ML083440447

Commonwealth of Massachusetts Reply to NRC Staff'S Answer in Opposition to the Commonwealth of Massachusetts' Petition for Review of LBP-08-22

ML083440447
Person / Time
Site:	Pilgrim
Issue date:	12/01/2008
From:	Brock M State of MA, Office of the Attorney General
To:	Annette Vietti-Cook NRC/SECY/RAS
SECY RAS
References
50-293-LR, ASLBP 06-848-02-LR, LBP-08-22, RAS J-175
Download: ML083440447 (8)

Text

THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108 MARTHA COAKLEY (617) 727-2200 ATrORNEY GENERAL www.mass.gov/ago DOCKETED

.USNRC December 1, 2008 12:20 pm December 1,2008 OFFICE OF SECRETARY Office of the Secretary RULEMAKINGS AND ADJUDICATIONS STAFF Annette L. Vietti-Cook U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Attn: Rulemakings and Adjudications Staff Re: Petition for Review of LBP-08-22 Pilgrim Nuclear Power Station Docket No. 50-293-LR, ASLBP No. 06-848-02-LR

Dear Secretary Vietti-Cook:

Enclosed for filing in the above-captioned matter, please find the Commonwealth of Massachusetts Reply to the NRC Staff's Answer in Opposition to the Commonwealth of Massachusetts' Petition for Review of LBP-08-22.

Very truly yours, Matthew Brock Assistant Attorney General Environmental Protection Division Enclosures cc: Service List

UNITED STATES OF AMERICA

-NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE COMMISSION USNRC December 1, 2008 12:20 pm

)

In the Matter of )OFFICE OF SECRETARY RULEMAKINGý AND

) ADJUDICATIONS STAFF ENTERGY NUCLEAR GENERATION )

COMPANY AND ENTERGY NUCLEAR )

OPERATIONS, INC. ) Docket No. 50-293-LR

) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station) )

COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF'S ANSWER IN OPPOSITION TO THE COMMONWEALTH OF MASSACHUSETTS' PETITION FOR REVIEW OF LBP-08-22' The Commonwealth of Massachusetts (Commonwealth) hereby replies to the NRC Staff's Answer in Opposition to the Commonwealth of Massachusetts' Petition for Review of LBP-08-22 (NRC Answer) as follows:

1. The NRC Staff Fails to Address the Primary Point in the Commonwealth's Petition that the NRC Must Comply With NEPA and "Plug In" or Otherwise Take Account of the Final Judicial Decision on Generic Spent Fuel Pool Issues in the Individual Pilgrim Relicensing Proceeding.

In its Answer, the NRC Staff contests an issue not raised by the Commonwealth's Petition and fails to address the fundamental flaw in the Pilgrim licensing process which the Commonwealth has identified: that "[t]he NRC cannot close out the Pilgrim relicensing while the question of whether it complied with statutory preconditions to 2

relicensing is still being adjudicated in a separate pending proceeding." As the Petition In response to the Commonwealth's Petition, the applicant Entergy filed Entergy's Answer to Commonwealth of Massachusetts Petition for Review of LBP-08-22 (November 24, 2008). Since Entergy largely restates the arguments raised by NRC Staff, this Reply, unless otherwise noted, also addresses Entergy's Answer.

2 Commonwealth of Massachusetts Petition for Review of LBP-08-22 (Commonwealth

makes clear, the agency must "ensure that the overall process, including both generic rulemaking and individual proceedings, brings those effects to bear on decisions to take particular actions that significantly affect the environment." 3 In this case, the NRC now seeks to close out the individual Pilgrim relicensing process without any consideration of the pending judicial appeal on the generic rulemaking issues involving the risks of spent fuel pool (SFP) storage - that first arose as part of the Pilgrim relicensing proceeding.

Functionally, the NRC seeks to exempt the Pilgrim plant from compliance with SFP requirements, as finally determined by the Court.

