ML082900032

Riverkeeper Inc.'S Reply to Entergy and NRC Staff Oppositions to New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel

ML082900032
Person / Time
Site:	Indian Point
Issue date:	10/07/2008
From:	Musegaas P Riverkeeper
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-190
Download: ML082900032 (8)

Text

DOCKETED USNRC October 7, 2008 (12:46pm)

OFFICE OF SECRETARY October 7, 2008 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF.AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND. LICENSING BOARD

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In the Matter of )

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Entergy Nuclear.Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Station Units 2. and 3) ) and&50-286-LR RIVERKEEPER, INC.'S REPLYTO ENTERGY AND.NRC STAFF OPPOSITIONS TO NEWAND AMENDED CONTENTIONS REGARDING ENVIRONMENTAL IMPACTS OF HIGH-DENSITY POOL STORAGE OF SPENT FUEL Pursuant to 10 C.F.R. § 2.3 09(h)(2), Riverkeeper, Inc. ("Riverkeeper") hereby replies to Entergy Nuclear Operations, Inc.'s ("Entergy's") and the U.S. Nuclear Regulatory ("NRC") Staff s responses to Riverkeeper's New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel (September 5, 2008) ("Riverkeeper's New and Amended Contentions").'

The NRC Staff contends that Riverkeeper's New and Amended Contentions constitute an impermissible challenge to the NRC's decision rejecting rulemaking petitions by the Commonwealth of Massachusetts and the State of California. NRC Staff Response at 10 and 15, citing The Attorney Generalof Commonwealth ofMassachusetts, The Attorney General of California;Denial of Petitionsfor Rulemaking, 73 Fed. Reg.

Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper's New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel (September 20, 2008) ("Entergy's Answer"); NRC Staffs Answer to Riverkeeper, Inc.'s New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel (September 30, 2008) ("NRC Staff s Answer").

II1S-cs

46,204 (August 8, 2008) ("Rulemaking'Petitiony Decision"). 'TheStaffs assertion is incorrect. Riverkeeper's New and Amended Contentions do not challenge the Rulemaking Petition Decisionper se. Instead, they challenge the NRC's conclusion, announced for the first time in the Rulemaking Petition Decision, that it is not necessary to prepare an Environmental Impact Statement ("EIS") for continued spent fuel storage at Indian Point (or any other individual nuclear power plant), based on site-specific mitigative measures imposed through an amendment to the Indian Point operating license. As stated in Riverkeeper's New and Amended Contentions, the:NRC's reliance on those plant-,specific mitigative measures to avoid preparation of an EIS is inconsistent with the requirements of NEPA.

Both Entergy and the NRC Staff attempt to minimize the significance of the NRC's reliance on mitigation measures taken at Indian Point to reduce the environmental impacts of a spent fuel pool accident to an acceptable level. Entergy Answer at 17, NRC Staff Answer at 12. The Rulemaking Petition Decision speaks for itself, however. As made clear by the language quoted by the NRC at page 4-5 of its Answer, the NRC has made a major change to its analysis.of the environmental impacts of spent fuel storage at nuclear power plants. While the NRC previously found that the impacts of spent fuel storage were insignificant without the need for any mitigation measures, it now relies on specific mitigation measures employed. at each individual nuclear power plant for its conclusion that the environmental impacts of spent fuel storage are insignificant:

Given the physical robustness of SFPs [spent fuel pools], the physical security measures, andSFP 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 fir, whether caused by an accident or a terrorist attack, is very low.

73 Fed. Reg. at 46,208 (emphasis added).

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Moreover, neither Entergy nor the NRC Staff effectively ;disputes Rive'rkeeper's legal assertion that the NRC's reliance on the Indian Point site-specific mitigative measures has the effect of removing the issue.of spent fuel storage impacts at Indian Point from "Category 1" of Table B-1 of Appendix B.to -10 C.F.R. Part 51.'.See Riverkeeper's New and Amended Contentions at 11-13, citing footnote 2 of Table B-I (An issue may be classified as Category 1 only where "[m]itigation of adverse impacts associated with the issue has been considered in the analysis, and it has been determined that additional plant-specific mitigation measures are likely notlto be sufficiently beneficial to warrant implementation.") While the NRC Staff asserts that the mitigative measures are generic because they were imposed on all nuclear plants in the United States (NRC Staff Answer at 11), the Staff fatally undermines its own argument by conceding in a footnote that the mitigative measures are "by necessity, plant-specific."

NRC Staff Answer at 11 n.14.

