ML12026A079

Watch'S Petition for Review of Memorandum and Order (Denying Pilgrim Watch'S Requests for Hearing on New Contentions Relating to Fukushima Accident) LBP-12-01 January 11, 2012

ML12026A079
Person / Time
Site:	Pilgrim
Issue date:	01/26/2012
From:	Lampert M Pilgrim Watch
To:	NRC/OCM
SECY RAS
References
RAS 21799, 50-293-LR, ASLBP 06-848-02-LR, LBP-12-01
Download: ML12026A079 (27)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Entergy Nuclear Generation Co. and )

Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR

)

) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)

January 26, 2012 PILGRIM WATCHS PETITION FOR REVIEW OF MEMORANDUM AND ORDER (DENYING PILGRIM WATCHS REQUESTS FOR HEARING ON NEW CONTENTIONS RELATING TO FUKUSHIMA ACCIDENT) LBP-12-01 JANUARY 11, 2012 Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel 781-934-0389 Email mary.lampert@comcast.net January 26, 2012

TABLE OF CONTENTS I. INTRODUCTION.. 1 II. PETITION FOR REVIEW OF ASLB 06-848-02-LR 2 A. The Decision of which Review Is Sought 2 B. Why the Decision Is Erroneous.. 3 C. The Commission Should Review the Decision.. 3 III. Argument: Why The Decision Is Erroneous 4 A. Pilgrim Watch Linked Pilgrim to Fukushima. 4 B. Pilgrim Watchs Request for Hearing Was Timely 9 C. Pilgrim Watch Showed What Was Required 13 D. NEPA Requires Consideration New, Significant & Material Information. 17 E. Pilgrim Watch Satisfied 10 C.F.R.§ 2.326.. 21 F. Pilgrim Watch Satisified 10 C.F.R.§ 2.309 23 IV. CONCLUSION 25

PILGRIM WATCHS PETITION FOR REVIEW OF MEMORANDUM AND ORDER (DENYING PILGRIM WATCHS REQUEST FOR HEARING ON NEW CONTENTION RELATING TO FUKUSHIMA ACCIDENT), LBP-12-01, JANUARY 1, 2012 Pursuant to 10 C.F.R. § 2.341, Pilgrim Watch (PW), by and through its pro se representative, Mary Lampert hereby petitions the Nuclear Regulatory Commission (Commission) to review, reverse, and remand the Memorandum and Order of a majority of the ASLB in LBP-12-01, January 11, 2012. (The "Decision and Judge Young's dissent is hereinafter referred to as Dissent").

I. INTRODUCTION Five closely related petitions for review of the Board majority decisions in this proceeding, rejecting seven contentions, are now before the Commission. (Petitions for Review of LBP-11-18, LBP-11-20, LBP-11-23, LBP-11-35, LBP-12-01) All except the Petition for Review of LBP 11-18 (SAMA, Remand) raise the issue whether a motion to reopen is required in the circumstances of this proceeding. All five are directed to whether NEPA, and the NRC's rules regarding relicensing, permit the Board effectively to ignore what happened at Fukushima and its direct relevance to Pilgrim. In all but one of the ASLB decisions involved in these five Petitions for Review, Judge Young either dissented (LBP-12-01), concurred in part and dissented in part (LBP-11-20, LBP-11-23), or concurred in the results only (LBP-11-35).

Pilgrim Watch urges the Commission concurrently to consider all five pending Petitions for Review insofar as they raise the issue of the circumstances in which a motion to reopen is required, NEPA or other relicensing issues involving Fukushima information.

Important facts, including many that are not in dispute, are relevant not only to PW's Petition for Review here, but also to PW's three other Petitions for Review and the Massachusetts Petition for Review. Judge Young's Dissent here pointed to two:

1. The "lack of any consideration in the Pilgrim EIS of information arising out of the accident at Fukushima, with its Mark I boiling water reactors." (Young Dissent, p. 14, italics Judge Young's); and

2. "[T]o grant the pending application in the very near future ...[would] foreclos[e]

the possibility of any pertinent Fukushima-related issues being address at all, in any manner, before the license is renewed for an additional 20 years." (Young Dissent, p. 16, italics Judge Young's)

II. PETITION FOR REVIEW OF LBP-12-01 A. The Decision of Which Review Is Sought In the Decision, a majority1 of the Board denied Pilgrim Watch's Aqueous Discharge Contention that Pilgrims SAMA analysis was inadequate post Fukushima because Entergy failed to model contaminated aqueous releases bled into Cape Cod Bay and adjacent waters, not only 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 credible,2 but also that resulting from aqueous transport and dispersion of radioactive materials through subsurface water, sediments, soils and groundwater 1

Judges Abramson and Cole. In dissent, Judge Young said that PW's Aqueous Discharge contention met the reopening requirements of 10 C.F.R. § 2.326 and is otherwise admissible, except that Judge Young found it premature at this time. Judge Young also said that the proceeding should not be terminated because NEPA requires Fukushima-related issues to be addressed in this proceeding prior to a final decision in the Pilgrim license renewal proceeding. (Young Dissent, 1, 13-19) 2 PWs June 1, 2011 Request for Hearing showed that Entergy must factor into its SAMA analysis the probability of containment failure, hydrogen explosions, and subsequent larger off-site consequences due to for example:

failure of the direct torus vent (DTV) to operate, and hence the need to flood the reactor and that contaminated water would bleed out; and 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 will stick 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. (Request 19, citing Dr. Frank von Hippel) continued.

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The matters of fact and law raised in the Petition for Review were previously raised before the Board.3 B. Why the Decision Is Erroneous As discussed in more detail below, the Decision is erroneous for a number of different, but often interrelated, reasons. The Board Majority incorrectly held that PWs new contention does not satisfy the standards of 10 C.F.R§ 2.326.

