ML16251A500

Watch & Co-Petitioners Request for Hearing Regarding Entergy'S Request for Extension to Comply with NRC Order EA-13-109,Section IV Requirements Regarding Implementation of Phase 1 and Phase 2 Severe Accident Capable Vents...

ML16251A500
Person / Time
Site:	Pilgrim
Issue date:	09/07/2016
From:	Garb J, Gunter P, Lampert M, Moir M, Turco D, Waldstein J, Williamson A Beyond Nuclear, Cape Downwinders, Cape Downwinders Cooperative, Citizens Awareness Network, Massachusetts Downwinders, Pilgrim Coalition, Pilgrim Legislative Advisory Coalition, Pilgrim Watch
To:	NRC/OCM
SECY RAS
References
50-293-EA, EA-13-109, RAS 51295
Download: ML16251A500 (33)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of Pilgrim 50-293-EA Entergys Request for Extension to Comply With NRC Order EA-13-109, Pilgrim Station September 7, 2016 PILGRIM WATCH & CO-PETITIONERS REQUEST FOR HEARING REGARDING ENTERGYS REQUEST FOR EXTENSION TO COMPLY WITH NRC ORDER EA-13-109, SECTION IV REQUIREMENTS REGARDING IMPLEMENTATION OF PHASE 1 AND PHASE 2 SEVERE ACCIDENT CAPABLE VENTS FOR PILGRIM NUCLEAR POWER STATION In accordance with 10 C.F.R § 2.309, Pilgrim Watch, representing co-petitioners Beyond Nuclear, Pilgrim Coalition, Pilgrim Legislative Advisory Committee, Cape Downwinders, Cape Downwinders Cooperative, Massachusetts Downwinders, and Citizens Awareness Network (hereinafter Petitioners), files a request for hearing challenging Entergys Request for Extension to Comply with NRC Order EA-13-109,Section IV Requirements Regarding Implementation of Phase 1 and Phase 2 Severe Accident Capable Vents for Pilgrim Nuclear Power Station (hereinafter Request Extension). Our contention pertains to Phase 1 of the Order - severe accident capable wetwell venting system. 1 The Entergy Request should be denied and Petitioners request for hearing should be granted.

Entergys Request was filed June 24, 2016 but not placed on NRCs Document Access 1

Phase 2s (severe accident capable dry venting system) compliance date falls after Entergy says Pilgrim will cease operations.

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Management System (ADAMS) until July 13, 2016. Therefore, Petitioners are within the mandated filing time.

I. Petitioners Have Standing:

A Petitioner is entitled to party status by establishing that it is adversely affected.

a. Pilgrim Watch Pilgrim Watch (hereinafter, PW) is a non-profit citizen organization that serves the public interest in issues regarding the Pilgrim Nuclear Power Station, a Mark I BWR. The organizations director and representative in this matter is Mary Lampert who resides at 148 Washington Street, Duxbury, Massachusetts, 02332. (Email: mary.lampert@comcast.net; Telephone: 718-934-0389) Ms. Lampert, PWs director, makes her residence (that she owns and in which she has a financial interest) and her place of occupation and recreation within approximately six (6) miles of Pilgrim Nuclear Power Station. Many of PWs members live within the immediate neighborhood of the reactor, and others either within the 10-mile Emergency Planning Zone or within the 50-mile ingestion pathway. Ms. Lampert is also reasonably concerned for her and their health and safety, as the NRC has already found, in the event NRC does not require Entergy to meet EA-13-109s compliance date.

PW was a party to Pilgrims license renewal adjudication proceedings; its June 1, 2011 Request for Hearing was directed specifically towards safety issues regarding Pilgrims Direct Torus Vent (DTV) and site specific lessons learned from Fukushima. From review of the filings 2 , available on NRCs Electronic Hearing Docket, it reasonably can be expected that PW 2

Pilgrim Watch Request For Hearing On A New Contention Regarding Inadequacy Of Environmental Report, Post Fukushima, June 1, 2012; Pilgrim Watch Reply to Entergys and NRC Staffs Answers Opposing Request for Hearing on New Contention (January 7, 2011); Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on [a] New Contention Regarding Inadequacy of Environmental Report, Post 2

will meaningfully contribute to the record. In addition, PW filed a Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Reliable Hardened Containment Vents, April 2, 2012 that was heard, then denied (Memorandum and Order (Denying Petitions for Hearing), LBP-12-14, July 10, 2012 and a Petition for Review of the denial filed July 20, 2012, further showing that PW can reasonably be expected to meaningfully contribute to the record.

Therefore, PW believes that it has standing to intervene in this proceeding and, indeed, deserves to be afforded due process with all formal hearing rights.

As provided by Rule 2.309(f)(3), Pilgrim Watch is the designated representative of the co-petitioners listed below and has the authority to act for the co-petitioners with respect to this contention.

b. Beyond Nuclear Beyond Nuclear is a not-for-profit public education and advocacy organization whose mission involves the oversight of NRCs regulatory process so that it serves to protect public health, safety, property, and the environment. The organization, and Paul Gunter its Director Oversight Project, are located at 6930 Carroll Avenue, Suite 400, Takoma Park, Maryland 20912 Fukushima (July 5, 2011); Pilgrim Watch Reply to Entergys Motion to Strike Portions of Pilgrim Watch Reply to Entergy and the NRC Staff Answers Opposing Pilgrim Watchs Request for Hearing on a New Contention (07/15/11)

(July 18, 2011); Pilgrim Watch Request for Leave to Supplement Pilgrim Watch Request for Hearing on a New Contention Regarding the Inadequacy of the Environmental Report, Post-Fukushima filed June 1, 2011 (Aug. 8, 2011) at 1 (citing Near-Term Task Force Report); Pilgrim Watchs Petition For Review Of Memorandum And Order (Denying Pilgrim Watchs Requests For Hearing On New Contentions Relating To Fukushima Accident) Sept. 8, 2011; Pilgrim Watch Reply To Entergys Answer To Pilgrim Watch's Petition For Review-available NRCs EHD 3

(Email: paul@beyondnuclear.org; Tel. 301-270-2209). Beyond Nuclear has members within Pilgrim Stations Emergency Planning Zone.

