ML12160A439

Entergy'S Answer Opposing Jones River Watershed Association'S and Pilgrim Watch'S Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals

ML12160A439
Person / Time
Site:	Pilgrim
Issue date:	06/08/2012
From:	Doris Lewis, Walsh T Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Generation Co, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22572, 50-293-LR-CWA, ASLBP 12-921-08-LR-BD01
Download: ML12160A439 (122)

Text

June 8, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

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

)

(Pilgrim Nuclear Power Station) )

ENTERGYS ANSWER OPPOSING JONES RIVER WATERSHED ASSOCIATIONS AND PILGRIM WATCHS MOTION TO REOPEN AND HEARING REQUEST ON CONTENTION REGARDING WATER-RELATED APPROVALS I. Introduction Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively Entergy) hereby oppose the late-filed motion to reopen the record that Pilgrim Watch and Jones River Watershed Association (collectively, PW/JRWA) filed on May 14, 20121 seeking to raise a new contention regarding water-related approvals. This is the eighth motion to reopen/request for hearing on late-filed issues, and as with the prior motions, is inexcusably late and without merit. Many of the claims are duplicative of prior motions and have been mooted by the final determinations of other federal and Commonwealth agencies.

The Motion contains no clear statement of the contention that PW/JRWA seek to raise.

Nonetheless, PW/JRWAs principal claim appears to be that Entergy lacks three approvals that PW/JRWA assert are prerequisites to license renewal. Motion at 4. The three alleged approvals are (1) a valid consistency determination under the Coastal Zone Management Act (CZMA);

1 Jones River Watershed Association and Pilgrim Watch Request to Reopen, for a Hearing, and to File New Contentions and JRWA Motion to Intervene on Issues of: (1) Violations of State and Federal Clean Water Laws; (2) Lack of Valid State § 401 Water Quality Certification; (3) Violation if State Coastal Zone Management Policy; and (4) Violation of NEPA (May 14, 2012) (Motion).

(2) a valid Commonwealth certification under Section 401 of the Clean Water Act; and (3) a current variance and determination under sections 316(a) and 316(b) of the Clean Water Act (CWA), which PW/JRWA assert are required by 10 C.F.R. § 51.53(c)(3)(ii)(B). Id. at 2.

Neither this claim, nor any of the hodge-podge of subsidiary allegations in the Motion, meets the NRCs standards for reopening in 10 C.F.R. § 2.326. First, the Motion is not supported by an affidavit addressing each of the reopening criteria in 10 C.F.R. § 2.326(a), as required by 10 C.F.R. § 2.326(b). This failure, alone, is fatal. Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-12-03, 75 N.R.C. __, slip op. at 18 n.86 (Feb. 22, 2012)

(CLI-12-03).

Second, the Motion is inexcusably untimely, a similarly fatal flaw. PW/JRWAs claims involve matters that were all addressed at least five years ago in the Environmental Report (ER)2 included in Entergys January 2006 Application, in the NRC Staffs December 2006 draft environmental impact statement,3 and/or in the NRC Staffs July 2007 final environmental impact statement.4 The Commissions rules on timeliness require a showing that the contention is predicated on previously unavailable information (10 C.F.R. § 2.309(f)(2)), which PW/JRWA fails to offer. Indeed, PW/JRWA do not even attempt to argue that their contention is based on new information. Rather, PW/JRWA assert that Entergy and the NRC are somehow estopped from raising timeliness objections because Petitioners reasonably relied on statements of federal and state regulators to do their jobs. . . . Motion at 31-32. PW/JRWAs estoppel argument is 2

Applicants Environmental Report, Operating License Renewal Stage, Pilgrim Nuclear Power Station, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/pilgrim/environ-report.pdf.

3 NUREG-1437, Supplement 29, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Pilgrim Nuclear Power Station - Draft Report for Comment (Dec. 2006) (ADAMS Accession No. ML063260173) (DSEIS).

4 NUREG-1437, Supplement 29, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Pilgrim Nuclear Power Station (July 2007) (FSEIS).

2

not only inconsistent with NRCs rule governing late-filed contentions but also frivolous. While PW/JRWA refer to NRCs wholesale failure to exercise due diligence with regard to Entergys violations of state and federal law (id. at 21), their allegations in fact appear to collaterally challenge the decision-making of not only the NRC, but also of (1) the National Marine Fisheries Service (NMFS); (2) the U.S. Fish and Wildlife Service (FWS); (3) the U.S. Environmental Protection Agency (U.S. EPA); (4) the Massachusetts Department of Environmental Protection (MDEP); and (5) the Massachusetts Office of Coastal Zone Management (OCZM). As detailed below, these allegations seek to raise decisions by other agencies that are largely beyond NRCs purview, are contradicted by the official findings of these cognizant agencies, and are factually infirm.

Third, the Motion does not identify, as it must, a significant environmental issue. 10 C.F.R. § 2.326(a)(2). Nowhere is there any demonstration that the NRCs assessment of the potential environmental impacts of continued operation of the Pilgrim Nuclear Power Station (Pilgrim or PNPS) are incorrect or would be materially altered by any of PW/JRWAs allegations.

Fourth, the Motion does not demonstrate that a materially different result would be likely.

The Motion simply presupposes the validity of PW/JRWAs claims without making any demonstration that PW/JRWA is likely to prevail on them. As this Answer will show, those claims are unsupported, wrong, and in several instances, beyond NRCs jurisdiction.

Finally, the proposed contention does not meet the late-filed criteria contained in 10 C.F.R. 2.309(c), or admissibility standards in 10 C.F.R. § 2.309(f)(1).

3

II. Background Entergy has summarized the procedural history of this case numerous times in response to the previous seven motions to reopen.5 Entergy will not repeat that discussion here, but instead will focus only on those legal requirements and portions of the record relevant to PW/JRWAs claims.

A. Coastal Zone Management Act Section 307(c)(3) of the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456(c)(3), requires certain applicants for certain Federal licenses to include in the license applications, and to provide to the state in which the future activity may affect the coastal zone, a certification that the proposed activity complies with, and will be conducted in accordance with, the enforceable policies of the states federally-approved coastal zone management program.

Among other things, that Section also provides that, at the earliest practicable time, the state or its designated agency shall notify the Federal licensing agency that the state concurs with or objects to the applicants certification, and if the state or its designated agency fails to furnish the required notification within six months after receipt of its copy of the applicants certification, the states concurrence with the certification shall be conclusively presumed. See id. § 1456(c)(3)(A).6 Entergys ER included the required CZMA certification (see ER, Att. D), which Entergy also provided to OCZM - the Commonwealths designated agency for consistency 5

See, e.g., Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request (Mar. 19, 2012) at 6-10.

6 Implementing regulations have been promulgated by the National Oceanic and Atmospheric Administration (NOAA) at 15 C.F.R. Part 930, pursuant to the Secretary of Commerces authority to promulgate regulations necessary to carry out the provisions of the Act (see 16 U.S.C. § 1463).

4

determinations.7 See letter from S. Bethay, Pilgrim Station, to T. Henson, OCZM (Jan. 27, 2006)

(Exhibit A hereto). In addition to providing the certification, which included 21 pages of supporting information, Entergy provided OCZM with a copy of the entire ER. See id. (second paragraph of cover letter).

On February 22, 2006, OCZM published a notice of its federal consistency review of Pilgrims certification, making the certification and accompanying information publicly available and providing an opportunity for public comment. Mass. Envtl. Monitor, Vol. 65, Issue 8 (Feb.

22, 2006), available at http://www.env.state.ma.us/mepa/monitorarchives/archives/22feb06.htm.8 To the best of Entergys knowledge, neither Pilgrim Watch nor JRWA provided any comments to OCZM.

On March 27, 2006, the NRC published a Notice of Opportunity for Hearing on the Application. 71 Fed. Reg. 15, 222 (Mar. 27, 2006). Pilgrim Watch requested a hearing but submitted no proposed contention questioning the CZMA certification.9 JRWA did not request a hearing.

On July 11, 2006, OCZM officially concurred with Entergys CZMA certification, finding that the activity as proposed is consistent with the CZM program enforceable policies.

OCZMs consistency determination was published in the DSEIS and FSEIS. See DSEIS at E-18; 7

See Massachusetts Office of Coastal Zone Management Policy Guide - October 2011, available at http://www.mass.gov/czm/plan/czm_policy_guide.htm (OCZM Policy Guide). This document is the current, NOAA-approved Massachusetts Coastal Zone Management Plan and provides the official statement of the Massachusetts coastal program policies and legal authorities, especially as they relate to the process of federal consistency review.

8 A copy of this notice is also available on ADAMS at Accession No. ML063470312.

9 See Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006).

5

FSEIS at E-19. Pilgrim Watch and JRWA both commented on the DSEIS.10 At that time, however, neither Pilgrim Watch nor JRWA raised any question concerning the sufficiency of this consistency determination, either through comments on DSEIS or through a proposed new contention.

In February 2012, at Entergys request, OCZM confirmed that its consistency determination for both license renewal and for the existing NPDES permit remain valid.11 More than a month later, PW/JRWA submitted a letter to OCZM requesting that the CZMA consistency determination be suspended and asserting that the consistency determination was invalid for much the same reasons now asserted in the Motion.12 On May 21, 2012, OCZM rejected PW/JRWA claims that the consistency determination is invalid.13 B. Compliance with Section 401 of the Clean Water Act Section 401(a)(1) of the Clean Water Act, 33 U.S.C. § 1341(a)(1), provides that certain applicants for certain Federal licenses to conduct an activity that may result in any discharge into the navigable waters shall provide the federal licensing agency with a certification from the state in which the discharge originates that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of the Clean Water Act. Among other exceptions and requirements, Section 401(a)(3)14 also allows a certification obtained with respect 10 Indeed, the Declaration of E. Pine duBois filed by PW/JRWA documents their active participation in the public process for review of the DSEIS, see duBois Declaration ¶¶ 19-20, but fails to mention any issues about the OCZM consistency concurrence.

11 Letter from A. Boeri, OCZM to R. Dodds, Pilgrim Station (Feb. 29, 2012), available at ADAMS Accession No. ML12081A015.

12 Letter from P. DuBois, JRWA, B. Carlisle, Director, OCZM (Apr. 4, 2012). This letter is included as Attachment 1 to OCZMs May 21, 2012 response (infra note 13).

13 Letter from B. Carlisle, Director, OCZM, to P. duBois (May 21, 2012) (Exhibit B hereto).

14 Section 401(a)(3) provides in pertinent part:

The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements of this subsection with respect to certification in connection with any other 6

to construction of a facility to fulfill the certification requirement in connection with any other Federal license or permit required for the operation of such facility.15 In addition, the NRC has taken the position, consistent with applicable law in many states, that issuance of an NPDES permit by a state water quality agency implies certification under Section 401. NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants at § 4.2.1.1 (1996). See also Final Brief of Respondents, Vermont Dept of Pub. Svc. v. NRC, Nos. 11-1168 & 11-1177, (D.C. Cir. Mar. 19, 2012) at 35 (NRC has long taken the position that [CWA] § 402 [i.e., NPDES] permits can serve as a proxy for § 401 certificates.) (ADAMS Accession No. ML12152A080)16 The issuance of an NPDES permit, Federal license or permit required for the operation of such facility unless, after notice to the certifying State, agency, or Administrator, as the case may be, which shall be given by the Federal agency to whom application is made for such operating license or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies such agency within sixty days after receipt of such notice that there is no longer reasonable assurance that there will be compliance with the applicable provisions of sections 301, 302, 303, 306, and 307 of this Act because of changes since the construction license or permit certification was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters into which such discharge is made, (C) the water quality criteria applicable to such waters or (D) applicable effluent limitations or other requirements.

