ML071310434

4/24/2007 - Commonwealth of Massachusetts V. NRC, Nos. 07-1482 and 07-1483

ML071310434
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	04/24/2007
From:	Brock M State of MA, Office of the Attorney General
To:	Donovan R Office of Nuclear Reactor Regulation, US Federal Judiciary, Court of Appeals, 1st Circuit
Hamrick C, OGC, 301-415-4106
References
07-1482, 07-1483
Download: ML071310434 (30)

Text

THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108-1598 MARTHA COAKLEY (617) 727-2200 ArrORNEY GENERAL www.ago.state.ma.us April 24, 2007 BY HAND Richard Cushing Donovan, Clerk United States Court of Appeals for the First Circuit 1 Courthouse Way, Suite 2500 Boston, MA 02110 Re: Commonwealth of Massachusetts v. NRC, Nos. 07-1482 and 07-1483

Dear Mr. Donovan:

Enclosed for filing please find:

1) An original, three copies, and CD-ROM of the Commonwealth of Massachusetts' Motion to Hold Petitions for Review in Abeyance, with Attachments; and

2) Certificate of Service.

With respect to the Commonwealth's Motion, the Respondent NRC has advised that "while the NRC does not agree fully with the Commonwealth's characterization of agency proceedings, the NRC does not object to holding the Commonwealth's consolidated petitions for review in abeyance if this Court deems such action expedient."

With respect to the Commonwealth's Motion, proposed Intervenor Entergy Nuclear Operations, Inc. has advised that it has received a copy of the Commonwealth's Motion and will be filing a response.

Matthew Brock Assistant Attorney General Environmental Protection Division Commonwealth of Massachusetts cc: Service List

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

)

COMMONWEALTH OF )

MASSACHUSETTS, )

)

Petitioner, )

)

v. ) Nos. 07-1482 and

) 07-1483 UNITED STATES NUCLEAR REGULATORY )

COMMISSION and the UNITED STATES )

OF AMERICA, )

)

Respondents )

COMMONWEALTH OF MASSACHUSETTS' MOTION TO HOLD PETITIONS FOR REVIEW IN ABEYANCE I. INTRODUCTION Petitioner, the Commonwealth of Massachusetts ("Commonwealth"),

pursuant to F.R.A.P. 27, moves the Court to hold in abeyance the above-captioned consolidated petitions for review of three orders by the U.S.

Nuclear Regulatory Commission ("NRC" or "Commission") in the license extension proceedings for the Pilgrim and Vermont Yankee nuclear power plants, pending the earliest of the following events: (a) the completion by the NRC of a related generic rulemaking proceeding; (b) the completion by

the NRC of the license extension proceeding for the Pilgrim nuclear power plant; or (c) the completion by the NRC of the license extension proceeding for the Vermont Yankee nuclear power plant.

Holding the petitions for review in abeyance until the earliest of these events may substantially conserve the resources of the Court and the parties because the NRC's generic rulemaking proceeding addresses the same environmental concerns raised in the pending petitions regarding Vermont Yankee and Pilgrim, and may moot those appeals. In addition, the NRC has not yet ruled on the merits of the Commonwealth's claims. Therefore, the NRC has not provided the Court or the Commonwealth with the Commission's substantive position on the important environmental protection issues identified in the Commonwealth's petitions. The NRC's generic rulemaking is expected to address these issues.

However, in the event that the NRC issues a final decision to extend the operating license for the Pilgrim or Vermont Yankee plant before completion of the rulemaking -- one of the possible approaches that the NRC has reserved for itself despite the Commonwealth's objection -- the Court should proceed to hear and rule on the Commonwealth's petitions for review to ensure that the NRC complies with the National Environmental 2

Policy Act ("NEPA") and other applicable law for the relicensing of the Pilgrim and Vermont Yankee nuclear power plants.

II. BACKGROUND The operating licenses for the Pilgrim and Vermont Yankee nuclear power plants are both due to expire in June of 2012. In January 2006, Entergy Nuclear Operations, Inc. ("ENO') submitted license renewal applications that would extend the Pilgrim and Vermont Yankee operating license terms for another 20 years, or until 2032.

As permitted by the Atomic Energy Act and NRC regulations, the Commonwealth, through its Attorney General, requested a hearing on each license renewal. application.' Each hearing request included a virtually identical "contention" asserting that the license renewal application failed to satisfy NEPA, 42 U.S.C. 4321-4370f, and NRC implementing regulation 10 C.F.R. § 51 .53(c)(3)(iv), because it did not address "new and significant information," including technical reports by government scientists and other 1 Massachusetts Attorney General's Request for a Hearing and Petition to Intervene With Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Plant Operating License, etc. (May 26, 2006) ("Vermont Yankee Hearing Request");

Massachusetts Attorney General's Request for a Hearing and Petition to Intervene With Respect to Entergy Nuclear Operations Inc.'s Application 3

experts and the terrorist attacks of September 11, 2001, demonstrating the significant risk of a catastrophic accident in the plants' high-density spent fuel storage pools due to a wide range of causes including terrorist attacks, natural phenomena, operator error, and equipment failure. 2 In each case, a panel of the NRC's Atomic Safety and Licensing Board ("ASLB") rejected the Attorney General's contention on the procedural ground that the contention impermissibly challenged NRC regulations which preclude consideration of the environmental impacts of spent fuel storage in NRC license renewal proceedings. 3 Those regulations for Renewal of the Pilgrim Nuclear Plant Operating License, etc. (May 26, 2006).

