ML11311A301
| ML11311A301 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/07/2011 |
| From: | Harris B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21382, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML11311A301 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Operations, Inc. ) Docket No. 50-247-LR
) 50-286-LR
)
(Indian Point Nuclear Generating Units 2 and 3) )
)
NRC STAFFS ANSWER TO MOTION FOR LEAVE TO SUPPLEMENT BASIS OF CONTENTION REGARDING NEPA REQUIREMENT TO ADDRESS SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE FUKUSHIMA TASK FORCE REPORT INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) answers Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.
Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental implications of the Fukushima Task Force Report (Motion to Supplement) filed on October 28, 2011, by Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. (collectively Intervenors). 1 The Intervenors assert that the Commissions recent Staff Requirements Memorandum (SRM) regarding implementation of specific Near-Term Task Force recommendation establishes the environmental significance of the Near Term Task Force Report 2 and establishes a new basis for admitting their contention that is currently pending before the Atomic Safety and Licensing Board (Board). 3 Intervenors proffered new 1
Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental implications of the Fukushima Task Force Report (October 28, 2011).
2 st Recommendations for Enhancing Reactor Safety in the 21 Century: The Near-Term Task Force review of Insights from the Fukushima Dai-ichi Accident (TFR).
3 The TFR is available at ADAMS Accession No. ML111861807.
contention asserts that the SRMs environmental significance requires that the Applicant discuss the TFRs findings in its Environmental Report. 4 As set forth below, the Board should deny the Motion to Supplement because it is procedurally defective and lacks basis. First, the Motion to Supplement does not discuss the late, new, and amended contention under 10 C.F.R. § 2.309(c), (f)(1), and (f)(2) as required by the Commission. Failure to discuss these requirements is sufficient grounds to deny the Motion to Supplement.
Second, even if the Board were to overlook these procedural defects, the Motion to Supplement fails to provide sufficient information that would make the underlying contention admissible. The Motion to Supplement bases its conclusory assertions on a recent Commission SRM (Commissions Memorandum), SRM-SECY-11-0124, in which the Commission responded to a Memorandum from the Executive Director for Operations dated September 9, 2011 (SECY-11-0124). The Commissions Memorandum authorizes the Staff to initiate activities to implement certain safety recommendations from the TFR. 5 The actual specific licensing or rulemaking activities that may in themselves trigger NEPA requirements, however, have not occurred and are not expected to be implemented if necessary, for several years.
These activities and their environmental impacts, if any, are speculative because additional information will need to developed, input from the public and other interested parties will need to be gathered, and additional Commission involvement or direction may be necessary prior to any implementation. Intervenors argue that the Commissions Memorandum establishes the environmental significance of the TFRs recommendations. 6 But the Commission has already 4
Contention Regarding NEPA Requirements to Address Safety and Environmental Implications of the Fukushima Task Force Report (Aug. 18, 2011) (Contention) at 5.
5 Commissions Memorandum at 1.
6 Id.
determined that the TFRs recommendations are not new and significant, such that additional environmental analysis is required prior to any determination regarding Indian Points license renewal application. Moreover, to the extent that any environmental analysis may be required based on the TFRs recommendations, such analysis would only be appropriate when the Commission takes specific regulatory actions based upon the TFRs recommendations.
Additionally, the Motion to Supplement does not establish a material dispute with the applicants license renewal application. The Commission has held that contentions based on the currently available information regarding the Fukushima incident are premature, and the Motion to Supplement adds no additional information that would alter this conclusion. Finally, the Commissions Memorandum reemphasizes the Commissions intent to implement the Fukushima Task Force recommendations for all plants regardless of their licensing or hearing status. Thus, the Board should deny the Motion to Supplement.
BACKGROUND The history of this proceeding has been discussed elsewhere. In brief, on August 11, 2001, Intervenors filed a contention based upon the recommendations in the TFR.
The Intervenors Contention stated:
The FSEIS for Indian Point license renewal fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRC's Fukushima Task Force Report. As required by NEPA and the NRC regulations, these implications must be addressed in either a revised FSEIS, or a Supplement to the FSEIS. 7 The Board has not yet ruled on the contentions admissibility. On October 28, 2011, Intervenors filed the instant motion seeking to supplement the basis for that contention. 8 7
Contention at 4. The same or similar contentions were filed in other pending license renewal, combined operating license, operating license, and standardized design certification proceedings.
