Stay Motion).
decision denying admission of two post-Fukushima contentions.
4 Commonwealth of Massachusetts Reply to NRC Staff Answer to Massachusetts Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts Expert, October 17, 2011 (Proposed Reply).
1  As discussed more fully below, the Reply Motion does not demonstrate the "compelling circumstances" needed to justify a reply under the Commission's regulations. 10 C.F.R.
5 The regulation that governs stay motions, 10 C.F.R. § 2.342, states, in subsection (d), that (continued. . .)
§ 2.323(c). Therefore, the Reply Motion should be denied.
1  Commonwealth of Massachusetts' Motion to Reply to NRC Staff Answer to Massachusetts' Request to Stay Commission Decision on Pilgrim Watch Appeal or in the Alternative to Strike Reference to Massachusetts' Expert, October 17, 2011("Reply Motion"); NRC Staff 's Answer to Commonwealth of Massachusetts' Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts' Expert, October 11, 2011 ("Staff Answer").
PROCEDURAL HISTORY The history of this proceeding is discussed in the Staff's Answer and will not be repeated in its entirety herein. Rather, in brief, we focus on the most recent submissions to the Commission. On September 23, 2011, Pilgrim Watch ("PW") filed a petition for review of the Board's denial of the admission of two contentions relating to the Fukushima accident.
2 On September 28, 2011, Massachusetts filed an answer to the petition which also requested that the Commission stay its decision on PW's petition.
3 Thereafter, the Staff filed its Answer. On October 17, 2011 Massachusetts filed its Reply Motion, accompanied by an unauthorized reply.
4 The Staff now files this answer in opposition to the Reply Motion. LEGAL STANDARDS FOR MOTIONS TO PERMIT A REPLY Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted "only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply" (emphasis added).
5 2   Pilgrim Watch's Petition for Review of Memorandum and Order (Denying Pilgrim Watch's Requests for Hearing on New Contentions Relating to Fukushima Accident, September  


23, 2011.
Massachusetts asserts, in cursory fashion, that it could not have reasonably anticipated that the Staff would cite law in opposition to the stay that is not referenced in [Massachusetts Stay Motion] and is not applicable to the relief being requested. Reply Motion at 1.
3  Commonwealth of Massachusetts Answer to Pilgrim Watch Petition for Review, Request to Stay Commission Decision or in the Alternative to Strike reference to Massachusetts' Expert, September 28, 2011 ("Massachusetts' Stay Motion").
4  Commonwealth of Massachusetts Reply to NRC Staff Answer to Massachusetts' Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts' Expert, October 17, 2011 ("Proposed Reply").
5  The regulation that governs stay motions, 10 C.F.R. § 2.342, states, in subsection (d), that (continued. . .)    Massachusetts asserts, in cursory fashion, that it could not have reasonably anticipated that the Staff would cite law in opposition to the stay "that is not referenced in [Massachusetts' Stay Motion]" and is not applicable to the relief being requested. Reply Motion at 1.
Massachusetts also asserts that the Staff makes impermissible comments relating to the merits of its contention filing. Id. Massachusetts fails to demonstrate that the reasons cited are compelling circumstances.
Massachusetts also asserts that the Staff makes impermissible comments relating to the merits of its contention filing. Id. Massachusetts fails to demonstrate that the reasons cited are compelling circumstances.
DISCUSSION Massachusetts advances two reasons why the Commission should consider its proposed reply, but does not demonstrate the compelling circumstances envisioned by the regulation. Massachusetts states that it "could not have reasonably anticipated" that the Staff would cite law not discussed in Massachusetts' Stay Motion. Reply Motion at 1. But, Massachusetts should have anticipated the arguments to which it now seeks leave to reply. Massachusetts had an unfettered opportunity to ra ise every relevant argument in support of its Motion to Stay in the first instance. It also had an obligation to make certain that its Motion requested appropriate relief, was appropriately titled, and was "supported by appropriate and accurate references to legal authority and factual basis."  10 C.F.R. § 2.323(d). It was Massachusetts that chose to designate its motion as a Motion for a Stay. Massachusetts failed to cite the regulation under which it's Motion was filed, thus compelling the Staff to demonstrate to the Commission that the Motion was not a stay motion, but rather a motion to hold the                                                                                                                              
DISCUSSION Massachusetts advances two reasons why the Commission should consider its proposed reply, but does not demonstrate the compelling circumstances envisioned by the regulation. Massachusetts states that it could not have reasonably anticipated that the Staff would cite law not discussed in Massachusetts Stay Motion. Reply Motion at 1. But, Massachusetts should have anticipated the arguments to which it now seeks leave to reply.
 