David Agnew, a member of Beyond Nuclear, is providing his declaration for the groups organizational standing in this proceeding. Mr. Agnew resides at 18 Marthas Lane, Harwich, MA 02645 (Email:d-agnew@comcast.net; Tel. 508-432-1718). His residence, in which he has a financial interest, is located within 50 miles of the Pilgrim Nuclear Generating Station for which Entergy Corporation has submitted a Request for Extension to Comply with United States Nuclear Regulatory Commission (NRC) Order EA-13-109 as issued June 6, 2013.

Ms. Thea Paneth, a member of Beyond Nuclear, also is providing her declaration for the groups organizational standing in this proceeding. Ms. Paneth resides at 10 Cottage Avenue, Arlington Massachusetts 02474 (Email: tpaneth@gmail.com; Tel.781-648-6756). Her residence and primary financial assets are within 50 miles of the Pilgrim Nuclear Power Station. Her declaration expresses concern that if NRC grants Entergys request for an extension to comply to EA-13-109 that it could adversely affect her life, the lives of her family, community and environment in which she lives.

Ms. Paneth and Mr. Agnews declarations show that they are reasonably concerned, and Beyond Nuclear is reasonably concerned, that granting Entergys Request would adversely affect their financial interests and health and safety and also those of all other members of Beyond Nuclear within Pilgrim Stations Emergency Planning Zone, as the NRC has already found.

c. Pilgrim Coalition Pilgrim Coalition is a non-profit association with member organizations and partners throughout Massachusetts. Its principal membership is concentrated on Massachusetts South 4

Shore. All of its most active members live within the 50-mile Emergency Planning Zone; many live less than 10 miles from Pilgrim Station. In the event of a catastrophic accident at Pilgrim the lives & livelihood of most of its membership will be directly & adversely affected.

Therefore, Pilgrim Coalition has standing to intervene in this proceeding and be afforded its due process with all formal hearing rights. Joseph Waldstein serves as Treasurer of the Pilgrim Coalition and lives at 232 Main St., Kingston, MA 02364, which is less than 10 miles from Pilgrim. (Email: JWaldstein@maline.com; Tel: 781-585-3574). Mr. Waldstein believes that granting Entergys Request would adversely affect his, and the members of Pilgrim Coalition financial interests and health and safety.

d. Pilgrim Legislative Advisory Coalition The Pilgrim Legislative Advisory Coalition was established in 2015 to serve as an advocacy organization for protecting the economic, environmental, health and safety interests of Massachusetts citizens through responsible public policy on nuclear energy. The more than 40 members of the Pilgrim Legislative Advisory Coalition make their residence throughout the fifteen towns on Cape Cod, on Marthas Vineyard or in other neighboring communities on the South Shore of Massachusetts, all of which are within the 50-mile Ingestion Zone. The Cape Cod communities have also received supplies of potassium iodide (KI) from the State due to lack of egress because of unique geographical features of the region. Members of the Pilgrim Legislative Advisory Coalition have participated in several NRC proceedings. Therefore, the Pilgrim Legislative Advisory Coalition has standing to intervene in this proceeding and deserves to be afforded due process with all formal hearing rights.

James R. Garb, MD is a member of the Pilgrim Legislative Advisory Coalition, and resides on Cape Cod at 11 Kingsbury Way, Yarmouth Port MA (Email: jimgarb@comcast.net; 5

Telephone 508-375-0419). His residence, in which he has a financial interest, is within 50 miles of the Pilgrim Nuclear Power station. Dr. Garb is a physician who specializes in occupational and environmental medicine, and is reasonably concerned, for himself and for other members of the Pilgrim Legislative Advisory Coalition, that granting Entergys request would adversely affect their financial interests and their health and safety, as the NRC has already found.

e. Cape Downwinders Cape Downwinders is a non-profit citizens group with members living throughout the fifteen towns on Cape Cod and both Marthas Vineyard Island and Nantucket. These communities are within the 50-mile Emergency Planning Zone. They also receive KI from the State due to lack of egress because of unique geographical features of the region. For decades, Cape Downwinders has advocated for effective NRC oversight and that NRC enforce its own rules to provide for the public health and safety of these communities and protection of the environment and our properties. The organization has participated in numerous NRC proceedings. Therefore, Cape Downwinders has standing to intervene in this proceeding and afforded their due process with all formal hearing rights.

Diane Turco serves as Director and resides at 157 Long Road, Harwich, MA 02645, which is located within Pilgrims 50-mile ingestion zone and in which she has a financial interest. (Email: tturco@comcast.net; Telephone 508-432-1744). Ms. Turco is also reasonably concerned, for herself and for other members of Cape Downwinders, that granting Entergys Request would adversely affect their financial interests and their health and safety, as the NRC has already found.

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d. Cape Downwinders Cooperative Cape Downwinders Cooperative also is a non-profit citizen group. Its members reside on Cape Cod, within Pilgrim Nuclear Power Stations 50-mile ingestion pathway. The group serves as a watchdog over and advocate for public health, safety, security and the preservation of Cape Cods environment and property values as they relate to impacts from the Pilgrim Nuclear Power Station.

Members have advocated on numerous occasions on behalf of the aforementioned concerns to state and federal agencies. Margaret Rice Moir is a member of Cape Downwinders Cooperative, and resides on Cape Cod at 121 Whiffletree Avenue, Brewster MA (Email:

enjoylifemrm@msn.com; Tel. 508-694-6124). Her residence, in which she has a financial interest, is within 50 miles of the Pilgrim Nuclear Generating Station. Ms. Moir is also reasonably concerned, for herself and for other members of Cape Downwinders Cooperative, that granting Entergys Request would adversely affect their financial interests and their health and safety, as the NRC has already found.

f. Massachusetts Downwinders Massachusetts Downwinders (MADW) is a coalition of citizen organizations with members living throughout the state of Massachusetts working to protect the public interest in the event of a radiological accident at Pilgrim. Many represented communities are within the Emergency Planning Zone and would be negatively impacted if an accident at Pilgrim occurred. MADW has advocated for effective NRC oversight and that NRC enforce its own rules to provide for the public health and safety of these communities and protection of the environment and our properties. The organization has participated in numerous NRC 7

proceedings. MADW has standing to intervene in this proceeding and afforded due process with all formal hearing rights.

