ML111220307
| ML111220307 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/02/2011 |
| From: | Brock M State of MA, Dept of Environmental Protection, State of MA, Office of the Attorney General |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 20075, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML111220307 (14) | |
Text
UNITED STATES OF AMERICA U.S. NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. ) May 2, 2011 (Pilgrim Nuclear Power Station) )
COMMONWEALTH OF MASSACHUSETTS RESPONSE TO COMMISSION ORDER REGARDING LESSONS LEARNED FROM THE FUKUSHIMA DAIICHI NUCLEAR POWER STATION ACCIDENT, JOINDER IN PETITION TO SUSPEND THE LICENSE RENEWAL PROCEEDING FOR THE PILGRIM NUCLEAR POWER PLANT, AND REQUEST FOR ADDITIONAL RELIEF I. Introduction Between April 14 and 18, 2011, various public interest groups (Petitioners) requested the Nuclear Regulatory Commission (NRC or Commission) to suspend adjudicatory, licensing, and rulemaking activities in more than twenty (20) nuclear power proceedings across the country, including the license renewal proceeding for the Pilgrim nuclear power plant located in Plymouth, Massachusetts (Petition).1 In part, the Petitioners also requested the Commission to exercise its supervisory jurisdiction over License Renewals to ensure the consideration in those proceedings of new and significant information regarding the safety and environmental implications of the ongoing catastrophic radiological accident at the Fukushima Daiichi Nuclear 1
Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (April 14 - 18, 2011)(Petition). NRC Adams Number ML111040355; Corrected Petition ML111091154 (filed in the Pilgrim Relicensing Proceeding April 18, 2011).
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Power Station2 On April 19, 2011, the Commission issued an order inviting answers or amicus curiae responsive to the petition (Order).3 The Commonwealth of Massachusetts (Commonwealth) hereby responds to the Commissions Order.
Pursuant to 10 C.F.R. § 2.315(c), the Atomic Safety and Licensing Board (Pilgrim ASLB) previously admitted the Commonwealth to participate as an Interested State in the relicensing proceeding for the Pilgrim Nuclear Power Plant.4 In 2006, the Commonwealth filed a contention with the Pilgrim ASLB, and subsequently a request for rulemaking with the Commission, supported by expert testimony, asserting that new and significant information demonstrates that an accident involving the spent fuel pool (SFP) at Pilgrim presents a significant risk to public safety and the environment, that the NRC had miscalculated and underestimated the risk of SFP accidents at Pilgrim and other plants, and that in accordance with the National Environmental Policy Act and the Atomic Energy Act, the NRC needed to revise its regulations and practices accordingly to address these significant risks.5 However, the NRC refused to do so, and denied the Commonwealths Rulemaking Petition, relying in primary part on secret studies (Sandia Studies) performed by the NRC which it claimed showed that the risks of spent fuel pool accidents are insignificant.6 The Fukushima disaster involving spent fuel pool accidents at multiple units is consistent with the SFP risks and accident scenarios that the Commonwealth raised with the NRC five 2
Petition at 1.
3 Scheduling Order of the Secretary Regarding Petitions to Suspend Adjudicatory, Licensing and Rulemaking Activities (April 19, 2011). Adams Number ML111091156.
4 Commission Order CLI-08-09, fn. 13 ML081370198; Commonwealth of Massachusetts Notice of Intent to Participate As An Interested State (May 6, 2008)(ML081500531 in Pilgrim proceeding); see also Commonwealth of Massachusetts v. United States Nuclear Regulatory Commission, 522 F.3d 115, 128 (First Cir. 2008).
5 National Environmental Policy Act of 1969, 42 U.S.C. § 4321(NEPA); Atomic Energy Act of 1954, 42 U.S.C. § 2011 (AEA).
6 73 Fed. Reg. 46204 (August 8, 2008).
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years ago and indicates that the NRCs rulemaking denial was erroneous. The NRC incorrectly characterized the risk of SFP accidents as insignificant, improperly relied upon mitigation measures that appear inadequate to address these SFP risks, and gave undue weight to the agencys flawed secret studies to support the rulemaking denial and to reject the Commonwealths new and significant information.
