ML14080A592

Entergy'S Opposition to Clearwater'S Petition to Suspend License Renewal Decision Pending Completion of Rulemaking

ML14080A592
Person / Time
Site:	Indian Point
Issue date:	03/21/2014
From:	Bessette P, Dennis W, Glew W, O'Neill M, 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, RAS 25731
Download: ML14080A592 (29)

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) )

) March 21, 2014 ENTERGYS OPPOSITION TO CLEARWATERS PETITION TO SUSPEND LICENSE RENEWAL DECISION PENDING COMPLETION OF RULEMAKING William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, N.W.

White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3202 Phone: (202) 739-5796 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................................1 II. BACKGROUND ..................................................................................................................2 A. Current Status of the Indian Point License Renewal Proceeding .............................2 B. NRC Staffs Evaluation of Expedited Transfer of Spent Fuel to Dry Cask Storage ......................................................................................................................3 C. The Petition for Rulemaking .....................................................................................5 D. The Petition to Suspend NRC Licensing Decisions..................................................7 III. THE SUSPENSION PETITION SHOULD BE REJECTED ...............................................7 A. The Suspension Petition Does Not Provide an Adequate Basis to Suspend the NRCs License Renewal Decision ......................................................................7

1. Moving Forward with the Renewed Licenses Will Not Jeopardize Public Health and Safety ...............................................................................8

2. Suspending the Indian Point License Renewal Decision Would Frustrate Fair and Efficient Decisionmaking ................................................9

3. Moving Forward with the Renewed Licenses Will Not Hamper Implementation of Any Potential Rule or Policy Changes .........................12 B. The Suspension Petition Does Not Identify New and Significant Information..............................................................................................................13

1. NEPA Imposes a High Standard With Respect to the Need for Supplemental Environmental Analyses or Documentation ........................13

2. The Suspension Petition and Rulemaking Petition Have Not Identified Any New and Significant Information Related to Indian Point License Renewal ................................................................................15

3. The Information in the Expedited Fuel Transfer Proceeding Is Not New and Significant as Evaluated Under NEPA ........................................15

a. Probability of a Spent Fuel Pool Fire ..............................................16

b. Consequences of a Spent Fuel Pool Fire .........................................19

c. Environmental Impacts of a Spent Fuel Pool Fire ..........................20

d. Environmental Impacts of a Spent Fuel Pool Fire Versus a Reactor Accident .............................................................................21

e. Spent Fuel Pool Mitigation Measures .............................................23 C. The Suspension Petition Also Should Be Rejected As Procedurally Deficient ..................................................................................................................24 IV. CONCLUSION ...................................................................................................................25

-i-

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) )

) March 21, 2014 ENTERGYS OPPOSITION TO CLEARWATERS PETITION TO SUSPEND LICENSE RENEWAL DECISION PENDING COMPLETION OF RULEMAKING I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(c) and the Secretary of the Nuclear Regulatory Commissions (NRC or Commission) March 4, 2014 Order, Entergy Nuclear Operations, Inc.

(Entergy) files this Answer opposing the Suspension Petition filed by Hudson River Sloop Clearwater, Inc. (Clearwater) on February 27, 2014.1 Clearwater requests that the Commission suspend the issuance of the renewed operating licenses for Indian Point Nuclear Generating Units 2 and 3 (IP2 and IP3) pending the NRCs completion of a requested rulemaking proceeding concerning the environmental impacts of accidents involving fires in high-density spent fuel pools (SFP) and related mitigation measures.2 Clearwater contends that such extraordinary action is necessary for compliance with the National Environmental Policy Acts (NEPA) 1 See Petition to Suspend Reactor Licensing Decisions and Reactor Re-Licensing Decisions Pending Completion of Rulemaking Proceeding Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel and Mitigation Measures (Feb. 27, 2014) (Suspension Petition), available at ADAMS Accession No. ML14058A931.

2 See Environmental Organizations Petition to Consider New and Significant Information Regarding Environmental Impacts of High-Density Spent Fuel Storage and Mitigation Alternatives in Licensing Proceedings for New Reactors and License Renewal Proceedings for Existing Reactors and Duly Modify All NRC Regulations Regarding Environmental Impacts of Spent Fuel Storage During Reactor Operation (Feb. 18, 2014) (Rulemaking Petition)

(attached to Suspension Petition).

requirement that new and significant information be incorporated into reactor licensing decisions before those decisions are finalized.3 As explained below, the Suspension Petition should be denied in its entirety. First, the Suspension Petition seeks relief that is premature, unwarranted, and contrary to Commission precedent that disfavors holding adjudicatory proceedings and licensing decisions in abeyance.

