ML082750237

Indian Point - NRC Staff'S Answer to Riverkeeper, Inc.'S New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel

ML082750237
Person / Time
Site:	Indian Point
Issue date:	09/30/2008
From:	Mizuno B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-183
Download: ML082750237 (22)

Text

September 30, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFF'S ANSWER TO RIVERKEEPER, INC.'S NEW AND AMENDED CONTENTIONS REGARDING ENVIRONMENTAL IMPACTS OF HIGH-DENSITY POOL STORAGE OF SPENT FUEL INTRODUCTION Pursuant to 10 C.F.R. 3 2.309(h)(l), the Staff of the U.S. Nuclear Regulatory Commission ("Staff') hereby files its answer to the new and amended contentions regarding the environmental impacts of spent fuel storage, filed by Riverkeeper, Inc. ("Riverkeeper") in this proceeding on September 5, 2008, and Riverkeeper's related motion seeking the admission of those contentions.' The Staff opposes the admission of Riverkeeper's new and amended contentions, and recommends that Riverkeeper's Motion seeking the admission of these contentions be denied.

In its filing, Riverkeeper filed one amended contention (Amended Contention EC-2) and two new contentions (Contentions EC-4 and EC-5). As more fully set forth below, Riverkeeper's 1

See (I) "Riverkeeper, Inc.'s New and Amended Contentions Regarding Environmental lmpacts of High-Density Pool Storage of Spent Fuel" ("New Petition"), dated September 5, 2008; and (2) "Riverkeeper, Inc.'s Conditional Motion for Leave to File New and Amended Contentions Regarding Environmental lmpacts of High-Density Pool Storage of Spent Fuel," dated September 5, 2008.

new and amended contentions constitute a direct and impermissible challenge to the Commission's August 8, 2008 denial of a petition for rulemaking regarding the impacts of spent fuel storage2 -- a course of action that is clearly outside of the scope of this proceeding, and I t ,\

should have been raised, if at all, in a filing befiie the Commission seeking consideration of Riverkeeper's views. Further, Riverkeeper's new and amended contentions constitute an impermissible challenge to the Commission's determination that the environmental impacts of spent fuel storage are a Category 1 issue, addressed in 10 C.F.R. Part 51, Appendix B (Table B-

1) and the Generic Environmental Impact Statement for license r e n e w a ~and , ~ may not be raised in this license renewal proceeding. Finally, Riverkeeper's Amended Contention EC-2 constitutes an impermissible challenge to the Atomic Safety and Licensing Board's ("Board") ruling, in LBP-08-13, that identical portions of another contention which Riverkeeper had filed earlier were inadmissible. For these reasons, Riverkeeper's new and amended contentions should be rejected.

BACKGROUND On April 23, 2007, Entergy Nuclear ope&tions, Inc. ("Entergy" or "Applicant") filed an application to renew the operating licenses for Indian Point Nuclear Generating Units 2 and 3.5 On October 18, 2008, this Board was established to rule on petitions to intervene and requests See "The Attorney General of Commonwealth of Massachusetts, the Attorney General of California, Denial of Petitions for Rulemaking," 73 Fed. Reg. 46,204 (Aug. 8, 2008) ("PRM Denial").

3 "Generic Environmental lmpact Statement for License Renewal of Nuclear Plants" ("GEIS"),

NUREG-1437 (May 1996).

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-31, 68 NRC -(July 31, 2008) (slip op. at 181).

5 Letter from Fred Dacimo, Site Vice President (Entergy) to NRC Document Control Desk, dated April 23, 2007 (ADAMS Accession No. ML0712101080), as supplemented by letters dated May 3 and June 21,2007 (ADAMS Accession Nos. ML0712807000 and ML0718003180).

for hearing, and to preside over any proceeding that may be held with respect to the license renewal app~ication.~ Riverkeeper filed a petition to intervene and request for hearing on November 30, 2 0 0 7 . ~That petition included Riverkeeper Contention EC-2, in which Riverkeeper challenged Entergy's analysis of severe accident mitigation alternatives ("SAMAs") asserting, inter alia, that Entergy had failed to consider the costs associated with spent fuel pool fires and intentional attacks on the reactors and the spent fuel pools. Original Petition at 55, 61-68.'

Riverkeeper acknowledged that "the NRC classifies the environmental impacts of spent fuel pool accidents and related SAMAs as 'Category 1' issues that are not subject to consideration in individual license renewal proceedings absent a waiver or change in the regulations." Id. at 62.

