ML14055A534
| ML14055A534 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/24/2014 |
| From: | Bessette P Entergy Nuclear Operations, Entergy Services, Hudson River Sloop Clearwater, Morgan, Morgan, Lewis & Bockius, LLP, NRC/OGC, Springer & Steinberg P C, State of NY, Office of the Attorney General |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25613 | |
| Download: ML14055A534 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) February 24, 2014 APPLICANTS UNOPPOSED MOTION TO HOLD APPELLATE PROCEEDINGS ON CONTENTION NYS-12C IN ABEYANCE AND PARTIES JOINT MOTION SEEKING TIME AND PAGE LIMIT ENLARGEMENTS FOR FILINGS RELATED TO CONTENTIONS NYS-8, NYS-35/36, AND CW-EC-3A Pursuant to 10 C.F.R. §§ 2.323, 2.341(b) and 2.346, the parties to the Indian Point license renewal proceeding hereby file the following consolidated motions. The first motion, which is filed by Entergy Nuclear Operations, Inc. (Entergy) and is unopposed by the other parties, requests that the Commission hold all appellate proceedings with respect to Contention NYS-12C in abeyance pending the Atomic Safety and Licensing Boards (Board) resolution of New York States (the State) December 7, 2013 motion for reconsideration of the Boards merits ruling on that contention.1 The second motion, which is filed jointly by Entergy, the State, the NRC Staff, and Hudson River Sloop Clearwater, Inc. (Clearwater) (collectively, the parties) seeks enlargements of the page limitations and the times for filing answers and replies related to the petitions for review that were filed by the parties on February 14, 2014, with respect to contentions other than NYS-12C.2 As set forth below, good cause exists for the procedural and schedule modifications requested herein.
1 See State of New York Motion to Reopen the Record and For Reconsideration on Contention NYS-12C (Dec.
7, 2013) (NYS Motion for Reconsideration) available at ADAMS Accession No. ML13341A002 (package).
2 Counsel for the other parties has authorized counsel for Entergy to file the joint motion on their behalf.
Although Riverkeeper, Inc. did not file any petitions for review, counsel for Riverkeeper indicated that Riverkeeper does not oppose the procedural requests made in the instant motions.
I. Entergys Unopposed Motion to Hold the Appellate Proceedings on Contention NYS-12C in Abeyance Pending Issuance of the Boards Reconsideration Ruling Entergy respectfully requests that the Commission hold the States petition for review of Contention NYS-12C in abeyance, and defer the time for other parties to file answers thereto, until the Board has ruled on the States pending motion for reconsideration. Good cause exists for this request for the reasons stated below.
A. Background On November 27, 2013, the Board issued a Partial Initial Decision (LBP-13-13), in which it resolved the nine Track 1 safety and environmental contentions on the merits.3 In that decision, the Board resolved Contention NYS-12C in favor of Entergy and the NRC Staff.4 The Board concluded that Entergys severe accident mitigation alternatives (SAMA) analysis is sufficiently site-specific, and that the NRC Staff had complied with NEPA and 10 C.F.R. Part 51 in approving certain contested inputs to Entergys SAMA analysis.5 On December 7, 2013, the State moved the Board to reopen the hearing record on Contention NYS-12C, consider new information presented by the State related to one of the input parameters challenged in NYS-12C, and reconsider its merits decision on that contention in light of that new information.6 Entergy and the NRC Staff submitted answers opposing the States motion on December 23, 2013.7 With leave of the Board,8 the State filed a consolidated 3
See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-13-13, 78 NRC __,
slip op. (Nov. 27, 2013).
4 See id. at 260-93.
5 See id. at 293.
6 See generally NYS Motion for Reconsideration.
7 See Entergys Answer Opposing State of New York Motion to Reopen the Record and For Reconsideration of Contention NYS-12C (Dec. 23, 2013), available at ADAMS Accession No. ML13357A254; NRC Staffs Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec. 23, 2013), available at ADAMS Accession No. ML13357A775 (package).
8 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Granting New Yorks Motion) (Jan. 14, 2014) (unpublished).
