ML090820633
| ML090820633 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/27/2009 |
| From: | Brancato D, Matthew Green, Musegaas P Hudson River Sloop Clearwater, Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS E-227 | |
| Download: ML090820633 (7) | |
Text
DOCKETED d 9 USNRC February 27, 2009 (1:00pm)
OFFICE OF SECRETARY February 27, 2009 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
Entergy Nuclear Operations, Inc. ) Docket Nos.
(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR RIVERKEEPER, INC.'S CHALLENGE TO NRC STAFF'S ASSESSMENT OF IMPACTS OF SPENT FUEL POOL LEAKS IN THE DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT Consolidated Contention Riverkeeper EC-3/Clearwater EC- 1 ("Consolidated Contention") challenges Entergy Nuclear Operations, Inc.'s ("Entergy") assessment of the current and future environmental impacts of the ongoing spent fuel pool leaks and groundwater contamination.' On December 22, 2008, the Nuclear Regulatory Commission Staff ("NRC Staff") issued Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (hereinafter referred to as the "IP DSEIS"). In this document, the NRC Staff discusses the spent fuel pool leak issue. Unfortunately, the NRC Staff relies upon the same arguments that Entergy has put forth to date and, thereby, comes to the same conclusion regarding the significance of the leakage.
Specifically, in the IP DSEIS, the NRC Staff, just like Entergy, completely focuses on the findings that there are no drinking water exposure pathways affected by the contaminated groundwater and that the maximum dose to humans from consumption of aquatic foods is within See Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene in Indian Point License Renewal Proceeding, November 30, 2007 ("Riverkeeper Petition for Hearing"), at 74-86; Consolidated Contention.
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regulatory limits.2 To support this line of thinking, the NRC Staff points to a groundwater investigation performed by New York State which made the same findings. 3 Based upon a purported detailed evaluation of Entergy's analysis in the Environmental Report ("ER"), an inspection of Entergy's investigation into the leaking and groundwater contamination, and in light of certain commitments made by Entergy to continue monitoring and address the leaking, the NRC Staff comes to a conclusion identical to Entergy's: that "while the information.related to spent fuel pool leakage is new, it is not significant.'4 Since the NRC Staff s assessment in the IP DSEIS mirrors Entergy's evaluation of the spent fuel pool leaks, it fails to address any of the concerns raised by the Consolidated Contention. 5 As such, Riverkeeper hereby challenges the NRC Staff s assessment of groundwater contamination from spent fuel pool leaks in the IP DSEIS as suffering from the same deficiencies articulated in the Consolidated Contention. 6 Riverkeeper incorporates all of the arguments made in the Consolidated Contention to now apply not just to Entergy's assessment, but also to. the NRC Staff s essentially identical analysis.
As Riverkeeper understands NRC regulations and precedent, a formal amendment to the Consolidated Contention is not warranted at this time. The regulations dictate that petitioners may amend contentions arising under the National Environmental Policy Act ("NEPA") if there are data or conclusions in the NRC draft environmental impact statement that "differ significantly" from the data or conclusions in the applicant's documents.' In this case, there are 2 IP DSEIS at 2-107 to 2-108.
3 1d. at 2-108 to 2-109.
4 Id. at 2-107, 4-36, 4-49.
5 See Consolidated Contention; Riverkeeper Petition for Hearing at 74-86.
6 See Consolidated Contention; Riverkeeper Petition for Hearing at 74-86.
7 10 C.F.R. § 2.309(f); see also Exelon GenerationCo., LLC (Early Site Permit for Clinton ESP Site), ASLBP No.
