ML11284A041
| ML11284A041 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 10/11/2011 |
| From: | Lampert M Pilgrim Watch |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 21212, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML11284A041 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
Entergy Nuclear Generation Co. and )
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR
)
) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)
October 11, 2011 PILGRIM WATCH REPLY TO ENTERGYS ANSWER TO PILGRIM WATCHS PETITION FOR REVIEW Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel 781-934-0389 Email mary.lampert@comcast.net October 11, 2011
PILGRIM WATCH REPLY TO NRC STAFF'S ANSWER TO PILGRIM WATCH'S PETITION FOR REVIEW Pilgrim Watch (PW) seeks leave to reply to Entergy's October 3, 2011 Answer to Pilgrim Watchs Petition for Review. 1 The Board Decision was wrong as a matter of law when it found that PW must satisfy the standards for reopening and that NEPA did not require the Board to consider information arising from the disaster at Fukushima before relicensing; and was wrong as a matter of fact and law when it found that the information from Fukushima was not new, material or significant, and that PW's new contentions did not meet the requirements of §2.309.
For these reasons, and to meet its statutory obligation to protect the public interest, the Commission should review, reverse and remand the Board Decision.
- 1. No Motion to Reopen is Required: PW's position that no motion to reopen is required to present its new contentions are not "meritless." (Entergy, 1) Section 2.326 may apply to a new contention that seeks to reopen a previously closed portion of a record directed to a contention that has already been decided (as in Vermont Yankee), or to one presented after the record in the entire administrative proceeding has been closed (as in New Jersey Environmental).
(See Entergy, 10, fn. 33) Contrary to what Entergy says (Entergy, 8), New Jersey Environmental did not hold that it would "render Section 2.326(d) meaningless" to requiring reopening when the petitioner seeks to add entirely new contentions in an administrative proceeding in which the record is still open.
The Board and Entergy try to read § 2.326 as if it said a petitioner must file a motion to reopen if any aspect of the record has been closed, regardless of whether the record in the proceeding has been closed or what the petitioner seeks to do has anything to do with the closed 1
To avoid unnecessarily burdening the Commission, PW here incorporates by reference, but will try not to repeat, what it has said in reply to the NRC's Staff Answer.
aspect of the record." Section 2.326 does not say that. The Boards holding that it effectively does was simply wrong The only rule that applies to PW's new contentions is 2.309, and PW has met all of its requirements. Rule 2.326 cannot be misapplied, as the Board did, and Entergy and the Staff would like, to prevent PW from raising material licensing issues that could not be previously raised. UCS II, 735 F.2d 1437 (D.C. Cir. 1984)
- 2. NEPA Requires the Commission to Consider Fukushima: Entergy quotes very carefully selected portions of a number of cases to support its contention that NEPA does not require the NRC to consider what PW has raised before renewing Pilgrim's license. None supports the Board Decision, or Entergy's efforts to emasculate NEPA's requirement that NRC has a duty to take a hard look at the proferred evidence (Marsh v Oregon Natural Resources Council, 490 U.S. 360, 385 (1989)) before relicensing Pilgrim. Robertson v Methow Valley Citizens Council, 490 U.S. 332,349 (1989)
Entergy quotes one sentence from UCS II to support its assertion that NEPA does not require that the NRC abandon its procedures every time someone alleges new and significant environmental information (Entergy, 9), but it ignores the very next paragraph in which the Court said that the question was when in the licensing process the NRC could consider environmental information, and made clear that the NRC could not apply its rule to prevent all parties from raising material issues.
Entergy's quotation from NIRS v. NRC is even more misleading. Here, Entergy omits what the Court said only two sentences later (769 F.2d at 1174):
Under Part 52, parties are uncontestably permitted their day in court on every material issue at some point in the licensing process.
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And in quoting the portion of UCS II repeated in Oyster Creek (Entergy, 19), Entergy omits the preceding paragraph of UCS II that because the outcome of Fukushima could not have been litigated earlier in the licensing process, PWs contentions must be accepted and heard; and that the speed and efficiency" pointed to by Entergy does not justify refusing to hear an issue.
The actual decisions cited by Entergy support PW's position, not Entergy's.
- 3. The Fukushima Information Is New, Significant and Material: The Board majority's Decision that information from Pilgrims sister-reactors at Fukushima is not new, important, significant, or material is wrong. Ask the Japanese.
