ML19303B316

Docketing Statement (DC Cir.)(Case No. 19-1198) 10-28-19

ML19303B316
Person / Time
Site:	Pilgrim
Issue date:	10/28/2019
From:	Dorfler J, Healey M, Schofield S Commonwealth Of Massachusetts, Office of the Attorney General
To:	Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit
Averbach A, OGC, 415-1956
References
1812919, 19-1198
Download: ML19303B316 (17)

Text

USCA Case #19-1198 UNITED Document STATES #1812919 COURT OF Filed: APPEALS10/28/2019 Page 1 of 17 DISTRICT OF COLUMBIA CIRCUIT 333 Constitution Avenue, NW Washington, DC 20001-2866 Phone: 202-216-7000 l Facsimile: 202-219-8530 AGENCY DOCKETING STATEMENT Administrative Agency Review Proceedings (To be completed by appellant/petitioner)

1. CASE NO. 19-1198 2. DATE DOCKETED: 09-25-2019

3. CASE NAME (lead parties only) Commonwealth of Massachuset U.S. Nuclear Regulatory Commission and v.

4. TYPE OF CASE: Review Appeal Enforcement Complaint Tax Court

5. IS THIS CASE REQUIRED BY STATUTE TO BE EXPEDITED? Yes No If YES, cite statute

6. CASE INFORMATION:

a. Identify agency whose order is to be reviewed: U. S. Nuclear Regulatory Commission

b. Give agency docket or order number(s): 50-293 & 72-1044

c. Give date(s) of order(s): August 20, 2019 & August 22, 2019

d. Has a request for rehearing or reconsideration been filed at the agency? Yes No If so, when was it filled? By whom?

Has the agency acted? Yes No If so, when?

e. Identify the basis of appellant's/petitioner's claim of standing. See D.C. Cir. Rule 15(c)(2):

Please see attachment.

f. Are any other cases involving the same underlying agency order pending in this Court or any other?

Yes No If YES, identify case name(s), docket number(s), and court(s)

g. Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit Court, or the Supreme Court which involve substantially the same issues as the instant case presents?

Yes No If YES, give case name(s) and number(s) of these cases and identify court/agency:

h. Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any other alternative for dispute resolution? Yes No If YES, provide program name and participation dates.

Signature /s/ Joseph Dorfler Date 10-28-2019 Name of Counsel for Appellant/Petitioner Seth Schofield and Joseph Dorfler Address Office of the Massachusetts Attorney General's Office, 1 Ashburton Place, 18th Fl, Boston, MA 02108 E-Mail seth.schofield@mass.gov/joseph.dorfler@ma Phone ( 617 ) 963-2436 Fax ( 617 ) 727-9665 ATTACH A CERTIFICATE OF SERVICE Note: If counsel for any other party believes that the information submitted is inaccurate or incomplete, counsel may so advise the Clerk within 7 calendar days by letter, with copies to all other parties, specifically referring to the challenged statement.

USCA Form 41 August 2009 (REVISED)

USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 2 of 17 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

COMMONWEALTH OF )

MASSACHUSETTS, )

)

Petitioner, )

)

v. ) No. 19-1198

)

UNITED STATES NUCLEAR )

REGULATORY COMMISSION )

AND UNITED STATES OF )

AMERICA, )

)

Respondents. )

)

Attachment to Agency Docketing Statement (6.e.)

Response to item 6(e): Basis of Petitioners Standing.

Petitioner Commonwealth of Massachusetts seeks judicial review of the following decisions of the Nuclear Regulatory Commission (NRC):

(i) the August 22, 2019 order approving the direct and indirect transfer of the Pilgrim Nuclear Power Stations (Pilgrim) NRC license from Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively, Entergy) to Holtec Pilgrim, LLC and Holtec Decommissioning International, LLC (HDI) (License Transfer Approval) and the related license amendment (License Amendment),

USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 3 of 17 Petition Attachments (Pet. Attach.) 1 & 2; (ii) the August 22, 2019 Final No Significant Hazards Consideration determination, Pet.

Attach. 4, at 25, which made the License Transfer Approval and License Amendment immediately effective prior to a hearing requested by the Commonwealth; (iii) the August 22, 2019 Safety Evaluation related to the license transfer order and license amendment, Pet. Attach. 4; (iv) the August 22, 2019 determination that the License Transfer Approval and License Amendment were categorically excluded from any environmental review under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, Pet. Attach. 4, at 27, 33; (v) the August 22, 2019 decision to grant HDI an exemption from 10 C.F.R.

§ 50.82(a)(8)(i)(A) (restricting use of nuclear power plant decommissioning trust funds to radiological decontamination costs)

(Trust Fund Exemption), Pet. Attach. 5; and (vi) the August 20, 2019 Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) under NEPA for the Trust Fund Exemption, Pet. Attach. 7.

