ML11353A562

Entergy'S Answer Opposing the Commonwealth'S Appeal of LBP-11-35

ML11353A562
Person / Time
Site:	Pilgrim
Issue date:	12/19/2011
From:	Gaukler P A, Lewis D R Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Generation Co, Entergy Nuclear Operations
To:	NRC/OCM
SECY RAS
References
RAS 21583, 50-293-LR, ASLBP 06-848-02-LR, LBP-11-35
Download: ML11353A562 (33)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR )

(Pilgrim Nuclear Power Station) )

ENTERGY'S ANSWER OPPOSING THE COMMONWEALTH'S APPEAL OF LBP-11-35

David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW

Washington, D.C. 20037

Tel. (202) 663-8000

Counsel for Entergy L.L.C.

Dated: December 19, 2011

Table of Contents Page TABLE OF CONTENTS..............................................................................................................

i TABLE OF AUTHORITIES.......................................................................................................ii I. STATEMENT OF THE CASE........................................................................................4 II. STANDARD OF REVIEW..............................................................................................6 III. THE COMMISSION SHOULD DENY THE COMMONWEALTH'S APPEAL.....7 A. The Board Majority's Ruling Fully Complies with NEPA...........................................7 1. EIS Supplementation is Required Only Where New Information Provides a Seriously Different Picture of the Environmental Landscape.............8 2. NEPA Prescribes No Procedural Re quirements, and the Board Majority Properly Reviewed the Commonwealth's Contention Under the Commission's Reopening and Late Contention Standards..................................10 B. The Commission's Reopening Standards Comply with the AEA..............................15 C. The Commonwealth Raises Multiple Cl aims Beyond the Scope of This License Renewal Proceeding........................................................................................................16 D. The Commonwealth Provides No Legitimate Basis to Disturb the Rulings Rejecting Its Contention.................................................................................................17 E. The Board Majority Correctly Denied the Commonwealth's Waiver Petition........24 IV. CONCLUSION...............................................................................................................25

ii Table of Authorities Page Federal Judicial Decisions Bowman Transp. v. Arkansas-Best Freight, 419 U.S. 281 (1974)..........................................13 City of Olmstead Falls v. FAA, 292 F.3d 261 (D.C. Cir. 2002)................................................9 Highway J Citizens Group v. Mineta , 349 F.3d 938 (7th Cir. 2003), cert.

denied , 541 U.S. 974 (2004)............................................................................................................

.....12 Hodges v. Abraham , 300 F.3d 432 (4th Cir. 2002), cert.

denied, 537 U.S. 1105 (2003)........12 Hughes River Watershed Conservancy v. Glickman , 81 F.3d 437 (4th Cir. 1996)...................9 ICC v. Jersey City, 322 U.S. 503 (1944)............................................................................13.15 In re Operation of the Missouri River Sys. Litig., 516 F.3d 688 (8th Cir. 2008)......................9 Kelley v. Selin , 42 F.3d 1501 (6th Cir. 1995)..........................................................................16 Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989).........................................9,12,15 Mass. v. NRC , 924 F.2d 311, cert.

denied, 502 U.S. 899 (1991)............................................13 Mass. v. U.S., 522 F.3d 115 (1st Cir. 2008).........................................................................4,10 Nat'l Comm. for the New River v. FERC, 373 F.3d 1323 (D.C. Cir. 2004).............................9 New Jersey Envtl. Fed'n v. NRC, 645 F.3d 220 (3d Cir. 2011)...............................13,15,16,18 New York v. NRC , 589 F.3d 551 (2d Cir. 2009)....................................................................4,8 N. Id. Cmty. Action Network v. DOT, 545 F.3d 1147 (9th Cir. 2008) .............................10,12 NRDC v. FAA, 564 F.3d 549 (2d Cir. 2009)..........................................................................12 Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987)............................................................................13 Price Rd. Neighborhood Ass'n v. DOT, 113 F.3d 1505 (9th Cir. 1997).................................10 San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir. 2011).........................10 Sierra Club v. Froehlke, 816 F.2d 205 (5th Cir. 1987)..............................................................9 Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209 (11th Cir. 2002)............................9 iii S. Trenton Residents Against 29 v. FHA, 176 F.3d 658 (3d Cir. 1999)....................................9 Town of Winthrop v. FAA, 535 F.3d 1 (1st Cir. 2008).............................................................9 Union of Concerned Scientists v. NRC , 735 F.2d 1437 (D.C. Cir. 1984) ("UCS I") ............16 Union of Concerned Scientists v. NRC , 920 F.2d 50 (D.C. Cir. 1990) ("UCS II")........passim Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.519 (1978).........................2,10,11 Village of Grandview v. Skinner, 947 F.2d 651 (2d Cir. 1991)................................................9 Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir. 1984)...........................................................9 Commission Decisions Ameren Missouri, et al. (Callaway Plant, Unit 2, et al.), CLI-11-05, 74 N.R.C. __, slip op. (Sept. 9, 2011)..............................................................................passim AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 N.R.C. 461 (2008)..........................................................................................................

....20 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. 658 (2008).......................................................................................................3,16

,18 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235 (2009).......................................................................................................7,19

,20 Dominion Nuclear Connecticut, Inc.(Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)............................................................................................16 Dominion Nuclear Connecticut, Inc.(Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C. 551 (20050...........................................................................................24 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nucl ear Station, Units 1 and 2), CLI-02-26, 56 N.R.C. 358 (2002)...................................................................16 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257 (2006)...........................................................................................................

......4 Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Station), CLI-07-3, 65 N.R.C. 13, reconsideration denied , CLI-07-13, 65 N.R.C. 211 (2007),

aff'd sub nom., Mass. v. NRC, 522 F.3d 115 (1st Cir. 2008).........................................4,8,9,24 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 N.R.C. 529 (2009)...........................................................................................................

....18 iv Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287 (2010)..........................................................................................................1 9,23 Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-10-14, 71 N.R.C. 449 (2010).......................................................................................................8,16

,24 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 N.R.C. ___, slip op. (Mar. 10, 2011)...............................................19 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 N.R.C. 3 (2001)................................................................................................16 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31 (2001)..........................................................9 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 N.R.C. __, slip op. (Oct. 12, 2011)...............................................................6,18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-03-8, 58 N.R.C. 11, 17 (2003) ...........................................................................................6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 N.R.C. 160 (2005)................................................................................................6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 N.R.C. 345 (2005) ...........................................................................................18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-3, 63 N.R.C. 19 (2006)........................................................................................passim Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 N.R.C. 499 (2007) ..............................6 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 N.R.C. __, slip op. (Sept. 27, 2011)......................................................3,7,19,21 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),

CLI-92-12, 36 N.R.C. 62 (1992)..............................................................................................19 Atomic Safety and Licensing Board Decisions Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257 (2006)...........................................................................................................

......4 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 N.R.C. __, slip op. (Nov. 28, 2011)...........................................................................passim Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358 (1973).............................................................................................20 v Regulations 10 C.F.R. § 2.309(c)...........................................................................................................

...6,12 10 C.F.R. § 2.309(f)(1)........................................................................................................

......6 10 C.F.R. § 2.311..............................................................................................................

.........6 10 C.F.R. § 2.311(c)...........................................................................................................

........6 10 C.F.R. § 2.315..............................................................................................................

.........6 10 C.F.R. § 2.326.............................................................................................................7

,12,21 10 C.F.R. § 2.326(a)...........................................................................................................

...5,14 10 C.F.R. § 2.326(a)(1)........................................................................................................

.5,14 10 C.F.R. § 2.326(a)(2)........................................................................................................

.2,14 10 C.F.R. § 2.326(a)(3)..................................................................................................14,18, 24 10 C.F.R. § 2.326(b)...........................................................................................................

.....21 10 C.F.R. § 2.335..............................................................................................................

.......17 10 C.F.R. § 2.341..............................................................................................................

...1,6,7 10 C.F.R. § 2.341(b)(4)........................................................................................................

......6 10 C.F.R. Part 51..............................................................................................................

........10 10 C.F.R. Part 51, App. B......................................................................................................

....8 10 C.F.R. § 54.21..............................................................................................................

.......16 10 C.F.R. § 54.29..............................................................................................................

.......17 10 C.F.R. § 54.29(a)...........................................................................................................

