ML20024D672

From kanterella
Jump to navigation Jump to search
1-17-20, Amicus Brief of Ny Opposing Motion to Dismiss (DC Cir.)(Case No. 19-1198)
ML20024D672
Person / Time
Issue date: 01/17/2020
From: Andrew Averbach
NRC/OGC
To:
References
1824749, 19-1198
Download: ML20024D672 (48)
v • d • e


Text

ORAL ARGUMENT NOT YET SCHEDULED No. 19-1198 UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT COMMONWEALTH OF MASSACHUSETTS, Petitioner,

v.

U.S. NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents, HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, et al.,

Intervenors.

MEMORANDUM OF LAW FOR THE STATES OF NEW YORK, CONNECTICUT, ILLINOIS, IOWA, MARYLAND, MICHIGAN, MINNESOTA, NEW JERSEY, NEW MEXICO, OREGON, PENNSYLVANIA, AND VERMONT AS AMICI CURIAE IN SUPPORT OF PETITIONER AND IN OPPOSITION TO THE MOTIONS TO DISMISS On Petition for Review of Actions by the U.S. Nuclear Regulatory Commission BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General CAROLINE A. OLSEN Assistant Solicitor General of Counsel (Counsel listing continues on signature pages.)

LETITIA JAMES Attorney General State of New York 28 Liberty Street New York, NY 10005 (212) 416-6184 Dated: January 17, 2020 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 1 of 48

i TABLE OF CONTENTS Page TABLE OF AUTHORITIES....................................................................... ii INTRODUCTION & INTERESTS OF AMICI.......................................... 1 ARGUMENT............................................................................................... 4 POINT I DECOMMISSIONING A NUCLEAR ENERGY FACILITY IS A HIGH-RISK, LONG-TERM, COSTLY, AND UNPREDICTABLE PROCESS............................ 4 A.

Decommissioning Presents Serious Environmental and Health Risks That Can Be Unpredictable and Costly, and Can Extend Indefinitely Into the Future.......................... 4 B.

The Pilgrim License Transfer Exacerbates the Risks Posed by Pilgrims Decommissioning........................................ 9 POINT II AMICI STATES HAVE A VITAL INTEREST IN PARTICIPATING IN NRC PROCEEDINGS THAT AFFECT DECOMMISSIONING.................................. 11 POINT III NRC UNLAWFULLY DEPRIVED THE COMMONWEALTH OF ITS RIGHT TO A HEARING........................................................................................ 15 POINT IV NRCS ACTIONS ARE REVIEWABLE NOW................................................ 17 A.

The Challenged NRC Actions Are Final................................. 17 B.

The Commonwealths Claims Should Not Be Dismissed for Failure to Exhaust............................................................. 19 CONCLUSION......................................................................................... 22 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 2 of 48

ii TABLE OF AUTHORITIES Cases Page(s)

City of Benton v. U.S. Nuclear Regulatory Commn, 136 F.3d 824 (D.C. Cir. 1998).............................................................. 19 County of Rockland v. U.S. Nuclear Regulatory Commn, 709 F.2d 766 (2d Cir. 1983)................................................................. 18 League of United Latin Am. Citizens v. Wheeler, 899 F.3d 814 (9th Cir. 2018)................................................................ 20 Leonard v. McKenzie, 869 F.2d 1558 (D.C. Cir. 1989)............................................................ 19 Massachusetts v. U.S. Nuclear Regulatory Commn, 878 F.2d 1516 (1st Cir. 1989).............................................................. 17 Massachusetts v. U.S. Nuclear Regulatory Commn, 924 F.2d 311 (D.C. Cir. 1991).............................................................. 19 National Envtl. Dev. Assns Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014).............................................................. 17 Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory

Commn, 680 F.2d 810 (D.C. Cir. 1982)........................................................ 17, 18 New York v. U.S. Nuclear Regulatory Commn, 681 F.3d 471 (D.C. Cir. 2012)................................................................ 7 Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251 (D.C. Cir. 2004).............................................................. 7 Pacific Gas & Elec. Co. v. State Energy Res. Conservation &

Dev. Commn, 461 U.S. 190 (1983).............................................................................. 14 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 3 of 48

iii Cases Page(s)

Shieldalloy Metallurgical Corp. v. U.S. Nuclear Regulatory Commn, 624 F.3d 489 (D.C. Cir. 2010).............................................................. 15 Laws 5 U.S.C. § 706....................................................................................... 3, 15 28 U.S.C.§ 2342......................................................................................... 17 42 U.S.C.

§ 2011 et seq........................................................................................... 2

§ 2021.................................................................................................... 14

§ 2239.................................................................................. 14, 15, 17, 21 Administrative Materials 10 C.F.R.

