ML083640198

2008/12/11-Entergy's Answer to Commonwealth of Massachusetts Petition for Review of LBP-08-25 and Request for Consolidated Ruling

ML083640198
Person / Time
Site:	Vermont Yankee
Issue date:	12/11/2008
From:	Travieso-Diaz M Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, LBP-08-25, RAS M-372
Download: ML083640198 (8)

Text

DOCKETED A, h('"" 3 7..-USNRC December 11, 2008 (2:46pm)OFFICE OF SECRETARY RULEMAKINGS AND December 11, 2008 ADJUDICATIONS STAFF UNITED STATES ,OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ))Entergy Nuclear Generation Company and )Entergy Nuclear Operations, Inc ) Docket No. 50-271 -LR ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) ))ENTERGY'S ANSWER TO COMMONWEALTH OF MASSACHUSETTS PETITION FOR REVIEW OF LBP-08-25 AND REQUEST FOR CONSOLIDATED RULING I. INTRODUCTION Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.(collectively, "Entergy")

hereby answer and oppose the Commonwealth of Massachusetts

("Commonwealth")

Petition for Review of LBP-08-25 and Request for Consolidated Ruling (Dec. 2, 2008) ("Vermont Yankee Petition").

Procedurally, Entergy does not oppose the Commonwealth's request that the Vermont Yankee Petition be consolidated with its earlier November 12, 2008 Petition for Review of LBP-08-22 regarding the Pilgrim Nuclear Power Station license renewal proceeding,'

which the Commonwealth adopts and incorporates by reference in support of its Vermont Yankee Petition.Vermont Yankee Petition at 2 n.3 & 3. Substantively, Entergy submits that the Vermont Yankee Petition should be denied for the same reasons stated in Entergy's Answer to the Pilgrim Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Commonwealth of Massachusetts Petition for Review of LBP-08-22 (Nov. 12, 2008) ("Pilgrim Petition").

ow Petition, which is incorporated by reference herein.- The Vermont Yankee Petition is not a proper appeal of the Atomic Safety and Licensing Board's ("Board")

Partial Initial Decision in.this proceeding.

3 It merely seeks a stay of the renewal of the Vermont Yankee Nuclear Power Station ("VY") license without making any attempt to meet the standards for a stay prescribed by the NRC rules.II. STATEMENT OF FACTS This proceeding involves Entergy's application to renew the operating license for VY..The Commonwealth petitioned to intervene in the proceeding on May 26, 2006, and requested a hearing on a single contention alleging the need for the Environmental Report to address the environmental impacts of spent fuel pool accidents because of information alleged to be new and significant.

4 Shortly thereafter, the Commonwealth submitted a Petition for Rulemaking to the Commission requesting that the Commission amend 10 C.F.R. Part 51 based on the same allegedly new and significant information.

5 On September 22, 2006, the Board denied the Commonwealth's hearing request as a challenge to a generic Category 1 determination codified in the NRC rules, which is impermissible absent a waiver. LBP-06-20, 64 N.R.C. 131, 209 (2006).2 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy's Answer to Commonwealth of Massachusetts Petition for Review of LBP-08-22 (Nov. 12, 2008)("Answer to Pilgrim Petition").

3 Partial Initial Decision (Ruling on Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC _ (Nov. 24, 2008)("LBP-08-25").

4 Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations, Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006) ("Petition").

5 Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (Aug. 25, 2006). See also 71 Fed. Reg. 64,169 (Nov. 1, 2006).2 7W On appeal by the Commonwealth, the Commission affirmed the Board's ruling. CLI-07-3, 65 N.R.C. 13 (2007). The Commission found that the Commonwealth had not presented grounds for a waiver, but instead sought to raise generic concerns that were more appropriately addressed through the Commonwealth's rulemaking petition.

Id. at 20. The Commission also denied a request in the Commonwealth's rulemaking petition to defer any decision in the Vermont Yankee license renewal proceeding until completion of the rulemaking.

