ML11354A283

Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on a New Contention Re Inadequacy of Environmental Report, Post Fukushima - Aqueous Discharges

ML11354A283
Person / Time
Site:	Pilgrim
Issue date:	12/20/2011
From:	Lampert M Pilgrim Watch
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21585, 50-293-LR, ASLBP 06-848-02-LR
Download: ML11354A283 (57)

Text

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application December 20, 2011 Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on A New Contention Regarding Inadequacy of Environmental Report, Post Fukushima -Aqueous Discharges Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 December 20, 2011

TABLE OF CONTENTS INTRODUCTION......

1 DISCUSSION..

2 A PWS CONTENTION MEETS THE REQUIREMENTS FOR THE ADMISSIBILITY FOR NONTIMELY CONTENTIONS, 10 CFR § 2.309 (c)..

2 B. PWS CONTENTION MEETS CONTENTION ADMISSSIBILITY REQUIREMENTS (10 CFR § 2.309 (f))...

23 C. PWS CONTENTION MEETS THE REQUIREMENTS FOR REOPENING, 10 CFR § 2.326 37 CONCLUSION 55

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application December 20, 2011 Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on A New Contention Regarding Inadequacy of Environmental Report, Post Fukushima -Aqueous Discharges INTRODUCTION Pilgrim Watch respectfully requests leave to file a response to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima. Entergy and NRC Staff make essentially the same comments in their answers to Pilgrim Watchs Request submitted November 18, 2011; for efficiency, Pilgrim Watch will reply to both in this one filing.

Contrary to Entergys and the NRC Staffs arguments:

1. PW has met the standards for a new late-filed contention (10 C.F.R. § 2.309)

2. PW has met the standards for an admissible contention (10 C.F.R. § 2.309(f)(1)(2). PWs Request raises issues that are material, sufficiently supported, and demonstrates a genuine dispute with LRA.

2

3. Pilgrim Watch's position remains that a motion to reopen under 10 C.F.R § 2.326 is not required in an on-going proceeding that is utterly unrelated to anything that has previously been litigated or one as to which any record has been closed, and that the Board's decisions to reject PW's previous contentions on the ground that a motion to reopen was required were wrong.1 Those decisions are now the subject of Petitions for Review to the Commission. However, to avoid unnecessary procedural wrangling, and without waiving its current and previous position, Pilgrim Watch moves, in the alternative, that this new contention should be accepted pursuant to any portions of 10 C.F.R § 2.326 that may be deemed by the ASLB as pertinent here.

DISCUSSION A.

PWS CONTENTION MEETS THE REQUIREMENTS OF 10 CFR § 2.309 ADMISSIBILITY FOR NONTIMELY CONTENTIONS PWs new contention is based on new and significant information that includes: On-going information from Fukushima;2 SECY-11-0089 (July 7, 2011); the Commissioners 1 The majority of Entergys Answer and hundred plus pages of Entergys attached Declarations and Exhibits, seek to show the Pilgrim Watch has not satisfied the standard for reopening. As made clear below, PW is not required to meet the reopening standards, although PW has done so. Entergy seems implicitly to admit that most of the its extended discussion of reopening, and its declarations and exhibits, are not relevant to the real question before this Board, whether PWs contention meets the standards for a new contention. As discussed below, what the relevant rules require for a new contention is far less than what is required to reopen the record on a contention that has already been decided. PW has fully met the requirements for a new, late-filed contention.

2 Recent example of pertinent lessons learned: Japan May Declare Control of Reactors, Over Serious Doubts, New York Times, Martin Fackler, Dec 14, 2011 reported that, Some experts said talk of a cold shutdown deflected attention from the more pressing problem of further releases of radioactive contamination into the environment. In particular, they said there was still a danger to the nearby Pacific Ocean from the 90,000 tons of contaminated water that sit in the basements of the shattered reactor buildings, or are stored in fields of silver tanks on the plants grounds. At this point, I would be more worried about the contamination than

3 vote on SECY-11-0089 (September 11, 2011); and Severe Accident Management Guidelines (SAMGs) that provide for using water from the ocean, in Pilgrims case, to fill the containment until the level is higher than the top of the active fuel in the reactor core in an effort to cool the reactor core by immersion in water, assuming all other means failed.

The plant-specific calculations performed to support this SAMG step consider how high the containment must be flooded to achieve this condition. There is no provision within the SAMGs for processing the water post-accident. PW unsuccessfully searched ADAMS for Pilgrims site-specific analysis to obtain pertinent data for the contention and then contacted Region I (Nov 3, 2011). Ronald R. Bellamy, Chief Projects Branch 5 replied that Pilgrims plan is not publicly available (Nov 11, 2011)3. The foregoing new and significant information is ignored in Entergys 2006 SAMA.

The information did not become available to the public (including Pilgrim Watch) until sufficient reports became available after the Fukushima disaster; after it became clear what actions that the NRC would or would not take in response to lessons learned; and after learning that site-specific pertinent information was not currently available. The information is clearly new satisfying 10 C.F.R. § 2.309 (f)(2)(i),(ii) contrary to Entergy (at

33) and NRC (at 7).

whats happening inside the reactors, said Murray E. Jennex, an expert on nuclear containment at San Diego State University. (Emphaisis added) 3 Pilgrims plant specific calculations in response to the SAMG flooding step are not available on ADAMS and awaits discovery in this proceeding. Email from Ronald R. Bellamy, Chief Projects Branch 5, 11/15/11:

On November 3, you emailed Bill Dean with a request for a copy (or ADAMS reference) for Entergys analysis to determine trigger set-points and additional information for Severe Accident Mitigation Guidelines We have searched for any such documentation here in the region, in Headquarters, and in ADAMS. We also spoke to our technical experts. This document was not something that needed to be sent to the NRC and docketed, and we have been unable to find a copy in our system. (Request Hearing, 11-12)

4 NRC (at 7) incorrectly argues that that PWs proposed new contention does not contain previously unavailable information and the information was not brought forward in a timely manner. Entergy makes two arguments that PWs contention should not be admitted. It first says, incorrectly that PW has shown no good cause for its extreme tardiness, and a balancing of the remaining factors in 10 C.F.R. § 2.309 (c) does not outweigh this failure. (Entergy, 33) Further Entergy says that PW will delay the proceeding (Entergy, 35) and is not expected to assist in developing a sound record.

(Entergy, 37) It then says that Pilgrim Watchs contention does not satisfy the pleading requirements of 10 C.F.R. § 2.309 (f)(1). (Entergy, 39)

Entergys arguments fail. PW showed good cause for its new contention, and the new contention plainly satisfies the relevant pleading requirements of 2.309, and 2.326.

Entergy and Staff apparently admit that factors (ii), (iii), (iv), (v) and (vi) all weigh in favor of admitting the contention. The Board should note that § 2.309(e)(1) is quite specific that two of these factors that Entergy apparently admits favor Pilgrim Watch (i.e.,

iii and iv) weigh[] in favor of allowing intervention, and that even Entergy nowhere asserts that two of the factors (v and vi that might weigh[] against allowing intervention favor Entergy rather than PW.

Entergys and Staffs argument that factors one, seven and eight do not also weigh in favor of allowing intervention is simply wrong.

1.

Factor 1: Pws Request Is Timely-Good Cause (10 § C.F.R. 2.309 (c)(i)

PWs Request is based on new information and was provided in a timely manner satisfying requirements in both 10 § C.F.R. 2.309 and 10 § C.F.R. 2.326.

5 Good cause means that the new contention is based on information that was not previously available and it is brought forward in a timely manner. Both NRC and Entergy make essentially the incorrect argument that the information brought forward is not new information and Pilgrim Watchs challenges are not new information and could have been raised long ago, rendering them untimely now. (Entergy, 11; NRC, 7 & 10)

PWs new contention is based on new information and was timely filed. It is based on the following. (1) Lessons learned from Fukushima: Information was needed to sufficiently support the contention; although this is ongoing, sufficient information became available at only shortly before the time the Request was filed. (2) SECY-11-0089: The SECY was published in July 2011 and SRM-SECY-111-0089 was issued on September 21, 2011. PW filed 58 days later during which time PW, non-profit and unfunded, did the necessary preparatory work for the filing. (3) Pilgrims site-specific SAMGs are relevant to the filing. Pilgrims SAMGs still are not available to the public. PW made a concerted and very time-consuming effort to locate them in ADAMS, contacted the NRC, and received notice from NRC that they were not available on November 15, only three days before filing the Request.

NRC and Entergy support their unreasonable and incorrect argument that the Request was not timely as follows:

a.

MACCS2 Code: Both argue that it has been known since the MACCS2 codes conception that it did not model aqueous discharges, only atmospheric discharges.

(Entergy, 12; NRC, 8) They fail to recognize that in 2006, Pilgrim Watch did not, reasonably could not be expected to know, what Entergy had and had not modeled. Base

6 code itself is essentially unavailable; and to the extent available there was no way at that time to know what Entergy actually had done. Further, if as NRC claims, the deficiency in the MACCS2 code existed since the Applicant filed its Environmental Report (ER) in 2006, why was the deficiency not highlighted by NRC in the SEIS? The likely answer is either NRC chose to not do its job or the agency did not appreciate its significance until after sufficient lessons were learned from Fukushima.

b.

Feed and Bleed: NRC says that Pilgrim Watch implies that the use of feed and bleed in Fukushima constitutes new information that was previously unavailableHowever feed and bleed as a method of emergency response long predates the Fukushima incident... the use of feed and bleed at Fukushima was reported months ago, as early as March 14, 2011 and has been an accepted part of emergency planning.

(NRC, 9)

They overlook what is in fact new: the huge quantity of water required to feed the reactor; the huge quantity of water that was bled, and continues to leak into the ocean according to reports as recent as December 15, 2011; and the need for a plan to process the water post accident.

The apparent underlying old assumption was that the amount of water that would be required to be fed into the reactor was relatively small; only enough to cover the assemblies as shown by NUREG/CR-5634, pg., 4-19. For example, it says that flooding Peach Bottom (BWR) NPS containment up to the reactor pressure vessel (RPV) bottom head takes 1,500,000 gallons. But there is no provision within the SAMGs for processing this water post-accident; and the apparent incorrect assumption was that the water would stay inside.

7 Entergys December 13 Answer, like NRCs, somehow assumes that Pilgrim Watch should have known in 2006 what neither Entergy nor NRC knew; a huge quantity of water would be required, and subsequent bleeding of that water offsite, in a severe accident similar to what Pilgrims Fukushima twins experienced and recognized it should be modeled in the SAMA.

