ML063120343

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Pilgrim - Massachusetts Attorney General'S Brief on Appeal of LBP-06-23
ML063120343
Person / Time
Site: Pilgrim
Issue date: 10/31/2006
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
Giitter R
References
50-293-LR, ASLBP 06-848-02-LR, LBP-06-23, RAS 12485
Download: ML063120343 (28)
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Text

UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE COMMISSION October 31, 2006 (11:34am)

In the Matter of )

) OFFICE OF SECRETARY RULEMAKINGS AND Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR ADJUDICATIONS STAFF (Pilgrim Nuclear Power Station)

))

MASSACHUSETTS ATTORNEY GENERAL'S BRIEF ON APPEAL OF LBP-06-23 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 d c riran(t),Iharmonc urra n.conm Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 617/727/2200 X 2425 inatthew. brock(iý,,,a oo. state. ma. us October 31, 2006 7TF-. 0t4"f::L0+} T S*' ,0 5 6 C-ý-/ -0 1

TABLE OF CONTENTS

1. IN T R O D U C T IO N .......................................................................... 1 II. FACTUAL AND PROCEDURAL BACKGROUND ................................... 4 A. Attorney General's Contention ................................................. 4 B. O ppositions to C ontention ........................................................ 7 C. Rulemaking Petition ........................................................... 8 D. L B P 20 ....................................................................... 10 E. L B P 2 3 ........................................................................... 11 A R G UM EN T ...................................................................................... 13 III. THE ASLB SHOULD HAVE ADMITTED THE ATTORNEY GENERAL'S CONTENTION ......................................................................... 13 A. Turkey Point is Inapplicable and Inconsistent with the History and Scheme of NRC Regulations ........................................................ 14 B. The ASLB's Interpretation of Turkey Point is Inconsistent with NEPA... 16 C. The ASLB's Interpretation of Turkey Point Undermines the Commission's Stated Goal of Providing Open, Understandable, And Accessible Procedural Regulations ..................................... 16 D. The Commission Should Apply the Mothersfor Peace Decision...... 18 E. The Commission Must Meet Its Statutory Obligations Under NEPA and the Atomic Energy Act ........................................ 18 IV. CONCLUSION ......................................................................... 12

TABLE OF AUTHORITIES Judicial Decisions Baltimore Gas & Electric v. Natural Resources Defense Council, 462 U .S . 87 (1983) ...................................................................... 3, 19 McElroy Electronics Corp. v. FCC, 990 F.2d 1351(D.C. Cir. 1993) ........... 16, 17 Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) ................ 6, 10 San Luis Obispo Mothersfor Peace v. NRC, 449 F .3d 10 16 ( 9 th C ir. 2006) ...................................................................... 6, 10, 18 Administrative Decisions Amergen Energy Company, L.L.C. (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24 (September 6, 2006) ...................... 18 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP-05-10, 61 NRC 241 (2005), rev'don other grounds, CLI-05-14, 61 NRC 359 (2005)... 15 Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358 (2002) ............... 10, 11 Entergy Nuclear Vermont Yankee, L.L. C. and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station),

LBP-06-20, __ NRC __ (September 22, 2006) ................................... passim FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) .................................... passim WranglerLaboratories,et. al., ALAB-951, 33 NRC 505 (1991) ................. 15 Statutes National Environm ental Policy Act ................................................ passim Atomic Energy Act 42 U .S.C . § 2239(a)(1) ...................................................... 3, 19 42 U .S.C . § 2239(b) ........................................................ 17 ii

Regulations 10 C .F .R. § 2 .3 06 ......................................................................... 2 0 10 C .F .R . § 2.309(f) ............................................................. 11, 13, 17 10 C .F .R. § 2 .3 11(b) ............................................................. 1, 13, 14 10 C .F .R . § 2 .335(b) .................................................................... 10 10 C F R § 2.758 ......................................................................... 15 10 C .F.R . § 51.53(c)(3)(iv) ......................................................... passim Federal Register Notices Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,218 (January 14, 2004) ........................................................................ 16 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) .................................................. 15 Final Rule, Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38,474 (September 18, 1990) ("Waste Confidence Rule") ............ 4 Final Rule, Rules of Practice for Domestic Licensing Proceeding -

Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (A ugust 11, 1989) ....................................................................... 16 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, 6 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) ("N A S Report") .......................................................... 4 NUREG-0757, Generic Environmental Impact Statement for Handling and Storage of Spent Light Water Reactor Fuel (1979) .............................. 4 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants ................................................. 4, 6 NUREG- 1738, Final Technical Study of Spent Fuel Pool Accident Risk iii

and DecommissioningNuclear Power Plants (January 2001) ..................... 4 Public Meeting, "Briefing on the Status of Issues and Approach to GEIS Rulemaking for Part 51" (February 19, 1993) .................................. 14 SECY-93-092, Memorandum from James M. Taylor, EDO, to the Commissioners (February 9, 1993) ........................................... 14 Gordon Thompson, Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Pow er Plants (M ay 25, 2006) ........................................................... 4 iv

October 31, 2006 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) ))

MASSACHUSETTS ATTORNEY GENERAL'S BRIEF ON APPEAL OF LBP-06-23

1. INTRODUCTION Pursuant to 10 C.F.R. § 2.311 (b), the Attorney General of Massachusetts

("Attorney General") submits this brief on appeal of the LBP-06-23, Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch) (October 16, 2006) ("LBP-06-23"). The Attorney General appeals the portion of LBP-06-23 which denies admission of the single contention he submitted to the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") in its proceeding to consider Entergy Nuclear Operations, Inc.'s ("Entergy's") application for renewal of its license to operate the Pilgrim nuclear power plant. The contention charges that Entergy's Environmental Report ("ER") fails to satisfy the National Environmental Policy Act ("NEPA") and implementing regulation 10 C.F.R. § 51.53(c)(3)(iv) 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 Pilgrim fuel pool.

The Attorney General's contention in the Pilgrim license renewal proceeding is virtually identical to a contention the Attorney General submitted in the Vermont Yankee license renewal proceeding and the Vermont Yankee Atomic Safety and Licensing Board

("ASLB") rejected in Memorandum and Order (Ruling on Standing, Contentions, Hearing Procedures, State Statutory Claim, and Contention Adoption) (September 22, 2006) ("LBP-06-20"). The rationales for LBP-06-23 and LBP-06-20 are also virtually identical: 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-06-23, slip op. at 31-32, 34; LBP-06-20, slip op. at 21, citing FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 6-13 (2001) ("Turkey Point"). In addition, both the Pilgrim and the Vermont Yankee ASLBs pointed out significant inconsistencies between Turkey Point and the NRC's regulatory scheme for consideration of contentions in license renewal proceedings. LBP-06-23, slip op. at 38-39; LBP-06-20, slip op. at 22-23.

Turkey Point is inapplicable to the Attorney General's contentions in both the Pilgrim and Vermont Yankee proceedings because it does not specifically address the admissibility of a contention challenging a license renewal applicant's failure to comply with 10 C.F.R. § 51.53(c)(3)(iv). Even assuming for purposes of argument that Turkey Point does apply, the Commission should reconsider Turkey Pointbecause it is inconsistent with NEPA and the NRC's own regulatory scheme for implementation of NEPA and consideration of contentions in license renewal proceedings.

2

In both the Pilgrim and Vermont Yankee cases, the Commission should admit the Attorney General's contentions because they meet the NRC's regulatory standards for admission of a NEPA contention. 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. NaturalResources Defense Council, 462 U.S. 87, 100-01 (1983). Thus, the Commission may decide whether to reverse LBP-06-23 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 meet its NEPA obligation to consider the new and significant information the Attorney General submitted regarding the environmental impacts of high-density pool storage of spent fuel, and it must also meet its obligation under Section 189a of the Atomic Energy Act [42 U.S.C. § 2239(a)(1)] to offer the Attorney General a hearing on whether the decision to issue Entergy a renewed operating license complies with NEPA. In any event, the Commission should clarify the considerable confusion the Turkey Point decision has created 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).

