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{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of   )
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                               )
Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )  
Entergy Nuclear Generation Co.                 )     Docket No. 50-293-LR And Entergy Nuclear Operations, Inc.           )
(Pilgrim Nuclear Power Station) )   May 19, 2011
(Pilgrim Nuclear Power Station)               )     May 19, 2011 COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH MOTION TO HOLD LICENSING DECISION IN ABEYANCE PENDING COMMISSION DECISION WHETHER TO SUSPEND THE PILGRIM PROCEEDING TO REVIEW THE LESSONS OF THE FUKUSHIMA ACCIDENT The Commonwealth of Massachusetts (Commonwealth) hereby submits this Reply to the NRC Staffs opposition1 and Entergys opposition2 to the Commonwealths Motion to Hold the Pilgrim licensing decision in abeyance pending consideration by the NRC of new and significant information related to the lessons of the Fukushima nuclear accident, including the risks of spent fuel pool accidents and applicable NRC regulations and policies (Motion).3 1
NRC Staffs Answer in Opposition to Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 12, 2011)
(Adams No. ML111320669) (Staff Opposition).
2 Entergys Answer Opposing Commonwealths Motion to Hold Licensing proceeding in Abeyance (May 12, 2011)(Adams No. ML111320594) (Entergy Answer).
3 Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 2, 2011) (Adams No. ML111220326)
(Commonwealth Response).
: 1.      The Commonwealth Correctly Requested the Pilgrim ASLB, as the Initial Decision Maker on Relicensing, to Hold the Pilgrim Licensing Decision in Abeyance Pending Further Guidance from the Commission on the Lessons of Fukushima.
The Staff claims that the Commonwealths Motion should be denied because the Commonwealth asks the Pilgrim Atomic Safety and Licensing Board (Pilgrim ASLB) to hold its licensing decision in abeyance pending the Nuclear Regulatory Commissions review of the lessons of Fukushima because, according to the Staff, the Director of Nuclear Reactor Regulation (NRR), not the Pilgrim ASLB, issues the license renewal.
Staff Opposition at 5. However, the Pilgrim ASLB, not the NRR, is authorized to make the initial decision whether to relicense the Pilgrim plant for an additional twenty years.
10 C.F.R. §§ 2.319(o); 2.340(a); cf. § 2.1210(a). The Pilgrim ASLB also is charged with resolving all contested matters arising in the relicensing process. Id. Absent further order, the Pilgrim ASLB decision on relicensing will be immediately effective. 10 C.F.R.
§ 2.340(f); cf. § 2.1210(d). The Staff thereby confuses the responsibilities of the NRR and its activities not within the scope of the initial decision of the presiding officer,
§2.340(i)(1), with the Pilgrim ASLBs responsibility to resolve all matters in controversy in the relicensing proceeding - including the matters arising from the Fukushima accident which already are contested between the parties - and then make the initial decision whether to relicense the Pilgrim plant. 10 C.F.R. § 2.340(a) and (b). Therefore it is appropriate and consistent with NRC regulations for the Commonwealth to direct its request for a housekeeping stay, in the first instance, to the initial relicensing decision 2


COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH MOTION TO HOLD LICENSING DECISION IN ABEYANCE PENDING COMMISSION DECISION WHETHER TO SUSPEND THE PILGRIM PROCEEDING TO REVIEW THE LESSONS OF THE FUKUSHIMA ACCIDENT The Commonwealth of Massachusetts (Commonwealth) hereby submits this Reply to the NRC Staff's opposition 1 and Entergy's opposition 2 to the Commonwealth's Motion to Hold the Pilgrim licensing deci sion in abeyance pending consideration by the NRC of new and significant information related to the lessons of the Fukushima nuclear accident, including the risks of spent fuel pool accidents and applicable NRC regulations and policies (Motion).
maker - the Pilgrim ASLB - which is responsible for resolving the Fukushima related matters now in contention.4
3 1 NRC Staff's Answer in O pposition to Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 12, 2011) (Adams No. ML111320669) (Staff Opposition).  
: 2.      The Commonwealth is not Required to Determine at this time how the Lessons of Fukushima may relate to matters now pending before the Pilgrim ASLB as a Condition for a Housekeeping Stay.
The Staff also argues that the Commonwealths Motion should be denied because it does not explain how the matters pending before the Pilgrim ASLB relate to the Fukushima accident. Staff Opposition at 6. However, the Commonwealth is not legally obligated to do so. The purpose of the Motion is to ensure that the Pilgrim proceeding remains open - and the NRC defers any relicensing decision which otherwise could become final - until the NRC has taken a hard look at the lessons of Fukushima, including the risks of spent fuel pool accidents, consistent with the National Environmental Policy Act, 42 U.S.C. § 4321, before taking the major federal action to relicense the Pilgrim nuclear power plant for an additional twenty years. Marsh v.
Oregon Natural Resources Council, 490 U.S. 360, 385 (1989)([R]egardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the proferred evidence.). See also United States v. Coalition for Buzzards Bay, -- F.3d --. 2011 WL 1844221 (May 17, 2011)(1st Cir. 2011) at *10-11, (NEPA framework is designed to stimulate public participation in agency decision 4
If the Commission elects to address the Fukushima related matters by rulemaking, the rulemaking decision still must be included within the Pilgrim relicensing process. See Commonwealth of Massachusetts Response to Commission Order Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident, Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant, and Request for Additional Relief (May 2, 2011)(Adams No. 111220353)(Commonwealth Response) at 9 citing Baltimore Gas and Electric Co. Natural Resources Defense Council, 462 U.S. 87, 96 (1983) (agency must ensure that overall process, both generic and site specific, is considered in decisions that significantly affect the environment).
3


2 Entergy's Answer Opposing Commonwealth's Motion to Hold Licensing proceeding in Abeyance (May 12, 2011)(Adams No. ML111320594) (Entergy Answer).
making; failure to take hard look at environmental consequences raised in public comment prior to decision making is reversible error); Silva v. Romney, 473 F. 2d 287, 292 (1st Cir. 1973)(an agencys NEPA duties are not discretionary, but are specifically mandated by Congress, and are to be reflected in the procedural process by which agencies render decisions.).5 Therefore, the NRC Staffs request that the Pilgrim ASLB proceed to resolve the limited number of remaining issues before it - and close out the relicensing process before the NRC completes its investigation into Fukushima - would violate the NRCs obligations under NEPA and the Atomic Energy Act to consider the lessons of Fukushima prior to relicensing.6
: 3.      Conclusion The Commonwealth of Massachusetts respectfully requests the Pilgrim ASLB, consistent with NEPA and the AEA, to grant a housekeeping stay pending further direction from the Commission on the NRCs Fukushima-related investigation and the pending petition to suspend relicensing proceedings at Pilgrim and other plants. This will allow for an orderly administrative process, and as a prudential matter, afford the 5
Entergys claim that the Commonwealth must satisfy the standards for a stay before the NRC must consider the lessons of Fukushima prior to relicensing is legally erroneous.
See Entergy Answer at 5 - 6. The mandate of NEPA is not subject to these discretionary stay standards. See Silva v. Romney, supra. Similarly, Entergys complaint about a delay in the licensing schedule should be rejected: the NRC is legally obligated to comply with NEPA prior to licensing and none of the pre-Fukushima cases cited by Entergy state to the contrary. See Entergy Answer at 1 - 3.
6 See Commonwealth Response at 12 - 13 and n.17; see also Petitioners Reply to Responses to Emergency Petition to Suspend All Reactor Licensing Decisions Pending Investigation of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident (May 6-9, 2011)(Adams No. ML111290165) at 8 - 14.
4


