ML13357A778

NRC Staff'S Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C

ML13357A778
Person / Time
Site:	Indian Point
Issue date:	12/23/2013
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML13357A775	List: ML13357A776 ML13357A777 ML13357A778 ML13357A779 ML13357A780 ML13357A781
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25434
Download: ML13357A778 (20)

Text

December 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/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS RESPONSE TO STATE OF NEW YORK MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION ON CONTENTION NYS-12C Pursuant to 10 C.F.R. §2.309(h)(1), the staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff)) hereby files its response in opposition to the State of New Yorks (New York) motion to reopen the record and reconsider Contention NYS-12C. 1 In its Motion, New York presents information concerning a MACCS2 computer analysis that was conducted by the NRC Office of Nuclear Reactor Research (RES) in November-December 2012 following the Fukushima accident, as part of a scoping study of the consequences of a spent fuel pool (SFP) accident. 2 New York alleges that (1) it did not learn that the NRC Staffs, SFP Scoping Study had utilized a 1-year time period for decontamination in its MACCS2 scoping analysis of SFP accident consequences until November 27, 2013, (2) the Staff should have disclosed this information to New York using an earlier alternative method for its disclosure, and (3) the Staff somehow failed to inform New York of this well publicized study. New York contends that the SFP Scoping Studys use of a one-year decontamination 1

State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (New Yorks Motion) (Dec. 7, 2013).

2 SECY-13-0112, Consequence Study of a Beyond Design Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark 1 Boiling Water Reactor (SFP Scoping Study) (Oct. 9, 2013).

time period contradicted purported representations by the Staff in this proceeding regarding its use of shorter decontamination times in SAMA analyses for operating reactor license renewal, and that this warrants both (a) reopening of the record on Contention 12-C and (b) reconsideration of the Atomic Safety and Licensing Boards (Board) Partial Initial Decision (PID) on that contention. 3 The Staff submits that New Yorks Motion should be denied because it is untimely, does not raise a significant environmental matter, does not demonstrate that a materially different result is likely to result, and does not show any material error of fact or law in the Boards decision (LBP-13-13) resolving contention NYS-12C (1).

ARGUMENT I. Applicable Legal Standards A. Standards for Reopening the Record A party seeking to reopen a closed record bears a heavy burden. 4 The party must show that (1) its motion was timely filed, (2) concerns a significant environmental matter, and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 5 Further, a motion to reopen the record must be supported by an affidavit by a competent witness, demonstrating that the motion should be granted. Mere allegations and conclusory assertions are insufficient. The regulations prescribe as follows:

The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the 3

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC __ (Nov. 27, 2013), slip op. at 260-293.

4 Amergen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 675 (2008).

5 10 C.F.R. § 2.326(a).

criteria of paragraph (a) of this section have been satisfied.

Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section. 6 In other words, the affidavits must address each aspect of the bases for the motion to reopen, and must be signed by competent witnesses or experts. 7 Further, the affidavits must provide sufficient admissible evidence such that it could withstand summary disposition. 8 Mere speculation or unsupported conclusions, even by an expert, are insufficient. 9 B. The Reconsideration Standard The regulations state that [m]otions for reconsideration may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. 10 In sum, it is not sufficient for a 6

10 C.F.R. § 2.326(b).

7 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-94-9, 39 NRC 122, 123-24 (1994).

8 South Carolina Electric & Gas Co. (Virgil C. Summer Station, Unit 1) LBP-82-84, 16 NRC 1183, 1186 (1982) (citing Vermont Yankee Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138. 6 AEC 520, 523 (1973)).

9 Amergen Energy Co., Inc. (Oyster Creek Nuclear Generation Station), LBP-08-12, 68 NRC 5, 22, affd CLI-08-28, 68 NRC 658 (2008).

10 10 C.F.R. § 2.323(e). In its Statements of Consideration for the 2004 changes to the NRCs Rules of Practice, the Commission stated that it intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier.

In the Commission's view, reconsideration should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier. Final Rule; Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004).

movant to point to facts that were not considered by the Board in its decision; rather, those facts must establish a clear and material error by the Board that renders the decision invalid.

Moreover, where the facts presented by the motion were not in evidence and thus could not have been considered by the Board in its decision, they may not be relied upon as a basis for reconsidering the decision that was rendered. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-38, 54 NRC 490, 493 (2001) (citation omitted), citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-17, 48 NRC 69, 73-74 (1998).