§ 2.1315................................................................................................. 16

§ 50.2....................................................................................................... 4

§ 50.54..................................................................................................... 9

§ 50.75..................................................................................................... 8

§ 50.82................................................................................................. 8, 9

§ 51.53..................................................................................................... 8

§ 51.95..................................................................................................... 8 Decommissioning Trust Provisions, 67 Fed. Reg. 78,332 (Dec. 24, 2002)...................................................... 8 General Requirements for Decommissioning Nuclear Facilities, 53 Fed. Reg. 24,018 (June 27, 1988)..................................................... 9 Streamlined Hearing Process for NRC Approval of License Transfers, 63 Fed. Reg. 66,721 (Dec. 3, 1998).................................... 16 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 4 of 48

iv Miscellaneous Authorities Page(s)

H.R. Rep. No.97-884 (1983)............................................................... 14, 15 Christopher Maag, Investors See Huge Profits From Old Nuclear Plants, But It Could Cost Taxpayers, North Jersey Record (June 20, 2019), https://tinyurl.com/y4hplteb.......................... 6 Entergy Newsroom, Entergy Agrees to Post-Shutdown Sale of Indian Point Energy Center to Holtec International (Apr. 16, 2019), https://tinyurl.com/raxfku8....................................... 12 Intl Atomic Energy Agency, Safety Reports Series No. 77, Safety Assessment for Decommissioning (2013),

https://www-pub.iaea.org/MTCD/publications/PDF/Pub1604_web.pdf........ 4, 5, 6, 7 Office of Nuclear Material Safety & Safeguards, U.S. Nuclear Regulatory Commn, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel:

Final Report, Volume 1 (Sept. 2014),

https://www.nrc.gov/docs/ML1419/ML14196A105.pdf......................... 8 Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commn, Assessment of the Adequacy of 10 C.F.R. § 50.75(c)

Minimum Decommissioning Fund Formula (2011),

https://www.nrc.gov/docs/ML1306/ML13063A190.pdf......................... 6 Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commn, Summary Findings Resulting from the Staff Review of the 2013 Decommissioning Funding Status Reports for Operating Power Reactor Licenses (Oct. 2, 2013), https://www.nrc.gov/reading-rm/doc-collections/commission/secys/2013/2013-0105scy.pdf........................... 5 Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commn, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Plants (Feb. 2001),

https://www.nrc.gov/docs/ML0104/ML010430066.pdf......................... 7 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 5 of 48

v Miscellaneous Authorities Page(s)

Sammy Feldblum, All Spent Nuclear Fuel in the U.S. Will Soon End Up in One Place, Natl Geographic (July 30, 2019),

https://www.nationalgeographic.com/environment/2019/07/ne w-mexico-nuclear-waste-storage/........................................................ 13 Thomas Zambito, Dismantling Nuclear Plants Is a Gold Mine For Some, But at What Risk to You?,

Rockland/Westchester Journal News (June 20, 2019),

https://tinyurl.com/tvvqwz7................................................................... 2 U.S. Energy Info. Admin., Decommissioning Nuclear Reactors Is a Long-Term and Costly Process (Nov. 17, 2017),

https://www.eia.gov/todayinenergy/detail.php?id=33792................ 4, 5 U.S. Govt Accountability Office, Disposal of High-Level Nuclear Waste, https://www.gao.gov/key_issues/disposal_of_highlevel_nucl ear_waste/issue_summary................................................................... 10 U.S. Nuclear Regulatory Commn, Dry Cask Storage (last updated May 6, 2019), https://www.nrc.gov/waste/spent-fuel-storage/dry-cask-storage.html....................................................... 8 U.S. Nuclear Regulatory Commn, Locations of Power Reactor Sites Undergoing Decommissioning (last updated Nov. 5, 2019), https://www.nrc.gov/info-finder/decommissioning/power-reactor/.............................................. 11 U.S. Nuclear Regulatory Commn, Public Involvement in Decommissioning (Aug. 24, 2018),

https://www.nrc.gov/waste/decommissioning/public-involve.html.......................................................................................... 14 U.S. Nuclear Regulatory Commn, Special Inspection Activities Regarding Cask Loading Misalignment (last updated Dec. 18, 2019), https://tinyurl.com/w7xnfyw................. 8 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 6 of 48

INTRODUCTION & INTERESTS OF AMICI The Nuclear Regulatory Commission (NRC) is responsible for regulating nuclear power plants, including Pilgrim Nuclear Power Station in the Commonwealth of Massachusetts. In September 2019, NRC transferred Pilgrims license to Holtec International and Holtec Decommissioning International, LLC (collectively, Holtec) without affording the Commonwealth a hearing to address its significant concerns about Holtecs ability to successfully oversee Pilgrims upcoming decommissioning. Amici StatesNew York, Connecticut, Illinois, Iowa, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Pennsylvania, and Vermontsubmit this brief to support the Commonwealths opposition to the motions to dismiss its petition for review.

Many of amici States contain nuclear facilities that, like Pilgrim, are or will soon be undergoing decommissioning: a long-term and costly process that poses significant public health and environmental risks, including possible exposure of workers and the public to harmful levels of radiation and other toxins. Those risks are exacerbated when investors with minimal experience in decommissioning try to oversee the USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 7 of 48

2 decommissioning process at a number of different plants at a profitthe circumstance presented here.1 Given the stakes, amici States have significant interests in ensuring that NRC complies with federal laws permitting States to participate in licensing decisions, including those that directly affect the decommissioning of nuclear power plants.

