ML100770434
| ML100770434 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/01/2010 |
| From: | Shapiro S Indian Point Safe Energy Coalition |
| To: | Jaczko G NRC/Chairman, NRC/SECY |
| Shared Package | |
| ml100820305 | List: |
| References | |
| 2.206, EDATS: SECY-2010-0153, G20100159, LTR-10-0120, SECY-2010-0153, TAC ME3541 | |
| Download: ML100770434 (42) | |
Text
EDO Principal Correspondence Control FROM: DUE: 04/16/10 EDO CONTROL: G20100159 DOC DT: 03/01/10 FINAL REPLY:
Susan H. Shapiro Indian Point Safe Energy Coalition TO:
Chairman Jaczko FOR SIGNATURE OF : ** GRN ** CRC NO: 10-0120 Leeds, NRR DESC: ROUTING:
2.206 - Indian Point, Unit 2 Borchardt (EDATS: SECY-2010-0153) Virgilio Mallett Ash Mamish Burns/Rothschild DATE: 03/17/10 Collins, RI Burns, OGC ASSIGNED TO: CONTACT: Mensah, NRR Marco, OGC NRR Leeds Baggett, OEDO SPECIAL INSTRUCTIONS OR REMARKS:
TeýAc &~V ~A~TSEO6C-O
EDATS Number: SECY-2010-0153 Source: SECY GeerlInfraio Assigned To: NRR 01 EDO Due Date: 4/16/20 10 11:00 PM Other Assignees: SECY Due Date: NONE
Subject:
2.206 - Indian Point, Unit 2
==
Description:==
CC Routing: Regionl; OGC; Tanya.Mensah@nrc.gov; Catherine.Marco@nrc.gov ADAMS Accession Numbers - Incoming: NONE Response/Package: NONE Ote Infomaio Cross Reference Number: G20100159, LTR- 10-0120 Staff Initiated: NO Related Task: Recurring Item: NO File Routing: EDATS Agency Lesson Learned: NO OEDO Monthly Report Item: NO ProesInfomaio Action Type: 2.206 Review Priority: Medium Sensitivity: None Signature Level: NRR Urgency: NO Approval Level: No Approval Required OEDO Concurrence: NO OCM Concurrence: NO OCA Concurrence: NO Special Instructions:
Doicuen Infor -i Originator Name: Susan H. Shapiro Date of Incoming: 3/1/20 10 Originating Organization: Indian Point Safe Energy Document Received by SECY Date: 3/17/2010 Coalition Addressee: Chairman Jaczko Date Response Requested by Originator: 4/16/2010 Incoming Task Received: 2.206 Page 1 of I
OFFICE OF THE SECRETARY CORRESPONDENCE CONTROL TICKET Date Printed: Mar 17, 2010 12:09 PAPER NUMBER: LTR-10-0120 LOGGING DATE: 03/17/2010 ACTION OFFICE: EDO AUTHOR: Susan Shapiro AFFILIATION: NY ADDRESSEE: Commissioners
SUBJECT:
Objections to finding of adequate decommissioning funds by NRC staff ACTION: Appropriate DISTRIBUTION:
LETTER DATE: 03/01/2010 ACKNOWLEDGED No SPECIAL HA-NDLING: 2.206 petition NOTES:
FILE LOCATION: ADAMS DATE DUE: DATE SIGNED:
EDO -- G20100159
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 March 16, 2010 SE CRETARY Susan H. Shapiro, Esq.
21 Pearlman Drive Spring Valley, New York 10977 Dear Ms. Shapiro; The Office of the Secretary has received your submission, dated March 1, 2010, entitled "Objection to Finding of Adequate Decommissioning Funds, Petition to Repeal Finding of Adequate Decommissioning Funds, Petition to Reopen For Consideration, Petition for Leave to Intervene and Request for Hearing, and Contentions." Your submission establishes no grounds for an NRC hearing.
Your submission requests a hearing under the provisions of the Nuclear Waste Policy Act ("NWPA") of 1982, 42 U.S.C. § 10101, et seq., to contest the NRC Staffs finding, dated December 28, 2009, that Entergy has provided "reasonable assurance of adequate decommissioning funding at the time of permanent cessation of operations ... " for the Indian Point Unit 2 facility.' Specifically, you submitted several proposed contentions for which you request a hearing under Section 134 of the NWPA, 42 U.S.C. § 10154, and the Commission's implementing regulations at 10 C.F.R. Part 2, Subpart K. See Submission of March 1, 2010, at pp. 3-6. But as explained below, there is no "proceeding" under the Atomic Energy Act in which you may intervene or request an oral argument under the NWPA.
Section 134 requires the Commission "at the request of any party"to provide an oral argument "[i]n any proceeding under section 189 of the Atomic Energy Act of 1954 (42 USC 2239) on an application for a license, or for an amendment to an existing license ... to expand the spent nuclear fuel storage capacity at the site of a civilian nuclear power reactor...."
(Emphasis added). Thus, in order to invoke the NWPA provision for an oral argument, you must already be a "party" to a pre-existing "proceeding under section 189 of the Atomic Energy Act."