However, Riverkeeper pointed to pending petitions for rulemaking by the Attorney General for Massachusetts and the Attorney General for California that sought "revocation of that prohibition" and asked the Board to admit the portion of the Contention EC-2 that dealt with spent fuel storage and hold it in abevance pending the Commission's decision on the rulemaking. Id. Riverkeeper stated that if the Commission did not change the rule, Riverkeeper would "seek a waiver of the regulation under 10 C.F.R. 2.335(b)." Id. at 63.

Both the NRC Staff and the Applicant opposed this portion of Riverkeeper EC-2 on the grounds that it constituted an impermissible challenge to NRC regu~ations.~

"Establishment of Atomic Safety and Licensing Board," 72 Fed. Reg. 60,394 (Oct. 24, 2007).

7 "Riverkeeper, Inc.'s Request for Hearing and Petition to lntervene in the License Renewal Proceeding for the lndian Point Nuclear Power Plant" ("Original Petition"), filed November 30, 2007.

' In Contention EC-2, Riverkeeper advanced three related issues, asserting that Entergy: I) failed to consider the costs associated with spent fuel pool fires and intentional attacks on reactors and spent fuel pools; 2) used a source term that had not been validated by the NRC; and 3) used an inappropriate person rem conversion factor in its calculation of costs. Original Petition at 54-55.

9 See "Staffs Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and (continued. . .)

In its ruling on contentions (LBP-08-13), the Board rejected all portions of Riverkeeper EC-2 as being outside the scope of this procwding. With respect to the portion of the li I contention that dealt with spent fuel pool fires, the Board explained that spent fuel pool fires are addressed generically in the GEIS, and, under NRC regulations, cannot be challenged in an adjudicatory proceeding such as this. The Board then addressed Riverkeeper's request that Contention EC-2 be admitted and held in abeyance:

As the Commission noted in Vermont Yankee/Pilgrim, a petition for rulemaking that addresses issues related to spent fuel pool fires would be a more appropriate venue to seek relief "for resolving . . . generic concerns about spent fuel fires than a site-specific contention in an adjudication." Riverkeeper has requested that we nevertheless admit EC-2 and hold it in abeyance pending resolution of multiple petitions for rulemaking that addresses spent fuel pool fires. We decline to do so. In the event that the petitions are denied, the current rule will remain in force, and any attack on the validity of that rule will be impermissible in this proceeding as a matter of law. In the event that the Commission changes the rule, petitioners will have the opportunity to file new contentions at that time.

Indian Point, LBP-08-13, 68 NRC at -(slip op. at 181) (citations omitted; emphasis added).

In fact, the Commission has now denied the petitions for rulemaking cited by Riverkeeper in its original Contention EC-2."' The Commission explained:

Given the physical robustness of SFPs [spent fuel pools], the physical security measures, and SFP mitigation measures, and based upon NRC site evaluations of every SFP in the United States, the NRC has determined that the risk of an SFP zirconium fire, whether caused by an accident or a terrorist attack, is very low. As such, the NRC's Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) The State of New York, (5) Riverkeeper, Inc.,

(6) the Town of Cortlandt, and (7) Westchester County" ("Staff Response to Petitions"), dated January 22, 2008, at I 1I , and "Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper Inc.'s Request for Hearing and Petition to Intervene," dated January 22, 2008, at 116-127.

See n.2, supra.

" Y

generic findings in NUREG-1437, as further reflected in Table B-1 of appendix B to subpart A of 10 CFR part 51, remain valid.

PRM Denial, 73 Fed. Reg. at 46,208.

Undeterred, on September 5, 2008, Riverkeeper filed new and amended contentions purportedly based on the Commission's denial of the petitions for rulemaking. In its new contentions, Riverkeeper asserts that the hlRC must address spent fuel storage as a Category 2 issue and must identify the documents that it relied upon in denying the petitions for rulemaking." The amended contention is identical to the portion of the original version of Riverkeeper Contention EC-2 that addressed spent fuel storage. Contrary to the statement it made in its Original petition,I3 Riverkeeper did not seek a waiver of the regulation under 10 C.F.R. § 2.335(b)

DISCUSSION I. Admissibilitv Requirements The legal requirements governing the admissibility of contentions are well established, and are currently set forth in 10 C.F.R. 5 2.309(f). The Staff originally addressed these requirements in its response to the contentions filed in this matter (Staff Response to Petitions, at 15-25), and hereby incorporates that discussion by reference herein. In brief, the regulations required that a contention must satisfy the following requirements in order to be admitted:

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

11 New Petition at 24-28.

12 Id. at 13.

l3 Original Petition at 63.

