ML13207A426
| ML13207A426 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/26/2013 |
| From: | Brancato D, Musegaas P Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24857, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13207A426 (12) | |
Text
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)
)
July 26, 2013
___________________________________________ )
RIVERKEEPER, INC. MOTION TO HOLD ENTERGYS MOTION TO DISMISS RK-EC-8 (ENDANGERED SPECIES)
IN ABEYANCE OR FOR EXTENSION OF TIME TO RESPOND In accordance with 10 C.F.R. § 2.323(a), for the reasons explained below, Riverkeeper, Inc. (Riverkeeper) respectfully requests that the Atomic Safety and Licensing Board (ASLB) issue an order holding responses to Entergys July 17, 2013 Motion to Dismiss Riverkeeper Contention RK-EC-8, pertaining to endangered species, in abeyance pending the outcome of the ASLBs ruling on Riverkeepers prospective amendment to contention RK-EC-8. In the alternative, in accordance with the ASLBs July, 1 2010 Scheduling Order,1 Riverkeeper requests that the ASLB grant Riverkeeper an extension of time in which file a response to Entergys motion to dismiss in order to allow Riverkeeper to focus its limited resources on continuing to prepare and timely file a planned amendment to Contention RK-EC-8, as well as to accommodate counsel availability issues.
BACKGROUND On or about December 3, 2010, NRC Staff issued a Final Supplemental Environmental Impact Statement (FSEIS) related to the license renewal of the Indian Point nuclear power 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 ¶ H.3 (Regarding dispositive motions: If the answering party concludes that additional time is needed in order to prepare an appropriate answer, it shall file a motion for additional time within which to respond to the dispositive motion within ten (10) days after service thereof.)
2 plant.2 In accordance with established filing deadlines, on February 3, 2011, Riverkeeper filed a Consolidated Motion for Leave to File a New Contention and New Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement.3 Based upon NRC Staffs failure to commence or complete required consultation procedures pursuant to section 7 of the Federal Endangered Species Act (ESA), Riverkeepers contention challenged the analyses and conclusions contained in NRC Staffs FSEIS related to the impact of the continued operation of Indian Point on endangered aquatic resources in the Hudson River.4 On July 6, 2011, the ASLB admitted Riverkeepers new contention, RK-EC-8, for adjudication in the Indian Point license renewal proceeding.5 Thereafter, on December 14, 2011, the ASLB issued an order holding Contention RK-EC-8 in abeyance pending further order of th[e] Board in light of the Staffs announcement that a draft supplement to its Final Supplemental Environmental Impact Statement that addresses issues raised in th[e] contention is expected to be issued...6 Thus, Contention RK-EC-8 was placed on hearing Track 2 in the proceeding, and put on hold to await the outcome of NRC 2 U.S. NRC, Indian Point Nuclear Generating Unit Nos. 2 and 3 - License Renewal Application, http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point.html (last visited July 26, 2013);
Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (NUREG-1437, Supplement 38), available at, http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement38/ (last visited July 26, 2013).
3 Riverkeeper, Inc. Consolidated Motion for Leave to File a New Contention and New Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement (February 3, 2011), ADAMS Accession No. ML110410362.
4 See generally id.
5 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, Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011), at 60-71, ADAMS Accession No. ML111870344.
6 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, Order (December 14, 2011), at 2, ADAMS Accession No. ML11348A032.
3 Staffs supplemental environmental review process.7 On a teleconference call among the parties held on June 10, 2013, in advance of the NRC Staffs then-imminent issuance of its FSEIS supplement, the ASLB explicitly acknowledged that intervenors would have opportunity to review the FSEIS supplement and file amended or new contentions based upon it.8 The ASLB directed intervenors to advise the ASLB within 10 days of the publication of the FSEIS supplement about their positions regarding how much time would be necessary in order to file any such new or amended contentions.9 Subsequently, and over a year and a half after first announcing its intention to undertake a supplemental NEPA review, on or about June 21, 2013, NRC Staff issued a final supplement to its Indian Point FSEIS, which contained information relevant to Contention RK-EC-8.10 In accordance with the ASLBs directives, on July 1, 2013, Riverkeeper advised the ASLB that, based upon its initial review of NRC Staffs FSEIS supplement, Riverkeeper intended to file an amendment to Contention RK-EC-8, and advised the ASLB about the amount of time that Riverkeeper deemed necessary in order to do so.11 Based on the input from intervenors, on July 7 Id.; see also 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, Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates) (February 16, 2012), at 2, ADAMS Accession No. ML12047A308 (Because of the current dynamic nature of the NRC Staffs uncompleted safety reviews, we place Contention NYS-25 on the second hearing track that already includes NYS-38/RK-TC-5 and RK-EC-8.).
