ML14080A543
| ML14080A543 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/21/2014 |
| From: | Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, LBP-13-13, RAS 25730 | |
| Download: ML14080A543 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
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March 21, 2014 ENTERGYS REPLY TO NEW YORK STATE ANSWER SUPPORTING CLEARWATERS PETITION FOR REVIEW OF LBP-13-13 I.
INTRODUCTION On March 11, 2014, the State of New York (New York) filed an answer supporting Hudson River Sloop Clearwaters petition for review of the Atomic Safety and Licensing Boards (Board) Partial Initial Decision concerning Contention CW-EC-3A (Environmental Justice).1 New York also expressly opposed the petitions for review of the same Board decision filed by Entergy Nuclear Operations, Inc. (Entergy) and the Nuclear Regulatory Commission (NRC)
Staff.2 New York objects to the Boards findings that: (1) its recent decision and the underlying adjudicatory record supplement the environmental justice (EJ) analysis contained in the NRC Staffs final supplemental environmental impact statement (FSEIS); and (2) the NRC has met its obligations under the National Environmental Policy Act (NEPA) and related NRC regulations.3 Pursuant to 10 C.F.R. § 2.341(b)(3), Entergy hereby replies to New Yorks answer. As explained below, New Yorks claims that the Board has allowed an end-run around NEPA and 1
See State of New York Answer in Support of Hudson River Sloop Clearwater Inc.s Petition for Review of the Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Contention CW-EC-3A (Mar. 11. 2014) (New York Answer); Hudson River Sloop Clearwater, Inc.s Petition for Review (Feb. 14, 2014); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-13-13, 77 NRC __, slip op. (Nov. 27, 2013).
2 See New York Answer at 1.
3 See id. at 1-2.
2 engaged in post-hoc marshaling of evidence are baseless.4 Although the Board found purported deficiencies in the NRC Staffs EJ analysis, it concluded that its decision and the hearing record remedy those perceived deficiencies.5 New York misconstrues governing NRC regulations and settled NEPA case law in its answer, which should be rejected as a result.6 II.
ARGUMENT New York first asserts that the Boards decision contravenes NEPA and NRC regulations implementing that statute.7 To the contrary, 10 C.F.R. § 51.102(c) explicitly states that [w]hen a hearing is held on the proposed action the initial decision of the presiding officer or the final decision of the Commissioners acting as a collegial body will constitute the record of decision.8 Moreover, in applying that regulation in a recent license renewal proceeding, the Commission has held that the adjudicatory record, Board decision, and any Commission decision become effectively part of the environmental review document, such that the [supplemental environmental impact statement (SEIS)] is deemed supplemented by the Boards decision.9 Despite this clear and controlling precedent, New York argues that supplementing a FSEIS via the hearing record is inconsistent with another regulation, 10 C.F.R. § 51.92, which requires 4
Id. at 5, 9.
5 See Indian Point, LBP-13-13, slip op. at 387-88. In their respective petitions for review of LBP-13-13, Entergy and the Staff contend that the Board erred in finding that the EJ analysis is deficient. See Applicants Petition for Review of Board Decisions Regarding Contentions NYS-8 (Electrical Transformers), CW-EC-3A (Environmental Justice), and NYS-35/36 (SAMA Cost Estimates) at 37-42 (Feb. 14, 2014); NRC Staffs Petition for Commission Review of LBP-13-13 in Part (Contentions NYS-8 and CW-EC-3A), and LBP-11-17 (Contention NYS-35/36) at 31-41 (Feb. 14, 2014).
6 In its Answer, New York largely repeats arguments made in its proposed findings of fact and conclusions of law on New Yorks admitted environmental contentions, all of which the Board resolved in favor of Entergy and the NRC Staff. Entergy notes that it fully addressed New Yorks arguments (including its attempts to distinguish controlling case law discussed herein) in its proposed findings and replies to New Yorks proposed findings, and incorporates the relevant discussion by reference here. See, e.g., Entergys Proposed Findings of Fact and Conclusions of Law for Consolidated Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis) at 40-46 (Mar. 22, 2013);
Entergys Reply to New York States Proposed Findings of Fact and Conclusions of Law for Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis Decontamination Costs) at 7-13 (May 3, 2013).