PWs new contention does not satisfy the criteria set out in 10 C.F.R. § 2.309.

NEPA does not require the NRC to consider the new and significant information from Fukushima brought forward by PW prior to issuing an extended license.

C. The Commission Should Review the Decision Fundamental principles and fairness require the Commission to review the Decision. This petition raises substantial and important questions of law and policy that critically affect the public interest, e.g., whether NEPA and the NRC's rules regarding relicensing permit the Board effectively to ignore what happened at Fukushima, and whether a motion to reopen is prerequisite to any consideration in an on-going proceeding of never-before litigated issues.

The Majoritys legal conclusions conflict with existing law and NRC regulations; and its findings of fact are erroneous. (Standards for Review 10 C.F.R. 2.341(a)(1))

III. ARGUMENT: WHY THE DECISION IS WRONG PWs May 11, 2011 Request for Hearing showed that releases extending over a considerable duration (months) must be considered and modeled in Entergys SAMA analysis. Flooding over an extended period requires a greater volume of water and dramatically increases the flow of contaminated water into the marine environment.

3 See Pilgrim Request for Hearing on A New Contention Regarding Inadequacy of Environmental Report, Post Fukushima -Aqueous Discharges (November 18, 2011); Entergy's and the NRC Staff's Answers to Pilgrim Watch's Request (December 13, 2011), and Pilgrim Watch's Reply to Entergys and NRC Staffs Answers (December 20, 2011).

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In the Decision, the Board Majority (Majority) made a number of fundamental errors, several of which infect multiple aspects of its ultimate conclusion, including that:

1. Pilgrim Watch did not show a link between the Mark I boiling water reactors that failed at Fukushima and the potential for an accident at the essentially identical boiling water reactor at Pilgrim Nuclear Power Station. (See, e.g., Decision at 13 (10 CFR 2.236), at 20-21 (10 CFR 2.309), at 23, 25-26 (NEPA))

2. Pilgrim Watch's Request for Hearing was not timely. (See, e.g., Decision at 12 (10 CFR 2.236), at 19 (10 CRF 2.309))

3. Pilgrim Watch was required to provide a detailed showing of how much the SAMA analysis would change if Fukushima information were considered, and what specific SAMAs would be required and be cost effective, and failed to do so (See, e.g.,

Decision at 15-17 (10 CFR 2.236), at 20 (10 CFR 2.309).

4. "[T]here is no environmental effect to be examined under NEPA"; "There is nothing to take a 'hard look' at). (See, Decision at 23-26).

5. Pilgrim Watch's contention was required to meet the 10 C.F.R 2.326 standards for reopening. (Decision, 3-4)

6. Pilgrim Watch's contention failed to satisfy 10 C.F.R 2.309(c)(vii) since it "would undoubtedly broaden the issues ... and cause a material delay in the proceeding,"

(Decision, 19); and PWs contention does not satisfy 2.309 (f) (iv)(vi). (Decision, 20)

A. Pilgrim Watch Linked Pilgrim to Fukushima The principal reason advanced by the Majority for rejecting both PWs new contention and the NRC's NEPA obligations was that Pilgrim Watch has failed to provide any information that links the events at Fukushima to the risk of a severe accident at the Pilgrim site (Decision at 13, 4

21, and 23: absolutely no information from the Fukushima accidents has been presented in this proceeding from which it can reasonably infrerred that the accidents provide indicia of an impact on the Pilgrim plant or its environmental plant.)

In its rush to terminate this proceeding, the Board Majority donned blinders, and ignored both what PW and its expert said and what the Board Majority and the Commission plainly know. There can be no doubt that it is reasonably forseeable that consideration of information arising out of the Fukushima accident could have such an effect with respect to the Pilgrim Plant. (Young Dissent, 13) For the Majority to conclude otherwise approaches the absurd; and for the Commission, with all of the resources and Fukushima information available to it, to agree would do so also.

The Board Majority's acknowledgment that there is a "similarlity in plant design" (Decision, 21) itself shows that its conclusion that there is no linkage to Fukushima is wrong.

The simple, and indisputable, fact is that the Pilgrim Mark I BWR is essentially identical to the failed Mark I BWRs at Fukushima.4 In their declaration, Entergy's experts nowhere say that there are any differences between the Pilgrim BWR and Fukushimas. 5 This admitted essential identity of the BWRs shows that what happened at Fukushima could happen here and must be considered, as Judge Young correctly recognized in LBP-11-23:

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 4

. See Gundersen Declaration quoted at page 10 of the Decision.

5 Entergy's experts do say that the planned venting procedures at Pilgrim are somewhat different from those that were in effect at Fukushima, but they do not say that what happened at Fukushima would not happen at Pilgrim if venting failed to go according to plan.

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analysis would seem to be short-sighted, if not indeed absurd. (Young, Concurring in Part and Dissenting in Part, 2-3)

Contrary to the Board Majority and Entergy, a Fukushima-like severe accident does not require a "beyond-design-basis earthquake and a beyond-design-basis tsunami." (Decision, 14)

The INPO Special Report on the Nuclear Accident at the Fukushima Daiichi Nuclear Power Station attached as an Exhibit to Entergy's Declaration could not be clearer that the proximate cause of what happened at Fukushima was the loss of AC and DC power (see, e.g., pp.8-10); it does not take an earthquake or tsunami to cause a power loss.

In concluding that Fukushima and Pilgrim were not "linked," the Board Majority simply accepted, based on two unsupported paragraphs of Entergy's expert testimony, that what happened at Fukushima is not relevant to Pilgrim (Decision, 14).

