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2008/05/02-Pilgrim - NRC Staff Motion to Strike Pilgrim Watch Reply to NRC Staff Response to Pilgrim Watch'S Motion to Hold the Record Open
	ML081230584
Person / Time
Site:	Pilgrim
Issue date:	05/02/2008
From:	Sexton K; NRC/OGC
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	50-293-LR, ASLBP 06-848-02-LR
	Download: ML081230584 (8)
	v • d • e

May 2, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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 MOTION TO STRIKE PILGRIM WATCH REPLY TO NRC STAFF RESPONSE TO PILGRIM WATCH'S MOTION TO HOLD THE RECORD OPEN INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), the NRC Staff ("Staff") moves to strike "Pilgrim Watch Replies to Entergy's and NRC's Responses Opposing Pilgrim Watch's Motion

Requesting that the Record be Held Open for Sua Sponte Consideration of Cumulative Usage

Factors" ("Reply").

1 Pilgrim Watch's Reply should be stricken under one of two theories:

2 (1) the Reply is not authorized under 10 C.F.R. § 2.323(c) or, (2) it is untimely and belatedly attempts to 1 In accordance with 10 C.F.R. § 2.323(b), the St aff has attempted to c onsult with both Entergy and Pilgrim Watch to resolve the issues prior to filing this motion. Entergy suppor ts the motion. The Staff sent an e-mail and left two voicemail messages with P ilgrim Watch's representative, but received no reply prior to filing.

2 As addressed in "Staff Response in Opposition to Pilgrim Watch Motion Requesting Record Be Held Open" (Apr. 21, 2008) ("Staff Response"), "P ilgrim Watch Motion Requesting the Record be Held Open So That the Board May Address a New and Signi ficant Issue [Method to Calculate Cumulative Usage Factors (CUF)] Sua Sponte and Provide Pilgrim Watch an Opportunity for a Hearing" (Apr. 9, 2008) ("Motion") does not fall neatly into a specific category of 10 C.F.R. Part 2 motions, requests, petitions, or filings. This is clear ly evidenced by the fact that the Staff and Entergy each took two very different paths in their respective responses.

See Staff Response and "Entergy

's Response in Opposition to Pilgrim Watch Motion Requesting the Record be Held Open for Sua Sponte Consideration of Cumulative Usage Factors" (Apr. 21, 2008) ("Entergy Response"). Therefore, the Staff intends to respond to the Reply under two separate theories, bot h of which independently support striking the Reply. broaden the scope of its Motion under 10 C.F.R. § 2.309(h)(2). Accordingly, the Board should strike Pilgrim Watch's Reply.

BACKGROUND On April 9, 2008, Pilgrim Watch filed its Motion asking the Board to hold the record open

so that it may "sua sponte" "address a new and significant issue" regarding the method used to

calculate the cumulative usage factors ("CUF") for metal fatigue.

3 Pilgrim Watch's Motion quoted extensively from an April 5, 2008 article in the Brattleboro Reformer regarding metal fatigue at Vermont Yankee Nuclear Power Station ("Vermont Yankee") and concluded that

because Vermont Yankee and Pilgrim are similar r eactors, they must be experiencing similar problems.4 Pilgrim Watch ended its Motion with a series of questions.

5 On April 21, 2008, per the extension granted to the NRC Staff and Entergy at the April

10, 2008 evidentiary hearing in Plymouth, MA, the Staff and Entergy filed their Responses to the

Motion.6 On April 30, 2008, without first seeking permission from the Board or requesting an extension of time, Pilgrim Watch filed the instant Reply.

DISCUSSION I. Pilgrim Watch's Reply is Untimely and an Improper Petition to Add a New, Late-Filed Contention

A. Pilgrim Watch's Reply is Untimely Under 10 C.F.R. § 2.309(h)(2), Pilgrim Watch would have had seven days to reply from

the date the Staff and Entergy served their Responses. Staff and Entergy filed their Responses 3 See Motion. 4 Id. at 1-2. 5 Id. at 2. 6 See Staff Response; Entergy Response. on Monday, April 21, 2008. Nine days later, two days late, and without an extension granted by the Board, 7 Pilgrim Watch filed its Reply. Thus, the Board should strike Pilgrim Watch's Reply as untimely.

8 B. Pilgrim Watch's Reply Improperly Attempts to Remedy the Insufficiency of its Motion Although Pilgrim Watch's failure to file on time provides sufficient grounds to strike its Reply, the Staff believes it is important to acknowledge Pilgrim Watch's failure to comply with

the Commission's procedural regulations. Pilgrim Watch's Reply inappropriately attempts to

bolster its insufficient initial filing by belatedly addressing the contention admissibility

requirements of 10 C.F.R. § 2.309(f)(1). In fact, Pilgrim Watch's Reply is essentially a point-by-

point breakdown of the § 2.309(f)(1) factors that should have been argued in its Motion.

9 As the Commission has repeatedly stated, "[a]ny reply should be narrowly focused on the legal or

logical arguments presented in the applicant/licensee or NRC staff answer". 69 Fed. Reg. at

2203. Further, the "contention admissibility and timeliness requirements 'demand a level of

discipline and preparedness on the part of petitioners,' who must examine the publicly available material and set forth their claims and the support for their claims at the outset."

Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004)

(quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, 7 Parties may seek a "short extension [beyond the seven day deadline] from the presiding officer" under "special circumstances." Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004).

8 It should be noted that even though Pilgrim Watch is no longer represented by counsel, "naivete as a pro se intervenor" does not excuse "simple th ings like the need for timeliness and prompt action."

See Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-14, 63 NRC 568, 580-81 (2006).

