REACTOR LICENSE RENEWAL

TO UNDERSTAND THE LICENSE RENEWAL PROCESS; CHECK ON THE STATUS OF CURRENT APPLICATIONS; AND LEARN 

HOW TO PARTICIPATE VISIT THE NRC'S WEBSITE http://www.nrc.gov/reactors/operating/licensing/renewal.html

PILGRIM NUCLEAR POWER STATION LICENSE RENEWAL APPLICATION PROCESS

Pilgrim Watch and the Massachusetts Attorney General took part in the adjudication process in Entergy’s license renewal application for the Pilgrim Nuclear Power Station. Lessons learned; what happened; how to access key filings?

Pilgrim Watch

Pilgrim Watch submitted five contentions for consideration, Pilgrim Watch’s Request for Hearing and Petition to Intervene in Pilgrim’s License Renewal.

1.  The Aging Management Plan does not adequately inspect and monitor for leaks in all systems and components that may contain radioactively contaminated water.

2.  The Aging Management Plan is inadequate because it does not adequately monitor for corrosion in the Drywell Container.

3.  The Environmental Report is inadequate because it ignores the true off-site radiological and economic consequences at Pilgrim in its Severe Accident Mitigation Alternative (SAMA) analysis.

4.  The Environmental Report fails to address Severe Accident Mitigation Alternatives (SAMAs) which reduce the potential for spent fuel pool water loss and fires.

5.  New Information shows that another twenty years of operations at Pilgrim may have greater off-site radiological impacts on human health than was previously known.

Two of these contentions concern defects in the Applicant’s Aging Management Plan, and three concern defects in the Applicant’s Environmental Report.  We believe that all of these contentions should be admissible and met the requirements of 10 CFR § 2.309.

To view Pilgrim Watch’s Motion to Intervene, see: NRC Document library at http://www.nrc.gov/reading-rm/adams/web-based.html. Adams Accession Number ML061630125

The Atomic Safety and Licensing Board (ASLB) accepted for adjudication two motions, Contention 1 and 3:

Contention 1 - regarding inspection of underground leaks: The board will limit the contention to buried pipes and tanks that fall within those described in 10 CFR part 54. As so limited, the admitted contention reads as follows: The Aging Management program proposed is inadequate with regard to aging management of buried pipes and tanks that contain radioactively contaminated water, because it does not provide for monitoring wells that would detect leakage.  

Contention 3- regarding Severe Accident Mitigation Analysis (SAMA): The board will admit the part of the contention having to do with the input data for evacuation, economic and meteorological information. As so limited, the admitted contention reads as follows: Applicant's SAMA analysis is deficient in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.

To read the Atomic Safety Board’s (ASLB) Ruling on Pilgrim Watch’s Motion to Intervene, see: NRC Document library at http://www.nrc.gov/reading-rm/adams/web-based.html. Adams Accession Number ML 062890259

To read the NRC Commission's Memorandum and Order CLI-09-11 (Requesting Additional Briefing) in response to Pilgrim Watch's appeal to the Commission regarding the ASLB acceptance of Entergy's Motion for Summary Disposition, see  Adams Accession Number ML 091555806

Contention 1: Sufficiency of Aging Management Plan Regarding Buried Pipes and Tanks that may contain radioactively contaminated water

Dispute

Entergy and NRC Staff argued that the Aging Management Program (AMP) is sufficient. The AMP Buried Piping and Tanks Inspection Program is described in Appendix A and B of Pilgrim's license renewal filing. It says that buried components will be inspected when excavated during maintenance, and that a focused inspection will be performed within ten years unless an opportunistic inspection occurs within this period. “Inspections via methods that allow assessment of pipe condition without excavation may be substituted for inspections requiring excavation solely for the purposes of inspection.”  These latter inspections can include phased array Ultrasonic Testing (UT) technology that provides indication of wall thickness for buried piping without excavation. The application says that use of such methods to identify the effects of aging is preferable to excavation for visual inspection, which could result in damage to coatings or wrapping.  (Application, B.1.2, page B-17).  However, UT methods to measure the thickness of the component, as stated by the applicant would not necessarily detect a hole or crack in the component.  And “array UT technology” implies testing only selected areas of the pipe/tank, not testing along the entire structure’s surface area.  Simply testing selected areas can miss holes, cracks or vulnerably thin sections of these components.  The application also states that these methods have not been used in the past, so there is no operating experience to rely on. The AMP requires that an additional inspection must occur sometime during the last 10 years of the original licensed operations. There are no specifics provided in the regulation concerning which components must be inspected, the sample size or location of the inspections.

Pilgrim Watch maintained that neither the Aging  Management Program for buried pipes and tanks, nor the inspections and tests performed as part of routine maintenance and operation, provide reasonable assurance that the effects of aging will be managed such that the buried pipes within scope and under consideration will perform their intended functions consistent with the current licensing basis for the period of extended operation. Therefore in order to protect public safety, the aging management program must be enhanced or supplemented with: (1) a more robust inspection system; (2) cathodic protection; (3) a base line inspection prior to license extension; and (4) an effective monitoring well program or the Application must be denied.

