ML071080421

3/22/2007 - Commonwealth of Massachusetts, Petitioner V. USNRC No. 07-1483

ML071080421
Person / Time
Site:	Pilgrim
Issue date:	03/22/2007
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	Donovan R Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, 1st Circuit
Hamrick C, OGC, 301-415-4106
References
07-1483
Download: ML071080421 (81)

Text

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 07-1483 COMMONWEALTH OF MASSACHUSETTS Petitioner V.

UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents CASE OPENING SCHEDULING NOTICE Issued: 3/22/07 A petition for review, or application for enforcement, was received and docketed today by the Clerk of the Court of Appeals in compliance with Fed. R. App. P. 15.

If: the $450 docketing fee was not submitted with the petition, then it must be paid to the clerk of the Court of Appeals, in accordance with Fed. R. App. P. 15(e), within fourteen days of the date of this notice. Failure to pay said fee, or obtain in forma pauperis status, may result in the dismissal of this petition for review, or application for enforcement, for want of diligent prosecution.

The administrative record, or certified list, must be filed by 5/1/07. Fed.R.App.P.17. A notice advising you of the due date for the brief, and if necessary the appendix, will be sent upon the filing of the administrative record, or certified list, in this court.

The enclosed appearance form should be completed and returned immediately if you wish to file pleadings in this court.

If you have not been admitted to the Bar of the First Circuit Court of Appeals, you must file your appearance with an application and fee for admission. You must indicate the specific party you represent and file additional appearance forms if you represent more than one party on appeal.

See 1st Cir. R. 46.0. You may obtain an application for admission from our website, www.cal.uscourts.gov Richard Cushing Donovan, Clerk to: Diane Curran, Esq.

CC: Matthew T. Brock, Esq.

Mitzi A. Young, Esq.

Steven C. Hamrick, Esq.

David E. Roth, Esq.

OFFICE OF THE CLERK UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT UNITED STATES COURTHOUSE 1 COURTHOUSE WAY, SUITE 2500 BOSTON, MASSACHUSETTS 02210 (617) 748-9057 No. 07-1483 COMMONWEALTH OF MASSACHUSETTS Petitioner V.

UNITED STATES; UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents TO: Mitzi A. Young, Esq.

Office of the General Counsel U.S. NRC Mail Stop 0-15D21 Washington DC 20555 Steven C. Hamrick, Esq.

Office of the General Counsel U.S. NRC Mail Stop 0-15D21 Washington DC 20555 David E. Roth, Esq.

Office of the General Counsel U.S. NRC Mail Stop 0-15D21 Washington DC 20555 NOTICE Dated: March 22, 2007 Commonwealth of Massachusetts has this day filed in the United States Court of Appeals for the First Circuit, at Boston, Massachusetts, a petition for review (a copy of which is transmitted herewith) in the proceedings before said agency numbered 50293LR.

5/1/07 Richard Cushing Donovan, Clerk Service of this Notice is hereby acknowledged.

Signature Name

Agency Address (To be completed and returned to the above address.)

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT NOTICE TO COUNSEL AND PRO SE LITIGANTS Since this case willbe governed by the Federal Rules of Appellate Procedure and the First Circuit Local Rules, you should familiarize yourself with both sets of rules. Your attention is called specifically to the requirements listed below.

TRANSCRIPT REPORT/ORDER FORM: Appellant must immediately order any necessary transcript from the court reporter, using the form specified in 1st Cir. R. 10.0(b). Within 14 days after the appeal is docketed, appellant must file a copy of the transcript report/order form with the circuit clerk.

TIMELINESS: A brief is timely if it is mailed by First-Class mail, hand-delivered to the clerk, or given to a commercial carrier for three day delivery on the due date set in the schedule or order. All other papers must be received by the clerk's office within the time fixed for filing. Fed. R. App. P. 25(a).(2).

SEALED MATERIAL: To avoid the need to seal the entire brief or appendix, counsel shall place sealed or confidential material in a separate, sealed volume of the brief or appendix. 1st Cir. R. 11.0.

REFERENCES TO THE RECORD REQUIRED IN BRIEFS: To enable the court to verify the documentary bases of the parties' arguments, factual assertions must be supported by accurate references to the appendix or to the record. Counsel should ensure that transcripts cited in the briefs have been filed and made a part of the record on appeal. The appellant is responsible for preparing the appendix.

MOTIONS TO ENLARGE FILING DATES OR LENGTH OF BRIEFS: Motions for extensions of time to file briefs or to file briefs in excess of applicable length limitations are discouraged. Any such request must be made by a motion filed well in advance of the date the brief is due and must set forth the additional time or length requested and detailed reasons for the request.

CERTIFICATE OF SERVICE: The Court will not consider any motion, brief, or document that has not been served on all parties.

Therefore, all documents submitted for filing must contain a statement, preferably attached to the document's last page, indicating: the date of service; the manner of service and the names and addresses of the persons served. Fed. R. App. P. 25.

COMPUTER GENERATED DISK: A represented party must submit one copy of its brief, petition for rehearing, and any paper exceeding 10 pages in length on a 3 1/2" disk, or Windows-based CD or DVD, in WordPerfect for Windows, 5.1 or greater. 1st Cir. R. 32.0.

CORPORATE DISCLOSURE STATEMENT: Counsel representing corporations in proceedings before the Court must include a corporate disclosure statement in the first document filed with the Court, and again in front of the table of contents in a party's principal brief.

Fed. R. App. P. 26.1.

THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108-1598 MARTHA COAKLEY (617) 727-2200 ATTORNEY GENERAL www.ago. state.ma.us March 22, 2007 Richard Cushing Donovan, Clerk United States Court of Appeals for the First Circuit 1 Courthouse Way, Suite 2500 Boston, MA 02110 Re: Petitionfor Review of LBP-06-23 and CLI-07-03 (PilgrimNuclear Power Plant)

Dear Mr. Donovan:

Enclosed for filing please find:

1.) An original and three copies of a Petition for Review, including copies of two orders issued by the U.S. Nuclear Regulatory Commission ("NRC")

in the NRC's license renewal proceeding for the Pilgrim nuclear power plant; 2.) Pursuant to F.R.A.P. 15(c) and 28 U.S.C. § 2344, two additional copies of the Petition for service by the Clerk's office on the NRC and the Attorney General.

3.) Two Appearance forms executed by the counsel for the Commonwealth of Massachusetts; 4.) The filing fee of $450; 5.) Certificate of Service.

As attested in the attached Certificate of Service, copies of this Petition for Review and Appearances have been served on counsel for the following parties and interested agencies who have participated in the administrative proceeding below:

Staff of the U.S. Nuclear Regulatory Commission Entergy Nuclear Operations, Inc.

Entergy Nuclear Generation Company Town of Plymouth, Massachusetts Pilgrim Watch Finally, I request that you stamp and return an additional copy of the Petition with the docket number for our files.

Thank you.

Sincerely, Matthew Brock Assistant Attorney General Environmental Protection Division Commonwealth of Massachusetts cc: Service List (2)

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

)

COMMONWEALTH OF )

MASSACHUSETTS, )

)

Petitioner,

)

V. ) No.

)

UNITED STATES NUCLEAR REGULATORY )

COMMISSION and the UNITED STATES )

OF AMERICA, )

'~)*

Respondents )

PETITION FOR REVIEW OF U.S. NUCLEAR REGULATORY COMMISSION DECISIONS LBP-06-23 AND CLI-07-03 Pursuant to F.R.A.P. 15 and 28 U.S.C. § 2342-2344, Petitioner, the Commonwealth of Massachusetts ("Commonwealth), hereby petitions the Court for review of two orders by the U.S. Nuclear Regulatory Commission

("NRC" or "Commission"). The NRC issued the orders in a licensing proceeding concerning Entergy Nuclear Generation Company's and Entergy Nuclear Operations, Inc.'s ("Entergy's") application for a 20-year extension of the license to operate the Pilgrim nuclear power plant in Plymouth, Massachusetts. The Commonwealth timely requested party status and a hearing in the NRC licensing proceeding.

The Commonwealth seeks review of the following orders:

• Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006) (Attachment 1); and

• Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc.

(Pilgrim Nuclear Power Station), CLI-07-03, __ NRC __ (January 22, 2006) (Attachment 2).

The Commonwealth contends that by refusing to address, in an environmental impact statement ("EIS"), the environmental impacts of serious spent fuel pool accidents caused by a wide range of factors including terrorist attacks, natural phenomena, operator error, and equipment failure, the NRC violated the Atomic Energy Act, the National Environmental Policy Act, the Administrative Procedure Act, and NRC regulations for implementation of those statutes.

Therefore, the Commonwealth asks this Court to:

(a) review and reverse LBP-06-23 and CLI-07-03; 2

(b) order the NRC to prepare an EIS for the renewal of the Pilgrim operating license that addresses the environmental impacts of serious spent fuel pool accidents caused by a wide range of factors including terrorist attacks, natural phenomena, operator error, and equipment failure.

(c) declare that the NRC may not permit Entergy to continue to operate the Pilgrim nuclear power plant past the expiration of its current license in 2012 unless and until the NRC fully complies with its statutory and regulatory obligations for the renewal of the license; and (d) grant such other relief as the Court may deem appropriate.

3

Respectfully submitted, By its Attorneys, MARTHA COALKLEY 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 Matthew Brock, Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place Boston, MA 02108 617/727-2200 X 2425 March 22, 2007 4

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT APPEARANCE FORM (Please type or print all answers)

Case No.:

Case Name (short):Cormmonwealth of Massachusetts v. Nuclear Regulatory Commissi(

(Pilgrim Nuclear Power Plant)

FAILURE TO FILL OUT COMPLETELY MAY RESULT IN THE REJECTION OF THIS FORM AND COULD AFFECT THE PROGRESS OF THE APPEAL THE CLERK WILL ENTER MY APPEARANCE AS COUNSEL ON BEHALF OF:

Commonwealth of Massachusetts as the (Specify name of person or entity represented.)

If you represent a litigant who was a party below, but who is not a party on appeal,do not designateyourself as counselfor the appellant or the appellee.

[ appellant(s) [ appellee(s) [ ] amicus curiae

[XI petitioner(s) [ ] respondent(s) [ ] intervenor(s) not a party on appeal (Signature)

Name & Address:

Matthew Brock A.*sistanL AtLorne1y Genatl, -Environmental Protection Division Office of the Attorney G6eneral Commonawealtho-f Massaehusetts One Ashburrton Place, Boston, A 02108 Telephone: 617-727-2200 x2425 Court of Appeals Bar Number'l33742 Fax: 617-727-9665 EMail4atthew. Brock¶AGO. State. MA. US Has this case or any related case previously been on appeal?

Yes Court of Appeals No.

No X

IF YOU WILL NOT BE PARTICIPATING IN THIS CASE, PLEASE CHECK HERE AND RETURN, AND GIVE US THE NAME AND ADDRESS OF ANOTHER ATTORNEY, IF ANY, WHO WILL PROVIDE APPELLATE REPRESENTATION.

NOTE: Must be signed by an Attorney admitted to practice before the United States Court of Appeals for the First Circuit pursuant to 1st Cir. R. 46.0(a)(2). If you are applying for admission, please return this appearance form with your application for.

admission, including the admission fee.

If your name has changed since you were admitted to the First Circuit Bar PLEASE show the name under which you were admitted.

COUNSEL MUST COMPLETE & RETURN THIS APPEARANCE FORM IN ORDER TO FILE PLEADINGS IN THIS COURT

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT APPEARANCE FORM (Please type or print all answers)

Case No.: pending Case Name(short): Commonwealth of Massachusetts v. NRC FAILURE TO FILL OUT COMPLETELY MAY RESULT IN THE REJECTION OF THIS FORM AND COULD AFFECT THE PROGRESS OF THE APPEAL THE CLERK WILL ENTER MY APPEARANCE AS COUNSEL ON BEHALF OF:

Commonwealth of Massachusetts as the (Specify name of person or entity represented.)

Ifyou represent a litigant who was a party below, but who is not a party on appeal,do not designateyourselfas counselfor the appellant or the appellee.

[ appellant(s) [ ] appellee(s) [] amicus curiae

[c4 petitioner(s) [ ] respondent(s) [ ] intervenor(s)

[ ] not a party on appeal (Signature)

Name & Address:

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

1726 M Street N.W., Suite 600 Washington, D.C. 20036 Telephone: 202-_32R8-35;0 0 Court of Appeals Bar Number:_pienidg Fax: 202-328-691i E-Mail: dcurran@harmoncurran.com Has this case or any related case previously been on appeal?

Yes Court of Appeals No.

No X

CERTIFICATE OF SERVICE I certify that on March 22, 2007, copies of the foregoing Petition for Review of U.S. Nuclear Regulatory Commission Decisions LBP-06-23 and CLI-07-03 and Appearances were served by first-class mail on counsel or representatives to the parties to the U.S. Nuclear Regulatory Commission's license renewal proceeding for the Pilgrim nuclear power plant, as listed below:

Matthew Brock Susan L. Uttal, Esq. Terence A. Burke, Esq.

Marian L. Zobler, Esq. Entergy Nuclear Molly L. Barkman, Esq. 1340 Echelon Parkway Office of the General Counsel Mail Stop M-ECH-62 Mail Stop 15 D21 Jackson, MS 39213 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Molly H. Bartlett, Esq. David R. Lewis, Esq.

52 Crooked Lane Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, N.W.

Mary E. Lampert Washington, D.C. 20037 Director of Pilgrim Watch 148 Washington Street Duxbury, MA 02332 Sheila Slocum Hollis, Esq.

Mark D. Sylvia Town of Plymouth MA Town Manager Duane Morris, LLP Town Manager's Office 1667 K. Street, N.W.

11 Lincoln Street Suite 700 Plymouth, MA 02360 Washington, D.C. 20006

environment and the correlative uncertain corrosion rate in the sand bed region Cite as 64 NRC 257 (2006) LBP-06-23 of the drywell shell, AmerGen's proposed plan to perform UT tests prior to the period of extended operations, two refueling outages later, and thereafter at an appropriate frequency not to exceed 10-year intervals is insufficient to maintain . UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION an adequate safety margin. We reject as inadmissible Citizens' other contentions.

This proceeding shall continue to be governed by the Initial Scheduling Order and Administrative Directives contained in our Memorandum and Order ATOMIC SAFETY AND LICENSING BOARD of April 19, 2006. Additionally, as we previously ruled, the hearing shall be conducted in accordance with the informal adjudicatory procedures prescribed in Subpart L of 10 C.F.R. Part 2. See LBP-06-7, 63 NRC at 228; Memorandum Before Administrative Judges:

and Order (Denying [Citizens'] Motion To Apply Subpart G Procedures) (June 5, 2006) (unpublished). Ann Marshall Young, Chair It is so ORDERED. Dr. Paul B. Abramson Dr. Richard F. Cole THE ATOMIC SAFETY AND 30 LICENSING BOARD In the Matter of .Docket No. 50-293-LR E. Roy Hawkens, Chairman (ASLBP No. 06-848-02-LR)

ADMINISTRATIVE JUDGE ENTERGY NUCLEAR GENERATION COMPANY and ENTERGY Dr. Paul B. Abramson NUCLEAR OPERATIONS, INC.

ADMINISTRATIVE JUDGE (Pilgrim Nuclear Power Station) October 16, 2006 Dr. Anthony J. Baratta (by E. Roy Hawkens)

In this license renewal proceeding the Licensing Board rules that the public ADMINISTRATIVE JUDGE interest organization, Pilgrim Watch, and the Massachusetts Attorney General, both of which have petitioned to intervene, have standing to participate in the Rockville, Maryland proceeding; that Pilgrim Watch has submitted two admissible contentions and is October 10, 2006 therefore admitted as a party; but that the Attorney General has failed to submit an admissible contention and is therefore not admitted as a party to the proceeding.

1;'

(2 RULES OF PRACTICE: STANDING TO INTERVENE; INTERVENTION t~j z

A petitioner's standing, or right to participate in a Commission licensing proceeding, is grounded in section 189a of the Atomic Energy Act (AEA), which requires the NRC to provide a hearing "upon the request of any person whose interest may be affected by the proceeding," and which has been implemented in 30 Commission regulations at 10. C.F.R. § 2.309.

Copies of this Memorandum and Order were sent this date by e-mail to counsel for (1) AmerGen; (2) Citizens; (3) the NRC Staff; and (4) New Jersey.

256 257

RULES OF PRACTICE: STANDING TO INTERVENE; RULES OF PRACTICE: STANDING TO INTERVENE; INTERVENTION INTERVENTION Judicial concepts of standing, to which licensing boards are to look in ruling on Under 10 C.F.R. § 2.309(d)(2) a State that wishes to be a party in a proceed-standing, provide the following guidance in determining whether a petitioner has ing for a facility located within its boundaries need not address the standing established the necessary "interest" under 10 C.F.R. § 2.714(d)(1): To qualify requirements, and the Massachusetts Attorney General is therefore found to have for standing a petitioner must allege (1) a concrete and particularized injury that standing to participate as the representative of the State of Massachusetts.

is (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision, criteria commonly referred to, respectively, as "injury in fact," causality, and redressability. The injury may be either actual or threatened, RULES OF PRACTICE: CONTENTIONS but must lie arguably within the "zone of interests" protected by the statutes To intervene in an NRC proceeding, a petitioner must, in addition to demon-governing the proceeding - here, either the AEA or the National Environmental strating standing, submit at least one contention meeting the requirements of 10 Policy Act (NEPA). C.F.R. § 2.309(f)(1). Failure of a contention to meet any of the requirements of section 2.309(f)(1) is grounds for its dismissal.

RULES OF PRACTICE: STANDING TO INTERVENE; INTERVENTION RULES OF PRACTICE: CONTENTIONS Individual petitioners living within 50 miles of a nuclear power plant may The "strict contention rule serves multiple interests," including, first, focusing establish standing based on a longstanding "proximity presumption" principle the hearing process on real disputes susceptible of resolution in an adjudication in NRC adjudicatory proceedings, under which the elements of standing will be (for example, a petitioner may not demand an adjudicatory hearing to attack presumed to be satisfied if an individual lives within the zone of possible harm generic NRC requirements or regulations, or to express generalized grievances from a significant source of radioactivity, in the geographical area that might be about NRC policies); second, by requiring detailed pleadings, putting other parties affected by an accidental release of fission products, which has been defined in in the proceeding on notice of the petitioner's specific grievances and thereby proceedings involving nuclear power plants as being within a 50-mile radius of giving them a good idea of the claims they will be either supporting or opposing; such a plant. and, third, helping to ensure that full adjudicatory hearings are triggered only by those able to proffer at least some minimal factual and legal foundation in support RULES OF PRACTICE: STANDING TO INTERVENE; of their contentions.

.7.

INTERVENTION An organization that wishes to establish standing to intervene may do so RULES OF PRACTICE: CONTENTIONS by demonstrating either organizational standing or representational standing. In Although the February 2004 revision of the NRC procedural rules no longer order to establish organizational standing it must show that the interests of the incorporates provisions formerly found in 10 C.F.R. § 2.714(a)(3), (b)(1), which organization will be harmed by the proceeding. To establish representational permitted the amendment and supplementation of petitions and filing of con-standing it must (1) demonstrate that the interests of at least one of its members tentions after the original filing of petitions, they contain essentially the same may be affected by the licensing action and would have standing to sue in his substantive admissibility standards for contentions, which are now found in 10 or her own right, (2) identify that member by name and address, and (3) show C.F.R. § 2.309(0, and which are discussed in an Appendix to the Memorandum that the organization is authorized to request a hearing on behalf of that member. and Order that also addresses various case law interpreting the requirements in Public interest group Petitioner Pilgrim Watch is found to have established question.

representational standing under these criteria.

LICENSE RENEWAL: SCOPE The regulatory authority relating to license renewal is found in 10 C.F.R.

Parts 51 and 54. Part 54 concerns the "Requirements for Renewal of Operating LICENSE RENEWAL: SCOPE Licenses for Nuclear Power Plants," and addresses safety-related issues in license Although the requirements of NEPA are directed to federal agencies and thus renewal proceedings. Part 51, concerning "Environmental Protection Regula-tions for Domestic Licensing and Related Regulatory Functions," addresses the the primary duties of NEPA fall on the NRC Staff in NRC proceedings, the initial requirement to analyze the environmental impacts of an action, including environmental aspects of license renewal.

license renewal, is directed to applicants, and 10 C.F.R. § 51.53(c) requires a license renewal applicant to submit with its application an environmental report LICENSE RENEWAL: SCOPE (ER), which "must contain a description of the proposed action, including the applicant's plans to modify the facility or its administrative control procedures as As described by the Commission in the license renewal adjudicatory proceed-described in accordance with § 54.21," and "describe in detail the modifications ing of FloridaPower& Light Co. (Turkey Point Nuclear Generating Plant, Units directly affecting the environment or affecting plant effluents that affect the 3 and 4), CLI-01-17, 54 NRC 3 (2001), the NRC license renewal safety review is environment.'

focused "upon those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs," which the Commission considers "the most significant overall safety concern posed by extended reactor LICENSE RENEWAL: SCOPE operation,',' and on "plant systems, structures, and components for which current

[regulatory] activities and requirements may not be sufficient to manage the Environmental issues identified as "Category 1," or "generic," issues in effects of aging in the period of extended operation." An issue can be related to Appendix B to Subpart A of Part 51 are not within the scope of a license renewal proceeding. On these issues the Commission found that it could draw generic plant aging and still not warrant review at the time of a license renewal application, if an aging-related issue is "adequately dealt with by regulatory processes" on an conclusions that are applicable to nuclear power plants generally. Thus these ongoing basis. For example, if a structure or component is already required to be issues need not be repeatedly assessed on a plant-by-plant basis, and license renewal applicants may in their Els refer to and adopt the generic environmental replaced "at mandated, specified time periods," it would fall outside the scope impact findings found in Table B-I, Appendix B, for all Category I issues, with of license renewal review.

the following exception: as required by 10 C.F.R. § 51.53(c)(3)(iv), ERs must also contain "any new and significant information regarding the environmental LICENSE RENEWAL: SCOPE impacts of license renewal of which the applicant is aware," even if this concerns a Category 1 issue.

The regulatory provisions relating to the environmental aspects of license renewal arise out of the requirement that the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(C), places on federal agencies to "include in every LICENSE RENEWAL: SCOPE recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible The Commission was not able to make generic environmental findings on issues identified as "Category 2," or "plant specific," issues in Appendix B official on ... the environmental impact of the proposed action .... " As noted to Subpart A, and thus these issues are within the scope of license renewal, by the Supreme Court in Robertson v. Methow Valley Citizens Council, 490 U.S.

and applicants must provide a plant-specific review of them. These issues are 332, 349 (1989), the "statutory requirement that a federal agency contemplating characterized by the Commission as involving environmental impact severity a major action prepare such an environmental impact statement [EIS] serves levels that could differ significantly from plant to plant, or impacts for which NEPA's "action-forcing' purpose in two important respects. .*. . It ensures additional plant-specific mitigation measures should be considered.

that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger LICENSE RENEWAL: SCOPE audience that may also play a role in both the decisionmaking process and the

• implementation of that decision." As required under 10 C.F.R. § 51.95(c), the Commission in 1996 adopted a "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (GEIS), published as NUREG-1437, which provides data supporting the

-A* 261

A, table of Category I and 2 issues in Appendix B. Issuance of the 1996 GEIS and sufficiently supported as required under the contention admissibility standards was part of an amendment of the requirements of Part 51 undertaken by the of 10 C.F.R. § 2.309(f)(1). In litigation of this contention, scientific articles and N-,

Commission to establish environmental review requirements for license renewals reports, as well as the existence of leaks at other facilities and the response to "that were both efficient and more effectively focused." those leaks, may, along with whatever other evidence and expert testimony is provided, he relevant evidence on the factual issues of whether Applicant's aging management program for underground pipes and tanks is satisfactory or deficient, LICENSE RENEWAL: SCOPE

• and whether as a result the sort of monitoring wells that Petitioner seeks should be included in this program.

Section 51.103 of 10 C.F.R. defines the requirements for the "record of decision" relating to any license renewal application, including the standard that the Commission, in making such a decision pursuant to Part 54, "shall determine RULES OF PRACTICE: CONTENTIONS; LICENSE RENEWAL whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers A contention, that Applicant's aging management program fails to adequately would be unreasonable."

• assure the continued integrity of the drywell liner for the requested license extension, is denied, because it fails to meet the requirement of 10 C.F.R.

• §2.309(f)(vi) that sufficient information be shown to demonstrate that a genuine RULES OF PRACTICE: CONTENTIONS; LICENSE RENEWAL *dispute exists with the Applicant on a material issue of law or fact. Applicant Contentions that the Applicant's ER fails to satisfy NEPA because it does not provided a detailed. application amendment on how it addressed the matter, and Petitioner failed to state with any specificity or provide information showing how address the environmental impacts of severe spent fuel pool accidents, and fails to address severe accident mitigation alternatives (SAMAs) that would reduce the the actions and proposed actions of the Applicant do not comply with the Interim Staff Guidance that Petitioner relied on in support of its contention. A licensing potential for spent fuel pool water loss and fires, are found inadmissible, on two board is not permitted to draw any inferences on behalf of a petitioner, and in grounds, neither or which is addressed by relevant rules, but both of which are the absence of any more specific statement than has been provided, showing how mandated by relevant Commission precedent in the Turkey Point license renewal -A the specific actions of Applicant fall short, or some nexus with problems at other proceeding. First, the Commission interpreted the term, "severe accidents," to plants, the contention is found to be lacking in its failure to show any genuine encompass only reactor accidents and not spent fuel pool accidents, which fall dispute on a material issue of fact relating to the matters at issue.

within the analysis of the generic Category 1 issue of onsite storage of spent fuel. Second, the Commission has stated, notwithstanding the responsibility of an applicant in its ER (and the NRC Staff in the supplemental EIS that it must RULES OF PRACTICE: CONTENTIONS prepare) to address "new and significant information" relating even to Category I issues, that an alleged failure to address such "new and significant information" A contention, that Applicant's severe accident mitigation alternatives (SAMA)

• analysis for the plant is deficient regarding input data on evacuation times, does not give rise to an admissible contention, absent a waiver of the rule in 10 economic consequences, and meteorological patterns, resulting in incorrect con-C.F.R. § 51.53(c)(3)(i) that Category 1 issues need not be addressed in a license clusions about the costs versus benefits of possible mitigation alternatives such renewal, and no waiver was requested, because the matters at issue were not considered to involve "special circumstances with respect to the subject matter

• that further analysis is called for, is admitted. SAMAs are within the scope of of the particular proceeding," as required by 10 C.F.R. § 2.335(b). license renewal as a Category 2 issue; Petitioner is found to have raised questions about input data that are material in these three areas because they concern significant health and safety issues that affect the outcome of the proceeding; RULES OF PRACTICE: CONTENTIONS; LICENSE RENEWAL

• and Petitioner is found to have adequately supported its contention under the contention admiissibility standards of 10 C.F.R. § 2.309(f)(1).

A contention, that Applicant's aging management program is inadequate with That some of the information provided by Petitioner on evacuation-related regard to aging management of buried pipes and tanks that contain radioactively issues is apparently in conflict with some of the data taken by Applicant from the contaminated water'because it does not provide for monitoring wells that would plant's emergency plan is found not to preclude its being considered, because, detect leakage, is admitted, based on its being within the scope of license renewal,

A. Massachusetts Attorney General's Contention and Pilgrim while emergency planning has been found in the Turkey Point proceeding to Watch Contention 4 (Regarding Spent Fuel Pool Accidents) 280 be "one of the safety issues that need not be re-examined within the context

1. Entergy Answer ......... 284 of license renewal," what is challenged in this contention is whether particular 2. NRC Staff Response ............................ 286 bits of information taken from such a plan are sufficiently accurate for use in 3. Massachusetts AG and Pilgrim Watch Replies to computing the health and safety consequences of an accident, as an environmental Entergy and NRC Staff ............................. 286 issue. Because this challenge is focused upon the accuracy of certain assumptions 4. Licensing Board Ruling ............................ 288 and input data used in the SAMA computations and how they affect the validity B. Pilgrim Watch Contention I (Regarding Inspection for of the SAMA analysis under NEPA, it is found to be appropriate in the three areas Underground Leaks)............................... 300 admitted.

I . Entergy Answer .................................. 304

2. NRC Staff Response .............................. 306 RULES OF PRACTICE: CONTENTIONS; LICENSE RENEWAL 3. Pilgrim Watch Replies to Entergy and NRC Staff ........ 308

4. Licensing Board Ruling .......................... 310 A contention, that new and significant information about cancer rates in C. Pilgrim Watch Contention 2 (Regarding Monitoring for communities around the plant shows that another 20 years of operations may Corrosion in Drywell Liner) ............................. 315 result in greater offsite radiological impacts on human health than was previously 1. Entergy Answer .................................. 318 known, is denied, because it attempts to challenge both generic findings made 2. NRC Staff Response ............................ 320 in the GEIS, and NRC dose limit rules, without a waiver. Petitioner conceded 3. Pilgrim Watch Replies to Entergy and NRC Staff ........ 320 that it was not suggesting that radiological releases from the plant. are greater 4. Licensing Board Ruling ........................ 321 than currently allowed by the NRC regulations, and thus its contention regarding D. Pilgrim Watch Contention 3 (Regarding SAMA Analysis) .... 323 radiological releases must necessarily be construed as a challenge to the current 1. Entergy Answer ............................... 326 NRC dose limit regulations found in 10 C.F.R. Part 20, and without a waiver 2. NRC Staff Response ............................ 331 under 10 C.F.R. § 2.335, no request for which was submitted, such a challenge is 3. Pilgrim Watch Replies to Entergy and NRC Staff ........ 334 impermissible in an adjudication proceeding. 4. Licensing Board Ruling ............................ 338 E. Pilgrim Watch Contention 5 (Regarding Radiological TABLE OF CONTENTS Impacts on Human Health) .............................. 341

1. Entergy Answer .................................. 344 I. INTRODUCTION .............. ......................... 266 2. NRC Staff Response ............................ 345

3. Pilgrim Watch Replies to Entergy and NRC Staff....... 346 II. BACKGROUND ....................................... .266 4. Licensing Board Ruling ............................ 347 III. BOARD RULINGS ON STANDING OF PETITIONERS TO VI. CONCLUSION .......................................... 348 PARTICIPATE IN PROCEEDING ........................... 269 VII. ORDER ............................................... 348 IV. STANDARDS FOR ADMISSIBILITY OF CONTENTIONS IN LICENSE RENEWAL PROCEEDINGS ........................ 272 APPENDIX:

SUMMARY

OF GOVERNING CASE LAW ON A. Regulatory Requirements on Contentions.................. 272 CONTENTION ADMISSIBILITY STANDARDS ................... 351 B. Scope of Subjects Admissible in License Renewal Proceedings .......................................... 274

1. Safety-Related Issues .............................. 275

2. Environmental Issues .............................. 277 V. PETITIONERS' CONTENTIONS, PARTY ARGUMENTS, 1

AND LICENSING BOARD ANALYSIS AND RULINGS ........ 280 W

MEMORANDUM AND ORDER (PW)3 and the Massachusetts Attorney General (AG),4 on May 25 and 26, 2006, 1

respectively. Pilgrim Watch's Petition included five contentions; the Petition filed (Ruling on Standing and Contentions of Petitioners by the Attorney General proffered a single contention. Subsequently, on June 5, Massachusetts Attorney General and Pilgrim Watch) 2006, Pilgrim Watch gave notice pursuant to 10 C.F.R. §§ 2.309(0(3) and 2.323 5

of its adoption of the contention filed by the Attorney General and on June 16

1. INTRODUCTION the Attorney General filed a letter requesting that the Licensing Board apply the June 2, 2006, decision of the U.S. Court of Appeals for the Ninth Circuit in the Inc., case, San Luis Obispo Mothers for Peace v. Nuclear-Regulatory Commission, in This proceeding involves the application of Entergy Nusclear Operations, 6 license for the Pilgrim Nuclear Power Station for an ruling on its contention.

to renew its operating and the nonprofit Meanwhile, on June 7, 2006, a Licensing Board constituted of Judges Young, additional 20-year period. The Massachusetts Attorney General in which Cole, and Nicholas Trikouros was established to preside over this proceeding, citizens' organization, Pilgrim Watch, have filed petitions to intervene, various safety and environmental aspects of and on JIune 14 the Board issued a scheduling order, providing guidance for the they submit contentions challenging license renewal. In addition, the Town of Plymouth, Massachusetts, the proposed as an where the Pilgrim plant is located, is participating in this proceeding interested local governmental body, pursuant to 10 C.F.R. § 2.315(c).

shown 3See Request for Hearing and Petition To Intervene by Pilgrim Watch (May 25, 2006) [hereinafter In this Memorandum and Order we find that both Petitioners have Pilgrim Watch Petition or PW Petition].

to participate in the proceeding and that Pilgrim Watch has submitted standing 4 See Massachusetts Attorney General's Request for a Hearing and Petition for Leave To Intervene request of Pilgrim two admissible contentions. We therefore grant the hearing with Respect to Entergy Nuclear Operation's Inc.'s Application for Renewal of the Pilgrim Nuclear 3, to the extent discussed and defined below. These Watch as to Contentions 1 and *Power Plant Operating License and Petition for Backfit Order Requiring New Design Features To respectively, to the aging management program for the Pilgrim Protect Against Spent Fuel Pool Accidents (May .26, 2006) [hereinafter Attorney General Petition or contentions relate, tanks and detec-plant with regard to inspection for corrosion of buried pipes and AG Petition].

corrosion Asindicated by its title, the AG in its Petition also requests the Commission "to initiate a proceeding tion of leakage of radioactive water that might result from undetected for the backflitting of the Pilgrim nuclear power plant to protect against a design-basis accident certain input data that Pilgrim Watch asserts should have been and aging; and to involving a fire in the spent fuel pool." Attorney General Petition at 50; see idUat 48-50. As this part alternatives," or considered by the Applicant in its "severe accident mitigation of the petition is directed to the Commission and not this Licensing Board, we have not ruled on it. See "SAMA," analysis. Tr. at 157; see also 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 29, 2006) at 31 [hereinafter Attorney QetSeaal Reply or AG Reply]. We note that on October 10, I. BACKGROUND 2006, the Commission issued an order denying the Attorney General's petitions for backfitting in this and the Vermont Yankee proceeding (in which the AG filed an essentially identical contention to that filed in this proceeding, see Massachusetts Attorney General's Request for a Hearing and Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.. Petition for Leave To Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for requesting renewal of

("Entergy" or "Applicant") submitted its application Renewal of the Vermont Yankee Nuclear Power Plant Operating License and Petition for Backlit Station (PNPS, or "Pilgrim") operating license on the Pilgrim Nuclear Power Order Requiring New Design Features To Protect Against Spent Fuel Pool Accidents (May 26, 2006),

2006.1 In response to a March 27, 2006, Federal Register notice ADAMS Accession No. ML061640065), and advising that if the AG wishes to pursue the matter he January 25, 2 timely requests for may file a request for NRC enforcement action under 10 C.F.R. § 2.206. See CLI-06-26, 64 NRC 225, of opportunity for hearing on the proposed license renewal, were filed by Petitioners Pilgrim Watch 226-27 (2006).

a hearing and petitions to intervene In addition, the Attorney General on August 25, 2006, filed with the Commission a Petition for Rulemaking To Amend 10 C.F.R. Part 51 with respect to issues relating to spent fuel storage, which likewise is not before this Licensing Board. See Massachusetts Attorney General's Petition for Rulemaking To Amend 10 C.F.R. Part 51 (Aug. 25, 2006), ADAMS Accession No. ML062640409.

