ML073270380

Pilgrim - NRC Staff Answer to Pilgrim Watch'S Petition for Interlocutory Review of LBP-07-13

ML073270380
Person / Time
Site:	Pilgrim
Issue date:	11/21/2007
From:	Sexton K NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-293-LR, ASLBP 06-848-02-LR, LBP-07-13, RAS 14675
Download: ML073270380 (23)

Text

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 ANSWER TO PILGRIM WATCHS PETITION FOR INTERLOCUTORY REVIEW OF LBP-07-13 Kimberly A. Sexton Counsel for NRC Staff November 21, 2007

TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. Applicable Legal Standards for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Pilgrim Watch is Not Entitled to Commission Review Under 10 C.F.R. § 2.341(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Pilgrim Watch is Not Entitled to Interlocutory Review Under § 2.341(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 7 II. Pilgrim Watch Has Not Met the Standards of 10 C.F.R. § 2.341(f). . . . . . . . . . . . . . . . . 9 A. Pilgrim Watch Has Not Been Threatened with Immediate and Serious Irreparable Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Pilgrim Watch Has Not Shown That the Dismissal of Contention 3 Affects the Basic Structure of the Proceeding in a Pervasive or Unusual Manner . . . . . . . 10 III. The Board Did Not Err in Granting Summary Disposition of Contention 3. . . . . . . . . . .13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

-ii-TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Commission:

Andrew Siemaszko, CLI-06-12, 63 NRC 495 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Connecticut Yankee Atomic Power Co. (Haddam Neck Plant),

CLI-01-25, 54 NRC 368 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 9,11 Dr. James E. Bauer (Order Prohibiting Involvement in NRC Licensed Activities),

CLI-95-3, 41 NRC 245 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station),

CLI-07-1, 65 NRC 1 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2),

CLI-94-5, 39 NRC 190 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Paina Hawaii, L.L.C., CLI-06-18, 64 NRC 1 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility),

CLI-98-7, 47 NRC 307 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility),

CLI-00-2, 51 NRC 77 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility),

CLI-01-1, 53 NRC 1 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station),

CLI-94-2, 39 NRC 91 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site),

CLI-94-11, 40 NRC 55 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning),

CLI-01-02, 53 NRC 9 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006) . . . . . . . . . . . . . . . . .11

- iii -

Atomic Safety and Licensing Appeal Board:

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2),

ALAB-675, 15 NRC 1105 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),

ALAB-807, 21 NRC 1195 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2),

ALAB-641, 13 NRC 550 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-731, 17 NRC 1073 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9, 11 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-838, 23 NRC 585 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2),

ALAB-741, 18 NRC 371 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Atomic Safety and Licensing Board:

Advanced Medical Systems (One Factory Row, Geneva, Ohio 44041),

LBP-91-9, 33 NRC 212 (1991), affd CLI-93-22, 38 NRC 98 (1993) . . . . . . . . . . . . . . . . . . . . .15 Entergy Nuclear Generation Co. and Entergy Nuclear Operations Inc.

(Pilgrim Nuclear Power Station),

LBP-06-23, 65 NRC 257 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 3, 13, 14, 15 Entergy Nuclear Generation Co. and Entergy Nuclear Operations Inc.

(Pilgrim Nuclear Power Station),

LBP-07-13, 66 NRC ___ (Oct. 30, 2007) (slip op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2),

LBP-83-32A, 17 NRC 1170 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 REGULATIONS 10 C.F.R. § 2.341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 7 10 C.F.R. § 2.341(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 10 C.F.R. § 2.341(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 10 C.F.R. § 2.341(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 10 C.F.R. § 2.341(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

- iv -

10 C.F.R. § 2.341(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6, 9 10 C.F.R. § 2.341(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 10 C.F.R. § 2.341(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 7, 11 10 C.F.R. § 2.341(f)(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. § 2.341(f)(2)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 10 C.F.R. § 2.710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 10 C.F.R. § 2.710(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

November 21, 2007 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 ANSWER TO PILGRIM WATCHS PETITION FOR INTERLOCUTORY REVIEW OF LBP-07-13 INTRODUCTION Pursuant to 10 C.F.R. §§ 2.341(b)(3) and 2.341(f)(2), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Pilgrim Watchs petition for interlocutory review of LBP-07-13.1 For the reasons set forth herein, the Staff submits the Petition should be denied, on the grounds that the Licensing Boards Memorandum and Order from which Pilgrim Watch seeks review is interlocutory in nature, and Pilgrim Watch has not met the criteria for interlocutory review.

