ML11300A141
| ML11300A141 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 10/27/2011 |
| From: | Harris B NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 21304, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11300A141 (8) | |
Text
October 27, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION In the Matter of )
)
Entergy Nuclear Generation Co. and )
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR ) ) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station) )
NRC STAFF'S ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS' MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSION'S DECISION ON PILGRIM WATCH'S APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff ("Staff") hereby files its answer in opposition to Commonwealth of Massachusetts' ("Massachusetts") motion to file a reply ("Reply Motion") to the Staff's response to Massachusetts' motion to stay the Commission's decision on Pilgrim Watch's request for review of the Atomic Safety and Licensing Board's ("Board")
decision denying admission of two post-Fukushima contentions.
1 As discussed more fully below, the Reply Motion does not demonstrate the "compelling circumstances" needed to justify a reply under the Commission's regulations. 10 C.F.R.
§ 2.323(c). Therefore, the Reply Motion should be denied.
1 Commonwealth of Massachusetts' Motion to Reply to NRC Staff Answer to Massachusetts' Request to Stay Commission Decision on Pilgrim Watch Appeal or in the Alternative to Strike Reference to Massachusetts' Expert, October 17, 2011("Reply Motion"); NRC Staff 's Answer to Commonwealth of Massachusetts' Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts' Expert, October 11, 2011 ("Staff Answer").
PROCEDURAL HISTORY The history of this proceeding is discussed in the Staff's Answer and will not be repeated in its entirety herein. Rather, in brief, we focus on the most recent submissions to the Commission. On September 23, 2011, Pilgrim Watch ("PW") filed a petition for review of the Board's denial of the admission of two contentions relating to the Fukushima accident.
2 On September 28, 2011, Massachusetts filed an answer to the petition which also requested that the Commission stay its decision on PW's petition.
3 Thereafter, the Staff filed its Answer. On October 17, 2011 Massachusetts filed its Reply Motion, accompanied by an unauthorized reply.
4 The Staff now files this answer in opposition to the Reply Motion. LEGAL STANDARDS FOR MOTIONS TO PERMIT A REPLY Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted "only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply" (emphasis added).
5 2 Pilgrim Watch's Petition for Review of Memorandum and Order (Denying Pilgrim Watch's Requests for Hearing on New Contentions Relating to Fukushima Accident, September
23, 2011.
3 Commonwealth of Massachusetts Answer to Pilgrim Watch Petition for Review, Request to Stay Commission Decision or in the Alternative to Strike reference to Massachusetts' Expert, September 28, 2011 ("Massachusetts' Stay Motion").
4 Commonwealth of Massachusetts Reply to NRC Staff Answer to Massachusetts' Request to Stay Commission Decision or in the Alternative to Strike Reference to Massachusetts' Expert, October 17, 2011 ("Proposed Reply").
5 The regulation that governs stay motions, 10 C.F.R. § 2.342, states, in subsection (d), that (continued. . .) Massachusetts asserts, in cursory fashion, that it could not have reasonably anticipated that the Staff would cite law in opposition to the stay "that is not referenced in [Massachusetts' Stay Motion]" and is not applicable to the relief being requested. Reply Motion at 1.
Massachusetts also asserts that the Staff makes impermissible comments relating to the merits of its contention filing. Id. Massachusetts fails to demonstrate that the reasons cited are compelling circumstances.
DISCUSSION Massachusetts advances two reasons why the Commission should consider its proposed reply, but does not demonstrate the compelling circumstances envisioned by the regulation. Massachusetts states that it "could not have reasonably anticipated" that the Staff would cite law not discussed in Massachusetts' Stay Motion. Reply Motion at 1. But, Massachusetts should have anticipated the arguments to which it now seeks leave to reply. Massachusetts had an unfettered opportunity to ra ise every relevant argument in support of its Motion to Stay in the first instance. It also had an obligation to make certain that its Motion requested appropriate relief, was appropriately titled, and was "supported by appropriate and accurate references to legal authority and factual basis." 10 C.F.R. § 2.323(d). It was Massachusetts that chose to designate its motion as a Motion for a Stay. Massachusetts failed to cite the regulation under which it's Motion was filed, thus compelling the Staff to demonstrate to the Commission that the Motion was not a stay motion, but rather a motion to hold the
(. . .continued) "replies to answers will not be entertained." Section 2.342(d) does not provide for a "compelling circumstances" exception to the no reply rule.
Commission's action on PW's Appeal in abeyance. Furthermore, the Staff demonstrated that if Massachusetts intended their Motion to be a stay motion, it did not meet the criteria for a stay.