No such proceeding exists here and you are not a "party."
The NRC Staff letter that you seek to challenge does not grant Entergy a license or license amendment or, indeed, "permission" or authority to do anything not already authorized by its license. It is in no sense a license or an amendment triggering an opportunity for an NRC hearing. Instead, the letter simply states that the NRC Staff has found that Entergy is in compliance with the applicable NRC regulations.
In view of your concern about this matter, I am referring your submission to the Director of Nuclear Reactor Regulation for appropriate action. See 10 C.F.R. §2.206.
Sincerely, S-'it nnette Vietti-tCook Secretary of the Commission See Letter from John P. Boska, NRC, to Vice President, Operations, Entergy Nuclear Operations (December 28, 2009).
MILTON B. SHAPIRO, ESQ. 21 PERLMAN DRIVE SUSAN H. SHAPIRO, ESQ. SPRING VALLEY, NY 10977 ATTORNEYS AT LAW (845) 371-2100 TEL MBS@OURROCKLANDOFFICE.COM (845) 371-3721 FAX 3/1/10 Honorable Chairman Jazcko Office of the Inspector Nuclear Regulatory Commission General Washington, DC 20555 Att: George Mulley Mail Stop 05-E 13 11555 Rockville Pike Rockville, MD 20852 gaamn(nrc.o
Dear Honorable Chairman Jazcko and Office of the Inspector General:
Please accept for filing the enclosed Objection to the finding by the NRC Staff on December 28, 2009 of adequate decommissioning funds, Petition to Repeal Finding of Adequacy Decommissioning Funds, Petition to Reopen for Consideration, Petition for Leave to Intervene and Request for a Hearing, and Contentions regarding Indian Point Generating Unit 2.
Respectfully yours, ausan Shapiioý'
Representing Indian Point Safe Energy Coalition Westchester Citizen's Awareness Network Public Health and Sustainable Energy
UNITED STATES NUCLEAR REGULATORY COMMISSION In the matter of ENTERGY NUCLEAR INDIAN POINT 2, L.L.C,) Docket No. 50 -237 Entergy Nuclear Operations, Inc. and )
Entergy NorthEast, Inc., ) License No. DPR 26
)
(Indian Point Energy Generating Unit 2 )
)
Regarding Adequacy of Required )
Decommissioning Funds )
NOTICE OF APPEARANCE Susan H. Shapiro, on March 1, 2010 and pursuant to 10 CFR §2.314(b) gives notice of her appearance on behalf of the Indian Point Safe Energy Coalition, Westchester Citizen's Awareness Network, Public Health and Sustainable Energy, Inc. The undersigned is a member of good standing of the bar of one or more Courts of the United States, and has been duly retained by the above mentioned groups and individuals to represent them in this matter.
CERTIFICATE OF SERVICE I, Susan Shapiro, do hereby certify that on this lrst day of March, 2010 a copy of the Indian Point Safe Energy Indian Point Safe Energy Coalition, Westchester Citizen's Awareness Network, Public Health and Sustainable Energy, Inc. Objection to finding of adequate decommissioning funds, Petition to Repeal Finding of Adequacy Decommissioning Funds, Petition to Reopen for Consideration, Petition for Leave to Intervene and Request for a Hearing, and Contentions regarding Adequacy of Required Decommissioning Funds for Indian Point Generating Unit 2 was sent by Expedited Overnight Mail to the addresses below; and, where indicated by an e-mail address below, by electronic mail on March 1, 2010.
Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemakings and Adjudications Staff.
secy@nrc.gov Annette L. Vietti-Cook Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop 0-1 6G4 Washington, DC 20555-001 Honorable Chairman Gregory B. Jazcko Nuclear Regulatory Commission Mail Stop O- 16G4 Washington, DC 20555-0001 John P. Boska Senior Project Manager Plant Licensing Branch I-I Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation
Entergy Nuclear Operations, Inc 440 Hamilton Ave.
White Plains, NY 10601 Commissioner Dale E. Klein U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, DC 20555-0001 cmrklein(anrc. gov Commissioner Kristine L. Svincki U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, DC 20555-0001 cmrsvinick(~dnrc. gov Hearing Docket hearin gdocketanrc .gov Office of the Inspector General Att: Mr. Hubert T. Bell Mail Stop 05-E13 11555 Rockville Pike Rockville, MD 20852 gam@nrc.gov Kathryn M. Sutton, Esq.
Martin J. O'Neill, Esg.
Paul M. Bessette, Esq.
Morgan, Leiws and Bockius, LLP 1111 Pennslyvania Ave. N.W.
Washington, DC 20004 ksutton(morganlewis.com pbessette(ai),mroganlewis.com martin.o.neill(ý,morganlewis.com John Sipos New York State Office of the Attorney General john.sipos@oag.state.ny.us,
John Parker New York State DEC jlparker(agw. dec. state.ny.us Assemblyman Richard Brodsky richardbrodskymssn. corn Manna Jo Greene Environmental Director Hudson River Sloop Clearwater Mannaio(cdclearwater.org, Phillip Musegas, Esq.