Here, the Commission must remember that PW presented new contentions under 2.309, and has consistently said that it was not required to reopen or satisfy the quite different standards of 2.326. However, most of the Board Decision, and Entergy's Answer, is addressed to whether PW met what they call "the heavy burden" of reopening. 2 The Board majority said very little about whether PW met the requirement of 2.309 for a late filed contention; Entergy says even less. (Entergy, 24-25) PW demonstrated "good cause" for what have been called the Recriticality and DTV contentions, and also satisfied the remaining factors specified in 2.309. The length of the Board Majoritys Decision, and the more than 400 pages that Entergy submitted (June 27) to the Board opposing PWs Request for Hearing clearly show that there are material disputes, and that PWs contentions go far beyond mere speculation. (Entergy, 17)
Timeliness and Good Cause: Entergy says PW could have brought its contentions earlier because it was widely known that, in a severe accident, reactors like Pilgrim's could release radioactivity for six or more months and that the DTV "fix" wouldn't work. This 2
Judge Young correctly found that PW's DTV contention met the reopening requirements.
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approaches the ridiculous. What happened at Fukushima, long after this proceeding began, destroyed assumptions e.g., that Entergys SAMA analysis of only a single plume with a maximum release duration of 21/2 hours was enough, that inerting with nitrogen would prevent hydrogen explosions, and that the DTV fix would provide both overpressure protection and reliable venting of hydrogen (see NRC July 12 Task Force Report and SRM-SECY-11-0093, October 3, 2011), that the NRC previously accepted. 3 Entergy's "analogy" (Entergy, 15-16) about discovering a previously unavailable document with information that had been available from other sources is ridiculous. From what other sources was what happened at Fukushima "available?" Even the Board Majority and Entergy don't say that it was known that inerting with Nitrogen would not be effective. By any measure, PW had "good cause."
More fundamentally, if all of this had been widely recognized for years, why did Entergy knowingly place our community at such great risk by ignoring it, knowingly underestimate its SAMAs analyses, and why did the NRC allow it to do so?
Significance: Does anyone except the Board Majority, Entergy and the NRC legal staff believe that containment failure, hydrogen explosions, and many months of radiation release are not "grave or significant?" (Entergy, 16) Their significance is clear from the Task Force's July 12 Report, and the October 3 SECY 4 ("Reliable Hardened Vents for Mark I and Mark II Containments"). "The Fukushima Daiichi accident highlighted the importance of the wetwell vent function to relieve pressure and prevent hydrogen explosions, the accessibility of the valves and the capability for operation independent of AC power.") It is now an indisputable fact, not 3
If, as Entergy suggests, PW had brought its Recriticality Contention before Fukushima, the response of the Board majority, Entergy and the NRC Staff would have been that the likelihood was too low to worry about; now, after the event, they say PW should have know that the likelihood was much greater. Before Fukushima, the NRC and the Board would have said that the DTV problems had been fixed; now they say that PW should have known that they had not. An absurd Catch-22 4
SECY, October 3, 2011 to the Commissioners Prioritization of Recommended Actions to be taken in Responses to Fukushima Lessons Learned (5.1) 4
"speculation," that the probabilities that containments might fail, that there will be hydrogen explosions, and that there might be months of radioactive releases - are now far greater than they were before Fukushima, increasing significantly offsite costs. PW's contention -Pilgrim's SAMA must be redone giving proper weighting to the lessons from Fukushima - cannot be denied.
The SECY also said that the issue of containment vent filtration has been raised as an additional recommendation which is undergoing further staff review. This prioritization and review will not be completed by June 2012 when Pilgrims license expires, with the result that NEPAs requirement for a hard look before relicensing will not be satisfied. 5 Summary: The DTV contention, that incorporated the criticality contention, satisfied 2.309. (Order Sept 8, 2011, Young 48-54) It provided a specific statement of the issue and explanation of the basis required by § 2.309(f)(1)(i) and (ii). The SAMA-related issues raised are clearly within scope, required by subsection (iii). It was supported to meet subsection (v) requirements. It was material and showed a genuine dispute on a material issue of law or fact.
Respectfully submitted, Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel 781-934-0389 Email: mary.lampert@comcast.net October 11, 2011 5
See SECY, October 3, 2011 to the Commissioners Prioritization of Recommended Actions to be taken in Response to Fukushima Lessons Learned, Tier 1-Near Term Task Force Recommendation (NTTF) 5.1, pgs., 31-32; SECY at 29, containment vent filtration.
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