(i) Provide a specific statement of the issue of law or fact to be raised or controverted, . . ., ;<.

, a ,

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor'slpetitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestorlpetitioner intends to rely to support its position on the issue; (vi) In a proceeding other than one under 10 CFR 52.1 03, provide sufficient information to show that a genuine dispute exists with the applicantllicensee on a, material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. . . .

10 C.F.R. § 2.309(f)(l)(i) - (vi). Further, to be admitted, contentions must satisfy the criteria in 10 C.F.R. § 2.309(f)(2). That regulation provides as follows:

(2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report.

The petitioner may amend those contentions or file new contentions if there are data or,,conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents. Otherwise,

contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that -

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended,or ne%tdiitention has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(f)(2).

Contentions that are not filed in a timely fashion under 10 C.F.R. 5 2.309(f)(2) may be admitted pursuant to 10 C.F.R. 5 2.309(c). Section 2.309(c) provides that a late-filed contention may be admitted if "the petitioner shows a favorable balance among [eight] factors." Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 575 (2006). The petitioner must address the following eight factors in its untimely filing:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor'slpetitioner's right under the Act to be made a party to the proceeding; f , (, ,

(iii) The nature and extent of the requestor'slpetitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor'slpetitioner's interest; (v) The availability of other means whereby the requestor'slpetitioner's interest will be protected; (vi) The extent to which the requestor'slpetitioner's interests will be represented by existing parties; (vii) The extent to which the requestor'slpetitioner's participation will broaden the issues or delay the proceeding; and

(viii) The extent to which the requestor'slpetitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c)(l)(i) - (viii) and (2).

II. Riverkeeper's New and Amended Contentions Are Inadmissible.

A. Amended Contention EC-2 In its Amended Contention EC-2, Riverkeeper asserts that the Commission's denial of the Massachusetts and California petitions requires that the Commission address the impact of spent fuel storage as a site-specific impact, rather than a generic impact. New Petition at 11-12.

Specifically, Riverkeeper argues that Entergy's analysis of severe accident mitigation alternatives ("SAMAs")

in its Environmental Report fails to satisfy NEPA, 42 U.S.C. § 4321-4370f, because its analysis of the baseline of severe accidents is incomplete, inaccurate, nonconservative, and lacking in the scientific rigor required by NEPA. In particular:

(b) Entergy has failed to consider the contribution to severe accident costs by a fire in either of the spent-fuel pools at Indian Point Units 2 and 3.

(c) Entergy has failed to consider the contribution to severe accident costs by intentional attacks on the Indian Point Unit 2 or Unit 3 reactors or respective spent fuel pools.

New Petition at 13-14. Riverkeeper asserts that the Commission's Rulemaking Denial relied on site-specific mitigative measures for spent fuel pool fires and that because of this reliance, spent fuel pool impacts cannot be addressed in the GElS as generic Category 1 impacts, but must instead be addressed as site-specific Category 2 impacts. Id. at 2-3. Therefore, Riverkeeper argues, spent fuel pool issues are not outside of the scope of license renewal. Id. at 3.

Riverkeeper takes the position that "the Commission has effectively supplemented and supplanted the 1996 License Renewal GElS with a NEPA document that is the equivalent of an environmental assessment and a finding of no significant impact." Id. Riverkeeper then asserts that if the Commission considers the Rulemaking Denial "to be binding on parties to this

proceeding . . . then to the extent that the data and conclusions in the [Rulemaking Denial] differ significantly from the data or conclusions presented in [the GEIS] or the ER," Riverkeeper has the right "to address them "in new or amended contentions in order to preserve its challenge to the adequacy of the NRC's environmental decision." Id.

Staffs Answer to Amended Gd7i%tenfian EC-2 Amended Contention EC-2 directly challenges the Commission's determination in its denial of the petitions for rulemaking that these issues are and remain Category 1 issues.

