ML090140328

From kanterella
Jump to navigation Jump to search
Entergy'S Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Riverkeeper EC-3/Clearwater EC-1
ML090140328
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 01/07/2009
From: Bessette P, Dennis W, O'Neill M, Sutton K
Entergy Nuclear Operations
To:
NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-202
Download: ML090140328 (35)
v • d • e


Text

DOCKETED

...USNRC January 8 2008 (8:30am)

ýv56a

ýi~ OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR

)

ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3)

I ENTERGY'S PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AND LICENSING BOARD DECISION ADMITTING CONSOLIDATED RIVERKEEPER EC-3/CLEARWATER EC-1 Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

William C. Dennis, Esq.

COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

January 7, 2009 5~~I-632

i TABLE OF CONTENTS Page

1. IN T R O D U C TIO N ..................................... .......................................................... *........ - 1 -

II. LEGA L STAN D ARD S .......................................................................................... . 4-III. STATEMENT OF THE CASE ..............................................................................- 6-A. The IPEC License Renewal Application Assessment of Groundwater C ontam ination ............................................................................................. - 6 -

B. Subsequent Investigations, Inspections, and Related Activities .............. - 8 -

C. Procedural H istory ........................................................................................... - 10 -

IV . A R G U M EN T .................................................................. ........................... A. Commission Review of the Board's Decision on the Consolidated C ontention is W arranted .............................................................. .................... - 13 -

B. The Board Decision Admitting the Consolidated Contention Contains Three M aterial Errors of Law .................................. I................................... - 16 -

1. Entergy's Conclusions in the ER Regarding the Significance of the Groundwater Contamination Currently Meet All Applicable NEPA and N R C Regulations .......................................................................... - 17 -
2. There is No Genuine Issue Regarding the Significance of the New Information Relating to the Spent Fuel Pool Radiological Leaks ....... - 19 -
3. The Board Erred in Finding That There is Any Remaining Question as to Whether the Maximum Groundwater Impact Has Been Determ ined for the Site .............................................................. - 23 -

V. C O N C L U SIO N ........................................................................................................... -i-

TABLE OF AUTHORITIES Page CASES Advanced Med. Sys, Inc. (One Factory Row Geneva, OH 44041), ALAB-929, 31 NRC 271 (1990) ................ ................... ......................................................................................... Passim AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2 0 0 6 ) ...................................................................................................................... I........................ 5 Commonwealth Edison Co. (Zion Station, Units I & 2), ALAB- 116, 6 AEC 258 (1973) ....... 5, 13 Conn. Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 54 NRC 368 (2001) .......... 15 Curatorsof the Univ. of Mo., CLI-95-8, 41 NRC 386 (1995) ....................... 17 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-24 , 56 N R C 335 (2002) ........................................... I.................................................................. 5 Duke Energy Corp. (McGuire Nuclear Station, Units I & 2; Catawba Nuclear Station, Units 1 &

2), C L I-02-17, 56 NR C 1 (2002) ................................................................................................. 6 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI 17, 58 NRC 419 (2003) ............................................ I............................................ 20 Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 N RC _ , slip op. (July 31, 2008) ........................................................................................... Passim Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), CLI-07-1, 65 NRC 1 (2007) ........................................................... Passim Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371 (2007) ....................................... .............. 6 Fla.Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-16, 31 N RC 509 (1990) .................................................................................... .................................... 25 Fla.Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-0 1-17, 54 NRC 3 (2 0 0 1) .... ................................................................................................... I.................................. 6 , 18 Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-99-22, 50 NRC 3

( 19 9 9 ) ........................................................................................ ....................................................... 7 La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77 (1998) ...... 17 La. Energy Servs., L.P. (Nat'l Enrichment Facility), LBP-06-8, 63 NRC 241 (2006) ........... 17, 18 La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-05-20, 62 NRC 523 (2005) ........... 17

-i-

TABLE OF AUTHORITIES Page La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-05-28, 62 NRC 721 (2005) ........... 16 Pa'ina Hawaii,LLC (Materials License Application), CLI-08-16, 68 NRC _, slip op. (Aug. 13, 20 0 8) ................................................................................................................................................ 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307 (19 9 8) ..................................................................................................................................... 4 , 5 , 13 PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-13, 52 NRC 2 3 (2 000) .......................................................................................................................................... 5 SierraClub v. Froehike, 816 F.2d 205 (5th Cir. 1987) ............................ 7 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 N R C 2 9 (19 89) ......................................................................................................................... 18 Wis. v. Weinberger, 745 F.2d 412 (7th Cir. 1984) ......................................................................... 7 REGULATIONS 10 C .F .R . § 2 .306 (2007) ................................................................................................................. I 10 C .F .R . § 2 .309(f)(1) .................................................................................................................... 2 10 C .F .R . § 2 .309(f)(1)(iii) ...................................................................................................... 20,2 1 10 C .F .R . § 2.309(f)(1)(iv) ..................................................................................................... . . 21 10 C.F.R. § 2.309(t)(1)(v) .................................................................................... 22 10 C .F .R . § 2.309(f)(1)(vi) .................................................................................................... . . 25 10 C .F .R . § 2 .3 16 ........................................................................................................................... 12 10 C.F.R. § 2.341(b)(1) .................................................

10 C.F.R. § 2.341(b)(6) ................................................. 1 10 C .F .R . § 2 .34 1(f)(2) ........................................................................................................... P assim 10 C.F.R. Part 50, Appendix I ............................................. 8 10 C.F.R. § 50.36a(b) .................................................. 8 10 C.F.R. Part 51, Subpart A, Appendix B ....................................... 8,23 10 C .F .R . § 5 1.45 ....................................................................................... ..................... . . . . . 17

-ii-

TABLE OF AUTHORITIES Page 10 C .F .R . § 51.53(c) ................................................................................................... 21 10 C .F .R . § 5 1.53(c)(3)(iv) ................................................................................................... 7, 18 4 0 C .F .R . § 14 1.1 ......................................................................................................................... 22 40 C .F .R . § 14 1.2 ............................... ................................................ 22 FEDERAL REGISTER Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (D ec . 13 , 19 9 1) ............................................................................................................................. 25 MISCELLANEOUS Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 4 8 N R C 18 (19 9 8) ............................................................................................................................ 5

-iii-

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC )

)

(Indian Point Nuclear Generating Units 2 and 3) )

__ January 7, 2009 ENTERGY'S PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AND LICENSING BOARD DECISION ADMITTING CONSOLIDATED RIVERKEEPER EC-3/CLEARWATER EC-1 I. INTRODUCTION In accordance with 10 C.F.R. § 2.341 (f)(2), Entergy Nuclear Operations, Inc. ("Entergy")

requests that the Commission review the Atomic Safety and Licensing Board ("Board") decision admitting consolidated Riverkeeper, Inc. ("Riverkeeper") Contention EC-3 and Hudson River Sloop Clearwater Inc. ("Clearwater") Contention EC-1 ("Consolidated Contention") in the license renewal proceeding for Indian Point Nuclear Generating Units 2 and 3, also referred to as Indian Point Energy Center ("IPEC").1 The Consolidated Contention asserts that Entergy has not adequately assessed the significance of new information concerning the potential environmental impacts of radionuclide leaks from the Units 1, 2, and 3 spent fuel pools ("SFPs") located at the IPEC site.