Riverkeeper philliD awriverkeemer.orm
U.S. DEPARTMENT OF ENERGY (High Level Waste Repository) Docket No. 63-001-HLW XXXXXXX (xxxxxxxxxxxxxxxxxxxxx)
Counsel for State of South Carolina Counsel for State of Washington Davidson & Lindemann, P.A. Office of the Attorney General 1611 Devonshire Drive. P. O. Box 40117 P.O. Box 8568 Olympia, WA 98504-0117 Columbia, SC 29202 Andrew A. Fitz, Esq.
Kenneth P. Woodington, Esq. andyf(@atq.wa.,qov kwoodinqton(adml-law.com Michael L. Dunning, Esq.
michaeld(aatq.wa.,qov H. Lee Overton, Esq.
leeol (@?atq.wa.gov Counsel for Aiken County, South Carolina Diana MacDonald Haynesworth Sinkler Boyd, PA dianamcaatcq.wa.,qov 1201 Main Street, Suite 2200 Sharon Nelson P. O. Box 11889 sharonndat~g.wa.qov Columbia, SC 2921.1-1889 Thomas R. Gottshall, Esq.
tgottshall~chsblawfirm .com Ross Shealy, Esq.
rshealy(ahsblawfirm .com Counsel for Prairie Island Indian Community Counsel for National Association of Regulatory Public Law Resource Center PLLC Utility Commissioners (NARUC) 505 N. Capitol Avenue 1101 Vermont Avenue, Suite 200 Lansing, MI 48933 Washington, DC 20005 Don L. Keskey, Esq. James Ramsay, Esq.
donkeskevaoubliclawresourcenter.com iramsayvnaruc.org Robin Lunt, Esq.
rlunt(anaruc.org
[Original Signed by Linda D. Lewisi Office of the Secretary of the Commission Dated at Rockville, Maryland this XXX day of March 2010 S
UNITED STAT ES NUCLE AR REGULATORY COMMISSION In the matter of ENTERGY NUCLEAR INDIAN POINT 2, L.L.C, )Docket No. 50 -237 Entergy Nuclear Operations, Inc. and )
Entergy NorthEast, Inc., )License No. DPR 26
)
(Indian Point Energy Generating Unit 2 )
)
Regarding Adequacy of Required )
Decommissioning Funds )
) March 1, 2010 INDIAN POINT SAFE ENERGY COALTION. WESTCHESTER CITIZEN'S AWARENESS NETWORK and PUBLIC HEALTH AND SUSTAINABLE ENERGY, INC's OBJECTION TO FINDING OF ADEQUATE DECOMMISSIONING FUNDS, PETITION TO REPEAL FINDING OF ADEQUATE DECOMMISSIONING FUNDS, PETITION TO REOPEN FOR CONSIDERATION, PETITION FOR LEAVE TO INTERVENE and REQUEST FOR HEARING, AND CONTENTIONS Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), are individually and jointly referred to hereinafter as "Stakeholders",
pursuant to 10 CFR § 2.309 (d) and (e) object to the finding of the NRC Staff on December 28, 2009 of adequate decommissioning funds for Indian Point 2 which is owned and operated by Indian Point 2, LCC, 1
Entergy Nuclear Operations, Inc, and Entergy Northeast, Inc.,
(hereinafter referred to as "Entergy" or "Licensee").
Stakeholders object to the Nuclear Regulatory Commission's (NRC)
Staff s determination of August 13, 2009 that Entergy has provided reasonable assurance of adequate decommissioning funds despite a) an acknowledged shortfall of $38.6 million; b) an assumption by the Licensee of the use of SAFSTOR for 60 years, even though the use of SAFSTOR has not been approved, nor applied for by the Licensee; and that the c) cost calculations do not take into consideration all required factors, including known and undetected leaks, lack of a plan for disposal of both high level and low level radioactive waste evidenced by the Commission's recent vote of no confidence in the waste confidence rule, cost of living increases and Entergy's proposed corporate restructuring.
Acceptance by the NRC Staff of the adequacy of Entergy's biannual decommissioning report as satisfactory creates significant'and substantial changes to the operating license for Indian Point 2. Therefore, Stakeholders request a hearing under 10 C.F.R. §2.309 (a) and request the Commission to reopen the review as to whether there is reasonable assurance of adequate decommissioning funds required by the operating license pursuant to 10 CFR 50.75(b)(1).
2
Further the Stakeholders request that NRC Commissioner's to Repeal the determination of reasonable assurance of adequate decommissioning funds made by Mr. John P. Boska, Senior Project Manager Plant Licensing Branch 1-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation (Docket No. 50-247) on December 28, 2009 and commence an enforcement action to bring the Licensee into compliance with the operating license.
It is an abdication of the NRC Commissioner's responsibility and authority to accept SAFESTOR as a foregone conclusion, without application or required hearings.