What happened?

The ASLB modified Pilgrim Watch’s original contention. As originally accepted by the Board in 2006, Petitioner’s Contention 1 said: “The Aging Management Program proposed is inadequate with regard to aging management of buried pipes and tanks that contain radioactively contaminated water, because it does not provide for monitoring wells that would detect leakage.” On October 17, 2007 (Summary Disposition Order), the ASLB modified its original order to say that leaks per se were beyond scope, and that the issue under Contention 1 was:  “…whether Pilgrim’s existing AMPs have elements that provide appropriate assurance as required under relevant NRC regulations that the buried pipes and tanks will not develop leaks so great as to cause those pipes and tanks to be unable to perform their intended safety functions.” On December 19, 2007 and January 11, 2008, the Board modified Contention 1 yet again, this time limiting it to leaks of radioactive water that were so great as to permit a design base failure.   The effect of the interlocutory decisions was to prevent Pilgrim Watch from including within scope a number of the key ways in which the Aging Management Program (AMP) did not provide reasonable assurance that radioactive or other leakage from buried pipes and tanks would comply with the current licensing basis (“CLB”) during license renewal.

The Board denied Pilgrim Watch’s Petition, Initial Decision, LBP- 06-848, October 30, 2008

Pilgrim Watch filed an appeal with the NRC Commission Pilgrim Watch Petition for Review of LBP-06-848, November 12, 2008 - Adams Accession Number ML083240599. In the appeal, Pilgrim Watch outlined the errors in the Board’s Decisions. In both its Interlocutory and Initial Decisions, the Board improperly limited the scope of the hearing to exclude specific CLB requirements that (1) leakage of radioactive water must be prevented and monitored to assure compliance with the CLB dose limits to the public and control of releases of radioactive materials to the environment and (2) whether or not leaks are “too great,” radioactive water leaks from buried pipes and tanks must be “promptly identified and corrected.” Leak prevention and detection is an implicit element in the AMP during license renewal. Also, in its Initial Decision, the Board applied an improper standard of “reasonable assurance;” and also improperly refused to consider evidence presented by Pilgrim Watch before the hearing was closed.

Pilgrim Watch subsequently filed, Pilgrim Watch's Notice to the Commission Regarding New and Significant Information Pertaining to Pilgrim Watch's Petition for Review of LBP-06-848, January 21,2010 to inform the Commission of the following. On December 2, 2009, the NRC staff issued SECY-09-0174. In SECY-09-0174, at 3, the staff reviewed current regulations and reached a conclusion diametrically opposed to that of the ASLB.  According to the Staff, “With regard to buried piping, the goals of current regulations are to ensure that the piping is able to perform its intended safety function by supplying sufficient fluid flow and to maintain inadvertent releases below licensee’s technical specifications or other applicable limits.” (Italics added) On pages 6 and 7, the staff says:   

On December 2, 2009, the NRC staff issued SECY-09-0174. In SECY-09-0174, at 3, the staff reviewed current regulations and reached a conclusion diametrically opposed to that of the ASLB.  According to the Staff, “With regard to buried piping, the goals of current regulations are to ensure that the piping is able to perform its intended safety function by supplying sufficient fluid flow and to maintain inadvertent releases below licensee’s technical specifications or other applicable limits.” (Italics added) On pages 6 and 7, the staff says:   

The license renewal rule requires applicants for license renewal to demonstrate that for each applicable structure, system, or component, the effects of aging will be adequately managed so that the intended functions will be maintained consistent with the current licensing basis for the period of extended operation.  (pg. 6, italics added)

Thus, SECY-09-0174 makes clear that the ASLB was incorrect in concluding that the only thing that matters about buried pipes and tanks was that are so great as to permit a design base failure.

Filings Available - NRC's Electronic Library

To view all the many filings in this case go to the NRC Document library http://www.nrc.gov/reading-rm/adams/web-based.html , begin “Adams Search” and enter “Pilgrim Watch.”

The major filings are as follows:

* Pilgrim Watch Presents Statements of Position, Direct Testimony And Exhibits Under 10 CFR 2.1207, March 3, 2008 ML080740410.

   Exhibits include, for example: Exhibit 1, Gundersen Decl. and CV; Exhibit 2, Ahlfeld Decl. and CV; Exhibit 14, Entergy's

   "Exhibit 5," Buried Pipes Tanks Inspection Monitoring Program (BPTIMP); Exhibit 25, approximate location Pilgrim's Monitoring Wells

* Evidentiary Hearing Transcript, April 2008 - Adams Accession Number ML081070329

* Pilgrim Watch Findings of Fact and Conclusions of Law, June 2009 - Adams Accession Number ML081650345

* Entergy Findings of Fact and Conclusions of Law, June 2009 - Adams Accession Number ML081640506

* NRC Staff Findings of Fact and Conclusions of Law, June 2009 - Adams Accession Number ML081610820

