ML070450033

Appellee New England Coalition'S Reply Brief

ML070450033
Person / Time
Site:	Vermont Yankee
Issue date:	02/05/2007
From:	Shems R New England Coalition, Shems, Dunkiel, Kassel, & Saunders, PLLC
To:	NRC/OCM
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, CLI-07-01, RAS 13043
Download: ML070450033 (8)

Text

h /3&73-DOCKETED USNRC UNITED STATES OF AMERICA February 5, 2007 (4:58pm)

NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Before the Commission

)

In re: ENTERGY NUCLEAR VERMONT YANKEE, LLC)

& ENTERGY NUCLEAR OPERATIONS, INC. )

) No. 50-271-LR (Vermont Yankee Nuclear Power Station) ) CLI-07-01 APPELLEE NEW ENGLAND COALITION'S REPLY BRIEF Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. ("Entergy"), and the NRC Staff ("the Staff') construe 10 C.F.R. § 51.53(c)(3)(ii)(B) contrary to its plain language, rendering merely pro forma and effectively nullifying Entergy's obligation, here, to provide meaningful information. Respectfully, the Commission should reject this interpretation, whereby Entergy's assessment of thermal discharge impacts might supply little if any information relevant to the NRC's ultimate evaluation of this issue under NEPA.

A. Entergy cannot satisfy its obligation to assess heat shock with defective information.

The NRC Staff and Entergy argument that Entergy has satisfied its 10 C.F.R. § 51.53(c)(3)(ii)(B) obligation to assess heat shock by submitting an annulled Vermont Agency of Natural Resources (VANR) action reflects a misunderstanding of Vermont law. More importantly, it leads to the absurd e Al 44-fe CY c

op result-that Entergy can meet its assessment obligation with defective information, which could ultimately compromise the validity of the NRC's EIS for the license renewal. As explained in detail in NEC's opening brief, Entergy's permit amendment is a legal nullity and has been found substantively defective by a Vermont court with jurisdiction specific to such VANR action. The Vermont Environmental Court has taken it under de novo review, and found the VANR's supporting analysis questionable enough to justify a stay.'

Entergy is in the midst of the Vermont NPDES permitting process. It has not yet obtained the "316(a) variance" or "equivalent State permits and supporting documentation" required by § 51.53(c)(3)(ii)(B). Entergy cannot satisfy its heat shock assessment obligation merely by certifying that iti hopes to obtain the necessaryVermont variance or equivalent permits and supporting documents at sQme point .i the future. Yet this is essentially what it proposes to do in relying upon the ,defective, stayed, and vacated March 30, 2006 VANR action.,,,j Incredibly, NRC Staff apparently sanctions this hollow process.

However, Staffs ,position,is self defeating, keeps relevant information from the public, and undermines the NEPA process. Indeed, delaying the provision of relevant information can only delay the licensing and NEPA Under Vermont law, a stay issues upon demonstration of the same stringent elements as a preliminary injunction. See, NEC Brief, Exhibit 4, In Re Entergy Nuclear/ Vermont Yankee Thermal Dischargepermit amendment, Decision and Order on Motion to Stay of Permit Amendment Pending Appeal, Docket No. 89-4-06 (August 28, 2006).

2

process. And, 10 C.F.R. § 51.53(c)(3)(ii)(B) calls for relevant and meaningful information.

B. NRC's Contention 1 is "moot" only if Entergy amends its License Renewal Application.

A State of Vermont denial of the NPDES permit amendment for this discharge will not, standing alone, moot NEC's Contention,1. Entergy's Environmental Report must assess its "proposed action." Contention 1 is therefore "moot" only when Entergy revises its License Renewal Application to retract its current proposal to increase thermal discharge into the Connecticut River through 2032.

C. The NRC must assess cumulative impacts of Entergy's thermal discharge.

Whether the Vermont Agency of Natural Resources' ana lysis underlying its action here is adequate to ultimately inform the NRC's EIS is-not at all evident. NRC must assess the cumulative impact of Entergy's, "rolling" NPDES permit over the full proposed period of extended operation.2 "Conclusions relative to the overall environmental impacts including cumulative impacts will be left entirely to-each site-specific SEIS.".

Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 FR 28467, *28470 (Junei 5, 1996). Further, the dissent below 2 Contrary to what Entergy and the Staff suggest, an NPDES permit is hot~equivalent:to.the analysis required by NEPA. Indeed, the federal Environmental Protection Agency (EPA) performsNEPA impact assessments when it issues NPDES permits to new sources. See, 40 C.F.R. § 6.604.

3

correctly notes that cumulative impacts of a thermal discharge are not specific to Category 1.3 NEPA requires that NRC 'consider all foreseeable direct and indirect impacts of Entergy's "proposed action," and the cumulative impacts of past, present, and reasonably foreseeable future actions. 40 C.F.R. §§ 1508.8, 1508.7.4. Direct impacts are defined as those impacts "which are caused by the action and occur at the same time and place." 40 C.F.R. § 1508.8(a).

Indirect impacts include those impacts "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b). Cumulative impacts refer to the "impact on the environment which results from the incremental-impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such action. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7.

Section 51.53(c)(3)(ii)(B) must be read consistently with NEPA. This obligates Entergy to provide a CWA § 316 variance, or "equivalent state permits and supporting documents," or to assess "impacts" of heat shock.

