ML12137A858
| ML12137A858 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/16/2012 |
| From: | Lindell J, Matthew Smith, Uttal S NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22462, 50-293-LR, ASLBP 12-917-05-LR-BD01 | |
| Download: ML12137A858 (45) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Pilgrim Nuclear Generating Station) )
NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS MOTION TO REOPEN THE RECORD AND REQUEST FOR A HEARING WITH REGARD TO THE ROSEATE TERN Maxwell C. Smith Susan Uttal Joseph A. Lindell Counsel for NRC Staff May 16, 2012
TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 PROCEDURAL BACKGROUND .................................................................................................. 2 DISCUSSION ................................................................................................................................ 6 I. Standing ............................................................................................................................ 6 II. The Petition is Untimely under NRC Regulations.............................................................. 7 A. Petitioners Do Not Make a Timely Showing That Their New Contention Is Based On Conclusions in the Environmental Impact Statement That Differ Significantly From The Data Or Conclusions In The Applicants Documents ........ 7 B. The Petitioners New Contention Does Not Contain Previously Unavailable Information That Was Submitted in a Timely Fashion and Therefore Does Not Meet the Requirements of 10 C.F.R. § 2.309(f)(i), (ii), (iii) .............................. 8 C. Petitioners Do Not Meet the Late-Filing Standards of 10 C.F.R. § 2.309(c)........ 12
- 1. Petitioners Do Not Show Good Cause .................................................... 13
- 2. The Balance of the Other Factors Is Not Compelling .............................. 15 III. Petitioners Do Not Raise an Admissible Contention ....................................................... 17 A. The Petition Does Not Provide a Specific Statement of the Matters in Controversy ......................................................................................................... 18 B. The NRC Staffs Environmental Impact Statement for Pilgrim Met the Endangered Species Acts Requirement to Prepare a Biological Assessment for the Roseate Tern ....................................................................... 19 C. Petitioners Do Not Provide a Sufficient Basis to Demonstrate a Material Dispute with the NRC and FWSs Conclusions under the Endangered Species Act ......................................................................................................... 23
- 1. Petitioners Have Not Shown that the NRC or FWS Incorrectly Described the Presence of the Roseate Tern Near Pilgrim ..................... 23
- 2. Petitioners Have Not Shown that Pilgrims Impingement and Entrainment of Prey Species May Adversely Affect the Roseate Tern.... 27
- 3. The Petitioners Have Not Shown that the Discharge of Chemicals or Isotopes from Pilgrim May Adversely Affect the Roseate Tern ............... 29
-ii-D. Petitioners Have Not Identified Any New and Significant Information Regarding the Roseate Tern that Would Require the NRC Staff to Supplement the Pilgrim SEIS .............................................................................. 31 IV. The Petition Does Not Meet the Reopening Standards .................................................. 33 A. Timeliness ........................................................................................................... 35 B. Significance ......................................................................................................... 36 C. Materially Different Result ................................................................................... 37 D. Affidavit ................................................................................................................ 39 CONCLUSION ............................................................................................................................ 40
May 16, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR )
OPERATIONS, INC. )
)
(Pilgrim Nuclear Generating Station) )
NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS MOTION TO REOPEN THE RECORD AND REQUEST FOR A HEARING WITH REGARD TO THE ROSEATE TERN INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(h)(1) and 2.323(c), the staff of the Nuclear Regulatory Commission ("NRC Staff" or Staff) files its answer to Jones River Watershed Association and Pilgrim Watchs (collectively Petitioners) Motion to Reopen, Request for Hearing and Permission to File New Contention in the Above-Captioned License Renewal Proceeding on Violations of the Endangered Species Act With Regard to the Roseate Tern (Petition).1 The belated Petition brings various challenges to the Staffs environmental review of Entergy Generation Company and Entergy Nuclear Operations (Entergy or Applicant) application for license renewal for the Pilgrim Nuclear Generating Station (Pilgrim or PNPS).2 The Petition contends that the Staff failed to adequately consider the impacts of renewing the operating 1
Jones River Watershed Association and Pilgrim Watch Motion to Reopen, Request for Hearing and Permission to File New Contention in the Above-Captioned License Renewal Proceeding on Violations of the Endangered Species Act With Regard to the Roseate Tern (May 2, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12123A473) (Petition). In this proceeding, the Board has provided for a fourteen day response period to new contentions. Order (Establishing Schedule for Proceeding and Addressing Related Matters), at 7 (Dec. 20, 2006) (ADAMS Accession No. ML063540494). Therefore, this answer is timely.
2 Petition at 4.
license on the roseate tern under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA).3 However, the Petitioners largely base their challenges on information they concede has been widely available to the scientific community for years.4 As a result, their request is plainly untimely under NRC regulations.5 Even if timely, the claims do not provide sufficient facts to demonstrate that the Staff violated the ESA and NEPA, or that renewing the Pilgrim operating license will have any specific adverse effect on the roseate tern. Consequently, the Petition does not contain an adequate factual basis or raise a material dispute.6 Finally, the Petition does not provide sufficient grounds for meeting the Commissions high standard for reopening a closed record.7 As a result, the Atomic Safety and Licensing Board (Board) should deny the relief sought by the Petition.
PROCEDURAL BACKGROUND The NRC Staff has thoroughly discussed the procedural background of this case elsewhere and will only highlight the elements of this proceeding that are relevant to the instant Petition.8 Over five years ago, Pilgrim Watch (PW) submitted a hearing request on Entergys application for license renewal for Pilgrim. The Board admitted two contentions - Contention 1, challenging Entergys aging management program for buried piping, and Contention 3, 3
Id.
4 Id. at 16.
5 10 C.F.R. §§ 2.309(c), (f)(2), 2.326(a)(1).
6 10 C.F.R. § 2.309(f)(1)(iv), (v), (vi).
7 10 C.F.R. § 2.326(a), (b).
8 E.g., NRC Staffs Answer to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Requests for Hearing on New Contentions Relating to Fukushima Accident), at 2-5 (Oct. 3, 2011) (ADAMS Accession No. ML11276A191) (Staff Answer to Appeal of LBP-11-23).
challenging Entergys severe accident mitigation alternatives analysis.9 On October 30, 2007, a Board majority granted a motion for summary disposition of Contention 3.10 On April 10, 2008, the Board held an evidentiary hearing on Contention 1, and shortly thereafter, on June 4, 2008, the Board formally closed the evidentiary record.11 The Board issued an initial decision on Contention 1 on October 30, 2008.12 On appeal, the Commission reversed the summary disposition of Contention 3 and remanded it to the Board for further proceedings as limited by the Commissions Order.13 On July 29, 2011, the Board issued a partial initial decision finding in favor of the Applicant on the remanded Contention 3.14 On appeal, the Commission affirmed the Boards decision on remanded Contention 3.15 After the Commission remanded Contention 3, PW and the Commonwealth of Massachusetts filed several new contentions before the Board. The Board declined to admit any of those contentions, and the Commission has affirmed most of those rulings and one is still pending on appeal.16 Finally, on March 8, 2012, the Petitioners filed 9
Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 348-49 (2006).
10 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131 (2007).
11 Memorandum and Order (Ruling on Pilgrim Watch Motions Regarding Testimony and Proposed Additional Evidence Relating to Pilgrim Watch Contention 1), at 3 (June 4, 2008) (ADAMS Accession No. ML081560375) (June 4, 2008, Order).
12 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-08-22, 68 NRC 590 (2008).
13 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 317 (2010).
14 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-11-18, 74 NRC __ (July 19, 2011) (slip op.).
15 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __ (Feb. 9, 2012) (slip op.).
16 Staff Answer to Appeal of LBP-11-23 at 3-5; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-03, 75 NRC __ (Feb. 22, 2012) (slip op.); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC __ (Mar. 8, 2012) (slip op.); Entergy Nuclear Generation Co. and Entergy
another new contention that brought several challenges to the NRC Staffs review of the impacts of license renewal on aquatic species under the ESA, NEPA, and the Magnuson-Stevens Fishery Conservation and Management Act (MSA).17 That new contention is pending before the Board.
During the adjudicatory portion of this proceeding, the NRC Staff completed its environmental review of the Pilgrim license renewal application. The Staff documented the results of that review in its July 2007 Final Supplemental Environmental Impact Statement for Pilgrim (Pilgrim SEIS).18 The Pilgrim SEIS is a site-specific environmental review that augments the NRCs Generic Environmental Impact Statement (GEIS) for license renewal.19 As part of this review, the NRC Staff consulted with the Fish and Wildlife Service (FWS) under the ESA. The ESA requires Federal agencies to consult with the FWS and the National Marine Fisheries Service (NMFS) to ensure that agency actions will not take species listed by FWS and NMFS as threatened or endangered under the Act.20 The roseate tern population near Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC __ (Mar. 30, 2012) (slip op.); NRC Staffs Answer to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Request for Hearing on a New Contention Relating to Fukushima Accident), at 3-4 (Feb.
6, 2012) (ADAMS Accession No. ML12037A209).
17 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 a Hearing Under 10 C.F.R. § 2.309(a) and (d) in the above Captioned License Renewal Proceeding (March 8, 2012)
(ADAMS Accession Nos. ML12068A282, ML12068A183).
