ML11229A820
| ML11229A820 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/17/2011 |
| From: | Sherwin Turk NRC/OGC |
| To: | NRC/OCM |
| References | |
| 50-247-LR, 50-286-LR, LBP-11-17, RAS E-575 | |
| Download: ML11229A820 (10) | |
Text
August 17, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247 -LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFF'S ANSWER TO "THE STATE OF NEW YORK AND THE STATE OF CONNECTICUT'S COMBINED MOTION FOR LEAVE TO FILE A BRIEF REPLY TO NRC STAFF'S ANSWER TO APPLICANT'S PETITION FOR REVIEW OF LBP-11-17" INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission
("NRC Staff' or "Staff') herewith files its answer to the State of New York and State of Connecticut's (hereinafter referred to collectively as "New York") motion for leave to file a reply to the "NRC Staff's Answer to Applicant's Petition for Review of LBP-11-17 Granting Summary Disposition of Consolidated Contention NYS-35/36," 1 filed on August 11, 2011.
DISCUSSION In its Motion, New York provided a certification of Counsel, as required under 10 C.F.R.
§ 2.323(b), in which it stated that "Entergy and NRC Staff oppose this request on the ground that the reply sought is not authorized by the NRC's Rules of Practice in 10 C.F.R. Part 2." That certification does not accurately reflect the position expressed by Staff Counsel during 1 "The State of New York and the State of Connecticut's Combined Motion For Leave To File A Brief Reply to NRC Staff's Answer to Applicant's Petition for Review of LBP-11-17" (Aug. 16, 2011)
("Motion"). New York attached its Reply to its Motion. See "The State of New York and the State of Connecticut's Combined Reply to NRC Staff's Answer in Support of Entergy's Petition for Interlocutory Review of LBP-11-17" (Aug. 16,2011) ("Reply").
-2 consultations on New York's Motion. In fact, the Staff had expressed the following position -
which the Staff reiterates here for the Commission's consideration:
The Staff opposes the State's request, on the grounds that the reply is not authorized by the rules (which also bar the Staff from filing a reply to the State's Answer), and the Staff's Answer does not differ substantially from the position expressed in its cross motion for summary disposition or its petition for review of the Board's previous decision.
Please include the above statement in your motion, in describing the Staff's position.
See Attachment 1; emphasis added. Although Counsel for New York (Janice A. Dean) committed to include this statement in New York's Motion (see Attachment 1), the Motion presents only a portion of the Staff's position. The Staff therefore presents its complete position on New York's Motion.
In this regard, the Staff submits that its Answer to the Applicant's Petition 2 presents substantially the same arguments that the Staff had made in its prior filings concerning Contention NYS-35/36, before both the Atomic Safety and Licensing Board ("BoardJl)3 and the Commission. 4 New York's assertions to the contrary are incorrect. s Thus, the Staff's Answer presented its views that (a) New York's motion for summary disposition should have been 2 "Applicant's Petition for Review of LBP-11-17 Granting Summary Disposition of Consolidated Contention NYS-35/36" (July 29, 2011) ("Petition").
3 See (1) "NRC Staff's (1) Cross-Motion for Summary Disposition, and (2) Response to New York State's Motion for Summary Disposition, of Contention NYS-35/36 (Severe Accident Mitigation Alternatives)" (Feb. 7, 2011) ("Staff Cross-MotionJl); (2) "NRC Staff's Answer to State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis' (Apr. 5, 2010), at 13-35.
4 See "NRC Staff's Petition For Interlocutory Review of the Atomic Safety and Licensing Board's Decision Admitting New York State Contentions 35 and 36 on Severe Accident Mitigation Alternatives (LBP-10-13)" (July 15,2010) ("Staff Petition").
S The Staff's Answer does address, for the first time, the Board's recent decision in LBP-11-17, and the impact that decision may have on this proceeding. See Answer at 8-12; Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC _ (July 14, 2011). The Board's decision in LBP-11-17, however, could not have been addressed prior to the issuance of that decision.