Impacts of heat shock include its direct, indirect and cumulative impacts.

Importantly, Entergy's further application obligations require it to submit 3

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131 (2006)("Memorandum and Order (Ruling on Standing, Contentions, Hearing Procedures, State Statutory Claim, and Contention Adoption)"), dissenting opinion.

4

relevant and material information on the broader issue of its thermal discharge. 10 C.F.R. § 51.45.4 To overstate the breadth ofCategory 1 impacts, and understate the breadth of Category 2, fails to meet these obligations.

VI. CONCLUSION.

Entergy's petition should be denied and the ASLB's admission of NEC's Contention 1 affirmed.

February 5, 2007 New England Coalition by:L Ronald A. Shems' Karen Tyler SHEMS DUNKIEL KASSEL & SAUNDERS PLLC For-the firm Attbrneys for NEC

' The narrow requirement of § 51.53(c)(3)(ii)(B) should not be construed to override the broader requirements of section § 51.45. Section 51.45 is not surplusage, and should be given effect.

5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271-LR and Entergy Nuclear Operations, Inc. ) CLI-07-01 (Vermont Yankee Nuclear Power Station)

CERTIFICATE OF SERVICE I, Clara Cavitt, hereby certify that copies of APPELLEE NEW ENGLAND COALITION'S REPLY BRIEF 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 5th day of February, 2007.

Administrative Judge Office of the Secretary Alex S. Karlin, Esq., Chairman Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: secyvnrc.gov; hearingdocket@nrc.gov E-mail: ask2@nrc.gov Office of Commission Appellate Adjudication Administrative Judge Mail Stop: O-16C1 Thomas S. Elleman U.S. Nuclear Regulatory Commission Atomic Safety and, Licensing Board Panel Washington, DC 20555-0001 5207 Creedmoor Road, #101 Raleigh, NC 27612 Sarah Hofmann, Esq.

E-mail: elleman@eos.ncsu.edu Director of Public Advocacy Department of Public Service Administrative Judge 112 State Street, Drawer 20 Dr. Richard E. Wardwell Montpelier, VT 05620-2601 Atomic Safety and Licensing Board Panel E-mail: sarah.hofmann@state.vt.us Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Mitzi A. Young, Esq.

Washington, DC 205'55-0001 Steven C. Hamrick, Esq.

E-mail: rew@nrc.gov Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: may@nrc.gov; schl@nrc.gov

Diane Curran, Esq. David R. Lewis, Esq.

Harmon, Curran, Spielberg & Eisenberg, LLP Matias F. Travieso-Diaz 1726 M Street NW, Suite 600 Pillsbury Winthrop Shaw Pittman LLP Washington, DC 20036 2300 N Street NW E-mail: dcurran(harmoncurran.com Washington, DC 20037-1128 E-mail: david.lewisgpillsburylaw.com Callie B. Newton, Chair matias.travieso-diaz@pillsburylaw.com Gail MacArthur Lucy Gratwick Honorary Gregory B. Jaczko, Commissioner Marcia Hamilton Mail Stop 0-16 G15 Town of Marlboro Selectboard U.S. Nuclear Regulatory Coinniission P.O. Box 518 Washington, DC 20555 Marlboro, VT 05344 cmriaczko@nrc.gov E-mail: cbnewton@sover.net; marcialynn(@evl .net Honorary Dale E Kline, Chairman Marcia Carpentier, Esq. Mail Stop 0-16 G15 Jonathan M. Rund, Esq. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555 Mail Stop T-3 F23 chairman@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Honorary Peter B. Lyons, Commissioner E-mail mnxc7@nrc.gov; Jmr3@nrc.gov Mail Stop 0-16 G15 U.S. Nuclear Regulatory Commission Anthony Z. Roisman, Esq. Washington, D.C. 20555 National Legal Scholars Law Firm cmrlyonsgnrc. gov 84 East Thetford Road Lyme, NH 03768 Honorary Jeffrey S. Merrifield, Commissioner E-mail: aroisman@nationallegalscholars.com Mail Stop 0-16 G15 U.S. Nuclear Regulatory Commission Matthew Brock, Esq. Washington, D.C. 20555 Assistant Attorney General cmarmerrifieldgnrc.gov Office of the Massachusetts Attorney General Environmental Protection Division Honorary Edward McGaffigan Jr., Commissioner One Ashburton Place, Room 1813 Mail Stop 0-16 G15 Boston, MA 02108-1598 U.S. Nuclear Regulatory Commission E-mail: matthew.brock@ag0.state.ma.us Washington, D.C. 20555 cnrmcgaffigangnrc.org Dan MacArthur, Director Town of Marlboro Jennifer J. Patterson, Esq.

Emergency Management Office of the New Hampshire Attorney General P.O. Box 30 33 Capitol Street Marlboro, VT 05344 Concord, NH 03301 E-mail: dmacarthurligc.org E-mail: Jennifer.patterson@doj.nh.gov

SHEMS DUNKIEL KASSEL & SAUNDERS, PLLC By: 1A /?AY Clara Cavitt, Administrative Assistant for Ronald A. Shems Karen Tyler 91 College Street Burlington, VT 05401 802 860 1003 802 860 1208 (fax).

rshems@sdkslaw.com ktyler@sdkslaw.com Attormeys for New England Coalition, Inc.