ML062860156

Massachusetts Attorney General'S Notice of Appeal of LBP-06-20, with Accompanying Brief

ML062860156
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	10/03/2006
From:	Brock M, Curran D, Reilly T Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, State of MA, Office of the Attorney General
To:	NRC/OCM
Byrdsong A T
References
50-271-LR, ASLBP 06-849-03-LR, LBP-06-20, RAS 12359
Download: ML062860156 (26)

Text

October 3, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION DOCKETED USNRC In the Matter of ) October 3, 2006 (3:57pm)

)

Entergy Nuclear Operations, Inc. ) Docket No. 50-271 -LR OFFICE OF SECRETARY RULEMAKINGS AND

) ADJUDICATIONS STAFF (Vermont Yankee Nuclear Power Station) )

MASSACHUSETTS ATTORNEY GENERAL'S NOTICE OF APPEAL OF LBP-06-20 Pursuant to 10 C.F.R. § 2.311, the Attorney General of Massachusetts ("Attorney General") notifies the Commission of its appeal of LBP-06-20, Memorandum and Order (Ruling on Standing, Contentions, Hearing Procedures, State Statutory Claim, and Contention Adoption) (September 22, 2006) ("LBP-06-20").

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS By its Attorneys, THOMAS F. REILLY ATTORNEY GENERAL D-JLUý-

Diane Curran Harmon Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 dcurran(,harmoncurran.com Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 matthew.brocknaao.state.ma.us

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CERTIFICATE OF SERVICE I hereby certify that on October 3, 2006, copies of the foregoing Massachusetts Attorney General's Notice of Appeal of LBP-06-20 and Brief on Appeal of LBP-06-20 were served on the following by first-class mail and/or electronic mail, as indicated below:

Office of the Secretary Alex S. Karlin, Chair Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16CI U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Also by E-mail: ask2@nrc.gov Also by E-mail: hearingdocket nrc..gov Thomas S. Elleman Sarah Hofmann, Esq.

Atomic Safety and Licensing Board Panel Director of Public Advocacy 5207 Creedmoor Road, #101 Department of Public Service Raleigh, NC 27612 112 State Street - Drawer 20 Also by E-mail: ellemanDeos.ncsu.edu Montpelier, VT 05620-2601 Also by E-mail: sarah.hofmannastate.vt.us Office of Commission Appellate Adjudication Mitzi A. Young, Esq.

Mail Stop: O-16C1 Steven C. Hamrick Esq.

U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555-0001 Mail Stop 0-15 D21 Also by E-mail: OCAAmail(a nrc.gov U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Richard E. Wardwell Also by E-mail: mavynrc.gov; Atomic Safety and Licensing Board Panel sch IOnrc. gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ronald A. Shems, Esq.

Also by E-mail: rewivnrc.gov Karen Tyler, Esq.

Shems Dunkiel Kassel & Saunders, PLLC Terence A. Burke, Esq. 91 College Street Entergy Nuclear Burlington, VT 05401 1340 Echelon Parkway Also by E-mail: rshems@sdkslaw.com Mail Stop M-ECN-62 Ktyler Rmsdkslaw.com Jackson, MS 39213 Also by e-mail: tburke@entergy.com

2 Callie B. Newton, Chair Matthew Brock, Esq.

Gail MacArthur Assistant Attorney General Lucy Gratwick Office of the Massachusetts Attorney Marcia Hamilton General Town of Marlboro Selectboard Environmental Protection Division P.O. Box 518 One Ashburton Place, Room 1813 Marlboro, VT 05344 Boston, MA 02108-1598 Also by E-mail: cbnewtonnasover.net Also by E-mail:

marcialynn@evl.net matthew.brockcaago.state.ma.us Marcia Carpentier, Esq. Dan MacArthur, Director Jonathan M. Rund, Esq. Town of Marlboro Atomic Safety and Licensing Board Panel Emergency Management Mail Stop: T-3F23 P.O. Box Box 30 U.S. Nuclear Regulatory Commission Marlboro, VT 05344 Washington, DC 20555-0001 Also by E-mail: dmacarthur@igc.org Also by E-mail: mxc7@anrc.gov:

JMR2@a~nrc.gov David R. Lewis, Esq.