HEARING REQUEST As stated on the NRC website, "The NRC considers public involvement in decommissioning activities to be a cornerstone of strong, fair regulation of the nuclear facilities decommissioning. The public is invited to comment on decommissioning process and proposed regulation in additions to observing or participating in certain meetings. (See NRC website: Public Involvement pages for more information) Multiple meetings and conference calls took place between the NRC Staff and Entergy took place without notification or inclusion of the Stakeholders despite the Stakeholders known interest the 3
adequacy of the decommissioning funds, dating from the time of the license transfer hearings, and including a letter submitted on May 7, 2008 regarding Decommissioning Planning RIN-3150-AH45.
Insufficient decommissioning funds injure the public and, yet in the approval of this shortfall by the NRC staff there were no opportunities for public hearings or review of the evaluation findings, review procedures of the NRC reviewer or acceptance criteria of the decommissioning shortfall funds. The NRC must establish clear and accessible procedures by which the affected public is given an opportunity to participate in evaluation of adequacy and use of the decommissioning funds.
Alternative Hybrid Hearing Procedures: The Commission hereby provides notice that if a proceeding on an application for a license amendment falls within the scope of section 134 of the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. 10154. Under section 134 of the NWPA, the Commission, at the request of any party to the proceeding, must use hybrid hearing procedures with respect to "any matter which the Commission determines to be in controversy among the parties."
The hybrid procedures in section 134 provide for oral argument on 4
matters in controversy, preceded by discovery under the Commission's rules and the designation, following argument of only those factual issues that involve a genuine and substantial dispute, together with any remaining questions of law, to be resolved in an adjudicatory hearing. Actual adjudicatory hearings are to be held on only those issues found to meet the criteria of section 134 and set for hearing after oral argument.
The Commission's rules implementing section 134 of the NWPA are found in 10 CFR Part 2, Subpart K, "Hybrid Hearing Procedures for Expansion of Spent Fuel Storage Capacity at Civilian Nuclear Power Reactors." Under those rules, any party to the proceeding may invoke the hybrid hearing procedures by filing with the presiding officer a written request for oral argument under 10 CFR 2.1109. To be timely, the request must be filed together with a request for hearing/petition to intervene, filed in accordance with 10 CFR 2.309. If it is determined a hearing will be held, the presiding officer must grant a timely request for oral argument. The presiding officer may grant an untimely request for oral argument only upon a showing of good cause by the requesting party for the failure to file on time and after providing the other parties an opportunity to respond to the untimely request. If the presiding officer grants a request for oral argument, any hearing held on the application must be conducted in 5
accordance with the hybrid hearing procedures. In essence, those procedures limit the time available for discovery and require that an oral argument be held to determine whether any contentions must be resolved in an adjudicatory hearing.
BACKGROUND In 1988 the U.S. Nuclear Regulatory Commission (NRC) amended its regulations in 10 CFR Parts 30, 40, and 70 to set forth the technical
/
criteria for decommissioning licensed nuclear facilities. These regulations, as published in the Federal Register (FR) on June 27, 1988 (53 FR 24018), and including amendments promulgated in the 1990s, are the basis of this Part 0. Their intent is to ensure that decommissioning of all licensed nuclear facilities is performed in a safe and timely manner.
The NRC decommissioning regulations were amended on July 26, 1993 (58 FR 39628), effective October 25, 1993, to establish additional recordkeeping requirements, including documentation of restricted areas and spill sites. On July 15, 1994 (59 FR 36026), NRC established time frames and schedules for the decommissioning of licensed nuclear facilities. This "Timeliness Rule" was effective August 15, 1994. A 6
licensed facility that has been unused for NRC licensed operations for a period of 24 months is subject to the timeliness rule. The timing provisions related to the decommissioning of unused outside areas (including burial areas) containing elevated levels of licensed radioactive materials are at 10 CFR 30.36(d), 40.42(d), 70.38(d) and 72.54(d). On July 26, 1995 (60 FR 38235), effective November 24, 1995, NRC clarified that financial assurance requirements must be in place during operations and updated when licensed operations cease.
The intent of this requirement, as prescribed in the financial assurance sections of these regulations, is to ensure that adequate funds are available to ensure that the decommissioning of licensed facilities can be accomplished.
Additional requirements for disposition of records were added to 10 CFR Parts 30, 40 and 70 on May 16, 1996 (61 FR 24669), effective June 17, 1996. These provisions are reflected in the recordkeeping section of Part C of these regulations.
III. STAKEHOLDERS SUBMIT ADMISSABLE CONTENTIONS The following summary clearly raises in scope, material issues, supported by facts and expert opinions, that raise genuine issues of material law or facts, regarding the NRC staffs acceptance of the 7
shortfall in decommissioning funds, the unilateral determination of the use of SafeStor, the accuracy and adequacy of the calculations used by Entergy and the NRC to determine adequate financial assurance of the required decommissioning funds.