Nuclear Power Station License Renewal tSee 71 Fed. Reg. 15,222 (Mar. 27, 2006); see also Pilgrim 5 See Notice of Adoption of Contention by Pilgrim Watch (June 5, 2006).

Accession No. ML060300028 [hereinafter Application). In addition to other 6 Application, ADAMS Lotter from Diane Curran to Licensing Board (June 16, 2006), providing Recent Decision by includes the Applicant's Environmental Report for Operating appendices, the Pilgrim Application U.S. Court of Appeals for the Ninth Circuit (June 16,2006), ADAMS Accession No. ML061740349

[hereinafter Environmental Report License Renewal Stage, ADAMS Accession No. ML060830611 [hereinafter AG Letter]. The Mothers for Peace decision was subsequently published at 449 F.3d or ER]. 1016 (9th Cir. 2006).

7Seel1 Fed. Reg. at 15,222.

267

6 on June 20, 2006, held a material insufficiently addressed by the participants to that point.' The parties conduct of the proceeding.' The Board subsequently, various prehearing matters,$ and, in, an Order submitted these briefs on July 21,17and the Attorney General filed a reply to the telephone conference to address response to the requests of briefs filed by Entergy and the NRC Staff on July 26, 2006.'8On July 27, 2006, issued June 21, among other things scheduled, in appearance session to hear the Board held a teleconference to discuss the supplemental briefs and topics the Petitioners and the Town of Plymouth, a limited regarding two of the proffered NEPA-based contentions.19 10 C.F.R. § 2.315(a), to be held in early comments from the public pursuant to Additionally, at the conclusion of the July 27 teleconference, Judge Trikouros July in conjunction with oral argument on Petitioners' contentions0 of Adoption on June 15, read into the record a disclosure statement outlining work that was previously The NRC Staff responded to Pilgrim Watch' s Notice and the Attorney General on June 19 performed by a consulting company of which he was a principal, which included 2006,'0 and to the Petitions of Pilgrim Watch Entergy filed its Answer to the Attorney General's certain analytical services for Entergy regarding a spent fuel pool for another and 22, 2006, respectively."

responded to the Pilgrim Watch Petition on Jun. 26, pressurized water reactor owned and operated by Entergy.2u This was followed Petition on June 22, and Watch's Notice of Adoption of by the August 4 filing, by the Attorney General and Pilgrim Watch, of Motions 2006, including therein its response to Pilgrim Attorney General filed a for Disqualification of Judge Trikouros, which were opposed by Entergy in Contention." On June 29, 2006, the Massachusetts 2

a Response filed August 14, 2006.11 Acting on the Motions, Judge Trikouros 3 Watch of Entergy and the NRC Staff.' Pilgrim combined reply to the Answers and Entergy on June 27 and recused himself from the proceeding on August 30, 2006; on the same date, filed its Replies to the Answers of the NRC Staff the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel July 3, 2006, respectively.14 on the admissibility of P reconstituted the Licensing Board by appointing Administrative Judge Paul B.

On July 6 and 7, 2006, the Board held oral argument 2 the Petitioners, the NRC Staff, Entergy, and Abramson to sit in place of Judge Trikouros. 2The deliberations that have led to the Petitioner's contentions, with Massachusetts.'" Following the rulings herein stated have been among the members of the Board as currently the Town of Plymouth participating, in Plymouth, to file supplemental briefs on constituted.

oral argument, the Board required the participants III. BOARD RULINGS ON STANDING OF Board Order (Regarding Schedule and PETITIONERS TO PARTICIPATE IN PROCEEDING "See 71 Fed. Reg. 34,170 (June 13, 2006); Licensing Guidance for Proceedings) (June 14, 2006) (unpublished).

aSee Transcript at 1-42. A petitioner's standing, or right to participate in a Commission licensing Argument and Limited Appearance

'See Uicensing Board Order and Notice (Regarding Oralof Town of Plymouth To Participate as proceeding, is derived from section 189a of the Atomic Energy Act (AEA), which (June 21, 2006) (unpublished); Request Statement Sessions) of Right Under 2.315(c) (June 16, 2006).

by Pilgrim Watch (June 15, 2006).

10 See NRC Staff Answer to Notice of Adoption of Contentions 6 1See Licensing Board Order (Regarding Need for Further Briefing on Definition of "New and t Request for Hearing and Petition To Intervene Filed by Pilgrim See NRC Staff's Response to Significant Information" as Addressed in Participants' Petitions, Answers and Replies Relating to PW Petition); NRC Staff Answer Opposing Watch (June 19, 2006) Lhereinafter Staff Response to Massachusetts Attorney General Contention and Pilgrim Watch Contention 4) (July 14, 2006)

Attorney General's Request for Hearing and Petition for Leave To Intervene and.

Massachusetts (unpublished).

Staff Response to AG Petition).

Petition for Backfit Order (June 22,2006) [hereinafter 17See Entergy's Brief on New and Significant Information in Response to Licensing Board Order of General's Request for a Hearing, Petition 12 See Entergy's Answer to the Massachusetts Attorney July 14, 2006 (July 21, 2006); Massachusetts Attorney General's Brief Regarding Relevance to This Petition for Backfit Order (June 22, 2006) thereinafter Brntergy Answer 2006);

for Leave To Intervene, and Proceeding of Regulatory Guide's Definition of "New and Significant Information" (July 21, for Hearing and Petition To Intervene by Pilgrim to AG Petition); P9ntergy's Answer to the Request NRC Staff's Response to July 14, 2006 Licensing Board Order (July 21, 2006).

of Contention (June 26, 2006) (hereinafter Entergy Answer to PW Watch and Notice of Adoption 'sSee Massachusetts Attorney General's Reply Brief Regarding Relevance to This Proceeding of Petitionl.

t Regulatory Guide's Definition of "New and Significant Information" (July 26, 2006).

3 See Attorney General Reply.

To Intervene by "9See Tr. at 457-93.

14See Pilgrim Watch Reply to NRC Answer to Request for Hearing and Petition 2 "See Tr. at 489-92.

Staffr; Pilgrim Watch Reply to Entergy Pilgrim Watch (June 27, 2006) [hereinafter PW Reply to NRC Watch (july 3, 2006) thereinafter See Massachusetts Attorney General's Motion for Disqualification of Judge Nicholas Trikouros by Pilgrim Answer to Request for Hearing and Petition To Intervene 'i (Aug. 4, 2006); Motion on Behalf of Pilgrim Watch for Disqualification of Judge Nicholas Trikouros PW Reply to Entergyl.

the previously scheduled limited in the Pilgrim Nuclear Power Station Re-licensing Proceeding (Aug. 4,2006); Entergy's Response to 15 See Tr. at 40-456. While in Plymouth the Board also conducted §1315(a). Motions for Disqualification ofJudge Nicholas Trikouros (Aug. 14, 2006).

public pursuant to 10 C.F.R.

appearance session, hearing statements of members of the 2See Notice of Reconstitution (Aug. 30, 2006), 71 Fed. Reg. 52,590 (Sept. 6, 2006).

Limited Appearance Transcript at 1-36.

Lis

requires the NRC to provide a hearing "upon the request of any person whose radioactivity, without requiring a party to specifically plead injury, causation, and 30 interest may be affected by the proceeding." 23 The Commission has implemented redressability.

this requirement in its regulations at 10 C.F.R. § 2.309V1 An organization, such as Pilgrim Watch, that wishes to establish standing to When determining whether a petitioner has established the necessary "in- intervene may do so by either demonstrating organizational standing or repre-terest" under Commission rules, licensing boards are directed by Commission sentational standing. In order to establish organizational standing it must show precedent to look to judicial concepts of standing for guidance.2 Under this that the interests of the organization will be harmed by the proceeding, while authority, in order to qualify for standing a petitioner must allege "(1) a concrete an organization seeking representational standing must demonstrate that the interests and particularized injury that is (2) fairly traceable to the challenged action and of at least one of its members will be harmed by the proceeding."' For an organiza-(3) likely to be redressed by a favorable decision" - three criteria commonly tion to establish representational standing, the organization must: (1) show referred to as "injury in fact," causality, and redressability. 26 The requisite injury that at least one of its members may be affected by the licensing action and, accordingly, may be either actual or threatened,27 but must arguably lie within the "zone would have standing to sue in his or her own right; (2) identify that member of interests" protected by the statutes governing the proceeding - here, either by name and address; and (3) show that the organization is authorized to request the AEA or the National Environmental Policy Act (NEPA).2 a Additionally, Commission case law has established a "proximity presumption," whereby an a hearing on behalf of that member.32 Further, the Commission's regulations individual may satisfy these standing requirements by demonstrating that his explain that a State "that wishes to be a party in a proceeding for a facility located or her residence is within the geographical area that might be affected by an within its boundaries need not address the standing requirements." 10

§2.309(d)(2). C.F.R.

accidental release of fission products, and in proceedings involving nuclear power plants this area has been defined as being within a 50-mile radius of such a plant.29 Entergy does not challenge either the Massachusetts Attorney General's or Accordingly, it will be presumed that the elements of standing are satisfied if an Pilgrim Watch's standing to participate in this proceeding.3 The NRC Staff does individual lives within the zone of possible harm from the significant source of not contest the standing of the Massachusetts Attorney General to intervene 3

in this proceeding, 4 and because Pilgrim Watch's representative, Mary Lampert, meets the longstanding "proximity presumption" principle in NRC adjudicatory proceedings, the NRC Staff does not dispute that Pilgrim Watch has demonstrated 3

representational standing.

2342 U.S.C. § 2239(a)(l)(A) (2000). We agree, based on the physical proximity of their representative to the Pilgrim 24 Subsection (d)(l) of section 2.309 provides in relevant part that the Board shall consider three Nuclear Power Station, and because the affected member has authorized factors when deciding whether to grant standing to a petitioner. the nature of the petitioner's right the Petitioner organization to represent her in this proceeding, that the Pilgrim Watch under the AEA to be made a party to the proceeding; the nature and extent of the petitioner's property, has demonstrated representational standing to participate under AEA financial, or other interest in the proceeding; and the possible effect of any order that may be entered § 189a in the proceeding on the petitioner's interest. 10 C.F.R. § 2.309(d)(1)(ii)-(iv). The provisions of 10 and the Commission's rules.36 Further, we find that the Massachusetts Attorney C.F.R. § 2.309 were formerly found in 10 C.F.R. § 2.714, prior to a major revision of the Commission's General has standing to participate in this proceeding as a representative of the procedural rules for adjudications in 2004.

25 State of Massachusetts as outlined by the Commission in 10 C.F.R. § 2.309(d)(2).

See, e.g., Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998); Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 41 NRC 1, 5-6 (1998); GeorgiaInstitute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia),

CLI-95-12, 42 NRC 111, 115 (1995).

26 Yankee, CLI-98-21, 48 NRC at 195 (citing Steel Co. v. Citizensfor a Better Environment, 523 3 Dsee id.

U.S. 83, 102-04 (1998); Kelley v. Selin, 42 F.3d 1501, 1508 (6th Cir. 1995)).

27Id. (citing Wilderness Society v. Griles. 824 F.2d 4, 11 (D.C. Cir. 1987)). 31See Yankee, CLI-98-21, 48 NRC at 195.

32 2 See GPU Nuclear, Inc. (Oyster Creek Nuclear tId. at 195-96 (citing Ambrosia Lake Facility, CLI-98-11, 48 NRC at 6). Generating Station), CLI-00-6, 51 NRC 193, 29 202 See Florida Power & Light Co. (St. Lscie Nuclear Power Plant, Units 1 and 2). CLI-89-21, 30 (2000).

"3SeeEntergy Answer to AG Petition NRC 325, 329 (1989); FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 34 at 2; Entergy Answer to Pilgrim Watch at 2.

See NRC Staff Answer to AG 3 and 4), LBP-0I-6, 53 NRC 138, 146-50 (2001); Virginia Electric and Power Co. (North Anna Petition at 3.

Nuclear Power Station, Units I and 2), ALAB-522, 9 NRC 54, 56 (1979) ("close proximity [to a 35See NRC Staff Answer to Pilgrim Watch at 5.

36 facility] has always been deemed to be enough, standing alone, to establish the requisite interest" to See Yankee, CLI-98-21, 48 NRC at 195; Georgia Tech, CLI-95-2. 42 NRC at 115; Turkey Point, confer standing). LBP-01-6, 53 NRC at 146-50.

1-7-1

The Commission has explained that the "strict contention rule serves multiple interests." ' These include the following (quoted in list form):

IN 4 IV. STANDARDS FOR ADMISSIBILITY OF CONTENTIONS LICENSE RENEWAL PROCEEDINGS in an First, it focuses the hearing process on real disputes susceptible of resolution to adjudication. For example, a petitioner may not demand an adjudicatory hearing A. Regulatory Requirements on Contentions attack generic NRC requirements or regulations, or to express generalized grievances must, in addition to demon-To intervene in an NRC proceeding, a petitioner about NRC policies.

at least one contention meeting the requirements of 10 the strating standing, submit meet any of the requirements Second, the rule's requirement of detailed pleadings puts other parties in 37 a contention to C.F.R. § 2.309(f)(1). Failure of proceeding on notice of the Petitioners' specific grievances and thus gives them a for its dismissal.

3 8 Heightened standards for of section 2.309(f)(1) is grounds good idea of the claims they will be either supporting or opposing.

came into being in 1989, when the the admissibility of contentions originally by the threshold for the admission of con- Finally, the rule helps to ensure that full adjudicatory hearings are triggered only Commission amended its rules to "raise factual and legal foundation in support 39 more recently stated that the "contention rule those able to proffer42 at least some minimal tentions." The Commission has of their contentions.

.. in 1989 because in prior years is strict by design," having been "toughened.

numerous contentions that appeared 43

'licensing boards had admitted and litigated ",4 In February 2004 a new revision of the procedural rules came into effect.

to be based on little more thanspeculation.' Although these rules no longer incorporate provisions formerly found in 10 C.F.R. § 2,714(a)(3), (b)(1), which permitted the amendment and supplementation of petitions and the filing of contentions after the original filing of petitions,"

37 See 10 C.F.R. § 2.309(a). Section 2.309(0(1) states that:

JI and contain various changes to provisions relating to the hearing process, they contain essentiallythe same substantive admissibility standards the new rules, the for Commission contentions.

45 reiterated In must set forth with particularity its Statement of Considerations adopting (1) A request for hearing or petition for leave to intervene the contentions sought to be raised. For each contention, the request or petition must: the same principles that previously applied, namely, that "[t]he threshold standard of (i) Provide a specific statement of the issue of law or fact to be raised or controverted. is necessary to ensure that hearings cover only genuine and pertinent issues supported concisely enough at the (ii) Provide a brief explanation of the basis for the contention; concern and that the issues are framed and (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; outset to ensure that the proceedings are effective and focused on real, concrete contention is material to the findings the NRC issues." 46 Additional guidance with respect to each of the requirements now found (iv) Demonstrate that the issue raised in the must make to support the action that is involved in the proceeding; in subsections (i) through (vi) of section 2.309(f)(1) is found in NRC case law.

facts or expert opinions which support the (v) Provide a concise statement of the alleged and on which the petitioner intends to rely Although we do not recount this guidance in any detail in the body of this the issue Memorandum, primarily in view of the sheer size of this body of law, we requestor's/petitioner's position on the specific sources and documents on which the at hearing, together with references to its position on the issue; and requestor/petitioner intends to rely to support to show that a genuine dispute exists with the appli-(vi) Provide sufficient information to or fact. This information must include references centilicensee on a material issue of law environmental report and 41 Oconee, CLI-99-11, 49 NRC at 334.

(including the applicant's the specific portions of the application or, if 4 1 2d. (citations omitted).

and the supporting reasons for each dispute, safety report) that the petitioner disputes on a relevant matter as 43 Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004).

fails to contain information the petitioner believes that the application within 60 days of failure and the supporting reasons for the petitioner's 44Under the current rules, contentions must be filed with the original petition, required by law, the identification of each See 10 notice of the proceeding in the Federal Register (unless another period is therein specified).

belief.

Fuel Storage Installation), CLI-99-10, 49 C.F.R. § 2.309(b)(3)(iii).

8See Private Fuel Storage, LL.C. (Independent Spent 3

groups Service Co. (Palo Verde Nuclear Generating Station, Units 1.

45 In this connection we note that a challenge to the new rules by several public interest NRC 318, 325 (1999); Arizona Public by several states including Massachusetts) was overruled in the case of Citizens Awareness (1991). (supported and 3), CLI-91-12, 34 NRC 149, 1.55-56 petitions for 2,39 Rules of Practice for Domestic Licensing Proceedings

- Procedural Changes in the Hearing Network, Inc. v. NRC [CAN v. NRCJ, 391 F.3d 338 (1st Cit. 2004). The Court denied the and that (Aug. 11, 1989); see also Duke Energy Corp. (Oconee Nuclear review, finding that the new procedures "comply with the relevant provisions of the APA Process, 54 Fed. Reg. 33,168, 33,168 the Commission has fumished an adequate explanation for the changes." Mt at 343.

CLI-99-11, 49 NRC 328, 334 (1999).

Station, Units 1, 2, and 3), .4169Fed. Reg. at 2189-90.

40 Dominion Nuclear Connecticut,Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, (2001) (citing Oconee, CLI-99-11, 49 NRC at 334).

54 NRC 349, 358 2731

have - because of its critical importance in determining whether petitioners are I. Safety-Related Issues in License Renewal Proceedings granted evidentiary hearings in NRC adjudicatory proceedings - attached as an Various sections of Part. 54 speak to the scope of safety-related issues in Appendix to our Memorandum and Order a more detailed and in-depth discussion license renewal proceedings. First, 10 C.F.R. § 54.4, titled "Scope," specifies the highlighting the contention admissibility standards as they have been interpreted plant systems, structures, and components that are within the scope of this part.52 in various NRC adjudication proceedings. Our rulings herein are informed by Sections 54.3 (containing definitions), 54.21 (addressing technical information these requirements and principles. to be included in an application and further identifying relevant structures and components), and 54.29 (stating the "Standards for issuance of a renewed B. Scope of Subjects Admissible in License Renewal Proceedings .,license") provide additional definition of what is encompassed within a license renewal review, limiting the scope to aging-management issues and some "time-One of the contention admissibility standards limits contentions to issues limited aging analyses" that are associated with the functions of relevant plant demonstrated to be "within the scope" of a proceeding. 47 Commission regula- systems, structures, and components.53 Applicants must "demonstrate how their tions and case law address in some detail the scope of license renewal proceedings, programs will be effective in managing the effects of aging during the proposed which generally concern requests to renew 40-year operating licenses for addi- period of extended operation," at a "detailed. . . 'component and structure level,'

tional 20-year terms. 4 1The regulatory authority relating to license renewal is found rather than at a more generalized 'system level.' "54 in 10 C.F.R. Parts 51 and 54. Part 54 concerns the "Requirements for Renewal The Commission in Turkey Point stated that, in developing 10 C.F.R. Part of Operating Licenses for Nuclear Power Plants," and addresses safety-related 54 beginning in the 1980s, it sought "to develop a process that would be both issues in license renewal proceedings. 49 Part 51, concerning "Environmental Pro- efficient, avoiding duplicative assessments where possible, and effective, allowing tection Regulations for Domestic Licensing and Related Regulatory Functions," the NRC Staff to focus its resources on the most significant safety concerns at addresses the environmental aspects of license renewal.50 The Commission has issue during the renewal term."' 5 Noting that the "issues and concerns involved interpreted these provisions in various adjudicatory proceedings, probably most in an extended 20 years of operation are not identical to the issues reviewed extensively in a decision in the 2001 Turkey Point proceeding.5 when a reactor facility is first built and licensed," the Commission found that 52 Section 54.4(a) describes those "systems, structures, and components" that are within scope as:

47Se. 10 C.F.R. § 2.309(f)(l)(iii). (1) Safety-related systems, structures, and components which are those relied upon to remain 4 functional during and following design-basis events (as defined in 10 CFR 50.49 (b)(1)) to 8 Section 54.31 (b) of 10 C.F.R. provides that:

ensure the following functions -

(a] renewed license will be issued for a fixed period of time, which is the sum of the additional (i) The integrity of the reactor coolant pressure boundary; amount of time beyond the expiration of the operating license (not to exceed 20 years) that is requested in a renewal application plus the remaining number of years on the operating license (ii) The capability to shut down the reactor and maintain it in a safe shutdown condition; or currently in effect. The term of any renewed license may not exceed 40 years. (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in §50.34(a)(1), §50.67(b)(2),

Section 50.5 l(a) of 10 C.F.R. states in relevant part that "[e]ach [original] license will be issued for or § I.I: of this chapter, as applicable.

a fixed period of time to be specified in the license but in no case to exceed 40 years from date of issuance." (2) All nonsafety-related systems, structures, and components whose failure could prevent 49 satisfactory accomplishment of any of the functions identified in paragraphs (a)(1)(i), (ii), or See 10 C.F.R. Part 54.

50 See 10 C.F.R. Part 51. (iii) of this section.

51See FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CU (3) All systems, structures, and components relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Commission's regulations for fire 17, 54 NRC 3, 11-13 (2001); see also Duke Energy Carp. (McGutire Nuclear Station, Units I and 2; protection (10 CFR 50.48). environmental qualification (10 CFR 50.49). pressurized thermal Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358, 363-64 (2002); Baltimore Gas &

shock (10 CFR 50.61), anticipated transients without scram (10 CFR 50.62), and station Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 NRC 39, 41 (1998),

blackout (10 CFR 50.63).

motion to vacate denied, CLI-98-15, 48 NRC 45 (1998); Duke Energy Corp.(Oconee Nuclear Station, 53 See Final Rule: "Nuclear Power Plant License Renewal; Revisions," 60 Fed. Reg. 22,461, 22,463 Units 1, 2. and 3), CLI-98-17, 48 NRC 123, 125 (1998); Florida Power & Light Co. (Turkey Point (May 8, 1995).

Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000); Dominion Nuclear 4 ýJ Connecticut,Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP 15, 60 NRC 81, 90, aff'a ' Turkey Point,CLI-01-17, 54 NRC at 8 (quoting 60 Fed. Reg. at 22,462).

CLI-04-36, 60 NRC 631 (2004). 5Id. at 7.

2_.7T Z.75

at issue. See 10 C.F.R. § 5 4 .21(a)(1)(i). Left requiring a full reassessment of safety issues that were "thoroughly reviewed unmitigated, the effects of aging can overstress equipment, unacceptably reduce when the facility was first licensed" and continue tote "routinely monitored and safety margins, and lead to the loss of required plant functions, including the assessed by ongoing agency oversight and agency'mandated licensee programs" capability to shut down the reactor and maintain it in a shutdown condition, and to would be "both unnecessary and wasteful."56 Nor did the Commission "believe otherwise prevent or mitigate the consequences of accidents with a potential it necessary or appropriate to throw open the full gamut of provisions in a plant's for offsite exposures.5 9 57 current licensing basis to re-analysis during the license renewal review." The Commission has also framed the focus

• on "plant systems, structures, and of license renewal review as being The Commission chose, rather, to focus the NRC license renewal safety components for which current [regulatory]

review "upon those potential detrimental effects of aging that are not routinely activities and requirements may not be sufficient addressed by ongoing regulatory oversight programs," which it considered "the to manage the effects of aging in the period of extended operation." 60 An issue can be related to plant aging most significant overall safety concern posed by extended reactor operation." 58 and still not warrant review at the time of a license renewal application, if an The Commission in Turkey Point described some of the "Detrimental Effects of aging-related issue is "adequately dealt with by regulatory processes" on an Aging and Related Time-Limited Issues" as follows: ongoing basis. 6" For example, if a structure or component is already required to be replaced "at mandated, specified time periods," it would fall outside thescope By its very nature, the aging of materials "becomes important principally during the of license renewal review.62 period of extended operation beyond the initial 40-year license term," particularly since the design of some components may have been based explicitly upon an 2. Environmental Issues in License Renewal assumed service life of 40 years. See [Final Rule: "Nuclear Power Plant License Proceedings Renewal," 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991)]; see also Final Rule, Regulatory provisions relating to the environmental "Nuclear Power Plant License Renewal; Revisions," 60 Fed. Reg. 22,461, 22,479 aspects of license renewal arise out of the requirement that the National (May 8, 1995). Adverse aging effects can result from metal fatigue, erosion, corro- Environmental Policy Act (NEPA) places on federal agencies to "intlude in every sion, thermal and radiation embrittlement, microbiologically induced effects, creep, recommendation or report on...

major Federal actions significantly affecting and shrinkage. Such age-related: degradation can affect a number of reactor and the quality of the human environ-ment,. a detailed statement by the responsible auxiliary systems, including the reactor vessel, the reactor coolant system pressure official on [] the environmental boundary, steam generators, electrical cables, the pressurizer, heat exchangers, and. impact of the proposed action .... ,, 63 As has been noted by the Supreme Court, the the spent fuel pool. Indeed, a host of individual components and structures are "statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement [EIS]

serves NEPA's 'action-forcing' purpose in two important respects":

561id.

57 1d. at 9. "Current licensing basis" (CLB) is described by the Commission in Turkey Point as It ensures that the agency, in reaching its decision, will have available, and will follows: carefully consider, detailed information concerning

["CLB" is] a term of art comprehending the various Commission requirements applicable to significant environmental im-pacts; it also guarantees that the relevant information a specific plant that are in effect at the time of the license renewal application. The current will be made available to the larger audience that may also play a role in both the licensing basis consists of the license requirements, including license conditions and technical decisionmaking process and the implementation of that decision.'

specifications. It also includes the plant-specific design basis information documented in the plant's most recent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plant's license, i.e., responses to NRC bulletins. 59 generic letters, and enforcement actions, and other licensee commitments documented in NRC 60/1d at 7-8.

safety evaluations or licensee event reports. See 10 C.F.R. §54.3. The current licensing basis 61Jd. at 10 (citing 60 Fed. Reg. at 22,469) (alteration in original).

6t additionally includes all of the regulatory requirements found in Parts 2, 19, 20, 21, 30, 40, 50, 62 Id. at 10n.2.

55, 72, 73, and 100 with which the particular applicant must comply. Id. jid.

.... The [CLB] represents an "evolving set of requirements and commitments for a specific 6342 U.S.C. § 4332; see Robertson v. Methow Valley Citizens Council, 490 U.S.

64 Robertson 490 332. 348 (1989).

plant that are modified as necessary over the life of a plant to ensure continuation of an U.S. at 349. Of course, as the Court also noted, "NEPA itself does not mandate adequate level of safety." 60 Fed. Reg. at 22,473. It is effectively addressed and maintained particular results, but simply prescribes the necessary process

. .. If the adverse environmental effects by ongoing agency oversight, review, and enforcement. of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA Id. from deciding that other values outweigh the environmental costs."

5 Id. at 350 (citations omitted). As 8Turkey Point, CLI-01-17, 54 NRC at 7.

(Continued) 4+/-

-L7 L 2-*n, 27

Part 51 of 10 C.F.R. contains NRC's rules relating evant NEPA requirements, and section 51.20(a)(2) to and implementing rel-requires an environmental i review requirements for license renewals "that were both efficient and more effectively focused."70 Issues on which the Commission found that it could draw "generic conclusions or renewal of a nuclear reactor operating license. applicable to all existing nuclear power plants, or to a specific subgroup of impact statement for issuance most significantly, 10 C.F.R. plants," were, as indicated above, identified as "Category 1" issues?7 This Other sections relating to license renewal include, B to Subpart A. categorization was based on the Commission's conclusion that these issues involve

§§ 51.53(c), 51.95(c), and 51.103(a)(5), and Appendix to federal agencies and thus "environmental effects that are essentially similar for all plants," and thus they Although the requirements of NEPA are directed 65 72 the NRC Staff in NRC proceedings, the "need not be assessed repeatedly on a site-specific basis, plant-byrplant." Thus, the primary duties of NEPA fall on including impacts of an action, under Part 51, license renewal applicants may - with an exception relevant in initial requirement to analyze the environmental is directed to applicants under relevant NRC rules.6 Accordingly, this case that we discuss further below, requiring that ERs contain "any new and license renewal, applicant to submit with its application significant information regarding the environmental impacts of license renewal section 51.53(c) requires a license renewal of the proposed 73 which "must contain a description of which the applicant is aware" - in their site-specific ERs refer to and adopt an environmental report (ER), administrative the facility or its impact findings found in Table B-i, Appendix B, for action, including the applicant's plans to modify and "describe the generic environmental 74 with § 54.21,"

control procedures as described in accordance affecting plant all Category 1 issues.

environment or in detail the modifications directly affecting the On the other hand, environmental issues for which the Commission was not 67 is not required to contain effluents that affect the environment."' The report able to make generic environmental findings are designated as Category 2 matters, of environmental impacts identified as "Category 1," or "generic," and applicants must provide plant-specific analyses of the environmental impacts analyses 51, but "must contain analyses of these.75 These issues are characterized by the Commission as involving envi-issues in Appendix B to Subpart A of Part impacts of the proposed action, including the impacts of ronmental impact severity levels that "might differ significantly from one plant of the environmental license renewal and the impacts refurbishment activities, if any, associated with to another," or impacts for which additional plant-specific mitigation measures those issues identified as "Category should be considered.7 For example, the "impact of extended operation on 6

of operation during the renewal term," for in Appendix B to Subpart A.6 1 endangered or threatened species varies from one location to another," according 2," or "plant specific,"' issues in 1996 adopted As required under 10 C.F.R. § 51.95(c), the Commission to the Commission, and is thus included within Category 2.77 Another example, License Renewal of Nuclear a "Generic Environmental Impact Statement for relevant in this proceeding, is the requirement that "alternatives to mitigate severe potential environmental impacts of Plants" (GEIS), an extensive study of the accidents must be considered for all plants that have not [previously] considered plants, which was published as extending the operating licenses for nuclear power and 2 issues such alternatives.'"'7 Again, although the initial requirement falls upon applicants, the table of Category I NUREG-1437 and provides data supporting part of an amendment of the in Appendix B. Issuance of the 1996 GEIS was 69 by the Commission to establish environmental 70 Turkey Point, CLU-0I-17, 54 NRC at 11.

requirements of Part 51 undertaken 71 id. at 11 (citing 10 C.F.R. Part 51, Subpart A, App. B).

72 1id MAarsh v. OregonNatural Resources Council, 490 73 10C.F.R. § 51.53(c)(3)(iv).

the Court also observed, in the companion case of "by focusing Government and public attention on the environmental effects of 74 Turkey Point, CLI-01-17, 54 NRC at 11(citing 10 C.F.R. § 51.53(c)(3)(i)).

• U.S. 360, 371 (1989), 41.

that the agency will not act on incomplete information, 75 j d. (citing 10 C.F.R. Part 51, Subpart A, App. B).

proposed agency action," NIPA "ensures only to regret its decision after it is too late to correct." 76 id.

tNRC staff will See, e.g., 10 C.F.R. § 51.70(b), which states among other things that "[tlhe 65 71d. at 12.

of all information used in the draft independently evaluate and be responsible for the reliability 7810 C.F.R. Part 5 1. Subpart A, Appendix B; see § 51.53(c)(3)(ii)(L). This requirement arises out of environmental impact statement." "NEPA's 'demand that an agency prepare a detailed statement on 'any adverse environmental effects 66 See 10 C.F.R. § 51.41. which cannot be avoided should the proposal be implemented,' 42 U.S.C. § 4332(C)(ii)," implicit be 6710 C.F.R. § 51.53(c)(2); see § 51.53(c)(1). in which "is an understanding that the EIS will discuss the extent to which adverse effects can

• 6s 10 C.F.R. § 51.53(cX3)(i), (ii). Robertson, .490 U.S. at 351-52. The basis for the requirement is that "omission of a avoided."

Impact Statement for License Renewal of Nuclear reasonably complete discussion of possible Mitigation measures would undermine the 'action-forcing' 69 See NIl.REG-1437, "Generic Environmental 1996) [hereinafter GEIS]; Final Rule: "Environmental Review for Renewal of Nuclear function of NEPA. Without such a discussion, neither the agency nor other interested groups or Plants" (May 61 Fed. Reg. 28,467 (June 5, 1996), amended by 61 Fed. Reg. individuals can properly evaluate the severity of the adverse effects." ld. at 352.

Power Plant Operating Licenses,"

A, App. B n.l.

66,537 (Dec. 18, 1996); 10 C.F.R. Part 51, Subpart "IL70 272/

must address these issues in Pilgrim Watch in its contention centers on the SAMA argument, stating as follows:

the ultimate responsibility lies with the Staff, who 79 (SEIS) that is specific to the a Supplemental Environmental Impact Statement s independent assessment of the The Environmental Report [ER] is inadequate because it fails to address the envi-particular site involved and provides the Staff 0 ronmental impacts of the on-site storage of spent fuel assemblies which, already applicant's ER.9 "record of decision" densely packed in the cooling pool, will be increased by fifty percent during the Finally, section 51.103 defines the requirements for the renewal period. A severe accident in the spent fuel pool should have been consid-including the standard that the Com-relating to any license renewal application, ered in Applicant's SAMA review just as accidents involving other aspects of the pursuant to Part 54, "shall determine whether mission, in making such a decision that uranium fuel cycle were. In addition, new information shows spent fuel will remain impacts of license renewal are so great or not the adverse environmental on-site longer than was anticipated and is more vulnerable than previously known planning decisionmakers preserving the option of license renewal for energy to accidental fires and acts of malice and insanity. The ER should address [SAMAs]

1 would be unreasonable."" that would substantially reduce the risks and the consequences associated with on-site spent fuel storage. Petitioners have outlined some of these alternatives.4 AND V. PETITIONERS' CONTENTIONS, PARTY ARGUMENTS, Pilgrim Watch argues that "[a]ny exemption in the [GEIS] and 10 C.F.R.