Further, the contention raises issues that are outside of the scope of license renewal and lacks a basis in fact and law. The amended contention is thus inadmissible pursuant to 10 C.F.R. 2309(f)(l)(i) - (iii). Moreover, Riverkeeper fails to show that the information upon which the amended contention is based was not previously ava~lableand that it is materially different than information that was previously available. Finally, Riverkeeper does not address the factors governing the admissibility of late-filed contentions. Accordingly, Amended Contention EC-2 does not meet the requirements for the addition of new or amended contentions at 10 C.F.R. 9 2.309(f)(2)(i) - (iii) and does not meet the requirements for late-filed contentions at 10 C.F.R.

§ 2.309(~). ',a, : pit+

As Riverkeeper's own language makes clear, Amended Contention EC-2 is a continuation of its challenge to the "NRC's environmental decision" and, as such, presents a question that is outside of the scope of this license renewal proceeding and should have been presented, if at all, to the Commission. New Petition at 3-4. Riverkeeper challenges the Commission's determination that the environmental impacts of spent fuel storage during the license renewal period are generic, and it challenges the NRC's regulation at 10 C.F.R. 9 51.53(~)(2)that provides that applicants for license renewal "need not discuss any aspect of the storage of spent fuel" in their environmental reports and the NRC's Waste Confidence Rule at 10 C.F.R. 9 52.23. It is well-settled that spent fuel pool fires and intentional attacks on

reactors and pools are outside of the scope of license renewal proceedings. See Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) and Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-07-03, 65 IVRC 13 (2007); Florida Power and Light Co.

(Turkey Nuclear Generating Plant, Units 3 and 4), CLI-01-07, 54 NRC 3 (2001); Duke Energy Corporation (Oconee Nuclear station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328 (1999).

Moreover, the regulation at 10 C.F.R. 5 2.335(b) explicitly prohibits a challenge to Commission regulations and Riverkeeper has not requested a waiver of that prohibition. Because Riverkeeper's Amended Contention EC-2 challenges "the basic structure of the Commission's regulatory process," it is inadmissible. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AE 13, 20 (1974).

Furthermore, because it challenges the NRC's denial of the rulemaking petition, Riverkeeper "seeks to raise an issue which is not proper for adjudication" in this proceeding.

Peach Bottom, 8 AE at 20. If Riverkeeper wishes to appeal the denial of the petition for rulemaking, or 'file its own rulemaking petition, this is not the proper forum. This Board was established to preside over Entergy's license renewal application; it was not established to review Commission action on petitions for rulemaking and does not have the authority to overturn the Commission's decision with respect to the rulemaking petitions. See Florida Power

& Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-06, 53 NRC 138, 151 (2001). For this additional reason, Riverkeeper's Amended Contention EC-2 is out of scope.

Further, this Board has, in fact, already rejected this "amended" contention on the grounds that it constitutes an impermissible challenge to the regulatory structure. When Riverkeeper originally filed Contention EC-2, it requested that the Board admit the contention and hold it in abeyance pending the resolution of the petitions for rulemaking. Original Petition

at 62-63. The Board rejected that approach, stating that "[iln the event that the petitions are denied, the current rule will remain in force, and any attack on the validity of that rule will be impermissible in this proceeding as a matter of law." Indian Point, LBP-08-13, 68 NRC at -

(slip op. at 181). The Board's previous ruling resolves this issue: the petitions for rulemaking were denied; the current rule remains in force; and, as the Board held earlier, the challenge to the rule is impermissible as a matter of law.

Riverkeeper Amended Contention EC-2 also lacks a basis in fact and law. Riverkeeper asserts that the Commission's reliance on site-specific mitigation measures for spent fuel pool fires removes the impacts of spent fuel storqge from treatment under Category 1 (as a generic impact) and requires its treatment as a Category 2 impact (which is required to be addressed on a plant-specific basis). Petition at 2. In support of this assertion, Riverkeeper relies on the definition of Category 1 that provides that generic impacts are those for which "it has been determined that additional plant-specific mitigation measures are likely not to be sufficiently beneficial to warrant implementation." GEIS,.NUREG-1437, vol. 1, at 1-5. Riverkeeper's assertion ignores the fact that "[tlhe NRC has approved license amendments and issued safety evaluations to incorporate these strategies into the plant licensing bases of gJ operating nuclear power plants in the United States." PRM Denial, 73 Fed. Reg. at 46,209 (emphasis added).

Because a spent fuel pool [ire is an event that all plants may face, the issue is a generic one, and it has been addressed on a generic basis through incorporation of "internal and external strategies to enhance the spent fuel heat removal capability systems at every operating nuclear power p ~ a n t . " 'Id.