II. New Yorks Motion Fails to Satisfy the Requirements for Reopening the Record A. New Yorks Motion is Untimely As discussed above, pursuant to 10 C.F.R. § 2.326(a)(1), a party who seeks to reopen the record must establish that its motion is timely. New Yorks Motion fails to do so.

Although the Board has not specifically addressed timeliness with respect to a motion to reopen in this proceeding, it has established timeliness requirements for filing contentions based on new information, which is informative of the issue of timeliness raised here. In its scheduling order, the Board indicated that a new contention would be considered timely filed if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available. 11 In contrast, New York filed its motion to reopen some five months after it should have learned of the SFP Scoping Studys use of a one-year decontamination period in its MACCS2.

In this regard, New York states that its motion was timely filed because it received the native file formats for the SFP Scoping Study on November 26, 2013. This assertion fails for 11 Scheduling Order at 6 (July 1, 2010) (unpublished). When moved by the parties, the Board has extended this presumption of timeliness for specific filings based the circumstances. In this case, New York did not make any request to extend its deadline for filing based on new information.

two reasons: First, New Yorks counsel, Mr. Sipos, admits that New York received a PDF version of those files more than a month earlier. Thus, on October 23, 2013, 45 days before New York filed its present motion and 35 days before the Board issued its partial initial decision, New York received essentially identical information. 12 The information that forms the crux of New Yorks present motion, TIMEDEC=3.15x107s, 13 that New Yorks declarant identified in the native files, was readily accessible by New York in the October 23, 2013 PDF files. 14 Indeed, one of New Yorks two declarants, Mr. Timothy Mahilrajan admits that his statements are based in-part on an examination of October 23, 2013 PDF files. 15 Even assuming, arguendo, that New York could not have become aware of this information earlier than the October 23, 2013, its 45-day wait before bring this issue to the Boards attention would render this motion untimely.

Second, and more fundamentally, New York was informed of the Staffs use of a one-year decontamination period for the TIMEDEC input in the SFP Scoping Study many months before it obtained the MACCS2 output files. Both the Draft SFP Scoping Study and the Final SFP Scoping Study explicitly stated that Decontamination is modeled in a manner consistent with both NUREG-1150 and NUREG-1935. Two levels of decontamination (a decontamination 12 The only real difference between the files New York received on November 26, 2013, and October 23, 2013, was type of program necessary to display the files. The PDF files could be displayed by the widely accessible Adobe Acrobat or other freely available reader and the native files needed a text editor to display the files.

13 7 1 year = 3.15x10 s 14 Compare SFPS MACCS2 output - LNT 3.4 LowDensity (ADAMS Accession No. ML13282A563), Attachment A, at 41 with New York Motion, Attachment 6, at 41.

15 See Declaration of Timothy Mahilrajan of International Safety Research, Inc. (Mahilrajan Decl.) at ¶ 6 (Dec. 7, 2013).

factor of 3 and 15) are each assumed to take one year . 16 Significantly, the Draft SFP Scoping Study was made available on June 24, 2013, and New York had that draft report in hand at least as early as July 2013, as discussed infra. 17 Notwithstanding its early access to this information, the State inexplicably waited another 166 days (more than 5 months) before raising this issue with Board and only raised the issue after the Board rendered a decision on the merits of the contention.

Further, New York cannot claim that it was unaware of the draft study or the Staffs use of 1-year period for the TIMEDEC analysis, because New York communicated with the Staff on multiple occasions concerning the Draft SFP Scoping Study. 18 Indeed, Mr. Sipos explains that New York was evaluating the SFP Scoping Study as a result of its ongoing interest with waste and spent fuel pool issues. 19 In light of New Yorks declared interest in the SFP Scoping Study, and the Draft reports explicit reference to a one-year decontamination period, the State should have been aware of the one-year period disclosed in the draft SFP Scoping Study. 20 Further, New York has been actively participating in the SFP Scoping Study; thus, New York (1) formulated written comments, apparently upon consultation with its experts, and submitted 16 New York Motion, Attachment 3, 160 (emphasis added). See also New York Motion, at 160. An excerpt of the relevant page to the New York Motion, Attachment 3 and 6, is included for convenience as Attachment C and D to the Staffs motion, respectively.

