ML062500147
| ML062500147 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 08/29/2006 |
| From: | Shems R New England Coalition, Shems, Dunkiel, Kassel, & Saunders, PLLC |
| To: | Atomic Safety and Licensing Board Panel |
| Giitter R | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, RAS 12204 | |
| Download: ML062500147 (12) | |
Text
DOCKETED USNRC
.-UNITED STATES
.UCLEAR. REGULATORY COMMISSION September 6, 2006 (3:37pm)
OFFICE OF SECRETARY Before the Atomic Safety and Licensing Board RULEMAKINGS AND
', ADJUDICATIONS STAFF In the matter Of.'
ENTERGY NUCLEAR VER.MONT YANKEE,.LLC
).
Docket No.,50-271-LR and ENTERY NUCLEAR.PRERATIONS, INC."
ASLB N6.06-849?03-LR Vermont Yankee Nuclear weraton
).§..t License Renewal Application,.,-.-.....
NEW ENGLAND COALITION, INC'S (NEC) MOTION TO FILE SUPPLEMETAL AND NEW AUTHORITY RE:;NECS CONTENTIONI, and REOUEST FOR LEAVE TO AMEND CONTENTION 1 OR FILE A NEW CONTENTION:,...
Pursuant to 10 C.F.R- § -.323*"' EC hereby moves to submit new and highly pertinent
'f.
supplemental authority lieY!9 to resoive the pending dispute regarding Contention I and/or its amendment. This infornmatiniS critical to Entery nswer.to NEC's contention.1 and to NEC's request for Leave to Amend Contention 1 or File a New Contention.
NEC moved to amend its Contention 1 (thermal impacts on water quality) or in the alternative file a new contention. Entergy and NRC staff opposed NEC's effort, in large part on the ground that the "partial" Clean Water Act § 316 variance submitted by Entergy is equivalent to an actual § 316 determination, andthat thede'nial of the variance for Entergy's proposed action is immaterial. Entergy and NRO staff offered a nonsensical interpretation of 10 C.F.R. § 51.53(c)(3)(ii)(B)to suppdrtisodh.gtoundssj'
";,b*
These arguments are now moot because Eritergymno longer has a current permit or CWA § 316 determination, partial or-otherwise.'.:Late:on thd 'afternoon of August 28, 2006, the Vermont Environmental Court, pursuant to its de novo review authority, stayed the expired permit amendments (that remained in temporary effect) that authored Entergy's increased thermal discharge. A copy of the Court's decision is attached as Exhibit A. The Court determined that Appellants have a substantial probability of success on the merits, TýkfLfrTE=
3c'4-104I
namely that VANR's issuance of the now-expired permit amendments (and hence, ANR's rationale - the "partial" 316 determination) was illegal. It also concluded that there is a "sufficient potential for irreparable injury" to fish caused by the increased thermal discharge throughout their lifecycle. The Court concluded that Appellants "demonstrate[d] a substantial probability that they will prevail on the merits," Decision and Order on Motion to Stay Permit Amendment Pending Appeal (Attached) at 2, and th'at:
Appellants have shown sufficient potential for irreparable injury to American Shad in the Connecticut River, both at present as the juveniles become accustomed to Cooler water temperatures prior to their migration down the River in the falls,. and in the summer of 2007 for the next generation of juveniles.
Id. at 3. Any increased thermal discharge is now prohibited regardless of time of year because of the potential impact on American shad and juvenile fish.
The Court went on to conclude that:
The best interests of the public will be served by granting the stay so that it is not only in effect for September and the first half of October, but so that it remains in effect if this matter is not resolved by the time that American shad return to the River in April to Spawn, for the 2007 component of the life cycle of*
the 2007 cohort ofjuvenile shad in the River.
Id.
In sum, there is now no argument that Entergy does not have a current CWA § 316 determination or an equivalent permit. The Court has stayed the VANR's issuance of the now-expired amended permit. The Court "is charged with considering the [Entergy's]
application de novo, applying the same substantive standards that the ANR is required to apply. The Applicant will bear the burden of proof that it qualifies for a waiver [§316 variance] of the'thermal effluent limitation otherwise applicable to it." Id.
