ML12121A455
| ML12121A455 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 04/30/2012 |
| From: | Anne Bingham, Lampert M, Sheehan M - No Known Affiliation, Jones River Watershed Association, Pilgrim Watch |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 22359, 50-293-LR, ASLBP 12-917-05-LR-BD01 | |
| Download: ML12121A455 (15) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application April 30, 2012 PILGRIM WATCH AND JONES RIVER WATERSHED ASSOCIATION JOINT OPPOSITION TO NRC STAFFS REQUEST FOR AUTHORIZATION RENEW PILGRIM STATIONS LICENSE (SECY-12-0062, April 23, 2012)
I. INTRODUCTION Pilgrim Watch and Jones River Watershed Association respectfully request permission to reply to the NRC Staffs request for authorization to issue Pilgrims renewed license, filed April 23, 2012. The NRC filing is entitled, Supplemental Information Potentially Relevant and Material to Proceeding for the Renewal of Full-Power Operating License for Pilgrim Nuclear Power Station, SECY-12-0062, and was submitted by the Executive Director for Operations (EDO) and transmitted by the Office of General Counsel (the EDO request or SECY).
Pilgrim Watch (PW) and Jones River Watershed Association (JRWA) oppose NRC Staffs request. PW and JRWA respectfully request an oral hearing before the Commission on this matter before the Commission takes action on the EDO request, unless the Commission is going to summarily reject the request. The request should be rejected because it asks the Commission to abdicate its responsibilities and ignore both NRC and federal rules and policies.
The EDOs request recognizes that:
- 1. SECY 02-0088 does NOT permit renewal in a contested matter until the NRC has resolved all of the matters in dispute. (SECY, 1)
- 2. The NRC rules provide a procedure for contested matters - including a hearing before the ASLB and review of any ASLB decisions by the Commission. (SECY, 4)
- 3. There are several contested contentions still pending before the ASLB and/or the Commission that the NRC Commission has not decided. (SECY, 5)
In support of the EDO request, the EDO makes two assertions. First, that "[T]he NRC is not compelled to await exhaustion of administrative or judicial appeals before renewing the operating license for PNPS," citing 56 Fed. Reg. 64943, attempting to bolster his justification for relicensing by claiming that the NRC could always set aside the license later (SECY at 5); and second, that all that really matters is that the NRC staff has concluded that "Entergy Nuclear and ENO have taken, or will take, appropriate actions to manage the effects of aging" and that "the staff found that there is reasonable assurance that the activities authorized will continue to be conducted in accordance with the licensing basis for PNPS." (SECY, 2)
Neither EDO assertion justifies the action that the EDO seeks: issuing a license renewal simply because the NRC Staff has unilaterally reached its conclusions -- whether or not third partys contentions filed under the applicable NRC rules bring the Staff's contentions into serious issue, and whether or not the Commission has even decided the merits of those contentions.
Under the EDO's reasoning, every license should be renewed almost as soon as it is filed
- since in essentially every case the licensee and the NRC Staff both have decided what the 2
license application should show. Under the EDO's reasoning, there is no reason to conduct any contested hearing before the ASLB, or for the Commission to consider whether any decision reached by the ASLB is correct, before doing what the licensee requests.
SECY 02-0088 quite properly says that this cannot be done. The NRC rules for conducting hearings in contested matters quite properly do not and should not permit it; and relicensing in these circumstances is contrary to clear legal precedent and the Administrative Procedure Act ("APA").
The EDO's attempt to justify relicensing now by saying that the NRC can look at this later should be recognized for what it is - a blatant attempt to insure that the licensee is allowed to side-step procedural measures put in place to ensure that all issues are addressed before relicensing, and to eliminate any third party's right to participation in the relicensing process.
It is wrong as a matter of law, NRC procedure, public policy, and common sense. NRC recognized this in its response to a previous motion by Entergy requesting issuance of Pilgrims renewed license (August 23, 2011). The request properly was not granted1.
