ML090900039
| ML090900039 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/30/2009 |
| From: | Sherwin Turk NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS E-240 | |
| Download: ML090900039 (7) | |
Text
March 30,2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND I-ICENSING BOARD In the Matter of 1
)
ENTERGY NUCLEAR OPERA'rIONS, INC. )
Docket Nos. 50-2471286-LR (Indian Point Nuclear Generating
)
Units 2 and 3)
)
)
NRC STAFF'S ANSWER TO "RIVERKEEPER, INC.'S PRESERVATION OF RIGHT TO AMEND CONTENTION TC FLOW ACCELERATED CORROSION BASED UPON NRC STAFF'S SAFETY EVALUATION REPORT WITH OPEN ITEMS" Pursuant to 10 C.F.R. 5 2.323(c), the Staff of the U.S. Nuclear Regulatory Cor~mission
("Staff') hereby files its answer to "Riverkeeper, Inc.'s Preservation of Right to Amend Contention TC Flow Accelerated Corrosion Based upon NRC Staff's Safety Evaluation Report with Open Items" ("Preservation Request"), filed by Riverkeeper, Inc. ("Riverkeeper") on March 18, 2009. For the reasons set forth below, the Staff respectfully submits that Riverkeeper's Preservation Request should be denied.
In its Preservation Request, Riverkeeper observes that the Atomic Safety and Licensing Board ("Board") has admitted Riverkeeper Contention TC-2 (Flow Accelerated Corrosion) for litigation.' Further, Riverkeeper observes that in January 2009, the Staff issued its "Safety 1 Preservation Request at 1-2 and n.4, citing Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC (July 31, 2008), slip op. at 167-68.
Evaluation Report with Open Items" ("SER") and its Audit Report concerning the lndian Point Units 2 and 3 aging management programs and aging management reviews3 Riverkeeper notes that the Board subsequently granted the intervenors' request that a "date certain" be established for the filing of contentions challenging the Staff's SER - requiring that such contentions be filed by March 18, 2009.~ Riverkeeper then states that "[blased on [its] review of the SER and Audit report alone, there is no 'new' or 'materially different' information warranting an amendment to Riverkeeper's existing contention at this time," but -- noting that it has asked Entergy Nuclear Operations, Inc. ("Applicant") to provide certain documents for it to review --
"in an abundance of caution, Riverkeeper respectfully requests that the ASLB recognize Riverkeeper's right to amend Contention TC-2 once it has had a chance to review" the Applicant's documents. Preservation Request at 3; emphasis added.
The Staff respectfully submits that Riverkeeper's Preservation Request is improper and should be denied. First, although Riverkeeper did not style its Preservation Request as a motion, in fact it seeks affirmative action by the Board -thus effectively rendering its "Preservation of Right" into a motion. Riverkeeper's failure to properly describe the nature of its
,filiug effectively failed to provide proper notice to other parties that a response to its filing might be required.
2 "Safety Evaluation Report with Open Items Related to the License Renewal of lndian Point Nuclear Generating Unit Nos. 2 and 3" ("SER with Open Items"), issued January 15, 2009; see letter from Sherwin E. Turk to the Board, dated January 22, 2009.
"Audit Report for Plant Aging Management Programs and Reviews, lndian Point Nuclear Generating Unit Nos. 2 and 3" ("Audit Report"), issued January 13, 2009; see letter from Sherwin E. Turk to the Board, dated January 15, 2009.
4 Preservation Request at 2 17.7, citing Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), "Order (Granting Petitioners' Joint Motion for an Extension of Time)"
(February 12, 2009).
Second, Riverkeeper waited until the last moment to file its Preservation Request -
serving its Request by E-mail at 11:58 PM on March 18, 2009 - but it did not consult with the Staff prior to filing its Preservation Request, and it fails to certify that it "has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion,"
as required by 10 C.F.R. § 2.323(b).5 Third, Riverkeeper's Preservation Request is without merit. The Board has previously indicated that it would not establish a schedule for the filing of new or amended contentions, but would "follow the requirements of 10 C.F.R. § 2.309(f)(2) and [NRC] case law" in ruling on the timeliness of such contention^.^ In the event that Riverkeeper's review of documents leads it to discover new information which was not available to it previously, it may seek to file a motion seeking the admission of a new or amended contention. The timeliness of any such new or amended contention would properly be determined at that time, based upon the facts presented by the motion and any responses thereto; it would be improper for the Board to rule now, before any such contention is filed, on the timeliness of such a motion.
Finally, Riverkeeper explicitly states in its Preservation Request that the Staff's SER and Audit Report do not contain any "'new' or 'materially different' information warranting an amendment to Riverkeeper's existing contention at this time." Preservation Request at 3.