~

l4As the Commission's PRM Denial made clear, 73 Fed. Reg. at 46,209, implementation of the mitigation strategies was, by necessity, plant-specific. These strategies required augmentation of makeup water and spray systems and these were dictated, in each instance, by the physical configuration (continued. . .)

2, ' ,

Riverkeeper appears to assert that the Rulemaking Denial included new and significant facts: 1) partial drainage of a spent fuel pool will result in a fire and, therefore, partial drainage is a more serious condition than complete drainage; 2) aged fuel can burn; and 3) spent fuel fires will propagate. New Petition at 7. But these same claims were raised in the petitions for rulemaking, and the Commission rejected them. The Commission stated that it "does not agree with the Petitioners' assertions" that "spent fuel will burn if the water level in an SFP drops to the point where the tops of the fuel assemblies are uncovered." 73 Fed. Reg. at 46,208. The Commission considered the study Riverkeeper cited, NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants (January 2001) but found that other studies "provide a more realistic assessment of the coolability of spent fuel under a range of conditions and a better understanding of the actual safety margins than was indicated in NUREG-1738." Id. at 46,208. With respect to the second proposition, the Commission stated that it "disagrees with the Petitioners' assertion that fuel will burn regardless of age." Id. at 46,209. And with respect to the third proposition, the Commission stated "although it is possible that once a spent fuel assembly ignites, the zirconium fire can propagate to other assemblies in the SFP, the NRC has determined (as explained previously) that the risk of an SFP zirconium fire initiation is very low." Id. Accordingly, these three alleged "facts" were considered and rejected by the Commission and they do not provide a factual basis to support admissibility.

See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 136 (2004).

of the plant and the means by which the plant accessed the necessary water. While all plant licenses are site-specific, the Commission's regulations apply on a generic basis to all licensees; the Commission's denial of the PRM makes it clear that the Category 1 impacts in the generic rules in 10 C.F.R. Part 51 continue to apply.

Riverkeeper's additional claim -- that t h e ~ u l e m a k i nDenial

~ constitutes a NEPA decision that "supplemented and supplanted" the GEIS -- misconstrues the Commission's action. The denial of the petition for rulemaking changed nothing. The Commission declined to change its regulations. As this Board recognized, in LBP-08-13, the rule Riverkeeper challenges cannot be challenged here while the rule remains in effect. The Commission did not modify the GEIS, and did not supplement or supplant it. The regulation at 10 C.F.R.

§ 51.53(~)(2) that provides ( I ) that the applicant need not address spent fuel storage and (2) that spent fuel storage is a Category 1 issue,'%ave not changed. 'There is thus no possible legal basis for the amended contention. Riverkeeper's argument reveals the amended contention as an impermissible challenge to the regulatory structure and, therefore, out of scope and inadmissible.

Finally, Riverkeeper states that "to the extent that the data or conclusions in the PRM Denial differ significantly from the data or conclusions presented in NUREG-1437 or the ER, 10 C.F.R. § 2.309(f)(2) gives Riverkeeper both the right and the obligation to address them in new or amended contentions in order to preserve its challenge to the adequacy of the NRC's environmental decision." Petition at 3. This argument is without merit. If the differences that Riverkeeper is relying on consist of the three issues discussed above, there is no factual basis for the claims. Further, these issues are not new. They were put forward in the petitions for rulemaking, the first of which was filed almost two years ago.17 Thus, Riverkeeper has failed to Indian Point, LBP-08-13, 68 NRC at -(slip op. at 181).

'"0 C.F.R. Part 51, Subpart A, Appendix B.

l7 See "Massachusetts Attorney General; Receipt of Petition for Rulernaking," 71 Fed. Reg.

64,169 (Nov. I,2006); "State of California, Receipt of Petition for Rulernaking," 72 Fed. Reg. 27,068 (May 14, 2007).

meet the requirements at 10 C.F.R. § 2.309(f)(2)(i) and (ii) for the introduction of amended contentions. To the extent that Riverkeeper is relying on the Rulemaking Denial itself to satisfy the regulatory requirement, its reliance is again misplaced. The Rulemaking Denial approved the status quo; it rejected any change to the GEIS or the regulatory treatment of spent fuel storage. It did not result in a materially different regulatory scheme; thus, it cannot meet 10 C.F.R. § 2.309(f)(2)(ii)'s requirement that amended contentions must be based on materially different information.

For the foregoing reasons, Amended Contention EC-2 should be found inadmissible.