BACKGROUND This matter arises from an application, filed by Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (collectively, Entergy) on January 25, 2006, to renew the 1

Pilgrim Watch Brief on Appeal of LBP-07-13 Memorandum and Order (Ruling of Motion to Discuss Petitioners Contention 3 Regarding Severe Accident Mitigation Alternatives) (November 13, 2007) (Petition).

operating license for the Pilgrim Nuclear Power Station (Pilgrim) for an additional twenty-year period.2 On May 25, 2006, Pilgrim Watch filed a petition to intervene in this matter.3 Pilgrim Watch submitted five contentions for consideration by the Atomic Safety and Licensing Board (Board). On October 16, 2006, the Board admitted two of those contentions.4 As admitted Pilgrim Watch Contention 1 reads:

The Aging Management Program proposed in the Pilgrim Application for license renewal is inadequate with regard to aging management of buried pipes and tanks that contain radioactively contaminated water, because it does not provide for monitoring wells that would detect leakage.5 Entergy filed a summary disposition motion asserting that, as to the issues raised in Contention 1, there are no material facts in issue and, thus, Entergy is entitled to a decision as a matter of law.6 On October 17, 2007, the Board issued a Memorandum and Order denying Entergys motion.7 A hearing on Contention 1 is scheduled for February 26, 2008.

In the Boards Memorandum and Order on Contentions, the Board also admitted a 2

See Letter from Michael Balduzzi, Entergy Nuclear Operations, to U.S. NRC, Re: License Renewal Application, (January 25, 2006) (Agencywide Documents and Access Management System (ADAMS) Accession No. ML060300028).

3 Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006) (Petition to Intervene).

4 Entergy Nuclear Generation Co. and Entergy Nuclear Operations Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 65 NRC 257 (2006) (Memorandum and Order on Contentions).

5 Id. at 315.

6 Entergys Motion for Summary Disposition of Pilgrim Watch Contention 1 (June 8, 2007).

7 Memorandum and Order (Ruling on Entergys Motion for Summary Disposition of Pilgrim Watch Contention 1, Regarding Adequacy of Aging Management Program for Buried Pipes and Tanks and Potential Need for Monitoring Wells to Supplement Program), LBP-07-12, 66 NRC ___ (Oct. 17, 2007) (slip op.).

limited version of Pilgrim Watchs Contention 3, which reads:

Applicants SAMA analysis for the Pilgrim plant is deficient in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.8 On May 18, 2007, Entergy filed a motion for summary disposition of Pilgrim Watchs Contention 3.9 On October 30, 2007, the Board issued a Memorandum and Order granting Entergys motion.10 It found insufficient evidence to suggest that a trier of fact might, under any circumstances, find for Pilgrim Watch on any of the challenges in its admitted contention.11 The Board stated:

(1) the evidence is not susceptible to different interpretations or inferences that would support a finding that any particular SAMA could become cost effective; (2) there are no issues of witness credibility that need to be resolved by assessing the witness in person at a hearing; and (3) a trial on the merits would neither reveal additional data implying, nor enhance our ability to draw inferences supporting the conclusion, that any particular SAMA could become cost effective.12 In a dissenting opinion, Administrative Judge Young argued that there was a genuine issue of material fact, specifically with respect to how the meteorological analysis might affect 8

Pilgrim, LBP-06-23, 65 NRC at 341.

9 Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 (May 18, 2007)

(Summary Disposition Motion).

10 Memorandum and Order (Ruling on Motion to Dismiss Petitioners Contention 3 regarding Severe Accident Mitigation Alternatives), LBP-07-13, 66 NRC ___ (Oct. 30, 2007) (slip op.) (Summary Disposition Order).