The Atomic Energy Act (AEA), 42 U.S.C. § 2011 et seq., and NRC rules grant States the right to participate in NRC proceedings to represent their unique sovereign interests. In February 2019, the Commonwealth requested a hearing on the application of Entergy Nuclear Operations, Inc. (Entergy) to transfer ownership of Pilgrim to Holteca limited liability company with no assets. The application sought to eliminate a longstanding requirement that Pilgrims license holder maintain a $50 million contingency fund; it also requested permission for Holtec to use Pilgrims $1.3 billion decommissioning trust fund (DTF) for expenses unrelated to decommissioning. In August 2019, without ruling 1 See Thomas Zambito, Dismantling Nuclear Plants Is a Gold Mine For Some, But at What Risk to You?, Rockland/Westchester Journal News (June 20, 2019) (internet). For sources available on the internet, full URLs appear in the table of authorities.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 8 of 48

3 on the Commonwealths hearing request, NRC approved the application effective immediately.

The Commonwealths petition addresses issues of vital concern to amici States. NRCs refusal to hear from the Commonwealth before approving a license transfer that so significantly altered the license terms violates the AEA, NRC rules, and the Administrative Procedure Act, 5 U.S.C. § 706. Moreover, the Pilgrim license transfer exacerbates the serious risks of decommissioning by permitting an entity with no decommissioning experience and no independent assets to assume control of Pilgrims decommissioning and immediately draw down Pilgrims DTF.

This Court should address the merits of the Commonwealths petition and deny the motions to dismiss. NRCs decision to approve the license is final and reviewable, because it had the significant legal effect of permitting Holtec to begin decommissioning at Pilgrim. And the Commonwealth effectively exhausted all avenues available to it before the NRC; the agency simply refused to engage.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 9 of 48

4 ARGUMENT POINT I DECOMMISSIONING A NUCLEAR ENERGY FACILITY IS A HIGH-RISK, LONG-TERM, COSTLY, AND UNPREDICTABLE PROCESS A.

Decommissioning Presents Serious Environmental and Health Risks That Can Be Unpredictable and Costly, and Can Extend Indefinitely Into the Future.

When a nuclear power plant retires, the reactor must be permanently shut down, the spent nuclear fuelhighly radioactive nuclear wastemust be removed and safely stored, the facility must be deconstructed, and the site must be restored to a condition that is safe for other purposes.2 Decommissioning is the process of reducing residual radioactivity at a nuclear facility to a level that permits the release of the site for alternative use. 10 C.F.R. § 50.2. It requires the decontamination and dismantling of equipment and facilities, the demolition of buildings and structures, and the management of the resulting radioactive and other hazardous wasteamong other things.3 2 U.S. Energy Info. Admin., Decommissioning Nuclear Reactors Is a Long-Term and Costly Process (Nov. 17, 2017) (hereafter EIA) (internet).

3 Intl Atomic Energy Agency, Safety Reports Series No. 77, Safety Assessment for Decommissioning 17 (2013) (hereafter IAEA) (internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 10 of 48

5 Decommissioning is costly and entails unpredictable expenses; and depending on the method employed, it may not be completed for decades after a power plant is shut down.4 At Connecticut Yankee, decommissioning took approximately ten years and cost $893 million. Wisconsins Kewaunee Nuclear Power Plant shut down in 2013, and decommissioning is not expected to be finished until at least 2073, at a total cost of nearly

$1 billion.5 NRC estimates that decommissioning the nations 104 nuclear power plants will cost from $438 million to over $1 billion per reactor facility.6 Actual costs have exceeded estimates at nearly every decommissioned facility. At Connecticut Yankee, for example, previously undiscovered radiological contamination caused decommissioning costs to be nearly 4 Id. at 1, 17-18, 21, 56, 70.

5 EIA, supra.

6 Office of Nuclear Reactor Regulation, NRC, Summary Findings Resulting from the Staff Review of the 2013 Decommissioning Funding Status Reports for Operating Power Reactor Licenses, Summary Table (Oct. 2, 2013) (internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 11 of 48

6 double initial estimates.7 Other contingencies that can increase costs include a radiological incident and work-delays, including due to overhead and project management.8 (Addendum to Mot. to Stay (Add.) 555-564, 574-576, 582-585, 591-595.)

Decommissioning can introduce hazards that are not present when a facility is operational. Because highly toxic chemicals are frequently required to decontaminate equipment and surfaces, plants undergoing decommissioning often generate more toxic waste than operational plants, increasing the risk of soil and water contamination.9 Radioactive liquids and gases can be released when the facilitys large structures and equipment are dismantled. Fires can be caused by the thermal cutting and decontaminating solutions needed for the decommissioning process, as well as by the storage of combustible materials. Fires can cause power loss, which can cause containment equipment or systems to fail, leading 7 Office of Nuclear Reactor Regulation, NRC, Assessment of the Adequacy of 10 C.F.R. § 50.75(c) Minimum Decommissioning Fund Formula vi, 4-23 to 4-24, 4-27 (2011) (draft) (internet).

8 See Christopher Maag, Investors See Huge Profits From Old Nuclear Plants, But It Could Cost Taxpayers, North Jersey Record (June 20, 2019) (internet).