2 Id., citing Marsh v. Oregon NaturalResources Council, 490 U.S. 360, 374 (1989), 10 C.F.R. § 51.53(c)(3)(iv); see also San Louis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9h Cir. 2006), cert. denied, 127 S.Ct.

1124 (2007).

3 Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 155 (2006) ("LBP-06-20") (Attachment 1 to the Commonwealth's Petition for Review in No. 07-1482); Entergy Nuclear GenerationCompany and Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 288 (2006) ("LBP 23") (Attachment 1 to the Commonwealth's Petition for Review in No. 07-1483).

a-"

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are based on a 1996 generic environmental impact statement ("GEIS")

4 which concluded that spent fuel storage impacts are insignificant.

The panels also ruled that in order to challenge the Pilgrim or Vermont Yankee license renewal application's failure to address this new and significant information, the Attorney General must first petition the NRC to change its rules or seek a waiver of theregulations prohibiting consideration of those impacts in license renewal hearings. 5 While disagreeing with the ASLB's procedural ruling that the contentions were inadmissible, the Attorney General submitted a rulemaking petition to the NRC in the summer of 2006, out of an abundance of caution and to address the alternative rulemaking process. The rulemaking petition sought revocation of the regulation prohibiting consideration of the environmental impacts of spent fuel storage in individual license renewal cases, based on the new and significant 4 NUREG-1437, GenericEnvironmentalImpact Statementfor License Renewal of Nuclear Plants (1996). See also LBP-06-20, 64 NRC at 152 n.23, 155, 157; LBP-06-23, 64 NRC at 291.

5 LBP-06-20, 64 NRC at 159; LBP-06-23, 64 NRC at 298-299 and note 5. Because the Attorney General had submitted only one contention in each of the license renewal cases, rejection of the contentions resulted in the dismissal of the Attorney General's hearing requests in both cases. LBP 20, 64 NRC at 209; LBP-06-23, 64 NRC at 349.

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information set forth in the Pilgrim and Vermont Yankee contentions. 6 The Attorney General also argued that NEPA required the NRC to withhold any final decision in the Pilgrim and Vermont Yankee license renewal cases until the generic rulemaking petition is resolved. 7 To protect her rights to ensure that the NRC complies with NEPA for the license extensions at the specific plants of concern - Pilgrim and Vermont Yankee the Attorney General also appealed LBP-06-20 and LBP-06-23 to the NRC Commissioners, arguing that the ASLB erred in refusing to admit the Commonwealth's contentions. 8 In the alternative, the Attorney General asserted that if the NRC intended to use the rulemaking process to address the Commonwealth's substantive concerns regarding the environmental impacts of high-density pool storage at the Pilgrim and Vermont Yankee nuclear power plants, it must apply the results of the 6 Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006). The NRC published the petition for public comment at 71 Fed. Reg., 64,169 (November 1, 2006).

7 Id.

8 Massachusetts Attorney General's Brief on Appeal of LBP-06-20 (October 3, 2006) ("Brief on Appeal of LBP-06-20"); Massachusetts Attorney General's Brief on Appeal of LBP-06-23 (October 31, 2006)

("Brief on Appeal of LBP-06-23").

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rulemaking in the individual license renewal proceeding before the licenses could be extended. 9 The Commission affirmed LBP-06-20 and LBP-06-23 in CLI-07-03, holding that the ASLB had correctly concluded that the Attorney General's contentions were inadmissible because they challenged an NRC regulation.10 The Commission also found that the Attorney General's rulemaking petition was the "appropriate way" to address the Commonwealth's substantive concerns about the environmental risks posed by the Pilgrim and Vermont Yankee spent fuel pools."

However, claiming it was "premature," the Commission refused the Attorney General's request that the NRC confirm it will apply the results of the pending generic rulemaking to the Pilgrim and Vermont Yankee license 9 Massachusetts Attorney General's Brief on Appeal of LBP-06-20 at 2-3; Massachusetts Attorney General's Brief on Appeal of LBP-06-23 at 19.

10 Entergy Nuclear GenerationCompany and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc.

(Pilgrim Nuclear Power Station), CLI-07-03, _ NRC _, slip op. at 6 (January 22, 2006) ("CLI-07-03") (Attachment 2 to the Commonwealth's Petition for Review in No. 07-1482 and No. 07-1483 and Attachment A hereto).

