ML11196A181
| ML11196A181 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 07/15/2011 |
| 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 20612, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11196A181 (6) | |
Text
July 15, 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 MOTION TO STRIKE PORTIONS OF PILGRIM WATCH REPLY TO ENTERGY AND THE NRC STAFF ANSWERS OPPOSING PILGRIM WATCH REQUEST FOR HEARING ON A NEW CONTENTION Pursuant to 10 C.F.R. § 2.323(a)
, Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively "Entergy") hereby move to strike portions of Pilgrim Watch Reply to Entergy's and NRC Staff's Answers to Pilgrim Watch Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima (July 5, 2011) ("Pilgrim Watch Reply" or "PW Reply").
1 The Pilgrim Watch Reply impermissibly seeks to supplement Pilgrim Watch's Request by adding new bases to the contention as initially proffered. These new items are beyond the scope of a permissible reply and are submitted without any attempt to satisfy the standards for late
-filed amendments to contentions set forth in 10 C.F.R. §§ 2.309(c) and (f)(2).
Accordingly, the Atomic Safety and Licensing Board ("Board") should strike the impermissibly new portions of the Pilgrim Watch Reply identified herein.
1 The Entergy and NRC Staff Answers were filed in response to the Pilgrim Watch Request For Hearing on A New Contention Regarding Inadequcy [sic] of Environmental Report, Post
-Fukushima (June 1, 2011) ("Pilgrim Watch Request" or "PW Request").
2 A reply is to "be narrowly focused on the legal or logical arguments presented" in the answers of the applicant and NRC Staff.
2 The Commission has squarely ruled that a reply to an answer may not be used to add new bases for or supplement an otherwise deficient contention.
Louisiana Energy Services, L.P.
(National Enrichment Facility) ("LES"), CLI 25, 60 N.R.C.
223, 22 4-25 (2004) (rejecting petitioners' "late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments" and "various new claims in support of their contentions" in their reply briefs) and CLI-04-35, 60 N.R.C. 619, 623 (2004)
("our rules do not allow . . . using reply briefs to provide, for the first time, the necessary threshold support for contentions
"); Nuclear Management Co.
(Palisades Nuclear Plant), CLI 17, 63 N.R.C. 727, 73 0-32 (2006) (affirming the Licensing Board's rejection of petitioners' untimely attempt to supplement their contention on reply)
- Amer Gen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI 7, 69 N.R.C. 235, 261 , 276 (2009) ("support for a contention must be provided when the contention is filed, not at some later date")
(footnote omitted)
. In Palisades, the Commission held that allowing new claims in a reply "would unfairly deprive other participants of an opportunity to rebut the new claims." CLI 17, 63 N.R.C. at 732. Such unfairness would result because NRC regulations do not allow the applicant or other parties to respond to a petitioner's reply. 10 C.F.R. § 2.309(h)(3).
Thus, new arguments or support for a contention "'cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2).'" Oyster Creek, CLI-09-7, 69 N.R.C. at 261 (quoting Palisades, CLI-06-17, 63 N.R.C. at 732). "There simply would be 'no end to NRC licensing proceedings if petitioners could disregard [the Commission's] timeliness
2 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (Jan. 14, 2004).
3 requirements' and add new bases or new issues that 'simply did not occur to [them] at the outset.'" LES, CLI-04-25, 60 N.R.C. at 225 (footnote omitted). Rather, under 10 C.F.R. § 2.309(f)(2), "amended or new contentions filed after the initial filing" may be submitted "only with leave of the presiding officer upon a showing that (i) the information upon which the amended or new contention is based was not previously available; (ii) the information upon which the amended or new contention is based is materially different than information previously available; and (iii) the amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information." 10 C.F.R. § 2.309(f)(2).
In this case, Pilgrim Watch's Reply goes beyond the scope of an allowable reply by making new arguments without citing or attempting to meet the requirements of 10 C.F.R. § 2.309(f)(2) or the nontimely contention requirements in 10 C.F.R. § 2.309(c). Consequently, the following new support , raised for the first time in Pilgrim Watch's Reply is impermissible and should be stricken
. First, relying on a separate filing by the Commonwealth of Massachusetts and its witness , Pilgrim Watch impermissibly seeks to add a new basis for its Request by asserting the alleged need to increase the Pilgrim baseline core damage frequency estimate by an order of magnitude based on worldwide experience of core damage events. PW Reply at 28
-29 (citing the report prepared by Dr. Thompson on behalf of the Commonwealth)
. Second, Pilgrim Watch impermissibly seeks to add another new basis for its Request by relying on a claim previously raised by Pilgrim Watch in a separate contention. The claim is that the computer code used in Pilgrim's SAMA analysis does not model radioactive releases beyond 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, allegedly 4 resulting in minimized offsite consequences. PW Reply at 29 (citing its prior contention). Neither of t h e s e new bases appear in Pilgrim Watch's Request, and Pilgrim Watch makes no showing in its Reply that these arguments meet the requirements of 10 C.F.R. § 2.309(f)(2) and 10 C.F.R. § 2.309(c). For the foregoing reasons, the Board should strike the impermissibly new claims to support Pilgrim Watch's Request raised by Pilgrim Watch for the first time in its Reply
. 3 Respectfully submitted, /Signed Electronically by Paul A. Gaukler/
_______________________________________
David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037
-1128 Tel. (202) 663
-8000 paul.gaukler@pillsburylaw.com Counsel for Entergy Dated: July 15 , 2011 3 Counsel for Entergy certifies that he has consulted with the other parties as required by 10 C.F.R. § 2.323(b). Pilgrim Watch opposes this Motion. The NRC Staff does not object to the filing of this Motion and will file a response upon reviewing the substance of the motion if necessary.
Entergy Motion To Strike Portions of PW Reply.doc 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 Enterg y Motion to Strike Portions of Pilgrim Watch Reply to Entergy and the NRC Staff Answer s Opposing Pilgrim Watch Request for Hearing on a New Contention
, dated July 15, 2011, were provided to the Electronic Information Exchange for service on the individuals below, this 15th day of Ju ly , 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 Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555
-0001 E-mail: 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 Ann.Young@nrc.gov Administrative Judge Dr. Paul B. Abramson Atomic Safety and Licensing Board Mail Stop T
-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555
-0001 Paul.Abramson@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 Richard.Cole@nrc.gov Atomic Safety and Licensing Board Mail Stop T
-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555
-0001 6 402993266v2 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 Ms. Mary Lampert 148 Washington Street Duxbury, MA 02332
mary.lampert@comcast.net 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
msy lvia@townhall.plymouth.ma.us Richard R. MacDonald Town Manager 878 Tremont Street Duxbury, MA 02332
macdonald@town.duxbury.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 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 Paul A. Gaukler/
Paul A. Gaukler