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reply to those answers on January 22, 2014.9 The States motion is pending before the Board.
On February 14, 2014, the State filed a petition for review of LBP-13-13, in which it seeks Commission review of the Boards merits decision on NYS-12C.10 B. Basis for Entergys Unopposed Motion As explained above, both a motion for reconsideration and a petition for review concerning Contention NYS-12C are pending concurrently before the Board and the Commission, respectively. 10 C.F.R. § 2.341(b)(6) states: A petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration.
Thus, the Commissions regulations and case law generally defer briefing and consideration of petitions for review until after a Licensing Board has issued a decision on a pending motion for reconsideration.11 Accordingly, Entergy respectfully requests that the Commission hold the States petition for review of Contention NYS-12C (including the other parties answers thereto) in abeyance until the Board rules on the States pending motion for reconsideration. Until the Board rules on the pending reconsideration motion, it would be an injudicious use of the parties and the Commissions resources to prematurely engage in appellate proceedings on Contention NYS-12C.12 In accordance with 10 C.F.R. § 2.323(b), Entergy counsel consulted with the other 9
See State of New Yorks Reply in Support of Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014), available at ADAMS Accession No. ML14022A272 (package).
10 See State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014) (NYS Petition for Review), available at ADAMS Accession No. ML14045A412 (package).
11 See, e.g, NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 306 n.23 (2012)
(Under NRC practice, the filing of this motion [for Board reconsideration] tolled our consideration of the two appeals) (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001) and Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-659, 14 NRC 983, 985 (1981); Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Order of the Secretary at 1 (Jan. 16, 2009) (unpublished) (citing Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-933, 31 NRC 491, 498 (1990); 10 C.F.R. § 2.346(b)(6))
(placing an NRC Staff petition for review in abeyance after the intervenor filed a motion for reconsideration of the same Board decision appealed by the Staff), available at ADAMS Accession No. ML090160426.
12 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-13-03, 77 NRC 51, 54 (2013) (citations omitted) (noting the Commissions strong disfavor of piecemeal review of licensing board rulings during ongoing proceedings.). The Commission has emphasized its disfavor of piecemeal litigation in this 3
parties regarding this matter. The NRC Staff stated that it supports Entergys Motion. The other parties agreed not to oppose Entergys Motion on the condition that Entergy supports (which it does) the filing time and page limit enlargements requested in Section II below.
Although the State agreed not to oppose Entergys motion to hold briefing on NYS-12C in abeyance based on 10 C.F.R. § 2.341(b)(6), it does not necessarily agree with the arguments or characterization of case law contained in the motion. The State further notes that its motion for reconsideration and to reopen the record is directed to one issue raised in NYS-12Cthe decontamination time input value used by Entergy and approved by NRC Staff.
II. Joint Motion of the Parties Seeking Enlargements of Time and Page Limits Pursuant to 10 C.F.R. § 2.323, all parties hereby request that the Commission grant an enlargement of the page limitation and time for answers and replies to petitions for review of the Boards rulings on all contentions other than NYS-12C, as filed on February 14, 2014.
A. Background On February 14, 2014, the parties filed petitions for review of LBP-13-13 and several earlier Board rulings. In accordance with 10 C.F.R. § 2.341(b)(3), each answer supporting or opposing Commission review must be filed within 25 days after a petition for review and is limited to 25 pages. Also, under 10 C.F.R. § 2.341(b)(3), each reply brief is due within 10 days of the answer and is limited to 5 pages.
B. Basis for the Parties Joint Motion Earlier in this proceeding, the Commission approved an enlargement of time and page limits for the petitions for review. On February 14, 2014, Entergy, the NRC Staff, the State, and Clearwater filed petitions for review of LBP-13-13; those petitions were lengthy and complex.
The NRC Staff, Entergy, and the State each filed 60-page petitions, and Clearwater filed a 14-proceeding. See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-11-14, 74 NRC 801, 811 (2011).