9 See IAEA, supra, at 29, 46, 111-13.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 12 of 48

7 to both on-and off-site radiation exposure.10 At massive levels, radiation exposure can cause sudden death. Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1258 (D.C. Cir. 2004). Even at lower doses, radiation can have devastating health effects, including increased cancer risks and serious birth defects. Id.

Substantial risks remain for as long as spent nuclear fuel is stored at a decommissioned facility.11 Spent nuclear fuel remains hazardous for time spans seemingly beyond human comprehension. New York v. NRC, 681 F.3d 471, 474 (D.C. Cir. 2012) (quotation marks omitted). Spent fuel stored onsite is initially kept in swimming-pool-like structures where the fuel is submerged in cooling water. These pools are susceptible to radiological release through fires or leaks. NRC has found that a fire affecting the integrity of a spent nuclear fuel pool could have consequences comparable to those of a major reactor accident, generating a radioactive plume that causes thousands of deaths from cancer.12 10 See id. at 1, 18, 21, 25, 29, 46-47, 111-13.

11 Office of Nuclear Reactor Regulation, NRC, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Plants 3-1 (Feb. 2001) (internet).

12 See id. at ix, 3-28 to 3-49.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 13 of 48

8 Spent fuel that has been cooled in a spent fuel pool for several years can be moved to storage casks.13 Dry cask storage is safer than spent fuel pools, but not all facilities are equipped for such storage. Moreover, a severe accident affecting the casks integritysuch as the dropping of a cask or a seismic eventcould result in significant radioactive release.14 Recognizing the enormous risks associated with facility retirement, NRC has issued rules to ensure that licensees possess the financial and technical qualifications to oversee the retirement process. See, e.g., 10 C.F.R.

§§ 50.75, 50.82, 51.53, 51.95. For example, NRC requires licensees to show they will have sufficient funds to cover the estimated costs of decommissioning. See id. § 50.75(e). To satisfy this requirement, nearly all licensees require decommissioning trust funds (DTFs). See Decommis-sioning Trust Provisions, 67 Fed. Reg. 78,332, 78,342 (Dec. 24, 2002).

NRC has historically regulated DTFs to ensure they are sufficient to cover the costs of decontamination. Licensees are prohibited from 13 See NRC, Dry Cask Storage (last updated May 6, 2019) (internet).

14 See Office of Nuclear Material Safety & Safeguards, NRC, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel: Final Report, Volume 1 4-89 (Sept. 2014) (internet); NRC, Special Inspection Activities Regarding Cask Loading Misalignment (last updated Dec. 18, 2019) (internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 14 of 48

9 using DTFs for anything but legitimate decommissioning activities.

10 C.F.R. § 50.82(a)(8)(i)(A). DTFs cannot be used to cover the costs of managing spent fuel. See General Requirements for Decommissioning Nuclear Facilities, 53 Fed. Reg. 24,018, 24,019 (June 27, 1988). NRC requires separate financial assurances to ensure licensees can cover the costs of spent fuel management from a different funding source. 10 C.F.R.

§§ 50.54(bb), 50.82(a)(8)(vii).

When a licensee cannot fully cover the costs associated with facility decommissioning, States and their citizens may end up funding the work needed to prevent the facility from posing risks to public health and the environment for hundreds if not thousands of years.

B.

The Pilgrim License Transfer Exacerbates the Risks Posed by Pilgrims Decommissioning.

Holtec has never decommissioned a nuclear facility. Nevertheless, it may soon be responsible for decommissioning six nuclear reactors, including Pilgrim. Furthermore, Holtec is a limited liability company with no independent assets that plans to rely exclusively on Pilgrims DTF to cover the costs of decommissioning, spent fuel management, and site USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 15 of 48

10 restoration.15 According to Holtecs own estimates at filing, Holtecs planned withdrawals from the Pilgrim DTF will leave the trust with only

$3.6 million by 2063 to cover the costs of spent fuel management; and it is almost certain that the Department of Energy (DOE) will not be able to take title to the spent fuel at that point. DOEs establishment of a permanent repository for spent fuel has been perpetually delayed, and the earliest possible year in which a repository will be able to accept nuclear waste is decades away.16 (See also Add. 625.)

Unexpected costs are almost certain to arise because Holtecs cost estimates were based on historical data and do not account for unanticipated site conditions or events. Indeed, since the August 2019 license transfer, Holtec has extended the projected timeline for site restoration by three yearsa cost not included in Holtecs submissions to 15 Although Holtec asserts that it may recover some funds from the Department of Energy, Holtec has not committed to using those funds for decommissioning as opposed to its own profit, nor is there any guarantee that such funds will be sufficient to cover the costs of unexpected contingencies. (See Intervenors Resp. to Mot. for Stay & Affirmative Mot.

to Dismiss Pet. (Intervenors Br.) at 21-22.)

16 See U.S. Govt Accountability Office, Disposal of High-Level Nuclear Waste (internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 16 of 48

11 NRC.17 (Add. 50, 254-256, 268-270, 492, 521-522, 560.) The Commonwealth has estimated the additional costs for this delay alone may be as high as

$100 million, dwarfing the $3.6 million surplus estimated by Holtec in its NRC filings and creating a funding deficit. Based on the submissions to date, it is unclear how Holtec will be able to cover this shortfall.