Paula Sharaga is the Boston area coordinator and resides at 234 Columbia Street, Cambridge, MA 02139, within 50 miles of Pilgrim Nuclear Power Station and in which she has a financial interest. She is also reasonably concerned for herself and other members of MADW, that granting Entergy's request would adversely affect their financial interests and their health and safety, as the NRC has already determined. (Telephone 617-497-5170; Email:

morethanpaula@gmail.com).

g. Citizens Awareness Network (CAN)

Citizens Awareness Network (CAN) is a 501C3 regional organization, advocating for health and safety of its members who live in proximity to reactors in New England. CAN has members living in the 50-mile Emergency Planning Zone for the Pilgrim reactor including Ms.

Arlene Williamson who represents CAN in this proceeding. Ms. Williamson is concerned for her health and safety as well as her financial interests (as are other members of Citizens Awareness Network).

CAN has intervened in licensing proceedings on decommissioning of Yankee Rowe and Connecticut Yankee reactors; it was an intervenor in ASLB hearings on decommissioning for Yankee Rowe and Connecticut Yankee reactors and won a lawsuit against the NRC for the illegal decommissioning of Yankee Rowe. CAN intervened in license transfer proceedings for Vermont Yankee, Indian Point and Nine Mile Point reactors in New York. CAN co-sponsored a 2.206 petition on the financial vulnerability of Entergys merchant fleet of reactors in the Northeast (Vermont Yankee, Pilgrim and Fitzpatrick) and how Entergys financial instability 8

effected safe operation as well as adequate decommissioning of these reactors. CAN also submitted a 2.206 petition on the vulnerability of the Mark 1 reactor fuel pools to terrorism with a coalition of groups. Therefore, CAN has standing to intervene in this proceeding and afforded due process with all formal hearing rights.

Arlene Williamson is a member of CAN and resides at 103 Surf Drive, Mashpee, MA 02649 which is located within Pilgrims EPZ, and in which she has a financial interest. Ms.

Williamson believes that granting Entergy's Request would adversely affect her, and the members of CAN, financial interests and health and safety and all other members. (Telephone:774-521-3347; Email: a.williamson99@comcast.net ).

PW as the representative of all the Co-Petitioners, submits that the public (including members of Beyond Nuclear) that resides in communities surrounding Pilgrim NPS within the 50 miles of Pilgrim should be afforded their due process with all formal hearing rights to address Entergys Request for Extension.

Petitioners contend that Entergys Request for Extension to implement Phase 1 (severe accident capable wetwell venting system) should be denied for the following reasons.

1. Entergys Request should be denied on procedural grounds. It is in reality a request for a license amendment; and Entergy should be required to follow NRCs rules and practices for amending its license.

The NRC issued Order EA-13-109 on June 6, 2013. That Order was effective immediately, and the Order modified, i.e., amended, the then-current licenses for twenty Operating Boiling Water Reactor Licensees, including Pilgrim. (p. 1; Enclosure 1, p. 10; 9

)

The Order explicitly requires responses and actions within specified time frames (p.

2). The time frames pertinent to Entergys request are set forth in Enclosure 1, Section IV:

i. Pilgrim was required to complete Phase 1 (severe accident capable wetwell venting system): no later than startup from the second refueling outage that begins after June 30, 2014 or June 30, 2019 whichever comes first.3 (Enclosure 1, p. 10-11, par. B) Emphasis added.

ii. Pilgrim was required, within twenty days of the issuance date of the final ISG for Phase 1, notify the Commission if it was unable to comply, that compliance was unnecessary, or if implementation would be in violation of any Commission regulation or Pilgrims license. 4 (Enclosure 1, p. 11, Par. C.1)

Entergys request for a more than two-year extension of the date by which the Order and license amendment required it to complete phase 1 was not filed until June 24, 2016.

According to Entergy, its tardy request for an extension [is] based on the planned shutdown of Pilgrim scheduled no later than June 1, 2019. 5 Intentionally ignored by Entergy is that its request is in reality a request for a license amendment. The Order EA-13-109 is an Order to Modify Licenses with Regard to Reliable Containment Vents Capable of Operation Under Severe Accident Conditions. To modify a license is to amend it 6 . Therefore, Entergy must be required to adhere to the general 3

Pilgrims first refueling outage after June 30, 2014 was in 2015; its second will commence and be completed in the spring of 2017.

4 ISG 2013-02 was issued November 25, 2013.

5 Entergy Letter No. 2.16.028, pg.,1, Entergy Nuclear Operations, Inc., Pilgrim Nuclear Power Station, June 24, 2016 6

http://www.thesaurus.com/browse/amend; http://www.dictionary.com/browse/amend 10

requirements and guidance for an amendment to its existing license as set forth by NRC.

Amending Pilgrims license to eliminate the Orders requirement for Reliable Containment Vents Capable of Operation Under Severe Accident Conditions would involve significant hazard considerations. This being so, the NRCs rules, practice and regulations require that Petitioners, and any other parties with standing, be provided a hearing prior to issuance of Entergys requested amendment.

2. Entergys Request should be denied because it is not timely. Even if Entergys Request were proper, and it is not, Entergy filed its Request June 24, 2016, more than two and one-half years after the Order required Entergy to notify the NRC that Pilgrim, for some reason, was unable to comply, or otherwise was not willing to comply, with any of Phase I requirements. (EA-13-109,Section IV, part C).

3. Entergys Request should be denied because granting it would deny citizens and communities the protection a reliable severe accident capable wetwell venting system would provide during the two remaining years of Pilgrims operations.