LICENSING BOARD ANALYSIS AND RULINGS

§51.53 for spent fuel storage" covers normal operations only, not severe acci-and license dents," and therefore severe accidents involving the spent fuel pool should also With the preceding general contention admissibility requirements be considered to be a Category 2 issUe.85 PW also claims to have brought forth in mind, weturn now to the Petitioners' contentions.

renewal scope principles "new and significant information that makes consideration of the spent fuel pool necessary under NEPA." 86 Pilgrim Watch suggests that an adjudicatory hearing Pilgrim Watch 87 A. Massachusetts Attorney General's Contention and is the "only way to properly address Petitioners' concerns," arguing that other Contention 4 (Regarding Spent Fuel Pool Accidents) means such as a petition for enforcement under 10 C.F.R. § 2.206 or a rulemaking also sought to petition under 10 C.F.R. § 2.802 could not realistically address their concerns in Because of their similarity, and because Pilgrim Watch has Contention, we consider this contention together a timely fashion.8 8 adopt the Attorney General's

4. Our discussion addresses the points raised in Among other arguments offered as basis to support Contention 4, PW urges with Pilgrim Watch Contention both. Because we do that new information, relating to questions about national storage of high-level support of both, and the arguments raised in opposition to contention, it is not necessary that we rule on Pilgrim Watch's waste, indicates that spent fuel "will remain on-site longer than anticipated" at not admit either t 9 we do not address it herein. the time either the GEIS or the Waste Confidence Rule was adopted. In PW's motion to adopt the AG' s contention, and therefore as follows: view, "it makes more sense and is more protective of the environment to assess The contentions here at issue state the impacts of on-site spent fuel storage before permission is given to generate AG Contention: The Environmental Report for Renewal of the Pilgrim Nuclear more waste." 90 PW also contends that new information suggests a greater risk of Power Plant Fails to Satisfy NEPA Because it Does Not Address the Environmental 82 Impacts of Severe Spent Fuel Pool Accidents.

Severe Pilgrim Watch Contention 4: The Environmental Report Fails to Address lid.

Mitigation Alternatives (SAMAs) Which Would Reduce the Potential for 51d; see id. at 52.

Accident 83 Fires. "Jld. at 50.

Spent Fuel Pool Water Loss and 11Id at 54.

tt See iaUat 55.

8 9 d at 56; see id.at 56-61.

90

/,d at 61-62; see also 10 C.F.R. §51.23. We note that the U.S. Court of Appeals for the D.C.

79 See 10 C.F.R. §51.95(c). Circuit recently dismissed a challenge to the Waste Confidence Rule brought by the State of Nevada, S See Turkey Point, CLI-01-l7, 54 NRC at 12 (citing 10 C.P.R. §§ 51.70, 51.73-.74).

t finding, in an unpublished decision, that Nevada did not have standing because it "can point to no 1110 C.F.R. § 51.103(a)(5). injury in fact as a legal or practical consequence of the rnle," and that "[tlhe rule has no legal effect in the anticipated Yucca Mountain proceeding". Nevada v. NRC, No. 05-1350, 2006 WL 2828864, at s82AG Petition at 21.

3PW Petition at 50. *1().C. Cir., Sept. 22,2006).

2cc, 281

accidental fires in spent fuel pools than previously thought, in part because the does, the AG asserts that such new and significant information exists concerning fuel is more densely packed than originally planned; in part because an accident or the potential impact of an accident involving a high-density spent fuel pool act of malice or insanity could lead to loss of water from the pool; in part because storage facility, and that the ER is deficient because it fails to include such new the spent fuel pools of boiling-water Mark I and Mark II reactors like Pilgrim are and significant information,'9 The AG argues that he has presented particularly vulnerable to attack, being above ground; and in part because terrorist "sufficient information to create a 'genuine material dispute of factor law attacks on nuclear plants are asserted to be reasonably foreseeable threats in the adequate to warrant further inquiry' into the question of whether the likelihood of a pool fire falls wake of September 11, 2001.91 within the range of probability considered reasonably foreseeable Emphasizing the SAMA aspect of its contention, PW argues that the conse- by the NRC."99 The AG summarizes the key principles arising out of the quences of water loss as a result of any of several causes could be catastrophic "new and significant information" he submits, relating to the risks of a spent fuel pool and suggests several mitigation alternatives for consideration, including: using fire, as follows:

a combination of low-density, reconfigured storage of spent fuel assemblies and (a) if the water level in a fuel storage pool drops to the point where the tops of the moving older assemblies to dry cask storage; installing a spray cooling system; fuel assemblies are uncovered, the fuel will burn, (b) the fuel will burn regardless and limiting the frequency of full core offloadsY2 Finally, PW suggests that dry of its age, (c) the fire will propagate to other assemblies in the pool, and [d] the fire cask storage makes sense from an economic, cost-benefit perspective, and calls may be catastrophic.1t0 93 for further analysis on SAMAs.

Using some of the same arguments and supporting its contention as well with The AG supports his allegation that such new and significant information exists expert reports and other sources, the AG in his sole contention also argues that with five "facts or expert opinion[s]"(11: (1) the expert declaration and report the ER fails to satisfy 10 C.F.R. § 51.53(c)(3)(iii) because it does not considers of Dr. Gordon Thompson,102 (2) the expert declaration and report of Dr. Jan SAMAs for a severe spent fuel pool accident. 94 His primary argument, however, Beyea,103 (3) excerpts from NUREG-1738, (4) the 2006 "Safety and Security essentially consists of the assertion that Entergy's ER. "does not satisfy the of Commercial Spent Nuclear Fuel Storage" report of the National Academy of requirements of 10 C.F.R. § 51.53(c)(3)(iv) and NEPA ... because it fails to Sciences,104 and (5) the terrorist attacks of September 11, 2001.105 address new and significant information regarding the reasonably foreseeable potential for a severe accident involving nuclear fuel stored in high-density storage racks in the Pilgrim fuel pool." 9 As with PW's contention, the AG points 98 See AG Petition at 22; PW Petition at 50.

out that NEPA and 10 C.F.R. § 51.53(c)(3)(iv) require that "new and significant 9AG Petition at 23 (citing CarolinaPower & Light Co.

(Shearon Harris Nuclear Power Plant),

information" not previously considered by the NRC in an environmental impact LBP-O0-19, 52 NRC 85, 97-98 (2000)).

statement (EIS) be included in the ER.96 More specifically, the AG argues that the 100lad at 22.

regulation requires the ER to include new and significant information even if it 'a' See id.

2 concerns a Category 1 matter otherwise covered in the GEIS. 97 Also, just as PW 10 AG Petition, Exh. 1, Decl. of Dr. Gordon Thompson in Support of [AG]'s Contention and Petition for Backfit Order (May 25, 2006).

03 1 AG Petition, Exh. 2. Decl. of Dr. Jan Beyea in Support of

[AG]'s Contention and Petition for Backfit Order (May 25, 2006).

91PW Petition at 62-71.

104AG Petition, Exh. 4, Committee on the Safety and Security of Commercial 92See id. at 73-75. Spent Nuclear Fuel Storage, Board on Radioactive Waste Management, National "3 See id. at 75-77. Research Council, Safety and Security 94 of Commercial Spent Nuclear Fuel Storage: Public Report AG Petition at 23. (Washington, DC: National Academies Press, 2006). This report isalso cite by PW insupport of its Contention 91 Id. at 21. 4. See PW Petition at 65.

96 Id. at 15. The AG acknowledges that the NRC issued a generic EIS (GELS) to evaluate many of 1`6See, e.g., AG Petition at 22, 33-40. As indicated above, the Attorney General also, on June 16, 2006, filed a letter requesting the Licensing Board to apply the June 2, 2006, decision of the common environmental impacts of license renewals and therefore NRC regulations do not require the U.S. Court of Appeals for the Ninth Circuit in the case, San Luis Obispo the preparation of a complete ER and EIS for all aspects of each license renewal application. AG Mothersfor Peace v. Nuclear Regulatory Commission, "by ruling that the environmental impacts of an Petition at 12-13 (citing 10 C.P.R. §§ 5t.53(c)(3)(t), 51.71(d)). However, the AG points to 10 C.F.R. intentional attack on the Pilgrim fuel storage pool must be addressed in an EIS, or seek appropriate

§ 51.53(c)(3)(iv), which, consistent with the Court's decision in Marsh, 490 U.S. at 374, requires that guidance from the Commission." AG Letter at 2. (In Alothers for Peace, the Court reversed the an ER "contain any new and significant information regarding the environmental impacts of license Comnsission's determination that NEPA does not require an analysis of the environmental impact of renewal of which the applicant is aware." AG Petition at 15. terrorism, in that the NRC's "categorical refusal to consider the environmental effects of a terrorist attack" is unreasonable under NEPA. Thus, 97AG Petition at 15; AG Reply at 8.

(Continued) 2R_3

are NRC rules and, as such, may only be challenged or altered upon the granting The AG argues that NRC never considered this infornation in its original EIS of a waiver or rulemaking petition."' Moreover, Entergy argues that the recent for Pilgrim or in the GElS for license renewals, and that Entergy's failure to decision in San Luis Obispo Mothers for Peace v,.NRC is inapplicable here include this new and significant information in its ER thus contravenes 10 C.JF.R because Commission case law establishes that, even if terrorism issues require case.'°'The AG

§ 51.53(cX3)(iv) and the Supreme Court decision in the Marsh analysis under NEPA, the GEIS concluded that "if such an event were to occur, also contends that the environmental impacts of a spent fuel pool accident must the resultant core damage and radiological release would be no worse than those to comply with its 2 be considered by the Staff in the SEIS in order for the Staff expected from internally initiated events.""

obligation to consider significant new information relevant to the environmental Entergy challenges the AG's claim that new and significant information exists, not been considered by impacts of license renewal because this information has the NRC in a previous EIS.1°7 Further, the AG asserts, when the likelihood of arguing that the risks associated with high-density racking in spent fuel pools the estimated probability of this type of were known and considered by NRC long ago and that nothing new is contained a terrorist attack is taken into account, in the AG's exhibits." 3 In any event, Entergy asserts, none of the sources cited accident is within the range that must be discussed in an ER and EIS.'" by the Attorney General contain new or significant information, or "controvert[I]

With respect to its argument that theER Is deficientbecause it does not consider the conclusion in the GELS that the occurrence of a zirconium spent fuel pool impacts of a reasonable alternatives for avoiding or mitigating the environmental 4 fire is 'highly mnote."'- In addition, the NRC "has fully considered the severe spent fuel pool fire, the AG contends that a combination of two potential NAS report and found no basis, even in the context of a terrorist attack, to SAMAs "would virtually eliminate the vulnerability of the Pilgrim fuel pool to change its conclusion regarding the risks of spent fuel pool fires stated in the attack": low-density racking of fuel assemblies in the pool. and dry storage in GES,"1115 and has concluded that the Alvarez report cited in the Thompson and 0

casks.I 9 Beyea reports "sufferts] from excessive conservatisms, with the result that its recommendations do not have a sound technical basis."'16Entergy characterizes

1. Entergy Answer to MassachusettsAG Contentionand Pilgrim Watch the claims of the Thompson report as being "broad, unsupported claims," and argues that the Attorney General's contention is "not supported by any credible Contention 4 bass establishing the probability of a spent fuel fire or demonstrating that it is Entergy opposes both the AG's contention and Pilgrim Watch Contention 4, sufficiently foreseeable to warrant consideration under NEPA."II claiming that the environmental impacts of spent fuel storage are codified as Entergy also argues that SAMAs are limited to nuclear reactor accidents and Category I environmental issues, and thus are beyond the scope of this license do not include spent fuel storage accidents,"' that the challenge to the Waste 9

renewal proceeding.u Accordling.to Entergy, the attempt to bring these issues 0

Confidence rule is based upon information that is neither new nor significant,"

within the scope of the proceeding by invoking section 51.53(cX3Xlv) falls short and that PW's remaining arguments provide insufficient support to admit the because the generic Category I findings resulting from the analysis of the GEIS contentions at issue.120 detarmmnatla Is the Court found, the "BA [eaviroumrnu assessmnentl prepared Inreliance on that Wsadequate and fihls to comply with NBPA's wsdate"' 449 P.Fd at I2O, 1035. The Corst denied InIPte Answer to AG Petition at 13; Entergy Answer to FIW Petition at 49-50.

th peiton for review with regard to additional claims by the petltloner tha the NRC's actions had 2 11 EtMW Answer to AG Pedtio at 26 (quoting Duke Energ Corp. (MicGuireNuclear Station.

violated the Atomic EnW Ad and tm Adninif*t*aetiW Procedure At soling an-" other things that NRC'S "relance on Its ow*prir opinions in its decision in this me doea molviolate the AOAs Units I and 2; Catawba Nuclear Station. Units I and 2). CLI-02-26, 56 NkC 358. 365 n.24 (2002));

agncy Mas ohf dctio t use adijudicatial to 6t-e Entergy Answer to PW Peition at 54.

notice and comMent provisions," and that "

legal nmu."' Id. at 1027.) "See Btrgy Anwer to AO Pettionat 14-15.

estahlish abinding t 6 1 See AG Petition a 23.24-30. 114IL at 15;See L&at 15-16.

107 4 at 15, 21. 11a14 at 15-16.

"t IL` at 33-41. "'See K at 16. 17.

11714 at 19. 25; *svI at 17-25.

10914. at 41; see also Id at 23, 47. As discussed above, se uira pp. 281-4Z PW also suggests 5 thee0 ase two mitigation .teraidiv. See VW Petton at 73. 1IS Entergy Answer to PW Petition at 48-49.

II see Enterly Answer to AG Petition at 11-13 (citing 10 C.F.R. Part 51, App. B. Table B-i, 10 '191d. st 51 (citing Ocoee C.I-99-11, 49 NRC at 344-45).

8 C.P*. J§ 51.53(c), 51.95(c)); Entergy Anaswer to PW Petition at 46-4 (citing tO C.P.R Part51. App. 12°SeM 1A at 51-56.

B, Table B-1, 10 C..R. §§ 51 53(c), 51.95(c); GElS Ii 6-T-6-75).

28" 2Z5

2. NRC Staff Response to Massachusetts AG Contention and Pilgrim not deal with a contention alleging new and significant information, and that its Watch Contention 4 discussion of issues relating to new and significant information is dicta.' 29 The AG goes on to explain how in its view the information in its petition is indeed "new The Staff likewise argues that Category 1 environmental issues are outside and significant." 30 Finally, the AG asks the Board to rule that NEPA requires that of the scope of license renewal proceedings, citing 10 C.F.R. § 51.53(c)(2) and Entergy and the Staff consider the environmental impacts of an intentional attack Turkey Point'2 ' for the proposition that a license renewal ER need not provide on the Pilgrim spent fuel pool, and then to refer its ruling to the Comimission to information regarding the storage of spent fuel.tn The Staff also relies on Turkey determine the applicability of the Mothersfor Peace decision.'II Point in arguing that an ER need not address SAMAs for mitigating spent fuel

• Pilgrim Witch replies that the inclusion of onsite spent fuel as a Category pool accidents.'2 According to the Staff, by asking the Board to address a spent 1 issue under "Uranium Fuel Cycle" in Appendix B to Subpart A of Part 51 fuel storage issue, the AG and PW essentially seek to have the Board treat spent relates only to normal operations and "does not prevent it from being a Category fuel pool issues as a Category 2 issue, which runs counter to the prohibition 2 issue for the purposes of 'Severe Accidents.' ",1 PW cites the Licensing against challenging a regulation in an adjudicatory proceeding without seeking a waiver.' 24 The Staff also argues that the information in the AG petition is not Board's decision in Turkey Point as distinguishing SAMAs when it denied a contention relating only to "severe accidents" and not SAMAs,'33 and argues new and, therefore, need not be included in Entergy's ER as it has already been presented to the NRC.'2 5 Finally, the Staff asserts that, to the extent the AG's that the alternative procedural avenues of waiver and rulemaking petitions are contention attempts to raise terrorism issues, these issues are also outside of the inconsistent with Marsh and NEPA's requirement for supplementation of EISs.'34 26 It further argues that the issue it has raised is site-specific rather than generic, scope of the proceeding.'

and that it has "submitted new and significant information which casts doubt on the current generic treatment of this issue and supports its contention that NEPA

3. Massachusetts AG and Pilgrim Watch Replies to Entergy and requires that this issue be reviewed as part of the license renewal process."' 35 PW NRC Staff makes similar arguments in its Reply to the Staff,' 36 and also cites the Mothersfor Peace decision' 37 in support of its contention insofar as it raises terrorist attacks In its reply to Entergy and the Staff, the AG argues that the case law and 38 as a.new and significant issue.'

regulatory history make clear that "Category 1 impacts are included in the scope of the new and significant impacts that must be discussed in an ER pursuant to 10 C.F.R. § 51.53(c)(3)(iv)." 127 The AG maintains that the alternative procedures suggested in Turkey Point (e.g., the filing of a waiver petition or a rulemaking petition) are inconsistent with NEPA as construed by the Supreme Court in that application of the rule... would not serve the purposes for which the rule..,

Marsh.'2 8 Further, the AG asserts that Turkey Point is inapposite because it did was adopted," or as characterized by the Consnission in Turkey Point,in which it stated that "[iln the hearing process

. .. petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of a rule,", but "[p]etitioners with evidence that a generic finding 121Turkey Point,CLI-01-17, 54 NRC at 6-13. is incorrect for all plants may petition [for a] rulemaking." Turkey Point, CLI-01-17, 54 NRC at 12; 22 1 See Staff Response to AG Petition at 10-12; Staff Response to PW Petition at 34-36; see also see Tr. at 88-90, 109-115, 138-40. The AG argues that the "new and significant information" at issue Turkey Point, CLI-01-17, 54 NRC at 6-13. concerns not only the Pilgrim plant but also others. Tr. at 88. As indicated above, see supra note 4,

' 23 See Staff Response to AG Petition at 9-11; Staff Response to PW Petition at 34-36 (citing Turkey the29AG has filed a rulemaking petition.

' AG Reply at 11.

Point, CLI-0I-17, 54 NRC at 21-22).

24 '3See id. at 12-27.

1 See Staff Response to AG Petition at 10-11, 14; Staff Response to PW Petition at 36.

25 131 Id. at 27-28.

1 See Staff Response to PW Petition at 37; Staff Response to AG Petition at 15-18.

26 32 PW Reply to Entergy at 25.

1 See Staff Response to AG Petition at 19-20; Staff Response to PW Petition at 38.

127AG Reply at 8. 133d at 26-27.

28 1 See id. at 9-10. The Attorney General has also argued that, "in order to get a hearing and in 134 Id at 27-28.

3 order to raise a legitimate contention," the "one door" open to it was to file a contention, Tr. at 87, 5 Id. at 30; see Id.at 28-30.

' 36 in part because it did not believe it met the requirements for a waiver under 10 C.F.R. § 2.335 that

' PW Reply to NRC Staff at 19-20.

37

-special circumstanceswith respectto the subject matter of theparticularproceeding [must be] such 1 See id. at 20.

3 (Continued) ' 8 id. at 20-21.

UR7

should our rulings herein be interpreted as suggesting a finding on this in either Contention and PW direction.

4. Licensing Board Ruling on MassachusettsAG Contention 4 Second, regarding the Petitioners' arguments based on the Ninth Circuit's decision in Mothers for Peace v. NRC, we again follow Commission precedent, on two separate grounds. We We find these contentions to be inadmissible, in this instance declining to rule on such matters at this time in light of the espoused by Pilgrim Watch) address first the Petitioners' arguments (primarily procedural posture of that case. We recognize, as another Licensing Board has admitted because they raise matters relating to that the contentions should be alternatives," or"SAMAs," recently observed (ruling in the Vermont Yankee license renewal proceeding "severe accidents" and "severe accident mitigation 39 in a license renewal on a virtually identical contention filed by the Massachusetts Attorney General must be addressed a site-specific Category 2 issue' that A of 10 C.F.R. Part in that case), that the Mothers for Peace decision might impact our rulings B to Subpart under 10 C.F.R. § 51.53(c)(ii)(L) and Appendix these arguments herein.140However, a majority of the Commission has recently issued two rulings below, we find that

51. For reasons we set forth in some detail declining to apply the Court's decision in Mothersfor Peace in NRC proceedings the term, "severe accidents,"

fail because of Commission precedent interpreting at this time. First, in the NRC proceeding from which the Mothersfor Peace spent fuel pool accidents, wvich fall to encompass only reactor accidents and not decision arose, it denied Petitioners' motion for various relief based on the I issue of onsite storage of spent fuel.

within the analysis of the generic Category Court's decision, finding it "unnecessary and premature," and noting as well arguments (indeed, the Attorney General's Next, we address the Petitioners' that the Court's ruling did not "circumserib[e] the procedures that the NRC must be admitted because they challenge central argument) that the contentions should employ" for addressing terrorism in the NEPA context and thus the Commission matters that they contend constitute 4 the Applicant's failure to address various 10 C.F.R. has "maximum procedural leeway" to address the issue.' ' Second, it postponed "new and significant information," which must be addressed under of the State of New Jersey in the Oyster Creek license these arguments addressing a request I issue. Again,

§ 51.53(c)(3)(iv), even if they concern a Category renewal proceeding that it consider the Ninth Circuit's decision in ruling on the of Commission precedent, in this instance establishing that, of its contention relating, inter alia, fail in the face State's appeal of the Licensing Board's denial applicant in its ER (and the NRC Staff in notwithstanding the responsibility of an 4

to SAMAs and spent fuel pool vulnerability."' Based upon this authority, we also information" relating even to Category the SEIS) to address "new and significant will refrain from issuing a ruling based on the Mothersfor Peace decision at this such "new and significant information" I issues, an allegedfailure to address time, without, however, foreclosing the possibility that future pleadings may be absent a waiver of the rule in 10 does not give rise to an admissible contention, filed based on future developments inthat case, as appropriate at such time.

need not be addressed in a license.

C.F.R. § 51.53(c)(3)(i) that Category 1 issues renewal.

issues that the analysis that brings a. Ruling on "Severe Accident"- and SAMA-Related Arguments We would note with regard to both of these not follow an entirely'straight path, us to our conclusions regarding them does As indicated above, the critical determinative issue relating to severe accidents in neither instance directly resolve the issues in primarily because relevant rules and SAMAs is what the term "severe accident" encompasses, thus defining what in the Turkey Point license renewal question. However, Commission precedent accidents are to be examined in the context of a "severe accident mitigation and the regulatory framework within proceeding, interpreting the rules in question alternatives," or "SAMA," analysis. At first blush, the arguments of PW and on both issues.

which they fall, mandates our rulings the AG, to the effect that severe accidents include spent fuel pool accidents and we do not rule herein on two other questions relating We note further that that a SAMA analysis must therefore address such accidents, seem plausible. The light of our rulings on the preceding two to the contentions at issue. First, in Licensing Board in Turkey Point indeed distinguished SAMAs in denying con-do not, go into the question whether primarily legal issues, we need not, and tentions concerning "severe accidents" that contained no mention of "mitigation supported either contention insofar as it alleges either Petitioner has sufficiently and significant information" that should as a factual matter that there exists "new relating to the risks and environmental S"Entergy Nuclear Vermont Yankee, LLC(Vermont Yankee Nuclear Power Station),

LBP-06-20, have been addressed by the Applicant, accidents involving, spent fuel pools. Nor 64 NRC 13 t, 160 (2006) (cititg 449 F.3d at 1016).

impacts of high-density racking in, and Storage 141See Pacific.Gas andElectric Co. (Diablo Canyon Power Plant Independent Spent Fuel Installation), CLI-06-23, 64 NRC 107, 108 (2006).

1 See Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

42 CLI-06-24, 64 NRC issues, and "Category 2," lit, 115 (2006).

139 See supra Section IV.B, discussion of "Category 1:" or "generic" or "site-specific" issues.

289

43 alternatives," which is the crux of a SAMA.1 In addition, NRC regulations reactor core.t4 But the rules themselves contain no such reference or limita-offer little guidance, providing neither a definition of the term "severe accident," tion.

nor stating explicitly whether the "severe accidents" to be examined in SAMA The most on-point source on the issue is Commission case law in the Turkey analyses include or exclude spent fuel pool accidents.. Point proceeding. It must be noted that, when it considered the question of Section 51.53(c)(3)(ii) states that the environmental report must contain anal- severe accidents and SAMAs, on the appeal of one of the petitioners in that yses of the environmental impacts of the proposed action that are identified as proceeding, die Commission endorsed the distinction made by the Licensing Category 2 issues in Appendix B to Subpart A of Part 50, and then goes on Board, between the need to propose a SAMA and the more substantive question to recount in narrative form the same issues identified as Category 2 issues in of risk associated with severe accidents.145 It then went on, however, to focus Appendix B (with SAMAs addressed in section 51.53(c)(3)(ii)(L)). It does not, upon what is essentially an alternative, and ultimately more'significant, rationale however, define "severe accidents" or "SAMAs," or limit SAMAs in any way for its ruling upholding the denial of the contention in question - that SAMAs 46 other than as stated in subsection (L) - i.e., "a consideration of alternatives to apply only to reactor accidents, not to spent fuel pool accidents.'

mitigate severe accidents must be provided" only "-[ifthe staff has not previously It is argued that the Commission's language in this regard is "gratuitous," on considered severe accident mitigation alternatives for the applicant's plant in an an issue that did not need to be decided directly.147 The length and specificity

[EIS) or related supplement or in an environmental assessment." And the entry of the Commission's discussion, however, belies such an interpretation, and in Appendix B, Table B-i, likewise provides no assistance on the question before suggests that the Commission saw this second ground for its ruling as being more us, stating merely as follows: important than, and indeed in effect rendering irrelevant, the question whether that petitioner mentioned SAMAs in his "severe accident" contention. We quote Severe accidents SMALL. The probability weighted consequences of at length from this discussion in order to illustrate this:

atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants. a. Onsite Storage of Spent Fuel Is a CategoryI Issue However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives. See § 51.53(c)(ii)(L). *Our rules explicitly conclude that "[tihe expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated on site with small environmental effects through dry or pool storage at all plants if a Certainly, "severe accidents" is a term of art long used in the nuclear indus-permanent repository or monitored retrievable storage is not available." Table B-I, try and incorporated into Commission guidance documents, including NUREG- Subpart A, Appendix B to Part 51. See Oconee, CLI-99-11, 49 NRC at 343-44.

1150, which is focused singularly upon accidents involving damage to the The GElS provides the background analyses and justification for this generically applicable finding. See GEIS at 6-70 to 6-86. It finds "ample basis to conclude that continued storage of existing spent fuel and storage of spent fuel generated during the license renewal period can be accomplished safely and without significant 14 environmental impacts." Id. at 6-85. The GElS takes full account of "the total 3Florida Power & Light Co (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, accumulated volumes of spent fuel after an additional 20 years of operation." Id. at 53 NRC 138 (2001). That Licensing Board stated: 6-79; see also id. at 6-80 to 6-81.

[S]ection 51.53 does not require the Applicant broadly to consider severe accident risks. Rather, it only requires the Applicant to consider 'severe accident mitigation alternatives' (SAMAs). *l The GEIS'sfinding encompasses spentfuel accident risks and their mitigation.

10 C.F.R. § 51.53(c)(3)(ii)(L). The Commission, therefore, has left consideration of SAMAs See GElS, at xlviii, 6-72 to 6-76, 6-86, 6-92. The NRC has spent years studying as the only Category 2 issue with respect to severe accidents, but this portion of Ms. Lotion's in great detail the risks and consequences of potential spent fuel pool accidents, contention does not seek to raise any issue related to severe accident mitigation alternatives.

Her contention neither identifies any mitigation alternatives that should be considered nor challenges the Applicant's evaluation of SAMAs in its environmental report. 44 Id. at 160-61. Further: t NUREG-1I50, "Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants" Mr. Oncavage's allegation that an accident involving spent fuel is a Category 2 issue does not (Dec. 1990). See also Policy Statement on Severe Reactor Accidents Regarding Future Designs and make the contention admissible. As discussed earlier (see suprap. 160), only severe accident Existing.Plants, 50 Fed. Reg, 32, 138 (Aug. 1985).

mitigation alternatives may be considered for license renewal severe accident Category 2 "'4 Turkey Point, CLI-01-17, 54 NRC at 21-22, issues, and Mr. Oncavage has not raised any issue involving mitigation alternatives. 16id.

Id. at 165. 147See PW Reply to NRC Staff at 19.

2-V1

4 including accident risk, generically. All such issues, to onsite spent fuel storage and the renewal proceedings.

studies. NRC studies fall outside the scope of license is rooted in these earlier fuel and the GElS analysis onsite reactor spent operational experience support the conclusion that health "Severe Accident Risks: An Assessment for Five U.S.

agency's undue risk to public [FPNlO See, e.g., NUREG-1150, risks); NUREG/CR-5042, for decades, presents no the (examining core meltdown storage, which has continued fuel storage encompasses Nuclear Power Plants (Dec.

1990) States" (Dec. 1987)

GElS analysis of onsite spent to Nuclear Power Plants in United and safety. Because the scope of individual license renewal "Evaluation of External Hazards events). -

2 falls beyond the (examining the risk of core damage from external risk of accidents, Contention of Generic Issue accident at a NUREG-1353, "Regulatory Analysis for the Resolution proceedings. that a "catastrophic radiological "FNII] See, e.g., (April 1989); NUREGICR-4982, in Spent Fuel Pools' Mr. Oncavage argues, however, is a category 2 issue." Amended 82, 'Beyond Design Basis Accidents Issue 82" (July 1987);

be a severe accident which in Spent Fuel Pools in Support of Generic Safety spent fuel facility would to mitigate severe accidents "Severe Accidents of Accident Preventive and Mitigative Options provide that "alternatives NUREG/CR-5281, "Value/Impact Analyses Petition at 2. Part 51 does such alternatives." See "Seismic Failure and Cask Drop that have not considered NUREGICR-5176, must be considered for all plants GElS at 5-106 to 5-116.

But Mr. for Spent Fuel Fools" (Mar. 1989); at Two Representative Nuclear Power Plants (Jan. 1959). A A of Part 51; see also And, in any Analysis of the Spent Fuel Pools finds the risk of accident Appendix B to Subpart alternatives. risks at decommissioning reactors 2 says nothing about mitigation recent study of spent fuel storage NUREG-1739, "Technical Oncavage's Contention alternatives" applies to believed, but still very tow. See to "severe accident mitigation somewhat greater than originally Nuclear Power Plants (Feb.

event, Part 51's reference Not only Mr.Oncavage. Study of Spent Fuel Pool Accident Risk at Decommissioning not spentfuel storageaccidents.on this point,for no one nuclearreactoraccidents, was confused 2001).

apparently to storage ofspent fuel but also the NRC Staffand.FPL, and spentfuel accidents. Waste Confidence rule applies only its underlying GEIS, between reactoraccidents [FN14] [Discussion noting that 5 t, with raised the important distinction risks (including accidents) As we hold in the text, it is Part deals with spent fuel storage after a reactor ceases operation.]issue.14 8 As we have seen, the GEIS, already in place provide litigation of that that "regulatory requirements that precludes generically, and concludes also id. at 6-72 to 6-76.

at 6-86, 6-92, xlviii; see merely in adequate mitigation." GEIS rejects the need for further passage clearly did not address On the issue of onsite fuel storage, then, the GElS for The Commission in the preceding in a SAMA alternativesat the license renewalstage.Id. Indeed, the severe accidents to be addressed considerationof mitigation that additional passing the issue of whether accidents, Rather, has concluded 51 include spent fuel pool all issues designated as Category 1, the Commission not be analysis under 10 C.F.IL Part had overlooked the to be beneficial and need participants in that proceeding alternatives are unlikely 1-9. it explicitly noted that all fuel accidents,"

site-specific mitigation at 28,484; GEIS at 1-5, reactor accidents and spent See 61 Fed. Reg.

considered for license renewal. and spent fuel accidents "important distinction between between reactor and spent studied reactor accidents the differences The NRC customarily has on Severe Reactor Accidents going into great detail discussing why it found that SAMAs do not apply to our "Policy Statement separately. For instance, and Existing Plants" discusses only reactor accidents fuel pool accidents, and explaining It cited the GEIS extensively in support Regarding Future Designs is pools.

[as] those in which substantialdamage accidents involving spent fuel read as emphasizing and defines "[s]evere nuclear accidents offsire consequences." 50 to this effect. The passage indeed may be whether ornot there are serious of its statements have been read as implicitly done to the reactorcore NRC studies in question there to 1985) (emphasis added). Similarly, the various that, even were the contention been deemed admissible. In this Fed. Reg. 32,138 (Aug. to the reactor core of it would not have focus upon potential damage bringing SAMAs into play, of the GEIS, on severe accidents typically set of studies altogether is devoted to spent fuel the references to the cited portions nuclear power plants.'

0 A different is acceptably small." light, and taking into account Part 51 of the regulations, while we concluded that the risk of accidents Commission as underlying and has events that noted by the specific language in pool accidents, Indeed, GELS treat the matter generically. plant to.plant, thereby the that it would have been preferable to include Hence, Part 51 and the might observe if that is what was accident vary significantly from SAMAs to reactor accidents could lead to a severe reactor spent fuel pools the actual SAMA rule limiting provided in the Whereas accidents involving hardly equivocal in the interpretation requiring plant-specific consideration, intended, the Commission is to generic consideration.

or dry casks are more amenable caused by hurricanes.] passage quoted above. AG Contention of spent fuel pool accidents to find the Massachusetts

[Discussion of possibility 1 determination for spent fuel On this basis, we are constrained are based on the SAMA-seek a waiver of the Category render the inadmissible insofar as they Mr. Oncavage did not discussions raise any information that might and PW Contention 4 to be issues, nor did his hurricane Nothing in Mr. above.

inapplicable to the Turkey Point facility. related arguments summarized GEIS's Category 1 finding under our license renewal rules.