33 U.S.C. § 1341(a)(3).

15 The plain language of Section 401(a)(1) allows a certification obtained with respect to operations to be used in support of any license authorizing operations, with Section 401(a)(3) also allowing reliance on a prior construction-related certifications, that is any certification issued prior to or during the construction process, including those addressing future operations. This reading is supported by an analysis of the legislative history indicating that Congress intended to allow Federal agencies to rely upon any prior certification. In the floor debates over the provision recognizing the continued validity of a construction-related certification for subsequent operating licenses, the sponsor explained that construction-related certifications were like those supporting operation: the thrust [of a construction-related certification] . . . is that when in operation that facility has to conform to the applicable water standards . . . . 115 Cong. Rec. H9,266 (daily ed. Apr. 16, 1969) (exchange between Reps. Edmonson and Cramer) (emphasis added). For a fuller discussion, see Final Brief of Intervenors Entergy Nuclear Operations, Inc. and Entergy Nuclear Vermont Yankee LLC, Vermont Dept of Pub. Svc. v.

NRC, Nos. 11-1168 & 11-1177, (D.C. Cir. Mar. 19, 2012) at 21-26 (ADAMS Accession No. ML12152A106).

16 See, e.g., Letter from S. Treby, NRC Asst General Counsel for Rulemaking and Fuel Cycle, to D. Couch, General Counsel, Oklahoma Water Resources Board (Feb. 11, 1989) (ADAMS Accession No. 8902090285) ([W]e are unable to identify any situation where the Water Board could validly withhold a Section 401(a)(1) certification even though the Water Board had issued a [discharge] permit on the basis of a finding that a licensees effluent discharges would comply with applicable State water quality standards. Accordingly, we conclude that

[discharge permits] are the legal equivalent of Section 401(a)(1) certifications. . . .).

7

such as that held by Pilgrim,17 is predicated upon compliance with all applicable requirements under sections 301, 302, 306, 307, 308, and 403 of this Act (see 33 U.S.C. § 1342(a)(1)), which encompasses all of the sections subject to certification under Section 401.18 Further, a NPDES permit includes provisions requiring compliance with its terms and conditions, requiring re-application if facility modifications or changes in discharge occur, and allowing the permit to be modified, revoked or reissued to comply with any newly issued standards. See, e.g., Joint Discharge Permit, Part I at ¶¶ A.1.c, D.2; Part II at ¶¶ A.1, A.4, D.2.

Entergys ER provided multiple certifications, each sufficient by itself to satisfy Section 401. First, as discussed in Section 9.2.2 of the ER, Entergy identified and provided a copy of the Commonwealths July 31, 1970 certification reflecting its receipt of reasonable assurance that operation of the Pilgrim Station will not violate applicable water quality standards. ER at 9-2 &

Att. A. Second, Entergy identified and provided a copy of the Commonwealths April 15, 1971 certification, issued in support of a permit to construct and operate the discharge facilities, that there is reasonable assurance that the activities will not violate applicable water quality standards.19 Id. Neither of these certifications contains any expiration date.20 Third, Entergy 17 The permit, which is jointly issued by the U.S. EPA and the Commonwealth, may be found in ADAMS at Accession No. ML061420166 and is hereinafter referred to as the Joint Discharge Permit.

18 The MDEPs regulations similarly require a discharge permit to contain limitations sufficient to meet water quality standards. See, e.g., 314 Mass. Code Regs. § 3.11(3) (As a minimum, all permits shall contain limitations which are adequate to assure the attainment and maintenance of the water quality standards of the receiving waters as assigned in the Massachusetts Surface Water Quality Standards, 314 CMR 4.00.) (emphasis added); see also 314 Mass. Code Regs. § 3.10(1) (As part of an application for an individual or general permit, the Department may require the applicant to provide information and analyses as the Department may reasonably require to determine whether such applicant meets the requirements of 314 CMR 3.00 and 4.00, including, but not limited to, pollutant loading and/or water quality analyses applicable to the discharge location or to area(s) potentially impacted by the discharge.).

19 The April 15, 1971 certification obtained in connection with a permit for construction and operation of the discharge facilities was shortly thereafter replaced by a similar certification dated April 23, 1971 (Exhibit C hereto). These certifications were obtained to support an application to the U.S. Army Corps of Engineers for a permit to work in or discharge to navigable waters, which covered the construction of the intake and discharge facilities. See Application dated June 30, 1971 (Exhibit D hereto), at Block 22 and Att. 1. The June 30, 1971 Application was submitted pursuant to regulations promulgated under Section 13 of the Rivers and Harbor Act.

8

stated that its NPDES permit, issued jointly by the EPA pursuant to the CWA and the Commonwealth of Massachusetts pursuant to Massachusetts General Law Chap. 21, § 43, reflects continued compliance with applicable CWA standards. Id.21 Because this permit is issued jointly by EPA and the Commonwealth, the 401 certification is not implicit, but explicit.

In fact, Entergys Joint Discharge Permit is supported by a 401 certification dated July 8, 1994 (Exhibit E hereto), which certifies that the conditions in this current permit governing current discharge will achieve compliance with sections 208(e), 301, 302, 303, 306 and 307 of the Federal Clean Water Act and with the provisions of the Massachusetts Clean Water Act. See also Entergy v. MDEP, 459 Mass. 319, 322-24 (2011) (Massachusetts waters are protected from environmental degradation by a coordinated system of Federal and State control. The Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. (2006) (Federal Act), seeks to prevent water pollution primarily by requiring facilities that discharge pollutants into surface waters of the United States to obtain Federal permits that limit the amount of pollutants that may be discharged . . . . Before a Federal permit may issue, the relevant State first must certify that the permittee's activities will not violate the State's water quality standards. Id. at §1341.) (footnote See Permits for Discharges or Deposits Into Navigable Waters - Proposed Policy, Practice and Procedure, 35 Fed.

Reg. 20,005 (Dec. 31, 1970); Permits for Discharges or Deposits Into Navigable Waters (Final Rule), 36 Fed.

Reg. 6,564 (Apr. 7, 1971). As a result of the Federal Water Pollution Control Act Amendments of 1972, P.L.92-500, this permitting requirement was subsumed under Section 402 of the Clean Water Act. See 33 U.S.C. § 1342(a)(5).

20 The July 1970 certification and the April 1971 certifications were issued under Section 21(b) of the Federal Water Pollution Control Act, as added by the Water Quality Improvement Act of 1970, P.L.91-224. In the Federal Water Pollution Control Act Amendments of 1972, P.L.92-500, Congress adopted Section 21(b) as Section 401(a) with only minor changes. Congress simultaneously adopted a savings provision at Section 4(b) of P.L.92-500 with respect to previous Section 21(b) certifications. The savings provision provides, in relevant part, that:

All . . . certifications . . . duly issued . . . pursuant to the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act, and pertaining to any . . . requirements, . . . under the Federal Water Pollution Control Act as in effect immediately prior to the date of enactment of this Act, shall continue in full force and effect after the date of enactment of this Act until modified or rescinded in accordance with the Federal Water Pollution Control Act as amended by this Act.

See 33 U.S.C. § 1251 note. The Commonwealth has never taken any action to modify or rescind these certifications for Pilgrim.

9

omitted). As each of these authorizations confirms, PNPSs operations have been and will continue to occur in compliance with Massachusetts water quality standards, as Section 401 contemplates.

Pilgrim Watchs May 25, 2006 hearing request (supra note 9) included no contentions challenging the discussion of the certification in Section 9.2.2 of the ER, or the sufficiency of the certification and the Joint Discharge Permit included in Attachment A of the ER. JRWA did not even request a hearing.

C. CWA § 316(a) Variance and 316(b) Determination The National Environmental Policy Act (NEPA) requires Federal agencies to prepare an environmental impact statement in support of major Federal actions that may significantly affect the environment. 42 U.S.C. § 4332(2)(C). However, CWA § 511(c)(2) provides that nothing in NEPA shall be deemed to authorize a federal licensing agency to review any effluent limitation or other requirement established pursuant to the CWA or the adequacy of any 401 certification, or to authorize any such agency to impose any effluent limitation other than any such limitation established pursuant to the CWA. 33 U.S.C. § 1371(c)(2). As the Commission has explained, Section 511(c)(2) of the Act precludes us from either second-guessing the conclusions in NPDES permits or imposing our own effluent limitations - thermal or otherwise. Indeed, the Clean Water Acts legislative history indicates that Congress, when enacting Section 511(c)(2), specifically intended to deprive the NRCs predecessor agency (the Atomic Energy Commission) of such authority.

Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 N.R.C. 371, 377 (2007) (emphasis added) (citation omitted). Further, NRC may not undercut EPA by undertaking its own analyses and reaching its own conclusions on water quality 21 Attachment A to the ER provided excerpts from the Joint Discharge Permit.

10

issues already decided by EPA. Id. at 388, quoting Carolina Power and Light Co. (H.B.

Robinson, Unit 2), ALAB-569, 10 N.R.C. 557, 558 (1979).22 The NRCs rules in 10 C.F.R. Part 51 reflect this careful balance of jurisdiction to U.S.

EPA and NRC under NEPA and CWA § 511(c)(2). Briefly, 10 C.F.R. § 51.53(c)(3)(ii)(B) requires (for plants utilizing once-through cooling or cooling ponds), that a license renewal applicants ER must provide a copy of current Clean Water Act 316(b) determinations and, if necessary, a 316(a) variance in accordance with 40 CFR part 125, or equivalent State permits and supporting documentation.23 This Section further provides, If the applicant can not provide these documents, it shall assess the impact of the proposed action on fish and shellfish resources resulting from heat shock and impingement and entrainment. 10 C.F.R. § 51.71 n.3 explains how the NRC Staff will use this information:

Where an environmental assessment of aquatic impact from plant discharges is available from the permitting authority, the NRC will consider the assessment in its determination of the magnitude of environmental impacts . . . in its determination of whether the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decision-makers would be unreasonable at the license renewal stage. When no such assessment of aquatic impacts is available from the permitting authority, NRC will establish on its own, or in conjunction with the permitting authority and other agencies having relevant expertise, the magnitude of potential impacts . . .

in its determination of whether the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decision-makers would be unreasonable at the license renewal stage.

22 See also New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 98 (1st Cir. 1978) (holding that the NRC did not shirk its NEPA duties but rather obeyed its [Clean Water Act] duties by deciding to accept as dispositive EPA determinations concerning the aquatic impact of Seabrook Nuclear Plants once through cooling system); Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 N.R.C. 702, 712-13, 715 (1978) (holding that that Federal licensing agencies are not to second-guess EPA by undertaking independent analyses.).

23 Section 316(a) of the Clean Water Act, 33 U.S.C. § 1326(a), allows an NPDES permitting agency to impose thermal effluent limitations in an NPDES permit based on a determination that the thermal component of the discharge will assure the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife in and on the receiving body of water. Section 316(b) of the Clean Water Act, § 316(b), requires that the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts.