9 The Staff takes no position, for the purposes of this motion, on whether Pilgrim Watch's Reply would satisfy the legal requirement s of 10 C.F.R. § 2.309(f)(1) had the information been provided initially. Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003)). For those petitioners who fail to

provide the essential support in their petitions to intervene, the Commission clarified, saying:

What our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for contentions; such a

practice would effectively bypass and eviscerate our rules

governing timely filing, contention amendment, and submission of

late-filed contentions.

Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004). Moreover, the Board was abundantly clear regarding this issue in its Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and

Pilgrim Watch).

10 There, the Board stated that while a petitioner may amplify statements provided in an initial petition, "a petitioner that fails to satisfy the requirements of the

admissibility standards in its initial contention submission may not use its reply to rectify the inadequacies of its petition

."11 Further, while Boards often afford pro se intervenors greater latitude in drafting intervention petitions, 12 pro se intervenors are still expected to meet the clear requirements of 10 C.F.R. § 2.309(f)(1) and "some level of factual or expert support must be

furnished."

Shieldalloy Metallurgical Corp. (Licensing Amendment Request for Decommissioning of the Newfield, New Jersey Facility), LBP-07-05, 65 NRC 341, 352-53. Over

the course of several years, Pilgrim Watch has navigated numerous procedural issues and

filings, and participated in an evidentiary hearing on the merits of its admitted contention. It is 10 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 359 (2006).

11 Id. (emphasis added).

12 See PPL Susquehanna LLC (Susquehanna Electric Station, Units 1 and 2), LBP-07-10, 66 NRC 1, 21 (2007). therefore reasonable to expect full adherence to the 10 C.F.R. Part 2 rules and the

Commission's interpretation thereof at this time.

13 C. Pilgrim Watch's Reply Improperly and Belatedly Attempts to Broaden the Scope of its Motion

In addition to inappropriately attempting to provide factual support for its initial, defective Motion in its Reply, Pilgrim Watch also raised new arguments in direct contravention of the

Board's Memorandum and Order on Contentions.

14 Pilgrim Watch contends that Entergy's commitments regarding CUF calculations contained in its Safety Evaluation Report 15 do not satisfy the requirements of 10 C.F.R. 54.21(c)(1)(iii). Reply at 8-9. This argument is fatally

untimely 16 and factually incorrect.

17 Thus, Pilgrim Watch's Reply should be stricken or otherwise disregarded.

13 Unlike most cases where Boards overlook pr o se intervenors "lack of familiarity with NRC Rules of Practice and Procedure," this adjudication is almost a full two years past the initial contention admissibility stage.

See USEC Inc. (American Centrifuge Plant), LBP-05-28, 62 NRC 585, 593 n.8 (2005). 14 "a petitioner that fails to satisfy the require ments of the admissibility standards in its initial contention submission may not use its reply . . . to raise new arguments

." Pilgrim , LBP-06-23, 64 NRC at 359. 15 NUREG-1891, "Safety Evaluation Report Related to the License Renewal of Pilgrim Nuclear Power Station" (Sept. 2007, Published Nov. 2007) ("SER") at A A-13.

16 This argument is based entirely upon informat ion contained in Pilgrim's SER, which was published in November 2007. New contentions bas ed on the SER should have been filed in December 2007. See Appendix to the November 29, 2006 Order (Regarding Schedule for Proceeding and Related Matters) (the "[d]eadline for contentions based on new info rmation" is "30 days after [the] date information was received or reasonably available"). Thus, even if the argument had been raised initially in its Motion, as discussed above, it would have been untimely.

17 The Commission has directly addressed and acc epted the use of commitments to monitor, manage, and correct age-related degradation unique to license renewal. Commitments regarding aging management will be a part of the licensi ng basis during the renewal term.

See Final Rule, Nuclear Power Plant License Renewal, 56 Fed. R eg. 64,943, 64,945-6 (Dec. 13, 1991).

See also Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 F ed. Reg. 22,461, 22,473 (M ay 8, 1995); NUREG-1800, Rev. 1, "Standard Review Plan for Review of Licens e Renewal Applications for Nuclear Power Plants" ("SRP-LR"). Thus, an applicant ma y use commitments for future aging management activities for metal (continued. . .) II. Pilgrim Watch's Reply is Improper Under 10 C.F.R. § 2.323(c)

Should the Board view Pilgrim Watch's Motion as a motion to either stay the proceeding

or conduct discovery, the Reply must still be stricken. NRC regulations state that after a party

answers a moving party's motion:

[t]he moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer.

Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not

reasonably have anticipated the arguments to which it seeks leave

to reply.

10 C.F.R. § 2.323(c). Pilgrim Watch made no such arguments in its Reply and failed to seek leave of the Board prior to filing the Reply; therefore, the Board should strike the Reply.

18 CONCLUSION For the many reasons discussed above, the Staff respectfully requests that the Board strike or otherwise disregard Pilgrim Watch's Reply.

Respectfully Submitted, /RA/ Kimberly A. Sexton Counsel for the NRC Staff

Dated at Rockville, Maryland

this 2nd day of May, 2008

(. . .continued) fatigue and the Staff will clearly accept those commi tments to meet the requi rements of 10 C.F.R. § 54.21(c)(1)(iii).

18 See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-04-28, 60 NRC 412, 414 n.2 (2004).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of )

)

Entergy Nuclear Generation Co. and )

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 "NRC STAFF MOTION TO STRIKE PILGRIM WATCH REPLY TO

NRC STAFF RESPONSE TO PILGRIM WATCH'S MOTION TO HOLD THE RECORD OPEN"

in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commission's internal mail system, or, as indicated by

an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 2nd day of May, 2008.

Administrative Judge

Richard F. Cole

Atomic Safety and Licensing Board Panel

Mail Stop: T-3F23