......16 51 Fed. Reg. 19,535 (May 30, 1986).............................................................................13,19,20 71 Fed. Reg. 15,222 (Mar. 27, 2006).........................................................................................4

71 Fed. Reg. 64,169 (Nov. 1, 2006)...........................................................................................4

73 Fed. Reg. 46,204 (Aug. 8, 2008)..............................................................................4,8,24,25 December 19, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR )

(Pilgrim Nuclear Power Station) )

ENTERGY'S ANSWER OPPOSING THE COMMONWEALTH OF MASSACHUSETTS APPEAL OF LBP-11-35 Pursuant to 10 C.F.R. § 2.341, Entergy Nuclear Generation Compa ny and Entergy Nu-clear Operations, Inc. (collectively "Entergy") respond in opposition to the Commonwealth of Massachusetts' (the "Commonwealth's") appeal of the Atomic Safety and Licensing Board ("Board") decision in LBP-11-35 1 filed December 8, 2011.

2 The Appeal seeks review of the Board's decision denying the "Commonwealth of Massachusetts Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Ac cident" (June 2, 2011) ("Contention") and its related filings.

3 As discussed below, the Commission should deny the

1 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 N.R.C. __, slip op. (Nov. 28, 2011) ("LBP-11-35").

2 The Commonwealth's filings on appeal consist of: (1) the Commonwealth of Massachusetts' Notice of Appeal of LBP-11-35; and (2) the Commonwealth of Massachusetts' Brief on Appeal of LBP-11-35, Denying Admission of the Commonwealth's Contention, Hearing Request, Associated Waiver Petition, and Alternative Request for Rule-making, on New and Significant Information Arising from the Accident at Fukushima and the Significance of that Information for the Pilgrim Relicensing Proceeding ("Brief"), which contains the Commonwealth's substantive ar-guments on appeal. The documents shall be referred to herein collectively as the "Appeal."

3 In addition to the Contention, the Commonwealth filed (1) Commonwealth of Massachusetts Motion to Admit Contention and, if Necessary, to Re-Open Record Regarding New and Significant Information Revealed by Fuku-shima Accident (June 2, 2011) ("Contention Motion"); (2) Commonwealth of Massachusetts Petition for Waiver of 10 C.F.R. Part 51 Subpart A, Appendix B or in the Alternative, Petition for Rulemaking to Rescind Regulations Ex-cluding Consideration of Spent Fuel Storage Impacts From License Renewal Environmental Review (June 2, 2011) ("Waiver Petition"); (3) New and Significant Information From the Fukushima Daiichi Accident in the Context of Future Operation of the Pilgrim Nuclear Power Plant; A report for Office of the Attorney General, Commonwealth of Massachusetts (Gordon R. Thompson, Institute for Resource and Security Studies) (June 1, 2011) ("Thompson Report"); (4) Declaration of Dr. Gordon R. Thompson in Support of Commonwealth of Massachusetts Contention and Related Petitions and Motions (June 1, 2011) ("Thompson Declaration" or "Thompson Decl."); and (5) Com-2 Appeal because the Commonwealth does not iden tify any substantial qu estion warranting re-view, or any error of fact or law in the Bo ard's ruling, which is clearly correct. The Commonwealth's Contention and Appeal are based on meritless arguments that the National Environmental Policy Act ("NEPA") obligates the Commission to consider the Com-monwealth's purported new and significant information, based on its mere claim that new and significant information exists, in one of two ways - reopen the ad judicatory hearing or conduct a generic rulemaking - and that the Commission must do so before renewing Pilgrim's license.

E.g., Brief at 22 & n.38. The Commission's options for giving a "hard look" to claims of new and significant information are not so constrained. The Supreme Court's decision in Vermont Yankee 4 and numerous other precedents long ago settled that NEPA im poses no hearing re-quirement nor establishes any other requirements that would proscribe application of the Com-mission's procedures for considering a llegedly new and significant information.

In this regard, the Commonwea lth erroneously asserts that the Commission's standards for reopening the record and considering late-filed contentions violate NEPA and the Atomic Energy Act ("AEA"), notwithstanding decades of judicial and Commission case law to the con-trary. Indeed, Commission precedent equates the standard for supplementing an EIS to address new and significant information (i.e., information th at presents a seriously different picture of the environmental landscape) with the standard for raising a significant environmental issue under the Commission's reopening standards, 10 C.F.R. § 2.326(a)(2).

5

monwealth of Massachusetts' Conditional Motion to Suspend Pilgrim Nuclear Power Plant License Renewal Pro-ceeding Pending Resolution of Petition for Rulemaking to Rescind Spent Fuel Pool Exclusion Regulations (June 2, 2011) ("Stay Request").

4 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation) ("PFS"), CLI-6-03, 63 N.R.C. 19, 29 (2006).

3 Further, the Commonwealth's claim that it raised new and significant information with respect to the GEIS, 6 FEIS, 7 and the Pilgrim SAMA analysis do es not withstand scrutiny. The Commonwealth has made no showing that Fukushima paints a seriously different picture of the environmental landscape concerning the likelihood of severe reactor accidents and spent fuel pool fires, or with the wide range of severe accident mitigation alternat ives ("SAMA") consid-ered in the Pilgrim SAMA analysis. The Commonwealth's claims ignore the broad scope of ac-cident scenarios included in the Pilgrim SAMA analysis, which are nowhere distinguished from Fukushima in the Contention or Dr. Thompson's re port. These include sc enarios that consider radioactive releases substantially larger than the total releases for the three damaged Fukushima reactors combined.

8 Indeed, the Commission has since ruled that Fukushima has not revealed in-formation presenting a seriously different picture of the environmental landscape.

9 The Commission's decision confirms the Board majority's ruling that the Contention failed to present significant (let alone grave) information warranting reopen ing of the record. In addition, the Commonwealth's Contention was not timely raised because its challenges could have been raised at the proceeding's outset. Furthermore, the Commonwealth's claims consist of a series of "bare assertions and speculations" that the Commission has repeatedly rejected as "in-sufficient to support the heavy burden placed on the proponent of a motion to reopen to demon-strate" that a materially different resu lt would be or would have been likely.

10 6 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) ("GEIS" or "NUREG-1437").

7 NUREG-1437, GEIS, Supplement 29 Regarding Pilgrim Nuclear Power Station (July 2007) ("FEIS").

8 As discussed later in this Answer, the expert witness declaration that Entergy submitted in response to the Com-monwealth's Contention further explains and elaborates on the Pilgrim SAMA analysis set forth in the LRA.

9 Ameren Missouri, et al. (Callaway Plant, Unit 2, et al.), CLI-11-05, 74 N.R.C. __, slip op. at 30-31 (Sept. 9, 2011) "(CLI-11-05").

10 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 N.R.C. __, slip op. at 15 n.48 (Sept. 27, 2011) ("CLI-11-08"), citing AmerGen Energy Co., LLC (Oyster Creek Nu-clear Generating Station), CLI-08-28, 68 N.R.C. 658 (2008) (CLI-08-28").

4 For these reasons, as well as the other grounds set forth in this Answer, the Commission should deny the Commonwealth's Appeal.

I. STATEMENT OF THE CASE The procedural history related to the Commonwealth's Contention as it relates to spent fuel pool fire risks is set forth in Entergy's Answer to the Contention 11 and will not be repeated here. Entergy submitted the Pilgrim License renewal application in January 2006.

12 The Com-monwealth raised its spent fuel pool risk concerns, 13 the Board and the Commission scrutinized and rejected those concerns, 14 and the First Circuit upheld those rulings.

15 In accordance with the First Circuit's ruling, 16 the Commonwealth provided notice that it would participate in the li-cense renewal proceeding as an interested State.

17 The Commonwealth also filed a rulemaking petition on its spent fuel pool risk concerns.

18 The Commission denied the Commonwealth's rulemaking petition, 19 which the Second Circuit upheld.

20 11 Entergy's Answer Opposing Commonwealth Contention and Petition for Waiver Regarding New and Significant Information Based on Fukushima (June 27, 2011) ("Entergy Contention Answer"); Attached to the Entergy Answer was the Declaration of Joseph R. Lynch, Lori Ann Potts, and Dr. Kevin R. O'Kula in Support of Entergy's Answer Opposing Commonwealth of Massachusetts Contention Regarding New and Significant Information Revealed by the Fukushima Radiological Accident (June 26, 2011)

("Entergy Declaration" or "Entergy Decl.").