Massachusetts had an unfettered opportunity to raise every relevant argument in support of its Motion to Stay in the first instance. It also had an obligation to make certain that its Motion requested appropriate relief, was appropriately titled, and was supported by appropriate and accurate references to legal authority and factual basis. 10 C.F.R. § 2.323(d). It was Massachusetts that chose to designate its motion as a Motion for a Stay. Massachusetts failed to cite the regulation under which its Motion was filed, thus compelling the Staff to demonstrate to the Commission that the Motion was not a stay motion, but rather a motion to hold the
(. . .continued) "replies to answers will not be entertained."  Section 2.342(d) does not provide for a "compelling circumstances" exception to the no reply rule.
(. . .continued) replies to answers will not be entertained. Section 2.342(d) does not provide for a compelling circumstances exception to the no reply rule.
Commission's action on PW's Appeal in abeyance. Furthermore, the Staff demonstrated that if Massachusetts intended their Motion to be a stay motion, it did not meet the criteria for a stay.
6  Staff Answer at 2, 6-8. There is no injustice in denying Massachusetts' request to make
 
arguments emanating from weaknesses in its original pleading. Massachusetts should have anticipated that the Staff would respond to these weaknesses. The second reason given by Massachusetts, that the Staff impermissibly commented on the merits of the contention filings, is also not a compelling reason which would allow for a reply. Reply Motion at 1. In fact, Massachusetts provides no authority to support its assertion that the Staff's comment would give rise to a right to reply. Nor does Massachusetts point to the alleged offending language in the Staff's Answer. In fact, the Staff's statement was not a comment on the merits. The Staff's Answer made two arguments. First, that the Massachusetts Stay Motion was not a motion to stay, but, in fact, a motion to hold the Commission's action in abeyance, which did not meet the factors required by the Commission.
7    Second, if the Motion was, as presented, a motion for a stay under 10 C.F.R. § 2.343, it did not meet the criteria of that regulation. In discussing the criteria for a stay in 10 C.F.R. § 2.343(e)(1), the Staff stated that Massachusetts had not demonstrated the likelihood that it would prevail before the Board. Staff 6  In addition, if the motion was a stay motion, Massachusetts' Reply would not be entertained pursuant to 10 C.F.R. § 2.342(d).
7  Staff's Answer at 8-9, citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380-83 (2001) (the factors are:  1) whether the issue presented must be addressed immediately; 2) how abeyance will affect expeditious decision making; and 3) whether the abeyance request is narrowly tailored so as to promote adjudicatory efficiency).
Answer at 7, n. 27. However, that statement was made in the context of discussing the regulatory requirements for a stay, and not in the context of discussing the merits of Massachusetts' contention. Therefore, Massachusetts' second reason has no basis. The bare bones statement in the Reply Motion does not demonstrate compelling circumstances. Massachusetts kept its Reply Motion relatively brief, providing only a one sentence argument regarding the Staff's Answer. This argument is built upon the Proposed Reply, which Massachusetts appended to its as-yet-ungranted Reply Motion. In the Staff's view, Massachusetts' cursory Reply Motion invites the Commission to read the Proposed Reply in order to decide whether to allow it, effectively defeating the regulatory presumption against allowing such replies and the requirement that parties file them with "permission."  10 C.F.R. § 2.323(c). Absent such permission, the Proposed Reply should effectively be viewed as though it does not exist, and so should not be relied upon. Therefore, Massachusetts has not met the requirement to demonstrate why it could not have reasonably anticipated that the Staff would respond by pointing out that Massachusetts' Stay Motion was not, in fact, a stay motion as designated and that, had it been a stay motion, it would not meet the regulatory criteria in 10 C.F.R. § 2.323. Thus, the Reply Motion does not demonstrate that compelling circumstances that warrant a reply brief.
CONCLUSION  As demonstrated above, Massachusetts' request to file a reply should be denied.
Respectfully submitted,        /Signed Electronically By/
Brian G. Harris        Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel        Mail Stop: O15-D21        Washington, DC  20555 Telephone:  (301) 415-1392 E-mail:
Brian.Harris@nrc.gov
 