POINT II AMICI STATES HAVE A VITAL INTEREST IN PARTICIPATING IN NRC PROCEEDINGS THAT AFFECT DECOMMISSIONING Many amici States host or are in proximity to nuclear facilities that are currently retiring or soon will be, and thus face many of the same risks arising from Pilgrims decommissioning. Currently, there are twenty-one power plants in twelve States with ongoing decommissioning.18 Other amici States are likely to host nuclear power plants that are decommissioned in the future, or they may become hosts to waste that is a byproduct of decommissioning.

17 Compare Add. 490 (projecting site restoration to be complete in 2024), with Amicis Addendum 4 (projecting site restoration to be completed in 2027).

18

NRC, Locations of Power Reactor Sites Undergoing Decommissioning (last updated Nov. 5, 2019) (internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 17 of 48

12 Amici therefore share the Commonwealths concerns about the financial and technical capabilities of the entities handling decommis-sioning at these facilities. Entergy, the current licensee of New Yorks Indian Point Power Plant, recently asked NRC to approve a license transfer to Holtec, which proposes to conduct Indian Points three-reactor decommissioning starting in 2021.19 New York expects Holtec to request an exemption permitting it to use Indian Points DTF to cover the costs of decommissioning, fuel management, and site restoration. Although Holtec has claimed that the $2.1 billion currently in the trust is sufficient to cover these costs, it has not submitted the required decommissioning reports that would explain how it can oversee the entire retirement process within that budget, and the materials it has provided to the State are so incomplete and redacted that the States experts cannot replicate Holtecs conclusion that the trusts funds are sufficient.

Connecticut hosts four nuclear reactors, two of which have been retired, and these reactors have generated several hundred tons of spent 19 See Entergy Newsroom, Entergy Agrees to Post-Shutdown Sale of Indian Point Energy Center to Holtec International (Apr. 16, 2019)

(internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 18 of 48

13 nuclear fuel that will need to be stored, potentially indefinitely. In Pennsylvania, Three Mile Island Nuclear Generating Station Unit 2 (TMI Unit 2) has been in post-defueling monitored storage after a partial meltdown of the reactor core in March 1979. The decommissioning of TMI Unit 2 poses unique challenges that will likely exceed the $800 million decommissioning trust fund. For example, cleaning up the radiological contamination alone is estimated to cost $1.3 billion. And although New Mexico does not host a reactor, Holtec is seeking a license from NRC to open an interim storage facility there to store up to 120,000 tons of nuclear waste from decommissioned plants across the country, potentially for decades.20 As with other amici, New Mexico has a strong interest in ensuring that NRC considers the States sovereign interests in its licensing decision.

Congress has recognized amicis vital interest in NRC proceedings affecting decommissioning by guaranteeing States the opportunity to participate in NRC decision-making, including licensing decisions. See 20 See Sammy Feldblum, All Spent Nuclear Fuel in the U.S. Will Soon End Up in One Place, Natl Geographic (July 30, 2019) (internet).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 19 of 48

14 Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Commn, 461 U.S. 190, 210 n. 21 (1983).

The AEA requires NRC to notify affected States when it receives a license-transfer application, and to provide States with a reasonable opportunity to offer evidence, interrogate witnesses, and advise the Commission as to the application. See 42 U.S.C. § 2021(l).21 The AEA also mandates that NRC consult with States when assessing whether a license amendment poses no significant hazards consideration. See 42 U.S.C. § 2239(a)(1)(A). Congress thereby sought to ensure that before making a decision, NRC would listen to and consider any comments provided by the state official designated to consult with the NRC regarding the potential hazards of a proposed license transfer. See H.R.

Rep. No.97-884, at 39 (1983) (Conf. Rep.).

21 See also NRC, Public Involvement in Decommissioning (Aug. 24, 2018) (internet) (describing public involvement in decommissioning activities as a cornerstone of strong, fair regulation of decommissioning).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 20 of 48

15 POINT III NRC UNLAWFULLY DEPRIVED THE COMMONWEALTH OF ITS RIGHT TO A HEARING Given the substantial risks posed by decommissioning, amici States have a substantial interest in NRCs compliance with the federal laws granting States a meaningful role in NRC proceedings. NRCs actions here violated those requirements and must therefore be set aside. See 5 U.S.C. § 706(2)(A); Shieldalloy Metallurgical Corp. v. NRC, 624 F.3d 489, 492-93 (D.C. Cir. 2010).

In any proceeding to amend or transfer a license to operate a nuclear power facility, NRC must grant a hearing upon the request of any person whose interest may be affected by the proceeding. 42 U.S.C.

§ 2239(a)(1)(A). NRC generally must hold this hearing prior to making a decision, unless NRC first determines that a proposed amendment involves no significant hazards consideration. Id. § 2239(a)(2)(A). When Congress promulgated this provision, it cautioned NRC to use its pre-hearing authority carefully. See H.R. Rep. No.97-884, at 37.