11 Id., slip op. at 7 ("It makes more sense for the NRC to study whether, as a technical matter, the agency should modify its requirements related to spent fuel storage for all plants across the board than to litigate in 7

extension proceedings. 12 Thus while the Commission stated in CLI-07-03 that the generic rulemaking is the appropriate vehicle for addressing the Commonwealth's substantive concerns regarding the environmental risks posed by relicensing the Pilgrim and Vermont Yankee nuclear plants, the Commission refused to commit to utilize that vehicle to address the Commonwealth's concerns in a timely way, i.e., before making its re-licensing decisions for Pilgrim and Vermont Yankee.' 3

.On February 1, 2007, seeking to avoid the need to petition to the Court at this time until the NRC's generic rulemaking is resolved, the Attorney General filed a motion asking the NRC Commissioners to clarify particular adjudications whether generic findings in the GEIS are impeached by the Mass AG's claims of new information.")

12 Id., slip op. at 9 and n.37.

13 Id..In refusing to suspend the Pilgrim and Vermont Yankee license renewal proceedings pending resolution of the rulemaking petition, the Commission stated that under 10 C.F.R. § 2.802, a "party" or an "interested state. government" admitted to a license renewal proceeding under 10 C.F.R. § 2.315 could request the Commission to suspend a license renewal proceeding pending the completion of the rulemaking proceeding.

Id. Section 2.802 does not apply to the Commonwealth, however, which is neither a party nor an interested state. The Commonwealth is not a party because the NRC rejected its contentions. Nor does the CommonWealth have Section 2.315 interested state status, because an interested state may participate in hearings only with respect to contentions that have been admitted. LouisianaEnergy Services, L.P. (National Enrichment Facility),

CLI-04.35, 60 NRC 619, 626-27 (2004). In any event, the 8

that CLI-07-03 was not a final decision with respect to the Attorney General's hearing rights in the Pilgrim and Vermont Yankee license renewal cases. In part, the Attorney General made this request because no one at the NRC - either the Commission or its Licensing Boards - has yet addressed the substantive claims raised by the Commonwealth's contentions in the two site specific cases (i.e. Pilgrim or Vermont Yankee) or in the NRC's generic rulemaking. 14 On March 15, 2007, the Commission issued CLI-07-13, stating:

If she [MA AG] wants to pursue judicial review of our rejection of her contentions, she must do so now. It is true that the petition for rulemaking currently under consideration: might possibly render judicial review moot. But the mere potential that an issue may become moot in the future due to a rulemaking does not affect the finality of the decision today. 15 Commonwealth's substantive rights under NEPA should not be subject to a discretionary decision by the NRC to issue or deny a stay.

14 The NRC projects that the license extension proceedings for Pilgrim and Vermont Yankee should be resolved by the agency by July, 2008. See:

http://www.nrc.gov/reactors/operating/licensing/renewal/applications/verm ont-yankee,html#schedule (Vermont Yankee);

http://www.nrc.vgov/reactors/operating/licensing/renewal/applications/pilgri m.html#schedule (Pilgrim).

15 Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Company and Entergy Nuclear Operations,Inc.

(Pilgrim Nuclear Power Station), CLI-07-13, __ NRC __,slip op. at 4.

(Attachment B hereto).

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The Commission also stated that as a non-party, the Attorney General has no right to request the Commission to stay the final decisions in the Pilgrim and Vermont Yankee until the rulemaking is resolved. 16 On March 22, 2007, the Commonwealth submitted petitions for

.review to this Court, seeking review of the NRC's decisions in both the Pilgrim and Vermont Yankee license renewal cases. The Court consolidated the cases by order of March 26,.2007.

Ill. REQUEST FOR RELIEF In consideration of the foregoing and for the following reasons, the Commonwealth respectfully asks this Court to hold Nos. 07-1482 and 07-1483 in abeyance:

1. Doing so may save substantial resources of the Court and the parties since, by its own admission, the NRC recognizes that the generic rulemaking may moot the Commonwealth's pending appeals; 16 Once again the NRC suggested that the Attorney General could seek a discretionary stay from the Commission of a final licensing decision in Pilgrim or Vermont Yankee pending completion of the Rulemaking, provided she is willing to waive her rights to judicial review on the pending petitions. The Attorney General declines to do so. See CLI-07-13 slip opinion at p. 5 n. 16. ("[T]he Mass AG could not -have sought

'participation' status under section 2.315 while the appeal on the admissibility of her contention was still pending. But.. .the Mass AG could seek participant status even now.")

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2. Although the NRC directed that the Commonwealth must appeal now to this Court regarding the denial of her contentions or lose that right, the NRC still has not yet ruled on the substantive merits of the Commonwealth's claims in the related rulemaking proceeding;

3. The Commission's decision in the rulemaking proceeding is likely to have a significant bearing on the positions by the parties and rulings of this Court regarding the Commonwealth's petitions; and

4. Holding these petitions in abeyance would cause no prejudice to the Respondents, given that the license extensions, if granted, should not take effect. until 2012, when the current operating licenses will expire.