Consistent with the Commonwealths past position set forth in the Pilgrim relicensing proceeding, and its Interested State status, and in light of the confirming new facts that continue to come forth from the Fukushima investigation, the Commonwealth hereby joins in the Petitioners request to suspend the Pilgrim relicensing proceeding until the NRC completes its review of the Fukushima disaster with respect to the SFP accidents, risks, and current NRC practices and regulations on these and related issues. Moreover, as required by NEPA and the AEA, the NRC is legally obligated to consider this new and significant information arising from the Fukushima accident prior to reaching a final decision on relicensing the Pilgrim plant. Infra.
The Commonwealth also requests the Commission to provide the Commonwealth an additional thirty days to submit further expert support for its request for suspension of the Pilgrim relicensing proceeding and, following that submittal, requests the NRC to consider the new and significant information arising from the Fukushima accident, including the Commonwealths filings, before deciding whether to grant a license extension for the Pilgrim plant for an additional twenty years.
Finally, the Commonwealth requests the Commission to withhold making a final decision on the Pilgrim relicensing -- which may be imminent -- and to direct the Pilgrim ASLB as appropriate to do so, until the Commission considers this new and significant information as required by NEPA and the AEA.
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II. Background A. The Massachusetts Attorney General Previously Raised the Risks of a Fukushima-like accident at the Pilgrim Nuclear Power Plant On May 26, 2006, the Massachusetts Attorney General submitted a hearing request and a contention in the license renewal proceedings for the Pilgrim nuclear power plant.7 The Attorney Generals contention challenged the adequacy of the plant owners Environmental Report (ER) to comply with NEPA's requirement that it address significant new information bearing on the environmental impacts of operating the nuclear power plant for an additional twenty years as follows:
The Pilgrim ER does not satisfy the requirements of 10 C.F.R. § 51.53(c)(3)(iv) and NEPA, 42 U.S.C. § 4332 et seq., because it fails to 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. Although an NRC-sponsored study conducted as early as 1979 raised the potential for a severe accident in a high-density fuel storage pool if water is partially lost from the pool (NUREG/CR-0649, Spent Fuel Heatup Following Loss of Water During Storage (March 1979) ("1979 Sandia Report")), the NRC has failed to take that risk into account in every EIS it has prepared, including the 1979 GElS on the environmental impacts of fuel storage; the 1990 Waste Confidence rulemaking (Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38,474, - 38,481 (September 18, 1990) ("1990 Waste Confidence Rulemaking")); and the 1996 License Renewal GElS on which the Pilgrim license renewal application relies. Moreover, the environmental impacts of a pool accident were not considered in the 1972 EIS issued in support of the original operating license for the Pilgrim nuclear power plant (Final Environmental Statement Related to Operation of Pilgrim Nuclear Power Station, Boston Edison Company, Docket No. 50-293 (May 1972) ("1972 Pilgrim EIS")).
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 (c) the fire may be 7
Massachusetts Attorney Generals Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operation 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. ML061640065. (Pilgrim Contention) 4
catastrophic. See Thompson Report and Beyea Report. This new information has also been confirmed by the NRC Staff in NUREG-1738, Final Technical Study of Spent Fuel Pool Accident Risk and Decommissioning Nuclear Power Plants (January 2001) (NUREG-1738), and by the National Academies of Sciences.
See NAS Committee on the Safety and Security of Commercial Spent Nuclear Fuel Storage, Safety and Security of Commercial Spent Nuclear Fuel Storage at 53-54 (The National Academies Press: 2006) (NAS Report").
Moreover, significant new information, including the attacks of September 11, 2001 and the NRC's response to those attacks, shows that the environmental impacts of intentional destructive acts against the Pilgrim fuel pool are reasonably foreseeable. Taken together, the potential for severe pool accidents caused by intentional malicious acts and by equipment failures and natural disasters such as earthquakes is not only reasonably foreseeable, but is likely enough to qualify as a "design-basis accident," i.e., an accident that must be designed against under NRC safety regulations. Thompson Report, §§ 6,7,9.
