ML12159A576

NRC Staff'S Answer to Jones River Watershed Association and Pilgrim Watch'S Requests to Reopen the Record and File a New Contention on Water Quality

ML12159A576
Person / Time
Site:	Pilgrim
Issue date:	06/07/2012
From:	Amitava Ghosh, Lindell J, Matthew Smith, Uttal S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22567, 50-293-LR, 50-293-LR-CWA, ASLBP 12-921-08-LR-BD01
Download: ML12159A576 (81)

Text

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

)

ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR )

OPERATIONS, INC. )

)

(Pilgrim Nuclear Generating Station) )

NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS REQUESTS TO REOPEN THE RECORD AND FILE A NEW CONTENTION ON WATER QUALITY Maxwell C. Smith Susan Uttal Anita Ghosh Joseph A. Lindell Counsel for NRC Staff June 7, 2012

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 PROCEDURAL BACKGROUND .................................................................................................. 3 DISCUSSION ................................................................................................................................ 6 I. Standing ............................................................................................................................ 6 II. The Petition is Untimely under NRC Regulations.............................................................. 6 A. The Petitioners New Contention Does Not Contain Previously Unavailable Information That Was Submitted in a Timely Fashion and Therefore Does Not Meet the Requirements of 10 C.F.R. § 2.309(f)(i), (ii), (iii) .............................. 7 B. Petitioners Do Not Meet the Late-Filing Standards of 10 C.F.R. § 2.309(c)........ 12

1. Petitioners Do Not Show Good Cause .................................................... 14

2. The Balance of the Other Factors Is Not Compelling .............................. 16 III. Petitioners Do Not Raise an Admissible Contention ....................................................... 19 A. The Petition Does Not Provide a Specific Statement of the Matters in Controversy ......................................................................................................... 20 B. Pilgrim Holds Valid Federal and State Water Quality Permits ............................. 20

1. The 1991 Joint Federal and State NPDES Permit Remains Valid .......... 20

2. The Massachusetts Department of Environmental Protection Provided a Valid Section 401 Certification under the Clean Water Act .................. 22

3. Entergy Complied with NRC Regulations Requiring Them to Submit a Copy of a Current CWA § 316(b) Determination and a CWA § 316(a)

Variance .................................................................................................. 25

4. Entergy has a Valid EPA Permit for the Discharge of Tolytriazole .......... 28

5. Petitioners Allegations that Entergy Violated State Regulations are Meritless .................................................................................................. 29

6. Petitioners Assertions that Entergy Failed to Submit Marine Biological Reports Required by the NPDES Permit are Meritless ........................... 31 C. Contrary to Petitioners Claims, the Massachusetts Office of Coastal Zone Management Recently Reaffirmed that Entergy Possesses a Valid and Current Coastal Zone Management Consistency Certification for the Pilgrim License Renewal ................................................................................................. 32

-ii-D. Petitioners Have Not Identified Any New and Significant Information Regarding Water Quality that Would Require the NRC Staff to Supplement the Pilgrim SEIS .............................................................................. 40 IV. The Petition Does Not Meet the Reopening Standards .................................................. 43 A. Timeliness ........................................................................................................... 44 B. Significance ......................................................................................................... 45 C. Materially Different Result ................................................................................... 46 D. Affidavit ................................................................................................................ 48 CONCLUSION ............................................................................................................................ 49

June 7, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR GENERATION ) Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR )

OPERATIONS, INC. )

)

(Pilgrim Nuclear Generating Station) )

NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS REQUESTS TO REOPEN THE RECORD AND FILE A NEW CONTENTION ON WATER QUALITY INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(h)(1) and 2.323(c), the staff of the Nuclear Regulatory Commission ("NRC Staff" or Staff) files its answer in opposition to Jones River Watershed Association and Pilgrim Watchs (collectively Petitioners) Request to Reopen, for a Hearing, and to File New Contentions and JRWA Motion to Intervene on Issues of: (1) Violation of State and Federal Clean Water Laws; (2) Lack of Valid State § 401 Water Quality Certification; (3)

Violation of State Coastal Zone Management Policy; and (4) Violation of NEPA (Petition).1 The belated Petition brings various challenges to the Staffs environmental review of Entergy Nuclear Generation Company and Entergy Nuclear Operations (Entergy or Applicant) application for license renewal for the Pilgrim Nuclear Generating Station (Pilgrim or PNPS).2 1

Jones River Watershed Association (JRWA) and Pilgrim Watch (PW) Request to Reopen, for a Hearing, and to File New Contentions and JRWA Motion to Intervene on Issues of: (1) Violation of State and Federal Clean Water Laws; (2) Lack of Valid State § 401 Water Quality Certification; (3) Violation of State Coastal Zone Management Policy; and (4) Violation of NEPA (May 14, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12135A617).

2 Petition at 2.

The Petition contends that Entergy lacks four certifications that are prerequisites to license renewal, namely a valid Clean Water Act (CWA) section 401 Water Quality Certification,3 a valid consistency certification under the Coastal Zone Management Act (CZMA),4 a valid CWA section 316(a) variance, and a valid CWA section 316(b) determination.5 However, the NRC Staffs 2007 Supplemental Environmental Impact Statement (SEIS) for Pilgrim discussed the documents Entergy and the NRC Staff relied on to demonstrate compliance with the CZMA and CWA.6 Therefore, if Petitioners wished to challenge the Staffs reliance on these documents, they should have filed their claims years ago.7 Moreover, because Petitioners also challenge the validity of these permits, the appropriate forums for litigating such concerns are the state and federal agencies charged by statute with regulating water quality.8 As a result, the Petitioners claims are largely immaterial and outside the scope of this proceeding, and they do not rest on adequate supporting facts.9 Finally, Petitioners have also not demonstrated that they can meet the Commissions high standards for reopening the record in a closed proceeding.10 Consequently, the Atomic Safety and Licensing Board (Board) should deny the relief sought by the Petition.

3 33 U.S.C. § 1341(a)(1).

4 16 U.S.C. § 1456(c)(3)(A).

5 33 U.S.C. § 1326(a), (b).

6 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station Final Report - Appendices, at E-3, E-19 (Jul.

2007) (ADAMS Accession Number ML071990027) (Pilgrim SEIS).

7 10 C.F.R. § 2.309(c), (f)(2).

8 Petition at 3; e.g., Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2),

ALAB-515, 8 NRC 702, 712-13 (1978).

9 10 C.F.R. § 2.309(f)(1)(iii), (iv), (v), (vi).

10 10 C.F.R. § 2.326(a), (b).

PROCEDURAL BACKGROUND The NRC Staff has thoroughly discussed the procedural background of this case elsewhere and will only highlight the elements of this license renewal that are relevant to the instant Petition.11 Just over six years ago, Pilgrim Watch (PW) submitted a hearing request on Entergys application for license renewal for Pilgrim. The Board admitted two contentions -

Contention 1, challenging Entergys aging management program for buried piping, and Contention 3, challenging Entergys severe accident mitigation alternatives analysis.12 On October 30, 2007, a Board majority granted a motion for summary disposition of Contention 3.13 On April 10, 2008, the Board held an evidentiary hearing on Contention 1, and shortly thereafter, on June 4, 2008, the Board formally closed the evidentiary record.14 The Board issued an initial decision on Contention 1 on October 30, 2008.15 On appeal, the Commission reversed the summary disposition of Contention 3 and remanded it to the Board for further proceedings as limited by the Commissions Order.16 On July 29, 2011, the Board issued a partial initial decision finding in favor of the Applicant on the remanded Contention 3.17 On appeal, the Commission affirmed the Boards decision on 11 E.g., NRC Staffs Answer to Pilgrim Watchs Petition for Review of Memorandum and Order (Denying Pilgrim Watchs Requests for Hearing on New Contentions Relating to Fukushima Accident), at 2-5 (Oct. 3, 2011) (ADAMS Accession No. ML11276A191) (Staff Answer to Appeal of LBP-11-23).

12 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 348-49 (2006).

13 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131 (2007).

14 Memorandum and Order (Ruling on Pilgrim Watch Motions Regarding Testimony and Proposed Additional Evidence Relating to Pilgrim Watch Contention 1), at 3 (June 4, 2008) (June 4, 2008, Order).

15 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-08-22, 68 NRC 590 (2008).

16 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 317 (2010).

17 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-11-18, 74 NRC __ (July 19, 2011) (slip op.).

remanded Contention 3.18 After the Commission remanded Contention 3, PW and the Commonwealth of Massachusetts filed several new contentions before the Board. The Board declined to admit any of those contentions, and the Commission has affirmed those rulings.19 On March 8, 2012, the Petitioners filed another new contention that brought several challenges to the NRC Staffs review of the impacts of license renewal on aquatic species under the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Magnuson-Stevens Fishery Conservation and Management Act (MSA).20 The Board denied that contention on May 24, 2012 and the Petitioners have yet to appeal that decision.21 On May 2, 2012, the Petitioners filed yet another new contention that claimed the NRC had not adequately analyzed the impacts of renewing the Pilgrim operating license on the roseate tern under the ESA.22 That contention is currently pending before the Board.

During the adjudicatory portion of this proceeding, the NRC Staff completed its environmental review of the Pilgrim license renewal application. The Staff documented the 18 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __ (Feb. 9, 2012) (slip op.).

19 Staff Answer to Appeal of LBP-11-23 at 3-5; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-03, 75 NRC __ (Feb. 22, 2012) (slip op.); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-06, 75 NRC __ (Mar. 8, 2012) (slip op.); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC __ (Mar. 30, 2012) (slip op.); Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __ (Jun. 7, 2012) (slip op.)

20 Jones River Watershed Association Petitions for Leave to Intervene and File New Contentions Under 10 C.F.R. § 2.309(a), (d) or in the alternative 10 C.F.R. § 2.309(e) and Jones River Watershed Association and Pilgrim Watch Motion to Reopen under 10 C.F.R. § 2.326 and Request for a Hearing Under 10 C.F.R. § 2.309(a) and (d) in the above Captioned License Renewal Proceeding (March 8, 2012)

(ADAMS Accession Nos. ML12068A282, ML12068A183) (March 8, 2012 Petition).

21 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-12-10, 75 NRC __ (May 24, 2012) (slip op.).

22 Jones River Watershed Association and Pilgrim Watch Motion to Reopen, Request for Hearing and Permission to File New Contention in the Above-Captioned License Renewal Proceeding on Violations of the Endangered Species Act With Regard to the Roseate Tern (May 2, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12123A473) (May 2, 2012 Petition).

results of that review in its July 2007 Pilgrim SEIS.23 The Pilgrim SEIS is a site-specific environmental review that augments the NRCs Generic Environmental Impact Statement (GEIS) for license renewal.24 The Pilgrim SEIS contains a letter dated July 11, 2006, from the Massachusetts Office of Coastal Zone Management (MOCZM), which indicated that MOCZM concurred with Entergys certification that the renewed operating license would be consistent with the [MOCZM]

enforceable programs and policies.25 In addition, the Pilgrim SEIS referenced the Environmental Protection Agencys (EPA) National Pollutant Discharge Elimination System (NPDES) Permit for Pilgrim.26 Entergys Environmental Report contains excerpts from that Permit that indicate, as discussed below, it meets the requirements of CWA section 316.27 Moreover, as discussed below, the EPA issued the NPDES permit based on a state finding that Pilgrims operations would not violate applicable water quality standards under CWA section 401.28 Nevertheless, on May 14, 2012, the Petitioners filed the instant Petition to reopen the record and admit a new contention challenging the Staffs 2007 review based on an alleged 23 Pilgrim SEIS.

24 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report (May 1996) (ADAMS Accession No. ML040690705). The GEIS reached generic environmental conclusions applicable to all plants and identified issues that the NRC must consider on a site specific basis, in a supplemental environmental impact statement, for each individual license renewal application. 10 C.F.R. Part 51, Subpt. A, App. B., Table B-1 and n. 1.

25 Pilgrim SEIS at E-19.

26 Id. at E-12.

27 Applicants Environmental Report, Operating License Renewal Stage, Pilgrim Nuclear Power Station, Appx. E, Attachment A (Jan. 25, 2006) (ADAMS Accession No. ML060830611) (ER).

28 See infra III.B.2.

absence or inadequacy of these certifications and permits (Water Quality Contention).29 As discussed below, these claims are wholly untimely and substantively meritless.

DISCUSSION I. Standing An organization, such as Jones River Watershed Association (JRWA), may establish representational standing to intervene if it identifies a member of the organization by name and address who would qualify for standing, shows that the member has authorized the organization to represent his or her interests, and demonstrates that the interest the organization seeks to protect is germane to its own purposes.30 In license renewal proceedings, standing is presumed . . . if the petitioner lives within 50 miles of the nuclear power reactor.31 At least one named member of JRWA has provided an affidavit that establishes that she lives within 50 miles of Pilgrim, authorizes JRWA to represent her in this proceeding, and raises concerns that are germane to JRWAs purposes.32 Therefore, JRWA has established standing under 10 C.F.R. § 2.309(d).33 PW has already established standing to participate.

II. The Petition is Untimely under NRC Regulations Under NRC regulations, a petitioner may file late contentions under 10 C.F.R. § 2.309(f)(2) only upon a showing that the contention is timely in light of new information that is materially different from previously available information. A contention that does not meet these 29 Petition at 4.

30 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409 (2007).

31 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 60 (2008).

32 Petition at 25-26.

33 The Petitioners state that they alternatively request discretionary intervention under 10 C.F.R.

§ 2.309(e) if either is determined to lack standing as a matter of right under 2.309(d)(1). Petition at 53.