8 Motion to Supplement.
ARGUMENT A. The Motion to Supplement is Procedurally Defective The Motion to Supplement is procedurally defective because it does not discuss how the supplemental basis satisfies the requirements for late, new, and amended contentions under 10 C.F.R. § 2.309(c), (f)(1), and (f)(2). The Commission has stated: New bases for a contention cannot be introduced in a reply brief, or at any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c),
(f)(2). 9 Amended contentions must also satisfy the usual contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1). 10 To meet the requirements of § 2.309(f)(1), a petitioner must produce a detailed, fact-based showing that a genuine and material dispute of law or fact exists. 11 The Motion to Supplement falls far short of the Commissions standards. The Motion to Supplement contains no reference to 10 C.F.R. § 2.309, nor does it make any demonstration as to how it meets the Commissions requirements. At best, the Motion to Supplement contains only general conclusory references to the Commissions Memorandum without any specific explanation or argument regarding Indian Points license renewal application. Thus, the Motion to Supplement should be denied.
B. The Motion to Supplement Does Not Demonstrate that the Underlying Contention is Admissible Even if the Board overlooks these procedural inadequacies, the Motion to Supplement still fails to provide sufficient information to render the underlying contention admissible. The Motion to Supplement asserts: By ordering the Staff to adopt and implement numerous Task 9
Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
10 Shaw Areva Mox Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 65 (2009).
11 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &
2), CLI-02-14, 55 NRC 278, 289 (2002).
Force recommendations, including redefining what level of protection of public health and safety should be regarded as adequate, the Commission makes clear that it believes the lessons learned from the Fukushima accident have safety and environmental significance. 12 However, the Commissions Memorandum makes no reference to the term environmental. The Intervenors did not point to any specific language in the Commissions Memorandum to support their bare assertion of significance.
As the Staff previously stated in its response to Intervenors motion to admit their new contention, the TFRs recommendations relate to the NRCs safety oversight of nuclear reactors under the Atomic Energy Act, not the agencys environmental review of licensing actions under the National Environmental Policy Act (NEPA). 13 Likewise, Commissions Memorandum responds to the safety recommendations. It does not discuss environmental matters generally or the specific environmental significance of any recommendation in particular. The Commissions SRM directed the Staff to undertake additional actions such as engaging with stakeholders, developing technical basis documents, and publishing advanced notices of proposed rulemaking, as it works on implementing certain Task Force recommendations. The SRM, in sum, reaffirms the Commissions prior direction to the Staff to separately address Task Force Recommendation 1. 14 The Commissions directions focus solely on safety issues, not environmental issues. Thus, the Commissions Memorandum leaves undisturbed the 12 Motion to Supplement at 1-2.
13 NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Contention Response), at 13-15 (Sep. 6, 2011). In addition the Staff noted that while the contentions argument focused on environmental concerns, a number of statements in the contention attacked the Commissions safety regulations on the grounds that they did not adequately consider severe accidents. Id. at 8-10. The Staff reminded the Board that such claims are plainly outside the ambit of a license renewal proceeding. Id.
14 The TFRs Recommendation 1 requires the Staff to evaluate what level of protection for public health and safety should be regarded as adequate. The Commissions Memorandum (at 2) directs the Staff to submit a separate Commission notation vote paper providing option to disposition Task Force recommendation 1 within 18 months of issuance of the SRM.
Commissions previous evaluation regarding the environmental significance of the TFRs recommendations.
The Commission previously responded to a request from several intervenor groups (including the Riverkeeper and Clearwater) to conduct a separate generic NEPA analysis regarding whether the Fukushima events constitute new and significant information under NEPA that must be analyzed as part of the environmental review for new reactor and license renewal decisions. 15 The Commission surveyed the current information regarding the Fukushima accident, including the Task Force Report, and concluded that the available information did not constitute the new and significant information necessary to trigger a generic NEPA review. 16 Nothing in the Intervenors Motion or supplement alters this result.
Accordingly, even if the Board considered the contention in light of Intervenors latest conclusory assertions, the contention would still be inadmissible.
The Motion to Supplement also fails to establish a genuine dispute with the license renewal application. The Board in the Seabrook license renewal proceeding dismissed the exact contention asserted by intervenors here because it failed to establish a genuine dispute with the Seabrook applicants environmental report 17 The Motion to Supplement does not cure this deficiency. Neither the Motion to Supplement nor the Commissions Memorandum contains any information specific to Indian Point. Intervenors have not attempted to link the TFRs recommendations to any site-specific feature of Indian Point. Therefore, the Motion to Supplement does not demonstrate a genuine dispute.
15 Union Elec. Co. d/b/a American Mo. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __ (slip op.
at 30) (Sep. 9, 2011).
16 Id. at 6.
17 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, __ NRC __ (slip op.
at 7) (Oct. 19, 2011).
