ML091480480
| ML091480480 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/28/2009 |
| From: | Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | |
| SECY/RAS | |
| References | |
| 07-858-03-LR-BD01, 50-0247-LR, 50-286-LR, RAS E-255 | |
| Download: ML091480480 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
Docket Nos. 50-0247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01 May 28, 2009 Order (Denying Clearwaters Petition to File a New Contention)
On February 4, 2009, this Licensing Board issued a Memorandum and Order which inter alia extended the deadline to submit new or amended contentions based on issues arising from the Draft Supplemental Environmental Impact Statement (Draft SEIS) until February 27, 2009.1 Thereafter, on March 19, 2009, Hudson River Sloop Clearwater, Inc. (Clearwater) submitted a proposed new contention. The new information which Clearwater identified as the trigger for this contention was a letter issued by the New York State Department of Conservation (DEC) which stated that it would assume responsibility as the lead agency on an application to build a desalination plant to extract water from the Hudson River to be used as drinking water.2 Entergy Nuclear Operations, Inc. (Entergy or Applicant) 3 and the Nuclear Regulatory 1 Licensing Board Memorandum and Order (Summarizing Pre-Hearing Conference) (Feb. 4, 2009) at 2-3 (unpublished) [hereinafter Pre-Hearing Conference Order].
2 Hudson River Sloop Clearwater, Inc.s Petition to File a New Contention Based Upon New Information (Mar. 19, 2009) [hereinafter Clearwater Petition].
3 Applicants Answer Opposing Clearwaters Motion for Leave and New Contention Concerning the Alleged Impacts of Indian Point License Renewal on the Hudson River as a Drinking Water Source (Apr. 13, 2009).
Commission (NRC) Staff4 submitted answers opposing the new contention, and Clearwater submitted a combined reply thereto.5 As discussed in greater detail below, the Board does not admit Clearwaters new contention for failing to comply with NRC regulations for contention admissibility.
Pursuant to 10 C.F.R. § 2.309(f)(2), a late-filed contention dealing with an issue arising under the National Environmental Policy Act (NEPA) is admissible if there are data or conclusions in the Draft SEIS that differ significantly from the applicants environmental documents.6 Otherwise, a new contention can only be filed with leave of the Board, upon a showing that the information upon which it is based was not previously available, is materially different than information previously available, and has been submitted in a timely fashion.7 A new contention may also be admissible under 10 C.F.R. § 2.309(c), governing nontimely filings, which bases admission on a balancing of eight different factors.8 However, as the Commission recently stated, failure to address the requirements [of 10 C.F.R. § 2.309(c) is] reason enough to reject the proposed new contentions.9 In addition to the above regulations, any new contention must meet the general contention admissibility requirements of 10 C.F.R.
§ 2.309(f)(1).10 Clearwaters new contention states:
The Environmental Report submitted by Entergy and Supplement 38 to Generic Environmental Impact Statement for License Renewal for Nuclear Plants, Regarding Indian Point Generating 4 NRC Staffs Answer to Hudson River Sloop Clearwaters Petition to File New Contention Based Upon New Information Regarding Environmental and Public Health Impacts of Using the Hudson River as a Drinking Water Supply (Apr. 7, 2009).
5 Reply to NRC Staffs Opposition to Petition to Add a New Contention Preliminary Statement (Apr. 20, 2009).
6 10 C.F.R. § 2.309(f)(2).
7 Id. § 2.309(f)(2)(i)-(iii).
8 See id. § 2.309(c).
9 Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-05, 69 NRC __,
__ (slip op. at 14) (Mar. 5, 2009).
10 These requirements were discussed in detail in our Order ruling on petitions to intervene.
See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 60-64 (2008).