Instead of addressing this primary error, the NRC Staff mischaracterizes the Commonwealth's Petition for Review as asserting "that the NRC has failed to take a

'hard look' at the consequences of a major federal action and failed to consider new and significant information." NRC Answer at 9. To the contrary, in this administrative appeal, the NRC's error is its failure to take account of the generic rulemaking process on SFP issues, as will be finally interpreted by the Court, in a manner that will inform and be made applicable to the individual Pilgrim relicensing decision. See Commonwealth Petition at 11 - 15.4 Therefore, since the NRC continues to ignore the SFP adjudication in its licensing Petition) at 11.

3 Commonwealth Petition at 13-1.6 citing Baltimore Gas and Elec. Co. v'. Natural ResourcesDefense Council,Inc., 462 U.S. 87, 96 (1983).

4 The NRC Staff also confuses those issues now pending before the Court regarding the Commonwealth's Rulemaking Petition and the above issue raised by the present administrative appeal. The Commonwealth agrees that the NRC has failed to adequately consider or address the Commonwealth's new and significant information on the risks of spent fuel pools (SFPs), but the final decision on that issue now is the subject of the Commonwealth's judicial appeal pending in the Court of Appeals. This present appeal is to ensure that the NRC - whatever the final decision by the Court - takes account of it as part of the Pilgrim relicensing.

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5 decision, and now has "terminated" the Pilgrim relicensing proceeding, the NRC has 6

violated the National Environmental Policy Act and other applicable law. The NRC Commission therefore should disregard the Staff's position and grant the 7

Commonwealth's Petition for Review.

2. The Commonwealth is not obligated to seek a stay to ensure that the NRC complies with NEPA in its Pilgrim relicensing decision.

The NRC Staff also claims, inaccurately, that the Commonwealth's Petition "appears to be, in fact, a motion for a stay of the Board's decision." NRC Answer at 7.

The Commonwealth makes no request for a stay in this case. Instead, it is up to the NRC to comply with NEPA - not for the Commonwealth to meet criteria for a stay before the agency satisfies the legal requirements for relicensing. For example, if the NRC had elected to address the Commonwealth's SFP issues as part of the individual relicensing for Pilgrim, instead of in a generic Rulemaking, the Commonwealth would simply have appealed any errors at the conclusion of the proceeding - and no stay would have been required since the current license does not expire until 2012. The fact that the NRC elected to use a different generic process does not shift the legal burden to the Commonwealth to seek a stay before the NRC must comply with NEPA. See 42 U.S.C.

§ 4332 (1)(to the fullest extent possible, agency regulations shall be interpreted and 5 LBP-08-22 at 26.

6 See Commonwealth Petition at 11 - 17.

7 The NRC Staff also states that the Commonwealth's Petition does not meet the criteria set forth in 10 C.F.R. § 2.341(b). See NRC Staff Answer at 1 -2. To the contrary, the Commonwealth's Petition presents a concise statement, with supporting authorities, that the NRC has failed to comply with NEPA and Supreme Court precedent, by disregarding the pending judicial proceedings on SFP issues. The NRC thereby is acting "contrary to established law," and the Petition presents "a substantial and important question of law, policy, or discretion," and reflects a process of "prejudicial procedural error." Section 2.341 (b)(4)(ii - iv).

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administered in accordance with NEPA.) How the NRC chooses to comply is up to the 8

agency - but comply it must.

Therefore, whether the NRC, in its own discretion, tables its ruling on the individual Pilgrim license to await a decision in the pending judicial appeal, alternatively conditions the license to comply with any court ruling on SFP issues, or selects another equally appropriate means, is up to the NRC. But its present and continuing failure to comply with the law and take account of the judicial appeal on SFP issues must be addressed before the Pilgrim nuclear power plant is granted a license extension for another twenty years.