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 petition and assigned it Docket No. PRM 51-10. Letter from Michael T. Lesar to Diane Curran (September 21, 2006).

3

Because the Attorney General's contentions and the decisions rejecting them are so similar, the Attorney General recommends that his appeals be considered together.

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 Pilgrim nuclear power plant. 2 The Attorney General's contention challenged the adequacy of Entergy's ER to comply with 10 C.F.R. § 51.53(c)(3)(iv) and NEPA because it fails to address significant new information bearing on the environmental impacts of continued high-density pool storage of spent fuel at the Pilgrim plant. 3 The contention was supported by the expert declarations and reports of Drs. Gordon Thompson and Jan Beyea regarding the likelihood and consequences of spent fuel pool accidents at the Pilgrim nuclear power plant.4 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 Pilgrim Nuclear Plant Operating License, etc.("Hearing Request").

3 The Attorney General also submitted a virtually identical hearing request in the Vermont Yankee 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 Vermont Yankee Nuclear Plant Operating License, etc.

(May 26, 2006).

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").

4

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 the Attorney General commissioned, 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 burn 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 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 ("EISs") regarding the impacts of spent fuel storage. Hearing Request at 24-29, citing License Renewal Id. The new information consists of Dr. Thompson's expert report (see note 4, supra); NUREG- 1738, Final Technical Study of Spent Fuel Pool Accident Risk and DecommissioningNuclear 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 Commnercial Spent Nuclear Fuel Storage (The National Academies Press: 2006) ("NAS Report").

5

GEIS, 1979 GEIS, 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 Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 ( 9th Cir.

2006) ("Mothersfor Peace"). Letter from Diane Curran to Ann Marshall Young, et al, re: Pilgrim License Renewal Proceeding, Docket No. 50-293-LR (June 16, 2006).

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 GEIS or any other EIS for a nuclear power plant license or spent fuel storage, and because it would 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 ").

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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.6 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 13-14, NRC Staff's Answer at 10-18. 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.

The Attorney General defended the admissibility of his contention in a reply brief, at oral argument on July 6, 2006; and in a supplemental brief requested by the ASLB.7 In 6 Entergy's Answer to Massachusetts Attorney General's Request for a Hearing, Petition to Intervene, and Petition for Backfit Order (June 22, 2006) ("Entergy Answer");

NRC Staffs Answer Opposing Massachusetts Attorney General's Request for Hearing and Petition to Intervene and Petition for Backfit (June 22, 2006) ("NRC Staff Answer").

7 Massachusetts Attorney General's Reply to Entergy's and NRC Staffs Responses to Hearing Request and Petition to Intervene With Respect to Pilgrim License Renewal Proceeding (June 30, 2006); Massachusetts Attorney General's Brief Regarding 7

the 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 89.

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 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 Relevance to This Proceeding of Regulatory Guide's Definition of "New and Significant 8

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 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 17.8 The Rulemaking Petition asks the Commission to withhold any decision to renew the operating licenses for the Pilgrim and Vermont Yankee nuclear power plants until it has completed the requested rulemaking proceeding 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 Petition also asks the Commission to suspend the consideration of the Attorney General's contentions in the Information" at 7 (July 21, 2006) 8 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). In LBP-06-23, the ASLB agrees with the Attorney General's reasoning. See discussion below at n. 12.

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individual license renewal proceedings for the Pilgrim and Vermont Yankee nuclear power plants. Id.

D. LBP-06-20 On September 22, 2006, the Vermont Yankee ASLB issued LBP-06-20, denying admission of the Attorney General's contention on the ground that Turkey Point precludes admission of an environmental contention regarding a Category I issue. LBP-06-20, slip op. at 21. Relying on Turkey Point, LBP-06-20 also rejected the aspect of the Attorney General's contention that faults Entergy's ER for failing to consider the environmental impacts of intentional attacks on the Vermont Yankee spent fuel storage pool. LBP-06-20, slip op. at 28, citing Turkey Point, 54 NRC at 12.9 Finally, LBP-06-20 relied on Turkey Pointto reject the portion of the Attorney General's contention seeking consideration of severe accident mitigation alternatives ("SAMAs") for spent fuel pool 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, however, LBP-06-20 pointed out significant aspects in which the Turkey Point decision contradicts the Commission's regulatory scheme for consideration of NEPA issues in licensing adjudications. LBP-06-20, slip op.

at 22-27.