The NRC's regulations provide for discretionary intervention when at least one admissible contention has been admitted. 10 C.F.R. § 2.309(e). Because there are no admitted contentions pending in this matter, Petitioners have not met the requirements for discretionary intervention. In any event, because the Petitioners meet the normal standing requirements in 10 C.F.R. § 2.309(d), there is no reason to consider discretionary intervention.

standards is nontimely, but may nevertheless be admitted under the standards of 10 C.F.R. § 2.309(c)(1)(i)-(viii). The Commission has stated that the NRC does not look with favor on new contentions filed after the initial hearing request.34 A commitment to efficiency, pragmatism, fairness, and finality underlies this policy. The Commission has repeatedly emphasized, There simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new contentions at their convenience.35 Petitioners address the requirements of 10 C.F.R. § 2.309(f)(2) and the requirements of 10 C.F.R. § 2.309(c).

However, they fail to demonstrate that the Water Quality Contention meets the requirements of either section.

A. The Petitioners New Contention Does Not Contain Previously Unavailable Information That Was Submitted in a Timely Fashion and Therefore Does Not Meet the Requirements of 10 C.F.R. § 2.309(f)(2)(i), (ii), (iii)

To satisfy 10 C.F.R. § 2.309(f)(2)(i) and (ii), Petitioners must show that their contention is based on previously unavailable information that is materially different than the information previously available. Moreover, under 10 C.F.R. § 2.309(f)(2)(iii), Petitioners must show that they filed the Water Quality Contention in a timely fashion upon discovering that new information. Petitioners are correct that the regulations do not set a specific number of days whereby we can measure or determine whether a contention is timely as required by 10 C.F.R.

§ 2.309(f)(2)(iii).36 However, [s]everal boards have established a 30-day rule [after receipt of relevant new information] for new contentions.37 Moreover, in the Pilgrim license renewal 34 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 636 (2004).

35 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 NRC __, __ (Mar. 10, 2011) (slip op. at 6) (quoting Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235, 271-72 (2009)).

36 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 574 (2006). See Petition at 30.

37 Vermont Yankee, LBP-06-14, 63 NRC at 574. See also, e.g., Oyster Creek, CLI-09-7, 69 NRC at 288 (finding motion to reopen filed within 30 days of new information timely); AmerGen Energy Co.,

proceeding, the Board has previously provided a 30-day deadline for filing contentions based on new information.38 As discussed below, all of the Petitioners alleged new information has been available much longer than 30-days, with most of the information having been available for over five years. Therefore, the Petition is untimely.

Petitioners arguments largely break down into two categories: (1) claims that Entergy did not possess valid certifications and permits that are prerequisites to license renewal, and (2) assertions that subsequent events render the validity of those certifications and permits doubtful.39 With respect to the first category, as noted above, Petitioners assert that Entergy did not possess a valid CWA section 401 certification, a valid CWA section 316(a) variance and section 316(b) determination, and a valid CZMA consistency certification.40 Petitioners contend, Any attempt by the NRC to rely upon [40 year old CWA section 401 certifications] and the expired NPDES permit, which Entergy claims are current § 401 water quality certification . .

. is unreasonable and an egregious derogation of duty by any measure.41 In addition, Petitioners allege that Entergys demonstration of compliance with CWA section 316 is invalid because the last 316(a) and (b) demonstration reports accepted by the state and/or US EPA for PNPS were done in the 1970s.42 Finally, Petitioners contend that although Entergys 2006 CZM Certification Report purports to show that it is in compliance with applicable water quality LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 485-86 (2008) (finding motion to reopen based on document that had been available for four months untimely); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 495-96 (2010) (finding a contention untimely where information had been available for two months).

38 Order (Establishing Schedule for Proceeding and Addressing Related Matters), at 7 (Dec. 20, 2006) (ADAMS Accession No. ML063540494) (Scheduling Order).

39 Petition at 7-16.

40 Id. at 7-8, 15.

41 Id. at 7-8.

42 Id. at 8.

laws, but in fact, Entergy was in violation of state and federal water pollution control laws in 2006.43 The Pilgrim ER, which Entergy submitted to the NRC in 2006, contained these water quality certifications and permits and Entergys application for a state CZMA certification.44 Consequently, the water quality certifications and permits, and Entergys information regarding the CZMA are not new information, because they were part of the original application.45 While the Petitioners complain that the NPDES permit has been in timely renewal since 1996 and rests on 316 demonstration reports from the 1970s, the ER explicitly recognized that the NPDES permit was in timely renewal and that the 316 demonstration reports dated to the 1970s.46 Moreover, the NRC referenced and incorporated these certifications and permits into its SEIS for Pilgrim in 2007, which also contained the MOCZM approval of Entergys CZMA certification.47 This information made it abundantly clear that MOCZM agreed with Entergy.

The 2007 Pilgrim SEIS also clearly identified what documents the NRC intended to rely on to meet the requirements of the CWA. Consequently, even if this discussion in the Pilgrim SEIS had constituted new information, the time to challenge that reliance would have been in 2007, at the latest.48 Any attempt to do so in 2012 is clearly untimely.

Petitioners also allege that subsequent events and information demonstrate that Pilgrims CWA certifications and permits and CZMA consistency certification are invalid. But, all 43 Id. at 15.

44 ER at 9-1 to 9-2, 9-3, Attachments A and D.

45 10 C.F.R. § 2.309(f)(2).

46 ER. at 4-9, 4-12. The ER also noted that newer studies support the 316 demonstration. Id. at 4-12.

47 Pilgrim SEIS at E-3, E-19.

48 10 C.F.R. § 2.309(f)(2).

of this information is significantly older than thirty days. Consequently, none of it establishes that the Petition is timely.

First, Petitioners provide the affidavits of Anne Bingham, Esq., Alex Mansfield, and Dr.

Ian Nisbet to establish that the EPAs process for renewing the NPDES process is stalled and that Pilgrim will negatively impact aquatic species and the roseate tern.49 But, all three affidavits are reproductions of affidavits that supported earlier filings from the Petitioners. Petitioners have not attempted to explain why they could not have filed their Water Quality Contention when they filed their other contentions supported by these affidavits. In any event, all of the Affidavits are untimely now. The Bingham and Mansfield affidavits are dated March 6, 2012.50 Likewise, the Nisbet Affidavit, while produced less than 30 days ago, on its face discusses information that has been available since at least the early 1950s.51 The Commission has held that a document that simply discusses and evaluates previously available information does not suffice to transform that information into new information under NRC regulations.52 Consequently, the Nisbet Affidavit also does not constitute new information, although it was produced thirty days before the Petitioners filed the Water Quality Contention. Consequently, none of these affidavits render the claims in the Petition timely because they are well over 30 days old or analyze information that has been available for years.53 Next, Petitioners cite to a January 2012 Discharge Monitoring Report from Entergy to the EPA, which they claim reveals Pilgrim discharges tolytriazole and radioactive effluent into the 49 Petition at 7, 9.

50 March 8, 2012, Petition; May 2, 2012, Petition.

51 Nisbet Affidavit at ¶ 8. For a complete discussion of the Nisbet Affidavits lateness, see the Staffs earlier answer in this proceeding. NRC Staffs Answer to Jones River Watershed Association and Pilgrim Watchs Motion to Reopen the Record and Request for a Hearing with Regard to the Roseate Tern, at 7-17 (May 16, 2012) (ADAMS Accession No. ML12137A858).

52 Prairie Island, CLI-10-27, 72 NRC at 495-96.

53 10 C.F.R. § 2.309(f)(2).

Cape Cod Bay.54 But, this report is dated February 17, 2012, meaning that it was almost three months old when the Petitioners filed the Water Quality Contention.55 Consequently, the Discharge Monitoring Report also does not establish the Petitions timeliness.56 In addition, the Petitioners claim that Entergy does not have an approved biological monitoring plan in contravention of its NPDES permit.57 If Entergys lack of an approved biological plan were a recent development, it might constitute new information under 10 C.F.R.

§ 2.309(f)(2). But, Petitioners contend that Entergy has lacked this plan for about 10 years.58 Consequently, by the Petitioners own admission, this alleged non-compliance with the NPDES permit could have formed the basis for a contention in 2006, when contentions in this proceeding were initially due. As a result, it does not constitute new information.59 Last, Petitioners provide evidence to demonstrate that Pilgrim will adversely affect listed species under the ESA as well as the river herring.60 But, these claims have already formed the basis for the Petitioners earlier contentions, which were similarly untimely when the Petitioners initially filed them.61 The Petitioners noted that the National Marine Fisheries Service listed the river herring as a candidate species in November of 2011, that Massachusetts instituted a moratorium on taking that species in 2006, and that a report from the Atlantic States Marine Fisheries Commission from March of 2012 found that the population of river herring is depleted 54 Petition at 7-8.

55 Id. at Attachment 1.

56 10 C.F.R. § 2.309(f)(2)(iii); Scheduling Order at 7.

57 Petition at 10.

58 Id.

59 10 C.F.R. § 2.209(f)(1).

60 Petition at 15-16.

61 March 8, 2012 Petition; May 2, 2012 Petition.

to near historic lows.62 Consequently, the information which supports the Petitioners concerns regarding the river herring has clearly been available for well over 30 days.63 Likewise, Petitioners claims regarding listed species under the ESA primarily rest on the affidavits they have previously filed in this proceeding, which, as discussed above, are untimely.

As a result, the Water Quality Contention raises issues that are evidently untimely under NRC regulations and practice. The gravamen of the contention challenges the validity of Entergy permits and certifications issued under the CZMA and Sections 401 and 316 of the CWA.64 But these documents have been available since 2006 or 2007, and most of the Petitioners challenges rest on information that was available at that time. Although the Water Quality Contention does cite some more recent documents, all of those are months, if not years, older than 30 days or simply repackage previously available information. Therefore, they do not suffice to establish the contentions timeliness.65 B. Petitioners Do Not Meet the Late-Filing Standards of 10 C.F.R. § 2.309(c)

Because Petitioners do not satisfy the factors for late-filed contentions under 10 C.F.R. § 2.309(f)(2), they must meet the requirements for nontimely contentions under 10 C.F.R. § 2.309(c).66 Nontimely contentions under 10 C.F.R. § 2.309(c) may only be entertained following a determination by the Presiding Officer that a balancing of eight factors weighs in favor of admission.67 The requirements for untimely filings and late-filed contentions are stringent.68 62 Petition at 15 & n.20.

63 Petitioners also noted that in March of 2012, Massachusetts issued a reminder of the moratorium. Petition at n. 20. Even if this information were materially different from the moratorium, it is still more than thirty days old.

64 Petition at 2.

65 10 C.F.R. § 2.309(f)(2).

66 Paina Hawaii, LLC, CLI-10-18, 72 NRC 56, 86 n. 171 (2010).

67 The eight factors listed at § 2.309(c)(1) are as follows:

(i) Good cause, if any, for the failure to file on time;

All eight factors must be addressed by the petitioner.69 While petitioners must show a favorable balance among the [eight] factors, good cause is given the most weight.70 If a petitioner cannot show good cause, the balance of the other factors must be compelling.71 Petitioners do not show good cause and do not show a favorable balance among the remaining factors.72 Therefore, the Petition should be denied as untimely.

(ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/ petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/ petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/ petitioner's participation may reasonably be expected to assist in developing a sound record.

68 Oyster Creek, CLI-09-7, 69 NRC at 260.

69 Id.

70 Id. at 261.

71 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 565 (2005); Tennessee Valley Authority (Watts Bar Nuclear Unit 2), CLI-10-12, 71 NRC 319, 323 (2010).

72 The Staff does not contest the Petitioners arguments regarding the 10 C.F.R. § 2.309(c)(1)(ii)-

(iv) requirements (Petition at 33-34) as Boards have previously found these criteria to be not particularly applicable given that they focus on the status of the requestor/petitioner seeking admission to a proceeding (e.g., standing, nature of the requestor/petitioners affected interest). Vermont Yankee, LBP-06-14, 63 NRC at 581.

1. Petitioners Do Not Show Good Cause The Commission has stated that [g]ood cause has long been interpreted to mean that the information on which the proposed new contention is based was not previously available.73 Once that information is available, the contention must be filed in a timely fashion.74 For the reasons discussed above, Petitioners cannot show good cause.75 None of the information relied upon in the contention is new, materially different than previously available information, or raised in a timely fashion.

Petitioners make a host of equitable arguments in an attempt to justify their late-filed contention. Petitioners contend that the NRC should be estopped from objecting to the untimeliness of their filing because the Staffs alleged provision of incorrect information serves to excuse the Petitioners untimely filing.76 Petitioners have tried this tactic before, and once again, the case they cite, Armed Forces, is inapposite. In Armed Forces, the NRC staff provided misleading advice regarding the timing for the issuance of a storage facilitys renewed license.77 For this reason, the NRC staff conceded that a late-filed petition was timely.78 In the current case, the NRC Staff made no representations to the Petitioners related to timing. To the 73 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-09-05, 69 NRC 115, 125-26 (2009); Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-4, 37 NRC 156, 164-65 (1993).

74 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1764-65 (1982) (finding that petitioners did not establish good cause for late filing when information had been in the public domain for six months).

75 See supra Section II.A.

76 Petition at 31-32 (citing Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), LBP-82-24, 15 NRC 652, 658 (1982)). Because Armed Forces is a licensing board decision, it does not constitute binding precedent on this Board. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-22 62 NRC 542, 544 (2005) (noting that unreviewed Board decisions do not create binding legal precedent).

77 Armed Forces, LBP-82-24, 15 NRC at 655.

78 Id. at 655-656.

contrary, if Petitioners believed that the NRCs 2007 SEIS or Entergys 2006 ER were inaccurate, they could have filed a petition right away.