On December 18, 2008, the Board ruled on Entergy's previously-pending motion for reconsideration and thus, the Board's decision admitting the Consolidated Contention is now ripe for interlocutory review. 'See 10 C.F.R,

§ 2.341(b)(6). Accordingly, this Petition is timely filed pursuant to 10 C.F.R. § 2.341(b)(1) and (f)(2), which allow a party to file a petition for review with the Commission within 15 days after service of a decision, and 10 C.F.R. § 2.306 (2007), which provides that "[wjhenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon by first class mail, five (5) days are added to the prescribed period."

Commission review is warranted because litigating the Consolidated Contention will cause immediate and serious irreparable harm in this proceeding that cannot be alleviated through a petition for review of the Board's final decision at the end of the proceeding and affects the basic structure of this proceeding in a pervasive and unusual manner, thereby meeting the requirements of 10 C.F.R. § 2.341 (f)(2)(i) and (ii) for Commission review. In particular, admission of the Consolidated Contention, contrary to 10 C.F.R. § 2.309(f)(1) and 10 C.F.R. Part 54, renders undue delay in this proceeding resulting from the need to litigate the merits of an issue that is clearly outside the scope of this proceeding (i.e., historical leakage from the now empty and drained IPEC Unit 1 SFP) against a regulatory standard that does not apply.

Moreover, as the Board has deferred ruling on the Intervenors' motion to impose Subpart G procedures, 2 there is still the potential for depositions, interrogatories, and other burdensome discovery obligations relating to the Consolidated Contention that extend beyond the scope of Part 54. Even if Subpart G procedures are not imposed, or are imposed at some later date, the Board has triggered the mandatory disclosure process which, as discussed further in Section IV.A below, requires that Entergy research and identify literally thousands of documents relevant to the expansive Consolidated Contention.

In the alternative, should the Commission find that the issues discussed below do not meet the standards for interlocutory review, Entergy requests that the Commission nonetheless review the Consolidated Contention as a matter of discretion under its inherent supervisory power over adjudications given the substantial and novel questions of law and policy directly involved here that could adversely affect* numerous pending and future license renewal proceedings. Specifically, the Board's decision on the Consolidated Contention raises policy 2 See Memorandum and Order (Addressing Requests that the Proceeding be Conducted Pursuant to Subpart G) at 13 (Dec. 18, 2008) (unpublished order).

2

41 issues of wide implication relevant to the requirements of 10 C.F.R. Part 51, the scope of 10 C.F.R. Part 54, and the applicability and meaning of NRC's regulations pertaining to environmental and exposure monitoring. Similar to the Commission's recent decision in the Vermont Yankee license renewal proceeding, the Board's decision in this case "raise[s]

significant issues of potentially broad impact and may well recur in... likely license renewal proceedings." 3 In fact, the issues raised in this Petition are of even wider application than those raised in the Vermont Yankee case because groundwater contamination due to leaks from power reactors has been observed at several plants over the last ten years, most of which have not yet been issued renewed operating licenses, and several of which have the potential to reach the 4

contention admissibility stage before the conclusion of this proceeding.

As fully discussed in Section IV below, the relief requested herein should be granted because the Board's decision admitting the Consolidated Contention contains three fundamental and material legal errors. First, the Board erred in finding that it is "uncertain" whether Entergy's conclusions contained in the Environmental Report ("ER") regarding the significance of the groundwater contamination are sufficient for purposes of satisfying the National Environmental Policy Act ("NEPA") and NRC regulations. 5 Entergy's ER satisfied both regulatory and statutory requirements. Second, the Board erred in finding that there is a genuine 6

dispute regarding the significance of the new information relating to the SFP radiological leaks 3 Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-l, 65 NRC 1, 5 (2007).

4 Compare NRC Status of License Renewal Applications and Industry Activities, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications.html, with Liquid Radioactive Release Lessons Learned Task Force Final Report at 3-10 (Sept. 1, 2006), available at http://www.nrc.gov/reactors/

operating/ops-experience/tritium/lr-release-lessons-learned.pdf ("Task Force Report").

5 Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC _, slip op. at 188 (July 31, 2008).

6 Id.

3

because IPEC groundwater radionuclide concentrations unquestionably comply with applicable NRC radiological dose limits and, contrary to the naked assertions of Intervenors, EPA drinking water standards do not apply to IPEC groundwater. Further, the purely historical contribution of leaks from the IPEC Unit 1 ("IP 1") SFP to the groundwater contamination is not within the legal scope of this IP2 and IP3 license renewal proceeding. Third, the Board erred in finding that there is a question as to whether the maximum groundwater impact and the maximum dose has been determined for the site 7 because Entergy indisputably complied with all applicable NRC regulations in determining dose to a maximally exposed individual, that dose is only a fraction of applicable NRC limits, and Intervenors provided no legal,factual, or expert support challenging Entergy's compliance.

Accordingly, Entergy respectfully requests that the Commission accept this Petition for Review and reverse the Board's decision to admit the Consolidated Contention.

I1. LEGAL STANDARDS The Commission's authority to review interlocutory board decisions is based on two independent sources: regulation and the Commission's own inherent supervisory authority.

Under the regulatory regime, the Commission "will [grant review] if a particular ruling (1) 'threatens the party adversely affected by it with immediate and serious irreparable impact,'

or (2) '[afffects the basic structure of the proceeding in a pervasive or unusual manner."' 8 A board decision that fundamentally alters the nature of the proceeding by "mandating duplicative ld. at 192.

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310 (1998)

(granting interlocutory review because decision to establish a second, separate board to consider security issues affected the basic structure of the proceeding). See 10 C.F.R. § 2.341(t)(2).

4

or unnecessary litigating steps," 9 or threatens to impose "truly exceptional delay or expense" may therefore justify interlocutory review. 10 But the Commission need not be bound by these regulatory standards before accepting interlocutory review of a board decision. That is because the Commission may conclude that "interlocutory review is appropriate as an exercise of [its] inherent and ongoing supervisory authority over adjudicatory proceedings."" This sort of review is particularly warranted when, as here, a board ruling "present[s] novel questions that could benefit from early resolution,"'12 and would have a "potentially broad impact."'13 Further, in a case involving a board referral, the Atomic Safety and Licensing Appeal Board emphasized that its discretionary authority to review interlocutory decisions is appropriate when, as here, the board ruling "involves solely a question of law and has not been previously addressed on appeal."'14 On the merits, the Commission will reverse a board's ruling when there is an "error of law or abuse of discretion."'15 For example, the Commission has reversed contention admissibility decisions when a board has admitted a contention that would inappropriately expand NRC's NEPA responsibilities.t6 The Commission has also reversed licensing board 9 PrivateFuel Storage, CLI-98-7, 47 NRC at 310.

10 Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB- 116, 6 AEC 258, 259 (1973).

1 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23, 29 (2000)

(accepting licensing board referral of interlocutory summary disposition ruling because there was a novel issue that would benefit from early Commission review).