A. SHORTFALL OF DECOMMISSIONG FUND.
Entergy has an acknowledged a deficit in the present funding of its required financial assurance. According to 10 CFR 50.82(a)(9)(i), among other things, the licensee must submit the LTP at least 2 years before termination of the license. The estimated remaining costs of decommissioning must be compared with the present funds set aside for decommissioning. The financial assurance instrument required per 10 CFR 50.75(b)(1) must be funded at least to the amount of the cost estimate. If there is a deficit in present funding, the LTP must indicate the means for ensuring adequate funds to complete the decommissioning.
Delaying decommissioning by 60 years in order for Entergy's accumulate adequate decommissioning funds is in violation to the Timeliness Rule and the ongoing the minimal financial assurance requirements per 10 CFR 50.75(b)(1).
8
B. ADEQUACY OF CALCULATIONS USED TO DETERMINE DECOMMISSIONING COSTS There is an issue of fact as to whether the calculations used by the Entergy and accepted by the NRC staff (See ADAMS Accession No. ML091940387) adequately take into consideration.
The following standards for cost calculations to determine decommissioning costs are set forth in NUREG- 1713 Standard Review Plan for Decommissioning Cost Estimates for Nuclear Power Reactors Final Report Manuscript Published: December 2004, Prepared by: C.L. Pittiglio, Division of Regulatory Improvement Programs, Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, are:
- 1. FINANCIAL ASSURANCE Licensees of operating nuclear power reactors must provide reasonable assurance that funds will be available for the decommissioning process. For these licensees, reasonable assurance consists of fulfilling a series of steps identified in 10 CFR 50.75(b), (c), (e), and (f). These steps assure that the licensee can certify that financial assurance is in effect for an amount that may be more but not less than the amount stated in the table in 10 CFR 9
50.75(c)(1).
1.3 Acceptance Criteria:
The acceptance criteria are based on the requirements of 10 CFR 50.75(f)(2),
10 CFR 50.75(f)(4), and 10 CFR 50.82(a)(8)(iv), as applicable. The regulations require that each power reactor licensee shall at or about 5 years prior to the projected end of operations submit a preliminary cost estimate which includes an up-to-date assessment of the major factors that could affect the cost to decommission.
1.4.2 Assessment of the major factors that could affect the preliminary cost estimate:
The following factors should be used by the reviewer to ensure that the cost estimate includes an up-to-date assessment of the major factors that could affect the cost to decommission:
- a. POTENTIAL FOR KNOWN AND SUSPECTED CONTAMINATION OF THE FACILITY OR SITE TO AFFECT THE COST OF DECOMMISSIONING At Indian Point 2 the site specific known and suspected contamination that will affect the cost of decommissioning are the ongoing leaks of radioactive tritium, cesium and strontium 80, which were discovered not 10
from routine inspection but by accident. Spent Fuel Pool #2 has been identified as having leaks, yet less than 50% can be or has been inspected.
Additionally there are suspected unknown and uninvestigated leaks from the 8,000 ft of underground piping, including piping on the "clean" side of the plant which is now known to be contaminated with tritium..
In Entergy's License Renewal Application, GElS for Indian Point, there is an assessment that the impacts to onsite land use is small based on the assumption that the land used for storage of nuclear wastes at the generic reactor site will not exceed 30 years after the end of the license term and is based on a zero leak assumption.. It is invalidated by the reality that the Indian Point 1, 2 & 3 are already leaking unmonitored radioactive effluent into the bedrock, groundwater and Hudson River. By relying upon the incorrect "generic" assumption that the decommissioning of Indian Point will be generic, the licensee fails to take into account the current leaks into the bedrock, ground water and Hudson River, that will dramatically increase decommissioning costs at this site, adding to the current acknowledged $38.6 million dollar shortfall.
Since the Commission has voted that there is no confidence in the waste confidence rule high level radioactive waste (HLW) and low level radioactive waste (LLW) will remain stored on-site at Indian Point 2 for an undetermined time period, since no permanent storage facilitates are available.
The designers of commercial nuclear reactor sites, like Indian Point, assumed that spent fuel, a highly radioactive form of nuclear waste, would only remain on-site for approximately 5 years, to allow the radioactivity in the waste to decay sufficiently to allow it to be transported off-site to another facility for reprocessing or disposal alia that a central waste repository will open within 30 years after power generation at reactors ceases. Yet in the September 24, 2009 the Commission voted not to approve a finding of waste confidence, and that does not have confidence that a central waste repository for spent fuel will be available within 50- 60 years. The Commissioners made it clear that waste will remain at reactor sites for the foreseeable future and it is impossible to predict when any waste might be removed. Instead, the country still continues to grapple with how to dispose of nuclear waste, which we have failed to resolve for the last half century.
Meanwhile any waste generated during any period of extended operation would continue to accumulate at Indian Point and there are no identified 12
acceptable disposal alternatives. Therefore and the Commission do not have a functional waste confidence rule that can be relied on by Entergy or the NRC Staff cannot plan decommissioning relying on a waste confidence rule.
The NRC has discussed plans to store both Low Level Radioactive Waste (LLRW) and High Level Radioactive Water (HLRW) on site at reactor facilities for a period in excess of 100 years. Therefore since high level and low level waste storage may exceed the 60 years required for decommissioning Indian Point 2 probably cannot be completed during required time frame of 60 years.