The new information, that Entergy and NRC chose to overlook, is that Fukushima showed that far more water would be pumped into the reactor containment and far more water would leak out and do so over an extended period4. The SAMA requires further analysis before any license renewal decision is made by NRC to fill this significant gap.

c.

SECY-11-0089: Entergy argues that the document and Commissioners vote are not new information because documents that merely collect, summarize, or place into context previously available information do not support the timeliness of a new contention. (Entergy, 14)

What Entergy avoids saying is that the SECYs focus on the need to model aqueous transport and dispersion of radioactive materials stems from new and unfolding understanding from Fukushima that, As demonstrated by the recent events in Japan, certain accident scenarios can result in large volumes of contaminated water being generated by emergency measures to cool the reactor cores and SFPs, with yet to be determined offsite consequences. To determine the relative risk significance of these types of scenarios, a level 3 PRA must be capable of modeling and analyzing the 4 PW incorporated in this contention PWs May 11, 2011 Request for Hearing On Post Fukushima SAMA Contention that showed that releases extending over a considerable duration (months) must be considered and modeled in Entergys SAMA analysis. Accidents over an extended time period will require a greater volume of water for flooding the reactor and larger volume bleeding out significantly increacing the impact on the marine environment and economy. (Request for Hearing, pg., 9)

8 aqueous transport and dispersion of radioactive materials through surface water, sediments, soils and groundwater. (SECY-11-0089, Enclosure 1, pg.,

21) (Emphasis added)

The language used in the SECY and later Commissioner Apostolakis Voting Record, In light of the accident a Fukushima Dai-ichiwe need an updated assessment of risk, including consideration of risk per site (emphasis added) shows that NRC was not merely summarizing previously available information out of boredom but rather responding to new and significant lessons learned.

d.

30-Day Clock: NRC and Entergy admit that they are unsure as to when a contention based on new information must be filed; but they try to create a 30-day rule. 10 C.F.R. Part 2 has many rules that specify precisely in how many days certain pleadings must be filed. No rule specifies in how many days a late filed contention had to be submitted.Timely requires that PW act reasonably; but not within a specific number of days.

NRC (at 10) admits that Although NRC regulations do not precisely define when an amended or Proposed New Contention has been submitted in a timely fashion.several boards have established a 30-day rule.

Entergy says that, [t]ypically a 30-day clock applies to filing of a new contention based on new information. (Entergy, 14) But a sentence later they say, Licensing Boards generally consider approximately 30-60 days as the limit for timely filings based on new information. (Id) The words that they used - typically, generally, approximately -

makes it clear that there is no hard and fast rule.

9 Entergy misrepresents the facts when it says that at Pilgrim a 30-day window would apply, citing the December 20, 2006 Order (Establishing Schedule for Proceeding and Addressing Related Matters) at 6-7. That Order specifically provided a Schedule for the already admitted proceeding-the contentions accepted in 2006 and any new contentions based on the preliminary/final SER and SEIS. It was not, and could not be, a schedule for contentions based on lessons learned from Fukushima in 2011-contentions that NEPA requires consideration before a final decision on Entergys application is made by NRC.

Whatever the appropriate time frame may be for considering new information late in a proceeding, the Supreme Court has made it clear that an agencys NEPA obligations to consider new and significant environmental information continues until the time the action is taken (March v Oregon natural resources Council, 490, US. 360, 372, (1989)

Further, Entergys 30-day clock argument ignores a critical fact: It takes time for a petitioner to submit a proper, not frivolous, contention. It is a labor intensive job. Entergy with essentially endless financial resources may be able to do this within a month or so. An unfunded public interest group, represented pro se, with one person shouldering the work, cant. If the NRC does in fact want public participation then the flexibility created by timely must be allowed.

In the Oyster Creek License Renewal Adjudication Process, Judge Baratta correctly warned that:5 5 Memorandum and Order (Denying Citizens Motion to Reopen the Record and to Add a New Contention)

(2008/07/24-LB), Dissent

10

[T]o deny Citizens motion and eliminate their access to the only means that will allow them to confront what appears to be a significant safety issue would be a grave error.

The most recent edition of the NRC Digest says that Public participation through intervention is a positive factor in the licensing process and Intervenors perform a valuable function and are to be complimented and encouraged. (Prehearing Matters, 11) PW trusts that the NRC means what it has said, and that PW will be permitted to perform our indisputable valuable function, and be allowed to confront a significant issue.

Two Additional Arguments Raised By Entergy Have Nothing to Do with Timeliness

e.

Relating Events From Fukushima To Pilgrim: Entergy absurdly argues that the Request is untimely because PW fails to provide any information relating the events that occurred at the Fukushima plants to the Pilgrim plant. (Entergy, 16)

This has nothing to do with timeliness. But it does show that Entergy wants everyone to forget that Pilgrim is essentially a twin to those at Fukushima, a failed GE Mark I BWR design. In PWs November request (Request 8-9), it referenced and incorporated previous filings that addressed new and significant information regarding the probability of a severe accident and substantial offsite consequences.6 It established as credible both the need to flood the reactor and the probability that contaminated water 6 PWs June 1, 2011 Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima we showed that Entergy must factor into its SAMA analysis the probability of containment failure, hydrogen explosions, and subsequent larger off-site consequences due to failure of the direct torus vent (DTV) to operate. This establishes as credible both the need to flood the reactor and the probability that contaminated water would bleed out.

In PWs May 11, 2011 Request for Hearing On Post Fukushima SAMA Contention we showed that releases extending over a considerable duration (months) must be considered and modeled in Entergys SAMA analysis. Accidents over an extended time period will require a greater volume of water for flooding the reactor and larger volume bleeding out significantly increacing the impact on the marine environment and economy.

11 would bleed out and provided a basis for the need to model aqueous dischages in a further SAMA analysis.

Lessons learned from Fukushima, provide direct experience-a reality check that is directly applicable here. Comments by Administrative Judge Ann Marshall Young, Concurring in Part and Dissenting in Part (LBP-11-23, Sept 8, 2011) reinforce our point.

What is new, of course, is the fact of the accident at the Fukushima Daiichi nuclear power plant in Japan, and whatever practical, real-world information it provides that may enable improved understanding of issues that may not in themselves be new. The contentions arise out of such new, real-world information on the Fukushima accident. Whatever the merits of this information as to any other required criteria, the newness and timeliness of it is a separate matter, and this sort of reality-based information is obviously qualitatively different than predictions of accident factors, probabilities, and progressions, no matter how well-founded. The information, whatever other shortcomings it may have, is manifestly new. (Emphasis added)

Pilgrim Watchs contentions are also supported by other, previously-existing information that serves as context and provides additional bases for the contentions. But this circumstance negates neither the new-ness of the Fukushima-related information, nor the value of either sort of information, whatever its worth otherwise. Looking at the situation in the plain light of day, I find that Applicant and Staff in their arguments seem to have developed a somewhat purposeful blind spot in this regard and, as with some of their other arguments, tend to fall into a sort of overzealous, overkill syndrome (which can at times undermine their overall credibility). The accident at Fukushima happened, and it happened at reactors of the same model as the Pilgrim reactor.

In this light, not to consider information concerning the severe accident at the Fukushima plant as new information that is relevant to the Pilgrim SAMA analysis - the severe accident mitigation alternatives analysis would seem to be short-sighted, if not indeed absurd. (Young, 2-3)

f.

Averaging: Finally, Entergy argues that PWs claim that Entergy must use the 95th percentile of total consequences instead of the mean is untimely. (Entergy, 17)

Entergys argument does not hold water any better than Fukushimas containments. First, the issue is whether PWs contention is timely, not the percentile used. Perhaps more important Entergy tries to pull the same old rabbit out of the hat saying It is standard

12 NRC policy and practice for the SAMA analysis to use the mean. By now, it should be clear that policy and practice are neither a regulation nor a requirement. It was Entergys choice to use the mean, and this was a poor one. The mean dilutes offsite consequences and costs as PW demonstrated in argument on the SAMA Remand. Second, Entergy absurdly argues that the 95th percentile could have been raised at the outset of this proceeding. (Entergy 17) Aqueous discharge is a brand new contention. PW raised the 95th percentile with respect to this contention filed on November 18, 2011. (PW Request,

11)

g.

PW Concludes in response to Entergys and NRCs unfounded accusations that Pilgrim Watch has shown good cause. The contention arises out of real-world information. Good cause has been consistently interpreted to mean that a proposed new contention be based on information that was not previously available, and was timely submitted in light of that new information. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 N.R.C. 115, 125-26 (2009) citing Pacific Gas

& Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation),

CLI-08-1, 67 N.R.C. 1, 6 (2008). See also, NRC Digest, Prehearing Matters, 29: Newly arising information has long been recognized as providing "good cause" for acceptance of a late contention. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 577 (1982), citing Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75, 5 AEC 13, 14 (1972); Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570, 574 (1980), appeal dismissed,ALAB-595, 11 NRC 860 (1980).

13 Here is it clear that: (1) the information is new and could not have been presented earlier, and (2) Pilgrim Watch acted promptly after learning of the new information. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 N.R.C. 62, 69-73 (1992) For the same reasons that PWs contention is timely under 2.309 it is timely under 2.326.

2. Factor 7: PWs Participation Will Broaden The Issues - Delaying The Proceeding Is Not Relevant (10 § C.F.R. 2.309 (c)(vii) )

Entergy and NRC wrongly argue that adding a new contention will delay and broaden the proceeding significantly. (Entergy, 35-37; NRC, 13)

The issue presented by this contention is new and significant information that the increased probability of a severe accident and significant damage to the marine environment entailing significant additional offsite costs would justify additional mitigation to reduce the risk of a severe accident that would provide the necessary reasonable assurance that public health and safety shall be protected during license renewal. The ASLB has not looked at this before.

Moreover, this delay and burden factor includes only that delay which can be attributed directly to the tardiness of the petition. Jamesport, supra, ALAB-292, 2 NRC at 631; South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),

LBP-81-11, 13 NRC 420, 425 (1981). Here, there is nothing tardy about Pilgrim Watchs petition to add this new petition. It is based on information that became public only a short time ago and pertinent site-specific information that is not yet public and awaits discovery.

14 Potential delay in the proceeding is not relevant if the significant new information reasonably could change the outcome of the SAMA analysis; or any delay is essential to NEPAs requirement for NRC to consider new information before acting on Pilgrims license is satisfied. Any potential harm to Entergy is minimal because they can continue to operate on their original license until NRC rules on its application.