"hurricane" claim renders it litigable issues relating Oncavage's environmental renewal provisionscover In short, Part51'slicense NRC at 21-23 (emphasis added),

'4' Turkey Point,CLI-01-17. 54 273ý 27..

and In these other statements, the Commission has indicated that any new I issues in Part 51 may in "New and Significant significant information on matters designated as Category

b. Ruling on Legal Issues Involved of con-be initiated by petitioners only through means other than the submission Information' '-Related Arguments specific options that individuals tentions. First, the Commission identified three to be inadmissible insofar as and-petitioners might pursue to address new and significant information that may We likewise must find the contentions at issue § 51.53(c)(3)(iv) that the ER of 10 C.F.R. 1 issues was finalized:

they are based on the requirement have arisen after the GEIS on Category any new and significant information regarding the environmental "must contain which the applicant is aware.

renewal of impacts of license this ruling. Indeed, section 51.53(c)(3)(iv) The Conunission recognizes that even generic findings sometimes need revisiting in particular contexts. Our rules thus provide a number of opportunities for Again, the rule itself does not dictate allowance might exception to section 51.53(c)(3)(i)'s individuals to alert the Commission to new and significant information that may be read as in effect creating an of the environmental plants or to contain analyses render a generic finding invalid, either with respect to all nuclear power that an applicant's ER .is not required identified as Category I issues in Appendix process, for example, petitioners with new for one plant in particular. In the hearing impacts of the license renewal issues section a particular this reading that the requirement of showing that a generic rule would not serve its purpose at information B." Commission precedent supports but also to Category 1 issues plant may seek a waiver of the rule.... Petitioners with evidence that a generic 2 issues 5 t.53(c)(3)(iv) applies not only to Category Applicant and finding is incorrect for all plants may petition the Commission to initiate a fresh

- at least to the extent that it applies to the responsibilities of the may also use the SEIS notice and comment process stated that, "le]ven where the GEIS rulemaking.... Such petitioners the Staff. In Turkey Point the Commission (Category 1), the applicant to ask the NRC to forgo use of the suspect generic finding and to suspend license generically has found that a particular impact applies Report if new and renewal proceedings, pending a rulemaking or updating of the GEIS. See 61 Fed.

in its Environmental must still provide additional analysis of the Category I finding Reg. at 28,470; GEIS at 1-10 to 1-tl."13 significant information may bear on the applicability 149 McGuire proceeding, the Commission at its particular plant." Later, in the Later in its decision, in the specific context of spent fuel pool accidents (which, additional reinforced this ruling, stating again that "the applicant must provide as indicated above, it found to fall within the Category 1 issue of onsite storage of information has if new and significant analysis of even a Category I issue in its rulemaking that the spent fuel" ), the Commission made clear that its intent was that these 4 options were has indicated stating that surfaced." 50 Similarly, the Commission information to be the exclusive options open to members of the public on the issue, Staff must, when preparing the SEIS, consider any significant new fuel accidents, whatever their cause, as generic, Category 5

' "Part 51 treats all spent 1 issues.' Further, removing any related to Category 1 events not suitable for case-by-case adjudication."155 read subsection (c)(3)(iv) of section On the basis of the foregoing, one might doubt as to its intent, the Commission added, "As we hold in the text, it is part (c)(3)(i) also in an adjudication context, partic- of that issue." "

6 51.53 as an exception to subsection 51, with its underlying GEIS, that precludes the litigation in Turkey Point that "[aldjudicatory ularly in light of the Commission's statement of As the Vermont Yankee Licensing Board noted in its decision in that license proceedings will share the same scope hearings in individual license renewal thatan alleged renewal proceeding, the preceding reading of Turkey Point is consistent with the 2

Thus the Petitioners' argument, that the ER issues as our NRC Staff review."1 regulatory history of 10 C.F.R. § 51.53(c)(3)(iv)."57 The requirement comply with the requirement of section 51.53(c)(3)(iv) original proposed failure of an applicant to include any new and significant information was not part of the (assuming proper support under the con-may give rise to an admissible contention be persuasive - but for other statements tention admissibility rules), might also that lead to a contrary conclusion.

of the Commission in Turkey Point language referring to 153Turkey Point, CLI-01-17, 54 NRC at 12. We note that the Commission's particular plant" supports the AG's argument that 49 the waiver process when information relates to "a 1 Id. at 11 (emphasis added). plant in particular in order Station, Units I it would need to show some special circumstances relating to the Pilgrim Station, Units 1 and 2; Catawba Nuclear

"'o Duke Energy Corp. (McGuire Nuclear to qualify for a waiver. See supra note 128.

290 (2002).

and 2), CLI-02-14, 55 NRC 2"8, In addition, in Turkey 14 See Turkey Point,.CLI-01-17, 54 NRC at 21-23; 10 C.F.R. Part 51, App. B, Table B-I.

51.95(c)(3); 61 Fed. Reg. at 28,470. Id. at 22 (emphasis added).

"' See 10 C.F.R. §§ 51.92(a)(2), account of public comments, including 155 the "final SEIS also takes Point the Commission stated that CLI-01-17, 54 NRC at 12; see also 156Id. at 23 n.14 (emphasis added).

• . . new information on generic findings." Turkey Point, 57 at 290-91. 1 See Vermont Yankee, LBP-06-20, 64 NRC at 157-59.

McGuirelCatawba,CLI-02-14, 55 NRC

'57Turkey Point,CLI-01-17, 54 NRC at 10.

r4b

The failure to adopt an actual rule provision stating that "litigation unlessof en-the Council on vironmental issues in a hearing will be limited to category 2 issues in response to objections from the by Petitioners, be taken rule. It was added in the final rule rule is suspended or waived" might well, as argued 155 Protection Agency (EPA),

U.S. Environmental to indicate that the Coimnission ultimately decided against such a provision, Envixotmental Quality (CEQ), the Commttnission noted" except for subsequent indications of the Commission's intent to the contrary, and members of the public. As the as discussed be both at the rulemaking stage and in its.later Turkey Point decision, how new scientific infonnation could occurred when Federal and State agencies questioned GElS would have been performed so far above. With respect to the former, we consider a dialogue that the folded into the GEIS findings because license.... A group of commenters, the Commission was deliberating the final rule and discussing SECY-93-032).

actual renewal of an operating included in advance of the that the rigidity of the proposed rule hampers the The briefing covered the resolution of the CEQ and EPA objections and including CEQ and EPA noted or to different environmental issues an exchange between Commissioner James R. Curtiss and Martin Malsch, the NRC's ability to respond to new information and Regulation. Twice the Commissioner Deputy General Counsel for Licensing not listed in the proposed rule.'s license asked whether, under 10C.F.R. § 51.53(c)(3)(iv) or any.other part of the to expand 'the could litigate a Category I issue on the claim that 10 C.F.R. § 51 .53(c)(3)(iv), renewal regulations, a petitioner The Commission in response added 10 66 General new information."" The Statement there was new and significant information on the issue.' The Deputy framework for consideration of significant 0 32 a Staff memorandum

, a claim could not be litigated without first refers to SECY Counsel of NRC answered that such of Considerations to the final rule including the addition of the in the form of a waiver, from the Commission itself.' 67 With rule changes, 6 obtaining approval, to the Commission proposing certain to resolve the CEQ and EPA concerns.1 t provision in 10 C.F.R. § 51.53(c)(3)(iV), issues in was that "'lBitigation of environmental One of the proposed changes and category 3 issues. unless to GEIS Rulemaking for Part category 2 65 See Public Meeting, "Briefing on Status of Issues and Approach a hearing will be limited to unbounded 6 Commission approved modification S1" (Feb, 19,1993) (ADAMS Accession No. ML.051660665).

1 The the rule is suspended or waived."1 endorsed SECY-93-032."63 Cormtission 66

' 1d. at 14..

of the proposed rule and specifically when the thus be read as demonstrating that, 67 2 1 See id The discussion in question was as follows:

approval of SECY-93-03 may I issues could says, "This is rule, it contemplated that Category Commissioner Curtiss: "(Ajesume for the sake of discussion that the staff Commission adopted the final to 10 C.F.R. one that can be or you of a waiver petition pursuant not significant new information," is that kind of issue subsequently be litigated only after the granting need not in 10 C.F.R. § 51.53(c)(3)(i) that an ER intend to be cognizable before the board?

§ 2.335, suspending the provision to challenge a failure basic answer is they have thus allowing Petitioners Mr. Malsch: Well, it would depend. If the information is - the address "Category V, issues and information" with regard to to come to the Commission first. If the information is considered significant by the interested and significant of the ER to address alleged "new party and staff says, "Now, this is not significant." If it's generic information, than the remedy Before the Commission such an issue.', is a petition for rulemaking and that usually comes to the Commission.

If the would grant a petition for rulemaking, it would consider the merits of the information.

then they'd need to petition for a waiver. But after being screened 56 Fed. Reg. infornmation is site specific, 5 Review for Renewal of Operating Licenses," by the board, the board is referred to the Commission and only the Commission can grant 1 6See Proposed Rule: "Environtmntal (Sept. 17,199 1). waivers. So. again it comes before the Commission.

47.016, 47,027-28 159611,jFed. Reg. at 28,470. there, the 160 So, the procedural route is somewhat different, but no matter how it gets staff judgment, looking at what other parties say about Commission would be looking at the 161See id.; SECY-93-032, Memorandum from James Mvi.Taylor, EDO, to the CommissionTas 6 6 6 67 it, and making its own determination about significance.

(Feb. 9, 1993) (ADAMS Accession No. vL051 0 ).

were eventually combined into Category SECY-93-03 at4. We note that Category 2 and 3 issues 2

162 where you envision Commsissioner Curtiss: So, there's no circumstance, in other words,

2. See 61 Fed. Reg. at 28,474. Secretary, to James M. Taylor, EDO (Apr.

22, 1993) that once a determination is made under the procedures that you've described with regard to 163 Memorandum from Samuel S. ChVl, recommendation, that 2 the significance of the information by the Commission upon the staffs (ADAMS Accession No. MI.O376080 ). of that information, 1 64 to the rule combining "caugry 2" and "category 3" isiuei into, simply. we would then in turn need to litigate before the board the significance The additional change being drawn whether it was or wasn't significant?

to alter this conclusion, lsthe p*eti*eut distinction "category 2," would itself not appeat plant-specific, which would not genetic and those that were Mr. MaIsch: Not without the Commission's approval.

was between those -issues that were who might want to challenge an via a via members of the public Id.

affect the procedures contemplated iuforautionU about an otherwise "category V" applicant's failure to address "new and significant issue,

a Petition for Rulemaking with regard to the matters at72 issue in its Contention,'71 Commission approved and finalized neither the AG nor Pilgrim Watch has sought a waivery and thus the contention this understanding of the regulations, the the absence of alleged section 51.53(c)(3)(iv).'6 must;be ruled inadmissible insofar as it seeks to challenge 3 of the matters raised by the information in the Applicant's ER.'1 With regard to. whether the NRC's resolution new and significant 74 applicants and the NRC Staff to address Absent future developments in the Mothers for Peace case to the contrary,1 CEQ and EPA commenters - requiring taking the position that any alleged this would include the matter of the alleged potential for terrorist attacks on the any "new and significant information" but subject of an admissible contention lack of such information could not be the law interpreting it including the absent a waiver - satisfies NEPA and case contravene such law, given that other history in arguing that its interpretation of the rule - i.e., that Entergy is required I issues -

under section Marsh case, we find that this would not in the SEIS process. It is not required 51.53(c)(3)(iv) to address "new and significant information" even relating to Category means are provided for public participation should be followed. See id. at 6. Indeed, we agree with the AG on this interpretation, as evidenced in be accomplished in an adjudicatory that the public participation aspect of NEPA our discussion in the text. And, as we also discuss in the text, to construe section 51.53(cX3)(iv) as an of the rule.

proceeding)6 exception to section 51.53(c)(3)(i) also in a litigation context is a reasonable reading to have written into the rule Again, while it might have been preferable on the exception to section However, our inquiry cannot end so quickly, because, although "interpretation of any regulation based itself the prohibition on allowing contentions and on allegations of "new and Laboratories.

must begin with the language and structure of the provision itself," see Wrangler 6), "administrative history 5l.53(c)(3)(i) found in section 51.53(c)(3)(iv) ALAB-951. 33 NRC 505, 513 (1991) (cited by the AG in his Reply at we must, based on the Commission and other available guidance may be consulted for ... the resolution of ambiguities in a regulation's significant information" as therein provided, analysis, and as in the Vermont language[, so long as an] interpretation Idoes) not conflict with the plain meaning of the wording precedent in Turkey Point and the preceding used in [a) regulation." Wrangler, ALAB-951, 33 NRC at 513-14. Section 51.53(c)(3)(iv) and may thatPetitioners Massachusetts Attorney Yankee proceeding, rule in this proceeding in a contention the Applicant' s ER well be viewed as being ambiguous, in that it clearly conflicts with section 51.53(c)(3)(i) an exception to General and Pilgrim Watch may not challenge there is no "plain language" explicitly stating that section 51.53(c)(3)(iv) creates new and significant information with regard to section 5 L.53(c)(3)(i) - in any contexL From this perspectiveýthe Cormsission - which,

"[albsent for any alleged failure to consider obtaining constitutional constraints or extremely compelling circumstances. .. 'should be free to fashion [its) of onsite storage of spent fuel, without seeking and the Category I issue Attorney General has recently filed own rules of procedure and to pursue methods of inquiry capable of permitting [it] to discharge the a waiver of the generic rule.'Q Although tits) multitudinous duties,'" Vermont Yankee Nuclear Power Corp. v. NaturalResources Defense "in its informed Council,Inc., 435 U.S. 519,543 (1978) (citations omitted), and which may choose,

v. Chenery Corp.,

discretion," to proceed "by general rule or by individual, ad boc litigation," SEC viewed as having the discretion to state its interpretation of these t6 332 U.S. 194, 203 (1947) - may be appear to be SSee 61 Fed. Reg, at 28,467.

role" playedby theEtS, regulatory provisions as it did in Turkey Point. And thus this Licensing Board would NEPA arises from the "inforantional bound by the Commission's interpretation of section 51.53(c)(3)(iv) in Turkey Point, to the effect that 169This public participation aspect of the agency 'has indeed considered environmental concems in in the context of the requirements that an exception to section 51.53(c)(3)(i) in ' givtingg the public the assurance for public section 51.53(c)(3)(iv) creates more significantly, providling) a springboard Resources for ERs and EISs but not with regard to the scope of issues permitted to be raised in contentions in a its decisionmaking process,' .. . and, perhaps Baltimore Gas & Electric Co. v. Natural in the text. See also CAN v. NRC, 349 (quoting license renewal adjudication context, absent a waiver, as discussed comment." Robertson, 490 U.S.

at retevant Council on 97 (1983)). The court in Robertson noted 391 F.3d at 349, 360-61, Mothersfor Peace, 449 F.3d at 1027.

Defense Council. Inc., 462 U.S. 87, agencies to request and consider comments from Part 51 Environmaental Quality (CEQ) regulations requiring affected Indian tribes, any relevant "'See Massachusetts Attorney General's Petition for Rulemaking To Amend 10 C.F.R.

state and local agencies, (Aug. 25,2W06) (ADAMS Accession No, ML062640409).

"other fedzeal agencies, appropriate iitemested or affected persons or organizations."

in paxtictlar, that applies nut only applicant, the public generally, and, "Public '`7 With respect to a petitioner who alleges "new and significant information" 2

Other CEQ regulations specifically address and thus raises Id. at 350 n.13 (citing 40 C.F.R. § 1503.1). meetings," but do not require adjudicatory hearings. to a particular plant or plants involved in a proceeding, but is more broadly applicable or public at oral argument, involvement," and "public hearings dissemination of information a more "generic" issue, it would seem that the only recourse is indeed, as discussed 40 C.F.R. § 1506.6c. The Court also noted, in Marsh, that the required General. We note

.. to react to the effects of a ptoposed action at a meaningful time." Marsh, 490 see supra note 128, a petition for rulemaking, such as that filed by the Attorney

'permits the public of Plymouth have both indicated that they are less concerned about how the that the AG and the City generically but in a U.S. at 371. See also 10 C.F.R. §51.92(d)(1). reading" of sectiot matters at issue are addressed than that they are in fact addressed, not merely argument in his reply that a "plain manner that assures that the situation at Pilgrim is in fact addressed and not overlooked, as might be 7We note the Attorney General's 1 0 the "new and significant information" a licensee proceeding is that 51,53(c)(3)(iv) leads not only to the conclusion that petitioners the case were any rulemaking not to become effective until after this license renewal Category I issues, but also to a finding completed. See l'r. at 140, 144-47, see id. at 148-56.

must providt includes information regarding ER in this regard in contentions. AG Reply at 9; see there is indeed of the "13Thus we need not address. and have not addressed herein, the question whether are entitled to challenge the adequacy with SECY-93-032, to the effect that any limitation associated id. at 5-9. We note also his argument I issues without a waiver, should not be followed because new t74 and significant information in this instance.

so as to exclude litigation of Category AG also relies on regulatory See supra p. 289.

rule." Id. at B n.'7. However, ihe it was "never codified in the fmal (Continued)

W9 Z79

spent fuel pool. In McGuire, the Commission held that there is no need to address terrorism issues in license renewal proceedings because "it is sensible not to is a violation of NRC regulations. Because older plants are more likely to experience devote resources to the likely impact of terrorism during the license renewal corrosion and leakage problems, and low energy radionuclides can speed up the period, but instead to concentrate on how to prevent a terrorist attack in the near rate of corrosion, Pilgrim should be required, as part of its Aging Management term at the already licensed facilities." 175The Commission also, in holding that Program, to adequately inspect and monitor any systems and components that carry radioactive water. The Aging Management the GElS adequately addresses terrorism issues generically, stated: Plan should be revised to include this inspection and monitoring before a license renewal is granted,.' 75 Even if we were required by law to consider terrorism under NEPA, the NRC has already issued a ... GElS that considers sabotage in connection with license Relying on the requirement for an aging management program that addresses renewal.... The GEIS concluded that, if such an event were to occur, the resultant structures and components including

.inspection of buried pipes pipes, and referring to the provision core damage and radiological releases would be no worse than those expected for and tanks in section B.1.2 for of Entergy's Application, internally initiated events.t 76 PW argues that deficiencies in the aging management plan for such tanks that contain radioactive water pipes and 79 could "endanger the safety and welfare This authority supports a conclusion that terrorism concerns, even assuming new the public"' and "significantly impact of health,"tso and therefore this contention and significant information is presented, are not litigable in a license renewal is within the scope of this license renewal proceeding and material to the findings proceeding without a waiver. that must be made to support the action at issue in this proceeding."'

In conclusion, based on the preceding analysis, the Massachusetts Attorney Pilgrim Watch has submitted exhibits produced General's Contention and Pilgrim Watch Contention 4 must be ruled inadmissible Scientists documenting leaks of radioactively by the Union of Concerned contaminated water at eight nu-and are consequently denied. clear facilities,t" and also supports its contention by reference to various documents. These include, with regard other to health concerns related to radioactive material in groundwater, statements B. Pilgrim Watch Contention 1: The Aging Management Plan Does by Arjun Makhijani, Ph.D.,"' scholarly newspaper articles,' 84 and the "BIER and Not Adequately Inspect and Monitor for Leaks in All Systems and VII report." 85Cited with regard to aging and corrosion are additional publications plant Components That May Contain Radioactively Contaminated Water of the Union of Concerned Scien-Petitioner Pilgrim Watch in this contention states:

'IrL* at 6.

The Aging Management program proposed in the Pilgrim application for license '79 1d at 5.

renewal is inadequate because (1) it does not provide for adequate inspection of t*0 1d. at 6.

81 all systems and components that may contain radioactively contaminated water and t Id. at 4-6 (citing Turkey Point,CLU-00-23, 52 NRC at 329; Turkey Point,CLI-01-17, (2) there is no adequate monitoring to determine if and when leakage from these .7; 10 C.F.R. §54.21; Application at B-17; 54 NRC at Dominion Nuclear Connecticut,Inc. (Millstone areas occurs, Some of these systems include underground pipes and tanks which the Power Station, Units 2 and 3). 60 NRC Nuclear 81 (2004); PrivateFuel Storage, L.LC.

current aging management and inspection programs do not effectively inspect and Fuel Storage Installation), LBP-98-7, 47 (Independent Spent NRC142, 179-80 (1998), affid in part, 77 26 (1998)). CLI-98-13.48 NRC monitor.t

't 2 PW Petition, Exh. A, Contaminated Water Leakage, A-I, Union of Concerned Petition Pursuant to 10 CFR 2.206- Scientists et a],

As basis for this contention, Pilgrim Watch states that: Enforcement Action -Longstanding Water, Appendix A. January 25, 2006; Leakage of Contaminated A-I, NRC Preliminary Notification of Occurrence -PNP-'11-06-Oo4B, Byron Event or Unusual NPS, April 20,2006; A-3, NRC Event

... recent events around the country have demonstrated that leaks of underground Verde, NRC: Event Notification 42381, Palo of March 3,2006.

pipes and tanks can result in the release of massive amounts of radioactive materials 163PW Petition at 8 nn.2 & 3.

into the ground water. Exposure to this radiation can be a threat to human health, and 18 41d. at 8 n.3 (citing J.D. Harrison, A. Kbursheed, & B.E. Lambert, "Uncertainties Coefficients for Intakes of Tritiated Water in Dose and Organically Bound Forms of Tritium the Public." Radiation Protection Dosimetry, by Members of 1

75 McGuireCatawba,CLI-02-26, 56 NRC at 361. Vol. 98, No. 3, 2002, pp. 299-311); id at Point Officials Zero in on Leak Source 9 (Indian of Radioactive Strontium 90 Turning 116 Id. at 365 n.24. Believed To Befrom Spent FuelRod Pool, Associated Press (May 12, 2006)).

Up in Groundwater 177PW Petition at 4. 18t5d at 9 (citing National Academy of Sciences, Health Risks from Exposure to Low Levels Ionizing Radiation:BEIR V11 Phase of 2 (2006)).

-k

-v 5-'

when excavated during maintenance" and that a "focused inspection will be tists's6 and NASAIn on the greater likelihood of aging-related problems in later performed within the first 10 years of the period of extended operation, unless phases of life,188 and a book by G. Bellanger on low-energy radionuclides inducing 9

an opportunistic inspection (or an inspection via a method that allows assessment oxide layers that protect metals). of pipe condition without excavation [such as 'phased array' ultrasonic, or 'UT,'

corrosion through degradation of the passive 94 to undetected leaks, PW cites a technologyl) occurs within this ten-year period."1 On the Pilgrim plant's asserted vulnerability U.S. Government Accounting Office report discussing suspected counterfeit or PW argues that the preceding "are insufficient- if there is a potential leak of 95 substandard pipe fittings at the plant.19 In support t of its assertion that monitoring radioactive water from corroded components that could be migrating off-site,"' 1 wells should be placed between the plant and the ocean, PW submits the final that the plan to use "opportunistic inspections" gives the "appearance [of) the EIS for the original licensing of the plant, in which it is noted that "[slurface matter of discovering leaks [1 being left to chance," that the UT technology in topography is such that surface drainage from the station is seaward .... , question is untested by plant operating experience, and that instead there should 13 of Entergy's Application, in- be "regular and frequent inspections of all components that contain radioactive Pilgrim Watch refers to Appendices A and A.2.1.2 at A-14, and Appendix B, § B.1.2 water., 96 cluding specifically Appendix A, § at B-17, in support of its challenge to the Applicant's stated plans regarding Emphasizing that small leaks, "if undetected, can eventually result in much its "Buried Pipes and Tanks Inspection Program."

19 The former describes the larger releases of radioactive liquid into the ground, PW notes that smaller leaks "Buried Piping and Tanks Inspection Program" as including "(a) preventive are also -more'difficult to detect with measures such as noting drops in water inspections to manage the effects of cor- levels in tanks.1 Thus, according to PW, also relying on the fact that some of 97 measures to mitigate corrosion and (b)

• rosion on the pressure-retaining capability of buried carbon steel, stainless steel, the recent cases of leaked radioactive water were detected through the use of and titanium components"; states that "(bluried components are inspected when monitoring wells, the "only effective way to monitor for [radioactive water being further that, "[i]f trending within drained into the ground and then the ocean) would be to have on-site monitoring excavated during maintenance"; and states identifies susceptible locations, the areas with a wells located between Pilgrim and the ocean," which would be suitably arrayed the corrective action program I for the need for additional inspection, and sampled regularly, and used to supplement the Applicant's planned visual history of corrosion problems are evaluated section from Appendix B, also tests.,98 Citing 10 C.F.R. § 20.1302 and Part 50, Appendix A,19 for alternate coating, or replacement." 19 The cited and-ultrasonic Inspection," states that this program "is compa- the proposition that licensees such as the Applicant are required to "demonstrate titled "Buried Piping and Tanks Section XLM34, Buried Piping that effluents, including those from 'anticipated operational occurrences,' do not

.rable to the program described in NUREG-1801, and Tanks Inspection," and provides that "[1bluried components are inspected expose members of the public to excessive radiation doses,'200PW argues:

I While leaks of radioactively contaminated water into the ground for extended periods U.S. Nuclear Plants:The Risk ofea of time may not have been operational occurrences anticipated when the facilities 1 Id. (citing David Lochbaurn. Union of Concerned Scientists.

86 were initially designed and licensed, they can scarcely be 'unanticipated' following Lifetime (2004)). Reliability- the series of occurrences summarized in Exhibit A. As those events demonstrated.

and Space Administration (NASA), Using ts" Id. at 9-10 (citing National Aeronautics and Reliable Overall Maintenance Strategy unless nuclear facilities aggressively monitor for leaks both off-site and on-site, a as the Foundation for an Efficient Centered Maintenance (2001)). of the "Bathtub Curve" graph, used in the Union PW 6ites the NASA-originated example of 88

' "14Id., Appendix B, §B.I.2 at B-17.

to illustrate that "after a relatively stable (bottom of the bathtub)

Concerned Scientists publication rise in age-related failures occurs towards the end of '9 5PW Petition at 12.

period in the middle life of [a] subject. a.steep 1961a its life." Id. at 10 (citing Lochbaum at 4). of Induced by Low Energy addionuclid*-." Modeling 1911d. at 13.

18 Id. at 10-11 (citing G. Bellanger, Corrosion 9

and Decay Products Formed in Nuclear Installations (Elsevier Publications, 19S1d Tritium and Its Radiolytic 91Id. at 14 na.6 &7.

2006)).

"'Id. at 14. PW quotes 10 C.F.R. § 20.1302, which requires licensees to survey radiation levels Are and Health Counterfeit and Substandard Products 19Id. at II (citing U.S. GAO, Nutclear Safety a Government-wide Concern (Oct, 1990)). so as to "demonstrate compliance with the dose limits for individual members of the public," and the Pilgrim Nuclear Power Station Final EIS 10 C.F.R. Part 50, Appendix A, which refers, inter alia, to the requirement to "control suitably t91id. at 13 nt.5 (quoting Atotmic Energy Commnission, release of radioactive materials ... produced during normal reactor operation, including anticipated (May 1972)).

92 operational occurrettet" t 1d. at 11-12. .5 93 1 Application, Appendix A, § A.2.1.2, at A-14.

320

Attacking PW's assertedfailure to identify "specific PNPS systems or compo-releases of radiation managed for aging, or leak can go undetected for years, and potentially life threatening 0

nents within the scope of the rule that will not be adequately 20 6 can migrate off-site before any problem is detected? ' that contain radioactive water that might be released," Applicant argues that the contention "fails to provide a factual basis to support any claim challenging the to detect possible leaks is a site 2 adequacy of the Application." 9Citing PW's reference to reports of radioactive PW concludes by asserting that "[r]anagement addressed in the [Application] water leaks at other nuclear power plants, the Applicant avers that PW fails to specific safety issue which has not been properly the [NRC) in a generic way at this provide a basis to link those leaks "to any in-scope license renewal systems and has not been adequately dealt with by of the potential for harm to public health and safety, the and components or to any claimed inadequacy of the Pilgrim aging management time," and that, because thoroughly . . before a 2 Applicant should be required to address this issue "more plan for buried piping and tanks."" "Applicant distinguishes the Pilgrim plant, license extension for Pilgrim is grauted."202 among other things as being a boiling water reactor with an elevated, above-grade 4 spent fuel pool, unlike examples cited by PW,211and charges that PW has failed 1 to provide support either for its allegations of "'site specific attributes due to

1. Entergy Answer to Pilgrim Watch Contention [the Pilgrim plant's] history and location which makes leaks from components "is inadmissi- and systems ... more likely and more difficult to detect,' "211or for its claims Applicant Entergy argues that Pilgrim Watch's first contention and unduly vague and impermissibly regarding inadequate " 'current methods for monitoring systems and components ble because (1) the Contention is overbroad basis to dispute challenges Commission regulation; (2) the Contention provides no such as buried piping and underground tanks.' "213 Additionally, the Applicant pipes and tanks; the adequacy of aging management program for underground argues that PW's references to expected failures over the life of a component the scope of this proceeding.-'203 or structure, and to the past use of "counterfeit or substandard pipe fittings and (3) the Contention is beyond that the "Aging Management Plan and flanges," provide no support for the contention because the former is not The Applicant insists that PW's claim, leaks in all systems and components site-specific to Pilgrim and the latter would be covered by a current design and does not adequately inspect and monitor for 2 14 water," is impermissibly overbroad licensing basis and is not an aging issue.

that may contain radioactively contaminated proceedings, as confined by 10 C.F.R. Addressing claims regarding inspection and potential leaks of radioactive because the scope of license renewal that may contain

§ 54.4, "does not encompass 'all systems and components water from corroded components, Applicant argues that PW has provided nothing systems and components that may more than unsupported allegations regarding the adequacy of the inspection and

-radioactive water,' ,, 20 and "'ira]any plant this defined scope of and tanks. 215 According to do not fall within aging management programs for underground pipes contain radioactively contaminated water because the Commis-10 C.F.R. Part 54205 Furthermore, the Applicant asserts, the Applicant, "[n]o facts or expert opinion are provided to support the claimed rulemaking of the Union of Concerned inadequacy of the aging management program," and "[n]o basis is offered to sion has explicitly rejected a petition for the license renewal rule to include suggest that components are corroding nor is any information offered indicating Scientists, seeking to expand the scope of 21 6 the contention "directly the appropriateness of any other inspection period."

"liquid and gaseous radioactive management systems,"

contrary determination."2 Thus, "[a]s such, the challeng(es] the Commission's regulation, and to the extent Contention impermissibly challenges Commission components that are not subject to 2°ald at 13.

the Contention encompasses systems and the Contention must be of 10 C.F.R. Part 54, 20 the license renewal requirements 91d. (emphasis in original).

7 2"ld. at 13-14.

rejected as beyond the scope of this proceeding."' 211 See id. at 14.

2t21d. at 15-16 (quoting Pilgrim Watch Petition at 8).

2

.13Id. at 16 (quoting Pilgrim Watch Petition at 9).

2 1 PW Petition at 15.

202

d. at 15-16. at 16-17 (quoting Pilgrim Watch Petition at 11).

a141d 20 3 Entergy Answer to PW Petition at 1I. 2t See Jd. at 17.

204 ld. 261ad Applicant cites Georgia Tech, LIBP-95-6, 41 NRC at 305, and Turkey Point, LBP-90-16, 31 205 Id. at 12. KRC at 521 &n.12, for the propositions that a petition must provide " 'tlechnical analyses and expert 106 d. (citing Union of Concerned Scientists; Denial of Petition for Rulemaking, 66 Fed. Reg. opinion' or other factual information 'showing why its bases support its contention,' " and that "an (Continued) 65,141 (Dec. 18, 2001)).

201 Id.

31)4L

The Applicant suggests that the contention's "real focus is not on aging management, but on the adequacy of the PNPS radiological monitoring program, no site-specific facts relevant to the Pilgrim plant have been provided. 223 Nor, which is beyond the scope of this proceeding."21 7 Asserting that what PW is according to the Staff, does that part of the basis for the contention in which asserts that "[ejxposure to' this radiation can PW really requesting is an expanded radiological monitoring program at the site,218 be a threat to human health[a ]and is a violation of NRC regulations" pass muster the Applicant contends that this concerns a current operational program that is "because Petitioner has failed to demonstrate that there is a genuine dispute as "not properly part of this license renewal proceeding."'219 a matter of law or fact.., and fails to provide an adequate basis in fact or expert opinion to support its assertion." 224 No deficiency or dispute with the Application is cited, according to the Staff,

2. NRC Staff Response to PW Contention 1 "that would lead to like releases," and the reference to the BEIR VU! Report for the proposition that "there is no safe dose The NRC Staff agrees with Petitioner PW that Contention I is within the of radiation" is an "impermissible challenge to the Commission's regulations."22s scope of license renewal proceedings, but argues that it is inadmissible, first, Regarding the studies cited by PW related because it fails to meet the requirements of 10 C.F.R. § 2.309(f)(1)(vi) that it to aging and corrosion, the Staff argues that these are too general to support demonstrate that a genuine dispute exists with the Applicant regarding a material an admissible contention,226 and with respect to the studies cited on low-energy radiation issue of law or fact, and that it challenge either specific portions of or alleged and corrosion, asserts that any suggestion that the Pilgrim plant suffers from omissions from the Application, and instead relies on "vague or generalized the same effects constitutes "mere speculation" and "bare assertions" insufficient studies and unsubstantiated assertions without reference to the LRA [and thus] to support a contention.Z21 The Staff also notes that PW mentions neither the NRC's fails to demonstrate that there are material issues of fact in dispute."2no In response to the GAO study on counterfeit or substandard pipe fittings, nor subsequent addition, the Staff argues, the asserted bases for the contention "lack sufficient actions taken in response to it, and suggests that this should be taken as facts and contain no supporting expert opinion" as required under 10 C.F.R. a. failure "to provide a reason why the. GAO study is significant to this proceeding"

§ 2.309(f)(1)(v), and instead "impermissibly rel[y] on generalized suspicions and and as "impermissibly seek[ing] the Licensing Board to make erroneous vague references to alleged events at other plants and equally unparticularized assumptions of fact." 228 The 22 Staff considers PW's references to ultrasonic portions of general studies for providing a factual basis."z testing to be asking the Board to '"make an impermissible assumption of fact,"

. Following the outline headings used by PW in its petition and treating the vari- and its call for "regular and frequent inspections of all components that ous outline points of PW' s Contention I and its basis essentially as separate bases, contain 2 29 radioactive water" to be unsupported by any "factual or expert support." ,

the Staff challenges each separately.222 According to the Staff, PW's references Finally, the Staff suggests PW has provided no expert to leaks at other facilities do not support the contention's admissibility, because or factual support for its challenge to the adequacy of the monitoring provided in the Application, or for its assertion that the monitoring program at Pilgrim must be improved.230 According to the Staff, PW bases its arguments relating the purported need for monitoring allegation that some aspect of a license application is 'inadequate' or 'unacceptablt' does not give rise to a genuine dispute unless it is-supportexd by facts and a reasoned statement of why the application is 2"See id at 11. The Staff notes PW's statement that unacceptable in some material respect." .Id. at 18. the Pilgrim plant has "site-specific attributes 2 t7 due to its history and location which make leaks from components Id. at 18. piping more likely and difficult to detect," but argues and systems such as underground 2 18 1d. at 18-19. that "Petitioner does not provide site-specific facts to support this assertion nor identify with any specificity 2 19 how purported leaks at other plants are 220 1d. at 20. relevant to Pilgrim." Id (quoting PW Petition at 7-8).

NRC Staff Response to PW Petition at 10. 724 Staff Response to PW Petition at 12 (citations omitted).

21id. 217aI at 12-13.

22We note that the Staff approaches this and other contentions by addressing the information under 220 See id, at 13-14.

different headings in the bases separately, without appearing to draw any connections between the 2Id. at 14.

various sections. We find it more appropriate to consider, and have considered, the basis for each 228,Id. at 15.

contention as a whole, taking into account any logical connections between sections as well as any 229 Id. at 15-16.

supporting material in one section for the point(s) made inany other section or sections.

210 Id. at 16.

.3bL 30-7

Application, § B.1.2, at 1-17, and that it is these pipes and tanks that to the discoveries of leaks at other facilities on speculation and "generalized are at issue in the contention.23a suspicion," and cites no part of the Application with which it has a dispute."'

