ML11353A562

From kanterella
Jump to navigation Jump to search
Entergy'S Answer Opposing the Commonwealth'S Appeal of LBP-11-35
ML11353A562
Person / Time
Site: Pilgrim
Issue date: 12/19/2011
From: Gaukler P, Doris Lewis
Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Generation Co, Entergy Nuclear Operations
To:
NRC/OCM
SECY RAS
References
RAS 21583, 50-293-LR, ASLBP 06-848-02-LR, LBP-11-35
Download: ML11353A562 (33)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

ENTERGYS ANSWER OPPOSING THE COMMONWEALTHS APPEAL OF LBP-11-35 David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, D.C. 20037 Tel. (202) 663-8000 Counsel for Entergy L.L.C.

Dated: December 19, 2011

Table of Contents Page TABLE OF CONTENTS .............................................................................................................. i TABLE OF AUTHORITIES ....................................................................................................... ii I. STATEMENT OF THE CASE........................................................................................ 4 II. STANDARD OF REVIEW .............................................................................................. 6 III. THE COMMISSION SHOULD DENY THE COMMONWEALTHS APPEAL ..... 7 A. The Board Majoritys Ruling Fully Complies with NEPA ........................................... 7

1. EIS Supplementation is Required Only Where New Information Provides a Seriously Different Picture of the Environmental Landscape ............. 8
2. NEPA Prescribes No Procedural Requirements, and the Board Majority Properly Reviewed the Commonwealths Contention Under the Commissions Reopening and Late Contention Standards .................................. 10 B. The Commissions Reopening Standards Comply with the AEA .............................. 15 C. The Commonwealth Raises Multiple Claims Beyond the Scope of This License Renewal Proceeding........................................................................................................ 16 D. The Commonwealth Provides No Legitimate Basis to Disturb the Rulings Rejecting Its Contention................................................................................................. 17 E. The Board Majority Correctly Denied the Commonwealths Waiver Petition ........ 24 IV. CONCLUSION ............................................................................................................... 25

Table of Authorities Page Federal Judicial Decisions Bowman Transp. v. Arkansas-Best Freight, 419 U.S. 281 (1974) ..........................................13 City of Olmstead Falls v. FAA, 292 F.3d 261 (D.C. Cir. 2002)................................................9 Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003), cert. denied, 541 U.S. 974 (2004).................................................................................................................12 Hodges v. Abraham, 300 F.3d 432 (4th Cir. 2002), cert. denied, 537 U.S. 1105 (2003)........12 Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir. 1996)...................9 ICC v. Jersey City, 322 U.S. 503 (1944) ............................................................................13.15 In re Operation of the Missouri River Sys. Litig., 516 F.3d 688 (8th Cir. 2008) ......................9 Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995)..........................................................................16 Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989).........................................9,12,15 Mass. v. NRC, 924 F.2d 311, cert. denied, 502 U.S. 899 (1991) ............................................13 Mass. v. U.S., 522 F.3d 115 (1st Cir. 2008) .........................................................................4,10 Natl Comm. for the New River v. FERC, 373 F.3d 1323 (D.C. Cir. 2004).............................9 New Jersey Envtl. Fedn v. NRC, 645 F.3d 220 (3d Cir. 2011)...............................13,15,16,18 New York v. NRC, 589 F.3d 551 (2d Cir. 2009)....................................................................4,8 N. Id. Cmty. Action Network v. DOT, 545 F.3d 1147 (9th Cir. 2008) .............................10,12 NRDC v. FAA, 564 F.3d 549 (2d Cir. 2009) ..........................................................................12 Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987) ............................................................................13 Price Rd. Neighborhood Assn v. DOT, 113 F.3d 1505 (9th Cir. 1997).................................10 San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir. 2011) .........................10 Sierra Club v. Froehlke, 816 F.2d 205 (5th Cir. 1987)..............................................................9 Sierra Club v. U.S. Army Corps of Engrs, 295 F.3d 1209 (11th Cir. 2002) ............................9 ii

S. Trenton Residents Against 29 v. FHA, 176 F.3d 658 (3d Cir. 1999)....................................9 Town of Winthrop v. FAA, 535 F.3d 1 (1st Cir. 2008).............................................................9 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) (UCS I) ............16 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) (UCS II) ........ passim Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.519 (1978) .........................2,10,11 Village of Grandview v. Skinner, 947 F.2d 651 (2d Cir. 1991) ................................................9 Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir. 1984)...........................................................9 Commission Decisions Ameren Missouri, et al. (Callaway Plant, Unit 2, et al.), CLI-11-05, 74 N.R.C. __, slip op. (Sept. 9, 2011).............................................................................. passim AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 N.R.C. 461 (2008)..............................................................................................................20 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. 658 (2008).......................................................................................................3,16,18 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235 (2009).......................................................................................................7,19,20 Dominion Nuclear Connecticut, Inc.(Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)............................................................................................16 Dominion Nuclear Connecticut, Inc.(Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 N.R.C. 551 (20050...........................................................................................24 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 N.R.C. 358 (2002)...................................................................16 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257 (2006).................................................................................................................4 Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Station), CLI-07-3, 65 N.R.C. 13, reconsideration denied, CLI-07-13, 65 N.R.C. 211 (2007),

affd sub nom., Mass. v. NRC, 522 F.3d 115 (1st Cir. 2008).........................................4,8,9,24 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 N.R.C. 529 (2009)...............................................................................................................18 iii

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287 (2010)..........................................................................................................19,23 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-14, 71 N.R.C. 449 (2010).......................................................................................................8,16,24 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 N.R.C. ___, slip op. (Mar. 10, 2011) ...............................................19 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 N.R.C. 3 (2001)................................................................................................16 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31 (2001)..........................................................9 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-11-11, 74 N.R.C. __, slip op. (Oct. 12, 2011) ...............................................................6,18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-03-8, 58 N.R.C. 11, 17 (2003) ...........................................................................................6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-1, 61 N.R.C. 160 (2005)................................................................................................6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-12, 61 N.R.C. 345 (2005) ...........................................................................................18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-06-3, 63 N.R.C. 19 (2006)........................................................................................ passim Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 N.R.C. 499 (2007) ..............................6 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-11-08, 74 N.R.C. __, slip op. (Sept. 27, 2011)......................................................3,7,19,21 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),

CLI-92-12, 36 N.R.C. 62 (1992)..............................................................................................19 Atomic Safety and Licensing Board Decisions Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257 (2006).................................................................................................................4 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 N.R.C. __, slip op. (Nov. 28, 2011) ........................................................................... passim Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-124, 6 A.E.C. 358 (1973).............................................................................................20 iv

Regulations 10 C.F.R. § 2.309(c)..............................................................................................................6,12 10 C.F.R. § 2.309(f)(1) ..............................................................................................................6 10 C.F.R. § 2.311 .......................................................................................................................6 10 C.F.R. § 2.311(c)...................................................................................................................6 10 C.F.R. § 2.315 .......................................................................................................................6 10 C.F.R. § 2.326 .............................................................................................................7,12,21 10 C.F.R. § 2.326(a)..............................................................................................................5,14 10 C.F.R. § 2.326(a)(1).........................................................................................................5,14 10 C.F.R. § 2.326(a)(2).........................................................................................................2,14 10 C.F.R. § 2.326(a)(3)..................................................................................................14,18,24 10 C.F.R. § 2.326(b) ................................................................................................................21 10 C.F.R. § 2.335 .....................................................................................................................17 10 C.F.R. § 2.341 .................................................................................................................1,6,7 10 C.F.R. § 2.341(b)(4)..............................................................................................................6 10 C.F.R. Part 51......................................................................................................................10 10 C.F.R. Part 51, App. B ..........................................................................................................8 10 C.F.R. § 54.21 .....................................................................................................................16 10 C.F.R. § 54.29 .....................................................................................................................17 10 C.F.R. § 54.29(a).................................................................................................................16 51 Fed. Reg. 19,535 (May 30, 1986) .............................................................................13,19,20 71 Fed. Reg. 15,222 (Mar. 27, 2006).........................................................................................4 71 Fed. Reg. 64,169 (Nov. 1, 2006)...........................................................................................4 73 Fed. Reg. 46,204 (Aug. 8, 2008)..............................................................................4,8,24,25 v

December 19, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

ENTERGYS ANSWER OPPOSING THE COMMONWEALTH OF MASSACHUSETTS APPEAL OF LBP-11-35 Pursuant to 10 C.F.R. § 2.341, Entergy Nuclear Generation Company and Entergy Nu-clear Operations, Inc. (collectively Entergy) respond in opposition to the Commonwealth of Massachusetts (the Commonwealths) appeal of the Atomic Safety and Licensing Board (Board) decision in LBP-11-351 filed December 8, 2011.2 The Appeal seeks review of the Boards decision denying the Commonwealth of Massachusetts Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Accident (June 2, 2011)

(Contention) and its related filings.3 As discussed below, the Commission should deny the 1

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 N.R.C. __, slip op. (Nov. 28, 2011) (LBP-11-35).

