ML12082A127
| ML12082A127 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/22/2012 |
| From: | Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 22074, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12082A127 (7) | |
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 Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) March 22, 2012 ORDER (Denying Riverkeepers and Clearwaters Motion for Reconsideration and/or Clarification)
On March 6, 2012, the Board issued an Order that, inter alia, granted in part and denied in part Entergy Nuclear Operations, Inc.s (Entergy) motion in limine challenging the admissibility of evidence proffered in support of Contention RK-EC-3/CW-EC-1.1 On March 16, 2012, Riverkeeper, Inc. (Riverkeeper) and Hudson River Sloop Clearwater, Inc. (Clearwater)
(collectively, Intervenors) filed a request for leave to file a motion for reconsideration and/or clarification pursuant to 10 C.F.R. § 2.323(e).2 Section 2.323(e) provides that Motions for reconsideration may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as 1
Licensing Board Order (Granting in Part and Denying in Part Applicants Motions in Limine)
(Mar. 6, 2012) at 31 (unpublished) [hereinafter March 6, 2012 Order].
2 Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.s Request Leave to File Motion for Reconsideration and/or Clarification of the ASLBs Ruling on Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Mar.
16, 2012); Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.s Motion for Reconsideration and/or Clarification of the ASLBs Ruling on Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Mar.
16, 2012) [hereinafter Motion for Reconsideration].
the existence of a clear and material error in a decision, which could not have been reasonably anticipated, that renders the decision invalid.3 When the Commission revised its hearing procedures in 2004, it heightened this standard, stating:
This standard, which is a higher standard than the existing case law, is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier. In the Commissions view, reconsideration should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.4 The Commission has repeatedly stated that the reconsideration standard is to be applied strictly, and reconsideration should only be allowed when there is decisive new information or a fundamental . . . misunderstanding of a key point.5 Viewing the Motion for Reconsideration in light of these requirements, the Board must deny the Intervenors request. The Intervenors do not point to any decisive new information or to any fundamental misunderstanding of law or fact on the part of the Board. The Motion for Reconsideration merely reargues rationales considered and rejected by the Board in the March 6, 2012 Order.6 Accordingly, it is deficient and must be denied.
In lieu of reconsideration, the Intervenors request clarification of what they characterize as inconsistencies in the March 6, 2012 Order.7 Specifically, the Intervenors argue that spent 3
10 C.F.R. § 2.323(e).
4 Virginia Elec. & Power Co. d/b/a Dominion Virginia Power & Old Dominion Elec. Coop. (North Anna Power Station, Unit 3), LBP-08-23, 68 NRC 679, 681 (2008) (citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004)).
5 See Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400-01 (2006).
6 Compare Motion for Reconsideration at 2-8 with Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. Opposition to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Feb. 17, 2012) at 12-14; see also March 6, 2012 Order at 27-29.
7 Motion for Reconsideration at 9.
fuel pool (SFP) leaks cannot be viewed separately from other potential leak sources.
Intervenors assert that the Board acknowledged this reality when it stated that if releases from SFP leaks encounter groundwater, then the radionuclides would co-mingle and coalesce with any impacts that might be present from other sources and that the impacts to groundwater from SFP leaks and the subsequent discharges into the Hudson River could only be assessed on a site-wide basis.8 We do not agree with the Intervenors argument. Their contention, as admitted, addressed SFP leaks and the impact of radionuclides in the groundwater and the surrounding ecosystem. Accordingly, the testimony supporting this contention was similarly limited by the Board.
While the Board views its March 6, 2012 Order as clear on this point, we reiterate our holding. Contention RK-EC-3/CW-EC-1 addresses SFP leaksboth as to the leakage that might occur from the SFPs and, after such leakage has occurred, its impacts on groundwater and the Hudson River ecosystem. To the extent that such leakage co-mingles and coalesces with other leakage sources in contamination plumes and, likely, cannot be separately attributed to the SFPs, we will assess its impacts on groundwater and the Hudson River ecosystem on a site-wide basis.
Likewise, the Board Order was clear regarding the testimony that was to be struck.9 All specific references to direct leakage from non-SFP systems, structures, and components have been deleted from Riverkeeper and Clearwaters pre-filed testimony. All testimony and exhibits relating to the leaks from SFPs, or the impacts of radionuclide concentrations in the groundwater and their impacts on the Hudson River ecosystem, remain.
8 March 6, 2012 Order at 29.
9 See id., attach.
Because the Intervenors have failed to meet their burden under Section 2.323(e) to justify reconsideration and the Boards Order addressing Entergys motion in limine needs no clarification, the Intervenors Motion is denied.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE
/RA/
Dr. Kaye D. Lathrop ADMINISTRATIVE JUDGE
/RA/
Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland March 22, 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR
) and 50-286-LR (Indian Point Nuclear Generating Station, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Riverkeepers and Clearwaters Motion for Reconsideration and/or Clarification) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop O-7H4M Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Sherwin E. Turk, Esq.
