ML13100A413
| ML13100A413 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/10/2013 |
| From: | Brancato D Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24372, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13100A413 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket Nos.
) 50-247-LR Entergy Nuclear Operations, Inc. ) and 50-286-LR (Indian Point Nuclear Generating )
Units 2 and 3) ) April 10, 2013
___________________________________________ )
RIVERKEEPER OPPOSITION TO ENTERGYS MOTIONS FOR LEAVE TO FILE REPLIES IN SUPPORT OF ENTERGYS MOTION FOR DECLARATORY ORDER In accordance with 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Boards (ASLB) July 1, 2010 Scheduling Order, 1 Riverkeeper, Inc. (Riverkeeper), hereby submits this answer in opposition to Entergy Nuclear Operations, Inc.s (Entergy) Motion for Leave to File Limited Replies in Support of Entergys Motion for Declaratory Order, dated April 9, 2013 (hereinafter Entergys Motion to File Replies). For the reasons discussed below, Riverkeeper respectfully submits that the ASLB should deny Entergys request.
Entergys Motion to File Replies requests an opportunity to respond to Riverkeepers Arguments Regarding Indian Points Increased Power Output and Long-Term Onsite Nuclear Waste Storage contained in Riverkeepers answer in opposition to Entergys Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. for Declaratory Order that it has Already Obtained the Required New York State Coastal Management Program Consistency Review of Indian Point Units 2 and 3 for Renewal of the Operating Licenses, (hereinafter Entergys Motion for Declaratory Order) dated April 5, 2013 (hereinafter Riverkeepers Answer.). 2 1
In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), at ¶ G.5.
2 Entergys Motion to File Replies at 4-5.
1
NRC regulations indicate that, in relation to motions in NRC proceedings, [t]he moving party has no right to reply and that [p]ermission to file a reply pleading may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply. 3 The ASLB has acknowledged and memorialized this in the instant Indian Point license renewal proceeding, stating that no party may file a reply without prior leave from the Board, and explaining that
[a] motion to file a reply must demonstrate good cause for permitting the reply to be filed. 4 Entergy has demonstrably failed to show the compelling circumstances necessary to warrant a reply filing. Riverkeepers discussion of increased power output and long-term onsite nuclear waste storage were included as a direct response to Entergys lengthy and repeated argument about whether substantial modifications have occurred at Indian Point since alleged prior consistency reviews took place and whether substantially different coastal effects exist. 5 First, Riverkeepers discussion of increased power output at Indian Point was an eminently logical response to Entergys position that at Indian Point operations have not changed for the last forty years. 6 Entergy should have, unquestionably, anticipated the arguments related to increased power output at Indian Point in response to Entergys stated position. Entergy was sure to mention other modifications that have occurred at Indian Point, 7 and should not now be 3
10 C.F.R. 2.323(c) (emphasis added); see also In re Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), Docket No. 50-293-LR, CLI-12-06, 2012 NRC LEXIS 6, *43 (2012) (denying motion to file a reply for lack of compelling circumstances where arguments in answer pleadings were logical responses to the initial motion).
4 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), at ¶ G.3.
5 Entergys Motion for Declaratory Order at 1-2, 4, 9, 13, 21-24.
6 Id. at 22 (emphasis added); In re Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), Docket No. 50-293-LR, CLI-12-06, 2012 NRC LEXIS 6, *43 (2012).
7 Entergys Motion for Declaratory Order at 23-24.
2
afforded an opportunity to argue about additional changes which could have been discussed already.
Second, Riverkeepers discussion of long-term onsite nuclear waste storage at Indian Point should also have reasonably been anticipated by Entergy. Entergy should be well aware of the significant environmental implications of the recent U.S. circuit court decision that vacated the NRCs waste confidence decision, and which is dated prior to Entergys Motion for Declaratory Order. 8 The potential indefinite storage of spent nuclear fuel at Indian Point, recognized by the circuit court decision, could impact coastal resources of New York State in numerous ways that Entergy should be aware of. 9 The environmental consequences of long-term onsite nuclear waste storage are clearly a logical response to Entergys position that there are allegedly no substantially different coastal effects that require consistency review.