2
Entergy must "assess the impact of the proposed action on fish and shellfish resources resulting from heat shock and impingement and entrainment," 10 C.F.R. § 51.53(c)(3)(ii)(B),
because it has neither a current CWA § 316 determination, partial or otlierwise (assuming that a partial determination exists), nor any equivalent permit authoring any increased thermal discharge. NRC Staff and NEC agree that Entergy has not performed the required cumulative impact assessment of its proposed increased thermal discharge for the 20-year period of its requested new license term. NEC Contention 1 Staff Answer to at 8 (June 22, 2006) ("The Staff does not object to the admission of this contention to the extent that it alleges that the Application does not contain an assessment of the impact of a one degree increase in thermal discharges on American shad during the renewal period.)."
Entergy or NRC staff may nonetheless argue that Entergy, for a moment, had a CWA
§ 316 variance. However, a partial determination is not the same thing as an actual determination. Full information is needed to make a complete § 316 determination and Entergy failed to provide the VANR with the information necessary for a complete determination. Amended Fact sheet at 4-5. The needed studies have been specified and requested. Id. More importantly, as NRC staff has repeatedly emphasized, the § 316 determination must be "current." 10 C.F.R.'§ 51.53(c)(3)(ii)(B). There is no current determination, variance, or equivalent permit. And, to the extent that'the VANR may have started down the road to issuing a determination, the Vermont Court has found it to be sufficiently defective to warrant a stay prior to review on the merits. A stay is an extraordinary remedy reserved for the few cases meeting the high standards requisite to a stay or preliminary injunction. Certainly, satisfaction ofl0 C.F.R. § 51.53(c)(3)(ii)(B) requires more than provision of an incomplete and significantly defective document that is 3
wholly without legal effect. Indeed, CWA §316's purpose is to "assure protection and propagation" of fish. 33 U.S.C. § 1336(a). As explained above, the.Court concluded that that ANR's incomplete document does the contrary;, it establishes the potential for irreparable injury to fish and juvenile fish. Any effort to characterize this now-worthless document as "assur[ing] protection and propagation" of fish would strain credulity.
NEC's Contention 1, "Entergy's Environmental Report insufficiently assesses the impacts of increased thermal discharges over the requested twenty-year license extension. 10 C.F.R. § 2.309(f)(1)(i)." remains unchanged. This motion does not change or amend either NEC's Contention 1 or its proposed amended/new contention. It merely provides new authority. Therefore, there is no need to amend Contention 1 or file an amended or new contention.
In any event, providing this new authority would meet all of the criteria governing amended and/or late-filed contentions. This motion is being filed within 10 days of the occurrence giving rise to this motion -- the August 28, 2006 issuance of the Court's decision.
10 C.F.R. § 2.323. Such authority was obviously not available to NEC (or any other party) until the afternoon of August 28, 2006. It is highly relevant, likely moots or resolves pending issues regarding Contention 1, and streamlines and expedites this proceeding. Certainly, this supplemental authority does not delay the proceeding. No party is prejudiced by the attached public document. Indeed, the Applicant does not object to informing the Board of this decision. Further, fairness, accuracy, and a sound and complete record compel consideration of this newauthority. There is no other forum available to NEC - its contentions are pending before the ASLB and this supplemental authority is critical to NEC contentions. No other entity can rule on NEC's contentions. 10 C.F.R. §§ 2.309(0(2) and (c)(1).
4
NEC reserves all rights to provide further analysis in the event that NRC Staff or Entergy take the unfounded and unnecessarily "form over substance" position that a citation of supplemental authority (See F.R.App.P. 286)) actually requires a new or amended contention -- a far more complex endeavor than doing the same before a Court of Appeals.
Research into this issue does not justify such a position and it is not reasonably anticipated.!