II. ARGUMENT
- 1. The EDOs request is contrary to SECY-02-0088 1
A previous motion by Entergy to the Commission, Applicants Motion for Issuance of Renewed License (August 23, 2011), correctly was not granted. The application was contested then as it is now.
3
SECY-02-0088 and its implementing Staff Requirements Memorandum (SRM) established that Commission policy allows the Director of NRR to issue renewed operating licenses in uncontested proceedings without Commission approval.
In the context of an uncontested renewal proceeding, this procedure may well make sense in many cases. In an uncontested proceeding, the only participants are the NRC Staff and the applicant. Once the NRC Staff has completed the final SER and SEIS and reached agreement with the applicant, an uncontested license renewal proceeding is effectively over, and the Commission usually has no further substantive role to play.
However, SECY-02-0088, the implementing SRM of June 5, 2002, and the NRC Staff quite correctly recognize that the issue a license without Commission approval procedure is limited to uncontested cases.
SECY-02-0088, Commissioner McGaffigan: [T]he time has come for the Commission to "authorize the Director of NRR to issue subsequent uncontested operating license renewals without prior Commission authorization. (Emphasis added)
SRM of June 5, 2002: The Commission authorizes the Director of NRR to issue all future uncontested operating license renewals without prior Commission authorization once the Director of NRR has made the appropriate findings.
(Emphasis added)
NRC Staffs Answer to Applicants Motion for Issuance of Renewed License (August 23, 2011) at 5, By virtue of SECY-SRM-02-0088, the Commission has only authorized the Director of Nuclear Regulatory Regulation to issue renewed licenses in uncontested proceedings. NRC Staff has taken the position that the Commission, as a matter of policy, has not allowed the Director of NRR to make the appropriate findings and renew operating licenses in contested proceedings without Commission authorization. (Emphasis added)
In short, the EDOs SECY no approval required policy simply does not apply in cases, such as Pilgrim's, where the grant of the renewal license is contested. In contested cases, the Commission review and approval is required, and essential.
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Even the EDO admits (SECY at 1) that the long-standing SECY policy that the Commission and NRC Staff have followed for years does not allow the Director of NRR to issue renewed operating licenses in contested proceedings without Commission approval. Once again, the reasoning is clear. Even though the applicant and the Staff may be in agreement, an intervenor well may not agree with them. Both common sense and a sense of justice preclude cutting off the Intervenor's rights before the Commission has considered the disputed issues.
Pending Contested Issues: The EDO (SECY at 5) readily admits that there are contested issues now before the Commission and Board that include:
PWs Petition for Review of LBP 12-01, 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 concerning Entergys failure to model aqueous discharges in its cost-benefit SAMA analysis thereby severely minimizing offsite consequences and costs. Subsequent supplements were filed on February 15, 2012, February 28, 2012 and March 2, 2012. The Commission has not completed its business and issued an Order.
PW and JRWA have pending before the ASLB a Request for Hearing filed March 8, 20122 on violations of the Endangered Species Act, Magnuson-Stevens Fisheries Conservation Act, and the National Environmental Policy Act with regard to endangered species and fisheries present in Cape Cod Bay; and subsequent supplements filed March 2
Jones River Watershed Association Petitions for leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the Alternative 10 C.F.R. § 2.309(e) and Jones River Watershed Association and Pilgrim Watch Motion to Reopen Under 10 C.F.R. § 2.326 and Request for Hearing Under 10 C.F.R. §2.309(a) and (d) in the Above Captioned License Renewal Proceeding, March 8, 2012 5
15, 2012. The ASLB has not completed its business either and issued an Order for the Request for Hearing.
These pending contested issues were raised in the public interest and appear to be a matter of little to no concern to the EDO. There is no proper justification for changing the accepted and rational procedure established by SECY-02-0088 and the implementing Staff Requirements Memorandum. A rush to license, effectively ignoring the hearing process, is certainly not justified particularly since Pilgrim can continue to operate until the licensing procedure is completed.
- 2. Issuing a license before the Commission has decided all pending matters before it is contrary to the NRCs own rules-the rules that define the hearing process, including the immediate effectiveness rule that requires at least an initial decision that has resolved all issues.
