ML111530343

Commonwealth of Massachusetts' Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Accident

ML111530343
Person / Time
Site:	Pilgrim
Issue date:	06/02/2011
From:	Brock M State of MA, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML111530338	List: ML111530339 ML111530340 ML111530341 ML111530342 ML111530343 ML111530344 ML111530345
References
50-293-LR, ASLBP 06-848-02-LR, RAS 20414
Download: ML111530343 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application June 2, 2011 COMMONWEALTH OF MASSACHUSETTS' CONTENTION REGARDING NEW AND SIGNIFICANT INFORMATION REVEALED BY THE FUKUSHIMA RADIOLOGICAL ACCIDENT I. INTRODUCTION AND EXECUTIVE

SUMMARY

The Commonwealth of Massachusetts respectfully submits a new contention to the license renewal proceeding for the Pilgrim nuclear power plant. The contention is supported by the expert declaration and report of Dr. Gordon R. Thompson.

1 The Commonwealth's contention char ges that U.S. Nuclear Regulatory Commission's (NRC's) discussion of environmental impacts of severe accidents in Supplement 29 of the Generic Environmental Impact Statement (GEIS) for License Renewal and the Severe Accident Mitigation Alternatives (SAMA) analysis are inadequate to satisfy the National Environmental Policy Act (NEPA) and NRC implementing regulations because they do not address new and significant information revealed by the radiological accident at the Fukushima Daiic hi nuclear power plant (NPP) complex in Japan. While complete informati on about the causes and characteristics is not yet available, sufficient information has been revealed to show that the environmental

1 Declaration of Dr. Gordon R. Thom pson in Support of Commonwealth of Massachusetts Contention and Related Petit ions and Motions (June 1 and 2, 2011); New and Significant Information From the Fukushi ma Daiichi Accident in the Context of Future Operation of the Pilgrim Nuclear Power Plant (June 1, 2011) (Thompson Report).

2 impacts of re-licensing the Pilgrim NPP are more significant than presented in the environmental analyses that the NRC curren tly relies on for the pr oposed re-licensing of the Pilgrim NPP. As required by NEPA, this new and significant information must be considered before the Pilgrim NPP ma y be re-licensed. 10 C.F.R. § 51.92.

See also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 385 (1989) (holding that, regardless of its eventual assessment of the significance of the information, the [agency]

ha[s] a duty to take a hard l ook at the proffered evidence;"

Silva v. Romney, 473 F.2d 287, 292 (1st Cir. 1973) (duty to comply w ith NEPA is non-discretionary). As demonstrated by the contention, new and significant information yielded by the Fukushima accident provides important insights, not previously considered by the NRC, about the risks of reactor core accidents at Pilgrim, in particular that the risk of a core-melt accident is an order of magnitude higher than estimated in Supp. 29 of the License Renewal GEIS. The Fukushima accident also confirms the validity of the concern raised by in the Commonwealth's 2006 contention and rulema king petition, that high-density pool storage of spent fuel poses unacceptable environmental risks.

2 While affirmative evidence of a pool fire has not emerged at this writing, nothing about the accident has contradicted Dr. Thompson's view that the Pilg rim spent fuel poses a serious risk of fire if water is lost from the pool.

See Thompson Report at 26-27. Moreover, the Fukushima accident conclusively showed that the types of mitigative measures that the NRC relied

2 Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Op eration Inc.s' Application for Renewal of the Pilgrim Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Agai nst Spent Fuel Pool Accidents (May 26, 2006); Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006).

3 on to deny the Commonwealth's rulemaking petition (see The Attorney General of Commonwealth of Massachusetts, the Attorney General of Calif ornia; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204 (Aug. 8, 2008) (Rulemaking Denial)) were ineffective to stop the progression of a very serious spent fuel pool accident.

Id. at 18-20;. Now that the Fukushima accident has revealed that the NRC' s rejection of the Commonwealth's concerns was erroneous, the NRC should, as required by NEPA and fundamental principles of fairness, admit the new contention. The contention is accompanied by a petition to waive or, in the alternative, rescind, NRC regulations which categorize spent fuel storage impacts as "Category 1" and thereby preclude their c onsideration in individual license renewal proceedings.