18 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station Final Report - Appendices, (Jul. 2007)
(ADAMS Accession Number ML071990027) (Pilgrim SEIS).
19 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report (May 1996) (ADAMS Accession No. ML040690705). The GEIS reached generic environmental conclusions applicable to all plants and identified issues that the NRC must consider on a site specific basis, in a supplemental environmental impact statement, for each individual license renewal application. 10 C.F.R. Part 51, Subpt. A, App. B., Table B-1 and n. 1.
20 16 U.S.C. § 1536(a)(2).
Pilgrim has been a listed species under the ESA since 1987.21 The Pilgrim SEIS includes the documentation reflecting that consultation with FWS.22 On April 26, 2006, the NRC Staff began consultation by sending FWS a request for a list of species protected under the ESA within the area surrounding Pilgrim.23 FWS responded by referring the Staff to a letter it had sent Entergy the previous year.24 The letter to Entergy considered the impacts of renewing the Pilgrim operating license on several species protected under the ESA, including the roseate tern, and concluded the license renewal was not likely to adversely affect those species.25 This response from FWS to the NRC terminated the ESA consultation.26 As a result, the NRC did not conduct and was not required to conduct any further consultation with the FWS regarding the roseate tern or any species under the FWSs jurisdiction. Nonetheless, the NRC also discussed the impacts of the proposed action on the roseate tern in the Pilgrim SEIS.27 That discussion concluded that the roseate tern had not previously been adversely affected by Pilgrim and that Pilgrim was unlikely to adversely affect the roseate tern during the renewal period.28 21 Endangered and Threatened Wildlife and Plants; Determination of Endangered and Threatened Status for Two Populations of the Roseate Tern, 52 Fed. Reg. 42,064 (Nov. 2, 1987).
22 Pilgrim SEIS at App. E.
23 Request for a List of Protected Species within the Area under Evaluation for the Pilgrim Nuclear Power Station License Renewal Application Review (Apr. 25, 2006) (ADAMS Accession No. ML061160303); 10 C.F.R. § 402.12(c).
24 Pilgrim SEIS at E-12.
25 Id. at E-8 to E-9.
26 50 C.F.R. § 402.14(b)(1) (A Federal agency need not initiate formal consultation if, as a result of . . . informal consultation with the Service under 402.13, the Federal agency determines, with the written concurrence of the Director, that the proposed action is not likely to adversely affect any listed species or critical habitat.); 50 C.F.R. § 402.13(a) (Informal consultation is an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency . . ..).
27 Pilgrim SEIS at 4-64 to 4-65.
28 Id.
On May 2, 2012, the Petitioners filed the instant Petition to reopen the record and admit a new contention challenging the Staffs 2007 review of the roseate tern under the ESA (Roseate Tern Contention).29 The Roseate Tern Contention alleges that the NRC Staff did not prepare a biological assessment for the roseate tern in contravention of the ESA, incorrectly found that renewing the Pilgrim operating license would not be likely to adversely affect the roseate tern, and failed to supplement the Pilgrim SEIS to discuss new and significant information regarding the roseate tern.30 As discussed below, these claims are wholly untimely and substantively meritless.
DISCUSSION I. Standing An organization, such as Jones River Watershed Association (JRWA), may establish representational standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its own purposes.31 In license renewal proceedings, standing is presumed . . . if the petitioner lives within 50 miles of the nuclear power reactor.32 At least one named member of JRWA has provided an affidavit that establishes that she lives within 50 miles of Pilgrim, authorizes JRWA to represent her in this proceeding, and raises concerns that are germane to JRWAs purposes.33 Therefore, JRWA has established standing under 10 C.F.R. § 2.309(d).34 PW has already established standing to participate in the proceeding.
29 Petition at 4.
30 Id. at 4-6.
31 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).
32 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008).
33 Petition at 39.
34 The Petitioners state that they alternatively request discretionary intervention under 10 C.F.R.
§ 2.309(e) if either is determined to lack standing as a matter of right under 2.309(d)(1). Petition at 53.
II. The Petition is Untimely under NRC Regulations The Commission has stated that the NRC does not look with favor on new contentions filed after the initial hearing request.35 Thus, a petitioner may file late contentions under 10 C.F.R. § 2.309(f)(2) only upon a showing that -- (i) [t]he information upon which the . . . new contention is based was not previously available; (ii) [t]he information upon which the . . . new contention is based is materially different than information previously available; and (iii) [t]he . . .
new contention has been submitted in a timely fashion based on the availability of the subsequent information. A contention that does not meet these standards is nontimely, but may nevertheless be admitted under the standards of 10 C.F.R. § 2.309(c)(1)(i)-(viii).
Petitioners address the requirements of 10 C.F.R. § 2.309(f)(2) and the requirements of 10 C.F.R. § 2.309(c). However, they fail to demonstrate that the Roseate Tern Contention meets the requirements of either section.
A. Petitioners Do Not Make A Timely Showing That Their New Contention Is Based On Conclusions In The Environmental Impact Statement That Differ Significantly From The Data Or Conclusions In The Applicants Documents Petitioners argue that their contention automatically meets the requirements for admission in 10 C.F.R. § 2.309(f)(2) because it demonstrates that some of the data and conclusions in the Pilgrim SEIS differ significantly from those in Entergys Environmental Report (ER).36 However, this claim fundamentally misunderstands the Commissions regulations. While 10 C.F.R. § 2.309(f)(2) states that [t]he petitioner may . . . file new contentions if there are data or conclusions in the NRC . . . final environmental impact statement The NRC's regulations provide for discretionary intervention when at least one admissible contention has been admitted. 10 C.F.R. § 2.309(e). Because there are no admitted contentions pending in this matter, Petitioners have not met the requirements for discretionary intervention. In any event, because the Petitioners meet the normal standing requirements in 10 C.F.R. § 2.309(d), there is no reason to consider discretionary intervention.
35 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 636 (2004).
36 Petition at 28.
. . . that differ significantly from the data or conclusions in the applicant's documents, allowing a petitioner to indefinitely file new or amended contentions based on such a showing would decimate the Commissions rules regarding timely filing. The Commission has clearly stated that petitioners cannot add new contentions at their convenience during the course of a proceeding based on information that could have formed the basis for a timely contention at the outset of the proceeding.37 The Commission has not contemplated allowing petitioners an indefinite time period to file under this provision. Rather, it has said that a contention is normally timely under the differs significantly standard in 10 C.F.R. § 2.309(f)(2) if filed within 30 days of the publication of the Environmental Impact Statement (EIS).38 Therefore, even if Petitioners could adequately demonstrate a significant difference between Entergys ER and the Pilgrim SEIS, the time to raise that concern was in 2007 after the Pilgrim SEIS was issued, not five years later.39 B. The Petitioners New Contention Does Not Contain Previously Unavailable Information That Was Submitted in a Timely Fashion and Therefore Does Not Meet the Requirements of 10 C.F.R. § 2.309(f)(2)(i), (ii), (iii)
Although Petitioners relied heavily on their reading of 10 C.F.R. § 2.309(f)(2), they also addressed the factors for timely admission in 10 C.F.R. § 2.309(f)(2)(i)-(iii) out of an abundance of caution. But examining their claims under this standard demonstrates that Petitioners did not exercise caution in protecting their interests in the first instance. Rather, they have waited until beyond the twilight of this proceeding to raise claims which they largely concede rest on information that has been available for years, if not decades.
37 Amergen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 272 (2009).
38 Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 351 n. 104 & n. 105 (2009).
39 Petitioners note that the ER concluded that there are no effects on the roseate tern from relicensing while the EIS acknowledges that the roseate tern may be present at the action area.
Petition at 28.
To satisfy 10 C.F.R. § 2.309(f)(2)(i) and (ii), Petitioners must show that their contention is based on previously unavailable information that is materially different than the information previously available. Yet Petitioners appear to be ambivalent on this very point. Throughout their brief, they emphasize that information regarding the presence of the roseate tern near the PNPS site was well-known before the publication of the Pilgrim SEIS and even before Entergy submitted its license application.40 However, Petitioners assert that [s]ince 2006, more information has become available and demonstrates a much larger potential for adverse effects than could have been inferred in 2006.41 The post-2006 information largely concerns the sighting of roseate terns on beaches near PNPS.42 Petitioners also reference some more recent data regarding PNPS alleged non-compliance with the Clean Water Act.43 But Petitioners concede that many terns were spotted on beaches near PNPS prior to the publication of the EIS as far back as the early 1950s44 and that from well-known, readily available scientific information alone, Entergy, NRC, and FWS should have known that their 2005 and 2006 analyses of the impacts on the tern were inadequate.45 If the NRC and FWS should have known of the inadequacies of their available information, so should have the Petitioners. Moreover, their allegations regarding the impact of pollution on the roseate tern and its food supply challenge what they consider to be an incomplete analysis of the issue in the 40 See Petition at 14 (Entergys application ignored well-known, readily available scientific information about the Terns presence in the action area); 16 (information about presence of tern near PNPS site available in 2005); 24 (Entergy, NRC, and FWS ignored significant data commercially available in 2006).