3. The Commission should avoid further litigation by ordering now that, as part of its license extension, the Pilgrim plant shall comply with any final order of the Court on the generic SFP issues.

The Staff states that the Commonwealth "assumes without basis that the Commission will not comply with binding and applicable orders of the Court..." NRC Answer at FN 29. However, the Staff does not explain how the Court hearing the generic rulemaking would have jurisdiction over the individual Pilgrim license to make a "binding" court ruling on SFP issues for the individual plant. Regardless, the NRC Commission should disregard the Staff's suggestion for further litigation on this point -

and potentially yet another appeal to the First Circuit - by ordering now that the Pilgrim license will conform to any final judicial decision on SFP issues. See also Entergy's Answer at 6 (citing Commission authority to make Pilgrim consistent with any court 8 See Massachusetts v. NRC, 522 F. 3d 115, 127 ( 1st Cir. 2008)("NEPA does impose a requirement that the NRC consider any new and significant information regarding environmental impacts before renewing a nuclear power plant's operating license.

However, 'NEPA does not require agencies to adopt any particular decisonmaking structure.") Id. citing Balt Gas &Elec Co. 462 U.S. at 100.

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decision - but without urging that the Commission exercise that authority now to commit to that condition and avoid further litigation on the question.)

3. Conclusion The Commonwealth requests that its Petition for Review be granted and that the Commission grant the relief as requested herein.

MARTHA COAKLEY ATTORNEY GENERAL Matthew Brock Assistant Attorney General Office of the Attorney General Environmental Protection Division One Ashburton Place Boston, MA 02108 (617) 727-2200 x2425 December 1, 2008 5

CERTIFICATE OF SERVICE- PILGRIM LICENSE RENEWAL PROCEEDING I certify that on December 1, 2008, a copy of the foregoing document was served on each of the following by electronic mail and/or first-class mail:

Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: Richard.Cole(nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Also by E-mail:

E-mail: Ann.Young@nre.gov OCAAMail.Resourceonrc.gov Atomic Safety and Licensing Board Panel Office of the Secretary*

Mail Stop: T-3 F23 Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Also by E-mail: Hearing.D)ocket@nrc.gov

• ORIGINAL AND TWO COPIES Sheila Slocum Hollis, Esq.- Susan L. Uttal, Esq.

Duane Morris L.L.P. Kimberley Sexton, Esq.

1667 K Street N.W., Suite 700 Marcia J. Simon, Esq.

Washington, D.C. 20006 Mail Stop 0-15D21 E-mail: SSHollis(@,duanemorris.com Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Also by E-mail: susan.utlal(@nrc.gov; kas2@~nrc.gov; jeal@nrc.gov; Marcia.Simon(nrc.gzov;

Terence A. Burke, Esq. David R. Lewis, Esq.

Entergy Nuclear Paul A. Gaukler, Esq.

1340 Echelon Parkway Pillsbury, Winthrop, Shaw, Pittman, LLP Mail Stop: M-ECH-62 2300 N Street, NW Jackson, MS 39213 Washington, DC 20037-1137 Also by E-mail: tburke(@entergy.com Also by E-mail:

david.lewis(@pillsburylaw.com paul.gaukler(),pillsburylawv.com Mary Lampert Mark D. Sylvia, Town Manager 148 Washington Street Town otPlymouth Duxbury, MA 02332 11 Lincoln Street Plymouth, MA 02360 Also by E-mail: Also by E-mail:

Marv.LampertC~comcast.net msylvia(ýtownhall.plvmouth.ma.us Kevin M. Nord, Chief Richard R. MacDonald Duxbury Fire Department and Emergency Town Manager Management Agency 878 Tremont Street 688 Tremont Street Duxbury, MA 02332 P.O. Box 2824 Also by E-mail:

Duxbury, MA 02331 macdonaldeitown.duxbur-v.ma.us Also by E-mail:

nord(itown.duxburv.ma.us Matthew Brock 2