ML13157A457
| ML13157A457 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/06/2013 |
| From: | Heslin L, Liberatore K, Sipos J State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24655, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13157A457 (9) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. June 6, 2013
x STATE OF NEW YORKS ANSWER TO ENTERGYS REQUEST FOR LEAVE TO FILE AN ADDITIONAL EXHIBIT AND SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN RESPONSE TO NEW YORKS SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONTENTION NYS-16B Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(2)(c), the State of New York responds to Entergys request for leave to file supplemental Proposed Findings of Fact and Conclusions of Law (Proposed Findings) in response to the States supplemental Proposed Findings for Consolidated Contention NYS-16B, and to enter the entirety of NL-13-075, License Renewal Application-Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial (May 6, 2013) (ML13127A459) (NL-13-075) as an exhibit instead of the excerpted table proffered by the State. Entergys Answer Opposing State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Findings of Fact and Conclusions of Law (May 28, 2013) (Entergy Oppn) at 1, 5, n.21 (ML13148A498).1 Todays answer by the State is timely was filed 9 days after Entergys submission.
While the State does not object to Entergy responding to the States Proposed Findings, the State does object to Entergys request that the entirety of NL-13-075 be admitted as an exhibit. 2 As explained in more detail below, only the excerpted tablecontaining Entergys revised cost-benefit conclusionsis relevant to NYS-16B. This table has been offered as an exhibit for the sole purpose of rebutting Entergys and Staffs argument that including commuters and undercounted minority residents in the population estimate will not have a material impact on the Severe Accident Mitigation Alternatives (SAMA) analysis. The remainder of NL-13-075which contains Entergys decision to implement some cost-beneficial 1
Instead of filing a separate motion for leave, Entergy requested leave to file responsive findings in its answer to the States motion. Entergys proposed supplemental findings are attached to its answer.
2 During consultation for the States motion, the parties discussed the States proposal to submit an excerpt of NL-13-075 containing Table 1 as an exhibit, but Entergy did not indicate that it would seek to have the entirety of NL-13-075 entered as an exhibit.
1
SAMA candidates and defer consideration of othersmay be relevant to NRC Staffs efforts to remedy the deficiencies in the Final Supplemental Environmental Impact Statement (FSEIS) set forth by the Board in its July 14, 2011 summary disposition of NYS-35/36, but it is not relevant to the issues raised in NYS-16Bi.e., whether commuters and undercounted minority residents should be included in the population estimate for Indian Point. Additionally, now that Entergy has submitted responsive findings, the State reiterates its request to submit brief reply findings.3 ARGUMENT The State does not object to Entergys request to submit supplemental Proposed Findings.
The State does, however, object to Entergys request that the entirety of NL-13-075 be admitted as an exhibit. Aside from the excerpted table submitted by the State (NYS000476), NL-13-075 is not relevant to NYS-16B. The relevant portion of NL-13-075 is the revised SAMA cost-benefit table reclassifying previously cost-beneficial SAMA candidates as no longer cost-beneficial. NL-13-075, attach. 1 at 4-5. Upon reviewing the costs and benefits reported in this table, the State determined that two SAMA candidates Entergy wishes to reclassify as not cost-beneficial would still be cost-beneficial if the increases in population set forth in NYS-16B were taken into account. This evidence directly rebuts Entergys argument that the population errors identified in NYS-16B will not have a material impact on the SAMA analysis. The excerpt was submitted by the State solely for this purpose.
3 NRC Staff requested an opportunity to submit responsive findings, but did not attach any proposed findings to its answer to the States motion. 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 at 1 n.2 (May 23, 2013)
(ML13134A354). The State respectfully requests that it be permitted to file a single reply to both the Entergy and Staff supplemental Proposed Findings after Staff tenders its supplemental Proposed Findings.
2
The remainder of NL-13-075, however, has no bearing on NYS-16B. Although it is generally inappropriate to communicate matters of substance to the Board via letter or e-mail,4 Entergy informed the Atomic Safety and Licensing Board via letter that it submitted this information [in NL-13-075] to the NRC to support resolution of certain issues identified by the Board in its July 14, 2011 decision granting New York States motion for summary disposition of Consolidated Contention NYS-35/36. Entergy Letter to ASLB, Re: Notification of Entergys Submission of the Results of Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial (May 7, 2013) (ML13127A458).