Further, Riverkeeper indicates that any new or amended contention which it might later file would not be based upon the SER or Audit Report, but upon some other document that it has requested from the Applicant. Id. Accordingly, it is apparent that Riverkeeper's Preservation 5 See Entergy Nuclear Operations, lnc. (Indian Point Nuclear Generating Units 2 and 3),
"Memorandum and Order (Summarizing Pre-Hearing Conference)" (February 4, 2009), at 3 (7 3).
Id. at 5 (7 9).
Request was not triggered by its readiug of the SER or Audit Report, but rather, constitutes an attempt to secure, in advance, a ruling on the timeliness of any contention it might seek to file based upon its reading of the other documents it has requested. Such a request is premature and lacks any showing that such a contention would, in fact, be timely.
CONCLUSION For the reasons stated above, Riverkeeper's request that the Board "recognize Riverkeeper's right to amend Contention TC-2 once it has had a chance to review various documents is improper and should be denied.
Respectfully submitted, Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 30th day of March 2009
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 1
)
ENTERGY NUCLEAR OPERATIONS, INC. )
Docket Nos. 50-2471286-LR (Indian Point Nuclear Generating 1
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO 'RIVERKEEPER, INC.'S PRESERVATION OF RIGHT TO AMEND CONTENTION TC FLOW ACCELERATED CORROSION BASED UPON NRC STAFF'S SAFETY EVALUATION REPORT WITH OPEN ITEMS,"' dated March 30, 2009, have been served upon,the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, as indicated by double asterisk, with copies by electronic mail this 3oth day of March, 2009:
Lawrence G. McDade, Chair*
Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication*
Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: LGMI @nrc.qov E-mail: OCAAMAIL@nrc.gov Dr. Richard E. Wardwell*
Office of the Secretary*
Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: REW@nrc.qov E-mail: HEARINGDOCKET@nrc.gov Dr. Kaye D. Lathrop*
Zachary S. Kahn*
Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E.
Mail Stop - T-3 F23 Ridgway, CO 81432 U.S. Nuclear Regulatory Commission E-mail: KDL2anrc.gov Washington, DC 20555-0001 E-mail: ZXKl @,nrc.qov
Atomic Safety and Licensing Board Panel*
U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 (Via Internal Mail Only)
Kathryn M. Sutton, Esq.**
Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
Morgan, Lewis & Bockius, LLP 11 11 Pennsylvania Avenue, NW Washington, D.C. 20004 E-mail: ksutton@morganlewis.com E-mail: pbessette@morqanlewis.com E-mail: martin.o'neill@morganlewis.com Elise N. Zoli, Esq.**
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 021 09 E-mail: ezoli@qoodwinprocter.com William C. Dennis, Esq.**
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis~enterny.com Justin D. Pruyne, Esq.**
Assistant County Attorney Office of the Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-mail: jdp3@westchestersov.com John Louis Parker, Esq.**
Office of General Counsel, Region 3 New York State Department of Environmental Conservation 21 South Putt Corners Road New Paltz, NY 12561 -1620 E-mail: jlparker@qw.dec.state.nv.us Mylan L. Denerstein, Esq.**
Janice A. Dean, Esq.
Executive Deputy Attorney General, Social Justice Office of the Attorney General of the State of New York 120 Broadway, ~ 5 ' ~
Floor New York, NY 10271 E-mail: mylan.denerstein@oag.state.nv.us janice.dean@oag.state.ny.us John J. Sipos, Esq.**
Charlie Donaldson, Esq.
Assistants Attorney General New York State Department of Law Environmental Protection Bureau The Capitol Albany, NY 12224 E-mail: john.sipos@oaa,state.nv.us Joan Leary Matthews, Esq.**
Senior Attorney for Special Projects New York State Department of Environmental Conservation Office of the General Counsel 625 Broadway, 14'~ Floor Albany, NY 1 2233-1 500 E-mail: jImatthe@gw.dec.state.ny.us Michael J. Delaney, Esq.**
Vice President - Energy Department New York City Economic Development Corporation (NYCDEC) 11 0 William Street New York, NY 10038 E-mail: mdelanev@nycedc.com
Daniel E. O'Neill, Mayor**
James Seirmarco, M.S.
Village of Buchanan Municipal Building Buchanan, NY 1051 1-1 298 E-mail: vob@bestweb.net Daniel Riesel, Esq**.
Thomas F. Wood, Esq.
Ms. Jessica Steinberg, J.D.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com jsteinberq@sprlaw.com Robert Snook, Esq.**
Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CN 061 41-01 20 E-mail: robert.snook@po.state.ct.us Manna Jo Greene**
Hudson River Sloop Clearwater, Inc.
11 2 Little Market Street Poughkeepsie, NY 12601 E-mail: Mannaio@clearwater.orq Diane Curran, Esq.**
Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, NW, Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Victor Tafur, Esq.**
Phillip Musegaas, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 E-mail: phillip@.riverkeeper.orq vtafut-@riverkeeper.org Sherwin E. Turk Counsel for NRC Staff