04-821-01-ESP, 2005 N.R.C. LEXIS 40, *6 (2005) ("Anytimely challenge to the DEIS must ... address alleged
'material differences' between information in the DEIS and that previously available in the Applicant's filings");
Duke Energy Corp. (McGuire Nuclear Station, Units 1 &2, Catawba Nuclear Station, Units 1 & 2), CLI-02-08, 56 2
no data or conclusions in the NRC Staff's IP DSEIS that "differ significantly" from Entergy's submissions to date. 8 Quite the contrary, the NRC Staff s data and conclusions in the IP DSEIS do not present any information that differs at all, let alone significantly, from the analysis put forth by Entergy. In fact, the NRC Staff essentially adopts Entergy's assessment of groundwater contamination from spent fuel pool leaks. Accordingly, Riverkeeper does not believe it is required to burden the ASLB with an unnecessary amendment to the Consolidated Contention at this time.
Riverkeeper is aware that the ultimate "responsibility for NEPA evaluation rests with the U.S. Nuclear Regulatory Commission, not with the Applicant, and ... an Intervenor's challenge to NEPA compliance should be made with respect to the Agency's actions," but that, NRC "procedures, in an effort to keep the process expeditiously moving, require an Intervenor to raise environmental issues first with respect to the Applicant's ER and permit amendment... when issues arise in further filings. by the Applicant and/or in the Agency's documents when they are released, in each case to the extent they contain information not contained in the Applicant's 9
previous filings or in the Agency's previously released documents."
As such, even though Riverkeeper is not amending the Consolidated Contention since the IP DSEIS contains no different information relating to the spent fuel pool leaks, Riverkeeper explicitly requests that the ASLB recognize that the Consolidated Contention applies against the NRC Staff's analysis in the IP DSEIS as equally as against the applicant's assessment. Based on N.R.C. 373, 2002 NRC LEXIS 208, *29-30 (2002) ("intervenors' amended contention must rest on data or conclusions that 'differ significantly' from what was submitted in the Environmental Report. An amended NEPA contention is not an occasion to raise additional arguments that could have been raised previously... [and must] be based only on 'any new information not previously available"').
'See IP DSEIS at 2-107 to 2-109, 4-35 to 4-36, 4-49.
9 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), ASLBP No. 04-821-01 -ESP, 2005 N.R.C.
LEXIS 61, *5-6 (2005); see also Private Fuel Storage L.L. C., 60 N.R.C. 125 ("Our contention pleading rule requires a petitioner to file NEPA contentions on the applicant's ER so that environmental issues are raised as soon as possible in the proceeding.").
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0 To the extent that the ASLB deems that a formal NRC precedent, this is entirely appropriate.'
amendment to the Consolidated Contention is required, please accept the foregoing as such.
Respectfully submitted, Phillip Musegaas, Esq.
Hudson River Program Director Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 224) phillip riverkeeper.org Deborah Brancato Staff Attorney Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 230) dbrancato(_riverkeeper.org Manno Jo Green Environmental Director Hudson River Sloop Clearwater, Inc.
112 Market Street Poughkeepsie, NY 12601 845-454-7673 (ext. 113)
Mannai o aclearwater.org 10 See Southern Nuclear OperatingCo. (Early Site Permit for Vogtle ESP Site), ASLBP No. 07-850-01-ESP-BDO1, 67 N.R.C. 54 (2008) (stating that a licensing board may consider environmental contentions made against an applicant's ER as challenges to an agency's subsequent DEIS where the DEIS analysis or discussion at issue is essentially "in para materia" with the ER analysis or discussion that is the focus of the contention); PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-23, 54 NRC 163, 172 (2001) petition for review denied, CLI-04-4, 59 NRC 31, 40-41 (2004) (discussing the "migration tenet"/substitution with the superseding DEIS, acknowledging that if the Staff's analysis is different, any challenges to the adequacy of that analysis must be raised in an amended or new contention); Exelon GenerationCo., LLC (Early Site Permit for Clinton ESP Site), ASLBP No. 04-821-01-ESP, 2005 N.R.C. LEXIS 61, *5-6 (2005).
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February 27, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Operations, Inc. ) Docket Nos.