2 The Commonwealths filings on appeal consist of: (1) the Commonwealth of Massachusetts Notice of Appeal of LBP-11-35; and (2) the Commonwealth of Massachusetts Brief on Appeal of LBP-11-35, Denying Admission of the Commonwealths Contention, Hearing Request, Associated Waiver Petition, and Alternative Request for Rule-making, on New and Significant Information Arising from the Accident at Fukushima and the Significance of that Information for the Pilgrim Relicensing Proceeding (Brief), which contains the Commonwealths substantive ar-guments on appeal. The documents shall be referred to herein collectively as the Appeal.

3 In addition to the Contention, the Commonwealth filed (1) Commonwealth of Massachusetts Motion to Admit Contention and, if Necessary, to Re-Open Record Regarding New and Significant Information Revealed by Fuku-shima Accident (June 2, 2011) (Contention Motion); (2) Commonwealth of Massachusetts Petition for Waiver of 10 C.F.R. Part 51 Subpart A, Appendix B or in the Alternative, Petition for Rulemaking to Rescind Regulations Ex-cluding Consideration of Spent Fuel Storage Impacts From License Renewal Environmental Review (June 2, 2011)

(Waiver Petition); (3) New and Significant Information From the Fukushima Daiichi Accident in the Context of Future Operation of the Pilgrim Nuclear Power Plant; A report for Office of the Attorney General, Commonwealth of Massachusetts (Gordon R. Thompson, Institute for Resource and Security Studies) (June 1, 2011) (Thompson Report); (4) Declaration of Dr. Gordon R. Thompson in Support of Commonwealth of Massachusetts Contention and Related Petitions and Motions (June 1, 2011) (Thompson Declaration or Thompson Decl.); and (5) Com-

Appeal because the Commonwealth does not identify any substantial question warranting re-view, or any error of fact or law in the Boards ruling, which is clearly correct.

The Commonwealths Contention and Appeal are based on meritless arguments that the National Environmental Policy Act (NEPA) obligates the Commission to consider the Com-monwealths purported new and significant information, based on its mere claim that new and significant information exists, in one of two ways - reopen the adjudicatory hearing or conduct a generic rulemaking - and that the Commission must do so before renewing Pilgrims license.

E.g., Brief at 22 & n.38. The Commissions options for giving a hard look to claims of new and significant information are not so constrained. The Supreme Courts decision in Vermont Yankee4 and numerous other precedents long ago settled that NEPA imposes no hearing re-quirement nor establishes any other requirements that would proscribe application of the Com-missions procedures for considering allegedly new and significant information.

In this regard, the Commonwealth erroneously asserts that the Commissions standards for reopening the record and considering late-filed contentions violate NEPA and the Atomic Energy Act (AEA), notwithstanding decades of judicial and Commission case law to the con-trary. Indeed, Commission precedent equates the standard for supplementing an EIS to address new and significant information (i.e., information that presents a seriously different picture of the environmental landscape) with the standard for raising a significant environmental issue under the Commissions reopening standards, 10 C.F.R. § 2.326(a)(2).5 monwealth of Massachusetts Conditional Motion to Suspend Pilgrim Nuclear Power Plant License Renewal Pro-ceeding Pending Resolution of Petition for Rulemaking to Rescind Spent Fuel Pool Exclusion Regulations (June 2, 2011) (Stay Request).

4 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation) (PFS), CLI-6-03, 63 N.R.C. 19, 29 (2006).

2

Further, the Commonwealths claim that it raised new and significant information with respect to the GEIS,6 FEIS,7 and the Pilgrim SAMA analysis does not withstand scrutiny. The Commonwealth has made no showing that Fukushima paints a seriously different picture of the environmental landscape concerning the likelihood of severe reactor accidents and spent fuel pool fires, or with the wide range of severe accident mitigation alternatives (SAMA) consid-ered in the Pilgrim SAMA analysis. The Commonwealths claims ignore the broad scope of ac-cident scenarios included in the Pilgrim SAMA analysis, which are nowhere distinguished from Fukushima in the Contention or Dr. Thompsons report. These include scenarios that consider radioactive releases substantially larger than the total releases for the three damaged Fukushima reactors combined.8 Indeed, the Commission has since ruled that Fukushima has not revealed in-formation presenting a seriously different picture of the environmental landscape.9 The Commissions decision confirms the Board majoritys ruling that the Contention failed to present significant (let alone grave) information warranting reopening of the record. In addition, the Commonwealths Contention was not timely raised because its challenges could have been raised at the proceedings outset. Furthermore, the Commonwealths claims consist of a series of bare assertions and speculations that the Commission has repeatedly rejected as in-sufficient to support the heavy burden placed on the proponent of a motion to reopen to demon-strate that a materially different result would be or would have been likely.10 6

NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996)

(GEIS or NUREG-1437).

7 NUREG-1437, GEIS, Supplement 29 Regarding Pilgrim Nuclear Power Station (July 2007) (FEIS).

8 As discussed later in this Answer, the expert witness declaration that Entergy submitted in response to the Com-monwealths Contention further explains and elaborates on the Pilgrim SAMA analysis set forth in the LRA.

9 Ameren Missouri, et al. (Callaway Plant, Unit 2, et al.), CLI-11-05, 74 N.R.C. __, slip op. at 30-31 (Sept. 9, 2011)

(CLI-11-05).

10 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 N.R.C. __, slip op. at 15 n.48 (Sept. 27, 2011) (CLI-11-08), citing AmerGen Energy Co., LLC (Oyster Creek Nu-clear Generating Station), CLI-08-28, 68 N.R.C. 658 (2008) (CLI-08-28).

3

For these reasons, as well as the other grounds set forth in this Answer, the Commission should deny the Commonwealths Appeal.

I. STATEMENT OF THE CASE The procedural history related to the Commonwealths Contention as it relates to spent fuel pool fire risks is set forth in Entergys Answer to the Contention11 and will not be repeated here. Entergy submitted the Pilgrim License renewal application in January 2006.12 The Com-monwealth raised its spent fuel pool risk concerns,13 the Board and the Commission scrutinized and rejected those concerns,14 and the First Circuit upheld those rulings.15 In accordance with the First Circuits ruling,16 the Commonwealth provided notice that it would participate in the li-cense renewal proceeding as an interested State.17 The Commonwealth also filed a rulemaking petition on its spent fuel pool risk concerns.18 The Commission denied the Commonwealths rulemaking petition,19 which the Second Circuit upheld.20 11 Entergys Answer Opposing Commonwealth Contention and Petition for Waiver Regarding New and Significant Information Based on Fukushima (June 27, 2011) (Entergy Contention Answer); Attached to the Entergy Answer was the Declaration of Joseph R. Lynch, Lori Ann Potts, and Dr. Kevin R. OKula in Support of Entergys Answer Opposing Commonwealth of Massachusetts Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Accident (June 26, 2011) (Entergy Declaration or Entergy Decl.).