B. New Contention EC-4 In New Contention EC-4, Riverkeeper asserts:

The NRC Must Address the Spent Fuel Storage Impacts at Indian Point in a Supplemental GEIS.

New Petition at 23. In support of this contention, Riverkeeper asserts that the Rulemaking Denial constituted a new NEPA determination by the NRC that the environmental impacts of spent fuel pool storage are insignificant. Id. at 22. Citing the Commission's discussion of the effect of strategies to mitigate the risks of spent fuel storage, Riverkeeper asserts that the PRM I

Denial "demonstrates that in the absence of mitigative measures, the Commission considers the environmental impacts of continued high-density pool storage at Indian Point and other operating nuclear power plants to be significant." Id. at 23. Riverkeeper then argues that the Rulemaking Denial is the equivalent of a "Mitigation FONSl [finding of no significant impact]" and asserts that the NRC is attempting to avoid preparing an environmental impact statement

("EIS"). Id. Instead of preparing an EIS, Riverkeeper asserts, the NRC has issued the equivalent of an environmental assessment "that claims to have mitigated environmental impacts before the proposed action is announced formally." Id. at 22. Riverkeeper states that it is not clear whether the Rulemaking Denial will be binding on the parties in this proceeding and

"[wlith the expectation that this may be the case, Riverkeeper submits the following new contentions that challenqe the adequacy of the NRC's Rulemakinq Petition Decision to comply with NEPA and NRC implementing regulations." Id. at 22-23 (emphasis added). In support of this contention, Riverkeeper submits the declaration by Dr. Gordon R. Thompson.

Staff's Answer to New Contention EC-4 New Contention EC-4 is out of scope and constitutes a direct and impermissible challenge to the Commission's denial of the petitions for rulemaking. See Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 692-93 (1980). In addition, the contention raises issues that are clearly beyond the Board's authority to adjudicate in this site-specific license renewal proceeding. See Wisconsin Electric Power Co.

(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983). The Staff's reasons for opposing Riverkeeper's Amended Contention EC-2 are applicable to this contention as well, and are hereby incorporated by reference.

New Contention EC-4 is also inadmissible because it lacks basis and because it is speculative. It is, therefore, inadmissible under 10 C.F.R. § 2.309(f)(l)(i), (ii), and (iv).

Riverkeeper's assertion that the Rulemaking Denial is the equivalent of an environmental assessment lacks basis. The Commission's denial of the petitions for rulemaking is not an environmental assessment; it is simply what it says it is: a denial of petitions for rulemaking brought by the Attorney General for Massachusetts and the Attorney General for California. 73 Fed. Reg. at 46,204. The fact that the Commission denied the petitions and rejected the result that Riverkeeper desires to apply in this proceeding does not entitle Riverkeeper to challenge the Commission's decision in this proceeding. Oconee Nuclear Station, CLI-99-11, 49 NRC at 343.

Further, contrary to Riverkeeper's claim, the Commission did not attempt to circumvent any requirement that it issue an environmental impact statement. Here, the Commission issued

an environmental impact statement -the Generic Environmental Impact Statement.

Accordingly, Riverkeeper's citations to Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678 (DC. Cir. 1982) and National Audubon Society v. Hoffman, 132 F.3d 7 (2d Cir. 1997), are inapposite. Both cases involved challenges to agency decisions not to prepare an environmental impact statement. In this case, an environmental impact statement was prepared

- Riverkeeper simply disagrees with that statement's conclusions. Also contrary to Riverkeeper's assertions, the Commission addressed the impacts of spent fuel pool storage in the GElS and did so, not briefly, but at length. GEIS, NUREG-1437, vol. 1, at 6 6-86.

Riverkeeper argues that, if mitigative measures are not undertaken, spent fuel storage impacts would be significant. But this argument is speculative and fails to present any factual issues for adjudication. As the Commission indicated, mitigative measures have, in fact, been undertaken. 73 Fed. Reg. at 46,209. Because Riverkeeper's argument posits a scenario that does not exist, its contention lacks basis and fails to raise a genuine issue for adjudication. See Dominion Nuclear Connecticut, Inc. (Millstone Power Station), CLI-08-17, 68 NRC -(August 13, 2008) (slip op. at 10). Finally, Riverkeeper's claim that new and significant information must be addressed in a supplement to the GElS also lacks basis inasmuch as it fails to present any new and significant information. See discussion supra at 11 - 12.