Matias F. Travieso-Diaz Anthony Z. Roisman, Esq. Pillsbury Winthrop Shaw Pittman LLP National Legal Scholars Law Firm 2300 N Street, NW 84 East Thetford Rd. Washington, DC 20037-1128 Lyme, NH 03768 Also by E-mail:

Also by E-mail: david.lewis(Di pillsburylaw.com aroisman@nationalle.Qalscholars.com matias.travieso-diazwpillsburylaw.com Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 iane Curran

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station) )

MASSACHUSETTS ATTORNEY GENERAL'S BRIEF ON APPEAL OF LBP-06-20 COMMONWEALTH OF MASSACHUSETTS By its Attorneys, THOMAS F. REILLY ATTORNEY GENERAL Diane Curran Harmon Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 dcurrannahharmoncurran.com Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 617/727/2200 X 2425 mnatthew.brock(a ago.state.ma.us October 3, 2006

TABLE OF CONTENTS I. INTRODUCTION .......................................................................... 1 II. FACTUAL AND PROCEDURAL BACKGROUND ................................... 3 A. Attorney General's Contention .................................................... 3 B. Oppositions to Contention ..................................................... 6 C. Rulemaking Petition ........................................................... 7 D. LBP-06-20 ........................................................................ 9 ARGUMENT ........................................................................................ 11 III. THE ASLB SHOULD HAVE ADMITTED THE ATTORNEY GENERAL'S CONTENTION ............................................................................. 11 A. Standard of Review ............................................................... 11 B. Turkey Point is Inapposite to This Case .................................... 12 C. Turkey Point Is Inconsistent With NRC Regulations ..................... 12 D. Turkey Point Is Inconsistent with NEPA .................................... 14 E. The Attorney General's Contention is Admissible ........................... 15 IV. CONCLUSION ............................................................................. 18

ii TABLE OF AUTHORITIES Judicial Decisions Baltimore Gas & Electric v. NaturalResources Defense Council, 462 U .S. 87 (1983) ...................................................................... 2 FederalCommunications Commission v. Pottsville BroadcastingCo.,

309 U .S. 134 (1940) .................................................................. 17 Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) ...... 6, 14 Robertson v. Methow Valley Conservation Council, 490 U.S. 332 (1989) ....... 14 San Luis Obispo Mothersfor Peace v. NRC, 449 F.3d 1016 (9 th C ir. 2006) ............................................................................................... 5, 16-17 Vizcaino v. Microsoft Corporation,173 F.3d 713 (9th Cir. 1999) ............... 17 Administrative Decisions Amergen Energy Company, L.L.C. (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24 (September 6, 2006) ................... 16 CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant),

LBP-00-19, 52 NRC 85 (2000), aff'd, CLI-01-1 1, 53 NRC 370 (2001) ...... 16 Duke Energy Corp. (Catawba Nuclear Station, Units I and 2), LBP-05-10, 61 NRC 241 (2005), rev'd on other grounds, CLI-05-14, 61 NRC 359 (2005)... 14 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units I and 2), CLI-02-26, 56 NRC 358 (2002) ................. 9 FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) .................................... passim Long IslandLighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-900, 28 NRC 275 (1988) .................................................... 13 Wrangler Laboratories,et. al., ALAB-951, 33 NRC 505(1991) ................ 13 Statutes National Environmental Policy Act ................................................ passim ii

iii Federal Rules of Procedure Fed.R.App.Proc. 41 ...................................................................... 17 Regulations 10 C.F.R. § 2.309(f) ........................................................................... 11 10 C.F.R. § 2.309(f)(1)(v) and (vi) ............................................................ 16 10 C.F.R. § 2.309(0(2) ........................................................................ 11, 13 10 C.F.R. § 2.311 (b) ......................................................................... 1, 11 10 C .F.R . § 2.335(b) ................................................................................ 11 10 C.F.R. § 2.714(b)(2)(iii) .................................................................... 13 10 CFR 2.758 ..................................................................................... 14 10 C.F.R. § 51.53(c)(3)(iv) .................................................................. passim 10 C.F.R. §§ 51.92(a)(2) ............................................................................ 9 51.95(c)(3) ........................................................................................ 9 Federal Register Notices Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,218 (January 14, 2004) .................................................................... 13 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) ............ 10-11, 13 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) ...................................................... 14 Final Rule, Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38,474 (September 18, 1990) ("Waste Confidence Rule") ............ 5 Final Rule, Rules of Practice for Domestic Licensing Proceeding -

Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (August 11, 1989) ...................................................................... 13,15 iii

iv Miscellaneous Jan Beyea, Report to the Massachusetts Attorney General on the Potential Consequences of a Spent-fuel Pool Fire at the Pilgrim or Vermont Yankee Nuclear Plant (May 25, 2006) .................................... 4 National Academy of Sciences' ("NAS"') Committee on the Safety and Security of Commercial Spent Nuclear Fuel Storage, Safety and Security of CommercialSpent Nuclear Fuel Storage (The National Academies Press: 2006) ("NAS Report") .......................................................... 4 NUREG-0757, Generic Environmental Impact Statement for Handling and Storage of Spent Light Water Reactor Fuel (1979) ............................. 4, 5 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants ................................................. 4, 5 NUREG-1738, FinalTechnical Study of Spent Fuel PoolAccident Risk and Decommissioning Nuclear Power Plants (January 2001) ..................... 4 Gordon Thompson, Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants (M ay 25, 2006) .......................................................... 4 iv

October 3, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station) )