* ASLB Ruling on Contention 1, October 2008 - Adams Accession Number ML083040206

* Pilgrim Watch Petition for Review of LBP-06-848 - Adams Accession Number ML083240599

* Entergy’s Answer Opposing Pilgrim Watch’s Petition for Review, November 2008- Adams Accession Number ML083380181

* NRC Staff’s Answer Opposing Pilgrim Watch’s Petition for Review, November 2008- Adams Accession Number ML083300089

* Pilgrim Watch Reply to Entergy’s Answer in Opposition to Pilgrim Watch’s Petition for Review, December 2008- Adams Accession

   Number  ML083440445

* Pilgrim Watch Reply to NRC Staff’s Answer in Opposition to Pilgrim Watch’s Petition for Review, December 2008- Adams Accession

   Number ML083440446

“Lessons Learned”

(1) Scope: We advise that subsequent Petitioners do not restrict the motion to intervene to only those systems and components containing radioactively contaminated water; instead we recommend a motion with words to the effect, “The Aging Management Plan does not adequately inspect and monitor for leaks in all buried systems and components within scope or in the partially buried sections of systems and components within scope.”  

The result would be to bring into play not only buried components that may contain radioactive liquids but also the buried pipes and tanks for the fuel oil system, the station blackout diesel generator system, the fire protection system and the water inflow piping that do not contain radioactive material but are within scope. Additionally including the buried sections of components within scope would allow consideration of the below grade portion of spent fuel pools, for example.

(2)  Regarding the sufficiency of the Aging Management Program (AMP) consider if the program includes: robust inspection system, cathodic protection, a base line inspection prior to license extension, and an effective monitoring well program.

(3)  Is the adequacy of the Aging Management Program judged simply on whether it provides “reasonable assurance” that the components will not leak so much as to cause a design base failure (argued by the applicant and ASLB in Pilgrim’s case); or whether the standard is to assure that the Current Licensing Basis (CLB) will be maintained throughout the renewal period based upon 10 C.F.R § 54.21 and 10 C.F.R § 54.29 (Pilgrim Watch’s position).

(4) Does the Applicant provide the requisite level of proof to demonstrate “reasonable  assurance?” The applicant has the burden of proving reasonable assurance by a clear preponderance of the evidence.  Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-697, 16 N.R.C. 1265, 1271 (1982) (citing 10 C.F.R. § 2.325). 

Pilgrim Watch found that the majority of the Board failed to recognize that proving “reasonable assurance” with a “clear preponderance” of the evidence [North Anna Envtl., Coalition v. NRC, 533 F. 2d 655, 667-68 (D.C. Cir. 1976)] is a two step process. Without defining what level of assurance is “reasonable assurance,” there is no way in which any Board, or the NRC Commission, can determine whether Entergy, or any other licensee, has proved, by a “clear preponderance” that an undefined standard has been met. In short, if the standard for “reasonable assurance” is not defined, there is no way to determine if a “clear preponderance of the evidence” shows that the standard of “reasonable assurance” will be met.

Contention 3: Applicant's SAMA analysis is deficient.

Motion as accepted by Board

The Applicant’s SAMA analysis is deficient  in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.

Entergy's Motion for Summary Disposition - Appeal - Commission Remand

Entergy's Motion for Summary Disposition

Entergy moved for Summary Disposition on May 17, 2007. On October 30, 2007 a majority of the Board (Majority) granted Entergy’s motion [Memorandum and Order Ruling on Motion to Dismiss Petitioner’s Contention (Order)]. In an extensive dissent, Chief Judge Young correctly said, (Order, p. 40), “Notwithstanding applicable controlling precedent, my colleagues have in all practical effect weighed the evidence in an attempt to “untangle the expert affidavits and decide ‘which experts are more correct,’” and in doing so have also inappropriately found some of the information provided by Intervenors to be improper based on incorrect characterizations of what we did and did not exclude in admitting Contention 3…” Pilgrim Watch Petitioned the Commission to review the Order and conclude, as did Judge Young, that the Majority overlooked and ignored genuine issues of material fact that petitioners presented through their reputable experts and improperly granted Entergy’s Motion for Summary Disposition.

Meteorology: Entergy assumes a straight-line Gaussian plume distribution model whereas Pilgrim Watch’s expert, Dr. Bruce Egan, demonstrated that a variable trajectory model instead was appropriate for Pilgrim’s coastal location and would yield different results. See Declaration Dr. Bruce Egan, June 2007 attached to Pilgrim Watch’s Answer - Adams Accession Number ML071840568.

Note also that Dr. Egan has provided testimony in support of the New York Attorney General’s intervention on the SAMA analysis in the license renewal application for Indian Point. There he demonstrated that the straight-line Gaussian plume model again underestimated consequences and instead a variable trajectory model was required in Indian Point’s hilly terrain and river-side location.

