ML093440058
| ML093440058 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/27/2009 |
| From: | Greene M Hudson River Sloop Clearwater |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS E312 | |
| Download: ML093440058 (23) | |
Text
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DOCKETED USNRC November 30 2009 (8:30am)
OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF' NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos.
50-247-LR
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and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
))
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November 27, 2009 COMBINED REPLY TO NRC STAFF AND ENTERGY'S ANSWERS IN OPPOSITION TO CLEARWATER'S MOTION FOR LEAVE TO ADD NEW CONTENTIONS BASED UPON NEW INFORMATION Pursuant to 10 C.F.R § 2.309(h)(2) Hudson River Sloop Clearwater, Inc.
("Clearwater") respectfully submits this combined reply to the U.S. Nuclear Regulatory Commission Staff ("NRC Staff') and Entergy Nuclear Operations, Inc ("Entergy")
answers to Clearwater' Motion for Leave to Add New Contentions Based Upon New Information dated October 26, 2009, as corrected on November 6, 2009 (Clearwater Petition").
PRELIMINARY STATEMENT The September 2009 Notation Votes from the NRC Commissioners are new and significant information informing the public that the Commission is now unable to predict when a permanent geological repository or any other waste disposal solution will become available to accept spent fuel waste from reactors. Although Entergy and the NRC Staff attempt to paint this development as insignificant, the Commission has 7-1ý-- Af P/, X7 e -2 3Eýýc c) ý (
bS 03
actually made a firm prediction about when waste would leave reactor sites since 1984.
Thus, this development represented a momentous shift in a settled policy that had been in place for nearly 25 years. Taken together, the votes of the Commissioners in the waste confidence rulemaking signify that the Commission believes that the spent nuclear fuel that is currently on-site at Indian Point, and the new spent fuel that could be created during the course of any 20 year period of extended operation, could remain on-site indefinitely or at least for the very long-term. The environmental, health and safety consequences of long-term storage and disposal of nuclear waste at the Indian Point site have not been assessed generically or on a site-specific basis. Thus, prior to any decision regarding the relicensing of Indian Point, the National Environmental Policy Act
("NEPA") and the Atomic Energy Act ("AEA"), require Entergy and the NRC Staff to analyze these issues and determine whether there is reasonable assurance of long-term safety and the anticipated environmental consequences.
In the past, the NRC Staff and an applicant such as Entergy, have been able to avoid these analyses because the Commission had provided findings based upon predicted dates for the opening of a permanent geological repository. The dates have repeatedly slipped backwards and now the Commission has finally recognized reality and has formally found in an APA rulemaking that it is no longer confident when or even if a spent fuel repository will be available. The NRC Staff and Entergy can no longer rely upon the determinations that were based upon an assumption that multiple repositories would be available within 30 years after license expiration.1 Therefore this Board should admit Clearwater's Contentions SC-1 and EC-7 that address the failure of the NRC-Staff A single repository at Yucca Mountain would not have sufficient capacity to accommodate all the waste that is currently at reactor sites, let alone waste that has yet to be generated.
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and Entergy to perform environmental and safet-y Lissessments of loni-term storace of nuclear waste on-site at Indian Point as NEPA and the AEA require.
Entergy and the NRC Staff object to the new contentions on the grounds that they are simultaneously too early and too late. This echoes the cry of the White Queen in Alice in Wonderland that "the rule is, jam tomorrow and jam yesterday - but never jam today." This inherently contradictory and absurd position directly contradicts the mandate of the AEA that Clearwater must be provided an opportunity to obtain a hearing on all material issues. As explained in the Clearwater Petition, this new and significant information gives rise to two admissible contentions that could not have been admitted until the Notation Votes made clear that the Commission could no longer predict when the spent fuel waste will leave the Indian Point site.2 Clearwater's contentions should therefore be admitted so that the environmental, health and safety concerns of on-site waste storage of waste are fully addressed prior to any relicensing decision about Indian Point, as is required by law.
ARGUMENT I.