Petitioners appear to read the language in Armed Forces more expansively and contend that their filing is timely because they were furnished erroneous information by the NRC staff and Entergy, who represented that state and federal permits were up-to-date and valid, but they are not.79 But, as discussed below, the Petitioners evidence does not show that the NRC and Entergy misled Petitioners, rather it indicates that the Petitioners simply disagree with the NRC Staff and Entergys conclusions regarding the validity of these permits.80 The Commission has repeatedly emphasized that petitioners have an iron-clad obligation to examine the publicly available documentary material . . . with sufficient care to enable [them] to uncover any information that could serve as the foundation of a specific contention.81 If a simple disagreement with the NRC established good cause, petitioners iron-clad obligation to bring timely contentions would evaporate because the very existence of a disagreement underlying a contention would always justify late filings. To avoid eviscerating the Commissions timeliness rules, Armed Forces must be limited to instances in which NRC statements and conclusions explicitly relate to timing. As a result, Petitioners have not shown that Armed Forces applies to this case or that the Staff should be estopped from contesting the Petitions obvious deficiencies with respect to timeliness. In any event, even if the Staffs discussion in the Pilgrim SEIS initially confused Petitioners, the Petitioners have not attempted to explain why that confusion lasted for nearly five years before they filed the Water Quality Contention.82 79 Petition at 32.

80 Petition at 5-16.

81 Prairie Island, CLI-10-27, 72 NRC at 496 (quoting Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-03, 37 NRC 135, 147 (1993)) (quotations omitted, first alteration in original).

82 See Kavowras v. New York Times Co., 328 F.3d 50, 56-57 (2d Cir. 2003) (noting that for the doctrine of equitable estoppel to apply, the party asserting equitable estoppel must show that reliance on the representation was reasonable).

Petitioners also suggest that Entergy acted inequitably by representing to MOCZM that it complied with state water quality standards when it also sued Massachusetts regarding those water quality standards.83 But Petitioners have not claimed that Entergys actions estop the NRC from raising timeliness objections to the Water Quality Contention, nor could they. More importantly, a review of the case Petitioners cite reveals no bad faith on Entergys part. Rather, it appears that Entergy filed a law suit regarding the extent of the state regulators authority to regulate cooling water intake structures.84 The case does not reveal any deliberate attempts on Entergys part to avoid complying with established regulatory requirements or hide any violations of those requirements. Consequently, the case on cooling water intake structures does not support the Petitioners plea for equitable relief. Therefore, Petitioners cannot demonstrate good cause, and they have demonstrated no equitable reason to depart from the Commissions normal rules on timely filings.

2. The Balance of the Other Factors Is Not Compelling The Commission has recently reaffirmed that [a]bsent good cause, there must be a compelling showing on the remaining factors; it is a rare case where we would excuse a nontimely petition absent good cause.85 Because several of the remaining factors weigh heavily against Petitioners, they cannot make the compelling showing needed to overcome the absence of good cause.

First, the Petitioners cannot meet the fifth factor, because other proceedings will more effectively address the concerns raised in the Water Quality Contention.86 Specifically, the EPAs NPDES permitting process is the best venue for resolving the Petitioners concerns.

83 Petition at 31-32.

84 Entergy Nuclear Generation Company v. Department of Environmental Protection, 459 Mass.

319, 320, 944 N.E.2d 1027, 1029 (Mass. 2011).

85 Pilgrim, CLI-12-10, 75 NRC __ (slip op. at 17 n.69) (citing Watts Bar, CLI-10-12, 71 NRC at 323)).

86 10 C.F.R. § 2.309(c)(1)(v).

Because the EPA has statutory authority to regulate discharges, they are in the best position to vindicate Petitioners concerns regarding Pilgrims effluents.87 The NRCs proceeding cannot resolve many of Petitioners concerns related to water quality because the NRC lacks the statutory authority to implement these measures. Therefore, other means are both the best forum and the only appropriate forum to address most of Petitioners concerns. Likewise, Petitioners CZMA claims are best addressed to MOCZM, the office responsible for implementing the CZMA in Massachusetts.88 Accordingly, this factor weighs against intervention.89 With respect to the seventh factor, Petitioners concede that the admission of their contention would broaden the issues or delay the proceeding.90 However, they contend that this factor should be given little or no weight at all because of the seriousness of their allegations 87 The Atomic Safety and Licensing Appeal Board, in the Yellow Creek case, determined that EPA has sole jurisdiction over the regulation of water quality with respect to the withdrawal and discharge of water for nuclear power stations, and that the NRC is prohibited from placing any restrictions or requirements upon the licensees of these facilities with regards to water quality. Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702, 712-13 (1978). NRC regulations at 10 C.F.R. § 51.10(c) also address the limitations on NRCs authority to regulate water issues. 10 C.F.R. § 51.10(c). Specifically, in accordance with section 511(c)(2) of the [Clean Water Act],

the NRC recognizes that responsibility for Federal regulation of nonradiological pollutant discharges into receiving waters rests by statute with the EPA. 10 C.F.R. § 51.10(c).

88 See 16 U.S.C. § 1456(c)(3)(A) (authorizing the appropriate State CZM office to make the CZMA consistency determination).

89 Petitioners allege that there are no other means by which they can protect their interests and cite precedent in the Temelin case to argue that this is in itself sufficient for the Commission to excuse the untimeliness of the request. Petition at 34 (addressing 2.309(c)(1)(v) and citing Westinghouse Elec.

Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants), CLI-94-7, 39 NRC 322, 329 (1994)). The Petitioners misquote Temelin. In that case, the Commission stated the opposite, holding that [w]hile we recognize that no one will represent the Petitioners' perspective if the hearing requests are denied, this in itself is insufficient for us to excuse their untimeliness. Temelin, CLI-94-7, 39 NRC at 329 (emphasis added). The Commission further held that excusing untimeliness for every petitioner who meets only this factor would effectively negate any standards for untimely intervention in cases such as this where no one else has requested a hearing, since a late-filing petitioner could always maintain that there will be no hearing to protect its interest if intervention is denied. Id. In this case, where Petitioners seek to reopen a closed adjudicatory proceeding, there are by definition no other parties that will protect their interests. To admit their contention based on this factor alone would effectively negate any standards for untimely intervention. Id.

90 See 10 C.F.R. § 2.309(c)(1)(vii).

regarding water quality.91 However, the Petitioners cite no precedent in which the Commission or a Licensing Board ignored this factor.92 Likewise, the Petitioners are unable to cite any authority supporting their claim that the issue of delay should be minimized because the particular concerns raised relate to the CWA and CZMA.93 And while Petitioners correctly assert that not every delay is intolerable,94 they are unable to cite a case in which the Commission or a Licensing Board further delayed a proceeding in which the evidentiary record was closed for nearly four years to admit a contention based on information that has largely been available for years.95 Regarding the eighth factor, Petitioners assert that their late-filing will assist in developing a sound record.96 But, they have not provided an admissible contention97 or a sound explanation for their half-decade delay in filing. Moreover, the Petitioners have not provided any new testimony to support the Water Quality Contention. Rather, they rely on affidavits that supported previous contentions in this proceeding.98 This suggests that Petitioners will only make a limited contribution to any hearing on this topic. Consequently, the Petitioners 91 Petition at 38.

92 See id.

93 See id. at 36-38.

94 See Public Service Elec. & Gas Co. (Hope Creek Generating Station, Units 1 and 2), LBP-77-9, 5 NRC 474, 477 (1977).

95 See Petition at 36. Every case cited by Petitioners can be handily distinguished. See Long Island Lighting Co. (Jamesport Nuclear Power Station Units 1 & 2), ALAB-292, 2 NRC 631, 650 (1975)

(evidentiary hearing would not be delayed because discovery had not yet been instituted); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-11, 13 NRC 420, 425 (1981)

(contentions would not disrupt the timeframe set for a hearing on additional contentions already admitted); Hope Creek, LBP-77-9, 5 NRC at 477 (although not every delay . . . is intolerable, the magnitude of the threatened delay causes us to conclude that this factor should weight against the petitioner's late intervention attempt).

96 2.309(c)(1)(viii); Petition at 38.

97 See infra Section III.

98 Petition at 9.

participation on this issue is unlikely to assist the agency in developing a sound record.

Therefore, 10 C.F.R. § 2.309(c)(1)(viii) weighs against the Petitioners.

Since Petitioners do not meet a number of the factors to be considered under 10 C.F.R.

§ 2.309(c) most importantly, they fail to show good cause their contention does not meet the requirements for non-timely contentions and should be dismissed.

III. Petitioners Do Not Raise an Admissible Contention To be admitted, the claims in the Petition must meet the general contention admissibility requirements at 10 C.F.R. § 2.309(f). That section requires the Petitioners to demonstrate that their contention has a legal and factual basis, is within the proceedings scope, and raises a material issue.99 The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R. § 2.309(f) of the Commissions Rules of Practice. The requirements governing the admissibility of contentions are strict by design.100 Thus, they have been strictly applied in NRC adjudications, including license renewal proceedings.101 The Commission has explained, [m]ere notice pleading is insufficient under these standards.102

[B]are assertions and speculation [are] not enough to trigger an adversary hearing . . ..103 Therefore, [a] petitioners issue will be ruled inadmissible if the petitioner has offered no 99 The Staff discussed contention admissibility at length in the NRC Staffs Answer in Opposition to Pilgrim Watch Request for Hearing on New Contention (January 7, 2011) (ADAMS Accession No.

ML110070837), and NRC Staffs Answer in Opposition to Pilgrim Watchs January 20, 2011 Amended Contention (February 14, 2011) (ADAMS Accession No. ML110450664), and hereby incorporates those discussions and arguments by reference.

100 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

101 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).

102 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).

103 GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000).

tangible information, no experts, [or] no substantive affidavits.104 As discussed below, the Petition does not meet these standards.

A. The Petition Does Not Provide a Specific Statement of the Matters in Controversy As an initial matter, the Staff notes that, pursuant to 10 C.F.R. § 2.309(f)(1)(i), an admissible contention must provide a specific statement of the issue of law or fact to be raised or controverted.105 While the Water Quality Contention purports to meet that requirement, its specific statement runs almost 11 pages and discusses a wide range of arguments based on numerous provisions of both federal and state law.106 Moreover, 10 C.F.R. § 2.309(f)(1)(ii) requires an admissible contention to provide a brief explanation of the basis on which it relies.

To meet that requirement, Petitioners simply incorporate by reference their previous discussion on the first factor in section 2.309(f)(1). While the reference may be brief, the length of the referenced material defies the common meaning of the word. Therefore, from the outset, the Water Quality Contention fails to meet the focused pleading requirements provided for by the Commission. Moreover as discussed below, Petitioners claims regarding the CWA, CZMA, and NEPA are unsupported, out of scope, and immaterial. As a result, they also do not meet the other prongs of 10 C.F.R. § 2.309(f)(1).

B. Pilgrim Holds Valid Federal and State Water Quality Permits

1. The 1991 Joint Federal and State NPDES Permit Remains Valid The 1991 NPDES permit, modified in 1994, is Pilgrims joint federal and state discharge permit.107 Petitioners assert that this permit expired in 1996.108 However, this is merely a 104 Fansteel, Inc., CLI-03-13, 58 NRC at 203 (quoting Oyster Creek, CLI-00-6, 51 NRC at 207).

105 10 C.F.R. § 2.309(f)(1)(i).

106 Petition at 5-16.

107 Modification of Authorization to Discharge under the National Pollutant Discharge Elimination System, at ¶ D.1 (Aug. 1994) (ADAMS Accession No. ML061420166) (NPDES Permit) (This Discharge Permit is issued jointly by the U.S. Environmental Protection Agency and the Division of Water Pollution Control under Federal and State law, respectively. As such, all the terms and conditions of this Permit

rhetorical tactic, as they admit that the NPDES has been administratively extended by U.S.

EPA.109 But Petitioners apparently fail to recognize that this administrative extension has the force of law. The NPDES Permit for Pilgrim is currently in timely renewal under federal law110 and state law,111 which allow an applicant for a permit to continue operations under its existing permit until the agency responsible for issuing the permit finally determines the application.112 Importantly, the D.C. Circuit explicitly approved EPAs implementation of the timely renewal provision for NPDES permits in Natural Resources Defense Council v. EPA.113 The court held that the timely renewal provision continued the expired permits, not by affirmative agency action but by operation of law114 and found that the protections of the timely renewal provision over-balance any other statutory requirements.115 Accordingly, the NPDES permit remains in force under the timely renewal provision of the Administrative Procedure Act and EPAs are hereby incorporated into and constitute a discharge permit issued by the Director of the Massachusetts Division of Water Pollution Control pursuant to M.G.L. Chap. 21, S.43.2.).

108 Petition at 6, 8, 18, 19.

109 Id. at 7.

110 5 U.S.C. § 558(c)(2) (When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.); 40 C.F.R. § 122.6(a) (When EPA is the permit- issuing authority, the conditions of an expired permit continue in force under 5 U.S.C. 558(c) until the effective date of a new permit . . . if . . . [t]he permittee has submitted a timely application).

111 314 C.M.R. § 3.09. Massachusetts state law provides a timely renewal provision similar to the federal timely renewal provision in the Administrative Procedure Act.

112 5 U.S.C. § 558(c).

113 Natural Resources Defense Council v. EPA, 859 F.2d 156, 214 (1988).

114 Id. (no hint that the safeguard afforded by Section 558(c) exists only while the permit remains unchanged; the more stringent standard required for renewal did not invalidate timely renewal).

115 Id. The court based its holding on its finding that Congress intended Section 558(c) to broadly protect private licensees from the very severe consequences of the conferring of licensing authority [over private parties] upon administrative agencies, including the threat of disastrous, arbitrary, and irremediable agency action. See 92 Cong. Rec. 5654 (1946) (statement of Rep. Walters).

implementing regulations until the EPA and the Massachusetts Department of Environmental Protection (DEP) make a final determination on the permit application.116

2. The Massachusetts Department of Environmental Protection Provided a Valid Section 401 Certification under the Clean Water Act Petitioners assert that Pilgrim lacks a valid § 401 water quality certification from the State of Massachusetts.117 Section 401(a)(1) of the Clean Water Act (CWA) states, Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the applicable provisions of

[the CWA].118 This statutory provision has two important ramifications. First, the NRC, as a licensing authority under the terms of the statute, cannot issue a license to a facility whose operations may result in discharges into navigable waters unless there is a valid § 401 certification from the state.119 Second, the EPA cannot issue a NPDES permit under § 402 of the CWA unless a § 401 certification is first granted by the state.120 One of the Petitioners claims concerns the latter issuethat EPA issued a NPDES permit for Pilgrim without a § 401 certification. Petitioners state that [a] valid § 401 certificate is required for a valid NPDES permit, and Entergys application relies on 40 year old state letters and an expired 1994 permit that . . . are inadequate.121 However, Petitioners allegations that 116 The Supreme Judicial Court of Massachusetts has also recognized that the NPDES permit is in timely renewal. Entergy, 459 Mass at 322 n.7, 944 N.E.2d at 1031 n.7.