To establish standing, the Commonwealth must show that it has suffered a cognizable injury, that the injury is fairly traceable to the NRCs conduct, and that a favorable decision by this Court would be USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 4 of 17 likely to redress the injury. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). However, where, as is the case here, the Commonwealth has been accorded a procedural right to protect [its] ... concrete interests, the Commonwealth can assert that right without meeting all the normal standards for redressability and immediacy. Lujan v. Defenders of Wildlife, 504 U.S.

555, 572 n.7 (1992); see Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir.

2008) (a party suffers a procedural injury when an agency fails to follow a statutorily-mandated procedure if that procedure could change the agencys mind in a particular matter); Sugar Cane Growers Coop. v.

Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002) (a party alleging a procedural injury never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.).

In Lujan, for example, the Supreme Court described procedural injury by explaining that one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agencys failure to prepare an environmental impact USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 5 of 17 statement, 504 U.S. at 572 n.7, and this Court has defined the archetypal procedural injury as involving an agencys failure to prepare a statutorily required environmental impact statement before taking action with potential adverse consequences to the environment.

National Parks Conservation Assn v. Manson, 414 F.3d 1, 5 (D.C. Cir.

2005). In this case, like the example of the proposed dam in Lujan, the facility at issuethe Pilgrim Nuclear Power Station (Pilgrim)is located in Plymouth, Massachusetts, and the radiological and non-radiological contamination at Pilgrim and the spent nuclear fuel that will be stored there, perhaps indefinitely, pose significant public health, safety, environmental, and financial risks to both the Commonwealth and its citizens. Consistent with Lujan and reflective of the important state interests implicated by nuclear reactor licensing proceedings, the NRCs regulations grant states in which a nuclear power plant is located automatic standing to intervene in a proceeding before the NRC regarding the plant. 10 C.F.R. § 2.309(h)(2).

Here, the Commonwealth has standing because it has suffered injuries that are traceable to the challenged actions and that would be redressed by a favorable decision from this Court. On February 20, USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 6 of 17 2019, the Commonwealth filed with the NRC a timely petition (i) to intervene in a proceeding concerning a joint request by Pilgrims then licensee, Entergy, and Holtec and HDI to transfer Pilgrims license to a renamed entity known as Holtec Pilgrim, LLC and HDI, and (ii) for a hearing on that request and an interrelated request by HDI for an exemption to use Pilgrims Decommissioning Trust Fund for purposes otherwise prohibited by the NRCs regulations. The Commission, pursuant to 10 C.F.R. § 2.310(j)(1), was required to issue a decision on the Commonwealths petition, or inform the Commonwealth when it would do so, on or before May 16, 2019. As of this date, October 28, 2019, the Commission has not complied with either of those two mandated options.

Despite the pendency of the Commonwealths petition (and a petition filed by another party), on August 22, 2019, the NRC, acting through its staff and with the Commissioners tacit approval, issued the License Transfer Approval, License Amendment, and Trust Fund Exemption, Pet. Attach. 1, 2, 5. Without addressing any of the Commonwealths previously expressed objections, the NRC, in the License Amendment, struck from Pilgrims license a longstanding USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 7 of 17 condition that required Pilgrims licensee to maintain access to a $50 million contingency fund to cover the cost of decommissioning Pilgrim in the event of a funding shortfall. Also, without addressing any of the Commonwealths previously expressed objections, the NRC, in the Trust Fund Exemption, authorized HDI to use Pilgrims Decommissioning Trust Funda fund created from money collected from Massachusetts electric ratepayersto pay for otherwise prohibited non-decommissioning costs, namely, site restoration and spent nuclear fuel management costs. Even though HDI will recover a significant portion of its spent fuel costs from the U.S. Department of Energy (DOE), the NRC did not require HDI to return any of the money it recovers from DOE to the Trust Fund. The NRCs decision not to do so effectively allows HDI to convert Massachusetts ratepayer funds collected to ensure the safe and complete radiological decontamination of Pilgrim into private profit before Holtec Pilgrim and HDI have fulfilled all of their legal obligations at the plant. Then, relying on its so-called no significant hazards consideration regulation, the NRC made the License Transfer Approval, License Amendment, and Trust Fund USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 8 of 17 Exemption immediately effective. Pet. Attach. 4, at 25. Entergy and Holtec effectuated the license transfer two business days later.

The Commonwealth suffered a procedural injury when the NRC made the License Transfer Approval, License Amendment, and Trust Fund Exemption immediately effective prior to a hearing on the issues raised in the Commonwealths petition and comments on those actions.