PW further notes that it included a discussion of the "site-specific" fact of the coastal topography of the Pilgrim plant in the basis for the contention, and cites

3. Pilgrim Watch Replies to Entergy and NRC Staff the its references various "pieces" to the various of its reports basis - discussed noting that in its Petition, provided to support each piece is but a In its replies to Entergy and the Staff, Pilgrim Watch charges both with at- part of its overall basis. 23 9 With regard to the reports in tempting to hold it to an incorrect standard of having to prove its contention at this question, PW points out that the issues they address-- health, aging and corrosion stage of this proceeding, relying on the Commission's 1989 rulemaking statement of components, and low-energy radionuclides and corrosion - would be applicable to the effect that this is not part of the contention admissibility requirements.232 to Pilgrim, even though they might not be specifically about the Pilgrim plant.2 Citing in addition the Commission's advice that the factual support necessary to 40 PW emphasizes that the deficiency with regard show that a genuine dispute exists in relation to a contention "need not be of the to inspection that it alleges is the schedule of an inspection within the first quality necessary to withstand a summary disposition motion," PW states that, 10 years, or "opportunistically."24t PW notes that it highlighted the novelty while it has not yet formally engaged the services of an expert, it "has provided of ultrasonic testing to support its "claim that additional monitoring is necessary the board with extensive sources as the basis for its contentions, gleaned from to complement it,"242 a proposal that is intended as an "adjunct to inspections, scientific, technical, public policy and government reports." 233PW avers that the and as an integral part of the Aging Management Program at Pilgrim, not as Staff also purports to make the rule stricter than it already is when it argues that part of its operational radiological monitoring program." 243 PW notes that "it was expert opinion is always required, whereas the actual requirement is for "facts or through monitoring wells that leaks at other facilities were discovered, and expert opinion."234 yet Pilgrim does not currently have monitoring wells that would detect leaks of In response to Entergy and Staff challenges to that part of the basis for radioactive water before that water was washed into Cape Cod Bay," and asserts Contention I that concerns leaks at other facilities, PW points out that, in reading that "[o]n-site locations could alert Licensee about possible problems in a morewells in strategic timely way. 244 the Application, it looked for assurances "that such an event at Pilgrim would Maintaining that it has shown "why it is unrealistic be quickly detected and remedied and discovered that the Aging Management to expect to happen upon a leaking pipe during routine maintenance activities, Plan does not give this assurance."'23 PW asserts that "It]his is exactly the sort particularly if those activities of 'deficiency or error' in an Application that has 'independent health and safety only take place every ten years," PW continues to argue that the "only effective way to monitor for such an occurrence would be significance' that is material to these proceedings, and Petitioners referred directly to have on-site monitoring wells located between Pilgrim and the ocean.'"245 According to the Application sections as was required."'1 6 PW notes that the significance of to PW, "[t]he genuine and material issue in dispute is whether or not the Licensee's the leaks at other facilities has been shown by the fact that the NRC has appointed application sufficiently deals with th[e] safety issue" presented in its a special tritium task force to address the problem.3w. contention. 46 In response to Entergy's argument that the contention is overbroad in referring generally to pipes and other components, PW points out that its discussion is focused on those systems, including pipes and tanks, that are addressed in the 23 8See PW Reply to Entergy at 5.

239 PW Reply to NRC Staff at 6-7.

24°See id at 6-8; PW Reply to Entergy at 7-8. PW observes that "tflor the Staff to imply that 13t Id. at 17-1%. Petitioners cannot even rely oanpertinent scientific studies conducted in other parts of the country to 2

23 PW Reply to Entergy at 3; PW Reply to NRC Staff at 3 (citing, in each, support our basis in Massachusetts raises the bar very 54 Fed. Reg. 33,170 241Id. high indeed." PW Reply to NRC Staff at 8.

(Aug. 1t, 1989)). 242;4 233 PW Reply to NRC Staff at 4-5; PW Reply to Entergy at 4. 24 234 PW Reply to NRC Staff at 4. 3PW Reply to Entergy at 8.

235 Id. at 5; see also PW Reply to Entergy at 6. 244 PW Reply to NRC Staff at 8.

236 PW Reply to NRC Staff at 5. 245 PW Reply to Entergy at 8.

2461d; see PW Reply to 23 7See id.; PW Reply to Entergy at 6. NRC Staff at 9.

2O3 J" 30

4. Licensing Board Ruling on Pilgrim Watch Contention I plan incorporates no mechanism for early We find this contention, as limited below, admissible, based upon the detection of leaks, and should do following so, through the use of appropriately placed monitoring wells. 250 The basis for analysis. the contention includes two factors: First, We turn first to the question of whether this contention falls within the infrequency of inspections for the scope corrosion of relevant pipes and tanks that of a license renewal proceeding. We agree with the Staff in are underground, -viewed in light of its concession that recent discoveries of leaks at various nuclear Pilgrim Watch's first contention is within this scope, as defined at facilities, supported by various 10 C.F.R. factual arguments and sources; and second, Part 54.247 Indeed, the fact that the Application itself contains sections the fact that the plan contains no concerning mechanism for monitoring for leaks.

"Buried Piping and Tanks Inspection," both cited by Petitioner, indicates With regard to whether, as that required at 10 C.F.R. § 2.309(f)(1)(iv),

Entergy implicitly agrees that this subject, insofar as it concerns raised in the contention is material to the findings the issue those buried that must be made to support the pipes and tanks in its aging management program, is within sought license renewal, we find that the scope of license this requirement has been met. Obviously, renewal.248 Obviously, if there are some pipes or tanks that do not the adequacy of the aging management program for one reason as it relates to underground pipes or another individually fall within the scope of license renewal, and tanks has health and safety significance2 issues concerning "' and is material to whether the such pipes and/or tanks may not be litigated in this proceeding. license renewal may be granted.

But this is a different matter than whether any buried pipes and tanks are We also find that PW has satisfied the within scope, as requirements of 10 C.F.R.

some undisputedly are. While it is true that the contention's §2.309(f)(l)(v) for a concise statement of mention of "all the alleged facts or expert opinion systems and components" may, on its face, implicate systems supporting the contention, including references and components to sources and documents to be that are not within the scope of a license renewal as defined in 10 relied upon. PW has raised significant factual C.F.R. Part allegations about the matters at 54, such language does not remove the entire contention from the issue and provided various support for its contention.

scope of this Petitioner alleges as fact that proceeding. the aging management plan for buried pipes We find that Pilgrim Watch, among other things by referencing the Ap- and tanks that is in the Application is deficient in limiting inspections to focused plication's aging management plan regarding buried pipes and tanks, inspections within 10 years of the has sup- license renewal, "opportunistic inspections,"

ported its contention "sufficient to establish that it falls directly and inspections during excavations within the for maintenance (along with additional inspections

-scope" of this proceeding, 249 and therefore satisfies the requirements if "trending ... identifies of 10 C.F.R. susceptible locations," and the possibility

§ 2.309(f)(1)(iii), to the extent that the contention concerns underground of some ultrasonic testing).2 52 It points pipes out that the plan does not include any monitoring and tanks that fall within the Pilgrim aging management plan. We wells, and urges that in addition further find to "regular and frequent inspections,"

that the contention - again, insofar as it concerns underground pipes the aging management program should and tanks include "monitoring wells in suitable locations that are part of Pilgrim's aging management program - does . . . to supplement visual and not improperly ultrasonic tests." 2 53 Moreover, PW has referred challenge any Commission rule or regulation. to a number of scientific articles and reports in support of this contention, and We find that PW has fulfilled the requirements of 10 CF.R. § 2.309(f)(1)(i) we note that, according to some of these reports, discovery of some of the recently and (ii) by providing a sufficiently specific statement of the found leaks in various facilities issue raised in the was achieved through use of monitoring wells.254 contention and the requisite brief explanation of the basis In litigation of this contention, various scientific for the contention.. articles and reports referenced Briefly summarized, PW in Contention 1 challenges Pilgrim's aging by PW, as well as the existence of leaks at management other facilities and the response to program relating to the inspection of buried pipes and tanks for corrosion, those leaks, may, along with whatever and other evidence and expert testimony to detection of leakage of radioactive water that might result from provided, be relevant evidence on the is undetected factual issue of whether Pilgrim's aging corrosion and aging. The essence of the contention is that the aging management 2so PW Reply to NRC Staff at 8-9; PW Reply to Entergy at 8.

247 See our discussion above in section IV.B of this Memorandum and Order. See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units LBP-04-15, 60 NRC 81, 89 (2004); 2 and 3),

248 Application §§ A.2.1.2, B. 1.2. PrivateFuel Storage, LLC. (Independent Installation), Spent Fuel Storage 249 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, LBP-98-7, 47 NRC 142, 179-80 (1998), aff d Units 1, 2, and 3), LBP in part, CLI-98-13, 48 NRC 26 (1998).

19. 33 NRC 397, 412 (1991), appeal denied on other grounds. CLI-91-12, 34 *2pw Petition at 12-13.

NRC 149 (1991). See 253 Id. at 11-14.

PW Petition at 5. 254 See id. at 13-14; PW Petition, Exh. A.

management program for underground pipes and tanks is satisfactory or deficient, and whether as a result - again, as a factual matter - the sort of monitoring wells that PW seeks should be included in this program.255 argument about thevarious or do not establish extent to which various itiems of evidence are relevant and do No doubt there will be facts. But Petitioners are not required to prove alleged facts at the contention admissibility stage. Inaddition, although PW has indicated 255 As with many scientific reports and studies, and as with many factual circumstances that discovered at a number of locations, each of these may are he quite relevant to conditions at an individual facility. The NRC's "lessons learned" approach to analyzing a problem at one or more facilities in a manner so as to prevent future occurrences at other facilities illustrates this. Indeed, we note the recent issuance of the Liquid Radioactive Release Lessons Learned Task Force Final Report (Sept. 1, 2006; issued publicly Oct; 4, 2006), available do not themselves impose at htp:/Avww.nrc.gov/reactorsloperating/ops- legal requirements on either experienceltrftium/4r-release-lessons-learnedrpdf[hereinafter the guidance of the report focuses the Commission or its licensees").

Tritium Report]. In this report, although primarily upon ensuring the Second, the task force "did not identify any instances' where the continuing effectiveness of health of the public was impacted," id. at coatings and wrappings to manage the external Executive Summary 1,it did conclude that "under the existing failure other than by Physical effects of corrosion, rather than on any methods exists for unplanned and unmonitored releases of radioactive regulatory requirements the potential inspection. Third, while the to confirm that coating and wrapping report states that "inspections to detect liquids to migrate offsite into the public are intact are an performed domain undetected," based on several elements, including external surfaces has not occurred effective method to ensure that corrosion the fact that some components such as and the intended function of buried pipes. are not physically visible, the general absence Report, Vol. 2, Rev. 1 at XI-M-l11, is maintained," NUREG-1801, of NRC requirements for monitoring it goes on to indicate that, GALL groundwater onsite, and the possibility of migration of plant-specific and depends on "because the inspection frequency is groundwater contamination offsite undetected. the plant operating experience, Id. at ii; see id. at 50. The report mentions the relevance experience is further evaluatedfor the applicant's plant specific of the 10 C.F.R. Part 54 license renewal the extended period operating requirements to the matters at issue, id. at 22; notes report implicitly contemplates of operation." Id. at point 10.

that buried systems and structures such as pipes that an acceptable plan will Thus, the are "particularly susceptible to undetected leakage," id. experience. be plant-specific and depend at 26; and recommends that the Staff verify on operating that the license renewal process "reviews degradation of In this instance, Applicant systems containing radioactive material" as has proposed to comply with discussed in the report, id. at 27. (We would further frequency of inspection - the suggested general guideline note that, as the report does not appear to be "an opportunistic inspection" for accompanied by any planned rulemaking at this time, it does minimum suggested in the guidance within a 10-year period -

not raise any questions about litigation (wherein it is stated that "it is anticipated that is the of the matters at issue in this contention in this proceeding, opportunistic inspections may that one or more which, in any event, as with the instances occur within a ten year period" discussed in the report, involve various site-specific elements of extended operation, the in addition to more generally relevant applicant is to verify that there and that "prior to entering the period considerations that may be informed by the report, as well inspection. . .performed within is at least See Oconee, CLI-99-11, 49 NRC at 345 (quoting Potomac Electric as by other relevant documents and sources. the past ten years"). id at XI-M-tlone opportunistic or focused Power Co. (Douglas Point Nuclear that the applicant has failed 1-112 No party here argues Generating Station, Units I and 2), ALAB-218, 8 AEC 79, to follow this guidance; rather, 85 (1974) ("It has long been agency providing guidance on an acceptable insofar as the report is viewed policy that Licensing Boards 'should not accept in individual the minimum requirements plan, at issue here is sufficiency as license proceedings contentions which thereof - which may or may of a plan that complies only arte (or are about to become) the subject of general rulemaking not he sufficient based on with by the Commission' ")); see also Duke including site-specific factors. circumstances Power Co. (Catawba Nuclear Station, Units I and 2), Pilgrim Watch questions whether ALAB-SI3, 22 NRC 59, 86 (1985); Private visual inspection at the proposed Fuel Storage, LBP-98-7, 47 NRC at 179; PW Petition at 7). use of ultrasonic testing (at intervals, together with only We would note that any NRC guidance documents on subjects related to Contention 1, while not of aging by detecting incipient a selected sample of locations) is sufficient to manage possible failure of the buried pipes the controlling, may be relevant evidence on subjects relating to Contention 1. In this regard we observe. as of coatings and wrappings or and tanks (whether by incipient effects otherwise), and suggests that well that Entergy has, in support of its assertions that its aging mechanisms (such as monitoring the plan should include leak failure management program for buried pipes wells) to discover any actual detection and tanks is sufficienb directed us to the "GALL Report," proposed periodic visual inspections failure, rather than rely only which provides the NRC Staff's regulatory and potential use of ultrasonic on the guidance on aging management of buried piping and tanks. We find that this challenge raises testing. See PW Petition at 11-14.

NUREG-1901, "Generic Aging Lessons factual Learned (GALL) Report," Vol. 2, Rev. I at XI-M-95; see Entergy most direct form, as a challenge issues from two perspectives:

Answer to PW at 18 n.9; Tr. at to the adequacy of the proposed First, it can be viewed, in 325-26. Without making any determination on the merits of this be viewed, in its pointing out interval of inspection. Second, its Applicant's proposed program likely complies with the minimumcontention, it does appear that the tank failare, as achallenge to of the lack of monitoring for leaks it can standards of the guidance therein the adequacy of a plan which merely that would be indicative of pipe or set out. of regulatory guidance which, satisfies the minimum requirements However, several factors with regard to the GALL Report in and of itself, appears to contemplate With regard to the first perspective, of Contention 1 and the arguments regarding it. First, of ar particularly noteworthy in the context it is unclear at this point whether some plant-specific elements.

course, the GALL Report represents is sufficient for this plant. and or not this proposed periodicity general guidance for the Staff's with regard to the second, it review, and does not specify the only acceptable way to pot monitoring for leaks is is likewise premature to say satisfy properly part of an aging management whether or the requirements of 10 C.F.R. § 54.21. Curatorsof the University Thus, insofar as the Applicant plan designed to prevent leaks.

of Missouri (rRUMP-S Project), may be viewed as arguing that CLI-95-8, 41 NRC 386, 397 (1995) ("NUREGs and Regulatory NUREG41801, we find such it has complied with the requirements Guides are advisory by nature and argument to be insufficient, of considerations, to overcome for the purposes of contention (Continued) such factual challenges. These admissibility the merits at the appropriate are matters that are properly stage of the proceeding for such addressed on consideration.

312-

that it will have an expert to support its admitted contention(s),2 6 it is not required specifically to section A.2.1.2, at A-14, and section B.1.2, to have such an expert at this time3." at B-17. It challenges the absence of monitoring wells to serve as leak detection We would also note that the subject of "monitoring" is not irrelevant merely devices, strategically placed between the plant and the coast toward which all water that because some monitoring may be part of operational activities on a continuing may be released through any leaks from such pipes and tanks would flow. It asserts basis. The fact that some "monitoring" may occur as part of ordinary plant that such wells are a necessary part of a system to manage the aging of operations does not exclude it from license renewal, as illustrated, for example, buried pipes and tanks, particularly where the plan is to inspect only once within the by section A.2.1.10 of the Application, concerning the "Diesel Fuel Monitoring first 10 years of the new license unless an opportunistic occasion arises. It is clear Program." PW alleges that the aging management program of inspection for that the participants are genuinely in dispute on this material issue of fact, which corrosion and leakage from underground pipes and tanks at Pilgrim is insuffi- we find Petitioner PW has raised and supported sufficiently to admit Contention cient, supported by various facts, documents, sources, and a reasoned fact-based 1.

In admitting this contention, however, we limit it in argument, and asserts that the best way to address this deficiency (based on two respects. First, the contention is limited to those underground pipes and tanks topographical facts set forth in the original FEIS for the Pilgrim plant) is to add that do fall within those described in 10 C.F.R. Part 54,258 which is an issue leak detection through monitoring wells between the plant and Cape Cod Bay. that may require further clarification as this proceeding progresses. Second, although Whether the addition of such wells may be appropriate and necessary, as part PW in its basis for Contention I has specifically referenced "violation[s]

of Pilgrim's aging management plan for underground pipes and tanks, is, as of 10 C.F.R. § 20.1302 and

§ 50 Appendix A" ;29 the basis also contains certain suggestions indicated above, a factual matter, the answer to which depends upon whether the that doses not in violation of NRC regulations might be harmful to health. 2 6 The plan, absent such monitoring, is adequate to detect and remedy any corrosion or former may be litigated with respect to this contention; the latter may other potential for leakage, and any leakage that may actually occur, in a timely not. With such limitations, the contention we admit states as follows:

and effective manner. If a plan is found as a factual matter to be inadequate in this regard, and that additional inspection and other measures are unduly difficult The Aging Management program proposed in the Pilgrim or expensive such that monitoring wells or other leak detection devices may be Application for license renewal is inadequate with regard to aging management of the most efficient and cost-effective way of addressing the inadequacy, then they buried pipes and tanks that contain radioactively contaminated water, because it does 26 not provide for

• might well be called for, as a factual matter, to augment existing parts of the aging monitoring wells that would detect leakage. 1 management plan.

Finally, with respect to the requirement at 10 C.F.R. § 2.309(f(1)(vi) that C. Pilgrim Watch Contention 2: The Aging Management Plan PW provide sufficient information to show a genuine dispute on a material issue at Pilgrim Fails To Adequately Monitor for Corrosion in of law or fact, including specific references to portions of the Application it the Drywell Liner disputes and the reasons for the dispute, there is no doubt that Petitioners must provide something more than bare allegations or "unsubstantiated assertions." Pilgrim Watch in their second contention states:

We find that PW has done more, and has satisfied the requirements of section The Aging Management program proposed in the Pilgrim application 2.309(f(1)(vi), insofar as the contention asserts that the aging management plan for license renewal fails to adequately assure the continued integrity of the is inadequate in not including leak detection methods (such as monitoring wells) drywell liner, or shell, for the requested license extension. The drywell liner

• as a part of-it, to supplement existing provisions. In support of this, PW has made is a safety-related containment component, and its actual wall thickness should be a reasoned argument supported, as we note above, by facts, exhibits, scientific confirmed by periodic ultrasonic testing (UT) measurements at all critical areas, reports, and by reference to Appendices A and B of the Application, more including those 256 SsSee 10 C.F.R. §5 4 .21(a)(1)(i) ("These structures and components include, but are not limited Tr. at 300.

25 to, ... piping... (emphasis added)); see also PW Petition at 4.

7If the remainder of the basis and support for a contention were so sparse as to preclude admission

... PW Petition at 8.

of the contention based solely on such other support, then the presence or absence of an expert might 260 See iU. at 8-9.

come into play in ruling on the admissibility of the contention. But this is not the situation with PW's 261With respect to exactly which pipes and tanks do fall within Pilgrim's aging management Contention 1, which we find to be sufficiently supported, without indication of a retained expert at program, this is addressed to an extent in the Application, this point. although further definition may be required as the adjudication of this case proceeds forward.

31N4

which are inaccessible for visual inspection. The current plan does not adequately sufficient guidance for detecting and monitoring potential corrosion in the drywell monitor for corrosion in these inaccessible areas, nor does it include a requirement shell, particularly in inaccessible areas," and that "all Mark I reactors have a

for a root cause analysis when corrosion is found362 potential problem and require evaluation. 266 Pilgrim Watch cites, and includes as an attachment to its Petition, a 2006 Federal Register notice entitled "Proposed As basis for this contention, Pilgrim Watch states that: License Renewal Interim Staff Guidance LR-ISG-2006-01: Plant-Specific Aging Management Program for Inaccessible Areas of Boiling Water Reactor Mark I

A contention about a matter not covered by a specific rule need only allege that Steel Containment Drywell Shell" 261 ; PW explains that it seeks to intervene the matter poses a significant safety problem. Duke Power Co. (Catawba Nuclear on the drywell corrosion issue "because the license renewal process for Pilgrim Station, Units I and 2), LBP-82-116, 16 NRC 1937, 1946 (1982). The dryweUl has already begun and will likely be completed before a final Staff Guidance on liner has been identified by the NRC and the Applicant as a safety-related structure 2 this problem is issued." 68 to be maintained both as a pressure-related boundary and for structural support.

Petitioners argue that unless they are allowed to intervene on this issue -

It is required to contain and control the release of fission products to the Reactor in Building in the event of a Design Basis Accident, including a Loss-Of-Coolant- effect, if this contention is not admitted - "these concerns will not be adequately Accident (LOCA) so that the off-site radiation dose to the surrounding communities ýVd addressed as part of the Pilgrim license renewal." 2 6 9 Conceding that the issue remains within NRC designated limits. This structure is therefore vital to the clearly now has the attention of the NRC, PW argues that the possibility of a protection of the health, safety and welfare of the public and Petitioners' members. future Staff Guidance being issued "should not preclude Petitioners' intervention Recetnt events cited herein have demonstrated that the corrosion of Mark 1Drywells on this issue," citing case law for the principle that "[p]articipation of the NRC is a major safety issue that is not addressed by current NRC Guidance Documents. Staff in a licensing proceeding is not equivalent to participation by a private Pilgrim has a history of corrosion in different areas of the drywell and there has been intervenor." 2 7 0 a reduction in drywell wall thickness. Despite this fact, the Aging Management According to Pilgrim Watch, in addition to the evidence regarding all Mark Program does not adequately monitor for corrosion in the drywell and drywell I Steel Containment Drywell Shells, the Pilgrim Nuclear Power Station "has wall thickness. The Aging Management Program should address this issue, and a history of corrosion in different areas of the drywell, and there has perform root cause analysis where any corrosion is found, before a license renewal been a reduction in drywell wall thickness." 27 '

is granted.263 Pointing to Appendix B of the Application, PW asserts that the Applicant has identified specific instances of corrosion that were discovered and remedied To support its allegation that corrosion of Mark I drywells is a major safety-and that the Applicant incorrectly suggests that such discovery and remedy related issue, Pilgrim Watch has referenced a 1986 NRC Information Notice (IN is evidence of a successful aging management program. 2n Instead, PW argues, 86-99) acknowledging the potential for corrosion, as well as a 1992 NRC Safety this Evaluation of drywell integrity at the Oyster Creek Nuclear Generating Station demonstrates that corrosion is occurring and does not prove that all corrosion and

- also a Mark I reactor - discussing corrosion detectedby UT measurera nts.3 degradation is being detected and remedied.273 To further support its assertions that corrosion and degradation are occurring or will occur at Pilgrim, Petitioner In conjunction with its discussion of known corrosion problems at Mark I steel jj references the same "bathtub curve" risk profile it cited in support of its first containment shells, PW also notes a January 31, 2006, meeting held by NRC "to discuss the proposed interim staff guidance [ISGI for license renewal associated contention as applying to aging nuclear power plants, again claiming that in the with Mark I steel containment drywell shell[s]."'0 Citing sentiments expressed by the N'IRC Staff in the meeting, PW argues that the NRC has recognized that a relevant "Generic Aging Lesson Learned" (GALL) report "does not provide 266PW Petition at 20.

26771 Fed. Reg:27.010 (May 9,2006).

268 262 PW Petition at 21.

pW Petition at 17.

263 Id. at 18-19. 269 id.

264 270 Id. at 19-20, ld. (citing Washington PublicPowerSupply System (WPPSS Nuclear Project 18 NRC 1167, 1175-76 (1983)). No. 3), ALAB-747, 265ld. at 20 n.9 (citing "NRC Conference Call January 31, 2006 to discuss the proposed interim 271 1d. at 22.

staff guidance for license renewal association with Mark I steel containment drywelU shell. Power S 272 1,.

point Presentation and discussion by Ms. Linh Tean" (see NIRS Oyster Creek Motion for Leave To Add Contentions or Supplement (Feb. 7, 2006), ADAMS Accession No. ML06047O5546).

1 .3j-ý

renewal period Pilgrim will be in the "wear-out" phase, making degradation any genuine dispute concerning a material issue."28' 2 74 Turning first to Pilgrim more likely . Watch's references to the "Proposed License Tuming to the specifics of the Aging Management Program at Pilgrim, Pilgrim Renewal Interim Staff Guidance LR-ISG-2006-01: Plant-Specific Aging Management Watch argues that an inspection of the drywell liner every 10 years is not adequate, Program for Inaccessible Areas of Boiling Water Reactor Mark I Steel Containment nor is the primary reliance on visual examinations of the drywell because such Drywell Shell,' '282 the Applicant states that Pilgrim Watch has failed to acknowledge inspections cannot monitor inaccessible areas.275 Assessing the procedures -set or "address the amendment to the license renewal application that forth in Appendix A.2.1.17 of the Application, and the Aging Management Entergy submitted on May 11, 2006, to provide additional information responsive Program's reference to the use of ultrasonic testing of drywell thickness, Pilgrim to this proposed '213 The Applicant argues that the contention "does not directly controvert Watch states that it is "not clear from the Application where and how often" position taken by the applicant," in its application [the]

the drywell thickness would be measured using such tests3* 6 Pilgrim Watch cites "contention is subject amendment, and thus, the to dismissal."284 the work of Dr. Rudolf H. Hausler for the proposition that reliance on visual The Applicant claims that "the proposed interim inspections would be of "limited usefulness." 277 Thus, PW asserts, noting the staff guidance does not support Pilgrim Watch's allegation that Entergy's overall difficulty of inspecting inaccessible areas, visually or by UT, "the Aging aging management program does not adequately monitor for corrosion in Management Plan should require a root cause analysis any time water leakage inaccessible areas."'26s Insisting that the proposed guidance does not require monitoring into the drywell region has been found."'i8 in the inaccessible areas, Applicant argues that it instead "recommends Concluding, Pilgrim Watch contends that the Pilgrim aging management plan development of a corrosion rate that can be inferred from past UT examinations."

'should include regular UT measurements of all critical areas of the drywell liner Pointing to Amendment No. I of its license renewal application, Applicant and a root cause analysis of any drywell areas where water has been found before states that it "has addressed this issue in the manner recommended in the license renewal is granted. "279 PW advocates frequent enough UT measurements NRC proposed guidance. 2a6 The Applicant challenges other of PW's allegations as "to confirm that the actual corrosion measurement results are as projected"; well, including those asserting inadequacies in the aging management program that the measurements should be expanded into areas not previously inspected, for the drywell liner. Applicant notes that PW has failed to contradict or assess including multiple measurements to determine "crevice corrosion" in the liner the programs outlined in the

• Amendment to the Application, which include "(a] host that is submerged in the concrete floor as well as those areas identified by a root of actions... not limited to 'inspection of the drywell liner every 10 years' as alleged cause analysis that may have caused leakage; submission of results to the NRC in the Contention."2r1 Applicant states that no basis has been shown for as publicly available documents in this license renewal proceeding; concurrence PW's allegation of a history of corrosion, and, finally, argues that PW has with relevant ASME standards; and immediate incorporation of'the NRC Staff failed to address the root cause discussion in section B.0.3 of Appendix B to the Application when it asserts Interim Staff Guidance into the Aging Management Program.rU O that the aging management program for the drywell shell impermissibly omits a requirement for root cause analysis when corrosion is found.2s8

1. Entergy Answer to Pilgrim Watch Contention 2 The Applicant argues that Contention 2 is inadmissible because "it does not address and therefore fails to identify any deficiency in the discussion of this issue in the Application[,] ... provides no basis to dispute the adequacy of aging management program for the drywell liner[, and tjherefore, fails to establish 28j Entergy Answet to PW Petition at 20.

29271 fed. Reg. 27,010, 2

8Entergy Answer to PW Petition at 274 21 (citing Letter from S. Bethay to U.S.

Id. at 22-23. Commission, License Renewal Application, Amendment Nuclear Regulatory 5 No. 1 (May 11, 2006), ADAMS Accession 27 Id. at 23. No. ML061380549).

276 264 Id. 1d. at 21.

277 Id. at 24. 285 276 id. 2"Id. at 22.

27 9 Id. Ud. at 22-23.

2 0 1 Id. at 24-25. 288 Id. at 24.

,)I1t

2. NRC Staff Response to Pilgrim Watch Contention 2 Site."296 However, having now assessed that the Applicant fails to satisfy the Amendment, Pilgrim Watch argues The NRC Staff does not dispute that the contention falls within the scope of the the standards in the recently released license renewal proceeding, but, like the Applicant, argues that it is inadmissible- guidance regarding this issue.29 The guidance, according proposed because it fails to present a genuine issue of law or fact as required by 10 C.F.R. to Pilgrim Watch, corrosion requires the in development the inaccessible areas of the drywell shell, and a development of

§ 2.309(f)(1)(vi), and also asserts that "it lacks a basis in fact or expert opinion" of a plant-specific aging management plan to address as required by section 2.309(fl)(v). 2 t 9 Instead, the Staff asserts, the "Petitioner "corrosion rates" for these areas.298 Pilgrim impermissibly attempts to piggyback on to the Staff's dialogue with industry "it appears that measurements have Watch faults the. Applicant because Only and the public relative to forthcoming Interim Support Guidance (ISG)... as embedded areas, and these measurements been taken twice in the inaccessible a substitute for Petitioner's obligation to provide facts or technical expertise in PW, "Wtihis does not appear to conform have been discontinued"; according to with support of its assertions." 219 PW has failed, Staff argues, to provide "independent Responding to the Staff, PW disputes the proposed ISG." 299 the argument that it "impermissibly facts or expert opinion beyond Staff dialogue with industry.29 Further, the Staff attempts to piggyback" on the Staffs 3t contention, According to PW, unlike dialogue with industry as the basis for its faults Pilgrim Watch for making only vague references to the Application, and instances where a Petitioner relies thus failing to include any challenge to specific deficiencies in the application0 9 2 on the "existence of RAIs to establish wholly deficiencies in the application," as With regard to the allegations of a "history of corrosion in different areas of the by the Staff, here Pilgrim Watch is cited simply arguing that Pilgrim should drywell" at Pilgrim, the Staff argues that the contention's reference to the "tors meet the new standards outlined "at least in [the) ISO.G',3 Petitioner further bays and drywell spray header" is misdirected, stating that these "are entirely that its contention and basis "directly contends refer to sections of the Licensee's distinct features from the drywell shell." 291 Similarly, the Staff contends that the Management Program for the drywell Aging that it has shown in this program, liner," 3 02 and, based on the inadequacies Union of Concerned Scientists Report cited by Pilgrim Watch fails to provide again requests incorporation of the a factual basis for the contention because it "makes no mention of Pilgrim, NRC requirements into the Pilgrim agingmanagement proposed the LRA or drywell shell region."294 Finally, regarding PW's argument that the renewal is granted. 03 3 program before any license ab n Pilgrim Aging Management Plan is deficient for failing to provide for sufficient inspection of the drywell, the Staff also faults PW for failing to address the May 4. Licensing Board Ruling on Contention amendment to the Application and urges that as a result PW's argument does not 2 support admission of the contention because it fails to present a genuine dispute We find this contention, though within meeting other relevant requirements the scope of license renewal and of law or fact.295 of 10 C.F.R. § 2.309(f), to be inadmissible because it fails to meet the requirement 2 3 information be shown to demonstrate of 10 C.F.R. § . 09(f)(vi) that sufficient

3. Pilgrim Watch Replies to Entergy and NRC Staff that a genuine dispute exists with applicant on a material issue of law the or fact. In this contention, as argued In its reply to the Applicant, Pilgrim Watch concedes that it did not mention the Staff, PW essentially relies on the by interim Staff guidance, seeking to Applicant's License Amendment regarding drywell monitoring in its Petition, but Applicant to comply with the guidance. require the May 11, 2006, amendment to Moreover, particularly with regard insists that the Applicant did not notify the Petitioner as to its existence, nor was the Application, PW does not state to the Amendment made part of the Application "on the Pilgrim I License Renewal specificity or provide information showing with any how the actions and proposed actions 296 pilgrim Watch Reply to Entergy at 10-11.

21714 at 12; .yee LR-4SG-2006-01, 289 Staff Response to PW Petition at 19. Plant-Specific Aging Management Program 2 Areas 298 of Boiling Water Reactor Mark I Steel Containment for Inaccessible 19Id. (citations omitted). p IReply to Entergy Drywell Shell.

2 at 12.

91id. 299 a 2

29 See id. at 21. 30 PW Reply to NRC Staff at t0o 3

294 id. 30 t Id.

1d. at 22.

29 303 5Id. See id. at 11.

3Z-O

of the Applicant do not comply with the Staff guidance, stating only, in its reply, this 3subject, however, more information must be that "Itihis does not appear to conform with the proposed ISG." 31 The Board is here. 09 shown than has been shown not permitted to draw any inferences on behalf of a petitioner, and in the absence of any more specific statement than has been provided, showing how the specific D. Pilgrim Watch Contention 3: The Environmental Report Is actions of Applicant fall short, or some nexus with problems at other plants, we Inadequate Because It Ignores the True Offsite Radiological and find the contention fails to show any genuine dispute on a material issue of fact Economic Consequences of a Severe Accident at Pilgrim in Its relating to the matters at issue.