3 Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accide nt (May 2, 2011) (Adams No. ML111220326) (Commonwealth Response).
Commission a reasonable time to address these issues which may have a direct bearing on the Pilgrim relicensing process. Commonwealth Motion at 2 - 3 and cases cited.
2  1. The Commonwealth Correctly Requested the Pilgrim ASLB, as the Initial Decision Maker on Relicensing, to Hold the Pilgrim Licensing Decision in Abeyance Pending Further Guidance from the Commi ssion on the Lessons of Fukushima.
Respectfully submitted,
The Staff claims that the Commonwealth
                                        /s/ Matthew Brock Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 Tel: (617) 727-2200 Fax: (617) 727-9665 matthew.brock@state.ma.us Certificate of Counsel On May 17, 2011, the Commonwealth notified all parties of record that the Commonwealth intended to file a Motion to allow Reply and Reply. Counsel for NRC Staff and Entergy have advised that they will oppose the Motion and Reply.
's Motion should be denied because the Commonwealth asks the Pilgrim Atomic Safety and Licensing Board (Pilgrim ASLB) to hold its licensing decision in abeyance pe nding the Nuclear Regulatory Commission's review of the lessons of Fukushima because, according to the Staff, the Director of Nuclear Reactor Regulation (NRR),  not the Pilgrim ASLB, issues the license renewal. Staff  Opposition at 5. However, the Pilgrim ASLB, not the NRR, is authorized to make the initial decision whether to relicense the Pi lgrim plant for an additional twenty years.
/s/Matthew Brock 5
10 C.F.R. §§ 2.319(o); 2.340(a);
cf. § 2.1210(a). The Pilgrim ASLB also is charged with resolving all contested matters aris ing in the relicensing process.
Id. Absent further order, the Pilgrim ASLB decision on relicensing will be immediately effective. 10 C.F.R.
§ 2.340(f);
cf. § 2.1210(d). The Staff thereby confus es the responsibil ities of the NRR and its activities "not within the scope of th e initial decision of the presiding officer," §2.340(i)(1), with the Pilgrim ASLB's responsibility to resolve all ma tters in controversy in the relicensing proceeding - including the matters arising from the Fukushima accident which already are contested between the parties - and then make the initial decision


whether to relicense the Pilgrim plant. 10 C.F.R. § 2.340(a) and (b). Therefore it is appropriate and consistent w ith NRC regulations for the Commonwealth to direct its request for a housekeeping stay, in the first in stance, to the initial relicensing decision 3  maker - the Pilgrim ASLB - which is responsible for resolving the Fukushima related matters now in contention.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                              )
4 2. The Commonwealth is not Required to Determine at this time how the Lessons of Fukushima may relate to matters now pending before the Pilgrim ASLB as a Condition for a Housekeeping Stay.
Entergy Nuclear Generation Co.                 )      Docket No. 50-293-LR And Entergy Nuclear Operations, Inc.           )
(Pilgrim Nuclear Power Station)               )       May 19, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to the Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident in the above captioned proceeding have been served upon the following persons by electronic mail this date:
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                            U.S. Nuclear Regulatory Commission Ann Marshall Young, Chair                        Office of Commission Appellate Atomic Safety and Licensing Board Panel          Adjudication Mail Stop: T-3F23                                Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission              Washington, DC 20555-0001 Washington, DC 20555-0001                        OCAAMail.Resource@nrc.gov E-mail: Ann.Young@nrc.gov U.S. Nuclear Regulatory Commission              U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel          Office of the Secretary Mail Stop: T-3 F23                              Mail Stop: O-16C1 Washington, DC 20555-0001                        Washington, DC 20555-0001 HearingDocket@nrc.gov