The Contentions Are Admissible Because They Are Neither an Argument for a Rulemaking nor a Challenge to the Rules Clearwater is neither asking for a rulemaking nor challenging any generic findings. Instead,,Clearwater is contending that there are site-specific and generic issues relating to the environmental and safety concerns that result from long-term storage of waste that have not been addressed at all because the analyses to date have all been based 2
As explained below, the on-site storage of waste has been raised at two earlier points in these proceedings and in those instances the Board determined that those contentions were premature.
3
upon the assumption that the waste would leave the site within 30 ycars ol the expiration of tile license. As set forth in greater detail in the Clearwater Petition, the NRC has only promulgated generic findings covering the period of operation of the reactors and 30 years thereafter. See Generic Environmental Impact Statement for the License Renewal of Nuclear Plants, N-UREG-1437 ("GEIS") and 10 C.F.R. §51.23(a) and (b). There are no generic findings that relate to 30 years beyond the term of the reactor license.
For example, the GEIS is a generic finding that relates solely to the period of operation of the facility. The NRC Staff appears to have relied entirely upon the 1990 Waste Confidence rulemaking review in preparing the GEIS and even cites the Waste Confidence rule in determining that there is no significant environmental impact of storage during the operation of the facility and "[o]n-site storage of spent fuel during the term of a renewed operating license is a Category 1 issue." GEIS 6.4.6.7. (emphasis added). When read together the Waste Confidence Rule and GEIS provide a generic finding of no significant impact for on-site waste storage during the operation of the facility through 30 years beyond its licensed life. Thus, there are no generic findings regarding safety and environmental impacts of spent fuel storage beyond the 30 year time period.
Moreover, Entergy and the NRC Staff misquote the text of the "no assessment" provision of 51.23(b). Entergy Ans. at 4; NRC Staff Ans. at 17 n. 39. In fact, the text of this rule limits its application to "within the scope of the generic determination in paragraph (a) of this section." 10 C.F.R. § 51.23(b). In turn, the generic finding of no significance is limited by 51.23(a) to the period that ends 30 years after license expiration. 10 C.F.R. § 51.23(a). Thus, the "no assessment provision" does not apply to 4
the current situation w.1here the Commission has fibund that the wcaste could stay on reactor sites for lonuer than 30 years after license expiration.
Importantly, Clearwater is also not contending that the Commission should make a new finding regarding the confidence it has that waste will leave the site within 30 years of license expiration. Rather the contention is based upon a specific finding that the Commission has already made, that it is impossible to predict when the waste will go off-site. This decision was reached in the context of declining to adopt a rule that would have found that a permanent repository would be available 50-60 years from the date of the license expiration.
Under these circumstances, it is absurd for the NRC Staff and Entergy to claim that the prior decision by the Commission to adopt a finding that waste will leave reactor sites within 30 years after license expiration (the "30 Year Rule") trumps the Commission's later decision not to adopt a 60 year rule and instead to find that is impossible to predict when off-site disposal will be available. Just because the Commission did not formally rescind the 30 Year Rule in addition to refusing to adopt a new 60 year rule, the NRC Staff argues that the 30 Year Rule remains in effect and may not be challenged in this proceeding. NRC Staff Ans. at 16-18. The NRC Staff's argument defies logic. By refusing to adopt a 60 year rule, the Commission clearly made plain it no longer viewed the 30 Year Rule as tenable. Moreover, the NRC Staff would have this Board elevate form over substance to reach the result that the latest findings of the Commission in this regard should be disregarded as insignificant.3 Instead, this 3
In this regard, it is unclear whose interest the NRC Staff are representing. Because the Commission is the appellate body and the NRC Staff is a party to this proceeding, the Commission cannot instruct the NRC Staff about what position to take in these proceedings. Therefore, the NRC Staff does not have any more insight into the Commission's decisions than the other parties. Nonetheless, it is a bizarre 5
Board should take the Commissioners considered notatiodi votes in thfe Waste Confidence rulemaking at face value and admit the Contentions.
II.
The Contentions Must Be Admitted To Ensure That The NRC Meets Its Obligations under NEPA And The AEA A.