117 See Petition at 7-8, 9, 17, 18.

118 33 U.S.C. § 1341(a)(1).

119 See id.

120 40 C.F.R. § 124.53(a) (Under CWA section 401(a)(1), EPA may not issue a [NPDES] permit until a certification is granted or waived in accordance with that section by the State in which the discharge originates or will originate.).

121 Petition at 18 (emphasis added).

EPA failed to comply with its regulations are outside the scope of this proceeding and should be raised with EPA and the appropriate state authorities.122 Furthermore, Petitioners are apparently unaware that the EPA obtained a § 401 certificate from the Massachusetts DEP before jointly issuing the modifications to the 1994 NPDES permit.123 Therefore, the NPDES permit was properly issued according to EPA regulations.124 Petitioners also allege that Pilgrim lacks a § 401 certification as required by NRC regulations.125 However, as explained above, a valid § 401 certification was issued for Pilgrims current NPDES permit.126 The NRC routinely relies on current NPDES permits as evidence of valid § 401 certifications in license renewal proceedings.127 Petitioners object to § 401 certifications that are old,128 but they cite no language from the statute that § 401 certifications can be disqualified because of age.129 Finally, Petitioners 122 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 28 (1978) (NRC should not go behind EPAs determinations on water quality); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 385-87 (2007) (same). See also Hydro Resources, CLI-98-16, 48 NRC 119, 121 (1998)

(Congress gave NRC no roving mandate to determine other agencies' permit authority.); Yellow Creek, ALAB-515, 8 NRC at 712-13 (Water quality the exclusive province of EPA).

123 Letter from Andrew Gottlieb, Commonwealth of Massachusetts DEP to Edward McSweeney, Wastewater Management Branch, U.S. EPA Region I (Jul. 1994) (Exhibit A) (certifying under § 401(a) that the NPDES permit conditions will comply with the Federal Act and the Massachusetts Clean Water Act). Although this § 401 certification was issued for the 1994 modifications to the 1991 permit, a careful reading of the certification letter demonstrates that the Massachusetts DEP was certifying that all the conditions in the revised permit, not only the modified provisions, met state water quality standards.

124 40 C.F.R. § 124.53(a).

125 Petition at 17 (Entergy cannot show compliance with requirements at 10 C.F.R. § 51.53 to have a valid state § 401 certification). The provision cited by the Petitioners, 10 C.F.R. § 51.53, contains no requirement for § 401 certification. Perhaps Petitioners mean 10 C.F.R. § 50.54(aa), which states that a license will be subject to the requirements of § 401(a)(2) of the CWA. In any event, CWA § 401(a)(1) states that any licensing authority, which would include the NRC, can issue an operating license to a facility that may discharge into navigable waters only if there is a valid § 401 certification.

126 Exhibit A.

127 See GEIS at § 4.2.1.1.

128 Petition at 7 and 18.

129 Petitioners also provide no statutory evidence that the original § 401 certifications that Entergy obtained from Massachusetts in 1970 and 1971 are obsolete. See Letter from Thomas C. McMahon,

claim that NRC regulations at 10 C.F.R. § 51.53(c)(3)(ii)(B) demand current § 401 certifications, and that this requirement cannot be satisfied by 40 year old letters.130 But the regulation cited by the Petitioners does not require current § 401 certificationsin fact, it makes no mention of § 401 certifications at all.131 In addition, CWA § 401(a), the relevant statutory provision requiring state certification, does not state that such certifications must be current.132 Furthermore, the MOCZM recently acknowledged that its federal consistency concurrence determination, based on the 1994 NPDES permit and § 401 certification, remains in effect during the pendency of the NPDES permits renewal proceedings.133 Since MOCZMs determination rests on findings that point-source discharges in or affecting the coastal zone are consistent with federally-approved state effluent limitations and water quality standards,134 it is clear that MOCZM still views both the 1994 NPDES permit and § 401 certification as a valid basis for water quality findings. For all of these reasons, this claim lacks an adequate factual basis.135 Director of the Division of Water Pollution Control, Commonwealth of Massachusetts Water Resources Division to Claude Pursel, Assistant Vice-President, Boston Edison Company (Jul. 1970) (Exhibit B)

(This is to certify that the Division has received reasonable assurance that operation of the proposed Pilgrim Station will not violate applicable water quality standards.); Letter from Thomas C. McMahon, Director of the Division of Water Pollution Control, Commonwealth of Massachusetts Water Resources Division to Claude Pursel, Assistant Vice-President, Boston Edison Company (Apr. 1971) (Exhibit C)

(similar language). Notably, these certifications contain no expiration date.

130 Petition at 8-9.

131 10 C.F.R. § 51.53(c)(3)(ii)(B) requires licensees who use once-through cooling systems to provide in their license applications a copy of a current CWA § 316(b) determination, and if necessary, a CWA § 316(a) variance.

132 33 U.S.C. § 1341(a)(1) merely states that an applicant for a license shall provide the licensing authority a state certification.

133 Letter from Bruce Carlisle, Director, Commonwealth of Massachusetts Office of Coastal Zone Management to Jones River Watershed Association/Pilgrim Watch, at 1-2 (May 21, 2012) (ADAMS Accession No. ML12144A191) (MOCZM May 21st Letter).

134 301 C.M.R. § 21.98(3).

135 10 C.F.R. § 2.309(f)(1)(v), (vi).

3. Entergy Complied with NRC Regulations Requiring Them to Submit a Copy of a Current CWA § 316(b) Determination and a CWA § 316(a) Variance Petitioners contend that Pilgrim lacks a current thermal discharge variance from the EPA under CWA § 316(a) and a current CWA § 316(b) determination from the EPA that its Cooling Water Intake Structure (CWIS) uses the best available technology.136 Section 316(a) states that if an operator of a point source can demonstrate to the satisfaction of the EPA that current effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made, the EPA can instead impose a less stringent effluent limitation as long as it will still ensure protection of the species found in that body of water.137 Section 316(b) provides, Any standard established pursuant to section 301 or section 306 of this Act and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.138 NRC regulations require applicants who use once-through cooling systems, to provide a copy of current Clean Water Act 316(b) determinations and, if necessary, a 316(a) variance in accordance with 40 CFR part 125 or equivalent State permits and supporting documentation. If the applicant cannot provide these documents, it shall assess the impact of the proposed action on fish and shellfish resources resulting from heat shock and impingement and entrainment.139 Pilgrim uses a once-through cooling system,140 but contrary to Petitioners assertions, Entergy complied with its regulatory obligations. In its ER, Entergy provided the relevant pages from the 136 Petition at 7.

137 33 U.S.C. § 1326(a).

138 33 U.S.C. § 1326(b).

139 10 C.F.R. § 51.53(c)(3)(ii)(B).

140 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear

current NPDES permit demonstrating that Pilgrim has both a current § 316(b) determination and a current § 316(a) variance.141 The 1994 NPDES permit provided by Entergy explicitly states, It has been determined, that the circulating water intake structures presently employs the best technology available for minimizing adverse environmental impact.142 As explained above, the 1994 NPDES permit is still valid.143 Therefore, the EPAs statement that Pilgrims CWIS employs the best technology available is a current § 316(b) determination that satisfies NRC regulations.

The current 1994 NPDES permit cited by Entergy also contains Pilgrims § 316(a) variance. The NPDES permit provides that Pilgrims discharges must not jeopardize the class SA use of Cape Cod Bay, which establishes it as an excellent habitat for aquatic life.144 Massachusetts regulations for class SA waters specify that the rise in temperature due to a discharge shall not exceed 1.5°0F.145 The regulations also specify that alternative effluent limitations established in connection with a variance for a thermal discharge issued under CWA

§ 316(a) are valid.146 The NPDES permit states that The rate of change of Discharge 001 Delta-T shall not exceed: (1) a 3 °F rise or fall in temperature for any 60-minute period during normal steady state plant operation and (2) a 10 °F rise or fall in temperature for any 60-minute Plants, Supplement 29 Regarding Pilgrim Nuclear Power Station Final Report, Main Report at 1-8 (Jul.

2007) (ADAMS Accession No. ML071990020).

141 ER at 4-8 (there is a best available technology determination under § 316(b)); 4-12 (there is a thermal discharge variance under § 316(a)); Attachment A (relevant pages of the 1994 NPDES permit demonstrating the above).

142 NPDES Permit at ¶ A.1.i; Pilgrim ER at Attachment A.

143 Supra Section III.B.1.

144 See NPDES permit at ¶ A.1.b.

145 314 C.M.R. § 4.05(4)(a)(2)(b).

146 314 C.M.R. § 4.05(4)(a)(2)(c).

period during normal load cycling.147 CWA § 402(a)(1) states that the EPA shall only issue a discharge permit upon condition that such discharge will satisfy § 316.148 Since the discharge limits in the EPA-issued NPDES permit exceed those allowed by the relevant water quality regulations, EPA necessarily granted Pilgrim a § 316(a) variance when it set those higher limits in the permit.

The Commission has stated that even if a NPDES permit does not specifically grant a § 316(a) variance, the permit can itself constitute a § 316(a) variance if it clearly intends to do so:

Congress has severely limited our scope of inquiry into section 316(a) determinations. All we may do is examine whether the EPA or the state agency considered its permit to be a section 316(a) determination. If the answer is yes, our inquiry ends.149 The Commission further held that the Clean Water Act does not give us the option of looking behind the agency's permit to make an independent determination as to whether it qualifies as a bona fide section 316(a) determination.150 In this case, it is clear that EPA considered the NPDES permit to be a 316(a) variance. If EPA was not implicitly granting a § 316(a) variance, they would have not allowed thermal discharges that exceeded the limits specified in Massachusetts regulations for class SA waters.

147 NPDES permit at ¶ A.1.g; Pilgrim ER at Attachment A.

148 33 U.S.C. § 1342(a)(1) (Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a) of this title, upon condition that such discharge will meet either (A) all applicable requirements under sections 1311, 1312, 1316, 1317, 1318, and 1343 of this title, or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.).

149 Vermont Yankee, CLI-07-16, 65 NRC at 385-86.

150 Id. at 387 (emphasis in original). See also Seabrook, CLI-78-1, 7 NRC at 26 and 28 (The FWPCA [CWA] reflects a Congressional judgment that the primary repository of expertise on water pollution questions generally, and on the environmental impacts of heat specifically, should be the EPA. .

. . In these circumstances, we should not go behind EPA's determinations unless compelled to do so.);

10 C.F.R. § 51.10(c) (in accordance with section 511(c)(2) of the [CWA], the NRC recognizes that responsibility for Federal regulation of nonradiological pollutant discharges into receiving waters rests by statute with the EPA.).

Therefore, the NPDES permit submitted by Entergy in its application contains both a § 316(b) determination, a § 316(a) variance, and the permit remains current and valid during the pendency of the renewal proceedings for the NPDES permit.

Petitioners appear bothered by the fact that the § 316(b) determination and § 316(a) variance in the NPDES permit rely on demonstration reports prepared in the 1970s.151 However, they provide no evidence that current determinations based on older reports are invalid. In any event, Entergy prepared a new demonstration report in 2000 and submitted it to EPA,152 which the EPA will consider as part of the NPDES renewal process. For all of the reasons above, this portion of the Petitioners claim lacks an adequate legal or factual basis.153

4. Entergy has a Valid EPA Permit for the Discharge of Tolytriazole Petitioners assert that [s]ince about 1995, PNPS has been regularly discharging a corrosion inhibitor called tolytriazole into Cape Cod Bay without a state or federal water pollution permit.154 Although the current NPDES permit does not discuss the discharge of tolytriazole, Petitioners overlook the fact that EPA explicitly granted Pilgrims request to discharge tolytriazole in a separate letter.155 Therefore, this claim lacks an adequate factual basis and is immaterial to findings the NRC must make to support license renewal.156 151 Petition at 19, 22.

152 ENSR Corp., Redacted Version 316 Demonstration Report - Pilgrim Nuclear Power Station, Prepared for Entergy Nuclear Generation Company (March 2000) (ADAMS Accession No.ML061390357).

153 10 C.F.R. § 2.309(f)(1)(v), (vi).

154 Petition at 8.

155 Letter from Edward McSweeney, Wastewater Management Branch, U.S. EPA Region I to E.T.

Boulette, Senior Vice President, Boston Edison, Pilgrim Nuclear Power Station (Jun. 1995) (Exhibit D)

(the use of Tolytriazole is approved at the requested dosage rate).

156 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

5. Petitioners Allegations that Entergy Violated State Regulations are Meritless Petitioners assert that Entergy is in violation of state law on four grounds: (1) Entergy lacks a state permit for discharging radioactive substances;157 (2) Entergy lacks a state permit for its CWIS as required by 314 C.M.R. § 4.05(4)(a)(2)(d);158 (3) Entergy discharges radioactive effluents into Cape Cod Bay without having shown that its discharges meet the standards of 314 C.M.R. § 4.05(5)(d)159, and; (4) Entergy has not shown that its CWIS operations are consistent with and protective of the water quality standards for Cape Cod Bay in 314 § CMR 4.05(4)(a).160 The first claim is meritless because, as explained above, the NPDES permit is a joint federal and state permit which constitutes a discharge permit under Massachusetts state law.161 And the NPDES permit specifically acknowledges that Pilgrims CWIS shall discharge radioactive materials in compliance with NRC regulations.162 The second claim is similarly meritless because 314 C.M.R. § 4.05(4)(a)(2)(d) merely states that Massachusetts has the authority to regulate the CWIS.163 It does not require Entergy 157 Petition at 8.