17 The Final SFP Scoping Study was made available to the public and New York was notified that the PDF files of the MACCS2 code runs were publicly available in ADAMS on October 23, 2013 18 See, e.g., Letter from John Sipos, Assistant Attorney General for New York, to Cindy Bladey, Chief of Rules, Announcements, and Directives Branch, NRC, (Sipos Letter), Attachment B, dated August 1, 2013, at 3.

19 Declaration of Assistant Attorney General John Sipos in Support of State of New Yorks Motion to Reopen the Record and for Reconsideration of Board Ruling LBP-13-13 on Contention NYS-12C (Sipos Decl.) at ¶¶ 1-2.

20 Id..

those comments on the draft study; 21 New York participated in at least two public meetings on the Draft SFP Scoping Study; 22 Mr. Sipos August 1, 2013 letter commenting on the Draft SFP Scoping Study raised a number of substantive issues - specifically including the section of the draft study that discussed the 1-year TIMEDEC analysis. 23 Indeed, his comments are virtually indistinguishable from New Yorks arguments in this proceeding; in his letter of August 1, Mr.

Sipos stated:

[T]he offsite consequence analysis in section 7 of the Draft Study is flawed. In particular, the Draft Study fails to use realistic input values for its MACCS2 analysis. For example, the Draft Study unreasonably relies upon Sample Problem A generic values developed decades ago for the Surry site in rural Virginia.

Instead, Staff, in drafting the study, should have developed site-specific MACCS2 input values. The Draft Study underestimates land contamination, land interdiction, and displaced individuals. 24 Thus, by August 1, 2013, New York had identified that the analysis performed in the Draft SFP Scoping Study was performed contrary to New Yorks experts recommendations and substantive comments on the issue - and was clearly on notice that the SFP Scoping Study 21 Sipos Letter, Attachment A, at 3.

22 Sipos Decl.at ¶¶ 2; New York Motion, Attachment 5, at 1.

23 Id.

24 Sipos Letter, Attachment A, at 3. In New Yorks Proposed Findings of Fact and Conclusions of Law, the State had asserted essentially the same argument. New York stated that

7. Entergy and NRC Staff significantly underestimate the costs associated with a severe accident used to determine whether mitigation measures are cost beneficial in the SAMA analysis. Entergy used the MELCOR Accident Consequence Code Systems Version 2 (MACCS2) to estimate costs. Despite compelling evidence that site-specific inputs would yield up to a seven-fold increase in the costs of a severe accident, Entergy and NRC Staff chose to use decades-old information in Sample Problem A for the SAMA analysis for Indian Point. Sample Problem A was developed for the Surry reactor in rural Virginia in the SAMA analysis for Indian Point.

State of New Yorks Proposed Findings of Fact and Conclusions of Law For Contention NYS-12/12A/12B/12C (NYS-12C) at 2 (Mar. 22, 2013).

had utilized a one-year decontamination period. Yet, New York chose to remain silent on this point for another 128 days, before raising this issue before the Board. New Yorks inexplicable delay in raising this issue with Board until after the Board had issued its partial initial decision is inexcusably late. Thus, New Yorks Motion should be denied as untimely.

B. The Motion Does Not Concern a Significant Environmental Matter As discussed above, pursuant to 10 C.F.R. § 2.326(a), a party seeking to reopen the record must demonstrate that its motion concerns a significant environmental matter. New Yorks Motion fails to satisfy this requirement.

New York argues that the issue of TIMEDEC is a significant environmental matter warranting reopening a closed record because the proffered evidence, which concerns the TIMEDEC input, concerns an important issue 25 - i.e., the issue affects a contention in this proceeding. This reasoning would eliminate the heavy burden the Commission has imposed on parties seeking to re-litigate issues after the close of the record. 26 Under New Yorks argument, the record could be reopened whenever any information arises regarding the issues raised in a contention. To accept such a standard would be contrary to the well-established principles of finality and the orderly conduct of adjudicatory proceedings.

In other contexts unrelated to reopening, the Commission has equated the significance of an environmental issue with the Marsh standard for supplementing an EIS. 27 In Marsh, the Court held that if an agency discovers new information indicating that a project will affect the quality of the human environment in a significant manner or to a significant extent not already 25 New Yorks Motion at 5.