Severe Accident Mitigation Alternatives (SAMA) Analysis Applicant Entergy has detailed in its amendment how it has in fact done UT testing of the drywell shell, both at points adjacent to the inaccessible sand Pilgrim Watch here contends:

cushion region and also, on two occasions, of the shell immediately above the sand cushion area, by chipping away the concrete above the points of testing.:0 It The Environmental Report inadequately accounts for off-site health exposure and has stated that the result of this testing has been that the thickness of the shell at economic costs in its SAMA analysis of severe accidents. By using probabilistic the areas tested is "essentially as-built." 306 It has explained that it ceased doing modeling and incorrectly inputting certain parameters into the modeling software, UT measurements in the inaccessible sand cushion region, based on satisfactory Entergy has downplayed the consequences of a severe accident at Pilgrim and this has caused it to draw incorrect conclusions about the costs versus benefits of results from monitoring for leakage from the annulus air gap drains (which possible mitigation alternatives.310 provide for drainage from the sand cushion area); satisfactory thickness at the 9-foot elevation sand cushion region (and upper drywell); the existence of high Pilgrim Watch's argument that this contention is within the scope of license radiation in the areas where the sand cushion UT exams were performed; and renewal t" is not disputed;1t 2 severe accidents, and alternatives to mitigate severe the potential for damage to the drywell shell from the tools used to chip away concrete when UT testing of the sand cushion area was performed.O accidents, are listed as a "Category 2" issue in 10 C.F.R. Part 51, Subpart With no A, Appendix B. Petitioner also cites Council on Environmental Quality (CEQ) more specific information being provided to show that these are not acceptable regulatory authority for the proposition that environmental impacts that are reasons for ceasing the UT testing or that other measures taken by Applicant are "reasonably foreseeable" and have "catastrophic consequences, even if their unsatisfactory than that it "does not appear" that these satisfy the IS, we see probability of occurrence is low," must still be considered in an EIS;3t 3 and no genuine dispute being raised about the actions taken by the Applicant and whether they satisfy the ISG. Whether the Applicant's actions and procedures do or do not satisfy the ISG will be determined by the Staff in the course of their 30 9Reference may be made to the information provided by a petitioner in the Oyster Creek proceeding license renewal review, and Staff has indicated that it will assure compliance for comparison purposes. In that case, for example, among other facts shown by petitioners with the ISG. 30 1 In order for a petitioner to have a contention admitted on in their first contention relating to drywell corrosion, it was demonstrated that 60 out of 143 UT measurements at the I1-foot level of the sand cushion region indicated a reduction of more than 1/4 inch from the original design thickness of 1.154 inches at that point. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-7, 63 NRC 188, 213 (2006). By contrast, no reason has been provided to doubt Entergy's statement that UT measurements in the sand cushion region indicated 304pw Reply to Entergy at 12. essentially no reduction in thickness.

305See Pilgrim License Renewal Application, Amendment I (May 11, 2006) at 3, ADAMS In a second contention on drywell corrosion, admitted in part after the first contention on the subject 9

Accession No. ML06138054 [hereinafter Amendment]. was ruled moot based on actions taken by that Applicant to address a deficiency alleged in that 306 rd. contention, see AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 301 See id- at 2-3. 64 NRC 229, 230-31 (2006), the Petitioners provided a relatively detailed argument in contrast to the contention before us. For example, that portion of the contention that was admitted concerned a 308 At oral argument, the Staff stated that they "intend to apply the elements of the draft ISG to very specific assertion that the drywell shell at Oyster Creek was "0.026 inches or less from violating the renewal "matter application. The extent to which those amendments address the ISG is just going to be-a of review." Tr. at 353. The Staff responded affirmatively to questioning AmerGen's acceptance criteria" in the sand bed region "due to prior corrosion." Id. at 240, 242.

from the Licensing 31 "PW Petition at26.

Board Chair as to whether they would "male sure the ISG is complied with completely." I&. Entergy 311See id.

counsel stated that, although Entergy would "like to see the finalized ISG before I commit to s-Ayl 3t2 I would assume that if it's along the lines of the proposed ISG that we would [commit to complying See Staff Response to PW Petition at 25; Entergy Answer to PW Petition at 25-46.

313 with the ISG]." Tt. at 356. PW Petition at 26 (quoting 40 C.F.R. § 1502.22(b)(1)).

32.'?-

does speed, wind direction, and dispersion), demographic and emergency response NRC regulatory authority for the proposition that difficulty in quantification 3 23 are important data relating to evacuation delay time and speed, and -economic data. PW not excuse inclusion in the EIS, because, "to the extent that there alleges that the Applicant'sundercounting of the costs of a severe accident could qualitative considerations that cannot be quantified, these considerations or factors have led to erroneous rejection of mitigation alternatives, and that further analysis 4

will be discussed in qualitative terms."" is necessary.

3 24 Petitioner argues that this contention is material because it alleges a deficiency 315 Pilgrim Watch challenges the modeling of. the Application's atmospheric

, it in the Application that "could significantly impact health and safety" dispersion of a point release of radionuclides because it allegedly does not take use of "probabilistic modeling and incorrect parameters in is asserted that the into account meteorological conditions such as wind speed and directiofi changes, results in a downplaying of the likely consequences of a 3 32 its SAMA analysis" the sea breeze phenomenon, and coastal topography. Citing various authority severe accident at Pilgrim, which "thus incorrectly discounts possible mitigation accident.

316

• in support of its arguments, including a Massachusetts Department of Public might prevent or reduce the impact of an alternatives" that Health report on the "Feasibility of Exposure Assessment for the Pilgrim Nuclear requirement on As basis for Contention 3, PW notes that the Appendix B *Power Plant," and NRC Regulatory Guide 1.194,326 PW contends that the data SAMAs provides that, even though "ft]he probability weighted consequences of water, releases to ground used in the Application - taken from the reactor site and the Plymouth airport of atmospheric releases, fallout onto open bodies are small for - should be replaced with more specific data that take into account the specific water, and societal and economic impacts from severe accidents 3t area. 321 must still be considered.

• characteristics of the Plymouth all plants," alternatives to mitigate severe accidents the Pilgrim Watch challenges the demographic and other data used in the Appli-Petitioner suggests that by virtue of Entergy's use of probabilistic modeling, cation, arguing that, because of the unpredictability and complexity of the winds deaths, injuries, and economic consequences of an accident can be underestimated, 318 at the Pilgrim site, a larger, more inclusive population, located "within rings citing various legal and technical authority." 31 9 around the plant," should be used when calculating offsite dose costs. Noting 328

. Further, PW asserts, Applicant used outdated versions of the MACCS2 Code that the sensitivity analysis used in the Application does not include the most and MACCS2 User Guide, ignoring warnings about the code's limitations and 329 current information on emergency evacuation needs, and suggesting that it does using incorrect input parameters.

3 20 Citing criticisms of the code, PW points to, include a faulty assumption "that the longest likely delay before residents begin among other things, limitations on the code's failure to "model dispersion close to affect the to evacuate is 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br />," PW proposes that the analysis should take into account to the source ... or long range dispersion," and to a user's "ability parameters."'321 phenomena such as the need for some who cannot evacuate to shelter in place, manipulating the inputs and choosing output from the code by special events that bring large numbers of the public onto the roads at times, and of the Stating that it is impossible for PW to fully evaluate the SAMA conclusions "shadow evacuation," or voluntary evacuation by persons not within the formal by the Applicant,"

Applicant, "[w]ithout knowing what parameters were chosen 33 0 evacuation area. Petitioner suggests the need for greater realism and accuracy of a severe PW posits several "reasons that Entergy's described consequences so small," based on the ER, and discusses several accident at Pilgrim look categories of what it contends are incorrect input data to the SAMA specific 12' See id. at 34-45.

(including wind analysis. These alleged errors relate to meteorological data 322 324

" See id. at 48-49.'

32126 See id. at 34-38.

1 See ida (citing J.D. Spengler and GJ. Keeler. Feasibility of Exposure Assessment for the Pilgrim 314 Nuclear Power Plant (1988); NRC Regulatory Guide 1.194 (June 2003); Edwin S. Lyman, Union of Id. at 2'? (citing 10 C.F.R. § 51.71).

3 15 Concerned Scientists, "Chernobyl on the Hudson? The Health and Economic Impact of a Terrorist Id at 28 (citing Millstone, LBP-04-15, 60 NRC at 89).

3t Attack at the Indian Point Nuclear Plant," at 16 (2004)).

11 d. at28. 32 1 See id. at 37-38.

31"Id. at 29-30 (citing 10 C.F.R. Parn 51, Subpart A, Appendix B). 328 Id. at 38.

318 32 kld at 30-31. 1pW indicates that a later report prepared fot Entergy than that used in the Pilgrim SAMA analysis Petition at 31.

319 MACCS stands for "MELCOR Accident Consequence Code System"; see PW .refits on newer census data and newer roadway geometric data." PW Petition at 39-40 (citing 320 See PW Petition at 31. "Pilgrim Nuclear Power Station Development of Evacuation Time Estimates," KLD TR-382, Rev. 6 Code Manualfor 32 1 Id. at 33; see id. at 31-34 & nn.13. 14 (citing 1D.E. Chanin and M.L. Young, (Oct. 2004)); cf. KID, "Pilgrim Station Evacuation Time Estimates and Traffic Management. Plan 1, User's Guide (Sandia Nat. Lab., 1997); MACCS2 Computer Code Application MACCS2: Vol. Update," Rev. 5 (Nov. 1998). -

33 Guidancefor Documented Safety Analysis (DOE, 2004). OPW Petition at 41-43.

322 PW Petition at 34.

dent risks. 33 9 Pointing to the Third Circuit decision in Limerick Ecology Action, case scenario."3m Inc. v. NRCm and the Commission decision in Duke Energy Corp. (McGuire in the evacuation analysis, as well as assumption of "the worst PW supports these arguments with a factual discussion, along with references332to Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I and 2), CLl-and various other documents and studies. 02-17,14 the Applicant argues that the Commission and reviewing courts have specific sections of the Application 'i.e., "that endorsed the position that "the evaluation of risk is at the heart of a SAMA Noting "[olne of the cited criticisms of the MACCS2 Code -

models only the economic cost of analysis," that "only by considering risk can one determine those alternatives

'the economic model included in the code that PW is in that, although costs of decontamination, that provide the greatest benefit for the dollars expended," and mitigative actions'" - PW points out a SAMA analysis is "to focus solely on mitigation of sufficiently decontaminated, .andcom- error in suggesting that condenmation of property that cannot be consequences without regard to the likelihood of their occurrence."

3 42 Applicant as a result of an accident are included, pensation to persons forced to relocate emphasizes the centrality of the risk calculation by describing the Third Circuit's activity in Plymouth County not accounted for is any resulting loss of economic with population density,* 3 with significant tourism (including the Cape Cod discussion of how the probability of a risk may change or other neighboring counties County.533 One example provided is and the Commission's statement that reductions in risk are "assessed in terms of area), travel to which is through Plymouth

-less than five miles from the plant (and] the total averted risk: averted public exposure (health risk converted into dollars that of Plimoth Plantation, which is 3 4 PW also attaches as an exhibit to this to estimate the cost of the public health consequence), averted onsite cleanup cost, brings in almost $10 million per year."'

of travel on Massachusetts counties, averted offsite property damage costs, averted exposure costs, and averted power contention a study on the economic impact 3 replacement costs.' '"4Applicant also quotes from a Commission decision in the of Travel and Tourism.ý s prepared for the Massachusetts Office McGuirelCatawbalicense renewal proceeding:

alternative that it contends the Applicant Finally, PW provides an example of an of its SAMA analysis - namely, adding a filter to wrongly dismissed as a result 3 36 Whether a SAMA may be worthwhile to implement is based upon a cost-benefit the Direct Torus Vent. analysis - a weighing of the cost to implement the SAMA with the reduction in 3 5 risks to public health, occupational health, and offsite and onsite property- 4 Contention 3

1. Entergy Answer to Pilgrim Watch Applicant characterizes PW's argument as being that "risk is to be ignored 3 is inadmissible "because (1) the Con- and The Applicant argues that Contention (in a SAMA analysis) and that only consequences are3 to be considered,"

regulation, and (2) the Contention tention impermissibly challenges Commission argues that this approach is contrary to the SAMA rule. 46 Applicant concludes its dispute of fact regarding the adequacy provides no basis to establish a material 337 argument, Applicant asserts argument that Contention 3 "impermissibly challenges Commission Regulation" ER." In its first of the SAMA analysis in the with the following statement:

thus misapplied, and in effect challenged that Pilgrim Watch has "misread," 35 analysis.Y The root of this problem, In short, Pilgrim Watch's claim that the Pilgrim SAMA analysis erroneously focuses Commission regulations regarding SAMA Watch's assertion that SAMA analysis according to the Applicant, is Pilgrim acci-mitigation alternatives and not severe should be focused on severe accident 339 1d. at 25-26.

1411969 P.2d 719 (3d Cir. 1999).

3 Id. at 40.

5; Calculatiot of Reactor Accident Cort- 41CLI-02-,7, 56 NRC 1 (2002).

332 See id. at 39-42 (citing KLD-TR-382, Rev. 6. Rev. 342 Evtergy Answer to PW Peition at 26.

1982); NAS, The Safety & Security of Commercial Spent sequences (CRAC-2) (Sandia Nat. Lab., Evacuation 343 Id. at 27; see Limerick. 869 F.24 at 738-39.

Donald Ziegler and James Johnson, Jr.,

Nuclear Fuel Storage Public Report (2005); The Professional Geographer(May 1984)). 3 "Entergy Answer to PW Petition at 27 no1S (citing McGuire/Catawba,CLI-02-17, 56 NRC at Plant Accidents, Behavior in Response to Nuclear Power 8 a.14). Applicant notes as well the Commission's prediction that it would be "unlikely that any 33 Id. at 43-44 (internal quotations omitted). will identify 34 site-specific consideration of severe accident mitigation alternatives for license renewal 1335 Id. at 44. for reducing severe See PW Petition. Exhibit D, The Economic Impact of Travel on Massachusetts Counties, 2003, major plant design changes or modificationsthat will prove to be cost-bneicial of the accident frequency or consequences." Md. at 28 (citing 61 Fed. Reg. 28,467, 28,481 (June 5. 1996)

Travel and Tourism by the Research Departrae.mt ptmpared for the Massachusetts Office of (January 2005). (emphasis added by Applicant)).

Washington, D.C.

Travel Industry Association of America, 34 5Entergy Answer to PW Petition at 26 (quoting McGuirelCatawba, CU-02-17, 56 NRC at 7-8).

336 PW petition at 45-48. SId. at 27.

1

• 3Entergy Answer to PW Petition at 25.

33 8See id.

t*7

'? Z,

on risk so as to improperly minimize the consequences of a SAMA is not supported. The Applicant also takes issue with the Contention's assertion that the "se-The reduction of risk (likelihood of occurrence times severity of consequences) is vere accident analysis should assume the worst case scenario." 355 Arguing that the fundamental tenet of SAMA analysis. Moreover, because the impacts from "NEPA's 'Rule of Reason' provides no exception for SAMA analysis," the severe accidents as determined by the Commission are "SMALL" the Commission Applicant claims that Pilgrim Watch has no legal basis for its proposition. 356 does not expect a properly conducted SAMA analysis "to identify significant Therefore, according to the Applicant, only "reasonable scenarios" need be

[plant] modifications that are cost-beneficial" .... , which is exactly counter to the considered, "'limited to effects which are shown to have some likelihood of underlying premise of Contention 3.347 occurrmng.' ,,3" Applicant cites both Commission and Supreme Court case law suggesting that the SAMA analysis "requires no different level of considera-In its second argument, Applicant urges that Contention 3 fails to raise any material dispute of fact, insisting that it lacks any "factual basis to show tion or evaluation than that employed for analyzing mitigation generally under that the different modeling assumptions and estimates that it claims should NEPA,"'35 and quotes the Commission's statement in McGuire/Catawbathat

"[u]nder NEPA, mitigation (and the SAMA issue is one of mitigation) need have been used in the SAMA analysis would have any material impact on the only results of the analysis." Asserting that the "contention rests on several faulty be discussed in 'sufficient detail to ensure that environmental consequences [of premises," Applicant reiterates its argument described above and claims that the proposed project] have been fairly evaluated.'1"359 the "mischaracterization of the SAMA analysis" has tainted its contention and In the Applicant's view, PW has also failed to establish a factual basis for "provides no basis for an admissible contention."' 349 Applicant notes that, "[a]s its challenges regarding (I) the Applicant's use of an "outdated" version of would be expected by the Commission," its SAMA analysis "does not identify MACCS2 Code and User Guide and analysis performed with such tools; (2) the any significant modification to mitigate severe accidents to be cost-beneficial," Applicant's meteorological data analysis; (3) the Applicant's demographic and but does find five alternatives to be "potentially cost beneficial" and recommends emergency response data and analysis; or (4) its economic data and analysis. 36o further evaluation and consideration of these.3 50 In addition, it points out that it With regard to the MACCS2, the Applicant asserts that the code is "state-of-the-identified benefits for more than fifty of the fifty-nine SAMAs it did evaluate, art," and that "Pilgrim Watch [does not] provide any basis whatsoever for its contrary to Petitioner's assertion of "zero" benefits identified. '

35 allegations that Entergy 'ignored warnings about the limitations of the model,' "361 Applicant argues that "Contention 3 impermissibly presumes the materiality or '"any basis to show that any of the inherent limitations of the MACCS2 Code of its asserted deficiencies and pleads no facts to establish their materiality.

3 2 are of any significance and would in any way alter the outcome of the SAMA According to the Applicant, "the Contention sets forth nothing to establish that analysis with respect to determining potentially cost beneficial SAMAs."' 6 z

the asserted deficiencies would, if corrected as claimed by the Contention, alter While Applicant agrees that "additional data may always be desirable," it again argues that Petitioner has not made any showing that the alleged deficiencies the result of the SAMA evaluations." 35 3 Applicant suggests that:

in any way materially affect the SAMA analysis.3 63 In addition, Applicant suggests In light of the large conservatisms inherent in the [SAMA] analyses, the significant that Regulatory Guide 1.194 does not support the need for more than the year's differences between the cost and benefit of implementing the various SAMAs, and the sensitivity analyses showing that the results are not sensitive to changes in assumptions, it is behoven for Pilgrim Watch to have pled facts to establish the materiality of its asserted deficiencies, [which is] necessary to avoid a meaningless "EIS editing session[ I" of the type that the Commission has warned against."4 355 3 56 hidat 33.

i d.

147Id. at 29. 357

" d. (quoting Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313) 348 Id. at 29-30. LBP-04-23.

60 NRC 441,447 (2004)).

349Id. at 30. 35SSee id. at 35 (citing Robertson, 359 490 U.S. at 344-47).

350 a (citing Application, ER at E.4-49). Id. (citing McGuire/Catawba,CL1-03-17, 35t Id. at 30-3 1. 58 NRC at 431).

36o Id. at 36-46.

352 L at 31. 361 362 Id. at 36.

35 3 Id. (emphasis in original). 1Id. at 37.

354 Ild. at 32-33 (citations omitted). 313 Id. at 38.

Y&B32 329

370 3 challenge to the Commission's emergency planning requirements." In any worth of meteorological data it utilized in its analysis, "4and states that "[PW] event, according to Applicant, its analysis takes into account dose to the public makes no claim that the 12 month period of meteorological data used for the 37 within a 50-mile radius "and thus fully accounts for the risk beyond 10 miles."' 1 Pilgrim SAMA analysis is unrepresentative of the Pilgrim site's meteorology With respect to "shadow evacuation," Applicant views this as a call by PW for in any respect."

365 Noting PW's suggestion that " 'measurements from multiple an impermissible "worst case scenario," and asserted in oral argument that local sites in the field' are neededto 'better characterize meteorological conditions,'" 372 law enforcement will assure absence of shadow evacuation ; and, with respect Applicant suggests that the "real thrust" of PW's claim is "an asserted need for to the need of some to "shelter in place," Applicant points out that the existing an expanded radiological monitoring program for the Pilgrim plant, which is an emergency plan provides for state and local governments to373 provide assistance to operational issue beyond the scope of this license renewal proceeding," just as immobile and handicapped persons in the evacuation zone.

with Contention 1.366 Applicant defends its sensitivity analysis as incorporating "large conser-The Applicant suggests a similar lack ofbasis to show that different data would vatisms" such as using the 2-hour time prior to beginning of evacuation rather materially affect the outcome of the SAMA analysis with respect to population than the 40-minute time in the base case, which it says "show a maximum change demographics and emergency response data, noting that the latter were derived in the population dose estimates of 'less than 2%.' -314 Applicant argues to the from the Pilgrim Emergency Plan, and suggesting that Petitioner has not shown effect that using larger changes in the evacuation times would still produce only that use of more recent data "would have exceeded the bounds of ... sensitivity negligible changes in the result, and that the Contention provides no basis to show analyses [performed by Applicant] or altered the outcome of the analysis in any that its challenges would alter the outcome of the analysis.3 7 5 Finally, Applicant material way."

3 67 In addition, Applicant notes that it evaluated "a wide range asserts (without quantification of its sensitivity analysis results) that the same of scenarios for which evacuation time estimates were developed," including 368 amounts of traffic. conclusion must be drawn regarding the economic data suggested by Petitioner, varying weather conditions, times of day and year, and and that "even with its asserted limitations, the MACCS2 code is state-of-the-art Finally, with regard to emergency response data, Applicant argues that these and can be properly applied to yield valid results.376 should not be subject to challenge in this proceeding, citing Commission precedent for the principle that "[elmergency planning ... is one of the safety issues that need not be re-examined within the context of license renewal."369 Applicant suggests 2. NRC Staff Response to Contention 3 that it follows from this precedent that "assumptions that are consistentwith the established emergency plan should be accepted as reasonable in this proceeding," The Staff s position is that, while the subject of SAMAs is clearly within the 3

and that PW's suggestion that the evacuation zone should be greater than the 10 scope of a license renewal proceeding, this contention is inadmissible. 77 The Staff challenges the contention as raising issues that are "not material to the miles provided for in "applicable NRC requirements" is "a direct, impermissible findings that must be made in this matter" and "not supported by expert opinion 364 Id. Applicant notes thatby its terms Regulatory Guide 1.194 does not apply for modeling offsite '

70 1d. at 43.

accident radiological-consequences. Instead, according to Applicant, the applicable NRC guidance is 371 id, found in Regulatory Guide 1.145, which points to Regulatory Guide 1.23, "which provides for the 372 full See Tr. at 426-27.

use of 'data gathered on a.continuous basis for a representative 12 month period' (although '[tiwo 373 Entergy Answer to PW Petition at 44.

1.145 cycles of data are desirable')." Id. (citing Reg. Guide 1.194 at 1.194-1-1.194-3; Reg. Guide 374 hi at 45 (internal quotation owitted).

at 1.145-2; Reg. Guide 1.23 at 23.2). Applicant also notes that Edwin Lyman, one of Petitioner's 37 Id. 1See id. at 45-46.

sources, has recognized that the MACCS2 Code cannot process more than a year's worth of data. 376 1d at 46. We also note Entergy's concession at oral argument that "the one insightful aspect of (citing 36 Lyman, supra, at 26, 33).

5 Entergy Answer to PW Petition at 38. the petition was that we made a mistake in one of our SAMAs." Tr. at 399. With respect to the direct 3661d. at 39. filtered vent, which was cited by PW as evidence of faulty SAMA analyses, the applicant stated that 367 it made an "error in inputting the appropriate source term," but that the error was not indicative of Id. at 41; see id. at40-41.

36 8Id. at 42. Again, however, Applicant in its pleadings offers no quantification of either the range code errars or incorrect economic inputs, evacuation time estimates, or meteorological data. Tr. at 400. Furthermore, according to the Applicant the error was corrected in a response to a Staff Request of36scenarios investigated or the effects of the variation in assumptions.

9 Entergy Answer to PW Petition at 43 (quoting Turkey Point.CLI-01.17, 54 NRC at 9); see id. at for377Additional Information. See id.

See Staff Response to PW Petition at 25.

42-43.

330 33-I 330

or sufficient facts, as required by 10 CFR § 2.309(f)(1)(v)." 371 The Staff insists I that SAMA analysis is a "technical area" and that a Petitioner "cannot rely deficiencies, or that they impact the results of the SAMA analysis." 5 Noting that on its own assertions.""3 9 The Staff also defends the use of "probability risk the MACCS2 code "hasbeen previously evaluated and found to be sufficient to analysis" (PRA) as utilized in the SAMAs, arguing that "[u]se of the PRA in this support regulatory analyses and cost-benefit analyses" in NUREG/BR-0184 and manner is an essential and widely accepted part of the cost-benefit methodology NUREG/CR-6853, Staff contends that PW's challenge of the use 36 of the code is as described in Section 5.6 of NUREG/BR-0184."i33 unsupported* B Regarding Pilgrim Watch's assertion that probabilistic modeling can under- The Staff also argues that there is "no legal support for the position that the estimate the true consequences of a severe accident, the Staff notes that the Applicant should be required to provide the complete inputs," and that the failure Applicant followed accepted NRC and industry practice by comparing the costs to do so "is not a sufficient basis for asserting or concluding that the input is and benefits of each identified SAMA, used the correct definition of risk ("the flawed, or that the applicant has inappropriately manipulated the input." 3 87Noting product of consequence and frequency of accidental release"), and properly that "a summary description of the site-specific input parameters in each of the discarded SAMA candidates not found to be viable.3 8' Staff suggests that the fact* major modeling areas is provided in Section E.1.5.2 of the ER," the Staff faults that the Applicant evaluated 281 SAMAs negates any implication that Applicant PW for "not (having] taken issue with any of these specific inputs, other than "did not consider a full range of SAMAs,"3 s2 raising more general concerns . . .",I The Staff states that the "request for a The Staff dismisses PW's concerns regarding the alleged use of "an outdated complete input listing appears to be designed to obtain discovery to be used as version of the MACCS2 Code" as "mere speculation," citing PW's statement a basis for additional contentions, and as such, is specifically prohibited by the that "Entergy may have 'minimized consequences by using incorrect input Commission."1's9 parameters."' 38 3 In addition, the Staff counters PW's suggestion that the Code The Staff challenges PW's claims about the sea breeze phenomenon, asserting and/or its user guide are out of date or contain known flaws, asserting that that PW has not sufficiently shown that:

Pilgrim Watch has "insufficient basis" for its claims.3" The Staff also argues that Pilgrim Watch's related claim that the applicant used incorrect input data (1) the phenomenon is unique to the Pilgrim site and not present at many other in the models (including meteorological, demographic, emergency response, and coastal sites where MACCS2 has been utilized, (2) the Applicant did not, in fact, regional economic data) is not supported and is not material in that it has not been model this phenomenon, or (3) the claimed failure to fully characterize or model the phenomenon would result in any meaningful difference in results of the SAMA "established that any of these alleged shortcomings of MACCS2 are, in fact, evaluation or render the site-specific MACCS2 data inadequate. 390 378 Id.. Arguing in a vein similar to that of Entergy, the Staff maintains that Pilgrim 379 Id. Watch has not shown that Regulatory Guide 1.194, cited by PW as authority 38 0Id. at 26. The Staff explains that, in determining whether any of the 281 possible for SAMAs the argument that more data may be required, is applicable to SAMA analysis, Entergy identified for Pilgrim (from a number of sources, including the Pilgrim PRA analysis) should nor has it shown "that additional data is necessary or that the one year be implemented, of data is insufficient."391 Further, Staff insists:

the licensee performed a cost-benefit analysis using a methodology that is consistent with the NRC Regulatory Analysis Technical Evaluation Handbook (NUREG/BR-0184). This analysis is designed to identify and estimate the relevant values and impacts of a each proposed change, and provides a structured approach for balancing benefits and costs in determining whether `0ldat31, implementation is justified, The PRA is used within this analysis to evaluate the reduction 3861d. (citing NUREG/1R-0184, "NRC Regulatory Analysis Technical Evaluation Handbook," at in probabilities (core damage frequency) and consequences (population dose) that would be associated with implementation of each alternative. Use of the PRA in this manner is an 5.38; NUREG/CR-6853, "Comparison of Average Transport and Dispersion Among a Guassian, a essential and widely accepted part of the cost-benefit methodology, as described in Section 5.6 Two-dimensional, and a Three-dimensional Model, Lawrence Livermore National Laboratory," at 5 of NUREG/BR-0184. (October 31 2004)).

1d. at 30.

388id.

381See Staff Response to PW Petition at 27-28.

389Id, 3 2 1 1d. at 28.

313 Id. at 28-29 (emphasis supplied by Staff). 3901a at 32.

3 314 Id. at 29. 911,j (citing Regulatory Guide 1.194, § C.I at 1.194-3, 1.194-5, and 6; NUREG/CR-6613, Vol. 1, App. A, §A.I ata-l).

3.1-39-3

Petitioner questions Entergy's argument that significant plant modifications is inadequate, and are not expected as a result of a SAMA analysis, suggesting that "this is not tT~he Petition fails to establish why the appliclat's approach impact on SAMA approach" would have any the 'hard look' required by NEPA," and reiterates that what it is calling for is that the petitioner's "more realistic results. . . Nowhere does the petition establish why Entergy's approach is "further analysis," not, as Entergy suggests, that NEPA requires implementation 0

would have any impact on the SAMA of particular SAMAs.4 The bulk of the contention, PW emphasizes, highlights inadequate or that an alternative approach issue is material to the findings Petitioner has failed to show that the 3 "input data that were incorrect, incomplete or inadequate.' oJ Since it does not results. Thus, material issue of law or fact. 9 on a or that a genuine dispute exists have access to the input parameters used by Entergy, it cannot show what impact any one defect might have on the results of the SAMA analysis, as Entergy argues Entergy wrongly dismissed the SAMA it must do, but this is not, PW contends, the same as showing an impact on the Finally, regarding PW' s suggestion that the Staff argues that Petitioner "fails outcome of a proceeding, which, along with showing that an alleged deficiency of adding a filter to the Direct Torus Vent, of the benefits of the filtered vent has "some independent health and safety significance," is the correct standard to establish that a more appropriate treatment 3 93 for materiality.40 PW argues that it has met the requirement of materiality by 2

would result in the filtered vent becoming cost-beneficial."

demonstrating "that there are deficiencies in Applicant's SAMA analysis that, by Staff minimizing the true consequences of severe accidents, could have independent

3. Pilgrim Watch Replies to Entergy and NRC health and safety significance.'" It cites authority for the principle that "further 403 Pilgrim Watch states that Entergy has "misconstrued the substance of the analysis" is a "valid and meaningful remedy'.' to call for under NEPA, given that, Petitioner's contention completely."

394 PW denies that it challenges NRC regula- 3 95

"[wJhile NEPA does not require agencies to select particular options, it is intended that, to the contrary, it quoted and relied on the SAMA. regulation. to 'foster both informed decision-making and informed public participation, and tions, noting alternatives must be adopted, only thus to ensure the agency does. not act on incomplete information, only to regret PW notes that it does not argue that mitigation 96 in the regulation?3 Regarding its its decision after it is too late to correct.' ,4 that they must be "considered," as required of an accident by the consequences Petitioner further supports its arguments on the allegedly faulty assumptions argument that "multiplying the probability analysis by msaking even reasonable mitigation in the Pilgrim SAMA analysis, including the sensitivity analysis, by referring of an accident.., can distort the accident," PW points out that this to the significant underestimations of evacuation times with regard to Hurricane appear more costly than the costs of an which focuses mainly on the input 40 5 Katrina (also alluded to in its Petition ), suggesting that the Pilgrim assumptions argument is "not central to Vits1 Contention, 39 parameters used in the accident modeling software."

' 'could be wrong by orders of magnitude.' "4 "If the bounding assumption used some of Entergy's arguments actually support by the Applicant in its sensitivity analysis underestimates the upper limits of the Petitioner suggests further that 99 It is asserted that the contention, including its reliance on the Limerick decision? emergency response data," PW argues, "it is no wonder negligible differences of different risk profiles for plants in were seen," and it is with regard to the sensitivity analyses that its argument the Third Circuit's recognition in Limerick actually supports densely populated areas as compared to areas of low population regarding "worst case scenario" is made - not, PW argues, to flout NEPA's rule of a severe accident are the important of reason or to "[distort) the decision makingszpress by overemphasizing highly PW's argument "that the consequences in evaluating the costs and benefits of implementing SAMAs," speculative harms," but "in order to get meaningful results [from] the modeling consideration 7 densely populated area, the emergency software and SAMA analysis."40 and posits that, because Pilgrim is in a evacuation delay times." 399 for Pilgrim "underestimate response inputs used at 15.16.

392 40'Id. at 16.

al at 33 (footnote omitted). 40 2 1d at 17.

393 Id. 403 39 4Pilgrim Watch Reply to Entergy at 12.

Id.

395 4

40 Id at 18(citing McGtdre/Catawba,CLI-02-17, 56 NRC at 10).

Id. at 13. "4o See PW Petition at 39 n.16.

396 4

6PW Reply to Entergy at 19; see also PW Petition at 39 n. 16.

Id.

3 97

-d. at 14.

407PW Reply to Entergy at 20 (internal quotations omitted).

39S Id. at 14-15.

39 9 Id.

With regard to the MACCS2 Code and its limitations, PW argues to the effect dwarf those cited in Applicant's SAMA analysis and would very likely alter the that this does not excuse ignoring real issues: determination of potentially cost beneficial SAMAs.'412 Pilgrim Watch. replies to the Staff's assertion that the contention is not material Even though the software cannot include the impact of terrain effects, long range. to these proceedings by insisting, again, that they "have highlighted a deficiency dispersion or economic costs beyond mitigative actions, this does not mean that the in the application that could have independent health and safety significance" in NRC Regulations allow a proper SAMA analysis to ignore these. If adding in the that "an insufficient SAMA analysis 'could have enormous implications forpublic true economic costs of a severe accident, for example (as discussed in [PW Petition heath and safety because a potentially cost effective mitigation alternative might at 43-45. ), would result, in a consequence cost several orders of magnitude not be considered that could prevent or reduce the impacts of that accident."'43 greater than that from simply the 40costs8 of mitigative actions, these costs should be Arguing that the Staff has inappropriately focused its attention on PW's lack of an estimated and taken into account. expert to support the admission of its contention, PW notes that it has supported the contention with "facts, sources, and documents," including "experts and reports Pilgrim Watch argues that it has supported its contention with a demonstration in the fields of accident modeling, accident modeling software, meteorology, that significant input data (meteorological, economic, evacuation-related) that evacuations, and economics."414 Emphasizing that "whether or not the contention were used for the code may be materially in error, and with reports and other is true is left to be decided at the hearing," PW argues that it has met the 1 45 documents that back up the contention.A requirements of the contention admissibility rule. 1 With respect to Applicant's argument that data from the Pilgrim emergency On the code, PW quotes the following language from NUREG/BR-0184, the plan should not be subject to challenge in this proceeding, PW argues that, without NRC Regulatory Analysis Technical Evaluation Handbook:

challenging the plan itself, "Petitioners can and do challenge the evacuation data used by Applicant in its SAMA analysis," noting a report cited in its original Formal methods cannot completely remove subjectivity, guarantee that all factors Petition, on the TMI accident, that found that the average distance traveled affecting an issue are considered, produce unambiguous results in the face of closely in evacuation was 85 miles, significantly more than the 10 miles utilized by valued alternatives and/or large uncertainties, or be used without critical appraisal 410 Entergy in the Pilgrim SAMA analysis. "While the emergency plan may not *or results. To use a decision 46 analysis method as a black box decision-maker is both extend beyond 10 miles," PW suggests, "a realistic input for a SAMA analysis wrong and dangerous.

should."4"1 In response to Entergy' s argument that PW has not provided any basis to show Noting that the handbook goes on to observe that the TMI core-damage scenario that the lack of certain economic data in the SAMA analysis would alter the had not been specifically identified in the PRAs until it had actually occurred, and outcoip& of the analysis, Petitioner notes that it provided a study showing "that describes seven categories and levels of uncertainty, PW argues that it has raised tourism accounts for $11.2 billion in revenues for Massachusetts and the region areas of uncertainty in data17input and modeling, and supported its arguments with 4

within 50 miles of Pilgrim is highly dependent on tourism," which is asserted expert reports and papers.

to demonstrate "that just the tourist sector alone would account for costs that PW further argues that Staff has misinterpreted Contention 3 in several respects, including characterizing PW's reference to not having all the Pilgrim SAMA input data as seeking discovery improperly, when PW was merely explaining "why a thorough evaluation by Petitioners of the MACCS2 conclusions is not possible" 4"S id. at 21.

