ML070510132

2007/02/16-NRC Staff Answer to Massachusetts Attorney General Motion for Leave to File and Motion for Reconsideration and Clarification of CLI-07-03

ML070510132
Person / Time
Site:	Pilgrim, Vermont Yankee  File:NorthStar Vermont Yankee icon.png
Issue date:	02/16/2007
From:	Uttal S NRC/OGC
To:	NRC/OCM
S Uttal, NRC/OGC, 301-415-1582
References
50-271-LR, 50-293-LR, ASLBP 06-848-02-LR, ASLBP 06-849-03-LR, RAS 13068, RAS 13069
Download: ML070510132 (12)

Text

1 Massachusetts Attorney Generals Motion for Leave to File Motion for Reconsideration and Clarification of CLI-07-03 (February 1, 2007) (Motion for Leave); Massachusetts Attorney Generals Motion for Reconsideration and Clarification of CLI-07-03 (February 1, 2007) (Motion for Reconsideration).

2 The contentions in both cases raised identical issues.

February 16, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONIn the Matter of)

)ENTERGY NUCLEAR VERMONT YANKEE,)Docket No. 50-271 -LR LLC, and ENTERGY NUCLEAR)

OPERATIONS, INC.)

)(Vermont Yankee Nuclear Power Station))ASLBP No. 06-849-03-LRIn the Matter of)

)ENTERGY NUCLEAR GENERATION)Docket No. 50-293-LR COMPANY, and ENTERGY NUCLEAR)

OPERATIONS, INC.)

)(Pilgrim Nuclear Power Station))ASLBP No. 06-848-02-LR NRC STAFF ANSWER TO MASSACHUSETTS ATTORNEY GENERAL MOTION FOR LEAVE TO FILE and MOTION FOR RECONSIDERATION AND CLARIFICATION OF CLI-07-03 INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the Nuclear Regulatory Commission (Staff), hereby answers the Massachusetts Attorney General (MassAG) motion for leave to file a motion to reconsider and clarify CLI-07-03, and motion to reconsider and clarify CLI-07-03.

1 In CLI-07-03, the Commission affirmed the decisions of the Atomic Safety and Licensing Boards (Boards) in the above captioned matters. In each case, the respective Board had rejected the MassAGs single proposed contention that sought consideration of alleged new information regarding the environmental impacts of fires in high-density spent fuel pools.

2 The Mass AG is 3 Massachusetts Attorney Generals Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006).

4 Letter from Michael Balduzzi, Entergy Nuclear Operations, to U.S. NRC, Re: License Renewal Application, (January 25, 2006) (Agencywide Do cuments and Access Management System ("ADAMS")

Accession No. ML060300028).

5 Letter from William F. Maguire, Entergy, to the NRC Document Control Desk, "Vermont Yankee Nuclear Power Station, License No. DPR-28 (Docke t No. 50-271), License Renewal Application," dated January 25, 2006 (Agencywide Documents Access and Management System ("ADAMS")

Accession Nos. ML060300082, ML060300085, ML060300086).

requesting that the Commission reconsider its decision and confirm that: CLI-07-03 is not a final decision as to the MassAG; the MassAG still has party status in the Pilgrim and Vermont

Yankee license renewal proceedings; and the MassAG has the right to seek judicial review if

the final rulemaking related to its rulemaking petition 3 is not applied to the license renewal proceedings. Motion for Reconsideration at 3. For the reasons discussed below, the MassAGs Motion for Reconsideration should be denied, to the extent that it requests the Commission reconsider its decision. Should the Commission decide that clarification is

warranted, it should clarify that the decision is final as to the MassAG's participation in the

license renewal proceedings.