11

10 C.F.R. § 51.71 n.3 Pursuant to 10 C.F.R. § 51.53(c)(3)(ii)(B), sections 4.2 and 4.3 of the ER (addressing entrainment and impingement, respectively) identified Pilgrims Joint Discharge Permit as the current Section 316(b) determination, quoting the Joint Discharge Permit, which provides:

It has been determined based on engineering judgment that the circulating water intake structures [sic] presently employs the best technology available for minimizing adverse environmental impact. Any change in the location, design, or capacity of the present structure shall be approved by the Regional Administrator and the Director. The present design shall be reviewed for conformity to the regulations pursuant to Section 316(b) of the Act when such are promulgated.

ER at 4-8. See Joint Discharge Permit, ¶ A.1(i). The ER specifically identified this permit as having been issued in 1994 (ER at 4-8) and stated explicitly, Because Entergy submitted a timely application for renewal of the PNPS NPDES Permit, the 1994 permit and its Section 316(b) determination remain in effect. ER at 4-9. In addition, the ER identified a new combined Section 316 report evaluating more than 25 years of entrainment and impingement data (see ER at 4-8), which Entergy summarized in 2.2 of the ER and provided to the NRC Staff during its environmental audit.24 Similarly, Section 4.4 of the ER, addressing heat shock, identified the Section 316(a) variance reflected in the NPDES thermal discharge limits, and again identified the new combined Section 316 report as evaluating more than 25 years of data on potential thermal impacts. ER at 4-12. Once more, the ER stated, As noted previously, Entergy has submitted a timely application for renewal of the PNPS NPDES Permit. The current NPDES Permit (provided in Attachment A) and its Section 316(a) variance therefore remain in effect. Id.

24 Summary of Environmental Site Audit Related to Review of the License Renewal Application for Pilgrim Nuclear Station (July 25, 2006), Encl. 2, p. 2 (available at ADAMS Accession No. ML062070305).

12

Pilgrim Watchs May 25, 2006 hearing requests (supra note 9) included no contentions challenging these sections of the ER. JRWA did not submit any hearing request.

Based on the joint U.S. EPA and MDEP determination in the Joint Discharge Permit, in conjunction with the combined Section 316 report, other supporting documentation, and consultation with the EPA and Commonwealth permitting agencies, the NRC Staff performed an extensive assessment of the impacts of entrainment, impingement, and heat shock in Sections 4.1.1 to 4.1.3 of the DSEIS and FSEIS. DSEIS at 4-10 to 4-38; FSEIS at 4-10 to 4-43. Neither Pilgrim Watch nor JRWA sought to raise any new contentions challenging this assessment.

III. Applicable Legal Standards for Reopening the Record, Late Contentions, and Admissible Contentions The NRC does not look with favor on amended or new contentions filed after the initial filing. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631, 638 (2004). As the Commission has repeatedly stressed, our contention admissibility and timeliness rules require a high level of discipline and preparation by petitioners who must examine the publicly available material and set forth their claims and the support for their claims at the outset. There simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and 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. Our expanding adjudicatory docket makes it critically important that parties comply with our pleading requirements and that the Board enforce those requirements.

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C.

235, 271-72 (2009) (emphasis added) (citations omitted).

Where, as here, the adjudicatory record has been closed, the Commissions rules specify that a motion to reopen that record to consider additional evidence - including evidence on a new 13

contention (see 10 C.F.R. § 2.326(d)) - will not be granted unless the following criteria are satisfied:

(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

10 C.F.R. § 2.326(a). Further, under the NRC rules, The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.

10 C.F.R. § 2.326(b) (emphasis added). All of the factors in section 2.326 must be met in order for a motion to reopen to be granted. Pilgrim, CLI-12-03, slip op. at 15.

Further, the Commission repeatedly has emphasized that [t]he burden of satisfying the reopening requirements is a heavy one. Oyster Creek, CLI-09-7, 69 N.R.C. at 287 (citing Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N.R.C. 1, 5 (1986)). [P]roponents of a reopening motion bear the burden of meeting all of [these]

requirements. Id. (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-90-10, 32 N.R.C. 218, 221 (1990)). Bare assertions and speculation . . . do not supply the requisite support. Id. (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. 658, 674 (2008)). Evidence contained in the Section 2.326(b) affidavits must meet the admissibility standards in 10 C.F.R. § 2.337. Entergy Nuclear 14

Generation Co. (Pilgrim Nuclear Power Station), CLI-12-06, 75 N.R.C. __, slip op. at 18 (Mar.

8, 2012) (CLI-12-06). In other words, the evidence must be relevant, material, and reliable.

Id.

In addition, where a motion to reopen relates to a contention not previously in controversy, that motion to reopen must also satisfy the standards for non-timely contentions in 10 C.F.R. § 2.309(c). 10 C.F.R. § 2.326(d); Pilgrim, CLI-12-03 at 9.25 Section 2.309(c) provides that non-timely contentions will not be entertained, absent a determination by the Board that the contentions should be admitted based upon a balancing of the following factors:

(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.

10 C.F.R. § 2.309(c)(1).

In keeping with the Commissions disfavor of contentions after the initial filing, these factors are construed as stringent. Oyster Creek, CLI-09-7, 69 N.R.C. at 260, citing Florida 15

Power & Light Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2, et al.), CLI-06-21, 64 N.R.C. 30, 33 (2006). Late petitioners properly have a substantial burden in justifying their tardiness. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C.

273, 275 (1975).

Commission case law places most importance on whether the petitioner has demonstrated sufficient good cause for the untimely filing. Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2), CLI-10-12, 71 N.R.C. 319, 323 (2010); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-02, 51 N.R.C. 77, 79 (2000); Millstone, CLI-09-5, 69 N.R.C. at 125. Indeed, failure to demonstrate good cause requires the petitioner to make a compelling showing with respect to the other factors. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 N.R.C. 156, 165 (1993). In other words, A petitioners showing must be highly persuasive; it would be a rare case where

[the Commission] would excuse a non-timely petition absent good cause.

Watts Bar, CLI-10-12, 71 N.R.C. at 323 (footnote omitted).

Finally, any new contention must also satisfy the strict standards for admissibility in 10 C.F.R. § 2.309(f)(1). These standards also are enforced rigorously. If any one . . . is not met, a contention must be rejected. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2, and 3), CLI-91-12, 34 N.R.C. 149, 155 (1991) (citation omitted); USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 N.R.C. 433, 437 (2006) (These requirements are deliberately strict, and we will reject any contention that does not satisfy the requirements.

(footnotes omitted)). A licensing board is not to overlook a deficiency in a contention or assume the existence of missing information. Palo Verde, CLI-91-12, 34 N.R.C. at 155; Oyster Creek, 25 See also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 N.R.C.

115, 125 (2009); Oyster Creek, CLI-08-28, 68 N.R.C. at 668.

16

CLI-09-7, 69 N.R.C. at 260 (the contention admissibility rules require the petitioner (not the board) to supply all of the required elements for a valid intervention petition (emphasis added)

(footnote omitted)).

IV. PW/JRWAs Claims are Untimely and Baseless Before addressing the reopening standards, it is first necessary to define what it is that PW/JRWA are contending. This is not clear, because the Motion fails to set forth with particularity the contention[] sought to be raised, as required by 10 C.F.R. § 2.309(f)(1), and to include a specific statement of the issue of law or fact to be raised or controverted, as required by 10 C.F.R. § 2.309(f)(1)(i). Nowhere in the Motion is there any clear statement of the contention, and PW/JRWAs Specific Statement of Law and Facts is eleven rambling pages. See Motion at 5-16. This failure alone is sufficient grounds to deny the Motion.

Nevertheless, Entergy has endeavored to make some sense of the Motion, and to that end surmises that PW/JRWAs principal, but incorrect, claim is that Entergy lacks three approvals that PW/JRWA assert are prerequisites to license renewal (Motion at 4): (1) a valid consistency determination under the CZMA, (2) a valid certification under Section 401 of the Clean Water Act, and (3) a current variance and determination under sections 316(a) and 316(b) of the Clean Water Act. Motion at 2. Further, this claim appears predicated on seven subsidiary allegations that: (a) Entergy does not have a Commonwealth permit to operate its cooling water intake structure (CWIS); (b) Entergy is illegally discharging Tolyltriazole, a corrosion inhibitor; (c)

Entergy is violating provisions in its NPDES permit requiring an annual biological monitoring plan; (d) Entergy does not have a permit to discharge radioactive effluent; (e) Entergy is violating a ban on killing river herring; (f) Federal Endangered Species Act issues have not been 17

addressed, and (g) consultation under the Magnuson-Stevens Fishery Conservation and Management Act has been improperly postponed. Motion at 2-3, 16.26 As discussed below, the principal claim, and each of the subsidiary allegations, are untimely, ultra vires in many significant respects, and baseless. Because the principal claim relies on these seven subsidiary allegations, the subsidiary allegations will be addressed first.

A. The Subsidiary Allegations Are Baseless and Untimely

1. Commonwealth Permit for CWIS PW/JRWA inaccurately allege that Pilgrim does not have a Commonwealth permit to operate its cooling water intake structure (CWIS). Motion at 2. As the highest court in Massachusetts has observed, Pilgrim holds a permit last jointly issued by the U.S. EPA and MDEP on April 21, 1991 (as modified on August 30, 1994 and otherwise) authorizing discharges from the plant. Entergy v. MDEP, 459 Mass. at 321. This permit expressly and necessarily authorizes the current intake structure. Joint Discharge Permit, ¶ A.1.i (It has been determined that the circulating water intake structures presently employs [sic] the best technology available for minimizing adverse environmental impact). Because Entergy submitted complete and timely applications to both the U.S. EPA and MDEP for renewal of the Joint Discharge Permit,27 26 The caption of the Motion also suggests that PW/JRWA is claiming a NEPA violation, but the section of the Motion entitled Specific Statement of Law and Fact: § 2.309(f)(1)(i) nowhere mentions any NEPA issue. The Executive Summary asserts that, [d]ue to the environmental impacts of the failure to comply with state and federal environmental permitting and approval requirements as set forth in above, the PNPS . . . environmental impact statement is incomplete and must be supplemented. Motion at 3. However, the Motion never explains how any of the allegations concerning required permits would alter any of the findings in the FSEIS concerning the type or magnitude of environmental impacts from continued operation. Nowhere is there any demonstration, or even suggestion, that any of the principal or subsidiary allegations is resulting in environmental impacts that will paint a seriously different picture of the environmental impact of the proposed project from what was previously envisioned, which is the standard for supplementing an EIS. See Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), LBP-12-10, 75 N.R.C. __, slip op. at 29 (May 24, 2012) (LBP-12-10).

27 See Affidavit of Jacob J. Scheffer in Support of Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Related to Water Related Approvals (June 8, 2012) (Scheffer Affidavit), ¶¶ 6-7 (Exhibit F hereto). Both the EPA and MDEP have acknowledged the receipt and completeness of these applications. Id.