12 See 71 Fed. Reg. 15,222 (Mar. 27, 2006).

13 Massachusetts Attorney Generals Request for a Hearing and Petition for Leave to Intervene with Respect to En-tergy 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).

14 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257, 288, 295-300 (2006); Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Sta-tion), CLI-07-3, 65 N.R.C. 13, reconsideration denied, CLI-07-13, 65 N.R.C. 211 (2007), affd sub nom, Massachu-setts v. United States, 522 F.3d 115 (1st Cir. 2008).

15 Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008).

16 Id. at 130 & n.9.

17 Commonwealth of Massachusetts Notice of Intent to Participate as an Interested State (May 6, 2008) at 1-2.

18 Massachusetts Attorney Generals Petition for Rulemaking to Amend 10 C.F.R. Part 51 (Aug. 25, 2006) (2006 Petition); see also Massachusetts Attorney General; Receipt of Petition for Rulemaking, 71 Fed. Reg. 64,169 (Nov.

1, 2006).

19 The Attorney General of Commonwealth of Massachusetts; the Attorney General of California; Denial of Peti-tions for Rulemaking, 73 Fed. Reg. 46,204, 46,207-09, 46,212 (Aug. 8, 2008) (Rulemaking Denial).

20 New York v. NRC, 589 F.3d 551 (2d Cir. 2009).

4

On June 2, 2011, the Commonwealth filed its Contention and related papers. Entergy and the NRC Staff opposed the Contention and related filings.21 On August 11, 2011, the Com-monwealth filed its Motion to Supplement the Bases of its proposed contention to address the NRC Task Force Report22 on lessons learned from Fukushima.23 Both Entergy and the NRC Staff opposed the Supplementation Motion.24 On November 28, 2011, the Board rejected the Commonwealths Waiver Petition and Contention. LBP-11-35 at 16, 49-70.25 A majority of the Board rejected the Waiver Petition be-cause the Commonwealths spent fuel pool concerns were not unique to Pilgrim. LBP-11-35 at

16. The Board majority also ruled that the Commonwealth had met none of the reopening crite-ria contained in 10 C.F.R. § 2.326(a), LBP-11-35 at 49-64, finding, for example, that the direct experience challenge to the core damage frequency (CDF) assumed in the Pilgrim SAMA analysis was untimely under Section 2.326(a)(1) because it could have been raised at the outset of this proceeding. The Board majority also found the contention untimely under Section 21 Entergy Contention Answer; NRC Staffs Response to Commonwealth of Massachusetts Motion to Admit Con-tention and, If Necessary, Re-Open Record Regarding New and Significant Information Revealed by Fukushima Accident (June 27, 2011) (NRC Staff Contention Response); NRC Staffs Response to the Commonwealth of Massachusetts Petition for Waiver of 10 C.F.R. Part 51 Subpart A, Appendix B or, in the Alternative, Petition for Rulemaking (June 27, 2011) (NRC Staff Waiver Petition Response).

22 Recommendations for Enhancing Reactor Safety in the 21st Century: the Near-Term Task Force Review of In-sights from the Fukushima Dai-ichi Accident (July 12, 2011) (Task Force Report).

23 Commonwealth of Massachusetts Motion to Supplement Bases to Commonwealth Contention to Address NRC Task Force Report on Lessons Learned from the Radiological Accident at Fukushima (Aug. 11, 2011) (Supplemen-tation Motion). Included with the Motion is the Declaration of Gordon R. Thompson Addressing New and Signifi-cant Information Provided by the NRCs Near-Term Task Force Report on the Fukushima Accident (Aug. 11, 2011)

(August 2011 Thompson Decl.).

24 Entergys Answer Opposing Commonwealth Motion to Supplement Bases to Commonwealth Contention to Ad-dress NRC Task Force Report on Lessons Learned from Fukushima (Sept. 6, 2011); NRC Staffs Response to Commonwealth of Massachusetts Motion to Supplement Bases to Proposed Contention to Address NRC Task Force Report on Lessons Learned from Fukushima (Sept. 6, 2011).

25 A majority of the Board denied the Stay Request based on the Commissions decision in CLI-11-05, which the Board majority concluded was dispositive of the Stay Request. LBP-11-35 at 8-9. The Commonwealth does not appeal this portion of the Board majoritys ruling.

5

2.309(c), and that it failed to meet the admissibility standards under Section 2.309(f)(1). Id. at 64-70.26 II. STANDARD OF REVIEW Although the Commonwealth appeals under 10 C.F.R. § 2.311, Brief at 1, the review provisions of Section 2.341 apply.27 Pursuant to Section 2.341(b)(4), a petition for review is granted only at the discretion of the Commission, giving due weight to the existence of a sub-stantial question with respect to the following relevant considerations: (i) a finding of material fact that is clearly erroneous or conflicts with a finding as to the same fact in a different pro-ceeding; (ii) a necessary legal conclusion that is without governing precedent or contrary to established law; (iii) the raising of a substantial and important question of law, policy, or dis-cretion; (iv) the conduct of the proceeding involved a prejudicial procedural error; or (v) the raising of any other considerations which the Commission may deem to be in the public inter-est.28 An appeal that simply restates the contention with additional support and makes no show-ing under the above criteria will not meet the requirements for a valid appeal.29 The Commission is free to affirm a board decision on any ground finding support in the record, whether previously relied on or not.30 Further, the Commission gives substantial defer-26 Judge Young concurred in the results of the majority decision, finding the contention premature and thus inadmis-sible based on the Commissions decision in CLI-11-05. LBP-11-35 at 72 (Judge Young, concurring in results).

27 Section 2.311(c) permits interlocutory review for a requestor/petitioner as to whether its hearing request or in-tervention petition should have been granted at the outset of a proceeding. This circumstance does not apply to the Commonwealth, which has participated as a Section 2.315 interested State since the First Circuits decision. In any event, even if the Commission were to review the Appeal under Section 2.311, it should still be denied. Under Sec-tion 2.311, the Commission appl[ies] a deferential standard of review and will defer to the Board's rulings on contention admissibility absent an error of law or abuse of discretion. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 N.R.C. at __, slip op. at 4 (Oct. 12, 2011) (CLI-11-11) (foot-note omitted). The Commonwealth identifies no error of law or abuse of discretion in the Boards ruling.

28 10 C.F.R. § 2.341(b)(4); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation) (PFS), CLI-03-8, 58 N.R.C. 11, 17 (2003).

29 Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facil-ity), CLI-07-20, 65 N.R.C. 499, 503-05 (2007).

30 PFS, CLI-05-1, 61 N.R.C. 160, 166 (2005) (citing federal precedent).

6

ence to its boards determinations on threshold issues, such as whether a pleading meets the re-quirements of Section 2.326, and will not sustain an appeal [on such issues] that fail to show a board committed clear error or abuse of discretion.31 III. THE COMMISSION SHOULD DENY THE COMMONWEALTHS APPEAL Pursuant to 10 C.F.R. § 2.341, the Commission should deny the Appeal. The Common-wealth interweaves a host of erroneous arguments concerning the Commissions obligations un-der NEPA, its responsibilities under the AEA, and the limited scope of this license renewal pro-ceeding. Once untangled, it is clear that the Commonwealths arguments demonstrate no clear error of fact, error of law, procedural error, or abuse of discretion by the Board. Moreover, the Board majoritys rulings that the Commonwealth failed to meet the standards for reopening the record, considering a late-filed contention, and admitting a contention are clearly correct.

A. The Board Majoritys Ruling Fully Complies with NEPA The Commonwealths foundational argument is that NEPA requires the Commission to take a hard look at its purported new and significant information concerning Fukushima before granting Pilgrims license renewal. Brief at 14-15. But even a cursory review of the Board ma-joritys decision in LBP-11-35 demonstrates that it provided the requisite hard look under NEPA by applying the NRCs procedural requirements to the Commonwealths purportedly new and significant information. See LBP-11-35 at 17-70 (summarizing and applying the Commis-sions standards for reopening the record, late-filed contentions, and admissible contentions to the Commonwealths claims). Thus, the Commonwealths Appeal boils down to arguments that (1) it is entitled to a hearing and, as a result, supplementation of the Pilgrim FEIS based on its mere allegation of new and significant information with no application of the Commissions pro-31 Vogtle, CLI-11-08 at 5; AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 260 (2006) (CLI-09-7).