BACKGROUND These cases arise from two applications for license renewal filed pursuant to 10 C.F.R. Part 54. The first application was filed on January 25, 2006 by Entergy Nuclear Generation

Company and Entergy Nuclear Operations, Inc. (collectively, Entergy Pilgrim) to renew the

operating license for the Pilgrim Nuclear Power Station (Pilgrim) for an additional twenty-year

period.4 The second was also filed on January 25, 2006, by Entergy Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, Entergy VY) to renew the operating license for

the Vermont Yankee Nuclear Power Station ("VYNPS") for an additional twenty-year period.

5 On May 26, 2006, the MassAG filed requests for hearing and petitions to intervene in the Pilgrim 6 Massachusetts Attorney Generals Request for a Hearing and Petition to Intervene with Respect to Entergy Nuclear Operations, Inc.s Application for Renewal of the Pilgrim Nuclear Power Plant Operating License and Petition for Backfit Order Requi ring New Design Features to Protect Against Spent Fuel Pool Accidents, May 26, 2006; Massachusetts Attorney Generals 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 Operation and Petition for Backfit Order Requiring New Design

Features to Protect Against Spent Fuel Accidents, dated May 26, 2006.

7 NRC Staff Answer Opposing Massachusetts Attorney Generals Request for Hearing and Petition for Leave to Intervene and Petition for Backfit Order (June 22, 2006) (Pilgrim); Entergys Answer to the Massachusetts Attorney Generals Request for a Hearing, Petition for Leave to Intervene, and Petition for Backfit Order (June 22, 2006)(Pilgrim); NRC Staff Answer Opposing Massachusetts Attorney

General's Request for Hearing and Petition for Leave to Intervene and Petition for Backfit (June 22, 2006)(VY); Entergy's Answer to the Massachusetts Attor ney General's Request for Hearing, Petition for Leave to Intervene, and Petition for Backfit Order (June 22, 2006) (VY).

8 Massachusetts Attorney Generals Reply to Entergys and NRC Staffs Responses to Hearing Request and Petition to Intervene With Respect to Pilgrim License Renewal Proceeding (June 29, 2006); Massachusetts Attorney Generals Reply to Entergys and NRC Staffs Responses to Hearing Request and Petition to Intervene With Respect to Vermont Yankee License Renewal Proceeding (June 30, 2006).

9 Memorandum and Order (Ruling on Standing and Contentions of Petitioners MassachusettsAttorney General and Pilgrim Watch), LBP-06-23, 63 NRC __ (October 16, 2006) (Contention Order). The

Contention Order also granted the hearing request of Pilgrim Watch as to Contentions 1 and 3 which relate, respectively, to the aging management program for Pilgrim with regard to inspection for corrosion of

buried pipes and tanks and detection of leakage of radi oactive water that might result from undetected corrosion and aging; and to certain input data that Pilgrim Watch asserts should have been considered by the Applicant in its severe accident mitigation alte rnatives (SAMA) analysis. The Contention Order further denied admission of Pilgrim Watchs contentions 2, 4, and 5. On October31, 2006, Pilgrim Watch filed an (continued...)

matter, and in the VYNPS matter, proffering one virtually identical contention in each matter.

6 The Staff, Entergy Pilgrim and Entergy VY filed responses to the MassAGs Petitions.

7 On June 29, 2006 and June 30, 2006, the MassAG filed combined replies to the answers of Entergy

and the Staff.

8 Oral argument was held as to both matters on the admissibility of contentions: On July 6 and 7, 2006 in the Pilgrim matter; on August 1, 2006 in the VYNPS matter. On September 22, 2006, the Board presiding over the VYNPS matter issued LBP-06-20, in which it denied the

MassAG's hearing request, finding its sole contention inadmissible. LBP-06-20, slip op. at 23.

On October 16, 2006, the Board presiding over the Pilgrim matter issued LBP-06-23 denying

the MassAGs hearing request, 9 finding the sole contention inadmissible. LBP-06-23, 9 (...continued) appeal, under 10 C.F.R. § 2.311, requesting Commission review of the Boards decision denying admission of Contention 4.

See Pilgrim Watch Brief on Appeal of LBP-06-23, October 31, 2006.

