ML111320594

Entergy'S Answer Opposing Commonwealth'S Motion to Hold Licensing Decision in Abeyance

ML111320594
Person / Time
Site:	Pilgrim
Issue date:	05/12/2011
From:	Gaukler P, Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 20253, 50-293-LR, ASLBP 06-848-02-LR
Download: ML111320594 (8)

Text

May 12, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board Panel 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 OPPOSING COMMONWEALTHS MOTION TO HOLD LICENSING DECISION IN ABEYANCE Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby oppose the Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 2, 2011) (Motion). The Commonwealths request that the Atomic Safety and Licensing Board (Board) hold its decision in abeyance is inconsistent with the Boards obligations under the Commissions instructions and policy, unnecessary, and inappropriate. The Motion should therefore be denied.

As a threshold matter, in contested license renewal proceedings, the Commissions long-standing goal has been a hearing schedule allowing the issuance of a Commission decision in about two and one half years from the date that the application was received. Baltimore Gas &

Electric Co. (Calvert Cliffs Nuclear Power Plant), CLI-98-14, 48 N.R.C. 39, 42 (1998); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-98-17, 48 N.R.C. 123, 126 (1998).

Here, the Pilgrim license renewal proceeding is in its sixth year. Consequently, the Commission has instructed the Board to bring this proceeding to closure:

We remanded contention 3 to the Board in March 2010. We expect the Board to make full use of its broad authority under our rules to establish and maintain a fair and disciplined hearing process, avoiding extensions of time absent good cause, . . . or other unnecessary delay. We urge the Board and parties to work together to bring the proceeding to timely closure.

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-28, 72 N.R.C. __, slip op. at 2 (Nov. 5, 2010) (emphasis added; footnote omitted). This instruction is consistent with the Commissions commitment to the expeditious completion of adjudicatory proceedings. See, e.g., Statement of Policy on the Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 24 (1998). As the Commission has stated, applicants for a license are . . . entitled to a prompt resolution of disputes concerning their applications. Id. at 19.

Further, the Commission strongly disfavors suspending or holding proceedings in abeyance while external events are being considered, because such action is fundamentally inconsistent with the Commissions responsibility to render timely decisions.

Permitting unnecessary delays would contravene the Commissions fundamental duties to the general public, as well as to applicants and licensees. The Commissions objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRCs review and hearing processes, and to produce an informed adjudicatory record that supports agency decision making on matters related to the NRCs responsibilities for protecting public health and safety, the common defense and security, and the environment. Id. at 19. Consistent with this policy, the Commission has a history of not delaying adjudications to await extrinsic actions, absent special needs of efficiency or fairness. See Private Fuel Storage, CLI-01-26, 54 NRC at 381-83 and references cited therein; McGuire & Catawba, CLI-01-27, 54 NRC at 390-91.

Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 N.R.C. 393, 400 (2001) (underlined emphasis added; italicized emphasis in original).

See also Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-01-27, 54 N.R.C. 385, 390 (2001) (This general reluctance [to suspend 2

proceedings] is firmly grounded in our longstanding commitment to efficient and expeditious decisionmaking.).

The Commonwealths Motion provides no basis for ignoring the Commissions instructions and policy. The three case cited by the Commonwealth are inapposite. Two of the cases involve short-term stays of the effectiveness of issued licenses (not decisions) in order to allow an intervenor to file a stay request with a court upon judicial review. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 N.R.C. 47, 61 (1992); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 N.R.C. 461, 471-72 (1991). The third case involved a Commission decision to stay the effectiveness of a Licensing Boards issued decision pending Commission review of that decision. None of these cases involved any delay in the issuance of a Licensing Boards decision

- indeed, in each of these cases, the Commissions action occurred after the issuance of final adjudicatory decisions. Further, in each of these cases, the action was taken by the Commissioners, and not by a Licensing Board.

Moreover, the Commonwealths Motion is unnecessary. First, the Emergency Petition to Suspend All Pending Reactor Licensing Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Corrected April 18, 2011) (Petition) is already before the Commission, and has been for several weeks. Thus, there is no need for any housekeeping stay to allow time for that Petition to be submitted and processed. More importantly, there is already an adequate procedure in place to protect the Commonwealths interest without delaying issuance of a decision on the matters before the Board. While a Licensing Boards decision is immediately effective (see 10 C.F.R. § 2.1210(d)), the Commissions rules allow the filing of an application to stay its effectiveness within five days 3

after issuance. 10 C.F.R. § 2.1213(a). In addition, under the NRCs internal procedures, the NRC Staff is required to notify the Commission before issuing the renewed license,1 so the Commission will have the opportunity in any event to provide any instructions that it deems appropriate before the renewed license is issued.

Nor is there any relationship between the contentions before the Board and the issues that the Commonwealth is asking the Commission to consider. As the Motion indicates, the Commonwealth is requesting that the Commission suspend the Pilgrim licensing proceeding pending consideration of information regarding the risks associated with the spent fuel pool at Pilgrim and related issues. . . . Motion at 2. Likewise, the Commonwealths filing with the Commission focuses on spent fuel pool fires.2 As both the Licensing Board and the Commission have held, the issue of spent fuel pool accident risk is a Category 1 issue addressed generically by the NRCs rules and thus not subject to challenge in this proceeding.3 Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257, 288-300 (2006),

affd, CLI-07-3, 65 N.R.C. 13, 19-21, reconsideration denied, CLI-07-13, 65 N.R.C. 211 (2007),

affd sub nom., Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008); Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 N.R.C. __, slip op. at 29-37 1

Staff Requirements - COMSECY-05-0025, Renewal of Full-Power Operating License for Arkansas Nuclear One, Unit 2 (July 25, 2005) (ADAMS Accession No. ML052060234).