8 Transcript of June 10, 2013 Teleconference at 4539.
9 Id. (But what I would ask is for both New York and Riverkeeper within 10 days after the issuance of the supplement to the Environmental Impact Statement, if you notify the Board and the parties of a proposed schedule); 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, Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) (June 12, 2013) (Finally, the parties have 10 days after the publication of the forthcoming FSEIS to inform the Board whether 30 days will be sufficient time to file motions for new and amended contentions (footnotes omitted)).
10 See Letter from S. Turk (Counsel for NRC Staff) to ASLB (June 21, 2013); Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report Supplemental Report and Comment Responses (NUREG-1437, Supplement 38, Volume 4), available at, http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement38/v4/.
11 See Letter from D. Brancato (Riverkeeper) to ASLB (July 1, 2013).
4 9, 2013, the ASLB issued an order setting August 20, 2013 as the deadline for filing new or amended contentions based upon information contained in NRC Staffs FSEIS supplement.12 Despite Riverkeeper representations to the parties regarding Riverkeepers intention to file an amendment to Contention RK-EC-8, on July 17, 2013, Entergy filed a Motion to Dismiss Riverkeeper Contention RK-EC-8 (Endangered and Threatened Aquatic Species) As Moot (hereinafter Entergys Motion to Dismiss). Under the guidelines previously established by the ASLB, any responses to this motion must be filed within 20 days, thus, by August 6, 2013.13 ARGUMENT I.
The ASLB Should Hold Entergys Motion to Dismiss in Abeyance Pending a Ruling on the Admissibility of Riverkeepers Planned Amendment to Contention RK-EC-8 Riverkeeper respectfully requests that the ASLB hold responses to Entergys Motion to Dismiss in abeyance pending the outcome of the ASLBs ruling on Riverkeepers prospective amendment to contention RK-EC-8. Riverkeepers request is based upon the fact that Contention RK-EC-8 is admittedly going to be altered by Riverkeepers planned amended contention. Riverkeeper, thus, submits that it is a waste of Riverkeepers limited time and resources to respond to a motion that may become obsolete, moot, and/or unnecessary depending on whether Riverkeepers forthcoming amended contention is admitted into the proceeding for adjudication. It is simply illogical for Riverkeeper to respond to a motion to dismiss Contention RK-8 at this point in time, when the bases for that contention are going to change.
12 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, Order (Establishing Deadline for Motions for New and Amended Contentions) (July 9, 2013).
13 See 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 ¶ H.3.
5 As the parties and ASLB are aware, Riverkeeper plans to file an amended contention related to RK-EC-8, and not a wholesale new contention. While the bases for Riverkeepers prospective contention may be somewhat different and will have evolved to reflect the admittedly changed circumstances, the contention cannot properly be characterized as new, since it will continue to be derived from deficiencies initially identified by Riverkeeper regarding ESA consultation and NRC Staffs assessment and conclusions regarding endangered species in the Indian Point FSEIS. Moreover, Entergys Motion to Dismiss being interposed at this time affirmatively prejudices Riverkeepers ability to formulate our amended contention and rely upon the framework established by the existing contention, given that the status of the existing contention would be in flux and unknown.
Notably, Entergys request for summary disposition related to RK-EC-8 is contrary to the logical path forward contemplated and laid out by the ASLB. In particular, the ASLB has explicitly contemplated that Riverkeeper would have an opportunity to amend contention RK-EC-8 based upon the outcome of the NRC Staffs supplemental environmental review process.14 Indeed, when, during the teleconference call with the ASLB on June 10, 2013, counsel for NRC Staff, Sherwin Turk, squarely indicated NRC Staffs position that RK-EC-8 should be dismissed, and the ASLB responded that such a suggestion raises the issue of whether or not having reviewed the staff's supplement to the Environmental Impact Statement a new or amended contention based on adequacy of the EIS may or may not be appropriate. We wont know that.15 That is, it is not clear whether a motion to dismiss would be appropriate or necessary until Riverkeeper determines if there is cause and basis to amend the contention.
14 Transcript of June 10, 2013 Teleconference at 4539.
15 Id. at 4542 (emphasis added).
6 In this case, as the parties are all aware, Riverkeeper has determined that NRC Staffs FSEIS supplement continues to be inadequate with respect to the ESA § 7 consultation and endangered species impact assessment, and, accordingly, Riverkeeper plans to file an amendment to RK-EC-8.16 Thus, we now know that a motion to dismiss is not appropriate at this time, and not until after Riverkeeper files its amended contention and the ASLB rules upon the admissibility of that amended contention - that is, until there is more definitiveness with respect to the status of Contention RK-EC-8.