The Staff also argues that the Commonwea lth's Motion should be denied because it does not explain how the matters pending before the Pilgrim ASLB relate to the Fukushima accident. Staff Opposition at 6. However, the Commonwealth is not legally obligated to do so. The purpose of the Motion is to ensure that the Pilgrim proceeding remains open - and the NRC defers any re licensing decision which otherwise could become final - until the NRC has taken a hard look at the lessons of Fukushima, including the risks of spent fuel pool accidents, consistent with the National Environmental Policy Act, 42 U.S.C. § 4321, before taking the major federal action to relicense the Pilgrim nuclear power plant for an additional twenty years.
U.S. Nuclear Regulatory Commission      U.S. Nuclear Regulatory Commission Office of General Counsel                Office of Nuclear Reactor Regulation Mail Stop: O15 D21                      Mail Stop: O11-F1 Washington, D.C. 20555                  Washington, D.C. 20555 -0001 OGCMailCenter.Resource@nrc.gov Lisa Regner, Sr. Project Manager        Katherine Tucker, Law Clerk Division of License Renewal              Katie.tucker@nrc.gov Lisa.regner@nrc.gov Edward Williamson Edward.williamson@nrc.gov Pillsbury, Winthrop, Shaw, Pittman LLP  Entergy Nuclear 2300 N Street, N.W.                      1340 Echelon Parkway Washington DC, 20037-1128                Mail Stop M-ECH-62 Jackson, MS 39213 David R. Lewis, Esq.
Marsh v. Oregon Natural Resources Council , 490 U.S. 360, 385 (1989)("[R]egardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the profe rred evidence."). See also United States v. Coalition for Buzzards Bay, -- F.3d --. 2011 WL 1844221 (May 17, 2011)(1st Cir. 2011) at *10-11, (NEPA framework is designed to stimulate public participation in agency decision
David.lewis@pillsburylaw.com            Terence A. Burke, Esq.
Paul A. Gaukler, Esq.                    tburke@entergy.com Paul.gaulker@pillsburylaw.com Jason B. Parker, Esq.
Jason.parker@pillsburylaw.com Maria.webb@pillsburylaw.com Duane Morris L.L.P.                      Susan L. Uttal, Esq.
505 9th Street, NW, Suite 1000          susan.uttal@nrc.gov Washington, D.C. 20004-2166 Andrea Z. Jones, Esq.
Sheila Slocum Hollis, Esq.              axj4@nrc.gov SSHollis@duanemorris.com Beth N. Mizuno, Esq.
beth.mizuno@nrc.gov Bnm1@nrc.gov Brian G. Harris, Esq.
Brian.harris@nrc.gov Brian Newell, Paralegal Brian.newell@nrc.gov 7


4 If the Commission elects to address the Fukushima related matters by rulemaking, the rulemaking decision still must be included within the Pilgrim relicensing process. See Commonwealth of Massachusetts Response to Commission Order Regarding Lessons Learned from Fukushima Daiichi Nuclear Powe r Station Accident, Jo inder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant, and Request for Additional Relief (May 2, 2011)(Adams No. 111220353)(Commonwealth Response) at 9 citing Baltimore Gas and Electric Co. Natural Resources Defense Council, 462 U.S. 87, 96 (1983) (agency must ensu re that overall process, both generic and site specific, is considered in decisions that significantly affect the environment).   
Pilgrim Watch                          Town of Plymouth Mary Lampert                           Town Managers Office 148 Washington Street                   11 Lincoln Street Duxbury, MA 02332                       Plymouth, MA 02360 Mary.Lampert@comcast.net Melissa Arrighi, Acting Town Manager marrighi@townhall.plymouth.ma.us Kevin M. Nord, Chief                   Richard R. MacDonald Duxbury Fire Department and Emergency   878 Tremont Street Management Agency                       Duxbury, MA 02332 668 Tremont Street                     Also by E-mail:
 
Duxbury, MA 02332                       macdonald@town.duxbury.ma.us nord@town.duxbury.ma.us Town of Duxbury Nuclear Advisory       Laura Pinson Committee                               laura@nealgross.com 31 Deerpath Trl.
4  making; failure to take hard  look at environmental cons equences raised in public comment prior to decision making is reversible error);
North Duxbury, MA 02332 Rebecca Chin, Vice Chair rebeccajchin@hotmail.com
Silva v. Romney , 473 F. 2d 287, 292 (1st Cir. 1973)(an agency's NEPA duties ar e "not discretionary, but are specifically mandated by Congress, and are to be reflec ted in the procedural process by which agencies render decisions.").
                                      /s Matthew Brock Matthew Brock 8}}
5    Therefore, the NRC Staff's request that the Pilgrim ASLB proceed to resolve the limited number of remaining issues before it - and close out th e relicensing process before the NRC completes its investigation into Fukushima - would violate the NRC's obligations under NEPA and the Atomic En ergy Act to consider the lessons of Fukushima prior to relicensing.
6 3. Conclusion The Commonwealth of Massachusetts respectfully requests the Pilgrim ASLB, consistent with NEPA and the AEA, to grant a housekeeping stay pending further direction from the Commission on the NRC's Fukushima-related investigation and the pending petition to suspend relicensing proceedings at Pilgrim and other plants. This will allow for an orderly administrative process, and as a prudential matter, afford the
 