Second, Clearwater fails to support its core claim; i.e., that new and significant information on the environmental impacts of high-density SFP storage warrants supplemental rulemaking by the NRC and a concomitant suspension of NRC licensing decisions. To the contrary, the environmental impacts of SFP fires have long been well understood and have been determined to be small. The NRC Staff Consequence Study4 relied upon by Clearwater provides information that is consistent with previous studies; thus, no further NEPA evaluation or rulemaking is warranted. Finally, the Suspension Petition is procedurally deficient because it is untimely.

II. BACKGROUND A. Current Status of the Indian Point License Renewal Proceeding This proceeding concerns the Indian Point license renewal application (LRA), which Entergy submitted on April 23, 2007. The NRC published a notice of acceptance for docketing and notice of opportunity for hearing on the LRA on August 1, 2007.5 Various petitioners, including Clearwater, filed intervention petitions. On July 31, 2008, the Atomic Safety and 3

Suspension Petition at 4.

4 See Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (Oct. 2013) (Consequence Study) (attached to SECY-13-0112 (Oct. 9, 2013)), available at ADAMS Accession No. ML13256A334 (package); Suspension Petition at 3-5, 13.

5 Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134 (Aug. 1, 2007).

2

Licensing Board (Board) admitted Clearwater and others as parties to this adjudicatory proceeding, and a number of contentions for further proceedings.6 The Board held evidentiary hearings on nine Track 1 contentions from October through December 2012. On November 27, 2013, the Board issued a Partial Initial Decision (LBP-13-13),

in which it resolved all nine Track 1 contentions.7 The Boards rulings on several of those contentions are subject to pending appeals filed by the parties in February 2014.8 There are four remaining Track 2 contentions, for which hearings are not yet scheduled.9 B. NRC Staffs Evaluation of Expedited Transfer of Spent Fuel to Dry Cask Storage Clearwaters Suspension Petition stems from its belief that the NRC Staff has identified new and significant information as part of ongoing post-Fukushima review activities related to SFP storage.10 Specifically, in a May 7, 2013 memorandum to the Commission, the Staff outlined a plan for evaluating whether the NRC should undertake a regulatory action to require the expedited transfer of spent fuel from pools to dry cask storage containers at U.S. nuclear power plants.11 As part of that effort, the NRC Staff performed the aforementioned Consequence Study 6

See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 86-89, 196-201 (2008).

7 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-13-13, 78 NRC ___, slip op.

(Nov. 27, 2013).

8 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) (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) (Feb. 14, 2014); 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); Hudson River Sloop Clearwater, Inc.

Petition for Review (Feb. 14, 2014).

9 See NRC Staffs 25th Status Report in Response to the Atomic Safety and Licensing Boards Order of February 16, 2012 at 1-3 (Mar. 4, 2014). Several proposed new contentions related to waste confidence are being held in abeyance pending further order. See id. at 3-4 (citing Licensing Board Order (Holding Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4 in Abeyance) (Aug. 8, 2012) (unpublished)).

10 The Suspension Petition refers to these NRC activities collectively as the NRCs Expedited Spent Fuel Pool Transfer Proceeding. Suspension Petition at 3.

11 Memorandum from Michael R. Johnson, Deputy Executive Director for Reactors and Preparedness Programs, NRC, to the Commissioner, Updated Schedule and Plans for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (May 7, 2013), available at ADAMS Accession No. ML13105A122.

3

to examine the risks and consequences of postulated SFP accidents. The Consequence Study (one of many SFP-related studies performed by the NRC over the years) is the principal focus of Clearwaters Suspension Petition.