The ER also fails to satisfy 10 C.F.R. § 51.53(c)(3)(iii) because it does not consider reasonable alternatives for avoiding or reducing the environmental impacts of a severe spent fuel accident, i.e., SAMAs. Alternatives that should be considered include re-racking the fuel pool with low-density fuel storage racks and transferring a portion of the fuel to dry storage.8 The Attorney Generals contention was supported by the expert declarations and reports of Drs. Gordon Thompson and Jan Beyea regarding the likelihood and consequences of spent fuel pool accidents at the Pilgrim nuclear power plant.9 The NRC determined that the Commonwealths contention raised a generic issue, so the Commonwealth filed its contention as an alternative request for rulemaking with the Commission.10 However, based in primary part on studies which the NRC declined to make public, see 73 Fed. Reg. 46207 n. 6, the NRC concluded that the Commonwealths petition did 8
Pilgrim Contention at 21-23 (footnote omitted).
9 See Gordon Thompson, Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants (May 25, 2006)
(Thompson Report, Attachment 1, hereto); Jan Beyea, Report to the Massachusetts Attorney General on the Potential Consequences of a Spent-fuel Pool Fire at the Pilgrim or Vermont Yankee Nuclear Plant (May 25, 2006) (Beyea Report, Attachment 2, hereto).
10 The NRC published a notice of receipt and request for public comment in the Federal Register on November 1, 2006 (71 FR 64169). Massachusetts Attorney Generals Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006) ML062640409 (Attachment 3).
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not present new and significant information, id. at 46208, and that the risks of SFP accidents present very low risk. Id. at 46207.11 B. The Fukushima Accident Involving Spent Fuel Pools Appears Consistent with the Accident Scenarios and Risks Raised by the Massachusetts Petition for Rulemaking and Previously Rejected by the Commission as Improbable.
Although many details about the Fukushima reactor accident remain under investigation, the NRC Information Notice No. 2011-08 (March 31, 2011)12 describes the basic facts as follows:
On March 11, 2011, the Tohoku-Taiheiyou-Oki earthquake occurred near the east coast of Honshu, Japan. This magnitude 9.0 earthquake and the subsequent tsunami caused significant damage to at least four of the six units of the Fukushima Daiichi nuclear power station as the result of a sustained loss of both the offsite and onsite power systems. Efforts to restore power to emergency equipment were hampered and impeded by damage to the surrounding areas due to the tsunami and earthquake.
Units 1, 2 and 3 were operating at the time of the earthquake. Following the loss of electric power to normal and emergency core cooling systems and the subsequent failure of backup decay heat removal systems, water injection into the cores of all three reactors was compromised, and reactor decay heat removal could not be maintained. The operator of the plant, Tokyo Electric Power Company, injected sea water and boric acid into the reactor vessels of these three units in an effort to cool the fuel and ensure that the reactors remained shut down.
However, the fuel in the reactor cores became partially uncovered. Hydrogen gas built up in Units 1 and 3 as a result of exposed, overheated fuel reacting with water. Following gas venting from the primary containment to relieve pressure, hydrogen explosions occurred in both units and damaged the secondary containments.
Units 3 and 4 were reported to have low spent fuel pool (SFP) water levels.
Fukushima Daiichi Units 4, 5 and 6 were shut down for refueling outages at the time of the earthquake. The fuel assemblies for Unit 4 had recently been offloaded from the reactor core to the SFP. The SFPs for Units 5 and 6 appear to be intact. Emergency power is available to provide cooling water flow through the SFPs for Units 5 and 6.
11 Attachment 4.
12 NRC ADAMS Accession No. ML110830824, available at http://pbadupws.nrc.gov/docs/ML1108/ML110830824.pdf.
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Subsequently, the Chairman of the NRC indicated that the explosions in the secondary containments might have been caused by hydrogen created in the spent fuel pools within those secondary containments.13 This suggests that it may be safer to move some of the spent fuel out of the pools and into dry storage, id., a position previously offered by the Commonwealth in its Petition for Rulemaking. The Japanese government has raised the severity rating of the Fukushima accident to 7, which is the highest possible rating and equivalent to the rating given to the Chernobyl accident.14 C. The NRCs Formation of a Task Force to Investigate the Fukushima Accident and its Relevance to NRC Licensing Practices Indicates that the NRC Recognizes that the Basis for its Prior Position on the Low Risk of Accidents Involving Spent Fuel Pools May Not Be Supportable and Should be Reinvestigated and Reconsidered in its Relicensing Process The NRCs preliminary findings (above) on Fukushima suggest that the lessons of Fukushima may present new and significant information that, consistent with NEPA, must be considered by the NRC prior to a decision on the Pilgrim relicensing. The NRCs establishment of a Task Force to investigate the lessons of Fukushima similarly supports this.