For the reasons set forth above, New Contention EC-4 fails to meet the regulatory requirements for admissibility under 10 C.F.R. §2.309(f)(I), the admission of a new contention 18 Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549 (2d Cir. 1992), is also inapposite. Its requirement that the licensing agency "consider . . . the extent to which the project is consistent with a

[state] comprehensive plan" id. at 1554, is based on specific provisions of the Federal Power Act. The Federal Power Act is not relevant to this proceeding.

under 10 C.F.R. 5 2.309(f)(2), and the admission of a late filed contention under 10 C.F.R. 5 2.309(c) and should, therefore, be denied.

C. New Contention EC-5 In New Contention EC-5, Riverkeeper challenges the adequacy of the Commission's process for denying the petitions for rulemaking. Riverkeeper states that the Commission Fail[ed] to Identify Documents on Which the Rulemaking Petition Decision Relies.

New Petition at 28. Riverkeeper asserts that the NRC failed to identify all of the documents on which it relied for its finding of no significant impact. Specifically, Riverkeeper claims that the Commission's Rulemaking Denial "refers vaguely to studies by Sandia National Laboratories, but identifies only two sample studies, rather than the entire set relied on by the agency." Id. In addition, Riverkeeper complains that, while the Rulemaking Denial referred to license amendments and safety evaluations, it did not identify any documents that memorialize those amendments or evaluations. Id. And finally, Riverkeeper asserts that the Commission relied on documents for its finding of no significant impact but did not "make any attempt to disclose the portions of those documents that are releasable under the Freedom of Information Act ('FOIA')."

Id.

Staffs Answer to New Contention EC-5 New Contention EC-5 directly challenges the Commission's denial of the petitions for rulemaking and is, therefore, out of scope and raises an issue that the Board is not authorized to adjudicate in this license renewal proceeding. It is, therefore, inadmissible under 10 C.F.R.

§2.309(f)(l)(iii). The arguments the Staff raised with respect to Riverkeeper's Amended Contention EC-2 are applicable to this contention as well and they are hereby incorporated by reference.lg j 9 Riverkeeper appears to be mistaken when it asserts that the Commission failed to make public releasable portions of the documents on which it relied. The Commission did, in fact, make a redacted version of one of the documents on which it relied available to the public in response to a FOlA request.

See 73 Fed. Reg. at 46,207, 17.6. The redacted version of the document can be accessed through the Agencywide Documents Access and Management System (ADAMS) at Accession No. M1062290362.

CONCLUSION For the reasons stated above, Riverkeeper's Amended Contention EC-2 and New Contentions EC-4 and EC-5 fail to meet the admissibility requirements of 10 C.F.R. 9 2.309(c) and (f). They raise issues that are beyond the scope of this proceeding and are speculative, and lack a basis in fact and law. Riverkeeper's request for the admission of Amended Contention EC-2 and New Contentions EC-4 and EC-5 should, therefore, be denied.

Furthermore, because Riverkeeper has not demonstrated the existence of new and significant information to support the admission of the new and amended contentions, Riverkeeper's Motion for Leave to file those contentions should be denied.

+

Respectfully submitted, Beth N. Mizu o Counsel for NRC Staff Dated at Rockville, MD this 30th day of September 2008

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO RIVERKEEPER, INC.'S NEW AND ANIENDED COIVTENTIONS REGARDING ENVIRONNIENTAL IMPACTS OF HIGH-DENSITY POOL STORAGE OF SPENT FUEL," dated September 30, 2008, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, as indicated by double asterisk, with copies by electronic mail this 3othday of September, 2008:

' I 'i Lawrence G. McDade, Chair* A ' Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication*

Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mall Stop: 0-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: LGMI @nrc.gov E-mall: 0CAAMAlL@nrc.~ov Dr. Richard E. Wardwell* Office of the Secretary*

Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: REW@nrc.gov E-mail: HEARlNGDOCKET@nrc.gov Dr. Kaye D. Lathrop* Zachary S. Kahn*

Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgway, CO 81432 U.S. Nuclear Regulatory Commission E-mail: KDL2@nrc.aov Washington, DC 20555-0001 E-mail: ZXKl @nrc.aov

Atomic Safety and Licensing Board Panel* John Louis Parker, Esq.**

U.S. Nuclear Regulatory Commission Office of General Counsel, Region 3 Mail Stop: T-3 F23 New York State Department of Washington, DC 20555-0001 Environmental Conservation (Via Internal Mail Only) 21 South Putt Corners Road New Paltz, NY 12561-1620 E-mail: jparker@qw.dec.state.nv.us Kathryn M. Sutton, Esq.** Mylan L. Denerstein, Esq.**

Paul M. Bessette, Esq. Janice A. Dean, Esq.