Nevertheless, as the Staff points out, the Rulemaking Petition Decision affirms the inclusion of spent fuel storage impacts in Category 1 of Table B-1 of Appendix B to 10 C.F.R. Part 51. NRC Staff Answer at 4-5, citing 73 Fed. Reg. at 46,208. Yet the Staff is unable to explain why, if the NRC relies on site-specific mitigation measures at Indian Point to reduce the impacts of spent fuel storage to an assertedly low level, it should not be precluded by footnote 2 of Table B-1 from continuing to classify those impacts as Category 1 impacts. Riverkeeper respectfully submits that only the Commission can address this conundrum, and therefore the Atomic Safety and Licensing Board ("ASLB")

should refer the issue to the Commission for resolution.2 2 The NRC Staff argues that Riverkeeper should have brought its concerns 3

The NRC Staff also criticizes Riverlkeper for not '611owing through on a statement to the ASLB that if the Commonwealth of Massachusetts' rulemaking petition were denied, Riverkeeper would file a waiver petition. NRC Staff Answer at 5. Atthe time it made that statement, Riverkeeper reasonablypresumed that the NRC would-either grant or deny the rulemaking petition, based'on the record presented to it by the Commonwealth of Massachusetts and the State of California. Riverkeeper did not anticipate, nor could it have anticipated, that the Commission would deny the rulemaking petition based on the imposition of plant-specific mitigation measures - including measures taken at Indian Point -- that were never previously identified by the Commission in the course of the proceeding for consideration of the rulemaking petitions. The remedy chosen by Riverkeeper addresses those unforeseen: and 3

unforeseeable circumstances.

Finally, both Entergy and the Staff argue that the Rulemaking Petition Decision does not constitute a NEPA decision in this license reniewal proceeding that is subject to 10 C.F.R. § 2.309(f)(2). Entergy Answer at 9, NRC Staff Answer at 13. Riverkeeper respectfully submits that the legal status of the Rulemaking Petition Decision is straight to the Commission. NRC Staff s Response at 2. In making this argument, the Staff overlooks the fact that the Commission has delegated authority to the ASLB to preside over the Indian Point license renewal proceeding. See 72 Fed. Reg. 60,394 (October 24, 2007). Therefore, Riverkeeper was required to submit its New and Amended Contentions to the ASLB in the first instance, and to request referral of the issues to the Commission.

s Similarly, Riverkeeper respectfully submits that when the ASLB announced that if the rulemaking petitions were 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" (see Entergy Answer at 4 and NRC Staff Answer at 10-11, quoting LBP-08-13, slip op. at 181), the ASLB could not have anticipated that the Commission would rely on previously-undisclosed plant-specific mitigation measures, including mitigation measures taken at Indian Point.

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somewhat ambiguous. Because the Decision refers to-plant-specific mitigation measures taken at each individual plant - including Indian Point - Riverkeeper reasonably concluded that the Rulemaking Petition Decision does constitute a NEPA decision in.this case. If, in fact, theRulemaking Petition Decision does not constitute any kind of NEPA decision that is subject to 10 C.F.R. § 2.309(f)(2), then Riverkeeper seeks a ruling from the ASLB to that effect, in order to protect Riverkeeper from being penalized for failing to raise its concerns at the earliest possible juncture. Riverkeeper respectfully submits that given the strict timeliness requirements of 10 C.F.R. § 2.309(f),.Riverkeeper had no choice but to submit its New and Amended Contentions as soon as it became aware of a potentially applicable NEPA document containing information that could affect either current or future NEPA based contentions in this proceeding.

Respectfully submitted, Phillip Musegaas, Esq.

Hudson River Program Director Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 224)

Fax 9.14-478-4527 phillip(iriverkeeper.org www.riverkeeper.org October 7, 2008 5

CERTIFICATEOF: SERVICE I certify that on October 7, 2008 copies ofthe foregoing Riverkeeper, Inc.'s Reply to Entergy and NRC Staff Oppositions to New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel were served on the following by e-mail and first-classmail:

Lawrence G. McDade, Chair Robert D. Snook, Esq.

Atomic Safety and Licensing Board Panel Assistant Attorney General Atomic Safety and Licensing Board 55 Elm Street, P.O. Box 120 U.S. Nuclear Regulatory Commission Hartford, CT 06141-0120 Washington, D.C. 20555 By e-mail: Robert.Snookkpo.state.ct.us Also by e-mail: Lawrence.McDadegnrc.gov 4-Richard E. Wardwell MichaelJ. Delaney, V.P. - Energy Atomic Safety and Licensing Board New York.City Econ. Development Corp.

U.S. Nuclear Regulatory Commission 110 William Street' Washington, D.C. 20555 New York, NY 1003.8 Also by e-mail: Richard.Wardwell@nrc.gov Also by e-mail: mdelanev'dnycedc.com John LeKay Martin J. O'Neill, Esq.

Heather Ellsworth Bums-DeMelo Kathryn M. Sutton, Esq.

Remy Chevalier Paul M. Bessette, Esq.