9 In addition, LBP-06-20 relies on the Commission's holding in Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-26, 56 NRC 358, 365 (2002) ("Catawba/McGuire"),that contentions regarding environmental impacts of terrorist attacks need not be considered in individual license renewal cases because they were already considered in the License Renewal GEIS. Id.,

slip op. at 28-29.

10

The Attorney General appealed LBP-06-20.l 0 Entergy and the NRC Staff both opposed the appeal.'

E. LBP-06-23 On October 16, 2006, the Pilgrim ASLB issued LBP-06-23, denying the Attorney General's contention. LBP-06-23 is similar to LBP-06-20 in significant respects. Like LBP-06-20, LBP-06-23 does not address the admissibility of the Attorney General's contention under 10 C.F.R. § 2.309(f). LBP-06-20, slip op. at 32, 45 n.173. Instead, LBP-06-23 makes a threshold ruling that the Commission's Turkey Point decision precludes admission of the contention because the contention raises a Category 1 issue.

LBP-06-23, slip op. at 44. Like LBP-06-20, LBP-06-23 concludes that the Attorney General must first seek a waiver of the Category 1, either through a rulemaking petition or a waiver petition. 12 Like LBP-06-20, LBP-06-23 also relies on Turkey Point to reject the aspect of the Attorney General's contention that faults Entergy's ER for failing to consider the environmental impacts of intentional attacks on the Pilgrim spent fuel storage pool. LBP-10 Massachusetts Attorney General's Brief on Appeal of LBP-06-20 (October 3, 2006) ("AG's Brief on Appeal of LBP-06-20").

11 Entergy's Brief in Opposition to the Massachusetts Attorney General's Appeal of LBP-06-20 (October 13, 2006) ("Entergy's Opposition Brief on Appeal of LBP 20"), NRC Staff's Brief in Opposition to Massachusetts Attorney General's Appeal of LBP-06-20 (October 13, 2006) ("NRC Staff's Opposition Brief on Appeal of LBP 20").

12 Id. at 44-45. Between these options, the ASLB recognizes that a waiver petition would be futile because the issues the Attorney General raises are "broadly applicable," whereas waiver petitions must raise issues that are "particular" to a plant or plants involved in a proceeding. Id., n. 172.

11

06-23, slip op. at 45, citing Turkey Point, 54 NRC at 12." Finally, the ASLB relies on Turkey Point to reject the portion of the Attorney General's contention seeking consideration of severe accident mitigation alternatives ("SAMAs") for spent fuel pool accidents, on the ground that SAMAs are not required for spent fuel accidents because SAMAs are not required for Category 1 impacts. LBP-06-23, slip op. at 33-38, citing Turkey Point,54 NRC at 21-22.

Also like LBP-06-20, LBP-06-23 points out significant inconsistencies between Turkey Point and the Commission's regulatory scheme for consideration of NEPA issues in licensing adjudications. As the ASLB observes, Commission precedent supports a reading that 10 C.F.R. § 51.53(c)(3)(iv):

in effect creat[es] an exception to § 51.53(c)(3)(i)'s allowance that an applicant's ER 'is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category I issues in Appendix B.'

LBP-06-23, slip op. at 38, quoting 10 C.F.R. § 51.53(c)(3)(i). The ASLB also notes a significant internal inconsistency within Turkey Point. As the ASLB observes, "in an adjudication context," the right to a hearing on the question of whether a license renewal applicant complies with 10 C.F.R. § 51.53(c)(3)(iv) may be inferred from the Commission's statement in Turkey Pointthat: '[a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review." Id. at 39. Yet "other statements of the Commission in Turkey Point... lead to a contrary conclusion," i.e., that "any new and significant information on matters 13 Like LBP-06-20, LBP-06-23 also relies on Catawba/McGuireto hold that contentions regarding environmental impacts of terrorist attacks need not be considered in individual license renewal cases. LBP-06-23, slip op. at 45-46. See also note 9, supra.