Economic Consequences: The entire applicant’s cost calculations, and the Majority’s “findings,” assume Gaussian Plume meteorological inputs, and, as a result, that a radiological release will affect only a very small area –key hole or wedge. Proper inputs specific to Pilgrim indicate a far larger affected area (potentially including the densely populated centers of Boston, Providence and Cape Cod in summer); greater consequences/costs and a large increase in evacuation times.  These were ignored by the Majority’s cost-benefit analysis. In addition other costs were either ignored or underestimated. Pilgrim Watch showed that the inputs and the MACCS2 used by the applicant is not the proper diagnostic tool to assess economic consequences. The Petitioner went to David Chanin who coded the cost model of the MACCS and MACCS2. He stated [Chanin Declaration for Pilgrim Watch] that, ““I have spent many many hours pondering how MACCS2 could be used to calculate economic costs and concluded it was impossible. (and) Speaking as the sole individual who was responsible for writing the FORTRAN in question, which was done many years prior to my original work in SAND 96-0957, I think it’s foolish to think that any useful cost estimates can be obtained with the cost model built into MACCS2….The economic cost numbers produced by MACCS2 have absolutely no basis…If you want to discuss economic costs, I’d be glad to discuss SAND96-0957, but the “cost model” of MACCS2 is not worth anyone’s time.”

See Declaration David Chanin, June 2007 attached to Pilgrim Watch’s Answer - Adams Accession Number “ML071840568;”

http://chaninconsulting.com/index.php

Evacuation Time estimates: With respect to evacuation, the majority accepted the Applicant’s unrealistically low time estimates that relied on: (1) an inappropriate model for the Pilgrim site, the straight-line Gaussian Plume Model; and (2) the incorrect assumption of Entergy’s evacuation time estimate contractor, KLD Associates, that not everyone within 10 miles of Pilgrim would have to evacuate - instead only those 2-miles around and others in the direction of the narrow radiation plume, most within the 2-5 mile wedge.  KLD ignored shadow evacuation of those outside the 10 mile zone and KLD’s time estimates ignored peak traffic times. Increased exposure from delayed evacuation and consequent projected health related costs in the evacuee population would be greater if an appropriate variable trajectory plume model and correct assumptions were used in KLD’s time estimates. [See Pilgrim Watch’s Answer to Entergy’s Motion for Summary Disposition, June 29, 2007 at 10-23,25,30,33,41-43,54-55,57,59,65,72,87-89; and attached Egan Decl. at 3. 5-7;  Zeigler and Town of Duxbury Selectman Martecchini Decl. regarding “shadow evacuation” (June 20, 2007)- Adams Accession Number ML071840568].

Contrary to the Board’s conclusion, “there are facts at issue which can effect whether or not a particular SAMA (or mitigation) is cost effective.”

Pilgrim Watch's Appeal to NRC Commissioners (November 2008)

The fundamental issue was whether disputed material facts made granting Entergy's summary disposition improper. The Board majority misunderstood (or ignored) important material disputed facts, improperly weighed evidence in violation of summary judgment rules and failed to review evidence presented in light most favorable to PW.  

NRC Commissioner's Remand (March 26,2010) CLI-10-11

 The Commission over-ruled the Board and sent a portion of the contention back for hearing (CLI-10-11). A scheduling conference call will occur May 4, 2010. Pilgrim Watch field a Motion for Reconsideration April 5, 2010 in order to broaden the scope of the hearing to where it properly belongs. The Commission has yet to rule on the Motion for Reconsideration.

Pilgrim Watch's Motion for Reconsideration (April 5, 2010)

Pilgrim Watch argues that in the Commission's Order, sections III.A and B, the Commission Order correctly found that Contention 3 raised disputed issues of material fact with respect to “input data concerning … meteorological patterns” (“the majority’s decision is not sufficiently comprehensive to support the summary disposition of Contention 3;” “genuine factual issues remain.”  (CLI at 25)  Accordingly, the Commission Order correctly reversed the majority’s summary dismissal of the meteorological patterns issue in Contention 3 and remanded the issue for hearing. (CLI at 26)

However, the Commission Order went beyond whether summary disposition was justified. The Commission rewrote Contention 3 to limit “input data concerning ….economic consequences” to exclude any input data concerning the effects of a spent fuel accident; and, even in the NRC’s limited accident scenario, to exclude inputs concerning decontamination/interdiction clean-up costs and health costs, all of which are indisputably “economic consequences. (CLI at 28-30). The Commission Order went on to further limit input data concerning economic costs “to the extent that … meteorological patterns may materially call into question the relevant economic cost and evacuation timing conclusions in the Pilgrim SAMA analysis.” (CLI at 36-37)

The Commission’s decision to rewrite Contention 3 and to limit the inputs that require “further analysis” was wrong, could not have been reasonably anticipated by Pilgrim Watch, and should be reconsidered.

Filings

To view all the many filings in this case go to the NRC Document library http://www.nrc.gov/reading-rm/adams/web-based.html , begin “Adams Search” and enter “Pilgrim Watch.”