IV. CONCLUSION For the foregoing reasons, the Commonwealth respectfully requests the Court to:

A. hold Nos. 07-1482 and 07-1483 in abeyance, pending the earliest of the following events:

i. the completion by the NRC of the related rulemaking proceeding; ii. the completion by the NRC of the license extension proceeding for the Pilgrim nuclear power plant; or 11

iii. the completion by the NRC of the license extension proceeding for the Vermont Yankee nuclear power plant; and B. Direct the NRC to provide status reports to the Court and the parties, not less than quarterly, on the anticipated completion dates for these three proceedings.

Respectfully submitted, By its Attorneys, MARTHA COAKLEY ATTORNEY GENER Diane Curran Matthew Brock Harmon Curran, Spielberg Assistant Attorney General

& Eisenberg, L.L.P. Environmental Protection 1726 M Street N.W., Suite 600 Division Washington, D.C. 20036 Office of the Attorney General

.202/328-3500 One Ashburton Place Boston, MA 02108 617/727-2200 X 2425 April 3s2007 12

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Dale E. Klein, Chairman DOCKETED 01/22/07 Edward McGaffigan, Jr. SERVED 01/22/07 Jeffrey S. Merrifield Gregory B. Jaczko Peter B. Lyons In the Matter of

)

ENTERGY NUCLEAR VERMONT YANKEE LLC Docket No. 50-271-LR and. ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station)

)

In the Matter of

)

ENTERGY NUCLEAR GENERATION COMPANY) and ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR (Pilgrim Nuclear Power Station) )

CLI-07-03 MEMORANDUM AND ORDER Today we deny appeals by the Massachusetts Attorney General (Mass AG) and affirm two Atomic Safety and Licensing Board decisions rejecting his sole contention in two separate license renewal proceedings. The Mass AG proposed essentially identical contentions in the proceedings to renew the operating license at the.Vermont Yankee Power Station in Windam County, Vermont' and the Pilgrim Nuclear Power Station in Plymouth, Massachusetts. 2 The Mass AG's contention says that new information calls into question previous NRC findings on the environmental impacts of fires in spent fuel pools. The Mass AG contention challenges one

'LBP-06-20, 64 NRC 131 (2006).

2 LBP-06-23, 64 NRC _(2006).

2 of the findings in the Generic Environmental Impact Statement (GELS) for license renewal -

namely that storing spent fuel in pools for an additional 20 years would have insignificant environmental impacts. In each of the challenged decisions, the Licensing Board found the contention inadmissible. Both Boards found the GElS finding. controlling absent a waiver3 of the NRC's generic finding 4 or a successful petition for rulemaking. 5 We conclude that the Boards' interpretation of the law and regulations concerning generic, or "category one," environmental findings is consistent with Turkey Point.andwe affirm both rulings.

The Mass AG has in fact filed a petition for rulemaking raising the same issues as his contention. 7 As he in essence acknowledges, 8 the petition for rulemaking is a more appropriate avenue for resolving his generic concerns about spent fuel fires than a site-specific contention in an adjudication.

I. BACKGROUND A. Environmental Analysis for License Renewal In 1996, the Commission amended the environmental review requirements in 10 C.F.R. Part 51 to address the scope of environmental review for license renewal applications. 9 The 3 10 C.F.R. § 2.335.

4 See 10 C.F.R. § 51.53(c)(3)(i).

10 C.F.R. §.2.802.

6 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001).

7 See Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006), see 71 Fed. Reg. 64,169 (public notice);

8 See, e.g., Massachusetts Attorney General's Brief on Appeal of LBP-06-20 (Oct. 3, 2006), at 8 n.7, agreeing that the Mass AG's contention does not fit the criteria for a rule waiver.

See also Massachusetts' Petition for Rulemaking, at 18.

9 Final Rule, "Environmental Review for Renewal of Nuclear Power Plant Operating Licenses," 61 Fed. Reg. 28,467 (1996).

3 regulations divide the license renewal environmental review into generic and plant-specific issues. The generic impacts of operating a plant for an additional 20 years that are common to all plants, or to a specific subgroup of plants, were addressed in a 1996 GElS,'` Those generic impacts analyzed in the GElS are-designated "category one" issues. A license renewal applicant is generally excused from discussing category one issues in. its environmental report.",

Generic analysis is "clearly an appropriate method" of meeting the agency's statutory obligations under NEPA. 2 The license renewal GElS determined that the environmental effects of storing spent fuel for an additional 20 years at the site of nuclear reactors would be "not significant."13 Accordingly, this finding was expressly incorporated into Part 51 of our regulations.' 4 Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding.' 5 B. The Mass AG's Contention "o See.NUREG-1437, "'Generic Environmental Impact Statement for License Renewal of Nuclear Plants," Final Report, Vol 1 ("GEIS")(May 1996).

1110 C.F.R. §51.53(c)(3)(i).

12 See Baltimore Gas and Electric Co. v.. NRDC, 462 U.S. 87, 101 (1984).

13 -See NUREG-1427, at 6-72 to -75 ("even under the worst probable cause.of a loss of spent-fuel pool coolant (a severe seismic-generated accident causing a catastrophic failure of the pool), the likelihood of a fuel-cladding fire is highly remote"), at 6-8.5 (in an high-density pool, "risks due to accidents and their environmental effects are found to be not significant").