18

that permit remains in force and effect. ER at 4-9. See 5 U.S.C. § 558(c) (When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.); Mass. Gen. Laws ch. 30A § 13 (If a licensee has, in accordance with any law and with agency regulations, made timely and sufficient application for a renewal, his license shall not expire until his application has been finally determined by the agency.) (emphasis added); see also Entergy v. MDEP, 459 Mass. at 321 n.7 (Although the permit expired in 1996, it continues in force until a new permit is issued) (emphasis added).

Although PW/JRWA never explain why they contend that Entergy lacks a permit for the CWIS, perhaps they misinterpret Massachusetts regulations as imposing some new permitting requirement. In its April 4, 2012 letter to OCZM challenging the validity of the CZMA consistency determination, PW/JRWA alleged that Entergy has not demonstrated compliance with MassDEPs 2006 cooling water intake structure water quality standards. . . . See Exhibit B, Att. 1 at 3. The 2006 rule to which PW/JRWA referred, however, did not create any new requirements, as both the MDEP and Massachusetts Supreme Court have indicated. As the Massachusetts Supreme Court has held, MDEPs new regulations go no further than declaring that the department has the authority to regulate CWISs. Entergy v. MDEP, 459 Mass. at 327. Further, the Department has explained that it currently exercises this authority through the Joint Discharge Permit. Id. at 326 (the department claims that, through a provision in Pilgrims joint permit, it has always regulated Pilgrims CWIS.). Thus, these new regulations do not trigger any need for modifications to Pilgrims CWIS or to the Joint Discharge Permit.

Id. at 324-25 (The parties are not contemplating any modifications to Pilgrim's CWIS or permit 19

that would trigger new oversight by the department.); see also id. at 326 ([B]y the department's own characterization of its past oversight, Entergy faces not the prospect of future regulation, but the continuation of existing regulation.).

Thus, PW/JRWAs allegation that Pilgrim lacks a Commonwealth permit to operate its CWIS is without merit. Indeed, the Motion does not contain any support whatsoever for this allegation. Further, the allegation is clearly untimely. Any claim concerning the sufficiency and effectiveness of the Joint Discharge Permit (to the extent material to the NRC findings) could have been brought at the outset of this proceeding, or, if based on the Commonwealths CWIS regulations, in 2006.

2. Discharge of Tolyltriazole PW/JRWA inaccurately allege that Pilgrim is violating the Clean Water Act and Commonwealth law because it has been discharging the corrosion inhibitor Tolyltriazole.

Motion at 3, 8. On June 30, 1995, the U.S. EPA approved the use of Tolyltriazole in various Pilgrim systems, including discharge limits for planned releases. (Exhibit G) As previously demonstrated in response to the seventh motion to reopen, the occasional discharge of this corrosion inhibitor has been in diluted concentrations well below USEPA approved limits.28 Thus, PW/JRWAs position is without merit.

Further, PW/JRWA acknowledge that these discharges have been occurring since 1995, so this allegation too could have been brought at the outset of this proceeding if PW/JRWA had made any attempt to review the Discharge Monitoring Reports available from the U.S. EPA or the Commonwealth. Again, therefore, PW/JRWAs claim is obviously and fatally untimely.

28 Affidavit of Jacob J. Scheffer in Support of Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen Hearing Request on Contention Related to the Roseate Tern (May 16, 2012), ¶ 19.

20

3. Annual Biological Monitoring Program PW/JRWA also inaccurately allege that Entergy is violating provisions in the Joint Discharge Permit requiring submittal of biological reports and monitoring plans. Motion at 9-10.

Section 8.d of the Joint Discharge Permit (not ¶8.c as PW/JRWA assert) requires annual submission for approval of any revisions to the existing biological monitoring program.

Section 8.e of the Joint Discharge Permit requires submittal of biological monitoring reports on a semi-annual basis including an annual summary report. Pilgrim has complied with both these provisions.29 Scheffer Affidavit, ¶¶ 4-5.

Further, PW/JRWA point to no new information that would make its unfounded claims of noncompliance timely. Instead, they assert (inaccurately and without basis) that Entergy has not been complying with these provisions for about 10 years. Motion at 10. Such a claim is obviously and fatally untimely.

4. Discharge of Radioactivity PW/JRWA inaccurately allege that Pilgrim does not have a Commonwealth permit to discharge radioactive effluent. Motion at 2, 8. First, the discharge of radioactive effluent is regulated exclusively by the NRC. Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1154 (8th Cir. 1971), affd 405 U.S. 1035 (1972). Second, the Joint Discharge Permit expressly acknowledges as much by allowing discharge of radioactive materials in accordance with NRC regulations and the NRC operating license for Pilgrim. Joint Discharge Permit, ¶ A.1.l (The 29 A number of these reports, collected by the NRC Staff during its environmental review, are available on ADAMs as examples. See, e.g., Marine Ecology Studies, Pilgrim Nuclear Power Station, Report No. 67 (Report Period:

January 2005- December 2005 (April 30, 2006) (available at ADAMS Accession No. ML062010482); Marine Ecology Studies, Pilgrim Nuclear Power Station, Semi-Annual Report No. 66 (Report Period: January 2005 through June 2005) (Oct. 30, 2005) (available at ADAMS Accession No. ML061420123); Marine Ecology Studies, Pilgrim Nuclear Power Station, Report No. 65 (Report Period: January 2004 - December 2004) (April 30, 2005) (available at ADAMS Accession No. ML061420174); Marine Ecology Studies, Pilgrim Nuclear Power 21

discharge of radioactive materials shall be in accordance with the Nuclear Regulatory Commission operational requirements (10 CFR 20 and NRC Technical Specifications set forth in facility operating license, DPR-35).).

Further, neither Pilgrim Watch nor JRWA can claim to have been unaware of the discharge of radioactive effluent (acknowledged in the Joint Discharge Permit), so this allegation is not only inaccurate but also clearly and fatally untimely.

5. Endangered Species Act Issues Rehashing their sixth and seventh motions to reopen, PW/JRWA inaccurately allege that Endangered Species Act issues have not been resolved. Motion at 2. With respect to endangered marine species, this Board has ruled that all of PW/JRWAs claims other than those pertaining to the recently listed Atlantic sturgeon are nearly six years late (LBP-12-10 at 25-26),30 that the NRC Staff fully satisfied its obligations under the Endangered Species Act by determining that license renewal would have no effect on these species (id. at 29), and that, in any event, any argument that consultation is incomplete has been rendered moot by NMFSs May 17, 2012 letter (id. at 34). That letter concludes that: all effects to listed species will be insignificant or discountable and the continued operation of Pilgrim under the terms of a renewed operating license is not likely to adversely affect any listed species under NMFS jurisdiction. Id. at 3-4.

Station, Semi-Annual Report No. 56 (January - June 2000) (Oct. 31, 2000) (available at ADAMS Accession No. ML003770601).

30 While the claim concerning Atlantic Sturgeon may have been timely when PW/JRWA filed their March 8, 2012 motion to reopen on Endangered Species Act issues, PW/JRWA provide no explanation why this claim is still timely two months later in support of its current Motion.

22

With respect to the roseate tern, Entergy and the NRC Staff have previously explained31 in response to PW/JRWAs seventh motion to reopen that the NRC discharged its responsibilities by: (1) consulting with the U.S. Fish and Wildlife Service, which communicated to the NRC that license renewal for PNPS is not likely to adversely affect federally-listed species subject to the jurisdiction of the [FWS], and that formal consultation with [FWS] is not required(FSEIS at E-9, E-12); and (2) concluding by itself that the roseate tern is unlikely to be affected during the renewal period (FSEIS at 4-64 to 4-65).32 In addition, for the reasons set forth in the answers to the seventh motion to reopen, any challenge to the sufficiency of the NRCs consultation with respect to the roseate tern could have been raised six years ago. Therefore, it is obviously and fatally untimely.

6. River Herring Moratorium PW/JRWA inaccurately allege that Pilgrim is violating a Commonwealth ban on killing river herring. Motion at 2, 15. Massachusetts moratorium is a restriction placed only on recreational and commercial fishing and therefore has no applicability to Pilgrim.33 Further, all credible scientific evidence in this proceeding establishes that continued operation of PNPS 31 Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Related to the Roseate Tern (May 16, 2012); NRC Staff's Answer to Jones River Watershed Association and Pilgrim Watch's Motion to Reopen the Record and Request for a Hearing with Regard to the Roseate Tern (May 16, 2012).

32 PW/JRWA have asserted that the FSEIS cannot serve as a Biological Assessment. Jones River Watershed Association and Pilgrim Watch Reply to Answers of NRC Staff and Entergy Opposing Petitions/Motions to Reopen, Intervene and for Hearing on Roseate Tern Contention (May 23, 2012) at 2-3. But, as the Board has noted, a Biological Assessment is required only [w]here the acting agency is engaged in major construction activities. LBP-12-10 at 8 & n.42. Here, where no new facilities or expansion of existing facilities are planned, renewal of Pilgrims operating license does not constitute such major construction activities.

33 The moratorium referenced by PW/JRWA, entitled Taking and Possession of River Herring in Waters under the Jurisdiction of the Commonwealth, is enforced by the Massachusetts Department of Marine Fisheries (MDMF). See MDMF, Marine Fisheries Regulation Summaries (July 2011), available at:

http://www.mass.gov/dfwele/dmf/commercialfishing/reg_summary_062411.pdf (summarizes fishing regulations administered by MDMF). Importantly, and as PW/JRWA fail to mention, the specific statute that authorizes MDMF (Mass. Gen. Laws ch. 130 § 17A) allows MDMF to promulgate regulations governing fishing activities, not power plants. See Mass. Gen. Laws ch. 130 § 17A.

23

would have no discernible effect on river herring.34 In addition, as PW/JRWA note, this moratorium was adopted in 2006; so even if it were relevant (which it is not), any claims concerning it are six years late.

PW/JRWA also assert that River Herring was listed as a candidate species under the ESA in November 2011 (Motion at 15), a matter PW/JRWA previously raised in its sixth motion to reopen. The Board already has ruled that this claim was inexcusably untimely and presented no adjudicable issue because the designation as an endangered or threatened species has not occurred. LBP-12-10 at 27. See also id. at 32-33.

7. Essential Fish Habitat PW/JRWA inaccurately allege that consultation under the Magnuson-Stevens Fishery Conservation and Management Act has been improperly postponed. Motion at 16. The Board has already rejected this claim. Challengers err in their claim that the MSA consultation process is incomplete. . . . Since NRC and NMFS agree that the consultation is complete, the requirements of the MSA have been fulfilled, and NRC has no further obligation LBP-12-10 at 34 (footnote omitted).

Further, the Board has found this claim to be untimely. Years have elapsed since the communication from NMFS to NRC that Challengers say defer[red] the EFH Assessment to the EPA NPDES permit renewal process. Id. at 26-27 (footnote omitted).

34 See, e.g., Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request (Mar. 19, 2012), Affidavit of Michael D. Scherer at ¶¶ 71-73, 82.

24

B. The Principal Claims Are Equally Untimely and Baseless

1. CZMA Claims PW/JRWA inaccurately allege that Pilgrim does not have a valid consistency determination under the Coastal Zone Management Act (CZMA). Motion at 2, 10.