The Task Force charter states that the group's objective is to:
x Evaluate currently available technical and operational information from the events that has occurred at the Fukushima Daiichi nuclear complex in Japan to identify potential or preliminary near-term/immediate operational or regulatory actions affecting domestic reactors of all designs, including their spent fuel pools. The task force will evaluate, at a minimum, the following technical issues and determine priority for further examination and potential agency action:
x External event issues (e.g. seismic, flooding, fires, severe weather) x Station blackout 13 Matthew W. Wald, Japans Reactors Still Not Stable, U.S. Regulator Says, N.Y. TIMES, April 12, 2011.
14 Keith Bradsher, Hiroko Tabuchi, and Andrew Pollack, Japanese Officials on Defensive as Nuclear Alert Level Rises, N.Y. TIMES, April 12, 2011, available at http://www.nytimes.com/2011/04/13/world/asia/13japan.html.
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x Severe accident measures (e.g., combustible gas control, emergency operating procedures, severe accident management guidelines) x Each licensee shall develop and implement guidance and strategies intended to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities under the circumstances associated with loss of large areas of the plant due to explosions or fire, to include strategies in the following areas: (i)
Fire fighting; (ii) Operations to mitigate fuel damage; and (iii) Actions to minimize radiological release.
x Emergency preparedness (e.g., emergency communications, radiological x protection, emergency planning zones, dose projections and modeling, protective actions) x Develop recommendations, as appropriate, for potential changes to NRC's regulatory requirements, programs, and processes, and recommend whether generic communications, orders, or other regulatory actions are needed.
Petition at 19 - 21.
Therefore, the mission of the NRCs Task Force is, in part, to investigate SFP accident scenarios and mitigation measures to address those SFP risks - issues that the NRC deemed unworthy of further study in its denial of the Commonwealths Rulemaking Petition. The Task Force also is to make recommendations on regulatory changes to NRC practices and policies in light of Fukushima - again matters which the NRC determined in its Rulemaking denial were unnecessary with respect to the Commonwealths SFP concerns.
III. The National Environmental Policy Act Requires the NRC to Consider New and Significant Information In it Relicensing Decisions.
A. NEPA review must be completed before taking major federal action The National Environmental Policy Act is the basic national charter for protection of the environment. 40 C.F.R . § 1500.1(a). Its fundamental purpose is to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. 40 C.F.R. § 1500.1(c).
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NEPAs procedures are time sensitive and require an agency to consider the environmental impacts before decisions are made and before actions are taken, 40 C.F.R. § 1500.1(b) (emphasis added), in order to ensure that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Whether an agency addresses NEPAs requirements through individual licensing proceedings or generic rulemaking can be determined by an agency. Baltimore Gas and Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 100 (1983). However, NEPA requires that, whether the process adopted by the agency is generic rulemaking or case specific, the agency must consider the environmental impacts of its decisions before taking the action in the particular proceeding. The key requirement of NEPA . . . is that the agency consider and disclose the actual environmental effects in a manner that will ensure that the overall process, including both the generic rulemaking and the individual proceedings, brings those effects to bear on decisions to take particular actions that significantly affect the environment. Id. at 96.
B. NEPA requires preparation of an environmental impact statement The primary method by which NEPA ensures that its mandate is met is the action-forcing requirement for preparation of an Environmental Impact Statement (EIS), which assesses the environmental impacts of the proposed action and weighs the costs and benefits of alternative actions. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-71 (1989).
An EIS must be searching and rigorous, providing a hard look at the environmental consequences of the agencys proposed action. Marsh, 490 U.S. at 374. Not surprisingly, licensing [of a nuclear power station] is a major Federal action subject to NEPA. Natural Resources Defense Council, Inc. v. NRC, 547 F.2d 633, 638 (D.C. Cir. 1976), revd on other 9
grounds; Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) (Natural Resources Defense Council I). To comply with NEPA in the context of a nuclear licensing proceeding, the environmental impacts that must be considered in an EIS include reasonably foreseeable impacts which have catastrophic consequences, even if their probability of occurrence is low. 40 C.F.R. § 1502.22(b)(1).