41 Petition at 18. See also id. at 29.
42 See id. at 18.
43 See id. at 22.
44 Nesbit Affidavit at ¶ 8.
45 Petition at 16-17.
Pilgrim SEIS.46 But the Pilgrim SEIS and the GEIS noted the potential for PNPS to release pollutants and impact the roseate terns prey species years ago.47 Petitioners have not shown that their allegedly new information regarding pollutants and prey species is materially different from those analyses. For these reasons, Petitioners have failed to demonstrate that their contention is based on newly available information materially different than information previously available.
Even if Petitioners had relied on new information, their contention would still not be timely under 10 C.F.R. § 2.309(f)(2)(iii). Petitioners are correct that the regulations do not set a specific number of days whereby we can measure or determine whether a contention is timely as required by 10 C.F.R. § 2.309(f)(2)(iii).48 However, [s]everal boards have established a 30-day rule [after receipt of relevant new information] for new contentions.49 Petitioners new information is from various dates, but all of it is from before 2012, except for one document that is also untimely as discussed below.50 Hence, to raise these issues now is clearly untimely based on Commission precedent.51 46 See id. at 22-23 (raising pollution related claims because of inadequate consideration of the matter in the Pilgrim SEIS).
47 Pilgrim SEIS at 2-56 to 2-57, 2-59 to 2-60, 2-65; GEIS at 4-10 to 4-13.
48 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 574 (2006). See Petition at 30.
49 Vermont Yankee, LBP-06-14, 63 NRC at 574. See also, e.g., Oyster Creek, CLI-09-7, 69 NRC at 288 (finding motion to reopen filed within 30 days of new information timely); AmerGen Energy Co.,
LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 485-86 (2008) (finding motion to reopen based on document that had been available for four months untimely); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 495-96 (2010) (finding a contention untimely where information had been available for two months).
50 See Petition at 18 (roseate terns seen at beaches near PNPS since 2008 and particularly in August 2011); 19 (studies done in 2007 and 2009 found that Long Point Beach has become a major staging site for the tern); 22 n. 20 (chlorine effluent violations in 2010 and 2011).
51 See e.g., Oyster Creek, CLI-09-7, 69 NRC at 288.
Petitioners reference one document, a report done by Entergys consultant, ENSR Corporation, which they assert was not made public until mid-April 2012.52 Even if this information only became available to the Petitioners within 30 days of the filing of the contention, it is mostly irrelevant to the Petition and does not satisfy 10 C.F.R. § 2.309(f)(2)(ii) because it contains no information materially different than information previously available.53 The Petitioners allege that the ENSR report supports the Petitioners claim that pollutant discharges from PNPS harm fish which are part of the roseate terns food supply.54 However, the information forming the basis for this claim that the fish are both eaten by the tern and may be entrained and impinged at PNPS was available long ago.55 The ENSR report adds nothing to this previously available information; it makes only a vague statement that the Atlantic herring, one of the species of fish that other sources already establish is consumed by the tern, is a significant part of the diet of many . . . piscivorous birds.56 Needless to say, this information is not materially different than information previously available, and earlier access to the report would have had no bearing on Petitioners ability to file their contention years ago.
Available information does not become new when it is repackaged in a report.57 52 Petition at 23.
53 See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1043 (1983) (stating that the unavailability of . . . documents does not constitute a showing of good cause for admitting a late-filed contention when the factual predicate for that contention is available from other sources in a timely manner).
54 Petition at 20.
55 See id. at 20-21 (The 2007 Pilgrim SEIS lists the species of fish impinged and entrained (Atlantic herring, hake, and silver hake), 20 n. 14 (2010 FWS study states that the roseate tern consumes particular species of fish (sand lace, hake, and Atlantic herring)).
56 See id. at 23; ENSR Corp., Redacted Version 316 Demonstration Report - Pilgrim Nuclear Power Station, Prepared for Entergy Nuclear Generation Company at 4-45 (March 2000) (ADAMS Accession No. ML061390357).
57 Prairie Island, CLI-10-27, 72 NRC at 495-96.
C. Petitioners Do Not Meet the Late-Filing Standards of 10 C.F.R. § 2.309(c)
Licensing Boards have suggested differences between the factors for the admission of contentions based on new or amended information in 10 C.F.R. § 2.309(f)(2) and the factors for the admission of nontimely contentions under 10 C.F.R. § 2.309(c). Likewise, they have discussed whether both sets of factors need to be addressed.58 Given that Petitioners have addressed both sets of requirements, the Staff will as well.59 Nontimely contentions under 10 C.F.R. § 2.309(c) may only be entertained following a determination by the Presiding Officer that a balancing of eight factors weigh in favor of admission.60 The requirements for untimely filings and late-filed contentions are stringent.61 All eight factors must be addressed by the 58 See, e.g., Shaw Areva Mox Services (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 210 n.95 (2007).
59 See Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), LBP-10-1, 71 NRC 165, 181 (2010) ([G]iven that the petitioners have addressed the admissibility of their intervention request under both the section 2.309(c)(1) and (f)(2) standards, . . . we do likewise.).
60 The eight factors listed at § 2.309(c)(1) are as follows:
(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/ petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/ petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/ petitioner's participation may reasonably be expected to assist in developing a sound record.
61 Oyster Creek, CLI-09-7, 69 NRC at 260.
petitioner.62 While petitioners must show a favorable balance among the [eight] factors, good cause is given the most weight.63 If a petitioner cannot show good cause, the balance of the other factors must be compelling.64 Petitioners do not show good cause and do not show a favorable balance among the remaining factors.65 Therefore, the Petition should be denied as untimely.
- 1. Petitioners Do Not Show Good Cause The Commission has stated that [g]ood cause has long been interpreted to mean that the information on which the proposed new contention is based was not previously available.66 Once that information is available, the contention must be filed in a timely fashion.67 For the reasons discussed above, Petitioners cannot show good cause.68 None of the information relied upon in the contention is new, materially different than previously available information, or raised in a timely fashion.
Petitioners make a host of other equitable arguments in an attempt to justify their late-filed contention. They recount what they call a stupefying tale of myriad failures on the part of 62 Id.
63 Id. at 261.
64 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 565 (2005); Tennessee Valley Authority (Watts Bar Nuclear Unit 2), CLI-10-12, 71 NRC 319, 323 (2010).
65 The Staff does not contest the Petitioners arguments regarding 10 C.F.R. § 2.309(c)(1)(ii)-(iv) requirements (Petition at 46-47) as Boards have previously found these criteria to be not particularly applicable given that they focus on the status of the requestor/petitioner seeking admission to a proceeding (e.g., standing, nature of the requestor/petitioners affected interest). Vermont Yankee, LBP-06-14, 63 NRC at 581.
66 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-09-05, 69 NRC 115, 125-26 (2009); Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),
CLI-93-4, 37 NRC 156, 164-65 (1993).
67 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1764-65 (1982) (finding that petitioners did not establish good cause for late filing when information had been in the public domain for six months).
68 See supra Section II.B.
NRC and other environmental regulators, which required the Petitioners to review huge volumes of data before being able to bring their contention.69 But stupefaction is not good cause. The Commission has said that our contention admissibility and timeliness rules require a high level of discipline and preparation by petitioners[.]70 It is the responsibility of a petitioner to bring timely and well-supported contentions.
The Petitioners believe that the Pilgrim SEIS inadequately analyzed the environmental impacts of relicensing on the roseate tern and that moreover, the procedural requirements of the ESA had not been complied with.71 But they have not provided any compelling justification for why they waited years before raising their concerns. Petitioners assert that they detrimentally relied on the NRCs representation that the terns presence near PNPS was transient and therefore they failed to file a petition earlier.72 But Petitioners concede that the evidence on which they rely to challenge this assumption was well known to the scientific community and available for years before the NRC published the Pilgrim SEIS.73 Petitioners also assert that they expected the NRC to do its job under the ESA,74 but the Pilgrim SEIS fully disclosed the entirety of the NRCs ESA review in 2007. Furthermore, Petitioners apparently fail to realize that it is their responsibility to bring a timely contention. Thus, these are wholly inadequate explanations for their delay.75 69 Petition at 31.
70 Oyster Creek, CLI-09-7, 69 NRC at 271.
71 Petition at 4.
72 Id. at 44.
73 See id. at 14 (Entergys application ignored well-known, readily available scientific information about the Terns presence in the action area); 16 (information about presence of tern near PNPS site available in 2005); 24 (Entergy, NRC, and FWS ignored significant data commercially available in 2006).