12 Id. See also Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998).

13 Vermont Yankee, CLI-07-1, 65 NRC at 5.

14 Advanced Med. Sys, Inc. (One Factory Row Geneva, OH 44041), ALAB-929, 31 N.R.C. 271, 279 (1990).

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC I11,121 (2006)

(citations omitted) (affirming denial of petition to intervene where the petitioner failed to point to an error of law or abuse of discretion).

16 See, e.g., Pa'inaHawaii, LLC (Materials License Application), CLI-08-16, 68 NRC _, slip op. (Aug. 13, 2008)

(reversing decision admitting NEPA contention that challenged reliance on Food and Drug Administration findings related to health impacts associated with consuming irradiated foods); Duke Cogema Stone & Webster 5

decisions admitting NEPA contentions premised on an improper interpretation of applicable statutes and regulations.17 Finally, when the Commission undertakes review of a licensing board contention admissibility decision, it may narrow the scope of an admitted contention if it finds that certain bases are unsupported, lack specificity, or are devoid of legal merit.' 8 III. STATEMENT OF THE CASE A. The IPEC License Renewal Application Assessment of Groundwater Contamination On April 23, 2007, Entergy submitted an application to the NRC to renew the IPEC Units 2 and 3 operating licenses for ani additional 20 years ("Application" or "LRA").1 9 As required by 10 C.F.R. Part 51, Entergy's Application included an ER that analyzed the potential 20 environmental 'impacts associated with license renewal for all relevant Category 2 issues.

Section 5.1 of the ER provided Entergy's assessment of whether groundwater radionuclide contamination identified at the IPEC site is potentially "new and significant" as it relates to (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 NRC 335 (2002) (reversing decision admitting NEPA-terrorism contention).

17 See, e.g., Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 385-89 (2007) (reversing decision admitting contention that would involve a collateral attack on 10 C.F.R. Part 51 regulations and would violate the requirements of the Clean Water Act).

8 See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units I & 2; Catawba Nuclear Station, Units I & 2),

CLI-02-17, 56 NRC 1, 12-13 (2002) (dismissing one basis of admitted severe accident mitigation alternatives contention because the basis was only supported by a conclusory statement).

19 The extension of the IPI license is not a part of the LRA, but several IPI systems and components that interface with and in some cases support the operation of IP2 and IP3 are included within the scope of license renewal.

However, the fuel handling and chemical system building, which houses the IPI SFP, are not within the scope of license renewal. LRA at 2.2-24 to 2.2-26, Table 2.2-4.

20 Category 2 issues are those issues for which NUREG-1437, Generic Environmental Impact Statement ("GEIS")

for License Renewal of Nuclear Plants, concluded that environmental impact severity levels "might differ significantly from one plant to another," or for which additional plant-specific mitigation measures should be considered. Fla. Power.& Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 1I (2001).

21 Entergy confirmed the presence of tritium in site groundwater in October 2005.

6

license renewal.22 In order to be significant, "new information must present 'a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.",23 "It is not enough that the information may be worthy of further inquiry or may be considered important research.", 24 Thus, consistent with NEPA case law, NRC guidance defines significant information as information "that leads to an impact finding different from that codified in 10 CFR Part 51 .,25 As a result of the then-ongoing hydrogeologic characterization of the site, Entergy identified in the ER that tritium, Strontium-90 ("Sr-90"), Cesium-137 ("Cs-137"), and Nickel-63 "have been detected in low concentrations in some onsite groundwater monitoring well samples" and that the IPN SFP was "a confirmed source of at least some of the tritium, as well as strontium, cesium and nickel in groundwater." 26 With regard to IP2, based on preliminary site monitoring data available at that time, the ER states that contamination related to the IP2 SFP 27 was "the result of historical pool leakage in the 1990s which has since been repaired,",

A key factor in Entergy's assessment of the significance of the identified groundwater contamination, as further explained in Sections 5.1 and 2.3 of the ER, is that the IPEC site does not utilize groundwater for any of its cooling water, service water, potable water needs, or for any other beneficial uses and, therefore, EPA drinking water standardsdo not apply. There also 22 An ER must include "any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware." 10 C.F.R. § 51.53(c)(3)(iv).

23 Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-99-22, 50 NRC 3, 14 (1999)

(citing Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)); accord Wis. v. Weinberger, 745 F.2d 412, 420 (7th Cir. 1984).

24 Weinberger, 745 F.2d at 420.

25 Regulatory Guide 4.2, Supp. 1, Preparation of Supplemental Environmental Reports for Application to Renew Nuclear Power Plant Operating Licenses at 4.2-S-4 (Sept. 2000) (emphasis added), available at ADAMS Accession No. ML003710495.

26 ER at 5-4, 5-5.

27 Id. at 5-6.

7

is no known drinking water pathway associated with groundwater or the Hudson River in the region surrounding the site. Accordingly, the ER specifically states that "EPA drinking water 28 limits are not applicable" to site area groundwater.

Further, in full compliance with 10 C.F.R. Part 50, Appendix I, Entergy estimated that total body dose to a maximally exposed individual as a result of the identified groundwater contamination represents less than 1% of applicable NRC limits. 29 Therefore, no NRC dose limits have been exceeded.30 Thus, the ER concluded that while the identification of site groundwater contamination is potentially "new," the impacts of those radionuclides would be SMALL and therefore not "significant." 3' Importantly, characterization of the impacts as SMALL-and therefore not significant-complies fully with 10 C.F.R. Part 51, Subpart A, Appendix B, which states that "[fjor the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commission's regulations are considered small."

B. Subsequent Investigations, Inspections, and Related Activities Full characterization of the impact to groundwater was ongoing when the LRA was submitted to the NRC in April 2007. Entergy subsequently completed a comprehensive, two-year site hydrogeologic investigation of the Indian Point site and submitted the detailed Investigation Report to the NRC, NY State Department of Environmental Conservation 21 Id. at 5-6.

29 Id. at 5-5. Appendix I is applicable to operating reactors pursuant to 10 C.F.R. § 50.36a(b).

30 ER at 5-6.

31 8

("NYSDEC"), and NY Public Service Commission and also included it in its Answers to Intervenors' petitions to intervene.32 Although the Investigation Report was prepared as part of Entergy's responsibilities to ensure compliance with NRC requirements during the current license term, rather than to investigate for new and significant information, it nonetheless included three conclusions that are directly relevant to the Consolidated Contention and, therefore, was submitted in support of the IP2 and IP3 LRA.

  • First, the IPI SFP is the sole Source of the strontium contamination detected in groundwater and this source of contamination would be permanently eliminated when the IPI SFP is emptied and drained in late-2008. 3
  • Second, all identified IP2 SFP leaks have been-repaired. 34
  • Third, no release was identified from IP3.3 5 Further, the Investigation Report confirmed that EPA drinking water standards do not apply because there is no current or reasonably anticipated use of groundwater at IPEC and, therefore, the only exposure pathway of significance for groundwater is through consumption of fish and invertebrates in the Hudson River-and the calculated doses from this pathway are less 36 than 1% of the federal limits.