NRC has generically determined that an amendment to the license of an energy facility involves no significant hazards consideration when it does no more than conform the license to reflect the transfer.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 21 of 48

16 10 C.F.R. § 2.1315(a). A conforming license amendment, however, simply changes references in the license to entities or persons that no longer are accurate following [an] approved transfer. Streamlined Hearing Process for NRC Approval of License Transfers, 63 Fed. Reg. 66,721, 66,727 (Dec. 3, 1998). When license amendments substantively alter the license terms, the generic no significant hazards determination is inapplicable.22 Id. at 66,727-28; see also 10 C.F.R. § 2.1315(b).

The license amendments here go beyond merely conforming the license to reflect a corporate name change. In particular, the amendment eliminates the requirement that Pilgrims licensee maintain a $50 million contingency fund for unexpected costs. (Add. 14, 200-201, 517-519.)

Because NRC improperly invoked the generic no hazards determination and deprived the Commonwealth of its right to a pre-transfer hearing, NRCs decision to approve the license amendment must be set aside. See 22 Holtec suggests (Intervenors Br. at 26) that a license amendment poses no significant hazards so long as the amendment does not affect the operation of the facility. It cannot be correct that no license amendment during decommissioningi.e., after the plant is no longer operationalcould ever pose a significant hazard, no matter how unqualified the licensee.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 22 of 48

17 National Envtl. Dev. Assns Clean Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014).

POINT IV NRCS ACTIONS ARE REVIEWABLE NOW There is no merit to NRCs and intervenors various arguments for delaying judicial review of the merits of the Commonwealths petition.

A.

The Challenged NRC Actions Are Final.

The Hobbs Act authorizes appellate courts to review final orders issued by the NRC. 28 U.S.C. § 2342(4); 42 U.S.C. § 2239(b). An order is final for Hobbs Act purposes if it imposes an obligation, denies a right, or fixes some legal relationship, usually at the consummation of an administrative process. Natural Res. Def. Council, Inc. v. NRC, 680 F.2d 810, 815 (D.C. Cir. 1982) (quotation marks omitted).

NRCs August 2019 approval of the Pilgrim license transfer and associated amendments gave Holtec immediate control over Pilgrims operations and DTFand authority to spend some $53 million in 2019 and an additional $84 million in 2020. In similar cases, courts have found NRC orders to be final. See, e.g., Massachusetts v. NRC, 878 F.2d 1516, USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 23 of 48

18 1520 (1st Cir. 1989); County of Rockland v. NRC, 709 F.2d 766, 775 (2d Cir. 1983). (See also Massachusettss Opp. to Respts & Intervenor-Respts Mots. to Dismiss (Mass. Opp.) at 9-11.)

NRC wrongly argues that its actions were not final because the Commission remains free to rescind or modify the terms of the transfer.

(See Federal Respts Combined Mot. to Dismiss & Resp. to Petrs Stay Mot. (NRC Br.) at 12-13.) An agency order may be final even if it is not the last that may be entered. Natural Res. Def. Council, 680 F.2d at 815-16 (quoting Ecology Action v. Atomic Energy Commn, 492 F.2d 998, 1000 (2d Cir. 1974)). If NRC were correct that the possibility of further NRC review vitiates finality, most of NRCs decision-making would be unreviewable. Given the nature of [NRC]s statutory mandate, every order is subject to reexamination as new findings are reported and exercises conducted. County of Rockland, 709 F.2d at 775 n.12. (See also Mass. Opp. at 17-18.)

NRC is likewise wrong when it argues (NRC Br. at 13-14) that its actions are unreviewable because the arguments in the Commonwealths outstanding hearing request overlap with the Commonwealths petition to this Court. This is the only forum where the Commonwealth may USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 24 of 48

19 obtain review of NRCs admittedly final determination that the license amendments pose no significant hazards consideration and can thus go into effect immediately, see City of Benton v. NRC, 136 F.3d 824, 825-26 (D.C. Cir. 1998) (per curiam); Massachusetts v. NRC, 924 F.2d 311, 323 (D.C. Cir. 1991). (See also Addendum to Mass. Opp. at 91.)

B.

The Commonwealths Claims Should Not Be Dismissed for Failure to Exhaust.

Whether claims should be dismissed on exhaustion grounds is a question of judicial discretion. See Leonard v. McKenzie, 869 F.2d 1558, 1563 n.4 (D.C. Cir. 1989). Exercising that discretion to bar the Commonwealths action would be both unfair and inconsistent with Congresss intent to ensure State participation in NRC proceedings. (See also Mass. Opp. 18-20.)

The Commonwealth exhausted every available avenue for participating in NRCs proceedingNRC simply refused to engage. When Massachusetts learned of the proposed license transfer and requested exemptions, it promptly requested a hearing to present its concerns.

Having received no ruling from NRC for nearly eight months, Massachusetts asked NRC to stay the proposed transfer for ninety days USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 25 of 48

20 to permit the Commonwealth, Entergy, and Holtec to complete settlement negotiations that could have obviated the need for a hearing. NRC denied the stay but did not act on the Commonwealths outstanding petition for a hearing. (Add. 43, 69-71, 500-552.)