7

cedural rules because (2) the Commissions procedural rules are allegedly contrary to NEPA and the AEA.

As explained in Entergys Answers opposing the Commonwealths Contention and Sup-plementation Motion,32 ample judicial and Commission precedent make clear that the Common-wealths arguments are wrong because: (1) supplementation of Pilgrims environmental analy-ses is required only where new and significant information paints a seriously different picture of the environmental landscape described in those analyses; (2) application of the Commissions procedural requirements to the Commonwealths claims of new and significant information complies with NEPA; and (3) the Board majority correctly applied those procedural require-ments and in doing so provided the required hard look at the Commonwealths claims.

1. EIS Supplementation is Required Only Where New Information Pro-vides a Seriously Different Picture of the Environmental Landscape The NRC issued the GEIS to evaluate environmental issues generic to all plants renewing their operating licenses. In this context, the NRC evaluated and determined as a generic matter that the probability-weighted consequences from severe accident impacts are small for all plants33 and that the environmental impacts of spent fuel storage, including accident risk, are small for all plants.34 The Commonwealth claims that Fukushima has brought to light new and significant in-formation that requires supplementing the GEIS and, more specifically, Pilgrims FEIS and SAMA analysis prior to license renewal. Brief at 15-16. But the Commonwealth ignores clear 32 Entergy Contention Answer at 65-67; Entergys Supplementation Opposition at 20-21.

33 10 C.F.R. Part 51, App. B, Table B-1; GEIS at 5-114 to 5-115.

34 10 C.F.R. Part 51, App. B, Table B-1; GEIS at 6-72 to 6-75 and 6-91 to 6-92; Pilgrim, CLI-10-14, 71 N.R.C. 449, 472-74 (2010); Vermont Yankee/ Pilgrim, CLI-07-3, 65 N.R.C. at 19-21. See also Rulemaking Denial, 73 Fed. Reg.

46,204, affd, New York, 589 F.3d 551.

8

Commission and judicial precedent setting the standard that must be met for supplementing the NRCs and Pilgrims environmental analyses.

As the Supreme Court made clear in Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (relied on heavily by the Commonwealth), it is not merely the identification of new information that triggers supplementing an EIS because such a requirement would render agency decisionmaking intractable, always awaiting updated information only to find the new in-formation outdated by the time a decision is made. 490 U.S. at 373 (footnote omitted). Rather, it is well established that a supplemental EIS is required only where new information provides a seriously different picture of the environmental landscape.35 Numerous courts have so ruled.36 The Commission has adopted this same standard,37 which it recently reaffirmed when rejecting a request that it conduct a separate generic NEPA analysis concerning Fukushima.38 Moreover, consistent with this precedent, the Commission has held on more than one occasion that a mere claim of new and significant information does not open up its generic findings to consideration in individual license renewal proceedings because this would defeat the purpose of resolving is-sues generically in the GEIS.39 35 Natl Comm. for the New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis in original), quoting City of Olmsted Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002).

36 See also In re Operation of the Missouri River Sys. Litig., 516 F.3d 688, 693 (8th Cir. 2008) (seriously different picture of the environmental impact); Town of Winthrop v. FAA, 535 F.3d 1, 9 (1st Cir. 2008) (substantial change in conditions since the data used in the EIS were gathered); Sierra Club v. U.S. Army Corps of Engrs, 295 F.3d 1209, 1215-16 (11th Cir. 2002) (significant impact not previously covered); S. Trenton Residents Against 29 v.

FHA, 176 F.3d 658, 663 (3d Cir. 1999) (seriously different picture of the environmental impact); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996) (same); Village of Grand View v. Skinner, 947 F.2d 651, 657 (2d Cir. 1991) (significant impact not previously covered); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987) (seriously different picture of the environmental impact); Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984) (same).

37 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31, 52 (2001) (The new circumstance must reveal a seriously dif-ferent picture of the environmental impact of the proposed project.) (internal quotes and citations omitted).

38 Callaway, CLI-11-05 at 30-31 (holding that such request was premature because given the current state of in-formation available Fukushima did not present new and significant information that present[s] a seriously dif-ferent picture of the environmental impact of the proposed project from what was previously envisioned) (footnote omitted). See also LBP-11-35 at 57 n.218 (acknowledging the Commissions holding in CLI-11-05 at 30-31).

39 Vermont Yankee/Pilgrim, CLI-07-3, 65 N.R.C. at 21; Pilgrim, CLI-10-14 at 36.

9

Thus, supplementation of Pilgrims environmental analyses is required only where new information would materially affect and paint a seriously different picture of the environmental landscape from that previously considered in the GEIS for severe accidents and spent fuel pool accidents that would result in an impact finding different from that codified in 10 C.F.R. Part 51, or from that previously considered in Pilgrims SAMA analysis.

2. NEPA Prescribes No Procedural Requirements, and the Board Ma-jority Properly Reviewed the Commonwealths Contention Under the Commissions Reopening and Late Contention Standards When faced with a claim of new and significant information, the Commission has broad discretion on how to determine whether the claim in fact paints a seriously different picture of the environmental landscape. The Supreme Court made clear long ago that the only procedural requirements imposed by NEPA are those stated in the plain language of the Act.40 Further, al-though NEPA requires that an agency fully consider environmental issues, NEPA does not re-quire a hearing on those issues.41 Nor does NEPA alter the procedures employed (or not em-ployed) by an agency for considering environmental issues.42 As stated by the First Circuit:

[A]lthough NEPA does impose an obligation on the NRC to consider environ-mental impacts of the Pilgrim and Vermont Yankee license renewal before issu-ing a final decision, the statute does not mandate how the agency must fulfill that obligation . . . Beyond "the statutory minima" imposed by NEPA . . . the imple-menting procedures are committed to the agency's judgment.43 Moreover, neither NEPA nor the CEQ regulations prescribe how an agency is to determine the existence of new and significant information that would require supplementation under NEPA.44 40 Vermont Yankee Nuclear Power Corp., 435 U.S. at 548 (citation omitted).

41 Union of Concerned Scientists v. NRC, 920 F.2d 50, 56 (D.C. Cir. 1990) (UCS II). See also San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109, 1115 (9th Cir. 2011).

42 See UCS II 920 F.2d at 56 (citing Vermont Yankee, 435 U.S. at 548).

43 Massachusetts, 522 F.3d at 130 (emphasis added) (citing Supreme Court precedent).

44 N. Id. Cmty. Action Network v. DOT, 545 F.3d 1147, 1154 (9th Cir. 2008), citing Price Rd. Neighborhood Assn

v. DOT, 113 F.3d 1505, 1509-10 (9th Cir. 1997).

10

Thus, it is clear that NEPA does not prescribe how the Commission must consider prof-fered evidence of new and significant information. Accordingly, NEPA does not require that the NRC abandon its procedures, such as its procedural requirements for reopening a closed record, every time someone comes forward with an allegation of new and significant information.45 Despite this clear precedent of the Commissions broad procedural discretion, the Com-monwealth erroneously claims that the Commission has only two options for evaluating its pur-ported new and significant information prior to granting license renewal - a site specific hearing or generic rulemaking proceeding - as the Commission may elect. Brief at 22 & n.38. The Commonwealths argument is baseless. See UCS II, 920 F.2d at 56 (NEPA does not provide any right to hearing). The argument is also circular. The Commonwealth essentially argues that the Commission must undertake formal processes and supplement the Pilgrim FEIS in order to de-termine whether the Commonwealth has in fact raised new and significant information that paints a seriously different picture of the environmental landscape justifying supplementation of the Pilgrim FEIS. The Commissions options are not so restricted.

