ML070380052

Vermont Yankee - NRC Staff Reply Brief in Response to CLI-07-01

ML070380052
Person / Time
Site:	Vermont Yankee
Issue date:	02/06/2007
From:	Matt Young NRC/OGC
To:	NRC/OCM
M A Young, NRC/OGC, 301-415-1523
References
50-271-LR, ASLBP 06-849-03-LR, RAS 12999
Download: ML070380052 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

NRC STAFF REPLY BRIEF IN RESPONSE TO CLI-07-01 Mitzi A. Young Counsel for NRC Staff February 6, 2007

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

NRC STAFF REPLY BRIEF IN RESPONSE TO CLI-07-01 INTRODUCTION In accordance with the Commission Orders dated January 11 and 24, 2007,1 the NRC Staff (Staff) hereby submits its reply to the New England Coalition (NEC) brief 2 in response to CLI-07-01. For the reasons set forth below, the Staff submits that NEC has failed to demonstrate that the Licensing Board was correct to admit the contention that alleges the application was inadequate for failure to include an assessment of the impacts of increased thermal discharge limits. Accordingly, the Licensing Boards decision3 to admit NEC Contention 1 should be reversed.

DISCUSSION NEC argues that the admission of NEC Contention 1 was proper because it challenges the adequacy of the Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations Inc. (Entergy or Applicant) National Pollutant Discharge Elimination System (NPDES) 1 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations Inc. (Vermont Yankee Nuclear Power Station), CLI-07-01, 65 NRC __ (Jan. 11, 2007) (slip op.); Order (Jan. 24, 2007)

(unpublished). Because the Staff received New England Coalitions brief after 5:00 p.m. on January 29, 2007, the seven-day response time is extended by one day pursuant to 10 C.F.R. § 2.306.

2 Appellee New England Coalitions Brief (Jan. 29, 2007) (NEC Brief). NECs brief does not comply with 10 C.F.R. §§ 2.311(a) and 2.341(c)(2), which set a 30-page limit and require briefs over 10 pages to include a table of contents and table of authorities.

3 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131 (2006).

permit and the partial amendment of that permit on March 30, 2006, to satisfy 10 C.F.R.

§ 51.53(c)(3)(ii)(B) and 10 C.F.R. § 51.45. NEC Brief at 1-3. NEC also asserts that the contention does not raise broad policy issues or an impermissible challenge to that rule because the contention largely hinges upon Vermont law and the scope and legal status of a state issued Clean Water Act NPDES permit and amendment. Id. at 3, 28-30. As discussed below, these arguments lack merit.

A. The Contention, As Admitted, Challenges the Regulations Despite assertions to the contrary, see NEC Brief at 1-3, NEC clearly challenges the Commissions regulatory scheme that allows a license renewal applicant to submit a current five-year NPDES permit and supporting documents as an assessment of heat shock impacts during the 20-year renewal period. See 10 C.F.R. § 51.53(c)(3)(ii)(B). NEC has repeatedly questioned, and convinced the Board to question,4 whether Entergy can rely on a five-year permit and supporting documents as an assessment of the impacts for the entire renewal period. See [NECs] Petition for Leave to Intervene, Request for Hearing, and Contentions (May 26, 2006) (NEC Petition), at 10-13; [NECs] Reply to Entergy and NRC Staff Answers to Petition for Leave to Intervene, Request for Hearing and Contentions (June 29, 2006) (NEC Reply), at 3-6; NEC Brief at 15 (The [environmental report] relied on a 2003 NPDES permit that does not address the proposed increased discharge for 20 years.). NECs attempt to obscure its fundamental disagreement with and hence improper challenge to the Commissions regulations should be rejected. See Brief at 28. Litigation of whether more than a five-year permit and supporting documents is required would constitute an impermissible attack on a 4

The Staff has previously noted that the Board found (1) that the contention challenged the sufficiency of Entergys environmental report to address impacts for 20 years of operation, (2) that litigation was necessary to resolve whether 10 C.F.R. § 51.53(c)(3)(ii)(B) could be satisfied by an expired, appealed and stayed permit, and (3) that litigation was needed to determine whether National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., requirements are met through 10 C.F.R.

