ML11284A042

Watch Reply to NRC Staff'S Answer to Pilgrim Watch'S Petition for Review

ML11284A042
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: ML11284A042 (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 NRC STAFF'S 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 In accordance with § 2.323(c) Pilgrim Watch (PW) seeks leave to reply to NRC Staffs October 3, 2011 Answer to Pilgrim Watchs Petition for Review. The NRC Staffs argument and conclusion (pg., 23) that the Boards majority decision as correct, consistent with precedent and not in conflict with existing law was flatly wrong. First, PWs new contentions were not required to satisfy the standards for reopening, although the June 1 DTV contention that incorporated the May 12 Recriticality contention, did, and both clearly satisfied late-filing requirements of 2.309. The conclusive and provisional issues raised were undeniably new, significant and material. Second, NEPA does require the Board to consider this new and significant information, and the Commission does have to consider the information, before approving Pilgrims license renewal. The Staff cannot simply kick the can down the road.

1. No Motion to Reopen is Required for Either Contention: The NRC Staff (along with Entergy) continues to misunderstand §2.326, to mischaracterize the record, and to rely on authorities that do not support its position. About the only correct statement made by the Staff is its initial, apparently inadvertent, recognition that §2.326 applies Once the record is closed.

(Staff, 6, Emphasis added). But it then goes on to say, flatly contrary to the record, that "The Board closed the record in the proceeding years ago." (Staff, 8, underlining added) The Board did not do so, and LBP-11-23 on which the Staff relies could not be clearer that all the Board "closed" was the record "with regard to Contention 1." AMP for Buried Pipes and Tanks (Order, pp; 2-3, 3-4). What the Board actually said, not surprisingly anywhere quoted by the Staff, was:

[W]e consider that the record with regard to Contention 1 is effectively closed, and to the extent necessary we here and now formally so close it.

1

Nothing else was closed, then or at any time before PW filed its contentions. The record of pending Contention 3 was not closed; and the record in the proceeding most certainly was not.

10 CFR 2.326 says reopen a closed record. It does not say, as the Staff and Entergy wish it did, 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 have anything to do with any record that has been closed. There is an important distinction (that the Staff and Entergy refuse to recognize) between a closed evidentiary record relating to one contention, and a closed proceeding record. The record of a proceeding includes all timely raised issues and PWs timely raised contentions, unrelated to anything that had been decided or "closed," that remain before the Board and Commission. 1 What the Staff (again together with Entergy) obfuscates is that the record of this proceeding was not closed when PW filed its new post-Fukushima contentions that have nothing to do with Contentions 1 or 3 The Staffs conclusion (pg., 8) that the Boards application of the reopening standard was consistent with prior Commission case law and federal appellate court precedent is wrong. In Vermont Yankee, unlike here, the new contention was essentially the same as other contentions previously decided and as to which the record was closed. We agree with the Board that NEC has simply rehashed old arguments in Contention 2C. CLI-10-7, 67 PW's new contentions are new; they do not "rehash" any old arguments. As for New Jersey Environmental, Citizens did not file its motion to reopen until after the administrative record had been closed up tight and the Boards Initial Decision had been issued. The administrative record in this proceeding indisputably has not been closed, and certainly had not been when the post-Fukushima contentions, or for that matter the preceding cleanup and cable contentions, were filed.

1 PW recognizes, as Entergy pointed out (Entergys September 12 Reply, pg., 9) that Administrative consideration of evidence always creates a gap between the time the record is closed and the administrative decision is promulgated. But that only; emphasizes that the record is this proceeding is not closed.

2

This illustrates how the Staff continues to misinterpret 10 C.F.R 2.326(d). (Staff, pg., 8)

That section 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 proceeding has been closed (as in New Jersey Environmental). But neither it, nor any other aspect of 2.326 applies when the new contention does not seek to reopen anything that has been closed. Neither 2.326 nor any decision or law cited by the Staff (or by Entergy) supports the Boards decision.

