ML12009A156

Entergy'S Answer Supporting NRC Staff'S Motion to Strike Portions of Pilgrim Watch Reply

ML12009A156
Person / Time
Site:	Pilgrim
Issue date:	01/09/2012
From:	Doris Lewis Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Generation Co, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21711, 50-293-LR, ASLBP 06-848-02-LR
Download: ML12009A156 (5)

Text

January 9, 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) )

)

ENTERGYS ANSWER SUPPORTING NRC STAFFS MOTION TO STRIKE PORTIONS OF PILGRIM WATCHS REPLY Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby answer in support of the NRC Staffs Motion to Strike Portions of Pilgrim Watchs Reply (Dec. 29, 2011) (Motion). The Motion seeks to strike from the record certain statements contained in the Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima - Aqueous Discharges (Dec.

20, 2011) (Reply).1 Entergy agrees with the NRC Staff that the statements identified in the Motion contain mischaracterizations relevant to this proceeding, Motion at 1, and that the Board should strike those mischaracterizations from the record or otherwise not consider them in ruling on the underlying contention.

In particular, Entergy respectfully submits that there simply cannot be any question that the Commissions reopening standards apply to Pilgrim Watchs multiple requests for hearing on 1

Pilgrim Watch filed its response to the NRC Staffs Motion on January 3, 2012. Pilgrim Watch Reply to the NRC Staffs Motion to Strike Portions of Pilgrim Watch Reply (Jan. 3, 2012) (PW Reply).

new contentions submitted since 2008. On June 4, 2008, the Board closed the evidentiary record in the proceeding because it had completed the hearing on the only admitted contention then pending before it.2 On October 30, 2008, the Board issued its Initial Decision on the remaining issues outstanding before it in the Pilgrim license renewal proceeding.3 Based on, inter alia, the entire evidentiary record, the Board resolved those last remaining issues in favor of Entergy, and ordered that the proceeding [be] terminated. LBP-08-22, 69 N.R.C. at 610.

Thus, it is clear that the evidentiary record was closed as of June 2008, and the adjudicatory proceeding before the Board was terminated in October 2008.4 The Commissions remand of a narrow portion of Contention 3 for hearing did not reopen the evidentiary record as to all matters. As the NRC Staff correctly points out (Motion at 3), the Commissions remand for hearing of a narrow issue concerning Pilgrim Watch Contention 3 did not issue until March 2010, nearly two years after the Board closed the evidentiary record.5 The Commission remand[ed] the contention to the Board for hearing, as limited by [its] ruling. CLI-10-11, 71 N.R.C. at 287 (emphasis added). See also id., 71 N.R.C.

at 290 (we . . . remand[] Contention 3, as limited by todays ruling, to the Board for hearing)

(emphasis added). Three months later, the Commission deni[ed] review of all other Board 2

Memorandum and Order (Ruling on Pilgrim Watch Motions Regarding Testimony and Proposed Additional Evidence Relating to Pilgrim Watch Contention 1) (June 4, 2008) at 4.

3 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-08-22, 68 N.R.C. 590, 593 (2008).

4 Pilgrim Watch repeatedly fails to distinguish between the closing of the evidentiary record and the overall hearing process and related administrative record. Just because the hearing process remains open and ongoing - which it will until the Commission issues its ultimate decision on review - does not mean that the evidentiary record remains open. The Commission clearly explained this fact in Pilgrim, CLI-08-9, 67 N.R.C. 353, 355-56 (2008)

(which Pilgrim Watch erroneously cites at CLI-08-02 in its Reply, PW Reply at 2-3). There, the Commission stated that the administrative record (and the hearing process) remains open after the closing of the evidentiary record, and specifically noted that the Boards initial decision, any petition for review thereof, and the Commissions ultimate decision on review are all docketed and included in the administrative record following the closing of the Boards evidentiary record. Pilgrim, CLI-08-9, 37 N.R.C. at 355-56 (emphasis added). This proceeding has followed the general procedural course anticipated by the Commission in CLI-08-9.