Judge Youngs comments (Concurring in Results Only MEMORANDUM and ORDER (Denying Commonwealth of Massachusetts Request for Stay, Motion for Waiver, and Request for Hearing on a New Contention Relating to Fukushima Accident) LBP 11-35, November 28, 2011 (FN 13)) apply equally here.

Indeed, it would appear that Fukushima-related issues must be addressed in some manner in this proceeding prior to its conclusion and a final determination on the license renewal request, given (1) the reasonable likelihood that relevant Fukushima-related information could in this proceeding lead to significantly different analyses and/or conclusions in the EIS and SAMA analysis; and (2)

NEPAs dual purpose [of] ensur[ing] that federal officials fully take into account the environmental consequences of a federal action before reaching major decisions, and [ ] inform[ing] the public, Congress, and other agencies of those consequences. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002) (emphasis added)

(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989);

Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, Inc., 462

.S. 87, 97 (1983); Dubois v. US Dept. of Agriculture, 102 F.3d 1273, 1291 (1st Cir. 1996)).

And The existing Pilgrim operating license will, of course, remain in effect until issuance of an ultimate decision on the renewal application. Thus any possible harm to the Applicant, resulting from allowing for consideration of Fukushima-related matters in some manner prior to a final decision on the application, should be minimized. Moreover, it would seem to be in all parties interests to timely assure either that Fukushima-related information would not negatively impact the Pilgrim EIS and/or SAMA analysis and conclusions, or that any potential problems could be effectively identified, addressed and, as appropriate and possible, mitigated.

15 NRC Staffs (at 13) argument adds a twist. They incorrectly conclude that the official record is closed and all substantial issues have been resolved. Admission of this contention would, therefore, unduly broaden the issues and materially delay the proceeding. The NRC Staff does not appreciate that there is an important distinction between a closed evidentiary record relating to one contention, and a closed official record of this proceeding. PWs Request is on an entirely new issue.

3. Factor 8: PW's Participation Will Assist In Developing A Sound Record (10 C.F.R.

§ 2.309 (c )(viii)

Entergy with a good deal of chutzpah and wishful thinking says that it cannot be reasonably expected that Pilgrim Watch will assist in developing a sound record. (Entergy 37-38) Whats wrong with their argument?

It is clear from the Request that only PW will assist in developing a sound record; Entergys responses show that they wont; and Staff shows no interest in seeing a sound record developed in this proceeding.

a.

Entergy completely ignores, as the Commission has noted, that PW is the only party that can reasonably be expected to develop a sound and complete record. PWs interest simply will not be represented by either Entergy or the NRC Staff (Turkey Point, NRC Practice Digest, Prehearing matters). Neither can be expected to develop a record that that does not simply advance their interests. See NRC Practice Digest, 35: The general public interest, as interpreted by the Staff, may often conflict with a late petitioners private interests or perceptions of the public interest.

16 b

Second, the scope of the record that Pilgrim Watch can reasonably be expected to develop is shown by PWs request and Entergys response. PWs request referenced multiple sources and multiple references to experts and non-governmental sources, such as respected press that work hard to be accurate. It is clear that absent PWs showing, Entergy would not have hired experts and filed countless pages - a record that would never be developed but for PW.

c Entergys complains that Pilgrim Watch nowhere identifies any witness or summarizes any witness testimony for its many assertions regarding marine impacts resulting from any hypothetical aqueous releases into Cape Cod Bay. (Entergy, 38) This really has little to do with whether PW will meaningfully contribute to a sound record, at this beginning stage of the proceeding. Once Entergy does the further analysis of the offsite costs resulting from aqueous discharge that NEPA requires, it will be the time for PW to hire an expert to review the analysis. Presently it is premature. Entergy has nothing for a marine expert to review. Also, Entergy fails to mention that their witnesses do not show any professional experience in marine biology, currents, tides, and Massachusetts marine economy.

Entergy showed in its Answer that it has no intention to provide a sound record instead it simply tried to bury it.

d. Entergys spin on aqueous discharges and how lessons learned from Fukushima would apply is far from helpful in developing a sound record. For example, Entergys wishful thinking and decidedly unsound contribution to the record is reflected in their statement that As explained in Entergys Declaration, recent measurements of radioactive

17 contamination in the Pacific Ocean off the coast of Fukushima are so low as to be undetectable, and any contamination released into Cape Cod Bay would be sufficiently diluted and dispersed within a matter of months as to be below regulatory limits. (Entergy 38-9, citing Entergy Decl. at ¶¶ 43, 48, 60-61, 66) This is incorrect and misleading. It shows two things: (1) that Entergy has not provided a sound record; and (2) PW has established a dispute and, even though not required under 2.309 to do so, shows that a materially different result would be likely if aqueous discharges were modeled satisfying a requirement of 10 C.F.R § 2.326.

(1) Entergys comparison of radioactive contamination in the Pacific Ocean to what would occur in Cape Cod Bay is laughable and hardly contributes to a sound record. (See Entergy Decl., ¶ 60-61, for example). Fukushima fronts directly on the Pacific Ocean, the largest ocean on Earth. At 64.1 million square miles in area, it covers about 46% of the Earth's water surface and about one-third of its total surface area, making it larger than all of the Earth's land area combined. In contrast, Pilgrim fronts on Cape Cod Bay that measures only 604 square miles and is enclosed by proximate land on three sides.

We do not know exactly how much radioactive contamination was released into the Pacific in liquid discharges; but we know it was lots. In an article Fukushima: Towards the Formation of a Radioactive Graveyard in the Pacific Ocean? Japanese Officials & Experts Late Decision to Expand Testing Around Fukushima Daiichi, Lucas Hixson, Global Research, October 21, 20117 reported that:

7 http://www.globalresearch.ca/PrintArticle.php?articleId=27220

18 By September estimates of released contamination had risen to over 3,500 terabecquerels of cesium-137 released into the sea directly from the plant between March 11 and the end of May. Another 10,000 terabecquerels of cesium fell into the ocean after escaping from the reactors in the form of steam.

Initially reports had quieted concerns by stating that the materials would be diluted so vastly that the radioactivity would not be able to accumulate, and would not affect the environment. The experts claimed they would track the deposition and floating radioactive debris field making its way on a trans-Pacific trip to the United States. Apparently, the experts in Japan didn't get the message. The Japanese regularly tested the seawater only for 'popular' Iodine and Cesium isotopes instead of all known fission-produced radioactive materials, for the first 3 months after the disaster. By March 31st, radioactive contamination concentration was 4,385 times the legal limit, up from 3,355 times on Tuesday, according to Kyodo.

Radioactive contamination leaks continue making it disingenuous to say that recent measurements of radioactive contamination in the Pacific Ocean off the coast of Fukushima are so low as to be undetectable. For example the press and TEPCO reported more leaks on December 5. 8 And again on December 12, 2011 there was another report. Radioactivity in Japanese waters thousands of times higher than normal, December 12, 2011, Kate Taylor TG Daily Woods Hole Oceanographic Institution chemist Ken Buesseler and two Japanese colleagues report that The disaster was the largest accidental release of radiation to the ocean in history. Concentrations of cesium-137 at the plants' discharge points to the ocean peaked at more than 50 million times normal levels.

8 Fukushima Daiichi Nuclear Power Plant: Highly Radioactive Water Leaks From...,Huffington Post http://www.huffingtonpost.com/2011/12/05/fukushima-daiichi-nuclear-power-plant-leaks_n_1128868.html, December 5, 2011 TOKYO -- Japan's crippled nuclear power plant leaked about 45 tons of highly radioactive water from a purification device over the weekend, its operator said, and some may have drained into the ocean. TEPCO estimated about 300 liters leaked out before the crack was blocked with sandbags.The pooled water around the purification device was measured Sunday at 16,000 bequerels per liter of cesium-134, and 29,000 bequerels per liter of cesium-137, TEPCO said. That's 270 times and 322 times higher, respectively, than government safety limits, according to the Citizens' Nuclear Information Center in Tokyo. Cesium-137 is dangerous because it can last for decades in the environment, releasing cancer-causing radiation. The half-life of cesium-134 is about two years, while the half-life of cesium-137 is about 30 years.

19 "There is currently no data that allow us to distinguish between several possible sources of continued releases," says Buesseler.

"These most likely include some combination of direct releases from the reactors, or storage tanks or indirect releases from groundwater beneath the reactors or coastal sediments, both of which are likely contaminated from the period of maximum releases."

There could be an issue, however, if the source remains high and radiation accumulates in marine sediments.

"We don't know how this might affect benthic marine life, and with a half-life of 30 years, any cesium-137 accumulating in sediments or groundwater could be a concern for decades to come," he says.

(2) It is Entergy that fails to develop a sound record or support their statement that any contamination released into Cape Cod Bay would be sufficiently diluted and dispersed within a matter of months as to be below regulatory limits. PW again establishes a dispute and shows that a materially different result would be likely if aqueous discharges were modeled satisfying a requirement of 10 C.F.R § 2.326.

At ¶ 43, Dr. OKula who is not trained in marine biology or modeled contaminant behavior in Cape Cod and Massachusetts Bays, cites NUREG-1437 published in 1996, obviously prior to Fukushima. The NUREG talks about the Atlantic Ocean. However he overlooks that Cape Cod Bay is described in NUREG-1437 as a semi-enclosed embayment (PW Request, 14) and ignores the seasonal variation of contaminant dispersion and effects of wind variability on currents affecting dispersion (PWs Request, 17). Dr OKula talks about the residence time of half-lives but is totally silent on the volume of discharge and its radioactive content.

At ¶ 48, Dr. OKula discusses economic costs from an atmospheric release.