158 Id. at 9.

159 Id. at 8 (emphasis added).

160 Id. at 9 (emphasis added).

161 See supra Section III.B.1; NPDES Permit at ¶ D.1. Such joint permitting is expressly authorized by a 1973 Agreement between EPA and Massachusetts. Agreement between EPA and Massachusetts Department of Water Pollution Control, at 5 (1973) (Exhibit E). Likewise, it has been recognized by Massachusetts regulations and case law. See 314 C.M.R. § 2.08(2) (referencing a surface water discharge permit jointly issued with EPA); Entergy, 944 N.E.2d at 1033 n.12.

162 NPDES Permit at ¶ A.1.l (The discharge of radioactive materials shall be in accordance with the Nuclear Regulatory Commission operational requirements (10 CFR 20 and NRC Technical Specifications set forth in facility operating license DPR-35).).

163 314 C.M.R. § 4.05(4)(a)(2)(d) (in the case of a cooling water intake structure (CWIS) . . . the Department has the authority under 33 U.S.C. § 1251 (FWPCA § 401), M.G.L. c. 21, §§ 26 through 53 and 314 CMR 3.00 to condition the CWIS to assure compliance of the withdrawal activity with 314 CMR 4.00, including, but not limited to, compliance with narrative and numerical criteria and protection of existing and designated uses.). See generally Entergy, 944 N.E.2d 1027.

to obtain a separate state permit for the CWIS. Some aspects of CWIS operations are already addressed in the joint federal and state NPDES permit.164 Petitioners other two claims misunderstand the regulatory scheme intended in 314 C.M.R. § 3.00 and § 4.00. Petitioners assert that under 314 C.M.R. § 4.00, the permittee must affirmatively show that its discharges meet water quality standards.165 But the regulations do not require permittees to show anything. Pursuant to statute,166 314 C.M.R. § 4.00 sets surface water quality standards,167 and 314 C.M.R. § 3.00 establishes a permitting program168 in which a permittee must meet the water quality standards of 314 § C.M.R. 4.00.169 If the permittee does not meet those standards, DEP can deny a permit application or revoke or suspend an existing permit.170 The provisions cited by the Petitioners, 314 C.M.R. 4.05(5)(d) and 314 CMR 4.05(4)(a), are among those that set water quality standards.171 They do not place an affirmative duty on the permittee to show that they meet those standards.172 164 NPDES Permit at ¶ A.1.i (It has been determined, that the circulating water intake structures presently employs the best technology available for minimizing adverse environmental impact.).

165 Petition at 8-9.

166 21 M.G.L. § 27(5)-(6).

167 314 C.M.R. § 4.01(4).

168 314 C.M.R. § 3.03(1) (requiring a state permit for discharge of pollutants).

169 314 C.M.R. § 3.11(3) (As a minimum, all permits shall contain limitations which are adequate to assure the attainment and maintenance of the water quality standards of the receiving waters as assigned in the Massachusetts Surface Water Quality Standards, 314 CMR 4.00.).

170 314 C.M.R. § 3.07 (denial); 314 C.M.R. § 3.13 (suspension or revocation).

171 314 C.M.R. § 4.05(4)(a) states only that class SA waters are designated as an excellent habitat for fish, other aquatic life and wildlife, including for their reproduction, migration, growth and other critical functions, and for primary and secondary contact recreation and that DEP can ensure the compliance of a water intake structure with the requirements of 314 C.M.R. § 4.00. 314 C.M.R. § 4.05(d) states that [a]ll surface waters shall be free from radioactive substances in concentrations or combinations that would be harmful to human, animal or aquatic life or the most sensitive designated use.

172 Nor do Petitioners suggest how Entergy would make such a showing.

Furthermore, Petitioners do not provide any evidence demonstrating that Entergy has violated Massachusetts water quality standards. With regard to radioactive discharges, Petitioners merely cite 314 C.M.R. 4.05(d) which states that surface waters shall be free from radioactive substances in concentrations or combinations that would be harmful to . . . life but they provide no evidence that Pilgrim discharges quantities of radioactive substances that would be harmful to life.173 Similarly, Petitioners offer evidence from various (mostly untimely) affidavits that CWIS operations either kill fish, or have the potential to adversely affect various endangered species.174 But none of these affidavits claim that the alleged effects of the CWIS violate the state water quality standards for Cape Cod Bay set out in 314 C.M.R. § 4.05(4)(a) or provide sufficient evidence to demonstrate that they violate those standards.

For these reasons, these claims lack an adequate factual basis and are immaterial to findings the NRC must make to support license renewal.175

6. Petitioners Assertions that Entergy Failed to Submit Marine Biological Reports Required by the NPDES Permit are Meritless Petitioners claim that Entergy is violating the requirement in the 1994 NPDES permit to submit annual marine biological reports.176 However, Petitioners misread the requirements of the NPDES permit, particularly ¶ 8.c. Petitioners state that Entergy does not have an approved monitoring plan under ¶ 8.c, and has not had one for 10 years.177 But ¶ 8.c states that the terms set out in Attachment A of the NPDES permit constitute the monitoring plan approved by EPA:

The 1990 Environmental Monitoring Programs and plans, previously approved, become an 173 Petition at 8.

174 Id. at 9.

175 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

176 Id. at 9-10.

177 Petition at 10.

integral element of this permit (Attachment A).178 Paragraph 8.d states, No later than December 31st of each year, the permittee shall submit to EPA and the State for approval any revisions of the existing biological monitoring program (Par. c above) which may be warr[a]nted by the availability of new information.179 Only revisions to the existing approved monitoring plan set out in the permit need to be approved annually, but the plan itself, set out in Attachment A, has no expiration date. Therefore, contrary to the Petitioners assertions, Entergy does have an approved monitoring plan.180 Accordingly, this portion of Petitioners claim also lacks an adequate factual basis and is immaterial to the findings the NRC must make to support license renewal.181 C. Contrary to Petitioners Claims, the Massachusetts Office of Coastal Zone Management Recently Reaffirmed that Entergy Possesses a Valid and Current Coastal Zone Management Consistency Certification for the Pilgrim License Renewal Under the CZMAs federal consistency requirement, license renewal applicants must submit a certification to the NRC that the proposed activity is consistent with the enforceable policies of the states federally approved coastal zone management program.182 On July 11, 2006, MOCZM issued a CZMA consistency certification stating that the renewed operating license would be consistent with the [MOCZM] enforceable programs and policies.183 Petitioners assert, however, that this consistency certification was, at the time it was issued, 178 NPDES Permit at ¶ A.8.c.

179 Id. at ¶ A.8.d.

180 Perhaps Petitioners meant to argue that Entergy has failed to fulfill ¶ 8.e of the permit requiring Entergy to submit biological reports on semi-annual basis including an annual summary report.

Id. at ¶ A.8.e. However, Petitioners offer no evidence that Entergy has failed to submit such reports.

Moreover, in a recent filing before this Board, Entergy asserted that they have complied with this requirement. Entergys Supplemental Response to Pilgrim Watch and Jones River Watershed Associations Opposition to SECY-12-0062, at A-2 (May 23, 2012) (ADAMS Accession No.

ML12144A191).

181 10 C.F.R. § 2.309(f)(1)(iv)-(vi).

182 16 U.S.C. § 1456(c)(3)(A).

183 Pilgrim SEIS at E-19.

lacking all necessary information and data, and based on inaccurate data, and new information shows additional reasons why the certificate is invalid.184 Further, Petitioners contend that contrary to the consistency certification, license renewal will violate at least three state MOCZM enforceable policies including Water Quality Policy #1 as well as Habitat Polices #1 and #2.185 However, Petitioners claims are without merit because Petitioners do not provide sufficient evidence to show that the CZMA consistency certification is invalid. Moreover, MOCZM, the agency responsible for issuing the certification, has indicated on multiple occasions that its 2006 CZMA consistency certification remains valid. Accordingly, Petitioners claims with respect to this portion of the contention are inadmissible because they lack sufficient basis, fall outside the scope of this proceeding, and are immaterial.186 On February 29, 2012, MOCZM sent a letter to Entergy confirming that the 2006 consistency certification is still valid and stated that [u]ntil such time as [MOCZM] is notified that a change has occurred to the license reviewed for the July 11, 2006 concurrence, or until a new license application is submitted, the concurrence determination remains valid.187 Nevertheless, on April 4, 2012, Petitioners sent a letter to MOCZM questioning the validity of the 2006 CZMA consistency certification and raising essentially the same claims that Petitioners raise in the instant Petition.188 Specifically, Petitioners letter asserts that the 2006 consistency certification is invalid because the continued operation of [Pilgrim] as proposed by Entergy will be 184 Petition at 10.

185 Id. at 12-15.

186 10 C.F.R. § 2.309(f)(1)(ii)-(iv).

187 Letter from Robert L. Boeri, Project Review Coordinator, MOCZM, to Al Dodds, Entergy Nuclear Generation Company, Pilgrim Nuclear Power Station (February 29, 2012) (ADAMS Accession No. ML12081A015).

188 Compare Letter from Jones River Watershed Association/Pilgrim Watch, to Bruce K. Carlisle, Director, MOCZM at 2-3 (April 4, 2012) (ADAMS Accession No. ML12144A191) (Petitioners April 4th Letter), and Petition at 10-16.

inconsistent with enforceable state coastal zone management policies.189 The letter also lists ten points which purportedly demonstrate that continued operation of Pilgrim during the relicensing period will violate MOCZMs Water Quality Policy #1 and Habitat Policies #1-2.190 Petitioners letter further requests that MOCZM: 1) immediately suspend their July 11, 2006 CZMA consistency certification; and 2) notify Entergy that supplemental coordination is required for the Pilgrim relicensing application.191 On April 11, 2012, Entergy sent a letter to MOCZM asserting that the Petitioners challenges in the April 4th letter regarding the CZMA consistency certification should be rejected.192 On May 21, 2012, MOCZM submitted a response letter, rejecting Petitioners assertions and reaffirming the validity of the CZMA consistency certification.193 In its response, MOCZM stated that it does not believe that supplemental coordination for the consistency certification is warranted at this time because there have been no substantial changes in the proposed license activity, and the proposed license activity will not affect coastal uses or resources in a manner substantially different than originally described.194 Further, MOCZM stated that it did not find that there are significant new circumstances or information regarding the proposed federal license activity or its consistency with Water Quality Policy #1 and Habitat Policies #1-2 and their underlying state authorities as they were in effect for [MOCZMs] concurrence of the 2006 consistency certification.195 Accordingly, Petitioners claims with respect to the validity of the 189 Petitioners April 4th Letter at 1.

190 Id. at 2-3.

191 Id. at 1.

192 Letter from Elise N. Zoli, Goodwin Procter on behalf of Entergy, to Bruce K. Carlisle, Director, MOCZM (April 11, 2012) (ADAMS Accession No. ML12144A191).

193 MOCZM May 21st Letter.

194 Id. at 2-3.

195 Id. at 3.

CZMA consistency certification and alleged violation of the three MOCZM policies (Water Quality Policy #1 and Habitat Policies #1-2) are without merit.

Petitioners also suggest that Entergy is in violation of the MOCZM enforceable polices because Entergy is killing river herring in violation of the state ban, and Entergys 2006 CZM report, the CZMA consistency certification, and the § 401 certificate do not address new scientific data evidencing the threat to the existence of river herring.196 In support of their assertion, Petitioners cite to a March 2012 Atlantic States Marine Fisheries Commission report which concluded that the coast-wide population of river herring is depleted to near historic lows.197 Petitioners also state that the river herring was designated as a candidate species under ESA § 7 on November 2, 2011, and that a listing decision will be made by August 2, 2012.198 Petitioners raised similar issues regarding the river herring in their April 4th letter to MOCZM.199 However, MOCZM did not find that this information regarding the river herring indicated that the Pilgrim license renewal would be inconsistent with Water Quality Policy #1 and Habitat Policies #1-2.200 In addition, Petitioners appear to assert that the CZMA consistency certification is somehow invalid because the NRC has not adequately assessed the impacts on river herring under ESA. However, the NRCs statutory obligations under ESA and CZMA are separate.

Nevertheless, as this Board has noted, neither ESA nor its implementing regulations impose 196 Petition at 15, 19.

197 Id. at 15.

198 Id.

199 Petitioners April 4th Letter at 2 (Since 2006, Entergy has annually violated the states moratorium on the taking of river herring . . . and river herring is now a candidate species under the federal Endangered Species Act. River herring are the third most impinged species at [Pilgrim].) (internal citations omitted).

200 MOCZM May 21st Letter at 2-3.

legal obligations on the NRC with respect to candidate species such as the river herring.201 Moreover, to the extent Petitioners are suggesting that the NRC Staff should consider the river herring because a listing decision will be made by August 2, 2012, this Board disagreed with that proposition, finding that the NRC Staff need only assess the river herring under its current classification as a candidate species.202 Additionally, Petitioners note that CZM habitat policies rely on the Massachusetts Endangered Species regulations, which prohibit the taking of listed species.203 But, the Petitioners have not claimed that Pilgrims operations represent a take of river herring under State law.204 Likewise, Petitioners assert that the state has a ban on killing river herring.205 But, Petitioners have not alleged that the moratorium on harvesting river herring underscores any of the enforceable policies in the Massachusetts CZM plan. In any event, Petitioners quote the moratorium to read that it shall be unlawful for any person to harvest, possess or sell river herring.206 But, Petitioners have not alleged that Pilgrims operations constitute a harvest under state law. As a result, the Petitioners have not established a material dispute regarding the river herring under the CZMA.207 Moreover, MOCZMs determination that its consistency 201 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 33).