PW/JRWA cannot deny that Pilgrim obtained a consistency determination from OCZM in support of license renewal. Pilgrim obtained this consistency determination from OCZM on July 11, 2006, and it is included in the FSEIS. See FSEIS at E-19. The NRC may conclusively rely on the federal law effect of the State agency consistency concurrence.35 Once OCZM provided its consistency concurrence, [t]he CZMA does not allow States to re-review the same activity.36 Further, OCZMs February 29, 2012 letter (ADAMS Accession No. ML12081A015) confirms that its consistency determination remains valid, and OCZMs May 21, 2012 letter (Exhibit B) rejects PW/JRWA claims that the consistency determination is invalid.

Significantly, OCZM specifically considered and rejected PW/JRWA claims that relicensing will violate its Water Quality Policy #1 and Habitat Policy #1 the very same claims that PW/JRWA now make in the Motion. Compare Exhibit B, Att. 1 (April 4, 2012 Letter from PW/JRWA to OCZM) with Motion at 12-13. In particular, OCZM concluded:

[O]CZM has thoroughly reviewed both letters and conducted an assessment and analysis of the arguments and information contained in each. As a result of our 35 In City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006), the State of Washingtons agency responsible for issuing CZMA concurrences, Ecology, issued a somewhat equivocal concurrence that a state court subsequently held had been issued in violation of state administrative law. See City of Tacoma, 460 F.3d . at 69-

70. In the meantime, FERC issued the applicant its license in reliance on the invalid state concurrence. The D.C.

Circuit, rejecting a challenge to the license under the CZMA, explained that the question at issue before FERC was only the federal-law effect of Ecologys letter stating its concurrence. Id. at 70 (emphasis added). That a state court later determined that the concurrence was invalid as a matter of state law was immaterial.

36 65 Fed. Reg. 77,140 (Dec. 8, 2000); see also 15 C.F.R. § 930.51(b) (absent a relevant change of the state coastal management program or coastal effects substantially different than those originally reviewed, no CZMA review of license renewal is required if the activities proposed by the permit applicant were previously reviewed by the State agency). Indeed, limiting state re-review is so integral to the CZMA, that NOAA repeats this proposition throughout its regulations. See, e.g., 15 C.F.R. § 930.65 (providing for additional review of previously reviewed activities only where coastal effects are substantially different than originally described).

25

review, [O]CZM does not believe that supplemental coordination for our consistency certification for the NRC license is warranted at this time, as there have been no substantial changes in the proposed license activity, and the proposed license activity will not affect coastal uses or resources in a manner substantially different than originally described. Specifically, we do not find that there are significant new circumstances or information regarding the proposed license activities or its consistency with Water Quality Policy #1 and Habitat Policies #1-2 and their underlying state authorities as they were in effect for

[O]CZMs concurrence of the 2006 consistency certification.

Exhibit B at 2-3. Under the CZMA, it is not NRCs role to second-guess OCZMs substantive judgments about consistency of a proposed federal action with its approved coastal management program.37 Further, PW/JRWAs claim that the CZMA consistency determination is invalid is based entirely on the subsidiary allegations discussed above (see Motion at 12-16), none of which are timely or accurate.38 Indeed, the CZMA consistency determination itself was published in the FSEIS, and any claim to its validity thus could have been brought five year ago. As such, PW/JRWAs claim is obviously and fatally untimely.

37 NOAAs regulations provide that the designated State agency [here the MCZM Office] is required to uniformly and comprehensively apply the enforceable policies of the States management program. 15 C.F.R. § 930.6(a).

[O]nly the State agency is authorized to . . . determine the consistency of a proposed federal assistance activity. 15 C.F.R. § 930.6(b)(emphasis added). The State agency concurrence is not subject to NRC review, and may be relied upon conclusively by NRC to establish compliance with the CZMA Consistency Requirement.

See, e.g., City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006).

38 Indeed, even a cursory review of the four declarations submitted by PW/JRWA reveals a lack of any relevant facts to support a claim for further CZMA review. The Bingham Declaration offers an opinion that it is virtually impossible that a new NPDES permit for Pilgrim will be issued by June 2012. The Mansfield declaration alleges a lack of certain data within Entergys December 2006 Biological Assessment on the topic of North Atlantic Right Whale sightings, and points to impingement of river herring at Pilgrim which, in Mansfields view, is not adequately addressed by the FSEIS for Pilgrim. The duBois Declaration complains about a lack of new information she deems necessarylike a new NPDES permit for Pilgrim to replace its current valid NPDES permit. The Nisbet Declaration notes the presence of roseate terns near Pilgrim, and their reliance on small marine fish for food supply. Nisbet criticizes the United States Fish and Wildlife Service for not having identified the potential adverse effect on roseate tern food supply. None of the four declarations allege that there have been changes in the License Renewal Application for Pilgrim that will cause coastal effects substantially different from those previously considered by the OCZM. Thus, all are utterly irrelevant to the issue of whether the 2006 OCZM consistency concurrence should be reconsidered.

26

2. 401 Certification PW/JRWA inaccurately allege that Pilgrim does not possess a valid Commonwealth 401 certification. Motion at 2. To the contrary, there are multiple 401 certifications in place for Pilgrim. Entergys ER provided two such certifications, neither of which contains an expiration date. ER, Att. A. In addition, the Joint Discharge Permit both necessarily includes and also is supported by a 401 certification dated July 8, 1994 (Exhibit E), which certifies that the conditions in this current permit governing current discharge will achieve compliance with sections 208(e), 301, 302, 303, 306 and 307 of the Federal Clean Water Act and with the provisions of the Massachusetts Clean Water Act. In its February 29, 2012 letter (supra note 11) and May 21, 2012 letter (Exhibit B) confirming the continued validity of the July 11, 2006 CZMA consistency determination obtained for Pilgrim license renewal (which includes the determination that discharges and withdrawals do not compromise water quality standards39),

OCZM confirmed the Commonwealths continued reliance on the effective Joint Discharge Permit and the supporting July 8, 1994 Section 401 certification.

In view of this record of multiple, consistent certifications, PW/JRWA never explain why any of these certifications is invalid. Specifically, the Motion does not cite any statutory provision, rule, or decision supporting such a claim, or provide any analysis whatsoever. While PW/JRWA assert that two of the prior Section 401 certifications are old, it offers no legal bases for circumventing or rejecting that the clear CWA Section 401 language authorizing use of these 39 As PW/JRWA acknowledge (Motion at 12), the Commonwealths Water Quality Policy #1 is to Ensure that point-source discharges and withdrawals in or affecting the coastal zone do not compromise water quality standards and protect designated uses and other interests. OCZM Policy Guide at 92. Further, 16 U.S.C.

§1456(f) provides that [The CWA] requirements shall be incorporated in [State coastal management programs]

and shall be the water pollution control requirements applicable to such program. OCZMs finding that the activity as proposed is consistent with CZM enforceable program policies (see FSEIS at E-19) thus constitutes a determination by the Commonwealth that the discharges resulting from Pilgrim license renewal will comply with 27

prior certifications (which include relevant safeguards for the passage of time). 33 U.S.C. § 1341(a)(3). Indeed, Section 401(a)(3) provides a State with an opportunity to inform the licensing agency that the prior certification may no longer be relied upon, an opportunity that the Commonwealth did not take up here. Thus, and importantly, there is no reason to construe MDEPs silence as any thing other than support for the current, effective nature of its prior certifications. Keating v. FERC, 927 F.2d 616, 622-23 (D.C. Cir. 1991) (FERC was required to accept an earlier certification obtained in connection with construction-related permit from the Army Corps of Engineers, if such certification has not been properly revoked). The Commonwealth chose to issue these certifications without expiration date and has provided no indication that they may no longer be relied upon.40 In any event, Entergy is not just relying on the certifications obtained in connection with the construction and initial operation of the plant, but also on the Joint Discharge Permit and the explicit certification (Exhibit E) that the conditions in this current permit governing discharge will achieve compliance with the CWA as well as the provisions of the Massachusetts Clean Water Act. Reliance on this permit and the supporting certification is consistent with the NRCs long-standing position. By virtue of Section 511(c)(2), the NRC has no authority to question the adequacy of this certification.41 CWA requirements and water quality standards. For this reason, the CZMA consistency determination may also be accepted as satisfying Section 401.

40 As previously discussed, Entergy also submits that it has the right to rely on a prior certification obtained with respect to operations, where (as here) the State has chosen to issue such a certification without an expiration date or other conditions requiring reopening. See supra note 15.

41 The Motion includes a few other assertions concerning 401 certification that make it difficult to discern what PW/JRWA are attempting to claim. PW/JRWA state that A valid § 401 certificate is required for a valid NPDES permit. Motion at 18. As previously stated, the Joint Discharge Permit is supported by a 401 certification, and the NRC has no authority to question its validity. PW/JRWA also allege inaccurately that Entergy relied on April 15, 1971 and July 31, 1970 certifications to meet 10 C.F.R. § 51.53(c)(3)(ii)(B). Motion at 7. Entergy did not rely on any 401 certifications to provide an assessment of the impacts covered by this Section. See ER, §§ 4.2 - 4.4.

28

3. 316(a) and 316(b) Determinations PW/JRWA inaccurately assert that [i]n order to be relicensed, Entergy must demonstrate that it has a current 316(a) variance and 316(b) determination. Motion at 7, citing 10 C.F.R. § 51.53(c)(3)(ii)(B). This section of the NRC rules does not make such Section 316(a) and (b) documentation a prerequisite to license renewal, but instead merely allows an applicant to provide such documentation in its ER lieu of an assessment of entrainment, impingement, and heat shock. See Vermont Yankee, CLI-07-16, 65 N.R.C. at 384-85 (A licensee may satisfy [the Section 51.53(c)(3)(ii)(B)s] requirements in either of two ways). As the Commission has explicitly held, the NRC simply does not require a licensee to possess [an NPDES] permit.

Millstone, CLI-04-36, 60 N.R.C. at 638-39 (affirming ruling that a contention alleging that a license renewal applicant lacked a valid NPDES permit was outside the scope of the license renewal proceeding and the jurisdiction of the Licensing Board).

In any event, PW/JRWAs claim that Entergy could not rely on an expired NPDES permit (see Motion at 8, 19, 38), which PW/JRWA admit covers both 316(a) and 316(b) requirements (Motion at 7 n.5), misinterprets the NRC rules. The reference in Section 51.53(c)(3)(ii)(B) to a current Section 316(a) variance and 316(b) determination must be interpreted as referring to such variances and determinations that are currently in effect, because this section of the rules is intended to implement Section 511(c)(2) of the Clean Water Act, which precludes [the NRC] from either second-guessing the conclusions in NPDES permits or imposing our own effluent limitations - thermal or otherwise. Vermont Yankee, CLI-07-16, 65 N.R.C. at 377. The NRC has no jurisdiction to declare that an NPDES permit is invalid (Millstone, CLI-04-36, 60 N.R.C. at 639) and under Section 511(c)(2), no authority to reject the 316(a) and (b) determinations in such a permit. Vermont Yankee, CLI-07-16, 65 N.R.C. at 387 29

(Section 511(c)(2) of the Clean Water Act does not give us the option of looking behind the agencys permit to make an independent determination as to whether it qualifies as a bona fide Section 316(a) determination.). Further, in the specific context of compliance with Section 51.53(c)(3)(ii)(B), the Commission in Vermont Yankee specifically accepted reliance on an NPDES permit that had expired but remained in effect under the timely renewal doctrine. See Vermont Yankee, CLI-07-16, 65 N.R.C. at 378-79.