409 See id. at 21-23. Noting that both a report offered by PW in the original contention and recent information on the Katrina evacuation suggest high rates of voluntary ("shadow") evacuation and 412 id.

greater distance evacuation than predicted, and noting further that "evacuation from a nuclear plant 413 pW Reply to NRC Staff at 11-12 (quoting PW Petition at 28).

accident would likely be even more chaotic than evacuation from the path of a huricane," PW again 4141d. at 12-13. We note Petitioner's statement at oral argument that it intends to have an expert at a suggests that "tilt is therefore very likely that the upper bounds of Applicant's evacuation data are optimistic," and "[tihe fact that a negligible effect was seen in the sensitivity analyses would seem hearing 415 on this contention, if admitted. See Tr. at 424.

PW Reply to NRC Staff at 13; see id. at 12-13.

to 4bear this out rather than confirm Applicant's assumptions." Id. at 23. 41 . at 13 (citing NUREGIBR-0184 at 5.1) (emphasis added by PW).

10 See id. at 23-24.

4 11 417 1d. at24. See id. at 13-14.

33-7

more realistic input data might change the SAMA analysis, with information at this point.4t Pointing out that it cannot be more specific in alleging "an error indicating, to the level necessary for contention admissibility, that these particular without having all of the parameters that were used,"'s" in SAMA andthenoting withanalysis regard to both Entergy's and the Staff's responses to Contention data may be materially incorrect. Given the limited amount of detail presented in the Application regarding the actual input and assumptions for this analysis, PW in the proceeding, 3 that it is not required to prove its contention at this point cannot reasonably be expected to present specific error margins in computational "that the Applicant used incorrect meteorological, PW argues that it has shown results.42 t Instead, we find their contention, that use of more accurate input data in economic input data to analyze severe accident consequences in evacuation, and these three areas could materially impact the computed outcome, to be reasonable economic consequences a way that caused it to ignore the true radiological and and the possibility intuitively obvious in the absence of actual computations may have caused it to dismiss cost effective mitigation 422 of severe accidents and definitively demonstrating otherwise. That is not to say that we find PW has 0

alternatives."42 raised admissible challenges as to all input data. We do, however, find that the contention, insofar as it challenges the data on these three points and proposes 3 the use of more accurate data relating to evacuation times, economic impacts,

4. Licensing Board Ruling on Pilgrim Watch Contention and meteorologic plume behavior has been sufficiently raised and supported for based upon the We find this contention, as limited below, to be admissible, the purposes of contention admissibility. Whether or not Pilgrim Watch could following analysis: ultimately prevail on the issues it raises, we find it has sufficiently supported them proceeding.

First, SAMAs are clearly within the scope of a license renewal to admit this contention.

describe below regarding those portions of the contention Next, to the extent we In particular, the evacuation and economic information provided by Pilgrim the required specific statement of the issue we find admissible, PW has provided Watch would seem reasonably to indicate that different results might have been statement raised, along with a sufficient explanation of the basis for the contention, reached in the SAMA analysis, and the same applies, to an extent, to the to specific and relevant sources and of alleged facts that support it, references information to show a genuine dispute with the Applicant on a documents, and had the benefit of a 41 t.See Application, ER, Attachment E, §E.1i.5.2. We disagree with the Staff that PW in noting material issue of combined law and fact. While it has not used by Applicant in its SAMA analysis, the absence of all the input data is improperly seeking discovery, and do not permit, by this ruling, detailed accounting of the input data about certain specific input data to the analysis that are anything of the sort at this point. See Staff Response to PW Petition at 30. In noting this absence, PW PW has raised questions and safety issues that is merely pointing out a relevant circumstance that explains its inability to describe to any significant material in three areas, in that they raise significant health extent the impacts of utilizing different input data.

PW seeks further analysis on these points, affect the outcome of this proceeding. 422We note the Applicant's references to the "large conservatisms" in the SAMA analyses and on the merits that such additional analysis is needed on and if it is determined to the results of sensitivity analyses. See supra text accompanying note 354. With regard to the until and unless this were these points, the renewed license would not be granted former, we note further that the magnitude and effects of these conservatisms are not set out in provided. other than summary fashion. See, e.g., Pilgrim Application, ER at 4-33-4-49. The Applicant has and significant described certain conservative assumptions with regard to the amount of core damage and concomitant PW has supported its call for further analysis by raising relevant that appears (from the Application) to have been release levels; however, the actual impacts of an accident would also be influenced by evacuation questions about the input data evacuation time estimates, information, weather conditions, and the actual localized economic impacts, each of which we find used in the Pilgrim SAMA analysis regarding (1) the has been appropriately challenged by Pilgrim Watch to a level and with support sufficient to admit movement of the plume, and (3) the (2) the meteorological data that govern the this contention with regard to these three areas.

supported arguments to the effect that including With regard to the sensitivity analyses, Entergy would have us believe that these demonstrate economic impact data; and it has that variation in the input data would have no significant impact on the outcome of the alternatives evaluation. See, e.g., Application, ER, Appendix E at E.1-66-1-68, E.2-11-2.12; Tr. at 378-79, 418 Md.at 14. PW quotes from its Petition as follows: 383-84, 428-29. Those sensitivity analyses, however, were performed only with respect to a few is not possible to fully parameters, and the results thereof are only summarized in the Application, so as to make challenge Without knowing what parameters were chosen by the Applicant, it or confirmation impossible in the absence of more detailed information. Moreover, these provide what is included eval*ate the correctness of the conclusion about [SAMAs]. However, from insufficient information or grounds to warrant a finding of no genuine dispute on a material fact, as Petitioners have been able to piece together some possible reasons that Entergy's in the ER, Applicant urges. Finally, Applicant's assertion brings into play questions of how and to what extent described consequences of a severe accident at Pilgrim look so small. the input used in various computations drive the results, in the context of a fairly complex analysis.

PW Petition at 34. These are factual matters inappropriate for determination in the contention admissibility stage of the 4t9I,. at 16. proceeding.

4 oPW Reply to Entergy at 25; PW Reply to NRC Staff at 17.

239 33¶T

possible mitigation alternatives,"426 such that further analysis meteorological data. The merits of these arguments will be tested at future points is called for. These are factual questions appropriate for resolution in in the adjudication process; but the merits cannot be considered at this point. The litigation of this contention.

support offered by PW, however, appears to raise reasonable factual questions. Based upon the preceding, we admit that part of Contention 3 having to do with the input data for evacuation, economic, and meteorological That some of the information provided by PW with regard to evacuation information. As times and related issues of new population numbers and traffic patterns, and the so limited, the admitted contention reads as follows:

phenomena of "shadow evacuation" and "sheltering in place," is apparently in Applicant's SAMA analysis for the Pilgrim plant is deficient conflict with some of the data taken by Applicant from the Pilgrim emergency in that the input data concerning (1) evacuation times, (2)economic consequences, plan does not, we find, mean that it cannot be considered in the NEPA context and (3) meteorological patterns are incorrect, resulting in incorrect conclusions in which it is raised in this proceeding. While "emergency planning ... is one about the costs versus benefits of possible mitigation alternatives, such that of the safety issues that need not be re-examined within the context of license further analysis is called for.

renewal," 423 what is challenged here is whether particular bits of information taken from such a plan are sufficiently accurate for use in computing the health E. Contention 5: New Information Shows That Another 20 Years of and safety consequences of an accident, as an environmental issue. Such a Operations at Pilgrim May Result in Greater Offsite Radiological challenge is not a challenge to existing emergency planning for this plant or to Impacts on Human Health Than Were Previously Known the plan itself, but is instead focused upon the accuracy of certain assumptions Pilgrim Watch in their final contention states as follows:

and input data used in the SAMA computations and how they affect the validity of the SAMA analysis under NEPA - and as such, we find PW's challenge to New and significant information about cancer rates the accuracy of the input data to be appropriate, in the three areas we have noted. in the communities around Pilgrim and the demographics of these. communities has With respect to Entergy's characterization of PW's contention as being that addition, new studies show that even low doses of ionizing become available. In "risk is to be ignored [in a SAMA analysis]," to the extent that any part of the radiation can be harmful to human health. Epidemiological studies of cancer rates in the communities contention or basis may be construed as challenging on a generic basis the use around Pilgrim show an increase of radiation-linked disease that can be attributed of probabilistic techniques that evaluate risk, we find any such portion(s) to be to past operations of the plant. The demographics of the population immediately inadmissible. The use of probabilistic risk assessment and modeling is obviously surrounding the plant, including its age and geographical distribution, population more susceptible to radiation linked damage make this accepted and standard practice in SAMA analyses. 424 In any event, as PW points than was contemplated out in its Reply to Entergy,425 th1 focus of the contention, and that part that we when the plant was licensed. Pilgrim does not currently have capabilities that can properly track releases of radiation into the off-site monitoring community.427 admit, is on what input data sliould be utilized in the SAMA analysis with regard to evacuation times, economic realities, and meteorological patterns, and whether the input data used by the Applicant accurately reflect the respective conditions As with its Contention 4, Pilgrim Watch asserts that the Commission's regu-lations implementing NEPA, at 10 C.F.R. Part 51, require Entergy "to at issue. provide

.an analysis of the impacts on the environment that will result if it is We find that. Pilgrim Watch has provided sufficient alleged facts, supported allowed to continue beyond the initial license,"1428 thus bringing a contention by several expert studies and reports, to demonstrate a genuine dispute with challenging the Applicant on the material factual issues of whether in its SAMA analysis the Applicant's Environmental Report within the scope of .a license renewal the Applicant has adequately taken into account relevant and realistic data with proceeding.' 29 PW argues that "ft]he deficiency highlighted in this contention respect to evacuation times in the area surrounding the Pilgrim plant, economic has enormous independent heath and safety significance," thus establishing the materiality of the contention. 4S0 consequences of a severe accident in the area, and meteorological patterns that would carry the plume in the event of such an accident; and whether as a result the Applicant has drawn "incorrect conclusions about the costs versus benefits of 4

2ASee PW Petition at 26.

4 "Id. at 79.

421 Turkey Point,CLI-01-17, 54 NRC at 9. 42 424 8 id.

See Entergy Answerto PW Petition at 25-26 (citing Limerick, 869 F.2d at 738; McGuire/Catawba, 429 Id. at 79-80.

CLI-02-17, 425 56 NRC at 7-8). ", at 8().

See PW Reply to Entergy at 14.

A]i

As bases for its contention PW insists that the contention presents new and treatment system in the first years; poor management significant information that additional years of operations will be harmful to public and practices .... 438 To support its assertion, PW cites studies performed by the Massachusetts health. 43 1PW refers to various alleged facts and sources, including an NAS report Department of Health, an epidemiological. study published in the scholarly journal Lancet on low-dose radiation risk, Health Risksfrom Exposure to Low Levels of Ionizing in 1987, and additional analyses performed by Dr. Clapp, Radiation: BEIR VII Phase 2 (June 2005) [BEIR VIII; information regarding founder and former director of the Massachusetts Cancer Registry.4" 3 These studies, according to PW, radiation-linked diseases in communities around Pilgrim; projected demographic demonstrate elevated rates of myelogenous leukemia, data suggesting that the population is at a greater risk; information suggesting thyroid cancer, prostate cancer, and multiple myeloma.44o Again,. PW references that "the documented radionuclide releases from Pilgrim in the past have long the NAS BEIR VII study to insist that no amount of radiation is safe and thus half-lives and bioaccumulate in the environment"; and that "the current systems "it is not surprising that radiation-linked disease rates are higher than expected in communities in place to monitor releases are inadequate and should be improved." 432 Pilgrim's past [radiation] releases,"'"' Building on its claims exposed to Addressing changing demographics surrounding the Pilgrim Plant, PW argues that the 13EIR VII study represents new information regarding the dangers that the population "abutting Pilgrim is increasing substantially and the population of ionizing radiation at any exposure level, PW claims that the previous is older and thus more susceptible to radiation damage," and contends that it standards set by the NRC for offsite radiation do not protect the community surrounding will demonstrate "that the dose effect on the population will be far greater than Pilgrim.44 Petitioner insists that because the effects of radiation exposure originally anticipated when the plant was licensed."'43 To support its allegation are cumulative, because some radionuclides have extremely long half-lives, regarding a projected increase in total population and the population of the aging, and because releases can enter biological food chains and accumulate in the PW cites "The Boston Metropolitan Area Planning Council Report on Population environment, radioactive substances can "remain active in the local environment and Employment Projections 2010-2030."34" An increase in the proportion of for the foreseeable future and should be taken into account when actual ongoing the population that is over 55 is relevant, according to PW, because "studies doses to the public are evaluated.""' PW also argues that the use of allegedly have shown an increased sensitivity to low levels of ionizing radiation in older "defective fuel" further exacerbates radiation exposure rates."" To support populations," and PW has included citations to multiple scholarly works on its position PW cites a 1990 report by the Massachusetts Department of Health, the topic including a publication titled "Leukemia near nuclear power plant in concerning the period 1978-1986, as well as statements made in 2005 by NRC Massachusetts.""43 Listed as a coauthor on that publication is Richard Clapp, who Commissioner Merrifield and an NRC Information Notice regarding "Control of Hot PW states could provide expert testimony to support its contention. 36 Nuclear Plants.""44 Particle Contamination at PW points to the 1972 FEIS and the current application's environmental report Concluding, PW states that "if Applicant disputes a (stating.that radiological releases from PNPS are monitored and comply with NRC causal link between the radiation released by Pilgrim and the cancers seen regulations), and challenges the proposition that releases do not pose a threat to in its neighboring towns, the current systems in place to monitor release the public healtl.by insisting that it has "[brought] forward new and significant are inadequate and should be improved.46 In an attached exhibit PW information that demonstrates that there has already been documented radiation documents some of the perceived deficiencies in the monitoring system currently used linked disease in communities near PNPS."4 37 PW argues that "new information by Pilgrim, and states that increased monitoring would allow "state and

.since Pilgrim began operations in 1972 [ ] shows increases in radiation-linked federal authorities to confidently measure radiation releases."*7 diseases in the communities around Pilgrim," and states that the increases "were in part attributed to operating with defective fuel; operating without off-gas 4381d. at 85.

436 See id. at 85-86.

4 1 '0 See id 43 Id. atgl.

44'Id. at 87.

432Id. 442See id. at 33 88.

4 Id. at 82. 44'Id. at 89.

3 4 4 Id. at 83.

5 444Id 43 Id. 5

' See id. at 89-90.

436See id. at 81.

446 U at 90, 417 Ed.at 84 (emphasis in original). *4471Id. at 91.

311

1. Entergy Answer to Pilgrim Watch Contention 5 both "predate the GEIS, they are obviously not new information."454 Further, Entergy challenges the admission of Pilgrim Watch's Contention #5 by assert- Entergy argues, "Pilgrim Watch provides no information ing that it is beyond the scope of the license renewal proceeding and challenges suggesting that the studies support a [sic] risk estimates that are greater than those used by the NRC the license renewal rules. Further, Entergy insists that the contention fails to in the GEIS.",455 Continuing, Entergy insists that Pilgrim provide any "basis demonstrating the existence of a genuine dispute.'"4 8 Watch has provided nothing more than speculation regarding its concerns about the bioaccumulation At the outset, Entergy insists that the contention "represents a challenge to of radiation at Pilgrim or alleged failures in the Pilgrim radiation the scope of the environmental review in 10 C.F.R. § 51.53(c), and to the NRC's 456 monitoring program.

generic environmental findings in the GEIS and Appendix B to 10 C.F.R. Part 51,"

because it is attempting to litigate Category 1 issues for which the Commission has generically addressed in the GEIS.449 Entergy points to the Commission's 2. NRC Staff Response to Contention 5 generic findings regarding "offsite radiological impacts" incorporated in the The Staff contests the admission of Pilgrim Watch's regulations in 10 C.F.R. Part 51, App. B, Table B-1, and argues that, absent a Contention 5 on the same basic grounds as Entergy; specifically, the Staff waiver, thePetitioner may not challenge these generic findings, regardless of the argues that the contention is outside the scope of a license renewal proceeding allegation of "new and significant information." As with PW's Contention 4 and and that the contention represents an impermissible challenge of the Commission's the contention proffered by the Massachusetts Attorney General, Entergy directs generic Category 1 findings with respect to public radiation exposure during the board to the Commission's decision in Turkey Point, CLI-01-17, 54 NRC at 45 the license renewal term. 7 As was the case in Entergy's Response, the 17, to support its position that the contention is "excluded from consideration in Staff also argues that each 40 alleged example of "new and significant information" this proceeding." 5 listed as bases by Pilgrim Watch fails to satisfy the contention admissibility Notwithstanding its argument that the contention is an impermissible challenge 5 requirements of 10 C.F.R.

§ 2.309(f)(1).4 8 of Commission regulations, Entergy proceeds to dispute Pilgrim Watch's claims Although the Staff argues that the "overarching difficulty" that new and significant information exists regarding the issue of offsite radiolog- with Contention 451 5 is that it presents a challenge that is outside the ical impacts "that would alter the Commission's generic,.Category 1 finding." scope of the license renewal proceeding, the bulk of its response is focused on refuting Addressing the BIER VII report, cited by Pilgrim Watch, Entergy claims that each individually listed basis on other grounds. 459 The Staff argues that the because the report "concludes that radiation protection decisions should be based PW's bases and their reliance on the NAS BEIR VII study to argue that "no amount on linear-no threshold hypothesis of dose relationship" and the NRC regulations of radiation is safe" rep-resent challenges to the NRC regulations establishing radiation addressing the issue are also based on the same linear-no threshold hypothesis, limits in violation of 10 C.F.R. § 2.335.460 With respect to PW's arguments the report "provides no basis to alter the generic findings." 45 2 Turning to Pilgrim that the environmental report is inadequate in that it does not account for changing Watch's claims regarding a change in the demographics surrounding the plant demographics in the surrounding population, the Staff claims that PW since the original licensing, Entergy asserts that the argument is irrelevant because has failed to demonstrate that a genuine dispute exists, as required by 10 C.F.R.

the radiological impacts for the period of extended operation are assessed in the § 2.309(f)(1)(vi).461 This is so, according to the Staff, because Pilgrim Watch's only GEIS, and thus, the EIS prepared when the plant was originally licensed is not at direct reference to the environmental report is a statement that the ER fails to "highlight" issue.4 53 Next, Entergy asserts that because the 1990 Southeastern Massachusetts the population and demographic data.462 What is lacking, according Health Study and the Meteorological Analysis of Radiation Releases for the to the Staff, is any direct Coastal Areas of the State of Massachusetts for June 3d to June 20th, 1982, 414 U at 58.

45 5 id.

45 6 See id.

448 See Entergy Answer to PW Petition at 56. 457 4491dm See NRC Staff Response to Pilgrim Watch at 40.

458 450 id. 4 59 See id. at 40-41.

451 id at 40-49.

Id.at 57.

452 4601d. at 42, 44-45.

1d 45 3 461See id at 41.

Id. 462 1d j," J112 45L

reference or challenge to a specific aspect of the ER. 63 A similar argument is cer incidences near Pilgrim, nor has Entergy satisfactorily disputed its assertions made in regard to PW's discussion of radiation-linked diseases in communities near Pilgrim and allegations regarding defective fuel." 1~ regarding bioaccumulation of radionuclides.4 Addressing its claims regarding deficiencies in Pilgrim's radiation monitoring program, Pilgrim Watch states that it has provided "sufficient detail about deficiencies in Pilgrim's monitoring program and reports to demonstrate that Pilgrim cannot provide the necessary

3. Pilgrim Watch Replies to Entergy and NRC Staff data to assure that public health and safety have been, or will be, protected." 472 Pilgrim Watch reiterates its position that although the contention challenges Turning to the BEIR VII report, and the Staff's assertion that PW's argument findings that were part of a generic Category 1 issue, its challenge is not outside that the report demonstrates there is no safe level of radiation exposure is the scope of the license renewal proceeding or a challenge to Commission tantamount to a challenge of Commission regulations, Pilgrim Watch argues that regulations because it has "submitted new information that casts doubt on the the report was cited as a means to demonstrate "that the radiation that is released generic conclusions regarding off-site radiological exposure as they apply to on a regular basis from Pilgrim Nuclear Power Plant cannot be assumed to be safe," not as a challenge of Commission regulations. 473 According to Pilgrim Pilgrim." 465 Thus, according to Pilgrim Watch, the new information submitted

- including the National Academies Health Risks from Exposure to Low Levels Watch, each of its asserted bases is relevant to whether there are greater offsite of Ionizing Radiation: BEIR VII Phase IT 2005 study, demographic changes in radiological impacts than previously assumed and whether the Applicant has the Pilgrim area, and case-controlled and statistical studies of radiation-linked adequately addressed the issues raised. 47 4 Thus, it argues, it has demonstrated disease in communities around Pilgrim - obviates its obligation to petition for a that a genuine dispute exists and presented new and significant information that warrant NEPA review.

waiver under 10 C.F.R. § 2.335(b) before it may challenge generic findings in the 3 GEIS under NEPA.466 Next, Pilgrim Watch defends its asserted new and significant information 4. Licensing Board Ruling on Pilgrim Watch Contention 5.

bases. 467 Pilgrim Watch argues that its arguments are supported by "numerous scientific sources" including the NAS, Massachusetts Department of Public Heath We find that this contention incorporates two related but distinct arguments, Commission, epidemiologists from multiple universities, and even the NRC, and neither of which we find to be admissible.

thus, the Staffs claims that it lacks a basis in fact or expert opinion are "ground- First, Contention 5 reflects the same legal logic as its Contention 4 and the less."468 Pilgrim Watch argues that the BEIR VII report presents new information Massachusetts Attorney General's contention, in that it attempts to challenge about cancer incidence risk figures and that the studies related to changing de- generic findings made in the GElS without a waiver by asserting that it has mographics and radiation risks demonstrate that the changing population around provided "new and significant information" on the issue. As we rule on Pilgrim will have an increased sensitivity to low levels of ionizing radiation.469 Contention 4, such a contention is inadmissible without a waiver of the relevant Further, Pilgrim Watch insists that the SMHS presents new information because rule, Here, PW admits that the contention's challenge regarding the offsite it was published after the FEIS for Pilgrim, and that the methodology for the radiological consequences "presents a Category 1 issue,"1475 and we see no need study - which Pilgrim Watch argues demonstrates an increased leukemia risk for. to repeat our analysis regarding the scope of license renewal proceedings and those individuals with the highest potential for exposure to Pilgrim emissions - challenges to generic findings for Category I issues here. Nor is there any need to has been peer reviewed and approved.4 70 Continuing, Pilgrim Watch argues that reach the question whether PW has proffered "new and significant information" Entergy has failed to address all the data it has proffered regarding increased can- on the issue. For the same reasons as stated with regard to*Contention 4 with regard to Category 1 issues, we find Pilgrim Watch Contention 5 to be inadmissible.

In addition to the NEPA-related issues, Contention 5 appears to challenge the 463 Id.

464 See id. 43-44, 47.

465 PW Reply to Entergy at 30.

466 471 See idt See id. at 30-31; see also PW Reply to NRC Staff at 23. 47 2 Ld.

467 See PW Reply to NRC Staff at 22-26; PW Reply to Enrtergy at 31-34. 473 46 8 PW Reply to NRC Staff at 22. PW Reply to NRC Staff at 23.

469 74 See PW Reply to Entergy at 32. 4 PW Reply to Entergy at 34.

470 5 See id. at 32-33. 47 See id. at21.

.41(7

NRC's dose limit rules found in 10 C.F.R. Part 20 as they apply to Pilgrim. PW's reliance on the BEIR VII conclusion that the all levels of ionizing radiation are

• 1.The Aging Management program proposed in the Pilgrim Application for license renewal is inadequate with regard to aging management of buried pipes and harmful, along with its references to the increased vulnerability of the population tanks that contain radioactively contaminated water, for monitoring wells that would detect leakage. because it does not provide surrounding Pilgrim, implicates an entirely different regulatory challenge than that found in Contention 4. This argument suggests that, as a matter of safety, 2. Applicant's SAMA analysis for the Pilgrim the levels of radiation released by PNPS are inappropriate when considered in plant is deficient in that the input data concerning (1) evacuation times, (2) light of the findings in the BEIR VII report, the studies regarding cancer rates economic consequences, and (3) meteorological patterns are incorrect, resulting in surrounding PNPS, and the increased susceptibility of a growing aged population the costs versus benefits of possible mitigation incorrect conclusions about alternatives, such that further surrounding PNPS. When pressed at the oral argument, FW conceded that it analysis is called for.

was not suggesting that radiological releases from Pilgrim are greater than are currently allowed by the NRC regulations. 476 In such circumstances, its contention B. The hearing will be conducted in accordance with the informal adjudica-regarding the radiological releases must necessarily be construed as a challenge to tory procedures prescribed in Subpart L of 10 C.F.R. Part 2. Our ruling in this the current NRC dose limit regulations found in 10 C.F.R. Part 20. Again, without regard is based on the absence of any request or demonstration, pursuant to a waiver under 10 C.F.R. § 2.335, no request for which has been submitted, such C.F.R. § 2 .3 09(g) and in reliance on 10 the provisions of 10 C.F.R. § 2.310(d),

a challenge is impermissible in an adjudication such as this one. resolution of any admitted contention necessitates that the utilization of the procedures set forth in Subpart G of 10 C.F.R. Part 2. Upon to 10 CF.R. § 2.1204(b) and in accordance an appropriate request, pursuant with the schedule to be set as indicated VI. CONCLUSION below, the Licensing Board will allow cross-examination as necessary to ensure the development of an adequate record for decision.477 In conclusion, although both Petitioners have established standing to participate C. The Massachusetts Attorney General's in this proceeding, the Licensing Board finds that under current controlling law Request for Hearing and Petition To Intervene is denied.

and regulation the Massachusetts Attorney General has not filed an admissible. D. The Town of Plymouth may participate contention and therefore is not admitted as a party in this proceeding. The in the hearing pursuant to 10 C.FAR. § 2 .315(c), through its designated Licensing Board does, however, find that Pilgrim Watch has filed two admissible representative, Sheila S. Hollis. The Town shall identify the contention or contentions and therefore admits it as a party to this proceeding. Should any further contentions on which it will participate within twenty (20) days of this Memorandum developments occur with respect to the pending rulemaking or any other matters and Order, or by November 6, 2006.

E. Any other interested State, local governmental that might lead to any different conclusion in this proceeding on the Attorney ally recognized Indian Tribe that wishes body, and affected, feder-General's Petition, such that another petition may be timely filed regarding any to participate in the hearing pursuant to 10 C.F.R. § 2 .3 15(c) shall file a Request and such matters, any such petition will be considered as may be appropriate at such Notice of such intent within twenty (20) days, or by November 6, 2006.Any 2 such notice shall, as required by section time. .315(c), contain a designation of a single representative for the hearing, and an identification of the contention or contentions on which it will participate.

VII. F. In the near future the Licensing Board ORDER will issue a Memorandum setting forth a schedule of deadlines and events for this proceeding.

Based, therefore, upon the preceding rulings, findings, and conclusion, it is, G. This Order is subject to appeal to the the provisions of 10 C.F.R. § 2.311. Any Commnission in accordance with this 16th day of October 2006, ORDERED as follows: petitions for review meeting applicable A. Pilgrim Watch is admitted as a party and its Request for Hearing and Petition To Intervene is granted in part and denied in part. A hearing is granted with respect to Pilgrim Watch Contentions I and 3, as limited and modified in the 477 See CAN v. NRC, 391 F.3d at 351, wherein the First Circuit following form: L regulations on the basis of NRC's upheld the validity of the Subpart representation that the opportunity 10 C.F.R. §2.1204(b)(3) of Subpart L is for cross-examination under equivalent to the opportunity for cross-examination the Administrative Procedure Act (APA), 5 under 476 U.S.C. § T". at 452. whenever it is ",required for a full and fair adjudication556(d), i.e., that cross-examination is available of the facts.'

3VI

APPENDIX (10) days of service requirements set forth in that section must be filed within ten of this Memorandum and Order.

SUMMARY

OF GOVERNING CASE LAW ON CONTENTION ADMISSIBILITY STANDARDS THE ATOMIC SAFETY AND LICENSING BOARD We address herein how the contention admissibility standards now found in 10 C.F.R. § 2.309(f)(1)l have been interpreted by a number of licensing boards and by the Commission, in various NRC adjudicatory proceedings. As indicated Ann Marshall Young, Chair in the body of our Memorandum and Order, because a petitioner- intervenor must ADMINISTRATIVE JUDGE submit at least one contention meeting these requirements in order to be admitted as a party in an NRC proceeding, how the standards have been interpreted in Dr. Paul B. Abramson various NRC case law can be of central, and often determinative, importance in ADMINISTRATIVE JUDGE deciding whether petitioners are granted evidentiary hearings in NRC adjudicatory proceedings. Failure of a contention to meet any of the requirements of section 2.309(f)(1) is grounds for its dismissal, and failure of a petitioner - even one Dr. Richard F. Cole found to have standing to proceed under the criteria discussed above - to submit ADMINISTRATIVE JUDGE an admissible contention will result in dismissal of its petition and request for hearing.2 Thus a full understanding of the standards and how they have been Rockville, Maryland applied in prior cases can be critical in any NRC proceeding.

October 16, 2006111 Although we do not represent the following to be an exhaustive consideration of all relevant case law addressing the contention admissibility standards, it does Section 2.309(0(1) states that:

(1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the appli-cantilicensee on a material issue of law or fact This information must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

2 See Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, Internet e-mail transmission to all participants or 2, and 3). CLI-91-12, 34 NRC 149, 155-56 (1991).

478 Copies of this Order were sent this date by counsel for participants.

07

~ISI

provide a summary of some of the more significant principles that licensing 10 C.F.R. § 2309(ft)(1)(i), (ii) boards are to apply in making determinations on the admission of contentions.

As indicated above, the origin of the current contention admissibility standards Sections 2.309(f)(l)(i) and (ii) require that a petitioner must, for each con-was the Commission's determination in 1989 that licensing boards prior to tention, "[pWrovide a specific statement of the issue of law or fact to be raised or that time had "admitted and litigated numerous contentions that appeared to controverted," and "[plrovide a brief explanation of the basis for the contention."

be based on little more than speculation.' -3 On this basis the Commission The Commission has stated that an "admissible contention must explain, with 4 specificity, particular safety or legal reasons requiring rejection of the contested amended its rules to "raise the threshold for the admission of contentions."

More recently the Commission again revised the rules, with a version that became [application].'9 It has also been observed that a contention must demonstrate effective in February 2004. These rules contain essentially the same substantive "that there has been sufficient foundation assigned for it to warrant further ex-admissibility standards for contentions, but no longer incorporate provisions, ploration."10 The contention rules "bar contentions where petitioners have only formerly found in 10 C.F.R. § 2.714(a)(3), (b)(1), that permitted the amendment 'what amounts to generalized suspicions, hoping to substantiate them later.' ""

and supplementation of petitions and the filing of contentions after the original In other words, a petitioner must "provide some sort of minimal basis indi-filing of petitionss? The new 10 C.F.R. Part 2 NRC Rules of Practice also contain cating the potential validity of the contention.""S This "brief explanation" of the logical underpinnings of a contention does not, however, require a petitioner various changes to provisions relating to the hearing process0 The underlying purposes of the contention admissibility requirements include, "to provide an exhaustive list of possible bases, but simply to provide sufficient as we note above, focusing the adjudication process on disputes "susceptible alleged factual or legal bases to support the contention."1 3 The brief explanation of resolution" in such context, providing notice of the "specific grievances" helps define the scope of a contention - "Itfhe reach of a contention neces-of petitioners, and "ensur[ing] that full adjudicatory hearings are triggered only sarily hinges upon its terms coupled with its stated bases."1t4 However, it is the by those able to proffer at least some minimal factual and legal foundation in contention, not "bases," whose admissibility must be determined.tS support of their contentions.' In its Statement of Considerations adopting the latest revision of the rules, the Commission reiterated that the standards are "necessary 10 C.F.R. § 2.309(t)(1)(ii) to ensure that hearings cover only genuine and pertinent issues of concern and that the issues are framed and supported concisely enough at the outset to ensure Petitioners must also, as required by section 2.309(f)(1)(iii), "[diemonstrate that the proceedings are effective and focused on real, concrete issues."8 that the issue raised in the contention is within the scope of the proceeding."

A Considering the various standards individually, along with a section at the end contention must allege facts "sufficient to establish that it falls directly within relating to limitations on the content of petitioners' replies to applicant and NRC the scope" of a proceeding."' Contentions are necessarily limited to issues that Staff responses to their contentions, we provide the following summary of some are germane to the application pending before the Board,17 and are not cognizable of the case law interpreting subsections (i) through (vi) of 10 C.F.R. § 2.309(f)(1). unless they are material to matters that fall within the scope of the proceeding 9

DominionNuclearConnecticut,Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, Millstone, CLI-01-24, 54 NRC at 359-60.

t0 54 NRC 349, 358 (2001) (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), See Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2). ALAn-942, 32 NRC CLI-99-11. 49 NRC 328, 334 (1999). 395, 428 (1990) (footnote omitted).

4 R-*es of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing 1Duke Energy Corp. (McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I Process, 54 Fed, Reg. 33,168, 33,168 (Aug. 11, 1989); see also Oconee, CLI-99-11, 49 NRC at 334. and 2), CLJ-03-17, 58 NRC 419,424 (2003) (citing Oconee, CLI-99-11,49 5 NRC at 337-39).

Under the current rules, contentions must be filed with the original petition, within 60 days of n 5 4 Fed. Reg. at 33,170.

3 notice of the proceeding in the FederalRegister (unless another period is specified). See 10 C.F.R. " Louisiana Energy Services. LP. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623

§ 2.309(b)(3)(iii). (2004).

6 As noted above, the First Circuit denied a challenge to the new rules by several public interest 4 Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 and 2), ALAn-899, 28 NRC 93, groups (supported by several states including Massachusetts) in CAN v. NRC, 391 F.3d 33%(Ist Cir. 97 (1988), affd sub norm. Massachusettsv. NRC, 924 F.2d 311 (DC.Cir. 1991).

