ML13148A500
| ML13148A500 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/28/2013 |
| From: | Amitava Ghosh NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24587, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13148A500 (7) | |
Text
May 28, 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/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS ANSWER IN OPPOSITION TO HUDSON RIVER SLOOP CLEARWATER, INC.S MOTION FOR LEAVE TO FILE ONE ADDITIONAL EXHIBIT RELATED TO CONTENTION EC-3A (ENVIRONMENTAL JUSTICE)
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission (Staff or NRC Staff) hereby files its answer opposing Hudson River Sloop Clearwater, Inc.s (Clearwater) motion for leave to file an additional exhibit in support of its Contention EC-3A (Environmental Justice) (Contention CW-EC-3A).1 As discussed more fully below, the Staff opposes Clearwaters motion on the grounds that the proffered exhibit is irrelevant, immaterial, and concerns issues that are outside the scope of this proceeding. Accordingly, Clearwaters motion should be denied.
DISCUSSION In accordance with 10 C.F.R. § 2.337, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Thus, the powers of a presiding 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).
1 Hudson River Sloop Clearwater, Inc.s Motion for Leave to File One Additional Exhibit Related to Contention EC-3A (Environmental Justice) (May 17, 2013) (Motion).
2 Clearwaters proffered exhibit (CLE000076) is a Statement of Interest filed in a private civil suit by the U.S. Attorneys Office in the Southern District of New York, regarding the adequacy of New York Citys emergency preparedness plans under the Americans with Disabilities Act (ADA) and its implementing regulations.2 Clearwater asserts that the document finds that New York Citys emergency plans fail to account for and include the needs of individuals with disabilities relating to, at a minimum, shelters, transportation, evacuation, and emergency-related communications.3 Clearwaters proffered exhibit should be rejected, in that it is neither relevant nor material to Contention CW-EC-3A. The document does not discuss any disproportionately high and adverse impacts to environmental justice (EJ) populations in the event of a severe accident at Indian Point Nuclear Generating Units 2 and 3 (IP2 and IP3 or Indian Point) or any impacts to EJ populations that may be caused by license renewal of Indian Point. Further, Clearwater inexplicably equates the New York City emergency plans with the FEMA-approved emergency planning framework that has been established for communities within the 10-mile plume exposure pathway emergency planning zone (EPZ) for Indian Point, without any showing that the New York City plans resemble the emergency plans for those communities. Nowhere in the proffered exhibit is there any mention of the Indian Point onsite or offsite emergency plans.
Moreover, inasmuch as the proffered document discusses (a) the adequacy of emergency planning measures in New York City, and (b) their compliance with the ADA, the document is irrelevant in that these issues fall outside the scope of this license renewal proceeding.4 Clearwater contends that the proffered exhibit is relevant because it contradicts statements by NRC Staff that an ad hoc unplanned evacuation of New York City would not 2
See CLE000076 at 1-14.
3 Motion at 2, citing CLE000076 at 4.
4 The Commission has determined that the adequacy of existing emergency plans need not be considered anew as part of issuing a renewed operating license. Final Rule; Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,967 (Dec. 13, 1991).
3 result in disparate impacts upon environmental justice populations;5 Clearwater, however, points to nothing in the testimony where such statements were made, nor is the Staff aware of any such statements in the record. Further, Ms. Milligans statements regarding ad hoc evacuations were in reference to emergency protective measures for radiological emergencies implemented within the 10-mile EPZ for Indian Point, and did not address the New York City emergency plans.6 As Ms. Milligan testified, the rigorousness of the preparedness planning for nuclear power plants is unique;7 that testimony is unaffected by the U.S. Attorneys statements regarding New York Citys emergency plans and their compliance with the ADA.8 Therefore, the proffered exhibit is simply not relevant to Contention CW-EC-3A.
Additionally, many of the arguments in Clearwaters proposed exhibit appear to be predicated on the adequacy of the New York City emergency plans during coastal storms such as Hurricane Sandy.9 This Board has previously ruled that exhibits related to Hurricane Sandy 5
Motion at 2.
6 See Staff Testimony on CW-EC-3A (Ex. NRC000063) at 24, citing NUREG-0654/FEMA-REP-1 (Ex. NRC000066) at 12.
7 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 33.
8 Moreover, in its denial of a rulemaking petition to expand the 10-mile EPZ, the Commission found that the need for protective actions beyond a few miles from a nuclear power plant is extremely unlikely. Entergy Testimony on CW-EC-3A (Ex. ENT0000258) at 51, citing Emergency Preparedness at Nuclear Power Plants; Denial of Petitions for Rulemaking, 55 Fed. Reg. 5,603 (Feb. 16, 1990) (Ex.