The completion date for compliance with the Orders Phase 1 is June 1, 2017, but Entergy decided to continue to operate Pilgrim until June 1, 2019, likely in the hope that it would be able to save money by not doing what the NRC had ordered.

If Entergys request is granted, citizens and communities would be denied the protection, necessary to protect health and safety, that a reliable severe accident capable wetwell venting system required by the Order would provide during the remaining years of Pilgrims operations. EA-13-109 is explicit that the requirements of the Order were necessary to provide reasonable assurance of adequate protection of public health and safety. (Order, Enclosure I, 11

pgs., 3, 10) Further the Order says that, these modifications are needed to protect health and to minimize danger to life or property because they will give licensees greater capabilities to respond to severe accidents and limit the uncontrolled release of radioactive materials. (Order, Enclosure I, pg., 7)

4. Entergys Request should be denied because its argument in support of its request is not valid.

Entergys rationale to support its request essentially is three-fold:

(1) It incorrectly claims that its proposed FLEX Severe Accident Strategy will preclude the occurrence of core damage, but also includes the capability for restoring and maintaining containment integrity and to cool core debris and thereby allow recovery without the serious complications that were encountered at Fukushima Daiichi. (Entergy Letter No. 2.16.028 (June 24, 2016), pg., 2) FLEX alone does not provide the Defense-In-Depth required by the Order. Entergy admits (Letter, pg., 2) that Pilgrims current venting system does not meet the requirements of EA 13-109; and Entergys statement that It is our intention to have in-place a fully capable Severe Accident Strategy that meets all of the primary objectives of NRC Order EA-13-109 (Letter, pg.2) effectively admits that such a system is not now in-place, and that Entergy has no intention of meeting all of the Orders objectives.

(2) Entergys request compares Pilgrims to Oyster Creeks HCVS strategies (Request to PNPS letter 2.18.028. pg.,5). We suspect that Entergy made this comparison because Oyster Creeks request to extend compliance was granted and therefore the apparent intended implication is that Pilgrims request should be granted also. This is faulty logic and 12

Oyster Creek provides no precedent for Entergys Request. There never was a request for, or hearing, regarding Oyster Creeks request for extension. The staff made its decision absent contrary and factual evidence, and apparently without recognizing that granting the request effectively was amending Oyster Creeks license. Here, there is a Request for Hearing that meets the requirements set forth in 10 C.F.R § 2.309. Petitioners request is timely.

(3) Entergys request does not show that it has met (or indeed that it ever intends to meet) the requirements for reliable hardened vent systems capable of operation under severe accident conditions, outlined in Attachment 2 of the Order 13-109. If it had, Entergy would not be asking for an extension to comply.

Also Entergy, contrary to its statement, never intends to comply with the Order. Letter No. 2.16.028 (at 2) says, Entergy is hereby requesting that the Director, Office of Nuclear Reactor Regulation, grant an extension to comply with the requirements in Section IV of NRC Order EA-13-109until December 31, 2019. Pilgrim will submit a request for relief from NRC Order EA-13-109 no later than December 31, 2019 based upon the permanent shutdown. No one with a straight face could call this a request for a schedule change.

The possible effect of Entergys request on the Requestors/Petitioners interests includes the following.

If Entergys Request for Extension to Comply is granted there will be, as the NRC has already found, a continuing unacceptable risk jeopardizing the health, safety, property and finances of Petitioners and their members who live, recreate, conduct business and own property within the vicinity of the Pilgrim Nuclear Power Station. The Request for Hearing unquestionably addresses a significant public safety and environmental issue.

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The Petitioner Has Pleaded a Valid Contention:

Petitioners hereby respectfully submit the following four-part contention for consideration:

1. Entergys Request should be denied on procedural grounds. It is in reality a request for a license amendment and Entergy should be required to follow NRCs rules and practices for amending its license.

2. Entergys Request should be denied because it is not timely.

3. Entergys Request should be denied because granting it would deny citizens and communities the protection that the severe accident capable wetwell venting system required by the Order otherwise would provide during the remaining years of Pilgrims operations.

4. Entergys Request should be denied because its argument in support of its request is not valid.

II. Introduction Pilgrim, like the other Mark I reactors in the U.S., has the same design as the failed Fukushima reactors - GE, Mark I, BWRs. In response to lessons learned from Fukushima, NRC issued EA-13-109 Order to Modify Licensees with Regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Conditions. Pilgrims deadline for compliance with Section IV B of the Order, (Enclosure I, pg., 11) is the Spring of 2017.

Phase 1 (severe accident capable wetwell venting system): no later than startup from the second refueling outage that begins after June 30, 2014, or June 30, 2018, whichever comes first.

Pilgrims second refueling outage after June 30, 2014 will be in the spring of 2017; its first was in 2015.

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Section IV C of the Orders Enclosure I says that:

(1) All Licensees shall, within twenty (20) days of the issuance date of the Final ISG for Phase 1, notify the Commission (1) if they are unable to comply with any of the Phase 1 requirements described in Attachment 2, (2) if compliance with any of the Phase 1 requirements is unnecessary in their specific circumstances, or (3) if implementation of any of the Phase 1 requirements would cause the Licensee to be in violation of the provisions of any Commission regulation or the facility license. The notification shall provide the Licensee's justification for seeking relief from or variation of any specific requirement.

Twenty days after the issuance of the Final ISG for Phase1 was December 15, 2013.

Entergys Request was filed June 24, 2016.

III. CONTENTION- PART 1 Part 1 of Petitioners Contention is:

Entergys Request for Extension to Comply with NRC Order EA-13-109, Order Modifying Licensees with regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Condition (filed June 24, 2016 and entered on Adams, NRCs Electronic Library, July 13, 2016) should be denied on procedural grounds. It is in reality a request for a license amendment. Entergy should be required to follow NRCs rules and practices for amending its license.

Fa c t s Pre s e nt e d in S uppo rt - Co nt e nt io n Pa rt 1 Entergys Request should be denied on procedural grounds. It is in reality a request for a license amendment and it should follow NRCs rules and practices for amending its license.