6 Staff Answer at 2, 6-8. There is no injustice in denying Massachusetts' request to make
arguments emanating from weaknesses in its original pleading. Massachusetts should have anticipated that the Staff would respond to these weaknesses. The second reason given by Massachusetts, that the Staff impermissibly commented on the merits of the contention filings, is also not a compelling reason which would allow for a reply. Reply Motion at 1. In fact, Massachusetts provides no authority to support its assertion that the Staff's comment would give rise to a right to reply. Nor does Massachusetts point to the alleged offending language in the Staff's Answer. In fact, the Staff's statement was not a comment on the merits. The Staff's Answer made two arguments. First, that the Massachusetts Stay Motion was not a motion to stay, but, in fact, a motion to hold the Commission's action in abeyance, which did not meet the factors required by the Commission.
7 Second, if the Motion was, as presented, a motion for a stay under 10 C.F.R. § 2.343, it did not meet the criteria of that regulation. In discussing the criteria for a stay in 10 C.F.R. § 2.343(e)(1), the Staff stated that Massachusetts had not demonstrated the likelihood that it would prevail before the Board. Staff 6 In addition, if the motion was a stay motion, Massachusetts' Reply would not be entertained pursuant to 10 C.F.R. § 2.342(d).
7 Staff's Answer at 8-9, citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380-83 (2001) (the factors are: 1) whether the issue presented must be addressed immediately; 2) how abeyance will affect expeditious decision making; and 3) whether the abeyance request is narrowly tailored so as to promote adjudicatory efficiency).
Answer at 7, n. 27. However, that statement was made in the context of discussing the regulatory requirements for a stay, and not in the context of discussing the merits of Massachusetts' contention. Therefore, Massachusetts' second reason has no basis. The bare bones statement in the Reply Motion does not demonstrate compelling circumstances. Massachusetts kept its Reply Motion relatively brief, providing only a one sentence argument regarding the Staff's Answer. This argument is built upon the Proposed Reply, which Massachusetts appended to its as-yet-ungranted Reply Motion. In the Staff's view, Massachusetts' cursory Reply Motion invites the Commission to read the Proposed Reply in order to decide whether to allow it, effectively defeating the regulatory presumption against allowing such replies and the requirement that parties file them with "permission." 10 C.F.R. § 2.323(c). Absent such permission, the Proposed Reply should effectively be viewed as though it does not exist, and so should not be relied upon. Therefore, Massachusetts has not met the requirement to demonstrate why it could not have reasonably anticipated that the Staff would respond by pointing out that Massachusetts' Stay Motion was not, in fact, a stay motion as designated and that, had it been a stay motion, it would not meet the regulatory criteria in 10 C.F.R. § 2.323. Thus, the Reply Motion does not demonstrate that compelling circumstances that warrant a reply brief.
CONCLUSION As demonstrated above, Massachusetts' request to file a reply should be denied.
Respectfully submitted, /Signed Electronically By/
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O15-D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail:
Brian.Harris@nrc.gov
Dated at Rockville, Maryland
this 27 th day of October, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
In the Matter of )
ENTERGY NUCLEAR GENERATION CO. and ) ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) )
) CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER IN OPPOSITION TO COMMONWEALTH OF MASSACHUSETTS MOTION TO REPLY TO STAFF RESPONSE TO MOTION TO STAY COMMISSION'S DECISION ON PILGRIM WATCH'S APPEAL OF BOARD DECISION DENYING ADMISSION OF POST-FUKUSHIMA CONTENTIONS" has been served upon the following by the Electronic Informat ion Exchange, this 27th day of October, 2011:
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: Richard.Cole@nrc.gov 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: Paul.Abramson@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: Ann.Young@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (VIA INTERNAL MAIL ONLY) Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis Duane Morris LLP 505 9 th St., NW, Suite 1000 Washington, DC 20004
E-mail: sshollis@duanemorris.com Terence A. Burke, Esq. Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213
E-mail: tburke@entergy.com Mary Lampert 148 Washington Street
Duxbury, MA 02332
E- mail: mary.lampert@comcast.net 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 Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street
Duxbury, MA 02332
E-mail: nord@town.duxbury.ma.us Town Manager Town of Plymouth 11 Lincoln St. Plymouth, MA 02360
E-mail: marrighi@townhall.plymouth.ma.us Richard R. MacDonald Town Manager 878 Tremont Street
Duxbury, MA 02332 E-mail: macdonald@town.duxbury.ma.us Matthew Brock Assistant Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us
/Signed Electronically By/
Brian G. Harris Counsel for the NRC Staff
.