5 Entergy's claim that the Commonwealth must satisfy the standards for a stay before the NRC must consider the lessons of Fukushima prior to relicensing is legally erroneous. See Entergy Answer at 5 - 6. The mandate of NEPA is not subject to these discretionary stay standards. See Silva v. Romney , supra. Similarly, Entergy's complaint about a delay in the licensing schedule should be rejected: the NRC is legally obligated to comply with NEPA prior to licensing and none of the pre-Fukushima cases cited by Entergy state to the contrary. See Entergy Answer at 1 - 3.
6 See Commonwealth Response at 12 - 13 a nd n.17; see also Petitioners' Reply to Responses to Emergency Petition to Suspend All Reactor Licensing Decisions Pending Investigation of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident  (May 6-9, 2011)(Adams No. ML111290165) at 8 - 14.
5  Commission a reasonable time to address these issues which may have a direct bearing on the Pilgrim relicensing process. Commonwealth Motion at 2 - 3 and cases cited.
 
Respectfully submitted, 
 
/s/ Matthew Brock Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor
 
Boston, Massachusetts 02108
 
Tel: (617) 727-2200
 
Fax: (617) 727-9665 matthew.brock@state.ma.us
 
Certificate of Counsel 
 
On May 17, 2011, the Commonwealth notifie d all parties of record that the Commonwealth intended to file a Motion to allow Reply and Reply. Counsel for NRC Staff and Entergy have advised that they will oppose the Motion and Reply. 
 
/s/Matthew Brock
 
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of    )
Entergy Nuclear Generation Co.  ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )
(Pilgrim Nuclear Power Station)  )    May 19, 2011 
 
CERTIFICATE OF SERVICE
 
I hereby certify that copies of the foregoi ng Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to the Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission De cision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident in the above captioned proceeding have been served upon the following persons by electronic mail this date:
 
Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23
 
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel
 
Mail Stop T-3F23
 
U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Paul.Abramson@nrc.gov Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23
 
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Ann.Young@nrc.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate     
 
Adjudication
 
Mail Stop: O-16G4
 
Washington, DC 20555-0001 OCAAMail.Resource@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23
 
Washington, DC 20555-0001
 
U.S. Nuclear Regulatory Commission Office of the Secretary
 
Mail Stop: O-16C1
 
Washington, DC 20555-0001
 
HearingDocket@nrc.gov
 
7 U.S. Nuclear Regulatory Commission Office of General Counsel Mail Stop: O15 D21
 
Washington, D.C. 20555 
 
OGCMailCenter.Resource@nrc.gov U.S. Nuclear Regulatory Commission Office of Nuclear Reactor Regulation
 
Mail Stop: O11-F1
 
Washington, D.C. 20555 -0001
 
Lisa Regner, Sr. Project Manager Division of License Renewal
 
Lisa.regner@nrc.gov Katherine Tucker, Law Clerk Katie.tucker@nrc.gov
 
Edward Williamson Edward.williamson@nrc.gov Pillsbury, Winthrop, Shaw, Pittman LLP 2300 N Street, N.W.
 