As amended by Section IV B of EA-13-109 (An Order to Modify Licensees with Regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Conditions), Pilgrims license requires Pilgrim to complete installation of reliable hardened vents (Order, Enclosure 1, pp. 5, 11) no later than the Spring of 2017.

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The NRC Order amended Pilgrims license (and the licenses of nineteen other BWR licensees) to require the installation of reliable hardened vents promptly to be completed - no later than startup from the second refueling outage that begins after June 30, 2014 or June 30, 2018, whichever comes first - for a very good reason. The NRC determined that the vents are needed to protect health and minimize danger to life or property (Order, Enclosure 1, p.7), and to provide reasonable assurance of adequate protection of public health and safety, and they are cost-justified (Order, Enclosure 1, p.6).

Entergys request seeks to amend Pilgrims license by delaying the compliance date for more than two and one-half years, until December 31, 2019. Entergys request is a transparent attempt to avoid the general requirements and guidance for amending an existing license as set forth in 10 C.F.R. §§ 50.90, 50.91. NRC must deny the Request and require Entergy to play by the rules.

The requirements to request a license amendment, that Entergy seeks to avoid, are explained in NRCs Rules and Practices (6.1 Amendments to Existing Licenses and or Construction Permits). It explains that, In passing upon an application for an amendment to an operating license or construction permit, "the Commission will be guided by the considerations which govern the issuance of initial licenses or construction permits to the extent applicable and appropriate."10 C.F.R. § 50.91. These considerations are broadly identified in 10 C.F.R. § 50.40. In essence, Section 50.40 requires that the Commission be persuaded, inter alia, that the application will comply with all applicable regulations, that the health and safety of the public will not be endangered, and that any applicable requirements of 10 C.F.R. Part 51 (governing environmental protection) have been satisfied. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41,44 (1978).

Emphasis added.

Entergys request shows that it does not intend ever to comply with the requirements in Section IV of NRC Order EA-13-109 concerning implementation of Phase 1 (wetwell vent).

See Entergy Request, p. 2) Entergys non-compliance will endanger public health and safety, as 16

the NRC said in its rationale for issuing EA-13-109, discussed in Contention 2 below.

Entergys Request should be denied. Entergy should be required to follow the rules.

Nothing would prevent Entergy from submitting a request for a license amendment, if it so chooses. One reason Entergy has instead sought to ignore the rule seems clear. Section 6.1.4 of the NRCs Rules of Practice Hearing requirements for license Permit Amendments is clear;

[W]here a proposed amendment involves significant hazards considerations, the opportunity for a hearing on the amendment [must] be provided prior to issuance of the amendment.

The Atomic Energy Act of 1954 and the regulations (10 C.F.R. § 2.105(a)(3))

require that, where a proposed amendment involves "significant hazards considerations," the opportunity for a hearing on the amendment be provided prior to issuance of the amendment and that any hearing requested be held prior to issuance of the amendment. An opportunity for a hearing will also be provided on any other amendment as to which the Commission, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards determines that an opportunity for public hearing should be afforded. 10 C.F.R. § 2.105(a)(6)(7).

A technical specification is a license condition. A license request to change that condition constitutes a request to amend the license and therefore creates adjudicatory hearing rights under Atomic Energy Act § 189a, 42 U.S.C. § 2239(a). See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 91 n.6, 93 (1993); General Public Utilities Nuclear Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 NRC 143, 150 n.6 (1996).

Entergy, quite clearly, does not want a public hearing.

The NRC Rules are also clear that [t]he only time a public hearing is not required [is] in situations where the NRC Staff makes a no significant hazards consideration finding.

The only time that a prior hearing is not required under Section 189a of the Atomic Energy Act, as amended, for Commission approval of a license amendment [is] in situations where the NRC Staff makes a "no significant hazards consideration" finding. Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 622-623 (1981); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 123 (1986). See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 11 (1986), rev'd and remanded on other grounds sub nom. San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986). (2001); see AEA § 189, 42 U.S.C. 2239.

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The only circumstances in which the staff is authorized to make a no significant hazards consideration finding are if it finds that operation of the facility in accordance with the proposed amendment would not:

1. Involve a significant increase in the probability or consequences of an accident previously evaluated; or

2. Create the possibility of a new or different kind of accident from any accident previously evaluated; or

3. Involve a significant reduction in a margin of safety.

(Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-7,53 NRC 113, 116 (2001).

Given the findings that the Commission has already made in the Order, the staff properly could not make a no significant hazards consideration finding here.

Petitioners show that once Entergy is required to follow the rules, it can request a license amendment, and there must be a hearing in which petitioners meeting the requirement for intervention are entitled to participate.

IV. CONTENTION - PART 2 Part 2 of Petitioners Contention is:

Entergys Request should be denied because it is not timely. Entergy filed its Request June 24, 2016, years after the Orders 20 days filing requirement to notify the Commission if it is unable to comply with any of the Phase I requirements. (EA 109,Section IV, part C)

Specifically,Section IV C says that:

(1) All Licensees shall, within twenty (20) days of the issuance date of the Final ISG for Phase 1, notify the Commission (1) if they are unable to comply with any of the Phase 1 requirements described in Attachment 2, (2) if compliance with any of the Phase 1 requirements is unnecessary in their specific circumstances, or (3) if implementation of any of the Phase 1 requirements would cause the Licensee to be in violation of the provisions of any Commission regulation or the facility license. The notification shall provide the Licensee's justification for seeking relief from or variation of any specific requirement.

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Nothing in Entergys Request even suggests that Pilgrim is unable to comply with the Order or that implementation would cause the Licensee to be in violation of the provisions of any Commission regulation or the facility license. The most that can be said of the Request is that Entergy believes that compliance is unnecessary in their specific circumstances. If so, the Order required Entergy to notify the Commission within 20 days of the ISG dated November 25, 2013, not more than two and one half years later.