However he ignores aqueous releases and the obvious need to add them together. Contrary

20 to Entergy, simple math tells us that 1 + 1 + 1 is much greater than simply 1. The technical gaps identified in PWs Request (PW Request 11-12) included:

• The volume of water that would be required to flood the reactor (vessel, containment, pool) in a severe accident such as occurred in Pilgrims sister-reactors in Fukushima, including rationale

• The volume of water that would be bled into Cape Cod Bay, and its radioactive content and half-lives, recognizing that methods in Japan to decontaminate that water failed (PW Request 12)

• Radioactive runoff into the waters from deposits on soil, sediment and groundwater, and its radioactive content and half-lives

• Radioactive atmospheric fallout on the waters, specifying isotopes and half-lives9 To project the offsite consequences/costs, including cleanup and waste disposal, it requires summing 1-4. (PW Request, 12)

Clean-up: Dr. OKula goes on to say that the magnitude of the costs associated with atmospheric release would be controlled by the ability or inability to cost-effectively decontaminate property, lands, housing and business assets, mostly due to sources of 9 In regard to atmospheric release estimates: NRC and the industry assumed a significant amount of radioactivity will be trapped in the water in the reactors torus and will stick (plate out) to the reactors interior surface before reaching the atmosphere. However these assumptions do not hold when water is poured into the reactor and then bleeds out bringing with it the radioactivity heretofore assumed trapped in the torus water and stuck to the sides. (See Pilgrim Watch Request For Hearing On A New Contention Regarding Inadequacy Of Environmental Report, Post Fukushima, June 1, 2011, pg., 19 quoting Dr. Frank von Hippel (physicist, Princeton Univ.) For accidents in which the damage is sufficient to open large pathways from the core to the containment, there will not be sufficient water available to trap the radioactive materials of concern, nor will the pathway be so torturous that a significant amount wills tick to surfaces before reaching the containment atmosphere. Similarly if the containment fails early enough, there will be insufficient time for aerosols to settle in the reactor building floor. Now we add to the amount of offsite contamination the aqueous discharge carrying radioactivity initially stuck to the sides of the reactor or in the well water.)

21 contamination on surfacesthat would persist unless actively removed by human intervention. Dr. OKula again fails to develop a sound record and explain the ability or inability to decontaminate and the link between clean up and subsequent aqueous discharges.

PW in contrast does contribute to developing a sound record here and again establishes a dispute and shows that a materially different result would be likely if aqueous discharges from cleanup or the inability to do so were modeled satisfying a requirement of 10 C.F.R § 2.326. PW showed:

• First, Fukushima provides real-world experience about the ability or inability to cost-effectively decontaminate property, lands housing and business assets -

mainly the inability and huge costs, far greater than modeled by Entergy.

• Second, decontaminating property, lands, housing and business assets involves hosing buildings and plowing under fields - methods producing radioactive aqueous discharges that now have to be modeled and added to offsite costs. Once a building is hosed down, where does the contaminated water go? How do you clean a sewer, water pipe or the sediment in the Bay? Plowing under the fields simply buries the contaminants deeper in the soil, ending up in the groundwater.

• Third, OKula avoids any discussion of the ability or inability or costs to clean up sediment in Cape Cod Bay, Massachusetts Bay, rivers, estuaries and other water bodies impacted by aqueous discharges.

PWs contention discussed bioaccumulation. PW said that, Bioaccumulation, food chain accumulation, is recognized as an issue as carnivorous fish ingests the radioactivity in bodies of the smaller prey or larger fish feed on plankton. The higher up on the food chain a fish

22 is, the more these contaminated prey fish increase the radioactive material in its body. (PW Request, 19) How does Entergy plan to interrupt the chain and model it? Where is the likely huge volume of contaminated sediment going to be stored?

How is it going to be removed without stirring the pot or re-suspending the material?

• Fourth, Public Perception: How does Entergy expect the public to believe that the fish, shellfish, beaches, waterfront property are safe? Fukushima showed through direct experience that the publics fear of contamination - perception - resulted and continues to result in significant damage to the marine economy. Public perception is a real-world cost factor that both Entergy and NRC wish to bury. (PW Request, 18, 22, 31) For example, a lesson from Fukushima:

Fishermen slam plan to release tainted water, Japan Times, December 8, 2011 reported:

Tokyo Electric Power Co. drew heavy fire from fishermen's groups Thursday after announcing plans to release water contaminated with low-level radiation into the Pacific, possibly in March.

High-level radioactive water leaked into the sea from the Fukushima No. 1 plant in April, drawing flak not only from fishermen but also from other Pacific Rim countries. After the incident, Tepco released low-level contaminated water to make room for more toxic water.

Tepco said the step is inevitable, considering the present storage capacity for low-level contaminated water, which is produced daily in the cooling process for the crippled reactors. At its current pace, the water may exceed the storage capacity by March, it said.

To ease fishermen's anger and concerns, the utility said it will release low-radioactive water after significantly reducing radioactive substances to below the government limit. That didn't wash.

On Thursday, Ikuhiro Hattori, chairman of the National Federation of Fisheries Cooperative Associations (Zengyoren), lodged a protest at Tepco's headquarters.

"No matter how low the radiation level of the water, its release into the sea would cause further damage to our business by harming the reputation" of

23 Japanese seafood products, a statement handed to Tepco said. It called the discharge "unforgivable." (Emphasis added)

B.

PILGRIM WATCHS NEW CONTENTION MEETS CONTENTION ADMISSSIBILITY REQUIREMENTS NRC Staff (NRC, pg., 16, FN 60), simply says that NRC discussed reopening and contention admissibility at length in answer to PWs January 7, 2011 and PWs Amended Contention (February 14, 2011), and incorporated those discussions and argument by reference. However, absent any specific reference to PWs November 18 contention, Staffs objections lack relevance. Entergy does discuss this contention, but they incorrectly say that Pilgrim Watchs new contention does not meet the strict the contention admissibility requirements 10 CFR § 2.309 (f)(1) (i)-(vi). (Entergy, 39)

1. PWs Request Is Within Scope & Material 10.C.F.R. 2.309 (f)(iii) (iv)

Entergy (Entergy 40-1) was wrong in its assertion that PWs contention does not meet the contention admissibility standards (10 C.F.R. § 2.309). Specifically, Entergy incorrectly argued that the filing was not within scope or material to the findings (Entergy Ans., 40-41); is inadequately supported (Entergy, 42, and under reopening discussion at 30, 38, 42);

and fails to show a genuine dispute exists on an issue of law or fact. (Entergy, 42-44, discussed by Entergy under reopening and at 35-38)

Entergy is wrong. PWs Request established that the contention it raised with particularity was within scope; material to the findings the NRC must make to support the action involved in the proceeding; provided support through an abundance of facts,

24 references to government documents and expert opinions; and provided more than sufficient information and specificity to demonstrate that a genuine dispute exists.

a. Scope: As discussed at pages 4-6 of PWs Request, this contention addresses a defect or dispute regarding the Applicants SAMA, a Category 2 issue, and is both within the scope of and material to this proceeding.

Entergy does not dispute that SAMAs are a Category 2 issue; neither do they dispute that the issue raised alleges deficiency or error in Entergys application.

Also, Entergy does not appear to dispute that the NRC must consider new and significant information arising from the accident at Fukushima before relicensing Pilgrim NPS whether or not that information ultimately leads to modification of licensing requirements. Regardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the proferred evidence. Marsh v Oregon Natural Resources Council, 490 U.S. 360, 385 (1989) (emphasis added)

Entergys argument that the contention is not in scope or material doesnt mention any of this.

Entergy misrepresents PWs contention, saying that Pilgrim Watch in fact appears to be arguing that Entergy must implement SAMAs in order to protect public health and safety. (Entergy Ans., pg. 40) PW said no such thing.

PW never said that Entergy must implement SAMAs. What PW actually said is that Entergys SAMA analysis must redo its cost-benefit analysis to include the offsite cost implications of aqueous discharges based on new and significant information from Japan,

25 SECY, and Entergys site-specific SAMGs regarding flooding the reactor and Entergys consideration of what will happen to that water afterwards. Once that is accomplished, more SAMAs to reduce risk will come into play. The result will be to significantly reduce the risk of a severe accident that will benefit public health, safety and their financial interests. A proper SAMA analysis is what this process is all about.

Entergy then takes out of context pieces from PWs request to make the convoluted argument that Pilgrim Watch argues that SAMAs need to be implemented to protect public health and safety, these arguments are outside the scope of the Commissions requirements for license renewal under 10 CFR Part 54.

If the NRC has no obligation to require an applicant to mitigate severe accident risks, then what is the purpose of the SAMA analysis and this license application review proceeding? The core purpose and requirement of a SAMA is to require Entergy to perform a cost benefit analysis that weighs the cost of mitigation (measures to reduce the risk of a severe accident) against the benefits of reducing offsite consequences harming public health and property.

Entergy is confused about the rules. They say The Commission has specifically limited the scope of license renewal safety review to managing the aging of certain systems, structures and components, and the review of time-limited aging analysis.

(Entergy 40, Emphasis added) Entergy missed the fact that the SAMA is part of the Environmental Review.

Entergy also argues that There is no requirement in the NRCs license renewal rules that an applicant must take action to mitigate severe accident risk in order to protect

26 public health and safety Again, Entergy misses a step. The Applicant is required to perform a cost-benefit analysis weighing the costs of offsite consequences against the costs of mitigation and if the offsite costs outweigh the cost of mitigation, then they are required to put it into place. PWs contention asserts that they have only considered partial offsite consequences, ignoring aqueous discharges and their offsite consequences/costs so that they must be required by NRC to complete the task.

Next, Entergy (Entergy, 41) argues that contrary to Pilgrim Watchs assertions, Entergy (and NRC) need not consider any economic damages resulting from the fear of risk of non-existent contamination, either cleaned up or never present in the first place, and therefore the issue is outside the scope of the proceeding. Social Sciences, the study of human behavior, have long been recognized as playing an important role in economics.

Real-world lessons learned from Fukushima make that clear.

Radioactive plankton found near Fukushima plan, Mark Willacy, Reuters Kodo, October 15, 2011 Research leader professor Takashi Ishimaru told Japan's NHK network sea currents had carried contaminated water south from the nuclear plant, heavily contaminating the plankton. A wide range of fish and other marine species feed on the plankton, leading to fears it could have a serious impact on the food chain. (Underlining added) (PW Request 22)

Fishermen's livelihoods still drowning in Fukushima, Ashi Shimbun, Satoshi Otani and Takemichi Nishibori, September 25, 2011 reported that:

Coastal fishing is still suspended even more than six months later, as contamination of fish and other marine products by radioactive materials is continuing.

news of the radioactive contamination of beef from the prefecture spread.

"Seeing the beef situation, no one will buy fish (from Fukushima Prefecture) even if the contamination level is lower than the government's standards. (Ibid)

Fishermen slam plan to release tainted water, Japan Times, December 8, 2011 reported:

27 Tokyo Electric Power Co. drew heavy fire from fishermen's groups Thursday after announcing plans to release water contaminated with low-level radiation into the Pacific, possibly in March.