MASSACHUSETTS ATTORNEY GENERAL'S BRIEF ON APPEAL OF LBP-06-20 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.311, the Attorney General of Massachusetts ("Attorney General") submits this brief on appeal of the LBP-06-20, Memorandum and Order (Ruling on Standing, Contentions, Hearing Procedures, State Statutory Claim, and Contention Adoption) (September 22, 2006) ("LBP-06-20"). The Attorney General appeals the portion of LBP-06-20 which denies admission of the single contention he submitted to the U.S. Nuclear Regulatory Commission ("NRC's" or "Commission") in its proceeding to consider Entergy Nuclear Operations, Inc.'s ("Entergy's") application for renewal of its license to operate the Vermont Yankee nuclear power plant. The contention charges that Entergy's Environmental Report ("ER") fails to satisfy the National Environmental Policy Act ("NEPA") and the NRC's implementing regulations because it does not address new and significant information regarding the significant adverse environmental impacts of continued high-density storage of spent fuel in the Vermont Yankee fuel pool.

The ASLB's sole rationale for refusing to conduct a hearing on the Attorney General's contention is that the Commission's Turkey Point decision bars NEPA

consideration of the environmental impacts of spent fuel pool accidents in a license renewal case because spent fuel storage impacts constitute a "Category 1" issue under the NRC's regulations for implementing NEPA. LBP-06-20, slip op. at 21, citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-0 1-17, 54 NRC 3, 6-13 (2001) ("Turkey Point"). The Commission should reverse LBP-06-20 because Turkey Point is inapposite to this case. In the alternative, even if the Commission believes Turkey Point applies, the Commission should reconsider Turkey Point because it is inconsistent with NEPA and the NRC's own regulatory scheme for implementation of NEPA.

The Attorney General believes the Commission should reverse LBP-06-20 and admit his contention because the contention meets the NRC's admissibility standard.

Nevertheless, the Attorney General recognizes that the Commission alternatively has the discretion to address the concerns raised in the Attorney General's contention through a rulemaking. See Turkey Point, 54 NRC at 14, citing Baltimore Gas & Electric v. Natural Resources Defense Council, 462 U.S. 87, 100-01 (1983). Thus, the Commission may decide whether to reverse LBP-06-20 or grant the Attorney General's August 25, 2006, Rulemaking Petition, in which he seeks, inter alia, a generic determination that the environmental impacts of high-density pool storage of spent fuel are significant.' The Commission has no discretion, however, to deny both this appeal and the rulemaking petition. The Commission must obey NEPA's non-discretionary requirement to consider significant new information bearing on the environmental impacts of Entergy's proposal 1 Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006) ("Rulemaking Petition").The NRC has docketed the 2

to continue storing spent fuel in high-density fuel storage racks in the Vermont Yankee fuel pool.

If the Commission decides to uphold LBP-06-20 and proceed to address the Attorney General's claim through a rulemaking, it nevertheless should clarify the considerable confusion created by the Turkey Point decision regarding the rights and obligations of hearing petitioners with respect to the filing of NEPA contentions under 10 C.F.R. § 51.53(c)(3)(iv).

II. FACTUAL AND PROCEDURAL BACKGROUND A. Attorney General's Contention On May 26, 2006, the Attorney General submitted a hearing request and contention in the license renewal proceedings for the Vermont Yankee nuclear power plants. 2 The Attorney General's contention challenged the adequacy of Entergy's ER to comply with NEPA's requirement that it address significant new information bearing on the environmental impacts of continued high-density pool storage of spent fuel at the Vermont Yankee plant. 3 The contention was supported by the expert declarations and petition and assigned it Docket No. PRM5v51-10. Letter from Michael T. Lesar to Diane Curran (September 21, 2006).

2 Massachusetts Attorney General's Request for a Hearing and Petition to Intervene With Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Plant Operating License, etc.("Hearing Request").

3 The Attorney General also submitted a virtually identical hearing request in the Pilgrim license renewal case. Massachusetts Attorney General's Request for a Hearing and Petition to Intervene With Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Pilgrim Nuclear Plant Operating License, etc. (May 26, 2006). The ASLB recently announced that it in mid-October it expects to issue a decision on standing and admissibility of contentions.

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reports of Drs. Gordon Thompson and Jan Beyea regarding the likelihood and 4

consequences of spent fuel pool accidents at the Vermont Yankee nuclear power plant.

The contention asserted that Entergy had not satisfied 10 C.F.R. § 51.53(c)(3)(iv) because its ER did not address new and significant information, presented in government-sponsored studies and an expert report commissioned by the Attorney General, regarding the behavior of spent fuel in high-density storage pools under accident conditions.

Hearing Request at 21-23.5 This significant new information firmly establishes that, across a broad range of scenarios, (a) if the water level in a fuel storage pool drops to the point where the tops of the fuel assemblies are uncovered, the fuel will burn; (b) the fuel will bum regardless of its age; and (c) the fire will propagate to other assemblies in the pool. Id.