2 Commonwealth of Massachusetts Response to Commissions Order Regarding Lessons Learned from the Fukushima Daiichi Nuclear Power Station Accident, Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant, and Request for Additional Relief (May 2, 2011)

(Commonwealth Response).

3 Because spent fuel pool risk is addressed by a generic finding codified in the NRC rules, the Commission previously and appropriately addressed the Commonwealths concerns with this finding through a decision on a rulemaking petition. The Attorney General of Commonwealth of Massachusetts; the Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204, 46,207 (Aug. 8, 2008). Repeating claims that it made unsuccessfully upon judicial review, the Commonwealth now characterizes the Commissions decision as incorrect, improperly relying on mitigation measures, and giving undue weight to the agencys flawed secret studies (Commonwealth Response at 3). This characterization is inappropriate because the Commissions decision was upheld upon judicial review. New York v. NRC, 589 F.3d 551 (2d Cir. 2009) (per curiam).

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(June 17, 2010). This issue is not part of the remanded Contention 3. Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. __, slip op. at 30 (Mar.

26, 2010), reconsideration denied, CLI-10-15, 72 N.R.C.__, slip op. at 3 (June 17, 2010).

In addition, the Commonwealth has not elected to participate in any manner in the litigation of the remanded Contention 3 issues, or with respect to any of Pilgrim Watchs requests to admit new contentions. Indeed, when the Commonwealth provided notice of its intent to participate as an Interested State in this proceeding in 2008, the Commonwealth made it clear that it had no interest in participating with respect to any matter unrelated to its spent fuel pool accident contention. See Commonwealth of Massachusetts Notice of Intent to Participate as an Interested State (May 6, 2008). Entergy submits that it is inappropriate for the Commonwealth to be seeking to delay the Boards decision on matters on which the Commonwealth declined to participate.

Finally, allowing the Commonwealth to circumvent the procedures in 10 C.F.R. § 2.1213 is inappropriate. 10 C.F.R. § 2.1213(a) establishes the appropriate timing for seeking a stay and 10 C.F.R. § 2.1213(d) establishes the standards that must be met, including consideration of whether granting a stay would harm Entergy.4 The open-ended housekeeping stay that the Commonwealth seeks, which would unnecessarily delay a decision on contested issues unrelated 4

As Entergy has previously explained in this proceeding, including in its response to the Petition:

[C]ontinued delay in the completion of the proceeding is injurious to Entergy. Apart from the significant financial costs (not only the litigation costs, but significant monthly capital carry costs), the uncertainty about whether Entergys renewal application will be granted makes business and investment decisions extremely difficult. Pilgrims operating license expires in June 2012, which at this juncture makes it unclear whether Entergy should be investing in plant improvements to support extended operation. The uncertainty also makes decisions on fuel procurement very difficult and is an impediment to Entergys ability to enter into contracts for the sale of the plants power beyond its current expiration date. Finally, the uncertainty is unfair to plant employees, who are left to guess at the prospects for continued employment beyond the immediate future.

Entergys Answer Opposing Petition to Suspend Pending Licensing Proceedings (May 2, 2011) at 16-17.

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to the Commonwealths concerns, simply ignores these provisions of the NRC rules.

Consequently, the Motion should not be entertained.

For all of the above-stated reasons, the Commonwealths Motion should be denied.

Respectfully Submitted,

/Signed electronically by/

David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy Dated: May 12, 2011 6

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 Opposing Commonwealths Motion to Hold Licensing Decision in Abeyance, dated May 12, 2011, was provided to the Electronic Information Exchange for service on the individuals below, this 12th day of May, 2011.

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 Administrative Judge Ann Marshall Young, Esq., Chair Dr. Richard F. Cole 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 amy@nrc.gov rfc1@nrc.gov Administrative Judge Atomic Safety and Licensing Board Paul B. Abramson 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 pba@nrc.gov

Ms. Mary Lampert Susan L. Uttal, Esq.

148 Washington Street Andrea Z. Jones, Esq.

Duxbury, MA 02332 Brian Harris, Esq.

mary.lampert@comcast.net Beth Mizuno, Esq.

Office of the General Counsel Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan.Uttal@nrc.gov; andrea.jones@nrc.gov; brian.harris@nrc.gov; beth.mizuno@nrc.gov Matthew Brock, Assistant Attorney General Sheila Slocum Hollis, Esq.

Commonwealth of Massachusetts Duane Morris LLP Office of the Attorney General 505 9th Street, NW One Ashburton Place Suite 1000 Boston, MA 02108 Washington, DC 20006 Martha.Coakley@state.ma.us sshollis@duanemorris.com Matthew.Brock@state.ma.us Mr. Mark D. Sylvia Chief Kevin M. Nord Town Manager Fire Chief and Director, Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St. 688 Tremont Street Plymouth, MA 02360 P.O. Box 2824 msylvia@townhall.plymouth.ma.us Duxbury, MA 02331 nord@town.duxbury.ma.us Richard R. MacDonald Katherine Tucker, Esq.

Town Manager Law Clerk, 878 Tremont Street Atomic Safety and Licensing Board Panel Duxbury, MA 02332 Mail Stop T3-E2a macdonald@town.duxbury.ma.us U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Katie.Tucker@nrc.gov

[Signed electronically by]

David R. Lewis 8