Contention 4 is similar to the Mass AGs contention, in that they both raise issues concerning spent fuel pool accidents. Contention Order at 20-21.

10 Massachusetts Attorney Generals Notice of Appeal of LBP-06-20 and Brief on Appeal of LBP-06-20 (October 3, 2006); Massachusetts Attorney Generals Notice of Appeal of LBP-06-23 and Brief on Appeal of LBP-06-23 (October 31, 2006).slip op. at 31. On October 3, 2006, the MassAG filed a notice of appeal and supporting brief in the VYNPS matter and on October 31, filed a notice of appeal and supporting brief in the Pilgrim

matter.10 On January 22, 2007, the Commission issued CLI-07-03, denying both appeals and affirming the Board decisions denying admission of the contention. CLI-07-03, slip op. at 1.

On February 1, 2007, the MassAG filed its Motion for Leave and Motion for Reconsideration.

The Staff hereby files its answer to both motions.

DISCUSSION Legal Standards A motion for reconsideration of a Commission decision must meet the requirements of 10 C.F.R. § 2.323(e), which requires that a petition may not be filed absent leave of the

Commission and must demonstrate "compelling circumstances, such as the existence of a clear

and material error in a decision, which could not have reasonably been anticipated, that renders

the decision invalid." The standard is applied strictly and motions are not lightly granted.

Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC (2006), slip op. at 2 (November 9, 2006).

See also Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004). 11 The Commission has, in the past, on motion, clarified the terms of its orders.

See, e.g., Curators of the University of Missouri (Trump-S Project), CLI-95-8,41 NRC 386, 389-91(1995).

The MassAG's Motions In the Motion for Leave the MassAG asserts that it has met the standard for reconsideration because the motion meets the criteria of 10 C.F.R. § 2.323(e). The Staff

disagrees. The regulation requires that motions for reconsideration not be filed absent leave of

the Commission upon a showing of "compelling circumstances, such as the existence of a clear

and material error in a decision, which could not have reasonably been anticipated, that renders

the decision invalid." 10 C.F.R. § 2.323(e). Nowhere in either of her motions does the MassAG

demonstrate a clear and material error that renders the decision invalid. The motions are more

in the nature of a request for clarification, not reconsideration. While the Staff opposes the

request for reconsideration as unwarranted, if the Commission determines that clarification is

warranted, the Staff submits that the Commission should make it clear that the decision in this

matter is final as to the MassAG's participation in the Pilgrim and VYNPS license renewal

proceedings.

11 The MassAG first asserts that CLI-07-03 is unclear regarding finality for purpose of review under the Hobbs Act, 28 U.S.C. § 2342. Motion for Leave at 2; Motion for

Reconsideration at 2, 6-9. In support of this assertion, she points to two alleged indicia that the

Commission's decision is not final. First while acknowledging that the Commission did, in fact, affirm the Boards' decisions rejecting her contention, and taking final action as to the MassAG, id. at 6, she asserts that two factors create the uncertainty alleged: the Commission's statement that the merits of MassAG's contention have not been addressed (Motion for

Reconsideration at 7); and, the Commission's citation of 10 C.F.R. § 2.802 when discussing the

MassAG's request to suspend the license renewal proceedings until the rulemaking has been completed. Motion for Reconsideration at 7-8. The MassAG interprets the citation as an offer of the use of provisions of section 2.802 at a later date.

Id. at 8. The Staff does not agree with the MassAG that CLI-07-03 is unclear or ambiguous in any way. It is abundantly clear that the Commission affirmed the Boards' decisions not to admit

the contention and, without an admitted contention, the Mass AG is not a party to the renewal

proceedings. A decision denying a request for a hearing or dismissing a party's contentions is a final decision. See Environmental Law and Policy Center v. NRC , 470 F.3d 676, 681 (Cir. 2006).