Martin J. O'Neill, Esq. Executive Deputy Attorney General, Morgan, Lewis & Bockius, LLP Social Justice 1111 Pennsylvania Avenue, NW Office of the Attorney General Washington, D.C. 20004 of the State of New York E-mail: ksutton@morqanlewis.com 120 Broadway, 25thFloor E-mail: pbessette@morqanlewis.com New York, NY 10271 E-mail: martin.o'neilI@moraanlewis.com E-mail: mvlan.denerstein@.oas.state.nv.us janice.dean@oaa.state.nv.us Elise N. Zoli, Esq.** John J. Sipos, Esq.**

Goodwin Procter, LLP Charlie Donaldson, Esq.

Exchange Place Assistants Attorney General 53 State Street New York State Department of Law Boston, MA 02109 Environmental Protection Bureau E-mail: ezoli@qoodwinprocter.com The Capitol Albany, NY 12224 E-mail: john.sipos@oaq.state.nv.us William C. Dennis, Esq.** Joan Leary Matthews, Esq.**

Assistant General Counsel Senior Attorney for Special Projects Entergy Nuclear Operations, Inc. New York State Department of 440 Hamilton Avenue Environmental Conservation White Plains, NY 10601 Office of the General Counsel E-mail: wdennis@,entersv.com 625 Broadway, ~ 4Floor ' ~

Albany, NY 12233-1500 E-mail: jlmatthe@sw.dec.state.nv.us Justin D. Pruyne, Esq.** Michael J. Delaney, Esq.**

Assistant County Attorney Vice President - Energy Department Office of the Westchester County Attorney New York City Economic Development 148 Martine Avenue, 6thFloor Corporation (NYCDEC)

White Plains, NY 10601 110 William Street E-mail: jd~3@westchestersov.com New York, NY 10038 E-mail: mdelanev@nvcedc.com

Daniel E. O'Neill, Mayor** Manna Jo Greene*'

James Seirmarco, M.S. Hudson River Sloop Clearwater, Inc.

Village of Buchanan 112 Little Market Street Municipal Building Poughkeepsie, NY 12601 Buchanan, NY 10511-1298 E-mail: Mannaio0clearwater.orq E-mail: vob@bestweb.net Daniel Riesel, Esq**. Diane Curran, Esq.**

Thomas F. Wood, Esq. Harmon, Curran, Spielberg & Eisenberg, LLP Ms. Jessica Steinberg, J.D. 1726 M Street, NW, Suite 600 Sive, Paget & Riesel, P.C. Washington, D.C. 20036 460 Park Avenue E-mail: dcurran@harmoncurran.com New York, NY 10022 E-mail: driesel@sprlaw.com jsteinbera@sprlaw.com Robert Snook, Esq.** Victor Tafur, Esq.**

Office of the Attorney General Phillip Musegaas, Esq.

State of Connecticut Riverkeeper, Inc.

55 Elm Street 828 South Broadway P.O. Box 120 Tarrytown, IVY 10591 Hartford, CN 06141-0120 E-mail: philli~@riverkeeper.org E-mail: robert.snook@po.state.ct.us vtafur@riverkeeper.org Richard L. Brodsky, Esq.** Sarah L. Wagner, Esq.**

5 West Main St. Legislative Office Building, Room 422 Elmsford, NY 10523 Albany, NY 12248 E-mail: brodskr@assembly.state.nv.us E-mail: sarahwanneresq@qmail.com richardbrodsky@msn.com Susan H. Shapiro, Esq.** John LeKay**

21 Perlman Drive FUSE USA Spring Valley, NY 10977 351 Dyckman Street E-mail: mbs@ourrocklandoffice.com Peekskill, NY 10566 E-mail: fuse usa@vahoo.com Ms. Nancy Burton** Arthur J. Kremer, Chairman**

147 Cross Highway New York Affordable Reliable Electricity Redding Ridge, CT 06876 Alliance (AREA)

E-mail: nancvburtonct@aol.com 347 Fifth Avenue, Suite 508 New York, NY 10016 E-mail: aikremer@rmfpc.com kremeraarea-alliance.orq