The Board Majority ignored that Entergy has never conducted a PRA utilizing any Fukushima information to support its experts "speculation" that "an accident like that at Fukushima is highly unlikely to occur at Pilgrim" (Entergy Affidavit, §66) and that "Pilgrim is not likely to face a Fukushima-type accident scenario" (Id., §67). The Majority ignored that Entergy's experts cited no authority for their assertions that "even assuming a large radioactive release directly into the ocean, much larger than the aqueous releases at Fukushima, the concentration of Cs-137 would decrease to below EPA regulatory limits within months" (Id., §66) and that "Pilgrim Watchs concerns regarding contaminated water will not materially change the Pilgrim SAMA analysis results." (Id., §67)

Judge Young correctly noted that a three-level PRA (that Entergy has not conducted) is "required to perform a SAMA analysis" (Young dissent, 8, fn 11); and it is abundantly clear that any proper SAMA analysis would require Entergy to model aqueous discharges, something that 6

it has not done either. Without any of these analyses, it is the assertions of Entergy's experts, not Pilgrim Watch, that are "mere speculation."

Except for its passing recognition that the BWRs at Fukushima and Pilgrim have some similarity, the Board Majority ignored essentially every fact presented by PW.6 For example, the Majority ignored that pumping water into a leaking reactor at Pilgrim to maintain a water level up to the top of the core could, as at Fukushima, mean that millions of gallons of radioactive water would bleed into the environment in an accident at Pilgrim like that at Fukushima. (Gundersen Decl., ¶ 31) Fukushima showed that the assumption in NUREG/CR-5634, September 1991 that it would only be necessary to pump about 1,500,000 gallons of water into the containment of a BWR that the containment would retain its integrity was wrong, and that assumption is just as wrong for Pilgrim.

The Board Majority also ignored that Mr. Gundersen directly linked what happened at Fukushima with the amount of radiation that could be released at Pilgrim, the size of the area that could be contaminated here, and the effect of that contamination at Pilgrim.

The area impacted by the disaster at Fukushima is enormous Therefore, there is every reason to expect that a similarly large area would be affected by a similar accident at Pilgrim Station. It is certainly reasonable to assume that the entire Cape Cod Bay would be unusable by the public for its intended function after a severe accident at Pilgrim Station.... Based upon experiences at Fukushima, it is my professional judgment that the area affected, and, more importantly, believed to be contaminated, would be as large as that at Fukushima Daiichi in a similar severe 6

Increased probability of severe accident and increased consequences, based lessons Fukushima: Request, 1-3, 8-9, 37; Gundersen Decl., ¶¶ 13, 27, 28; PW Reply, 7,10,20,36.

Statements that events Fukushima relate to Pilgrim: Gundersen, ¶¶ 15, 26, 39, Reply: 10-11.

Sources contamination in waters, based on Fukushima lessons: Request, 3; Gundersen, ¶ 14; PW Reply, 2.

Large volume released Pilgrim, based Fukushima: Request, 3, 10, 12; Gundersen ¶¶ 15, 30, 31, 33; PW Ans., 6-8.

Failure decontaminate water prior release at Fukushima, applies to Pilgrim: Request, 12-13.

Area impact Pilgrim impacted greater than at Fukushima: Request, 18; Gundersen Decl., ¶ 33; PW Reply, 17-19.

Offsite consequences Fukushima, lessons learned provide new & significant information: Request, 19-22, Gundersen ¶¶ 20, 21, 23, 24, 38; PW Reply, 18.

Significant offsite economic consequences Pilgrim, based on Fukushima: Request, 18, 25; Decl., ¶¶ 15, 22,23, 38, 39; Offsite economic costs include costs cleanup: Decl., 15; PW Reply, 21-22; Offsite economic costs increased due public perception contamination: Request, 18-19, 30; PW Ans.,22-23, 26-27, 34.

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accident scenario at Pilgrim Station located as it is in relation to the Cape Cod and Massachusetts Bays and feeding into the Atlantic Ocean. (Gundersen Decl., ¶ 33)

(Emphasis added)7 The Board Majority also did not consider any of the facts shown in PWs May 11 and June 2011 DTV contention, incorporated by reference in the current Aqueous Discharge Contention. The Majority's refusal to accept those earlier contentions is no justification for ignoring the pertinent facts that they showed. As Judge Young noted, when taken in combination, the contentions "provide a sufficient connection between containment and failure of the direct torus vent to operate ... and consequences including those asserted in and in support of the present contention" and "warrant further inquiry." (Young Dissent at 10, 12)

Finally, the Board Majority ignored that the Commission has already acknowledged that the lessons learned from Fukushima are relevant to the nuclear reactors in the United States. If there were, as the Majority insists, really no "linkage" between what happened at Fukushima and what might happen at reactors such as Pilgrim, the NRC Task Force would not have been instructed to conduct the investigation that it did, the Commission would not have instructed the NRC Staff to implement without delay" the Task Force recommendations (many of which are focused on BWRs such as Pilgrims),8 and the Commission would not have issued SECY 11-0089 ) based on what the recent events in Japan demonstrated.

7 Mr. Gundersen also said that "numerous reports from varied, credible sources indicate that approximately 80 percent of the radiation released from the Fukushima accidents is now in aqueous form in the Pacific Ocean. Fishing has been and will continue to be restricted as a result and contamination of the aquatic food supply will increase, not decrease, as bio-accumulation occurs and the contamination increases and moves up the food chain.(Gundersen Decl., ¶ 20) There is no suggestion that the same could not result from an accident at Pilgrim.

8 For Example, neither Pilgrims nor Fukushimas vents are passive and filtered to decrease the probability and consequences of hydrogen explosions and containment failure (Pilgrim Watch Request for Leave to Supplement Pilgrim Watch Request for Hearing on a New Contention Regarding the Inadequacy of the Environmental Report, Post Fukushima filed June 1, 2011, referencing NRCs Task Force Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from The Fukushima Dai-Ichi Accident, July 12, 2011See NRC Task Force Recommendation 5, incorporated in the Nov 18, 2011 Request Hearing.)