C. NEPA requires supplementation of EISs to address New and Significant Information The completion of an EIS for a proposed action does not end an agencys responsibility to weigh the environmental impacts of a proposed action. Marsh, 490 U.S. at 371-72. As the Supreme Court recognized in Marsh, it would be incongruous with NEPAs action forcing purpose to allow an agency to put on blinders to adverse environmental effects, just because the EIS has been completed. Id. Accordingly, up until the point when the agency is ready to take the proposed action, it must supplement the EIS to consider new information showing that the remaining federal action may affect the quality of the human environment in a significant manner or to a significant extent not already considered. Id. at 374.
Therefore, whether the NRC elects to consider the lessons of Fukushima and this new and significant information arising from the accident, in a generic rulemaking process or in individual relicensing proceedings, NEPA mandates that the NRC give this information a hard look prior to deciding whether to relicense the Pilgrim plant.
IV. The New and Significant Information Arising from the Fukushima Accident Should Be Considered by the NRC Before it Decides Whether to Relicense the Pilgrim Nuclear Power Plant.
Although the lessons of Fukushima continue to emerge, there is now sufficient information available from the investigation, and the NRCs own response to those events, to indicate that 1) according to the Petitioners expert supporting the pending Petition, the NRCs 10
Rulemaking denial of the Commonwealths Rulemaking petition was flawed, and the NRCs findings with respect to SFP risks which should be revisited; 2) the NRCs stated basis to deny the Commonwealths Rulemaking Petition on SFP Risks apparently relied upon incorrect assumptions and studies that did not fully account for the events at Fukushima; and 3) the NRC, by its own conduct in establishing a Task Force to revisit these SFP risk issues and regulatory practices, itself suggests that Fukushima presents sufficient new and significant information not previously given due consideration by the NRC in its licensing decisions. Collectively, and consistent with NEPA, these facts and opinions indicate that the NRC should consider the lessons of Fukushima in the Pilgrim relicensing process before deciding whether to relicense the Pilgrim plant for an additional twenty years. Baltimore Gas, supra, at 96.15 More specifically, the expert declaration filed with the current Petition provides a prima facie case to require NEPA review of the Fukushima lessons prior to relicensing the Pilgrim plant.
- 21. The apparent occurrence of spent fuel pool accidents at Fukushima significantly undermines the NRCs conclusion that high-density pool storage of spent fuel poses a very low risk. The Attorney General of Commonwealth of Massachusetts; the Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204, 46,207 (August 8, 2008). That conclusion is all the more subject to question in light of the fact that spent fuel in U.S. pools is typically packed more tightly than in the pools at Fukushima. U.S. reactors, including reactors 7 that are candidates for license renewal, use high-density pool storage for spent fuel. Fukushima indicates that the NRC policy that allows such storage needs to be revisited. Given that onsite storage of spent fuel may continue for decades, these circumstances also call for a thorough reexamination of the spent fuel storage capacity, spent fuel pool location, and configuration of new 15 The Commonwealth is continuing to investigate these events and cannot, like the NRC, provide a definitive view on the significance of the Fukushima accident at this time. However, the Commonwealth expects to provide additional expert support for its request for the suspension of the Pilgrim relicensing decision, and more directly to link the Fukushima events to the concerns previously raised by the Commonwealth in its petition for rulemaking, but requires a reasonable time (30 days) to provide its initial findings, in view of the ongoing investigation involving Fukushima and the need to consider these emerging facts in its analysis.
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reactor designs. For instance, should the construction and use of above ground-level spent fuel pools in reactor buildings be allowed, as is the case with the advanced boiling water reactor (ABWR)? The NRC should examine the potentially exacerbating relationship between reactor core accidents and spent fuel pool accidents, for both existing reactor designs and new reactor designs. In addition, environmental impact statements (EISs) for license renewal and new reactor licensing should reexamine the relative costs and benefits of measures to mitigate the environmental impacts of pool fires and/or explosions. Measures would include reducing the density at which fuel is stored in pools, using dry storage for as much of each reactors inventory of spent fuel as safety will allow, and dry storage of all spent fuel at closed reactors, a few years after closure.16 Similarly, in its Rulemaking denial, the NRC stated:
- Risk is defined as the probability of the occurrence of a given event multiplied by the consequences of that event. 73 Fed Reg 46207.
- Although it is possible that once a spent fuel assembly ignites, the zirconium fire can propagate to other assemblies in the SFP, the NRC has determined (as explained previously) that the risk of an SFP zirconium fire initiation is very low. 73 Fed Reg 46209.