Id. at 22 &n.37. The Commission found this request to be premature.

Id. In response to a motion by the Commonwealth for reconsideration, the Commission explained hat the Commonwealth could participate in this proceeding as an Interested State, which would enable the Commonwealth to later move to stay the license renewal proceeding if it appeared that the NRC might issue the renewed license prior to a decision on the Commonwealth's rulemaking petition.

CLI-07-13, 65 N.R.C. 211, 214-15 & n.16 (2007).On judicial review, the U.S. Court of Appeals for the First Circuit upheld the Commission's decision.

Massachusetts

v. United States, 522 F.3d 115 (1st Cir. 2008). The Court issued a brief administrative stay to permit the Commonwealth to request to participate as an Interested State in the NRC proceeding so that it could protect its interests in the manner that the Commission had prescribed.

Id. at 130 & n.9.Thereafter, the Commonwealth provided notice that it intended to participate as an Interested State, in order to "reserve[]

the right, at some future point in this proceeding, to file motions to the Commission pursuant to 10 C.F.R. § 2.802 and/or 10 C.F.R. § 2.342, to suspend or stay the proceeding or any final decision issued in the proceeding, pending adequate resolution of the Commonwealth's rulemaking petition ... ." Commonwealth of Massachusetts' 3

Notice of Intent to Participate as an Interested State (May 6, 2008) at 1. The Commonwealth stated: The Commonwealth is not requesting a stay at this time because it anticipates that such a request may be rendered unnecessary by the Commission's ruling on the rulemaking petition prior to issuing its decision on the relicensing.

Id. at 2.On August 8, 2008, the Commission denied the Commonwealth's rulemaking petition.73 Fed. Reg. 46,204 (Aug. 8, 2008). The Commonwealth is currently seeking judicial review of that decision.On November 24, 2008, the Board issued its Partial Initial Decision L BP-08-25 on the contentions of New England Coalition

("NEC"), the party whose remaining contentions were the subject of an evidentiary hearing in the proceeding.

The Commonwealth did not participate in the hearing on these contentions.

The Commonwealth now petitions the Commission for review of LBP-08-25.

The Commonwealth requests that the Commission reverse the Board's decision because the Board"failed to make the Initial Decision and the Pilgrim license extension conditioned upon, or otherwise properly structured to take account of, the Commonwealth's new and significant information regarding the risks of [Spent Fuel Pool] accidents, as~may finally be determined by the Courts." Vermont Yankee Petition at 3. The Commonwealth also demands that the Commission "correct [its] own errors and omissions for failure to ensure that the final decision in the pending Circuit Court proceeding on the NRC's Rulemaking Decision...

will be applied back to, made a condition of, or otherwise properly be taken account of, as a material part of the Pilgrim license extension process in which these issues arose." Id..4 III. ARGUMENT The Commonwealth's Vermont Yankee Petition advances the same arguments raised in its Pilgrim Petition.

Accordingly, the Commonwealth has attached its Pilgrim Petition (as well as arguments made in reply to Entergy and the NRC Staff) to the Vermont Yankee Petition and has expressly "adopt[ed]

and incorporate[d]

[those documents]

by reference

... in support of'the Vermont Yankee Petition so as "[t]o avoid duplicative argument." Vermont Yankee Petition at 2 n.3. The Commonwealth also seeks to have both petitions consolidated.

Id. at 3.Entergy does not oppose the Commonwealth's request for the petitions to be consolidated, because the Commonwealth's arguments on review are identical in the two proceedings.

Entergy hereby incorporates by reference the arguments raised in its Answer in opposition to the Pilgrim Petition.In summary, the instant Petition should be denied because it is not a proper appeal of the Board's decision.

The effect of the Commonwealth's petition for judicial review of the Commission's rulemaking decision was not an issue raised before, or decided by, the Board.Indeed, the Commonwealth did not seek any stay of the Board's decision, and therefore has no grounds to challenge the Board's alleged failure to condition or stay its decision.