32 Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene (Jan. 22, 2008) ("Entergy Riverkeeper Answer"), Exhibit M, Hydrogeological Site Investigation Report (Jan 11, 2008) ("Investigation Report").

Investigation Report at 102-03, 135. As discussed below, the IPI SFP was subsequently emptied and drained in November 2008. See Applicant's Board Notification Concerning Completion of Indian Point Unit I Spent Fuel Pool Remediation Activities (Nov. 17, 2008) ("Entergy Notification").

Investigation Report at 92. While additional active leaks cannot be completely ruled out, if they exist, the data indicate that they are very small and of little impact to the groundwater. Id.

Id. at 11, 89. The absence of Unit 3 sources is attributed to the design upgrades incorporated in the more recently constructed IP3-SFP.

36 Id. Recently, NYSDEC and the NY State Department of Health ("NYSDOH") confirmed the main conclusions in Entergy's Investigation Report. See NYSDEC, Community Fact Sheet, available at http://www.dec.ny.gov/

permits/44014.html ("NYSDEC Fact Sheet").

9

The NRC Staff performed an extensive inspection and evaluation of Entergy's actions in response to the groundwater contamination and issued an Inspection Report confirming:

" There are no drinking 37water sources that can be impacted by the contaminated groundwater conditions;

  • the only exposure pathway to humans that could be impacted by the contaminated groundwater is the consumption of aquatic foods from the Hudson River, and an analysis of the most recent fish samples shows no radioactivity distinguishable from background; 38 and
  • the additional dose impact to the public was "negligible" and Entergy 39 continues to comply with all applicable NRC radiation protection regulations.

On November 5, 2008, Entergy notified the NRC that it had completed the draining and de-sludging of the IP1 SFP, which permanently ceased the introduction of radiological contaminants to underlying groundwater. from the IP I SFP.4 ° C. Procedural History On November 30, 2007, Riverkeeper submitted Contention EC-3, alleging.that "the ER does not adequately assess new and significant information regarding the environmental impacts of the radioactive water leaks from the Indian Point I and Indian Point 2 spent fuel pools on the groundwater and the Hudson River ecosystem." 4' Clearwater submitted Contention EC-1 on December 10, 2007, alleging that the ER "fails to adequately assess 'new and significant' information concerning environmental impacts of radioactive substances that are leaking from spent fuels pools and contaminating the ground water, the Hudson River and the local Letter from Marsha K. Gamberoni, NRC, to Joseph Pollock, Entergy, EA-08-088, at vii (May 13, 2008),

available at ADAMS Accession No. ML081340425 ("Inspection Report").

38 id.

31 Id. at 1-2.

40 Entergy Notification.

41 Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant at 74-86 (Nov. 30, 2007) ("Riverkeeper Petition").

10

ecosystem." 42 Both Intervenors alleged that Entergy's claim that only low concentrations of certain radionuclides have been detected in onsite groundwater samples is incorrect because "43 sampling results are "above the EPA drinkingwater limits" as a result of IP I SFP leakage...

Entergy opposed admission of Riverkeeper Contention EC-3 and Clearwater Contention EC- I on three principal grounds. 44 First, and of fundamental significance, NRC standards-not EPA drinking water standards-apply to IPEC site groundwater contamination, and Intervenors 45 provided no legal or expert support for their assertion that the EPA standards somehow apply.

Second, the IPI SFP leak, the only identified source of Sr-90 contamination to site groundwater, is not within the legal scope of the IP2 and IP3 license renewal proceeding. 46 Third, Intervenors do not dispute that doses due to groundwater contamination meet and are only a small fraction of federal limits. 47 The NRC Staff opposed admission of Riverkeeper Contention EC-3 and Clearwater Contention EC-I for substantially the same reasons as Entergy.48 On July 31, 2008, the Board issued a decision admitting Riverkeeper Contention EC-3 and Clearwater Contention EC-1 and consolidating the contentions pursuant to 10 C.F.R. 42 Hudson River Sloop Clearwater, Inc's Petition to Intervene and Request for Hearing at 18-24 (Dec. 10, 2007)

("Clearwater Petition").

43 Consolidated Contention of Petitioners Riverkeeper, Inc. (EC-3) and Hudson River Sloop Clearwater, Inc. (EC-

1) Spent Fuel Pool Leaks at 10-13 (Aug. 21, 2008) ("Consolidated Contention") (emphasis added).

44 Entergy Riverkeeper Answer at 139-51;'Answer of Entergy Nuclear Operations, Inc. Opposing Hudson River Sloop Clearwater Inc.'s Petition to Intervene and Request for Hearing, at 32-49 (Jan. 22, 2008) ("Entergy Clearwater Answer").

5 Entergy Clearwater Answer at 43-44.

46 Entergy Clearwater Answer at 42-43. As noted in Section II.B above, the IPI SFP was emptied and drained in November 2008.

47 id. at 44-49.

4" NRC Staff's 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 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, at 90-92, 112-15 (Jan. 22, 2008) ("NRC Staff Answer").

11

§ 2.316 .9 The Board, however, did not directly address Entergy's three principal arguments and, as a result, Entergy sought reconsideration or clarification of the Board's decision. 50 The NRC Staff supported Entergy's motion for reconsideration while the Intervenors opposed the motion. 51 While the motion for reconsideration was pending, Entergy notified the Board that draining and de-sludging of the IP 1 SFP had been completed.52 Significantly, in response to this notification, Intervenors' again argued "that IPJ is generally within the scope of the instant licensing proceeding since, if not for Entergy's renewal application, IP1 would be fully 53 decommissioned and the site remediated.",

The Board denied Entergy's motion for reconsideration or clarification, once again without addressing the merits of Entergy's arguments, stating only that Entergy "essentially repeated the arguments it presented" prior to the Board's earlier decision, and ordered that Consolidated Contention, as submitted by the Intervenors on August 21, 2008, admitted.54 49 LBP-08-13, slip op. at 187-88, 191-92, 228.

50 Applicant's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3/Clearwater EC-l (Aug. I1, 2008) ("Entergy Motion for Reconsideration"). -As an alternative to reconsideration, Entergy sought clarification regarding the Board's reference to the "maximum groundwater impact" and whether the history of leakage from the IPI SFP is within the scope of the Consolidated Contention. Id. at 10. The Board did not respond to Entergy's alternate request for clarification.

NRC Staff's Response in Support of Entergy's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3/ Clearwater EC-1 (Aug. 21, 2008); Riverkeeper, Inc. Response to Applicant's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3/Clearwater EC-I (Aug. 21, 2008).

52 Entergy Notification.

53 Riverkeeper, Inc. Response to Applicant's Board Notification of Indian Point Unit 1 Spent Fuel Pool Remediation Activities at 2-3 (Nov. 25, 2008) ("Riverkeeper Notification Response") (emphasis added).

5 Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) at 16 (Dec. 18, 2008) (unpublished).