While requiring Riverkeeper to respond to Entergys Motion to Dismiss at this time would be prejudicial to Riverkeeper, it is noteworthy that holding Entergys Motion to Dismiss in abeyance would not result in any such prejudice to Entergy or any other party. Entergy will not lose the opportunity to oppose Riverkeepers contention, or articulate its arguments in response to Riverkeepers amended contention, or to file a motion for summary disposition at a later, more appropriate date. In addition, Riverkeeper respectfully submits that the requested abeyance will have no material effect on the timing of the overall Indian Point license renewal proceeding at all in light of the unresolved status of several outstanding Track 2 contentions, which will not be adjudicated for several months at the earliest.
In order to avoid unnecessary legal filings and any prejudice to Riverkeeper, the ASLB should hold Entergys Motion to Dismiss in abeyance pending the ASLBs ruling on the admissibility of Riverkeepers prospective amended contention RK-EC-8.
II.
In the Alternative, the ASLB Should Grant Riverkeeper an Extension Until August 30, 2013 to Respond to Entergys Motion to Dismiss In the alternative, Riverkeeper respectfully requests until August 30, 2013 to file a response to Entergys Motion to Dismiss. As an initial matter, for the reasons discussed above, 16 See Letter from D. Brancato (Riverkeeper) to ASLB (July 1, 2013).
7 requiring Riverkeeper to respond to Entergys Motion to Dismiss before Riverkeeper files its planned amended contention is illogical and prejudicial. If a response to Entergys Motion to Dismiss is necessary at all, it is far more appropriate and reasonable to require any such response after Riverkeeper has been given the opportunity to amend Contention RK-EC-8.
Riverkeepers request for an additional 24 days, to August 30, 2013, to file a response to Entergys Motion to Dismiss (should the ASLB not hold Entergys motion in abeyance), is also warranted for various other reasons. First, the timing of Entergys Motion to Dismiss serves to disrupt and interfere with Riverkeepers limited timeframe to prepare and file Riverkeepers planned amendment to contention RK-EC-8. Notably, when Riverkeeper communicated to the ASLB the amount of time that might be necessary to file any amended contentions based upon NRC Staffs FSEIS supplement, Riverkeeper did not contemplate or take into account Entergys Motion to Dismiss. Riverkeeper, thus, respectfully submits that an extension of time to respond to Entergys Motion to Dismiss until after Riverkeeper files its amended contention concerning RK-EC-8 is appropriate, in order to allow Riverkeeper to focus on, and dedicate its limited resources to, formulating a well-constructed amended contention.
Second, additional time to file a response to Entergys Motion to Dismiss is warranted due to Riverkeepers counsels preexisting summer vacation plans. Riverkeepers counsel who is primarily working on this matter, Deborah Brancato, will be on vacation starting August 7, 2013 through August 18, 2013.17 Riverkeepers limited request to have until August 30, 2013 to file any response to Entergys Motion to Dismiss is reasonable in light of these circumstances.
During the consultation process, as described below, counsel for Entergy indicated that Entergy would support, at maximum, a 10-day extension of time to respond to Entergys Motion to 17 Notably, Riverkeepers other counsel in this proceeding will also be out of the office due to preexisting vacation plans for the latter two weeks in August.
8 Dismiss. While Riverkeeper appreciates the fact that Entergy was amenable to Riverkeepers extension request, Riverkeeper notes that a 10-day extension would fall entirely over the period during which Riverkeepers primary counsel on this matter will be unavailable, and, thus, would not be an adequate extension of time.
Lastly, Riverkeeper respectfully submits that the requested extension will have no material effect on the timing of the overall Indian Point license renewal proceeding at all in light of the unresolved status of several outstanding Track 2 contentions, which will not be adjudicated for several months at the earliest. In addition, the requested limited additional time would not prejudice any other party to the proceeding.
CONCLUSION For the foregoing reasons, the ASLB should grant Riverkeepers Motion to hold Entergys Motion to Dismiss Riverkeepers Contention RK-EC-8 in abeyance, or, in the alterative, grant Riverkeeper until August 30, 2013 to file a response to Entergys Motion to Dismiss.
Respectfully submitted, Signed (electronically) by Deborah Brancato Deborah Brancato, Esq.
Phillip Musegaas, Esq.
Riverkeeper, Inc 20 Secor Road Ossining, NY 10562 914-478-4501 (ext. 230) dbrancato@riverkeeper.org phillip@riverkeeper.org
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)
)
July 26, 2013
___________________________________________ )
Certification Pursuant to 10 C.F.R. § 2.323(b)
In accordance with the ASLBs July 1, 2010 Scheduling Order (at ¶ G.6.) and 10 C.F.R.