Washington DC, 20037-1128
 
David R. Lewis, Esq.
David.lewis@pillsburylaw.com Paul A. Gaukler, Esq.
Paul.gaulker@pillsburylaw.com Jason B. Parker, Esq.
Jason.parker@pillsburylaw.com
 
Maria.webb@pillsburylaw.com Entergy Nuclear 1340 Echelon Parkway
 
Mail Stop M-ECH-62 Jackson, MS 39213
 
Terence A. Burke, Esq.
 
tburke@entergy.com Duane Morris L.L.P. 505 9th Street, NW, Suite 1000 Washington, D.C. 20004-2166
 
Sheila Slocum Hollis, Esq.
SSHollis@duanemorris.com Susan L. Uttal, Esq.
susan.uttal@nrc.gov
 
Andrea Z. Jones, Esq.
 
axj4@nrc.gov
 
Beth N. Mizuno, Esq.
beth.mizuno@nrc.gov Bnm1@nrc.gov
 
Brian G. Harris, Esq.
 
Brian.harris@nrc.gov Brian Newell, Paralegal
 
Brian.newell@nrc.gov
 
8Pilgrim Watch Mary Lampert 148 Washington Street  
 
Duxbury, MA 02332 Mary.Lampert@comcast.net Town of Plymouth Town Manager's Office
 
11 Lincoln Street Plymouth, MA  02360
 
Melissa Arrighi, Acting Town Manager marrighi@townhall.plymouth.ma.us Kevin M. Nord, Chief Duxbury Fire Department and Emergency Management Agency 668 Tremont Street  
 
Duxbury, MA 02332 nord@town.duxbury.ma.us Richard R. MacDonald 878 Tremont Street
 
Duxbury, MA  02332
 
Also by E-mail:
macdonald@town.duxbury.ma.us Town of Duxbury Nuclear Advisory Committee  
 
31 Deerpath Trl.  
 
North Duxbury, MA 02332  
 
Rebecca Chin, Vice Chair rebeccajchin@hotmail.com Laura Pinson laura@nealgross.com
        /s Matthew Brock
____________
Matthew Brock}}

Latest revision as of 22:42, 10 March 2020

Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to Commonwealth Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukush
ML111390569
Person / Time
Site: Pilgrim
Issue date: 05/19/2011
From: Brock M
State of MA, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML111390564 List:
References
RAS 20340, 50-293-LR, ASLBP 06-848-02-LR
Download: ML111390569 (8)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )

(Pilgrim Nuclear Power Station) ) May 19, 2011 COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH MOTION TO HOLD LICENSING DECISION IN ABEYANCE PENDING COMMISSION DECISION WHETHER TO SUSPEND THE PILGRIM PROCEEDING TO REVIEW THE LESSONS OF THE FUKUSHIMA ACCIDENT The Commonwealth of Massachusetts (Commonwealth) hereby submits this Reply to the NRC Staffs opposition1 and Entergys opposition2 to the Commonwealths Motion to Hold the Pilgrim licensing decision in abeyance pending consideration by the NRC of new and significant information related to the lessons of the Fukushima nuclear accident, including the risks of spent fuel pool accidents and applicable NRC regulations and policies (Motion).3 1

NRC Staffs Answer in Opposition to Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 12, 2011)

(Adams No. ML111320669) (Staff Opposition).

2 Entergys Answer Opposing Commonwealths Motion to Hold Licensing proceeding in Abeyance (May 12, 2011)(Adams No. ML111320594) (Entergy Answer).

3 Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 2, 2011) (Adams No. ML111220326)

(Commonwealth Response).

1. The Commonwealth Correctly Requested the Pilgrim ASLB, as the Initial Decision Maker on Relicensing, to Hold the Pilgrim Licensing Decision in Abeyance Pending Further Guidance from the Commission on the Lessons of Fukushima.

The Staff claims that the Commonwealths Motion should be denied because the Commonwealth asks the Pilgrim Atomic Safety and Licensing Board (Pilgrim ASLB) to hold its licensing decision in abeyance pending the Nuclear Regulatory Commissions review of the lessons of Fukushima because, according to the Staff, the Director of Nuclear Reactor Regulation (NRR), not the Pilgrim ASLB, issues the license renewal.