74 Id. at 30-31, 45, 52.
75 Petitioners contend that the NRC should be estopped from objecting to the untimeliness of their filing because the Staffs alleged provision of erroneous information serves to excuse the Petitioners untimely filing. Petition at 43 (citing Armed Forces Radiobiology Research Institute (Cobalt-60 Storage
- 2. The Balance of the Other Factors Is Not Compelling The Commission has recently reaffirmed that [a]bsent good cause, there must be a compelling showing on the remaining factors; it is a rare case where we would excuse a nontimely petition absent good cause.76 Petitioners allege that there are no other means by which they can protect their interests and cite precedent in the Temelin case to argue that this is in itself sufficient for the Commission to excuse the untimeliness of the request.77 While the Staff acknowledges that there are no other means for Petitioners proposed contention to be addressed in this closed adjudicatory proceeding, this alone does not excuse the untimeliness of their request.78 The Petitioners misread the law in Temelin. In that case, the Commission stated the opposite, holding that [w]hile we recognize that no one will represent the Petitioners' perspective if the hearing requests are denied, this in itself is insufficient for us to excuse their untimeliness.79 The Commission further held that excusing untimeliness for every petitioner who meets only this factor would effectively negate any standards for untimely intervention in cases such as this where no one else has requested a hearing, since a late-filing petitioner could always maintain that there will be no hearing to protect its interest if intervention is Facility), LBP-82-24, 15 NRC 652, 658 (1982). Petitioners have tried this tactic before, and once again, the case they cite is inapposite. In Armed Forces, the NRC staff provided misleading advice regarding the timing for the issuance of the storage facilitys renewed license. Armed Forces, LBP-82-24, 15 NRC at 655. For this reason, the NRC staff conceded that a late-filed petition was timely. Id. at 655-656. In the current case, the NRC Staff made no representations to the Petitioners related to timing. To the contrary, if Petitioners believed that the NRCs 2007 SEIS was inaccurate, they could have filed a petition right away.
76 Pilgrim, CLI-12-10, 75 NRC __ (slip op. at 17 n.69) (citing Watts Bar, CLI-10-12, 71 NRC at 323).
77 Petition at 47 (addressing 2.309(c)(1)(v) and citing Westinghouse Elec. Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 329 (1994)).
78 Petitioners may also provide timely comments during the NEPA draft SEIS comment period.
Entergy Nuclear Operations, Inc.; Pilgrim Nuclear Power Station; Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process, 71 Fed. Reg. 19,554 (Apr. 14, 2006).
79 Temelin, CLI-94-7, 39 NRC at 329 (emphasis added).
denied.80 In this case, where Petitioners seek to reopen a closed adjudicatory proceeding, there are by definition no other parties that will protect their interests.81 To admit their contention based on this factor alone would effectively negate any standards for untimely intervention.82 Petitioners concede that the admission of their contention would broaden the issues or delay the proceeding.83 However, they contend that this factor should be given little or no weight at all because of the seriousness of their allegations regarding non-compliance with the ESA and adverse environmental impacts on the roseate tern.84 However, the Petitioners cite no precedent in which the Commission or a Licensing Board ignored this factor.85 Likewise, the Petitioners are unable to cite any authority supporting their claim that the issue of delay should be minimized because the particular concerns raised relate to the ESA and NEPA.86 And while Petitioners correctly assert that not every delay is intolerable,87 they are unable to cite a case in which the Commission or a Licensing Board further delayed a proceeding in which the 80 Id.
81 See State of New Jersey (Department of Law and Public Safety's Requests Dated October 8, 1993), CLI-93-25, 38 NRC 289, 296-97 (1993) (agreeing with the Staff that when there is no proceeding, there are no other means for a petitioner to protect its interest and there can be no existing party representing a petitioners interest, but that the weight given to these factors is slight and they cannot overcome a failure to show good cause); Millstone, CLI-05-24, 62 NRC at 556 (We agree with the Board that no other current parties could adequately represent those interests (sixth factor). There are no other parties because the instant adjudication was terminated.).
82 Temelin, CLI-94-7, 39 NRC at 329.
83 See 10 C.F.R. § 2.309(c)(1)(vii).
84 Petition at 51.
85 See id.
86 See id. at 51-52.
87 See Public Service Elec. & Gas Co. (Hope Creek Generating Station, Units 1 and 2), LBP-77-9, 5 NRC 474, 477 (1977).
evidentiary record was closed for nearly four years to admit a contention based on information not materially different than that which was previously available.88 Petitioners assert that their late filing will assist in developing a sound record.89 But, they have not provided an admissible contention90 or a sound explanation for their half-decade delay in filing. Consequently, the NRC Staff does not believe that the Petitioners participation on this issue is likely to assist the agency in developing a sound record. Therefore, 10 C.F.R. § 2.309(c)(1)(viii) weighs against the Petitioners.
Since Petitioners do not meet a number of the factors to be considered under 10 C.F.R.
§ 2.309(c) most importantly, they fail to show good cause their contention does not meet the requirements for non-timely contentions and should be dismissed.91 III. Petitioners Do Not Raise an Admissible Contention To be admitted, the claims in the Petition must meet the general contention admissibility requirements at 10 C.F.R. § 2.309(f). That section requires the Petitioners to demonstrate that their contention has a legal and factual basis, is within the proceedings scope, and raises a 88 See Petition at 52. Every case cited by Petitioners can be handily distinguished. See Long Island Lighting Co. (Jamesport Nuclear Power Station Units 1 & 2), ALAB-292, 2 NRC 631, 650 (1975)
(evidentiary hearing would not be delayed because discovery had not yet been instituted); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-11, 13 NRC 420, 425 (1981)
(contentions would not disrupt the timeframe set for a hearing on additional contentions already admitted); Hope Creek, LBP-77-9, 5 NRC at 477 (although not every delay . . . is intolerable, the magnitude of the threatened delay causes us to conclude that this factor should weight against the petitioner's late intervention attempt).
89 2.309(c)(1)(viii); Petition at 52-53.
90 See infra Section III.
91 Oddly, toward the end of their argument, Petitioners admit that their contention is late-filed but attempt to excuse themselves in part because of the recent listing of the Atlantic sturgeon and recognition that river herring is a candidate species under the ESA. Petition at 52. These arguments, which refer to Petitioners earlier filings, appear to be totally irrelevant to this Petition. Likewise, Petitioners attempt to cure timeliness by discussing the discretionary intervention factors in 10 C.F.R. § 2.309(e) is irrelevant (see Petition at 42 (referring to the requirements of § 2.309(e) as late-filing qualifications)) because discretionary intervention is only relevant when a petitioner fails to establish standing. As explained in Section I, supra, the Petitioners have adequately demonstrated standing.
material issue.92 The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R. § 2.309(f) of the Commissions Rules of Practice. The requirements governing the admissibility of contentions are strict by design.93 Thus, they have been strictly applied in NRC adjudications, including license renewal proceedings.94 The Commission has explained, [m]ere notice pleading is insufficient under these standards.95
[B]are assertions and speculation [are] not enough to trigger an adversary hearing . . ..96 Therefore, [a] petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, [or] no substantive affidavits.97 As discussed below, the Petition does not meet these standards.
A. The Petition Does Not Provide a Specific Statement of the Matters in Controversy As an initial matter, the Staff notes that, pursuant to 10 C.F.R. § 2.309(f)(1)(i), an admissible contention must provide a specific statement of the issue of law or fact to be raised or controverted.98 While the Roseate Tern Contention purports to meet that requirement, its specific statement runs over 18 pages and discusses a jumble of legal and factual 92 The Staff discussed contention admissibility at length in the NRC Staffs Answer in Opposition to Pilgrim Watch Request for Hearing on New Contention (January 7, 2011) (ADAMS Accession No. ML110070837), and NRC Staffs Answer in Opposition to Pilgrim Watchs January 20, 2011 Amended Contention (February 14, 2011) (ADAMS Accession No. ML110450664), and hereby incorporates those discussions and arguments by reference.
93 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
94 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).
95 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).
96 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000).
97 Fansteel, Inc., CLI-03-13, 58 NRC at 203 (quoting Oyster Creek, CLI-00-6, 51 NRC at 207).
98 10 C.F.R. § 2.309(f)(1)(i).
arguments.99 The Commission expects parties to bear their burden and to clearly identify the matters on which they intend to rely with reference to a specific point. The Commission cannot be faulted for not having searched for a needle that may be in a haystack.100 Petitioners unfocused contention requires the parties to do just that and sift through the almost hundred pages of filings submitted by the Petitioners to determine whether the any of the assorted claims meets the requirements of 10 C.F.R. § 2.309(f)(1).
Regardless, at its core, the Roseate Tern Contention raises three assertions, which the Staff will address in turn. First, the Roseate Tern Contention claims that the Staff unlawfully failed to complete a biological assessment under the ESA. Second, the contention alleges that renewing the Pilgrim operating license would adversely affect the roseate tern. Finally, the contention claims that the NRC should supplement the Pilgrim SEIS to address the information in the Petition. As discussed below, all of these issues are meritless.101 B. The NRC Staffs Environmental Impact Statement for Pilgrim Met the Endangered Species Acts Requirement to Prepare a Biological Assessment for the Roseate Tern First, Petitioners contend that the NRC has not complied with the procedural requirements of the ESA. Petitioners correctly note that under the ESA, the NRC Staff was required to prepare a biological assessment (BA) for the Pilgrim license renewal.102 Because they point to an alleged absence of a biological assessment,103 Petitioners conclude that 99 Petition at 7-24.
100 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 241 (1989).
101 Petitioners also appear to restate the claims of their March 8, 2012 petition. Petition at 4. But the NRC Staff has already thoroughly rebutted these claims in its answer to that Petition and relies on that answer to the extent the Petition attempts to incorporate earlier arguments. Answer to Jones River Watershed Association and Pilgrim Watchs Petitions for Leave to Intervene and Motions to Reopen the Record (Mar. 19, 2012) (ADAMS Accession No. ML12079A300).
