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NSE 515

Massachusetts v. NRC was a case involving contention over licensing renewal for Pilgrim Nuclear Power Plant located near Plymouth Massachusetts. In the wake of the Fukushima accident, concerns about plant safety, especially the safety of its stored spent fuel, came to public attention. In 2012, the plant was undergoing a license renewal review with the NRC. The Massachusetts attorney general (AG) brought these concerns to the NRC’s Atomic Safety and Licensing Board’s (ASLB) attention. However, the ASLB dismissed the issues and approved a twenty-year license extension for the plant. In response, the attorney general filed appeals first to the NRC as a whole and then to the United States First Circuit Court of Appeals arguing that the NRC had not properly investigated concerns over safety. Both appeals were denied.

Concerns existed on both sides of this case. The plaintiffs were concerned that a plant accident could lead to a loss of cooling for spent fuel, which would accompany potential large releases to the public. They felt that this threat needed immediate attention and should come before plant operation. On the other hand, the NRC felt that its established processes were being undermined. In particular requests to suspend licensing were submitted despite the fact that the NRC had methods for improving plant safety that did not involve licensing. The state would effectively create double jeopardy for the NRC, bogging down its normal operation.

Summary

The Pilgrim plant operating company, Entergy, has frequently faced opposition from a local activist group known as Pilgrim Watch. Pilgrim Watch had previously contested the application for license renewal in 2006, but the issues had been closed in 2008. After the Fukushima accident in 2011, Pilgrim Watch filed a contention to the previous decision, which challenged Entergy’s analysis of severe accident mitigation alternatives (SAMAs). The NRC supported Entergy’s analysis and began to move forward with renewal. However, the state AG filed for a stay of the renewal process, in the hopes that the NRC would complete its post-accident analyses before renewing Pilgrim’s license. The AG also submitted an alternative plan for action on the Fukushima events. Entergy responded answering or disagreeing with all associated reasons listed for the stay in progress.

To summarize, the AG requested a stay in proceedings until the NRC published a report on the lessons learned from Fukushima. The stay would include suspension of any decisions on issuing construction permits and suspension of any hearings or opportunities for public comment. The AG argued that granting a stay would follow the NRC policy of allowing judicial review to run its course.

The ASLB responded by denying the request for a stay. The ASLB noted that the period of operation to which a license extension pertained would not begin for at least one year and may in actuality be several years from the point of approval. This would give plenty of time for a Fukushima report to be finalized. The ASLB viewed Fukushima review as unrelated to the licensing renewal. Additionally, there are channels in place for safety changes to be made in plant operation at any time. These channels do not require a delay of the license renewal. Because of these reasons, the board denied a stay, stating that proceeding with license renewal posed no serious risks to the general public.

The AG also requested a waiver of the spent fuel pool regulations in from of the larger NRC. This challenged the norm of viewing the spent fuel pool’s possible environmental impact as negligible. In particular, the AG felt that Entergy’s environmental impact and SAMA analysis was inadequate and had been shown to be so by the events in Japan. This would include rescinding regulations on spent fuel pools and allowing the public an opportunity to comment on the rulemaking of new regulations – before a license renewal was approved. The NRC responded by noting that the licensing renewal was designed to demonstrate capability of plant compliance with current regulations and not possible future regulations. As to the application of a waiver, there is are four criteria for waiving a regulation: the rule’s application would not serve the purpose it was intended for, there are alleged special circumstances, the circumstances are unique to the specific facility as opposed to general issues, and that the waiver is necessary from a safety perspective. All four criteria must be met for a waiver to take place. The NRC denied the waiver application stating that some of the criteria were not met. Among other lacking criteria, the AG provided no evidence that the spent fuel issue was specific to Pilgrim, which violates condition III. The NRC planned to address larger spent fuel pool issues after the Fukushima report was published and did not see it as necessary to hold up normal procedures.

The AG appealed the ASLB decision to the NRC as a whole. The NRC denied this appeal and extended Pilgrim’s license for twenty years in 2012. In 2013, the AG appealed this decision in the United States Circuit Court. The AG argued that the NRC did not provide in depth analysis of the post Fukushima spent fuel pool situation. The AG suggested that the NRC casually disregarded the possibilities of serious risk to the public by proceeding to renew the Pilgrim license. The court ruled in favor of the NRC, noting that it had met its requirements through the National Environmental Protection Act (NEPA) to investigate the impact of a possible accident. The court felt that the NRC operated within its framework and addressed the Fukushima analysis in a proper way that did not pose a danger to the public. The court ruled that the NRC had not violated any laws and had followed its own procedures properly.

This case seems to represent a reaction to a major disaster. The fear induced by the Fukushima accident may have prompted the state to ignore established channels for accident review. Calling for complete cessation of licensing activities was never really necessary given the NRC’s judicial process. Winning the case is not likely to be significant for the NRC. It likely faces several similar cases brought by anti-nuclear groups around the country each year. Rather, this case serves as a reminder of overwhelming checks and balances to the regulatory process, a process which places the safety of citizens as a priority.

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