§ 2.323(b), I certify that I have made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that my efforts have been unsuccessful. Clearwater support this motion, and counsel for New York State supports the motion and has indicated its position that the motion will promote efficiency, conserve resources, and result in no prejudice to the parties.
However, counsel for Entergy and NRC Staff have indicated they oppose the motion. Counsel for Entergy, Paul Bessette, has indicated that Entergy opposes Riverkeepers request to hold Entergys Motion to Dismiss in abeyance, and would support at maximum a 10-day extension to respond to the motion to ostensibly accommodate Riverkeepers timing needs.18 Counsel for NRC Staff, Sherwin Turk, has indicated that NRC Staff opposes both of Riverkeepers requests for relief.19 Signed (electronically) by Deborah Brancato Deborah Brancato, Esq.
18 Riverkeeper notes that this 10 day period falls entirely during the period during which Riverkeepers counsel will be unavailable due to preexisting vacation plans, and, thus, would not be an adequate extension of time.
19 During consultation on Riverkeepers instant motion, Mr. Turk indicated a willingness to entertain a request for additional time for filing amended contentions based upon NRC Staffs FSEIS supplement, but was unwilling to agree to any extension for filing responses to Entergys motion, even though it was filed weeks after the NRC Staffs issuance of the its FSEIS supplement. Riverkeeper indicated to NRC Staff counsel that there was no need to delay the Aug. 20 filing date for new or amended contentions, which had already been established by the ASLB, and which Riverkeepers was planning to comply with. Mr. Turks suggestion was illogical for the reasons discussed in this motion, namely since Entergys Motion to Dismiss may be unnecessary depending on the outcome of Riverkeepers prospective amended contention, and since Riverkeepers requested relief is aimed at avoiding the wasting of time and resources.
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)
)
July 26, 2013
____________________________________________ )
CERTIFICATE OF SERVICE I certify that on July 26, 2013 copies of Riverkeeper Inc. Motion to Hold Responses to Entergys Motion to Dismiss RK-TC-8 (Endangered Species) in Abeyance or For Extension of Time to Respond, were served on the following by NRCs Electronic Information Exchange:
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Lawrence.McDade@nrc.gov Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Michael.Kennedy@nrc.gov Richard E. Wardwell Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Richard.Wardwell@nrc.gov Michael J. Delaney Department of Environmental Protection 59-17 Junction Boulevard Flushing NY 11373 E-mail: mdelaney@dep.nyc.gov (718) 595-3982 John J. Sipos, Esq.
Assistant Attorney General Office of the New York Attorney General for the State of New York The Capitol Albany, NY 12224 E-mail: John.Sipos@oag.state.ny.us Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Jonathan M. Rund, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Ave. N.W.
Washington, D.C. 20004 E-mail:
pbessette@morganlewis.com ksutton@morganlewis.com jrund@morganlewis.com
2 Shelbie Lewman Law Clerk Anne Siarnacki Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 shelbie.lewman@nrc.gov anne.siarnacki@nrc.gov Martin J. ONeill, Esq.
Morgan, Lewis & Bockius, LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 E-mail: martin.oneill@morganlewis.com Janice A. Dean, Esq.
Assistant Attorney General Office of the Attorney General 120 Broadway, 26th Floor New York, NY 10271 E-mail: Janice.dean@oag.state.ny.us Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: OCAAMAIL@nrc.gov Office of the Secretary Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc.gov William C. Dennis, Esq.
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis@entergy.com Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave Beacon, New York 12508 E-mail: sfiller@nylawline.com Manna Jo Greene Richard Webster Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave Beacon, New York 12508 E-mail: Mannajo@clearwater.org rwebster@publicjustice.net Melissa-Jean Rotini, of counsel Assistant County Attorney Office of Robert F. Meehan, Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-mail: MJR1@westchestergov.com Sean Murray, Mayor Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 E-mail: vob@bestweb.net, SMurray@villageofbuchanan.com, Administrator@villageofbuchanan.com
3 Elise N. Zoli, Esq.
Goodwin Procter, LLP 53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com Thomas F. Wood, Esq.
Daniel Riesel, Esq.
Victoria S. Treanor Sive, Paget and Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com vtreanor@sprlaw.com Sherwin E. Turk Beth N. Mizuno Brian G. Harris David E. Roth Andrea Z. Jones Office of General Counsel Mail Stop: 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail:
Sherwin.Turk@nrc.gov Beth.Mizuno@nrc.gov brian.harris@nrc.gov David.Roth@nrc.gov andrea.jones@nrc.gov Robert D. Snook, Esq.
Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 E-mail: Robert.Snook@po.state.ct.us Signed (electronically) by Deborah Brancato Deborah Brancato July 26, 2013