12 See 71 Fed. Reg. 15,222 (Mar. 27, 2006).

13 Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to En-tergy Nuclear Operations, Inc.'s Application for Renewal of the Pilgrim Nuclear Power Plant Operating License and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Pool Accidents (May 26, 2006). 14 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257, 288, 295-300 (2006); Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Sta-tion), CLI-07-3, 65 N.R.C. 13, reconsideration denied , CLI-07-13, 65 N.R.C. 211 (2007), aff'd sub nom , Massachu-setts v. United States, 522 F.3d 115 (1st Cir. 2008).

15 Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008).

16 Id. at 130 & n.9.

17 Commonwealth of Massachusetts' Notice of Intent to Participate as an Interested State (May 6, 2008) at 1-2.

18 Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (Aug. 25, 2006) ("2006 Petition"); see also Massachusetts Attorney General; Receipt of Petition for Rulemaking, 71 Fed. Reg. 64,169 (Nov. 1, 2006).

19 The Attorney General of Commonwealth of Massachusetts; the Attorney General of California; Denial of Peti-tions for Rulemaking, 73 Fed. Reg. 46,204, 46,207-09, 46,212 (Aug. 8, 2008) ("Rulemaking Denial").

20 New York v. NRC, 589 F.3d 551 (2d Cir. 2009).

5 On June 2, 2011, the Commonwealth filed its Contention and relate d papers. Entergy and the NRC Staff opposed the Contention and related filings.

21 On August 11, 2011, the Com-monwealth filed its Motion to Supplement the Bases of its pr oposed contention to address the NRC Task Force Report 22 on lessons learned from Fukushima.

23 Both Entergy and the NRC Staff opposed the Supplementation Motion.

24 On November 28, 2011, the Board rejected the Commonwealth's Waiver Petition and Contention. LBP-11-35 at 16, 49-70.

25 A majority of the Board rejected the Waiver Petition be-cause the Commonwealth's spent fuel pool concerns were not unique to Pilgrim. LBP-11-35 at 16. The Board majority also ruled that the Commonwealth had met none of the reopening crite-ria contained in 10 C.F.R. § 2.326(a), LBP-11-35 at 49-64, finding, for example, that the "direct experience" challenge to the core damage frequency ('CDF") assumed in the Pilgrim SAMA analysis was untimely under Section 2.326(a)(1) because it could have been raised at the outset of this proceeding. The Board majority also found the contention untimely under Section

21 Entergy Contention Answer; NRC Staff's Response to Commonwealth of Massachusetts' Motion to Admit Con-tention and, If Necessary, Re-Open Record Regarding New and Significant Information Revealed by Fukushima Accident (June 27, 2011) ("NRC Staff Contention Response"); NRC Staff's Response to the Commonwealth of Massachusetts' Petition for Waiver of 10 C.F.R. Part 51 Subpart A, Appendix B or, in the Alternative, Petition for Rulemaking (June 27, 2011) ("NRC Staff Waiver Petition Response").

22 Recommendations for Enhancing Reactor Safety in the 21 st Century: the Near-Term Task Force Review of In-sights from the Fukushima Dai-ichi Accident (July 12, 2011) ("Task Force Report").

23 Commonwealth of Massachusetts Motion to Supplement Bases to Commonwealth Contention to Address NRC Task Force Report on Lessons Learned from the Radiological Accident at Fukushima (Aug. 11, 2011) ("Supplemen-tation Motion"). Included with the Motion is the Declaration of Gordon R. Thompson Addressing New and Signifi-cant Information Provided by the NRC's Near-Term Task Force Report on the Fukushima Accident (Aug. 11, 2011)

("August 2011 Thompson Decl.").

24 Entergy's Answer Opposing Commonwealth Motion to Supplement Bases to Commonwealth Contention to Ad-dress NRC Task Force Report on Lessons Learned from Fukushima (Sept. 6, 2011); NRC Staff's Response to Commonwealth of Massachusetts' Motion to Supplement Bases to Proposed Contention to Address NRC Task Force Report on Lessons Learned from Fukushima (Sept. 6, 2011).

25 A majority of the Board denied the Stay Request based on the Commission's decision in CLI-11-05, which the Board majority concluded was "dispositive of" the Stay Request. LBP-11-35 at 8-9. The Commonwealth does not appeal this portion of the Board majority's ruling.

6 2.309(c), and that it failed to meet the admissi bility standards under S ection 2.309(f)(1). Id.

at 64-70.26 II. STANDARD OF REVIEW Although the Commonwealth appeals under 10 C.F.R. § 2.311, Brief at 1, the review provisions of Section 2.341 apply.

27 Pursuant to Section 2.341(b)(4

), a petition for review is granted only at the discretion of the Commission, "giving due wei ght to the existence of a sub-stantial question with respect to the following rele vant considerations": (i) a finding of material fact that is "clearly erroneous" or conflicts with a finding as to the same fact in a different pro-ceeding; (ii) a necessary legal conclusion that is "without governing precedent" or "contrary to established law;" (iii) the raising of a "substantial and important question of law, policy, or dis-cretion;" (iv) "the conduct of the proceeding invo lved a prejudicial procedural error;" or (v) the raising of "any other considerations which the Commission may deem to be in the public inter-est."28 An appeal that simply restates the cont ention with additional support and makes no show-ing under the above criteria will not meet the requirements for a valid appeal.

29 The Commission is free to affirm a board decision on any ground finding support in the record, whether previ ously relied on or not.

30 Further, the Commission gives substantial defer-

26 Judge Young concurred in the results of the majority decision, finding the contention premature and thus inadmis-sible based on the Commission's decision in CLI-11-05. LBP-11-35 at 72 (Judge Young, concurring in results).

27 Section 2.311(c) permits interlocutory review for a "requestor/petitioner" as to whether its hearing request or in-tervention petition should have been granted at the outset of a proceeding. This circumstance does not apply to the Commonwealth, which has participated as a Section 2.315 interested State since the First Circuit's decision. In any event, even if the Commission were to review the Appeal under Section 2.311, it should still be denied. Under Sec-tion 2.311, the Commission "appl[ies] a deferential standard of review" and "will defer to the Board's rulings on contention admissibility absent an error of law or abuse of discretion." Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 N.R.C. at __, slip op. at 4 (Oct. 12, 2011) ("CLI-11-11") (foot-note omitted). The Commonwealth identifies no error of law or abuse of discretion in the Board's ruling.

28 10 C.F.R. § 2.341(b)(4); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation) ("PFS

"), CLI-03-8, 58 N.R.C. 11, 17 (2003).

29 Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facil-ity), CLI-07-20, 65 N.R.C. 499, 503-05 (2007).

30 PFS, CLI-05-1, 61 N.R.C. 160, 166 (2005) (citing federal precedent).

7 ence to its boards' determinations on threshold issues, such as whether a pleading meets the re-quirements of Section 2.326, and "will not sustain an appeal [on such issues] that fail to show a board committed clear error or abuse of discretion."

31 III. THE COMMISSION SHOULD DENY THE COMMONWEALTH'S APPEAL Pursuant to 10 C.F.R. § 2.341, the Commission should deny the Appeal. The Common-wealth interweaves a host of erroneous argumen ts concerning the Commission's obligations un-der NEPA, its responsibilities under the AEA, and the limited scope of this license renewal pro-ceeding. Once untangled, it is clear that the Commonwealth's arguments demonstrate no clear error of fact, error of law, pro cedural error, or abuse of disc retion by the Board. Moreover, the Board majority's rulings that the Commonwealth failed to meet the standards for reopening the record, considering a late-filed contention, and admitting a contention are clearly correct.

A. The Board Majority's Ruling Fully Complies with NEPA The Commonwealth's "foundational argument" is that NEPA requires the Commission to take a "hard look" at its purpor ted new and significant information concerning Fukushima before granting Pilgrim's license renewal.