- 3 denied and the Staff's and Applicant's cross-motions for summary disposition should have been granted,S (b) there is no regulatory basis to require engineering project cost-benefit analyses as a condition for license renewal,7 (c) the Board's decision is inconsistent with NEPA, Commission precedent, and NRC regulations,B and (d) the FSEIS provides an adequate evaluation and "rational basis" for the Staff's license renewal recommendation, as required by NEPA and the APA. 9 There is nothing substantially new in the Staff's presentation of these arguments.
Further, there is no factual basis for New York's assertion that the Staff's Answer (a) "announces" or "indicates" for "the first time" how it will respond to the Board's decision in LBP-11-17,ld. at 1, (b) that the Staff's answer demonstrates its "intention to not comply" with that decision, Id. at 2, or (c) that the Staff's Answer "argues ... that Staff does have the legal authority to require implementation of any cost-effective SAMAs as a condition of a renewed license. Staff Answer at 14 n.45." Id. at 2-3. In fact, the Staff's Answer indicated (a) that the Staff had already complied with the Board's requirements, first announced by the Board in LBP-10-30,1O by providing an augmented explanation of its SAMA conclusions in the Final SEIS 11 - which the Board failed to address in LBP-11-17; 12 (b) that the Staff would review any further cost information that might be submitted by Entergy in an amendment to its application, or as otherwise directed by the Commission;13 and (c) that the issue of the Commission's legal 6 See, e.g., Staff Answer at 13-15.
7 Staff Answer at 15-19.
B Staff Answer at 19-21.
9 Staff Answer at 21-25.
10 Entergy Nuc/ear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-10-30, 72 NRC _, _ (Nov. 30,2010) (slip op. at 2 and 6-7).
11 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report,"
NUREG-1437, Supplement 38 (Dec. 2010) ("Final SEIS" or "FSEIS").
12 Staff Answer at 21-22.
13 Staff Answer at 12 n.41.
-4 authority to impose SAMA-related conditions for license renewal need not be addressed to resolve the pending appeal- and, indeed, the Staff expressed no pOSition on that issue,14 Finally, although the Commission could grant New York's Motion as a matter of discretion, the Staff notes that the Motion rests upon certain incorrect legal assertions, insofar as New York suggests (a) that a party's answer to a petition for review must not "go[] beyond the four corners of [the] Petition," Motion, at 1; and (b) that if a party elects to file an answer to a petition for review, rather than file its own petition, it "essentially abandon[s] any arguments it had made in its prior pleadings, , , that were not also included in the [petitioner's] prior pleadings on this issue", /d, at 2, There is no legal basis for New York's belief that a party's answer to a petition for review is restricted to the matters stated in the petition, Rather, 10 C,F,R, § 2,341 (b)(3) states that any party other than the petitioner for review "may "file an answer supporting or opposing Commission review," No limitation is placed upon the matters that may be raised in such an answer in § 2,341(b)(3),15 Indeed, if answers to petitions for review were restricted to the "four corners" of the claims made by a petitioner, the parties' answers would effectively be allowed to state only that they "agree" or "disagree" with statements and supporting rationale presented in the petition, That result is inconsistent with the principle set forth in 10 C,F,R, § 2,341 (b)(3), that parties are permitted to file an answer in support of, or in opposition to, a petition for review, New York's attempt to limit the permitted scope of such an answer would render that principle meaningless, Moreover, under New York's suggested approach, parties would be barred from presenting important and relevant factors for Commission consideration, beyond those stated in the petition - and the Commission would be prevented from being able to consider such matters in ruling on a petition for review, That suggested approach should be rejected, 14 See Staff Answer at 14 n.45, 15 New York does not cite any Commission case law that restricts the scope of an answer in the manner New York suggests, and the Staff is aware of no such decision,
- 5 CONCLUSION New York's request for leave to reply to the Staff's Answer is not authorized by 10 C.F.R. § 2.341 (b)(3), and lacks factual basis. Whether the Commission decides to grant New York's Motion and to consider its Reply to the Staffs Answer is a matter that rests within the Commission's discretion; the Staff respectfully submits, however, that New York's Motion does not provide a sound basis for its request, for the reasons discussed above.