On August 13, 2019, NRC informed the Commonwealth that it intended to approve the license transfer and requested exemptions on August 21, 2019. The Commonwealth submitted objections five business days later. On August 22, without addressing the Commonwealths objections or its outstanding hearing request, NRC approved the license transfer and allowed the transfer to take effect immediately. (See Add. 8-9, 12, 634-635 & n.2.) Although NRC has now ruled on the Commonwealths request for a stay from the agency, NRC has still not acted on the Commonwealths request for a hearing, which has been pending for nearly a year. In similar circumstances, courts have excused parties from exhaustion requirements, noting that they did everything possible and the agency simply failed to act. See, e.g., League of United Latin Am.

Citizens v. Wheeler, 899 F.3d 814, 827 (9th Cir. 2018), rehg en banc granted, 914 F.3d 1189 (9th Cir. 2019).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 26 of 48

21 Applying the exhaustion doctrine in this case would also be inconsistent with the AEAs requirement that NRC consult with States about whether a proposed license amendment raises no significant hazards consideration. 42 U.S.C. § 2239(a)(1)(A). Although NRC offered to consult with the Commonwealth, the Commonwealth learned before the agreed-upon call that NRC had already decided to approve the transfer and amendments. (Add. 69-71, 635.) NRCs conduct prevented Massachusetts from participating in NRCs decision-making, contrary to the goals of the AEA and the States historic responsibility for the health and safety of their residents. NRCs failures should not be a basis for denying judicial review.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 27 of 48

22 CONCLUSION The Court should deny the motions to dismiss.

Dated: New York, New York January 17, 2020 BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General CAROLINE A. OLSEN Assistant Solicitor General LISA M. BURIANEK Deputy Bureau Chief, Environmental Protection Bureau JOSHUA TALLENT Assistant Attorney General CHANNING JONES Assistant Attorney General of Counsel (Counsel listing continues on the next page.)

Respectfully submitted, LETITIA JAMES Attorney General State of New York By:. /s/ Caroline A. Olsen.

CAROLINE A. OLSEN Assistant Solicitor General 28 Liberty Street New York, NY 10005 (212) 416-6184 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 28 of 48

23 WILLIAM TONG Attorney General State of Connecticut 55 Elm St.

Hartford, CT 06106 GURBIR S. GREWAL Attorney General State of New Jersey Hughes Justice Complex 25 Market Street Trenton, NJ 08625 KWAME RAOUL Attorney General State of Illinois 100 West Randolph St.

Chicago, IL 60601 HECTOR H. BALDERAS Attorney General State of New Mexico 408 Galisteo St.

Santa Fe, NM 87501 THOMAS J. MILLER Attorney General State of Iowa 1305 E. Walnut Street Des Moines, IA 50319 ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court St. NE Salem, OR 97301 BRIAN E. FROSH Attorney General State of Maryland 200 St. Paul Pl.

Baltimore, MD 21202 JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania Strawberry Square, 16th Fl.

Harrisburg, PA 17120 DANA NESSEL Attorney General State of Michigan P.O. Box 30212 Lansing, MI 48909 THOMAS J. DONOVAN, JR.

Attorney General State of Vermont 109 State Street Montpelier, VT 05609-1001 KEITH ELLISON Attorney General State of Minnesota 102 State Capitol 75 Rev. Dr. Martin Luther King Jr. Blvd.

St. Paul, MN 55155 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 29 of 48

CERTIFICATE OF COMPLIANCE Pursuant to Rules 27 and 32 of the Federal Rules of Appellate Procedure, William P. Ford, an employee in the Office of the Attorney General of the State of New York, hereby certifies that according to the word count feature of the word processing program used to prepare this document, the document contains 3,799 words, constituting one half of the word limit under Rule 29(a)(5) and Circuit Rule 27(c), and otherwise complies with the typeface requirements of Rules 27(d) and 32(a)(5)-(6).

. /s/ William P. Ford.

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 30 of 48

Addendum USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 31 of 48

Pilgrim Nuclear Decommissioning Citizens Advisory Panel November 14 ear Decom 14 14, 2019 Add1 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 32 of 48

Welcome Patrick OBrien Patrick O Brien Communications Communications and Government and Government Affairs Manager John Moylan John M Site Vice n M ce ce-oylan o

M e-President Viccee resid Pr P

(Acting) 2 Add2 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 33 of 48

Agenda Project Overview EPZ Update Questions?