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designated as Category I issues in Part 51 may be initiated by petitioners only through means other than the submission of contentions." Id.

Nevertheless, LBP-06-23 finds evidence in the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv) that the Commission intended to exclude Category I issues from the scope of license renewal hearings. LBP-06-23, slip op. at 41-43. Thus, LBP-06-23 concludes that "while it might have been preferable to have written into the rule itself the prohibition on allowing contentions based on the exception to § 51.53(c)(3)(i) found at § 51.53(c)(3)(iv) and allegations of 'new and significant information' as therein provided,"

Turkey Point and the history of 10 C.F.R. § 51.53(c)(3)(iv) compel dismissal of the contention. Id., slip op. at 44.

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

Pursuant to 10 C.F.R. § 2.311 (b), an order denying a hearing request is appealable as to whether the request "should have been granted." The Commission should reverse LBP-06-23 because it erroneously relies on Turkey Pointto deny admission of the Attorney General's contention. The Commission should rule that the ASLB has the authority to decide the question of whether the contention meets the admissibility criteria in 10 C.F.R. § 2.309(f) and remand the contention for a determination regarding whether the Attorney General has provided sufficient factual support for his contention to gain its admission.14 14 The ASLB declined to make such a finding in LPB-06-23. Slip op. at 32. If the Commission itself decides to address the question of whether the Attorney General has provided adequate factual support for his contention to meet the admissibility criteria in 10 C.F.R. § 2.309(f), it should admit the contention. As established in the contention 13

A. Turkey Point is Inapplicable and Inconsistent with the History and Scheme of NRC Regulations.

For the same reasons stated in the Attorney General's Brief on Appeal of LBP 20, the Commission should reverse LBP-06-23 and rule that the Attorney General's contention should have been reviewed for its admissibility and granted under 10 C.F.R. § 2.311(b). Rather than repeat his arguments in full, the Attorney General summarizes them and incorporates them by reference in this brief.

First, the Commission should rule that 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). Attorney General's Brief on Appeal of LBP-06-20 at 12.

Second, the Commission should reverse the ASLB's incorrect conclusion that Turkey Point is consistent with the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv). The ASLB's principal evidence for the Commission's intent in promulgating 10 C.F.R. § 51.53(c)(3)(iv) consists of statements made by NRC officials in a SECY paper and Commission meeting at the time of § 51.53(c)(3)(iv)'s promulgation. 15 But these statements were never made in the regulations themselves or their preamble, which contain no such limitation. Thus the statements must be given relatively little weight.

and as discussed in the Attorney General's reply pleading, supplemental briefing, and oral argument, the Attorney General has met all of the requirements of 10 C.F.R. § 2.309 by asserting a genuine and material dispute with Entergy regarding the adequacy of its NEPA analysis under 10 C.F.R. § 51.53(c)(3)(iv). If anything, the Attorney General has exceeded those requirements. See LBP-06-20, slip op. at 27.

" LBP-06-23, slip op. at 41-42, citing SECY-93-092, Memorandum from James M. Taylor, EDO, to the Commissioners (February 9, 1993); Public Meeting, "Briefing on the Status of Issues and Approach to GEIS Rulemaking for Part 51" (February 19, 1993).

14

Attorney General's Brief on Appeal of LBP-06-20 at 13, citing Wrangler Laboratories, et. al., ALAB-951, 33 NRC 505, 513-14 (1991).16 Moreover, the statements the ASLB relies on should be discounted because they do not square with the NRC's overall regulatory scheme for the litigation of contentions in license renewal cases. Massachusetts Attorney General's Brief on Review of LBP 20 at 14, citing Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP 10, 61 NRC 241, 299 (2005), rev'don other grounds, CLI-05-14, 61 NRC 359 (2005).