Until contested issues are decided by NRC, the EDOs request for issuance cannot be granted. The immediate effectiveness rule makes this clear.
10 C.F.R. 2.1210(a) says "the presiding officer shall render an initial decision after completion of an informal hearing under this subpart." (emphasis added)
The pertinent portions of 10 C.F.R 2.340 provide:
(a) Initial decisionproduction or utilization facility operating license. In any initial decision in a contested proceeding on an application for an operating license (including an amendment to or renewal of an operating license) for a production or utilization facility, the presiding officer shall make findings of fact and conclusions of law on the matters put into controversy by the parties to the proceeding....
(f) Immediate effectiveness of certain decisions. An initial decision directing the issuance or amendment of ... an operating license under part 50 of this chapter ...is immediately effective upon issuance unless the presiding officer finds that good 6
cause has been shown by a party why the initial decision should not become immediately effective.
Together and separately, these NRC Regulations could hardly be clearer that the "initial decision" referred to in 2.340 is (i) a decision issued "after completion of an informal hearing,"
(ii) a decision that addresses all of "the matters put into controversy by the parties to the proceedings," and (iii) a decision "directing the issuance or amendment ... of an operating license."
Here, the plain fact of the matter is that the Board has not issued any such "initial decision" nor has the Commission issued its decision on PWs Petition for Review.
- 3. NEPA forbids relicensing before all new, significant and material environmental issues have been considered.
The EDO apparently believes that the National Environmental Policy Act (NEPA) permits the NRC to make a final decision now, and without any hearing or final consideration of the environmental issues brought forward by PW and JRWA. These issues are new, significant and material.
PWs Petition for Review before the Commission ( January 26, 2012) shows 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 from lessons learned from Japan, but also that resulting from aqueous transport and dispersion of radioactive materials through subsurface water, sediments, soils and groundwater. NEPA requires the NRC 7
to consider the new and significant information from Fukushima brought forward by PW prior to issuing an extended license. The Commission has not ruled on the petition.
PW and JRWAs Request for Hearing (March 8, 2012) and supplemental filings charge that the NRC has failed to complete four environmental assessments that are a prerequisite to relicensing the Pilgrim Nuclear Power Station. The absence of these assessments renders the NRCs Supplement 29 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants prima facie invalid. Petitioners contention establishes that no relicensing decision can be made until these assessments are completed and the results documented in a new supplemental environmental impact report that contains a meaningful analysis of the alternatives to the once-through cooling operations the applicant plans to use during the relicensing period. The contention is based on new and significant information, including admissions made by the NRC on February 29, 2012 and newly discovered information from other regulatory agencies. The ASLB has not issued an order on the request. The contentions show:
The NRC has failed to complete the § 7 consultation process under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., for ten listed endangered and threatened species (five whales, four turtles, and the Atlantic sturgeon).
Contrary to the NMFS Consultation Handbook and recommendations in the ESA regulations, NRC Staff and Entergy have failed to conduct a specific assessment of the impact of relicensing on river herring, the third most commonly impinged 8
species at PNPS, and have not considered ways to avoid or minimize adverse effects to river herring.
The NRC staff has failed to comply with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) of 1976, 15 U.S.C.S. §§ 1801 et seq. and implementing regulations at 50 C.F.R. 600.905 et seq. with regard to the PNPS relicensing.
The environmental impact statement for PNPS is prima facie defective because a final EIS can only be issued following the completion of the ESA § 7 consultation process, and an essential fish habitat consultation, and assessment under the MSA. Further, NEPA requires that new and significant information must be considered before the PNPS may be re-licensed. 10 C.F.R. § 51.92. See also Marsh v. Oregon Natural Resources Council, 490 U.S. 360,385 (1989) (regardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the proffered evidence).
NEPA forbids granting a license until all new, significant and material environmental issues have been considered. NRC has not complied with NEPA.