12

IV. ARGUMENT A. Commission Review of the Board's Decision on the Consolidated Contention is Warranted Interlocutory review is appropriate under both the Commission's regulatory and inherent authority. It is appropriate under the regulations because the Board's decision threatens Entergy with "immediate and serious irreparable harm." That is because the Board's decision admitting the Consolidated Contention-if left unreviewed-would impose "truly exceptional delay or expense." 55 To be clear: this is not a complaint about run-of-the-mill litigation burdens. It instead involves a Board ruling that ratifies a sprawling and freewheeling inquiry into historical (and now-irrelevant) leakage from the IP1 SFP. Not only will this inquiry radically and impermissibly expand the scope of this proceeding, but its boundless construction may require Entergy and NRC Staff to waste scarce resources-economic and otherwise-combing through literally thousands of data and sampling points addressed in the Investigation Report. Because the Consolidated Contention is improper as a matter of law-a point we demonstrate below-the Commission should grant interlocutory review now to avoid this tremendous burden.

But the reasons for supporting interlocutory review are stronger still. That is because the Consolidated Contention-by importing novel issues that are whole latitudes removed from the narrow focus of this license renewal proceeding-will fundamentally "affect[] the basic structure of the proceeding, by arguably mandating duplicative or unnecessary litigating steps."56 For example, because the Board has deferred ruling on the Intervenors' motion to impose Subpart G procedures, 57 its decision below threatens to saddle this proceeding (and the parties and NRC 55 See Zion Station, ALAB- 116, 6 AEC at 259.

56 Private Fuel Storage, CLI-98-7, 47 NRC at 3 10.

57 See Memorandum and Order (Addressing Requests that the Proceeding be Conducted Pursuant to Subpart G) at 13 (Dec. 18, 2008) (unpublished order).

13

Staff) with burdensome depositions, interrogatories, and countless other discovery obligations involving the Consolidated Contention. And even if Subpart G procedures are not imposed-or are imposed at some later date-the Board's action will necessarily trigger the mandatory disclosure process which, at substantial cost, will require Entergy to research, identify, and disclose literally thousands of documents relevant to the Consolidated Contention.58 Should the Commission determine that Entergy has failed to meet the standards set forth in 10 C.F.R. § 2.341(f)(2), it should nonetheless accept review of the Consolidated Contention J

because there is an entirely independent basis for review: the Commission's inherent supervisory power over NRC adjudications. This expansive authority notably does not depend on any showing of irreparable harm or proof that the ruling will affect the basic structure of the proceeding. To the contrary, in Advanced Medical, the Appeal Board indicated discretionary interlocutory review of a board referral is appropriate when the ruling below "involves a question of law, has generic implications, and has not been previously addressed on appeal.' 59 That is precisely the case here. First, the overarching question presented in this'petition is purely one of law: How should historical groundwater contamination, including contamination from a unit not within the scope of the license renewal application, be treated by a licensing board in a license renewal proceeding? Second, that question is not unique to Entergy but instead an important question with potentially broad applicability to numerous proceedings.

As noted in the NRC's Liquid Radioactive Release Lessons Learned Task .Force Report, groundwater contamination due to leaks from power reactors has been observed at several plants

'8 As evidence of the potential "immediate and serious irreparable impact" posed by the Consolidated Contention, Entergy estimates that this contention alone requires mandatory disclosure of at least three times as many documents as any other admitted contention.

59 Advanced Med. Sys., ALAB-929, 31 NRC at 279 (discussing Duke Power Co. (Catawba Nuclear Station, Units I & 2), ALAB-687, 16 NRC 460 (1982)).

14

over the last ten years, several of which have not yet been issued renewed operating licenses.60 And finally, this important question has not been previously addressed on appeal.

The Commission has granted interlocutory review under its inherent supervisory authority in a number of closely analogous situations. For example, in the Vermont Yankee license renewal proceeding, the 'Commission reaffirmed that it "may also accept discretionary interlocutory review at the request of a party in the exercise of its inherent supervisory authority," even if the standards set forth in 10 C.F.R. § 2.341 (f)(2) are not satisfied. 62 There, the Commission emphasized that the issues raised in the disputed contention involved the proper interpretation of the NRC's regulations implementing NEPA. Because those issues presented pure questions of law that might have a "potentially broad impact" in other license renewal 63 proceedings, the Commission granted review.

Likewise, in Advanced Medical, the Appeal Board accepted interlocutory review of a board referral to address an issue of broad application: whether legal fees could be awarded to certain prevailing parties in certain enforcement actions under the Equal Access to Justice Act.64 The Appeal Board granted review because that board decision, like the one at issue here, "involve[d] solely a question of law and has not been previously addressed on appeal." 65 Moreover, the Appeal Board recognized that "there are a number of similar enforcement 66 adjudications now pending in which the same attorneys' fees issue could potentially arise."

60 Liquid Radioactive Release Lessons Learned Task Force Final Report at 3-10 (Sept. 1, 2006), available at http://www.nrc~gov/reactors/operating/ops-experienceltritium/Ir-release-lessgons-Iearned.pdf.

61 See Vermont Yankee, CLI-07-1, 65 NRC at 4-5.

62 Conn. Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 54 NRC 368, 374 (2001).

63 Vermont Yankee, CLI-07-1, 65 NRC at 5.

64 Advanced Med. Sys., ALAB-929, 31 NRC at 277-78.

.61 Id. at 279.

66 Id. (emphasis added).

15

So too here. The legal question in this appeal "could potentially arise" in numerous future proceedings. As we demonstrated before, NRC itself has identified a number of plants with groundwater contamination, several of which have not yet been issued renewed operating licenses. It should not matter that there may not be any currently pending cases raising this issue; in Advanced Medical it was enoughthat those issues "could potentially arise."

Moreover, as in Vermont Yankee, this case "also involves the proper interpretation of NRC's regulations implementing NEPA that could broadly impact other license renewal proceedings. If anything, the issues raised in this Petition cast an even wider shadow than those raised in the Vermont Yankee case because several of the plants with groundwater contamination due to leaks from power reactors have the potential to reach the contention admissibility stage before the conclusion of this proceeding. 67 The Commission should therefore grant review now to provide much-needed guidance concerning a point of law that "raise[s] significant issues of 68 potentially broad impact and may well recur in [other] likely license renewal proceedings.'"

B. The Board Decision Admitting the Consolidated Contention Contains Three Material Errors of Law In its decision, the Board cites three principal bases for admitting the Consolidated Contention.

0 Based on factual statements presented by Riverkeeper, it is "uncertain" whether Entergy's conclusions contained in ER regarding the significance of the groundwater contamination are sufficient for purposes of satisfying NEPA and NRC regulations or sufficient to aid the Commission in preparation of the EIS. 69 67 Compare NRC Status of License Renewal' Applications and Industry Activities, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications.html, with Liquid Radioactive Release Lessons Learned Task Force Final Report at 3-10 (Sept. 1, 2006), available at http://www.nrc.gov/reactors/

operating/ops-experience/tritium/Ir-release-lessons-learned.pdf ("Task Force Report").

68 Vermont Yankee, CLI-07-1, 65 NRC at 5.

69 LBP-08-13, slip op. at 188.

16

  • There is a genuine issue regarding the significance of the new information, including the recently submitted hydrogeologic report relating to the SFP radiological leaks.70
  • There is still a question as to whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the site.