102 Petition at 26; 16 U.S.C. § 1536(c).
103 Petition at 27.
proper procedures have not been followed, and the ESA has been violated.104 But, under a plain reading of the ESA, confirmed by Federal precedent, the NRC Staffs SEIS for Pilgrim constituted a BA.105 Consequently, this portion of the Roseate Tern Contention is inadmissible because it lacks an adequate factual basis and is immaterial.106 In addition to requiring consultation with FWS and NMFS on Federal actions, Section 7 of the ESA also requires Federal agencies to prepare a BA for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action.107 Section 7 provides the agencies with considerable flexibility in meeting this requirement.108 It specifically provides, Such assessment may be undertaken as part of a Federal agencys compliance with the requirements of section 102 of the National Environmental Policy Act of 1969.109 The Statements of Consideration for the regulations governing the ESA section 7 consultation process note, a biological assessment can be incorporated into an EIS.110 Moreover, although the regulations provide recommendations on what a BA should include, they state that the contents of a biological assessment are at the discretion of a Federal agency and will depend on the nature of the Federal action.111 In light of this statutory background, one 104 Id. at 12.
105 16 U.S.C. § 1536(c)(1) (providing that a BA may be undertaken as part of a Federal agencys compliance with the requirements of section 102 of the National Environmental Policy Act of 1969).
106 10 C.F.R. § 2.309(f)(1)(v)(vi).
107 16 U.S.C. § 1536(a), (c).
108 51 Fed. Reg. at 19,938 (The Service encourages Federal agencies to coordinate these responsibilities, but believes it is preferable to allow Federal agencies to do so in a manner that best conforms to their particular actions and which they believe is most efficient.).
109 16 U.S.C. § 1536(c)(1).
110 51 Fed. Reg. at 19,938.
111 50 C.F.R. § 402.12(f).
Federal court of appeals has concluded, When an agency prepares an EIS, it is complying with the BA requirement, provided that one of the environmental impacts discussed is the impact on threatened and endangered species.112 Therefore, the NRC Staff met its obligation to prepare a biological assessment under section 7(c) of the ESA through the SEIS it prepared for the Pilgrim license renewal pursuant to section 102 of NEPA.113 The Staff stated that the roseate tern also is known to occur along Plymouth Beach just north of PNPS, and it may pass over the PNPS site during migration. The roseate tern population in Massachusetts has been slowly increasing, from 1600 breeding pairs in 1978 to 1810 breeding pairs in 1999.114 In light of this information, the Staff determined that there is no evidence that [the roseate tern, the piping plover, and the bald eagle] have been adversely affected by previous operation of the PNPS facility. Given that no expansion of existing facilities or disturbance of additional land is anticipated, these species are unlikely to be adversely affected during the renewal period.115 As a result, the NRC Staff met its obligation to prepare a BA for the roseate tern through its SEIS for Pilgrim, which discussed the impact on threatened and endangered species.116 112 Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1219 (11th Cir. 2002).
113 See 10 C.F.R. § 51.2 (noting that the regulations in Part 51 implement section 102(2) of the National Environmental Policy Act); 10 C.F.R. § 51.95(c) (governing preparation of the EIS for license renewal).
114 Pilgrim SEIS at 4-64 (citations omitted).
115 Id. at 4-64 to 4-65.
116 Sierra Club, 295 F.3d at 1219. Although the Staff stated that [b]ecause formal consultation is not required by the FWS, a BA was not developed to evaluate the potential impacts of continued operation of PNPS on Federally listed terrestrial and freshwater aquatic species, this statement simply explains why the Staff did not prepare a separate BA for the species under FWSs jurisdiction as it did for those under NMFSs jurisdiction. Pilgrim SEIS at 4-67. The Statement does not rob the Pilgrim SEIS of its status as the legal equivalent of a BA. Rather, because the Pilgrim SEIS analyzed the impact of the agency action on listed species, it necessarily constituted a BA. Sierra Club, 295 F.3d at 1219.
Moreover, the Staff undertook its statutorily mandated obligation to request a description of listed species in the action area from FWS.117 In response, the FWS referred the agency to a previous letter FWS sent to Entergy and thanked the agency for its coordination.118 The previous letter found that roseate tern are known to occur along Plymouth Beach, just north of the PNPS.119 However, FWS stated that the roseate tern was not known to frequent the immediate vicinity of PNPS and, therefore, [its] presence near the power station is probably transient in nature.120 As a result, the FWS concluded, since no expansion of existing facilities is planned and no additional land disturbance is anticipated, we concur with your determination that license renewal for PNPS is not likely to adversely affect the roseate tern.121 Given the FWSs response, the Staffs decision to rely on its EIS, as opposed to preparing a separate BA for the roseate tern, was all the more reasonable.122 As discussed below, although the Petitioners submit a significant quantity of information on the roseate tern, none of it undermines or otherwise calls into question these findings.
In addition, the purpose of a BA is to evaluate the effects of the action on listed species and critical habitat and determine whether formal consultation or a conference is necessary.123 In this case, the FWS concluded that further consultation was not needed through the informal 117 16 U.S.C. § 1536(c)(1); Request for a List of Protected Species within the Area under Evaluation for the Pilgrim Nuclear Power Station License Renewal Application Review (Apr. 25, 2006)
(ADAMS Accession No. ML061160303).
118 Pilgrim FSEIS at E-12.
119 Id. at E-8.
120 Id.
121 Id. at E-9.
122 50 C.F.R. § 402.12(f) (vesting discretion in the federal agency to determine the appropriate contents of a BA). Therefore, while completion of informal consultation preceded the final BA in this case, the Statements of Consideration for the regulations implementing Section 7 of the ESA explicitly note that the biological assessment process may be conducted simultaneously with informal consultation if desired by the Federal agency. 51 Fed. Reg. 19,948.
123 50 C.F.R. § 402.12(a).
consultation process.124 Therefore, requiring the Staff to prepare a separate BA would not only contravene the plain language of the ESA but needlessly elevate form over function.125 C. Petitioners Do Not Provide a Sufficient Basis to Demonstrate a Material Dispute with the NRC and FWSs Conclusions Under the Endangered Species Act Petitioners bring three substantive challenges to the NRC and FWSs findings under the ESA.126 Petitioners claim that (1) the NRC and FWS did not properly account for the roseate terns presence in the action area, (2) that the impingement or entrainment of prey species by Pilgrim will have an adverse effect on the roseate tern, and (3) that Pilgrim will release toxic chemicals that will have an adverse effect on the roseate tern during the period of license renewal.127 As discussed below, these claims are not supported by an adequate factual basis or fail to raise a material dispute. Consequently, these challenges also do not raise an admissible contention.128
- 1. Petitioners Have Not Shown that the NRC or FWS Incorrectly Described the Presence of the Roseate Tern Near Pilgrim First, Petitioners contend that the FWSs conclusion that roseate tern are not known to frequent the immediate vicinity of PNPS . . . flies in the face of data that [FWS] itself has overseen and been responsible for creating.129 To support this assertion, Petitioners provide a 124 50 C.F.R. § 402.13.
125 Although the BA also informs the agencys independent consideration of its impact on endangered species, Roosevelt Campobello Intl Park Comm. v. E.P.A., 684 F.2d 1041, 1049 (1st Cir.
1982), the Pilgrim SEIS will also perform that function, Methow Valley Citizens Council. 490 U.S. 332, 350 (1989).
126 Although Petitioners also challenge Entergys conclusions regarding the roseate tern in letters sent to FWS and its application for license renewal, these documents do not have any legal effect under the ESA and therefore are not relevant to the proceeding at this point. See USEC, Inc., CLI-06-09, 63 NRC 433, 444 (2006) (recognizing that the Staffs EIS supercedes the applicants ER). Moreover, although the Board does not have jurisdiction over FWS, the Staff did rely on the FWSs conclusions in reaching its own conclusions and ending consultation. Pilgrim SEIS at 4-63 to 4-64.
127 Petition at 15-24, 33-36.
128 10 C.F.R. § 2.309(f)(1)(iv), (v), (vi).
129 Petition at 17 (quoting Pilgrim FSEIS at E-8).
large volume of information that shows roseate terns nesting and staging within four miles of PNPS.130 Petitioners refer to a number of studies from the 1950s to the present day that establish that the roseate tern frequent many of the beaches located a few miles from Pilgrim.131 Moreover, Petitioners assert that this information indicates that contrary to Entergys suggestions, the roseate tern does not just migrate through the area near Pilgrim.132 But these claims are immaterial because they do not contradict the NRC and FWSs findings and lack an adequate factual basis because the information in the Petition does not demonstrate how the roseate tern will be adversely affected.