The undersigned certifies that consent was sought from the parties by e-mail sent at noon on August 29, 2006 to all representatives for each party. The Vermont Department of Public Service, the Massachusetts Attorney General, and the Town of Marlboro have informed NEC that they do not object. Entergy and NRC staff do not object to a filing informing the Licensing Board of the stay, but reserve the right to respond to arguments in the motion concerning relevance or any other new assertions or allegations.
August 29, 2006 New England Coalition by:
Z/7 71 -.
4,s4.CI Ronald A. Shems Karen Tyler (on the brief)
SHEMS DUNKIEL KASSEL & SAUNDERS PLLC For the firm Attorneys for NEC c:
service list Ray Shadis On August 23, 2006, NRC Staff moved to submit new exhibits in the Vermont Yankee uprate proceeding (ASLBP No. 04-832-02-OLA) pursuant to 10 C.F.R. §§ 2.232(a) and 2.1204. Section 2.1204 is not relevant to this filing. NEC is moving here pursuant to § 2,232(a).
5
08/28/2606 13:18 VT JUDICIARY PAGE 02 18028281695
.Attachment A STATE OF VERMONT ENVIRONMENTAL COURT In re: Entergy Nuclear/ Vermont Yankee Thermal Discharge permit amendment (Appeal of Connecticut River Watershed Council, Trout Unlimited (Deerfield/Millers 349 Ch.),
and Citizens Awareness Network)
(Appeal of New England Coalition on'Nudear Pollution)
(Cross-Appeal of Entergy Nuclear Vermont.Yankee, LLC)
LFJ EftO MIENTALMURt I
].Docket No. 89.4-06 Vtec I
I I
I.)
1 I
Decision and Order on Motion for Stay of Permit Amendment Pending Appeal Appellants and Cross-Appellant appealed from a decision of the Vermont Agency of Natural Resources (ANR)," approving an'amendment of a thermal disdarge permit issued to Entergy Nuclear Vermont Yankee,. LLC.
Appellants Connecticut River Watershed Council, Trout Unlimited (Deerfield/Millers 349 Ch.), and Citizens Awareness Network are represented by Patrick A.. Parenteau, Esq., David K Mears, Esq., and Justin E. Kolber, Esq.; Appellant New England Coalition on Nuclear Pollution is represented by
- Evan J. Mulholand, Esq.; Cross-Appellant-Applicant Entergy Nuclear Vermont Yankee, LLC is represented by Elise. N. Zoli, Esq., Barlara G. Ripley; Esq., Sarah Heaton
" Concahnon, Esq, and Gwyn Williams, Esq.; the*Windham Regional Commission appeared through James Matteau and John Bennett, who are not attorneys; the Vermont Agency of Natural Resources is represented by Catherine Gjessing, Esq. and Warren T. Coleman, Esq.;
S
.and the Natural Resources Board is represented by John H. Hasen, Esq. and Dahiel D.
Dutcher, Esq.
1
08/28/2086 13:18 18028281695 VT JUDICIARY PAGE 83 Appellants have moved to stay the permit amendment, pending the conclusion of the merits of this appeal. The permit was issued on March 30, 2006, and allows the thermal discharge from FEitergy Nuclear/Vermont Yankee to increase the temperature of the Connecticut River by an additional 1o F, within a defined measurement area or mixing
-zone, from June 16 through October 14 of each year.' Appellants argue that the stay will preserve the staus -quo of Applicants' previous permit conditions during this litigation, which is now scheduled to be heard in late January.and early February2 of 2007.
The Court must consider the movants'. likelihood or substantial possibility of success
- on the mierits of thisd*e novo appeal, irreparable injury that may occur in the absence of the stay, whether the grant of the stay will substantially harm other parties, and whether the stay will serve the best interests of the public. In re Allied Power & Light Co. 132 Vt. 554, 556 (1974), as discussed by*Justice Skogluid in issuing a stay during the pendency of the appeal in In re Sto water.
Petition Docket No. 2004-515 (Vt. Supreme Ct, April 7,2005).
Appellants have come forward with sufficient evidence to demonstrate a substantial possibility that they will prevail on the merits; that is, a sufficiently substantial possibility to examine and weigh the other factors to be considered in whether or not to grant a stay.