§ 51.53(c)(3)(ii)(B). See NRC Staff Brief in Response to CLI-07-01(Jan. 29, 2007), at 5-6 (citing 64 NRC at 178, 180-82).

generic NRC requirement. See Dominion Nuclear Connecticut, Inc. (Millstone) CLI-03-14, 58 NRC 207, 218 (2003). Thus, NECs arguments do not erase the Licensing Boards error in deciding to admit the contention to litigate these issues.

B. Contention 1 Does Not Raise a Material Issue NEC claims that Entergys March 30, 2006 NPDES permit amendment5 was stricken from the record and is not relevant to its contention. See NEC Brief at 9 n.3 (citing Order, dated August 11, 2006). The March 30 Amendment, however, authorized the one-degree increase in thermal effluent limits and was included in a docketed revision to Entergys license renewal application (LRA).6 Therefore, it is relevant to NECs contention in this proceeding.7 Because Entergy updated its application (i.e., environmental report) to include the March 30 Amendment, NECs contention alleging a failure to include a 316(a) variance or equivalent State permit and supporting documentation addressing increased thermal discharge limits became moot and should have been rejected as failing to raise a genuine material dispute under 10 C.F.R. 5 The Vermont Agency of Natural Resources (VANR) granted a one-degree increase in thermal effluent limitations from June 16 through October 14, but denied the requested increase for May 16 through June 15. See Entergy Answer to [NECs] Petition for Leave to Intervene, Request for Hearing, and Contentions (June 22, 2006) (Entergys Answer), Letter from Brian Kookier, Vermont Agency for Natural Resources, to Lynn De Wald, Entergy (Mar. 30, 2006) (forwarding Amended Discharge Permit No. 3-1199 (Mar. 30, 2006) (March 30 Amendment) at 4 and Amended Fact Sheet at 1). The VANR indicated that the changes to the permit resulted from the partial approval of the Applicants 2004 § 316(a) demonstration request and concluded that the approved increased thermal effluent limits would assure the protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. See March 30 Amendment, Amended Fact Sheet at 4.

6 See Letter from Ted A. Sullivan, Entergy, to NRC, dated July 27, 2006 (July 27 Letter)(ADAMS Accession No. (ML062130080)(forwarding LRA, Amendment 6, which included the March 30 Amendment).

7 NEC mistakenly believes the Boards order somehow prevented or nullified the docketing of the July 27 Letter which amended the LRA. Entergy can freely decide whether to amend its LRA. The Staffs docketing decision is solely within the purview of the NRC staff. See Metropolitan Edison Co, (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1263 (1984) (board lacks authority to direct Staffs performance of its duties), revd in part on other grounds, CLI-85-2, 21 NRC 282 (1985); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-80-12, 11 NRC 514, 516 (1980) (boards lack authority to direct Staffs performance of administrative functions). Moreover, the Board itself discussed that amendment in its decision below, questioning the status of the March 30 Amendment in light of the August 28, 2006 stay issued by the Vermont Environmental Court. See LBP-06-20, 64 NRC at 181& n.57.

§ 2.309(f)(1)(vi). NECs narrow view of the contents of Entergys application, which ignores the post-application issuance of an amended NPDES permit and the post-contention update of the application to include it, does not support admission of the contention.

NECs argument that the de novo review and stay8 of the March 30 Amendment demonstrates that its contention raises a genuine dispute, see NEC Brief at 29-30, should also be rejected. NEC relies on a mistaken view of the effect of the Vermont Environmental Courts consideration of the NPDES permit amendment that authorized increased thermal effluent limits and incorrectly asserts that the permit expired and was nullified or voided by the appeal and subsequent stay issued by the Vermont Environmental Court. See NEC Brief at 8, 10, 11, 25,

29. NEC often asserts that the NPDES permit expired without mentioning that it continued in timely renewal under a Vermont law.9 NECs view of the effect of the status of the permit is belied by the terms of the Vermont Environmental Court orders, which recognize that increased effluent limits were in effect after March 31, 2006 and that a stay was required to preserve the status quo of the Applicants previous permit conditions, protecting adult and juvenile shad.