On Thursday, Ikuhiro Hattori, chairman of the National Federation of Fisheries Cooperative Associations (Zengyoren), lodged a protest at Tepco's headquarters.

"No matter how low the radiation level of the water, its release into the sea would cause further damage to our business by harming the reputation" of Japanese seafood products, a statement handed to Tepco said. It called the discharge "unforgivable." (Emphasis added)

Last, Entergy, and NRC at 24, incorrectly claim that PW challenges generic findings of the GEIS (see PW Request at 11, claiming that the GEIS characterization of societal and economic impacts of severe accidents are incorrect), such challenge is impermissible absent a waiver of the applicable rule. Pilgrim Watch has neither sought nor obtained such a waiver, therefore this challenge is outside the scope of this proceeding. (Entergy 41)

Entergy misrepresented what PW actually said; their complaint is baseless. To set the record straight, the Request in fact said in its entirety, not selected bits and pieces:

It is clear that adding the impact of bleeding contaminated water into the bay and runoff is new and significant information; the GEIS and Pilgrims SEIS simply referenced atmospheric releases fallout on open bodies of water, but not leaks of large quantities of water resulting from the necessity to dump tons of water on top of the reactor followed by tons of water leaking out into adjacent waters, adding to runoff. The failure to consider "feed and bleed" may explain, at least in part, why the GEIS mistakenly determined societal and economic impacts of severe accidents are of small significance for all plants.

The generic analysis (GEIS) applies to all plants and that the probability-weighted consequences of atmospheric releases fallout onto open bodies of water, releases to ground water, and societal and economic impacts of severe accidents are of small significance for all plants. (NUREG-1437, Sup 29, emphasis added) (PW Request, 11)

28 This is hardly a challenge to the GEIS; rather it says what the Commissioners acknowledged in their vote on SECY-11-0089, September 2011.

b. Materiality: Entergy says that for the same reason (as discussed above under scope), Pilgrim Watch fails to demonstrate that this contention is material to the findings that the NRC must make to support license renewal. (Entergy, 41) And, for the same reason Pilgrim Watch showed they are flatly wrong.

The underlying issue of PWs November 18 Request is what offsite damages/costs will likely be caused by aqueous discharges that must be factored into Pilgrims SAMA.

As Pilgrim Watch said in its Request, the issue raised in th[is new] contention is material to the findings the NRC must make to support the action that is involved in the proceeding. 10 CFR§2.309(f)(iv)

The deficiency that this contention highlights has enormous independent health and safety significance. See Millstone Nuclear Power Station, Units 2 and 3, Docket Nos. 50-336-LR, 50-423-LR ASLBP No. 04-824-01-LR July 28, 2004, p. 7: Where a contention alleges a deficiency or error in the application, the deficiency or error must have some independent health and safety significance. See also In the Matter of Dominion Nuclear Connecticut, Inc. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7,47 NRC 142, 179-80 (1998), affd in part, CLI-98-13, 48 NRC 26 (1998).

2.

PWs Contention Provides Sufficient Information to Show A Genuine Dispute Exists On Material Issues of Law or Fact Entergy incorrectly says at 42 that Pilgrim Watchs new contention is also inadmissible because it is not supported by sufficient information that a genuine dispute

29 existsrequired by 2.309 (f)(1)(vi) Entergy goes on to say that, Pilgrim Watch does not make any minimal showing that its claims would affect the outcome of the Pilgrim SAMA analysis and are therefore material (and) Pilgrim Watch must make a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. (54 Fed. Reg. 33, 168, 33,171 (Aug. 11, 1989) (quoting Conn. Bankers Assn v. Bd. of Governors, 627 F. 2d 245, 251 (D.C. Cir. 1980) (emphasis added)

a.

The Contention Is Properly Supported: Entergy (Entergy, 42) incorrectly argues that the contention is not properly supported. They are wrong.

10 C.F.R. § 2.309(f)(1)(v) requires PW to provide a concise statement of the alleged facts and expert opinions which support [PW] position. The NRC practice manual, pg., 97 is clear that standard is met when, as here, PW has:

(1) Provided sufficient information to establish the existence of a genuine dispute with the applicant on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1)(v) (formerly 2.714(b)(2)(iii)) ( See Georgia Power Co. (Vogtle Electric Generating Plant, Units 1);

(2) Made a threshold showing that a hearing would be necessary to resolve opposing and supported factual assertions. Kerr-McGee Corporation (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 245, 256 (1982), aff'd sub nom, City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983); and.

(3) Put the other parties in the proceeding on notice of the PWs specific grievances and thus gives them a good idea of the claims they will be either supporting or opposing.

30 Judging from the length of Entergys Answer, in particular, it is clear they recognize that there is a genuine dispute, effectively admit that PW has made a threshold showing, and fully understand the claims that PW makes.

PW explained in its request (at 6-7) that Section 2.309(f)(v) requires "a concise statement of the alleged facts or expert opinion which support the petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue."

An intervenor is not required to prove its case at the contention filing stage: "the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality as that is necessary to withstand a summary disposition motion." Statement of Policy on Conduct of Adjudicatory Proceedings, 48 N.R.C. 18, 22 n.1 (1998), citing, Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, Final Rule, 54 F.R. 33168, 33171 (Aug. 11, 1989).

Rather, petitioner must make "a minimal showing that the material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate." In Gulf States Utilities Co., 40 NRC 43, 51 (1994), citing, Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, Final Rule, 54 F.R. 33168, 33171 (Aug. 11, 1989).

In support of this request and alternative motion, Pilgrim Watch relied on the expert opinion of Arnold Gundersen (Exhibits 2 and 3) and others to be identified as the proceeding progresses; SECY-11-0089, July 7, 2011 and SECY-11-0089 Commission Voting Record, September 21, 2011; NUREG/CR-5634; NUREG-1437, Supplement 29; Reports from the Commonwealth of Massachusetts: An Assessment of the Coastal and Marine Economics of

31 Massachusetts RFR #: ENV 06 CZM 09 Massachusetts Office of Coastal Zone Management (CZM), University of Massachusetts Presidents Office, Donahue Institute, Amherst, Massachusetts, June 29, 2006; Jiang and Zhou, The Massachusetts and Cape Cod Bays Hydrodynamic Model 2005 Simulation10; Massachusetts Management Plan, Volume 2, Baseline Assessment and Science Framework, December 2009; The Massachusetts Bay Hydrodynamic Model: 2005 Simulation, Massachusetts Water Resources Authority Environmental Quality Department Report ENQUAD 2008-12; USGS OFR 2005-1250, Processes influencing the transport and fate of contaminated sediments in coastal ocean-Boston Harbor and Massachusetts Bay, Section 4: Oceanographic Setting, Bradford Butman, Richard P. Signell, John C. Warner, P.

Soupy Alexander; Changsheng Chen, Ph.D., Massachusetts Bay Modeling using FVCOM-GOM/GB;11 and numerous reports on Fukushima.

b.

PW Showed that Material Facts are in Dispute: PW agrees that the required showing of materiality is not meant to be an onerous requirement, because all that is needed is a minimal showing to show that further inquiry is appropriate.

The foregoing discussion, developing a sound record, 10 CFR § 309 (c)(viii) already showed many material facts in dispute. (For example see above at 16-22)

Contrary to Entergys hope, it is not Pilgrim Watchs responsibility to redo the SAMA calculations to demonstrate that its challenges to the SAMA analysis would result in identification of additional cost-beneficial SAMAs. Entergy is confused whose job it is and when it is required. It is Entergys job to model aqueous discharges in its SAMA - to perform the further analysis that would be unreasonable to require of Pilgrim Watch.

10 http://www.mwra.state.ma.us/harbor/enquad/pdf/2008-12.pdf see, for example, Mass Bay, 2nd Generation Model Results 11 http://fvcom.smast.umassd.edu/research_projects/MassBay/index.html

32 At this stage Pilgrim Watch is not required to prove whether there would or would not be additional mitigation required after a reanalysis that considered the offsite costs from aqueous discharges and issues brought forward in its Request. This is because (i) the proceeding has not developed to summary disposition; and (ii) Entergy has not done the reanalysis now required. Therefore neither Pilgrim Watch nor Entergy can show that there would be no changes in the results of the SAMA analysis because the reanalysis required by NEPA to consider has not been done. Further it is the role of the Board at the admissibility stage is to screen for the existence of material disputes, not to prematurely adjudicate those disputes on its merits.

Entergy incredulously claims at 42 that PW does not make a minimal showing that its claims would affect the outcome of the Pilgrim SAMA analysis - would not make a difference in the outcome of the licensing proceeding and set the bar of proof, disputed by PW, that for an additional SAMA to become potentially cost beneficial, the benefit (risk averted) would need to increase by a factor of two.

Entergy has put blinders on because PWs Request clearly exceeded a minimal showing.

First simple math tells us that 1 + 1+ 1 is greater than one. Entergy simply modeled atmospheric releases, variable (1). The yet modeled volume of water that would be required to flood the reactor in a severe accident (such as occurred in Pilgrims twin reactors in Fukushima) and subsequently bled out into Cape Cod Bay and beyond is another variable to add, variable (2). Last the yet un-modeled radioactive liquid runoff into the waters from deposits on soil, sediment and groundwater is a third variable, variable (3). By adding to

33 atmospheric discharges (1) aqueous discharges (2 and 3) called for by the Commission and demonstrated to be significant in the real-world experience at Fukushima, the offsite consequences/costs are greater than one. PW established a dispute.

How much greater? The answer requires Entergy, not PW, to do its job and model it.

However PWs Request showed the following.

PW relied on two reports prepared for the Commonwealth and showed some portion of

$14.8 billion dollars has to be tacked on to offsite costs due to impact on the marine economy from aqueous discharges.

One analysis relied upon was done in 2006 for Massachusetts Coastal Zone Management by the University of Massachusetts Donahue Institute, An assessment of the Coastal and Marine Economies of Massachusetts. 12 It provided a detailed analysis of the marine economy in Massachusetts - employment and economic output; and an analysis of the economic value of the coastal and marine economies as well as an overview of employment, wages, and business activities within important sectors of the Massachusetts marine economy that would be severely impacted in a severe accident at Pilgrim Station.

Each marine sector is analyzed in the report: commercial seafood industries; marine transportation sector; coastal; tourism and recreation; marine science and technology sector; and marine related construction and infrastructure.

The second study was the Massachusetts Ocean Management Plan, Volume 2, Chapter 7, Economic Valuation13. It relies on the Donahue study.