26 Amergen Energy Company LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 675 (2008).

27 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 29 (2006).

considered, a supplemental EIS must be prepared. 28 For the purposes of NRC practice, the Commission has held that significant information reveal[s] a seriously different picture of the environmental impact of the proposed project. 29 Thus, the Marsh test focuses on the effects or impacts of the project. 30 With respect to SAMAs, new information could be significant if it indicated a given SAMA was not just cost-beneficial 31 but could also provide a serious reduction in the risk of severe accidents. Here, New York has not made any showing that the information it presented concerning the Office of Nuclear Regulatory Researchs use of a one-year decontamination period in a bounding (i.e., worst case) analysis of SFP accidents has any bearing on the Staffs use of shorter time periods in its more realistic analyses of potentially cost-beneficial SAMAs for license renewal. In sum, nowhere does New York (or its declarant) provide any indication of the significance of this information with respect to the SAMA analyses conducted in this license renewal proceeding. Inasmuch as New Yorks Motion fails to show the significance of the SFP Scoping Studys use of the one-year time period, its motion to reopen should be denied.

28 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989) (quotations omitted).

29 Hydro Resources, Inc., CLI-01-04, 53 N.R.C. 31, 52 (2001).

30 A focus on environmental impacts is typical in most formulations of the test. See e.g., South Trenton Residents Against 29 v. Federal Highway Admin., 176 F.3d 658, 663 (3d Cir. 1999) ([T]he key to whether a Supplemental Environmental Impact Statement is necessary is not whether the area has undergone significant change, but whether the proposed roadwork will have a significant impact on the environment in a manner not previously evaluated and considered.); North Idaho Community Action Network v. Dept of Transp., 545 F.3d 1147, 1157 (9th Cir. 2008) (quotations omitted) (finding that an agency must supplement an EIS only if changes, new information, or circumstances may result in significant environmental impacts in a manner not previously evaluated and considered). Although not binding on the NRC, guidance from the Council on Environmental Quality defines significance in terms of effects and impact. 40 C.F.R. § 1508.27.

31 To be meaningful under the NRCs NEPA analysis, the new information must also pertain to cost-beneficial SAMAs. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 7-8 (2002) (noting that in SAMA analyses it will always be possible to come up with some type of mitigation alternative that has not been addressed but whether a SAMA alternative is worthy of more detailed analysis . . . hinges upon whether it may be cost-beneficial).

C. New Yorks Motion Fails to Show that Materially Different Result Would Have Been Likely As discussed above, pursuant to 10 C.F.R. § 2.326(a), a party seeking to reopen the record must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. New York has failed to do so.

New York, relying essentially on attorney argument, claims that if it had the opportunity to present to the Board information that the Staff was using a 1-year TIMEDEC in the SFP Scoping Study, a materially different result would have been likely. This unqualified conclusory opinion does not satisfy the regulatory requirements. Rather, the regulations require as follows:

(b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movants claim that the criteria of paragraph (a) of this section [10 C.F.R. § 2.326] have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart.

Each criteria must be separately addressed, with a specific explanation of why it has been met. 32 With these requirements in mind, it is clear that New Yorks affidavits are insufficient to support its motion. In support of its motion, New York provided two declarations. The first declaration was provided by Mr. Sipos, New Yorks lead counsel in this proceeding. The second 33 declaration was offered by a new participant in this proceeding, Mr. Timothy Mahilrajan.

In his declaration, filed as an attorney in the proceeding rather than as an expert, Mr.

Sipos opines that doubling the Offsite Economic Cost Risk (OECR) would render IP2 SAMA 32 10 C.F.R. § 2.326(b) 33 New Yorks Motion is vague as to the purpose of offering Mr. Mahilrajans declaration and whether he is being offered as an expert in SAMA analysis, the MACCS2 code, or merely as a fact witness reporting his analysis of the Spent Fuel Pool Scoping Studys MACCS2 input and output files.