The NRC Is Required To Comply With the Statues Irrespective of the Implementing Rules Any decisions and adjudications made by the NRC must be in compliance with NEPA and the AEA. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006); Union of Concerned Scientists v. NRC, 711 F. 2d 370 (D.C. Cir. 1983); and Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984). While NEPA requires the NRC to consider environmental effects of its decisions, the AEA is primarily concerned with setting minimum safety standards for the licensing and operation of nuclear facilities. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir.
2006). The two statutes impose independent obligations, so that compliance with the AEA does not excuse the agency from its NEPA obligations. Id.
The AEA lays out the process for consideration of the public health and safety aspects of nuclear power plant licensing, and requires the NRC to determine whether the licensing and operation of a proposed facility is "in accord with the common defense and security and will provide adequate protection to the health and safety of the public." 42 U.S.C. § 2322(a). The ABA also requires that the public must be provided an opportunity to obtain a hearing on all material issues. Union of Concerned Scientists v.
NRC, 920 F.2d 50, 53 (D.C. Cir. 1990). That the issues raised here are material is situation where the Staff of a independent federal agency is arguing that the latest decisions of the heads of that agency have little significance.
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confi-rned by Commissioner Svinicki. who approvingly quotes Judge Tamm's concurrence in Minnesota v NRC. 602 F.2d 412 (D.C. Cir. 1979), which states "Ifthe Commission determines it is not reasonably probable that an off-site waste disposal solution will be available when the licenses of the plants in question expire, it must then determine whether it is reasonably probable that spent fuel can be stored safely onsite for an indefinite period." Svinicki Decision at 2-3 accord Potomac Alliance v. NRC, 682 F.2d 1030, 1038 (D.C. Cir. 1982).
If the Board feels that the Commission's decisions regarding the 30 Year Rule are unclear, it should look to the underlying statutes and binding case law interpreting these statutes to determine the best approach. For example, with regard to contention SC-1, as Commissioner Svinicki has explicitly recognized, the Commission is bound by D.C.
Circuit's interpretation of the AEA which requires long-term safety of on-site spent fuel storage to be addressed in the present circumstances. Similarly, Commissioner Svinicki recognized that the 30 Year Rule has so far enabled the NRC to avoid undertaking a complex analysis of the long-term storage of spent fuel pool waste on reactor sites that would otherwise be required by NEPA. Because the Commission has now found the 30 Year Rule to be untenable, that analysis must be done. If the Board has any doubt about this outcome it should either refer these matters to the Commission or admit the contentions and then ask the Commission whether it wishes to exercise sua sponte review.
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R.
The NRC is Required to Comply with NEPA Under NEPA, the NRC Staff and Entergy are required to assess all foreseeable environmental impacts of a license renewal. NEPA "places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action," and "ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision making process." Baltimore Gals & Elec. Co. v.
Natural Res. Def Counsel, Inc., 462 U.S. 87, 97 (1983). Indeed, "NEPA was created'to ensure that agencies will base decisions on detailed information regarding significant environmental impacts and that information will be available to a wide variety of concerned public and private actors." Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569, 575 (9th Cir. 1998) (quoted in Mississippi River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000)).
Thus, the fundamental goal of a NEPA evaluation is to require the responsible government agency to undertake a careful and thorough analysis of the need for the project and its foreseeable impacts before proceeding. Agencies must consider environmentally significant aspects of a proposed action, let the public know that the agency's decision-making process includes environmental concerns, and decide whether the public benefits of the project outweigh the environmental costs. Baltimore Gas &
Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 971,76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983); Utahns For Better Transportation v. United States Dept. of Tr7ansp.,
305 F.3d 1152, 1162 (10th Cir. 2002); Illinois Commerce Com. v. Interstate Commerce Com., 84.8 F.2d 1246, 1259 (D.C. Cir. 1988).
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Both Entergy and the NRC Staff must comply with N EPA by evahtrine the environmental impacts of license renewal and by weighing the costs and benefits of mitigating or avoiding such impacts. 10 C.F.R. § 51.95(c). To accomplish this, the NRC Staff prepares an EIS and Entergy prepares an environmental report to submit with its license renewal application. One of the primary goals of an EIS is to "guarantee[] that the relevant information will be made available" to the public and the States. Robertson V.
Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
Courts have stated that a NEPA analysis must include the foreseeable effects of an environmental action. Minn. v. NRC, 602 F.2d 412 (D.C. Cir. 1979). The starting point for analysis of an agency's compliance with NEPA is the 'rule of reason."
Potomac Alliance v. NRC, 682 F.2d 1030, (D.C. Cir. 1982). The "rule of reason" requires an agency to consider only the reasonably foreseeable environmental effects of the action." Id. at 1035.
Courts have found that the dangers and environmental consequences of creating high level nuclear wastes require particularly close attention to satisfy NEPA. "The environmental problems attendant upon processing, transporting and storing these wastes, and other environmental issues raised by widespread deployment of [breeder reactor]
power plants, warrant the most searching scrutiny under NEPA," Scientists'Institute for Public Information, Inc. v. AEC, 481 F.2d 1079, 1098 (D.C. Cir. 1973).
Somewhat similarly, in Potomac v. NRC, the NRC amended an operating license to increase the storage capacity of the spent fuel pool at a nuclear generation facility. 682 F.2d 1030 (D.C. Cir. 1982). The petitioner claimed the NRC's actions violated NEPA because it failed to consider the long-term effects of storage of nuclear waste. The court 9
remanded the case to the NRC to undertake a -meaningful exploration by the NRC of thic dangers presented by the continuing existence of the storage pool after the final closing date of the plant." Id.
Similarly, in Minnesota v. NRC, the issue before the court was whether the NRC is required to assess the environmental impacts of waste storage. 602. F.2d 412, 418, 420 (D.C. Cir. 1979). The Court of Appeals for the District of Columbia Circuit agreed with the petitioner's assertion that NEPA requires the NRC to analyze the environmental impacts of on-site storage of nuclear waste:
Prior to the issuance of a license amendment permitting expansion of an on-site storage capacity, [t]he NRC must make a determination of probability that the wastes to be generated by the plants can be "safely handled and disposed of. If no "off-site" solutions (either an ultimate solution to the problem of waste disposal, or some interim solution involving storage facilities of the reactor site) is projected as probably available, the NRC must take into account the safely and environmental implications of maintaining the reactor site as nuclear waste disposal site after the expiration of the license term.
Id at 416. The court remanded the decision to the NRC to determine whether there was reasonable assurance that an off-site storage solution will be available by 2007-2009. Id In their Answers, the NRC Staff and Entergy argue that since dry cask storage is handled in a separate proceeding they are not required to assess the impacts of such storage in this proceeding. However, just because the dry cask storage has been licensed separately does not mean its impact can be neglected. It is well established that in determining whether a project has a significant environmental impact, an agency may not avoid the significant environmental impact by improperly "segmenting" a project by dividing the NEPA analysis of a larger action with significant impacts into smaller actions with insignificant impacts. Save Barton Creek Ass'n v. Fed Highway Admin.,
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950 F.2d 1 129. 1140 (5th Cir. 1992). "Segmentation analysis functions to weed out projects which are pretextually segmented. and for which there is no independent reason to exist. When the segmentation project has no independent jurisdiction, no life of its own, or is simply illogical when viewed in isolation, the segmentation will be held invalid." Id. at 1139 (internal quotation marks and emphasis omitted).
Cases concerning NRC licenses have confirmed that the NRC Staff cannot rely upon a separate proceeding to demonstrate compliance with NEPA because segmentation is not permissible under NEPA. City of West Chicago, Illinois v. NRC, 701 F.2d 632, (7th Cir. 1983)(the NRC could not use "piecemealing" or "segmentation" to circumvent compliance with NEPA.) Because the dry cask storage area is largely designed to allow the Indian Point reactor site to accommodate additional waste that would be generated during any period of extended operation, the analysis of its impacts cannot be separated from a licensing decision that would allow the production of those wastes..
By claiming that the two different parts are separate and distinct the NRC is failing to comply with NEPA by improperly segmenting two issues that have a significant environmental impact. In any event, all work to date has relied upon the now obsolete 30 Year Rule. No work has been done on the impacts that could occur in the period commencing 30 years after license expiration. Moreover, Commissioner Svinicki recognized that the NEPA analysis is work that needs to be done in the absence of the 30 Year Rule in accordance with Minn. v. NRC. Thus, whether or not the licensing of long-term waste storage in dry casks and wet pools has been or will be separately licensed, the impacts of such storage much be assessed during this licensing process.