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PWs contention is directed to requiring Entergy to conduct a new PRA based on Fukushima information, and a new SAMA based on such a PRA and including modeling of aqueous discharge of large volumes of contaminated water. Exactly what these site-specific analyses will show remains to be seen; but this contention cannot properly be rejected simply by saying that the information that they would provide is not now available.

B. Pilgrim Watch's Request for Hearing Was Timely The Board Majority argument that the contention is untimely under 2.326 (a) (1) and 2.309 (c) and/or (f)(2)(i)-(iii) is wrong. The Decision essentially parrots Entergy (see Entergy Answer Opposing PW's Request,11-17), and again ignores the facts presented by Pilgrim Watch.

The Majority (and Entergy) point to three supposed reasons to show that PW's Request for Hearing does not include new and important information: (1) News photographs and articles in the spring of 2011 showed that large quantities of water were pumped into the Fukushima reactor and them flowed into the Pacific Ocean, Decision, 12; (2) the "limitations of the MACCS2 code have been present for decades," Decision, 13; and (3) "SECY 11-0089 does nothing more than compile previously available information," Decision 13.

Taking the latter first, neither the Board Majority nor Entergy has said where the information in SECY 11-0089 was "previously available." Pilgrim Watch is unaware of any public source, before SECY 11-0089, that Fukushima demonstrated that "emergency measures to cool the reactor cores" could " result in large volumes of contaminated water ... with yet to be determined offsite consequences." It is also not aware of any public source of information, before SECY 11-0089, that "[t]o determine the relative risk significance of these types of scenarios, a level 3 PRA must be capable of modeling and analyzing the aqueous transport and 9

dispersion of radioactive materials through surface water, sediments, soils and groundwater, and that Entergy's PRA did not do so. (SECY- 11-0089, Enclosure 1, pg., 21) (Emphasis added)

The language in SECY 11-0089 itself - "As demonstrated by the recent events in Japan,"

(underlining added) - shows that the NRC was not merely summarizing previously available information out of boredom but rather responding to what had just been learned.

The Board Majority also ignores any mention of the fact that although Pilgrims site-specific Severe Accident Mitigation Guidelines (SAMGs) are highly relevant, they remain unavailable to the public. PW received notice from NRC Region 1 November 15, a mere three days before filing the Request, that Pilgrims SAMGs were not available and that NRC could not provide information. (Request at 10)

As for the limitations in the MACCS2 code, PW agrees that the publicly available information said that the code was capable of modeling atmospheric releases. But we know of no public information, prior to SECY 11-0089, showing that the code did not model and was not capable of modeling aqueous releases, much less aqueous releases of a magnitude and duration that was unthinkable before Fukushima. The Majority never says that any such publicly available information existed. The Majority simply surmised that "Pilgrim Watch cannot reasonably assert that it has just now learned of these limitations, given that it has had access to an expert in that code (Mr. David Chanin)." (Decision, 13). But even if Mr. Chanin could have told PW that the code did not model aquerous releases, that would not show that the information on which PW based its Request for Hearing was not new and important.

The Majority completely ignored that what is important is not simply that there are limitations in the MACCS2 code; rather it is why a particular limitation is important. If the fact that the code did not model aqueous discharges was known to be important, why was that not 10

highlighted by the NRC in the SEIS? The answer seems to be that, before Fukushima, the NRC assumed 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, and that the reactor containment would not fail. SECY 11-0089 effectively admitted that these assumptions were wrong, and that it was important to model the potential massive amount of contaminated water leaking into the adjacent waters; moreover for an extended period of time.

The Majority somehow assumes that PW should have known why modeling aqueous discharge was important in 2006. But why should PW reasonably have been expected to have known this when there is no evidence that either Entergy nor NRC did?

As for the spring news coverage of the Fukushima reactors failing, it did show the world that water was being pumped into the failed reactor containments, and that this leaked into the Pacific, along with contaminated runoff and flow from contaminated subsurface water, sediments, soils and groundwater. But PW showed the that information to support this contention has only recently become available following months and months of cover-ups by Tokyo Electric Power Company regarding the severity of these accidents. (Gundersen Decl.

¶21) What was not publicly known, at least until the Commission admitted the facts in SECY 11-0089, is why this was so important. Until shortly before PW filed its contention, the important new information - that the water could have to be pumped into the containment for months, that this water would become highly contaminated, and add to other contaminated water flowing into the ocean -- was simply not known. Nothing in the Majority Decision suggests otherwise.

Finally, all three judges agree that a contention that raised a grave and significant issue does not have to be timely. (Decision, 14; Young dissent, 3-4). Judge Young said that "the issues raised by Pilgrim Watch in the new contention appear to me to be exceptionally grave, so 11

as to override any untimeliness under §2.236(a)(1) as well as significant, as required by

§2.236(a)(2)." (Young dissent, 4)

The Majority's conclusions that the contention is not "significant" because it does not "paint a seriously different picture of the environmental landscape," and that it is not "grave" because it does not "relate to the Pilgrim plant directly" (Decision, 14-15), are simply wrong.

Here, as it did essentially throughout its Decision, the Majority chose to put blinders on and utterly failed to take the required hard look at evidence presented.

Entergy's and the Majoritys "picture" is an environmental landscape in which no contaminated water flows into Cape Cod Bay and adjacent waters beyond in a severe accident.

By any account, this is "seriously different" from a picture in which millions of gallons of radioactive water flows into the waters and potentially destroys a $14.8 million dollar economy.

To reasonable people, including Judge Young, the potential destruction of a $14.8 billion dollar per year maritime economy would be "significant." Judge Young recognized from PW's detailed information relating to the potential "impacts on the maritime environment and economy surrounding the Pilgrim plant, [that] if there were an accident at the Pilgrim plant with consequences including releases of contaminated water, the results could be catastrophic."