The majority of the document explains Entergys decision to implement some cost-beneficial SAMA candidates and its decision to defer consideration of other cost-beneficial SAMA candidates. For example, in NL-13-075 Entergy discloses for the first time that it has implemented a SAMA candidate at Indian Point Unit 3, and plans to implement three more SAMA candidates (two at Unit 3 and one at Unit 2) by August 31, 2014. Putting aside the fact that NL-13-075 fails to explain why Entergy chose to implement any SAMA candidates at all and why it chose to implement these four as compared to the other cost-beneficial candidates, providing a rational basis for the implementation of SAMA candidates is not the subject of NYS-16B.
Entergys only justification for seeking admission of the entire NL-13-075 document is that it will provide appropriate factual and legal context. Entergy Oppn at 5, n.21. But the 4
The record should not be cluttered with such casual for your information letters. Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Order Striking New England Coalitions Letter to the Board at 1-2 (May 12, 2005). Instead, matters of substance should be communicated to the Board in formal filings, with the caption of the case, signature of counsel, and affidavits to support any factual statements. Id; see also 10 C.F.R. § 2.323(2)(b) (a motion must state with particularity the grounds and the relief sought).
3
States supplemental Proposed Findings and Entergys responsive Proposed Findings already provide that context. See State supplemental Proposed Findings at 2-5, ¶¶207-214; Entergy supplemental Proposed Findings at 4, ¶6. As NL-13-075 does not mention NYS-16B, and only Table 1 of that document is relevant to Entergys and Staffs materiality defense for NYS-16B, admitting the entire document will not provide the necessary context.
Moreover, entering the entirety of NL-13-075 as an exhibit to NYS-16B would also be inappropriate because it represents an attempt by Entergy to circumvent the proper process for remedying the National Environmental Policy Act (NEPA) deficiencies outlined in the Boards summary disposition order on NYS-35/36. In granting summary disposition to the State, the Board found that the NRC Staffs decision to allow Entergy to complete its SAMA review outside of the license renewal process, by deferring the evaluation of SAMAs found to be potentially cost-beneficial until after relicensing, does not provide an adequate record for the agency to make its decision on the impacts of relicensing IP2 and IP3. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), (Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36), LBP-11-17, 74 N.R.C. 11, 16-17 (Jul. 14, 2011), interlocutory review denied, CLI-11-14, __ N.R.C. ___ (Dec. 22, 2011). Thus, at present NRC Staffs FSEIS for the proposed license renewal of Indian Point Unit 2 and Unit 3 has been found to be insufficient and it cannot now provide the basis to issue a renewed operating license for Indian Point Unit 2 or Indian Point Unit 3 under the NEPA. While NL-13-075 highlights the fact that the SAMA analysis is incomplete, the only way to remedy the deficiencies in NYS-35/36 is for NRC Staff to follow the Boards order:
[U]nder NRC Regulations, the APA, and NEPA, Entergys licenses cannot be renewed unless and until the NRC Staff reviews Entergys completed SAMA analyses and either incorporates the result of these reviews into the FSEIS or, in the alternative, modifies its FSEIS to provide a valid reason for recommending the 4
renewal of the licenses before the analysis of potentially cost effective SAMAs is complete and for not requiring the implementation of cost-beneficial SAMAs.
Id. at 17.
As such, NL-13-075 should not be entered in its entirety as an exhibit for NYS-16B. The Board should admit only the excerpt of Table 1 (NYS000476), for the sole purpose of rebutting Entergys and NRC Staffs materiality defense in NYS-16B.
CONCLUSION For the foregoing reasons, New York State opposes Entergys request that the Board admit NL-13-075 in its entirety. Additionally, now that Entergy has submitted responsive Proposed Findings, the State reiterates its request to submit brief reply Proposed Findings. For the sake of efficiency, the State respectfully requests that it be permitted to file combined Proposed Findings, replying to both Entergy and NRC Staff, 10 days after the date of Staffs filing of responsive findings.