Moreover, the Commonwealth does not challenge any portion of LBP-08-25 resolving the litigated contentions, nor otherwise identifies any error in that decision.

Because the Commonwealth did not participate in the litigation of those contentions, it has no right to appeal the Board's decision with respect to them.There is also no basis for the Commonwealth's request that the Commission review and/or correct its own alleged errors and omissions.

The Commonwealth has already appealed 5 the Commission's ruling on its contention, and those rulings were upheld by the First Circuit. In sum, the Vermont Yankee Petition raises no grounds for review of LBP-08-25.

Rather, the Commonwealth's Petition is in effect a request that the Commission stay the VY proceeding pending judicial review of the Commission's rulemaking decision.

But the Commonwealth has neither moved for a stay, nor addressed the standards in 10 C.F.R. § 2.342(e)for issuance of a stay, and should not be permitted to circumvent these requirements by characterizing its requests as an "appeal." IV. CONCLUSION For all of the foregoing reasons and those set forth in Entergy's Answer to Pilgrim Petition, the Commonwealth's Vermont Yankee Petition should be denied.Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz Blake J. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy Dated: December 11, 2008 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)))))))Docket No. 50-271-LR ASLBP No. 06-849-03-LR

.CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Entergy'.s Answer to Commonwealth of Massachusetts Petition for Review of LBP-08-25 and Request for Consolidated Ruling" were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 1 1 th day of December, 2008.Hon. Dale E. Klein Chairman U.S. Nuclear Regulatory Commission Mail Stop 16 C1 Washington, DC 20555 Hon. Peter B. Lyons Commissioner U.S. Nuclear Regulatory Commission Mail Stop 16 Cl Washington, DC 20555*Administrative Judge Alex S. Karlin, Esq., Chairman Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ask2Enrc.gov

• Administrative Judge Dr. William H. Reed 1819 Edgewood Lane Charlottesville, VA 22902 whrcvilleadembaromail.com Hon. Kristine L. Svinicki Commissioner U.S. Nuclear Regulatory Commission Mail Stop 16 G4 Washington, DC 20555 Hon. Gregory B. Jaczko Commissioner U.S. Nuclear Regulatory Commission Mail Stop 16 G4 Washington, DC 20555*Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 rew(ý,nrc.gov

• Secretary Att'n: Rulemakings and Adjudications Staff Mail-Stop 0-16 Cl U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 secy@(nrc.gov, hearingdocket@(nrc.gov

• Office of Commission Appellate Adjudicatioz Mail Stop 0-16 C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAmail@nrc.

gov*Lloyd Subin, Esq.*Mary Baty, Esq.* Jessica A. Bielecki, Esq.*Susan L. Uttal, Esq.Office of the General Counsel Mail Stop O-15-D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 LBS3(@nrc.gov; mcbl (1@nrc.gov; jessica.bielecki@nrc.gov; susan.uttal@nrc.gov

• Anthony Z. Roisman, Esq.National Legal Scholars Law Firm 84 East Thetford Road Lyme, NH 03768 aroisman(ah-nationallegalscholars.com I Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

• Sarah Hofmann, Esq.Director of Public Advocacy Department of Public Service 112 State Street -Drawer 20 Montpelier, VT 05620-2601 S arah.hofmanne~state.vt.us

• Raymond Shadis 37 Shadis Road PO Box 98 Edgecomb, ME 04556 shadis(dprexar.com

• Peter L. Roth, Esq.Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301 Peter.roth@doj .nh. gov*Matthew Brock, Esq.Assistant Attorney General Office of the Attorney General One Ashburton Place, 181h Floor Boston, MA 02108 Matthew.Brockgstate.ma.us

• Zachary Kahn, Esq.Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 zacharv.kahn(&nrc.

gov 14atias F. Travieso-Diaz 2