14 See 10 C.F.R. Subpt. A, App. B, Table B-1 "Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants" ("The expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated on site with small environmental effects").

'* NRC regulations do not allow a contention to attack a regulation, unless the proponent requests a waiver from the Commission. 10 C.F.R. § 2.335(a), (b)' see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 364 (2001).

4 In both license renewal proceedings before us today, the Mass AG submitted a petition for intervention and request for hearing on a single contention challenging Entergy's"6 environmental report for failing to include an analysis of the long-term environmental effects of storing spent fuel in high-density pools at the site. Specifically, the Mass AG cited studies issued subsequent to the GElS claiming that even a partial loss of water in the spent fuel pool could lead to a severe fire. 7 The Mass AG argues that Entergy's failureto include the new information violated 10 C.F.R. § 51.53(c)(3)(iv)'6 and raises a litigable contention:

Significant new information now firmly establishes that (a) if the water level in a fuel storage pool drops to. the point where the tops of the fuel assemblies are uncovered, the fuel will burn, (b) the fuel will burn regardless of its age, (c) the fire will propagate to other assemblies in the pool, and (d) the fire may be catastrophic.19 16 Entergy Nuclear Operations, Inc., together with Entergy Nuclear Generation Company, holds the operating license for the Pilgrim Nuclear Power Station. Entergy Nuclear Operations, Inc. and EntergyVermont Yankee., LLC, hold the license for the Vermont Yankee Nuclear Power Station. In today's decision we refer to the license applicants collectively as "Entergy."

17 See NAS Committee on the Safety and Security of Commercial Spent Nuclear Fuel Storage, Safety and Security of Commercial Spent NuclearFuel Storage (The National Academies Press, 2006); Dr. Gordon Thompson, Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee NuclearPower Plants (May 25, 2006); Dr. Jan Beyea, Report to the Massachusetts Attorney General on the Potential Consequences of a Spent-Fuel Pool Fire at the Pilgrim or Vermont Yankee Nuclear Plant (May 25, 2006).

8 In response to concerns raised by the Council on Environmental Quality and others that the NRC's generic approach in the *license renewal GElS would not take into consideration new pertinent information on environmental impacts, the NRC adopted a rule, 10 C.F.R. § 51.53(c)(3)(iv), requiring a license renewal applicant to include "new and significant information" concerning environmental effects. This information would be included in the site specific supplemental EIS (SEIS) for each power plant which is issued as part of the license renewal application review.

19 See Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006)

("VY Hearing Request") at 22; see also, Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Pilgrim.Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006) ("Pilgrim Hearing Request").

5 The Mass AG argued, therefore, that Entergy should have discussed consequences and mitigation of severe accidents in spent fuel pools (including those initiated by terrorist acts). In support of its claim that possible terrorist attacks increase the probability of an accident, the Mass AG pointed to the recent Ninth Circuit decision in San Louis Obispo Mothers for Peace v.

NRC.20 The Mass AG also claimed that NRC license renewal regulations require that the ER discuss severe accident mitigation alternatives for reducing the impact of a spent fuel accident, such as moving a portion of the fuel to dry storage. to reduce density.2 "

The Mass AG also filed a petition for rulemaking to amend the applicable regulations.

The Mass AG's petition covers somewhat broader grounds than his contention.22 It asks NRC to consider the new information on pool fire risks, "revoke the regulations that codify the incorrect conclusion" that the environmental impacts of spent fuel storage are insignificant, issue a generic determination that the impacts of high-density pool storage are significant, and

"'order that any.NRC licensing decision that approves high-density pool storage of spent fuel" (presumably in either a license renewal proceeding or any other license amendment proceeding) be accompanied by an environmental impact statement that discusses alternatives to avoid or mitigate theimpacts. It also asks that no final decision issue on the Vermont Yankee and Pilgrim license renewal proceedings until the rulemaking petition is resolved.23 II. DISCUSSION A. The Licensing Boards Correctly Found the Mass AG's Contention Not Admissible 20 449 F.3d 1016 (9t" Cir. 2006), cert. denied, No.06-466 (Jan. 16, 2007).

21 See VY Hearing Request at 23, citing 10 C.F.R. § 51.53(c)(3)(iii).

22 See Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006).

23 See Massachusetts Attorney General's rulemaking petition at 3.

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1. Category One Findings Based on the GELS Analysis Not Subject to Attack in an Individual Licensing Proceeding Both Licensing Boards determined that this case is controlled by our ruling in the. Turkey Point license renewal proceeding. In Turkey Point, a petitioner proposed to litigate the issue of the possible environmental effects of an accident involving stored fuel, including an accident resulting from an attack by the Cuban Air Force.24 The Commission agreed with the Board that this contention fell outside the scope of a license renewal proceeding, which focuses on those detrimental, effects of aging that are not addressed as a matter of ongoing agency oversight and enforcement. 5 Our Turkey Pointdecision outlined the opportunity and procedures for presenting new and significant information that could undermine the findings in the GELS, 26 including asking for a rule waiver or filing a petition for rulemaking to change the GElS finding.