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C.
The NRC is Required to Comply with the AEA The NRC is required to comply with the AEA when issuing a license. Under the AEA, to issue a license the NRC must find that there will be "adequate protection to the lealth and safety of the public." 42 U.S.C. § 2232(a). This has been interpreted by NRC Commission to mean that it must be able to find "reasonable assurance that the health and safety of the public will not be endangered by operation of the facility.
" 10 C.F.R. § 50.35(c); see also id. §§ 50.40(a), 50.57(a)(3). The "reasonable assurance" standard was upheld by the Supreme Court in the landmark case of Power Reactor Development Co. v.
Int'l Union, Electrical Workers, 367 U.S. 396, 81 S. Ct. 1529, 6 L. Ed. 2d 924 (1961).
When the Commission cannot predict when the waste will leave a reactor site, the NRC Staff and the applicant are obligated to analyze the safety of storing waste on-site indefinitely after the license has expired. Minnesota v. NRC, 602. F.2d 412 (D.C. Cir.
1979). In Minn. v. NRC, the court remanded a petition challenging an NRC licensing decision for a determination whether there was "reasonable assurance" that spent fuel could be stored safely at sites. Id. Neither the NRC Staff nor Entergy address the safety or provide an aging management program for the components of long-term storage of waste at Indian Point. Thus, this showing must be made.
In its answer, Entergy argues that Clearwater fails to specifically allege the inadequacies of the AMP and therefore SC-1 is not admissible. (Entergy's Answer at p.
12-15) To support this argument Entergy relies upon the ASLB decision on the Town of Corlandt's contention related to spent fuel storage during the PEO. (See Entergy Ans. at p 15.) However, Entergy mis-reads the contention. SC-1 is focused on the period commencing 30 years after license expiration. Because there are no AMPs in place for 12
the a nin i anattement oftthe spent Iuel pools. which have many long-lived passive components, "or the period that commences 30 y'ears beyond license expiration, it is impossible for Clearwater to specifically dispute the non-existent AMPs. Instead, Clearwater is alleging that the AM.Ps are necessary, but missing and this must be addressed in a hearing. With regard to the dry casks, there has been no showing that the long-term aging management issues have been dealt with in a separate licensing proceeding. In the absence of that showing, the long-term storage issues should be addressed by this proceeding, as the D.C. Circuit held in Minn. v. NRC.
In short, Clearwater's contentions EC-7 and SC-I raise significant disputed issues relating to environmental, health and safety concerns and should therefore be admitted for a hearing.
III. Clearwater's New Contentions are Timely Because They are Based Upon New and Significant Information That was Not Previously Available Entergy and the NRC Staff both object to the new contentions on timeliness grounds. However, illustrating the difficulty of making a timely contention based on information that becomes available after the proceeding commences, the NRC Staff argues that the contentions are simultaneously too late, because some information on this topic was previously available, and too early, because the Commission did not actually amend the waste confidence rule. E.g. NRC Staff Ans. at 13, 16-22. Similarly, Entergy argues that the contention is premature because the formal votes of the Commissioners pursuant to the waste confidence rulemaking are not "new and significant." Entergy Ans.
at 8-9. These timeliness arguments are inherently contradictory and therefore cannot serve as the basis to exclude the contentions.
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In lacL the Answers of1 Lnteroy and the NRC Staffthemnselves show that the contentions cannot be too late because contention NYS-34, which raised related issues, was previously ruled to be "premature" by the Board. NRC StaffAns. at 5; Entergy Ans.
at 11. Furthermore, although some of the information underlying the contentions was available at the outset of this proceeding that does not mean that the contentions are too late. For example, in Vermont Yankee, the panel admitted a new contention when, as here, some of the facts had been previously raised in the proceeding. The Board held in
.essence that where the circumstances at the time of the original pleading were insufficient for a ripe contention, a party is not foreclosed from bringing a subsequent contention on those circumstances when later discovered facts round-out the contention Entergy Nuclear Vermont Yankee L.L. C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-14, 63 NRC at _ (slip op. at 13)(May 25, 2006) ("new and material information is sometimes revealed in stages, so that the foundation for the contention is not reasonably apparent until the later pieces fall into place.")