As described more fully below, each of these findings rest on material errors of law.

1. Entergy's Conclusions in the ER Regarding the Significance of the Groundwater Contamination Currently Meet All Applicable NEPA and NRC Regulations The Commission has explicitly stated that "[t]he purpose of an environmental report is to inform the Staff's preparationof an Environmental Assessment ("EA") and, where appropriate, an [EIS]." 72 Specifically, 10 C.F.R. § 51.45, which outlines the general requirements for an environmental report, states that "[t]he environmental report should contain sufficient data to aid the Commission in its development of an independent analysis."73 As explained below, Entergy has met this burden.

NEPA imposes procedural restraints on agencies, requiring them to take a "hard look" at the environmental impacts of a proposed action and reasonable alternatives to that action.74 This "hard look" is subject to a "rule of reason."75 This means that "an agency's environmental review, rather than addressing every impact that could possibly result, need only account for those that have some likelihood of occurring or are reasonably foreseeable." 76 Consideration of 70 Id.

71 Id. at 192.

72 Curatorsof the Univ. of Mo., CLI-95-8, 41 NRC 386, 396 (1995) (emphasis added).

73 10 C.F.R. § 51.45(c) (emphasis added).

74 See La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998).

7' La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-05-28, 62 NRC 721, 726 (2005) (citation omitted).

76 La. Energy Servs. L.P. (Nat'l Enrichment Facility), LBP-06-8, 63 NRC 241, 258-59 (2006) (citing Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973)).

17

"remote and speculative" or "inconsequentially small" impacts is not required.77 As the Commission has explained, "NEPA does not call for certainty or precision, but an estimate of 78 anticipated (not unduly speculative) impacts."

The nature and extent of both the NRC Staff's and an applicant's obligations under NEPA and Part 51 is narrowly defined in license renewal proceedings. For those issues listed in Appendix B to Part 51 as Category 1 issues, the Commission resolved by rulemaking the issues generically for all plants hind those issues are not subject to further evaluation in any license renewal proceeding. An applicant must include, however, "any new and significant information 79 regarding the environmental impacts of license renewal of which the applicant is aware."

The ultimate determination as to the "significance" of that information, however, rests with the NRC Staff. In short, "NEPA and the corresponding agency regulations require a license

[renewal] applicantto describe and the Staff to consider the potential environmental effects of the proposed agency action (i.e., issuance of a license)." 80 The Board, however, admitted Riverkeeper Contention EC-3, in part, on the ground that unidentified "factual statements presented by Riverkeeper" suggest that "it is uncertain whether Entergy's conclusions contained in the ER regarding the significance of the groundwater contamination are sufficient for purposes of satisfying NEPA and NRC regulations. "81 The Board further stated that Riverkeeper had raised a genuine issue within the scope of the proceeding "as to whether Entergy's ER contains sufficient information to aid the Commission See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 44 (1989) (citing Limerick Ecology Action, 869 F.2d at 739).

78 La, Energy Servs. L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (.2005) (emphasis in original).

79 10 C.F.R. § 51.53(c)(3)(iv); see also Turkey Point, CLI-01-17, 54 NRC at 11; Duke Energy Corp. (McGuire Nuclear Station,'Units I & 2; Catawba Nuclear Station, Units I & 2), CLI-02-14, 55 NRC 278, 290 (2002).

NEF, LBP-06-8, 63 NRC at 258 (emphasis added).

SI LBP-08-13, slip op. at 188.

18

in preparation of its EIS." 82 Entergy respectfully submits that, in ruling on this basis, the Board erred as a matter of law.

As demonstrated above, established law holds that the purpose of an applicant's environmental report, as required by NRC regulations, is to "inform" or "aid" the Staff's preparation of an EIS. The extent of Entergy's legal obligations under Part 51, therefore, is to provide the types of "environmental information" described in the regulations, including any potentially "new and significant information" concerning the environmental impacts of license renewal of which it is aware. Entergy has clearly done so here. As fully described above, Section 5.1 of the ER contains afull characterization of the impact to groundwater that was ongoing when the LRA was submitted to the NRC in April 2007. Moreover, Entergy submitted to the NRC Staff and other cognizant agencies (and to Intervenors and the Board as part of its Answers to the petitions to intervene) the aforementioned Investigation Report detailing its comprehensive site hydrogeologic investigation. Clearly, the ER contains "sufficient information" to aid the Staff in discharging its NEPA obligations and Entergy. has more than satisfied its legal obligations under NEPA and NRC regulations.

2. There is No Genuine Issue Regarding the Significance of the New Information Relating to the Spent Fuel Pool Radiological Leaks
a. The Board Erred in Deferring Intervenors' Burden to Demonstrate That IPI Issues Are Within the Scope of This Proceeding Until the Evidentiaru Hearing, Rather Than Before Admitting the Contention By admitting the Consolidated Contention, the Board expanded the scope of this license renewal proceeding beyond the legal bounds of the Commission's carefully crafted license renewal regulations, which of itself, is a material error of law with both case-specific and generic 82 Id.

19

implications, as explained above.8 3 In this regard, 10 C.F.R. § 2.309(f)(1)(iii) requires that a petitioner "demonstrate" that the issue raised in its contention is "within the scope of the proceeding." Intervenors have clearly not met their burden here.

As proffered by the Intervenors and as admitted by the Board, the majority of claims in.

the Consolidated Contention relate to the significance of potential impacts caused by Sr-90 which indisputablyoriginatesonly from the 1PJ SFP.8 4 However, the IP 1 SFP--or any historical leakage from that pool-is not within the legal scope of this proceeding or in any way related to the renewed operation of lP2 or IP3, contrary to 10 C.F.R. § 2.309(f)(1)(iii). The Intervenors only basis for asserting that the IP1 SFP is within the scope of this proceeding is that, but for license renewal, Intervenors believe (or hope) that IP1 would be decommissioned and the site remediated. 8 5 It is well-established that the contention admissibility rules "bar contentions where petitioners have only 'what amounts to generalized suspicions, hoping to substantiate them later."' 86 The Consolidated Contention presents nothing more than Intervenors' "generalized suspicions" that historical IP I SFP leakage may somehow be relevant to the future operations of IP2 and IP3. In fact, the Board decision appears to acknowledge that the Intervenors have failed to meet their burden because the Board indicated that the question of whether these issues are 87 within the scope of the proceeding must "be resolved through an evidentiary hearing."

By deferring the burden of the Intervenors to demonstrate that IP I issues are within the scope of this proceeding until after the evidentiary hearing, rather than before admitting the 3 See Entergy Clearwater Answer at 42-43; Entergy Motion for Reconsideration at 9-10.

84 See, e.g., Consolidated Contention at 10-14.

85 Riverkeeper Notification Response at 2-3.

86 Duke Energy Corp. (McGuire Nuclear Station, Units I & 2; Catawba Nuclear Station, Units I & 2), CLI 17, 58 NRC 419, 424 (2003) (quoting Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI 11, 49 NRC 328, 337-39 (1999)).