Dated at Rockville, Maryland
 
this  27 th day of October, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
 
In the Matter of )
 
ENTERGY NUCLEAR GENERATION CO. and ) ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station)  ) 
)  CERTIFICATE OF SERVICE
 
I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSION'S DECISION ON PILGRIM WATCH'S APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS" has been served upon the following by the Electronic Informat ion Exchange, this 27th day of October, 2011:
 
Administrative Judge  Richard F. Cole Atomic Safety and Licensing Board Panel
 
Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel
 
Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Paul.Abramson@nrc.gov Administrative Judge 
 
Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel
 
Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
 
E-mail: Ann.Young@nrc.gov Office of Commission Appellate    Adjudication Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (VIA INTERNAL MAIL ONLY) Office of the Secretary  Attn: Rulemakings and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
 
E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis Duane Morris LLP 505 9 th St., NW, Suite 1000 Washington, DC 20004
 
E-mail: sshollis@duanemorris.com Terence A. Burke, Esq. Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213
 
E-mail:  tburke@entergy.com Mary Lampert 148 Washington Street
 
Duxbury, MA 02332
 
E- mail:  mary.lampert@comcast.net David R. Lewis, Esq. Paul A. Gaukler, Esq.
Pillsbury, Winthrop, Shaw, Pittman, LLP
 
2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency            Management Agency 668 Tremont Street
 
Duxbury, MA 02332


E-mail: nord@town.duxbury.ma.us Town Manager Town of Plymouth 11 Lincoln St. Plymouth, MA 02360
Commissions action on PWs Appeal in abeyance. Furthermore, the Staff demonstrated that if Massachusetts intended their Motion to be a stay motion, it did not meet the criteria for a stay.6 Staff Answer at 2, 6-8. There is no injustice in denying Massachusetts request to make arguments emanating from weaknesses in its original pleading. Massachusetts should have anticipated that the Staff would respond to these weaknesses.
The second reason given by Massachusetts, that the Staff impermissibly commented on the merits of the contention filings, is also not a compelling reason which would allow for a reply.
Reply Motion at 1. In fact, Massachusetts provides no authority to support its assertion that the Staffs comment would give rise to a right to reply. Nor does Massachusetts point to the alleged offending language in the Staffs Answer. In fact, the Staffs statement was not a comment on the merits.
The Staffs Answer made two arguments. First, that the Massachusetts Stay Motion was not a motion to stay, but, in fact, a motion to hold the Commissions action in abeyance, which did not meet the factors required by the Commission.7        Second, if the Motion was, as presented, a motion for a stay under 10 C.F.R. § 2.343, it did not meet the criteria of that regulation. In discussing the criteria for a stay in 10 C.F.R. § 2.343(e)(1), the Staff stated that Massachusetts had not demonstrated the likelihood that it would prevail before the Board. Staff 6
In addition, if the motion was a stay motion, Massachusetts Reply would not be entertained pursuant to 10 C.F.R. § 2.342(d).
7 Staffs Answer at 8-9, citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380-83 (2001) (the factors are: 1) whether the issue presented must be addressed immediately; 2) how abeyance will affect expeditious decision making; and
: 3) whether the abeyance request is narrowly tailored so as to promote adjudicatory efficiency).