The Mass AG argues that Turkey Point is inapposite because, there, the petitioners did not argue that the license renewal applicant had violated the regulation requiring it to disclose "new and significant" information, whereas here the Mass AG does make that argument.2 7 The Mass AG's argument that its "new and significant information" distinguishes this case from Turkey Point is not convincing in light of the regulatory history of the license, renewal rulemaking, as explained by the Vermont Yankee Board.26 Fundamentally, any contention on a "category one" issue amounts to a challenge to our regulation that bars challenges to generic environmental findings. There are, however, procedural steps available to make such a challenge. A rule can be waived in a particular 24 54 NRC at 5-6.

25 See id. at 7-8, 21-23.

26 See id. at 11-13.

27 Massachusetts Attorney General's Brief on Appeal of LBP-06-20, at 12, citing 10 C.F.R. § 51.53(c)(3)(iv); see note 17, supra.

21 See LBP-06-20,. 64 NRC at 157-59.

7 license proceeding only where "special circumstances ... are such that the application of the. rule or regulation ... would not serve the purposes for which the rule or regulation was adopted." 29 In theory, Commission approval of a waiver could allow a contention on a category one issue to proceed where special circumstances exist.

Here, the Mass AG does not argue that unique or unusual characteristics of the Pilgrim and Vermont Yankee facilities undermine the GEIS's generic determinations, but instead argues that new information contradicts assumptions underlying the entire generic analysis for all spent.

fuel pools at all reactors, whether in a license renewal proceeding or not. It therefore appears that the Mass AG chose the appropriate way to challenge the GElS when he filed his rulemaking petition. The Mass AG's appeal, as well as his petition for rulemaking, appears to recognize as much.? It makes more sense for the NRC to study whether, as a technical matter, the agency should modify its requirements relating to spent fuel storage for all plants across the board than to litigate in particular adjudications whether generic findings in the GElS are impeached by the Mass"AG's claims of new information.3 1 Adjudicating category .one issues site-by-site based merely on a claim of "new and significant information," would defeat the purpose of resolving generic issues in a GELS.

2. No Discussion of Severe Accident MitigationAlternatives Necessary for Category One The Boards were correct to disregard the Mass AG's argument that Entergy's environmental report was required to discuss severe accident mitigation alternatives such as 29 10 C.F.R. 2.335(b).

30 See e.g., Massachusetts Attorney General's Brief on Appeal of LBP-06-20, at 8. See also Petition for Rulemaking, at 18.

3' The Mass AG claims that the Ninth Circuit's decision in San Louis Obispo Mothers for Peace v. NRC requires admitting its spent fuel contention. But that decision - which calls on NRC to consider the environmental effects of terrorist attacks when licensing nuclear facilities.-

is also raised in the Mass AG's rulemaking petition and can be considered in that context. The Ninth Circuit decision nowhere says or implies that the NRC cannot consider spent.fuel pool or other environmental issues generically.

8 reducing the density of fuel in the pool by moving some of it to dry storage.32 The Commission held in Turkey Point that no discussion of mitigation alternatives is needed in a license renewal application for a category one issue.33 This makes obvious sense since "for all issues designated as category one the Commission has concluded that [generically] that additional site-specific mitigation alternatives are unlikely to be beneficial." 34 Both Boards found that license renewal applicants need only to discuss such alternatives with respect to "category two" issues (that is, environmental issues not generically resolved in the GElS).

As we explained in Turkey Point, it is not necessary to discuss mitigation alternatives when the GElS has already determined that, due to existing. regulatory requirements, the probability of a spent fuel pool accident causing significant harm is remote.35 The Mass AG.'s rulemaking petition, of course, has challenged the GElS determination. If the NRC should find the Mass AG's concerns well-founded, then one result might be that the GElS designation is changed and a discussion of mitigation alternatives required. Another result might be that mitigation measures already put in place as a result of NRC's post 9/11 security review could be generically determined to beadequate and consistent with the existing GElS designation.

B. Effect of Rulemaking Petition The NRC posted a notice of receipt of the Mass AG's rulemaking petition on November 1, 2006, and has requested public comments by March 19, 2007.36 After considering the 32 See LBP-06-20, 64 NRC at 161, LBP-06-23, slip op. at 31, 33-38.

33 See Turkey Point, CLI-01-17, 54 NRC at 21-22.

34 Id. at 22.

35 See license renewal GElS at 6-86 ("The need for the consideration of mitigation alternatives within the context of renewal of a power reactor license has been considered, and the Commission concludes that its regulatory requirements already in place provide adequate mitigation incentives for on-site storage of spent fuel"); see also 6-91.

36 71 Fed. Reg. 64,169; deadline for public comments extended to March 19, 2007, see 72 Fed. Reg. 24 (Jan. 19, 2007).