11 Summary Disposition Order at 2.

12 Id.

analysis of the evacuation and cost data, and, therefore, summary disposition should be denied.13 Further, because, inter alia, Pilgrim Watch lost its counsel prior to filing its response to Entergys Summary Disposition Motion, the dissent would have permitted oral argument on, among other things, issues relating to the scope of contentions and the types of economic costs that are normally included in SAMA analyses.14 On November 13, 2007, Pilgrim Watch filed its Petition. Pilgrim Watchs Petition requests that LBP-07-13 be reviewed pursuant to 10 C.F.R. § 2.341. In support of its petition, Pilgrim Watch adopts the dissents opinion and cites three alleged errors committed by the Board:

1) The Board improperly narrowed Contention 3 as admitted in the Boards Memorandum and Order on Contentions.15

2) The Board improperly required Pilgrim Watch to provide detailed calculations in their response although the Board never required that in the Memorandum and Order on Contentions.16

3) Contrary to precedent, the Board required Pilgrim Watch to prove its case and weighed the evidence.17 As set forth below, the Licensing Boards decision is interlocutory in nature, inasmuch as 13 Id. at 36.

14 Id. at 42.

15 Petition at 2.

16 Id.

17 Id.

it resolved only one of Pilgrim Watchs two contentions. Moreover, the Boards decision neither threatens Pilgrim Watch with immediate and serious irreparable impact, nor does it affect the basic structure of the proceeding in a pervasive or unusual manner. Accordingly, regardless of whether Pilgrim Watchs assertions regarding the correctness of the Boards decision have merit, it has failed to demonstrate that interlocutory review of the Boards decision is warranted, as required by 10 C.F.R. § 2.341(f). Pilgrim Watchs petition for review should therefore be denied.

DISCUSSION I. Applicable Legal Standards for Review A. Pilgrim Watch is Not Entitled to Commission Review Under 10 C.F.R. § 2.341(b)

Pilgrim Watch seeks review of the Summary Disposition Order [p]ursuant to § 2.341.

It does not state or demonstrate, however, that it meets any of the criteria governing Commission review of a Licensing Board Order, set forth in § 2.341. The rules specify different requirements, depending upon whether the appeal is filed under § 2.341(b) (appeals from initial decisions), or § 2.341(f) (interlocutory appeals).

In this regard, 10 C.F.R. § 2.341(b)(1) provides for discretionary Commission review of a full or partial initial decision by a presiding officer and any other decision or action by a presiding officer with respect to which a petition for review is authorized by this part. When a petition for review is authorized under § 2.341(b)(1), the Commission looks to five considerations, detailed in § 2.341(b)(4), in deciding whether to grant review.18 18 The five considerations are (1) a clearly erroneous finding of fact; (2) a necessary legal conclusion is without precedent or conflicts with existing law; (3) the appeal raises a substantial and important question of law or policy; (4) the proceeding involved a prejudicial procedural error; or (5) any (continued. . .)

A Licensing Boards order is treated as an initial decision when it disposes of at least a major segment of the case or terminates a partys right to participate. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-731, 17 NRC 1073, 1074 (1983)

(internal citations omitted); cf. Public Service Co. of New Hampshire (Seabrook Station, Units 1

& 2), ALAB-838, 23 NRC 585, 589 (1986) (internal citations omitted) (noting that a petitioners appeal from summary disposition of his contention would likely have been denied had it not been his only contention). If the Boards Order does neither, then it will be treated as interlocutory, and therefore subject to the standards of 10 C.F.R. § 2.341(f). See id.; see also Paina Hawaii, L.L.C., CLI-06-18, 64 NRC 1, 4 (2006) (Our procedural rules grant . . . no right to appeal interlocutory orders.); Andrew Siemaszko, CLI-06-12, 63 NRC 495, 500 (2006) (Our regulations do not provide a right to appeal interlocutory orders . . .). An appeal from a Licensing Boards summary disposition order that leaves at least one contention open will be treated as a petition for interlocutory review. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-807, 21 NRC 1195, 1198 n.3 (1985).

In Seabrook, the petitioner, Seacoast Anti-Pollution League (SAPL), sought review of the Boards order dismissing one of its contentions on summary disposition. See ALAB-731, 17 NRC at 1074. The order in question left the petitioner with no remaining contentions of its own; however, the petitioner had joined in a separately admitted contention filed by another intervenor. See id. Despite having no remaining contentions of its own, the Appeal Board ruled

(. . .continued) other consideration the Commission determines to be in the public interest. See 10 C.F.R.

§ 2.341(b)(4).

that SAPL must await the Licensing Boards initial decision before presenting its grievance for appellate consideration. Id. at 1075 (internal citation omitted).

