ML111320594
| ML111320594 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/12/2011 |
| From: | Gaukler P A, Lewis D R 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) ) ENTERGY'S ANSWER OPPOSI NG COMMONWEALTH'S MOTION TO HOLD LICENSING DECISION IN ABEYANCE Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively "Entergy") hereby oppose the Co mmonwealth 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 Commonwealth's request that the Atomic Sa fety and Licensing Board ("Board") hold its decision in abeyance is inconsistent with the Board's obligations under the Commission's instructions and policy, unnecessary , and inappropriate. The Motion should therefore be denied. As a threshold matter, in contested license renewal proceedings, the Commission's long-standing goal has been a heari ng 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 a nd 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:
2We remanded contention 3 to the Board in March 2010. We expect the Board to make full use of its broad au thority under our rules to establish and maintain a fair and disciplined h earing 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 Commission's 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 st ated, "applicants for a license are . . . entitled to a prompt resolution of disputes concerni ng their applications." Id.
at 19. Further, the Commission st rongly disfavors suspending or holding proceedings in abeyance while external events are being considered, because such action is fundamentally inconsistent with the Commission's responsibility to render timely decisions. Permitting unnecessary delays would contravene the Commission's fundamental duties to the general public, as well as to applicants and licensees. The Commission's objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory record that supports agency decision making on matters rela ted to the NRC's responsibilities for protecting public health and safe ty, 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 empha sis 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 re luctance [to suspend 3proceedings] is firmly grounded in our longstanding commitment to efficient and expeditious decisionmaking."). The Commonwealth's Motion provides no basis for ignoring the Commission's 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 invo lved a Commission decision to stay the effectiveness of a Licensing Board's issued decision pending Commissi on review of that decision. None of these cases i nvolved any delay in the issuance of a Licensing Board's decision - indeed, in each of these cases, the Commission's 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 Commonwealth's 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 Commonwealth's interest without delaying issuance of a decision on the matters before the Board. While a Licensing Board's decision is immediately effective (see 10 C.F.R. § 2.1210(d)), the Commission's rules allow the filing of an application to stay its effectiveness within five days 4 after issuance. 10 C.F.R. § 2.1213(a). In addition, under the NRC's internal procedures, the NRC Staff is required to notify the Commi ssion 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 rene wed 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 Commonwealth's 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 NRC's 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), aff'd , CLI-07-3, 65 N.R.C. 13, 19-21, reconsideration denied , CLI-07-13, 65 N.R.C. 211 (2007), aff'd sub nom., Massachusetts v. NRC , 522 F.3d 115 (1st Cir. 2008); Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CL I-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 Commission's 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 Commonwealth's 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 Commission's decision as incorrect, improperly relying on mitigation measures, and giving "undue weight to the agency's flawed secret studies" (Commonwealth Response at 3). This characterization is inappropriate because the Commission's decision was upheld upon judicial review. New York v. NRC, 589 F.3d 551 (2d Cir. 2009) (per curiam).
5 (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 Watch's requests to admit new contentions. Indeed, wh en 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 Board's decision on matters on which the Commonwealth declined to participate. Finally, allowing the Commonwealth to circumve nt 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 de lay a decision on contes ted 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 Entergy's renewal application will be granted makes business and investment decisions extremely difficult. Pilgrim's 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 Entergy's ability to enter into contracts for the sale of the plant's 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. Entergy's Answer Opposing Petition to Suspend Pending Licensing Proceedings (May 2, 2011) at 16-17.
6to the Commonwealth's concerns, simply ignor es these provisions of the NRC rules.
Consequently, the Motion should not be entertained.
For all of the above-stated reasons, the Commonwealth's Moti on 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 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 "Entergy's Answer Opposing Common wealth's Motion to Hold Licensing Decision in Abeyance," da ted May 12, 2011, was provided to the Electronic Information Exchange for service on the individuals below, this 12 th day of May, 2011.
Secretary Att'n: Rulemakings and Adjudications Staff
Mail Stop O-16 C1
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
hearingdocket@nrc.gov Office of Commission A ppellate Adjudication Mail Stop O-16 C1
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ocaamail@nrc.gov
Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 amy@nrc.gov Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
rfc1@nrc.gov
Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board
Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
pba@nrc.gov
Atomic Safety and Licensing Board Mail Stop T-3 F23
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 8 Ms. Mary Lampert 148 Washington Street
Duxbury, MA 02332 mary.lampert@comcast.net Susan L. Uttal, Esq.
Andrea Z. Jones, Esq.
Brian Harris, Esq.
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 Commonwealth of Massachusetts Office of the Attorney General
One Ashburton Place
Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
Sheila Slocum Hollis, Esq.
Duane Morris LLP 505 9th Street, NW
Suite 1000
Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Town Manager
Town of Plymouth
11 Lincoln St.
Plymouth, MA 02360 msylvia@townhall.plymouth.ma.us
Chief Kevin M. Nord Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street
P.O. Box 2824
Duxbury, MA 02331 nord@town.duxbury.ma.us Richard R. MacDonald
Town Manager 878 Tremont Street
Duxbury, MA 02332 macdonald@town.duxbury.ma.us Katherine Tucker, Esq.
Law Clerk, Atomic Safety and Licensing Board Panel
Mail Stop T3-E2a
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Katie.Tucker@nrc.gov
[Signed electronically by] _______________________________
David R. Lewis