(Young dissent, 11) She also correctly found "that Pilgrim Watch has provided information that

'paint[s] a seriously different picture of the environmental landscape,' were there to be the sort of aqueous releases addressed in its new contention." (Id.) Mr. Gunderson's declaration presented detailed information about the significance of the Massachusetts economy that would be affected by such releases; information that the Majority Decision never mentions.

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As for "grave," we utterly fail to understand how the Majority can say that information showing that the potential discharge of a large volume of contaminated water from Pilgrim into Cape Cod Bay, on which Pilgrim fronts, does not "relate to the Pilgrim plant directly."

In short, Pilgrim Watch's new contention was timely, and in any event the issue it raises is sufficiently grave and significant that timeliness is not important.

C. Pilgrim Watch Showed What is Required Short and simple, the Majority found that there was "no linkage" and that contaminated aqueous discharges did not "paint a seriously different picture of the environmental landscape" only by ignoring important facts, including facts from PWs Post-Fukushima contentions that were incorporated into this contention. The Majority also applied the wrong standard of what Pilgrim Watch was required to show.

The facts presented by PW "linking" what happened at Fukushima to what could happen at Pilgrim, facts that the Majority should have considered but did not, are discussed above.

Throughout its Decision, the Majority accepted everything that Entergy's experts said at face value, and summarily rejected everything that Mr. Gunderson said as mere "speculation,"

apparently based on its false belief that both Energy and the Staff have raised sound challenges to Mr. Gundersons credentials as an expert. (Opinion, 18) The Majority ignored, as Judge Young pointed out, that Mr. Gunderson's "expertise on aqueous releases would seem to be no less extensive that (sic) the expertise on that subject of Entergy's experts" (Young dissent, 7, fn.

19). It also ignored Mr. Gundersens particular expertise with respect to the Fukushima accidents. Mr. Gundersens Declaration, ¶ 9 says:

Since the accident at Fukushima Daichi began, I have been conducting extensive research on the accidents with Japanese colleagues. I prepare regular Fukushima Updates, texts and video presentations that are also translated into Japanese I am in contact with many Japanese and nuclear engineering, just two of whom are Dr.

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Genn Saji, Ex-Secretariat of Nuclear Safety Commission, Japan and Dr. Ko-ichi Nakamura from the National Institute of Advanced Industrial Science and Technology (AIST) Dr. Nakamuras asked me to be one of the peer reviewers for a paper he has written concerning liquid releases from Fukushima after the accident.

The Majority ignored that PW and Mr. Gundersen provided in great detail, [information on] the ways in which aqueous transport could have negative environmental and other offsite consequences, citing not only SECY-11-0089 but also various other reports and modeling information on water circulation and related issues in and around Cape Cod Bay (Young Dissent, 7).9 Judge Young correctly noted that Entergys experts statements do not, however, address in any detail the information Pilgrim Watch and Mr. Gundersen provide.

Then, without any apparent consideration of the facts that PW and Mr. Gundersen presented, the Majority went on to castigate them for saying only that these facts showed that serious environmental impacts "might" arise, and that important SAMAs "might" become cost effective (Decision, 15). According to the Board Majority, PW was required to show that there in fact would be serious environmental impacts, and that important other SAMAs would be cost-effective. The Majority also said that PW was required to "provid[e] information about the plant or its design, operation, and maintenance"10 (Id.), and "some information indicating how much the mean consequences could reasonably be expected to change as a result of consideration of 9

PW provided, e.g.,: (1) multiple reports from Pilgrims sister-reactors in Japan showing the amount and duration of contaminated aqueous releases in Japan, and their offsite environmental impact and costs (Request, 19-22; Response, 17-19,22,26-27); (2) a discussion of contaminants likely to be released in aqueous discharges (Response 20-22,47-48); (3) reports from the Commonwealth that showed the impact/offsite costs associated on the marine economy:

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 (Request 22-29, 33-37); reports showing the impact on marine environment, biological communities, NUREG-1437, Sup 29, 2.2.5.3 (Request, 29-33; Request 48-49); (4) studies regarding currents and tides in Cape Cod and Massachusetts Bays by the NRC, Coastal Zone Management, USCG and available models of contaminant flow (Request 7-8, 13 -19).

10 PW has shown that the Mark I BWRs at Fukushima and Pilgrim (including their DTVs) are essentially identical.

What other available design, etc. details would the Majority require Pilgrim Watch somehow to obtain?

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the Fukushima-derived information,11 together with at least some minimal information as to cost of implementation of other SAMAs it believes might be costs effective" (Id., 16-17).

PW is not required to do this, particularly at the contention stage. Entergy, not PW, has the "information about the plant or its design, operation and maintenance," Does the Majority really believe that this information is publicly available? As for "mean consequences [that]

could reasonably be expected to change as a result of consideration of the Fukushima-derived information, neither Entergy nor the NRC Staff has ever done the prerequisite PRA or SAMA analyses. It is Entergys and the NRC's job to do a proper post-Fukushima SAMA analysis, including modeling over an extended 5 year period, not 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, and averaging at 95 percentile.

