ML13143A354
| ML13143A354 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/23/2013 |
| From: | Harris B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24568, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13143A354 (6) | |
Text
May 23, 2013 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/ 50-286-LR
)
(Indian Point Nuclear Generating
)
Units 2 and 3)
)
NRC STAFFS OPPOSITION TO STATE OF NEW YORK MOTION SEEKING LEAVE TO FILE AN ADDITIONAL EXHIBIT AND SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONTENTION NYS-16B Pursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission (Staff) files its opposition to the motion filed by the State of New York (New York)1 for leave to file an additional document as an exhibit in this matter and to supplement the proposed findings of fact and conclusions of law in support of New Yorks Contention NYS-16B (SAMA Analysis Population Estimates). As set forth more fully below, the Staff opposes the motion on the grounds that the proposed exhibit and supplement to New Yorks proposed findings are immaterial to the issue before the Atomic Safety and Licensing Board (Board), and the reliability of Entergys latest submission has not been established.2 The regulation in 10 C.F.R. § 2.337 provides that [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Thus, the powers of a presiding 1 State Of New York Motion Seeking Leave To File An Additional Exhibit And Supplemental Proposed Findings Of Fact And Conclusions Of Law On Contention NYS-16B (New Yorks Motion),
dated May 17, 2013.
2 If the Board grants New Yorks Motion, the Staff requests the opportunity to respond to New Yorks supplemental proposed findings and conclusions of law. Denying the Staff and other parties an opportunity to respond to New Yorks proposed supplemental filing, if granted, would be inequitable.
2 officer include the power to preclude the introduction of evidence that is irrelevant, immaterial, unreliable, duplicative or cumulative. 10 C.F.R. § 2.319(d) and (e).
Here, New York proposes to introduce a table taken from a document recently submitted by Entergy Nuclear Operations, Inc. (Entergy): Proposed Exhibit NYS000476, Excerpt of to NL-13-075: License Renewal ApplicationCompleted Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost Beneficial.3 New York asserts that this proposed exhibit is relevant and material to the issues addressed in Contention NYS-16B. New York bases its materiality arguments on Entergys newly submitted cost estimate, which identifies six Severe Accident Mitigation Alternatives (SAMA) as no longer being cost-beneficial. In particular, New Yorks arguments centers on two of these six SAMAs for Indian Point, Unit 2, IP SAMA 021 and IP SAMA 053 (collectively SAMA 021 and 053).
The proposed exhibit and New Yorks proposed supplement are immaterial to the issue before the Board. Entergys submittal updated its projected cost estimates for each of the previously identified and potentially cost-beneficial SAMAs, resulting in Entergys conclusion that six SAMAs are no longer cost-beneficial.4 The Staffs findings, as reflected in the Staffs Final Supplemental Environmental Impact Statement (FSEIS), are the subject of this contention and are not affected by the new information. The Staffs findings in the FSEIS concluded that these six SAMAs were potentially cost-beneficial. New Yorks proposed exhibit and supplemental findings would make the same point - and are therefore immaterial to the resolution of this contention. Thus, even if the Board admits New Yorks newly proposed exhibit and then accepts New Yorks arguments regarding the population estimate, the impact of all 3 New Yorks Motion at 1.
4 The Staff has not completed a review of Entergys submittal.
3 those changes would simply reflect the Staffs current findings in the FSEIS regarding which SAMAs are potentially cost-beneficial.5 For example, New York argues that Entergys recent submission identifies six SAMAs for Indian Point as no longer being cost-beneficial because of increased cost estimates.6 New York argues that SAMA 021 and 053 have such small margins before becoming potentially cost-beneficial that Dr. Sheppards assertions regarding the population estimate would render them cost-beneficial even under Entergys sensitivity analysis.7 New York ignores the Staffs findings in the FSEIS that found SAMA 021 and 053 to be potentially cost-beneficial. Thus, New Yorks request to essentially alter the Staffs FSEIS with the Applicants post-hearing submittal is meritless. Further, it is clear from New Yorks proposed findings that it is not challenging the Staffs FSEIS with its supplemental findings. The Staffs FSEIS conclusion that IP SAMA 021 and IP SAMA 053, and four other SAMAs, are potentially cost beneficial renders New Yorks proposed exhibit and proposed supplemental findings immaterial. As such, New Yorks Motion should be denied.
Second, New York has not established the reliability of the proposed exhibit it seeks to include in the record. New York has not indicated that it has examined the document or that its experts agree with the findings therein; Entergy has not submitted an affidavit explaining the document or testifying to its accuracy; and the Staff has not yet reviewed the document to determine its reliability. Thus, if this additional exhibit were to be admitted, the Board would have no basis to conclude that it provides a reliable basis to support its findings of fact and conclusions of law 5 See FSEIS, Exhibit (Ex.) NYS000133I, at G-36.
6 New Yorks Motion at 4 (citing NL-13-075, License Renewal Application-Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial (NL-13-075) (May 6, 2013) (Agencywide Document Access and Management System (ADAMS) Accession No. ML13127A459))
7 New Yorks Motion at 4.
4 Finally, it should be noted that New York, in seeking to admit this new exhibit and to supplement its proposed findings, contradicts its previous arguments that the Boards decision cannot supplement the Staffs Environmental Impact Statement (EIS).8 New York states:
Moreover, Entergys May 2013 revised SAMA cost-benefit analysis should be included in the record and relied upon by the Board in ruling on Contention NYS-16B because it shows that the population omissions described in NYS-16B would change the cost-benefit conclusions ultimately reached in Entergys SAMA analysis, and therefore, are material to that analysis under Entergys definition of the term.9 New Yorks current arguments effectively seek to have the Board modify the Staffs EIS to reflect the information recently submitted by Entergy, in contradiction to its previous arguments to the Board (contrary to the Staffs position) that the Boards findings cannot supplement the EIS.10 For the foregoing reasons, the Staff submits that New Yorks Motion should be denied.
Respectfully submitted
/Signed Electronically by/
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, Maryland this 23rd day of May 2013 8 Id.
9 Id. at 6 (emphasis added).
10 New Yorks Motion, Attachment 1, at 6.
5 CERTIFICATION OF COUNSEL Counsel for the Staff certifies that she has made a sincere effort to make herself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that her efforts to resolve the issues have been unsuccessful.
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 Dated at Rockville, Maryland this 23rd day of May 2013
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/ 50-286-LR
)
(Indian Point Nuclear Generating
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS OPPOSITION TO STATE OF NEW YORK MOTION SEEKING LEAVE TO FILE AN ADDITIONAL EXHIBIT AND SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONTENTION NYS-16B dated May 23, 2013, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 23rd day of May, 2013.
/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