The ASLB's interpretation of the regulatory history of 10 C.F.R. § 51.53(c)(3)(iv) cannot be reconciled with the Commission's statement, in promulgating the license renewal regulations, that "[t]he scope of Commission review determines the scope of admissible contentions in a renewal hearing absent a Commission finding under 10 CFR 2.758," i.e.,

issuance of a waiver. Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,482 n.2 (May 8, 1995).17 Nor can the ASLB's interpretation be squared with the general regulatory scheme for consideration of contentions, which "makes clear" that "to the extent an environmental issue is raised in the applicant's ER, an intervenor must file contentions on that document" in order to obtain a hearing on 16 The ASLB states that the relationship between 10 C.F.R. § 51.53(c)(3)iv) and 10 C.F.R. § 51.53(c)(3)(i) is ambiguous because there is "no 'plain language' explicitly stating that § 51.53(c)(3)(iv) creates an exception to § 51.53(c)(3)(i)." LBP-06-23, slip op. at 43 n.170. By its own terms, however, § 51.53(c)(3)(iv) establishes an exception to

§ 51.53(c)(3)(1). Section 51.53(c)(3)(iv) establishes a mechanism, consistent with Marsh, for revisiting previous determinations regarding environmental impacts - both plant-specific and generic - in light of new and significant information or changed circumstances.

17 Moreover, as both the Pilgrim and Vermont Yankee ASLB recognize, the Commission reiterated this description of the regulatory scheme in Turkey Point. LBP-06-20, slip op. at 26 n.32; LBP-06-23, slip op. at 39. Both the Pilgrim ASLB and the Vermont Yankee ASLB concluded that the scope of the applicant's and NRC Staff's 15

NEPA issues. Attorney General's Brief on Appeal of LBP-06-20 at 13, citing 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).

B. The ASLB's Interpretation of Turkey Point Is Inconsistent with NEPA.

If the ASLB has correctly applied Turkey Point,the Commission should reconsider Turkey Point because it is inconsistent with NEPA. See Attorney General's Brief on Appeal of LBP-06-20 at 14-15. Turkey Point weakens the NRC's NEPA review process by shielding licensees from litigation when they fail to comply with 10 C.F.R. § 51.53(c)(3)(iv). Id.

C. The ASLB's Interpretation of Turkey PointUndermines the Commission's Stated Goal of Providing Open, Understandable, and Accessible Procedural Regulations.

As the U.S. Court of Appeals for the D.C. Circuit has held, "an applicant should not be placed in a position of going forward with an application without knowledge of requirements established by the Commission, and elementary fairness requires clarity of standards sufficient to apprise an applicant of what is expected." McElroy Electronics Corp. v. FCC,990 F.2d 1351, 1358 (D.C. Cir. 1993). Consistent with this judicial standard, the Commission has declared that one of the "cornerstones" of its regulatory approach "has always been ensuring that its review processes and decisionmaking are open, understandable, and accessible to all interested parties." Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182 (January 14, 2004).

review under 10 C.F.R. § 51.53(c)(3)(iv) includes Category 1 issues. LBP-06-23, slip op.

at 38-9; LBP-06-20, slip op. at 22.

16

In contravention of its commitment to procedural clarity, LBP-06-23's ASLB's interpretation of Turkey Point has thrown the process for applying for a hearing on Category 1 license renewal issues into confusion. While 10 C.F.R. § 2.309(f) appears to impose an ironclad obligation to base NEPA contentions on a license renewal applicant's failure to comply with NRC's NEPA requirements, LBP-06-23 interprets Turkey Point to create a special exception for 10 C.F.R. § 51.53(c)(3), for which the petitioner must follow one of several alternative procedures: a rulemaking petition, waiver petition, or commenting on the draft Supplemental EIS. Yet neither Turkey Pointnor the Commission's regulations provide any assurance that a petitioner who follows'the alternative procedure instead of submitting a timely contention under 10 C.F.R. § 2.309(f) will eventually receive an opportunity to file a contention if the NRC refuses to change its previous generic determination of no significant impact or if its discussion of severe accident mitigation alternatives ("SAMAs") in a Supplemental EIS for the plant is 18 inadequate.