12 Available on line at http://www.massbenchmarks.org/publications/studies/pdf/czmreport1.pdf 13 Available on line at http://www.env.state.ma.us/eea/mop/final-v2/v2-text.pdf

34 Figures given for the maritime economy in Massachusetts generated $14.8 billion dollars in 2004, including $6.1 billion in secondary output impacts (jobs created in the rest of the state through the functioning of the maritime economy) (CZM Report 2006). The maritime sectors include: commercial seafood, transportation, coastal tourism and recreation, marine science and technology, and marine related construction and infrastructure. The linkages among the sectors affect the amount of revenue within the local economy. It is Entergys job to show what portions would not be affected by a severe accident at Pilgrim. Once that portion is added to costs resulting from atmospheric releases (modeled over an extended period, not 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, and averaged at 98 percentile) it is clear that PW has provided the requisite showing that additional SAMAs would be cost beneficial. In addition we showed that modeling aqueous discharges is doable - meets the rule of reason standards put forth by the Commission.

Second PWs expert, Arnold Gundersen, said at ¶ 38 that, We know that the impact of Fukushima on Japan, and on its marine-dependent industry has been staggering.

Converting Japanese Yen to US dollars in order to assess the economic impact of such an accident at Pilgrim Station shows that Price Anderson insurance limits will be exceeded to pay compensation for damages, much of which is due to marine dependent industry losses.

Price Anderson insurance limits are set at $12.6 billion (as of 2011) that is industry-funded and each company is obligated to put in $111.9 million per reactor in the event of an accident.

35 PW exceeded a minimal showing. Entergy is dead wrong claiming that the PW Request sets forth nothing to establish that the asserted deficiencies would, if accounted for as requested by Pilgrim Watch, alter the result of the Pilgrim SAMA analysis.

Entergy, at 43, steps further into the realm of absurdity and says that another material reason that PWs contention fails is that the severe accident releases used for the Pilgrim SAMA analysisare many times greater than the atmospheric releases from the three damaged Fukushima reactors. One would have to still believe in Santa Claus to agree. Everyone knows that there were massive amounts releases from the damaged Fukushima reactors, including the U.S. and Japanese governments, and there are on-going releases - the story there is not over.

In a wishful flight of fantasy, Entergy concludes by saying that Pilgrim Watch provides no basis to suggest that Pilgrims SAMAs have been unfairly evaluated due to its assumption that the radioactive release from a severe accident is emitted into the atmosphere. In fact, such assumption is entirely reasonable and appropriate given the greater consequences to the public and economy that result from atmospheric releases as compared to aqueous releases. An absurd statement because Entergy never made any analysis of aqueous releases. They also forget that the math problem is not comparing whether atmospheric releases are greater than aqueous, but adding both together.

By dismissing aqueous releases as unimportant, is Entergy suggesting that the call to model aqueous discharges by the NRC Staff and Commissioners is simply frivolous?

To summarize, Entergy mistakenly believes that it is somehow Pilgrim Watchs responsibility to redo the SAMA calculations to demonstrate that its challenges to the SAMA analysis would result in identification of additional cost-beneficial SAMAs. But

36 they are confused of whose job it is and when it is required. It is Entergys job to show the money using new and significant information from Japan and the SECY regarding the probability of a severe accident and consequences. It is their job to perform the further analysis that would be unreasonable to require of Pilgrim Watch.

First, 10 C.F.R 2.309 (f)(1) does not require a showing by the Petitioner that a materially different result would or would have been likely had newly proferred evidence been considered initially. Instead that is a requirement under 10 C.F.R 2.326 (3), reopening.

Second, we do not believe reopening is required. Even if it were, 10 C.F.R 2.326 (3) does not require the petitioner to show that a materially different result would occur. PW has shown that a different SAMA result would have been likely if newly proferred evidence been considered initially. The big difference between would and would be likely makes particular sense because Entergy has not done the reanalysis now required. Neither Pilgrim Watch nor Entergy can show definitively at this time that there would or would not be changes in the results of the SAMA analysis because the reanalysis required by NEPA to consider has not been done. However any betting-man would be wise to lay their money on Pilgrim Watch.

3. NRC Staff argues that PWs contention does not contain previously unavailable information and therefore does not meet the requirements of 10. C.F.R. § (f)(2)(i)(ii). PW showed that they were wrong in the foregoing discussion that PW met the Good cause requirements of 2.309. (PW Answer, 4-)

37 C. PILGRIM WATCH MET REQUIREMENTS FOR REOPENING, 10. C.F.R. § 2.326 Pilgrim Watch's position remains that a motion to reopen under 10 C.F.R § 2.326 is not required in an on-going proceeding that is utterly unrelated to anything that has previously been litigated; however in an abundance of caution PW moved that in the alternative this new contention should be accepted pursuant to 2.326. PW met those requirements.

1. PW Is Not Required To Reopen the Record At the very outset of its reopening arguments, the Staff says one thing right. 10 C.F.R. §2.326(a) is directed to "a motion or petition to reopen a closed record to consider additional evidence." (Staff, 14). The Staff then spends two pages reciting what is needed to support a motion to reopen,14 before getting to a central issue here - Is a Motion to reopen required at all? The answer is that it is not.

The NRCs rules set one standard for reopening a closed record to take new evidence (10 C.F.R § 2.326 Motions to Reopen), and a quite different standard for a request to add a new contention that raises a new material issue (see 10 C.F.R § 2.309 Hearing requests, petitions to intervene, requirements for standing, and contentions).

Section 2.326 is directed to motions to reopen decisions in which the record has been closed and a "result" has been reached. 10 CFR 2.326 says reopen a closed record.

Section 2.236 does not say 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 14 As shown beginning at pages 44 below, PW has satisfied the "criteria" of 10 C.F.R. §2.236(a). But as shown here, it need not do so since there is no requirement for it to reopen in the first place.

38 or what the petitioner seeks to do have anything to do with any record that has been closed.

There is an important distinction 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.

The Staff makes a number of statements to support its assertion that "Pilgrim Watch's Proposed New Contention must meet the requirements for reopening a closed record under 10 C.F.R. 2.326." (Staff, 16). All are wrong.

a.

The record in this proceeding is not closed.

The Staff first says that "[t]he evidentiary record in this case has been closed since 2008." (Staff, 18). It has not. The Staff's own quotes from the Board's and the Commissions orders refer to only "the evidentiary record on Pilgrim Watch Contention 1.

The Staff's assertion, made only in a footnote, that "because Contention 1 was the only contention pending at that time, closing the records with respect to Contention 1 closed the record entirely" is wrong, and approaches the absurd.

First, Contention 1 was not the "only contention pending at that time"; the Remand on contention 3 was pending also. Second, the Staff cites no authority whatever for its apparent belief that closing the record with respect to a particular contention "closed the record entirely," whether or not there might be another pending contention. All Entergy says on this subject is that the adjudicatory record has been closed. (Entergy, 7) What the

39 adjudicatory record might be, Entergy never says. But Entergy recognizes that it is not the record in this proceeding. None of PWs new contentions have been adjudicated.

The "record" before the Board is not limited to "contentions," and 10 C.F.R. 2.326 says "record" - not "evidentiary record." The record of an entire "proceeding" and the "evidentiary record" relating to a particular contention are not the same. A hearing before a Board on a contention, such as contention 1, creates an "evidentiary" record of that contention, but the "record" of a proceeding includes not only all "evidentiary" records that may have been created but also the record relating to any other timely raised issues, such as the contentions filed by PW and the Commonwealth.("A partial initial decision is a decision rendered after an evidentiary hearing on one or more contentions, but that does not dispose of the entire matter." NRC Practice Digest, Appeals 48, Pilgrim Nuclear Power Station, CLI-08-2, emphasis added. The record in this proceeding was not closed by the Board's Partial Initial Decisions on either Contention 1 or, more recently, Contention 3.

The Administrative Safety Licensing Board (but apparently not the Staff or the majority here) knows the difference between closing the record as to a particular contention and closing the record of a proceeding. See, for example, the ASLB Orders in Southern Nuclear Operating Co., LBP 10-21 (Once the record of a proceeding is closed and Areva Enrichment Services, LLC, Feb. 18, 2011 (The Board hereby closes the record of this proceeding). After the hearing on Contention 1 had been completed, this Board issued its June 4, 2008 Order that only closed the record with regard to Contention 1. This Board has not issued any order closing any other record in this proceeding, or with respect to any of the issues raised by PWs new contentions. Its only orders refer specifically to

40 Contention 1; there is no order, like those in Southern Nuclear and Areva, closing "the record of this proceeding."

Unlike the Staff, Chief Judge Young correctly recognized the difference between the evidentiary record of a contention, and the record in a proceeding.: "The Board Majority's Initial Decision does not terminate this proceeding or constitute a final licensing decision." (LBP-11-18, Separate Statement p. 3) In concurring "in results only" of the Majority's Massachusetts Decision,15 Judge Young was again clear that the record in this proceeding - at least as to Fukushima issues - is not closed.

Indeed, it would appear that Fukushima-related issues must be addressed in some manner in this proceeding prior to its conclusion and a final determination on the license renewal request, given (1) the reasonable likelihood that relevant Fukushima-related information could in this proceeding lead to significantly different analyses and/or conclusions in the EIS and SAMA analysis; and (2)

NEPAs dual purpose [of] ensur[ing] that federal officials fully take into account the environmental consequences of a federal action before reaching major decisions, and [ ] inform[ing] the public, Congress, and other agencies of those consequences. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 (2002) (emphasis added)

(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989);

Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983); Dubois v. US Dept. of Agriculture, 102 F.3d 1273, 1291 (1st Cir. 1996)).

The "reopening" requirement of 2.326 applies only when the entire record of the proceeding before the Board has been closed (which is not the case here), or when (as in Yankee Atomic) the new contention is directed to something that the Board has already decided (which also is not the case here).

15 MEMORANDUM and ORDER (Denying Commonwealth of Massachusetts Request for Stay, Motion for Waiver, and Request for Hearing on a New Contention Relating to Fukushima Accident ) LBP 11-35, November 28, 2011, FN. 13 Fukushima related issues must be addressed in some manner in this proceeding prior to its conclusion and a final determination on the licensee renewal request, given

41 Entergy has admitted that PW's' new contention raises "completely new issues."

(Entergy, 27) And the Staff nowhere even intimates that the statement made by PW in its Request for Hearing, that it "does not seek to introduce any new evidence as to any contention that has previously been considered by the ASLB; rather it seeks to add a new, entirely different, in scope contention to the proceeding" (quoted at Staff, 17) is not correct. When PW's new aqueous discharge contention was filed in November, no record related to it was "closed." In fact, no such record even existed.