The information is significant because it contradicts the conclusion of the NRC's previous environmental analyses that the environmental impacts of spent fuel storage are insignificant. Hearing Request at 21-23, citing NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants ("License Renewal GEIS"); NUREG-0757, Generic Environmental Impact Statement for Handling and Storage of Spent Light Water Reactor Fuel (1979) ("1979 GEIS"); Final Rule, Review 4 Thompson, Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants (May 25, 2006) ("Thompson Report"); Jan Beyea, Report to the Massachusetts Attorney General on the Potential Consequences of a Spent-fuel Pool Fire at the Pilgrim or Vermont Yankee Nuclear Plant (May 25, 2006) ("Beyea Report").

' Id. The new information consists of Dr. Thompson's expert report (see note 4, supra);NUREG-1738, FinalTechnical Study of Spent Fuel PoolAccident Risk and Decommissioning Nuclear Power Plants(January 2001) ("NUREG-1738"); and a report by the National Academy of Sciences' ("NAS"') Committee on the Safety and Security of Commercial Spent Nuclear Fuel Storage, Safety and Security of Commercial Spent NuclearFuel Storage (The National Academies Press: 2006) ("NAS Report").

4

and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38,474 (September 18, 1990) ("Waste Confidence Rule"). The information is new because the NRC did not previously consider it in any of its environmental impact statements regarding the impacts of spent fuel storage. Hearing Request at 24-29, citing License Renewal GEIS, 1979 GELS, Waste Confidence Rule.

The contention also demonstrated that a range of events the NRC normally addresses in its EISs for the licensing of nuclear power plants could cause a severe pool accident. Hearing Request at 32-33. In addition, the contention demonstrated that a severe accident caused by an intentional attack on a nuclear power plant fuel pool is reasonably foreseeable and therefore should be considered. Hearing Request at 33-47.

The Attorney General asked the ASLB to follow a recent decision by the Ninth Circuit of the U.S. Court of Appeals which overturned the Commission's rationale for categorically refusing to consider the impacts of intentional attacks in any EIS. San Lids Obispo Mothersfor Peace v. NRC, 449 F.3d 1016 (9 th Cir. 2006) ("Mothersfor Peace"). Letter from Diane Curran to Alex Karlin et al, re: Vermont Yankee License Renewal Proceeding, Docket No. 50-271-LR (June 16, 2006) ("Curran Letter to ASLB").

Furthermore, the contention presented new and significant information showing that the consequences of a severe pool accident could be grave, and that the consequences of pool accidents differ in significant respects from the consequences of reactor accidents. Hearing Request at 40-41, 47, citing Beyea Report.

The Attorney General contended that because this new and significant information was not previously considered in the License Renewal GElS or any other EIS for a nuclear power plant license or spent fuel storage, and because it would 5

significantly affect the NRC's conclusions regarding the likelihood of severe spent fuel accidents, it must be considered in an EIS or supplemental EIS for any NRC licensing decision that involves high-density pool storage of spent fuel. Hearing Request at 21-23, citing Marsh v. Oregon NaturalResources Council, 490 U.S. 360, 374 (1989) ("Marsh ").

The basis for the contention also provided a detailed discussion of the history of NRC's NEPA consideration of environmental impacts of spent fuel storage, and the nature and the significance of the new information the Attorney General presented in support of his contention. Hearing Request at 23-47. In addition, a discussion of the statutory and regulatory requirements of NEPA and NRC regulations for consideration of new and significant information in the NEPA decision-making process prefaced each contention. Hearing Request at 5-16.

B. Oppositions to Contention Both Entergy and the NRC Staff opposed the admission of the Attorney General's contention. In addition to claiming that the information presented by the Attorney General is not new or significant, they argued that the Commission has designated the environmental impacts of spent fuel storage as a generic "Category 1" issue exempted from consideration in any individual license renewal proceeding.

Entergy's Answer at 10-12, NRC Staff's Answer at 11-13. Citing Turkey Point, they argued that the only means by which the Attorney General could obtain a hearing on the environmental impacts of spent fuel storage would be a petition for rulemaking or a waiver petition. Id.

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The Attorney General defended the admissibility of his contention in a reply brief.6 In an August 1, 2006, oral argument, the Attorney General also stated that, in the alternative, he planned to submit a rulemaking petition to the Commission. Transcript of oral argument at 79-81.