The major filings are as follows:

Pilgrim Watch’s Motion to Intervene (see Contention 3) May 2006, Adams Accession Number ML061630125

Pilgrim – Entergy’s Motion for Summary Disposition of Pilgrim Watch Contention 3, June 2007- Adams Accession Number ML071440321

Pilgrim Watch Answer Opposing Entergy’s Motion for Summary Disposition of Pilgrim Watch Contention 3, June 2007- Adams Accession Number ML071840568

NRC Staff Response to Entergy’s Motion for Summary Disposition of Pilgrim Watch Contention 3 - Adams Accession Number ML071800194

Petition for Review:

Pilgrim Watch Petition for Review of LBP-07-13, Memorandum and Order (Ruling On Motion To Dismiss Petitioner’s Contention 3 Regarding Severe Accident Mitigation Alternatives), 2-1 Decision, October 30, 2007-Adams Accession Number ML083240599

NRC Commission's Memorandum and Order CLI-09-11 (Requesting Additional Briefing):

To read the NRC Commission's Memorandum and Order CLI-09-11 (Requesting Additional Briefing) in response to Pilgrim Watch's appeal to the Commission regarding the ASLB's acceptance of Entergy's Motion for Summary Disposition, see  Adams Accession Number ML 091555806

Pilgrim Watch's Brief in Response to CLI-09-11 (Requesting Additional Briefing), see  Adams Accession Number ML091830846

Entergy's Brief in Response to CLI-09-11, see  Adams Accession Number ML091820329

NRC Staff's Initial Brief in Response to CLI-09-11, see Adams Accession Number ML091770296

Pilgrim Watch's Brief in Response to Entergy's Response to CLI-09-11, see Adams Accession Number ML091950452

Pilgrim Watch's Brief in Response to NRC Staff's Initial Brief in Response to CLI-09-11, see Adams Accession Number ML091950450

Entergy's Reply to Pilgrim Watch's Brief in Response to CLI-09-11, see Adams Accession Number ML091950451

NRC Staff's Reply to Pilgrim Watch's Brief in Response to CLI-09-11, see Adams Accession Number ML091880017

 CLI-10-11 Memorandum and Order, see NRC Electronic Library, NRC Government Reading Room, Commission Orders 2010

Pilgrim Watch Motion for Reconsideration of CLI-10-11, see Adams Accession Number ML00950489

Primary “lessons learned”

(1) Meteorologist: Engage a meteorologist and become familiar with the expert declarations filed in Pilgrim’s and Indian Point’s License Renewal Adjudications so that you will understand whether the plume distribution model used by the Applicant was inappropriate and served to minimize consequences.

(2) Computer Code: Determine if the applicant used the MACCS or MACCS2 computer code and if so learn about the inherent assumptions and deficiencies in those codes.

Contention 4: The Environmental Report fails to address Severe Accident Mitigation Alternatives (SAMAs) which reduce the potential for spent fuel pool water loss and fires.

Pilgrim Watch, like the Massachusetts Attorney General, filed a motion regarding spent fuel storage. Likewise the New York Attorney General’s Office and Riverkeeper have done likewise in Indian Point’s License Renewal Application.

What Happened?

The Atomic Safety Licensing Board ruled that they would not accept Pilgrim Watch’s motion for adjudication claiming that NRC rules governing license renewal do not allow adjudication on spent fuel pools in discussions regarding SAMA analyses. Pilgrim Watch explained in the Petition for Review why the Board’s ruling was incorrect. The Board referred to the wrong section of the rules, Section 6 in NUREG – 1437 (GEIS), when they should have looked at Section 5.

Specifically: The pertinent portion of the GEIS, Section 5, deals  with severe accidents.  Nothing in it excludes the spent fuel pool that has the largest inventory of radioactive material and hence the potential for the most severe consequences. Severe accidents are defined in Section 5 because of their severe consequences, and are “severe” whether regardless of whether they originate from the core or the spent fuel pool. The ASLB, Entergy and NRC Staff mistakenly relied instead on Section 6 of the GEIS that deals with normal operations.  Section 6 specifically says that, “Accidental releases or noncompliance with the standards could conceivably result in releases that would cause moderate or radiological impacts. Such conditions are beyond the scope of regulations controlling normal operations…” GEIS, Sec. 6.1. Severe accidents are not part of normal operations so Section 5 should apply.

Further Pilgrim Watch brought forward new and significant information that should have triggered the inclusion of the spent fuel in the environmental review.

Filings - Pilgrim Watch

Pilgrim Watch’s Motion to Intervene, Contention 4, May 2006- Adams Accession Number ML061630125

ASLB Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim watch (LBP-06-23) - Adams Accession Number ML062890259

Pilgrim Watch Petition for Review LBP-06-23 (Spent Fuel Storage) Memorandum And Order (Ruling On Standing And Contentions Of Petitioners Massachusetts Attorney General And Pilgrim Watch) Issued October 16, 2006 - Adams Accession Number ML083240599

Primary Lessons Learned

There is no need to reinvent the wheel; read:  the Massachusetts Attorney General’s filings in Entergy’s license renewal application of Pilgrim and Vermont Yankee; the New York Attorney General’s filings and Riverkeeper’s filings in Indian Point’s License Renewal Adjudication on spent fuel. Last see the comments to NRC’s Proposed Waste Confidence Decision Update NRC-2008-0482 . Especially valuable are: Comment (26) by Diane Curran Prepared for Texans for a Sound Energy Policy, et al. on Waste Confidence Decision Update and Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation and Comments by various Attorney Generals (comment 13, 15 and 21).