Units 2 and 3 (hereinafter referred to as DSEIS) issued by the NRC Staff on December 22, 2008 fail to satisfy the requirements of NEPA, 42 U.S.C. §4332 et seq., and NRC regulations implementing NEPA, because the ER and DSEIS do not assess the impacts of the license renewal on drinking water quality and drinking water degradation as it relates to the use of the Hudson River as a source of drinking water.11 In its petition, Clearwater contends that its new contention is admissible as a late-filed contention pursuant to 10 C.F.R. § 2.309(f)(2) because it rests on the discovery of a letter from the DEC which stated that it would be the lead agency on an application by United Water New York Inc. to build a desalination plant that will take water out of the Hudson River to supply the residents of Rockland County with drinking water.12 This letter, however, is not new, relevant information.
According to Clearwater, the proposed water desalination plant will use reverse osmosis to filter the water, which is not an effective process for removing tritium, cesium-137 and strontium-90.13 Clearwater states that both Entergy, in its Environmental Report (ER), and the NRC Staff, in its Draft SEIS, deny that there is a drinking water pathway associated with the groundwater below Indian Point or with the Hudson River.14 Accordingly, Clearwater argues that the Applicant and the NRC Staff must assess the impacts upon the Hudson River as a source of drinking water in making their environmental assessments.15 Clearwater, however, does not adequately address how the DEC letter constitutes new information in the context of our consideration of the admissibility of its new contention.
The new contention does not meet the 10 C.F.R. § 2.309(f)(2) requirements. Per the first part of the regulation, if Clearwater intended to directly challenge the Draft SEIS, the new contention should have been filed by February 27, 2009, as required by the Pre-Hearing Conference Order issued on February 4, 2009. Per the second part of the regulation, 11 Clearwater Petition at 8.
12 Id. at 1-2.
13 Id. at 3.
14 Id. at 6-7.
15 Id. at 4.
Clearwater could have sought leave from the Board to file the new contention, however, the new contention would need to meet the previously unavailable information requirement of 10 C.F.R. § 2.309(f)(2)(i)-(iii).
Clearwaters new contention, however, patently is not based on previously unavailable, relevant information. In fact, Clearwater itself discussed the proposed desalination plant in its initial reply on Contention EC-1, filed on February 8, 2008,16 and the Board specifically referenced Clearwaters discussion of the proposed desalination plant both in our initial order admitting that contention17 and in an order denying reconsideration thereof.18 Since the subject matter of the DEC letter - the proposed desalination plant - was previously available and Clearwater was aware of it, it cannot be considered previously unavailable information.
Accordingly, Clearwater has failed to convince the Board that the DECs letter stating that it will be the lead agency in dealing with the desalination plants application is newly discovered information capable of supporting the admissibility of a new contention.
Furthermore, Clearwater did not attempt to offer support for the admission of the new contention under the regulations for nontimely filings. Clearwater has chosen to not deal with the factors that must be balanced under 10 C.F.R. § 2.309(c), and the Board can not do so on their behalf. While Clearwater does offer support for admission of the new contention based on the general admissibility requirements of 10 C.F.R. § 2.309(f)(1), as discussed above, this must be done in conjunction with satisfying the requirements of either 10 C.F.R. § 2.309(c) or 10 C.F.R. § 2.309(f)(2). Having failed to satisfy the requirements of either, the Board can not evaluate Clearwaters support for admissibility under 10 C.F.R. § 2.309(f)(1).
16 Hudson River Sloop Clearwater, Inc.s Reply to Entergy and the Nuclear Regulatory Commission Responses to Clearwater Petition to Intervene and Request for Hearing (Feb. 8, 2008) at 4-5.
17 Indian Point, LBP-08-13, 68 NRC at 193.
18 Licensing Board Memorandum and Order (Denying Entergys Motion for Reconsideration of the Boards Decision to Admit Riverkeeper Contention EC-3 and Clearwater Contention EC-1)
(Dec. 18, 2008) at 14 (unpublished) [hereinafter Reconsideration Order].