E-mail: marrighi@townhall.plymouth.ma.us Richard R. MacDonald Town Manager 878 Tremont Street
Answer at 7, n. 27. However, that statement was made in the context of discussing the regulatory requirements for a stay, and not in the context of discussing the merits of Massachusetts contention. Therefore, Massachusetts second reason has no basis.
The bare bones statement in the Reply Motion does not demonstrate compelling circumstances. Massachusetts kept its Reply Motion relatively brief, providing only a one sentence argument regarding the Staffs Answer. This argument is built upon the Proposed Reply, which Massachusetts appended to its as-yet-ungranted Reply Motion. In the Staffs view, Massachusetts cursory Reply Motion invites the Commission to read the Proposed Reply in order to decide whether to allow it, effectively defeating the regulatory presumption against allowing such replies and the requirement that parties file them with permission. 10 C.F.R. § 2.323(c). Absent such permission, the Proposed Reply should effectively be viewed as though it does not exist, and so should not be relied upon.
Therefore, Massachusetts has not met the requirement to demonstrate why it could not have reasonably anticipated that the Staff would respond by pointing out that Massachusetts Stay Motion was not, in fact, a stay motion as designated and that, had it been a stay motion, it would not meet the regulatory criteria in 10 C.F.R. § 2.323. Thus, the Reply Motion does not demonstrate that compelling circumstances that warrant a reply brief.


Duxbury, MA  02332 E-mail: macdonald@town.duxbury.ma.us Matthew Brock Assistant Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA  02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
CONCLUSION As demonstrated above, Massachusetts request to file a reply should be denied.
Respectfully submitted,
                                                /Signed Electronically By/
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O15-D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: Brian.Harris@nrc.gov Dated at Rockville, Maryland this 27th day of October, 2011


              /Signed Electronically By/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of                                    )
Brian G. Harris            Counsel for the NRC Staff  
ENTERGY NUCLEAR GENERATION CO. and                  )
ENTERGY NUCLEAR OPERATIONS, INC.                    )        Docket No. 50-293-LR
                                                    )
(Pilgrim Nuclear Power Station)                    )
                                                    )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSIONS DECISION ON PILGRIM WATCHS APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS has been served upon the following by the Electronic Information Exchange, this 27th day of October, 2011:
Administrative Judge                                  Administrative Judge Richard F. Cole                                        Paul B. Abramson Atomic Safety and Licensing Board Panel                Atomic Safety and Licensing Board Panel Mail Stop: T-3F23                                      Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission                    U.S. Nuclear Regulatory Commission Washington, DC 20555-0001                              Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov                          E-mail: Paul.Abramson@nrc.gov Administrative Judge                                  Office of Commission Appellate Ann Marshall Young, Chair                              Adjudication Atomic Safety and Licensing Board Panel                Mail Stop: O-16G4 Mail Stop: T-3F23                                      U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission                    Washington, DC 20555-0001 Washington, DC 20555-0001                              E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board                      Office of the Secretary Mail Stop: T-3F23                                      Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission                    Mail Stop: O-16G4 Washington, DC 20555-0001                              U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY)                              Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov


Sheila Slocum Hollis                          Terence A. Burke, Esq.
Duane Morris LLP                              Entergy Nuclear 505 9th St., NW, Suite 1000                  1340 Echelon Parkway Washington, DC 20004                          Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com              Jackson, MS 39213 E-mail: tburke@entergy.com Mary Lampert                                  David R. Lewis, Esq.
148 Washington Street                        Paul A. Gaukler, Esq.
Duxbury, MA 02332                            Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net            2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord                          Town Manager Fire Chief & Director Duxbury Emergency      Town of Plymouth Management Agency                          11 Lincoln St.
668 Tremont Street                            Plymouth, MA 02360 Duxbury, MA 02332                            E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald                          Matthew Brock Town Manager                                  Assistant Attorney General 878 Tremont Street                            Commonwealth of Massachusetts Duxbury, MA 02332                            One Ashburton Place E-mail: macdonald@town.duxbury.ma.us          Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
                                            /Signed Electronically By/
Brian G. Harris Counsel for the NRC Staff
.}}
.}}

Latest revision as of 13:50, 12 November 2019

NRC Staff'S Answer in Opposition to Commonwealth of Massachusetts' Motion to Reply to Staff Response to Motion to Stay Commission'S Decision on Pilgrim Watch'S Appeal of Board Decision Denying Admission of Post-Fukushima Contentions
ML11300A141
Person / Time
Site: Pilgrim
Issue date: 10/27/2011
From: Harris B
NRC/OGC
To:
NRC/OCM
SECY RAS
References
RAS 21304, 50-293-LR, ASLBP 06-848-02-LR
Download: ML11300A141 (8)
v • d • e