7 See New York Answer at 5-9.
8 10 C.F.R. § 51.102(c). See also Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,586, 46,600 (Aug. 3, 2012) (amending 10 C.F.R. § 52.102(c) to cover all hearings under 10 C.F.R. Part 2, without altering the meaning or intent of the regulation).
9 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39, 61 (2012) (citing La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005)).
3 the Staff to prepare a SEIS when there are substantial changes to the proposed action or new and significant information.10 It claims that Section 51.92 requires a supplemental EJ analysis by the Staff in this case.11 New Yorks logic is flawed.
First, Section 51.92 is not a new regulation. It existed when the Commission authorized supplementation through the hearing recordmost recently when it reaffirmed and clarified 10 C.F.R. § 51.102(c).12 Second, [a] basic tenet of statutory construction, equally applicable to regulatory construction, [is] that a statute should be construed so that effect is given to all its provisions.13 New Yorks claim that Section 51.92 (which applies to all EISs prepared by the NRC Staff) precludes supplementation of an EIS through the hearing record in effect would vitiate the more specific provisions of Section 51.102(c), which governs the resolution of environmental issues following an adjudicatory hearing. New Yorks argument thus cannot be correct.14 New York also claims that the Boards decision represents a departure from NEPA case law.15 However, the Commission has held unequivocally that [t]he adjudicatory record and Board decision become, in effect, part of the FEIS.16 Thus, under [NRCs] longstanding practice, the Staffs review (the FEIS itself) and the adjudicatory record will become part of the environmental record of the decision.17 The Commission and its adjudicatory boards have 10 See New York Answer at 5, 8 (citing 10 C.F.R. § 51.92(a)(2)).
11 See id. at 8-9.
12 See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,586, 46,600.
13 Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-11, 63 NRC 483, 491 (2006).
14 Nor does supplementation of an EIS via the hearing process necessarily mean that there is new and significant information. On the contrary, supplementation of the record through the Section 51.102 process is appropriate when the record of hearing shows no significant new picture of the environmental impacts of the proposed action. See Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 53 (2001).
15 See New York Answer at 9-13.
16 Nuclear Innovation North America LLC (South Texas Project, Units 3 & 4), CLI-11-6, 74 NRC 203, 209 (2011)
(quoting La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 89 (1998)). See also La.
Energy Servs. (Natl Enrichment Facility), CLI-06-15, 63 NRC 687, 707 n.91 (2006).
17 South Texas, CLI-11-6, 74 NRC at 209 (citing Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526 (2008), pet. for review denied on other grounds, San Luis Obispo Mothers for Peace v. NRC, 635 F.3d 1109 (9th Cir. 2011)).
4 followed this process routinely and without exception for decades.18 Under this well-established practice, boards may modify EIS conclusions and, if warranted, remedy an otherwise deficient EIS through an adjudicatory decision.19 Furthermore, the U.S. Courts of Appeals consistently have upheld that practice as lawful.20 In LBP-13-13, the Board explicitly discussed and then followed this established law in resolving CW-EC-3A.21 New York further contends that the Board improperly shifted the burden of NEPA compliance from the NRC Staff to Clearwater.22 That is not so. In fact, the Boards decision reflects its review of the hearing record and its conclusion that, in light of testimony proffered by Clearwaters witnesses, the record now contains evidence of informed public participation and adequate analysis to foster informed decisionmaking.23 The Board did not reallocate any legal burdens. Instead, Clearwater, through its participation in the hearing process, helped the NRC meet NEPAs twin goals of informing the agency and the public about the environmental effects of the project.
18 See, e.g., Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 705-07 (1985), affd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom.
Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989); Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975).