Both the NRC and the FWS concluded that the roseate tern did not frequent the immediate vicinity of Pilgrim.133 Although FWS did not define the term immediate vicinity in its letter, FWSs acknowledgement that roseate tern occur on Plymouth beach, a few miles from Pilgrim, suggests that immediate vicinity means an area closer to the plant than a location two miles away. While the Petitioners assert that this conclusion flies in the face of their data, the Petitioners do not point to any information that challenges the conclusion. For example, Petitioners state that biologists have observed roseate terns regularly in the area of [Long Point Beach] (two to four miles from PNPS), at Manomet Point (2 miles from PNPS) and at [Manomet Center for Conservation Sciences] (less than three miles from PNPS).134 But this information does not establish that the roseate tern frequent the immediate vicinity of Pilgrim. Rather, it only indicates that roseate tern may frequent an area a few miles away from the plant. The 130 Id..
131 Id. at 17-19 (citing Nisbet Affidavit at ¶ 3, 4, 7, 11, 12, 14, 16, 17, 18, 20).
132 Id. at 16-19.
133 Pilgrim FSEIS at E-8; Pilgrim FSEIS at 4-63 (noting that the roseate tern may pass over the PNPS site during migration).
134 Petition at 18 (citing Nisbet Affidavit at ¶ 14).
Petitioners point to no other document or sliver of testimony that actually places the roseate tern closer than a couple of miles from the plant.
As discussed above, both the NRC Staff and FWS have acknowledged that the roseate tern may be present in the area around Pilgrim. The FWS and the NRC stated that the roseate tern is known to occur along Plymouth Beach which is a few miles north of Pilgrim.135 Therefore, the bulk of Petitioners new information, which relates to documenting the presence of roseate tern along beaches a few miles from Pilgrim, does not contradict any of the conclusions the NRC and FWS relied on to conclude consultation for this proceeding. Indeed, it only serves to confirm one of the assumptions upon which the consultation rested.
Petitioners also claim that the FWS and NRC incorrectly concluded that the roseate terns presence in the immediate vicinity of Pilgrim was transient or on migration.136 But, as discussed above, both agencies already acknowledged that the roseate tern could occur in the area around Pilgrim, but would not likely frequent the immediate vicinity of the plant. While Petitioners have produced evidence to show that the roseate tern may nest or stage on the beaches near Pilgrim, none of these studies suggest that those activities will cause those birds to frequent the immediate vicinity of Pilgrim.137 As a result, the Petitioners claim that the birds presence near the plant may not be just migratory does not undermine the NRC and FWSs findings.
Moreover, some of the Petitioners evidence on this point appears to support the NRCs conclusions in the Pilgrim SEIS. Petitioners note that the numbers of roseate tern pairs nesting near the Town of Plymouth have increased from one to three since 2008.138 In the Pilgrim 135 Pilgrim FSEIS at E-8, 4-64.
136 Petition at 16-17 (citing Nisbet Affidavit at ¶ 16, 17).
137 Id. at 15-19.
138 Id. at 19.
SEIS, the NRC concluded that because the roseate tern population in Massachusetts has been slowly increasing, there is no evidence that [the roseate tern has] been adversely affected by the previous operation of the PNPS facility.139 Consequently, Petitioners evidence that the number of nesting pairs of roseate tern near the Pilgrim facility is also increasing further supports the NRCs finding that operation of Pilgrim has not adversely impacted the species.
Therefore, this portion of the Petitioners Roseate Tern Contention does not raise a material issue. Rather, the information provided by the Petitioners appears to largely agree with the NRC and FWSs conclusions that while present on beaches a few miles from the facility, the roseate tern does not frequent Pilgrim or its immediate surrounding areas. As a result, these arguments cannot serve as the basis for an admissible contention.140 Even if the information presented by the Petitioners was materially different from that considered by the FWS and NRC, Petitioners have not shown how it indicates that renewing the Pilgrim operating license will adversely affect the roseate tern. Specifically, Petitioners have not provided any hint of how the mere non-migratory presence of the roseate tern on beaches near Pilgrim will result in an adverse effect to that species. Dr. Nisbet opines, If PNPS is relicensed and continues to operate for twenty more years, there is significant potential for adverse effects on roseate terns.141 But this allegation does not provide any connection between the roseate terns non-migratory presence a few miles form Pilgrim and the effect described. The Commission has held that an expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to 139 Pilgrim SEIS at 4-64.
140 10 C.F.R. § 2.309(f)(1)(iv)(vi) (requiring contentions to demonstrate a material dispute).
141 Nisbet Affidavit at ¶ 21.
make the necessary reflective assessment of the opinion.142 Accordingly, this portion of the contention also lacks an adequate factual basis.143
- 2. Petitioners have Not Shown that Pilgrims Impingement and Entrainment of Prey Species May Adversely Affect the Roseate Tern Second, Petitioners note that the main prey species of roseate terns in New England[,]
American sand lance (sammodytes americanus), hake, and Atlantic herring (clupea harengus),
are regularly impinged and entrained at PNPS in large numbers.144 Thus, Dr. Nisbet asserts that the NRC and the FWS have not considered the potential for adverse effects mediated through effects on the food supply of roseate terns over a larger area.145 But, the Petitioners have not alleged, let alone demonstrated, that these species are impinged or entrained in sufficient numbers to impact the roseate tern.146 As the Commission has noted, an admissible contention must not only provide factual bases but also explain specifically why [they support]
the contentions admission.147 Petitioners have not provided such an explanation with respect to this claim.
The Petitioners note that the Pilgrim SEIS found that the Atlantic herring has been a numerically dominant impinged species and there have been significant entrainment events involving Atlantic herring.148 However, the Pilgrim SEIS also found that for the Atlantic herring, 142 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).
143 10 C.F.R. § 2.309(f)(1)(v), (vi). Petitioners also cryptically allege that Pilgrims thermal discharges and intake channel will create an attractive nuisance for the federally endangered roseate tern. Petition at 20. But, Petitioners do not explain how this feature of the Pilgrim facility will constitute a nuisance for the roseate tern, let alone what, if any, affect it may have on that species. Therefore, this portion of the Petitioners claim appears to be similarly unsupported.
144 Petition at 20.
145 Nisbet Affidavit at ¶ 17.
146 Petition at 20-21.
147 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1) CLI-12-05, 75 NRC __, __ (Mar. 8, 2012) (slip op. at 10).
148 Petition at 20 (citing Pilgrim SEIS at 2-37, E-57) (quotations omitted).
the loss to the stock due to entrainment by PNPS appears to be significantly less than 1 percent.149 More recent studies have shown that Pilgrim entrains and impinges about 0.01% of the total Atlantic Herring spawning stock by biomass.150 In addition, further studies have indicated that Pilgrim only impinges sand lance infrequently and in small numbers.151 Finally, the Pilgrim SEIS discusses many types of hake, including the offshore hake, silver hake, red hake, and white hake, and generally found that they were either not impacted by plant operations or had a healthy stock.152 But the Petitioners have not identified which, if any, of these hake are the subjects of their concerns. Consequently, they have not produced sufficient information to support their contention with respect to that species.
Therefore, this aspect of the Roseate Tern Contention is also immaterial and unsupported by an adequate factual basis.153 Most significantly, Petitioners have not attempted to show how the data on impingement and entrainment of prey species could impact the roseate tern. Moreover, the Pilgrim SEIS and more current information suggests that while these species may be impinged or entrained in varying numbers, those events have not had a substantial impact on the overall health of the populations of those prey species.
149 Pilgrim FSEIS at 4-23.
150 Email from Briana Balsam, NRC, to Julie Crocker, NMFS, (Apr. 10, 2012), Enclosure 1, Ichthyoplankton Entrainment Monitoring at Pilgrim Nuclear Power Station, January -December 2010 (Apr. 27, 2011), at 84-86 (ADAMS Accession No. ML12107A058)).
151 Id., Enclosure 2, Impingement of Organisms on the Intake Screens at Pilgrim Nuclear Power Station, January - December 2010 (April 22, 2011), at Table 3.
152 Pilgrim FSEIS at 2-56 to 2-57, 2-59 to 2-60, 2-65.
153 10 C.F.R. § 2.309(f)(1)(iv), (v), (vi).
- 3. The Petitioners have Not Shown that the Discharge of Chemicals or Isotopes from Pilgrim May Adversely Affect the Roseate Tern The Petitioners also claim that the FWS and NRC violated the ESA by failing to evaluate the pollution impacts on roseate tern and their fish prey.154 Petitioners assert, A partial list of the pollutant discharges from PNPS include[s] radioactive effluent, chlorine, biocides, metals, and corrosion inhibitor, as well as thermal releases.155 In light of these possible pollutants, Petitioners contend that the lack of regular testing of Pilgrims discharges, the potential for the plant to release chromium, and recent violations of the Pilgrim National Pollutant Discharge Elimination System (NPDES) permit raise the potential for adverse impacts on the roseate tern or their prey species.156 However, the Petitioners have not shown how these pollutants could harm the roseate tern, what quantities of these pollutants would be necessary to create that impact, or any reason to believe that Pilgrim discharges such quantities of those pollutants. Consequently, this claim is not adequately supported.157 Moreover, in the GEIS, the NRC Staff explicitly considered what consequences plant discharges of pollutants may have on the surrounding environment and aquatic organisms during the license renewal period.158 Based on compliance with current NPDES permits and implementation of prudent mitigation measures, the Staff determined that the environmental impacts of discharges of chlorine and heavy metals, including chromium, would be small because those discharges would be in sufficiently minute quantities to dissipate quickly.159 154 Petition at 23.