Additionally, the issues raised by the Intervenors contention have not yet ripened to the point where they can appropriately be litigated in this adjudicatory proceeding. In CLI-11-05, the Commission found that because the agency did not know the full implications of the Japan events for U.S. facilities any generic NEPA duty - if one were appropriate at all - does not accrue now. 18 On its face, the Commissions Memorandum does not suggest that in the short period of time since CLI-11-05, the NRC has gained sufficient knowledge to trigger its NEPA obligations. Rather, as discussed above, the SRM is silent with respect to NEPA. In light of that silence, the obligation falls to Intervenors to demonstrate how SRM-SECY-11-0124 constitutes sufficient information to warrant further NEPA consideration. But, the Motion to Supplement abdicates this obligation, and simply alleges that in SRM-SECY-11-0124, the Commission makes clear that it believes the lessons learned from the Fukushima accident have safety and environmental significance. 19 But, such bare allegations cannot constitute the detailed, fact-based showing needed to trigger an NRC adjudicatory hearing on this issue. 20 Consequently, the Motion to Supplement does not demonstrate that sufficient information exists to litigate the underlying contention at this time.
Finally, by their terms the TFRs recommendations are intended to apply to all existing plants, regardless of their license renewal status. 21 The Commissions Memorandum reemphasizes that intent and illustrates the Commissions intended path to implement that plan.
Additionally, in accordance with long-standing NRC policy, licensing boards are not to entertain 18 Callaway, CLI-11-05, 74 NRC at __ (slip op. at 30).
19 Motion to Supplement at 2.
20 McGuire/Catawba, CLI-02-14, 55 NRC at 289.
21 Contention Response at 7-8.
contentions on topics that are or are likely to become the subject of general rulemaking. 22 Specific licensing or rulemaking activities that may trigger the NRCs environmental obligations have not yet occurred, and are expected to be implemented and completed within five years of their occurrence. Any need to determine the environmental significance of those actions can only be considered at that time, once specific actions have been identified and taken. Thus, the Board should deny the Intervenors current motion.
22 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-10-19, 72 NRC__ (Jul. 8, 2010) (slip op. at 2-3).
CONCLUSION For the reasons set forth above, the Motion to Supplement is procedurally defective because it does not address the Commissions standards for augmenting a contentions factual basis. Further, the motion does not demonstrate sufficient grounds for the relief sought. The motions reliance on the Commissions Memorandum is misplaced because the Memorandum does not support the underlying contention, does not demonstrate a genuine dispute unique to the Indian Point license renewal proceeding, and does not show that the concerns the motion raises are ripe for adjudication. For all of these reasons, the Board should deny the motion.
Respectfully submitted, Signed (electronically) by Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of signature: November 7, 2011
ANSWER CERTIFICATION I certify that I have made a sincere effort to make myself available to listen and respond to the moving parties, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.
/Signed (electronically) by/
David E. Roth Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, MD this 7th day of November 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 the foregoing NRC STAFFS ANSWER TO MOTION FOR LEAVE TO SUPPLEMENT BASIS OF CONTENTION REGARDING NEPA REQUIREMENT TO ADDRESS SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE FUKUSHIMA TASK FORCE REPORT in the above-captioned proceeding has been filed and served by Electronic Information Exchange (EIE), with copies to be served by the EIE system on the following persons, this 7th day of November, 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: O-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAIL@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: O-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: Hearingdocket@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
John J. Sipos, Esq.* Melissa-Jean Rotini, Esq.
Charlie Donaldson, Esq. Assistant County Attorney Assistants Attorney General Office of Robert F. Meehan, Esq.
New York State Department of Law Westchester County Attorney Environmental Protection Bureau 148 Martine Avenue, 6th Floor The Capitol White Plains, NY 10601 Albany, NY 12224 E-Mail: MJR1@westchestergov.com E-mail: John.Sipos@ag.ny.gov Charlie.Donaldson@ag.ny.gov Kathryn M. Sutton, Esq.* Phillip Musegaas, Esq.*
Paul M. Bessette, Esq. Deborah Brancato, Esq.
Jonathan Rund, Esq. Riverkeeper, Inc.
Morgan, Lewis & Bockius, LLP 20 Secor Road 1111 Pennsylvania Avenue, NW Ossining, NY 10562 Washington, D.C. 20004 E-mail: phillip@riverkeeper.org E-mail: ksutton@morganlewis.com E-mail: dbrancato@riverkeeper.org E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com Janice A. Dean, Esq.*
Martin J. ONeill, 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. Zoli, 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
Sean Murray, Mayor Manna Jo Greene*
Kevin Hay, Village Administrator Stephen Filler Village of Buchanan Karla Raimundi, Esq.
Municipal Building Hudson River Sloop Clearwater, Inc.
Buchanan, NY 10511-1298 724 Wolcott Avenue E-mail: vob@bestweb.net Beacon, NY 12508 E-mail: smurray@villageofbuchanan.com E-mail: mannajo@clearwater.org Administrator@villageofbuchanan.com E-mail: stephenfiller@gmail.com E-mail: karla@clearwater.org 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 E-mail: vshiah@sprlaw.com 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
/Signed (electronically) by/
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1392 E-mail: brian.harris@nrc.gov