3 As discussed in both the waiver petition and the alternative rulemaking petition, the Commonwealth believes that the issues raised by its contention are more suitable to a plant-specific waiver, but the Commonwealth also recognizes that the choice of procedural vehicle for addressing the issues raised by the waiver petition lies within the discretion of the NRC. Baltimore Gas and Electric Co. v. Natural Resources Defense Council , 462 U.S. 87, 100 (1983). Whichever procedural vehicle is chosen by the NRC, the Commonwealth's overriding concern is the legal necessity that the NRC must

3 Commonwealth Of Massachusetts' Petition For Waiver of 10 C.F.R. Part 51 Subpart A, Appendix B or, in the Alternative, Petition To Rescind Regulations Excluding Consideration Of Spent Fuel Storage Impacts From License Renewal Environmental Review (June 2, 2011) ("Waiver Petition"). As provided by 10 C.F.R. § 2.335(d), the Waiver Petition asks the ASLB to find that the Commonwealth has made a prima facie case justifying the issuance of a waiver and certify the petition to the Commission. In the alternative, if the ASLB should conclude that a waiver is not justified, the Commonwealth asks the Secretary to rescind the regulati ons pursuant to 10 C.F.R. § 2.802(a). In the event that the ASLB refers the waiver petition to the Secretary for treatment as a rulemaking petition, the Commonwealth has submitted to the Secretary a motion to suspend the Pilgrim licensing proceeding pending resoluti on of the petition, as provided by 10 C.F.R.

§2.802(d). A courtesy copy of that motion has been provided to the ASLB.

4 withhold any decision on the re-licensing of the Pilgrim plant until it has addressed the new and significant information presented by the Commonwealth. 10 C.F.R. § 51.92(a);

Marsh, 490 U.S. at 371-72.

4 In addition, the contention is accompan ied by a motion which addresses the NRC's procedural requirements for the submission of contentions and requests to intervene after the initial period for submitting hearing requests has elapsed.

5 While the Commonwealth does not believe that the record of this proceeding has closed, the motion also seeks re-opening of the record in the alternative, in the event the ASLB determines that it has closed. The motion covers all issues that must be addressed in order to raise a contention at a late stage of a license renewal adjudication. Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station, LBP-10-19, __ NRC __ (October 28, 2010).

6 4 To avoid unnecessary repetition, the Commonwealth has provided, in the Waiver Petition, a single description of the factual background of this case and the statutory and regulatory framework for the Commonwealth's arguments. Thus, the Waiver Petition should be read in conjunc tion with this contention.

5 See Commonwealth of Massachusetts Motion to Admit Contention and, if Necessary, to Re-open the Record Regarding New and Significant Information Revealed by Fukushima Accident (June 2, 2011) ("Motion to Admit Contention and Reopen Record"), which accompanies this contention.

6 In response to the Commission's request for comment, the Comm onwealth also joined in an Emergency Petition to Suspend Licensi ng Decisions, as applicable to the Pilgrim plant. See Commonwealth of Massachusetts Response to Commission Order Regarding Lessons Learned from the 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)(Commonwealth Response). As suggested in the Commonwealth's Response, the Commonwealth believes that its contention would be best managed by admitting it and holding off litigation until the NRC has completed its investigation of the Fukushima accident and its implications for Pilgrim and other NPPs. Given that the issuance of a license renewal for the Pilgrim NPP may be imminent, and given that the Commission has not posted any decision or schedule addressing these issues, and absent further directive from the Commission, the Commonwealth asks the ASLB to co nsider its contention now.

5 II. FACTUAL BACKGROUND AND STATUTORY FRAMEWORK To avoid undue repetition of the lengthy history of th e NRC's consideration of spent fuel storage environmental impacts in this proceeding and generically, the factual and procedural background have been set forth in a single pleading: the Commonwealth's Waiver Petition, which accompanies this Contention.