As to the merits of the MassAG's contention not being addressed in the license renewal proceedings, the merits were not addressed because the subject matter of the contention was

clearly outside the scope of the proceedings. The Commission agreed with the Boards'

decision that the Turkey Point case is controlling. CLI-07-03, slip op. at 6-8.

See also Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001). The Commission, thus, affirmed the Boards' decisions holding that the

contention was inadmissible because on-site spent fuel management is a Category 1 issue

pursuant to 10 C.F.R. Part 51, Appendix B, and thus could not be addressed in the absence of

a waiver of 10 C.F.R. § 51.53(c)(3)(i). CLI-07-03, slip op. at 6-7. "[A]ny contention on a

"category one" issue amounts to a challenge to our regulation that bars challenges to generic

environmental findings."

Id. at 7. The fact that the merits of the contention were not addressed puts this case in the same posture as any case where a contention has been deemed

inadmissible. If a contention is deemed to be inadmissible at this stage, there is no merits

decision. Thus, the MassAG's claim that the lack of a decision on the merits somehow creates

confusion as to finality is baseless. The second prong of the MassAG's argument is that the Commission's discussion in footnote 37 of CLI-07-03 is somehow an offer of a future remedy. Motion to Reconsider at 7-8.

In that footnote, the Commission discussed the MassAG's rulemaking petition and the request

therein to suspend the renewal proceedings until resolution of the rulemaking. CLI-07-03, slip op. at 9, n. 37. The Staff submits that the Commission, in citing to section 2.802, was

merely reciting relevant provisions of the regulation, which provides that such a request may be

made in a rulemaking petition by a party to a lic ensing proceeding, in order to provide a context for the MassAG's request. The Commission was, in the Staff's view, merely pointing out the

regulation under which the MassAG claimed the right to make the request to suspend the

renewal proceedings, not offering an opportunity to participate in proceedings in which the

MassAG participation has been denied.

Because the Mass AG's request that the Commission reconsider its decision and clarify that it is not final does not "demonstrate a compelling circumstance, such as the existence of a

clear and material error in a decision, which could not have been reasonably anticipated, which

renders the decision invalid" and because it has no basis in law or fact, it should be denied. CONCLUSION For the foregoing reasons, the MassAG's Motion for Leave and Motion for Reconsideration should be denied. The Staff does not object to the motion, in so far as it

requests clarification. If the Commission grants the Motion for Leave as to the request for

clarification, the Staff respectfully requests that the Commission clarify that CLI-07-03 is a final

decision.Respectfully submitted,/RA/Susan L. Uttal Counsel for the NRC Staff

/RA/Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of February, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONIn the Matter of)

)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 the "NRC STAFF ANSWER TO MASSACHUSETTS ATTORNEY

GENERAL MOTION FOR LEAVE TO FILE and MOTION FOR RECONSIDERATION AND

CLARIFICATION OF CLI-07-03" in the above-captioned proceeding have been served on the

following by electronic mail and deposit in the U.S. Mail Service or by deposit in the U.S.

Nuclear Regulatory Commission's internal mail system as indicated by a single asterisk(*), or by

deposit in the U.S. mail system, as indicated by a double asterisk (**) this 16 th day of February, 2007.

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: rfc1@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: amy@nrc.gov Sheila Slocum Hollis**

Duane Morris LLP

1667 K Street, NW, Suite 700

Washington, DC 20006

E-mail: sshollis@duanemorris.com 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: pba@nrc.gov Office of Commission Appellate

• Adjudication

Mail Stop: O-16C1

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: OCAAMail@nrc.gov Office of the Secretary*

Attn: Rulemaking and Adjudications Staff

Mail Stop: O-16C1

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board*

Mail Stop: T-3 F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001 Molly H. Bartlett, Esq.**

52 Crooked Lane

Duxbury, MA 02332

E-mail: mollyhbartlett@hotmail.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 Fax: 781-934-6530 Diane Curran, Esq.**

Harmon, Curran, Spielberg

& Eisenberg, L.L.P.