Brief at 14-15. But even a cursory review of the Board ma-jority's decision in LBP-11-35 demonstrates that it provided the requisite "hard look" under NEPA by applying the NRC's procedural requirements to the Commonwealth's purportedly new and significant information. See LBP-11-35 at 17-70 (summarizing and applying the Commis-sion's standards for reopening the record, late-filed contentions, and admissible contentions to the Commonwealth's claims). Thus, the Commonwealth's Appeal boils down to arguments that (1) it is entitled to a hearing and, as a result, supplementation of the Pilgrim FEIS based on its mere allegation of new and significant information with no application of the Commission's pro-

31 Vogtle, CLI-11-08 at 5; AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 260 (2006) ("CLI-09-7").

8 cedural rules because (2) the Commission's procedural rules are allegedly contrary to NEPA and the AEA.

As explained in Entergy's Answers opposing the Commonwealth's Contention and Sup-plementation Motion, 32 ample judicial and Commission precedent make clear that the Common-wealth's arguments are wrong because: (1) supplementation of Pilgrim's environmental analy-ses is required only where new and significant information paints a seriously different picture of the environmental landscape described in those analyses; (2) application of the Commission's procedural requirements to the Commonwealth's claims of new and significant information complies with NEPA; and (3) the Board majority correctly applied thos e procedural require-ments and in doing so provided the required "hard look" at the Commonwealth's claims.

1. EIS Supplementation is Required Only Where New Information Pro-vides a Seriously Different Picture of the Environmental Landscape The NRC issued the GEIS to evaluate environmental issues generic to all plants renewing their operating licenses. In this context, the NRC evaluated and determined as a generic matter that the probability-weighted consequences from severe accident impacts are small for all plants 33 and that the environmental impacts of spent fuel storage, including accident risk, are small for all plants.

34 The Commonwealth claims that Fukushima has brought to light new and significant in-formation that requires supplementing the GEIS and, more specifically, Pilgrim's FEIS and SAMA analysis prior to license renewal. Brief at 15-16. Bu t the Commonwealth ignores clear

32 Entergy Contention Answer at 65-67; Entergy's Supplementation Opposition at 20-21.

33 10 C.F.R. Part 51, App. B, Table B-1; GEIS at 5-114 to 5-115.

34 10 C.F.R. Part 51, App. B, Table B-1; GEIS at 6-72 to 6-75 and 6-91 to 6-92; Pilgrim, CLI-10-14, 71 N.R.C. 449, 472-74 (2010); Vermont Yankee/ Pilgrim, CLI-07-3, 65 N.R.C. at 19-21. See also Rulemaking Denial, 73 Fed. Reg. 46,204, aff'd, New York, 589 F.3d 551.

9 Commission and judicial precedent setting the standard that must be met for supplementing the NRC's and Pilgrim's environmental analyses. As the Supreme Court made clear in Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (relied on heavily by the Commonwealth), it is not merely the identification of new information that triggers supplementing an EIS because such a requirement "would render agency decisionmaking intractable, always awaiting updated informa tion only to find the new in-formation outdated by the time a decision is made." 490 U.S. at 373 (footnote omitted).

Rather, it is well established that a supplemental EIS is required only where new information "provides a seriously different picture of the environmental landscape."

35 Numerous courts have so ruled.

36 The Commission has adopted this same standard, 37 which it recently reaffirmed when rejecting a request that it conduct a "s eparate generic NEPA analysis" concerning Fukushima.

38 Moreover, consistent with this precedent, the Commission has held on more than one occasion that a mere claim of new and significant information does not open up its generic findings to consideration in individual license renewal proceedings because this would defeat the purpose of resolving is-sues generically in the GEIS.

39 35 Nat'l Comm. for the New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis in original), quoting City of Olmsted Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002).

36 See also In re Operation of the Missouri River Sys. Litig., 516 F.3d 688, 693 (8th Cir. 2008) ("seriously different picture of the environmental impact"); Town of Winthrop v. FAA, 535 F.3d 1, 9 (1st Cir. 2008) (substantial change in conditions since the data used in the EIS were gathered); Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1215-16 (11th Cir. 2002) (significant impact not previously covered); S. Trenton Residents Against 29 v.

FHA, 176 F.3d 658, 663 (3d Cir. 1999) ("seriously different picture of the environmental impact"); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996) (same); Village of Grand View v. Skinner , 947 F.2d 651, 657 (2d Cir. 1991) (significant impact not previously covered); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987) ("seriously different picture of the environmental impact"); Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984) (same).

37 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31, 52 (2001) ("The new circumstance must reveal a seriously dif-ferent picture of the environmental impact of the proposed project.) (internal quotes and citations omitted).

38 Callaway, CLI-11-05 at 30-31 (holding that such request was "premature" because "given the current state of in-formation available" Fukushima did not present "new and significant information" that "present[s] 'a seriously dif-ferent picture of the environmental impact of the proposed project from what was previously envisioned") (footnote omitted). See also LBP-11-35 at 57 n.218 (acknowledging the Commission's holding in CLI-11-05 at 30-31).

39 Vermont Yankee/Pilgrim, CLI-07-3, 65 N.R.C. at 21; Pilgrim, CLI-10-14 at 36.

10 Thus, supplementation of Pilgrim's environm ental analyses is required only where new information would materially affect and paint a seriously different picture of the environmental landscape from that previously c onsidered in the GEIS for severe accidents and spent fuel pool accidents that would result in an impact finding diffe rent from that codified in 10 C.F.R. Part 51, or from that previously considered in Pilgrim's SAMA analysis.

2. NEPA Prescribes No Procedural Requirements, and the Board Ma-jority Properly Reviewed the Commonwealth's Contention Under the Commission's Reopening and Late Contention Standards When faced with a claim of new and significant information, the Commission has broad discretion on how to determine whether the claim in fact paints a seriously different picture of the environmental landscape. The Supreme Court made clear long ago that "the only procedural requirements imposed by NEPA are those st ated in the plain language of the Act."

40 Further, al-though NEPA requires that an agency fully consider environmental issues, NEPA does not re-quire a hearing on those issues.

41 Nor does NEPA alter the procedures employed (or not em-ployed) by an agency for considering environmental issues.

42 As stated by the First Circuit: [A]lthough NEPA does impose an obligati on on the NRC to consider environ-mental impacts of the Pilgrim and Verm ont Yankee license renewal before issu-ing a final decision, the statute does not mandate how the agency must fulfill that obligation . . . Beyond "the statutory minima" imposed by NEPA . . . the imple-menting procedures are committed to the agency's judgment

.43 Moreover, "neither NEPA nor the CEQ regulations" prescribe how an agency is to determine the existence of new and significant information that would require supplementation under NEPA.

44 40 Vermont Yankee Nuclear Power Corp., 435 U.S. at 548 (citation omitted).

41 Union of Concerned Scientists v. NRC, 920 F.2d 50, 56 (D.C. Cir. 1990) ("UCS II"). See also San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109, 1115 (9th Cir. 2011).

42 See UCS II 920 F.2d at 56 (citing Vermont Yankee, 435 U.S. at 548).

43 Massachusetts, 522 F.3d at 130 (emphasis added) (citing Supreme Court precedent).

44 N. Id. Cmty. Action Network v. DOT, 545 F.3d 1147, 1154 (9th Cir. 2008), citing Price Rd. Neighborhood Ass'n v. DOT, 113 F.3d 1505, 1509-10 (9th Cir. 1997).

11 Thus, it is clear that NE PA does not prescribe how the Commission must consider prof-fered evidence of new and significant information.

Accordingly, NEPA does not require that the NRC abandon its procedures, such as its procedural requirements for reopening a closed record, every time someone comes forward with an allegation of new and significant information.