Following the Supreme Courts mandate in Vermont Yankee, 435 U.S. at 543, that ad-ministrative agencies should be free to fashion their own procedures for implementing NEPA, the courts have allowed agencies to employ different processes and documentation (other than preparing an environmental assessment or a supplemental EIS with public participation) for de-termining whether alleged new impacts are sufficiently significant to warrant supplemental analysis and formal supplementation of existing NEPA documents. Among other examples, Federal Courts have approved (1) an agencys internal reevaluation of projected impacts from 45 UCS II, 920 F.2d at 55 (it [is] unreasonable to suggest that the NRC must disregard its procedural timetable every time a party realizes based on NRC environmental studies that maybe there was something after all to chal-lenge it either originally opted not to make or which simply did not occur to it at the outset) (footnote omitted).

11

new information;46 (2) use of an agency-requested expert analysis;47 (3) an agency record of de-cision based on review of previous NEPA documents;48 (4) an agency supplemental information report based on agency-requested expert analysis;49 and (5) review of scientific literature to con-clude that adverse impacts were unlikely.50 In short, neither a supplemental EIS nor an environ-mental assessment is required to document an agencys determination that new information does not have a significant environmental impact.

Directly on point here, the Commission has expressly ruled that consideration of a re-quest to reopen the hearing record to consider purported new and significant information is an-other such approach. In PFS, the Commission considered a request to reopen the hearing record in order to supplement a final environmental impact statement to address allegedly new and sig-nificant information. PFS, CLI-06-3, 63 N.R.C. at 22-23. Equating the requirements for reopen-ing the record to those for supplementing the EIS, the Commission rejected the request, ruling that the consequences are not so significant that NEPA would require reopening the record and amending the FEIS. Id. at 27. See also id. at 29 (the claimed additional environmental impacts were not so significant or central to the FEISs discussion of environmental impacts that an FEIS supplement (and the consequent reopening of our adjudicatory record) is reasonable or necessary). Thus, at this very late stage of the Pilgrim proceeding, unless a contention complies with the reopening standards in Section 2.326 (is timely raised, concerns a significant environ-mental issue, and would likely result in a materially different outcome) and otherwise meets the Commissions standards for late-filed contentions in 10 C.F.R. § 2.309(c), the record will not be 46 N. Id. Community Action Network, 545 F.3d at 1154.

47 Highway J Citizens Group v. Mineta, 349 F.3d 938, 959-60 (7th Cir. 2003), cert. denied, 541 U.S. 974 (2004).

48 Hodges v. Abraham, 300 F.3d 432, 446, 448 (4th Cir. 2002), cert. denied, 537 U.S. 1105 (2003).

49 Marsh, 490 U.S. at 383-85.

50 NRDC v. FAA, 564 F.3d 549, 562 (2d Cir. 2009).

12

reopened and the environmental records need not be supplemented.51 Further, Federal courts have repeatedly upheld the Commissions stringent reopening and late-filing standards.52 Here, the Board majority has evaluated the Commonwealths claims of new and signifi-cant information under the reopening and late-filed standards, concluded the Commonwealth has not met those standards, and thus has provided the required hard look under NEPA. Commission review of the Board majoritys decision will provide an additional hard look.

Contrary to this well established precedent, the Commonwealth contends that the Com-missions reopening and late-filed contention standards cannot be applied here because they would impose a burden of proof on the Commonwealth for admission of its contention . . . in-consistent with the standard for the NRC to consider new and significant information under NEPA. Brief at 23. The Commonwealths argument is clearly wrong.

As a general matter, when faced with a claim of allegedly new and significant informa-tion, [t]he Supreme Court has repeatedly said that reopening should not be automatic and is necessarily within the discretion of the agency:

Administrative consideration of evidence always creates a gap between the time the record is closed and the time the administrative decision is promulgated . . . If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been ob-served; or some new fact discovered, there would be little hope that the adminis-trative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not mat-ters of right, but were pleas to discretion.53 51 Where a record is not reopened and the environmental documents are not formally supplemented, the rulings on whether to reopen the record become part of the NRCs NEPA record of decision. See PFS, CLI-06-3, 63 N.R.C. at 31 n.55.

52 UCS II, 920 F.2d at 55 (approving of NRCs application of the late-filing balancing test to alleged new informa-tion); Massachusetts v. NRC, 924 F.2d 311, 334, cert. denied, 502 U.S. 899 (1991) (same); New Jersey Envtl. Fedn

v. NRC, 645 F.3d 220, 235-36 (3d Cir. 2011) (upholding the application of the reopening standards to new conten-tions not previously in controversy; Ohio v. NRC, 814 F.2d 258, 262 (6th Cir. 1987) (same).

53 Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19539 (May 30, 1986) (quoting ICC v. Jersey City, 322 U.S. 503, 514-15 (1944); Bowman Transp. v. Arkansas-Best Freight, 419 U.S. 281, 294-95 (1974)).

13

Thus, whether to reopen the Pilgrim record falls well within the Commissions discretion.

Moreover, the Commonwealths claim that the reopening standards are more demanding than the standard for considering new and significant information under NEPA (Brief at 23-24) is flatly contradicted by the Commissions PFS decision which equates the standard for supple-menting an EIS with the standard for raising a significant environmental issue under 10 C.F.R. § 2.326(a)(2). PFS, CLI-06-3, 63 N.R.C. at 27, 29. Accordingly, the Commission has addressed the Commonwealths claim that the NRC is obliged to consider [purported] new and significant information that could affect the outcome of its environmental analysis for that decision up un-til the time it makes [that] major licensing decision. Brief at 23. A determination that the Commonwealth has failed to raise new information under Section 2.326(a)(1), to raise a signifi-cant environmental issue under Section 2.326(a)(2), or to show that its allegedly new and signifi-cant would likely to paint a materially different picture of the environmental landscape under Section 2.326(a)(3), fulfills the Commissions NEPA obligation to take a hard look at the infor-mation raised by the Commonwealth. The Board majority relied on the PFS decision in evaluat-ing whether the Commonwealths claims raised a significant environmental issue warranting re-opening of the record. LBP-11-35 at 56 & n.217.54 The Board majority also relied on the Com-missions decision in CLI-11-05 that the events of Fukushima did not present a seriously differ-ent picture of the environmental landscape. LBP-11-35 at 56 & n.218. Adhering to this Com-mission precedent (and as discussed further infra), the Board majority appropriately ruled that the Commonwealths claims simply implicate no specific environmental impact changes. Id. at 54 The Commonwealths complaint that the Board majority never addresses [its] foundational argument that it is the NRC [that] is legally obligated to comply with NEPA, and take a hard look at the lessons learned from Fukushima (Brief at 14; see id. at 2), is therefore incorrect. The Board majority expressly equated the Section 2.326(a)(2) sig-nificant environmental impact standard with that required under NEPA for supplementing an EIS.

14

56. Consequently, the Commonwealth fails to show that the Board majority made any error of law here.

Finally, the Commonwealths (and the concurrences) assertion that NEPA obligates the Commission to await the completion of its Fukushima review before it can relicense Pilgrim (Brief at 22 & n.38; LBP-11-35 at 76-77 n.13) is contrary to the case law summarized above. It contravenes Supreme Court precedent that (1) reopening a hearing record is a matter of agency discretion - otherwise there would be little hope that the administrative process could ever be consummated, ICC, 322 U.S. at 514-15, and (2) the mere claim of new information does not trigger supplementing an EIS because such a requirement would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. Marsh, 490 U.S. at 373 (footnote omitted). And it would render application of the Commissions procedural requirements meaningless. As the Board majority aptly notes, its decision cannot be based upon the absence of sufficient information to disprove that there could be at some time in the future sufficient information to lead to significantly different results of the Pilgrim environmental analysis. To do so would require proof of a negative and plainly stand adjudicative principles on their head.

LBP-11-35 at 69 (emphasis added).

B. The Commissions Reopening Standards Comply with the AEA The Commonwealth erroneously claims that that Board majoritys ruling denied . . . its AEA hearing right on its Fukushima claims. Brief at 27 (citing UCS II and New Jersey Envtl.