In the instant case, Pilgrim Watch relies upon 10 C.F.R. § 2.341 as a whole, without citing any particular basis for review,19 for its challenge to the Summary Disposition Order dismissing one of its two contentions. Unlike the petitioner in Seabrook, Pilgrim Watch still has one of its own contentions open for litigation. Not only does Pilgrim Watch remain an active participant, like SAPL, but it is also able to direct its own case. Therefore, the Summary Disposition Order neither dispose[d] of a major segment of the case nor terminated Pilgrim Watchs right to participate; the Order is interlocutory in nature, and is not subject to review under § 2.341(b).

B. Pilgrim Watch is Not Entitled to Interlocutory Review Under § 2.341(f)(2)

Pursuant to § 2.341(f)(2), the Commission may use its discretion to grant interlocutory review at the request of a party; but it will grant interlocutory review only if one of two standards are met:

The petition for interlocutory review will be granted only if the party demonstrates that the issue for which the party seeks interlocutory review:

(i) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officers final decision; or 19 Although the Board made the general statement in its Summary Disposition Order that the

[o]rder is subject to appeal to the Commission with the provisions of 10 CFR § 2.341, it was still incumbent upon Pilgrim Watch to specifically address the basis for review. See Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 54 NRC 368, 373 (2001).

(ii) Affects the basic structure of the proceeding in a pervasive or unusual manner.20 The Commission has repeatedly stated that it disfavors interlocutory review. See, e.g.,

Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-1, 65 NRC 1, 3 (2007). Further, the Commission has indicated that it will undertake interlocutory review in only the most compelling circumstances.

Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-11, 40 NRC 55, 61 (1994); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI 7, 47 NRC 307, 310 (1998); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-94-2, 39 NRC 91, 93 (1994); cf. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-94-5, 39 NRC 190, 193 (1994) (describing a general proscription against interlocutory appeals).

In addition to its general disapproval of interlocutory review, the Commission has outlined specific instances in which interlocutory review is inappropriate. For example, neither the presiding officers inappropriate admission of an area of concern, nor the use of an inappropriate legal standard, meets the standard for interlocutory review. See Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning), CLI-01-2, 53 NRC 9, 18-19 (2001) (citing Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-641, 13 NRC 550 (1981)). Similarly, a mere legal error is insufficient to justify interlocutory review, because interlocutory errors are correctable on appeal from final Board decisions.

20 The standards for discretionary interlocutory review are the exceptions to the requirements for interlocutory review provided in 10 C.F.R. § 2.341(f)(1), pertaining to questions raising significant and novel legal or policy issues that are certified to the Commission by a Board. This circumstance does not apply here. The Board has not certified the issue to the Commission, and Pilgrim Watch has not demonstrated any significant and novel issues.

Connecticut Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 54 NRC 368, 373 (2001).

In its Petition, Pilgrim Watch states three specific grievances for which it seeks redress:

First, that in granting Entergys motion for summary judgment, the Board rewrote its Memorandum and Order on Contentions; second, that the Board imposed unfounded requirements on Pilgrim Watch to provide calculations in its response; and third, that the Board ignored relevant legal standards in considering Entergys motion for summary disposition.

Petition at 2, 23. In citing these alleged errors, Pilgrim Watch completely fails to discuss the required interlocutory review standards, much less meet them, and has not demonstrated that compelling circumstances exist for the Commission to take interlocutory review of the Boards Summary Disposition Order.

II. Pilgrim Watch Has Not Met the Standards of 10 C.F.R. § 2.341(f)

A. Pilgrim Watch Has Not Been Threatened with Immediate and Serious Irreparable Impact Pilgrim Watch has failed to meet the requirements of 10 C.F.R. § 2.341(f)(2)(i) by not demonstrating how the Boards summary disposition of Contention 3 threatens immediate and serious irreparable impact, which a subsequent petition for review of the final decision could not relieve. One factor the Commission may consider is whether the issue must be reviewed now or not at all. Vogtle, CLI-94-5, 39 NRC at 193. Additionally, meeting this strict threshold for interlocutory review requires more than mere generalized representations by counsel and unsubstantiated assertions. Sequoyah Fuels, CLI-94-11, 40 NRC at 61. Finally, while the Commission may, in its discretion, grant interlocutory review in certain situations, the summary disposition of a contention has been held as insufficient cause for the Commission to invoke that authority. See, e.g., Seabrook, ALAB-731, 17 NRC at 1075.