Massachusetts Attorney General

Commonwealth’s Contention on Risks of Spent Fuel Pool Accidents

The Massachusetts Attorney General filed a Motion to Intervene in Entergy’s License Renewal Application for Pilgrim and Vermont Yankee on the environmental consequences of spent fuel storage. The AGO argued that, “Entergy’s application failed to comply with the National Environmental Policy Act (NEPA) and other applicable law because the application failed to address new and significant information on the risk of severe accidents involving spent fuel pools caused by terrorist attacks, natural phenomena, equipment failure, or operator error.” The new and significant information included a 2001 Report by the National Academies of Sciences, an expert report prepared by Dr. Gordon Thompson on spent fuel pool vulnerability, and an expert report by Dr. Jan Beyea on the consequences of a pool fire- thousands of cancers and billions of dollars of economic damages contaminating well beyond the borders of Massachusetts. In light of this new information, the NRC must revisit the conclusion of the 1996 License renewal Generic Environmental Impact Statement (GEIS) that spent fuel pool storage posed no significant environmental impacts. The AGO also asked the NRC to reverse its policy of refusing to consider the environmental impacts of intentional attacks based upon the decision of the 9^th Circuit Court in the San Luis Obispo for Peace vs. NRC case.

Filings

Pilgrim- Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Pilgrim Nuclear Power Plant Operating Licensee Massachusetts, May 2006 -Adams Accession Number ML061630088

Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operating License , May 2006- Adams Accession Number 061640065

What Happened?

NRC Rejects Commonwealth’s Contentions: The Atomic Safety Board denied the Motion, October 16, 2006, claiming that the contention impermissibly challenged NRC’s regulation precluding consideration of the environmental impacts of spent fuel storage and terrorism in NRC license renewal proceedings. NRC had determined in the 1996 GEIS that spent fuel pool storage impacts are insignificant. The ASLB concluded that the Commonwealth must instead petition the NRC to change its rules or seek a waiver of the regulations.

Memorandum and Order (Ruling on Standing and Contentions of Petitioners   Massachusetts Attorney General and Pilgrim Watch) (LBP-06-23), October 2006-Adams Accession Number ML062890259

Commonwealth Files Alternative Rulemaking Petition: While disagreeing with the ASLB’s decision, the Attorney General Petitioned the NRC for a Rule Change.

Massachusetts Attorney General's Petition for Rulemaking to Amend 10 CFR part 51 (PRM 51-10), August 25, 2006, ADAMS Accession NO ML062640409.

Commonwealth files administrative appeals of ASLB decisions: To preserve its rights, the Attorney General filed administrative appeals to the NRC Commissioners.

Massachusetts Attorney General’s Brief on Appeal of LBP-06-20, October 3, 2006,   Adams Accession No. ML062860156 and ML063120343.

The Commission denied the appeal in CLI-07-03, January 22, 2007.

Initial Proceedings before 1^st Circuit Court of Appeals: Simultaneously the Attorney General appealed to the First Circuit Court of Appeals in Boston to make spent fuel storage part of re-licensing procedures for the Pilgrim Nuclear Power Station, Plymouth MA, and the Vermont Yankee Nuclear Power Station in Vernon, Vt. on March 22, 2007. The Commonwealth asked the Court to reverse and remand CLI-07-03 and direct the NRC to withhold any final decision in the license applications for Pilgrim and Vermont Yankee until the Commission considers and rules on the Commonwealth’s new and significant information in accordance with NEPA and AEA and any further rulings by the court and the Commission applies those considerations and rulings to these relicensing proceedings.

The Court determined that it could not rule because the NRC had not issued a final order regarding the rulemaking petition; and that the Commonwealth would have the opportunity in the future to raise these issues as an Interested State and, as appropriate, seek judicial review. NRC’s decision to dismiss the Commonwealth from the individual proceedings was not a final order with respect to the Commonwealth’s NEPA and AEA claims involving spent fuel pool accidents.

Subsequently in 2008 the NRC issued its Rulemaking Making Decision denying the Commonwealth’s Petition for Rule Change (PRM 51-10) as well as a parallel petition filed by the state of California (PRM 51-12).

See Notice of Denial of Petitions for Rulemaking PRM 51-10 and PRM 51-12, NRC ADAMS Accession No. ML081890124; Fed. Reg. 46,204, August 8, 2008, Rulemaking decision.

The Commonwealth and two other states have appealed the Rulemaking Decision, and those three appeals are pending in the US Court of Appeals for the Second Circuit.