Notably, the New York State Department of State (NYSDOS) has taken the position that long-term onsite nuclear waste storage at Indian Point in light of the recent vacature of NRCs waste confidence decision constituted a material change for which federal consistency review is warranted and required. 10 NYSDOS has explained that Significant changes in operation have in fact taken place [at Indian Point] since the nuclear generating stations were licensed in the 1970s. . . . [A]s a result of their operations, IP2 and IP3 have associated spent nuclear fuel pools that contain 40 years of nuclear waste. . . . The recent decision in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) . . . reflects a change in the regulatory landscape in the review of nuclear generating station operations when compared to prior operations and reviews. . . . The court vacated the Waste Confidence decision and the Temporary Storage Rule. . .
. This court decision and NRCs subsequent action directly affect 8
See Riverkeepers Answer at 23-25.
9 See id.
10 See Attachment 4 to Riverkeepers Answer (NYSDOS, In the Matter of the Petition of Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, Petitioner, For a Declaratory Ruling, Response to Request for Declaratory Ruling (Jan. 9, 2013), at 12-15.
3
Entergys renewal application and practice of long term on-site storage of spent nuclear fuel at Indian Point. The long term (or even permanent) on-site storage of spent fuel at Indian Point, with attendant environmental and public health risks, are not reflected in Entergys 20 year license extension application. 11 The implications of long-term onsite nuclear waste storage in light of the recent circuit court decision are evident. Entergy should have plainly anticipated arguments related to the substantial impacts posed by long-term onsite nuclear waste storage, and should not now be given the chance to provide additional arguments on the matter.
Entergy has failed to show any compelling circumstances or good cause for the ASLB to permit the requested reply. In the absence of such a showing, Riverkeeper respectfully submits that the ASLB should deny Entergys Motion to File Replies, as well as ignore Entergys substantive arguments contained in the motion that respond to Riverkeepers Answer, 12 as such statements constitute improper reply.
In addition, in the event the ASLB does grant Entergys Motion to File Replies, Entergy has failed to provide any basis for its request to file any such replies on April 19, 2013. The ASLB has explained that in relation to motions for leave to file reply pleadings, the Board will presume that for a reply to be timely it would have to be filed within seven (7) days of the date of service of the answer it is intended to address. 13 Thus, any replies to Riverkeepers Answer, dated April 5, 2013, should be filed by April 12, 2013. Entergy has failed to provide any justification for an extension of the ASLBs contemplated 7-day reply filing timeframe.
11 Id.
12 Entergys Motion to File Replies at 5 (Entergys initial positionhaving had only two business days to consider Riverkeepers argumentsis that the increased power production and spent-fuel storage issues raised by Riverkeeper will not cause substantially different coastal effects within the meaning of the applicable regulations.).
13 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), at footnote 22.
4
Riverkeeper respectfully submits that the additional time Entergy is seeking to file reply pleadings is not necessary because the matters to which Entergy seeks to respond (which, for the reasons stated above, do not warrant a reply filing in the first instance), cannot reasonably be characterized as new, or matters which Entergy could not have already anticipated coming up.
Based on the foregoing, the ASLB should deny Entergys Motion for Leave to File Replies in Support of Entergys Motion for Declaratory Order.
Respectfully submitted, Signed (electronically) by Deborah Brancato, Esq.
Phillip Musegaas, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 (914) 478-4501 dbrancato@riverkeeper.org phillip@riverkeeper.org Dated: April 10, 2013 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket Nos.
) 50-247-LR Entergy Nuclear Operations, Inc. ) and 50-286-LR (Indian Point Nuclear Generating )
Units 2 and 3) ) April 10, 2013
___________________________________________ )
Certification Pursuant to 10 C.F.R. § 2.323(b)
In accordance with 10 C.F.R. § 2.323(b) and the ¶ G.7 of the ASLBs July 1, 2010 Scheduling Order in the above-reference proceeding, I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, 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 Deborah Brancato Deborah Brancato, Esq.
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket Nos.
) 50-247-LR Entergy Nuclear Operations, Inc. ) and 50-286-LR (Indian Point Nuclear Generating )
Units 2 and 3) ) April 10, 2013
___________________________________________ )
CERTIFICATE OF SERVICE I certify that on April 10, 2013, copies of Riverkeepers Opposition to Entergys Motions for Leave to File Reply in Support of Entergys Motion for Declaratory Order, were served on the following by NRCs Electronic Information Exchange:
Lawrence G. McDade, Chair Shelbie Lewman Richard E. Wardwell, Administrative Judge Law Clerk Michael F. Kennedy, Administrative Judge Anne Siarnacki Atomic Safety and Licensing Board Panel Law Clerk U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Lawrence.McDade@nrc.gov Washington, D.C. 20555 Richard.Wardwell@nrc.gov shelbie.lewman@nrc.gov Michael.Kennedy@nrc.gov anne.siarnacki@nrc.gov John J. Sipos, Esq. Bobby R. Burchfield, Esq.