Staff Opposition at 5. However, the Pilgrim ASLB, not the NRR, is authorized to make the initial decision whether to relicense the Pilgrim plant for an additional twenty years.

10 C.F.R. §§ 2.319(o); 2.340(a); cf. § 2.1210(a). The Pilgrim ASLB also is charged with resolving all contested matters arising in the relicensing process. Id. Absent further order, the Pilgrim ASLB decision on relicensing will be immediately effective. 10 C.F.R.

§ 2.340(f); cf. § 2.1210(d). The Staff thereby confuses the responsibilities of the NRR and its activities not within the scope of the initial decision of the presiding officer,

§2.340(i)(1), with the Pilgrim ASLBs responsibility to resolve all matters in controversy in the relicensing proceeding - including the matters arising from the Fukushima accident which already are contested between the parties - and then make the initial decision whether to relicense the Pilgrim plant. 10 C.F.R. § 2.340(a) and (b). Therefore it is appropriate and consistent with NRC regulations for the Commonwealth to direct its request for a housekeeping stay, in the first instance, to the initial relicensing decision 2

maker - the Pilgrim ASLB - which is responsible for resolving the Fukushima related matters now in contention.4

2. The Commonwealth is not Required to Determine at this time how the Lessons of Fukushima may relate to matters now pending before the Pilgrim ASLB as a Condition for a Housekeeping Stay.

The Staff also argues that the Commonwealths Motion should be denied because it does not explain how the matters pending before the Pilgrim ASLB relate to the Fukushima accident. Staff Opposition at 6. However, the Commonwealth is not legally obligated to do so. The purpose of the Motion is to ensure that the Pilgrim proceeding remains open - and the NRC defers any relicensing decision which otherwise could become final - until the NRC has taken a hard look at the lessons of Fukushima, including the risks of spent fuel pool accidents, consistent with the National Environmental Policy Act, 42 U.S.C. § 4321, before taking the major federal action to relicense the Pilgrim nuclear power plant for an additional twenty years. Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 385 (1989)([R]egardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the proferred evidence.). See also United States v. Coalition for Buzzards Bay, -- F.3d --. 2011 WL 1844221 (May 17, 2011)(1st Cir. 2011) at *10-11, (NEPA framework is designed to stimulate public participation in agency decision 4

If the Commission elects to address the Fukushima related matters by rulemaking, the rulemaking decision still must be included within the Pilgrim relicensing process. See Commonwealth of Massachusetts Response to Commission Order Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident, Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant, and Request for Additional Relief (May 2, 2011)(Adams No. 111220353)(Commonwealth Response) at 9 citing Baltimore Gas and Electric Co. Natural Resources Defense Council, 462 U.S. 87, 96 (1983) (agency must ensure that overall process, both generic and site specific, is considered in decisions that significantly affect the environment).

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making; failure to take hard look at environmental consequences raised in public comment prior to decision making is reversible error); Silva v. Romney, 473 F. 2d 287, 292 (1st Cir. 1973)(an agencys NEPA duties are not discretionary, but are specifically mandated by Congress, and are to be reflected in the procedural process by which agencies render decisions.).5 Therefore, the NRC Staffs request that the Pilgrim ASLB proceed to resolve the limited number of remaining issues before it - and close out the relicensing process before the NRC completes its investigation into Fukushima - would violate the NRCs obligations under NEPA and the Atomic Energy Act to consider the lessons of Fukushima prior to relicensing.6

3. Conclusion The Commonwealth of Massachusetts respectfully requests the Pilgrim ASLB, consistent with NEPA and the AEA, to grant a housekeeping stay pending further direction from the Commission on the NRCs Fukushima-related investigation and the pending petition to suspend relicensing proceedings at Pilgrim and other plants. This will allow for an orderly administrative process, and as a prudential matter, afford the 5

Entergys claim that the Commonwealth must satisfy the standards for a stay before the NRC must consider the lessons of Fukushima prior to relicensing is legally erroneous.