Fedn). The Commission has explicitly rejected the claim that its reopening standards violate the AEA right to a hearing on material licensing issues. [Section 189(a)s hearing requirement does not unduly limit the Commissions wide discretion to structure its licensing hearings in the 15

interests of speed and efficiency.55 Further, [t]he hearing right provided in section 189(a) is not automatic - our rules appropriately require the identification of specific factual support to justify reopening.56 The Third Circuit has since reaffirmed this precedent.57 Thus, the Com-monwealth itself is not guaranteed an adjudicatory hearing on its allegedly new and significant information merely by raising that information and stating that it is new and significant. Rather, the courts are obliged to defer to the operating procedures employed by an agency when the governing statute requires only that a hearing be held.58 Were this not the case, the NRC would be required to hold a formal adjudicatory hearing every time someone alleged the exis-tence of new and significant information.59 C. The Commonwealth Raises Multiple Claims Beyond the Scope of This Li-cense Renewal Proceeding On appeal, the Commonwealth impermissibly seeks to raise current licensing basis (CLB) issues that are beyond the scope of license renewal. The Commission has specifically limited the safety review in license renewal proceedings to the matters specified in 10 C.F.R. §§ 54.21 and 54.29(a), which focus on managing the aging of certain systems, structures, and com-ponents, and the review of time-limited aging analyses.60 Thus, the potential effect of aging is the issue that essentially defines the scope of license renewal proceedings.61 Contrary to this well-established precedent, the Commonwealth seeks to litigate the NRCs Fukushima Task 55 Oyster Creek, CLI-08-28, 68 N.R.C. at 677, quoting Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1448 (D.C. Cir. 1984) (UCS I).

56 Oyster Creek, CLI-08-28, 68 N.R.C. at 677-78.

57 New Jersey Envtl. Fedn, 645 F.3d at 232.

58 Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), quoting USC II, 920 F.2d at 54.

59 In the context of this proceeding, the Commission has made clear that such is not the case. See CLI-10-14 at 36.

60 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 7-8 (2001). Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-26, 56 N.R.C. 358, 363 (2002).

61 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004).

16

Forces preliminary recommendations for strengthening the NRCs regulatory framework and safety regulations, which are subject to final Commission action (see CLI-11-05 at 30) and con-cern CLB issues. For example, the Commonwealth asserts that the majority decision ignored new and significant information identified by the NRCs own Task Force, which found that safety at U.S. nuclear plants should be improved and additional mitigation measures ordered, in light of the lessons learned from Fukushima. Brief at 2. See also id. at 8-9; 10-12; 17-19.

The Task Force recommendations concerned potential changes in safety regulations and future safety enhancements to nuclear plants whose continued operation and continued licens-ing activities do not pose an imminent risk to public health and safety. Task Force Report at vii (emphasis added); see also id. at 73. The Task Force Report did not address environmental is-sues, nor did it look at Fukushima through the lens of a SAMA analysis. At bottom, the Com-monwealths assertions are simply attacks on the standards for issuance of a renewed license in 10 C.F.R. § 54.29. Such collateral attacks on an NRC rule are impermissible. See 10 C.F.R. § 2.335. As such, the CLB issues raised in the Task Force Report and repeated by the Common-wealth and Dr. Thompson - such as spent fuel pool instrumentation and accident mitigation, hardened vents, and hydrogen control and mitigation - are outside the scope of this proceeding and therefore fail to show any error of law or fact in the Board majoritys ruling.62 D. The Commonwealth Provides No Legitimate Basis to Disturb the Rulings Re-jecting Its Contention None of the Commonwealths remaining arguments on appeal demonstrate any clear er-ror of fact, error of law, or other defect in the Board majoritys rulings rejecting the Contention.

62 In any event, the Commission has taken action in response to the Task Forces recommendations. In response to the Task Forces recommendations, the Commission directed further Staff action, including longer-term review of the implications of the accident for U.S. facilities. CLI-11-05 at 32. Further, the NRC may implement changes to its regulations and regulatory processes, which may be accomplished in a variety of ways, such as via issuance of Commission orders, or by formal changes to our regulations, all pursuant to our normal processes. Id.

17

As an initial matter, the Commonwealth wrongly asserts that the majority inappropriately applied a heightened standard of review and evaluated and rejected the merits of the Common-wealths expert opinion - at the contention admission stage of this proceeding. Brief at 12; see also id. at 23-28. Much more than contention admissibility is at issue here. The threshold ques-tion is whether the Commonwealth has met the Commissions stringent standards for reopening the record, which as previously discussed are consistent with NEPA and apply here.63 Turning to the application of the reopening standards, the Board majority correctly ruled that the Commonwealths claims were not timely raised, did not implicate a significant environ-mental issue, and did not demonstrate that a materially different result would have been likely had those claims been considered initially. First, the majority correctly found that the Common-wealth had completely failed to make any connection between its macroscopic observation of the overall frequency of material offsite radiological release for nuclear power plants worldwide and the event sequence analysis employed in the Pilgrim SAMA analysis. LBP-11-35 at 51-52 (footnote omitted); see also id. at 51 n.203, 53 n.207, 60, 64, 66. For this reason, the majority ruled that the Commonwealths claims did not provide any new information respecting the Pil-63 The evidentiary burden required to reopen the record is akin to that required to withstand summary disposition, PFS, CLI-05-12, 61 N.R.C. 345, 348 (2005), which is much more rigorous than the lesser showing required for an admissible SAMA contention. Diablo Canyon, CLI-11-11, 74 N.R.C. at 19-20 (discussing its ruling in Pilgrim, CLI-09-11, 69 N.R.C. 529 (2009)). And the reopening standards are much more rigorous than for summary disposi-tion. Oyster Creek, CLI-08-28, 68 N.R.C. at 673-74 (affd, New Jersey Envtl. Fedn) (rejecting an argument that the summary disposition standard should apply to reopening motions, ruling that to do so would effectively excise the reopening and nontimely filing standards and replace them with a reformulated section 2.710, stripped of its own timeliness requirements and applied to a post-decisional context for which it was not intended). Thus, while not required to prove its contention, in this post-decisional context the Commonwealth must come forward with suffi-cient and timely evidence that, inter alia, demonstrate[s] that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 10 C.F.R. § 2.326(a)(3). The Common-wealth failed to meet this very rigorous reopening standard, particularly in view of the extensive declaration pro-vided by Entergy. Further, the Third Circuit has explicitly rejected the argument raised by the Commonwealth here that an NRC Board impermissibly adjudicated the merits of [a] challenge by applying the NRCs reopening stan-dards to proffered evidence. New Jersey Envtl. Fedn, 645 F.3d at 233-34 (emphasis added) (holding that the NRC licensing board appropriately weighed the evidence before it because Section 2.326 requires evidence of a signifi-cant issue for which prior consideration of the evidence would have . . .likely led to a materially different result).

18

grim plant. Id. at 52.64 As such, the Commonwealths assertion is reduced to claiming that ap-plying the macroscopic data leads to a much higher probability of severe accidents than that used in the Pilgrim SAMA analysis. But as the majority appropriately ruled, even at the outset of this proceeding, a direct experience computed frequency of severe reactor accident occurrence would have been well above that assumed in the Pilgrim SAMA analysis by a factor of five. LBP 35 at 52 n.206. Thus, the Commonwealth failed to show that it could not have raised the Contention earlier,65 and as such the Contention is not timely.66 Second, consistent with Commission precedent established in this proceeding on the showing required to challenge a SAMA analysis,67 the majority ruled that the Contention failed to demonstrate that a materially different result would be obtained because the claims fail[] to recognize or address the methodology by which the [Pilgrim SAMA analysis] probabilities of the various chains of events are developed and it fails to discuss how these methodologies might (let alone should) be adapted to utilize the macroscopic information. LBP-11-35 at 60, 62. As 64 The Commonwealth claims that the Board majority, by its ruling, inappropriately concluded that real world ex-perience is irrelevant and that actual experience should not be used in probabilistic analysis. Brief at 3, 20; see also id. at 19, 21. However, the majority never ruled that real world experience was irrelevant to probabilistic analy-ses, but rather that the Commonwealths direct experience claim has a fatal flaw in that it fails completely to in-dicate how [its] direct experience leads to any data affecting the [core damage frequencies] for the Pilgrim plant.