ENT000282). The Commission specifically stated, in response to comments that ad hoc actions beyond 10 miles would not be adequate, that it firmly believes that emergency actions could be successfully carried out beyond [the] 10-mile EPZ. Id. at 5,606.
9 See generally CLE000076 at 14-25. See also id. at 1 (Among natural hazards alone, New York City is vulnerable to a variety of notice and no-notice disasters, including coastal erosion, coastal storms, drought, earthquakes, extreme temperatures, flooding, windstorms and tornadoes, and wither storms. );
id. at 14 (Indeed, a post-Hurricane Sandy briefing paper . . . reported that . . . many of the Citys evacuation shelters were not accessible.); id. at 17 (Plaintiffs elicited significant evidence at trial that, in fact, individuals with disabilities were not provided with equally effective transportation and evacuation options after the mandatory Hurricane Sandy evacuation order . . . .); id. at 19 (describing the shutdown of the Citys provider of paratransit service, Access-A-Ride, prior to landfall of Hurricane Sandy); id. at 23 (Plaintiffs introduced significant evidence at trial that during Hurricanes Irene and Sandy, individuals with disabilities were not able to obtain reliable information about accessible shelters.).
Additionally, Clearwaters proffered exhibit refers to numerous other documents related to coastal storms and hurricanes including New York Citys coastal storm sheltering and evacuation plans. See, e.g., id. at 15 (asserting that sheltering plans including the Coastal Storm Sheltering Plan (the Citys main
4 (an unrelated weather event) were neither material nor relevant to the reasonableness of the Staffs environmental justice review of Indian Point and thus inadmissible.10 For this reason, too, Clearwaters proffered exhibit is simply inadmissible.
Finally, Clearwater asks the Board to take judicial notice of U.S. Census Bureau statistics purporting to confirm a correlation between low-income status and disability.11 The Commission has stated that it may take judicial notice of a matter beyond reasonable controversy and one that is capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.12 However, Clearwater has not submitted any evidence indicating that disabled individuals within 50 miles of IP2 and IP3 are predominantly low-income or minority individuals. Moreover, as Staff witness Jeffrey Rikhoff testified, persons who are disabled do not constitute a distinct EJ population and are not required to be addressed as such in the Staffs environmental justice assessment.13 Thus, Executive Order 12898 and NRC guidance documents including the Commissions EJ Policy Statement direct the Staff to only consider individuals who are low-income and/or part of a minority group in the Staffs EJ assessment.14 Therefore, the correlation Clearwater has sheltering plan), the Coastal Storm Plan Evacuation Center Field Guide, and the Coastal Storm Plan Hurricane Shelter Field Guide do not confirm that ADA accessibility rules will be satisfied in shelters); id.
at 18, 20 (referring to the New York Citys Coastal Storm Evacuation Plan).
10 See Order (Denying Clearwaters Motion to Supplement the Record) (Dec. 5, 2012)
(unpublished) ([T]he Board finds that the documents submitted by Clearwater dealing with an unrelated weather event [(Hurricane Sandy)] are immaterial and not relevant to the reasonableness of the NRC Staffs environmental justice review of Indian Point, Units 2 and 3.).
11 Motion at 2.
12 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-02, 33 NRC 61, 74-75 (1991).
13 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 20-21.
14 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 20-21; Tr. at 2744. Mr. Rikhoff clarified that if these disabled individuals were members of a minority race and/or living below the poverty threshold (low-income), they would be included in the Staffs EJ assessment. Id.
5 presented for consideration of judicial notice is not a matter beyond reasonable controversy.
Accordingly, Clearwaters motion should be denied.
CONCLUSION For the reasons discussed above, Clearwaters proffered exhibit should be excluded on the grounds that it is irrelevant, immaterial, and relates to emergency preparedness issues that are outside the scope of this license renewal proceeding. Accordingly, Clearwaters Motion should be denied.
Respectfully submitted,
/Signed (electronically) by/
Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-4113 E-mail: anita.ghosh@nrc.gov Date of signature: May 28, 2013
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/
Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-4113 E-mail: anita.ghosh@nrc.gov Date of signature: May 28, 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/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER IN OPPOSITION TO HUDSON RIVER SLOOP CLEARWATER, INC.S MOTION FOR LEAVE TO FILE ONE ADDITIONAL EXHIBIT RELATED TO CONTENTION EC-3A (ENVIRONMENTAL JUSTICE), dated May 28, 2013, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 28th day of May, 2013.
/Signed (electronically) by/
Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-4113 E-mail: anita.ghosh@nrc.gov Date of signature: May 28, 2013