ML11222A033
| ML11222A033 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/10/2011 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SECYRAS | |
| References | |
| 07-858-03-LR-BD01, Indian Point 2 & 3, RAS E-564 | |
| Download: ML11222A033 (11) | |
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. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01 August 10, 2011 MEMORANDUM AND ORDER (Granting Entergys Request for Clarification)
On July 6, 2011, the Board, inter alia, admitted in part amended Contentions NYS-17B and NYS-37, which arise out of the NRC Staffs Final Supplemental Environmental Impact Statement (FSEIS) for Applicant Entergy Nuclear Operations, Inc.s (Entergys) License Renewal Application (LRA) for Indian Point Units 2 and 3 (IP2 and IP3).1 NYS-17B and NYS-37 both focus on the analysis of the no-action alternative in the NRC Staffs FSEIS.
Entergy has moved for clarification of our admission of those two contentions in our July 6, 2011 Memorandum and Order.2 Intervenor the State of New York (New York) opposes Entergys Motion, while the NRC Staff supports the Motion.3 For the reasons stated below, we grant Entergys Motion to clarify our July 6, 2011 Memorandum and Order.
1 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) at 16-19, 33-35, 71 (unpublished) [hereinafter July 6, 2011 Licensing Board Memorandum and Order].
2 Applicants Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-17B and NYS-37 (July 18, 2011) [hereinafter Entergy Motion].
3 State of New Yorks Response to Applicants Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-17B and NYS-37 (July 26, 2011) at 1 [hereinafter New York Answer]; NRC Staffs Answer to Applicants Motion for Clarification of Licensing NYS-17B Filed as part of New Yorks original hearing request and petition to intervene, NYS-17 claimed that Entergys LRA was flawed because it did not consider the positive impacts on land values in the Indian Point area that would accrue if the licenses for IP2 and IP3 were not renewed.4 We admitted NYS-17 as a contention of omission.5 After publication of the NRC Staffs Draft Supplemental Environmental Impact Statement (DSEIS), we admitted NYS-17A as an update to NYS-17, and consolidated them as NYS-17/17A.6 After publication of the FSEIS, we admitted NYS-17B in part and consolidated the contention with NYS-17/17A as Consolidated NYS-17B.7 As relevant to Entergys Motion for Clarification, we equated one position that the presence of spent fuel itself on the [Indian Point]
site affects property values with a second position that environmental impact[s] from the presence of spent fuel must be assessed on a site-specific basis.8 We regarded both positions as outside the scope of this proceeding because the NRCs Waste Confidence Rule (10 C.F.R.
§ 51.23) explicitly mandates that the environmental impacts of on-site spent fuel storage for nuclear power reactor operating licenses under 10 C.F.R. Parts 50 and 54 need not be considered on a site-specific level in environmental reviews for such licenses.9 But we also stated that:
Board Admissibility Rulings on Contentions NYS-17B and NYS-37 (July 28, 2011) at 1
[hereinafter NRC Staff Answer].
4 LBP-08-13, 68 NRC 43, 115 (2008).
5 Id. at 116, 218.
6 Licensing Board Order (Ruling on New York States New and Amended Contentions) (June 16, 2009) at 8, 17 (unpublished) [hereinafter June 16, 2009 Licensing Board Order].
7 July 6, 2011 Licensing Board Memorandum and Order at 16-19, 71.
8 Id. at 17 (citations omitted).
9 Id. at 17-18 (citations omitted).
[T]he negative effect on property values predicted by [New Yorks expert] that would result from the longer-term presence of spent fuel anticipated by the updated Waste Confidence Rule is not an environmental impact barred by the Waste Confidence Rule. The potential for spent fuel to indefinitely stay on-site is not an environmental impact associated with the spent fuel itself; rather, it is the occupation of the site by components of IPEC [Indian Point Energy Center] that has the potential to bring down property values if license renewal is granted. It is the value and uses of adjacent property that are site-specific environmental impacts. A challenge based on the impact of IPEC components long-term on-site existence upon surrounding property values is not barred by the Waste Confidence Rule.10 We agree with Entergy and the NRC Staff that these two aspects of our admission of NYS-17B could be misunderstood as simultaneously closing and opening the door to litigation of issues barred by the Waste Confidence Rule.11 While we disagree with New York that Entergys Motion is a motion for reconsideration,12 our decision to admit NYS-17B in part has not changed.
NYS-17/17A argued that Entergy (and later the NRC Staff) insufficiently analyzed the no-action alternatives positive impacts on property values near Indian Point.13 NYS-17B, in addition to transferring concerns about Entergys Environmental Report (ER) and the NRC Staffs DSEIS to the FSEIS, adds to NYS-17/17A the putative property value impacts of spent fuel storage.
We continue to view the environmental impacts of on-site spent fuel storage as outside the scope of this adjudicatory proceeding by operation of the Waste Confidence Rule but, in permitting litigation of IPEC components long-term on-site existence upon surrounding property values, we viewed (and continue to view) the property value impacts of the presence of spent fuel storage facilities when combined with the presence of other plant components 10 Id. at 18 (citations omitted).
11 See Entergy Motion at 3; NRC Staff Answer at 5-6.
12 See New York Answer at 1.
13 June 16, 2009 Licensing Board Order at 8; LBP-08-13, 68 NRC at 115-16.
during the period of extended operations as within the scope of this proceeding. In effect, because of the operation of the Waste Confidence Rule, we have precluded assertions that the property value impacts from spent fuel storage can be isolated from impacts to property values emanating from the presence of other Indian Point plant components.