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page petition. Given the breadth of issues implicated in the parties filings on NYS-8, CW-EC-3A, and NYS-35/36, the parties respectfully submit that good cause exists for the requested enlargements. Specifically, the parties have consulted pursuant to 10 C.F.R. § 2.323(b), and submit the following jointly agreed upon requests for extensions of time and pagination for Commission approval:
- The State would submit a combined answer to the NRC Staffs and Entergys petitions for review concerning contentions NYS-8 and NYS-35/36 on March 25, 2014, not to exceed 65 pages.13
- Clearwater would submit a combined answer to the NRC Staffs and Entergys petitions for review concerning contention CW-EC-3A on March 25, 2014, not to exceed 50 pages.
- Entergy and the NRC Staff would submit their answers to Clearwaters petition for review concerning contention CW-EC-3A on March 25, 2014; each of those answers would not exceed 25 pages. Any replies to such answers would be filed on April 9, 2014, not to exceed 5 pages.
- The NRC Staff and Entergy would submit separate replies to the aforementioned State and Clearwater answers (i.e., Entergy and the NRC Staff would each file two replies) on April 9, 2014, not to exceed 10 pages each.14 III. Conclusion Entergy requests that the Commission place the States February 14, 2014 petition for review of the Boards merits ruling on Contention NYS-12C in abeyance pending the Boards resolution of the States motion for reconsideration of that same ruling (and further direction from the Commission, as appropriate). Additionally, the parties jointly request that the Commission grant the time and page limit enlargements proposed above. For the reasons stated 13 Entergy and the NRC Staff reserve the right under 10 CFR § 2.341(b)(3) to file answers to each other respective petitions for review, as well as the right to seek associated time or page limit enlargements, if necessary, via a separate motion.
14 Given Entergys unopposed request to hold the appellate proceedings on NYS-12C in abeyance, the parties are not seeking any further schedule or page limit modifications in connection with future NYS-12C filings at this time, but reserve the right to do so at an appropriate time, if necessary.
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above, good cause exists for the proposed schedule and procedural modifications, which the Secretary of the Commission may approve pursuant to her authority under 10 C.F.R. § 2.346.
Respectfully submitted, Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5796 E-mail: pbessette@morganlewis.com 6
Executed in accord with 10 C.F.R. § 2.304(d)
Kathryn M. Sutton, Esq. John J. Sipos, Esq.
Paul M. Bessette, Esq. Office of the Attorney General MORGAN, LEWIS & BOCKIUS LLP of the State of New York 1111 Pennsylvania Avenue, N.W. The Capitol, State Street Washington, D.C. 20004 Albany, New York 12224 Phone: (202) 739-5738 E-mail: john.sipos@ag.ny.gov E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com Janice A. Dean, Esq.
Kathryn DeLuca, Esq.
William B. Glew, Jr., Esq. Office of the Attorney General William C. Dennis, Esq. of the State of New York Entergy Services, Inc. 120 Broadway, 26th Floor 440 Hamilton Avenue New York, New York 10271 White Plains, NY 10601 E-mail: janice.dean@ag.ny.gov Phone: (914) 272-3202 E-mail: kathryn.liberatore@ag.ny.gov E-mail: wglew@entergy.com E-mail: wdennis@entergy.com Counsel for Entergy Nuclear Operations, Inc. Counsel for the State of New York Andrew B. Reid, Esq. Sherwin E. Turk, Esq.
Springer & Steinberg, P.C. U.S. Nuclear Regulatory Commission 1600 Broadway, Suite 1200 Office of the General Counsel Denver, Colorado 80202 Mail Stop O-15D21 E-mail: areid@springersteinberg.com Washington, DC 20555-0001 E-mail: sherwin.turk@nrc.gov Counsel for Hudson River Sloop Clearwater Counsel for the NRC Staff Dated at Washington, DC this 24th day of February 2014 7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) February 24, 2014 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of the Applicants Unopposed Motion to Hold the Appellate Proceedings on Contention NYS-12C in Abeyance and Parties Joint Motion Seeking Time and Page Limit Enlargements for Filings Related to Contentions NYS-8, NYS-35/36, and CW-EC-3A were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 77962909