C. Rulemaking Petition On August 25, 2006, the Attorney General submitted his Rulemaking Petition, asking the NRC Commissioners to: (a) consider new and significant information showing that the NRC's characterization of the environmental impacts of spent fuel storage as insignificant in the 1996 License Renewal GEIS is incorrect, (b) revoke the regulations which codify that incorrect conclusion and excuse consideration of spent fuel storage impacts in NEPA decision-making documents, (c) issue a generic determination that the environmental impacts of high-density pool storage of spent fuel are significant, and (d) order that any NRC licensing decision that approves high-density pool storage of spent fuel at a nuclear power plant or any other facility must be accompanied by an EIS that addresses (i) the environmental impacts of high-density pool storage of spent fuel at that nuclear plant and (ii) a reasonable array of alternatives for avoiding or mitigating those impacts.

The Rulemaking Petition raises the same substantive concern as the Attorney General's contentions in the Pilgrim and Vermont Yankee license renewal cases: that spent fuel stored in high-density fuel storage pools is much more vulnerable to fire than the License Renewal GEIS concludes. Thus the petition relies on and incorporates by reference the legal and technical 6 Massachusetts Attorney General's Reply to Entergy's and NRC Staff's Responses to Hearing Request and Petition to Intervene With Respect to Vermont Yankee License Renewal Proceeding (June 30, 2006) ("Attorney General's Reply").

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assertions made in the Attorney General's contentions. In addition, it supplements the contentions with information about the extent to which the environmental impacts of spent fuel pool storage can be addressed generically and the extent to which they should be considered on a case-by-case basis. Declaration of Dr. Gordon Thompson in Support of Rulemaking Petition (August 23, 2006) (Attachment 2 to Rulemaking Petition).

The Attorney General filed the Rulemaking Petition as a companion to his contentions in the Pilgrim and Vermont Yankee license renewal proceedings, in response to arguments by Entergy and the NRC Staff that Turkey Point and NRC regulations that excuse license renewal applicants from addressing the environmental impacts of spent fuel storage in their ERs preclude admission of the contentions unless successfully challenged in a rulemaking petition or waiver petition. See discussion above in Section II.B. While the Attorney General believes that his contentions in the Pilgrim and Vermont Yankee proceedings are admissible, he has submitted the Rulemaking Petition in the alternative, in order to ensure that before renewing the operating licenses for the Pilgrim and Vermont Yankee plants, the NRC will address the environmental issues the Attorney General has raised. Id. at 17.7 The Rulemaking Petition requests the Commission to withhold any decision to renew the operating licenses for the Pilgrim and Vermont Yankee nuclear power plants until the requested rulemaking proceeding has been completed and until the NRC has completed the NEPA process for consideration of environmental impacts of high-density pool storage of spent fuel at the Pilgrim and Vermont Yankee nuclear plants. Id. at 3. The Rulemaking 7 The Attorney General did not file a waiver petition because his concerns clearly do not involve the type of "special circumstances" that must be demonstrated in order to obtain a regulatory waiver under 10 C.F.R. § 2.335(b).

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Petition also requests the Commission to suspend the consideration of the Attorney General's contentions in the individual license renewal proceedings for the Pilgrim and Vermont Yankee nuclear power plants. Id.

D. LBP-06-20 LBP-06-20 does not address the question of whether the Attorney General's contention satisfies the NRC's admissibility standard. Instead, it denies admission of the Attorney General's contention on the threshold ground that the Turkey Point decision precludes admission of an environmental contention regarding a Category 1 issue. LBP-06-20, slip op. at 21. According to the ASLB, the Attorney General's only "options" for raising his NEPA concerns about environmental risks posed by continued high-density pool storage of spent fuel at Vermont Yankee would be to file a petition for rulemaking, provide the information to the Staff ("which can then seek Commission approval to suspend the application of the rules or delay the license renewal proceeding"), or petition for a waiver of 10 C.F.R. Part 51, Appendix B, Table B-1. Id., slip op. at 26.

The ASLB also relies on Turkey Point to reject the aspect of the Attorney General's contention which faults Entergy's ER for failing to consider the environmental impacts of intentional attacks on the Vermont Yankee spent fuel storage pool. LBP 20, slip op. at 28, citing Turkey Point, 54 NRC at 12.8 Finally, the ASLB relies on Turkey Pointto reject the portion of the Attorney General's contention seeking consideration of severe accident mitigation alternatives ("SAMAs") for spent fuel pool 8 In addition, the ASLB relies on the Commission's holding in Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I and 2),

CLI-02-26, 56 NRC 358, 365 (2002), that contentions regarding environmental impacts of terrorist attacks need not be considered in individual license renewal cases because 9

accidents, on the ground that SAMAs are not required for spent fuel accidents because they are Category 1 impacts. LBP-06-20, slip op. at 29, citing Turkey Point, 54 NRC at 21-22.