202 Id. at 33-34 (As the Commission succinctly noted, an application-specific NEPA review represents a snapshot in time, and while NEPA requires that we conduct our environmental review with the best information available today, it does not require that we wait until inchoate information matures into something that later might affect our review. The NRC Staff need only assess the river herring as it is currently classified; a speculative reclassification is simply not a matter that comes within the scope of this proceeding.) (citing S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI 07, 75 NRC __, __ (slip op. at 12) (Apr. 16, 2012))..

203 Petition at 14.

204 Id. at 14 (citing 321 CMR 10.00).

205 Petition at 15.

206 Petition at 15 & n.20 (citing 322 CMR 6.17(3)).

207 10 C.F.R. § 2.309(f)(1)(iv), (vi).

certification remains valid, despite Petitioners claims regarding the river herring, suggests that Petitioners assertions regarding Habitat Policies # 1 and 2 are indeed meritless.208 Petitioners also claim that Entergy has not properly assessed impacts to endangered species and cannot show compliance with the MOCZM policies on endangered species.209 Specifically, Petitioners assert that Entergys CZM report claiming there are no effects on endangered species is wholly inadequate.210 Petitioners also claim that the Entergys CZM report relies on a flawed U.S. Fish and Wildlife Service (FWS) assessment for terrestrial species such as the roseate tern.211 In addition, Petitioners assert that NMFS informed the NRC Staff that it cannot concur with the Entergy and NRC no effects finding.212 Petitioners assertions regarding endangered species are flawed and without merit.

With respect to the roseate tern, Petitioners do not provide sufficient facts to demonstrate that the CZMA certification is based on a flawed U.S. FWS assessment of roseate tern.213 In fact, as previously discussed by the Staff, Petitioners evidence regarding the impact of Pilgrim on the roseate tern does not contradict the Staff and FWSs previous findings on that species.214 If anything, it confirms the Staffs finding that past operation of Pilgrim has not likely hurt the roseate tern in the immediate area around the facility.215 208 MOCZM May 21st Letter at 2-3.

209 Petition at 16, 19-20.

210 Id. at 16.

211 Id.

212 Id.

213 See NRC Staffs Answer to Jones River Watershed Associate and Pilgrim Watchs Motion to Reopen the Record and Request for a Hearing with Regard to the Roseate Tern, at 23-26 (May 23, 2012)

(ADAMS Accession No. ML12144A214).

214 Id.

215 Id.

Regarding the no effect determination, NMFS did not agree with the NRCs no effect determination. However, after reviewing information from the NRC, Entergy, and other sources, NMFS determined that all effects to listed species from the proposed license renewal action will be insignificant or discountable.216 Thus, NMFS concurred with the NRC that the continued operation of Pilgrim under the terms of a renewed operating license is not likely to adversely affect any listed species under NMFS jurisdiction.217 Additionally, as this Board noted, the NRC has fulfilled its obligations under the ESA.218 Moreover, Petitioners made similar assertions regarding endangered species in their April 4th letter to MOCZM,219 but MOCZM did not find significant new circumstances or information regarding consistency with MOCZMs Water Quality Policy #1 and Habitat Policies #1-2.220 Therefore, Petitioners assertions with respect to endangered species are without merit.

In addition, Petitioners claim that MSA consultation has been improperly postponed to the EPA NPDES permitting process and that this critical finding relevant to the Massachusetts CZMA policy is missing.221 However, as this Board previously noted, given that the NRC and NMFS agree that the MSA consultation is complete, the requirements of the MSA have been 216 Letter from Daniel S. Morris, NMFS Acting Regional Administrator, to Andrew S.

Imboden,Chief, Environmental Review and Guidance Update Branch, Office of Nuclear Reactor Regulation, at 30 (May 17, 2012) (ADAMS Accession No. ML12145A072).

217 Id.

218 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 34).

219 JRWA April 4th Letter at 2 (Entergys CZM Report stated there would be no effects on endangered and threatened species. On March 26, 2012, the [NMFS] informed the NRC Staff it does not agree that there will be no effects on Cape Cod Bay endangered and threatened species from PNPS operations.); id. (Impacts to species listed under the Massachusetts Endangered Species act were ignored or inadequately assessed, including impacts to hawksbill turtle, humpback whale, roseate tern, and arctic tern.).

220 MOCZM May 21st Letter at 2-3.

221 Petition at 16.

fulfilled, and the NRC has no further obligation under MSA.222 Additionally, Petitioners included a similar claim regarding the postponement of MSA consultation in their April 4th letter to MOCZM.223 MOCZM, however, did not find significant new circumstances or information regarding consistency with Water Quality Policy #1 and Habitat Policies #1-2.224 Thus, Petitioners assertions regarding MSA consultation are without merit.

Petitioners also contend that Entergy cannot show compliance with the MOCZM policies because Entergy was in violation of state and federal water pollution control laws in 2006 even though Entergys 2006 CZM Certification Report purports to show that it is in compliance with applicable water quality laws. 225 However, as discussed above, Petitioners have not provided sufficient evidence to show that Entergy is in violation of any state or federal water quality law.226 Thus, Petitioners claims that the CZMA consistency certification is invalid because it purports to show compliance with those water quality laws is without merit.

Finally, this NRC license renewal proceeding is not the proper forum for Petitioners to pursue their CZMA claims because the NRC lacks statutory authority to resolve claims regarding the validity of the CZMA certification.227 As discussed above, MOCZM, the agency responsible for enforcing the CZMA in Massachusetts, has indicated as recently as May 21, 222 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 34).

223 Petitioners April 4th Letter at 3 (An Essential Fish Habitat [MSA] consultation with NMFS as required by Magnuson-Stevens Fishery Conservation and Management Act has not been completed and will not be done prior to June 8, 2012, the relicensing deadline. Instead, the NRC has postponed the EFH consultation indefinitely to the NPDES permit renewal process. Therefore the [MOCZMs] consistency review was done without the benefit of the results of this consultation.).

224 MOCZM May 21st Letter at 2-3.

225 Petition at 15.

226 See supra at III.B.

227 See 16 U.S.C. § 1456(c)(3)(A) (authorizing the appropriate State CZM office to make the CZMA consistency determination).

2012, that its 2006 CZMA consistency certification remains valid and is consistent with MOCZM enforceable policies.

Accordingly, this portion of the contention regarding Petitioners CZMA consistency certification claims is inadmissible because it lacks sufficient basis, falls outside the scope of this proceeding, and is immaterial.228 D. Petitioners Have Not Identified Any New and Significant Information Regarding Water Quality that Would Require the NRC Staff to Supplement the Pilgrim SEIS Last, Petitioners contend that under NEPA, Due to the environmental impacts of the failure to comply with state and federal environmental permitting and approval requirements, as set forth above, the Pilgrim SEIS must be supplemented.229 In Marsh v. Oregon Natural Resources Council,230 the Supreme Court held that when new information indicates that a federal action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.231 But the Court also stated that an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.232 Such a requirement would render agency decision-making intractable, always awaiting updated information only to find the new information 228 10 C.F.R. § 2.309(f)(1)(ii)-(iv).

229 Petition at 3. Petitioners also contend that while the NRC may rely on its generic environmental impact statement regulations for operating license renewal, these regulations truncate any meaningful analysis for purposes of assessing the environmental impacts for purposes of state permits, the Endangered Species Act, and CZM certification, and therefore the PNPS EIS is wholly inadequate.

Petition at 3. As a practical matter, NRC regulations require the Staff to consider the impacts on listed species for every license renewal application and require such applicants to list applicable certifications, including those issued under the CZMA and State water quality certifications. 10 C.F.R. §§ 51.53(c)(3)(ii)(E), 51.45(d). In any event, a challenge to the NRCs regulations is outside the scope of this proceeding absent a waiver petition, and none has been submitted here. 10 C.F.R. § 2.335.

230 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-71 (1989).

231 Id. at 374.

232 Id. at 372.

outdated by the time a decision is made.233 Under NRC precedent, to require supplementation of an EIS, new information must reveal a seriously different picture of the environmental impact of the proposed project.234 The Petition does not contain sufficient information to meet this high standard, and therefore the NEPA claims do not support an admissible contention.235 Rather, the Petitioners have only asserted that the NRC must supplement the Pilgrim SEIS.236 For example, they have alleged, Failure to comply with state laws and federal water laws, reliance on a 40-year old 316 (a) variance and (b) demonstration report, a 40+ year old § 401 certification, unpermitted pollutant discharges to Class SA waters in Cape Cod Bay and operation of PNPS without a CWIS permit, individually and collectively . . . raise a significant environmental issue. 237 But the Commission has clearly indicated that an admissible contention must rest on more than speculation and assertion.238 Likewise, the Board in this proceeding has found that bare assertions alone are not enough to show new and significant information.239 Petitioners have not expanded their NEPA claim beyond assertion and speculation to demonstrate how their concerns provide a seriously different picture of the environmental consequences of relicensing.

The Petitioners NEPA claim mostly builds on their earlier CWA and CZMA claims.240 As discussed above, the Petitioners CWA and CZMA claims do not contain a sufficient basis to 233 Id. at 373.

234 Hydro Resources, Inc., CLI-01-04, 53 NRC 31, 52 (2001).

235 10 C.F.R. § 2.309(f)(1)(v),(vi).

236 10 C.F.R. § 2.309(f)(1)(v), (vi).

237 Petition at 22.

238 Oyster Creek, CLI-00-6, 51 NRC at 208.

239 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 29).

240 Petition at 2-3, 22.

establish their merit under NRC procedures.241 Even if these claims did rest on a sufficient basis, they do not provide, or even allege, adequate facts to demonstrate a seriously different picture of the environmental impacts of renewing the Pilgrim operating license.242 Clearly, the recent letters from MOCZM do not support such a finding.

A large portion of the Petitioners complaints contend that Entergy lacks necessary certifications or permits for Pilgrim or that existing certifications or permits are invalid in light of errors on the part of other Federal agencies or Massachusetts permitting agencies.243 But the appropriate inquiry under Marsh relates to the impacts of the federal action on the environment; new and significant information must affect the quality of the human environment in a significant manner or to a significant extent not already considered.244 While the NRC recognizes the importance of other agencies permitting processes, valid licenses or permits only establish the legal framework under which a plant operates. The lack of a valid permit or license alone does not establish any actual impact on the environment and therefore cannot constitute new and significant information that would require the agency to supplement an EIS under Marsh.

Petitioners also allege that Pilgrims current operations violate many existing state and federal permits and laws. Petitioners contend that Pilgrim discharges tolytriazole, in violation of its NPDES permit, and radioactive effluent, contrary to state law.245 In addition, Petitioners also allege that Entergy has not updated its biological monitoring plans for Pilgrim as required by the NPDES permit.246 Moreover, Petitioners also assert that Pilgrim operations have harmed 241 See supra Sections III B & C.

242 Hydro Resources, Inc., CLI-01-04, 53 NRC at 52.

243 Petition at 6-8, 10-12.

244 Marsh, 490 U.S. at 374.

245 Petition at 8.

246 Petition at 9-10.

aquatic and terrestrial species, some of which are threatened or endangered, in violation of state and federal law.247 But the Petitioners have not shown, let alone claimed, that these discharges are large enough to have a significant impact on the environment, that Pilgrims impacts on aquatic and terrestrial species will destabilize any species population near the facility, or that Entergys alleged failure to update its marine biological monitoring plan has substantially impacted the human environment.248 Consequently, none of the Petitioners claims suffice to demonstrate new and significant information that would require the Staff to supplement the Pilgrim SEIS. As a result, the NEPA claim is not supported by an adequate factual basis and does not support an admissible contention.249 IV. The Petition Does Not Meet the Reopening Standards The evidentiary record in this proceeding has been closed since 2008 and only opened for a limited purpose since 2010.250 Therefore, in addition to meeting the normal contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) and the timeliness requirements, this motion to reopen the record to admit a new contention must meet all of the requirements in 10 C.F.R. § 2.326.251 The motion to reopen must be timely, must address a significant safety or environmental issue, and it must demonstrate that a materially different result would have been likely had the newly proffered evidence been considered in the first instance.252 One or more affidavits showing that the motion to reopen meets the above criteria must accompany the motion under 10 C.F.R. § 2.326(b). Each affidavit must contain statements from competent 247 Petition at 9, 15-16.

248 See Marsh, 490 U.S. at 374.

249 10 C.F.R. § 2.309(f)(1)(v), (vi).

250 June 4, 2008, Order; Pilgrim, CLI-10-11, 71 NRC at 307-08.

251 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 668-69 (2008).

252 10 C.F.R. § 2.326(a)(1)-(3); Oyster Creek, CLI-08-28, 68 NRC at 668.

individuals with knowledge of the facts alleged or experts in disciplines appropriate to the issues raised.253 Moreover, the moving papers must be strong enough, in the light of any opposing filings, to avoid summary disposition.254 The Commission has previously held that

[t]he burden of satisfying the reopening requirements is a heavy one, and proponents of a reopening motion bear the burden of meeting all of [these] requirements.255 Thus, [b]are assertions and speculation . . . do not supply the requisite support[, and a] mere showing of a possible violation is not enough.256 The Petition does not demonstrate that it meets any of the requirements in 10 C.F.R. § 2.326. Therefore, the Board should deny the Petition under that section.

A. Timeliness Under 10 C.F.R. § 2.326(a)(1), a motion to reopen a closed record must be timely. As discussed above, the issues raised in the Petition are not timely.257 Nonetheless, the regulation provides an exception to this rule when the motion to reopen raises an exceptionally grave issue.258 The Commission anticipates that this exception will be granted rarely and only in truly extraordinary circumstances.259 Moreover, the Commission has found that an exceptionally grave issue is one that calls into question the safety of the licensed activity.260 253 10 C.F.R. § 2.326(b). See also Oyster Creek, CLl-09-7, 69 NRC at 291-93.

254 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).

255 Oyster Creek, CLI-09-7, 69 NRC at 287 (citations omitted, alteration in original).

256 Id. (citations omitted, first alteration in original).

257 See supra at Section II.

258 10 C.F.R. § 2.326(a)(1).