3 Add3 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 34 of 48

Project Overview 4

Only Add4 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 35 of 48

Project Overview - ISFSI Time Frame: 2019 - 2022, 2027-Fuel Removal from SIte

  • Design, Engineering, Permitting: 2019
  • Pad Construction: Fall 2019 - Summer 2020
  • Fuel Movement: Spring 2020 - Early 2022
  • Begin ISFSI Only Operation: Late 2027 5

Add5 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 36 of 48

Project Overview - Site Characterization Time Frame: 2019 - 2020

  • Bid in Process
  • Site Characterization Study: December 2019 - December 2020 6

Add6 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 37 of 48

Project Overview - Site Modifications Time Frame: 2019 - 2025

  • Reduce electrical loads, remove hazards like oil, abandon systems as they are no longer needed: 2019 - 2022
  • Prepare modifications for demolition activities including cold and dark mods, radiological area reduction, ventilation, power, fire, and lighting modifications: 2022 - 2025 7

Add7 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 38 of 48

Project Overview - Reactor Segmentation Time Frame: 2019 - 2023

  • Procure and secure tooling: 2019 - 2020
  • Prepare refuel floor for work: 2020
  • Initial reactor vessel internals segmentation: 2020 - 2021

Add8 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 39 of 48

Project Overview - Demolition Time Frame: 2020 - late 2026

  • Demolition of out buildings: 2020 - 2026
  • Waste abatement: 2024
  • Demolition of reactor and turbine building: 2025 - 2026 9

Add9 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 40 of 48

Project Overview - Demolition Waste Generation & Shipment Time Frame: 2020 - 2026

  • Demolition Waste: 2024 - 2026
  • Radiological Waste: 2020 - 2026 10 Add10 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 41 of 48

Project Overview - Site Restoration Time Frame: 2026 - 2027*

  • Final Survey: 2026 - 2027
  • Earthwork: mid-2026 - mid-2027
  • Final restoration: 2027
  • Final site restoration standards yet to be finalized 11 Add11 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 42 of 48

EPZ Update 12 Add12 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 43 of 48

  • NRC issued exemption to reduce EPZ to site boundary on Nov. 4
  • Continue to work on agreements for 2020 with communities
  • Plymouth agreement finalized in Sept 2019
  • Agreed with Taunton on Nov. 13 for final e-plan grant
  • Have met with Bridgewater, Kingston, Marshfield
  • Meeting next week with Carver, Duxbury, Braintree to be scheduled
  • Successful final EPZ Siren Test conducted today EPZ Update p

13 Add13 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 44 of 48

Certificate - Page 1 CERTIFICATE AS TO PARTIES, RULING, AND RELATED CASES Pursuant to D.C. Circuit Rules 18 and 28, amici curiaethe States of New York, Connecticut, Illinois, Iowa, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Pennsylvania, and Vermont, certify that:

A.

Parties and Amici Except for the above-listed amici curiae, all parties and intervenors appearing before this Court are listed in the Commonwealth of Massachusettss Motion for a Stay Pending Appellate Review (Doc. No.

1812979). Amici are not aware of other amici intending to file.

B.

Ruling Under Review Reference to the rulings under review in this proceeding appear in the Commonwealth of Massachusettss Motion for a Stay Pending Appellate Review (Doc. No. 1812979).

C.

Related Cases The final agency actions at issue in this proceeding have not been previously reviewed by this or any other court. Counsel for amici curiae are not aware of any related case within the meaning of D.C. Circuit Rule 28(a)(1)(C).

USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 45 of 48

Certificate - Page 2 Dated: January 17, 2020 BARBARA D. UNDERWOOD Solicitor General ANISHA S. DASGUPTA Deputy Solicitor General CAROLINE A. OLSEN Assistant Solicitor General LISA M. BURIANEK Deputy Bureau Chief, Environmental Protection Bureau JOSHUA TALLENT Assistant Attorney General CHANNING JONES Assistant Attorney General of Counsel (Counsel listing continues on the next page.)

Respectfully submitted, LETITIA JAMES Attorney General State of New York By:. /s/ Caroline A. Olsen.

CAROLINE A. OLSEN Assistant Solicitor General 28 Liberty Street New York, NY 10005 (212) 416-6184 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 46 of 48

Certificate - Page 3 WILLIAM TONG Attorney General State of Connecticut 55 Elm St.

Hartford, CT 06106 GURBIR S. GREWAL Attorney General State of New Jersey Hughes Justice Complex 25 Market Street Trenton, NJ 08625 KWAME RAOUL Attorney General State of Illinois 100 West Randolph St.

Chicago, IL 60601 HECTOR H. BALDERAS Attorney General State of New Mexico 408 Galisteo St.

Santa Fe, NM 87501 THOMAS J. MILLER Attorney General State of Iowa 1305 E. Walnut Street Des Moines, IA 50319 ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court St. NE Salem, OR 97301 BRIAN E. FROSH Attorney General State of Maryland 200 St. Paul Pl.

Baltimore, MD 21202 JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania Strawberry Square, 16th Fl.

Harrisburg, PA 17120 DANA NESSEL Attorney General State of Michigan P.O. Box 30212 Lansing, MI 48909 THOMAS J. DONOVAN, JR.

Attorney General State of Vermont 109 State Street Montpelier, VT 05609-1001 KEITH ELLISON Attorney General State of Minnesota 102 State Capitol 75 Rev. Dr. Martin Luther King Jr. Blvd.

St. Paul, MN 55155 USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 47 of 48

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the Courts CM/ECF system on January 17, 2020. I certify that all parties and counsel of record in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated:

January 17, 2020 New York, NY

/s/ Caroline A. Olsen USCA Case #19-1198 Document #1824749 Filed: 01/17/2020 Page 48 of 48

Retrieved from "https://kanterella.com/w/index.php?title=ML20024D672&oldid=4626081"