See Waiver Petition,Section II. In addition,Section III of the Waiver Petition provides a description of the statutory and regulatory framework for the Commonwealth's contention. Sections II and III of the Waiver Petiti on are hereby incorporated by reference into this statement regarding the Commonw ealth's Contention. III. CONTENTION Pursuant to 10 C.F.R. § 2.309(f)(1)(i), the Commonwealth provides the following information regarding its contention:

A. Statement of Contention The Commonwealth contends that the environmental impact analysis and the SAMA analysis in Supp. 29 to the Generic Environmental Impact Statement (GEIS) for License Renewal (1996) are inadequate to satisfy NEPA because they fail to address new and significant information revealed by the Fukushima accident that is likely to affect the outcome of those analyses. The new and significant information shows that both core-melt accidents and spent fuel pool accidents are significantly more likely than estimated or assumed in Supp. 29 of the License Rene wal GEIS or the SAMA analysis for the Pilgrim NPP. As a result, the environmental impacts of re-licensing the Pilgrim NPP have been underestimated. In addition, the SAMA analysis is deficient because it ignores 6 or rejects mitigative measures that may now prove to be cost-effective in light of this new understanding of the risks of re-licensing Pilgrim. The experience of the Fukushima accident yielded new and significant information in a number of respects that can be summarized as follows:

1. The experience of the Fukushima accident, taken together with the history of other NPP accidents in the world, shows that the estimate of core damage frequency relied on in Supp. 29 and the related SAMA analysis is unrealistically low by an order of magnitude.

2. The experience of the Fukushima accident shows that the NRC's assumptions about operators' capability to mitigate an accident at the Pilgrim NPP are unrealistically optimistic and that in fact, the operators' capability to carry out mitigative measures can be severely degraded in the accident environment.

a. Mitigative measures known as extensive damage mitigation guidelines (EDMGs), which the NRC previously relied on in its Rulemaking Denial to dismiss the Commonwealth's concerns that spent fuel pool storage impacts are insignificant, are clearly inadequate to address the range of core-damage and spent-fuel-damage events that could occur at Pilgrim.

b. Given the demonstrated ineffectiveness of the mitigative measures relied on by the NRC to conclude that spent fuel storage impacts are insignificant, there is a substantial conditional probability of a spent-fuel-pool fire during a reactor accident at Pilgrim.

c. Based on operators' experience during the Fukushima accident and a review of the EDMGs that were publicly disclosed pursuant to the Fukushima 7 accident, the NRC's excessive secrecy regarding accident mitigation measures and the phenomena associated with spent-fuel-pool fires degrades the licensee's capability to mitigate an accident at the Pilgrim NPP.

d. Based on the occurrence of hydrogen explosions at Fukushima NPPs and on the reported experience of Fukushima operators with hydrogen control systems, it appears likely that hyd rogen explosions similar to those experienced at Fukushima could occur at the Pilgrim N PP, and therefore should be considered in the SAMA analysis.

e. Based on currently available information regarding damage to spent-fuel pools and their support systems (for cooling, makeup, etc.), there appears to be a substantial conditional probability of a spent-fuel-pool fire during a reactor accident at Pilgrim. Therefor e the NRC's previous rejection of the Commonwealth's concerns regarding the environmental impacts of high-density pool storage of spent fuel has been refuted.

f. Based on the reported release of radioactive material to the atmosphere from NPPs at Fukushima, it appears likely that filtered venting of the Pilgrim reactor containment could substantially reduce the atmospheric release of radioactive material from an accident at the Pilgrim NPP.

In light of the Fukushima experience, therefore, the environmental impact analysis and the SAMA analysis for the Pilgrim NPP should be revised to include the new and significant information identified above. The re-done SAMA analysis should encompass, among other SAMA options, meas ures to accommodate: (a) structural damage; and (b) station blackout, loss of servi ce water, and/or loss of fresh water supply, 8 occurring for multiple days. Also, the measures to be considered should include systems for hydrogen explosion control, filtered venting of containment, and replacement of high-density spent fuel storage racks with low-density open-frame racks. Moreover, in view of the high risk of a radioactive release at Pilgrim, any accident-mitigation measure or SAMA that is credited for the future licensed operation of the Pilgrim NPP should be incorporated in the plant's design basis.