19 See, e.g., S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-09-7, 69 NRC 613, 733 (2009). The Commission also may remedy an otherwise deficient EIS through an adjudicatory decision issued on appeal. See, e.g.,
Dominion Nuclear N. Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 230 (2007).
20 See Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 568 (D.C. Cir. 2007) (holding that supplementing an EIS through the hearing record does not violate the Atomic Energy Act); Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1294 n.5 (D.C. Cir. 1975) (holding that the deemed modified principle did not depart from either the letter or the spirit of NEPA); Ecology Action v. AEC, 492 F.2d 998, 1001-02 (2d Cir. 1974) (holding that omissions from an FEIS can be cured by subsequent consideration of the issue in an agency hearing); New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d 87, 94 (1st Cir. 1978) (having no trouble finding that the NRCs supplementation process satisfies NEPA).
21 LBP-13-13, slip op. at 362-63, 387-88.
22 See New York Answer at 14-15.
23 LBP-13-13, slip op. at 387. In a related vein, New York asserts that the Boards decision and hearing record cannot cure the Staffs purportedly deficient EJ analysis because Clearwaters proffered evidence was merely illustrative.
New York Answer at 16. The Board, however, clearly stated its view that Clearwaters witnesses sufficiently illustrated the potentially disproportionate and adverse impacts on the EJ population surrounding Indian Point in the event of a severe accident. LBP-13-13, slip op. at 387. Moreover, the Board concluded that [the] disparate impact on the EJ population has been analyzed and based on the record of this proceeding, the Commission and the public have been presented with the relevant EJ facts so that an informed decision can be made. Id. at 388 n.2107. Thus, the Board expressly concluded that the factual record was adequate to support resolution of the contention, and that there was no need to return[] this issue to the NRC Staff so that it could amend the FSEIS. Id.
5 Finally, New York suggests that the NRCs discussion of mitigation alternatives is deficient.24 However, NEPA requires only that possible mitigation measures be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.25 Given that the probability-weighted impacts of a severe accident at Indian Point would be SMALL for minority and low-income populations, the FSEIS need not consider emergency planning or other improvements posited by Clearwater as additional mitigation measures for severe accidents.26 NRC adjudicatory hearings are not EIS editing sessions.27 An agency may decline to discuss mitigation measures where, as here, it believes an actions environmental impact will be minor.28 Respectfully submitted, Signed (electronically) by Kathryn M. Sutton Kathryn M. Sutton, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
Dated at Washington, DC this 21st day of March 2014 24 See New York Answer at 15.
25 City of Carmel-by-the-Sea v. U.S. Dept of Transp., 123 F.3d 1142, 1154 (9th Cir. 1997); see also Hydro Res., Inc.
(P.O. Box 777, Crownpoint, NM 87313), CLI-06-29, 64 NRC 417, 426 (2006) (finding FEIS discussion of mitigation measures to be adequate and concluding that Intervenors demand a level of detail not required by NEPA)
(citations omitted).
26 It bears emphasis that the FSEIS already extensively considers severe accident mitigation in the SAMA evaluationan evaluation on which Clearwater did not proffer an admissible contention. In exercising its discretion under NEPA, the Commission has limited the scope of severe accident mitigation analysis under NEPA to focus on SAMAsi.e., plant modifications or operational changes that could reduce the already-low risk of a severe accident. Accordingly, the FSEIS already considers severe accident mitigation to the extent required by NEPA.
27 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 431(2003) (Our busy boards do not sit to parse and fine-tune EISs.).
28 See Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 737 (D.C. Cir. 2000) (upholding agencys decision to decline to adopt mitigation measures to address a problem that it believed might not even develop); Sierra Club v.
Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (finding that where a proposed action is a minimizing measure, the agency does not need to supplement the EIS because a minimizing measures effects on the environment will usually fall within the scope of the original NEPA analysis).
DB1/ 78187603 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
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March 21, 2014 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of the Entergys Reply to New York State Answer Supporting Clearwaters Petition for Review of LBP-13-13 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.