Moreover, the Staff and Entergy appear to forget that the AEA requires the NRC to provide the public an opportunity to obtain a hearing on all material issues concerning licensing. Union of Concerned Scientists v. NRC, 920 F.2d 50, 53 (D.C. Cir. 1990)
(holding that "Section 189(a) [of the Atomic Energy Act, 42 U.S.C. 2239(a),] prohibits the NRC from preventing all parties from ever raising in a hearing a specific issue it agrees is material to [a licensing]... decision."). Therefore, there has to be some time in a proceeding when contentions regarding material issues are timely.
That the issues raised here are material is confirmed by Commissioner Svinicki, who approvingly quotes Judge Tamm's concurrence in Minnesota v. NRC, 602 F.2d 412 14
(D.C. Cir. 1979). which states '"if the Commission determines it is not reasonably probable that an off-site waste disposal solution will be available when the licenses of the plants in question expire. it must then determine whether it is reasonably probable that spent fuel can be stored safely onsite for an indefinite period." Svinicki Decision, Clearwater Ex. 2, at 2-3 accord Potomac Alliance v. NRC, 682 F.2d 1030, 1038 (D.C.
Cir. 1982). Furthermore, Comnmissioner Svinicki recognized that indefinite waste storage would trigger the need for additional NEPA analysis. Clearwater Petition at 3-4.
Because this Board has previously found that contentions regarding long-term waste disposal at the Indian Point site were premature, it cannot now find that the present contentions are too late without being inconsistent and violating the AEA. In fact, determining the timeliness of the contentions is straightforward because they are based upon the Notation Votes cast regarding an APA rulemaking. These votes contain new and significant information and the final vote was made 30 days prior to the submission of the petition to add the new contentions. The contentions are therefore timely pursuant to 10 C.F.R. § 2.309(f)(2).4 Finally, the NRC Staff and Entergy attempt to argue that the Commission's abandonment of its long-term policy of predicting when off-site disposal capacity for spent fuel pool waste would become available is neither new nor significant, because the Commission "maintained the status quo."5 NRC Staff Ans. at 21; Entergy Ans. at 9.
4 Although the Staff's Answer provides discussion of the test for non-timely filings, that test is not applicable here, because Clearwater had no means to anticipate that the Commission would decide to abandon its long history of predicting when the waste would leave the Site.
5 Entergy argues that Commissioner Svinicki stated that her vote should not be interpreted as casting doubt on the Commission's finding regarding waste confidence, Entergy Ans. at 9, but fails to mention that this statement clearly referred to the ultimate conclusion that a waste disposal solution will eventually be found, not to when that solution will be available. Svinicki Decision, Clearwater Ex. 2.
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Although one could regard this as an argument about timeliness, the issue of whether the contentions are too early is essentially the same issue as whether the contentions challenge existing rules. This argument is therefore thoroughly addressed in the Sections above discussing why the contentions do not constitute a challenge to the existing regulations and need not be refuted once more in this Section.
IV.
Clearwater's New Contentions are Admissible Because they Raise Material Issues That Are In Dispute A contention must also meet the admissibility requirements defined by the NRC.
Here, this Board has already set forth the standard for admissibility of a contention in this case. Entergy Nuclear Operations Inc. (Indian Point Generating Units 2 & 3), LBP 13, slip. op. at 5-11 (July 31, 2008 ("ASLB Order"). To be admissible a party must meet the requirements of 2.309 (f)(1)(i)-(vi).
Among other things, this requires providing "sufficient information to show that a genuine dispute exists with iegard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case when the application is alleged to be deficient, the identification of such deficiencies and supporting reasons for this belief " ASLB Order at 5-6. The threshold for admissibility is lower than the threshold required for summary disposition. ASLB Order at 8. Indeed, it is well established that a licensing board should not address the merits of a contention when determining its admissibility. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1654 (1982).