Moreover, PW/JRWAs focus on Section 51.53(c)(3)(ii)(B) governing the content of an ER is at this juncture misplaced. As the Commission has explained, the ultimate issue in determining NEPA compliance is the adequacy of the Staffs environmental review, not the applicants Environmental Report. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 N.R.C. __, slip op. at 30 (Feb. 9, 2012). Here, the NRC Staffs FSEIS includes its assessment of the impacts of entrainment, impingement, and heat shock (FSEIS, §§ 4.1.1 - 4.1.3), which PW/JRWA nowhere challenge. And finally, even if the question of the sufficiency of Pilgrims ER (submitted in January 2006) were still germane, any such question is six years late.

V. The Motion Does Not Meet the Reopening Standards A. The Motion Is Not Properly Supported by Affidavits At the outset, the Motion is not supported by an affidavit addressing each of the criteria of 10 C.F.R. § 2.326(a) and explaining why each has been met, as required by 10 C.F.R. § 2.326(b). As this Board has previously held, the failure of the affidavits to specifically address the reopening criteria is a flaw fatal to the admissibility of the entirety of [the contention].

LBP-12-10 at 24.

30

PW/JRWA do not provide any affidavit supporting the current Motion, but instead rely merely on affidavits previously provided in support of the sixth and seventh motions to reopen (relating to Endangered Species Act issues), along with a table purporting to show where the 10 C.F.R. § 2.326(a) criteria are addressed in those affidavits. See Motion at 23. However, the prior affidavits of Mansfield, duBois, and Bingham, submitted with the sixth motion to reopen, do not even mention the Section 2.326(a) criteria. The Nisbet Affidavit, previously submitted with the seventh motion to reopen and limited to the roseate tern, does not address the timeliness criterion and includes only a conclusory, unexplained assertion that the roseate tern contention raises a significant environmental issue, and that a materially different result would be likely.

Nisbet Aff. at ¶ 21. Such bare assertions are insufficient to meet the requirements of Section 2.326. Oyster Creek, CLI-09-7, 69 N.R.C. at 287. Further, none of these affidavits relate to the principal claims raised in the current Motion.

In addition, this Board has rejected PW/JRWAs attempt to use a table to rehabilitate the failure of their affidavits to address the 10 C.F.R. § 2.326(a) criteria. LPB-12-10 at 24. The Board observed:

[E]ven had we accepted the concept that such a reference table could, as a matter of substance over form, salvage the affidavits and overcome binding holdings of the Commission requiring the criteria be explicitly satisfied, we find that that the cited portions of the affidavits do not themselves address (and therefore do not satisfy) the requirements of section 2.326(b).

Id. Other than the conclusory assertion at the end of the Nisbet declaration - which is limited to the roseate tern, does not support the current Motion and Contention, and is patently insufficient

- the Boards observation remains true.

31

B. The Motion Is Not Timely PW/JRWA does not demonstrate that the Motion is timely, as required by 10 C.F.R. § 2.326(a)(1). As shown in Section IV of this Answer, every one of the principal claims and subsidiary allegations raised in the Motion are untimely. Indeed, the Motion does not appear to claim otherwise. Instead, PW/JRWA argue that the motion to reopen is not required to meet the timeliness requirement because its contention by definition raises exceptionally grave issues.

Motion at 3, 22.

When promulgating the exceptionally grave standard to consider untimely claims, the Commission made clear that exceptionally grave means that an in issue presents a sufficiently grave threat to public safety.42 The Licensing Board has found this standard legally binding.

LBP-12-10 at 29. Nothing in the Motion or any of the affidavits purports to raise any safety issue, let alone any exceptionally grave issue.

Alternatively, PW/JRWA argue that that Entergy and the NRC are estopped from raising timeliness objections because Petitioners reasonably relied on statements of federal and state regulators to do their jobs to evaluate whether Entergy was actually in compliance with environmental laws prior to relicensing, instead of rubber-stamping its application. Motion at 31-32. This argument impermissibly ignores the standard governing timeliness in the NRC rules, which requires a showing that a new contention is based on information not previously available. 10 C.F.R. § 2.309(f)(2). If this argument were accepted, the standard in the NRC rules would be rendered meaningless, because any proponent of a late contention disagreeing with NRC licensing decisions could make a similar claim. Moreover, this argument presupposes 42 Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986), quoting Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358, 365 n.10 (1973).

32

the merit of PW/JRWAs allegations, which as previously discussed are unsupported and wrong.

Indeed, PW/JRWAs reference to NRCs wholesale failure to exercise due diligence (Motion at 21) and suggestion that numerous federal and state regulations have rubber-stamped the application rather than doing their jobs (Motion at 31) is simply bunk. The Commission has previously rejected as frivolous a petitioners claim that the NRC Staffs acceptance of an applicants position constituted fraud, deceit and cover-up. See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-06-04, 63 N.R.C. 32, 36-37, 38 (2006). PW/JRWAs claims are of the same ilk.43 Further, the Commission found such allegations insufficient as a premise for an untimely motion to reopen. Id. at 37.

C. The Motion Does Not Address a Significant Issue The Motion does not address a significant issue, as required by 10 C.F.R. § 2.326(a)(2).

As this Board has held, the Commission has delineated the standard for when an environmental issue is significant for the purposes of reopening a closed record, equating it to the standards for when an environmental impact statement is required to be supplemented. There must be new and significant information that will paint a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. LBP-12-10 at 29. Here, PW/JRWA do not identify any new information, and they do not demonstrate that any of the 43 PW/JRWAs Motion is replete with personal attacks on NRC at its staff: Entergy and the NRC kept silent . . .

Both disregarded obligations to supplement the CZM consistency report. . . [PW/JRWA] relied to their detriment on NRC doing its duty to ensure compliance with state and federal laws, and to act with reasonable diligence . . .

Motion at 21; [Entergy and NRC] both turned a blind eye to obvious violations of water pollution control laws and CZM policy compliance for six years. Id. at 31; Neither Entergy nor the NRC has done anything since at least 2007 to ensure that the NPDES permit and ESA and MSA concurrences were up to date . . .[PW/JRWA]

were furnished erroneous information by the NRC staff and Entergy . . . Id. at 32 (footnote omitted); Entergy and the NRC staff have engaged in a pattern of minimizing, ignoring, and delaying consideration of significant environmental issues . . . NRC attempt[ed] to punt to EPA its duty to comply with the MSA and EPAs NPDES permit. Id. at 35-36; The NRC staff and Entergy have demonstrated complete disregard for the duty to ensure that any renewed license will identify the obligations of the licensee in the environmental area . . . They are content to rely on a superficial and inaccurate CZM report, showing a blatant disregard for Massachusetts coastal zone resources and use and for the protection of Cape Cod Bays water quality and uses . . . Id. at 38.

33

NRC Staffs findings on the environmental impacts of license renewal in the FSEIS are incorrect. Further, PW/JRWAs claims that Pilgrim lacks necessary approvals is, as previously discussed, simply wrong.

D. The Motion Does Not Demonstrate that a Materially Different Result Is Likely PW/JRWA fail to demonstrate that a materially different result would be likely if this proceeding were reopened for hearing on the proposed contention, as required by 10 C.F.R. § 2.326(a)(3) (emphasis added). PW/JRWA have a deliberately heavy burden to demonstrate that a materially different result would be likely. Oyster Creek, CLI-08-28, 68 N.R.C. at 674; see also Pilgrim, CLI-12-03 at 8; Oyster Creek, CLI-09-7, 69 N.R.C. at 287. The level of support required for a motion to reopen is greater than that required for a contention under the general admissibility requirements of 10 C.F.R. § 2.309(f)(1). Pilgrim, CLI-12-06 at 18. It is thus not sufficient simply to raise an issue. Rather, PW/JRWA must show that it is more probable than not that [they] would have prevailed on the merits of the proposed new contention. Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station),

LBP-10-19, 72 N.R.C. 529, 549 (2010). Bare assertions or speculation do not suffice (Oyster Creek, CLI-09-7, 69 N.R.C. at 287), a mere showing of a possible violation is not enough (id.),

and a conclusory claim that some issue meets the standard falls far short. (see id. at 290-91).

Further, [N]o reopening of the evidentiary hearing will be required if the [documents] submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact. Private Fuel Storage, CLI-05-12, 61 N.R.C. 345, 350 (2005), citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523-24 (1973).

Finally, a petitioner will fail to demonstrate that a materially different result will be likely where the petitioner seeks to litigate issues outside the scope of a proceeding, or fails to challenge 34

pertinent information contained in the existing licensing documents. See Pilgrim, CLI-12-06 at 26-27.

Other than a conclusory assertion that their proffered evidence demonstrates on its face that a material result would be likely (Motion at 23), PW/JRWAs sole statement with respect to this criterion is that [i]f the Petitioners information had been considered initially, there would be a different CZM certificate and § 401 certificate, compliance with state and federal water pollution laws would be required, and the PNPS EIS would have given a vastly different view of the environmental impacts of relicensing. Id. This bare assertion presupposes the validity of PW/JRWAs claims rather than demonstrating that PW/JRWA are likely to prevail on those claims.

Even if one looks beyond this patently insufficient claim, there is no showing anywhere in the remainder of the Motion that PW/JRWA are likely to prevail. While the Motion is replete with allegations that required approvals are invalid, there is simply no evidentiary support or meaningful legal analysis demonstrating the merit of any of these claims. For example, PW/JRWAs claim that the CZMA consistency determination is invalid simply disagrees with the cognizant state agencys (OCZM) determination that the Commonwealths policies are met.

There is no question that the required consistency determination has been provided, and as previously discussed, it would be inappropriate for the Licensing Board to abrogate OCZMs determination. Even if it were permissible to challenge OCZMs substantive determination, the Boards decision in LBP-12-10 and the exhibits and references provided in this Answer show the subsidiary allegations on which PW/JRWA rely are all baseless.

Similarly, with respect to 401 certification, the Motion does not contain any legal analysis supporting the claim that the existing certifications for Pilgrim are invalid. Further, 35

PW/JRWA have not addressed or questioned the NRC position that the NPDES permit may be accepted as the functional equivalent of 401 certifications. Nor has PW/JRWA addressed or questioned the specific 401 certification issued in support of the Joint Discharge Permit, which certifies that that the conditions in this current permit governing the Stations current discharge will achieve compliance with the CWA as well as the provisions of the Massachusetts Clean Water Act.

Finally, PW/JRWAs claims regarding CWA §§ 316(a) and 316(b) simply ask the Board to reject the NPDES permitting agencies determinations. The NRC has no authority to do so.

E. The Motion Does Not Satisfy the 10 C.F.R. § 2.309(c) Standards The Motion does not satisfy the requirements for late-filed contentions in 10 C.F.R. § 2.309(c), as required by 10 C.F.R. § 2.326(d). 10 C.F.R. § 2.309(c) sets forth a number of factors that must be weighed, including good cause for the late-filing, which is the most important factor. Here, good cause is entirely absent. PW/JRWA make no showing or claim that their contention is based on previously unavailable information. And as previously discussed, their claim that NRC and Entergy are estopped from raising timeliness objections because NRC and other agencies have supposedly been derelict is frivolous.