45 Despite this clear precedent of the Commission's broad procedural discretion, the Com-monwealth erroneously claims that the Commi ssion has only two options for evaluating its pur-ported new and significant informa tion prior to granting license renewal - a "site specific hearing or generic rulemaking proceeding - as the Commission may elect." Brief at 22 & n.38. The Commonwealth's argument is baseless. See UCS II , 920 F.2d at 56 (NEPA does not provide any right to hearing). The argument is also circular. The Commonwealth essentially argues that the Commission must undertake formal processes and supplement the Pilgrim FEIS in order to de-termine whether the Commonwealth has in fact raised new and significant information that paints a seriously different picture of the environmental landscape justifying supplementation of the Pilgrim FEIS. The Commission's op tions are not so restricted. Following the Supreme Court's mandate in Vermont Yankee , 435 U.S. at 543, that ad-ministrative agencies should be free to fashion their own procedures for implementing NEPA, the courts have allowed agencies to employ di fferent processes and doc umentation (other than preparing an environmental assessment or a supplemental EIS with public participation) for de-termining whether alleged new impacts are suffi ciently significant to warrant supplemental analysis and formal supplementation of existing NEPA documents. Among other examples, Federal Courts have approved (1) an agency's in ternal reevaluation of projected impacts from

45 UCS II, 920 F.2d at 55 ("it [is] unreasonable to suggest that the NRC must disregard its procedural timetable every time a party realizes based on NRC environmental studies that maybe there was something after all to chal-lenge it either originally opted not to make or which simply did not occur to it at the outset") (footnote omitted).

12 new information; 46 (2) use of an agency-re quested expert analysis; 47 (3) an agency record of de-cision based on review of previous NEPA documents; 48 (4) an agency supplemental information report based on agency-requested expert analysis; 49 and (5) review of scientific literature to con-clude that adverse impacts were unlikely.

50 In short, neither a supplemental EIS nor an environ-mental assessment is required to document an agency's determination that new information does not have a significant environmental impact.

Directly on point here, the Commission has expressly ruled th at consideration of a re-quest to reopen the hearing record to consider purported new and significant information is an-other such approach. In PFS , the Commission considered a request to reopen the hearing record in order to supplement a final environmental impact statement to address allegedly new and sig-nificant information. PFS, CLI-06-3, 63 N.R.C. at 22-23. Equating the requirements for reopen-ing the record to those for supplementing the EIS, the Commission reject ed the request, ruling that "the consequences are not so significant that NEPA would require reopening the record and amending the FEIS." Id.

at 27. See also id. at 29 (the claimed additional environmental impacts were "not so significant or centr al to the FEIS's discussion of environmental impacts that an FEIS supplement (and the consequent reopening of our adjudicatory record) is reasonable or necessary"). Thus, at this very late stage of the Pilgrim proceeding, unless a contention complies with the reopening standards in Section 2.326 (is timely raised, concerns a significant environ-mental issue, and would likely result in a materially different outcome) and otherwise meets the Commission's standards for late-filed contentions in 10 C.F.R. § 2.309(c), the record will not be

46 N. Id. Community Action Network, 545 F.3d at 1154.

47 Highway J Citizens Group v. Mineta, 349 F.3d 938, 959-60 (7th Cir. 2003), cert. denied, 541 U.S. 974 (2004).

48 Hodges v. Abraham, 300 F.3d 432, 446, 448 (4th Cir. 2002), cert. denied, 537 U.S. 1105 (2003).

49 Marsh, 490 U.S. at 383-85.

50 NRDC v. FAA, 564 F.3d 549, 562 (2d Cir. 2009).

13 reopened and the environmental r ecords need not be supplemented.

51 Further, Federal courts have repeatedly upheld the Commission's stringent re opening and late-filing standards.

52 Here, the Board majority has evaluated the Commonwealth's claims of new and signifi-cant information under the reopeni ng and late-filed standards, concluded the Commonwealth has not met those standards, and thus has provided the required hard look under NEPA. Commission review of the Board majority's decision will provide an additional "hard look." Contrary to this well established precedent, the Commonwealth contends that the Com-mission's reopening and late-filed contention sta ndards cannot be applied here because they would "impose a burden of proof on the Commonwealth for admission of its contention . . . in-consistent with the standard for the NRC to consider new and significant information under NEPA." Brief at 23. The Commonwealth's argument is clearly wrong. As a general matter, when faced with a claim of allegedly new and significant informa-tion, "[t]he Supreme Court has repeatedly said that reopening should not be automatic and is necessarily within the discre tion of the agency: "Administrative consideration of evidence always creates a gap between the time the record is closed and the time the administrative decision is promulgated . . . If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been ob-served; or some new fact discovered, ther e would be little hope that the adminis-trative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not mat-ters of right, but we re pleas to discretion."

53 51 Where a record is not reopened and the environmental documents are not formally supplemented, the rulings on whether to reopen the record become part of the NRC's NEPA record of decision. See PFS, CLI-06-3, 63 N.R.C. at 31 n.55.

52 UCS II, 920 F.2d at 55 (approving of NRC's application of the late-filing balancing test to alleged new informa-tion); Massachusetts v. NRC, 924 F.2d 311, 334, cert. denied, 502 U.S. 899 (1991) (same); New Jersey Envtl. Fed'n v. NRC, 645 F.3d 220, 235-36 (3d Cir. 2011) (upholding the application of the reopening standards to new conten-tions not previously in controversy; Ohio v. NRC, 814 F.2d 258, 262 (6th Cir. 1987) (same).

53 Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19539 (May 30, 1986) (quoting ICC v. Jersey City, 322 U.S. 503, 514-15 (1944); Bowman Transp. v. Arkansas-Best Freight, 419 U.S. 281, 294-95 (1974)).

14 Thus, whether to reopen the Pilgrim record falls well within the Commission's discretion. Moreover, the Commonwealth's claim that the reopening standards are more demanding than the standard for considering new and signi ficant information under NE PA (Brief at 23-24) is flatly contradicted by the Commission's PFS decision which equates the standard for supple-menting an EIS with the standard for raising a significant environmental issue under 10 C.F.R. § 2.326(a)(2). PFS, CLI-06-3, 63 N.R.C. at 27, 29. Accordingly, the Commission has addressed the Commonwealth's claim that the "NRC is obliged to consider [purported] new and significant information that could affect the outcome of its environmental analysis for that decision" "up un-til the time it makes [that] major licensing decision." Brief at 23. A determination that the Commonwealth has failed to raise new information under Section 2.326(a)(1), to ra ise a signifi-cant environmental issue under Section 2.326(a)(2), or to show that its a llegedly new and signifi-cant would likely to paint a materially different picture of the environmental landscape under Section 2.326(a)(3), fulfills the Commission's NEPA obligation to take a hard look at the infor-mation raised by the Commonwealth. The Board majority relied on the PFS decision in evaluat-ing whether the Commonwealth's claims raised a significant environmenta l issue warranting re-opening of the record. LBP-11-35 at 56 & n.217.

54 The Board majority also relied on the Com-mission's decision in CLI-11-05 that the events of Fukushima did not pres ent a seriously differ-ent picture of the environmental landscape. LBP-11-35 at 56 & n.218. Adhering to this Com-mission precedent (and as discussed further infra), the Board majority appropriately ruled that the "Commonwealth's claims simply implicate no specific environmental impact changes." Id. at 54 The Commonwealth's complaint that the Board majority "never addresses [its] foundational argument that it is the NRC [that] is legally obligated to comply with NEPA, and take a hard look at the lessons learned from Fukushima" (Brief at 14; see id. at 2), is therefore incorrect. The Board majority expressly equated the Section 2.326(a)(2) sig-nificant environmental impact standard with that required under NEPA for supplementing an EIS.

15 56. Consequently, the Commonwealth fails to show that the Board majority made any error of law here. Finally, the Commonwealth's (and the concurrence's) asserti on that NEPA obligates the Commission to await the completion of its Fukushima review before it can relicense Pilgrim (Brief at 22 & n.38; LBP-11-35 at 76-77 n.13) is contrary to the case law summarized above. It contravenes Supreme Court precedent that (1) reopening a hearing record is a matter of agency discretion - otherwise "there would be little hope that the admini strative process could ever be consummated," ICC, 322 U.S. at 514-15, and (2) the mere claim of new information does not trigger supplementing an EIS because such a requirement "would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made." Marsh, 490 U.S. at 373 (footnote omitted).

And it would render application of the Commission's procedural requirements meaningless. As the Board majority aptly notes, its decision cannot be based upon the absence of sufficient information to di sprove that there could be at some time in the future sufficient information to lead to significantly different results of the Pilgrim environmen tal analysis. To do so would require proof of a negative and pl ainly stand adjudicative principles on their head. LBP-11-35 at 69 (emphasis added).

B. The Commission's Reopening Standards Comply with the AEA The Commonwealth erroneously claims that that Board majority's ruling "denied . . . its AEA hearing right on" its Fukushima claims. Brief at 27 (citing UCS II and New Jersey Envtl.