(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) and 50-286-LR CERTIFICATE OF SERVICE I certify that on February 27, 2009 copies of the foregoing "Riverkeeper Inc.'s Challenge to NRC Staff s Assessment of Impacts of Spent Fuel Pool Leaks in the Draft Supplemental Environmental Impact Statement" were served on the following by first-class mail and e-mail:
Lawrence G. McDade, Chair Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane East Atomic Safety and Licensing Board Ridgeway, CO 81432 U.S. Nuclear Regulatory Commission E-mail: Kaye.Lathrop(2nrc.gov Washington, D.C. 20555 E-mail: Lawrence.McDadeLa-)nrc.gov Richard E. Wardwell Michael J. 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 10038 E-mail: Richard.Wardwell a)nrc.gov E-mail: mdelaney@nycedc.com John J. Sipos, Esq. Martin J. O'Neill, Esq.
Assistant Attorney General Kathryn M. Sutton, Esq.
Office of the New York Attorney General Paul M. Bessette, Esq.
for the State of New York Mauri T. Lemoncelli, Esq.
The Capitol Morgan, Lewis & Bockius, LLP Albany, NY 12224 1111 Pennsylvania Ave. N.W.
E-mail: John. Sipos(2aoagz. state.nv.us Washington, D.C. 20004 E-mail:
martin.oneillPamorganlewis.com pbessettena~morganlewis.com ksutton(.morganlewis.com
Diane Curran, Esq. Office of Commission Appellate Adjudication Harmon, Curran, Spielberg & Eisenberg, LLP U.S. Nuclear Regulatory Commission 1726 M. Street NW, Suite 600 Washington, D.C. 20555 Washington, DC 20036 E-mail: OCAAMAIL(a'nrc.gov E-mail: dcurran(Thharmoncurran.comn 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 E-mail: HEARINGDOCKET(,nrc.gov E-mail: wdenmis(,entergy.com Stephen C. Filler, Board Member Manna Jo Greene Hudson River Sloop Clearwater, Inc. Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222 112 Little Market Street Tarrytown, NY 10591 Poughkeepsie, NY 12601 E-mail: sfiller(Dnylawline.com E-mail: Mannajo(Thclearwater.org Justin D. Pruyne, Esq. Joan Leary Matthews, 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, 1 4 th floor White Plains, NY 10601 Albany, New York 12233-5500 E-mail: jdp3(@)westchestergov.com E-mail: ilmatthe(d)gw.dec.state.nv.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 Ms. Jessica Steinberg, J.D.
Washington, D.C. 20555 Sive, Paget and Riesel, P.C.
E-mail: Zacharv.Kahnbnrc.gov 460 Park Avenue New York, NY 10022 E-mail: driesel(Zisprlaw.com isteinbergnasprlaw.com Robert D. Snook, Esq. John L. Parker, Esq.
Assistant Attorney General Regional Attorney, Region 3 55 Elm Street, P.O. Box 120 New York State Department of Hartford, CT 06141-0120 Environmental Conservation E-mail: Robert:Snookkpo.state.ct.us 21 South Putt Corners New Paltz, NY 12561 E-mail: i lparkera) gw.dec.state. ny.us 2
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 E-mail: ezoli d)goodwinprocter.com New York, NY 10271 E-mail: Janice.deannoag.state.nv.us Sherwin E. Turk Daniel E. O'Neill, Mayor Beth N. Mizuno James Seirmarco, M.S.
Brian G. Harris Village of Buchanan David E. Roth Municipal Building Andrea Z. Jones 236 Tate Avenue Office of General Counsel Buchanan, NY 10511-1298 Mail Stop: 0-15D21 E-mail: vobahbestweb.net U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Sherwin.Turk(a)nrc. gov; Beth.Mizuno(anrc.gov: brian.harris(dnrc. gov-David.Roth..,nrc. gov; andrea.jones(anrc.gov; Mylan L. Denerstein, Esq.
Executive Deputy Attorney General 120 Broadway, 2 5 th Floor New York, NY 10271 E-mail: nylan.denersteinna~oag.state.ny. us Deborah Brancato February 27, 2009 3