In making its Final No Significant Hazards Consideration decision, the NRC relied on 10 C.F.R. § 2.1315(a), which provides that [u]nless otherwise determined by the Commission ..., the Commission has determined that any amendment to [a plants license] ... which does no more than conform the license to reflect the transfer action, involves ...

no significant hazards consideration.... Id. § 2.1315(a). But, by its plain terms, that regulation does not apply in this case because the NRCs decision to eliminate from Pilgrims license the condition requiring the licensee to maintain a $50 million contingency fund to cover decommissioning costs did much more than conform the license to reflect the transfer action. See id. § 2.1315(a); see also id.

§ 2.1315(b) (referring only to administrative amendments [that] are necessary to reflect the approved transfer (emphasis added)). Indeed, it USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 9 of 17 made a substantive change that stripped from the license a vital funding assurance necessary to protect the Commonwealth and its citizens from public health, safety, environmental, and financial risks and it did so without affording the Commonwealth its right to a pre-effectiveness hearing. Thus, the NRC has violated the Commonwealths procedural right to a pre-effectiveness hearing and that violation has injured the Commonwealth and its citizens by, among other things, transferring Pilgrims license to entities that are neither financially nor technically qualified to hold it, thereby increasing the risk of public health, safety, environmental, and financial harms to the Commonwealth and its citizens. See Sugar Cane Growers Coop., 289 F.3d at 94-95.

The Commonwealth also suffered a procedural injury caused by the NRCs violations of NEPA. First, the NRC unlawfully segmented its review of (i) the License Transfer Approval and License Amendment, (ii) the Trust Fund Exemption, and (iii) HDIs revised Post-Shutdown Decommissioning Activities Report (PSDAR) and site-specific cost estimate. Indeed, while these actions undeniably depend on one another, the NRC treated them as separate actions for purposes of USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 10 of 17 NEPA. In that regard, the NRC relied on one of its categorical exclusions to exempt the License Transfer Approval and License Amendment from any NEPA review whatsoever, Pet. Attach. 4, at 27, 33, and issued a separate and deficient EA and FONSI for the Trust Fund Exemption, Pet. Attach. 7. Second, even if not unlawfully segmented, the NRCs decision to categorically exclude the License Transfer Approval and License Amendment violated NEPA for reasons that are similar to its unlawful invocation of the significant hazards consideration regulation: the decision to eliminate the licenses $50 million contingency fund requirement for decommissioning costs took the action outside of the categorical exclusions scope, which covers only administrative amendments required to reflect the approval. 10 C.F.R. § 51.22(c)(21) (emphasis added).

Third, even if it was otherwise proper for the NRC to analyze the potential environmental consequences of the Trust Fund Exemption apart from the License Transfer Approval and License Amendment, the NRCs EA and FONSI for the Trust Fund Exemption were deficient.

Like its Final No Significant Hazards Consideration and its NEPA Categorical Exclusion determinations, the NRC treated the Trust Fund USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 11 of 17 Exemption as administrative in nature even though the Commission has previously made clear that decommissioning trust funds are the means by which the agency fulfills its responsibility to protect public health and safety. 46 Fed. Reg. 11,666, 11,667 (Feb. 10, 1981). In its EA and FONSI, the NRC failed to evaluate the potential direct and indirect environmental consequences of authorizing HDI to withdraw approximately $500 million from Pilgrims Trust Fund for spent nuclear fuel costs without requiring HDI to return to the Trust Fund the portion of those funds that it recovers from DOE. The absence of such a requirement will leave Holtec Pilgrim and HDI without any committed funds to cover spent fuel costs after 2063decades before its obligation to pay for those costs is virtually certain to end. Brewer 2d. Decl. ¶ 14.

Indeed, Holtec Pilgrim and HDI are likely to come up as much as $768 million short on their obligation to maintain safely Pilgrims spent fuel onsite. Brewer 2d. Decl. ¶ 14 & Ex. 3. Spent nuclear fuel, of course, poses a dangerous, long-term health and environmental risk ... for time spans seemingly beyond human comprehension. New York v.

NRC, 681 F.3d 471, 474 (D.C. Cir. 2012) (quoting Nuclear Energy Inst.,

Inc. v. EPA, 373 F.3d 1251, 1258 (D.C. Cir. 2004) (per curiam)).

USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 12 of 17 The Commonwealth has suffered harm from the NRCs actions because they will make it impossible for the new licensee to complete decommissioning successfully and manage Pilgrims spent nuclear fuel onsite safely for decades or lead to irreversible consequences if regulatory or financial concerns, which are likely to arise, require a modified decommissioning approach. Brewer 2d Decl. ¶ 5. According to HDIs revised decommissioning schedule, it will draw over $303 million from Pilgrims Trust during the first seventeen months of the decommissioning, site restoration, and spent fuel management work, representing more than 29 percent of the money available in the Trust Fund if everything goes perfectly according to the licensees ambitious plan. Id. ¶ 15. That substantial draw down, however, will leave insufficient funds in the Trust Fund to permit another entity to complete the work or alter the initiated approach outlined in the licensees schedule should it falter. Id. That is because HDIs accelerate decommissioning approach for Pilgrim may leave the facility in such a state as to preclude a more conservative, long-term approach to decommissioning should HDIs ambitious plan prove unattainable.

See Id. As a result, both the environment and local Massachusetts USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 13 of 17 residents will be exposed to increased safety and health hazards harms that are assum[ed to be] true for purposes of standing. City of Boston Delegation v. FERC, 897 F.3d 241, 250 (D.C. Cir. 2018). Those harms are directly traceable to the NRCs actions because but for the actions and their immediate effectiveness, the new licensee would not begin its ambitious decommissioning process.

The Commonwealth and its citizens will also suffer harm due to the immediate start of decommissioning activities by Holtec Pilgrim and HDI, including health, safety, and infrastructure harms inflicted by, among other things, frequent waste shipments over local roads, which will cause noise, dust, and air pollution emissions, increase the risk of accidents on local roads, and damage local transportation infrastructure. Brewer 2d Decl. ¶ 16. Based on assertions in HDIs revised decommissioning plan, which appear to underestimate radioactive waste volume, id. ¶ 16 nn.13-14, HDI will need to transport at least 1,400 separate truckloads of radiological waste off-site, which is more than twice the volume the NRC previously evaluated in its Generic Environmental Impact Statement for decommissioning nuclear power plants. Id. ¶ 16. When shipments of non-radioactive waste are USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 14 of 17 added, the total number of truckloads will rise to as many as 2,800 to 4,200 total trips. See id. Additionally, Holtec Pilgrim and HDI are likely to remove and ship by truck legacy waste from Pilgrim during the first two to three months following the August 28, 2019 transfer of Pilgrims license from Entergy to Holtec Pilgrim and HDI. See id.

Because of the NRCs actions and their immediate effectiveness, waste shipments will thus begin immediately and cause immediate harm to local land state infrastructure and local health, safety, and the environment. Id.

The Commonwealths injuries would be redressed by a decision from this Court (i) finding that the NRCs determination to make the License Transfer Approval, License Amendment, and Trust Fund Exemption immediately effective violated the NRCs own regulations and (ii) invalidating the Final No Hazards Consideration determination on the ground that it exceeded the regulations scope and unlawfully deprived the Commonwealth of a pre-effectiveness hearing on those actions. The Commonwealths injuries would also be redressed by a decision from this Court (i) finding that the NRC violated NEPA and (ii) invalidating the License Transfer Approval, License USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 15 of 17 Amendment, and Trust Fund Exemption on the grounds that the NRC failed to undertake an appropriate review of the potential direct and indirect environmental consequences of taking those interdependent actions, including the serious consequences of a decommissioning or spent nuclear fuel management funding shortfall. The Commonwealths injuries would also be redressed by a decision from this Court (i) finding that the Trust Fund Exemption was arbitrary and capricious and not in accordance with law and (ii) invalidating the Trust Fund Exemption on the grounds that it violates the Administrative Procedure Act (APA) as a de facto amendment to the NRCs regulations without compliance with the APAs notice and comment procedures and otherwise unlawfully authorizes Holtec Pilgrim and HDI to convert Massachusetts ratepayer funds collected to decommission Pilgrim to private profit even though there already currently exists insufficient money in the Trust Fund to decommission and restore the Pilgrim site and manage its spent nuclear fuel onsite, likely for decades to come.

USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 16 of 17 Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS By its attorneys, MAURA HEALEY ATTORNEY GENERAL

/s/ Joseph Dorfler SETH SCHOFIELD Senior Appellate Counsel JOSEPH DORFLER Assistant Attorney General Energy and Environment Bureau Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 (617) 963-2436 / 2086 seth.schofield@mass.gov Dated: October 28, 2019 joseph.dorfler@mass.gov USCA Case #19-1198 Document #1812919 Filed: 10/28/2019 Page 17 of 17 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Agency Docketing Statement with the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system on October 28, 2019, and that all parties or their counsel of record are registered as ECF Filers and that they will be served by the CM/ECF system.

Dated: October 28, 2019 /s/ Joseph Dorfler Joseph Dorfler Assistant Attorney General Energy and Environment Bureau Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 (617) 963-2086 joseph.dorfler@mass.gov