Since the closing of Barnwell, no such site has been established for Indian Point's LLW including Class A, B & C waste, and therefore it is currently stored on site, indefinitely. Such on site storage increases the risk and costs to eventual decommissioning. Adjustments for these changes in industry practices must be fully funded and available for the decommissioning funds to be deemed adequate.
LLW disposal is one of the most expensive factors in plant decommissioning. There has been up to 3800% increase in the cost of disposal of LLW from $13/ft3 in 1983 to prior to the closure of the Barnwell facility costs ranged from $200/ft3 to $500/ft3, these costs will 13
continue to increase exponentially due to the increasing costs of fossil fuels needed for decommissioning.
Additionally the planned replacement of the reactor heads for IP2 creates additional and significant amounts of HLW and LLW radioactive waste that has not been fully considered in the adequacy of the required Decommissioning funds
- c. THE PRELIMINARY SCHEDULE OF DECOMMISSIONING ACTIVITES:
- i. Timeliness Rule: Entergy's proposed 60 year SafeStor of
-Indian Point 2 creates a delay in decommissioning in violation of the Timeliness Rule. On July 15, 1994 (59 FR 36026), NRC established time frames and schedules for the decommissioning of licensed nuclear facilities.
The NRC established time frames and schedules for the decommissioning of licensed nuclear facilities. This "Timeliness Rule" was effective Augusi 15, 1994. A licensed facility that has been unused for NRC licensed operations for a period of 24 months is subject to the timeliness rule.
The use of the SafeStor option as method to avoid decommissioning in a timely manner has resulted in groundwater and soil contamination and adds to the cost of decommissioning while increasing the damage to the environment and public health in violation 14
of NEPA. Indian Point 1, which has been in SafeStor since the 1970's is now leaking Strontium 90, Cesium 89 and Tritium into the groundwater and the Hudson River, in violation of the SafeStor agreement. The NRC cannot provide the necessary guarantees to the State and stakeholders that Indian Point 2, which is currently leaking in violation of its current license, will continue to leak radioactive elements into the ground, ground water and Hudson River during the proposed 60 years SafeStor. The NRC staff approval is not based on the safety of the public or the environment but on the $38.6 million shortfall in decommissioning funds created by a down turn in the volatile investment market.
ii. Procedure for approval of SAFESTOR To adopt SafeStor for the proposed period of 60 years, Entergy must first apply to the NRC for a license amendment, set forth public notice in the Federal Registry and allow for public hearings. This has not occurred, yet Mr. Boska has evaluated and accepted financial assurance of the decommissioning fund for Indian Point 2 based on an unapplied or an unapproved SafeStor period of 60 years. The NRC staffs unilateral acceptance of Entergy's proposed SafeStor is an overstepping of its authority, and creates and abdication of the NRC's 15
responsibilities to evaluate and determine whether to grant this proposed license amendment.
- d. ANY OTHER FACTOR THAT COULD SIGNIFCANTLY AFFECT THE COST OF DECOMMISSIONING.
- i. Current Application for a new 20 year license under review:
Entergy currently has submitted an application for a new 20 year license, yet the NRC Staff did not consider the additional waste that will be accumulated during the proposed new 20 year license period and the additional costs of decommissioning the additional accumulation of waste.
ii. Inadequate Cost of Living Increase for 60-70 years The escalation factor used by Entergy is less than the cost of living increase, therefore the decommissioning funds will be inadequate in 60-70 years after the proposed SAFESTOR period. This underfunding has been established by the GAO in various reports, including General Accounting Office (GAO) report, "Better Oversight Needed to Ensure Accumulation of Funds to Decommission Nuclear Power Plants," June 15, 1999, and the GAO Report October 2003 Highlights of GAO-04-32, a report to the Honorable Edward J. Markey, House of Representatives NRC Needs More Effective Analysis to Ensure Accumulation of Funds to Decommission Nuclear Power Plants 16
- e. Evaluation of the reasonable assurance of funding is not conducted as part of the review of the licensee's decommissioning cost estimate. It is conducted according to NUREG-1577. The reviewer should ensure that the appropriate information has been provided.
In a letter entitled Sharing Regulatory Perspective: The NRC in the Time of Change by NRC Commissioner Shirley Ann Jackson, she states that "DecommissioningFundingAssurance, "Under Section 161 of the Atomic Energy Act of 1954, as amended, the NRC has statutory authority to regulate the decommissioning of its licensed nuclear facilities. Existing decommissioning regulations require power reactor licensees to set aside funds periodically in external trust fund accounts (or to provide third-party guarantees for estimated decommissioning costs). In the emerging environment of electricity utility restructuring, the NRC has had to re-evaluate certain aspects of these provisions, including the NRC definition of an electricity utility, the potential impact of new ownership arrangements, and the problem of above-market or "stranded" costs" Entergy has proposed to create a the holding company, Enexus, that will own the six Northeast reactors, including Indian Point 2. The deal would add $4 billion to Entergy's bottom line, but would leave the newly created LLC saddled from the start with $4 billion in debt.