Fed'n). The Commission has explicitly rejected the claim that its reopening standards violate the AEA right to a hearing on material licensing is sues. "'[Section 189(a)'s hearing requirement does not unduly limit the Commission' s wide discretion to structure its licensing hearings in the 16 interests of speed and efficiency.'"

55 Further, "[t]he hearing righ t provided in section 189(a) is not automatic - our rules appropriately require th e identification of specific factual support to justify reopening."

56 The Third Circuit has since reaffirmed this precedent.

57 Thus, the Com-monwealth itself is not guaranteed an adjudicato ry hearing on its allegedly new and significant information merely by raising that information and stating that it is new an d significant. Rather, "the courts are 'obliged to defer to the operating procedures employed by an agency when the governing statute requires only th at a 'hearing' be held.'"

58 Were this not the case, the NRC would be required to hold a formal adjudicatory hearing every time someone alleged the exis-tence of new and significant information.

59 C. The Commonwealth Raises Multiple Cl aims Beyond the Scope of This Li-cense Renewal Proceeding On appeal, the Commonwealth impermissibly seeks to raise current licensing basis

("CLB") issues that are beyond the scope of lic ense renewal. The Co mmission has specifically limited the safety review in license renewal proceedings to the matters sp ecified in 10 C.F.R. §§ 54.21 and 54.29(a), which focus on managing the aging of certain systems, structures, and com-ponents, and the review of time-limited aging analyses.

60 Thus, the potential effect of aging is the issue that essentially defines the scope of license renewal proceedings.

61 Contrary to this well-established precedent, the Commonwealth seeks to litigate the NRC's Fukushima Task

55 Oyster Creek, CLI-08-28, 68 N.R.C. at 677, quoting Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1448 (D.C. Cir. 1984) ("UCS I

"). 56 Oyster Creek, CLI-08-28, 68 N.R.C. at 677-78.

57 New Jersey Envtl. Fed'n, 645 F.3d at 232.

58 Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), quoting USC II, 920 F.2d at 54.

59 In the context of this proceeding, the Commission has made clear that such is not the case. See CLI-10-14 at 36.

60 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 7-8 (2001). Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 N.R.C. 358, 363 (2002).

61 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004).

17 Force's preliminary recommendations for strengthening the NRC's regulatory framework and safety regulations, which are subj ect to final Commission action (see CLI-11-05 at 30) and con-cern CLB issues. For example, the Commonwealth asserts that the majo rity decision "ignored new and significant information identified by the NRC's own Task Fo rce, which found that safety at U.S. nuclear plants should be improved and additional mitigation measures ordered, in light of the lessons learned from Fukushima." Brief at 2. See also id. at 8-9; 10-12; 17-19. The Task Force recommendations concerned potential changes in safety regulations and future safety enhancements to nuclear plants whos e "continued operation and continued licens-ing activities do not pose an imminent risk to public health and safety

." Task Force Report at vii (emphasis added); see also id. at 73. The Task Force Report did not address environmental is-sues, nor did it look at Fukushima through the lens of a SAMA analysis. At bottom, the Com-monwealth's assertions are simply attacks on the standards for issuance of a renewed license in 10 C.F.R. § 54.29. Such collateral attacks on an NRC rule are impermissible. See 10 C.F.R. § 2.335. As such, the CLB issues raised in the Task Force Report and repeated by the Common-wealth and Dr. Thompson - such as spent fuel pool instrumentation and accident mitigation, hardened vents, and hydrogen control and mitigation - are outside the scope of this proceeding

and therefore fail to show any error of law or fact in the Board majority's ruling.

62 D. The Commonwealth Provides No Legitimate Basis to Disturb the Rulings Re-jecting Its Contention None of the Commonwealth's remaining arguments on appeal demonstrate any clear er-ror of fact, error of law, or other defect in the Board majority's rulings rejecting the Contention.

62 In any event, the Commission has taken action in response to the Task Force's recommendations. In response to the Task Force's recommendations, the Commission "directed further Staff action, including longer-term review of the implications of the accident for U.S. facilities." CLI-11-05 at 32. Further, "the NRC may implement changes to its regulations and regulatory processes," which "may be accomplished in a variety of ways, such as via issuance of Commission orders, or by formal changes to our regulations, all pursuant to our normal processes." Id.

18 As an initial matter, the Commonwealth wrongly asserts that the majority inappropriately applied a "heightened" standard of review and "evaluated and rejected the merits of the Common-wealth's expert opinion - at the contention admission stage of this proceeding." Brief at 12; see also id. at 23-28. Much more than contention admissibility is at issue here. The threshold ques-tion is whether the Commonwealth has met the Commission's stringent standards for reopening the record, which as previously discussed are consistent with NEPA and apply here.

63 Turning to the application of the reopening standards, the Board majority correctly ruled that the Commonwealth's claims were not timely raised, did not implicate a significant environ-mental issue, and did not demonstrate that a ma terially different result would have been likely had those claims been considered initially. First, the majority correctly found that the Common-wealth had completely failed to make any connection between its "macr oscopic observation of the overall frequency of material offsite radiological release for nuclear power plants worldwide and the event sequence analysis employed in the Pilgrim SAMA analysis." LBP-11-35 at 51-52 (footnote omitted); see also id. at 51 n.203, 53 n.207, 60, 64, 66. For this reason, the majority ruled that the Commonwealth's claims did not provide "any new information respecting the Pil-

63 The evidentiary burden required to reopen the record is akin to that required to withstand summary disposition, PFS, CLI-05-12, 61 N.R.C. 345, 348 (2005), which is much more rigorous than the lesser showing required for an admissible SAMA contention. Diablo Canyon, CLI-11-11, 74 N.R.C. at 19-20 (discussing its ruling in Pilgrim , CLI-09-11, 69 N.R.C. 529 (2009)). And the reopening standards are much more rigorous than for summary disposi-tion. Oyster Creek, CLI-08-28, 68 N.R.C. at 673-74 (aff'd, New Jersey Envtl. Fed'n) (rejecting an argument that the summary disposition standard should apply to reopening motions, ruling that to do so would "effectively excise the reopening and 'nontimely filing' standards and replace them with a reformulated section 2.710, stripped of its own timeliness requirements and applied to a post-decisional context for which it was not intended"). Thus, while not required to prove its contention, in this "post-decisional context" the Commonwealth must come forward with suffi-cient and timely evidence that, inter alia, "demonstrate[s] that a materially different result would be or would have been likely had the newly proffered evidence been considered initially." 10 C.F.R. § 2.326(a)(3). The Common-wealth failed to meet this very rigorous reopening standard, particularly in view of the extensive declaration pro-vided by Entergy. Further, the Third Circuit has explicitly rejected the argument raised by the Commonwealth here that an NRC "Board impermissibly adjudicated the merits of [a] challenge" by applying the NRC's reopening stan-dards to proffered evidence. New Jersey Envtl. Fed'n, 645 F.3d at 233-34 (emphasis added) (holding that the NRC licensing board appropriately weighed the evidence before it because Section 2.326 requires evidence of a signifi-cant issue for which prior consideration of the evidence "would have . . .likely" led to a materially different result).

19 grim plant." Id.

at 52.64 As such, the Commonwealth's assertion is reduced to claiming that ap-plying the macroscopic data leads to a much higher probability of severe ac cidents than that used in the Pilgrim SAMA analysis. But as the majority appropriately ruled, even at the outset of this proceeding, a direct experience computed frequency of severe reactor accident occurrence would have been well above that assumed in the Pilgrim SAMA analysis by a factor of five. LBP-11-35 at 52 n.206. Thus, the Commonwealth failed to show that it could not have raised the Contention earlier, 65 and as such the Contention is not timely.