See Massachusetts v. United States Nuclear Regulatory Commission, No. 08-2267

(1 st Cir. filed Sept. 30, 2008)(now under Order of transfer to the Second Circuit). State of New York v. United States Nuclear Regulatory Commission, No. 08-3903-ag (2nd Cir. Filed Aug. 8, 2008). Blumenthal v. United States Nuclear Regulatory Commission, No. 08-4833-ag (2nd Cir. filed Oct. 1, 2008).

In the appeal to the Circuit Court, the Commonwealth will argue that the NRC relied on extra-record evidence, classified studies, and other undisclosed documents never subject to public review or comment or an environmental impact statement process, and it offered only conclusory assurances without record support on the adequacy of mitigation measures to address spent fuel pool risks raised in the Commonwealth’s rulemaking petition. See the Preliminary Statement inserted below.

United States Court of Appeals for the Second Circuit, THE STATE OF NEW YORK; RICHARD BLUMENTHAL, ATTORNEY

GENERAL OF THE STATE OF CONNECTICUT; AND THE COMMONWEALTH OF MASSACHUSETTS, Petitioners, v.

UNITED STATES NUCLEAR REGULATORY COMMISSION; AND UNITED STATES OF AMERICA, Respondents, and ENTERGY NUCLEAR OPERATIONS, INC. Intervenor-Respondent. On Petition For Review Of Final Action Of The United States Nuclear Regulatory Commission-Dated: May 5, 2009 

PETITIONERS’ BRIEF and SPECIAL APPENDIX 

PRELIMINARY STATEMENT

"Nuclear power plants routinely store radioactive spent fuel in pools of water located outside the protective containment shells that surround nuclear reactors. In 1996, the Nuclear Regulatory Commission found in a generic environmental impact statement (“EIS”) that those pools have no significant environmental impacts and promulgated regulations providing that no further analysis of the impacts of spent-fuel pools would be required under the National Environmental Policy Act. As a result, when NRC conducts an environmental analysis of a nuclear power plant in connection with the renewal of a plant’s license, it relies on the 1996 generic EIS and does not conduct any plant-specific analysis of whether the plant’s spent-fuel pools have significant environmental impacts, regardless of the design or age of the pools or the effectiveness of the measures the plant takes to prevent or mitigate any such impacts.

In 2006 and 2007, Massachusetts and California filed rulemaking petitions asking NRC to reverse its 1996 generic finding that spent-fuel pools have no significant environmental impacts. The petitions presented new information — including a report issued by NRC staff showing that the spent fuel stored in a pool can catch fire, either by accident or due to a terrorist attack, and release significant amounts of radiation to the surrounding area. New York supported both of those petitions and submitted additional information showing that several spent-fuel pools, including the pools at the Indian Point nuclear power plant on the Hudson River, had leaked radioactive material. Connecticut, Vermont, and several other States also supported Massachusetts’s petition.

NRC refused to reconsider its 1996 generic finding that spent-fuel pools have no significant environmental impacts and denied the rulemaking petitions. NRC’s refusal was based on its findings that plant-specific mitigation measures made the risk of a spent-fuel pool fire very low and that plant-specific security measures made the risk of terrorist attack remote and speculative. NRC also found that it is not required to consider the environmental impacts of a terrorist attack when it renews a plant’s license because the license renewal would not be the proximate cause of such an attack. NRC’s decision did not discuss the environmental consequences of leaks from spent-fuel pools. 

In these consolidated petitions for review filed by New York, Massachusetts, and Connecticut, this Court should reverse NRC’s decision denying the rulemaking petitions. First, NRC’s reliance on plant-specific security and mitigation measures to uphold the determination in the 1996 generic EIS that spent-fuel pools have no environmental impacts contradicts NRC’s own finding in that EIS that those impacts could be analyzed on a generic basis, without considering any plant-specific measures. Second, the new information submitted by the States shows that the risk of a spent-fuel pool catching on fire by accident or due to intentional sabotage is neither remote nor speculative. And NRC must consider the environmental consequences of a terrorist attack because, although it would not be responsible for an attack, it has the ability to mitigate the consequences of an attack.

Third, NRC failed even to consider the effects of leaks from spent-fuel pools. Finally, in denying the rulemaking petitions, NRC relied primarily on a study that it had not released even in redacted form for public review, thus depriving the States of an opportunity to comment on the primary basis for NRC’s conclusions."

The ASLB then issued LBP-08-22 to resolve remaining issues before it and approve the license renewal. The ASLB determined that unless appealed LBP-08-22 shall become the final action of the commission and terminated the Pilgrim relicensing proceeding.

The Attorney General also filed a Petition for Review of LBP-08-22 with the NRC Commission, December 2008 arguing that the NRC cannot close out the Pilgrim relicensing while the question of whether it complied with statutory preconditions (NEPA, AEA)to relicensing is still being adjudicated in a separate pending proceeding.  Hence the NRC wither can defer concluding the relicensing until he litigation is completed and the court ruling is properly addressed in the relicensing or condition the license extension on compliance with the court ruling.

