ML081230584

2008/05/02-Pilgrim - NRC Staff Motion to Strike Pilgrim Watch Reply to NRC Staff Response to Pilgrim Watch'S Motion to Hold the Record Open

ML081230584
Person / Time
Site:	Pilgrim
Issue date:	05/02/2008
From:	Sexton K NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-293-LR, ASLBP 06-848-02-LR
Download: ML081230584 (8)

Text

May 2, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 STAFF MOTION TO STRIKE PILGRIM WATCH REPLY TO NRC STAFF RESPONSE TO PILGRIM WATCHS MOTION TO HOLD THE RECORD OPEN INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), the NRC Staff (Staff) moves to strike Pilgrim Watch Replies to Entergys and NRCs Responses Opposing Pilgrim Watchs Motion Requesting that the Record be Held Open for Sua Sponte Consideration of Cumulative Usage Factors (Reply).1 Pilgrim Watchs Reply should be stricken under one of two theories:2 (1) the Reply is not authorized under 10 C.F.R. § 2.323(c) or, (2) it is untimely and belatedly attempts to 1

In accordance with 10 C.F.R. § 2.323(b), the Staff has attempted to consult with both Entergy and Pilgrim Watch to resolve the issues prior to filing this motion. Entergy supports the motion. The Staff sent an e-mail and left two voicemail messages with Pilgrim Watchs representative, but received no reply prior to filing.

2 As addressed in Staff Response in Opposition to Pilgrim Watch Motion Requesting Record Be Held Open (Apr. 21, 2008) (Staff Response), Pilgrim Watch Motion Requesting the Record be Held Open So That the Board May Address a New and Significant Issue [Method to Calculate Cumulative Usage Factors (CUF)] Sua Sponte and Provide Pilgrim Watch an Opportunity for a Hearing (Apr. 9, 2008) (Motion) does not fall neatly into a specific category of 10 C.F.R. Part 2 motions, requests, petitions, or filings. This is clearly evidenced by the fact that the Staff and Entergy each took two very different paths in their respective responses. See Staff Response and Entergys Response in Opposition to Pilgrim Watch Motion Requesting the Record be Held Open for Sua Sponte Consideration of Cumulative Usage Factors (Apr. 21, 2008) (Entergy Response). Therefore, the Staff intends to respond to the Reply under two separate theories, both of which independently support striking the Reply.

broaden the scope of its Motion under 10 C.F.R. § 2.309(h)(2). Accordingly, the Board should strike Pilgrim Watchs Reply.

BACKGROUND On April 9, 2008, Pilgrim Watch filed its Motion asking the Board to hold the record open so that it may sua sponte address a new and significant issue regarding the method used to calculate the cumulative usage factors (CUF) for metal fatigue.3 Pilgrim Watchs Motion quoted extensively from an April 5, 2008 article in the Brattleboro Reformer regarding metal fatigue at Vermont Yankee Nuclear Power Station (Vermont Yankee) and concluded that because Vermont Yankee and Pilgrim are similar reactors, they must be experiencing similar problems.4 Pilgrim Watch ended its Motion with a series of questions.5 On April 21, 2008, per the extension granted to the NRC Staff and Entergy at the April 10, 2008 evidentiary hearing in Plymouth, MA, the Staff and Entergy filed their Responses to the Motion.6 On April 30, 2008, without first seeking permission from the Board or requesting an extension of time, Pilgrim Watch filed the instant Reply.

DISCUSSION I. Pilgrim Watchs Reply is Untimely and an Improper Petition to Add a New, Late-Filed Contention A. Pilgrim Watchs Reply is Untimely Under 10 C.F.R. § 2.309(h)(2), Pilgrim Watch would have had seven days to reply from the date the Staff and Entergy served their Responses. Staff and Entergy filed their Responses 3

See Motion.

4 Id. at 1-2.

5 Id. at 2.

6 See Staff Response; Entergy Response.

on Monday, April 21, 2008. Nine days later, two days late, and without an extension granted by the Board,7 Pilgrim Watch filed its Reply. Thus, the Board should strike Pilgrim Watchs Reply as untimely.8 B. Pilgrim Watchs Reply Improperly Attempts to Remedy the Insufficiency of its Motion Although Pilgrim Watchs failure to file on time provides sufficient grounds to strike its Reply, the Staff believes it is important to acknowledge Pilgrim Watchs failure to comply with the Commissions procedural regulations. Pilgrim Watchs Reply inappropriately attempts to bolster its insufficient initial filing by belatedly addressing the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). In fact, Pilgrim Watchs Reply is essentially a point-by-point breakdown of the § 2.309(f)(1) factors that should have been argued in its Motion.9 As the Commission has repeatedly stated, [a]ny reply should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer. 69 Fed. Reg. at 2203. Further, the contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004)

(quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, 7

Parties may seek a short extension [beyond the seven day deadline] from the presiding officer under special circumstances. Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004).

8 It should be noted that even though Pilgrim Watch is no longer represented by counsel, naivete as a pro se intervenor does not excuse simple things like the need for timeliness and prompt action.

See Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-14, 63 NRC 568, 580-81 (2006).

9 The Staff takes no position, for the purposes of this motion, on whether Pilgrim Watchs Reply would satisfy the legal requirements of 10 C.F.R. § 2.309(f)(1) had the information been provided initially.

Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003)). For those petitioners who fail to provide the essential support in their petitions to intervene, the Commission clarified, saying:

What our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for contentions; such a practice would effectively bypass and eviscerate our rules governing timely filing, contention amendment, and submission of late-filed contentions.

Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004).

Moreover, the Board was abundantly clear regarding this issue in its Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch).10 There, the Board stated that while a petitioner may amplify statements provided in an initial petition, a petitioner that fails to satisfy the requirements of the admissibility standards in its initial contention submission may not use its reply to rectify the inadequacies of its petition.11 Further, while Boards often afford pro se intervenors greater latitude in drafting intervention petitions,12 pro se intervenors are still expected to meet the clear requirements of 10 C.F.R. § 2.309(f)(1) and some level of factual or expert support must be furnished. Shieldalloy Metallurgical Corp. (Licensing Amendment Request for Decommissioning of the Newfield, New Jersey Facility), LBP-07-05, 65 NRC 341, 352-53. Over the course of several years, Pilgrim Watch has navigated numerous procedural issues and filings, and participated in an evidentiary hearing on the merits of its admitted contention. It is 10 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 359 (2006).

11 Id. (emphasis added).

12 See PPL Susquehanna LLC (Susquehanna Electric Station, Units 1 and 2), LBP-07-10, 66 NRC 1, 21 (2007).

therefore reasonable to expect full adherence to the 10 C.F.R. Part 2 rules and the Commissions interpretation thereof at this time.13 C. Pilgrim Watchs Reply Improperly and Belatedly Attempts to Broaden the Scope of its Motion In addition to inappropriately attempting to provide factual support for its initial, defective Motion in its Reply, Pilgrim Watch also raised new arguments in direct contravention of the Boards Memorandum and Order on Contentions.14 Pilgrim Watch contends that Entergys commitments regarding CUF calculations contained in its Safety Evaluation Report15 do not satisfy the requirements of 10 C.F.R. 54.21(c)(1)(iii). Reply at 8-9. This argument is fatally untimely16 and factually incorrect.17 Thus, Pilgrim Watchs Reply should be stricken or otherwise disregarded.

13 Unlike most cases where Boards overlook pro se intervenors lack of familiarity with NRC Rules of Practice and Procedure, this adjudication is almost a full two years past the initial contention admissibility stage. See USEC Inc. (American Centrifuge Plant), LBP-05-28, 62 NRC 585, 593 n.8 (2005).

14 a petitioner that fails to satisfy the requirements of the admissibility standards in its initial contention submission may not use its reply . . . to raise new arguments. Pilgrim, LBP-06-23, 64 NRC at 359.

15 NUREG-1891, Safety Evaluation Report Related to the License Renewal of Pilgrim Nuclear Power Station (Sept. 2007, Published Nov. 2007) (SER) at A A-13.

16 This argument is based entirely upon information contained in Pilgrims SER, which was published in November 2007. New contentions based on the SER should have been filed in December 2007. See Appendix to the November 29, 2006 Order (Regarding Schedule for Proceeding and Related Matters) (the [d]eadline for contentions based on new information is 30 days after [the] date information was received or reasonably available). Thus, even if the argument had been raised initially in its Motion, as discussed above, it would have been untimely.

17 The Commission has directly addressed and accepted the use of commitments to monitor, manage, and correct age-related degradation unique to license renewal. Commitments regarding aging management will be a part of the licensing basis during the renewal term. See Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,945-6 (Dec. 13, 1991). See also Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,473 (May 8, 1995); NUREG-1800, Rev. 1, "Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants"

("SRP-LR"). Thus, an applicant may use commitments for future aging management activities for metal (continued. . .)

II. Pilgrim Watchs Reply is Improper Under 10 C.F.R. § 2.323(c)

Should the Board view Pilgrim Watchs Motion as a motion to either stay the proceeding or conduct discovery, the Reply must still be stricken. NRC regulations state that after a party answers a moving partys motion:

[t]he moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer.

Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.

10 C.F.R. § 2.323(c). Pilgrim Watch made no such arguments in its Reply and failed to seek leave of the Board prior to filing the Reply; therefore, the Board should strike the Reply.18 CONCLUSION For the many reasons discussed above, the Staff respectfully requests that the Board strike or otherwise disregard Pilgrim Watchs Reply.

Respectfully Submitted,

/RA/

Kimberly A. Sexton Counsel for the NRC Staff Dated at Rockville, Maryland this 2nd day of May, 2008

(. . .continued) fatigue and the Staff will clearly accept those commitments to meet the requirements of 10 C.F.R. § 54.21(c)(1)(iii).

18 See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-04-28, 60 NRC 412, 414 n.2 (2004).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Entergy Nuclear Generation Co. and )

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

)

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

)

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF MOTION TO STRIKE PILGRIM WATCH REPLY TO NRC STAFF RESPONSE TO PILGRIM WATCHS MOTION TO HOLD THE RECORD OPEN in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 2nd day of May, 2008.

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 Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov

Sheila Slocum Hollis* Terence A. Burke, Esq.*

Duane Morris LLP Entergy Nuclear 1667 K Street, NW, Suite 700 1340 Echelon Parkway Washington, DC 20006 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: msylvia@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us

/RA/

_______________________________

Kimberly A. Sexton Counsel for the NRC Staff