Without waiving any challenge to his expertise should he be offered for more than a fact witness, the Staff would not object to Mr. Mahilrajan description of the actions he performed when examining the PDF and native files. See Mahilrajan Declaration at ¶ 6 (My review of the various input and output files (native and PDF) )

025 potentially cost-beneficial and cause existing potentially cost-beneficial SAMAs to be more cost beneficial. 34 Mr. Sipos, however, is not qualified to draw any conclusions or render any opinions with respect to the impact of changing inputs used in the MACCS2 code on the whether a particular SAMA would become potentially cost-beneficial or already identified potentially cost-beneficial SAMAs might become more cost beneficial. Mr. Sipos declaration appears to be an attempt to supplement testimony of New Yorks previous expert, Dr. Lemay. 35 This issue was subject of extensive questions during cross-examination by New York. 36 Even after repeated attempts, New York never elicited any testimony from any witness in the proceeding that would support Mr. Sipos present unqualified speculation. In fact, during the hearing as well as in support of its motion to reopen, New York has chosen not to ask its testifying expert, Dr. Lemay, these questions. 37 Unfortunately, Mr. Sipos confuses the impacts to the OECR with a change in the potential benefit. As the Staffs witnesses and Entergys witnesses explained, changes to OECR are not directly applicable to the net benefit because it would be expected that OECR would change for both the unmitigated and mitigated accident and each mitigation measure would interact differently with the increased OECR. 38 Even assuming that Mr. Mahilrajan was qualified to render an opinion on this subject, his Declaration offers no opinion regarding the impact on SAMA cost-benefit analysis from an increase in the OECR. As such, Mr. Sipos 34 Sipos Decl.at ¶ 9.

35 See, e.g., NRC Staffs Reply to State of New Yorks Proposed Findings of Fact and Conclusions of Law for Contention NYS-12/12A/12B/12C (NYS-12C) (Staffs Proposed Rebuttal Findings) at 17-18.

36 Transcript at 2333, 2525-28. See also Staffs Proposed Rebuttal Findings at 17-18.

37 Transcript at 2333, 2525-28. See also Staffs Proposed Rebuttal Findings at 17-18.

38 Transcript at 2333, 2525-28; Staffs Proposed Rebuttal Findings at 17-18.

opinions and conclusion regarding what impact, if any, using 1-year for the TIMEDEC input would have on the SAMA analysis constitute unsupported and unqualified speculation.

Because New Yorks Motion is based on unqualified and unsupported speculation, its motion should be denied.

Mr. Sipos, also, asserts without evidence or proof that:

One month following the conclusion of the evidentiary hearing on Contention NYS-12C, NRC Staff discontinued its 37-year practice of using only 60 days and 120 days as TIMEDEC inputs for accident analyses. Staff did not disclose this to the State (or the Board) in its submissions in this proceeding. 39 Mr. Sipos is mistaken. The issue before the Board was the adequacy of a SAMA analysis for a reactor accident under NEPA, not a research analysis of a spent fuel pool accident caused by an extremely unlikely earthquake, selected to impose accident conditions, so as to support a decision on whether additional regulatory action maybe warranted. 40 In this regard, the Staffs e-mail message informing Mr. Sipos that the MACCS2 files would be made available through ADAMS explicitly cautioned New York regarding these important differences between a SAMA analysis and the newly-modeled spent fuel pool accident. In that e-mail message, the Staff stated that:

The output files represent a site-specific analysis of a highly unlikely spent fuel pool accident at a BWR plant with Mark I containment reference plant. As with other BWR plants with Mark I containments, the spent fuel pool is located outside the containment structure and generally contains several times the source term found in an operating reactor. 41 39 Sipos Decl.at ¶ 19.

40 Affidavit of S. Tina Ghosh in Support of the NRC Staffs Opposition to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Ghosh Decl.) at 2.

41 New York Motion, Attachment 5, at 4, 8 (emphasis added).

Mr. Sipos conclusions altogether - and inexplicably - fail to account for these important differences between the modeled spent fuel pool accident and the Indian Point SAMA analysis conducted under NEPA. As stated in the attached Declaration of Dr. Tina Ghosh, one of the Staffs testifying experts, the differences between the SAMA analysis performed at Indian Point and the analysis conducted for the SFP Scoping Study are stark. 42 Unlike the Indian Point analysis, the scoping study analyzed a single accident scenario rather than the broad spectrum of potential accidents. 43 The scoping study involved an extremely large source term that resulted in a large area of contamination. 44 As a result of modeling essentially a single accident and in light of the large source term and contaminated area, the staff selected a TIMEDEC of 1 year. 45 Similar to Staffs acceptance and Entergys selection of the TIMEDEC in Indian Point, the Staff chose a TIMEDEC to represent the range of accidents being modeled. In the case of the SFP Scoping Study, it was one very low probability seismically induced spent fuel pool accident. 46 For the Indian Point SAMA analysis, it was the full range of accidents at Indian Point including accidents with very small releases to the environment. 47 Thus, the Staffs selection of 1 year is not inconsistent with the TIMEDECs used in Indian Point, and does not constitute a change in practice as New York alleges. 48 42 Ghosh Decl.at 2.