See Entergy Answer at 5 - 6. The mandate of NEPA is not subject to these discretionary stay standards. See Silva v. Romney, supra. Similarly, Entergys complaint about a delay in the licensing schedule should be rejected: the NRC is legally obligated to comply with NEPA prior to licensing and none of the pre-Fukushima cases cited by Entergy state to the contrary. See Entergy Answer at 1 - 3.

6 See Commonwealth Response at 12 - 13 and n.17; see also Petitioners Reply to Responses to Emergency Petition to Suspend All Reactor Licensing Decisions Pending Investigation of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident (May 6-9, 2011)(Adams No. ML111290165) at 8 - 14.

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Commission a reasonable time to address these issues which may have a direct bearing on the Pilgrim relicensing process. Commonwealth Motion at 2 - 3 and cases cited.

Respectfully submitted,

/s/ Matthew Brock Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 Tel: (617) 727-2200 Fax: (617) 727-9665 matthew.brock@state.ma.us Certificate of Counsel On May 17, 2011, the Commonwealth notified all parties of record that the Commonwealth intended to file a Motion to allow Reply and Reply. Counsel for NRC Staff and Entergy have advised that they will oppose the Motion and Reply.

/s/Matthew Brock 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )

(Pilgrim Nuclear Power Station) ) May 19, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to the Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident in the above captioned proceeding have been served upon the following persons by electronic mail this date:

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 U.S. Nuclear Regulatory Commission Ann Marshall Young, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAMail.Resource@nrc.gov E-mail: Ann.Young@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the Secretary Mail Stop: T-3 F23 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 HearingDocket@nrc.gov

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of General Counsel Office of Nuclear Reactor Regulation Mail Stop: O15 D21 Mail Stop: O11-F1 Washington, D.C. 20555 Washington, D.C. 20555 -0001 OGCMailCenter.Resource@nrc.gov Lisa Regner, Sr. Project Manager Katherine Tucker, Law Clerk Division of License Renewal Katie.tucker@nrc.gov Lisa.regner@nrc.gov Edward Williamson Edward.williamson@nrc.gov Pillsbury, Winthrop, Shaw, Pittman LLP Entergy Nuclear 2300 N Street, N.W. 1340 Echelon Parkway Washington DC, 20037-1128 Mail Stop M-ECH-62 Jackson, MS 39213 David R. Lewis, Esq.

David.lewis@pillsburylaw.com Terence A. Burke, Esq.

Paul A. Gaukler, Esq. tburke@entergy.com Paul.gaulker@pillsburylaw.com Jason B. Parker, Esq.

Jason.parker@pillsburylaw.com Maria.webb@pillsburylaw.com Duane Morris L.L.P. Susan L. Uttal, Esq.

505 9th Street, NW, Suite 1000 susan.uttal@nrc.gov Washington, D.C. 20004-2166 Andrea Z. Jones, Esq.

Sheila Slocum Hollis, Esq. axj4@nrc.gov SSHollis@duanemorris.com Beth N. Mizuno, Esq.

beth.mizuno@nrc.gov Bnm1@nrc.gov Brian G. Harris, Esq.

Brian.harris@nrc.gov Brian Newell, Paralegal Brian.newell@nrc.gov 7

Pilgrim Watch Town of Plymouth Mary Lampert Town Managers Office 148 Washington Street 11 Lincoln Street Duxbury, MA 02332 Plymouth, MA 02360 Mary.Lampert@comcast.net Melissa Arrighi, Acting Town Manager marrighi@townhall.plymouth.ma.us Kevin M. Nord, Chief Richard R. MacDonald Duxbury Fire Department and Emergency 878 Tremont Street Management Agency Duxbury, MA 02332 668 Tremont Street Also by E-mail:

Duxbury, MA 02332 macdonald@town.duxbury.ma.us nord@town.duxbury.ma.us Town of Duxbury Nuclear Advisory Laura Pinson Committee laura@nealgross.com 31 Deerpath Trl.

North Duxbury, MA 02332 Rebecca Chin, Vice Chair rebeccajchin@hotmail.com

/s Matthew Brock Matthew Brock 8

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