Moreover, both LBP-06-23 and Turkey Point suggest that commenting on a draft Supplemental EIS may be an effective substitute for submitting a waiver petition or a rulemaking petition. LBP-06-23, slip op. at 43-44 and n.169 ("It is not required that the public participation aspect of NEPA be accomplished in an adjudicatory proceeding.")

See also Turkey Point, 54 NRC at 12. If that is the case, the Commission should clarify 18 As requested in the Attorney General's Rulemaking Petition at 20, the NRC should not only issue a generic determination that environmental impacts of high-density pool storage of spent fuel are significant, but it should also 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 ELS that addresses (i) the environmental impacts of high-density pool storage of spent fuel at that nuclear plant and (ii) a 17

that it would consider a party who chooses to comment on a draft Supplemental EIS rather than request a hearing to have exhausted his or her administrative remedies for purposes of appealing the NRC's final licensing decision under 42 U.S.C. 2239(b). If that is not the case, the Commission should make clear its view that only a party who has participated in the hearing process or a rulemaking is entitled to challenge the licensing decision to a federal court. A clear and thorough explanation of the procedures for raising new and significant information in a license renewal proceeding is necessary to ensure the "elementary fairness" to which hearing requesters are entitled. McElroy Electronics Corp. v. FCC, 990 F.2d at 1359.

D. The Commission Should Apply the Mothersfor Peace Decision.

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 Pilgrim spent fuel pool. See Attorney General's Brief on Appeal of LBP-06-20 at 16-17. The Commission should 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).

Id.

E. The Commission Must Meet Its Statutory Obligations Under NEPA and the Atomic Energy Act.

As discussed above, the Attorney General's contention should be admitted because it meets the NRC's regulatory standards for admission of a NEPA contention.

reasonable array of alternatives for avoiding or mitigating those impacts. Rulemaking Petition at 20.

18

Nevertheless, the Attorney General recognizes that the Commission alternatively has the discretion to reconsider its Category 1 designation of spent fuel pool accidents through a rulemaking. See Turkey Point, 54 NRC at 14, citing Baltimore Gas & Electric v. Natural Resources Defense Council, 462 U.S. at 100-01. Thus, the Commission may decide whether to reverse LBP-06-23 or grant the Attorney General's August 25, 2006, Rulemaking Petition by revoking its previous generic determination that the environmental impacts of high-density pool storage of spent fuel are insignificant.

The Commission does not have discretion, however, to deny the Attorney General any opportunity to challenge the Category 1 designation of spent fuel pool accidents.

NEPA requires that the NRC must address "new and significant information" regarding the environmental impacts of license renewal before it allows Entergy to operate the Pilgrim nuclear power plant another 20 years. Marsh, 490 U.S. at 374. Moreover, the Atomic Energy Act requires the NRC to offer the Attorney General a hearing on whether the NRC has satisfied NEPA. 42 U.S.C. § 2239(a)(1). While the Commission may choose to satisfy these statutory requirements by allowing the ASLB to consider the Attorney General's contention or by granting the Attorney General's rulemaking petition, it may not refuse to consider the Attorney General's concerns entirely.

IV. CONCLUSION For these reasons, the Commission should reverse LBP-06-23 and order the 19 admission of the Attorney General's contention.

19 The Attorney General anticipates that Entergy will argue that this brief is out of time, because Entergy made that argument with respect to the Attorney General's appeal of LBP-06-20. Entergy's Opposition Brief on Appeal of LBP-06-20 at 5-6. The Attorney General's briefs in both the Vermont Yankee and Pilgrim cases are timely.