Having failed to show good cause, the demonstration regarding the other factors must be compelling in order to justify admitting the proposed contention in this Motion. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C. 551, 565 (2005); Comanche Peak, CLI-92-12, 36 N.R.C. at 73. In balancing the remaining late-filed contention factors, the Commission grants considerable weight to factors seven and eight.

We regard as highly important the intervenor's ability to contribute to the development of a sound record on a particular contention. We also are giving 36

significant weight to the potential delay, if any, which might ensue from admitting a particular contention.

Consumers Power Co. (Midland Plant, Units 1 and 2) LBP-82-63, 16 N.R.C. 571, 577 (1982)

(citations omitted), citing South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 N.R.C. 881, 895 (1981); see also Commonwealth Edison Co.

(Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 N.R.C. 241, 246-47 (1986).

PW/JRWA cannot make a compelling showing on the remaining factors because factors seven and eight heavily weigh against admitting the proposed contention.

Factor seven, the extent to which admission of the proposed contention will broaden the issues or delay the proceeding, weighs heavily against admitting the contention. The Commission has made clear that the introduction of a new contention, well after the contested proceeding closed, would broaden the issues and delay the proceeding. Vogtle, CLI-11-08 at

18. Where, as here, the proceeding has been ongoing for more than six years, the NRCs Staffs review has long since been complete, and all admitted contentions have been resolved, there can be no question that admission of the amorphous proposed contention would broaden the issues and delay the proceeding.

Factor eight, the ability to contribute to a sound record, also weighs heavily against admitting the Contention. PW/JRWA has provided no evidentiary support or legal analysis supporting its claims that required approvals are invalid. No expert witnesses are identified in support of these new claims. The only evidentiary material provided with the Motion are the affidavits on Endangered Species Act (ESA) issues submitted in response to previous motions to reopen, and the Boards decision in LBP-12-10 has already found all such issues pertaining to marine species lacking in merit.

37

Thus, factors one (good cause), seven (broaden and delay proceeding), and eight (contribution to a sound record) - the three most significant factors - count heavily against PW/JRWA. The other factors in 10 C.F.R. § 2.309(c)(1) are less important (see, e.g., Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation),

CLI-08-1, 67 N.R.C. 1, 6 (2008); Comanche Peak, CLI-93-4, 37 N.R.C. at 165), and therefore cannot outweigh PW/JRWAs failure to demonstrate good cause or meet the criteria in factors seven and eight.

VI. The Proposed Contention Does Not Meet Admissibility Standards Even if PW/JRWA had satisfied the reopening standards (which they certainly have not),

their proposed contention would be inadmissible for failing to meet the admissibility standards in 10 C.F.R. § 2.309(f)(1).

First, PW/JRWA do not set forth with particularity the contention[] sought to be raised, as required by 10 C.F.R. § 2.309(f)(1). Nowhere in the Motion is there any clear statement of the Contention. In the same vein, PW/JRWA fail to provide a specific statement of the issue of law or fact to be raised or controverted, as required by 10 C.F.R. § 2.309(f)(1)(i). PW/JRWAs Specific Statement of Law and Fact is eleven rambling pages.

Second, a number of the allegations exceed the NRCs authority and thus are neither within the scope of the proceeding nor material to the findings that the NRC must make, as required by 10 C.F.R. § 2.309(f)(1)(iii)-(iv). These impermissible allegations involve the validity of OCZMs consistency determination, and the validity of the Joint Discharge Permit and its CWA § 316 determinations. The allegation that Pilgrim lacks a Commonwealth permit for the CWIS is also immaterial (in addition to being wrong), because the existence of such a permit is not a prerequisite to NRC license renewal.

38

Third, the proposed contention is not supported by a concise statement of facts or expert opinion, as required by 10 C.F.R. § 2.309(f)(1)(v), or by references to specific sources and documents on which PW/JRWA intend to rely to support their positions. PW/JRWA do not provide any affidavits or expert opinion supporting the new claims, and instead rely solely on affidavits related to ESA claims, most of which have already been rejected. The only other document provided with the Motion consists of Discharge Monitoring Reports reflecting the discharge of Tolyltriazole - an issue that is immaterial as this corrosion inhibitor has been approved by the U.S. EPA for use at Pilgrim, and the occasional discharges have been below the discharge limits set by the EPA. Indeed, PW/JRWA do not provide any information suggesting that these discharges have any environmental significance.

Fourth, the proposed contention is not supported by sufficient information to demonstrate a genuine dispute with the application on a material issue, as required by 10 C.F.R. § 2.309(f)(1)(vi). PW/JRWA provide no information supporting the allegation that Pilgrim lacks a Commonwealth permit for the CWIS, making no mention of the CWIS authorization in the Joint Discharge Permit. PW/JRWA provide no information demonstrating that the discharge of Tolyltriazole is environmentally significant. PW/JRWA provide no information supporting the allegation that Pilgrim lacks a permit to discharge radioactive effluent, making no mention of the provision in the Joint Discharge Permit authorizing releases in accordance with NRC regulations and license. PW/JRWA provide no information supporting the claim that Pilgrim is violating a Commonwealth moratorium on harvesting river herring, failing to making any showing that it applies to Pilgrim. This Board has already ruled that PW/JRWAs allegations concerning consultation with NMFS under the ESA and MSA fail to raise any genuine issue because there are no consultation obligations outstanding. LBP-12-10 at 39. PW/JRWA provide no support 39

for the claim that the CZMA consistency determination is invalid, but rather simply disagree with it. PW/JRWA do not provide any support relating to their 401 certification claim, and fail to address or dispute reliance on the Joint Discharge Permit as an additional means of meeting the certification requirement. Finally, PW/JRWA provide no support for their claim that the CWA § 316 determinations may not be relied upon (an allegation inconsistent with CWA § 511(c)(2)). In sum, these allegations are all unfounded and unsupported.

VII. Conclusion For the reasons set forth above, PW/JRWAs Motion should be denied.

Respectfully Submitted,

/signed electronically by David R. Lewis/

David R. Lewis Timothy J.V. Walsh PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 E-mail: david.lewis@pillsburylaw.com Counsel for Entergy Dated: June 8, 2012 40

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

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

)

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals, dated June 8, 2012, was provided to the Electronic Information Exchange for service on the individuals below, this 8th day of June, 2012.

Secretary Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail@nrc.gov hearingdocket@nrc.gov Administrative Judge Atomic Safety and Licensing Board Ann Marshall Young, Esq., Chair Mail Stop T-3 F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ann.Young@nrc.gov Administrative Judge Administrative Judge Dr. Richard F. Cole Dr. Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Richard.Cole@nrc.gov Paul.Abramson@nrc.gov 403502152v3

Susan L. Uttal, Esq. Matthew Brock, Assistant Attorney General Maxwell C. Smith, Esq. Commonwealth of Massachusetts Anita Ghosh, Esq. Office of the Attorney General Joseph A. Lindell, Esq. One Ashburton Place Office of the General Counsel Boston, MA 02108 Mail Stop O-15 D21 Martha.Coakley@state.ma.us U.S. Nuclear Regulatory Commission Matthew.Brock@state.ma.us Washington, DC 20555-0001 Susan.Uttal@nrc.gov; Maxwell.Smith@nrc.gov; Anita.Ghosh@nrc.gov; Joseph.Lindell@nrc.gov Ms. Mary Lampert Margaret Sheehan, Esq.

148 Washington Street 61 Grozier Road Duxbury, MA 02332 Cambridge, MA 02138 mary.lampert@comcast.net meg@ecolaw.biz Sheila Slocum Hollis, Esq. Mr. Mark D. Sylvia Duane Morris LLP Town Manager 505 9th Street, NW Town of Plymouth Suite 1000 11 Lincoln St.

Washington, DC 20006 Plymouth, MA 02360 sshollis@duanemorris.com msylvia@townhall.plymouth.ma.us Chief Kevin M. Nord Richard R. MacDonald Fire Chief and Director, Duxbury Emergency Town Manager Management Agency 878 Tremont Street 688 Tremont Street Duxbury, MA 02332 P.O. Box 2824 macdonald@town.duxbury.ma.us Duxbury, MA 02331 nord@town.duxbury.ma.us

/signed electronically by David R. Lewis/

David R. Lewis 2

403502152v3

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT A Letter from S. Bethay, Pilgrim Station, to T. Henson, OCZM (Jan. 27, 2006)

Exibit A Cover Sheet.doc

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT B Letter from B. Carlisle, Director, OCZM, to P. duBois (May 21, 2012)

Exhibit B Cover Sheet.doc

• Jones River Watershed Association*Pilgrim Watch*

April 4, 2012 By Express Mail Bruce K. Carlisle Director Massachusetts Office of Coastal Zone Management 251 Causeway Street Suite 800 Boston MA 02114 Re: MCZM July 11, 2006 Consistency Certification for Entergys Nuclear Pilgrim Nuclear Power Station, Plymouth MA

Dear Mr. Carlisle,

We are writing to request that your office immediately suspend its July 11, 2006 Coastal Zone Management Act (CZMA) Consistency Certification for the Nuclear Regulatory Commission (NRC) relicensing of the Entergy Nuclear Generation Company and Entergy Nuclear Operations Inc. (Entergy) Pilgrim Nuclear Power Station (PNPS).

Entergy has inaccurately certified to the NRC that relicensing will be consistent with the MCZM program. The facts show that continued operation of PNPS as proposed by Entergy will be inconsistent with enforceable state coastal zone management policies, as codified at 301 CMR §§ 20.00 to 26.00 (MCZM program), and therefore the 2006 consistency determination is invalid. Time is of the essence as Entergys current NRC operating permit expires June 8, 2012 and relicensing based on MCZMs 2006 consistency determination is likely to occur before May 29, 2012.

We further request that your office notify Entergy that a supplemental coordination is required for the relicensing application. See, 10 C.F.R. § 930.66 and CZMA, 16 U.S.C.S. §§ 1451 et seq.

Entergys NRC application states that during the relicensing period (2012 to 2032) it plans to continue its 40-year use of its once-through cooling water system. It is documented that this system has had destructive impacts on Cape Cod Bay coastal zone resources and uses due to impingement, entrainment, thermal discharges, and discharges of other pollutants including chlorine and biocide residuals. Entergys 2006 Coastal Zone Management Consistency Certification (CZM Report) certified that operations during relicensing will be consistent with MCZM policies. Some of these statements were not true at the time they were made, and others are no longer true.

1

Entergys continued operation of the Pilgrim station for the relicensing period will violate at least MCZM Water Quality Policy #1, 301 CMR 21.98(3), and Habitat Policies, #1-2, 301 CMR 21.98(4), in the following ways:1

1. Noncompliance with its Clean Water Act NPDES permit: Since 1999, Entergy has failed to obtain state and federal approval of its Biological Monitoring plans, in violation of its NPDES permit, Part A.8, and has failed to conduct the Biological Monitoring it did do, under the oversight of the Pilgrim Advisory Technical Committee, in violation of Part 8.d.

2. Entergys NPDES permit expired in 1996, but has been administratively extended since that time. EPA and MassDEP do not have the capacity to issue a new NPDES permit before June 8, 2012, the NRC relicensing deadline

3. Entergys last § 316 demonstration project was provided to U.S EPA in 1977, Additional information for a new review was submitted to EPA by ENSR in 2000 but the review was never completed. MCZM staff comments on the 2000 ENSR report forcefully stated that this submittal failed to demonstrate § 316 and MCZM standards were met.