1726 M Street, NW., Suite 600

Washington, DC 20036

E-mail: dcurran@harmoncurran.com Terence A. Burke, Esq.**

Entergy Nuclear

1340 Echelon Parkway

Mail Stop: M-ECH-62

Jackson, MS 39213 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 Town Manager**

Town of Plymouth

11 Lincoln St.

Plymouth, MA 02360

E-mail: msylvia@townhall.plymouth.ma.us Matthew Brock, Esq.**

Assistant Attorney General

Office of the Massachusetts Attorney

General Environmental Protection Division

One Ashburton Place, Room 1813

Boston, MA 02108-1598

E-mail: matthew.brock@ago.state.ma.us

/RA/

Susan L. Uttal Counsel for the NRC Staff UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONIn the Matter of)

)ENTERGY NUCLEAR VERMONT YANKEE,)Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR)

OPERATIONS, INC.)ASLBP No. 06-849-03-LR

)(Vermont Yankee Nuclear Power Station))

CERTIFICATE OF SERVICE I hereby certify that copies of the "NRC STAFF ANSWER TO MASSACHUSETTS ATTORNEY GENERAL MOTION FOR LEAVE TO FILE and MOTION FOR RECONSIDERATION AND

CLARIFICATION OF CLI-07-03" in the above-captioned proceeding have been served on the

following by electronic mail and deposit in the U.S. Mail Service or by deposit in the U.S.

Nuclear Regulatory Commission's internal mail system as indicated by a single asterisk(*), or by

deposit in the U.S. mail system, as indicated by a double asterisk (**) this 16 th day of February, 2007.

Administrative Judge Alex S. Karlin, Chair

Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: ask2@nrc.gov Administrative Judge Thomas S. Elleman*

Atomic Safety and Licensing Board Panel

5207 Creedmoor Road, #101

Raleigh, NC 27612

E-mail: elleman@eos.ncsu.edu Office of Commission Appellate Adjudication

Mail Stop: O-16C1

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: OCAAmail@nrc.gov Administrative Judge Richard E. Wardwell

Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: rew@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff

Mail Stop: O-16C1

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: hearingdocket@nrc.gov Sarah Hofmann, Esq.*

Special Counsel

Department of Public Service

112 State Street - Drawer 20

Montpelier, VT 05620-2601

E-mail: sarah.hofmann@state.vt.us Diane Curran, Esq.*

Harmon, Curran, Spielberg

& Eisenberg, L.L.P.

1726 M Street, NW., Suite 600

Washington, DC 20036

E-mail: dcurran@harmoncurran.com Ronald A. Shems, Esq.*

Karen Tyler, Esq.*

Shems Dunkiel Kassel & Saunders, PLLC

91 College Street

Burlington, VT 05401

E-mail: rshems@sdkslaw.com

Ktyler@sdkslaw.com Marcia Carpentier, Esq.

Atomic Safety and Licensing Board Panel

Mail Stop: T-3F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: mxc7@nrc.gov Jennifer J. Patterson*

Senior Assistant Attorney General

Environmental Protection Bureau

Office of the Attorney General

33 Capitol Street

Concord, New Hampshire 03301

E-mail: jennifer.patterson@doj.nh.gov Anthony Z Roisman, Esq.*

National Legal Scholars Law Firm

84 East Thetford Rd.

Lyme, NH 03768

E-mail: aroisman@nationallegalscholars.com Matthew Brock, Esq.*

Assistant Attorney General

Office of the Massachusetts Attorney

General Environmental Protection Division

One Ashburton Place, Room 1813

Boston, MA 02108-1598

E-mail: matthew.brock@ago.state.ma.us David R. Lewis, Esq.*

Matias F. Travieso-Diaz*

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, NW

Washington, DC 20037-1128

E-mail: david.lewis@pillsburylaw.com

matias.travieso-diaz@pillsburylaw.com

/RA/

Steven C. Hamrick Counsel for the NRC Staff