See e.g., Vermont Environmental Court Order 89-4-06 Vtec (Aug. 28, 2006), at 2, 3; NEC Brief, Exhibit 3 at 4 (the 2006 Permit Amendment became part of the now-expired permit under which Entergy is entitled to operate) (footnote omitted))10 8

The stay issued on August 28, 2006, was later amended to provide for a stay through April 1, 2007. See [NECs] Motion to File Supplemental and New Authority Re: NECs Contention 1 and Request for Leave to Amend Contention or File a New Contention (Aug. 29, 2006) (appending the August 28, 2006 Vermont Environmental Court Order); Entergys Answer to [NECs] Motion to File Supplemental and New Authority (Sept. 8, 2006) (appending the September 1, 2006, stay order which gave Entergy until September 8, 2006 to safely implement the order and imposed the stay through April 1, 2007, or until a further order of the Court before that date).

9 3 V.S.A. § 814(b); see also Letter from Carole Fowler, Administration and Compliance Section, VANR WWMD, to Lynn DeWald, Entergy, dated September 30, 2005 (Attachment 1 to Entergys Answer).

NEC also admitted that the permit continued under timely renewal provisions. See LBP-06-20, 64 NRC at 215 (dissent).

10 The Court did not vacate (as NEC implies) the NPDES permit amendment that allowed the one- degree increase in thermal effluent limits and the Vermont provisions NEC cites do not indicate that a (continued...)

Regardless of the status of the March 30 Amendment, it cannot reasonably be disputed that Entergy has satisfied 10 C.F.R. § 51.53(c)(3)(ii)(B) by submitting the requisite 316(a) variance or equivalent State permits and supporting documentation. Again, if this permit is rejected, Contention 1 has no basis because there are no increased thermal effluent limits at issue. See LBP-06-20, 64 NRC at 211 (Judge Wardwell). If the amendment is upheld, NEC Contention 1 fails to raise a genuine dispute regarding a material issue since the requirements of 10 C.F.R. § 51.53(c)(3)(ii)(B) have been satisfied.11 NEC also argues Entergy failed to satisfy 10 C.F.R. § 51.45. See NRC Brief at 1, 8, 29.

This provision was not cited in its original petition or reply. See NEC Petition at 10-14; NEC Reply at 2-15. NEC does not specifically discuss this provision, but merely mentions this regulation in arguments that Entergy has not satisfied 10 C.F.R. § 51.53(c)(3)(ii)(B). That regulation indicates that environmental reports prepared at the license renewal stage should contain sufficient data to aid the Commission in its development of its independent analysis. It is clear that the provisions of 10 C.F.R. § 51.53(c)(3)(ii) specify the information that Entergy must submit regarding heat shock under the Commissions license renewal scheme. Therefore, reliance on this provision does not demonstrate a genuine dispute as to a material issue of law or fact. See 10 C.F.R. § 2.309(f)(1)(vi).

10

(...continued) de novo review vacates the action under consideration. See NEC Brief at 10 (citing VRECP 5(g) and 10 V.S.A. § 8504(h)).

11 NEC notes that the Staff did not oppose the admission of the contention, see NEC Brief at 13, but neglects to state that the Staff (1) viewed the contention as being limited to whether the impacts of the one-degree limit increase on shad had been addressed in the LRA, (2) indicated that Entergy submitted its then-current NPDES permit with its January 25, 2006 LRA, as required by 10 C.F.R. § 51.53(c)(3), and (3) asserted that submission of the permit that authorized the increased thermal discharge would render the issue moot. See NRC Staff Answer to Request for Hearing of [NEC] (June 22, 2006), at 8 n. 5; id. at 9 (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-28, 56 NRC 373, 382-83 (2002)); LBP-06-20, 64 NRC at 177, 211.

C. NECs Attempt to Broaden Its Contention Should Be Rejected NEC asserts that Contention 1 raises the Category 2 issue of heat shock to fish, NEC Brief at 3, 24; see also id. at 26-27, but at the same time argues that issues other than heat shock are raised by its contention.12 While NECs arguments have at times been difficult to discern, NEC has focused almost exclusively on the effects of increased thermal effluents on shad. See e.g., NEC Petition at 10-13; NEC Brief at 11, 12-13.13 NECs attempt to broaden its contention to encompass other Category 2 issues must be rejected. The reach of a contention necessarily hinges upon it terms coupled with its stated bases. See Public Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93-97 (1988), affd sub nom.

Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991).

In short, none of the arguments raised by NEC support the conclusion that the majority was correct to indicate the Board should admit the contention and examine what information satisfies 10 C.F.R. § 51.53(c)(3)(ii)(B) in circumstances where Entergy has submitted both its prior NPDES permit (which, due to the stay, limits Entergys current operations and which was current when Entergy submitted its LRA), and the March 30 NPDES Amendment that authorized increased thermal discharges. Thus, there has been no showing that the Boards admission of the contention was proper.

CONCLUSION For the foregoing reasons, NEC fails to demonstrate that litigation of the Boards questions concerning the requirements of 10 C.F.R. § 51.53(c)(3)(ii)(B) is proper or that its 12 NEC claims that its contention at minimum raises heat shock, but that litigation may reveal other Category 2 impacts. See NEC Brief at 26 & n.8.

13 It could be argued that NECs contention raises, for example, the Category 1 issue of barriers to migrations. See LBP-06-20, 64 NRC at 214 (dissent). That issue may not be litigated in this proceeding. Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station and Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC __ slip op. at 7 (Jan. 22, 2007) (litigation of a Category 1 issue amounts to a challenge to our regulations).

contention should be admitted. Therefore, the Commission should reverse the Licensing Boards decision to accept NEC Contention 1 for litigation.

Respectfully submitted,

/RA/

Mitzi A. Young Counsel for NRC Staff Dated at Rockville, Maryland this 6th day of February, 2007

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, )

LLC and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF REPLY BRIEF IN RESPONSE TO CLI-07-01" in the above-captioned proceeding have been served on the following through electronic mail and with copies by deposit in the NRCs internal mail system, or through electronic mail with copies by deposit in the U.S. mail as indicated by an asterisk, this 6th day of February, 2007:

Administrative Judge Administrative Judge Alex S. Karlin, Chair Richard E. Wardwell Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: rew@nrc.gov Administrative Judge Office of the Secretary Thomas S. Elleman* Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 5207 Creedmoor Road, #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: elleman@eos.ncsu.edu E-mail: hearingdocket@nrc.gov Office of Commission Appellate Sarah Hofmann, Esq.*

Adjudication Director of Public Advocacy Mail Stop: O-16C1 Department of Public Service U.S. Nuclear Regulatory Commission 112 State Street - Drawer 20 Washington, DC 20555-0001 Montpelier, VT 05620-2601 E-mail: OCAAmail@nrc.gov E-mail: sarah.hofmann@state.vt.us

Diane Curran, Esq.* Anthony Z. Roisman, Esq.*

Harmon, Curran, Spielberg National Legal Scholars Law Firm

& Eisenberg, L.L.P. 84 East Thetford Rd.

1726 M Street, NW., Suite 600 Lyme, NH 03768 Washington, DC 20036 E-mail: aroisman@nationallegalscholars.com E-mail: dcurran@harmoncurran.com Matthew Brock, Esq.*

Ronald A. Shems, Esq.* Assistant Attorney General Karen Tyler, Esq. Office of the Massachusetts Attorney Shems Dunkiel Kassel & Saunders, PLLC General 91 College Street Environmental Protection Division Burlington, VT 05401 One Ashburton Place, Room 1813 E-mail: rshems@sdkslaw.com Boston, MA 02108-1598 Ktyler@sdkslaw.com E-mail: matthew.brock@ago.state.ma.us Marcia Carpentier, Esq. David R. Lewis, Esq.*

Atomic Safety and Licensing Board Panel Matias F. Travieso-Diaz Mail Stop: T-3F23 Pillsbury Winthrop Shaw Pittman LLP U.S. Nuclear Regulatory Commission 2300 N Street, NW Washington, DC 20555-0001 Washington, DC 20037-1128 E-mail: mxc7@nrc.gov E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com Jennifer J. Patterson, Esq.*

Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301 E-mail: jennifer.patterson@doj.nh.gov

/RA/

Mitzi A. Young Counsel for NRC Staff