Atomic Safety and Licensing Board Panel Edward L. Williamson, Esq.
Mail Stop T-3F23 Beth N. Mizuno, Esq.
Washington, DC 20555-0001 David E. Roth, Esq.
Brian Harris, Esq.
Lawrence G. McDade, Chair Mary B. Spencer, Esq.
Administrative Judge Anita Ghosh, Esq.
E-mail: lawrence.mcdade@nrc.gov Karl Farrar, Esq.
Brian Newell, Paralegal Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Office of the General Counsel E-mail: richard.wardwell@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Kaye D. Lathrop E-mail:
Administrative Judge sherwin.turk@nrc.gov 190 Cedar Lane E. edward.williamson@nrc.gov Ridgway, CO 81432 beth.mizuno@nrc.gov E-mail: kaye.lathrop@nrc.gov brian.harris.@nrc.gov david.roth@nrc.gov Joshua A. Kirstein, Law Clerk mary.spencer@nrc.gov E-mail: josh.kirstein@nrc.gov anita.ghosh@nrc.gov Anne Siarnacki, Law Clerk karl.farrar@nrc.gov E-mail: anne.siarnacki@nrc.gov brian.newell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Riverkeepers and Clearwaters Motion for Reconsideration and/or Clarification)
William C. Dennis, Esq. Thomas F. Wood, Esq.
Assistant General Counsel Daniel Riesel, Esq.
Entergy Nuclear Operations, Inc. Victoria Shiah, Esq.
440 Hamilton Avenue Adam Stolorow, Esq.
White Plains, NY 10601 Jwala Gandhi, Paralegal Email: wdennis@entergy.com Counsel for Town of Cortlandt Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com vshiah@sprlaw.com astolorow@sprlaw.com jgandhi@sprlaw.com Elise N. Zoli, Esq. Phillip Musegaas, Esq.
Goodwin Proctor, LLP Deborah Brancato, Esq.
Exchange Place Ramona Cearley, Secretary 53 State Street Riverkeeper, Inc.
Boston, MA 02109 20 Secor Road E-mail: ezoli@goodwinprocter.com Ossining, NY 10562 E-mail: phillip@riverkeeper.org dbrancato@riverkeeper.org rcearley@riverkeeper.org Michael J. Delaney, Esq.
Kathryn M. Sutton, Esq. Director, Energy Regulatory Affairs Paul M. Bessette, Esq. NYC Department of Environmental Protection Martin J. ONeill, Esq. 59-17 Junction Boulevard Raphael Kuyler, Esq. Flushing, NY 11373 Jonathan M. Rund, Esq.
Lena Michelle Long, Esq.
Laura Swett, Esq.
Lance Escher, Esq.
Mary Freeze, Legal Secretary Antoinette Walker, Legal Secretary Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksutton@morganlewis.com pbessette@morganlewis.com martin.oneill@morganlewis.com rkuyler@morganlewis.com jrund@morganlewis.com llong@morganlewis.com lswett@morganlewis.com lescher@morganlewis.com mfreeze@morganlewis.com awalker@morganlewis.com 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Riverkeepers and Clearwaters Motion for Reconsideration and/or Clarification)
Joan Leary Matthews, Esq. Robert D. Snook, Esq.
Senior Attorney for Special Projects Assistant Attorney General New York State Department Office of the Attorney General of Environmental Conservation State of Connecticut 625 Broadway, 14th Floor 55 Elm Street Albany, New York 12233-5500 P.O. Box 120 E-mail: jmatthe@gw.dec.state.ny.us Hartford, CT 06141-0120 E-mail: robert.snook@po.state.ct.us John Louis Parker, Esq. Sean Murray, Mayor Office of General Counsel, Region 3 Kevin Hay, Village Administrator New York State Department Village of Buchanan of Environmental Conservation Municipal Building 21 South Putt Corners Road 236 Tate Avenue New Paltz, NY 12561-1620 Buchanan, NY 10511-1298 E-mail: jlparker@gw.dec.state.ny.us E-mail: SMurray@villageofbuchanan.com Administrator@villageofbuchanan.com John J. Sipos, Esq. Janice A. Dean, Esq.
Charles Donaldson, Esq. Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York 120 Broadway, 26th Floor The Capitol New York, New York 10271 State Street E-mail: Janice.Dean@ag.ny.gov Albany, New York 12224 E-mail: John.Sipos@ag.ny.gov charlie.donaldson@ag.ny.gov
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 22nd day of March 2012 3