9 petition and public comments, .the NRC will make a decision on whether to deny the petition or proceed to make necessary revisions to the GELS. The license renewal proceeding is not suspended during this period. Nonetheless, depending .on the timing and outcome of the NRC staffs resolution of the Mass AG's rulemaking petition, it is possible that the NRC staff could seek the Commission's permission to suspend the generic determination and include a new.

analysis in the Pilgrim and Vermont Yankee plant-specific environmental impact statements.

This approach is described in the statement of consideration for our license renewal regulations, where the Commission noted:

. If a commenter provides new information which is relevant to the plant. and. is also relevant to other plants (i.e., generic information) and that information demonstrates that the analysis of an impact codified in the final rule is incorrect, the NRC staff will seek Commission approval to either suspend the application of the rule on a generic basis with respect to the analysis or delay granting the renewal application (and possibly other renewal applications) until the analysis in the GElS is updated and the rule amended. Ifthe rule issuspendedfor the analysis, each supplemental. EIS would reflect the corrected analysis until such time as the rule is amended. 38 The Commission, in.short, has in place various procedures for considering new and significant environmental information. Thus, whatever the ultimate fate of the Mass AG's "new information" claim, admitting the Mass AG's contention for an adjudicatory hearing is not necessary to ensure that the claim receives a full and fair airing.

Ill. CONCLUSION 37 The Mass AG's rulemaking petition (at p. 3) asked the NRC to withhold final decisions in the Vermont Yankee and Pilgrim license renewal proceedings until the rulemaking petition is resolved. But final decisions in those proceedings are not expected for another year or more.

Those proceedings involve many.issues unrelated to the Mass AG's rulemaking petition. It is therefore premature to consider suspending proceedings or delaying final decisions. NRC regulations provide that a petitioner who has filed a petition for rulemaking "may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking." 10 C.F.R. § 2.802. An interested governmental entity participating under 10 C.F.R. § 2.315 could also make this request.

38 Statement of Consideration, Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses., 61 Fed. Reg. 28,467; 28,472 (June 5, 1996).

10 We find that the Licensing Boards were correct to reject the Mass AG's sole contention in the two cases, and therefore affirm the Boards' decisions.

IT IS SO ORDERED.

For the Commission IRA/

ANNETTE L. VIETTI-COOK Secretary of the Commission Dated at Rockville, MD This 22nd day of January, 2007

UNITED STATES OF AMERICA

• NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

DOCKETED 03/15/07 Dale E. Klein, Chairman SERVED 03/15/07 Edward McGaffigan, Jr.

Jeffrey S. Merrifield Gregory B. Jaczko Peter B. Lyons In the Matter of

)

ENTERGY NUCLEAR VERMONT YANKEE LLC ), Docket No. 50-271-LR and  ;)

ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station)

In the Matter of ENTERGY NUCLEAR GENERATION COMPANY) Docket No. 50-293-LR and ENTERGY NUCLEAR OPERATIONS, INC.

(Pilgrim Nuclear Power Station)... .) )

. )

CLI-07-13 MEMORANDUM AND ORDER Today we deny the Massachusetts Attorney General's (Mass AG's) Motion for Reconsideration of CLI-07-3.' In CLI-07-3 we rejected the Mass AG's appeal of decisions by two different Licensing Boards in proceedings to renewthe operating license at the Vermont Yankee Power Station in Windam County, Vermont 2 and the Pilgrim Nuclear Power Station in 3

Plymouth, Massachusetts.

1 CLI-07-3, 65 NRC (Jan. 22, 2007).

2 LBP-06-20, 64 NRC 131 (2006).

3 LBP-06-23, 64 NRC 11(2006).

2 I. BACKGROUND In CLI-07-3, we affirmed the Boards' rejection in each proceeding of a contention which disputed findings in the Generic Environmental Impact Statement for license renewal concerning the environmental consequences of spent fuel storage. The contention argued that recent evidence showed that high-density storage in spent fuel pools is more dangerous than previously believed. In our decision, we noted that the Mass AG had filed a petition for rulemaking raising even broader issues than the contention,4 and said that a petition forý rulemaking is a more appropriate avenue for resolving generic concerns about spent fuel fires than a site-specific contention in an adjudication. 5 The Mass AG argues that CLI-07-3 was ambiguous in terms of its finality and whether the Mass AG is considered a "party" to the ongoing license proceedings. Her motion asks that the Commission:

(a) confirm [that CLI-07-3] is a non-final decision with respect to the Attorney General, (b) clarify that the Attorney General continues to have party status in the individual license renewal proceedings until those proceedings are concluded, and (c) further clarify that the Attorney General has the right to seek judicial review, as necessary, to ensure the application of the final rulemaking to the.

individual license renewal proceedings for. Pilgrim and Vermont Yankee. 6 The Mass AG pointed to language in CLI-07-3 saying that it would be "premature" to consider staying the license renewal proceedings to await the outcome of the rulemaking petition because many issues unrelated to the Mass AG's rulemaking petition must also be resolved in 4 See Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006), see 71 Fed. Reg. 64,169 (public notice).

s CLI-07-3, 65. NRC -, slip op.. at 2.