Despite following Turkey Point,the ASLB points out significant aspects in which the Turkey Point decision contradicts the Commission's regulatory scheme for consideration of NEPA issues in licensing adjudications. As the ASLB recognizes, for example, "the essence of virtually all admissible contentions is an allegation that the applicant has failed to address, or has inadequately addressed, some legally required matter." LBP-06-20, slip op. at 22. For a license renewal applicant, "legally required matters" include the clear obligation under 10 C.F.R. § 51.53(c)(3)(iv) to address, in its ER, "new and significant information" regarding Category 1 environmental impacts of which the applicant is aware. 9 "Normally," therefore, an applicant's failure to address new and significant information regarding Category 1 impacts would "give rise to an admissible contention." Id. Nevertheless, Turkey Point forbids the raising of such a contention. Id. at 23.

The ASLB also observes that Turkey Point is internally inconsistent: on the one hand it commits to license renewal hearings on the full scope of issues covered by the NRC Staff's review, and on the other hand it narrows the scope of issues in a license renewal hearing to exclude a whole category of issues reviewed by the NRC Staff, i.e.,

they were already considered in the License Renewal GEIS. LBP-06-20, slip op. at 28-29.

9 LBP-06-20, slip op. at 22. Similarly, the NRC Staff must consider any significant new information related to Category 1 issues when it prepares the Supplemental Environmental Impact Statement ("SEIS") in support of the license renewal application. Id., citing 10 C.F.R. §§ 51.92(a)(2), 51.95(c)(3); Final Rule, 10

new and significant information with respect to Category 1 impacts. As the ASLB explains:

The Commission's ruling in Turkey Point (that an applicant's failure to provide new and significant information relating to a Category 1 issue cannot be adjudicated in a license renewal proceeding) seems inconsistent with its statement that '[a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review.' Turkey Point, CLI-01-17, 54 NRC at 10 (emphasis added). On the one hand, the ER must include new and significant information relating to Category 1 issues, 10 C.F.R. § 51.53(c)(3)(iv),

the Staff must review this information and include any 'significant new circumstances or information' relating to Category 1 issues in supplements to the draft SEIS, 10 C.F.R. § 51.72(a)(2), and the Staff s final SEIS will cover any

'significant new circumstances or information' relating to Category I issues, 10 C.F.R. § 51.92(a)(2). On the other hand, absent of waiver of the regulations, those issues cannot be heard in any adjudicatory hearing. Under the Turkey Point holding, the permissible scope of a license renewal adjudicatory hearing is narrower than the scope of the Staff's review.

LBP-06-20, slip op. at 26-27 n. 32. The ASLB does not seek to justify or rationalize this inconsistency.

ARGUMENT III. THE ASLB SHOULD HAVE ADMITTED THE ATTORNEY GENERAL'S CONTENTION.

A. Standard of Review NRC regulation 10 C.F.R. § 2.311 (b) provides that:

An order denying a petition to intervene and/or request for a hearing admission of a contention is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.

Here, the ASLB erred by applying Turkey Point to this case. Turkey Point is inapposite because it does not address the admissibility of a contention that asserts a license renewal applicant's failure to comply with 10 C.F.R. § 51.53(c)(3)(iv). Even assuming for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed.

Reg. 28,467, 28,470 (June 5, 1996).

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purposes of argument that Turkey Point is applicable to this case, the Commission should reconsider Turkey Point because it is inconsistent with NEPA and the NRC's own regulations for conducting adjudications of NEPA issues in license renewal proceedings.

The ASLB should have judged the admissibility of the contention and concluded that it meets the NRC's test for admissibility in 10 C.F.R. § 2.309(f).

B. Turkey Point is Inapposite to This Case.

Turkey Point is inapposite to this case because it does not address the admissibility of a contention challenging a license renewal applicant's failure to discuss new and significant information bearing on the impacts of license renewal in its ER. In Turkey Point,the Commission affirmed the denial of a contention seeking consideration of fuel pool accidents, in part on the ground that spent fuel storage impacts constitute Category 1 impacts that are excused from consideration, and that the petitioner had not filed a waiver petition pursuant to 10 C.F.R. § 2.335(b). 54 NRC at 21-23. The decision gives no indication that the petitioner's contention in that case claimed a violation of 10 C.F.R. § 51.53(c)(3)(iv). Therefore Turkey Point establishes no binding precedent regarding the question of whether the Attorney General is entitled to submit a contention regarding Entergy's noncompliance with 10 C.F.R. § 51.53(c)(3)(iv).

C. Turkey Point Is Inconsistent With NRC Regulations.

Moreover, the ASLB incorrectly concludes that its interpretation of Turkey Point is consistent with the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv). LBP-06-20, slip op. at 24-26. As the ASLB recognized in LBP-06-20, Turkey Point limits the scope of issues that are "[n]ormally" subject to litigation under 10 C.F.R. § 2.309(f)(2), the Commission's regulation for litigation of NEPA issues in licensing proceedings. LBP-12

06-20, slip op. at 22. In determining whether the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv) supports the limitation on the scope of a license renewal hearing established in Turkey Point, one must first look to the regulations themselves. Wrangler Laboratories,et. al., ALAB-951, 33 NRC 505, 513-14 (1991), quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 288 (1988) ("Long IslandLighting"). Neither 10 C.F.R. § 2.309(0(2) or 10 C.F.R. § 51.53(c)(3)(iv) contains any language exempting Category 1 impacts from the scope of issues that must be addressed in NEPA contentions under 10 C.F.R. § 2.309(0(2). To the contrary, the NRC's regulation for the admissibility of NEPA contentions "makes clear" that "to the extent an environmental issue is raised in the applicant's ER, an intervenor 0

must file contentions on that document" in order to obtain a hearing on NEPA issues.'

