ML111390569
| ML111390569 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 05/19/2011 |
| From: | Brock M State of MA, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML111390564 | List: |
| References | |
| RAS 20340, 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML111390569 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )
(Pilgrim Nuclear Power Station) ) May 19, 2011 COMMONWEALTH OF MASSACHUSETTS REPLY TO NRC STAFF AND ENTERGY OPPOSITIONS TO COMMONWEALTH MOTION TO HOLD LICENSING DECISION IN ABEYANCE PENDING COMMISSION DECISION WHETHER TO SUSPEND THE PILGRIM PROCEEDING TO REVIEW THE LESSONS OF THE FUKUSHIMA ACCIDENT The Commonwealth of Massachusetts (Commonwealth) hereby submits this Reply to the NRC Staffs opposition1 and Entergys opposition2 to the Commonwealths Motion to Hold the Pilgrim licensing decision in abeyance pending consideration by the NRC of new and significant information related to the lessons of the Fukushima nuclear accident, including the risks of spent fuel pool accidents and applicable NRC regulations and policies (Motion).3 1
NRC Staffs Answer in Opposition to Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 12, 2011)
(Adams No. ML111320669) (Staff Opposition).
2 Entergys Answer Opposing Commonwealths Motion to Hold Licensing proceeding in Abeyance (May 12, 2011)(Adams No. ML111320594) (Entergy Answer).
3 Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident (May 2, 2011) (Adams No. ML111220326)
(Commonwealth Response).
- 1. The Commonwealth Correctly Requested the Pilgrim ASLB, as the Initial Decision Maker on Relicensing, to Hold the Pilgrim Licensing Decision in Abeyance Pending Further Guidance from the Commission on the Lessons of Fukushima.
The Staff claims that the Commonwealths Motion should be denied because the Commonwealth asks the Pilgrim Atomic Safety and Licensing Board (Pilgrim ASLB) to hold its licensing decision in abeyance pending the Nuclear Regulatory Commissions review of the lessons of Fukushima because, according to the Staff, the Director of Nuclear Reactor Regulation (NRR), not the Pilgrim ASLB, issues the license renewal.
Staff Opposition at 5. However, the Pilgrim ASLB, not the NRR, is authorized to make the initial decision whether to relicense the Pilgrim plant for an additional twenty years.
10 C.F.R. §§ 2.319(o); 2.340(a); cf. § 2.1210(a). The Pilgrim ASLB also is charged with resolving all contested matters arising in the relicensing process. Id. Absent further order, the Pilgrim ASLB decision on relicensing will be immediately effective. 10 C.F.R.
§ 2.340(f); cf. § 2.1210(d). The Staff thereby confuses the responsibilities of the NRR and its activities not within the scope of the initial decision of the presiding officer,
§2.340(i)(1), with the Pilgrim ASLBs responsibility to resolve all matters in controversy in the relicensing proceeding - including the matters arising from the Fukushima accident which already are contested between the parties - and then make the initial decision whether to relicense the Pilgrim plant. 10 C.F.R. § 2.340(a) and (b). Therefore it is appropriate and consistent with NRC regulations for the Commonwealth to direct its request for a housekeeping stay, in the first instance, to the initial relicensing decision 2
maker - the Pilgrim ASLB - which is responsible for resolving the Fukushima related matters now in contention.4
- 2. The Commonwealth is not Required to Determine at this time how the Lessons of Fukushima may relate to matters now pending before the Pilgrim ASLB as a Condition for a Housekeeping Stay.
The Staff also argues that the Commonwealths Motion should be denied because it does not explain how the matters pending before the Pilgrim ASLB relate to the Fukushima accident. Staff Opposition at 6. However, the Commonwealth is not legally obligated to do so. The purpose of the Motion is to ensure that the Pilgrim proceeding remains open - and the NRC defers any relicensing decision which otherwise could become final - until the NRC has taken a hard look at the lessons of Fukushima, including the risks of spent fuel pool accidents, consistent with the National Environmental Policy Act, 42 U.S.C. § 4321, before taking the major federal action to relicense the Pilgrim nuclear power plant for an additional twenty years. Marsh v.
Oregon Natural Resources Council, 490 U.S. 360, 385 (1989)([R]egardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the proferred evidence.). See also United States v. Coalition for Buzzards Bay, -- F.3d --. 2011 WL 1844221 (May 17, 2011)(1st Cir. 2011) at *10-11, (NEPA framework is designed to stimulate public participation in agency decision 4
If the Commission elects to address the Fukushima related matters by rulemaking, the rulemaking decision still must be included within the Pilgrim relicensing process. See Commonwealth of Massachusetts Response to Commission Order Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident, Joinder in Petition to Suspend the License Renewal Proceeding for the Pilgrim Nuclear Power Plant, and Request for Additional Relief (May 2, 2011)(Adams No. 111220353)(Commonwealth Response) at 9 citing Baltimore Gas and Electric Co. Natural Resources Defense Council, 462 U.S. 87, 96 (1983) (agency must ensure that overall process, both generic and site specific, is considered in decisions that significantly affect the environment).