Although Pilgrim Watch has asserted three bases for its petition to the Commission, Pilgrim Watch never discusses the immediate and serious irreparable impact standard.

Pilgrim Watch has not represented that summary disposition will have such an impact, nor can any such impact be reasonably inferred from its Petition. The summary disposition of Contention 3 does not irreparably impact Pilgrim Watch in any way: The Board has ruled that litigation on Contention 1 will proceed,21 and Pilgrim Watch may seek review of any and all legal errors following the Boards final decision. In fact, the Commission has repeatedly stated its preference, barring unusual or compelling circumstances, for this sequence of events. Pilgrim Watch has not come close to meeting the irreparable impact standard.

B. Pilgrim Watch Has Not Shown That the Dismissal of Contention 3 Affects the Basic Structure of the Proceeding in a Pervasive or Unusual Manner In addition to failing to show any irreparable serious impact which necessitates immediate interlocutory review, Pilgrim Watch has not demonstrated that the dismissal of Contention 3 affects the basic structure of the proceeding in a pervasive or unusual manner as required in 10 C.F.R. § 2.341(f)(2)(ii), nor has it shown that extraordinary circumstances exist.

See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 5 (2001) (PFS).

First, Pilgrim Watch never specifically alleges that the summary dismissal of Contention 3 affected the structure of the proceeding in a pervasive or unusual manner. Instead, Pilgrim Watch merely contends that its three proffered errors constituted an improper dismissal of 21 See Memorandum and Order (Ruling on Entergys Motion for Summary Disposition of Pilgrim Watch Contention 1, Regarding Adequacy of Aging Management Program for Buried Pipes and Tanks and Potential Need for Monitoring Wells to Supplement Program), LBP-07-12, 66 NRC ___ (Oct. 17, 2007) (slip op.); Memorandum and Order (Ruling on Entergys Motion for Reconsideration of [LBP] 12), (unpublished) (Nov. 14, 2007).

Contention 3.22 Petitioners for interlocutory review must address the criteria set forth in § 2.341(f)(2); substitute arguments are generally found to be unpersuasive as grounds for interlocutory review. See Haddam Neck, CLI-01-25, 54 NRC at 373. A petitioner, like Pilgrim Watch, who makes general arguments that a Board erred in determining that no genuine issues of material fact were associated with the [] motion for summary judgment must wait for a Boards initial decision before presenting its grievance for appellate consideration. Seabrook, ALAB-731, 17 NRC at 1074.

Second, where a Licensing Board grants summary disposition of one of an intervenors contentions, but other of its contentions remain in litigation, the Boards ruling has been compared to rulings rejecting some, but not all, of a petitioners contentions at the contention pleading stage; in both cases, interlocutory appeal has been held to be inappropriate. Thus, the Commission has repeatedly held that refusal to admit a contention . . . does not constitute a pervasive effect on the litigation calling for interlocutory review. PFS, CLI-01-1, 53 NRC at 5 (emphasis added). Although contention admissibility and summary dismissal of previously admitted contentions are not treated identically, the Commission has viewed them analogously.

For example, in USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006), the Commission stated that resolution of a mooted contention may be accomplished either through a motion for summary disposition or as part of the contention admission phase. USEC, CLI 9, 63 NRC at 444-45. Further, the end result of a rejected contention and a summarily dismissed contention is the same: As long as the petitioner and another of its contentions remain in the proceeding, the contention at issue is no longer a part of the hearing, but its 22 Petition at 2.

dismissal does not terminate the petitioners participation in the proceeding; accordingly, the petitioner may appeal from the Boards ruling and any other alleged errors it may wish to present at the conclusion of the proceeding. The dismissal of Contention 3, like the refusal to admit a contention, is nothing more than a routine interlocutory ruling not subject to immediate appellate review. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-2, 51 NRC 77, 80 (2000).