Text

October 27, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Entergy Nuclear Generation Co. and )

Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR

)

) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station) )

NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSIONS DECISION ON PILGRIM WATCHS APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby files its answer in opposition to Commonwealth of Massachusetts (Massachusetts) motion to file a reply (Reply Motion) to the Staffs response to Massachusetts motion to stay the Commissions decision on Pilgrim Watchs request for review of the Atomic Safety and Licensing Boards (Board) decision denying admission of two post-Fukushima contentions.1 As discussed more fully below, the Reply Motion does not demonstrate the compelling circumstances needed to justify a reply under the Commissions regulations. 10 C.F.R.

§ 2.323(c). Therefore, the Reply Motion should be denied.

1 Commonwealth of Massachusetts Motion to Reply to NRC Staff Answer to Massachusetts Request to Stay Commission Decision on Pilgrim Watch Appeal or in the Alternative to Strike Reference to Massachusetts Expert, October 17, 2011(Reply Motion); NRC Staff s Answer to Commonwealth of Massachusetts Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts Expert, October 11, 2011 (Staff Answer).

PROCEDURAL HISTORY The history of this proceeding is discussed in the Staffs Answer and will not be repeated in its entirety herein. Rather, in brief, we focus on the most recent submissions to the Commission.

On September 23, 2011, Pilgrim Watch (PW) filed a petition for review of the Boards denial of the admission of two contentions relating to the Fukushima accident.2 On September 28, 2011, Massachusetts filed an answer to the petition which also requested that the Commission stay its decision on PWs petition.3 Thereafter, the Staff filed its Answer. On October 17, 2011 Massachusetts filed its Reply Motion, accompanied by an unauthorized reply.4 The Staff now files this answer in opposition to the Reply Motion.

LEGAL STANDARDS FOR MOTIONS TO PERMIT A REPLY Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply (emphasis added).5 2

Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Requests for Hearing on New Contentions Relating to Fukushima Accident, September 23, 2011.

3 Commonwealth of Massachusetts Answer to Pilgrim Watch Petition for Review, Request to Stay Commission Decision or in the Alternative to Strike reference to Massachusetts Expert, September 28, 2011 (Massachusetts Stay Motion).

4 Commonwealth of Massachusetts Reply to NRC Staff Answer to Massachusetts Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts Expert, October 17, 2011 (Proposed Reply).

5 The regulation that governs stay motions, 10 C.F.R. § 2.342, states, in subsection (d), that (continued. . .)

Massachusetts asserts, in cursory fashion, that it could not have reasonably anticipated that the Staff would cite law in opposition to the stay that is not referenced in [Massachusetts Stay Motion] and is not applicable to the relief being requested. Reply Motion at 1.

Massachusetts also asserts that the Staff makes impermissible comments relating to the merits of its contention filing. Id. Massachusetts fails to demonstrate that the reasons cited are compelling circumstances.

DISCUSSION Massachusetts advances two reasons why the Commission should consider its proposed reply, but does not demonstrate the compelling circumstances envisioned by the regulation. Massachusetts states that it could not have reasonably anticipated that the Staff would cite law not discussed in Massachusetts Stay Motion. Reply Motion at 1. But, Massachusetts should have anticipated the arguments to which it now seeks leave to reply.

Massachusetts had an unfettered opportunity to raise every relevant argument in support of its Motion to Stay in the first instance. It also had an obligation to make certain that its Motion requested appropriate relief, was appropriately titled, and was supported by appropriate and accurate references to legal authority and factual basis. 10 C.F.R. § 2.323(d). It was Massachusetts that chose to designate its motion as a Motion for a Stay. Massachusetts failed to cite the regulation under which its Motion was filed, thus compelling the Staff to demonstrate to the Commission that the Motion was not a stay motion, but rather a motion to hold the

(. . .continued) replies to answers will not be entertained. Section 2.342(d) does not provide for a compelling circumstances exception to the no reply rule.