- The Sandia studies indicated that there may be a significant amount of time between the initiating event (i.e. the event that causes the SFP water level to drop) and the spent fuel assemblies becoming partially or completely uncovered. In addition, the Sandia studies indicated that for those hypothetical conditions where air cooling may not be effective in preventing a zirconium fire (i.e.. the partial drain down scenario cited by the Petitioners), there is a significant amount of time between the spent fuel becoming uncovered and the possible onset of such a zirconium fire, thereby providing a substantial opportunity for both operator and system event mitigation. 73 Fed Reg 46208.
However, the NRCs assumption that, for example, there will be a significant amount of time following the exposure of the spent fuel to remedy the situation prior to the onset of fire or other accident conditions, and its undue reliance upon mitigation measures to do so, appears inconsistent with the SFP accidents or explosions at Fukushima. CF. ¶ 21, expert declaration, quoted supra; see also Commonwealth of Massachusetts v. U.S. Nuclear Regulatory Commission, 522 F.3d 115 (1st Cir. 2008).
Finally, if the NRC continued to have confidence in the grounds for its Rulemaking 16 Declaration of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (April 19, 2011)
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denial, it would not have a Task Force charged to revisit and review these same SFP issues.
Therefore, because the NRC has not yet made the decision to relicense the Pilgrim plant, it should first consider the lessons of Fukushima because the remaining federal action [relicensing]
may affect the quality of the human environment in a significant manner or to a significant extent not already considered. Marsh, 490 U.S. at 374.17 VII. Conclusion The Commonwealth of Massachusetts respectfully requests the Commission to:
A. Suspend the Pilgrim relicensing proceeding, and direct as appropriate the Pilgrim ASLB not to issue a final relicensing decision, pending consideration by the Commission of the new and significant information on SFP and related risks and regulatory requirements raised by the Fukushima accident; B. Grant the Commonwealth an additional thirty days, until June 2, 2011, to submit expert testimony in support of this request for relicensing suspension, and to consider the Commonwealths filings prior to a decision to relicense Pilgrim18; and 17 The Atomic Energy Act (AEA) also bars the NRC from relicensing Pilgrim if it would pose an undue risk to the public health and safety or the common security. 42 U.S.C. § 2311. Until the NRC completes its review of Fukushima, it would be inconsistent with the AEA and arbitrary and capricious to render a final decision on relicensing.
18 At the same time the expert testimony is submitted, the Commonwealth also will submit a petition for rulemaking or an alternative waiver petition requesting the Commission to comply with NEPA by addressing the SFP and other Fukushima-related issues in the Pilgrim relicensing proceeding either on a generic basis (as the Commission did before), or on a site specific basis, if further review of Fukushima may support that approach. However, regardless of how the Commission elects to address these issues for the Pilgrim plant, NEPA requires that it do so in the context of the Pilgrim relicensing proceeding and ensure that this new and significant information is considered by the agency prior to a final decision on whether to relicense Pilgrim for an additional twenty years. Baltimore Gas, supra., at 96.; see also Commonwealth of Massachusetts v. U.S. Nuclear Regulatory Commission, supra (NRC must first comply with NEPA prior to relicensing).
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C. Grant the Commonwealth and the public an additional reasonable time following completion of the release of the NRCs own findings on the lessons of Fukushima to comment on them and propose licensing or regulatory changes as appropriate.19 Respectfully submitted,
/s Matthew Brock Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 Tel: (617) 727-2200 Fax: (617) 727-9665 matthew.brock@state.ma.us 19 Simultaneously with this filing of the Commonwealths Response to the Commission, the Commonwealth is filing this Response with the Pilgrim ASLB to identify these same issues in which the Commonwealth intends to participate in the Pilgrim license renewal proceeding. As an Interested State, the Commonwealth is entitled to a reasonable opportunity to participate in the Pilgrim proceeding, including on those SFP issues previously raised by the Commonwealth, and now apparently supported with new and significant information arising from the Fukushima accident. 10 C.F.R. § 2.315(c). However, since the Commission previously determined that the Commonwealths SFP issues presented a generic issue to be addressed through a Commission rulemaking process, and in view of the Commissions order to respond to the pending Petition, the Commonwealth is seeking the above relief in the first instance with the Commission.
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