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making; failure to take hard look at environmental consequences raised in public comment prior to decision making is reversible error); Silva v. Romney, 473 F. 2d 287, 292 (1st Cir. 1973)(an agencys NEPA duties are not discretionary, but are specifically mandated by Congress, and are to be reflected in the procedural process by which agencies render decisions.).5 Therefore, the NRC Staffs request that the Pilgrim ASLB proceed to resolve the limited number of remaining issues before it - and close out the relicensing process before the NRC completes its investigation into Fukushima - would violate the NRCs obligations under NEPA and the Atomic Energy Act to consider the lessons of Fukushima prior to relicensing.6
- 3. Conclusion The Commonwealth of Massachusetts respectfully requests the Pilgrim ASLB, consistent with NEPA and the AEA, to grant a housekeeping stay pending further direction from the Commission on the NRCs Fukushima-related investigation and the pending petition to suspend relicensing proceedings at Pilgrim and other plants. This will allow for an orderly administrative process, and as a prudential matter, afford the 5
Entergys claim that the Commonwealth must satisfy the standards for a stay before the NRC must consider the lessons of Fukushima prior to relicensing is legally erroneous.
See Entergy Answer at 5 - 6. The mandate of NEPA is not subject to these discretionary stay standards. See Silva v. Romney, supra. Similarly, Entergys complaint about a delay in the licensing schedule should be rejected: the NRC is legally obligated to comply with NEPA prior to licensing and none of the pre-Fukushima cases cited by Entergy state to the contrary. See Entergy Answer at 1 - 3.
6 See Commonwealth Response at 12 - 13 and n.17; see also Petitioners Reply to Responses to Emergency Petition to Suspend All Reactor Licensing Decisions Pending Investigation of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident (May 6-9, 2011)(Adams No. ML111290165) at 8 - 14.
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Commission a reasonable time to address these issues which may have a direct bearing on the Pilgrim relicensing process. Commonwealth Motion at 2 - 3 and cases cited.
Respectfully submitted,
/s/ Matthew Brock Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 Tel: (617) 727-2200 Fax: (617) 727-9665 matthew.brock@state.ma.us Certificate of Counsel On May 17, 2011, the Commonwealth notified all parties of record that the Commonwealth intended to file a Motion to allow Reply and Reply. Counsel for NRC Staff and Entergy have advised that they will oppose the Motion and Reply.
/s/Matthew Brock 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
Entergy Nuclear Generation Co. ) Docket No. 50-293-LR And Entergy Nuclear Operations, Inc. )
(Pilgrim Nuclear Power Station) ) May 19, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Commonwealth of Massachusetts Reply to NRC Staff and Entergy Oppositions to the Commonwealth of Massachusetts Motion to Hold Licensing Decision in Abeyance Pending Commission Decision Whether to Suspend the Pilgrim Proceeding to Review the Lessons of the Fukushima Accident in the above captioned proceeding have been served upon the following persons by electronic mail this date:
Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge U.S. Nuclear Regulatory Commission Ann Marshall Young, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAMail.Resource@nrc.gov E-mail: Ann.Young@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the Secretary Mail Stop: T-3 F23 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 HearingDocket@nrc.gov
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of General Counsel Office of Nuclear Reactor Regulation Mail Stop: O15 D21 Mail Stop: O11-F1 Washington, D.C. 20555 Washington, D.C. 20555 -0001 OGCMailCenter.Resource@nrc.gov Lisa Regner, Sr. Project Manager Katherine Tucker, Law Clerk Division of License Renewal Katie.tucker@nrc.gov Lisa.regner@nrc.gov Edward Williamson Edward.williamson@nrc.gov Pillsbury, Winthrop, Shaw, Pittman LLP Entergy Nuclear 2300 N Street, N.W. 1340 Echelon Parkway Washington DC, 20037-1128 Mail Stop M-ECH-62 Jackson, MS 39213 David R. Lewis, Esq.
David.lewis@pillsburylaw.com Terence A. Burke, Esq.
Paul A. Gaukler, Esq. tburke@entergy.com Paul.gaulker@pillsburylaw.com Jason B. Parker, Esq.
Jason.parker@pillsburylaw.com Maria.webb@pillsburylaw.com Duane Morris L.L.P. Susan L. Uttal, Esq.
505 9th Street, NW, Suite 1000 susan.uttal@nrc.gov Washington, D.C. 20004-2166 Andrea Z. Jones, Esq.
Sheila Slocum Hollis, Esq. axj4@nrc.gov SSHollis@duanemorris.com Beth N. Mizuno, Esq.
beth.mizuno@nrc.gov Bnm1@nrc.gov Brian G. Harris, Esq.
Brian.harris@nrc.gov Brian Newell, Paralegal Brian.newell@nrc.gov 7
Pilgrim Watch Town of Plymouth Mary Lampert Town Managers Office 148 Washington Street 11 Lincoln Street Duxbury, MA 02332 Plymouth, MA 02360 Mary.Lampert@comcast.net Melissa Arrighi, Acting Town Manager marrighi@townhall.plymouth.ma.us Kevin M. Nord, Chief Richard R. MacDonald Duxbury Fire Department and Emergency 878 Tremont Street Management Agency Duxbury, MA 02332 668 Tremont Street Also by E-mail:
Duxbury, MA 02332 macdonald@town.duxbury.ma.us nord@town.duxbury.ma.us Town of Duxbury Nuclear Advisory Laura Pinson Committee laura@nealgross.com 31 Deerpath Trl.
North Duxbury, MA 02332 Rebecca Chin, Vice Chair rebeccajchin@hotmail.com
/s Matthew Brock Matthew Brock 8