259 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986).

260 Hydro Resources, Inc., CLI-00-12, 52 NRC 1, 5 (2000).

To reopen a closed record, there must be a sufficiently grave threat to public safety.261 The Board has previously found this definition binding.262 Petitioners Water Quality Contention alleges no concerns directly relevant to public safety. Consequently, it does not raise an exceptionally grave issue under Commission precedent.

Moreover, the Commission has held that conclusory language is insufficient to demonstrate an exceptionally grave issue.263 Without explanation, Petitioners assert that the evidence supporting their contention raises an exceptionally grave issue.264 Therefore, the Petition also does not provide sufficient supporting evidence to establish an exceptionally grave issue.

B. Significance In addition, a motion to reopen must also address a significant safety or environmental issue.265 [W]hen a motion to reopen is untimely, the § 2.326(a)(1) exceptionally grave test supplants the § 2.326(a)(2) significant safety or environmental issue test.266 As discussed above, the claims in the Petition are untimely and do not raise an exceptionally grave issue.267 Therefore, these portions of the Petition do not meet the requirements of 10 C.F.R. § 2.326(a)(2).

Moreover, even if the Petitioners had raised their issues in a timely fashion, they still do not allege a significant issue under section 3.236(a)(2). For environmental issues, the 261 51 Fed. Reg. at 19,536 (citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 365 n.10 (1973)).

262 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 29).

263 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 NRC __, __ (Sep. 27, 2011) (slip op. at 14 n.44).

264 Petition at 22.

265 10 C.F.R. § 2.326(a)(2).

266 Vogtle, CLI-11-08, 74 NRC at __ (slip op. at 14 n.44).

267 See supra at Sections II, IV.A.

Commission has found that the standard for showing significance to reopen a closed record is the same as the standard for supplementing an EIS.268 In both instances, the proffered information must paint a seriously different picture of the environmental landscape.269 Because the Petitioners have not shown that any of the information supporting their new contention presents a seriously different view of the environmental impacts of renewing the Pilgrim license, none of the claims in the Petition meet the normal significance test under 10 C.F.R. § 2.326(a)(2).270 On the contrary, the recent MOCZM and NMFS letters indicate that new information regarding Pilgrim does not provide a seriously different picture of the environmental impact of renewing the Pilgrim operating license.

C. Materially Different Result Under 10 C.F.R. § 2.326(a)(3), a motion to reopen a closed record must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.271 One board has explained that under this standard [t]he movant must show that it is likely that the result would have been materially different, i.e., that it is more probable than not that [the movant] would have prevailed on the merits of the proposed new contention.272 The Commission has found an argument that simply states that new information contradicts some of the Boards factual findings, and then states that this prong of the reopening test is met . . . falls far short of meeting § 2.326(a)(3)s requirements.273 While the quality of evidence presented for reopening must be at least of a level sufficient to 268 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006).

269 Id. (emphasis in original).

270 See supra at Section III.D.

271 10 C.F.R. § 2.326(a)(3) (emphasis added).

272 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529, 549 (2010).

273 Oyster Creek, CLI-09-07, 69 NRC at 290-91 (internal quotations omitted).

withstand a motion for summary disposition, [the Commission has also] made clear that the reopening standard requires more.274 Under that standard, The evidence must be sufficiently compelling to suggest a likelihood of materially affecting the ultimate results in the proceeding.275 Petitioners allege that they meet this prong of the reopening standard because, If Petitioners information had been considered initially, there would be a different CZM certificate and § 401 certificate, compliance with state and federal water pollution control laws would be required, and the PNPS EIS would have given a vastly different view of the environmental impact of relicensing.276 As discussed, above, the Applicant has provided valid CZMA and CWA certificates and permits, Petitioners have not identified any violations of water quality laws, and the EIS adequately describes the impacts of renewing the operating license for Pilgrim.277 Consequently, the Petitioners have not shown that their claims could lead to any materially different result.

Moreover, Petitioners statement only claims that if Petitioners prevailed, the proceedings result would have been different. It does nothing to establish the likelihood of that result. Consequently, it rests on simple allegations that a materially different result would be likely in this proceeding should the Board grant their motion to reopen. But, the Commission has already held that this conclusory approach to addressing the reopening standards falls far short of meeting that sections requirements.278 In addition, this Board has found that mere assertions of a materially different result, unsupported by additional reasoning or discussion, do 274 Pilgrim, CLI-12-10, 75 NRC __ (slip op. at 25).

275 Id.

276 Petition at 23.

277 See supra at Section III.

278 Oyster Creek, CLI-09-7, 69 NRC at 290-91 (internal quotations omitted).

not meet this prong of the reopening standard.279 Rather, this approach deprives [the Board of]

the opportunity to evaluate either the foundation for their assertions or the likelihood of any such different result. 280 As a result, because the Petition only asserts that a different result would be likely if the Board granted the motion to reopen, the Petitioners have also not met the third prong of the reopening criteria.281 D. Affidavit Finally, under 10 C.F.R. § 2.326(b), a petitioner seeking to reopen a closed record must support the request with an affidavit from an expert.282 In that affidavit, Each of the criteria [of 10 C.F.R. § 2.326(a)] must be separately addressed, with a specific explanation of why it has been met.283 In an attempt to meet this high standard, the Petitioners provide a table referencing all of the affidavits they have previously filed in this proceeding to support reopening the record.284 But this approach is inadequate for two reasons. First, these affidavits related to previously filed motions to reopen, therefore, they do nothing to establish the significance, timeliness, and materiality of the Water Quality Contention. Additionally, the Board has rejected a similar attempt by the Petitioners to use such a table to meet the requirements of § 2.326(b).285 Practically, Petitioners reliance on a table referencing where these important criteria were addressed underscores the fact that these affidavits do not separately and specifically address the reopening criteria at all, let alone with respect to the Water Quality Contention. As a result, they do not meet the requirements of 10 C.F.R. § 2.326(b).

279 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 24-25, 37).

280 Id.

281 Petition at 23.

282 10 C.F.R. § 2.326(b).

283 Id.

284 Petition at 23.

285 Pilgrim, LBP-12-10, 75 NRC __, __ (slip op. at 24-25).

CONCLUSION The Board should deny Petitioners request to reopen the record and submit a new contention on lack of water quality certificates and violations of water quality standards. As discussed above, the claims are untimely, inadmissible, and do not meet the high Commission standards for reopening the record.

/Signed (electronically) by/ Executed in Accord with 10 CFR 2.304(d)

Maxwell C. Smith Joseph A. Lindell Counsel for NRC Staff Counsel for NRC Staff Executed in Accord with 10 CFR 2.304(d)

Anita Ghosh Counsel for NRC Staff

Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Generating Station)

License Renewal (Docket No. 50-293-LR)

NRC Staffs Answer to Jones River Watershed Association and Pilgrim Watchs Requests to Reopen the Record and File a New Contention on Water Quality NRC Staff Exhibit A Letter from Andrew Gottlieb, Commonwealth of Massachusetts DEP to Edward McSweeney, Wastewater Management Branch, U.S. EPA Region I (Jul. 1994)

Exh D to Entergy's Supp. Response (May 23, 2012)

Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Generating Station)

License Renewal (Docket No. 50-293-LR)

NRC Staffs Answer to Jones River Watershed Association and Pilgrim Watchs Requests to Reopen the Record and File a New Contention on Water Quality NRC Staff Exhibit B Letter from Thomas C. McMahon, Director of the Division of Water Pollution Control, Commonwealth of Massachusetts Water Resources Division to Claude Pursel, Assistant Vice-President, Boston Edison Company (Jul. 1970)

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July 3~. 1970 Mr.. ClllUde Pu.:!:-sel Ass~stant V~ee-Pres~dent - Nuclear RE: Pllgrim Nuclear Stat.::!.on Boston Ed,j"sc:m. Company P::!.,yl:lout.b.. Massa.chusetts 800 Boylston. Street Boston. Y.assa.ch'l.::.setts 02199

Dear Mr. Pursel:

T1:ti.s is to cc::"t:L...cy t.bo.t the Div:is:i.on has rece:i.ved reasona"ole assurance that opera.tion of' the proposed P::Ugr-I...m Station. w:i..lJ. not v:iolate applica.ble "IIo-ater qua.1.ity I$ta.nc!a..-d.s. These assu.rances have been. p:t"Ov:ided in a. pre1i l!ljnary en..:...'"ineer:i.ng report ~bm:i.t"'..ed by the Boston Ed.ison Company. a.nd dur-f..ng subseC{Uen.t meetingo ....':!.tb. the co:npa.JJ.y and wi.th the Admin:i.strative-Teclmica1 Adnsory Committee 'pertain:i.ng to ecological and radiolog;:!.cal studies before :me. ai'te::

operat.ion.

The D:i*.r.!.s:ion has :issued an :L."1ter::iJn peJ:'::li.t for a. new wa.st.e discharge outlet for ti'..j.s :!."acllity. Thi.s permit i.s valid t:or a. pencd 0-:: tllrtle years !'rom date of: st;.a:rt.-up. ShouJ.d t..">J.e be1'o:-e ::me <li't.er study :indicll."t;e a need for fu...-the!"

con~""015 a..."'1d/or t..-eatment of: the plant efi'l.uents such con-:;rols w:tJ.l. be provided by Boston EC~son ..

The f:o!"eg;o:i..n,s: ce~ica.tion is 1;0 COClPlY with Sect:ion 21 (:6) (1) of: the Federal. ',later Qu.a.l1 ty !::lprove::len.t Act of 1970 (Public Law 91-224).

Very truly yours,

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ThOr:laS c.

tJt,~

~c.;'\\'.nhon Director

Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Generating Station)

License Renewal (Docket No. 50-293-LR)

NRC Staffs Answer to Jones River Watershed Association and Pilgrim Watchs Requests to Reopen the Record and File a New Contention on Water Quality NRC Staff Exhibit C Letter from Thomas C. McMahon, Director of the Division of Water Pollution Control, Commonwealth of Massachusetts Water Resources Division to Claude Pursel, Assistant Vice-President, Boston Edison Company (Apr. 1971)

Exh B to Entergy's Supp. Response (May 23, 2012)

Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Generating Station)

License Renewal (Docket No. 50-293-LR)

NRC Staffs Answer to Jones River Watershed Association and Pilgrim Watchs Requests to Reopen the Record and File a New Contention on Water Quality NRC Staff Exhibit D Letter from Edward McSweeney, Wastewater Management Branch, U.S. EPA Region I to E.T. Boulette, Senior Vice President, Boston Edison, Pilgrim Nuclear Power Station (Jun. 1995)

Exh E to Entergy's Supp. Response (May 23, 2012)

Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Generating Station)

License Renewal (Docket No. 50-293-LR)

NRC Staffs Answer to Jones River Watershed Association and Pilgrim Watchs Requests to Reopen the Record and File a New Contention on Water Quality NRC Staff Exhibit E Agreement between EPA and Massachusetts Department of Water Pollution Control (1973)

,/0 ems 1?"JeA 1 77-7 AGREEMENT Thia,oLgreement is made this /kIli day of March, 1973 between the Division of Water Pollution Control of the Commonwealth of Massachusetts (the "Commonwealth") and the.New England Regional Office of the United States Environmental Protection Agency ("EPA"). Until March 18, 1973 the Commonwealth has been granted interim authority to issue permits by EPA pursuant to §402(a)(5) of the Federal Water Pollution Control Act of 1972 (the "Act"). As of March 19, 1973 such interim authority terminates by operation of law and EPA will have authority to issue permits pursuant to

§402 (a)(1) of the Act. The Commonwealth intends to apply for final approval of,a permit issuing program pursuant to 9402(b) of the Act as soon as pos-sible. In order to minimize confusion concerning the operation of the permit program authorized by the Act (the "NPDES Program"), to further Commonwealth and EPA co-ordination of water pollution control efforts, and to attack water pollution problems in a systematic and efficient way, the Commonwealth and EPA hereby-agree as follows with respect to operation of the NPDES Program between March 19, 1973 and the date of final approval o the Commonwealth's permit program by EPA, if such approval is granted.

1. Priorities (a) The Commonwealth and the EPA shall forthwith form a Technical Committee from their respective staffs. It will be the responsibility of the.Technical Committee to:

1) recommend the priorities of joint permit issuance, and select the permits to be issued, consistent with

r availability and applicability of necessary effl`uent' limitations, water quality standards and Commonwealth and EPA policies in this regard; determine the form , terms and conditions of the draft joint permit, public notice and fact sheet (if any):

determine the final form, terms and conditions of the joint permit, taking into consideration any applicable information and testimony received following the expiration of the period during which public comment may be received on a proposed joint permit.

(b) The Commonwealth and EPA agree--to proceed forthwith with the draft ing and issuance of joint permits to the applicants listed in Exhibits A (industrial cooling water), B (power plants), C (remaining oil terminals) and D (paper mills) attached hereto; drafting of these permits will be the first responsibility of the Technical Committee.

2. Procedure for Issuance of Permits Permits shall be processed in the following manner:

(a) After selection of a permit for issuance and drafting of the.

proposed permit by the Technical Committee , the proposed joint permit

.shall be sent by EPA to the Commonwealth with a request for certifica-tion under 9401 of the Act. The Commonwealth shall provide, deny, or waive such certification by the later of (1) 20 days after the date of any public hearing held with respect to such permits; or (ii) in the event a hearing is not held with respect to such permit , 20 days after

the close of the 30 day notice period of proposed issuance of the per-mit. Permits which have already been sent to the Commonwealth by

.EPA with a request for certification shall be treated as provided in this paragraph. Failure by the Commonwealth to take action with respect to certification shall be deemed a waiver.