5 Pilgrim, CLI-10-11, 71 N.R.C. 287 (2010).

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decisions Pilgrim Watch challenge[d] stemming from its intervention petition.6 Consequently, although the Commission remand meant that the Board would receive evidence and hold a hearing on that narrow portion of Contention 3, the remand did not reopen the evidentiary record as to all matters. The remand was expressly limited by the Commission. The rest of the evidentiary record otherwise remained closed, and the Board appropriately applied the Commissions reopening standards to Pilgrim Watchs belated hearing requests.7 For these reasons, and those reasons expressed in the NRC Staffs Motion, Entergy supports the Motion and requests that the mischaracterizations of this proceeding in Pilgrim Watchs Reply identified in the NRC Staffs Motion be struck from the record or otherwise not considered in ruling on the underlying contention.

Respectfully submitted,

/signed electronically by Paul A. Gaukler/

David R. Lewis Paul A. Gaukler Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, NW Washington, DC 20037-1128 Phone: (202) 663-8000 E-mail: paul.gaukler@pillsburylaw.com Dated: January 9, 2012 Counsel for Entergy 6

Pilgrim, CLI-10-14, 71 N.R.C. 449, 453 (2010).

7 Pilgrim Watch continues to misinterpret the Commissions discussion of the reopening standards in its Vermont Yankee decision. See PW Reply at 3-4. In Vermont Yankee, the Commission clearly stated that, during the pendency of [a] remand to the Board, long after the evidentiary record had been closed but before the proceeding had been closed, the intervenors could submit a motion to reopen the record pursuant to 10 C.F.R. § 2.326, should they seek to address any genuinely new issues related to the license renewal application that previously could not have been raised. Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 N.R.C. 1, 10 n.37 (2010) (emphasis in original). The procedural circumstances in Vermont Yankee are essentially identical to those in this proceeding: during the limited remand of a portion of Pilgrim Watch Contention 3, the evidentiary record was long closed, but the proceeding remained open. Consistent with Vermont Yankee, the Board applied the Commissions stringent standards for reopening the record in Section 2.326 to Pilgrim Watchs (and the Commonwealth of Massachusetts) requests for hearing on new contentions.

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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 Entergys Answer Supporting NRC Staffs Motion to Strike Portions of Pilgrim Watchs Reply, dated January 9, 2012, were provided to the Electronic Information Exchange for service on the individuals below, this 9th day of January, 2012.

Secretary Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail@nrc.gov hearingdocket@nrc.gov Administrative Judge Atomic Safety and Licensing Board Ann Marshall Young, Esq., Chair Mail Stop T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ann.Young@nrc.gov Administrative Judge Administrative Judge Dr. Richard F. Cole Dr. Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Richard.Cole@nrc.gov Paul.Abramson@nrc.gov

Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Brian Harris, Esq. Commonwealth of Massachusetts Beth Mizuno, Esq. Office of the Attorney General Office of the General Counsel One Ashburton Place Mail Stop O-15 D21 Boston, MA 02108 U.S. Nuclear Regulatory Commission Martha.Coakley@state.ma.us Washington, DC 20555-0001 Matthew.Brock@state.ma.us Susan.Uttal@nrc.gov; brian.harris@nrc.gov; beth.mizuno@nrc.gov Ms. Mary Lampert Sheila Slocum Hollis, Esq.

148 Washington Street Duane Morris LLP Duxbury, MA 02332 505 9th Street, NW mary.lampert@comcast.net Suite 1000 Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Richard R. MacDonald Town Manager Town Manager Town of Plymouth 878 Tremont Street 11 Lincoln St. Duxbury, MA 02332 Plymouth, MA 02360 macdonald@town.duxbury.ma.us msylvia@townhall.plymouth.ma.us Chief Kevin M. Nord Hillary Cain, Esq.

Fire Chief and Director, Duxbury Emergency Law Clerk, Management Agency Atomic Safety and Licensing Board Panel 688 Tremont Street Mail Stop T3-E2a P.O. Box 2824 U.S. Nuclear Regulatory Commission Duxbury, MA 02331 Washington, DC 20555-0001 nord@town.duxbury.ma.us Hillary.Cain@nrc.gov

/signed electronically by Paul A. Gaukler/

Paul A. Gaukler 2