The main purported deficiency with the Clearwater Petition that the NRC Staff and Entergy argue apart from the timeliness of this filing, is whether there are material 16
issues in dispute. The burden to show that an issue raised is materialtlo the disnute is not onerous and only a "mini'mal showing that material facts are in dispute, indicating that a further inquiry is appropriate." Georgia Institute qfTechnology', CLI-95-11, 42 N.R.C.
111, 118 (1995); Final Rule, Rules qfPractice ibr Domestic Licensing Proceedings -
Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,171 (Aug. 11, 1989).
Here, the underlying facts in dispute concern the long-term safety of high density spent fuel pools and dry casks and the import of Commissioner's latest decisions. The facts are material because NEPA and the AEA require the NRC to consider the impacts of nuclear storage in licensing proceedings. Minnesota v. NRC 602. F.2d 412 (D.C. Cir.
1979). Significantly, the importance of the requirement to perform these analyses is highlighted in an NRC notice, issued two days after the Clearwater Petition was filed, relating to safety concerns with the storage of spent fuel in pools. NRC Information Notice 2009-26: Degradation of Neutron-Absorbing Materials in Spent Fuel Pool October 28, 2009, ML092440545 ("Information Notice"). The purpose of the Information Notice is to inform nuclear facilities of the deformation of Boral panels in SFPs. The Information Notice applies to Indian Point because IP uses Boral panels in the SFPs. Entergy's License Renewal Application at 2.3-76 and 2.3-77. The Information Notice demonstrates that the Boral contained in SFP racks can blister and:
the blisters could grow to a point where the water from the flux trap of the region 1 rack could be displaced with gas. This deformation has the potential to challenge dimensional assumptions made in the fuel pool criticality analysis.
Such important aging issues must be accounted for both during any period of extended operation and during the period commencing 30 years after the expiration of the license.
To date, Entergy has failed to provide adequate aging management plans for the spent 17
fLuel pool durinn either cOf these, peri ods and hns spccill lVill(fd to provide 1fr ldecLuate aging management plans for the Boral panels.
In addition, in its answer. Enterrgy provides some totally; unfounded specUlation that the Notation Votes represent only a "brief delay" en-route to a new waste confidence rule. Entergy Ans. at 8. However, none of the parties before this board can know when the Commissioners may change their current view that the Commission is not now able to make any prediction about when off-site disposal facilities will be available. The Board should therefore decide the contentions based on the current situation without speculating about the future. Clearwater therefore disputes Entergy's assertions in this regard as factually unfounded and legally irrelevant.
Furthermore, as discussed above these contentions have raised a number of sharp legal disputes. First, Entergy and NRC Staff mis-read 51.23(b) by failing to note that its scope is limited to 30 years after license expiration. Second, Entergy and the NRC Staff fail to apply the binding precedent of Minn. v. NRC. Third, Entergy and the NRC Staff erroneously allege that Clearwater is both too early and too late in making the contentions, when Clearwater has straightforwardly based its decisions upon the Commissioners' decisions and clearly could not have had these contentions admitted prior to those decisions.
Finally, the Clearwater Petition has been supported by State of New York, Connecticut, Town of Cortlandt and Riverkeeper and strongly opposed by Entergy and the NRC Staff. The spirited debate surrounding the Clearwater Petition demonstrates that a genuine dispute exists. Indeed, boards have found a sufficient showing of a genuine dispute solely upon the vigorous defense of an applicant in its answer. N. Atd. Energy 18
Nmrv. C.(7). (Seabrook Station., (hit I ) CL I-99-6. 49 V.K.( 2C 2 19-220-.
di.slis.wCld due lo settleinew. CLI-99-16, 49 N.R.C. 370 (199 9 )("relying upon the applicants own "vigorous response" to determine that a genuine dispute exists regarding the issue).
Here not only is there a "vigorous response" from the applicant but additionally other parties have weighed in on these important issues that must be considered during these proceedings.
Clearwater's contentions should be admitted because they raise material legal and factual issues that are in dispute.
CONCLUSION For the reasons stated above and in the Clearwater Petition, the ASLB should admit Clearwater's new contentions EC-7 and SC-1 or, in the alternative, certify the question to the NRC Commissioners for determination of whether the Commissions' recent decision on the Waste Confidence rulemaking makes continued reliance upon the 30 Year Rule misplaced.