4. Since 2006, Entergy has annually violated the states moratorium on the taking of river herring, 322 CMR 6.17(3), and river herring is now a candidate species under the federal Endangered Species Act. 76 Fed. Reg. 67652 (11/2/2011) River herring are the third most impinged species at PNPS.

5. Entergys CZM Report stated there would be no effects on endangered and threatened species. On March 26, 2012, the U.S. Fish and Wildlife Service informed the NRC Staff it does not agree that there will be no effects on Cape Cod Bay endangered and threatened species from PNPS operations.

6. MCZMs 2006 certification fails to address or acknowledge impacts to marine mammals such as whales, porpoise, and dolphin, which are known to be present in the PNPS area and in Cape Cod Bay, and which are protected by the federal Marine Mammal Protection Act, 16 U.S.C.S. §§ 1362 (13), 1372 (a).

7. Impacts to species listed under the Massachusetts Endangered Species Act were ignored or inadequately assessed, including impacts to hawksbill turtle, humpback whale, roseate tern, and arctic tern.

8. New discharges of radioactive tritium to groundwater at the Pilgrim station are being documented, and this groundwater is reported to flow toward Cape Cod Bay. It is unknown for how long this discharge has been occurring. MCZM has not determined whether discharges of this radioactive material, combined with PNPS point source discharges of radioactive wastewater to Cape Cod Bay, is consistent with MCZM policies.

1 This is not a comprehensive list of all the ways in which continued operations will violate MCZM policies, but only examples. More information is available upon request.

2

9. An Essential Fish Habitat consultation with NMFS as required by Magnuson-Stevens Fishery Conservation and Management Act has not been completed and will not be done prior to June 8, 2012, the relicensing deadline. Instead, the NRC has postponed the EFH consultation indefinitely to the NPDES permit renewal process. Therefore the MCZMs consistency review was done without the benefit of the results of this consultation.

10. Entergy has not demonstrated compliance with MassDEPs 2006 cooling water intake structure water quality standards, upheld by the Massachusetts Supreme Judicial Court in April 2011, following a legal challenge by Entergy. Entergy Nuclear Generation Company v. Department of Environmental Protection, 459 Mass. 319 (2011).

These regulations are designed, inter alia, to minimize impacts on aquatic life through entrainment, impingement and thermal discharge. See, 314 CMR § 4.05(b)(2)(d),

4.05(3)(c)(2)(d), 4.05(4)(a)(2)(d), 4.05(4)(b)(2)(d), 4.05(4)(c)(2)(d).

Entergy should have provided all of the information listed above to MCZM, pursuant to 16 U.S.C.S. 1456(c)(3)(A), which requires an applicant to submit all material relevant to a States management program. 15 CFR 930.58; 301 CMR 21.07(3). See, e.g. Conservation Law Foundation v. Lujan 560 F.Supp. 561 (D.Mass.

1983).

Under 15 C.F.R. § 930.66(a), applicants for federal consistency review shall further coordinate with the State agency and prepare a supplemental consistency certification if the proposed activity will affect any coast use or resource substantially different than originally described. Significant new circumstances or information and substantial changes both warrant such supplemental review. Id. § 930.66(a)(1)-(3). The information we have indicated above shows a supplemental coordination is required.

Facts, documents, and data establishing this information were obtained from agency files.

About two weeks ago we requested a meeting with your staff to discuss this, and we remain willing to do so, in order to reach a mutually agreeable resolution of the concerns raised here. We are ready and able to provide you with full documentation of these facts and others that show that NRC relicensing of PNPS will violate MCZM policies.

In the meantime, we reiterate our request that you immediately suspend the 2006 Consistency Certification and so notify the NRC, and inform Entergy that supplemental coordination is needed under 15 C.F.R. § 930.66.

Thank you for consideration of our information. Please contact Pine duBois, Executive Director, Jones River Watershed Association, 781-585-2322 or pine@jonesriver.org should you have any questions or concerns.

3

Very truly yours, Jones River Watershed Association, Inc.

By:

Pine duBois, Executive Director Margaret E. Sheehan, Esq., Volunteer Anne Bingham, Esq.

Cc: Representative Edward Markey The Hon. Duval Patrick, Governor Senator Therese Murray Provincetown Center for Coastal Studies James McCaffrey, Director, Sierra Club, Massachusetts Susan M. Reid, Conservation Law Foundation Curt Spaulding, Regional Administrator, USEPA Region 1 David Webster, US EPA Kenneth Kimmel, Commissioner, MassDEP Beth Card, MassDEP State Senators and Representatives Whale and Dolphin Conservation Society Pilgrim Coalition Herring Alliance Cape Cod Hook Fishermans Association Trout Unlimited, Massachusetts Chapter Massachusetts Rivers Alliance Cape Cod Commission 4

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT C April 23, 1971 Water Quality Certification Exhibit C Cover sheet.doc

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT D Pilgrim June 30, 1971 Application to the U.S. Army Corps of Engineers Exhibit D Cover sheet.doc

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT E July 8, 1994 401 Certification Exhibit E Certification.doc

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT F Affidavit of Jacob J. Scheffer in Support of Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Related to Water Related Approvals (June 8, 2012)

Exhibit F Cover Sheet.doc

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Docket No. 50-293-LR ASLBP No. 06-848-02-LR Entergy Nuclear Generation Company Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station)

AFFIDAVIT OF JACOB J. SCHEFFER IN SUPPORT OF ENTERGYS ANSWER OPPOSING JONES RIVER WATERSHED ASSOCIATIONS AND PILGRIM WATCHS MOTION TO REOPEN AND HEARING REQUEST ON CONTENTION REGARDING WATER-RELATED APPROVALS I, Jacob J. Scheffer, do hereby depose and state, on the basis of personal knowledge, and under penalties of perjury, that:

1. This is my second affidavit in these Proceedings. I submitted an affidavit in Support of Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen Hearing Request on Contention Related to the Roseate Tern on May 16, 2012.

2. As detailed in paragraphs 1 and 2 of my previous affidavit, I have been employed by Entergy Nuclear Generation Company (Entergy) and its predecessor Boston Edison Company (BECO) for more than four decades and I currently oversee Pilgrim Nuclear Power Station (PNPS or the Station) compliance with local, state and federal environmental regulations as well as all reporting provided to the United States Environmental Protection Agency (USEPA), the Massachusetts Department of Environmental Protection (MDEP), and any other local, state and federal regulators in connection with same. As such, I have personal knowledge regarding the Stations operations, its NPDES Permit, the monitoring requirements

and other conditions authorized or required under that Permit, and any relevant monitoring reports that may be submitted in connection with same.

3. I have reviewed the Request to Reopen, for a Hearing, and to File New Contentions and Motion to Intervene on Issues of: (1) Violations of State and Federal Clean Water Laws; (2) Lack of Valid State § 401 Water Quality Certification; (3) Violation of State Coastal Zone Management Policy; and (4) Violation of NEPA (Motion) which was filed by Pilgrim Watch and Jones River Watershed Association (collectively, PW/JWRA) on May 14, 2012, and which seeks to raise a new contention regarding water-related approvals. In support of this Motion, PW/JRWA make certain incomplete and/or erroneous statements concerning the Stations NPDES Permit biological monitoring requirements and Entergys application for Permit renewal. I am providing this Affidavit to correct those statements.

NPDES Permit Monitoring and Reporting Requirements

4. Entergy is required by its NPDES permit to conduct such studies and monitoring as are determined by the USEPA and the State to be necessary to evaluate the effect of the operation of the Pilgrim station, on the balanced, indigenous community of shellfish, fish, and wildlife in and on Cape Cod Bay. NPDES Permit (NRC ADAMS Accession No. ML061420166), Part 1, ¶ A.8.b. The studies and monitoring required under paragraph A.8.b, referred to as the Environmental Monitoring Program (EMP), and the plans for the EMP, are set forth in Attachment A to the NPDES Permit. See NPDES Permit, Part 1, ¶ A.8.c. Entergy must submit to [USEPA] and [MDEP] for approval any revisions of the existing [EMP]

which may be warrented [sic] by the availability of new information no later than December 31 of each year. NPDES Permit, Part 1, ¶ A.8.d. Pursuant to paragraph A.8.e of the NPDES Permit and Attachment A, paragraph I.F, Entergy must submit to USEPA and MDEP semi-annual 2

reports and an annual summary of the EMP. See NPDES Permit, Part 1, ¶ A.8.e and Attachment A, paragraph I.F (dated December 21, 1990).

5. Based on my personal knowledge and review of available records, since the August 30, 1994 effective date of the NPDES Permit establishing the current EMP and reporting requirements, Entergy, or its predecessor BECO, has submitted to USEPA and MDEP every one of the semi-annual reports and annual summaries required by the Permit in a timely fashion. In addition, to my knowledge, each year since August 30, 1994 in which a revision to the existing EMP was warranted, Entergy, or its predecessor BECO, submitted such revision to USEPA and MDEP for approval by the December 31 deadline specified in the Permit. In fact, to my knowledge, Entergy (or BECO) has met its semi-annual and annual EMP reporting requirements and has timely submitted annual EMP revisions when necessary since at least 1973. As such, Entergy has met, and will continue to meet, its biological monitoring and reporting requirements under its NPDES Permit.

NPDES Permit Renewal Applications

6. Entergys predecessor BECO submitted to EPA a timely and complete application for renewal of its NPDES permit on October 25, 1995. See Correspondence from E.T. Boulette, Boston Edison to Kevin McSweeney, USEPA re: NPDES Permit Renewal Application (Oct. 25, 1995) (cover letter for which is attached as Exhibit 7 to my previous affidavit in this Proceeding). USEPA acknowledged the timely receipt of the application and deemed it complete by letter dated March 1, 1996. See Correspondence from Jane Downing, USEPA to E.T. Boulette, BECO (Mar. 1, 1996) (attached as Exhibit 1 to my previous affidavit).

7. Similarly, BECO submitted a timely and complete application for state Permit renewal to MDEP on February 16, 1996. (Attached hereto as Exhibit 1). MDEP acknowledged receipt of the state Permit application, determined that it was complete, and informed Entergy 3

that the Commonwealths technical review will commence after USEPA prepares and transmits to MDEP a draft NPDES permit. Letter from W. Dunn, MDEP to R. Anderson, BECO (March 4, 1996) (attached hereto as Exhibit 2).

I declare under penalty of perjury that the foregoing is true and correct.

Executed in Accord with 10 C.F.R. § 2.304(d)

Jacob J. Scheffer Chemistry Supervisor Pilgrim Nuclear Power Station 600 Rocky Hill Road Plymouth, MA 02360 Phone: 508-830-8323 E-mail: jscheff@entergy.com 4

In the Matter of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

Pilgrim Nuclear Power Station Docket No. 50-293-LR; ASLB No. 06-848-02-LR Entergys Answer Opposing Jones River Watershed Associations and Pilgrim Watchs Motion to Reopen and Hearing Request on Contention Regarding Water-Related Approvals (June 8, 2012)

EXHIBIT G June 30, 1995 Letter from U.S. EPA Approving Use of Tolyltriazole at Pilgrim Station Exhibit G Cover Sheet.doc