6 See Massachusetts Attorney General's Motion for Reconsideration and Clarification of CLI-07-03, at 3 (Feb. 1, 2007).

.3

• thoseproceedings. 7 The Mass AG contends that if it is premature to rule on her request to halt the license renewal proceedings, then her request is still pending and, therefore, CLI-07-3 is not in all respects a "final" decision.

The NRC Staff and Entergy 8 oppose the Motion for Reconsideration. 9 They say that the Mass AG's motion has not shown any basis for us to reconsider the ruling, and the motion-is more a request for clarification than a request for reconsideration. They also suggest that the Commission make clear that our previous ruling was final with respect to the Mass AG's participation in the Pilgrim and Vermont Yankee license renewal proceedings.1" II. ANALYSIS A. No Basis for Reconsideration Despite its characterization as a motion for "reconsideration," the. Mass AG's pleading gives us no reason to. reconsider our decision in CLI-07-3. A motion for reconsideration must demonstrate "compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid."11 The Mass AG calls the decision "internally inconsistent, unclear, or potentially prejudicial" to her claims,' 2 but does not contend that it violates our regulations or NEPA. The whole of the Mass 7 See CLI-07-3, slip op. at 9 n.37.

a Entergy Nuclear Operations, Inc., together with Entergy Nuclear Generation Company, holds the operating license for the Pilgrim Nuclear Power Station. Entergy Nuclear Operations, Inc. and Entergy Vermont Yankee, LLC, hold the license for the Vermont Yankee Nuclear Power Station. In today's decision we refer to the license applicants collectively as "Entergy."

9 See NRC Staff Answer to Massachusetts Attorney General Motion for leave to File and Motion for Reconsideration of CLI-07-03 (Feb. 16, 2007); Entergy's Response .to Massachusetts Attorney General's Motion for Reconsiderationand Clarification of CLI-07-03 (Feb. 16, 2007).

'0 Id. at 5.

1110 C.F;R. § 2.323(e).

12 Massachusetts Attorney General's Motion for Reconsideration, at 2.

4 AG's argument goes to the supposed "ambiguity" concerning the decision's finality. She has not demonstrated a "clear and material error" in our affirming the two Board decisions we were reviewing.

B. Finality of Decision Our decision in CLI-07-3 was final as to the Mass AG's only claims in the two license renewal proceedings. The Mass AG has no claim remaining in either adjudication. Thus, if she wants to pursue judicial review of our rejection of her contentions, she must do so now.13 It is true that the petition for rulemaking currently under consideration might possibly render judicial review moot. But the mere potential that an issue may become moot in the future due to a rulemaking does not affect the finality of the decision today.

To clarify an additional point, under NRC regulations, the Mass AG currently has no right to request that the final decisions in Pilgrimand Vermont Yankee license renewal proceedings be stayed until the rulemaking is resolved. 4 As we indicated in CLI-07-3, only a "party" to the proceedings, or an interested governmental entity participating under 10 C.F.R. §2.315, may file a request to stay proceedings (pending a rulemaking) under 10 C.F.R. §2.802,15 The Mass AG is neither. Because she did not offer an admissible contention, she was never admitted to either of the two proceedings as a "party."'6 13 See EnvironmentalLaw and Policy Ctr. v. NRC, 470 F.3d 676, 681 (7th Cir. 2006).

She also has the option of awaiting an NRC decision in her petition for rulemaking. Agency decisions on rulemaking petitions are judicially reviewable. See, e.g., Bullcreek v. NRC, 359 F.3d 536 (D.C.Cir. 2004).

14 The Mass AG's rulemaking petition requested such. CLI-07-3, slip op. at 9 n.37.

15 Id.

16 A state may participate eitheras an interested governmental entity or as a party with its own contentions, but not both. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619 626-27 (2004). Therefore, the Mass AG could not have sought "participation" status under section 2.315 while the appeal on the admissibility of her contention was still pending. But, as at least one contention has been admitted for hearing in each of the Vermont Yankee and Pilgrim proceedings, the Mass AG could seek participant

5 III. CONCLUSION For the forgoing reasons, the Mass AG's motion for reconsideration is denied. Our decision in CLI-07-3 is clarified as above.

IT IS SO ORDERED.

For the Commission IRA!

Annette L. Vietti-cook Secretary of the Commission Dated at Rockville, MD This 15'h day of March, 2007 status even now.

CERTIFICATE OF SERVICE I hereby certify that on April 24, 2007, a copy of the foregoing Commonwealth of Massachusetts' Motion to Hold Petitions for Review in Abeyance was served by first-class mail, postage prepaid, upon the following:

Steven C. Hamrick Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. NRC Mail Stop 0-15D21 Washington, DC 20555 John F. Cordes Solicitor U.S. Nuclear Regulatory Commission U.S. NRC Mail Stop 0-15D21 Washington, DC 20555 Paul A. Gaukler, Esq.

David R. Lewis, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street N.W.

Washington, DC 20037 Matthew Brock Assistant Attorney General Environmental Protection Divison Commonwealth of Massachusetts