Petitioners find it difficult to believe, and it quite plainly would be Entergys burden to prove, that it was not until less than 20 days before June 24, 2016, when Entergys request was filed, that Entergy knew that Pilgrim was in serious economic straits and likely would cease operations by June of 2019. What seems far more likely is that Entergy intentionally delayed making any request for an extension of the deadline for complying with the Order until long after it knew that Pilgrim would close, hoping that delaying any notice as long as possible would mean that fewer years would elapse between the request and Pilgrims shut down, and enhance 7

Entergys chances of not being required to comply with the Order.

The basic facts showing that Entergys Request is not timely, however, are known. The Interim Staff Guidance, JLD-ISG-2013- NRC-issued guidance for modified Reliable Hardened Vents Order (JLD-ISG-2013-02) is dated November 14, 2013. (NRC Library, Adams Accession No. ML13304B836). Entergys June 24, 2016 was filed approximately two and one-half years beyond the Orders requirement to notify the NRC within 20 days of the issuance of the Final ISG for Phase 1. The date on which Entergy filed its tardy request is also nine months (not 20 days) after Entergy, based on its public announcement that Pilgrim would close early, certainly 7

Entergys Request similarly does not assert that any of the Phase 1 requirements described in Attachment 2 would adversely affect the safe and secure operation of the facility. Order, Sec. IV (C)(2).

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could have notified the NRC, and argued (as its June 2016 Request based upon the permanent shutdown of Pilgrim does) that because of this early closure compliance with any of the Phase 1 requirements is unnecessary. 8 IV. CONTENTION - PART 3 Part 3 of the Petitioners contention is:

Entergys Request should be denied because granting it would deny citizens and communities the protection a reliable severe accident capable wetwell venting system would provide during the two remaining years of Pilgrims operations.

Fa c t s Pre s e nt e d in S uppo rt - Co nt e nt io n Pa rt 3 In October of 2015, Entergy announced that it would close Pilgrim by June of 2019 because of poor market conditions, reduced revenues and increased operational costs.

Exactly when Pilgrim would close was left unclear. One likelihood was that Entergy would shut-down Pilgrim at the end of 2016, and thus avoid the costs of refueling in the spring of 2017. The other was that Entergy would continue to operate Pilgrim until its contractual obligations to provide power ended on May 31, 2019. Eventually, Entergy decided to refuel Pilgrim in the Spring of 2017 and to continue to operate Pilgrim until June 1, 2019.

Entergys purely economic reasons for this decision seem clear: (i) Entergy would be able to collect hundreds of millions of dollars over the two and one-half years of continued operation, revenues that would be lost if Pilgrim did not refuel in 2017; and (ii) Entergy hoped 8

In its December 15, 2015 status report, Entergy said:

Need for Relief/Relaxation and Basis for the Relief/Relaxation. As noted in this submittal cover letter, Entergy plans to permanently cease operation of PNPS no later than June 1, 2019. The Hardened Containment Vent System Phase 1 and Phase 2 strategies documented in this submittal are accurate descriptions of the current planned modifications and/or. strategies to satisfy the requirements of NRC Order EA-1 3-109.

Notably, Entergys status report did not request any relief from or relaxation of the Order or notify the NRC that Entergys plan made compliance with the Order unnecessary.

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that the NRC would not require it to satisfy the Orders requirement that the installation of the hardened vents by the spring of 2017 - i.e., Entergy wanted to have the best of two possible worlds; until June of 2019 Entergy wanted to be able to collect, and at the same time avoid having to spend, money.

The NRC has already found that compliance with the Order is necessary to ensure reasonable assurance of adequate protection of public health and safety, and that the public health, safety and interest require that this Order be made immediately effective. EA-13-109 (Enclosure I, at 10):

The NRC has concluded that (1) the requirement to provide a reliable HCVS to prevent or limit core damage upon loss of heat removal capability is necessary to ensure reasonable assurance of adequate protection of public health and safety, and (2) the requirement that the reliable HCVS remain functional during severe accident conditions is a cost-justified substantial safety improvement under 10 CFR 50.1 09(a)(3). The NRC is therefore requiring Licensee actions. In addition, pursuant to 10 CFR 2.202, the NRC finds that the public health, safety and interest require that this Order be made immediately effective. (Emphasis added)

The NRC could grant Entergy its requested compliance extension only by ignoring the significant public health, safety and interest that required the Order to be immediately effective, and by doing so the NRC would knowingly allow Pilgrim to continue to operate for more than two years without reasonable assurance of adequate protection of public health and safety.

The Orders discussion of Backfitting (Order, Enclosure I at 6) clearly supports Petitioners contention. That part of the Order shows that letting Entergy remain out of compliance would deprive citizens of a severe capable wetwell vent that reduces the likelihood of containment failures and thereby enhances the defense-in-depth protections for plants 21

with Mark I and Mark II containments; and would place Pilgrim, among other very important things, at a relatively high probability[y] that [its] containment[s] would fail should an accident progress to melting the core. EA-13-109 is quite clear:

As discussed in SECY-12-0157, the NRC's determination that a venting system should be available during severe accident conditions (to) enhance[e] the defense-in-depth characteristics of Mark I and Mark II containments by addressing the relatively high probabilities that those containments would fail should an accident progress to melting the core ... (and) addressing uncertainties in the understanding of severe accident events, supporting severe accident management and response, improving the control of hydrogen generated during severe accidents, improving readiness for external and multi-unit events, and reducing uncertainties about radiological releases and thereby improving emergency planning and response.

The installation of a reliable, severe accident capable containment venting system, in combination with other actions such as ensuring drywell flooding capabilities, reduces the likelihood of containment failures and thereby enhances the defense-in-depth protections for plants with Mark I and Mark II containments. (Order, Enclosure I pg., 6) Emphasis added.

The Order also says that the NRC a reliable hardened venting system is a needed and cost-justified substantial safety improvement:

The Commission has determined that requiring BWR facilities with Mark I and Mark II containments to make the necessary plant modifications and procedure changes to provide a reliable hardened venting system that is capable of performing under severe accident conditions is a cost-justified substantial safety improvement. These modifications are needed to protect health and to minimize danger to life or property because they will give licensees greater capabilities to respond to severe accidents and limit the uncontrolled release of radioactive materials. In such situations, the Commission may act in accordance with its statutory authority under Section 161 of the Atomic Energy Act of 1954, as amended, to require Licensees to take appropriate action to reduce the risks posed to the public from the operation of nuclear power plants. (Order., pg.,7)

Emphasis added.