Manna Jo Greene Environmental Director Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave Beacon, New York 12508 845-265-8080 19
Board ol Directors Hudson River Sloop Clearwater, Inc.
10 Park Avenue #5L New York, NY 10016 917-658-7144 K
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Nocmbýiier 27-2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
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Docket Nos.
50-247-LR and 50-286-LR CERTIFICATE OF SERVICE I certify that on November 27, 2009 copies of the foregoing COMBINED RELY TO NRC STAFF AND ENTERGY'S ANSWERS IN OPPOSITION TO PETITION TO ADD NEW CONTENTIONS was served on the following by first-class mail and e-mail:
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Lawrence.McDadegjnrc. gov Judge Kaye D. Lathrop 190 Cedar Lane East Ridgeway, CO 81432 E-mail: Kaye.Lathrop a-nrc.gov Richard E. Wardwell Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Richard. Wardwell@nrc.gov Michael J. Delaney, V.P. - Energy New York City Econ. Development Corp.
110 William Street New York, NY 10038 E-mail: mdelanevanvcedc.com
-I-John J. Sipos, Esq.
Assistant Attorney General Office of the New York Attorney General for the State of New York The Capitol Albany, NY 12224 E-mail: John. Sipos@oag.state.ny.us Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Mauri T. Lemoncelli, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Ave. N.W.
Washington, D.C. 20004 E-mail:
Dbessette(,morganlewis.com ksutton(~mor~yanlewis.com mlemn~cellis~dmoroanlewis.com
Phillip Musegaas. Fsq.
Victor M. '-al"ur, Lsq.
Deborah Brancato. Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 E-Mail:
hi-hrii verkeeiereore vta furi:i \\erkeepPo r dbrancato~ik~ri verkeeler, or-e I Offlee of Cern iSnisloni-\\pllt Adiedicaitjell U.N ucIClea R'Ct( LitF%` CQ.
em nissi en WVashinlojen, D.C. 205ý5 Office of the Secretary Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: HEARINGDOCK EVT'i*nrc.e-ov_\\
William C. Dennis, Esq.
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis(entermv.com Gregory Spicer, Esq.
Joan Leary Matthews, Esq.
Assistant County Attorney Senior Attorney for Special Projects Office of the Westchester County Attorney New York State Department Michaelian Office Building of Environmental Conservation 148 Martine Avenue, 6th Floor 625 Broadway, 14th floor White-Plains, NY 10601 Albany, New York 12233-5500 E-Mail: gss I @westchestergov.com E-mail: i lmattheO,ýgw.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: Zachary.Kahn@nrc.gov 460 Park Avenue New York, NY 10022 E-mail: drieseldsprlaw.com JsteinbergEsprlaw.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. Snook@po. state.ct.us 21 South Putt Corners New Paltz, NY 12561 E-mail: ilparker@gw.dec.state.ny.us 2
Elise N. 7ol9, Esq.
Cioodwin Procter. LLP
- 53) State StreeL Boston. MA 02109 E-mail: :
Sherwin E. Turk Beth N. Mizuno Brian G. Harris David E. Roth Andrea Z. Jones Office of General Counsel Mail Stop- 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Sherwin.]Tu rk,*rii-c.oov' Beth. MizunoL(ý,nrc-Lovy brian. harrisf&*nrc. uov; ilanlice A. [)eai Esc.
Assistaiit Attoi n
- e. (
icnQral Office of the Attorney (Onceral 120 Broadway, ?6 ( Iloo-New York. NY 10271 E -m ail:
~1 Daniel.E. O'Neill, Mayor James Seirmarco, M.S.
Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 E-mail: voh{&Thestveh.net David.Roth(nrc.gov; andrea.j onesQlnrc.cov; Mylan L. Denerstein, Esq.
Martin J. O'Neill, Esq.
Executive Deputy Attorney General 1000 Louisiana Street, Suite 4000 120 Broadway, 2 5th Floor Houston, TX 77002 New York, NY 10271 E-mail: martin.oneill(d*morcantewi s.com E-mail: mylan.denerstein@,o ag.state.ny.us Ross Gould November 27, 2009