B. Brief Explanation of the Basis for the Contention. The Commonwealth's contention is based on the experience of the Fukushima Daiichi accident, as evaluated in the Thompson Report. Dr. Thompson's analysis of each of the elements of new and significant inform ation identified above in pars. (i) through (vi) is presented in pars. VI.1 through VI.6 of his Report. The Commonwealth notes that the findings set forth in Dr. Thompson's Report are designated as either Conc lusive or Provisional. The Conclusive findings are fully supported by information that is available to date. The Provisional findings are generally supported by available information, but await final confirmation from information that is likely to become available during coming months. For both types of finding, Dr. Thompson's Report discusses the implications of the new and significant information for future operation of the Pilgrim plant. C. Demonstration that the Contention is Within the Scope of the Proceeding.

The Commonwealth's contention is within the scope of the proceeding because it seeks compliance with a legal requirement for the re-licensing of the Pilgrim NPP, i.e., consideration of new and significant inform ation that could have an effect on the outcome of the environmental analysis for the Pilgrim NPP. 10 C.F.R. § 51.92(a);

9 Marsh, 490 U.S. at 371-72. As the Supreme Court recognized in Marsh, it would be incongruous with NEPA's "action-forcing" purpose to allow an agency to put on "blinders to adverse environmental effects," just because the EIS has been completed.

Id. Accordingly, up until the point when the agency is ready to take the proposed action, it must supplement the EIS if there is new information showing that the remaining federal action will affect the quality of the human environment "in a significant manner or to a

significant extent not already cons idered." 490 U.S. at 374. D. Demonstration that the Contenti on is Material to the Findings NRC Must Make to Re-License the Pilgrim Facility.

Pursuant to 10 C.F.R. § 51.71(d), the NRC must evaluate the environmental impacts of re-licensing the Pilgrim NPP. Under § 51.71(d), it must also conduct a SAMA analysis for the re-licensing of the Pilgrim NPP which evaluates the cost-effectiveness of measures to mitigate or avoid the environmental impacts of re-licensing the Pilgrim NPP.

The Commonwealth's contention seeks a revision of the environmental impact analysis and the SAMA analysis for the Pilgrim NPP, to consider new and significant information which could change the outcome of those an alyses. The Commonwealth is particularly concerned that some previously rejected or ignored SAMAs may prove to be cost-effective in light of the experience of the Fukushima accident. Therefore the contention is material to the findings that NRC must make to re-license the Pilgrim NPP. E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along With Appr opriate Citations to Supporting Scientific or Factual Materials.

The facts and expert opinion which support the Commonwealth's contention are stated in Dr. Thompson's Report, which is att ached. Dr. Thompson's analysis of each of 10 the elements of new and significant informati on identified in pars. (i) through (vi) of the contention is presented in pars. VI

.1 through VI.6 of his Report. F. Sufficient Information to Show the Existence of a Genuine Dispute With the Applicant and the NRC.

In his report, Dr. Thompson presents his expert opinion, supported by documented evidence, supporting th e conclusion that for the si x issues iden tified in the Commonwealth's contention, the Fukushima accident demonstrates - either conclusively or provisionally - that the environmental impacts of re-licensing the Pilgrim NPP are significantly greater than estimated or assumed by the license applicant and the NRC. Therefore the environmental impact analysis for the Pilgrim NPP should be re-evaluated and the SAMA analysis should be revised to consider mitigative measures that previously may have been ignored or rejected. IV. CONCLUSION For the foregoing reasons, the Commonwealth's contention is admissible.

Respectfully submitted, Signed (electronically) by 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 June 2, 2011

On June 1, 2011, the Commonwealth notified all pa rties of record of its intent to make this filing. The NRC Staff has advised that it may object; no other party has responded.