Arguably, the presence of plant systems, structures, and components (SSCs) (including stored spent fuel) might have an adverse effect on nearby property values. Whatever that effect might be, we believe it is impossible to segregate the incremental effects of spent fuel storage from the presence of other SSCs until these other components are removed during decommissioning. Stated another way, whatever hypothesized impact IPEC has on property values during the period of extended operations is not affected to a measurable degree by any one component (including the presence or absence of spent fuel), but rather is influenced by the presence of the entire plant as an entity.
Thus, [t]he negative effect on property values predicted by [New Yorks expert] that would result from the longer-term presence of spent fuel anticipated by the updated Waste Confidence Rule is not an environmental impact barred by the Waste Confidence Rule14 when considered in conjunction with the negative effect of other SSCs at IPEC. Any attempt by New York to focus on the impacts associated with just the presence of spent fuel up through the period of extended operations and for the longer periods after decommissioning is barred by the Waste Confidence Rule. And, more broadly, any incremental impact of spent fuel alone need not be given any role in assessment of property values. Only impacts based on the presence (or not) of SSCs are required for evaluation.
The Waste Confidence Rules preclusion of consideration of site-specific environmental impacts from on-site storage of spent fuel focuses on the sixty years after the period of 14 July 6, 2011 Licensing Board Memorandum and Order at 18.
extended operations.15 On the other hand, 10 C.F.R. § 50.82(a)(3) and (6) dictate a decommissioning period of up to sixty years beyond the period of extended operations, and we have said previously that New York could seek an analysis of the impacts on property values during the decommissioning period.16 Therefore, as long as plant components exist on-site after the period of extended operations, these components impacts on property values need to be evaluated in the no-action alternative.
In summary, we grant Entergys Motion, and clarify that the impact of IP2s and IP3s components on nearby property values may be litigated in this proceeding, but impacts attributed solely to the presence of spent fuel itself may not be litigated in this proceeding.
NYS-37 We admitted NYS-9 from New Yorks original hearing request and petition to intervene in part, inasmuch as it alleged that Entergys LRAs analysis of the no-action alternative did not account for the ability of energy conservation to take the place of IP2 and IP3.17 After publication of the NRC Staffs DSEIS, we admitted NYS-33 and consolidated it with NYS-9 as NYS-9/33.18 NYS-33 updated NYS-9s claims to the DSEIS, postulating inadequate acknowledgement of the ability of, inter alia, energy conservation and efficiency, the viability of renewable energy resources, energy transmission capacity, and possible combinations of different energy sources to fill the void of power production left by IP2 and IP3 in the no-action alternative.19 15 10 C.F.R. § 51.23(a).
16 See Licensing Board Memorandum and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) (Apr. 22, 2010) at 14-15 (unpublished) (citing 10 C.F.R.
§ 50.82(a)(3), (6)(ii)).
17 LBP-08-13, 68 NRC at 92-93, 218.
18 June 16, 2009 Licensing Board Order at 13, 17.
19 Id. at 9, 11-13.
Our July 6, 2011 Memorandum and Order admitted NYS-37, consolidating it with NYS-9/33 as NYS-37, to the extent it claimed that the FSEIS is deficient for failing to discuss information, published after the DSEISs issuance in December 2008, that is material to understanding the environmental impact of the no-action alternative and also that it fails to adequately address comments made to the DSEIS.20 However, we did not permit a broad-ranged inquiry into alternative scenarios and the need for power, which would be precluded by Commission regulations, and f[ou]nd New Yorks concerns about the FSEISs analysis of certain non-fossil alternatives untimely, given that these issues go beyond those raised by New York in its contentions on the DSEIS and New York could have raised them earlier.21 We agree with Entergy and the NRC Staff that [i]t is not clear... which of New Yorks concerns about the FSEISs analysis of certain non-fossil alternatives the Board... excluded as untimely.22 Accordingly, we grant Entergys Motion for Clarification of NYS-37.
The specific non-fossil alternatives we were referring to were those arising from the 2004 New York State Renewable Portfolio Standard, which existed before the DSEIS was issued, were not raised as challenges in NYS-9/33, and were raised for the first time in NYS-37.23 20 July 6, 2011 Licensing Board Memorandum and Order at 34, 71.
21 Id. at 35 & n.156.
22 Entergy Motion at 4; see NRC Staff Answer at 6-8.
23 Compare State of New York Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Feb. 3, 2011) at 19 with State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (Feb. 27, 2009) at 28-29.
However, NYS-37 echoed concerns raised in NYS-9/33 for its other non-fossil alternatives, and we thus do not exclude any of them from admission in NYS-37.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD24 Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Dr. Kaye D. Lathrop ADMINISTRATIVE JUDGE Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland August 10, 2011 24 Copies of this Memorandum and 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 Sean Murray, the Representative for the Village of Buchanan; and (10) Michael J. Delaney, counsel for the City of New York.
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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 LB MEMORANDUM AND ORDER (Granting Entergys Request for Clarification), has been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication Mail Stop O-7H4M 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 Joshua A. Kirstein, 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
Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER (Granting Entergys Request for Clarification) 2 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 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.
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, Esq.
Director, Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 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.
724 Wolcott Ave.
Beacon, NY 12508 Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave.
Beacon, New York 12508 Ross Gould, Board Member Hudson River Sloop Clearwater, Inc.
270 Route 308 Rhinebeck, NY 12572
Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER (Granting Entergys Request for Clarification) 3 Counsel for the Town of Cortlandt Thomas F. Wood, Esq.
Daniel Riesel, Esq.
Jessica Steinberg, J.D.
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 Melissa-Jean Rotini, of counsel Assistant County Attorney Office of Robert F. Meehan, 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 Philip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 Richard L. Brodsky, Esq.
Member of Assembly 92nd Assembly District, State of New York 5 West Main Street Suite 205 Elmsford, NY 10523
Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER (Granting Entergys Request for Clarification) 4 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 10th day of August 2011