Nor can any exception to that clear and unequivocal requirement be found in the language of § 51.53(c)(3)(iv), the preamble to the 1989 Final Rule or in the preamble to the 1996 rule containing 10 C.F.R. § 51.53(c)(3)(iv), 61 Fed. Reg. 28,467 (June 5, 1996).

While the ASLB claims that its holding is supported by a SECY memo and a 1993 colloquoy between the Commission and its counsel (LBP-06-20, slip op. at 24-25),

these documents may be relied on only to "resolve ambiguities" in the regulations.

Wrangler Laboratories,33 NRC at 513-14. Neither 10 C.F.R. § 2.309(0(2) nor 10 C.F.R. § 51.53(c)(3)(iv) is ambiguous with respect to its scope, however.

10 Final Rule, Rules of Practice for Domestic Licensing Proceeding -Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (August 11, 1989) ("1989 Final Procedural Rule"). When it was originally promulgated in 1989, the regulation governing admission of NEPA contentions was codified as 10 C.F.R. § 2.714(b)(2)(iii).

In 2004, the same regulation was re-codified as 10 C.F.R. § 2.309(0(2). Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,218, 2,240 (January 14, 2004).

13

Moreover, an interpretation of a regulation should be consistent with the overall regulatory scheme. Duke Energy Corp. (Catawba Nuclear Station, Units I and 2), LBP-05-10, 61 NRC 241, 299 (2005), rev'don other grounds, CLI-05-14, 61 NRC 359 (2005)

("Catavba")(finding that a proposed interpretation of a regulation was inconsistent with both its plain meaning and the "broader context" of the regulatory scheme.) Here, the overall regulatory scheme established by the Commission for license renewal hearings contemplates that the scope of license renewal hearings will be the same as the scope of the NRC Staff's review. Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,482 n.2 (May 8, 1995) ("The scope of Commission review determines the scope of admissible contentions in a renewal hearing absent a Commission finding under 10 CFR 2.758"). See also Turkey Point, 54 NRC at 10; LBP-06-20, slip op. at 26 n.32. Under these standard principles of statutory interpretation, Turkey Point may not be interpreted to undermine the Commission's basic regulatory scheme for license renewal hearings.

D. Turkey PointIs Inconsistent with NEPA.

If the ASLB has correctly applied Turkey Point, the Commission should reconsider Turkey Point because it is inconsistent with NEPA and the NRC's regulatory scheme for implementing that statute. Catawba,61 NRC at 299. As discussed in Marsh, NEPA is an "action-forcing" statute that requires federal agencies to continue to take a "hard look" at the effects of their proposed actions. Robertson v. Methow Valley ConservationCouncil, 490 U.S. 332, 349 (1989). The agency's obligation to closely scrutinize environmental impacts continues even after those actions have been approved, up until the time the actions are taken. Marsh, 490 U.S. at 372-73. Under NRC's 14

regulatory scheme, license renewal applicants have the initial responsibility of assessing whether new and significant information warrants the supplementation of their previous EISs for their facilities. 10 C.F.R. § 51.53(c)(3)(iv). The NRC demands that the environmental analysis in an ER must be carried out with the same level of rigor as though it were an EIS. 1989 Final Procedural Rule, 54 Fed. Reg. at 33,172 ("Any license or permit application subject to NEPA's impact statement requirement must contain a complete Environmental Report (ER) which is essentially the applicant's proposal for the DEIS.") In contradiction of the regulatory scheme's provision for a rigorous initial environmental review in an ER, Turkey Point weakens the process by shielding licensees from litigation when they fail to comply with 10 C.F.R. § 51.53(c)(3)(iv).

By protecting licensees from contentions regarding their compliance with 10 C.F.R. §§ 51.53(c)(3)(iv), Turkey Point effectively shifts accountability for identifying new and significant information from the licensee to the NRC Staff and the public. This shift in accountability will not only delay the raising of environmental issues in the decision-making process, but may decrease the quality of information considered, given that licensees have access to a great deal of information about the environmental risks of their plants that is not in the NRC's possession.