Respectfully submitted, Signed (electronically) by Signed (electronically) by Laura E. Heslin John J. Sipos Kathryn M. Liberatore Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General for the State of New York for the State of New York The Capitol 120 Broadway Albany, New York 12224 New York, New York 10271 (518) 402-2251 (212) 416-6091 (212) 416-8482 June 6, 2013 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. June 6, 2013
x CERTIFICATE OF SERVICE I hereby certify that on June 6, 2013, copies of the accompanying State of New York Answer to Entergys Request to File and Additional Exhibit Concerning Contention NYS-16B were served electronically via the Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Shelbie Lewman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge Carter Thurman, Esq., Law Clerk Michael F. Kennedy, Administrative Judge James Maltese, Esq., Law Clerk Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Shelbie.Lewman@nrc.gov Richard.Wardwell@nrc.gov Carter.Thurman@nrc.gov Michael.Kennedy@nrc.gov James.Maltese@nrc.gov Atomic Safety and Licensing Board Panel Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 16 G4 11545 Rockville Pike One White Flint North Rockville, MD 20852-2738 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov 1
Office of the Secretary Bobby R. Burchfield, Esq.
Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.
U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.
Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.
David E. Roth, Esq. Richard A. Meserve, Esq.
Beth N. Mizuno, Esq. Matthew W. Swinehart, Esq.
Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Joseph A. Lindell, Esq. Washington, DC 20004-2401 Office of the General Counsel rmeserve@cov.com U.S. Nuclear Regulatory Commission mswinegart@cov.com Mailstop 15 D21 One White Flint North Elise N. Zoli, Esq.
11555 Rockville Pike Goodwin Procter, LLP Rockville, MD 20852-2738 Exchange Place sherwin.turk@nrc.gov 53 State Street david.roth@nrc.gov Boston, MA 02109 beth.mizuno@nrc.gov ezoli@goodwinprocter.com brian.harris@nrc.gov anita.ghosh@nrc.gov William C. Dennis, Esq.
Joseph.Lindell@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.
Kathryn M. Sutton, Esq. 440 Hamilton Avenue Paul M. Bessette, Esq. White Plains, NY 10601 Jonathan Rund, Esq. wdennis@entergy.com Raphael Kuyler, Esq.
Morgan, Lewis & Bockius LLP Robert D. Snook, Esq.
1111 Pennsylvania Avenue, NW Assistant Attorney General Washington, DC 20004 Office of the Attorney General ksutton@morganlewis.com State of Connecticut pbessette@morganlewis.com 55 Elm Street jrund@morganlewis.com P.O. Box 120 rkuyler@morganlewis.com Hartford, CT 06141-0120 robert.snook@ct.gov Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2
Melissa-Jean Rotini, Esq. Karla Raimundi, Assistant County Attorney Environmental Justice Associate Office of the Westchester County Attorney Hudson River Sloop Clearwater, Inc.
Michaelian Office Building 724 Wolcott Avenue 148 Martine Avenue, 6th Floor Beacon, NY 12508 White Plains, NY 10601 karla@clearwater.org MJR1@westchestergov.com Richard Webster, Esq.
Sean Murray, Mayor Public Justice, P.C.
Kevin Hay, Village Administrator Suite 200 Village of Buchanan 1825 K Street, NW Municipal Building Washington, DC 20006 236 Tate Avenue rwebster@publicjustice.net Buchanan, NY 10511-1298 Administer@villageofbuchanan.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Daniel Riesel, Esq. Riverkeeper, Inc.
Thomas F. Wood, Esq. 20 Secor Road Victoria S. Treanor, Esq. Ossining, NY 10562 Sive, Paget & Riesel, P.C. phillip@riverkeeper.org 460 Park Avenue dbrancato@riverkeeper.org New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Kathryn M. Liberatore Assistant Attorney General State of New York (212) 416-8482 Dated at New York, New York this 6th day of June 2013 3