Finally, a legal error, standing alone, does not alter the basic structure of an ongoing proceeding and therefore does not justify interlocutory Commission review. Such errors can be raised on appeal after the final licensing board decision. Dr. James E. Bauer (Order Prohibiting Involvement in NRC Licensed Activities), CLI-95-3, 41 NRC 245, 246-247 (1995). Rather than showing how the summary disposition of Contention 3 meets the interlocutory review standards, Pilgrim Watch instead uses its Petition to re-argue points raised in its initial Answer Opposing Entergys Motion for Summary Disposition.23 Even if everything Pilgrim Watch alleges were correct and the Commission accepted the alternate arguments, the fact that an interlocutory ruling may be wrong does not, without more, justify interlocutory appellate review, unless a petitioner can demonstrate that the error fundamentally alters the proceeding. Virginia Electric &

Power Co. (North Anna Power Station, Units 1 & 2), ALAB-741, 18 NRC 371, 378 n.11 (1983)

(citing Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-675, 15 NRC 1105, 1113-14 (1982)). Therefore, because the alleged legal error stands alone, and does not have a pervasive effect on the proceeding, it is not subject to interlocutory review.

23 Pilgrim Watchs Answer Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 (June 29, 2007).

III. The Board Did Not Err in Granting Summary Disposition of Contention 3 Not only is Commission review not warranted because Pilgrim Watchs Petition does not meet the standards for interlocutory review, but its arguments that the Licensing Board committed three alleged errors are also without merit. With respect to the first alleged error, by contending that the Board improperly narrowed Contention 3, Pilgrim Watch concedes that it is attempting to get certain facts . . . back on the table.24 Those facts were simply not part of Contention 3 as admitted by the Board. Contention 3 as admitted deals specifically and only with the input data used in the SAMA analysis.25 Pilgrim Watch previously agreed with this view.26 However, Pilgrim Watch now chooses to mischaracterize the Memorandum and Order on Contentions, claiming that the Boards order admitting contentions included the other issues Pilgrim Watch raised in the proffered contention. Thus, Pilgrim Watch alleges that the Board, in admitting Contention 3, included (1) the adequacy of the computer code (MACCS2) used to perform the SAMA computations; (2) the use for SAMA analyses of probabilistic (as opposed to deterministic) methodologies; and (3) the health effects of low doses of radiation.27 But, it is clear from a reading of the Boards Memorandum and Order on Contentions that the only issues admitted relate to the input data in the three specified areas.

24 Summary Disposition Motion at 11.

25 Pilgrim, LBP-06-23, 65 NRC at 340.

26 Pilgrim Watch stated in its Reply to Entergy Answer to Request for Hearing and Petition to Intervene by Pilgrim Watch that Contention 3 focuses mainly on the input parameters used in the accident modeling software. Pilgrim Watch Reply to Entergy Answer to Request for Hearing and Petition to Intervene by Pilgrim Watch at 14 (July 3, 2006). Pilgrim Watch further emphasized that the bulk of [its]

Contention highlights input data that were incorrect, incomplete or inadequate. Id. at 16.

27 Petition at 8; Summary Disposition Order.

In fact, in the Memorandum and Order on Contentions the Board clearly limited the Contention to arguments concerning input data.28 In its recitation of limitations, the Board did not create a closed list of sub-issues that were not in contention, as Pilgrim Watch argues; instead, the Board specifically stated that only the listed sub-issues were in contention.29 Further, because the Board made multiple references to Pilgrim Watchs description of the narrow nature of Contention 3 as admitted,30 Pilgrim Watch was well aware of the Boards view.

For example, in detailing the outer boundary of Contention 3, the Board stated that it did not find [Pilgrim Watch] has raised admissible challenges to all input data. We do, however, find that the contention, insofar as it challenges data on these three points and proposes the use of more accurate data relating to evacuation times, economic impacts, and meteorologic plume behavior, has been sufficiently raised and supported for the purposes of contention admissibility.

Pilgrim, LBP-06-23, 65 NRC at 340. Also, the Board explicitly stated:

as [Pilgrim Watch] points out in its Reply to Entergy, the focus of the contention, and that part that we admit, is on what input data should be utilized in the SAMA analysis with regard to evacuation times, economic realities, and meteorological patterns, and whether the input data used by the Applicant accurately reflect the respective conditions at issue.

28 Pilgrim, LBP-06-23, 65 NRC at 338-41.

29 Id. at 338, 341 30 E.g., id. at 338-39 (Pilgrim Watch has supported its call for further analysis by raising relevant and significant questions about the input data that appears (from the Application) to have been used in the Pilgrim SAMA analysis regarding (1) the evacuation time estimates, (2) the meteorological data that govern the movement of the plume, and (3) the economic impact data; and it has supported arguments to the effect that including more realistic input data might change the SAMA analysis, with information indicating, to the level necessary for contention admissibility, that these particular data may be materially incorrect.).