Beyond the arguments put forth by Entergy and the NRC Staff, the Board finds that the new contention is duplicative of the issue that we admitted in Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 (Consolidated Contention). As mentioned above, the Board, in admitting that contention, explicitly noted that Clearwater had used the plan to develop a water intake facility on the Hudson River as support for its contention.19 We reiterated that support in denying Entergys motion to reconsider that contention.20 In our view, the Consolidated Contention questions Entergys conclusions regarding groundwater contamination from leaks at Indian Point, including the impact on drinking water as it relates to the use of the Hudson River as a source of drinking water.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD21
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland May 28, 2009 19 Indian Point, LBP-08-13, 68 NRC at 193.
20 Reconsideration Order at 14.
21 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Alfred J. Donahue, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket Nos. 50-247-LR
)
50-286-LR
)
(Indian Point Nuclear Generating Station,
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (DENYING CLEARWATERS PETITION TO FILE A NEW CONTENTION) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission.
Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Washington, DC 20555-0001 Administrative Judge Lawrence G. McDade, Chair Administrative Judge Richard E. Wardwell Administrative Judge Kaye D. Lathrop 190 Cedar Lane E.
Ridgway, CO 81432 Zachary S. Kahn, Law Clerk U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 Sherwin E. Turk, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Brian Harris, Esq.
Andrea Z. Jones, Esq.
Karl Farrar, Esq.
Brian Newell, Paralegal
2 Docket Nos. 50-247-LR and 50-286-LR ORDER (DENYING CLEARWATERS PETITION TO FILE A NEW CONTENTION)
William C. Dennis, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Andrew M. Cuomo, Attorney General John J. Sipos, Assistant Attorney General Mylan L. Denerstein Deputy Assistant Attorney General Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. ONeill, Esq.
Mauri T. Lemoncelli, Esq.
Counsel for Entergy Nuclear Operation, Inc.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Joan Leary Matthews, Esq.
Senior Attorney for Special Projects New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, New York 12233-5500 Michael J. Delaney Vice President, Energy Department New York City Economic Development Corporation (NYCEDC) 110 William Street New York, NY 10038 Robert D. Snook, Esq.
Office of The Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016 Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222 Tarrytown, NY 10591
Docket Nos. 50-247-LR and 50-286-LR ORDER (DENYING CLEARWATERS PETITION TO FILE A NEW CONTENTION) 3 Daniel E ONeill, Mayor James Siermarco, M.S.
Liaison to Indian Point Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater 112 Little Markey Street Poughkeepsie, NY 12601 Thomas F. Wood, Esq.
Town of Cortlandt Daniel Riesel, Esq.
Jessica Steinberg, J.D.
Counsel for the Town of Cortlandt Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 Nancy Burton, Esq.
Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP) 147 Cross Highway Redding Ridge, CT 06876 Elise N. Zoli, Esq.
Goodwin Proctor, LLP Exchange Place 53 State Street Boston, MA 02109 Justin D. Pruyne Assistant County Attorney, Litigation Bureau Of Counsel to Charlene M. Indelicato, Esq.
Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA John LeKay Heather Ellsworth Burns-DeMelo Remy Chevalier Bill Thomas Belinda J. Jaques 351 Dyckman Street Peekskill, New York 10566 Westchester Citizens Awareness Network (WestCan), Citizens Awareness Network, (CAN), et al Susan H. Shapiro, Esq.
21 Pearlman Drive Spring Valley, NY 10977 Victor M. Tafur, Senior Attorney Philip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523
4 Docket Nos. 50-247-LR and 50-286-LR ORDER (DENYING CLEARWATERS PETITION TO FILE A NEW CONTENTION)
Diane Curran, Esq.
Counsel for Riverkeeper, Inc.
Harmon, Curran, Spielberg,
& Eisenberg, LLP 1726 M. Street NW, Suite 600 Washington, DC 20036 Sarah L. Wagner, Esq.
Legislative Office Building, Room 422 Albany, NY 12248
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 28th day of May 2009