43 Id.

44 Id.

45 Id.

46 Id.

47 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC __ (Nov. 27, 2013), slip op. at 286-87.

48 Ghosh Decl.at 2; see also New Yorks Motion, Attachment 3, at 160.

New York, also, asserts that the information it presents concerning the SFP Scoping Studys use of a one-year decontamination period is at odds with statements by Entergy and the Staff, who represented that the Staff had consistently used 60 days and 120 days for TIMEDEC inputs for light and heavy decontamination. 49 Significantly, however, New York points to no place in the record where the Staff was discussing anything other than a reactor accident. Further, the Board sustained the Staffs objections to efforts by New York to question the Staff witnesses on spent fuel pool accidents. 50 Moreover, as discussed below, the Board had previously excluded spent fuel pool accidents from this proceeding as out-of-scope. 51 Thus, no basis exists for New Yorks suggestion that the Staff somehow misrepresented the facts in this proceeding.

Further, the information presented by New York in support of its motion is redundant or cumulative to other information that was presented to the Board by the parties. Indeed, New Yorks expert during the hearing, Dr. Lemay, provided testimony supporting the use of longer time periods for TIMEDEC. 52 Thus, the Board was fully briefed on the use of alternative longer time periods for TIMEDEC. As the Board found and the Commission cautioned, however, the issue in a SAMA analysis is not whether another input could have been used but whether the input selected was reasonable. 53 Nothing in New Yorks Motion suggests that the TIMEDEC 49 New Yorks Motion at 2.

50 Transcript at 2341.

51 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 163, 180-81 (2008).

52 Pre-filed Written Testimony of Dr. François J Lemay Regarding Consolidated NYS-12-C (NYS-12/12-A/12-B/12-C), Ex. NYS00241, at 52-55; Transcript at 2182, 2203.

53 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13,

__ NRC __ (Nov. 27, 2013), slip op. at 264-65, 283-88; NextEra Energy Seabrook, L.L.C. (Seabrook Stations, Unit 1), CLI-12-05, 75 NRC 301, 323 (2012).

input used in the Indian Point SAMA analysis was not reasonable. Since the information alleged by New York in its motion to reopen is merely redundant or cumulative with respect to the information already presented in the record by New York through its expert, the motion should be denied.

In sum, the regulations impose a heavy burden on a proponent of a motion to re-open. 54 New York chose to forgo obtaining an affidavit by qualified individuals to support its motion, especially with respect to the question of whether a different result would have been likely had the information been considered. New Yorks Motion should therefore be denied.

III. New Yorks Motion Fails to Satisfy the Requirements for Reconsideration Pursuant to 10 C.F.R. §2.323(e), a party seeking reconsideration of an Order or ruling must demonstrate compelling circumstances, such as the existence of a clear and material error in a decision, which could not have been reasonably been anticipated, that renders the decision invalid. New York has made no such showing.

Absent a short discussion of the applicable regulatory requirements governing motions for reconsideration, New Yorks only other reference to its request for reconsideration is its statement that, For the same reasons, the State also submits that it has demonstrated compelling circumstances supporting a motion for leave for reconsideration under 10 C.F.R. § 2.323(e). 55 This ipse dixit assertion fails to meet the regulatory standard established in § 2.323(e). Compelling circumstances warranting reconsideration are materials errors of law or fact made by the Board in its decision. 56 New Yorks two declarations and motion point to no 54 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-3, 75 NRC 132, 139 (2012).

55 New Yorks Motion at 6-7.

56 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400-01 (2006).

such material error in the Boards decision. Since New York failed to identify any material error in the Boards decision, New Yorks Motion should be denied.

IV. The Staff Was Under No Duty to Disclose Documents Related to Issues that Board Determined were Outside the Scope of This Proceeding New Yorks Motion asserts, once again, that the Staff has failed to comply with its disclosure obligations. New York states that 10 C.F.R. § 2.336(b)(2), (3) requires NRC Staff to disclose documents that are relevant to an admitted contention. 57 New York, however, misstates the applicable regulatory requirements governing the Staffs disclosures in this licensing proceeding.