Id. Therefore, since it is clear that in admitting the contention, the Board narrowed its scope, this cited error is without merit.

With respect to the second and third alleged errors, the Board neither required Pilgrim Watch to prove its case (or, as Pilgrim Watch asserts, to provide detailed calculations), nor did the Board improperly weigh evidence. When a party who moves for summary disposition satisfies its initial burden and supports its motion with an affidavit, the party opposing the motion must proffer countering evidential material or an affidavit explaining why it is impractical to do so. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-83-32A, 17 NRC 1170, 1174 n.4 (1983). In its motion for summary disposition, Entergy provided a series of bounding analyses which Pilgrim Watch failed to contradict with specific facts; contrary to Pilgrim Watchs claim in its petition, the Board never required it to provide detailed calculations.31 The Board properly considered the evidence as Entergy presented it, as appropriate under the Commissions summary disposition standards.32 Further, the Board did not weigh the evidence or assess the correctness of facts as if at a hearing; rather, the Board determined that no genuine issue of material fact had been shown.33 Inasmuch as Pilgrim 31 Summary Disposition Order at 15.

32 10 CFR § 2.710(a); Advanced Medical Systems (One Factory Row, Geneva, Ohio 44041),

LBP-91-9, 33 NRC 212, 216 & n.15, 218 (1991), affd CLI-93-22, 38 NRC 98 (1993).

33 Summary Disposition Order at 15. Pilgrim Watch relies extensively on language used in the dissent. See, e.g., Petition at 4, 7. The NRCs standards for summary disposition are set forth in 10 C.F.R. § 2.710. The dissent relied on federal appellate cases that discuss situations in which it is appropriate for a fact-finder to draw factual inferences. Summary Disposition Order at 40. These cases are not relevant: In dismissing Contention 3, the Board did not draw factual inferences; rather, the Board examined the submissions from Entergy and Pilgrim Watch, and determined that Pilgrim Watch had failed to provide any support for their proposition that . . . a material fact remains in dispute, Summary Disposition Order at 24. This failure by Pilgrim Watch warranted the grant of summary disposition under

§ 2.710(a).

Watch failed to show that a genuine issue of material fact remained in dispute the Boards grant of summary disposition of Contention 3 in favor of the Applicant was proper.

CONCLUSION Pilgrim Watch has failed to meet the irreparable impact or pervasive or unusual effect standards or show that interlocutory review of the Boards Order granting summary disposition of one of its two admitted contentions is warranted. Further, even if the Commission were to grant the petition, Pilgrim Watch has failed to demonstrate that its arguments concerning the Licensing Boards alleged errors are valid. Pilgrim Watchs petition for review of LBP-07-13 should be denied.

Respectfully submitted,

/RA/

Kimberly A. Sexton Counsel for NRC Staff Dated at Rockville, Maryland This 21st day of November, 2007

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In 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 NRC STAFF RESPONSE OPPOSING PILGRIM WATCHS APPEAL OF LBP-07-13 MEMORANDUM AND ORDER in the above-captioned proceeding have been served on the following by electronic mail and deposit in the U.S. Mail Service or deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or by deposit in the U.S. Nuclear Regulatory Commissions 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 21st day of November 2007.

Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: rfc1@nrc.gov E-mail: pba@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov E-mail: amy@nrc.gov Sheila Slocum Hollis Office of the Secretary Duane Morris LLP Attn: Rulemaking and Adjudications Staff 1667 K Street, NW, Suite 700 Mail Stop: O-16C1 Washington, DC 20006 U.S. Nuclear Regulatory Commission E-mail: sshollis@duanemorris.com Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Atomic Safety and Licensing Board* Terence A. Burke, Esq.**

Mail Stop: T-3 F23 Entergy Nuclear U.S. Nuclear Regulatory Commission 1340 Echelon Parkway Washington, DC 20555-0001 Mail Stop: M-ECH-62 Jackson, MS 39213 Mary Lampert David R. Lewis, Esq.

148 Washington Street Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: lampert@adelphia.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.

668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: msylvia@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Fax: 781-934-6530

/RA/

Kimberly A. Sexton Counsel for the NRC Staff