The only rule that properly applies to PW's new contentions is 2.309, and PW has met all of its requirements, including timeliness, significance, and materiality. Rule 2.236 cannot be misapplied to prevent PW from raising material licensing issues that could not be previously raised. Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1443-44 (D.C. Cir.1984)

(commission discretion to deny a hearing under the reopen the record standard may be inconsistent with the AEA hearing right on a material licensing issue).

2. NEPA Requires Consideration New, Significant, and Material Information: Staff was dead wrong in concluding that NRC has no 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 so 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)

The Staff admits that NEPA requires a hard look, but comes up with a myriad of absurd excuses why the hard look does not have to be done before relicensing Pilgrim.

According to the Staff, The full picture of what happened at Fukushima is still far from clear and thus, requests that the NRC take action under NEPAare premature (Staff at 11) In other 3

words, NRC should always kick the can down the road since what happened at Fukushima will never be entirely clear. But what happened is clear enough that NRC technical experts disagree with NRC lawyers. The NRC Task Force and SRM-SECY-11-0093 (October 3), for example, specifically prioritized reliable hardened vents for Mark I containments. Staff argues further that NEPA does not mandate how the agency must fulfill its obligation (pg., 10) and The NRC is taking a hard look. (pg., 18) No argument; but the hard look has to be done before license renewal. As Judge Young said The new and significant information was raised in the context of the adjudicatory proceeding and when a NEPA-related issue has arisen in that context, the matter must be addressed in that same context. (Order, Young pgs., 10-11, emphasis added)

Once again the Staff tries to weasel out of its NEPA obligations in absurd arguments that what happened at Fukushima provided no new or significant information, and indeed is not even relevant to PNPS's SAMA analysis. Does the Staff really believe that the failures of 3 out of 3 DTV's are not "identified safety vulnerabilities; (Staff pg., 13) and that Marsh does not apply because information about the duration and volume of releases and damage at Fukushima are not "both new and significant" and do not "bear on the proposed action or its impacts. [o r] present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. (Staff, 18)

As for timeliness, does anyone except the NRC Legal Staff, Board Majority and Entergy think that information about Fukushima's real-world DTV failures and re-criticality is not timely because theoretically it was widely known for years? (See Staff, 11) And can there be any question that whatever "analyzing" Entergy did in its pre-filing "investigations" could not and did not consider what Fukushima, years later, showed were the real probabilities of DTV failure, explosions, containment failure, and the duration and significance of releases and thereby 4

underestimated offsite costs? (See Staff, 11) Exactly how much the world has changed may not yet be entirely clear, but the fact that it has is not only "speculation" or "potential." (Staff, 12, 13)

3. Contrary to the Staff, PWs New Contentions Meet Requirements Late-Filed Contentions, 2.309; 2 and the DTV Contention, That Incorporated the Recriticality Contention, Meets the Requirements of 2.326; Last, Sua Sponte should Remain an Option:

Timely: The information is indisputably timely; it provided new real- world information.

If NRC already knew that releases could last for months and nonetheless approved Entergy's 2 1/2 hour release model; or if NRC knew all along that the supposed fix to Pilgrims small suppression pool and DTV were unlikely to work, then we are in deep trouble. Significance: The Staffs arguments that continuing criticality does not matter is more than counterintuitive, it is nonsense. The NRC Task Force, July 12, statement that reliable passive vents serve a significant dual function of overpressure protection and reliable venting of hydrogen highlighted the significance of reliable vents. Materiality: It is patently obvious that proper weighting of these variables will bring about significantly higher offsite costs and therefore justify mitigation that the public deserves in this post-Fukushima world. Sua Sponte: Last, we agree with Judge Young, contrary to the Staff, that if the Commission decides not to remand the contentions then it should direct the Board to review the issues raised Sua Sponte.

Respectfully submitted, (Signed electronically)

Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel 781-934-0389 Email: mary.lampert@comcast.net October 11, 2011 2

PW also incorporates here by reference what is said in reply to Entergys Answer, pages 3-5 5