The NRCs conclusion that reliable hardened containment vents are needed to insure adequate protection of the public health and safety is not limited to those near Pilgrim, but also anyone any of the other twenty boiling water reactor licenses in 15 different states listed in to the Order.

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It is crystal clear from NRCs own Order that Petitioners who live near Pilgrim will be adversely affected if Entergys request for Extension to Comply is not denied; and that they need and deserve protection at least as much as do those living in any of those 14 other states.

It should be equally clear that the NRCs obligation is to protect the public. It is not to ratify Entergys desire to make money for two+ years after the ordered completed installation hardened vents by abdicating what the NRC order required.

V. CONTENTION- PART 4 Part 4 of Petitioners Contention is:

Entergys Request should be denied because its arguments in support of its request are not valid.

Fa c t s Pre s e nt e d in S uppo rt - Co nt e nt io n Pa rt 4 Entergys rationale for being excused from complying with the Order essentially is three-fold, and none of the three excuses hold water. A license amendment hearing must be held to provide the Petitioners the opportunity to prove why they do not.

1. Entergy says that compliance with the Order is unnecessary because its proposed FLEX Severe Accident Strategy will preclude the occurrence of core damage, but also includes the capability for restoring and maintaining containment integrity and to cool core debris and thereby allow recovery without the serious complications that were encountered at Fukushima Daiichi. (Entergy Letter No. 2.16.028 (June 24, 2016), pg.,

2) Even if Petitioners were to assume that this is so, which it is not, the proposed FLEX strategy does not meet the requirements of the Order.

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2. Entergys Request compares Pilgrim to Oyster Creeks HCVS strategies (Request Attachment 1 to PNPS letter 2.18.028, pg., 5) The two are not comparable; and the NRC decision to grant Oyster Creek an extension without a public hearing provides no precedent requiring it to grant Pilgrims request here.

3. Entergys request claims that it essentially will meet the requirements for reliable hardened vent systems capable of operation under severe accident conditions. It will not.

Contrary to its statements, Entergy does not intend ever to comply with the Order; and Entergy also admits that Entergys Pilgrim Plan does not meet the Order Requirements (Attachment 1 to PNPS letter, pg. 2) The Request is not simply a request for a schedule change. Rather Letter No. 2.16.028 (at 2) admits that Entergys goal is for the NRC to grant a request for relief from NRC Order EA-13-109 no later than December 31, 2019 based upon the permanent shutdown.

A. Entergys FLEX Rationale The Order requires installation of reliable hardened vents that will not only assist in preventing core damage, but will also function when core damage has occurred. (Order, p.

5). [I]n addition to providing a reliable HCVS to assist in preventing core damage when heat removal capability is lost, Licensees also must ensure that venting functions are also available during severe accident conditions. including accidents involving a breach of the reactor vessel by molten core debris. (Order, pp 3-4)

Entergy claims that FLEX Severe Accident Strategy will preclude the occurrence of core damage. But even Entergy nowhere says that either FLEX or anything else that 24

Entergy has done or intends to do will, as the Order requires, ensure that venting functions are also available during severe accident conditions.

Indeed, Entergy admits that the FLEX system it intends to have in-place at some unspecified time will meet only some of the objectives of NRC Order EA-13-109, that some of the HCVS instrumental installations will never be completed, and that Entergy is focused, not on ensuring that venting functions will be available when needed, but only on maintaining core cooling and submergence. (Entergy Letter No. 2.16.028 (June 24, 2016, pg. 2):

at Pilgrim we designed a FLEX Strategy that utilizes Wetwell Venting and Severe Accident Water Addition and Management Strategies to mitigate all Beyond-Design-Basis conditions. It is our intention to have in-place a fully capable Severe Accident Strategy that meets all of the primary objectives of NRC Order EA-13-109. Given the remaining schedule for power operation at Pilgrim through mid-2019, some of the HCVS instrumentation installations that would not have been completed until 2017 have been replaced with enhancements to our existing FLEX capabilities that were already designed with Severe Accident capabilities. We are confident that this strategy can perform all the core cooling, mitigation, and recovery tasks for severe accident conditions that are soundly based on the lessons-learned from the Fukushima Daiichi experience. (Entergy Letter No. 2.16.028 (June 24, 2016, pg., 2)

Along with experts such as David Lochbaum, Petitioners do not believe that Entergys Flex Strategy will accomplish even what Entergy says it will, and are entitled to prove at hearing that it will not.

Petitioners are also entitled to be provided the opportunity to prove, as Entergy has effectively already admitted, that the FLEX Strategys goal of mitigating the likelihood of core cooling utterly fails to meet the Orders requirement that reliable hardened vents must be installed not only assist in preventing core damage when heat removal capability is lost, but will also function in severe accident conditions (i.e., when core damage has occurred).

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Emphasis added. Also, and most basic, if Entergy complied with the Order, it would not request an extension to comply with EA-13-109.

B. Entergys Comparison to Oyster Creek Entergys comparison of Oyster Creeks request for an extension and Pilgrims is an obvious attempt to show that because Oyster Creeks Request for Extension to Comply was accepted then too should be Pilgrims. This is not so; the two are not properly comparable and what the NRC did for Oyster Creek provides no precedent for granting Entergys request here.

No one opposed Oyster Creeks Request, either procedurally or on the merits. The staff granted Oyster Creeks Request for Extension without recognizing that Oyster Creeks request, like Pilgrims, was really a request to amend its operating license; and the NRC thus approved it without providing the hearing that NRC rules and regulations require. As a result, there was no consideration of any important facts or factual disputes could have been raised at the hearing that should have been provided, facts and disputes that might well have led, and that under the applicable rules and regulations should have led, to a denial of the request.

Short and simple, the NRC rubber-stamped Oyster Creeks request for an extension because no one opposed it. Pilgrims should not be.