LBP-11-35 at 51. In this respect, as noted in Entergys Declaration, none of the five core-melt data points in Dr.

Thompsons direct experience database are applicable to Pilgrim. Entergy Decl. at ¶ 34.

65 See, e.g., Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 N.R.C. 62, 76 (1992); Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI 02, 73 N.R.C. __, slip op. (Mar. 10, 2011) at 6 (CLI-11-02) (quoting Oyster Creek, CLI-09-7, 69 N.R.C. at 271-72). See also 51 Fed. Reg. at 19,536 (explaining that under NRC case law timely is defined as whether the is-sues sought to be presented could have been raised at an earlier time).

66 The Commonwealth also failed to demonstrate good cause for its late Contention because it was untimely, and the balance of the remaining late factors does not overcome this failure. LBP-11-35 at 64. The majority ruled that a new hearing would unduly broaden and delay the proceeding, id., which is consistent with the Commissions recent ruling that the introduction of a new contention, well after the contested proceeding closed, would broaden the is-sues and delay the proceeding. Vogtle, CLI-11-08 at 18. The Commonwealth does not dispute this ruling.

67 The SAMA analysis is a site-specific mitigation analysis of the mean estimated values of consequences for postulated accident scenarios, and [u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety en-hancements are cost-effective to implement. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 317 (2010) (emphasis added and in original).

19

stated by the majority, the only basis provided by Dr. Thompson was a statement of belief lacking in factual or technical basis.68 Id. Much more is required to reopen a closed record, see note 63 supra, particularly given Entergys extensive declaration discussed further below.

Third, the Board majority correctly ruled that the Contention failed to raise any signifi-cant, let alone grave, issue. Consistent with Commission precedent,69 the issues raised were not grave because the Commonwealth and Dr. Thompson fail[ed] completely to implicate any par-ticularized threat to public safety at the Pilgrim plant. LBP-11-35 at 54. Also consistent with Commission precedent,70 the Board majority ruled that Dr. Thompson had merely point[ed] to reasons why he believes consideration of information from the Fukushima accident would lead to revisions to the Pilgrim SAMA analysis that, in turn, could lead to other SAMAs becoming cost effective, which amounted to bare and unsupported, and therefore speculative statements that cannot provide the requisite support for reopening the closed record. LBP-11-35 at 54 (emphasis in original and added, respectively) (footnote omitted). Finally, the Board majority ruled that, while the Commonwealth and Dr. Thompson aver[red] that other SAMAs might be-come cost effective, they indicate[d] neither any particular positive environmental impact from any such implementation nor any specific negative environmental impact from failure to do so 68 For this same reason, the majority also correctly found the contention inadmissible under Section 2.309(f)(1)(vi) for failing to demonstrate any genuine dispute on a material issue. LBP-11-35 at 65-67; see Callaway, CLI-11-05 at 33 (mere conclusions or speculation will not suffice to support an admissible contention).

69

[E]xceptionally grave means a sufficiently grave threat to public safety. 51 Fed. Reg at 19,536 (emphasis added) (quoting Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358, 365 n.10 (1973)).

70 PFS, CLI-06-3, 63 N.R.C. at 29 (equating the standard for raising a significant environmental issue under Section 2.326 with the standard that governs whether supplementation of an EIS is required); Oyster Creek, CLI-08-23, 68 N.R.C. 461, 486 (2008) (rejecting a motion to reopen where movants provided only mere speculation that the con-tention might materially alter conclusions in the final safety evaluation report); Callaway, CLI-11-05 at 33 ([M]ere conclusions or speculation will not suffice to support an admissible contention, and [a]n even heavier burden ap-plies to motions to reopen (citing Oyster Creek, CLI-09-7, 69 N.R.C. at 286-87).

20

and thus failed to paint the required seriously different picture of the environmental land-scape. Id. at 57 (quoting CLI-11-05 at 31). See also id. at 62-63.71 In addition to the reasons set forth by the Board majority, Entergy proffered extensive evidence that the Commonwealths claims failed to comply with Section 2.326. Among other evidence, Entergy showed that Dr. Thompsons direct experience method for calculating core damage frequency (CDF) is not a scientifically acceptable approach for determining the CDF for a specific plant in that it has no basis in logic, has never been used to calculate a CDF, and violates fundamental precepts of PRA analysis long established and applied by the NRC. En-tergy Decl. at ¶¶ 18-32. A long line of NRC regulatory precedents (see Entergy Decl. at ¶ 25) makes clear that PRAs and the CDFs calculated by PRAs are to be based on plant-specific de-sign, operation and site-specific considerations. Contrary to this long line of NRC precedent, Dr.

Thompsons direct experience CDF method would ignore these significant differences in plant design and operation and site characteristics that directly affect the probability of a core damage event. Instead, with no explanation or rationale, Dr. Thompson would establish one CDF for all plants even though, for example, they may never be subject to a tsunami. Entergy Decl. at ¶¶ 16-24, 33-34. Stated differently, no matter how many severe accident mitigation features that Pil-grim or any other plant adds, the risk of core damage cannot be improved beyond the direct ex-perience CDF established for all plants. Id. at ¶ 22. Such a conclusion defies logic.

Moreover, Entergy demonstrated that the Pilgrim SAMA analysis accounts for severe ac-cident radiological releases that are much larger than the reported releases from all three dam-aged Fukushima units combined. As such, the consequences of the severe accident scenarios 71 Consistent with Commission precedent that failure to supply affidavits fully compliant with Section 2.326(b) is sufficient grounds to reject a contention, Vogtle, CLI-11-08 at 9 (emphasis added), the majority correctly ruled that this requirement was not met because, for the reasons set forth above, Dr. Thompson failed to provide any technical and factual basis demonstrating the existence of a significant environmental issue or that a materially different result would be likely. LBP-11-35 at 62-63.

21

considered in the Pilgrim SAMA analysis more than bound the severe accident conditions that occurred at Fukushima, and the results of any reanalysis of the Pilgrim SAMA analysis to take Fukushima into account would remain unchanged. Entergy Decl. at ¶¶ 89-91.

On appeal, the Commonwealth fails to demonstrate that the Board majority made any clear error of fact or error of law. The fundamental premise of the Commonwealths alleged er-rors is that the Board majority improperly applied a heightened standard of review (Brief at 23-28). But as discussed above, such a heightened standard is wholly appropriate under the Com-missions reopening standards and fully consistent with NEPA. Also, the alleged legally errone-ous primary findings of the Board majority claimed by the Commonwealth (Brief at 28-30) fail to show any clearly erroneous factual errors that would require review or be reversible.

First, the Board majority did not find Dr. Thompsons direct experience analysis untimely simply because it included the core melts at Chernobyl and Three Mile Island. Brief at 28.

Rather, the majority was clear that, even before Fukushima, a direct experience analysis would result in a CDF a factor of five times larger than that assumed in the Pilgrim SAMA analysis.

LBP-11-35 at 52-53.

Second, claiming that the NRCs own review of Fukushima lessons learned exposed the weaknesses in all U.S. reactors, including those like Pilgrim with designs similar to Fukushima, the Commonwealth disputes the majoritys ruling that it provided no linkage between its mac-roscopic observations of Fukushima and Pilgrims SAMA analysis. Brief at 29. This claim pro-vides no basis for reversal. As previously discussed, the Task Force Report concerned safety-related, CLB issues that are outside the scope of this proceeding (and, in any event, provide rec-ommendations for how the safety of plants already deemed safe could be further enhanced).