Commissions action on PWs Appeal in abeyance. Furthermore, the Staff demonstrated that if Massachusetts intended their Motion to be a stay motion, it did not meet the criteria for a stay.6 Staff Answer at 2, 6-8. There is no injustice in denying Massachusetts request to make arguments emanating from weaknesses in its original pleading. Massachusetts should have anticipated that the Staff would respond to these weaknesses.

The second reason given by Massachusetts, that the Staff impermissibly commented on the merits of the contention filings, is also not a compelling reason which would allow for a reply.

Reply Motion at 1. In fact, Massachusetts provides no authority to support its assertion that the Staffs comment would give rise to a right to reply. Nor does Massachusetts point to the alleged offending language in the Staffs Answer. In fact, the Staffs statement was not a comment on the merits.

The Staffs Answer made two arguments. First, that the Massachusetts Stay Motion was not a motion to stay, but, in fact, a motion to hold the Commissions action in abeyance, which did not meet the factors required by the Commission.7 Second, if the Motion was, as presented, a motion for a stay under 10 C.F.R. § 2.343, it did not meet the criteria of that regulation. In discussing the criteria for a stay in 10 C.F.R. § 2.343(e)(1), the Staff stated that Massachusetts had not demonstrated the likelihood that it would prevail before the Board. Staff 6

In addition, if the motion was a stay motion, Massachusetts Reply would not be entertained pursuant to 10 C.F.R. § 2.342(d).

7 Staffs Answer at 8-9, citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380-83 (2001) (the factors are: 1) whether the issue presented must be addressed immediately; 2) how abeyance will affect expeditious decision making; and

3) whether the abeyance request is narrowly tailored so as to promote adjudicatory efficiency).

Answer at 7, n. 27. However, that statement was made in the context of discussing the regulatory requirements for a stay, and not in the context of discussing the merits of Massachusetts contention. Therefore, Massachusetts second reason has no basis.

The bare bones statement in the Reply Motion does not demonstrate compelling circumstances. Massachusetts kept its Reply Motion relatively brief, providing only a one sentence argument regarding the Staffs Answer. This argument is built upon the Proposed Reply, which Massachusetts appended to its as-yet-ungranted Reply Motion. In the Staffs view, Massachusetts cursory Reply Motion invites the Commission to read the Proposed Reply in order to decide whether to allow it, effectively defeating the regulatory presumption against allowing such replies and the requirement that parties file them with permission. 10 C.F.R. § 2.323(c). Absent such permission, the Proposed Reply should effectively be viewed as though it does not exist, and so should not be relied upon.

Therefore, Massachusetts has not met the requirement to demonstrate why it could not have reasonably anticipated that the Staff would respond by pointing out that Massachusetts Stay Motion was not, in fact, a stay motion as designated and that, had it been a stay motion, it would not meet the regulatory criteria in 10 C.F.R. § 2.323. Thus, the Reply Motion does not demonstrate that compelling circumstances that warrant a reply brief.

CONCLUSION As demonstrated above, Massachusetts request to file a reply should be denied.

Respectfully submitted,

/Signed Electronically By/

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O15-D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: Brian.Harris@nrc.gov Dated at Rockville, Maryland this 27th day of October, 2011

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

ENTERGY NUCLEAR GENERATION CO. and )

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR

)

(Pilgrim Nuclear Power Station) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSIONS DECISION ON PILGRIM WATCHS APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS has been served upon the following by the Electronic Information Exchange, this 27th day of October, 2011:

Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov

Sheila Slocum Hollis Terence A. Burke, Esq.

Duane Morris LLP Entergy Nuclear 505 9th St., NW, Suite 1000 1340 Echelon Parkway Washington, DC 20004 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 E-mail: tburke@entergy.com Mary Lampert David R. Lewis, Esq.

148 Washington Street Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.

668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald Matthew Brock Town Manager Assistant Attorney General 878 Tremont Street Commonwealth of Massachusetts Duxbury, MA 02332 One Ashburton Place E-mail: macdonald@town.duxbury.ma.us Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us

/Signed Electronically By/

Brian G. Harris Counsel for the NRC Staff

.

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