2004). finding that the new procedures "comply with the relevant provisions of the APA and that the 15See 10 C.F.R. § 2.309(a).

6 Commission has furnished an adequate explanation for the changes." Id. at 343. 1 ArizonaPublic Service Co. (PaloVerdeNuclearGnerating Station, Units 7 1,2, and 3), LBP-91-19, Oconee, CLI-99-11, 49 NRC at 334. 33 NRC 397, 412 (1991). appeal denied on other grounds. CLI-91-12, g69 Fed. Reg. 2182, 2189-90 (Jan. 14, 2004). 7 34 NRC 149 (1991).

t See Yankee, CLI-98-21, 48 NRC at 204 & n.7.

352

for which the licensing board has been delegated jurisdiction as set forth in the 10 C.F.R. §2.309(f)(1)(v)

Commission's notice of opportunity for hearing and order referring the proceeding to the Board."8 A discussion of relevant regulatory and case law on the scope of Contentions must also, as now stated in section 2.309(f)(1)(v):

license renewal proceedings is found in section IV.B, supra.

A contention that challenges a Commission rule or regulation is outside of the [p]rovide a concise statement of the alleged facts or expert opinions which support scope of the proceeding because, absent a waiver, "no rule or regulation of the the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on Commission. . . is subject to attack.. . in any adjudicatory proceeding." 19 Also, which the requestor/petitioner intends to rely to support its position on the issue[.]

any contention that amounts to an attack on applicable statutory requirements 20 must be rejected by a licensing board as outside the scope of the proceeding.

The requirements of section 2.309(f)(1)(v) have been interpreted to require a A petitioner may, however, within the adjudicatory context submit a request for petitioner "to provide the analyses and expert opinion showing why its bases waiver of a rule under 10 C.F.R. § 2.335. Outside the adjudicatory context, one support its contention," 24 and to "provide documents or other factual information may also file a petition for rulemaking under 10 C.F.R. § 2.802, or a request that or expert opinion that set forth the necessary technical analysis to show why the the NRC Staff take enforcement action under 10 C.F.R. § 2.206.

proffered bases support its contention." 25 Mere " 'notice pleading' is insufficient

• under these standards. A petitioner's issue will be ruled inadmissible if the 10 C.F.R. § 2.309(f)(1)(iv) petitioner 'has offered no tangible information, no experts, no substantive affi-davits,' but instead only 'bare assertions and speculation.' "26 Further, a licensing With regard to the requirement now stated in section 2.309(f)(1)(iv), that a board "may not make factual inferences on [a] petitioner's behalf," or supply petitioner must "[d]emonstrate that the issue raised in the contention is material 21 information that is lacking, but must examine the information, alleged facts, and to the findings the NRC must make to support the action that is involved in the expert opinion proffered by the petitioner to confirm that it does indeed supply proceeding," the Commission has defined a "material" issue as meaning one in adequate support for the contention. 28 Any supporting material provided by a which "resolution of the dispute would make a difference in the outcome of the licensing proceeding." 21 This means that there must be some link between the claimed error or omission regarding the proposed licensing action and the NRC's (a) Actions have been identified and have been or will be taken with respect to the matters role in protecting public health and safety or the environment." The standards identified in paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance defining the "findings the NRC must make to support" a license renewal in this that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with proceeding are set forth at 10 C.F.R. § 54.29.23 this paragraph are in accord with the Act and the Commission's regulations. These matters are:

(1) managing the effects of aging during the period ofextended operation on the functionality 8 of structures and components that have been identified to require review under § 54.2 1 See Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-825, 22 NRC 785, 790-91 1(a)(1);

and (1985); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units I and 2),

(2) time-limited aging analyses that have been identified to require review under § 54 .21 (c).

ALAB-316, 3 NRC 1167,170-71 (1976); see also Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426-27 (1980); Commonwealth Edison Ca. (Carroll County Site). (b) Any applicable requirements of subpart A of 10 CFR part 51 have been satisfied.

2 (c) Any matters raised under § 2.335 have been addressed.

ALAB-601, 12 NRC 18, 24 (1980).

24 Georgia Insttute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia),

1910 C.F.R. §2.335(a). LBP-95-6, 2 41 NRC 281, 305, vacated in partand remanded on other grounds, CLIL95-10, 42 NRC 1, and OPhiladelphiaElectric Co. (Peach Bottom Atomic Power-Station, Units 2 and 3), ALAB-216, 8 aff d in part,CLI-95-12, 42 NRC 111 (1995),

AEC 13, 20 (1974).

2154 Fed. Reg. at 33,172. 25Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), LI.P-98-7, 47 NRC 22 142, 180, affd, CLI-98-13, 48 NRC 26 (1998).

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP 26 Fansteel,Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (quoting GPU 15, 60 NRC 81, 89 (2004), af'd, CLI-04-36, 60 NRC 631 (2004).

Nuclear, 27 Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

23 Section 54.29 provides: Georgia Tech, LBP-95-6, 41 NRC at 305 (citing Palo Verde, CLI-91-12, 34 NRC 149); Duke

§54.29 Standards for issuance of a renewed license.

• Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 A renewed license may be issued by the Cosmuission up to the full term authorized by NRC 403,422 (2001).

§ 54.31 if the Commission finds that: 28 Vermont Yankee NuclearPower Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 (Continued) NRC 29, 48 (1989), vacated in part on other groundsand remanded,CLI-90-4, 31 NRC 333 (1990).

354

petitioner, including portions of the material that are not relied upon, is subject to 10 C.FAR. § 2.309(f)(1)(Ai)

Board scrutiny. 9 It is the obligation of the petitioner to present the factual information or expert Finally, Petitioners must, as stated at 10 C.F.R. § 2 .309(f)(1)(vi), with each opinions necessary to support its contention adequately, and failure to do so contention:

requires that the contention be rejected. 30 A contention is not to be admitted "where an intervenor has no facts to support its position and where the intervenor [pirovide sufficient information to show that a genuine dispute exists with the contemplates using discovery or cross-examination as a fishing expedition which applicanti/icensee on a material issue of law or fact.

This information must might produce relevant supporting facts." 31As the Commissionhas explained: include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting It is surely legitimate for the Commission to screen out contentions of doubtful reasons for each dispute, or, if the petitioner believes that the application fails to worth and to avoid starting down the path toward a hearing at the behest of contain information on a relevant matter as required by law, the identification of Petitioners who themselves have no particular expertise - or expert assistance - each failure and the supporting reasons for the petitioner's belief.

and no particularized grievance, but are hoping something will turn up later as a result of NRC Staff work. 32 A petitioner must "read the pertinent portions of the license application, in-cluding the Safety Analysis Report and the Environmental Report, state the The Commission has also, however, explained that the requirement of sec- applicant's position and the petitioner's opposing view," and explain why it tion 2.309(f)(1)(v) "does not call upon the intervenor to make its case at [the disagrees with the applicant. " If a petitioner does not 3

believe these materials ad-contentioni stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention."' 33 A petitioner does not have to 3754 Fed. Reg. at 33,170; Millstone,CU-01-24.

provide a complete or final list of its experts or evidence or prove the merits of 54 NRC at 358. Also, under 10 C.F.R. §2.309(f)(2):

its contention at the admissibility stage. 34 And, as with a summary disposition Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety motion, the support for a contention may be viewed in a light that is favorable to analysis report, environmental report or other supporting document filed by an applicant or the petitioner - so long as the admissibility requirements are found to have been licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall met.35 The requirement "generally is fulfilled when the sponsor of an otherwise file contentions based on the applicant's environmental report. The petitioner may amend acceptable contention provides a brief recitation of the factors underlying the those contentions or file new contentions if there are data or conclusions in the NRC draft or contention or references to documents and texts that provide such reasons." 36 final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents.

Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that -

(i) The information upon which the amended or new contention is based was not previously 29 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90 (1996), available; rev'd 30 in part on other grounds, CLI-96-7, 43 NRC 235 (1996). (ii) The information upon which the amended or new contention Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235,262 (1996); is based is materially different than information previously available; and Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, (iii) The amended or new contention has been submitted in a timely fashion based on the 34 NRC 149, 155 (1991). availability of the subsequent information.

3154 Feg. Reg. at 33,171. Other portions of 10 C.F.R. §2.309 address late-filing and 32 other criteria for contentions and petitions Oconee, CLI-99-11, 49 NRC at 342. to intervene. Section 2.309(c) provides as follows:

33 54 Fed. Reg. at 33,170. (c) Nontimely filings. (1) Nontimely requests and/or petitions and contentions will not be 34 Louisiana Energy Services, L P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 entertained absent a determination by the Commission, the presiding (2004); Private Fuel Storage, LL.C. (Independent Spent Fuel Storage Installation); CLU-04-22, 60 Safety and Licensing Board designated to rule on the request and/or officer or the Atomic petition and contentions NRC 125, 139 (2004). that the request and/or petition should be granted and/or the 3 contentions should be admitted 5See Palo Verde, CLI-91-12, 34 NRC at 155; 10 C.F.R. § 2.710(c). based upon a balancing of the following factors to the extent that they apply to the particular 3654 Fed. Reg. at 33,170 (citing Texas UtilitiesElectricCo. (Comanche Peak Steam Electric Station, nontimely filing:

Unit 1), ALAB-868, 25 NRC 912, 930 (1987)). (i) Good cause, if any, for the failure to file on time, (Continued) 35-7

43 on their merits, not to avoid them on technicalities," it has also been observed merely that "a protestant does not become entitled to an evidentiary hearing dress a relevant issue, the petitioner is to "explain why the application is a dispute exists. The 38 on request, or on a bald or conclusory allegation that ...

deficient." material facts are in dispute, thereby In contrast to subparagraph (v) of section 2.309(f)(1),

which focuses on the protestant must make a minimal showing that need for some factual support for the contention, subparagraph (vi) requires that that I demonstrating that an 'inquiry in depth' is appropriate."44 Nonetheless, for a sufficient factual basis "do[l]

the strict not shift appropriate for litigation. contention A contention admissibility requirements there be a concrete and genuine dispute 45 the petitioner." Explaining taken by the applicant in the application the ultimate burden of proof from the applicant to does not directly controvert a position a the level of support necessary for an admissible contention, the Commission dismissal.9 For example, an allegation that some aspect of is subject to give rise to a observed in Yankee:

or "unacceptable" does not license application is "inadequate" statement of why by facts and a reasoned genuine dispute unless it is supported Nor [do the contention admissibility rules) require a petitioner to prove its case in some material respect.40 Similarly, an expert the application is unacceptable is 'deficient,' at the contention stage. For factual disputes, a petitioner need not proffer facts a conclusion (e.g., the application opinion that -"merely states a reasoned basis or explanation for in "formal affidavit or evidentiary form," sufficient "to withstand a susnnmary providing On the other hand, a petitioner "must present sufficient

'inadequate,' or 'wrong') without of its ability to make disposition motion." ...

it deprives the Board dispute" and reasonably "indicating that a further that conclusion is inadequate because the opinion.' "41 information to show a genuine 4

Z reflective assessment of inquiry is appropriate." 6 the necessary, an essential element Although it has been stated that "technical perfection is not is to decide issues of contention pleading,"

42 and that the "[s]ounder practice Scope of Petitioner's Reply Brief.

of the The Commission has indicated that, under the most recent revision to the of (ii) The nature of the requestor's/petitioter's right under the Act to be made a party contention admissibility rule, a petitioner that fails to satisfy the requirements submission may not use its reply proceeding, the admissibility standards in its initial contention 4 7 property, financial or other interest petitioner (iii) The nature and extent of the requestor's/petitoner's to rectify the inadequacies of its petition or to raise new arguments. A respond to and focus on any legal, logical, or factual arguments in the proceeding; proceeding on the re- may, however, order that may be entered in the of statements provided in an (iv) The possible effect of any presented in the answers, and the "amplification" 4 questor'sipetitioner's interest; interest will be *initial petition is legitimate and permissible. 1 whereby the requestor's/petitioner's (v) The availability of other means.

protected; interests will be represented by existing (vi) The extent to which the requestor's/petitioner's parties; the itssues or s/petittoner s participation will broaden (vii) The extent to which the requestor' 43 delay the proceeding; and may reasonably be South Texas, ALAB-549, 9 NRC at 649.

requestor's/petitioner's participation (viii) The. extent to which the 44ConnecticutBankers Ass'n v. Board of Governors, 627 F.2d 245, 251 (D.C. Cir. 1980); see 54 a sound record.

expected to assist in developing Fed. Reg. at 33,171.

CLI-91-12, 34 NRC at 156.

38 54 Fed. Reg. at 33,170; PaloVerde, 36 45 Yankee Atomic Electric Co. (Yankee Nuclear Power Station),

CLI-96-7, 43 NRC 235. 249 (1996)

Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 31See Texas (citing 54 Fed. Reg. at 33,171).

States Utilities Co. (River NRC 370, 384 (1992). Plant, Units 3 and 4), LBP 461d. (citing Georgia Tech, CLI-95-12, 42 NRC at 118); see also Gulf 40 See FloridaPower & Light Co. (Turkey Point Nuclear Generating Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994).

2 16, 31 NRC 509, 521 & n.1 (1990). 47 See Louisiana Energy Services, LP. (National Enrichment Facility), CLI-04-25, 60 NRC 223, (2006) (citation omitted)

Plant), CLI-06-10, 63 NRC 451, 472 69 Fed. Reg. 2182, 2203

'I USEC Inc. (American Centrifuge an unintelligible correspondence with 225 (2004) (quoting Final Rule: "Changes to the Adjudicatory Process,"

that quotations from arguments presented in the (affirming Licensing Board holding relate to an error or (Jan. 14, 2004) (reply must be "narrowly focused on the legal or logical or analysis of how the expert's statements LLC (Palisades Nuclear Plant),

purported expert, with no explanation a contention). applicant/licensee or NRC Staff answer")); NuclearManagement Co.,

to support note 5 supra.

omission in the application, are insufficient CLI-06-17, 63 NRC 727, 732 (2006). See text accompanying Fuel Storage Installation), LBP-01-3. 53 NRC Private Fuel Storage. LLC. (Independent Spent 42 60 NRC 40, 58, Louisiana Energy Services, LP. (National Enrichment Facility), LBP-04-14, 4m 2). ALAB-and Power Co. (South.Texas Project, Units 1 and 84, 99 (2001) (citing Houston Lighting that '[i]t is neither Congressional nor Commission aft'd, CLI-04-25, 60 NRC 223 (2004).

it is stated 549, 9 NRC 644, 649 (1979). in which imperfectly observed").

the niceties of pleading were policy to exclude parties because 1571 3&F

ATTACHMMENT 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Dale E. Klein, Chairman DOCKETED 01/22/07 Edward McGaffigan, Jr. SERVED 01/22/07 Jeffrey S. Merrifield Gregory B. Jaczko Peter B. Lyons In the Matter of ENTERGY NUCLEAR VERMONT YANKEE LLC Docket No. 50-271-LR and ENTERGY NUCLEAR OPERATIONS, INC. )

(Vermont Yankee Nuclear Power Station) )

In the Matter of )

ENTERGY NUCLEAR GENERATION COMPANY) and ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR (Pilgrim Nuclear Power Station) )

" )

CLI-07-03 MEMORANDUM AND ORDER Today we deny appeals by the Massachusetts Attorney General (Mass AG) and affirm two Atomic Safety and Licensing Board decisions rejecting his sole contention in two separate license renewal proceedings. The Mass AG proposed essentially identical contentions in the proceedings to renew the operating license at the Vermont Yankee Power Station in Windam County, Vermont 1 and the Pilgrim Nuclear Power Station in Plymouth, Massachusetts.2 The Mass AG's contention says that new information calls into question previous NRC findings on the environmental impacts of fires in spent fuel pools. The Mass AG contention challenges one LBP-06-20, 64 NRC 131 (2006).

2 LBP-06-23, 64 NRC _(2006).

2 of the findings in the Generic Environmental Impact Statement (GELS) for license renewal -

namely that storing spent fuel in pools for an additional 20 years would have insignificant environmental impacts. In each of the challenged decisions, the Licensing Board found the contention inadmissible. Both Boards found the GElS finding controlling absent a waiver 3 of the NRC's generic finding 4 or a successful petition for rulemaking. 5 We conclude that the Boards' interpretation of the law and regulations concerning generic, or "category one," environmental findings is consistent with Turkey Pointe and we affirm both rulings.

The Mass AG has in fact filed a petition for rulemaking raising the same issues as his contention. 7 As he in essence acknowledges, 8 the petition for rulemaking is a more appropriate avenue for resolving his generic concerns about spent fuel fires than a site-specific contention in an adjudication.

I. BACKGROUND A. Environmental Analysis for License Renewal in 1996, the Commission amended the environmental review requirements in 10 C.F.R. Part 51 to address the scope of environmental review for license renewal applications.' The 3 10 C.F.R. § 2.335.

4 See 10 C.F.R; § 51.53(c)(3)(i).

5 10 C.F.R. § 2.802.

6 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001).

7 See Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006), see 71 Fed. Reg. 64,169 (public notice).

8 See, e.g., Massachusetts Attorney General's Brief on Appeal of LBP-06-20 (Oct. 3, 2006), at 8 n.7, agreeing that the Mass AG's contention does not fit the criteria for a rule waiver.

See also Massachusetts' Petition for Rulemaking, at 18.

' Final Rule, "Environmental Review for Renewal of Nuclear Power Plant Operating Licenses," 61 Fed. Reg. 28,467 (1996).

3 regulations divide the license renewal environmental review into generic and plant-specific issues. The generic impacts of operating a plant for an additional 20 years that are common to all plants, or to a specific subgroup of plants, were addressed in a 1996 GElS."0 Those generic impacts analyzed in the GElS are designated "category one" issues. A license renewal 1

applicant is generally excused from. discussing category one issues in its environmental report.

Generic analysis is "clearly an appropriate method" of meeting the agency's statutory 12 obligations under NEPA.

The license renewal GElS determined that the environmental effects of storing spent fuel for an additional 20 years at the site of nuclear reactors would be "not significant."' 3 4 Because Accordingly, this finding was expressly incorporated into Part 51 of our regulations.

the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding."5 B. The Mass AG's Contention 10 See NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," Final Report, Vol 1 ("GEIS")(May 1996).

1110 C.F.R. §51.53(c)(3)(i).

12 See Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 87,101 (1984).

13 See NUREG-1427, at 6-72 to -75 ("even under the worst probable cause of a loss of spent-fuel pool coolant (a severe seismic-generated accident causing a catastrophic failure of the pool), the likelihood of a fuel-cladding fire is highly remote"), at 6-85 (in an high-density pool, "risks due to accidents and their environmental effects are found to be not significant").

14 See 10 C.F.R. Subpt. A, App. B, Table B-1 "Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants" ("The expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated on site with small environmental effects").

15 NRC regulations do not allow a contention to attack a regulation, unless the proponent requests a waiver from the Commission. 10 C.F.R. § 2.335(a), (b); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 364 (2001).

4 In both license renewal proceedings before us today, the Mass AG submitted a petition for intervention and request for hearing on a single contention challenging Entergy's'6 environmental report for. failing to include an analysis of the long-term environmental effects of storing spent fuel in high-density pools at the site. Specifically, the Mass AG cited studies issued subsequent to the GElS claiming that even a partial loss of water in the spent fuel pool could lead to a severe fire." The Mass AG argues that Entergy's failure to include the new information violated 10 C.F.R. § 51.53(c)(3)(iv)`8 and raises a litigable contention:

Significant new information now firmly establishes that (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, (c) the fire will propagate to other assemblies in the pool, and (d) the fire may be catastrophic.' 9 16 Entergy Nuclear Operations, Inc., together with Entergy Nuclear Generation Company, holds the operating license for the Pilgrim Nuclear Power Station. Entergy Nuclear Operations, Inc. and Entergy Vermont Yankee, LLC, hold the license for the Vermont Yankee Nuclear Power Station. In today's decision we refer to the license applicants collectively as "Entergy."

• 7 See 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); Dr. Gordon Thompson, Risks and Risk-Reducing Options Associated with Pool Storage of Spent NuclearFuel at the Pilgrim and Vermont Yankee NuclearPower Plants (May 25, 2006); Dr. Jan Beyea, Report to the MassachusettsAttorney General on the Potential Consequences of a Spent-Fuel Pool Fire at the Pilgrim or Vermont Yankee Nuclear Plant (May 25, 2006).

" In response to concerns raised by the Council on Environmental Quality and others that the NRC's generic approach in the license renewal GElS would not take into consideration new pertinent information on environmental impacts, the NRC adopted a rule, 10 C.F.R. § 51.53(c)(3)(iv), requiring a license renewal applicant to include "new and significant information" concerning environmental effects. This information would be included in the site specific supplemental EIS (SEIS) for each power plant which is issued as part of the license renewal application review.

'9 See Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006)

("VY Hearing Request") at 22; see also, Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Pilgrim Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006) ("Pilgrim Hearing Request").

5 The Mass AG argued, therefore, that Entergy should have discussed consequences and mitigation of severe accidents in spent fuel pools (including those initiated by terrorist acts). In support of its claim that possible terrorist attacks increase the probability of an accident, the Mass AG pointed to the recent Ninth Circuit decision in San Louis Obispo Mothers for Peace v.

NRC.2 " The Mass AG also claimed that NRC license renewal regulations require that the ER discuss severe accident mitigation alternatives for reducing the impact of a spent fuel accident, such as moving a portion of the fuel to dry storage to reduce density.21 The Mass AG also filed a petition for rulemaking to amend the applicable regulations.

The Mass AG's petition covers somewhat broader grounds than his contention. 2 It asks NRC to consider the new information on pool fire risks, "revoke the regulations that codify the incorrect conclusion" that the environmental impacts of spent fuel storage are insignificant,

.issue a generic determination that the impacts of high-density pool storage are significant, and "order that any NRC licensing decision that approves high-density pool storage of spent fuel" (presumably in either a license renewal proceeding or any other license amendment proceeding) be accompanied by an environmental impact statement that discusses alternatives to avoid or mitigate the impacts. It also asks that no final decision issue on the Vermont Yankee and Pilgrim license renewal proceedings until the rulemaking petition is resolved.2 3 II. DISCUSSION A. The Licensing Boards Correctly Found the Mass AG's Contention Not Admissible 20 449 F.3d 1016 (9!h Cir. 2006), cert. denied, No.06-466 (Jan. 16, 2007).

21 See VY Hearing Request at 23, citing 10 C.F.R. § 51.53(c)(3)(iii).

22 See Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006).

23 See Massachusetts Attorney General's rulemaking petition at 3.

6

1. Category One Findings Based on the GElS Analysis Not Subject to Attack in an Individual Licensing Proceeding Both Licensing Boards determined that this case is controlled by our ruling in the Turkey Point license renewal proceeding. In Turkey Point, a petitioner proposed to litigate the issue of the possible environmental effects of an accident involving stored fuel, including an accident resulting from an attack by the Cuban Air Force.24 The Commission agreed with the Board that this contention fell outside the scope of a license renewal proceeding, which focuses on those detrimental effects of aging that are not addressed as a matter of ongoing agency oversight and enforcement.2" Our Turkey Point decision outlined the opportunity and procedures for presenting new and significant information that could undermine the findings in the GELS, including asking for a rule waiver or filing a petition for rulemaking to change the GElS finding. 26 The Mass AG argues that Turkey Point is inapposite because, there, the petitioners did not argue that the license renewal applicant had violated the regulation requiring it to disclose "new and significant" information, whereas here the Mass AG does make that argument. 27 The Mass AG's argument that its "new and significant information" distinguishes this case from Turkey Point is not convincing in light of the regulatory history of the license renewal rulemaking, as explained by the Vermont Yankee Board.28 Fundamentally, any contention on a "category one" issue amounts to a challenge to our regulation that bars challenges to generic environmental findings. There are, however, procedural steps available to make such a challenge.. A rule can be waived in a particular 24 54 NRC at 5-6.

25 See id. at 7-8, 21-23.

26 See id. at 11-13.

27 Massachusetts Attorney General's Brief on Appeal of LBP-06-20, at 12, citing 10 C.F.R. § 51.53(c)(3)(iv); see note 17, supra.

28 See LBP-06-20, 64 NRC at 157-59.

7 license proceeding only where "special circumstances ... are such that the application of the rule or regulation ... would not serve the purposes for which the rule or regulation was adopted."2 9 In theory, Commission approval of a waiver could allow a contention on a category one issue to proceed where special circumstances exist.

Here, the Mass AG does not argue that unique or unusual characteristics of the Pilgrim and Vermont Yankee facilities undermine the GEIS's generic determinations, but instead argues that new information contradicts assumptions underlying the entire generic analysis for all spent fuel pools at all reactors, whether in a license renewal proceeding or not. It therefore appears that the Mass AG chose the appropriate way to challenge the GElS when he filed his rulemaking petition. The Mass AG's appeal, as well as his petition for rulemaking, appears to recognize as much.3" It makes more sense for the NRC to study whether, as a technical matter, the agency should modify its requirements relating to spent fuel storage for all plants across the board than to litigate in particular adjudications whether generic findings in the GElS are impeached by the Mass AG's claims of new information." Adjudicating category one issues site-by-site based merely on a claim of "new and significant information," would defeat the purpose of resolving generic issues in a GELS.

2. No Discussion of Severe Accident MitigationAlternatives Necessary for Category One The Boards were correct to disregard the Mass AG's argument that Entergy's environmental report was required to discuss severe accident mitigation alternatives such as 29 10 C.F.R. 2.335(b).

30 See e.g., Massachusetts Attorney General's Brief on Appeal of LBP-06-20, at 8. See also Petition for Rulemaking, at 18.

31 The Mass AG claims that the Ninth Circuit's decision in San Louis Obispo Mothers for Peace v. NRC requires admitting its spent fuel contention. But that decision - which calls on NRC to consider the environmental effects of terrorist attacks when licensing nuclear facilities -

is also raised in the Mass AG's rulemaking petition and can be considered in that context. The Ninth Circuit decision nowhere says or implies that the NRC cannot consider spent fuel pool or other environmental issues generically.

8 reducing the density of fuel in the pool by moving some of it to dry storage.32 The Commission held in Turkey Point that no discussion of mitigation alternatives is needed in a license renewal application for a category one issue.3 3 This makes obvious sense since 'for all issues designated as category one the Commission has concluded that [generically] that additional site-specific mitigation alternatives are unlikely to be beneficial.'"34 Both Boards found that license renewal applicants need only to discuss such alternatives with respect to "category two" issues (that is, environmental issues not generically resolved in the GELS).

As we explained in Turkey Point, it is not necessary to discuss mitigation alternatives when the GElS has already determined that, due to existing regulatory requirements, the probability of a spent fuel pool accident causing significant harm is remote. 35 The Mass AG's rulemaking petition, of course, has challenged the GElS determination. If the NRC should find the Mass AG's concerns well-founded, then one result might be that the GElS designation is changed and a discussion of mitigation alternatives required. Another result might be that mitigation measures already put in place as a result of NRC's post 9/11 security review could be generically determined to be adequate and consistent with the existing GElS designation.

B. Effect of Rulemaking Petition The NRC posted a notice of receipt of the Mass AG's rulemaking petition on November 1, 2006, and has requested public comments by March 19, 2007.36 After considering the 32 See LBP-06-20, 64 NRC at 161, LBP-06-23, slip op. at 31, 33-38.

13 See Turkey Point, CLI-01-17, 54 NRC at 21-22.

14 Id. at 22.

35 See license renewal GElS at 6-86 ("The need for the consideration of mitigation alternatives within the context of renewal of a power reactor license has been considered, and the Commission concludes that its regulatory requirements already in place provide adequate mitigation incentives for on-site storage of spent fuel"); see also 6-91.

36 71 Fed. Reg. 64,169; deadline for public comments extended to March 19, 2007, see 72 Fed. Reg. 24 (Jan. 19, 2007).

9 petition and public comments, the NRC will make a decision on whether to deny the petition or proceed to make necessary revisions to the GElS. The license renewal proceeding is not suspended during this period." Nonetheless, depending on the timing and outcome of the NRC staffs resolution of the Mass AG's rulemaking petition, it is possible that the NRC staff could seek the Commission's permission to suspend the generic determination and include a new analysis in the Pilgrim and Vermont Yankee plant-specific environmental impact statements.

This approach is described in the statement of consideration for our license renewal regulations, where the Commission noted:

b. If a commenter provides new information which is relevant to the plant and is also relevant to other plants (i.e., generic information) and that information demonstrates that the analysis of an impact codified in the final rule is incorrect, the NRC staff will seek Commission approval to either suspend the application of the rule on a generic basis with respect to the analysis or delay granting the renewal application (and possibly other renewal applications) until the analysis in the GElS is updated and the rule amended. If the rule is suspended for the analysis, each supplemental EIS would reflect the corrected analysis until such time as the rule is amended. 38 The Commission, in short, has in place various procedures for considering new and significant environmental information. Thus, whatever the ultimate fate ýof the Mass AG's "new information" claim, admitting the Mass AG's contention for an adjudicatory hearing is not necessary to ensure that the claim receives a full and fair airing.

Ill. CONCLUSION 37 The Mass AG's rulemaking petition (at p. 3) asked the NRC to withhold final decisions in the Vermont Yankee and Pilgrim license renewal proceedings until the rulemaking petition is resolved. But final decisions in those proceedings are not expected for another year or more.

Those proceedings involve many issues unrelated to the Mass AG's rulemaking petition. It is therefore premature to consider suspending proceedings or delaying final decisions. NRC regulations provide that a petitioner who has filed a petition for rulemaking "may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking." 10 C.F.R. § 2.802. An interested governmental entity participating under 10 C.F.R. § 2.315 could also make this request.

38 Statement of Consideration, Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467; 28,472 (June 5, 1996).

10 We find that the Licensing Boards were correct to reject the Mass AG's sole contention in the two cases, and therefore affirm the Boards' decisions.

IT IS SO ORDERED.

For the Commission IRA!

ANNETTE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, MD This 2 2nd day of January, 2007

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

ENTERGY NUCLEAR VERMONT YANKEE )

and ) Docket No. 50-271-LR

)

ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Vermont Yankee Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that~copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-07-03) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, and NRC internal mail.

Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 E-mail: ocaamailanrc.qov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc..ov Administrative Judge Administrative Judge Richard E. Wardwell Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: eleman(,,eos.ncsu.edu E-mail: rew(,nrc.qov Mitzi A. Young, Esq. Ronald A. Shems, Esq..

Steven C. Hamrick, Esq. Karen Tyler, Esq.

David E. Roth, Esq. Shems Dunkiel Kassel & Saunders, PLLC Office of the General Counsel 91 College Street Mail Stop 15 D21 Burlington, VT 05401 U.S. Nuclear Regulatory Commission E-mail: rshemsasdkslaw.com; Washington, DC 20555-0001 ktvlerasdkslaw.com E-mail: mayvnrc.qov: schlnrc.ciov:

deranrc.pqov

2 Docket No. 50-271-LR COMMISSION MEMORANDUM AND ORDER (CLI-07-03)

Sarah Hofmann, Esq. Anthony Z. Roisman, Esq.

Director for Public Advocacy National Legal Scholars Law Firm Department of Public Service 84 East Thetford Rd.

112 State Street - Drawer 20 Lyme, NH 03768 Montpelier, VT 05620-2601 E-mail: aroisman nationallecq alscholars.com E-mail: sarah.hofmann(cstate.vt.us Matthew Brock, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon, Curran, Spielberg, Office of the Massachusetts Attorney General & Eisenberg, L.L.P.

Environmental Protection Division 1726 M Street, NW, Suite 600 One Ashburton Place, Room 1813 Washington, DC 20036 Boston, MA 02108-1598 E-mail: dcurran(nharmoncurran.com E-mail: matthew. brock(&acqo.state.ma.us Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Town of Marlboro P.O. Box 30 SelectBoard Marlboro, VT 05344 P.O. Box 518 E-mail: dmacarthur(&iqc.orq Marlboro, VT 05344 E-mail: cbnewton(.sover.net David R. Lewis, Esq. Jennifer J. Patterson, Esq.

Matias F. Travieso-Diaz, Esq. Office, of the New Hampshire Pillsbury Winthrop Shaw Pittman LLP Attorney General 2300 N Street, NW 33 Capitol Street Washington, DC 20037-1128 Concord, NH 03301 E-mail: david.lewispDillsburylaw.com: E-mail: ien nifer.pattersontdoi.nh.qov matias.travieso-diaz(apillsbu rylaw.com

[Original signed by Adria T. Byrdsonal Office of the Secretary of the Commission Dated at Rockville, Maryland, this 2 2 nd day of January 2007

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

)

ENTERGY NUCLEAR OPERATIONS, INC. Docket No. 50-293-LR

)

(Pilgrim Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-07-03) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, and NRC internal mail.

Office of Commission Appellate Administrative Judge Adjudication Ann Marshall Young, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 E-mail: ocaamailD~nrc.pov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: AMY(nrc.gov Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: RFC1lanrc.gov E-mail: pbapnrc..ov Susan L. Uttal, Esq. Diane Curran, Esq.

Marian L. Zobler, Esq. Harmon Curran, Spielberg & Eisenberg, L.L.P.

Molly L. Barkman, Esq. 1726 M. Street N. W., Suite 600 Office of the General Counsel Washington, D.C. 20036 Mail Stop 15 D21 E-mail: dcurran(@harmoncurran.com U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: slu(cnrc.cov E-mail: mlzcnrc.qov E-mail: mlb9(@nrc.qov E-mail: OGCMailCenterdnrc.qov

2 Docket No. 50-293-LR COMMISSION MEMORANDUM AND ORDER (CLI-07-03)

Matthew Brock, Assistant Attorney General Terence A. Burke, Esq.

Environmental Protection Division Entergy Nuclear Office of the Attorney General 1340 Echelon Parkway One Ashburton Place Mail Stop M-ECH-62 Boston, MA 02108 Jackson, MS 39213 E-mail: matthew.brocktca-qo.state.ma.us E-mail: tburkea-entergy.com Molly H. Bartlett, Esq. David R. Lewis, Esq.

52 Crooked Lane Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury Winthrop Shaw Pittman LLP E-mail: mollvhbartlett(Dhotmail.com 2300 N Street, N.W.

Washington, DC 20037-1128 E-mail: david.lewis(pillsburylaw.com; paul..qaukler*,pillsburylaw.com Mary E. Lampert, Sheila Slocum Hollis, Esq.

Director of Pilgrim Watch Town of Plymouth MA 148 Washington Street Duane Morris, LLP Duxbury, MA 02332 1667 K. Street, N.W.

E&-mail: lampertaadelphia.net Suite 700 Washington, D.C. 20006 E-mail: sshollis duanemorris.com Mark D. Sylvia Town Manager Town Manager's Office 11 Lincoln Street Plymouth, MA 02360 E-mail: msylvia(5~townhall. plymouth. ma. us

[Original signed by Adria T. Byrdsongl Office of the Secretary of the Commission Dated at Rockville, Maryland this 2 2nd day of January 2007