87 LBP-08-13, slip op. at 192.

20

contention, as required by Section 2.309(f)(1)(iii), the Board not only improperly allowed the Intervenors to circumvent the Commission's contention admissibility rules and broaden the scope of the licensee renewal regulations beyond the requirements in 10 C.F.R. § 51.53(c), but also has imposed the enormous burden on Entergy of litigating the Consolidated Contention.

This result has clearly placed NRC's rules of contention admissibility on their head - i.e.,

requiring an evidentiary hearing to determine if issues are within the scope of the proceeding. It is clear under the contention admissibility rules that Intervenors have the burden to articulate an admissible contention before a contention is admitted, and the Board may not admit a contention unless the Intervenors have met this burden.88 On this basis alone, the Board's decision to admit this contention should be overturned.

b. The Board Erred in Finding that EPA Drinking Water Standards Are Materialto the SignifLicance of the New Information Reg-arding On-Site GroundwaterContamination The standards defining the environmental findings that the NRC must make to support the renewed operating licenses in this proceeding are set forth in NRC's regulations, including 10C.F.R. §§ 51.53(c), 51.71(d), and 51.95(c). EPA drinking water standards are wholly inapplicable. Therefore, the material inquiry is whether groundwater radionuclide concentrations comply with applicable NRC radiological dose limits-and they unquestionably

,do.-89 By admitting the Consolidated Contention, however, the Board failed to require that the Intervenors demonstrate that EPA drinking water standards are in any way material to the findings the NRC must make in this proceeding. This outcome is contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iv), which requires that a petitioner "[d]emonstrate that the issue raised See 10 C.F.R. § 2.309(f)(1)(iii).

89 See also NUREG-1437, Vol. 1, at 4-84 ("For purposes of assessing radiological impacts, the Commission has concluded that impacts are of small significance if doses and releases do not exceed permissible levels in the Commission's regulations.")(emphasis added).

21

in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding."

Furthermore, Intervenors failed to provide any factual, legal, or expert support, contrary to 10 C.F.R. § 2.309(f)(1)(v), that EPA drinking water standards are in any way material to Entergy's assessment of the significance of "new" information. Further, Intervenors failed to explain how the EPA groundwater rule to which they refer, which, by its own terms, applies solely to public water suppliers, 90 could apply to IPEC. Consequently, the mere fact that IPEC groundwater concentrations in some wells may exceed that federal standard is not only not a measure of significance under NRC law, but is not a measure of significance under EPA rules, unless IPEC is a public water supplier-which it is clearly not. 9. Instead; Riverkeeper merely asserts that EPA drinking water standards somehow apply because they are "a recognized, and

, 9 highly conservative, benchmark for comparison purposes.92 Intervenors' "benchmarking" goals or aspirations are legally insufficient to support admission of the Consolidated Contention.

Critically, the Board did not acknowledge, much less address, Entergy and NRC Staff arguments establishing the immateriality of EPA drinking water standards to the "significance" evaluation presented in Section 5.0 of the IPEC ER.9 3 Accordingly, the Board's decision constitutes a material error of law.

c. The History of Leaks from the IP1 SFP Are Beyond the Scope of This Proceeding The Board's reliance upon the Intervenors' IPI-related claims in admitting the Consolidated Contention constitutes a material error of law. It is undisputed that (1) the IP1 SFP 90 See, eg., 40 C.F.R. §§ 141.1. 141.2 (indicating that federal drinking regulations apply to public water systems).

91 See Entergy Riverkeeper Answer at 142 (citing ER at 5-6).

92 Riverkeeper Reply at 70.

93 See, e.g., Entergy Riverkeeper Answer at 146-47, 149; NRC Staff Answer at 113-14.

22

is not within the legal scope of IP2 and IP3 license renewal; 94 (2) leakage from the IP I SFP is the sole source of Sr-90 in site groundwater; and (3) the IP 1 SFP is now empty and drained and cannot contribute to any further groundwater contamination. There is no legal nexus between extended operation of IP2 and IP3-the sole focus of this proceeding-and now purely historical groundwater contamination caused by the IP 1 SFP.

Likewise, there is no legal support for admitting this contention based on Intervenors' assertion that, but for license renewal of IP2 and IP3, "IP1 would be fully decommissioned and the site remediated." 95 Issues regarding the decommissioning and post-decommissioning remediation of IP1, a site for which relicensing is not being sought, are beyond the scope of this 96 proceeding-and the authority of the Board.

3. The Board Erred in Finding That There is Any Remaining Question as to Whether the Maximum Groundwater Impact Has Been Determined for the Site Riverkeeper and Clearwater-and now the Board-ignore or overlook the fact that Entergy, in full compliance with applicable NRC regulations, has evaluated potential offsite exposure pathways due to groundwater contamination. Based on those analyses, Entergy has concluded-and NRC and NYSDEC have recently confirmed-that the only exposure pathway of significance for the identified groundwater contamination is through consumption of fish and invertebrates in the Hudson River, and determined that the calculated doses from this pathway 9' See LRA at 2.2-25, Table 2.2-4 (listing the IPI fuel handling and chemical system building, which contains the IP I SFP, as not within the scope of license renewal). Intervenors have not challenged these designations.

9 Despite the Intervenors' unsupported assertions to the contrary, decommissioning and remediation would not immediately begin if not for the license renewal proceeding because Entergy has incorporated and NRC and NY State have approved monitored natural attenuation as part of its long-term groundwater monitoring program.

See Letter from Mel Gray, NRC, to Joseph E' Pollock, Entergy, (Nov. 6, 2008), Enclosure, Inspection Report No. 05000247/2008004, at 27, available at ML083110566; NYSDEC Fact Sheet.

96 See 10 C.F.R. Part 51, Subpart A,. Appendix B, Table B-I (listing all issues related to decommissioning as generic Category I issues with "SMALL" impacts).

23

are less than 1/100 of federal limits. 97 This calculation was performed using the methodology documented in Entergy's Offsite Dose Calculation Manual, and the results of these evaluations are reported in Entergy's Annual Radiological Effluent Release Report. 98 Intervenors do not challenge these dose results-a critical fact that the Board did not address.

The Board nevertheless stated-without further explanation or citation to the record or applicable law-that "there is still the question as to whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the site." 99 Entergy is unaware of any legal or regulatory provision requiring it to determine the "maximum groundwater impact,"

beyond what it already has done in accordance with NRC regulations.

Because Entergy has demonstrated that doses are well below federal limits, there is no legal basis for Intervenors' assertion that Entergy has not complied with its obligations, under NEPA, to assess the significance of new information concerning groundwater contamination.

Entergy's approach is consistent with that contemplated in the GEIS'° 0 and is not a valid basis for the Board to accept this contention. More fundamentally, aside from arguing generally that NEPA requires a "broader assessment," Intervenors do not (nor does the Board) identify any legal requirement that Entergy perform additional sampling and analysis for purposes of license renewal. 101 97 See Entergy Riverkeeper Answer at 147.

98 Entergy submitted the most recent annual report to the NRC on April 23, 2008. See Letter from Robert Walpole, Entergy, to NRC Document Control Desk, "2007 Annual Radioactive Effluent Release Report," NL-08-068 (Apr. 23, 2008), available at ADAMS Accession No. ML081280744.