Petition for Review of LBP-08-22, December 1, 2008 Adams Accession Number ML083190045

Process - Lessons Learned

(1) Finances: The expense of litigation (filing, witness and legal fees) and lack of resources for many in the public result in the public’s inability to fairly participate in the process. Although the rules say that. “Where an Intervenor would call a witness but for the Intervenor's financial inability to do so, the Licensing Board may call the witness as a Board witness and authorize NRC payment of the usual witness fees and expenses. The decision to take such action is a matter of Licensing Board discretion which should be exercised with circumspection. If the Board calls such a witness as its own, it should limit cross-examination to the scope of the direct examination.” Consumers Power Co. (Midland Plant, Units 1 & 2),-ALAB-382, 5 NRC 603, 607-08 (1977). The problem of course is there are expenses beyond witnesses – filing /copying fees and legal fees; and, “the decision to take such action is a matter of Licensing Board discretion.” A solution would be for the NRC to assess all licensees to establish a “kitty” for Petitioners to tap in once they are accepted into the adjudicatory process and meet a pre-determined qualifying financial level.

(2) NRC Staff: The adjudication technically is between two parties, the Applicant and the Petitioner. The problem is that the NRC Legal and Technical Staff take an active role in all respects similar to the two parties – filing motions, replies, presenting witnesses, etc. In cases to date the NRC has taken the side of the Applicant so that the Petitioner is placed at an unfair disadvantage - 2 to 1. A solution to consider is to change the procedure so that the NRC Staff should simply be allowed to file amicus briefs, as appropriate.

(3) Document Research, Level Playing Field:  Petitioners are not given the same ease of access to ADAMS documents as the NRC Legal and Technical Staff – who only theoretically are neutral but in reality represent the Applicant. The NRC Staff can go straight to a "bundling" code...and get everything on a particular issue under review up on the screen in one index in one shot. The public is not given access to these bundles or codes; therefore to do research requires accessing each document as an individual search, wading through tons of extraneous and useless documents and then loading up a pdf on the world's slowest and most dysfunctional website. Petitioners need equal access.

(4)  NRC license renewal regulations are internally inconsistent- one section contradicts another. The regulations need to be updated to resolve inconsistencies and go out to comment before becoming finalized.

(5). The ASLB and NRC Staff fail to apply their own regulations: Spent fuel pool accidents are a prime example. They have consistently, and incorrectly, argued that all spent fuel issues are Category 1 and for all practical purposes “off the table.” Their own rules say otherwise.  The ASLB, NRC and industry look to the wrong section of the rules, Section 6 in NUREG – 1437 (GEIS), when they should look at Section 5.They point to Section 6 of the GEIS that specifically deals with “The Uranium Fuel Cycle and Solid Waste Management” under normal operations, rather than Section 5 of the GEIS, which deals with “Environmental Impacts of Postulated Accidents.” Section 5 includes definitions of “severe” and “accident” and does not limit these to reactor accidents in any way. Section 5 focuses on potential consequences to determine whether or not a potential accident is severe – and thus spent fuel pool fires are within the scope of a Severe Accident Mitigation Analysis.  The question is not what the source of the Severe Accident is rather the consequences – and the spent fuel pools have the largest inventory of radioactive materials and hence the greatest potential consequences in a severe accident.  Additionally a spent fuel pool accident can cause an accident in the reactor, greatly magnifying its potential consequences. (5) Hearings: During the so-called “informal hearings,” the ASLB alone asks the parties experts questions; it was noted in Oyster Creek’s and Pilgrim’s Hearings that there was not equal time given to the Applicant and Petitioner – the former getting the “lion’s share.” The solution to make the hearings more equitable is to change the rules so that cross examination is allowed along with opening and closing statements.

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Testimony Submitted by Richard Webster Legal Director, Eastern Environmental Law Center, To The Subcommittee On Clean Air And Nuclear Safety Committee On Environment And Public Works United States Senate, July 16, 2008

The Testimony presented to the Senate Subcommittee presents a long list of Petitioner’s views on the Nuclear Regulatory Commission’s reactor relicensing process. The paper presents testimony, starting with an outline of the current problems and recommendations for improvements. The relicensing process is deficient and there are severe weaknesses in the oversight of reactor safety. If not addressed, these issues will further undermine confidence in the NRC and raise the risk of an accident that could severely harm the public and the nuclear industry. Read the Testimony at http://www.nirs.org/reactorwatch/licensing/20080710testimonyrenrcreform.pdf

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Basics

The Atomic Energy Act (AEA) precludes the NRC from licensing any new nuclear power plant or re-licensing any existing nuclear power plant if it would be “inimical . . . to the health and safety of the public.” 42 U.S.C. § 2133(d).

National Environmental Policy Act (NEPA) requires that before licensing or re-licensing nuclear power plants, the NRC must evaluate, in an Environmental Impact Statement (EIS), the environmental impacts of licensing decisions that have a significant environmental impact. 42 U.S.C. § 4332(C). NRC regulations include the licensing of nuclear power plants among actions that require the preparation of an EIS. 10 C.F.R. § 51.20(b)(2).