A licensing agencys duty to ensure compliance with the procedural and substantive requirements of the ESA before taking action could not have been made more explicit by the United States Supreme Court. Under Tennessee Valley Authority v. Hill, 437 U.S. 154, 173 (1978), the leading ESA case, the U.S. Supreme Court stated that the clear language of the ESA admits of no exception. Yet, the EDO seeks to entirely sidestep the ESA: the U.S. National Marine Fisheries Service has not issued its written concurrence on the two biological assessments produced by the NRC staff, and in fact, on March 26, 2012, stated that it disagreed 9
with the NRC Staff assessment of no effects on endangered species and critical habitat. The failure to complete the ESA process prior to an agency action is viewed as so severe as to warrant an injunction preventing the action from occurring. See, e.g. Citizens for Better Forestry v. Johanns, 481 F. Supp. 2d 1059, 1100 (N.D. Calif. 2007) Yet, here, the NMFS has not issued its written concurrence so the ESA process is incomplete. JRWA and PW have recently provided documentation to NMFS raising grave environmental issues about the scope and extent of toxic water pollution from Pilgrim and its impact on endangered species. Most notably, JRWA and PW have provided documentation of federally-endangered North Atlantic right whales swimming in the thermal plume created by Entergys discharges in Cape Cod Bay. On April 17, 2012, three North Atlantic right whales, of which only about 475 exist worldwide, were within one-half mile of Pilgrim. Entergy has identified its toxic thermal plume as extending over one mile from the facility into Cape Cod Bay. See, Exhibits 1 to 3, hereto.
The presence of North Atlantic right whales swimming in Entergys toxic thermal plume is only one of the myriad ESA issues that the EDO seeks to sidestep, in blatant violation of the ESA and U.S. Supreme Court case law. The EDOs disregard for a law that admits of no exceptions should not be tolerated.
- 4. Established precedent requires the NRC to itself find that relicensing will ensure adequate protection of the health, safety, and environment: it may not merely rely on the EDOs assurances.
In Power Reactor Development Co. v. International Union of Elec., Radio and Mach.
Workers, AFL-CIO, 367 U.S. 396,397 (1961) the U.S. Supreme Court held, [i]t is clear from this provision that before licensing the operation of PRDCs reactor, the AEC will have to make a positive finding that operation of the facility will provide adequate protection to the health and safety of the public.); see also Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1451 10
(D.C. Cir.1984), cert. denied, 469 U.S. 1132 (1985) (material licensing issues may not be excluded from a licensing hearing). This means that the license cannot be issued until all safety issues have been resolved by the NRC Commissioners --- and that a unilateral pronouncement by the EDO is insufficient for relicensing purposes.
In the leading case of Calvert Cliffs Coordinating Comm. v. United States Atomic Energy Commission, 449 F.2d 1109, 1118 (D.C. Cir. 1971), the court ruled that all environmental issues must be given the same procedural rights and processes as safety issues.
NEPA was meant to do more than regulate the flow of papers in the federal bureaucracy. The word accompany in Section 102(2) (C) must not be read so narrowly as to make the Act ludicrous. It must, rather, be read to indicate a congressional intent that environmental factors, as compiled in the detailed statement, be considered through agency review processes. Thus, NRC cannot issue a license until the NRC Commissioners determine that NEPAs requirements have been satisfied. In addition, as stated above, the NRC Commissioners must find that there has been compliance with the ESA.
Further, the NRC does not need to issue the license before the review is completed; therefore, there is no reason for the end-run around the procedural safeguards of the NRCs own hearing process, NEPA, and the ESA, as proposed by the EDO.
Pursuant to 10 C.F.R. 2.109(b) [i]f the licensee of a nuclear power plant licensed under 10 CFR 50.21(b) or 50.22 files a sufficient application for renewal of either an operating license or a combined license at least 5 years before the expiration of the existing license, the existing license will not be deemed to have expired until the application has been finally determined.
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Entergy filed its relicensing application far enough in advance so there is no reason to truncate the proper and legally required procedures to facilitate continued operation of Pilgrim.
Second, NRC rules allow the applicant to continue operating on its original license until a final determination is made on its application. Again, there is no reason abandon legally required procedures, contravene established precedent, and violate NEPA and the ESA.