Assistant Attorney General Matthew M. Leland, Esq.
Office of the New York Attorney General Clint A. Carpenter, Esq.
for the State of New York McDermott Will & Emery LLC The Capitol 600 13th Street, NW Albany, NY 12224 Washington, DC 20005-3096 E-mail: John.Sipos@oag.state.ny.us bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com Richard A. Meserve, Esq. Martin J. ONeill, Esq.
Covington & Burling LLP Morgan, Lewis & Bockius, LLP 1201 Pennsylvania Avenue, NW 1000 Louisiana Street, Suite 4000 Washington, DC 20004-2401 Houston, TX 77002 Phone: (202) 662-6000 E-mail: martin.oneill@morganlewis.com Fax: (202) 662-6291 E-mail: rmeserve@cov.com 1
Janice A. Dean, Esq. William C. Dennis, Esq.
Assistant Attorney General Entergy Nuclear Operations, Inc.
Office of the Attorney General 440 Hamilton Avenue 120 Broadway, 26th Floor White Plains, NY 10601 New York, NY 10271 E-mail: wdennis@entergy.com E-mail: Janice.dean@oag.state.ny.us Office of the Secretary Office of Commission Appellate Adjudication Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 E-mail: OCAAMAIL@nrc.gov E-mail: HEARINGDOCKET@nrc.gov Manna Jo Greene Thomas F. Wood, Esq.
Karla Raimundi Daniel Riesel, Esq.
Stephen C. Filler, Board Member Victoria S. Treanor Hudson River Sloop Clearwater, Inc. Sive, Paget and Riesel, P.C.
724 Wolcott Ave 460 Park Avenue Beacon, New York 12508 New York, NY 10022 E-mail: Mannajo@clearwater.org E-mail: driesel@sprlaw.com karla@clearwater.org vtreanor@sprlaw.com stephenfiller@gmail.com Melissa-Jean Rotini, of counsel Sean Murray, Mayor Assistant County Attorney Village of Buchanan Office of Robert F. Meehan, Westchester Municipal Building County Attorney 236 Tate Avenue 148 Martine Avenue, 6th Floor Buchanan, NY 10511-1298 White Plains, NY 10601 E-mail: vob@bestweb.net, E-mail: MJR1@westchestergov.com SMurray@villageofbuchanan.com, Administrator@villageofbuchanan.com Elise N. Zoli, Esq. Richard Webster, Esq.
Goodwin Procter, LLP Public Justice, P.C.
53 State Street Suite 200 Boston, MA 02109 1825 K Street, NW E-mail: ezoli@goodwinprocter.com Washington, DC 20006 rwebster@publicjustice.net Robert D. Snook, Esq. Michael J. Delaney Assistant Attorney General Department of Environmental Protection 55 Elm Street, P.O. Box 120 59-17 Junction Boulevard Hartford, CT 06141-0120 Flushing NY 11373 E-mail: Robert.Snook@po.state.ct.us E-mail: mdelaney@dep.nyc.gov 2
Sherwin E. Turk Kathryn M. Sutton, Esq.
Beth N. Mizuno Paul M. Bessette, Esq.
Brian G. Harris Jonathan M. Rund, Esq.
David E. Roth Raphael Kuyler, Esq.
Joseph A. Lindell Morgan, Lewis & Bockius, LLP Anita Ghosh, Esq. 1111 Pennsylvania Ave. N.W.
Office of General Counsel Washington, D.C. 20004 Mail Stop: 0-15D21 E-mail:
U.S. Nuclear Regulatory Commission pbessette@morganlewis.com Washington, D.C. 20555-0001 ksutton@morganlewis.com E-mail: jrund@morganlewis.com Sherwin.Turk@nrc.gov rkuyler@morganlewis.com Beth.Mizuno@nrc.gov brian.harris@nrc.gov David.Roth@nrc.gov Joseph.Lindell@nrc.gov anita.ghosh@nrc.gov Edward F. McTiernan Deputy Counsel Office of General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th floor Albany, NY 12233-150024 (518) 402-9185 phone (518) 402-9018 fax efmctier@gw.dec.state.ny.us Signed (electronically) by Deborah Brancato Deborah Brancato April 10, 2013 3