The New York Power Commission has rejected the spinoff, telling regulators that Entergy's proposal is not in the public's best interest, because 17
the new company would be saddled with too much debt and could be financially unstable.
In a 2002 report written by former NRC Commissioner Peter Bradford cited a history of Entergy of setting up shell companies. Entergy Corporation was a pioneer in establishing separate corporate entities to own and operate nuclear power plants. The consolidation of nuclear ownership shifts the risk of accidents and decommissioning costs from the plant owners to the general public because the relatively secure financial backing of substantial utility companies have been replaced by a limited liability subsidiary whose only asset is an individual nuclear power plant. Currently there are approximately 21 levels of corporate ownership, shielding Entergy's assets. The limited liability structures being utilized are effective mechanisms for transferring profits to the parent/owner while avoiding tax payments. They also provide a financial shield for the parent/owner if an accident, equipment failure, safety upgrade, or unusual maintenance need at one particular plant creates a large, unanticipated cost. The parent/owner can walk away, by declaring bankruptcy for that separate entity which holds the operating license, without jeopardizing its other nuclear and non-nuclear investments.
The Decommissioning Plan must guarantee that 18
decommissioning funds will be available to clean up reactor sites, even in the event of bankruptcy or insolvency of the licensee or one of the corporations in complicate corporate structures of the licensee. The NRC does not have the ability to compel a corporation in bankruptcy to make the necessary additional payments and adjustment into decommissioning funds.
In fact after Hurricane Katrina, Entergy successfully filed bankruptcy and its the bond rating for Entergy New Orleans was CCC, and assigned a D upon Bankruptcy filing which is lower than bond ratings acceptable for decommissioning trust fund.
By permitting the Decommissioning Trust Fund to be placed in a shell corporation, and gambled in unsecure instruments in the volatile investment cannot be relied upon as a guarantee that adequate decommissioning funds will be in place at the end of the license term or even at the end of the unapproved proposed 60 year SafeStor period. "Prices on the nonregulated spot market - though offering potential for greater profits - can fall as quickly as they rise, leading to credit downgrades and higher interest costs, said, Entergy CEO Wayne Leonard.
PARTICIPATION AS A MATTER OF RIGHT 19
A . Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), are individually and jointly referred to hereinafter as "Stakeholders have standing on their own behalf and on behalf of their members.
- 1. IPSEC is a grassroots coalition of over 70 environmental, health, and public policy organizations concerned with the vulnerability of the Indian Point Nuclear Facility in Buchanan, NY and the radioactive waste it produces, both to internal incidents and to external accidents or acts of terrorism. IPSEC has mobilized to call for its closure, orderly decommissioning, and securing of the irradiated fuel. IPSEC has consistently followed the events at Indian in order to keep the public informed through its listserve, ISPEC has approximately one thousand members who live within the State of New York, in Westchester, Rockland, Putnam and Orange County, and who make their residences, places of occupation and recreation within fifty (50) miles of Indian Point, and whose concrete and particularized interests will be directly affected by this proceeding. ISPEC has participated in hearings on this issue. IPSEC's central office is located in Ossining, NY 10562-0131 which is within 10 miles of Indian Point and situated within the Plume Exposure Pathway 20
(EPZ), also referred to as the Peak Fatality Zone.
- 2. WestCAN is a grassroots coalition that has advocated for a nuclear free Northeast and has consistently followed the events at Indian in order to keep the public informed through its listserve, WestCAN has approximately five hundred members who live within the State of New York, in Westchester, Rockland, Putnam and Orange County, and who make their residences, places of occupation and recreation within fifty (50) miles of Indian Point, and whose concrete and particularized interests will be directly affected by this proceeding. WestCAN has participated in hearings on this issue. 20. WestCAN's central office is located at 2A Adrian Court, Cortland Manor, NY which is within five miles of Indian Point and situated within the Plume Exposure Pathway (EPZ), also referred to as the Peak Fatality Zone.
- 3. PHASE has standing on its own behalf and on behalf of its members. PHASE is a grassroots think tank, that advocates for the development and use of sustainable energy, in an effort to protect public health and safety, and the protection of the environment. PHASE has members who live within the State of New York, primarily in Rockland and Westchester Counties, and who make their residences, places of occupation and recreation within thirty (30) miles of Indian Point, and whose concrete 21
and particularized interests will be directly affected by this proceeding.
PHASE's central office is located at 21 Perlman Drive, Spring Valley, NY 10977, which is within eleven miles of Indian Point and situated within the Plume Exposure Pathway (EPZ), also referred to as the Peak Fatality Zone.
- 5. Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), meet the requirements of 10 CFR §2.310(d) for a full adjudicatory hearing on all contentions it raises, and do not concede the procedures of 10 CFR §2.3 10 which restrict use of full adjudicatory hearing procedures are lawful and reserves the right to challenge, in an appropriate legal forum, these procedures should that be necessary to permit Stakeholders to fully adjudicate the important nuclear safety and environmental issues it raises.
B. . Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE") meet Prudential Standing Requirements.
In addition, Courts have created a prudential standing requirement that 22
if a petitioner's interests fall within the "zone of interests" protected by the statute on which the claim is based. Bennett v. Spear, 520 U.S. 154, 162(1997). The Atomic Energy Act and NEPA, the statutes at issue here, protect the same interests of protecting public health and safety, that are held Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), Gary Shaw, Marilyn Elie, Judy Allen , Margo Schepart, Maureen Ritter, Susan Shapiro, Michel Lee, and Kenneth Okin (jointly and individually).
C.. Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), DO NOT WAIVE THEIR RIGHTS TO SUBMIT SUPPLEMENTAL CONT ENTIONS AND AMEND THE CONTENT IONS SET FORTH HEREIN, AND TO OT H ER PROCEDURA L MATTERS D.. Right to supplement and amend contentions is not waived.
The Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable 23
Energy (referred to hereinafter as "PHASE"), , are submitting a statement of the contentions that reflect the concerns of the Stakeholder community and should be accepted for hearing by the Nuclear Regulatory Commission. The contentions submitted herein should not be deeded to waive. Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), reserve the right to submit further contentions in the future or amend the contentions set forth herein. Further E. Efficiency of Cross Examination of Expert or Fact Witnesses The most efficient manner by which statutory rights can be exercised is to allow both depositions and live testimony to the extent the issues are not fully developed during discovery. Although not specifically mentioned in 10 CFR §2.102, cross-examination of witnesses will be more efficient when possible for. Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ("WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE") and the Licensee to submit cross-examination outlines five days before the hearing, to alert each witness to the subjects which the parties will explore.
24
Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), have the right to seek production of documents, if for no other reason than production of documents will facilitate interrogation of witnesses and narrow the scope of their examination. Otherwise, witnesses will be asked questions about issues which are addressed in documents which either are not present during the interrogation or the analysis of which will require a hiatus in the interrogation. Relevant documents and cross-examination outlines are hereby requested to be submitted by all parties wherever possible, at least five days in advance such that the witness may be prepared to fully answer the questions posed.
F.. Indian Point Safe Energy Coalition ("ISPEC"), Westchester Citizen's Awareness Network ( "WestCAN"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"),(the Stakeholders) contend that the Nuclear Regulatory Commission and Applicant have had and will continue to have ex parte communications in violation of the requirements of Title 5, the parties shall adhere in the strictest sense to the requirements of Title 5, Part I Chapter 5 subchapter II, §557.
25
The Stakeholders request that the NRC follows the regulations with regard to ex parte communications with the Applicant as required by Title 5, Part 1, Chapter 5 subchapter 1I§557. The sections that have particular relevance are provided below. In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law:
(i) No interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (ii) No member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (iii) A member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be 26
involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:
(A) All such written communications; (B) Memorandum stating the substance of all such oral communications; and (C) All written responses, and memoranda stating the substance of all
.oral responses, to the materials described in clauses (i) and (ii) of this subparagraph (iv) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his/her claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and (v) The prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be 27
noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.
(vi) Therefore the Nuclear Regulatory Commission bound under these regulations throughout the License Renewal Application proceedings may not have ex parte communications with the Applicant.
CONCLUSION:
The Stakeholders respectively submit to the Commission that for the reasons set forth above the NRC's staff finding of adequate decommissioning funds for Indian Point 2 must be repealed by the Commission and Stakeholders request for public hearings on the adequacy of the decommissioning funds should be granted.
Submitted Respectfully by, usan Shapi~g~
21 Perlman Drive Spring Valley, NY 10977 Representing:
Indian Point Safe Energy Coalition, Westchester Citizen's Awareness Network, Public Health and Sustainable Energy ("PHASE")
28
21 Perlman Drive Spring Valley, NY 10977 (845) 371-2100 mbs(courrocklandoffice.corn 29
Docket, Hearing From: palisadesart@aol.com Sent: Monday, March 01, 2010 10:06 PM To: CMRKLEIN; cmrsvinick@nrc.gov; Docket, Hearing; gam@nrc.gov; secy@nrc.gov; ksutton@morganlewis.com; pbessette@morganlewis.com; martin.o.neill@morganlewis.com; john.sipos@oag.state.ny.us; jlparker@gw.dec.state.ny.us; richardbrodsky@msn.com; phillip@riverkeeper.org; mannajo@clearwater.org
Subject:
Objection to finding of adequate decommissioning funds by NRC Staff Attachments: IPSECWestCertif of Service Decom 3-1-10.pdf; IPSEC.WestCan Decom 1.pdf Please accept for filing the enclosed Objection to the finding by the NRC Staff on December 28, 2009 of adequate decommissioning funds regarding Indian Point Generating Unit 2, Petition to Repeal Finding of Adequacy Decommissioning Funds, Petition to Reopen for Consideration, Petition for Leave to Intervene and Request for a Hearing, and Contentions.
Attached are the Petition and Certificate of Service.
Sincerely, Susan Shapiro (845) 371-2100 1.
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