66 Second, consistent with Commission precedent established in this proceeding on the showing required to challenge a SAMA analysis, 67 the majority ruled that the Contention failed to demonstrate that a materially different result would be obtained because the claims "fail[] to recognize or address the methodology by which the [Pilgrim SAMA analysis

'] probabilities of the various chains of events are developed and it fails to discuss how these methodologies might (let alone should) be adapted to utilize the macroscopic information." LBP-11-35 at 60, 62. As

64 The Commonwealth claims that the Board majority, by its ruling, inappropriately concluded that "real world ex-perience is irrelevant" and that "actual experience should not be used in probabilistic analysis." Brief at 3, 20; see also id. at 19, 21. However, the majority never ruled that real world experience was irrelevant to probabilistic analy-ses, but rather that the Commonwealth's direct experience "claim has a fatal flaw" in that "it fails completely to in-dicate how [its] 'direct experience' leads to any data affecting the [core damage frequencies] for the Pilgrim plant." LBP-11-35 at 51. In this respect, as noted in Entergy's Declaration, none of the five core-melt data points in Dr. Thompson's direct experience database are applicable to Pilgrim. Entergy Decl. at ¶ 34.

65 See, e.g., Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 N.R.C. 62, 76 (1992); Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 N.R.C. __, slip op. (Mar. 10, 2011) at 6 ("CLI-11-02") (quoting Oyster Creek, CLI-09-7, 69 N.R.C. at 271-72). See also 51 Fed. Reg. at 19,536 (explaining that under NRC case law "timely" is defined as "'whether the is-sues sought to be presented could have been raised at an earlier time'").

66 The Commonwealth also failed to demonstrate good cause for its late Contention because it was untimely, and the balance of the remaining late factors does not overcome this failure. LBP-11-35 at 64. The majority ruled that a new hearing would unduly broaden and delay the proceeding, id., which is consistent with the Commission's recent ruling that "the introduction of a new contention, well after the contested proceeding closed, would broaden the is-sues and delay the proceeding." Vogtle, CLI-11-08 at 18. The Commonwealth does not dispute this ruling.

67 The "SAMA analysis is a site-specific mitigation analysis" of the "mean estimated values" of consequences for postulated accident scenarios," and "[u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety en-hancements are cost-effective to implement. Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 317 (2010) (emphasis added and in original).

20 stated by the majority, the only basis provided by Dr. Thompson was a "statement of belief" lacking in "factual or technical basis."

68 Id. Much more is required to reopen a closed record, see note 63 supra , particularly given Entergy's extensive declaration di scussed further below.

Third, the Board majority correctly ruled that the Contention failed to raise any signifi-cant, let alone grave, issue. Consistent with Commission precedent, 69 the issues raised were not grave because the Commonwealth and Dr. Thompson "fail[ed] completely to implicate any par-ticularized threat to public safety at the Pilgrim plant." LBP 35 at 54. Also consistent with Commission precedent, 70 the Board majority ruled that Dr. Thompson had "merely point[ed] to reasons why he believes consideration of information from the Fukushima accident would lead to revisions to the Pilgrim SAMA analysis that, in turn, could lead to other SAMAs becoming cost effective," which amounted to "bare and un supported, and therefore speculative" statements that "cannot provide the requisi te support for reopening the cl osed record." LBP-11-35 at 54 (emphasis in original and adde d, respectively) (footnote omitted). Finally, the Board majority ruled that, while the Commonwealth and Dr. Thompson "aver[red] that other SAMAs might be-come cost effective," they "indicate[d] neither any particular positive environmental impact from any such implementation nor any specific negative environmental impact from failure to do so"

68 For this same reason, the majority also correctly found the contention inadmissible under Section 2.309(f)(1)(vi) for failing to demonstrate any genuine dispute on a material issue. LBP-11-35 at 65-67; see Callaway, CLI-11-05 at 33 ("mere conclusions or speculation will not suffice" to support an admissible contention).

69 "[E]xceptionally grave" means "'a sufficiently grave threat to public safety.'" 51 Fed. Reg at 19,536 (emphasis added) (quoting Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358, 365 n.10 (1973)).

70 PFS, CLI-06-3, 63 N.R.C. at 29 (equating the standard for raising a significant environmental issue under Section 2.326 with the standard that governs whether supplementation of an EIS is required); Oyster Creek, CLI-08-23, 68 N.R.C. 461, 486 (2008) (rejecting a motion to reopen where movants provided only mere speculation that the con-tention might materially alter conclusions in the final safety evaluation report); Callaway, CLI-11-05 at 33 ("[M]ere conclusions or speculation will not suffice" to support an admissible contention, and "[a]n even heavier burden ap-plies to motions to reopen" (citing Oyster Creek, CLI-09-7, 69 N.R.C. at 286-87).

21 and thus failed "to paint the re quired 'seriously different picture of the environmental land-scape.'" Id.

at 57 (quoting CLI-11-05 at 31). See also id. at 62-63.

71 In addition to the reasons set forth by the Board majority, Entergy proffered extensive evidence that the Commonwealth's claims failed to comply with Section 2.326. Among other evidence, Entergy showed that Dr. Thompson's "direct experience" method for calculating core damage frequency ("CDF") is not a scientifically acceptable approach for determining the CDF for a specific plant in that it ha s no basis in logic, has never been used to calculate a CDF, and violates fundamental precepts of PRA analysis long established and applied by the NRC. En-tergy Decl. at ¶¶ 18-32. A long line of NRC regulatory precedents (see Entergy Decl. at ¶ 25) makes clear that PRAs and the CDFs calculated by PRAs are to be based on plant-specific de-sign, operation and site-specific considerations. Cont rary to this long line of NRC precedent, Dr. Thompson's direct experience CDF method would ignore these significant differences in plant design and operation and site characteristics that directly affect the probability of a core damage event. Instead, with no explanation or rationale, Dr. Thompson would establish one CDF for all plants even though, for example, they may never be subject to a tsunami. Entergy Decl. at ¶¶ 16-24, 33-34. Stated differently, no matter how many severe accident mitigation features that Pil-grim or any other plant adds, the risk of core damage cannot be improved beyond the "direct ex-perience" CDF established for all plants. Id.

at ¶ 22. Such a conclu sion defies logic. Moreover, Entergy demonstrated that the Pilgrim SAMA analysis accounts for severe ac-cident radiological releases that are much larger than the reported releases from all three dam-aged Fukushima units combined. As such, the co nsequences of the severe accident scenarios

71 Consistent with Commission precedent that failure to supply affidavits "fully" compliant with Section 2.326(b) is sufficient grounds to reject a contention, Vogtle, CLI-11-08 at 9 (emphasis added), the majority correctly ruled that this requirement was not met because, for the reasons set forth above, Dr. Thompson failed to provide any technical and factual basis demonstrating the existence of a significant environmental issue or that a materially different result would be likely. LBP-11-35 at 62-63.

22 considered in the Pilgrim SAMA analysis more than bound the severe accident conditions that occurred at Fukushima, and the results of any reanalysis of the Pilgrim SA MA analysis to take Fukushima into account would remain unchanged. Entergy Decl. at ¶¶ 89-91. On appeal, the Commonwealth fails to demonstrate that the Board majority made any clear error of fact or error of law. The fundamental premise of the Commonwealth's alleged er-rors is that the Board majority improperly applied a heightened standard of review (Brief at 23-28). But as discussed above, su ch a heightened standard is wholly appropriate under the Com-mission's reopening standards and fully consistent with NEPA. Also, the alleged legally errone-ous primary findings of the Board majority claimed by the Commonwealth (Brief at 28-30) fail to show any clearly erroneous factual errors that would require revi ew or be reversible.

First, the Board majority did not find Dr. Thompson's direct experience analysis untimely simply because it included the core melts at Chernobyl and Three Mile Island. Brief at 28. Rather, the majority was clear that, even before Fukushima, a dire ct experience analysis would result in a CDF a factor of five times larger than that assumed in the Pilgrim SAMA analysis.

LBP-11-35 at 52-53.

Second, claiming that the NRC's own review of Fukushima lessons learned "exposed the weaknesses in all U.S. reactors, including those like Pilgrim with designs similar to Fukushima," the Commonwealth disputes the majority's ruling that it provided "no linkage" between its mac-roscopic observations of Fukushima and Pilgrim's SAMA analysis. Brief at 29. This claim pro-vides no basis for reversal. As previously di scussed, the Task Force Report concerned safety-related, CLB issues that are outside the scope of this proceeding (and, in any event, provide rec-ommendations for how the safety of plants already deemed safe could be further enhanced).