New Yorks Motion cites the regulation in 10 C.F.R. 2.326(b)(2)(3) (2013) as the regulatory requirement governing the Staffs document disclosures in this proceeding. 58 That reference is incorrect; rather, the regulations governing the Staffs disclosure obligations in this proceeding are the regulations in force prior to the recent changes promulgated in the Federal Register. 59 Under the applicable regulations for this proceeding, the Staff is obliged to disclose documents that relate to the Staffs review of the license renewal application. 60 The applicable regulation states:

All documents (including documents that provide support for, or opposition to, the application or proposed action) supporting the 57 New Yorks Motion at 4. New Yorks reliance on 10 C.F.R. § 2.336(b)(2) seems particularly misplaced since it only references correspondence with the applicant or licensee, which is not applicable to any of the documents referenced in New Yorks Motion.

58 New Yorks Motion at 4.

59 The most recent change to the regulations was promulgated in final form on August 3, 2012.

See Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 45,593 (Aug. 3, 2012).

60 10 C.F.R. § 2.336(b)(3) (2012).

NRC staffs review of the application or proposed action that is the subject of the proceeding[.] 61 This obligation does not require the Staff to disclose documents that were developed or utilized in other NRC regulatory activities, such as the scoping study of SFP accidents, conducted with regard to the recent accident at Fukushima spent fuel pools.

Indeed, the required scope of the Staffs document disclosures has already been addressed by this Board at length, in its Order of March 16, 2012, denying a motion to compel that had been filed by New York and Riverkeeper, Inc. 62 In that Order, the Board explained that the scope of the Staffs disclosures is not without limitation. In rejecting the Intervenors claims that the Staff had failed to disclose documents that were unrelated to its review of the Indian Point LRA, the Board held as follows:

Generically applicable documents or documents that the NRC Staff simply did not use in its review might be useful to other parties in this and other proceedings, but that does not bring such documents within the scope of Sections 2.336(b) and 2.1203(b).

Nevertheless, simply because such documents are not legally required to be placed into a proceedings hearing file does not mean that they are hidden from public view. On the contrary, the NRC provides multiple avenues for litigants to access its generically applicable materials and reports, including its website, ADAMS, and its Public Document Room. 63 New Yorks counsel does not explain how any of this information would fit within the scope of documents that Board excluded from disclosure in the Staffs hearing file in this proceeding. New Yorks arguments failed to disclose that it had access to the Draft SFP Scoping Study in June 2013 and that it had contacted the Staff about the draft study and provided comments in August 2013 on the same issues it now seeks to raise to the Board.

61 Id.

62 Order (Granting in Part and Denying in Part State of New York and Riverkeepers Motion to Compel), at 8 (March 16, 2012) (unpublished).

63 Id. at 8-9.

Even though the Staff was under no obligation to provide the MACCS2 code runs for the SFP Scoping Study, it did provide the information when New York requested it in both PDF and a native file format. New York assertions that the Staff failed to disclose the information is simply incorrect. The Staff provided the information through multiple means despite any requirement to release the information.

In sum, contrary to New Yorks arguments, the Staff was not obligated to disclose all documents relevant to its research activities for other purposes, that were unrelated to its review of this license renewal application. Moreover, like the documents addressed by the Board in its previous Order, the documents in question were publicly available to New York through ADAMS and other means.

CONCLUSION As explained above, New Yorks Motion is untimely, does not raise a significant environmental matter, does not demonstrate that a materially different result is likely to result, and does not show any material error of fact or law in the Boards decision (LBP-13-13) resolving contention NYS-12C. New Yorks Motion requesting that the Board reopen the record and reconsider its decision in LBP-13-13 should therefore be denied.

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 December 2013

CERTIFICATION OF COUNSEL Counsel for the Staff certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.

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 December, 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. 50-247/286-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 RESPONSE TO STATE OF NEW YORK MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION ON CONTENTION NYS-12C, AFFIDAVIT OF S. TINA GHOSH IN SUPPORT OF THE NRC STAFFS OPPOSITION TO STATE OF NEW YORK MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION ON CONTENTION NYS-12C, and Attachments A-D, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above- captioned proceeding, this 23rd day of December, 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