(b) Permits will be selected for joint notice of proposed issuance or joint notice of public hearing by agreement of the Technical Committee and all parties agree to use their best-efforts to reach agreement whenever possible. In the event the Technical Committee cannot agree as to permit selection or permit terms and conditions , either the Commonwealth may proceed with such action as it deems appropriate under Massachusetts law, or EPA may proceed with issuance or denial of the permit under the Act. In the latter event,*

EPA shall send the proposed draft permit to the Commonwealth with a request for certification, and the Commonwealth shall provide, deny or waive such certification within 30 days of the request.

(c) After joint selection and drafting of permits for notice of proposed issuance , such notice shall be prepared by the-Technical Committee and circulated by EPA as a joint notice of proposed issuance or public hearing by EPA and the Commonwealth. The form of such notice, and the joint conduct of any public hearing held pursuant 'thereto, shall be agreed on by the Technical Committee but shall conform to applicable federal and state laws and regulations. It is the intention of the parties that a .joint Commonwealth-EPA permit will be issued.

I (d) The form for the joint permits to be issued by EPA and the Commonwealth shall be basically that set forth as Exhibit E hereto, with such modifications thereto as the Technical Committee may from time to time agree upon . Permits issued in such form shall constitute NPDES permits issued under the Act, and shall also constitute permits issued under Massachusetts law. By participating in the issuance of such joint permits, however, EPA does not acknowledge that the Common-wealth currently has the legal authority necessary for final approval of its permit program under 9402 of the Act. Following joint public notice and hearing, a joint permit shall be issued or denied provided.

there is mutual agreement of the parties. Such issuance or denial shall conform in every respect with applicable requirements of Federal and Commonwealth law. In the event the parties cannot agree, the Commonwealth and EPA may each take such action as is authorized under applicable law, including the separate issuance or denial of permits; provided, however, that the Commonwealth shall in any event provide, deny, or waive certification within the time period set.forth in paragraphs 2(a) and 2(b) hereof.

3. General Authority Not Affected .

Nothing in this Agreement shall affect the powers, rights, or duties of either the Commonwealth or EPA under applicable laws and regulations , and both parties shall retain full discretion to issue or deny permits , enforce outstanding orders, and take other action as they may find necessary or desirable to carry out their regulatory

or other responsibilities.. The Commonwealth intends to apply for final approval of its permit*program at the earliest possible date, and EPA .agrees to work with the Commonwealth to assist in the develop-ment of an approvable program, but this Agreement itself shall not in any way constitute final approval of any part of such a program under the Act.

4. Termination This Agreement shall terminate upon (i) final approval by the Administrator of EPA of the Commonwealth's permit program pursuant to 9402(b) of the Act; or (ii) ten days written notice by either party to the other of termination. Termination shall not affect, i however, the requirements with respect to state certification under

§401 of the Act set forth herein.

Thomas C . McMahon,.Director Jchn A. S. McGlennonj Division of Water Pollution Control Regional Administrator Commonwealth of Massachusetts. Environmental Protection Agency

Applicant's Na^,_ EPA No. Location (City).

Adams Plastics 11339 Holyoke American Standard 10044 Monson Clinton Silk Mill 11558 Holyoke Gem Industries 11336 Gardner Greenfield Tap & Die 10534 Greenfield J. Rubin Sons, Inc. 11553 Chicopee John S. Lane & Son #1 11383 Westfield S. Bent & Brothers 11389 Gardner Springfield Moulders, Inc. 11294 Monson Vistron Corp.-Pro Brush 10545 Florence Hyde Manufacturing Company 10729 Southbridge.

Boyden Plastics 11388 Taunton, Brockton Taunton Gas Co. 10727 Taunton Cincinnati Milacron 10195 Worcester Fall River Tool & Dye Co. 11557 Fall River Federal-Mogul Corp. 10099 Taunton Hammond Plastics 11384 Worcester Mass. Electric Co. 10938 Worcester Nabisco, Inc. 10750 Mansfield Prest-Wheel, Duralite-Div. 11467 South Grafton Stedfast Rubber Co. 11404 North Easton Synthetic Yarns - DW Rich 10600 East Taunton T. J. Holmes Co., Inc. 10568 Norton United States Steel 10657 Worcester i

Applicant's Nai: EPA No. Location (City)

Abrasive Products 11145 Braintree American Can Company 10022 Needham .

Archer Rubber 11581 Milford Avco Everett Research 10042 Everett Avco Systems Div. 10018 Wilmington Barnstead Company 10028 Boston Barry Div.-Barry Wright 11266 Watertown Berkshire Hathaway 10047 New Bedford Bird & Son Paper Mill 10076 East Walpole Canal Marine 11456 Sandwich Carling Brewing Co. 10198 Natick Chase and Sons, Inc. 10217 Randolph Columbia Electron: Cable 11552 New Bedford Cornell-Dubilier Electric 10251 New Bedford Dennison Manufacturing 11425. Framingham Dewey & Almy Chem.-W.R. 10126 Cambridge Factory Mutual Engr: Corp. 10082 Norwood General Electric - Ashland 10214 Ashland General Electric - USAF Plant 10259 Everett General Tire and Rubber 10384 Reading Great A&P Tea Co. 10679 Boston Hume Pipe Corp. 10827 Swampscott Issoksons Cleaners, Inc. 10119 Tisbury J. H. Winn-McCord Corp. 10524 Winchester

Applicant's Name EPA No. Location (City)

L. B. Evans ' So,, Company 11451 Wakefield Lepages - Gloucester 11580 Gloucester M.B.T.A. - Charlestown 11446 Charlestown Mass . Institute of Technology 10585 Cambridge Monsanto Co. 10383 Everett Nantucket Gas & Electric 10751 Nantucket Natick Lab USA 10903 Natick Naval Hospital Boston 11034 Chelsea New Bedford Gas & Edison 10737 New Bedford Polaroid Corp. 11141 Waltham Proctor-Silex, Inc. 11546 Salem Quincy Market Cold Storage 10510 Watertown R.E.C.-Manufacturing Corp. 11515 Holliston Raytheon Co. 10685 Norwood Raytheon Co. 10615 Waltham Raytheon Co., Spencer Lab 10696 Burlington Salt Water Trust Cordage 10725 Plymouth Samuel Cabot 10001 Chelsea Shetland Properties 11293 Salem Spir-It, Inc. 11123 Malden St. Regis Paper 11283 Newton SW Industries , Inc. 10546 Newton Teledyne-Rodney Metals 11689 New Bedford USM Corp . - Machinery Div. 11026 Beverly

Applicant's Na' EPA No. Location (City)

Western Electric NE Service 10536 Watertown Westinghouse Electric Co. 10522 Boston Ace Plastics 11598 Haverhill Aero Plastics 10048 Leominster Amoco Chemicals 10026 Shrewsbury Andover Industrial Center 11391 Andover Avco Systems Div. 10329 Lowell Colonial Press, Inc. - Adams 11341 Clinton Colonial Press, Inc. - Green 11342 Clinton Converse Rubber Co. 19881 Andover Davis & Furber Machine Co. 11235 North Andover Doreen Brush Company 11607 Leominster Educator Biscuit Co. 11534 Lowell General Electric - Lowell 10250 Lowell General Latex & Chemical 10574 Billerica General Tire & Rubber Co. 10641 Lawrence General Tire & Rubber Co. 10185 Lawrence Great American Chemical 10662 Fitchburg Injectronics 11679 Clinton Island Plastics - Servco 11605 Lawrence Leonard I. Shankman Mgt. 10138 Lawrence Murray Printing Company 11133 Forge Village New England Milk Produce 11267 Andover North American Chemical 10519 Lawrence

Applicant's Na,' EPA No. Location (City)

Pandel , Inc. 10841 Lowell Standard Pyroxoloid Corp. 10147 Leominster Star Mfg. ' Co. 11545 Leominster Steam Associates 10050 Lowell Tucker Manufacturing Co. 11114 Leominster Van Brode Mfg. 11597 Clinton Vernon Plastics Corp. 11516 Haverhill Vulcan Corp. 10535 Amesbury Wamesit Power Company 11517 Lowell Western Electric - New England 11177 Southborough General Photo Products 11658 Williamstown W. R. Grace & Co. 11618 Adams I

I-

EXHIBIT B POWER PLANTS Applicant's Name EPA Location (City)

Holyoke'Gas & Electric 10709 Holyoke Holyoke Water Power - Mt. T 10838 Holyoke Holyoke Water - Riverside .10934 Holyoke Western Mass. Electric 10673 West Springfield Fall River Electric Light 10888 Fall River Montaup Electric - Somerset 10700 Somerset New England Power Co.- Uxbridge 10708 Uxbridge New England Power - Brayton 10120 Somerset Taunton Light - Cleary Sta. 11180 Taunton Taunton Light - W. Water Sta. 11182 Taunton .

Boston Edison - Edgar Sta. 10981 North Weymouth Boston Edison - L St. 10989 South Boston Boston Edison - Mystic Sta. 10996 Everett Boston Naval Shipyard 10508 Boston Braintree Electric - Allen St. 11184 Braintree Braintree Electric - Potte 11161 Braintree Cambridge Electric - Black 10735 Cambridge Cambridge Electric - Kenda 10734 Cambridge Canal Electric - Canal Plt. 10731 Sandwich M.B.T.A. - Lincoln Power Sta. 11445 Boston M.B.T.A. - South Boston 11444 South Boston New England Power - Salem 10703 Salem Yankee Atomic Electric - Rowe 10590 Rowe Boston Edison - Pilgrim N. 10131 Plymouth Fitchburg Gas & Electric 10611 Fitchburg Mass. Electric 10647 Lynn I

1.1

EUIIBIT C South Weymouth NAS Otis AFB Westover AFB Hanscom Field (USAr^L,assnort) Bedford Logan Airport (iassport) East Boston Penn Central Trans. Co. - Beacon Par'*. Boston Boston i`aine Corp. - North Station Charle stoi,.n Boston 2c ^^.ine Coro. Greenfield Union Petroleum Corp. evere

.American Oil Co.Alortheast Pet. Corp. Chelsea (111 Fzstern Ave.)

Nhite Fuel Corp. South Boston C,u ncv- Oil Corp. Qaincy Mobil Oil Corn. ^ui.ncy Cities Service Oil Co. Braintree Shell Oil Co. Fall 2- dver Glenn Petroleum Corp. New Bedford Campbell Oi. Co. - i-.obil Tisbury

.R.M. Packer Co . - Texaco Tisbury Exxon Corp . (H able Oil Co. ) Everett Eamon Corp . (FIL-able Oil Co. Dracut Jet Lines Inc. Ludlow Mobil Oil.' Corn. Springfield Mobil Oil Corp. Marlboro West Boylston

K= IT D h

Paper Mills I

1o445 West Dudley Paper - R.I. Cardboard West Dudley 1o6g1 Stevens Paper Mills, Lower I,ii.ll Westfield 10146 Seaman Paper Co.

Baldi°rinville 10483 . Stevens Paper 1-1ills, Upper Mill Westfield 10870 Texon, Inc.

South Hadley 10852 Parsons Paper Co ., INF Corp.

Holyoke 10884 Texon , Inc., Russell Plant Russell 10857 Merrimac Parser Co.

Lawrence 10205 Broom Co., Eagle A Div.

Holyoke _

1062$ Hollings;sorth & Vose _Co.

liest Groton 1o44o Fitchburg Paper Co., Litton Industries Fitchburg w

10157 Sonoco Products Co., Plant Abu Holyoke 10012 Hazen Paper Co.

Holyoke 10828 IM Corp.

Concord Roma.r 'T'issue Hardwick Marcal Paper South Hadley Continental Can Haverhill

10215 Diamond National Corp.

Palmer 10885 Texon, Inc.

HolyoI.e 10798 Lawrence Packaging; Corp.

Lawrence 10297 Crane & Co.

Dalton 10405' Rising Paper Co.

Housatonic Pepperell Paper Pepperell 10755 Mead Coro . - Hurlbut Paper Laurel South Lee 10902 Mead Corp. - Hurlbut Paper T.illow So-ath Lee Pleasant Valley Paper Lai,-rence Schweitzer Division _'.L-merly -Clark Lee Valley Paper Holyo_:e Esleeck [Ifg.

I.bnta-.e Strathnore Paper Ivbntague

.Deerfield Glassine Ibnroe r

i Westfield River Paper Lee Westfield River Paper Russell 1--lead Co,-p.

Iawrrenc e 4

^.r^°^ *^:^4mr,.

1 u

• Kill Falls Paper r

Ervir,6 Erving Paper E wing

.T-Teyerhauser Fitchbarg Groton Leatherboard West Groton Baldwinville Products Baldwinville

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

)

ENTERGY NUCLEAR GENERATION )

COMPANY AND ENTERGY NUCLEAR ) Docket No. 50-293-LR OPERATIONS, INC. )

)

(Pilgrim Nuclear Generating Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO JONES RIVER WATERSHED ASSOCIATION AND PILGRIM WATCHS REQUESTS TO REOPEN THE RECORD AND FILE A NEW CONTENTION ON WATER QUALITY have been served upon the following by the Electronic Information Exchange this 7th day of June, 2012:

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

E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis Duane Morris LLP Terence A. Burke, Esq.

505 9th St., NW, Suite 1000 Entergy Nuclear Washington, DC 20004 1340 Echelon Parkway E-mail: sshollis@duanemorris.com Mail Stop: M-ECH-62 Jackson, MS 39213 E-mail: tburke@entergy.com

Mary Lampert David R. Lewis, Esq.

148 Washington Street Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Town Manager Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.

668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald Matthew Brock Town Manager Assistant Attorney General 878 Tremont Street Commonwealth of Massachusetts Duxbury, MA 02332 One Ashburton Place E-mail: macdonald@town.duxbury.ma.us Boston, MA 02108 Martha.Coakley@state.ma.us Margaret Sheehan Matthew.Brock@state.ma.us 61 Grozier Road Cambridge, MA 02138 Anne Bingham E-mail : meg@ecolaw.biz 78A Cedar St.

Sharon, MA 02067 Email:annebinghamlaw@comcast.net

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff Dated at Rockville, Maryland this 7th Day of June 2012