NRC regulation 10 C.F.R. § 2.311 (a) requires that appellate briefs must be filed "within 19

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS By its Attorneys, THOMAS F. REILLY

  • _ATTORNEY GENERAL Diane Curran Harmon Curran, Spielberg & Eisenberg, L.L.P.

i726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 dcurranif harmoncu rran.com Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 617/727-2200 matthew.brockOizago.state.ma.us October 31, 2006 ten (10) days after service of the order." As stated on the certificates of service accompanying LBP-06-20 and LBP-06-23, both decisions were served on the Attorney General by first-class mail. Therefore, pursuant to 10 C.F.R. § 2.306, the Attorney General was entitled to add five days to his response period for service by first-class mail.

20

CERTIFICATE OF SERVICE I certify that on October 31, 2006, copies of the foregoing Massachusetts Attorney General's Brief on Appeal of LBP-06-31 were served on the following by first-class mail and/or electronic mail, as indicated below:

Ann Marshall Young, Chair Matthew Brock, Esq.

Atomic Safety and Licensing Board Panel Assistant Attorney General Mail Stop: T-3F23 Office of the Mass. Attorney General U.S. Nuclear Regulatory Commission Environmental Protection Division Washington, DC 20555-0001 One Ashburton Place, Room 1813 Also by E-mai!: a.y@nrc.gov Boston, MA 0210 8-1598 Also by E-mail:

matthew. brock(&aao.state .ma.us Richard F. Cole Susan L. Uttal, Esq.

Atomic Safety and Licensing Board Panel Marian L. Zobler, Esq.

Mail Stop: T-3F23 Mail Stop 0-15D21 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Also by E-mail: rfc I1(.nrc.gov Washington, D.C. 20555 Also by E-mail: sluI(nrc.*ov; in lz(L)nrc. gov Paul B. Abramson Molly H. Bartlett, Esq.

Atomic Safety and Licensing Board Panel 52 Crooked Lane Mail Stop: T-3F23 Duxbury, MA 02332 U.S. Nuclear Regulatory Commission Also by E-mail:

Washington, DC 20555-0001 mollvlibartlett(?.hotrnail com Also by E-mail: PBA@),nrc.gov Office of Commission Appellate Terence A. Burke, Esq.

Adjudication Entergy Nuclear Mail Stop: O-16C1 1340 Echelon Parkway U.S. Nuclear Regulatory Commission Mail Stop: M-ECH-62 Washington, DC 20555-0001 Jackson, MS 39213 Also by E-mail: OCAAMail(tnrc.gov

Office of the Secretary* David R. Lewis, Esq.

Attn: Rulemaking and Adjudications Staff Paul A. Gaukler, Esq.

Mail Stop: O-16C1 Pillsbury, Winthrop, Shaw, Pittman, LLP U.S. Nuclear Regulatory Commission 2300 N Street, NW Washington, DC 20555-0001 Washington, DC 20037-1137 Also by E-mail: hcaringdocket@)nrc.gov Also by E-mail:

david.lewis(i~pillsburvlaw.com

  • ORIGINAL AND TWO COPIES paul.gaukler,7,pillsburvlaw.com Atomic Safety and Licensing Board Panel Mary Lampert

.ailStop: T-3 F123 I -to vv ashl ngton Sueet U.S. Nuclear Regulatory Commission Duxbury, MA 02332 Washington, DC 20555-0001 Also by E-mail: lam pert~ia-adelph ia.net Sheila Slocum Hollis, Esq.

Duane Morris L.L.P.

1667 K Street N.W., Suite 700 Washington, D.C. 20006 Also by E-mail:

S S-lHoll is(ad)d uanemorri s.com Diane Curran 2

October 31, 2006 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) ))

MASSACHUSETTS ATTORNEY GENERAL'S NOTICE OF APPEAL OF LBP-06-23 Pursuant to 10 C.F.R. § 2.31 (b), the Attorney General of Massachusetts

("Attorney General") notifies the Commission of its appeal of LBP-06-23, Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch) (October 16, 2006).

Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS By its Attorneys, THOMAS F. REILLY i,*jRNEY GENERAL Diane Curran Harmon Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 dcurran(Iiaharmoncurran.corn Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 matthew.brockL/a2o. state. ma. us

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