The reopening rule does not apply, and indeed would make sense, when (as with PW's new contentions) the new contention raised in PWs new Request for Hearing is directed to "completely new issues" as to which there is no record.16

b.

No Commission or Court decision supports the Staff's position Pilgrim Watch does not deny that the Board here has supported the Staff's position in previous decisions in this proceeding. But those decisions do not bind the Board here, to say nothing of not binding the Commission or any reviewing Court. All of the Board's decisions are now the subject of Requests for Review now pending before the Commission; as said in those Requests, the Board's decisions on this issue are simply wrong.

As pointed out in those Requests for Review, no NRC Commission decision and no decision of any court says that a motion to reopen is required in the circumstances present here - a contention directed to "completely new issues" that does not seek to reopen any previously closed record.

16 The Staff's suggestion that the "materially different result" referred to in 10 C.F.R. 2.326 is the final result of the proceeding rather than the result reached in whatever record had been closed similarly makes no sense.

The only "prior result" here was that in Contention 1.

42 In every authority cited by the Board, the new contention was directed to a matter as to which the record had been closed. And in at least two, whether a motion to reopen was required was simply not an issue; the petitioner had filed a motion to reopen.

(1)

Oyster Creek: Unlike here, The Board had closed the record and issued its initial decision (CLI-08-12, 2), and Citizen's had filed a "motion to reopen the record."

(CLI-08-28, pp 2, 3)

(2)

Private Fuel Storage, Unlike here, Utah sought to reopen a closed record.

(CLI-05-12, pp 1, 6, 7).

(3)

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-10-17, 67).

(4)

Carolina Power & Light Co., ALAB-526 (1979). Unlike here, the entire record before the board had been closed, the board had authorized issuance of permits, and jurisdiction over the entire proceeding had moved to the Commission.

(5)

Long Island Lighting, LBP-83-30 (1983), also decided long before the present rules were adopted. Unlike here, the petitioner sought to "supplement the record on a contention on which the evidentiary hearing has been completed" (pg 4). All issues as to which the Board had jurisdiction had been litigated. (pp 4-5).

(6)

The 1986 Federal Register extract (generally contemporaneous with Carolina Power and Long Island Lighting) that the Board quotes (Id., p 15, fn 75,

43 underlining added) says that "A motion to reopen must be filed whenever a proponent seeks to add new information to a closed record, whether the information concerns a new contention or one which has already has been heard."

Properly understood, all of these support Pilgrim Watch's position:. A motion to reopen is required only if a petitioner seeks "to add new information" to a closed record of a proceeding, or to a closed record directed to the same issue.

The Staff also relies on New Jersey Environmental that was decided by the Third Circuit after the Board has issued most of its previous decisions. However, the Staff's assertion that the "Third Circuit... "rejected the same argument that Pilgrim Watch make here" is again wrong. (Staff 18) In the very next sentence that Staff admits "the "intervenor [in New Jersey Environmental] sought to raise a new contention after the administrative record closed. (underlining added) Even the Staff does not say that "the administrative record" in this proceeding is "closed." The Staff's attempt to bootstrap its argument by quoting the Third Circuit's statement that NRC regulations "explicitly allow for contentions alleging previously non-litigated issues to be raised through a motion to reopen" is inapposite. PW agrees that that 10 C.F.R. 2.326 allows such issues to be raised "after the administrative record [has been] closed," but that has nothing to do with whether a motion to reopen is required when the record is not closed.

Also contrary to the Staff's arguments, Union of Concerned Scientists, Commonwealth of Massachusetts, and Deukmajian do support Pilgrim Watch. Without unnecessarily repeating what we already said in our Request for Hearing, Union of Concerned Scientists does stand for the proposition that reopening only applies to issues

44 that have already been litigated, in Commonwealth of Massachusetts one of the reasons for remand was that the reopening standard had been applied to an issue that had not been litigated, and Deukmajian did find that reopening was not a substitute for the right to a hearing on issues that had not previously been considered.

d.

10 C.F.R. 2.326(d) does not support the Staff's position 10 C.F.R. 236(a) recites the criteria that a petitioner must satisfy to reopen a closed record. The predicate question of 10 C.F.R. 236(a) is clear: Does the petitioner seeks to reopen a closed record? Is the petitioner trying to reopen either the closed record of an entire proceeding, or the closed record of an already decided a portion of the proceeding?

10 C.F.R 2.309(c) independently sets the requirements for presenting what it calls "nontimely contentions."

All that 10 C.F.R § 2.326(d) adds to reopening is the obvious. If the reason that a petitioner seeks to reopen a closed record is to present an untimely "contention not previously in controversy," it is not enough simply to satisfy the criteria of §2.326(a); the petitioner must also show that the new contention "satisf[ies] the requirements for nontimely contentions in §2.309(c).

The Staff's apparent position is that the criteria of 10 C.F.R § 2.326(a) must be satisfied anytime a petitioner presents a "contention not previously is controversy" -

whether or not that contention relates to any part of the record has been closed. This is simply not what 2.236(d) says.

45 That subsection is directed to a "motion to reopen which relates to a contention not previously in controversy," and says that if the motion and the contention are related, then the contention must satisfy not only 2.236(a) but 2.309 also.

But 2.236(d) has no application unless the new contention is related to a record that needs to be reopened. The rule quite clearly does not say, as the Staff wishes it would, that a petitioner presenting "contention not previously in controversy among the parties must seek reopening and satisfy the reopening criteria whether or not that new contention relates to any record that has previously been closed.

2. PW Has Met Requirements of 2.326 Although not required to do so, PW met the requirements of 2.326. The motion was timely satisfying 2.326 (a)(1), as indicated in the foregoing discussion ((PW Reply, A -1, pg., 4-12) The motion addressed a significant safety or environmental issue, (2.326 (a)(2),

damage to the marine environment, discussed below. The motion showed a materially different result would have been likely had the newly proferred evidence been considered initially, 2.326 (a)(3), increasing offsite consequences and costs, discussed in the above discussion. The motion is accompanied by an affidavit from a qualified expert that addresses each of the rules criteria, 2.326 (b), discussed below. The motion satisfies in full the requirements for nontimely contentions in 2.309(c), demonstrated in the foregoing.

a. PWs Motion is Timely - Satisfying 2.326 (a) (1)

In the foregoing discussion (PW, A-1, pg., 4-12) Pilgrim Watch conclusively showed that its new contention was provided in a timely manner satisfying the Good

46 Cause requirements of 10 § C.F.R. 2.309 (c )(i) and at the same time the timeliness requirement of 10 Both NRC and Entergy make essentially the same case that the information brought forward is not new information and Pilgrim Watchs challenges are not new information and could have been raised long ago, rendering them untimely now. (Entergy, 11; NRC, 7

& 10) PW effectively disputed their arguments regarding the MACCS2 Code (PW, 5); Feed and bleed (PW, 5); SECY-11-0089 (PW, 7); supposed 30-day clock (PW, 8); events that relate Fukushima to Pilgrim (PW, 9); and averaging (PW, 11). PW supported its dispute with reference to fact and case law.

b. PW Raises Significant Safety or Environmental Issue Satisfying 2.326 (a)(2)

Both Entergy (at 18) and NRC Staff (at 22) argue that PW failed to raise a significant safety or environmental issue. Entergy (at 21) blends significant environmental issue § 2.326 (a)(2) with what more properly belongs under § 2.326 (a)(3), motion must demonstrate a materially different result.

Entergy argues that PWs Request fails to raise a significant environmental issue because (1) an accident like the one at Fukushima is highly unlikely to occur at Pilgrim, and (2) even if a severe accident resulted in contaminated water being discharged into Cape Cod Baythe costs associated with the consequences for such discharges would not be materially alter the Pilgrim SAMA analysis. We will address the first issue under significant environmental issue and the second under materiality.

47 Entergy is required to model a Severe Accident must be modeled; and NEPA requires that lessons learned from Fukushima must be considered before license renewal. Entergys argument that a Fukushima-type accident is unlikely doesnt hold water.

• First they argue that Fukushima initiating events involved a 9.0 earthquake and tsunami which are highly unlikely at Pilgrim. However, the NRC Task Force and others recognize that that you dont need an earthquake or a tsunami to melt down a nuclear plant, especially one with the same design, GE Mark I BWR, relative age and located on the water. Loss of electricity, a fire, an act of malice, or even human error is enough.

• Next, they say that Pilgrim requires venting the primary containment long before such venting was attempted at FukushimaPilgrims venting actions would reduce the likelihood of core damage and therefore the likelihood of any contaminated water escaping into the environment. Industry requirement for venting are one thing but the capability to carry through is quite another. The lack of a filter and a totally passive system we identified as significant problems with Pilgrims DTV-a vent nearly, if not, identical to the three that failed in Fukushima.

(PWs June 1, 2011 Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima.) In the contention we showed that Entergy must factor into its SAMA analysis the probability of containment failure, hydrogen explosions, and subsequent larger off-site consequences due to failure of the direct torus vent (DTV) to operate. This establishes as credible both the need to flood the reactor and the probability that contaminated water would bleed out.

48

• Last Entergy says that the Fukushima accident involved core melts in three adjacent reactors at a six reactor site...complications and competition for resources would not be present at the single-unit Pilgrim plant. This statement avoids the question under consideration. Entergy is required to perform a SAMA at Pilgrim Station, not simply make a comparison to a multi-unit site here or abroad. The dispute is whether its analysis was sufficient or requires further analysis to include aqueous discharges.

Harm to the environment-a significant environmental issue:

Entergy and NRC Staff avoid any mention of harm to the natural marine environment. PWs Request (Request, 29-33) referenced NUREG-1437, Sup 29, 2.2.5.3, Biological Communities that describes the biological communities in the waters of Cape Cod Bay surrounding PNPS. Although the NUREG is focused on the impact of once-through cooling, it provides information showing the environmental significance of our waters. It listed fish, pelagic invertebrates, plankton, benthic invertebrates, marine aquatic plants, marine mammals, and federally listed marine species (including some marine mammals and sea turtles). The species listed include commercially or recreationally valuable species that are critical to the potentially affected ecosystem, and species for which essential fish habitat (EFH) has been designated in the vicinity of PNPS." (Emphasis added) Forty-two are listed; the listing does not include Massachusetts Bay or Stellwagen Bank. Stellwagen is a National Marine Sanctuary, 6 miles north of Provincetown, and downwind from Pilgrim, according to Entergys experts.17 Deposition from both 17 Testimony of Dr. Kevin R. OKula and Dr. Steven R. Hanna on Meteorological Matters Pertaining to

49 atmospheric releases and aqueous discharges together will cause significant harm to the environment. Entergy has not shown otherwise - that they could not.