23 Third, the Commonwealth's assertion that it showed that a materially different result would be likely because Dr. Thompson's "direct experience" method would result in the ex-pected benefits of a particular SAMA increasing by a factor of ten (Brief at 29) misstates Dr. Thompson's report.

72 More importantly, it does not dispute the majority's findings that Dr. Thompson's direct experience method is nothing more than mere speculative belief lacking suf-ficient technical or factual basis, and is otherw ise devoid of any explanation of how the direct experience method - which by its very nature woul d apply to every nuclear power plant in the world - should apply to Pilgrim. The Commonwealth's simplistic and speculative assertion that the benefit for every Pilgrim SAMA should be multiplied by ten, regardless of its site-specific characteristics, and thus may result in more SA MAs becoming potentially cost beneficial contra-venes clear Commission precedent that the SAMA analysis is "site specific," CLI-10-11, 71 N.R.C. at 317, and otherwise falls far short of the demonstration required to reopen the hearing record, particularly in view of Entergy's declaration. See Entergy Decl. at ¶¶ 18-36.

Fourth, the Commonwealth erroneously claims th at it raised significant information (Brief at 30) based on the concurrence's assertions that "there is insufficient information to con-clude that consideration of relevant Fukushima issues could not lead to significantly different analysis of the environmental c onsequences of renewing the pilgrim operating license," and that "the Commonwealth has shown at least some likelihood that information on Fukushima could have some such impacts," LBP-11-35 at 76 (em phasis in original and added). The concur-rence's assertions amount to the same sort of speculation that the Commission has repeatedly ruled is insufficient to reopen the record (and therefore insufficient to present any different (let

72 The 2011 Thompson Report nowhere states that, after applying the "direct experience" CDF, the benefit from fil-tered venting would rise from $872,000 to $8,720,000. In fact Dr. Thompson's Report completely ignores the Pil-grim SAMA analysis of the cost-benefit of installing a filtered vent. Nowhere in his report does he address the Pil-grim SAMA analysis of filtered venting or assert any specific deficiency in the analysis based on Fukushima. See Thompson Report, Issue #6: Filtered Venting of Reactor Containment, at 28-29; Entergy Decl. at ¶¶ 92-99.

24 alone seriously different) picture of the environmental lands cape). Stated succinctly, even if cor-rect - which they are not - they do not "demonstrate that a materially diffe rent result would be or would have been likely had the newly proffered evidence been considered initially" as required by the rule. 10 C.F.R. § 2.326(a)(3) (emphasis added).

E. The Board Majority Correctly Denied the Commonwealth's Waiver Petition The majority correctly rejected the Waiver Petition because the Commonwealth's claims were not unique to Pilgrim. LBP-11-35 at 15-

16. The Commonwealth does not challenge this ruling, and in effect acknowledges its correctness in asserting that the context for the Commis-sion's "review of the lessons learned from Fukushima" is "for all U.S. nuclear plants." Brief at 29 (emphasis in original). Moreover, the Board majority's ruling that the Commonwealth failed to raise a signifi-cant environmental issue (for which the Commonwealth shows no clear erro r) would apply to the criteria for rule waiver.

73 Contrary to its suggestion in its Brief at 29, the Commonwealth pro-vided no new information based on Fukushima that would negate the Commission's determina-tion in its 2008 Rulemaking Denial (affirmed by the Second Circuit) that the risk of spent fuel pool fire is "very low". 73 Fed. Reg. at 46,207.

74 The Commission's conclusion was based on "[s]tudies conducted over the last three decades [that] have consistently shown that the probabil-ity of an accident causing a zirconium fire in an SFP to be lower than that for severe reactor ac-cidents." Id. Dr. Thompson's Report, relied upon by the Commonwealth to support its claims, neither mentions these extensive studies nor makes any attempt to say wh ether they are in any-

73 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 N.R.C. 551, 559-560 (2005) (quotations and citations omitted) (requiring demonstration of a significant safety problem for rule waiver). For waiver of an environmental rule, this would require demonstration of a significant environmental issue. 74 As previously addressed, the Commonwealth's mere claim of new and significant information does not negate the Commission's Category 1 determination for the environmental impacts of spent fuel pools. Vermont Yan-kee/Pilgrim, CLI-07-3, 65 N.R.C. at 21; Pilgrim, CLI-10-14 at 36.

25 way affected by Fukushima. Entergy Decl. at ¶¶ 44, 46. Further, Dr. Thompson's claims rest on the same 50% conditional probability of a spent fuel pool fire in the event a severe reactor acci-dent rejected by the Commission in its Rulemaking Denial. See Entergy Decl. ¶¶ 39, 59-60. Furthermore, the "direct experience" from Fukushima corroborated the Commission's de-termination that there would be "a significant amount of time" from the initiating event to the possible onset of a zirconium fire, "thereby prov iding a substantial opportunity for both operator and system event mitigation." Rulemaking Denial, 73 Fed. Reg. at 46,208.

75 In fact, there were no spent fuel pool zirconium fires at Fukushima, and available eviden ce shows that the spent fuel pools survived the accident "nearly undamaged." Entergy Decl. at ¶¶ 56-63. In short, the Commonwealth provided no new information to show that Fukushima raises any significant environmental issu es concerning spent fuel pools that were not previously ad-dressed by the Commission.

IV. CONCLUSION For the foregoing reasons, the Commission should reject the Commonwe alth's Appeal. Respectfully Submitted, /signed electronically by Paul A. Gaukler/

________________________________

David R. Lewis

Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW

Washington, DC 20037-1128

Tel. (202) 663-8000 E-mail: paul.gaukler@pillsburylaw.com Dated: December 19, 2011 Counsel for Entergy

75 As noted in the Commission's Rulemaking Denial, following September 11, 2001, all U.S. nuclear utilities have been required by Commission Order (Mitigating Strategies Requirements from Order EA-02-026, Section B.5.b.) to establish a range of mitigative measures to respond to events that could lead to a serious accident, including the si-multaneous loss of offsite and onsite power. These required mitigative measures include providing an independent portable power supply, external to the plant, to pump makeup water from different external sources to the spent fuel pool. Entergy Decl. at ¶¶ 50-56.

403220018v6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR )

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of Entergy's Answer Opposing the Commonwealth's Appeal of LBP-11-35, dated December 19, 2011, was provided to the Electronic Information Exchange for service on the individuals below, this 19th day of December, 2011.

Secretary Att'n: Rulemakings and Adjudications Staff

Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

hearingdocket@nrc.gov

Office of Commission Appellate Adjudication Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAmail@nrc.gov Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Ann.Young@nrc.gov

Atomic Safety and Licensing Board Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Richard.Cole@nrc.gov Administrative Judge Dr. Paul B. Abramson Atomic Safety and Licensing Board

Mail Stop T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Paul.Abramson@nrc.gov 2 Susan L. Uttal, Esq.

Andrea Z. Jones, Esq.

Brian Harris, Esq.

Beth Mizuno, Esq.

Office of the General Counsel

Mail Stop O-15 D21

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Susan.Uttal@nrc.gov ; andrea.jones@nrc.gov ;

brian.harris@nrc.gov ; beth.mizuno@nrc.gov

Matthew Brock, Assistant Attorney General Commonwealth of Massachusetts Office of the Attorney General

One Ashburton Place

Boston, MA 02108 Martha.Coakley@state.ma.us Matthew.Brock@state.ma.us

Ms. Mary Lampert 148 Washington Street

Duxbury, MA 02332 mary.lampert@comcast.net Sheila Slocum Hollis, Esq.

Duane Morris LLP 505 9th Street, NW

Suite 1000

Washington, DC 20006 sshollis@duanemorris.com Mr. Mark D. Sylvia Town Manager

Town of Plymouth

11 Lincoln St.

Plymouth, MA 02360 msylvia@townhall.plymouth.ma.us

Richard R. MacDonald Town Manager 878 Tremont Street

Duxbury, MA 02332 macdonald@town.duxbury.ma.us Chief Kevin M. Nord Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street

P.O. Box 2824

Duxbury, MA 02331 nord@town.duxbury.ma.us

Katherine Tucker, Esq.

Law Clerk, Atomic Safety and Licensing Board Panel

Mail Stop T3-E2a

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Katie.Tucker@nrc.gov

/signed electronically by Paul A. Gaukler/

_____________________________

Paul A. Gaukler