(Gundersen Decl., ¶ 37). PW showed that modeling aqueous discharges is doable by reference to sophisticated pollutant aqueous transport models such as FVCOM (Request, 18), satisfying NRCs discussion of NEPAs rule of reason standards. (CLI-10-22, at 9)

The Majority's requirement that PW must do the work and conduct the analyses that Entergy and the NRC Staff have failed to do is flatly wrong. PW is not obligated to perform a complete and new SAMA analysis or a comprehensive review of potential mitigation measures as a prerequisite to presenting a new contention. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 N.R.C. (Aug. 4, 2010) (slip op.

at 21)(It is only necessary to determine whether the intervenor has raised a material issue under NEPA, not whether its position is correct); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 N.R.C. 43, 102 (2008) (At the contention stage it is inappropriate to require an intervenor to point to specific incorrect inputs or assumptions in the SAMA 11 Entergy's ER Appendix E, Table E-2-1 summarizes Phase II SAMA candidates that Entergy considered in its cost-benefit evaluation. The listing makes clear that many SAMAs would be cost-effective if Entergy properly analyzed the offsite consequences/costs of contaminated aqueous discharges. For example, the cost of providing a filter for the Direct Torus vent is less than 1% of the consequence cost calculated by Judge Young.

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analysis - that is a matter appropriately . . . resolved at the hearing); id., 68 N.R.C. at 113 ( a petitioner is not required to redo SAMA analyses in order to raise a material issue. It is sufficient to show the use of inaccurate factual assumptions).

Similarly, PW is not obligated to perform a complete and new SAMA analysis or conduct a comprehensive review of potential mitigation measures as a prerequisite to the NRC's obligations under NEPA to take a hard look at the lessons learned from Fukushima. 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) ([it] is the agency, not an environmental plaintiff, that has a continuing duty to gather and evaluate new information relevant to the environmental impacts of its actions, even after release of an [EA or EIS.") As the First Circuit said in Dubois v. U.S. Dept. of Agric., 102 F.3d 1273, 1291 (1st Cir. 1996):

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 question.

Here, PW has more than met its burden to provide new and significant information from lessons learned from Fukushima to support its Aqueous Discharge Contention, and demonstrate that the Pilgrim SAMA analysis and Supplement to the GEIS are flawed and should be redone.

It is Entergy's and the NRCs duty, not PW's, to take a hard look at this information in a manner that rationally connects the facts found to the choices made (Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1972) (the agency must consider relevant factors and articulate a rational connection between the facts found and the choice made)), and to perform the necessary post-Fukushima analyses.

Finally, the Majority overlooks that PW did show that the costs against which potential SAMAs could be measured far exceeded the cost of the SAMAs that Entergy identified in its 16

application. Entergy claims that PW would need to show at least an additional $2,892,000 in averted costs. Judge Youngs Dissent (10, fn 31) did the math. If one were "conservatively to assume that, for example only one tenth of the whole maritime economy would be affected," valued by the University of Massachsuetts at $14.8 billion dollars, and then took "one-quarter of that to represent approximately 96.5 days Entergy estimates negative impacts would continue, [that] produces a figure of $370,000,000 - far greater than $2,892,000."

D. NEPA Requires Consideration of New, Significant and Material Information The fundamental purpose of the National Environmental Policy Act, NEPA, 42 USC § 4332, is to help public officials make decisions that are based on understanding of environmental consequences, and take decisions that protect, restore and enhance the environment. 40 CFR § 1500.1(c) The Majority nowhere disputes that NEPA requires an agency to consider the environmental effects before decisions are made; the NRC must ensure that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast. Robertson v Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Neither does the Majority dispute that the NRC 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) before relicensing.

Before Pilgrim is relicensed, Entergy is required by 10 CFR § 51 to provide an analysis of environmental impacts, including any that are reasonably foreseeable and have catastrophic consequences, even if their probability of occurrence is low. 40 CFR

§1502.22(b)(1). To satisfy NEPA, a potential impact must be considered even if, as the Majority (and Entergy's experts) incorrectly argue, a severe accident is " not likely." The likelihood of an impact also must be considered even it is not easily quantifiable. NRC regulations require that 17

to the extent that there are important qualitative considerations or factors that cannot be quantified, these considerations or factors will be discussed in qualitative terms. 10 CFR§51.71.

The indisputable fact is that Entergy's EIS and SEIS do not consider any of the lessons learned from Fukushima. (Young Dissent, 14-15) As the Supreme Court said in Marsh, it would be incongruous with NEPAs action-forcing purpose to allow an agency to put on blinders to adverse environmental effects, just because some previous and inadequate EIS been completed.

Id.

Instead of squarely addressing NEPA, the Majority spends five pages accusing Judge Young of relying on "faulty premises'" and of requiring the NRC "Staff to prove a negative" (Opinion 22-26). Neither accusation holds water.

Judge Young's "premise" that no "hard look" had been "done with respect to Pilgrim and its Mark I BWR at this time, given the lack of any consideration of information arising out of the accident at Fukushima" (Young Dissent, 23) is correct, not faulty. Also correct is her statement that "once the accident at Fukushima happened, it presented new information ... which are significant though with respect to the Mark I BWR reactor plant that issuing the renewed license without consideration of them would effectively run afoul of the requirements of NEPA." (Id)

The Majority's next assertion, that adopting Judge Young's view "would require the Staff to prove the absence of any environmental effects, having the legal effect of proof of a negative" and would "stand adjudicative principles on their head" (Decision 23) is pure hyperbole. NEPA does not require proof that there is no environmental effect. What NEPA does require is that, before issuing an extended license, the NRC (presumably with the help of its technical staff),

takes a "hard look" at the available and reasonably obtainable evidence regarding the potential effect of relicensing Pilgrim, and then and only then reach a reasoned decision of the likelihood 18

that relicensing could affect the quality of the human environment in a significant manner or to a significant extent not already considered. Marsh, 490 U.S. at 374, No "adjudicative principles [would be stood] on their head." The NRC would simply have to do what it is required to do. Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975)

("Compliance with NEPA is a primary duty of every federal agency; fulfillment of this vital responsibility should not depend on the vigilance and limited resources of environmental plaintiffs"). As the First Circuit (to which any appeal in this proceeding will be taken) said in Dubois

v. U.S. Dept. of Agric., 102 F.3d 1273, 1291 (1st Cir. 1996):