Respectfully submitted, Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 1ih day of August 2011
Turk, Sherwin From: Janice Dean [Janice.Dean@ag.ny.gov]
Sent: Tuesday, August 16, 2011 10:42 AM To: Turk, Sherwin Cc: Martin J. O'Neill; Paul Bessette; Robert Snook
Subject:
RE: Indian Point - consultation regarding motion for leave tofilereply to Staffs Answer Will do. Thank you.
Janice
>>> "Turk, Sherwin" <Sherwin.Turk@nrc.gov> 8/16/2011 10:04 AM >>>
Janice The Staff opposes the State's request, on the grounds that the reply is not authorized by the rules (which also bar the Staff from filing a reply to the State's Answer), and the Staff's Answer does not differ substantially from the position expressed in its cross-motion for summary disposition or its petition for review of the Board's previous decision.
Please include the above statement in your motion, in describing the Staff's position.
Thank you.
Sherwin
Original Message----
From: Janice Dean [1]
Sent: Monday, August 15, 2011 3:39 PM To: Paul Bessette; Turk, Sherwin Cc: Robert Snook
Subject:
RE: Indian Point - consultation regarding motion for leave to filereply to Staff's Answer Primarily, this is the first notice parties have gotten of what Staff's intended response to the Board's order is.
Until Staff's Answer, parties did not know how Staff would be complying with the order since the order offered Staff multiple options. It's now clear that Staff has chosen none of those options.
Janice
>>> "Turk, Sherwin" <Sherwin.Turk@nrc.gov> 8/15/2011 3:07 PM >>>
Janice What is it that you want to respond to, that you believe is not embraced by "any point Entergy made in its Petition"?
Sherwin
Original Message----
From: Janice Dean [2]
Sent: Monday, August 15, 2011 2:26 PM To: Paul Bessette; Turk, Sherwin Cc: Robert Snook
Subject:
Indian Point - consultation regarding motion for leave to file reply to Staff's Answer Paul and Sherwin, 1
This email seeks consultation under 2.323(b) regarding the State's intention to file a motion for leave to file a 5 page reply to Staff's Answer to Entergy's Petition for Interlocutory Review. The motion and affiliated reply would be filed tomorrow, within the regulatory timeframe for replies, and will address narrow points Staff made which the States of New York and Connecticut do not believe respond directly to Entergy's petition but which we view as newly raised issues. As you are aware, the States would have been entitled to a significantly longer reply should Staff have filed its lengthy Answer as a Petition. Since Staff did not, and to facilitate a decision on this Petition as quickly as possible, at this time the States seek only to submit this limited reply. The reply will not address any point Entergy made in its Petition.
Please advise if you would like to discuss further or if Entergy or Staff support, oppose, or take no position on this motion. Regretfully as I am writing both now, I do not have drafts yet to share.
I am available today but for a 3pm meeting if you would like to discuss.
Thank you, Janice Janice A Dean Assistant Attorney General Office of the NYS Attorney General 120 Broadway, 26th Floor New York, New York 10271 (212) 416-8459 voice (212) 416-6007 fax janice.dean@ag.ny.gov 2
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO "THE STATE OF NEW YORK AND THE STATE OF CONNECTICUT'S COMBINED MOTION FOR LEAVE TO FILE A BRIEF REPLY TO NRC STAFF'S ANSWER TO APPLICANT'S PETITION FOR REVI EW OF LBP-11-17, n dated August 17, 2011, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, or by deposit in the U.S. Postal Service, as indicated by an asterisk, with copies by electronic mail, this 17th day of August, 2011:
Lawrence G. McDade, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop - T -3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCMMAIL.resource@nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T -3 F23 Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Wardwell@nrc.gov E-mail: Hearing.Docket@nrc.gov Dr. Kaye D. Lathrop Josh Kirstein, Esq.
Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgway, CO 81432 U. S, Nuclear Regulatory Commission E-mail: Kaye. Lathrop@nrc.gov Washington, D.C. 20555-0001 E-Mail: Josh. Kirstein@nrc.gov
-2 Atomic Safety and Licensing Board Panel Melissa-Jean Rotini, Esq.
U.S. Nuclear Regulatory Commission Assistant County Attorney Mail Stop: T-3 F23 Office of Robert F. Meehan, Esq.
Washington, DC 20555-0001 Westchester County Attorney (Via Internal Mail Only) 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-Mail: MJR1@westchestergov.com Kathryn M. Sutton, Esq.* John J. Sipos, Esq.*
Paul M. Bessette, Esq. Charlie Donaldson, Esq.
Jonathan Rund, Esq. Assistants Attorney General Morgan, Lewis & Bockius, LLP New York State Department of Law 1111 Pennsylvania Avenue, NW Environmental Protection Bureau Washington, D.C. 20004 The Capitol E-mail: ksutton@morganlewis.com Albany, NY 12224 E-mail: pbessette@morganlewis.com E-mail: John.Sipos@ag.ny.gov E-mail: jrund@morganlewis.com Janice A. Dean, Esq.*
Martin J. O'Neill, Esq.* Assistant Attorney General, Morgan, Lewis & Bockius, LLP Office of the Attorney General 1000 Louisiana Street, Suite 4000 of the State of New York Houston, TX 77002 120 Broadway, 25th Floor E-mail: martin.o.neill@morganlewis.com New York, NY 10271 E-mail: Janice.Dean@ag.ny.gov Elise N. loli, Esq.* Joan Leary Matthews, Esq.
- Goodwin Procter, LLP Senior Attorney for SpeCial Projects Exchange Place New York State Department of 53 State Street Environmental Conservation Boston, MA 02109 Office of the General Counsel E-mail: ezoli@goodwinprocter.com 625 Broadway, 14th Floor Albany, NY 12233-1500 E-mail: jlmatthe@gw.dec.state.ny.us William C. Dennis, Esq.* John Louis Parker, Esq.
- Assistant General Counsel Office of General Counsel, Region 3 Entergy Nuclear Operations, Inc. New York State Department of 440 Hamilton Avenue Environmental conservation White Plains, NY 10601 21 South Putt Corners Road E-mail: wdennis@entergy.com New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us
-3 Daniel E. O'Neill, Mayor* Manna Jo Greene*
James Seirmarco, M.S. Stephen Filler Village of Buchanan Hudson River Sloop Clearwater, Inc.
Municipal Building 724 Wolcott Avenue Buchanan, NY 10511-1298 Beacon, NY 12508 E-mail: vob@bestweb.net E-mail: mannajo@clearwater.org E-mail: smurray@villageofbuchanan.com E-mail: stephenfiller@gmail.com Robert Snook, Esq.
- Daniel Riesel, Esq.*
Office of the Attorney General Thomas F. Wood, Esq.
State of Connecticut Victoria Shiah, Esq.
55 Elm Street Sive, Paget & Riesel, P.C.
P.O. Box 120 460 Park Avenue Hartford, CT 06141-0120 New York, NY 10022 E-mail: robert.snook@ct.gov E-mail: driesel@sprlaw.com vshiah@sprlaw.com Phillip Musegaas, Esq.*
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 E-mail: philljp@riverkeeper.org dbrancato@riverkeeper.org Michael J. Delaney, Esq.*
Director, Energy Regulatory Affairs New York City Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 E-mail: mdelaney@dep.nyc.gov
~'~&fw14-Sherwin E. Turk Counsel for NRC Staff