155 Id. at 21.
156 Id. at 21-24.
157 10 C.F.R. §2.309(f)(1)(iv), (vi); USEC, CLI-06-10, 63 NRC at 472.
158 GEIS at 4-10 to 4-13.
159 Id.
While the Petitioners have pointed to a few instances in which Pilgrims effluent discharge exceeded the chlorine limit in its NPDES permit, the Environmental Protection Agency (EPA) web page Petitioners reference indicates that these non-compliances were not significant.160 Because the EPA is the agency charged with enforcing compliance with the Clean Water Act, its assessment of the significance of these violations is entitled to substantial deference.161 Consequently, Petitioners have not provided sufficient grounds to challenge the agencys finding that based on the quantity of pollutants discharged, plant discharges of chlorine and heavy metals will have a small impact on the environment and aquatic biota.
Additionally, Petitioners acknowledge that studies have analyzed sediment samples from the Pilgrim site for chemical contamination.162 These studies concluded that the Massachusetts Bay sediments were no more contaminated than those of other urban estuarine and coastal regions on the east coast [and] are healthy.163 Consequently, Petitioners have not adequately substantiated their claim that Pilgrim is discharging pollutants that may be harming the roseate tern. As a result, this portion of the contention also does not contain a sufficient basis to support the Roseate Tern Contention.164 160 Id. at 22 n.20 (citing EPA, Enforcement and Compliance History Online, available at:
http://www.epa-echo.gov/cgi-bin/get1cReport.cgi?tool=echo&IDNumber=110000736810 (indicating that significant non-compliances are in bold print)).
161 See Heckler v. Chaney, 470 U.S. 821, 838 (1985); Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 & 2), ALAB-515, 8 NRC 702, 712-13 (1978); see also 10 C.F.R. § 51.10(c) (stating that in accordance with section 511(c)(2) of the [Clean Water Act], the NRC recognizes that responsibility for Federal regulation of nonradiological pollutant discharges into receiving waters rests by statute with the EPA).
162 Petition at 21.
163 Pilgrim FSEIS at 2-31.
164 10 C.F.R. § 2.309(f)(1)(v), (vi).
D. Petitioners Have Not Identified Any New and Significant Information Regarding the Roseate Tern that Would Require the NRC Staff to Supplement the Pilgrim SEIS Last, Petitioners contend that the Pilgrim SEIS should be supplemented in light of new scientific information developed since 2006 about the roseate tern.165 In Marsh v. Oregon Natural Resources Council,166 the Supreme Court held that when new information indicates that a federal action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.167 But the Court also stated that an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.168 Such a requirement would render agency decision-making intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.169 Under NRC precedent, to require supplementation of an EIS, new information must reveal a seriously different picture of the environmental impact of the proposed project.170 The Petition does not contain sufficient information to meet this high standard.
Federal Courts have routinely considered when new information regarding the effects of a federal agencys action on nearby species requires the agency to supplement an EIS. For example, in Marsh, the Supreme Court considered whether a memorandum from a state environmental-protection agency required the Army Corps of Engineers (the Corps) to supplement an EIS for the construction of a dam.171 The memorandum found that if the dam 165 Petition at 6-7.
166 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-71 (1989).
167 Id. at 374.
168 Id. at 372.
169 Id. at 373.
170 Hydro Resources, Inc., CLI-01-04, 53 NRC 31, 52 (2001).
171 Marsh, 490 U.S. at 363-64, 382.
increased the water temperature downstream by one degree centigrade, survival of the spring chinook would decrease by 60-80%.172 The Court found, There is little doubt that if all of the information contained in the [document] was both new and accurate, the Corps would have been required to prepare a second supplemental EIS.173 However, because the Corps relied on studies that rebutted the conclusions in the memorandum, the Court found supplementation unnecessary.174 In another case, the Fourth Circuit Court of Appeals responded to a claim that the Corps should have supplemented an EIS with new information.175 The new information, from the EPA, showed that a proposed dam would lead to an infestation of zebra mussels in the North Fork of the Hughes River in West Virginia.176 The EPA asserted that the infestation would destroy indigenous mussels, clog intake structures, and negatively impact the entirety of the North Fork ecosystem.177 The Court found that the agency did not take a hard look at this new information and remanded for further consideration.178 In light of these precedents, the Petitioners have not produced information that shows a large enough impact on the roseate tern to warrant supplementing the Pilgrim SEIS. These cases indicate that with respect to impacts on nearby species, new and significant information 172 Id. at 382.
173 Id. at 385.
174 Id.
175 Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (1996).
176 Id. at 440, 443-44.
177 Id. at 444.
178 Id. at 445. This opinion drew a dissent from Judge Hall, who found, The Corps took a good enough look to satisfy itself that the dam should be built. It reasoned that zebra mussels are so pervasive, and infestations so inevitable, that it made no sense to let them scuttle a much needed local improvement. This kind of balancing is the sole province of the executive branch, and we have no role beyond ensuring that the balancing was done. Glickman, 81 F.3d at 451.
must show that the project will have a major impact on a species in the area.179 As discussed above, Petitioners have produced evidence that the roseate tern has a non-migratory presence on beaches near Pilgrim, noted that Pilgrim has entrained or impinged prey species for the roseate tern, and speculated that Pilgrim may release pollutants that could harm the roseate tern.180 But the Petitioners have not alleged, let alone shown, what effect these impacts from Pilgrim may have on the roseate tern beyond those discussed in the Pilgrim SEIS. They have certainly not alleged that these impacts would result in the type of substantial decrease to the roseate tern population that the Supreme Court recognized would constitute new and significant information in Marsh.181 If anything, the Petitioners evidence confirms the Staffs conclusion that the roseate tern population has actually increased in the area around Plymouth during Pilgrims initial 40 year licensing term.182 Consequently, Petitioners have not produced any information that reveals a seriously different picture of the environmental impact of the proposed project.183 Accordingly, this portion of their claim also lacks an adequate basis.184 IV. The Petition Does Not Meet the Reopening Standards The evidentiary record in this proceeding has been closed since 2008 and only opened for a limited purpose since 2010.185 Therefore, in addition to meeting the normal contention 179 Marsh, 490 U.S. at 363-64, 382; Glickman, 81 F.3d at 444-45.
180 See supra at Section III.C (citing Petition at 15-24).
181 Marsh, 490 U.S. at 385.
182 Petition at 17-19.
183 Hydro Resources, Inc., CLI-01-04, 53 NRC at 52.
184 10 C.F.R. § 2.309(f)(1)(v), (vi). Petitioners argue that this issue is significant because it raises an issue under the ESA, which is unquestionably a significant piece of legislation. Petition at 35. But, Petitioners confuse the significance of the ESA, which provides important protections to critical resources, with the significance of the issue they have raised, which is the impact of renewing the Pilgrim operating license on the roseate tern. Id. As discussed above, the Petitioners have not shown with any specificity how that issue is significant under Federal case law or Commission precedent.
185 June 4, 2008, Order; Pilgrim, CLI-10-11, 71 NRC at 307-08.
admissibility requirements of 10 C.F.R. § 2.309(f)(1) and the timeliness requirements, this motion to reopen the record to admit a new contention must meet all of the requirements in 10 C.F.R. § 2.326.186 The motion to reopen must be timely, must address a significant safety or environmental issue, and it must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered in the first instance.187 One or more affidavits showing that the motion to reopen meets the above criteria must accompany the motion under 10 C.F.R. § 2.326(b). Each affidavit must contain statements from "competent individuals with knowledge of the facts alleged" or experts in disciplines appropriate to the issues raised.188 Moreover, the moving papers must be strong enough, in the light of any opposing filings, to avoid summary disposition.189 The Commission has previously held that
[t]he burden of satisfying the reopening requirements is a heavy one, and proponents of a reopening motion bear the burden of meeting all of [these] requirements.190 Thus, [b]are assertions and speculation . . . do not supply the requisite support[, and a] mere showing of a possible violation is not enough.191 The Petition does not demonstrate that it meets any of the requirements in 10 C.F.R. § 2.326. Therefore, the Board should deny the Petition under that section.
186 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 668-69 (2008).
187 10 C.F.R. § 2.326(a)(1)-(3); Oyster Creek, CLI-08-28, 68 NRC at 668.
188 10 C.F.R. § 2.326(b). See also Oyster Creek, CLl-09-7, 69 NRC at 291-93.
189 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).
190 Oyster Creek, CLI-09-7, 69 NRC at 287 (citations omitted, alteration in original).
191 Id. (citations omitted, first alteration in original).
A. Timeliness Under 10 C.F.R. § 2.326(a)(1), a motion to reopen a closed record must be timely. As discussed above, the issues raised in the Petition are not timely.192 Nonetheless, the regulation provides an exception to this rule when the motion to reopen raises an exceptionally grave issue.193 The Commission anticipates that this exception will be granted rarely and only in truly extraordinary circumstances.194 Petitioners allege that their contention raises an exceptionally grave issue because: 1) their expert concluded that there is a significant potential for adverse effects on the roseate tern during the relicensing period; 2) FWS did not consider the effects of pollution discharges from PNPS on the roseate tern and its food supply; 3) FWS, NRC, and Entergy allegedly failed to support FWSs conclusion that the presence of the roseate tern near the PNPS site was probably transient in nature; and 4) a contention raises an exceptionally grave issue by virtue of the very fact that it addresses an endangered species.195 These claims fail to establish an exceptionally grave issue for a number of reasons.