NEPA requires the agency to try on its own to develop alternatives that will "mitigate the adverse environmental consequences" of a proposed project. Robertson v. Methow Valley Citizen's Council, 490 U.S. 332, 351 (1989)

What the Majority's view really boils down to is its incorrect assertions that "absolutely no evidence has been presented" that the Fukushima accidents have any relevance to Pilgrim and that everything that PW and Mr. Gundersen said is "pure speculation." As we have shown above, the Majority's statement that "absolutely no evidence has been presented" is simply not so. The Commission has recognized that the events at Fukushima are relevant to Pilgrim, and that the potential of a Fukushima-like accident is far more than "speculation." There is no reasonable or rational support for the Majority's conclusions that "there is no environmental effect to be examined under NEPA respecting the proposed federal action. (Majority at 23); and that "[t]here is nothing to take a hard look at." (Majority at 24)

The Majority simply blinded itself to the plethora of evidence presented by PW linking the events of Fukushima to a severe accident at Pilgrim, and to the NRC's recognition of the link.

Only Judge Young, and the Commission in its earlier actions, seem clearly to have understood that the known facts, not speculation, show the Fukushima accidents are relevant to Pilgrim:

19

I also now find that the matters put forth in and in support of Pilgrim Watchs June 2011 contention, in conjunction with the current contention, provide a sufficient connection between containment failure and failure of the direct torus vent to operate (as raised in the June 2011 contention), on the one hand, and consequences including those asserted in and in support of the current contention, on the other. (Young Dissent, 10; see also LBP-11-23 Concurrence and Dissent; LBP-11-35 Concurrence, at 76:

"some liklihood that information from Fukushima could have some such impacts, such that it cannot be said that consideration of Fukushima-related issues could not affect the ultimate decision in the renewal application.)

I find that both Pilgrim Watch and the Commonwealth of Massachsuetts have shown that it is reasonably forseeable that consideration of information arising out of the Fukushima accident could have such an effect to the Pilgrim plant. (Referencing Admissibility of Contention Under Reopening Standards and Other Relevant Requirements; LBP-11-23 Concurrence and Dissent; LBP-11-35 Concurrence)

Finally, that all of the information about Fukishima may not now be known provides no justification for the Majority to terminate this proceeding without considering PW's contention and the NRC's NEPA obligations, for reasons Judge Young made clear. (Young Dissent, 13-19)

As shown above, what is now known plainly brings NEPA into play. The NRC can either take its required "hard look" now, or it can wait for further information to develop. What it cannot do is grant Entergy's license extension without taking a site-specific "hard look."

Based on the information that it now has, the Commission could reasonably assume that in the event of a Pilgrim accident such as that at Fukushima about one-fourth of the millions of contaminated water released at Fukushima would flow into Cape Cod Bay and beyond, and that the level of contamination would be essentially the same as at Fukushima. There is no reason that the Commission should not now require Entergy to perform a proper and conservative PRA to determine the likelihood of such an accident, and conservatively to model the effect of that kind of release - using either a modified MACCS2 code and one of the other models identified by Mr. Gundersen to assess the pollutant transport of aqueous discharge. See Gundersen Dec.,

¶39 20

If the Commission should conclude that it is nonetheless premature to initiate an proceeding to take a "hard look," as required by NEPA and PW's AEA right to a hearing, it cannot lawfully terminate this proceeding and relicense Pilgrim.

E. Pilgrim Watch Satisified 10 CFR 2.32612 Initially, the Majority holding that "[a]s we have stated at length in each of our previous Orders ..., we hold that Pilgrim Watch must satisfy the requirements of 10 C.F.R 2.326" was wrong here, just as it was wrong in the "previous Orders," all of which are now the subject of Petitions for Review.

In this Decision, the Majority said nothing substantive on this issue, except for its factually incorrect statement that "[f]ollowing an evidentiary hearing on the merits of Contention 1, the Board closed the evidentiary record and terminated these proceedings. (Decision, 2). The June 4, 2008 Order cited by the Majority says nothing about "terminat[ing] these proceedings,"13 and closed only "the record with regard to Contention 1."

Following the Majority's lead, and given space limitations, PW will not here repeat (but does hereby incorporate by reference) what it has already said on this subject in its previous Petitions for Review that also are directed to this issue, e.g., LBP- 11-23, pp. 7-9, LBP-12-01, pp. 3-6, and LBP 35 p. 3. As PW said at the outset, PW urges the Commission to consider all of the Petitions raising this issue concurrently.

12 Judge Young disagreed with the Majority's reasons for rejecting PW's contentions, but apparently concluded that consideration of them should be deferred "until information on the Fukushima accident becomes sufficiently clear for appropriate consideration that would permit a more meaningful, fully reasoned decision on the application."

(Young Dissent, 12). PW addressed the question of prematurity in showing links to Fukushima (Section III.A.,

increased probability and consequences of a severe accident, referencing PWs May and June 1 Requests) and at 20 above.

13 ASLB June 4, 2008, pgs., 3-4 says that, [W]e consider that the record with regard to Contention 1 is effectively closed, and to the extent necessary we here and now formally so close it.(Emphasis added) The present Order of January 12, 2012 is the first to say the proceeding is hereby TERMINATED (Decision, 27).

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In any event, the Majority's conclusion that Pilgrim Watch did not meet the "reopening" standard is also wrong.

The Majority Decision that the reopening requirements were not met rests principally on its incorrect conclusion that PW has not "linked" Fukushima and Pilgrim and that PWs Request for Hearing was not timely. See. e.g., Decision, 12, 13. As shown in detail above, PW provided linkage, and its Request was timely filed.