22

Third, the Commonwealths assertion that it showed that a materially different result would be likely because Dr. Thompsons direct experience method would result in the ex-pected benefits of a particular SAMA increasing by a factor of ten (Brief at 29) misstates Dr.

Thompsons report.72 More importantly, it does not dispute the majoritys findings that Dr.

Thompsons direct experience method is nothing more than mere speculative belief lacking suf-ficient technical or factual basis, and is otherwise devoid of any explanation of how the direct experience method - which by its very nature would apply to every nuclear power plant in the world - should apply to Pilgrim. The Commonwealths simplistic and speculative assertion that the benefit for every Pilgrim SAMA should be multiplied by ten, regardless of its site-specific characteristics, and thus may result in more SAMAs becoming potentially cost beneficial contra-venes clear Commission precedent that the SAMA analysis is site specific, CLI-10-11, 71 N.R.C. at 317, and otherwise falls far short of the demonstration required to reopen the hearing record, particularly in view of Entergys declaration. See Entergy Decl. at ¶¶ 18-36.

Fourth, the Commonwealth erroneously claims that it raised significant information (Brief at 30) based on the concurrences assertions that there is insufficient information to con-clude that consideration of relevant Fukushima issues could not lead to significantly different analysis of the environmental consequences of renewing the pilgrim operating license, and that the Commonwealth has shown at least some likelihood that information on Fukushima could have some such impacts, LBP-11-35 at 76 (emphasis in original and added). The concur-rences assertions amount to the same sort of speculation that the Commission has repeatedly ruled is insufficient to reopen the record (and therefore insufficient to present any different (let 72 The 2011 Thompson Report nowhere states that, after applying the direct experience CDF, the benefit from fil-tered venting would rise from $872,000 to $8,720,000. In fact Dr. Thompsons Report completely ignores the Pil-grim SAMA analysis of the cost-benefit of installing a filtered vent. Nowhere in his report does he address the Pil-grim SAMA analysis of filtered venting or assert any specific deficiency in the analysis based on Fukushima. See Thompson Report, Issue #6: Filtered Venting of Reactor Containment, at 28-29; Entergy Decl. at ¶¶ 92-99.

23

alone seriously different) picture of the environmental landscape). Stated succinctly, even if cor-rect - which they are not - they do not demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially as required by the rule. 10 C.F.R. § 2.326(a)(3) (emphasis added).

E. The Board Majority Correctly Denied the Commonwealths Waiver Petition The majority correctly rejected the Waiver Petition because the Commonwealths claims were not unique to Pilgrim. LBP-11-35 at 15-16. The Commonwealth does not challenge this ruling, and in effect acknowledges its correctness in asserting that the context for the Commis-sions review of the lessons learned from Fukushima is for all U.S. nuclear plants. Brief at 29 (emphasis in original).

Moreover, the Board majoritys ruling that the Commonwealth failed to raise a signifi-cant environmental issue (for which the Commonwealth shows no clear error) would apply to the criteria for rule waiver.73 Contrary to its suggestion in its Brief at 29, the Commonwealth pro-vided no new information based on Fukushima that would negate the Commissions determina-tion in its 2008 Rulemaking Denial (affirmed by the Second Circuit) that the risk of spent fuel pool fire is very low. 73 Fed. Reg. at 46,207.74 The Commissions conclusion was based on

[s]tudies conducted over the last three decades [that] have consistently shown that the probabil-ity of an accident causing a zirconium fire in an SFP to be lower than that for severe reactor ac-cidents. Id. Dr. Thompsons Report, relied upon by the Commonwealth to support its claims, neither mentions these extensive studies nor makes any attempt to say whether they are in any-73 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C.

551, 559-560 (2005) (quotations and citations omitted) (requiring demonstration of a significant safety problem for rule waiver). For waiver of an environmental rule, this would require demonstration of a significant environmental issue.

74 As previously addressed, the Commonwealths mere claim of new and significant information does not negate the Commissions Category 1 determination for the environmental impacts of spent fuel pools. Vermont Yan-kee/Pilgrim, CLI-07-3, 65 N.R.C. at 21; Pilgrim, CLI-10-14 at 36.

24

way affected by Fukushima. Entergy Decl. at ¶¶ 44, 46. Further, Dr. Thompsons claims rest on the same 50% conditional probability of a spent fuel pool fire in the event a severe reactor acci-dent rejected by the Commission in its Rulemaking Denial. See Entergy Decl. ¶¶ 39, 59-60.

Furthermore, the direct experience from Fukushima corroborated the Commissions de-termination that there would be a significant amount of time from the initiating event to the possible onset of a zirconium fire, thereby providing a substantial opportunity for both operator and system event mitigation. Rulemaking Denial, 73 Fed. Reg. at 46,208.75 In fact, there were no spent fuel pool zirconium fires at Fukushima, and available evidence shows that the spent fuel pools survived the accident nearly undamaged. Entergy Decl. at ¶¶ 56-63.

In short, the Commonwealth provided no new information to show that Fukushima raises any significant environmental issues concerning spent fuel pools that were not previously ad-dressed by the Commission.

IV. CONCLUSION For the foregoing reasons, the Commission should reject the Commonwealths Appeal.

Respectfully Submitted,

/signed electronically by Paul A. Gaukler/

David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 E-mail: paul.gaukler@pillsburylaw.com Dated: December 19, 2011 Counsel for Entergy 75 As noted in the Commissions Rulemaking Denial, following September 11, 2001, all U.S. nuclear utilities have been required by Commission Order (Mitigating Strategies Requirements from Order EA-02-026, Section B.5.b.) to establish a range of mitigative measures to respond to events that could lead to a serious accident, including the si-multaneous loss of offsite and onsite power. These required mitigative measures include providing an independent portable power supply, external to the plant, to pump makeup water from different external sources to the spent fuel pool. Entergy Decl. at ¶¶ 50-56.

25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of Entergys Answer Opposing the Commonwealths Appeal of LBP-11-35, dated December 19, 2011, was provided to the Electronic Information Exchange for service on the individuals below, this 19th day of December, 2011.

Secretary Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail@nrc.gov hearingdocket@nrc.gov Administrative Judge Atomic Safety and Licensing Board Ann Marshall Young, Esq., Chair Mail Stop T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ann.Young@nrc.gov Administrative Judge Administrative Judge Dr. Richard F. Cole Dr. Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board 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 Richard.Cole@nrc.gov Paul.Abramson@nrc.gov 403220018v6

Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Andrea Z. Jones, Esq. Commonwealth of Massachusetts Brian Harris, Esq. Office of the Attorney General Beth Mizuno, Esq. One Ashburton Place Office of the General Counsel Boston, MA 02108 Mail Stop O-15 D21 Martha.Coakley@state.ma.us U.S. Nuclear Regulatory Commission Matthew.Brock@state.ma.us Washington, DC 20555-0001 Susan.Uttal@nrc.gov ; andrea.jones@nrc.gov ;

brian.harris@nrc.gov ; beth.mizuno@nrc.gov Ms. Mary Lampert Sheila Slocum Hollis, Esq.

148 Washington Street Duane Morris LLP Duxbury, MA 02332 505 9th Street, NW mary.lampert@comcast.net Suite 1000 Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Richard R. MacDonald Town Manager Town Manager Town of Plymouth 878 Tremont Street 11 Lincoln St. Duxbury, MA 02332 Plymouth, MA 02360 macdonald@town.duxbury.ma.us msylvia@townhall.plymouth.ma.us Chief Kevin M. Nord Katherine Tucker, Esq.

Fire Chief and Director, Duxbury Emergency Law Clerk, Management Agency Atomic Safety and Licensing Board Panel 688 Tremont Street Mail Stop T3-E2a P.O. Box 2824 U.S. Nuclear Regulatory Commission Duxbury, MA 02331 Washington, DC 20555-0001 nord@town.duxbury.ma.us Katie.Tucker@nrc.gov

/signed electronically by Paul A. Gaukler/

Paul A. Gaukler 2

Retrieved from "https://kanterella.com/w/index.php?title=ML11353A562&oldid=2464887"