99 LBP-08-13, slip op. at 192.

"o See NUREG-1437, Vol. 1, at 4-84 ("For the purposes of assessing radiological impacts, the Commission has concluded that impacts are of small significance if doses and releases do not exceed permissible levels in the Commission's regulations. This definition of "small" applies to occupational doses as well as to doses to individual, members of the public.").

10' While further sampling may take place, such sampling would be part of the on-going regulatory process for the operation of IP2 and 1P3, which is outside the scope of this proceeding..

24

10 C.F.R. § 2.309(f)(1)(vi) requires that, "if the petitioner believes that the application fails to contain information on a relevant matter as required by law," the petitioner must identify "each failure and the supporting reasons for the petitioner's belief." An allegation such as this that some aspect of a license application is "inadequate" or "unacceptable" does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why the application is 10 2 Intervenors have not done so here.10 3 unacceptable in some material respect.

Accordingly, the Board materially erred by admitting the Consolidated Contention.

V. CONCLUSION For the reasons set forth above, the Commission should review the Board's ruling on the Consolidated Contention and reverse the decision admitting that contention.

102 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-90-16, 31 NRC 509, 521,521 n.12 (1990).

103 Further, ongoing IPEC groundwater and environmental monitoring will be reviewed and evaluated by NRC's ongoing regulatory oversight, and is therefore beyond the scope of this proceeding. See Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,946 (Dec. 13; 1991) (noting that license renewal reviews are not intended to "duplicate the Commission's ongoing review of operating reactors.").

25

William C. Dennis, Esq. Kathryn M. Sutton, Esq.

440 Hamilton Avenue Paul M. Bessette, Esq.

White Plains, NY 10601 Martin J. O'Neill, Esq.

Phone: (914) 272-3202 MORGAN, LEWIS & BOCKIUS LLP Fax: (914) 272-3205 1111 Pennsylvania Avenue, N.W.

E-mail: wdennis@entergy.com Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.corn E-mail: pbessette@morganlewis.com E-mail: martin.o'neill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 7th day of January 2009 DB 1/62460704 26

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR

))

ENTERGY NUCLEAR OPERATIONS, INC.

(Indian Point Nuclear Generating Units 2 and 3) )

January 7, 2009 CERTIFICATE OF SERVICE I hereby certify that copies of the "Entergy's Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Riverkeeper EC-3/Clearwater EC-1," dated January 7, 2009, were served this 7th day of January, 2009 upon the persons listed below, by first class mail and, except where indicated by an asterisk, by e-mail as shown below.

Hon. Dale E. Klein* Hon. Peter B. Lyons*

Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Hon. Gregory B. Jaczko* Hon. Kristine L. Svinicki*

Commissioner Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission Lawrence G. McDade, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail(anrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgml @nrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2(@nrc.gov)

(E-mail: rewgnrc.gov)

Office of the Secretary ** Sherwin E. Turk, Esq.

Attn: Rulemaking and Adjudications Staff Beth N. Mizuno, Esq, U.S. Nuclear Regulatory Commission David E. Roth, Esq.

Washington, D.C. 20555-0001 Jessica A. Bielecki, Esq.

(E-mail: hearingdocket(anrc.gov) Marcia J. Simon, Esq.

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

(E-mail: brnm1@nrc.gov)

(E-mail: david.rothgnrc.gov)

(E-mail: iessica.bieleckignrc.gov)

(E-mail: marcia.simongnrc.gov)

Zachary S. Kahn Justin D. Pruyne, Esq.

Law Clerk Assistant County Attorney, Litigation Bureau Atomic Safety and Licensing Board Panel of Counsel to Charlene M. Indelicato, Esq.

Mail Stop: T-3 F23 Westchester County Attorney U.S. Nuclear Regulatory Commission 148 Martine Avenue, 6th Floor Washington, DC 20555-0001 White Plains, NY 10601 (E-mail: zxkl@nrc.gov) (E-mail: jdp3@westchestergov.com)

Manna Jo Greene Diane Curran, Esq.

Environmental Director Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

Hudson River Sloop Clearwater, Inc. 1726 M Street N.W., Suite 600 112 Little Market Street Washington, D.C. 20036 Poughkeepsie, NY 12601 (E-mail: dcurran@harmoncurran.com)

(E-mail: mannajo(iclearwater.org)

Stephen C. Filler, Board Member Thomas F. Wood, Esq.

Hudson River Sloop Clearwater, Inc. Daniel Riesel, Esq.

303 South Broadway, Suite 222 Ms. Jessica Steinberg, J.D.

Tarrytown, NY 10591 Sive,' Paget & Riesel, P.C.

(E-mail: sfillergnylawline.com) 460 Park Avenue New York, NY 10022 (E-mail: driesel@sprlaw.com)

(E-mail: isteinberg@sprlaw.com) 2

Phillip Musegaas, Esq. John Louis Parker,. Esq.

Victor M. Tafur, Esq. Regional Attorney Deborah Brancato, Esq. Office of General Counsel, Region 3 Riverkeeper, Inc. NYS Dept. of Environmental Conservation 828 South Broadway 21 S. Putt Comers Road Tarrytown, NY 10591 New Paltz, New York 12561-1620 (E-mail: phillip@riverkeeper.ortz) (E-mail: jlparker6Dgw.dec.state.ny.us)

(E-mal: vtafurgriverkeeper.or )

(E-mal: dbrancato@riverkeeper.org)

Robert D. Snook, Esq. Michael J. Delaney, V.P. - Energy Office of the Attorney General New York City Economic Development Corp.

State of Connecticut 110 William Street Assistant Attorney General New York, NY 10038 55 Elm Street (E-mail: mdelaney@nycedc.com)

P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert. Snookgpo.state.ct.us)

Daniel E O'Neill, Mayor*

Andrew M. Cuomo, Esq. James Siermarco, M.S.

Attorney General of the State of New York Liaison to Indian Point John J. Sipos, Esq. Village of Buchanan Charlie Donaldson Esq. Municipal Building Assistants Attorney General 236 Tate Avenue The Capitol Buchanan, NY 10511-1298 Albany, NY 12224-0341 (E-mail: iohn.sipos ooag.state.ny.us)

Joan Leary Matthews, Esq. Mylan L. Denerstein, Esq.

Senior Attorney for Special Projects Executive Deputy Attorney General, Office of the General Counsel Social Justice New York State Department of Office of the Attorney General Environmental Conservation of the State of New York 625 Broadway,. 14th Floor 120 Broadway, 2 5th Floor Albany, NY 12207 New York, New York 10271 (E-mail: ilmattheý,hgw.dec.state.ny.us) (E-mail: Mvlan.Denerstein(ioag.state.ny.us)

Janice A. Dean Office of the Attorney General of the State of New York Assistant Attorney General 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Deangoag. state.ny.us) 3

    • Original and 2 copies Paul M. Bessette, Esq.

Counsel for Entergy Nuclear Operations, Inc.

DB 1/62447909 4

Retrieved from "https://kanterella.com/w/index.php?title=ML090140328&oldid=2247251"