Unlike federaljudicial review of agency action, no presumption is afforded the fact that the The underlying permit of which this is an amendment expired on March 30, 2006; the renewal permit process is'ongoing and may result lt the issuance of a renewal permit before the close of 2006. If and when an appeal is filed from the issuance of the renewal permit, we will consider whether it should be consolidated with the present proceedings.
V.R.E.C.P. 2(b), and see V.R.E.C.P. 1.
At present, the following dates are being reserved for this trial: January 24-26, January 30 and 3 1, February 1 and 2; February 6-9, and February 13-16. Please be prepared
- to discuss whether fifteen trial days ivill be sufficient and whether the parties will be able to use these specific dates.
2
08/28/2006 13:18 18028281695 VT JUDICIARY PAGE 04 permit amendment was issued. The Court is not charged with determining whether the ANR's decision is supported by substantial eviderice in the record as a whole; rather, it is
- charged with considering the application de novo. applying the same substantive standards.
that the ANR is required to apply. The Applicant will bear the burden of proof that it qualifies for a waiver of the'thermal effluent limitation otherwise applicable to it.
Appellants have shown sufficient potential for irreparable injury to American shad i in the Connecticut River, both at present as the juveniles become accustomed to cooler
- water temperatures prior to their migration down the River in the fall, and in the summer of 2007 for the giowth of the next generation of juveniles.
On the other'hand, the-grant of the stay will not substantially harm other parties.
The consequence to the Applicant will only be a financial one, and consequently not irreparable by definition, in that energy that could otherwise have been sold wili.have to S.-be expended on the operation of the cooling towers. The Applicant will be able to operate under its previous permit during the pendency of its renewal permit application, as well as during the pendency of the present appeal over its thermal effluent waiver amendment application. The public will view the plume of water vapor from the cooling tower, but'no substantial harm has been shown to result from the. mere visibility of the plume to the public. No evidence of drought conditions or impairment of the River, and consequently
.no substantial harm to the public interest, has been shown to be occurring during present conditions, due to the removal of the cooling water and its evaporation into the atmo. sphere.
S-"The best interests of the public will be served by granting the stay so that it is not S"
only in effect for September and the first half of October of 2006, but so that it remains in effect if this matter is not resolved by the timethat adult American shad return to the River in April to spawnfor the 2007 component of thelife cycle of the 2007.cohort of juvenile shad in the River.
3
88/28/20886 13:18 18828281695 VT JUDICIARY PAGE 85 This stay will remain in effect until further order of the Court, without prejudice to any motions to arnenid or lift the.stay based upon evidence or arguments not alreadyimade to the Court in the present motion memoranda. The parties should expect that, if any motions are filed based on any potential trade-off of environmental consequences between the use of the air*(that Is, the cooling towers) and the use of the river water for cooling purposes, such motion will be scheduled for an evidentiary hearing.
Accordingly, based on the foregoing, it is hereby ORDERED anal ADJUDGED that Motion for Stay Is GRANTED until further order of the Court. We will hold a telephone conference this afternoon at 4:30 to discuss this order and the relative.scheduling of any other necessary'pretrial work, as well as the scheduled trial dates. If the parties wish to
- discuss moving any of the trial dates,.to the extent possible they should be prepared at the conference with the unavailable dates for thenmselves and their witnesses from mid-February through mid-June of 2007.
-Done at Berlin, Vermont, this 28t day.of August, 2006.
Merideth Wrigh t
Environmental Judge 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station)
)
)
Docket No. 50-271-LR
)
ASLBP No. 06-849-03-LR
))
CERTIFICATE OF SERVICE I, Michelle Cronin, hereby certify that copies of the NEW ENGLAND COALITION, INC'S, MOTION TO FILE SUPPLEMETAL AND NEW AUTHORITY RE: NEC'S CONTENTION 1 and REQUEST FOR LEAVE TO AMEND CONTENTION 1 OR-FILE A NEW CONTENTION, in the above-captioned proceeding were served on the persons listed below, by U.S. Mail, first class, postage prepaid; by Fed Ex overnight to Judge Elleman; and, where indicated by an e-mail address below, by electronic mail, on the 29th day of August, 2006.