Last, NRC (at 24) adds that the new contention does not raise a significant environmental issue that was a previously unknown concern. NRCs convoluted reasoning was that the GEIS recognized that severe accidents could occur and that, if they did, the consequences might be considerable. This is an absurd argument. The GEIS did not consider aqueous discharges, and it was written in 1996, before Fukushima. NEPA requires consideration of new and significant information before license renewal, again as Judge Young18 said (1) the reasonable likelihood that relevant Fukushima-related information could in this proceeding lead to significantly different analyses and/or conclusions in the EIS and SAMA analysis; and (2) NEPAs dual purpose [of] ensur[ing] that federal officials fully take into account the environmental consequences of a federal action before reaching major decisions, and [ ] inform[ing] the public, Congress, and other agencies of those consequences. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340,348 (2002) (emphasis added) (citing Robertson v.

Pilgrim Watch Contention 3, Entergy Exhibit 00001, Pilgrim LRA Proceeding, 50-293-LR, 06-848-02-LR, January 3, 2001]

18 Administrative Judge Ann Marshall Young, Concurring in results Only, MEMORANDUM and ORDER (Denying Commonwealth of Massachusetts Request for Stay, Motion for Waiver, and Request for Hearing on a New Contention Relating to Fukushima Accident), LBP-11-35, Nov 28, 2011, FN. 13

50 Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); Baltimore Gas and Elec. Co.

v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983); Dubois v. US Dept.

of Agriculture, 102 F.3d 1273, 1291 (1st Cir. 1996)).

c. PWs request demonstrated that a materially different result would be or would have been likely had the newly proffered evidence (aqueous discharges) been considered initially-satisfying § 2.326 (a) (3)

Contrary to Entergy and Staff, PW demonstrated a materially different result would have been likely had aqueous discharges been modeled in Pilgrims SAMA. Support was provided in the foregoing in discussions regarding: 10 C.F.R § 309 (c )(vii), petitioner will broaden the issues, at 13; 10 C.F.R § 309 (f)(iv), the issue raised is material, at 16-22; and 10 C.F.R § 309 (f)(vi), a genuine dispute exists, at 31.

Both Entergy and NRC incorrectly argue that even if a severe accident resulted in contaminated water being discharged into Cape Cod Bay, the costs associated with the consequences for such discharges would not be materially alter the Pilgrim SAMA analysis.

This is ludicrous on its face.

(1) Lessons learned from Fukushima: PW showed that there was new and significant information regarding the increased probability of an accident and increased and substantial offsite consequences by incorporating PWs May 11, 2011 and June 1, 2011 contentions in its November 18 contention. Both the May and June contentions support the significant technical gap in Entergys SAMA to which this contention is addressed - that Entergy failed to model contaminated aqueous releases bled into Cape Cod Bay from the large volumes of water needed to flood the reactor (vessel, containment, pool) in a severe accident extending over an extended period of time in the type of disaster we now know is

51 credible.19 This source of contamination would add to that resulting from aqueous transport and dispersion of radioactive materials through subsurface water, sediments, soils and groundwater, plus atmospheric fallout on the waters - resulting in three sources of contamination in the water. Entergys SAMA failed to analyze these offsite costs.

(2) Costs: Contrary to Entergy, in a Severe Accident PW showed that the costs associated with the consequences for aqueous discharges would significantly affect the environment - marine life-and materially alter the Pilgrim SAMA analysis.

Contrary to Entergys accusations, PW provided more than mere speculation in showing that a materially different result would have been likely. PW provided multiple reports from Pilgrims sister-reactors in Japan; reports from the Commonwealth of Massachusetts: An Assessment of the Coastal and Marine Economics of Massachusetts RFR #:

ENV 06 CZM 09 Massachusetts Office of Coastal Zone Management (CZM), University of Massachusetts Presidents Office, Donahue Institute, Amherst, Massachusetts; studies regarding currents and tides in Cape Cod and Massachusetts Bays by the NRC, Coastal Zone Management, USCG and models of contaminant flow.

Further Entergy has not modeled aqueous discharges so that there is obviously insufficient information at this time to conclude that consideration of aqueous discharged could not lead to 19 PWs June 1, 2011 Request for Hearing on a New Contention Regarding Inadequacy of Environmental Report, Post Fukushima we showed that Entergy must factor into its SAMA analysis the probability of containment failure, hydrogen explosions, and subsequent larger off-site consequences due to failure of the direct torus vent (DTV) to operate. This establishes as credible both the need to flood the reactor and the probability that contaminated water would bleed out.

In PWs May 11, 2011 Request for Hearing On Post Fukushima SAMA Contention we showed that releases extending over a considerable duration (months) must be considered and modeled in Entergys SAMA analysis. Accidents over an extended time period will require a greater volume of water for flooding the reactor and larger volume bleeding out significantly increacing the impact on the marine environment and economy.

52 significantly different environmental consequences of renewing Pilgrims operating license. Again Judge Youngs statement in the November 28, 2011 Memorandum and Order Denying the AGOs Request (Ibid, FN 9) pertains equally here.

there is obviously at this time also insufficient information to conclude that consideration of relevant Fukushima-related issues could not lead to significantly different analyses of the environmental consequences of renewing the Pilgrim operating license PW showed (foregoing 2.300 discussion, at 23) that the maritime economy in Massachusetts generated $14.8 billion dollars in 2004, including $6.1 billion in secondary output impacts (Request, pg., 25); from U. Mass. Donahue Reports, Figure 5-Massachusetts Coastal Zones:

Establishments, Employment, wages, 2004: In the South Shore alone, the number of maritime-related establishments was 6, 736; they employed 74, 208; and they provided wages totaling

$2,854,816, 077. Duxbury Bay Oysters is a multi-million dollar operation. Scituate, Marshfield, Plymouth, Sandwich, Wellfleet and Provincetown are major Commercial Fishing Ports in the Neighborhood. Cape Cod Bay is ringed with beaches and choice properties - that would never be choice after a nuclear disaster.

The South Shore and Cape Cods economy revolves around clean water and the publics perception that it is clean. (Contrary to Entergy at 23 and NRC at 28) The public fears radiation, a significant lesson learned from Fukushima that must be factored into offsite economic consequences/costs.

Entergys ER Appendix E, Table E-2-1 summarizes the Phase II SAMA candidates considered in the cost-benefit evaluation. Running down the list, it becomes clear that many SAMAs would become cost effective after Entergy properly analyzed the offsite consequences/costs from aqueous discharges. For example, a filter for the Direct Torus Vent cost

53 a mere $3,000,000.

(3)

Public Perception/Fear Contamination: NRC (at 28) incorrectly argues that the Applicant does not have a duty to include in its SAMA analysis the publics perceived fears of contamination following a severe accident. They misapply case law and construe that it makes clear that an agency does not have a duty under NEPA to evaluate psychological harm related to the risk of a nuclear power plant accident. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779 (1983).

PWs Request never talked about psychological harm per se; instead we said what Fukushima showed in the real-world to be so that the publics fear of contamination would have economic consequences that must be considered by Entergy in its analysis. (see, for example, foregoing discussion at 21)

(4) Contrary to Entergy (at 20), PW met its burden to show significance and that a materially different result would have been likely had aqueous discharges been considered.

First, Entergy never modeled aqueous discharges and their offsite consequences/costs so it is not possible to show what difference it would make or would NOT make.

Second, PW more than met its burden through facts and expert opinion that the 2006 SAMA analysis is erroneous and should be redone in light of new and significant information.

Third, PW is not obligated to perform a complete and new SAMA analysis or conduct a comprehensive review of potential mitigation measures before the NRC is obligated to take a hard look at the lessons learned from Fukushima: [it] is the agency, not an environmental plaintiff, that has a continuing duty to gather and evaluate new

54 information relevant to the environmental impacts of its actions, even after release of an

[EA or EIS]. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 559 (9th Cir. 2000)

(quoting Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023 (9th Cir.1980)). As the First Circuit remarked in Dubois v. U.S. Dept. of Agric., 102 F.3d 1273,1291 (1st Cir. 1996)(citations omitted), discussing the publics role under NEPA:

Specifics are not required[T]he purpose of public participation regulations is simply to provide notice to the agency, not to present technical or precise scientific or legal challenges to specific provisions of the document in questionMoreover, NEPA requires the agency to try on its own to develop alternatives that will mitigate the adverse environmental consequences of a proposed project.

Because the NRC has a non-discretionary duty to consider new and significant information prior to making the decision whether to relicense the Pilgrim plant, neither Entergy nor NRC Staff can place the burden of proof on PW for admission of its contention which would be inconsistent with the standard for the NRC to consider new and significant information under NEPA.

PW trusts that the ASLB will ignore Entergys and NRCs Answers in this regard.

NEPA precludes the NRC from establishing a heightened admissibility standard for contentions that seek consideration of new and significant information in EISs, which is more demanding than the standard which requires the NRC to consider new and significant information as set forth by the Supreme Court in Marsh. Yet, that is exactly what Entergy and NRC Staff argue. Throughout their Answers, Entergy and Staff incorrectly complain

55 that PW has not proved its claims rather than to provide the basic level of documentation and support that is appropriate at the contention-pleading stage.

d. Affidavit satisfied requirement under § 2.326 (3)(b)

PWs Request is accompanied by an affidavit from a qualified expert that addresses each of the rules criteria, 2.326 (b). It is the Boards, not Entergys or NRC Staffs, responsibility to decide qualifications of witnesses when the time is appropriate for a complete witness list to be filed. At this stage, it is unreasonable to expect an unfunded public interest group to hire a team of experts.

CONCLUSION Pilgrim Watchs Request should be accepted because we have met the standards for raising a late contention, the standards for an admissible contention, and the standards for reopening the record. NEPA requires that the new and significant information from Fukushima, SECY-11-0089 and the SAMGs brought forward in a timely manner be considered before the NRC approves Entergys license application for Pilgrim Station a twin to those reactors at Fukushima.

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 December 20, 2011