ML091050211

Entergy'S Consolidated Response to Riverkeeper'S February & March 2009 Filings Concerning Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 and Riverkeeper Contention TC-2

ML091050211
Person / Time
Site:	Indian Point
Issue date:	04/06/2009
From:	O'Neill M Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-246
Download: ML091050211 (7)

Text

~' ~ DOCKETED USNRC April 6, 2009 (11:10am)

OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND, NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) )

__ April 6, 2009 ENTERGY'S CONSOLIDATED RESPONSE TO RIVERKEEPER'S FEBRUARY AND MARCH 2009 FILINGS CONCERNING CONSOLIDATED CONTENTION RIVERKEEPER EC-3/CLEARWATER EC-1 AND RIVERKEEPER CONTENTION TC-2 I. INTRODUCTION Entergy Nuclear Operations, Inc. ("Entergy"), applicant in the captioned proceeding, hereby files this consolidated response to two recent filings made by Riverkeeper, Inc. ("Riverkeeper")

regarding two of its admitted contentions.1 As discussed below, Entergy does not oppose the filings made by Riverkeeper, insofar as they are procedural clarifications, but states for the record that Riverkeeper must comply fully with the applicable requirements in 10 C.F.R. § 2.309 to submit any timely and admissible amended or new contentions based on its ongoing review of documents produced (or to be produced) pursuant to the parties' mandatory disclosure obligations.

II. DISCUSSION A. Riverkeeper's March 18. 2009. Preservation of Ri2ht to Amend Contention TC-2 Regarding Flow-Accelerated Corrosion ("FAC")

In its March 18, 2009, filing, Riverkeeper states that, based on its review of the NRC Staff s Safety Evaluation Report with Open Items and related Audit Report, 2 "there is no 'new' or See Riverkeeper, Inc.'s Challenge to NRC Staff's Assessment of Impacts of Spent Fuel Pool Leaks in the Draft Supplemental Environmental Impact Statement (Feb. 27, 2009) ("Riverkeeper DSEIS Challenge"); Riverkeeper, Inc.'s Preservation of Right to Amend Contention TC-2-Flow-Accelerated Corrosion Based Upon NRC Staff s Safety Evaluation Report With Open Items (Mar. 18, 2009) ("Riverkeeper TC-2 Filing").

2 See Safety Evaluation Report With Open Items Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286 (Jan. 2009) ("SER"); Audit Report for Plant Aging' Management

-TC,-ý& PL-A Cý, Ecý - 113,? I -SC)iý,

1

'materially different' information warranting an amendment to Riverkeeper's existing contention

[TC-2] at this time." 3 Riverkeeper requests, however, that the Board "recognize Riverkeeper's right to amend Contention TC-2" once it receives and reviews copies of the documents reviewed by the NRC Staff during its onsite audit, as reflected in the Audit Report.4 Riverkeeper notes that, because' these documents were not yet available to it, it "is not in a position to assess this apparently more detailed information about Entergy's FAC program as it bears upon Contention TC-2."5 In response, Entergy takes no position, now, regarding Riverkeeper's assertion that certain audit-related documents contain "more detailed information" that may warrant amendment of Contention TC-2. Entergy notes, however, that the submittal of amended or new contentions is not an unconditional "right." Specifically, 10 C.F.R. § 2.309(f)(2)(i)-(iii) governs the submission of any amended or new contentions on safety issues related to the NRC Staffs SER. Section 2.309(f)(2) siates that "contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer," and that the petitioner must show that: (i) the information upon which the amended or new contention is based was not previously available; (ii) the information upon which the amended or new contention is based is materially different than information previously available; and (iii) the amended or new contention has been submitted in a timely fashion based on 6

the availability of the subsequent information.

Accordingly, to submit a timely amended or new contention based upon information contained in the audit-related documents, Riverkeeper must demonstrate compliance with the.

Programs and Reviews, Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286 ("Audit Report").

3 Riverkeeper TC-2 Filing at 3.

4 (Id. Riverkeeper requested copies of the audit-related documents from Entergy on February 20, 2009. See id., Exh. A.

Entergy produced copies of the requested documents to Riverkeeper on April 2, 2009.

5 Id.

10 C.F.R. § 2.309(f)(2)(i)-(iii).

2

foregoing and other applicable contention admissibility requirements. If Riverkeeper submits such a contention, then Entergy will file a response thereto in accordance with 10 C.F.R. § 2.309(h)(1).