Administrative Judge Alex S. Karlin, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@,nre.gov Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Road, #101 Raleigh, NC 27612 E-mail: elleman(ieos.ncsu.edu Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmailnrc.gov Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew&,nr.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket(@),nrc.Rov Sarah Hofmann, Esq.
Director of Public Advocacy Department of Public Service 112 State Street, Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@,state.vt.us Mitzi A. Young, Esq.
Steven C. Hamrick, Esq.
Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: may@nre.goV; schl @,nrc.gov Diane Curran, Esq.
Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street NW, Suite 600 Washington, DC 20036 E-mail: dcurran(@harmoncurrani.com
Callie B. Newton, Chair
%Matthew Brock, Esq..
Gail MacArthur
-,A ssistant Attdoiiey General Lucy Gratwick Office of the Massachusetts Attorney General Marcia Hamilton
.";"..'i.Environmental Protection Division Town of Marlboro Selectboard.
One Ashburton Place, Room 1813 P.O. Box 518 Boston, MA 02108-1598 Marlboro, VT 05344 E-mail: matthew.brockaago.state.ma.us E-mail: cbnewton(asover.net; marcialynn(,,,1 :net" Dan MaArthur, Director Marcia Carpentier, Esq.
Town of Marlboro Jonathan M. Rund, Esq.
Emergency Management Atomic Safety and Licensing Board Panel P.O. Box 30 Mail Stop T-3 123
- Marlboo, o
IVT 05344..
'US. Niclear Regulatory Commission:
.;.'-E-mail:
dmacarthurei c
Washington, DC 20555-0001 E-mail mxc7(@,nrc.gov; Jmr3(n'er.
v David R. Lewis, Esq.
AnthoyZ. Roisnman, E.
Matias F. Travieso-Diaz
" Esq.Pillsbury Winthrop Shaw Pittman LLP National Legal Scholars Law Firm 2300 N Street NW 84 East Thetford Road Washington, 'DC 20037-1128 Lyme, NH 03768 "
E-mail: david.lewis(,pillsburyIaw.com E-mail: aroisman@,nationallegalseh6lars.cnvi
.matias.trav'iso-diizpillsburylaw.com SHEMS DUNKIEL KASSEL & SAUNDERS, PLLC o----..
, Mi'chee.Cronin,.for,.
Ronald A. Shems, Esq' and Karen Tyler,'Esq.:;.:,
91 College Street Burlington,; IT 05401 802 860 1003
. 802 860 1208 (fax)..
rshems(sdkslaw.com
- ktyler(sdksjaw.com.
for the firm.
Attorneys for New England Coalition, Inc.
'....i**.
,z
SHEMS DUNKIEL KASSEL & SAUNDERS P L L C RONALD A. SHEMS BRIAN S.
DUNKIEL*
JOHN B. KASSEL MARK A. SAUNDERS GEOFFREY H. HAND KAREN L. TYLER ASSOCIATE ATTORN4EYS ANDREW N. RAUBVOGEL EILEEN I. ELLIOTT OF COUNSEL August 29, 2006 Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Re:
In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Docket No. 50-271-LR, ASLBP No. 06-849-03-LR
Dear Sir or Madam:
Please find enclosed for filing in the above stated matter New England Coalition, Inc.'s Motion to File Supplemental and New Authority re: NEC's Contention I and Request for Leave to Amend Contention 1 or File a New. Contention.
1-Thank you for your attention to this matter.
Sincerely, MichleC ealA ta SHEMS DUNKIEL KASSEL & SAUNDERS, PLLC.
Cc: attached certificate of service Enclosures It 9 I COLLEGE STREET, BURLINGTON, VERMONT 05401 TEL 802 / 860 1 003
- FAX 802 / 860 1208 O
www.sdkslaw.com
- Also admitted in the District of Columbia