First, the Commission has found that an exceptionally grave issue is one that calls into question the safety of the licensed activity.196 To reopen a closed record, there must be a sufficiently grave threat to public safety.197 Petitioners proposed contention alleges no concerns directly relevant to public safety. Second, the Commission has held that conclusory 192 See supra at Section II.
193 10 C.F.R. § 2.326(a)(1).
194 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986).
195 Petition at 33-35.
196 Hydro Resources, Inc., CLI-00-12, 52 NRC 1, 5 (2000).
197 51 Fed. Reg. at 19,536 (citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 365 n.10 (1973)).
language is insufficient to demonstrate an exceptionally grave issue.198 As discussed above at length, Petitioners have not shown that there will be any impact on the tern, let alone one that would be exceptionally grave.199 Moreover, Petitioners provide no legal basis for their claim that any contention regarding an endangered species raises an exceptionally grave issue. Rather, this approach appears to contravene the Commissions expectation that it would find an exceptionally grave issue in truly extraordinary circumstances.200 If Petitioners could reopen a record by simply alleging that the agency action may have some unspecified impact on listed species, then almost any NRC proceeding could be delayed indefinitely by such allegations.
Consequently, Petitioners claims do not raise an exceptionally grave issue and therefore fail to meet the exception to the timeliness requirements for a motion to reopen.
B. Significance In addition, a motion to reopen must also address a significant safety or environmental issue.201 [W]hen a motion to reopen is untimely, the § 2.326(a)(1) exceptionally grave test supplants the § 2.326(a)(2) significant safety or environmental issue test.202 As discussed above, the claims in the Petition are untimely and do not raise an exceptionally grave issue.203 Therefore, these portions of the Petition do not meet the requirements of 10 C.F.R. § 2.326(a)(2).
Moreover, even if the Petitioners had raised their issues in a timely fashion, they still do not allege a significant issue under section 3.236(a)(2). For environmental issues, the 198 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 NRC __, __ (Sep. 27, 2011) (slip op. at 14 n.44).
199 Supra at Section III.
200 See 51 Fed. Reg. at 19,536.
201 10 C.F.R. § 2.326(a)(2).
202 Vogtle, CLI-11-08, 74 NRC at __ (slip op. at 14 n.44).
203 See supra at Sections II, IV.A.
Commission has found that the standard for showing significance to reopen a closed record is the same as the standard for supplementing an EIS.204 In both instances, the proffered information must paint a seriously different picture of the environmental landscape.205 Because the Petitioners have not shown that any of the information supporting their new contention presents a seriously different view of the environmental impacts of renewing the Pilgrim license, none of the claims in the Petition meet the normal significance test under 10 C.F.R. § 2.326(a)(2).206 C. Materially Different Result Under 10 C.F.R. § 2.326(a)(3), a motion to reopen a closed record must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.207 One board has explained that under this standard [t]he movant must show that it is likely that the result would have been materially different, i.e., that it is more probable than not that [the movant] would have prevailed on the merits of the proposed new contention.208 The Commission has found an argument that simply states that new information contradicts some of the Boards factual findings, and then states that this prong of the reopening test is met . . . falls far short of meeting § 2.326(a)(3)s requirements.209 While the quality of evidence presented for reopening must be at least of a level sufficient to withstand a motion for summary disposition, [the Commission has also] made clear that the 204 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006).
205 Id. (emphasis in original).
206 See supra at Section III.D.
207 10 C.F.R. § 2.326(a)(3) (emphasis added).
208 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529, 549 (2010).
209 Oyster Creek, CLI-09-7, 69 NRC at 290-91 (internal quotations omitted).
reopening standard requires more.210 Under that standard, The evidence must be sufficiently compelling to suggest a likelihood of materially affecting the ultimate results in the proceeding.211 Petitioners contend that they meet this standard for two reasons. First, Petitioners state, While the NRC and Entergy assert there is not likely to be an adverse effect on the roseate tern, Dr. Nisbet testifies that there is a significant potential for adverse effects on the roseate tern from relicensing.212 If Petitioners had shown that renewing the Pilgrim operating license may adversely affect the roseate tern, the FWSs regulations would have required formal consultation and preparation of a biological opinion, which may have contained reasonable and prudent measures to mitigate those adverse effects or an incidental take statement.213 These steps may well have led to a materially different result. But, as discussed above, the Petitioners have not provided any indication of how their evidence leads to a conclusion that renewing the Pilgrim operating license will adversely affect the roseate tern during the renewal period.214 They have certainly not demonstrated that such a conclusion would be the likely result of a hearing on this issue.215 Second, Petitioners assert, If the NRC staff had complied with the ESA, a materially different result would have been likely because there would be a biological assessment as to whether PNPS relicensing would be likely to adversely [a]ffect the roseate tern, which would further develop the record for this proceeding.216 But, as discussed above, the NRC Staff 210 Pilgrim, CLI-12-10, 75 NRC __ (slip op. at 25).
211 Id.
212 Petition at 36 (quoting Nisbet Affidavit).
213 50 C.F.R. § 402.14(g), (h), (i).
214 See supra at III.C.
215 Pilgrim, CLI-12-10, 75 NRC at __ (slip op. at 25).
216 Petition at 36.
already produced an adequate BA under the ESA through its SEIS for Pilgrim.217 Moreover, Petitioners have not shown how a separate BA for the roseate tern would lead to a different conclusion than that already contained in the Staffs SEIS. Consequently, the Petitioners have not shown how prevailing on this claim would lead to a materially different result, let alone demonstrated the likelihood of such a result.
Both of Petitioners arguments for meeting 10 C.F.R. § 2.326(a)(3) rest on simple allegations that a materially different result would be likely in this proceeding should the Board grant their motion to reopen. But, the Commission has already held that this conclusory approach to addressing the reopening standards falls far short of meeting that sections requirements.218 As a result, the Petitioners have also not met the third prong of the reopening criteria.
D. Affidavit Finally, under 10 C.F.R. § 2.326(b), a petitioner seeking to reopen a closed record must support the request with an affidavit from an expert.219 In that affidavit, Each of the criteria [of 10 C.F.R. § 2.326(a)] must be separately addressed, with a specific explanation of why it has been met.220 Dr. Nisbets affidavit opines that this is a significant environmental issue and a materially different result would have been likely if the evidence proffered in this affidavit had been considered in a timely fashion.221 But, he does not provide a specific explanation of why the motion to reopen raises timely and significant issues that would lead to a materially different result in this proceeding. As a result, Petitioners have also not met the requirements in 10 C.F.R. § 2.326(b).
217 See supra at III.B; 16 U.S.C. 1536(c).
218 Oyster Creek, CLI-09-7, 69 NRC at 290-91 (internal quotations omitted).
219 10 C.F.R. § 2.326(b).
220 Id.
221 Nisbet Affidavit at ¶ 21.
CONCLUSION The Board should deny Petitioners request to reopen the record and submit a new contention on the roseate tern. As discussed above, the claims are untimely and do not meet the high Commission standards for reopening the record. Moreover, they largely raise immaterial issues that are not supported by an adequate factual basis.
/Signed (electronically) by/ Executed in Accord with 10 CFR 2.304(d)
Maxwell C. Smith Joseph A. Lindell Counsel for NRC Staff Counsel for NRC Staff
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR GENERATION )
COMPANY AND ENTERGY NUCLEAR ) Docket No. 50-293-LR OPERATIONS, INC. )
)
(Pilgrim Nuclear Generating Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS MOTION TO REOPEN THE RECORD AND REQUEST FOR A HEARING WITH REGARD TO THE ROSEATE TERN have been served upon the following by the Electronic Information Exchange this 16th day of May, 2012:
Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail:
E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis Duane Morris LLP Terence A. Burke, Esq.
505 9th St., NW, Suite 1000 Entergy Nuclear Washington, DC 20004 1340 Echelon Parkway E-mail: sshollis@duanemorris.com Mail Stop: M-ECH-62 Jackson, MS 39213 E-mail: tburke@entergy.com
Mary Lampert David R. Lewis, Esq.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.
668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald Matthew Brock Town Manager Assistant Attorney General 878 Tremont Street Commonwealth of Massachusetts Duxbury, MA 02332 One Ashburton Place E-mail: macdonald@town.duxbury.ma.us Boston, MA 02108 Martha.Coakley@state.ma.us Margaret Sheehan Matthew.Brock@state.ma.us 61 Grozier Road Cambridge, MA 02138 Anne Bingham E-mail : meg@ecolaw.biz 78A Cedar St.
Sharon, MA 02067 Email:annebinghamlaw@comcast.net
/Signed (electronically) by/
Maxwell C. Smith Counsel for NRC Staff Dated at Rockville, Maryland this 16th Day of May 2012