The only other reasons that the Majority gave for its conclusion that the requirements of

§2.236 were not met were that PW did not "demonstrate that a materially different result would likely have been reached" (Decision, 16), and that Mr. Gunderson's declaration did not "set forth the factual and/or technical bases ... that the criteria of 10. C.F.R. §2.236(a) have been satisfied.

(Decision, 17). Both of these misguided conclusions rest on the Majority's incorrect but repeated contention that PW and Mr. Gundersen provided only "bare speculation and bare (and bald) assertions." (Decision, 17)14 PW has shown above that this is simply not so. The information provided by PW and its expert do "demonstrate" that a "different result of the Pilgrim SAMA analysis could be obtained by consideration of the asserted new information" (Id.), i.e.,

information from Fukushima, and, if and when Entergy does its job, a proper SAMA analysis that models aqueous discharges taking the Fukushima information into account.

The Majority's further assumption that PW was required to, but did not, itself perform the necessary SAMA analysis to show "how ... the mean consequences... could be altered so as to make additional SAMAs cost-effective" or identify some "other mitigative mechanism" that "would become cost effective" (Decision, 17, 18) is both legally and factually wrong, as PW has also shown above.

14 The first also rests on the Majority's incorrect view of what PW is required to show. See pp, 13-17 above.

22

Last, and again contrary to the Majority (Decision 17-19), PWs affidavit satistfied the requirements of § 2.326 (3)(b). Judge Young recognized that Mr. Gundersen has not specifically identified the statements in his Declaration as addressing the reopening standards of 10 C.F.R. § 2.326, but do[es] not find this negates a conclusion that Pilgrim Watch, with, Mr.

Gundersen, has demonstrated, in reality, that the standards have been met. In my view, to rule otherwise would be to elevate form over substance (Young Dissent, 12, footnote see LBP-11-20 Concurrence and Dissent (Slip op at 3))

F. Pilgrim Watch Satisfied 10 CFR 2.309 The only "new" argument made by the Majority in support of its assertion that PWs contention fails to satisfy 10 C.F.R 2.309(c)(vii) is that accepting the contention "would undoubtedly broaden the issues ... and cause a material delay in the proceeding. (Decision, 19).

This is but one of six factors that 2.309 says should be taken into consideration. The Majority does not even intimate that any of the three of the factors favoring admission are not met, or that either of the other two factors "weighing against allowing intervention" against admission apply. The one "factor" that the Majority (taking Entergy's lead) did mention was that essentially any new contention will involve additional issues and cause delay, particularly if one is to accept the Majority's consistently narrow view of the issues before it and what might constitute delay. Beyond that, and ignored by both Entergy and the Majority, the relevant law is clear that the "broaden/delay" 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, PWs Request was not "tardy" (see, above pp., 9-13). That it might prolong and add issues to this proceeding is legally irrelevant.

23

The Majority's other arguments that §2.309 has not been satisfied essentially repeats its basic (incorrect as we have shown above) theme that Fukushima and Pilgrim are totally unrelated and that everything that PW and Mr. Gundersen have said is nothing more than speculation.

The Majority's argument (at 20) that the issue Pilgrim raises is not "material to the NRC's decision" required by § 2.309 (f)(1)(iv) is doubly wrong.15 First, it simply repeats that PW's assertions are "speculative," an assertion that we have already shown is wrong as a matter of both fact and law. Second, the Majority's effort to exclude PWs contention misunderstands the rule. 10 C.F.R. § 2.309 (f)(1)(iv) asks whether "the issue raised in the contention is material to the findings that the NRC must make to support the action involved in the proceeding [renewing Pilgrim's license for another 20 years], not whether PW has demonstrated proof. Whether PW has provide[d] a concise statement of the alleged facts or show[n] that a genuine dispute exits is the subject of 2.309 (f)(v) and (vi), not (f)(iv). There is no rational basis on which the Majority could have concluded that PWs contention showing that Entergy and the NRC Staff have utterly failed to consider the potential effects of massive radioactive discharges into Cape Cod Bay and adjacent waters is not "material to the findings that the NRC must make."

The Majority's argument (Decision, 20) that PW did not "provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law of fact" (10 CFR §2.236(f)(vi)) at least correctly identifies an issue, but it is equally wrong.

Fundamentally, the Majority again returns to its repeated, and repeatedly wrong, argument that 15 See discussion materiality in PWRequest for Hearing on A New Contention Regarding Inadequacy of Environmental Report, Post Fukushima -Aqueous Discharges (November 18, 2011), pg., 6; Entergy's and the NRC Staff's Answers to Pilgrim Watch's Request (December 13, 2011) , and Pilgrim Watch's Reply to Entergys and NRC Staffs Answers (December 20, 2011), pg., 28 24

PW has only speculated (Id.). As discussed above, and perhaps most clearly demonstrated by the lengths to which Entergy and its "speculative" experts went in their attempt to show that the dispute that plainly does exist should be ignored, PW has more than "provide[d] the requisite sufficient information that would 'show' a dispute." (Id.)

The Majority's effort to bolster its position "that Entergy's experts have stated (in uncontroverted testimony)" that "consideration of an aqueous release would not increase the damages to the environment or increase the costs associated with the considered accidents" (Id.)

approaches the disingenuous. The Majority (like Entergy and its experts) ignore that increased damages and costs depend on the combined effect of atmospheric and aqueous releases (not one to the exclusion of the other; see Gundersed Dec. ¶ 17). Moreover, PW's Request and Answer did controvert" their testimony and PW certainly will do so at a hearing.

IV. CONCLUSION For the foregoing reasons, the Commission should review and reverse the Decision and either deny the license renewal application or remand the matters to the Board for further proceedings after the Commission has corrected the many legal and factual errors contained in the Decision.

Respectfully submitted Signed electronically by, Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel. 781-934-0389 Email mary.lampert@comcast.net January 26, 2012 25