E. The Attorney General's Contention is Admissible.

Although LBP-062- does not rule on the admissibility of the Attorney General's contention, in dicta it suggests that the Attorney General more than met the standard for gaining admission of a contention. LBP-06-20, slip op. at 27. While both Entergy and the NRC Staff disputed whether the information Entergy submitted was actually "new,"

the ASLB's decision emphasizes that "the AG need not prove that the various documents 15

actually contain new and significant information, but instead need only '[p]rovide a concise statement of the alleged facts or expert opinions which support' the contention and '[p]rovide sufficient information to show that a genuine dispute exists' on this point."

LBP-06-20, slip op. at 27, citing 10 C.F.R. § 2.309(f)(1)(v) and (vi)."1 The Attomey General's contention clearly meets this standard. The Commission therefore should reverse LBP-06-20 and admit the contention.

The Commission should also apply the Ninth Circuit's ruling in Mothersfor Peace by requiring that the scope of the admitted contention includes the adequacy of Entergy's ER to consider the environmental impacts of intentional attacks on the Vermont Yankee spent fuel pool. The Commission should also reconsider its recent decision refusing to apply the Ninth Circuit decision in a license renewal proceeding, Amergen Energy Company, L.L.C. (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24 (September 6, 2006). In that case, the Commission decided to postpone a ruling on whether it should apply Mothersfor Peace in the Oyster Creek case, because the time for petitioning for certiorari had not run.

11 In dicta the ASLB also makes the observation that the risks of spent fuel pool accidents "have been studied and debated since 1979." LBP-06-20, slip op. at 27. But the ASLB fails to recognize that (a) unilateral pronouncements by NRC officials on the risks of pool fires do not amount to a debate, (b) the pronouncements are irrelevant to the Vermont Yankee license renewal proceeding because they were not issued in conformance with NEPA's procedural requirements for the issuance of draft environmental impact statements and the taking of public comment. See Attorney General's Reply at 19-23. The ASLB's suggestion that the issues raised by the Attorney General are not new because they "have been the subject of substantial litigation" is also without merit. Id., citing CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-19, 52 NRC 85 (2000), aff'd, CLI-01-11, 53 NRC 370 (2001) and cases cited in NRC Staff Response at 16 n.10. The ASLB's ultimate conclusions in the Harris case regarding the likelihood of spent fuel pool accidents cannot be applied across the board to Vermont Yankee because of significant differences in the plants' designs. See Hearing Request at 24 n. 13.

16

The deadline for petitions for certiorari of the Mothersfor Peace decision was September 29, and thus the time for appealing the decision has now run. Although the licensee (Pacific Gas & Electric Company) has filed a petition for certiorari, to the Attorney General's knowledge the NRC itself has not appealed the ruling, thus indicating its acceptance of the Ninth Circuit's decision. In any event, the Ninth Circuit issued its mandate on September 12, 2006, and thus the Mothersfor Peace is now the law in the Ninth Circuit. Vizcaino v. Microsoft Corporation, 173 F.3d 713, 719 (9 th Cir. 1999)

(mandate enforceable in inferior court); FederalCommunicationsCommission v.

Pottsville BroadcastingCo., 309 U.S. 134, 145 (1940) (mandate enforceable in administrative agency for correction of legal errors). As such, it constitutes an applicable precedent for other Circuit Courts of Appeals and the Commission. Moreover, the legal effect of the Mothersfor Peace decision is not stayed by the filing of a petition for certiorari. Fed.R.App.Proc. 41.

Finally, the Commission should consider the prudent approach to the Mothersfor Peace decision set forth in Commissioner Jaczko's dissenting opinion in the Oyster Creek case:

... [T]he NEPA terrorism issue is a significant matter that needs resolution. I believe the agency should conduct a review of the impacts of terrorist attacks on nuclear facilities as part of a NEPA analysis. More importantly, I believe continuing to refuse to consider the environmental impacts of terrorist attacks will subject the agency to unnecessary judicial challenges. Thus, I am fully supportive of all efforts to give this matter the thorough and deliberate review warranted.

Id., slip op. at 19 (dissenting opinion of Commissioner Gregory B. Jaczko).' 2 12 In LBP-06-20, the ASLB concludes that it is not necessary to evaluate the environmental impacts of intentional attacks on the Vermont Yankee spent fuel pool because environmental impacts of sabotage were previously considered in the License Renewal GELS. LBP-06-20, slip op. at 28-29. In reaching this conclusion, the ASLB 17

IV. CONCLUSION For the foregoing reasons, the Commission should reverse LBP-06-20 and order the admission of the Attorney General's contention.

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS By its Attorneys, THOMAS F. REILLY ATTORNEY GENERAL Djiane Curran Harmon Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 dcurran@harmoncurran.com

. AafW\e.) 6(CLW DC9/j Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 617/727-2200 matthew.brock@ago.state.ma.us October 3, 2006 overlooks the fact that environmental impacts of spent fuel pool accidents are distinct in both characteristics and consequences from reactor accidents. See Hearing Request at 41-42. Therefore not only are their impacts different, but alternatives for avoidance or mitigation of accidents are different. Id.

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