Bill Thomas Mauri T. Lemoncelli, Esq.

Belinda J. Jaques Morgan, Lewis & Bockius, LLP FUSE USA 1111 Pennsylvania Ave. N.W.

35 1 Dyckman Street Washington, D.C. 20004 Peekskill, NY 10566 martin.oneilla2morganlewis.com Also by e-mail: fuse usa~yvahoo.com pbessette(~morganlewis.com ksutton(2amorganiewis.com 4-Susan H. Shapiro, Esq. Office of Commission Appellate Adjudication 21 Perlman Drive U.S. Nuclear Regulatory Commission Spring Valley, NY 10977 Washington, D.C. 20555 Also by e-mail: mbs@ourrocklandoffice.com Also by e-mail: OCAAMAIL@nrc.gov John J. Sipos, Esq. Sherwin E. Turk, Esq.

Assistant Attorney General Beth N. Mizuno, Esq.

Office of the New York Attorney General David E. Roth, Esq.

for the State of New York Jessica Bielecki, Esq.

The Capitol Marcia J. Simon, Esq.

Albany, New York 12224 Office of General Counsel Also by e-mail: John.Sipos(aoag.state.nv.us U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Also by e-mail: Sherwin.Turkdnrc.gov lbs3@nrc.gov

Beth'.Mizqnognrb., ov David.Roth(2nrc. gov Jessica.Bielecking~nrc. gov Marcia. Sirnon~anrc. gov Office of the Secretary William;C..Dennis, ,Esq.

Rulemakings and Adjudications Staff Entergy"Nuclear Operations, Inc.

U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Washington, D.C. 20555 White Plains; NY 10601 Also by e-mail: HEARINGDOCKET(,inrc.gov Also by e-mail: wdennisgentergy.com Stephen C. Filler, Board Member Manna Jo Greene Hudson River Sloop Clearwater, Inc. HudsonRiver Sloop Clearwater, Inc.

303 South Broadway, Suite 222 112:Little Market Street Tanrytown, NY 10591 Poughkeepsie, NY 12601 Also by e-mail: Sfiller(anylawline.com Also by e-mail: Mannajo(dclearwater.org Justin D. Pruyne, Esq. Joan Leary1Matthews, Esq.

Assistant County:Attorney, Litigation Bureau. Senior Attorney for Special Projects Of Counsel to Charlene M. Indelicato, Esq. New York State Department Westchester County Attorney of Environmental Conservation 148 Martine Avenue, 6 th Floor 625 Broadway, 14'h floor White Plains, NY 10601 Albany, New York 12233-5500 Also by e-mail: idp3@&westchestergov.com Also by e-mail:

i*lmatthewsna)gw.dec.state.ny.us Zachary S. Kahn, Esq.,. Law Clerk Thomas F. Wood, Esq.

Atomic Safety and Licensing Board Panel Daniel Riesel, Esq.

U.S. Nuclear Regulatory Commission Sive, Paget and Riesel, P.C.

Washington, D.C. 20555 460 Park Avenue Also by e-mail: Zachary.Kalm@(nrc.gov New York, NY 10022 Also by e-mail: driesel@sprlaw.com Judge Kaye D. Lathrop Nancy Burton 190 Cedar Lane East 147 Cross Highway Ridgeway, CO 81432 Redding Ridge-; CT 06878 Also by e-mail: Kaye.Lathropr~nrc.gov Also by e-mail: NancyBurtonCT(Qaol.com Elise N. Zoli, Esq. Janice A. Dean, Esq.

Goodwin Procter, LLP Assistant Attorney General 53 State Street Office of the Attorney General Boston, MA 02109 120 Broadway, 26th Floor Also by e-mail: ezoli(goodwinprocter.com New York, NY 10271 Also by e-mail: Janice.deankoag.state.nv.us 2

Richard U. BrodskyiEsq. JohiL.-Parker,'Esq.

Assemblyman Regional Attorney, Region 3 Suite 205 New York State Department; of 5 West Main Street Environmental Conservation Elmsford, NY 10523. 21 South Putt Corners brodskradassemblv.state.ny.us NewwPaltz, NY 12561 richardbrodskvrmsn.com -Also by e-mail: ýilparker@a)vgw.dec.state.ny.us Mylan L. Denerstein, Esq. Diane Curran, Esq.

Executive Deputy Attorney General Harmon, Curran, Spielberg & Eisenberg, LLP 120 Broadway, 25th Floor - 1726,M,.Street NW, Suite:600 New York, NY 10271 Washington, DC 20036 Also by e-mail: -dcurranaharmoncurran.com mylan.denerstein~oag. state.ny.us Sarah L. Wagner, Esq.

Room 422 Legislative Office Building Albany, NY 12248 sarahwagneresQ@gmail.com Phillip Musegaas October 7, 2008 3