- 5. As a matter of policy, the EDOs request would emasculate any protections for the public or public interest.
The EDOs request to renew Pilgrims license is an effort to cut PW and JRWA out of the relicensing proceeding before the issues they raise have been determined. In contested cases, such as Pilgrim's, where contested issues remain, the Commission has a responsibility to follow its rules, wait for the Board to issue the initial decision required by 10 C.F.R. §2.340 and 10 C.F.R § 2.1210, and itself to review the matters brought before it.
III. CONCLUSION It is important to step back and consider that the Commission's stated Mission and Strategic Outcomes. Its mission is "to ensure adequate protection of public health and safety...and protect the environment." Its Strategic Outcomes are to "Prevent occurrence of...any nuclear accidents...any inadvertent criticality events...any acute radiation exposures resulting in fatalities (and) any releases of radioactive materials that cause significant adverse environmental impacts."
Presumably, a license renewal proceeding is intended to ensure that all this is done on a site specific basis before granting an additional 20 year license to a 40-year old plant designed like those in Fukushima, and located on Cape Cod Bay which is designated by the 12
Commonwealth an Ocean Sanctuary, a status intended to protect the ecology and appearance of this area. PW and JRWA do not believe that NRC should relinquish its responsibility to protect public health, safety and the environment because the EDO has decided to play referee and "call the game."
Last, it is worthwhile to consider the benefits derived from citizen/public interest group's participation. We respectfully direct the Commission's attention to what Atomic Safety and Licensing Board Judge Michael Farrar said in his concurring opinion in the Matter of Shaw Areva Mox Services (Mixed Oxide Fuel Fabrication Facility) June 27, 2008.
... [I]ntervenors' right to a hearing, which is an empty promise unless there is an opportunity to be heard "at a meaningful time and in a meaningful manner. It is in that spirit that this concurrence respectfully suggests a need for Commission directives or policies that would enable agency adjudications to proceed differently when circumstances call for it. Specifically, those adjudications should be conducted in a way that more nearly assures that the agency's hearing process - one of the means by which nuclear safety is promoted and the natural environment protected makes the hearings mandated by the Atomic Energy Act "meaningful."
The Petitioners were instrumental in focusing the Board's attention on the troubling matters... That they did so is a testament to the contribution that they, and others like them can make to a proceeding. Moreover, in doing so they often labor under a number of disadvantages.
... once the initial petition is filed, facility proponents routinely press within the adjudicatory process to ensure that any attempt thereafter to cure any deficiencies -
as in a response to the proponents' answers-is rejected as untimely.
... crucial adjudicatory pleading deadlines have practical exclusionary impact on only one of the parties - the petitioners.
Judge Farrar concluded by saying that, "The adjudicatory system--and its impact on public safety and environmental protection - benefits both from robust Staff performance and from 13
meaningful intervenor participation." Petitioners, on behalf of the public interest, trust that Commission will see the wisdom in Judge Farrars analysis and reject the EDOs request for relicensing.
Respectfully submitted, (Electronically signed)
Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, Massachusetts 02332 Tel 781-934-0389 Email: mary.lampert@comcast.net April 30, 2012 (Electronically signed)
Margaret Sheehan 61 Grozier Road Cambridge, Massachusetts 02138 Tel. 508-259-9154 Email: meg@ecolaw.biz April 30, 2012 (Electronically signed)
Anne Bingham 78 A Cedar Street Sharon, Massachusetts 02067 Tel.781-414-1399 Email:annebinghamlaw@cocmast.net April 30, 2012 14
EXHIBITS Exhibit 1-A Letter to NMFS (April 3, 2012) regarding ESA §7 Consultation with NRC pertaining to Entergys Pilgrim Nuclear Power Station, Plymouth Massachusetts Exhibit 1-B Letter from NOAAs Assist. Regional Administrator (April 27, 2000)
Exhibit 2 Letter to NMFS (April 12, 2012)
Exhibit 3 Letter to NMFS (April 13, 2012) 15