B. Riverkeeper's February 27, 2009, Filing Concernin2 Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 ("Consolidated Contention")

In a February 27, 2009, filing, in response to the NRC Staff s issuance of its Draft Supplemental Environmental Impact Statement ("DSEIS")7 Riverkeeper 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." 8 Riverkeeper thus "challenges the NRC Staff s assessment of groundwater contamination from spent fuel pool leaks in the IP DSEIS as suffering 9

from the same deficiencies articulated in the Consolidated Contention."

As a procedural matter and as discussed more fully in Entergy's March 24, 2009, Response to New York State's New and Amended Contentions,10 Entergy does not.object to Riverkeeper's request that the Board treat the Consolidated Contention as a challenge to the DSEIS. Furthermore, Entergy does not object to Riverkeeper's position that no formal amendment of the Consolidated Contention is necessary at this time, based on Riverkeeper's representation that "there are no data or conclusions in the NRC Staff s IP DSEIS that 'differ significantly' from Entergy's submissions to date.".' That said, Entergy does not concede the veracity of Riverkeeper's claims regarding. the adequacy or merits of the Staff's DSEIS.

7 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Vol. 1, Main Report (Dec. 2008).

8 Riverkeeper DSEIS Challenge at 3.

9 Id. at2.

1o See Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State at 13 & nn.63-64 (Mar. 24, 2009).

11 Riverkeeper DSEIS Challenge at 2-3.

3

Respectfully submitted, Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o'neill@morganlewis.com William C. Dennis, Esq.

440 Hamilton Avenue White.Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 6th day of April 2009 DB 1/62730561.2 4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) )

April 6, 2009 CERTIFICATE OF SERVICE I hereby certify that copies of the "Entergy's Consolidated Response to Riverkeeper's February and March 2009 Filings Concerning Consolidated Contention Riverkeeper EC-3/

Clearwater EC-1 and Riverkeeper Contention TC-2," dated April 6, 2009, were served this 6th day of April, 2009 upon the persons listedbelow, by first class mail and by e-mail as shown below.

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(Znrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgml (dnrc.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: rew(nrc.gov)

Office of the Secretary "* Zachary S. Kahn, Law Clerk

-'Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket(onrc.gov) Washington, DC 20555-0001 (E-mail: zxkl (,nrc.gov) "

Sherwin E. Turk, Esq. Justin D. Pruyne, Esq.

Beth N. Mizuno, Esq. Assistant County Attorney, Litigation Bureau David E. Roth, Esq. of Counsel to Charlene M. Indelicato, Esq.

Brian G. Harris, Esq. Westchester County Attorney Andrea Z. Jones, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: 0-15 D21 (E-mail: jdp3(@westchestergov.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: setanrc.gov)

(E-mail: bm-nl nrc.gov)

(E-mail: david.rothf(nrc.gov)

(E-mail: brian.harris(anrc.gov)

(E-mail:, andrea.jones6ýnrc.gov)

Manna Jo Greene Diane Curran, Esq.

Environmental Director Harmon, Curran, Spielberg, & Eisenberg, Hudson River Sloop Clearwater, Inc. L.L.P.

112 Little Market Street 1726 M Street N.W., Suite 600 Poughkeepsie, NY 12601 Washington, D.C. 20036 (E-mail: mannaio(a-,clearwater.org) (E-mail: dcurran(Zhaimoncurran.com)

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: sfiller(cDnylawline.com) 460 Park Avenue New York, NY 10022 (E-mail: drieselVsprlaw.com)

(E-mail: j steinberg@sprlaw.com)

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 Corners Road Tarrytown, NY 10591 New Paltz, New York 12561-1620 (E-mail: phillip~friverkeeper.org) (E-mail: jlparker(ahgw.dec.state.nU.us)

(E-mail: vtafur(ariverkeeper.org)

(E-mail: dbrancato~riverkeeper.org)

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

Office of the Attorney General 110 William Street State of Connecticut New York, NY 10038 55 Elm Street (E-mail: mdelaneyvnycedc.com)

P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snook(po.state.ct.us) 2

Andrew M. Cuomo, Esq. Daniel E. O'Neill, Mayor Attorney General of the State of New York James Siermarco, M.S.

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

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 5 th Floor Albany, NY 12207 New York, New York 10271 (E-mail: Jlmatthe(alJgw.dec.state.ny.us) (E-mail: Mvlan.Denerstein(aoag.state.nv.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.Dean(aoag.state.ny.us)

• • Original and 2 copies provided to the Office of the Secretary.

Martin J. O'Nei{, Esq.'

Counsel for Entergy Nuclear Operations, Inc.

DB1/62773099.1 3