C. Entergys Request Does Not Show That It Will Meet the Requirements for Reliable Hardened Vent Systems Capable of Operation Under Severe Accident Conditions The Order requires that Pilgrim provide reliable hardened vent systems that are capable of operation under severe accident conditions not later than startup from its Spring 2017 26

refueling outage, and makes clear that compliance by that date is essential to provide adequate protection of the public health and safety.

Although Petitioners are not required to prove their case at the contention filing stage, it is abundantly clear that nothing in Entergys Request suggests that Pilgrim is fully capable of doing, or will do, what the Order requires. The NRC cannot properly excuse Pilgrim from complying with the Order, and placing those near Pilgrim at a risk that the NRC has found unacceptable, simply because Entergy prefers collecting revenues from continued operation until at least June of 2019 to spending money to do what the Order correctly ordered it to do.

Petitioners are entitled to a hearing and to be given the opportunity to prove that Entergys request properly cannot be granted.

VI. PETITIONERS MEET REQUIREMENTS FOR A VALID CONTENTION A. Petitioners Have Standing; The Request was filed in a timely manner.

The nature and extent of the Petitioners property, financial and other interests in the proceeding were demonstrated in Section I. Petitioners believe that if Entergy is granted its Request for Extension that it would deny Petitioners the protection a severe accident capable wetwell venting system would provide during at least the remaining years of Pilgrims operations. See Section IV, Contention Part 3. The Petitioners do not have other means of protecting their interests. Petitioners participation might reasonably assist in developing a sound record regarding the subjects of this filing; and a materially different result would be likely with its participation. The contention was filed within 60 days of its appearance in NRCs Electronic Library Adams, July 13, 2016.

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B. Petitioners have pleaded a Valid Contention Petitioners respectfully submitted the following four-part contention for consideration:

1. Entergys Request should be denied on procedural grounds. It is in reality a request for a license amendment and it should follow NRCs rules and practices for amending its license.

2. Entergys Request should be denied because the Request is not timely.

3. Entergys Request should be denied because granting it would deny citizens and communities the protection that the NRC has already said is essential to adequately protect the public health and interest, that a severe accident capable wetwell venting system would provide during the remaining years of Pilgrims operations.

4. Entergys Request should be denied because its argument in support of its request is not valid.

C. The Contention Is Within Scope The contention addresses four principle reasons that Entergys request should be denied.

Procedurally: Entergys request should instead be a request for License Amendment and its filing was not timely. Substantively: If the request were granted it would deny Petitioners and communities that they represent a severe accident capably venting system as required by the order EA-13-109; and we dispute Entergys arguments on behalf of their request as not being valid.

D. The Issue Raised in the Contention Is Material The issue raised in this contention is material to the findings the NRC must make. The deficiencies highlighted in this contention have enormous independent health, safety, environmental and economic significance, discussed in Contention Part three.

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E. The Contention is Supported by Concise Statements of Fact A Petitioner is not required to prove its case at the contention filing stage; in support of this request Petitioners rely here on government and licensee documents and expert opinion.

F. Petitioners Presented Substantial Bases for its Contention.

The contention is clearly explained and supported by fact.

VII. CONCLUSION We respectfully request acceptance of Petitioners request to deny Entergys Request and provide Petitioners with a hearing. Petitioners Request challenges Entergys Request for Extension to Comply with NRC Order EA-13-109,Section IV Requirements Regarding Implementation of Phase 1 and Phase 2 Severe Accident Capable Vents for Pilgrim Nuclear Power Station. Petitioners here have focused on Phase 1 of the Order - severe accident capable wetwell venting system. In order to protect Petitioners health, safety, environment and property, we believe that Entergys request must be denied; and that Entergy must be made to follow NRC rules and file a valid Request for a License Amendment.

Respectfully submitted by Pilgrim Watch on behalf of Co-Petitioners, PILGRIM WATCH (Signed (electronically) by, Mary Lampert Pilgrim Watch, Director 148 Washington Street, Duxbury, MA 02332 Tel. 781-934-0389/Email: mary.lampert@comcast.net September 7, 2016 29

BEYOND NUCLEAR Executed in Accord with 10 CFR 2.304(d),

Paul Gunter, Director Oversight Project Beyond Nuclear 6930 Carroll Ave., #400, Takoma Park, MD 20912 Tel: 301-270-2209/ Email: paul@beyondnuclear.org September 7, 2016 PILGRIM COALITION Executed in Accord with 10 CFR 2.304(d)

Joseph Waldstein Pilgrim Coalition, Treasurer 232 Main Street, Kingston, MA 02364 Tel. 781.585.3574/Email: JWaldstein@maline.com September 7, 2016 PILGRIM LEGISLATIVE ADVISORY COALITION Executed in Accord with 10 CFR 2.304(d)

James Garb, MD 11 Kingsbury Way Yarmouth Port, MA 02675 Tel. 508-375-0419/Email:jimgarb@comcast.net September 7, 2016 CAPEDOWNWINDERS Executed in Accord with 10 CFR 2.304(d)

Diane Turco Cape Downwinders, Director 157 Long Road -Harwich, MA 02645 Tel 508-776-3132/Email: tturco@comcast.net September 7, 2016 CAPE DOWNWINDERS COOPERATIVE Executed in Accord with 10 CFR 2.304(d)

Margaret Rice Moir 121 Wiffletree Avenue, Brewster, MA Tel: 508-694-6124/ Email: enjoylifemrm@msn.com September 7, 2016 MASSACHUSETTS DOWNWINDERS 30

Executed in Accord with 10 CFR 2.304(d)

Paula Sharaga 234 Columbia Street, Cambridge, MA 02139 Tel. 617-497-5170/Email:morethanpaula@gmail.com September 7, 2016 CITIZENS AWARENESS NETWORK Executed in Accord with 10 CFR 2.304(d)

Arlene Williamson 103 Surf Drive, Mashpee, MA 02649 Tel. 774-521-2347/Email: a.williamson99@comcast.net September 7, 2016 ATTACHMENT 31

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