On June 24, 2013, the NRC Staff published a draft version of its Consequence Study for public comment, which was followed by the Staffs publication of the final version of the Consequence Study in October 2013.12 The Consequence Study is intended to help the NRC Staff evaluate whether the accelerated transfer of spent fuel from the SFP to dry cask storage significantly reduces risks to public health and safety.13 The study provides consequence estimates for a hypothetical SFP accident initiated by a low-likelihood seismic event at a reference plant (Peach Bottom) for both a fully loaded (high-density) and minimally loaded (low-density)

SFP.14 The postulated accident scenario involved a failure of the SFP liner, drainage of the pool, and initiation of a fire involving the Zircaloy cladding of the spent fuel.15 The NRC Staff concluded that SFPs are likely to withstand severe earthquakes without leaking.16 Further, the regulatory analysis included in the study indicates that expediting movement of spent fuel from the pool does not provide a cost-justified substantial safety enhancement (i.e., backfit) for the reference plant.17 Based on the Consequence Study and 12 See Draft Report; Request for Comment, Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (June 2013), available at ADAMS Accession No.

ML13133A132; Consequence Study (attached to SECY-13-0112 (Oct. 9, 2013)). The NRC sought comments on the draft report via a notice published in the Federal Register. See Consequence Study of a Beyond-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor, 78 Fed. Reg. 39,781 (July 2, 2013).

13 See Consequence Study at vi. The NRC plans to use the Consequence Study results to inform its broader regulatory analysis of the SFPs at all U.S. operating nuclear reactors as part of its Japan Lessons-learned Tier 3 plan. Id. at v.

14 See id. at v.

15 See id. at D-16.

16 See id. at v.

17 See id.

4

previous studies,18 the NRC Staff reiterated its conclusion that high-density storage of spent fuel in pools ensures adequate protection of public health and safety.19 After the Consequence Study, the NRC Staff submitted a memorandum (COMSECY 0030) to the Commission, setting forth the Staffs overall evaluation and recommendation related to expedited transfer of spent fuel.20 In that memorandum, the Staff concluded that the expedited transfer of spent fuel to dry cask storage would provide only a minor or limited safety benefit . . .,

and that its expected implementation costs would not be warranted.21 The Staff recommended no further generic assessments be pursued related to possible regulatory actions to require the expedited transfer of spent fuel to dry cask storage, and that this Tier 3 Japan lessons-learned activity be closed.22 The Commissions response to COMSECY-13-0030 is pending.

C. The Petition for Rulemaking On February 18, 2014, Clearwater and numerous other groups submitted their Rulemaking Petition to the NRC.23 The Rulemaking Petition claims that following the Fukushima accident, the NRC Staff generated new and significant information regarding purportedly adverse environmental impacts of high-density SFP storage and alternatives for avoiding those impacts.24 It asserts that the NRC Staff has revealed for the first time that: (1) as many as 9,400 square miles could be rendered uninhabitable by a relatively small SFP fire, displacing over 4 million people 18 See, e.g., NUREG-1353, Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools (Apr. 1989); NUREG/CR-6451, A Safety and Regulatory Assessment of Generic BWR and PWR Permanently Shutdown Nuclear Power Plants (Apr. 1997); NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants (Feb. 2001).

19 See Consequence Study at v.

20 See COMSECY-13-0030, Staff Evaluation and Recommendation for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (Nov. 12, 2013) (COMSECY-13-0030).

21 See id. at 1-2.

22 See id. at 10.

23 See generally Rulemaking Petition.

24 Id. at 1-2.

5

for decades; (2) reducing the density of spent fuel storage in reactor pools may be a cost-beneficial mitigation alternative; and (3) the likelihood of SFP fires could be affected by reactor accidents.25 The Rulemaking Petition cites the Consequence Study and its associated Regulatory Analysis as the sources of that allegedly new and significant information.26 The Rulemaking Petition suggests that this information is new because it has not been previously addressed by the NRC Staff in any environmental impact statement (EIS) for reactor licensing, the generic EIS (GEIS) for license renewal, or environmental assessment for standardized design certification.27 It further states that the information is significant because it undermines the NRCs conclusion in previous environmental studies for reactor licensing and license renewal that the impacts of spent fuel storage during reactor operation are small.28 The Rulemaking Petition claims that this purportedly new and significant information must be considered now under NEPA, and requests that the Commission: (1) modify NRCs regulations that make or rely on findings regarding the environmental impacts of spent fuel storage during reactor operation; (2) suspend the effectiveness of NRC regulations related to the environmental impacts of spent fuel storage during the license renewal term; (3) re-publish for public comment the NRCs GEIS for license renewal and the EISs for all new reactors; and (4) suspend all new reactor licensing decisions and license renewal decisions pending completion of the rulemaking.29 25 See id. at 2-3.

26 See id. at 2-3 nn. 5, 7, & 9 (citing Consequence Study at 29, 162 (Table 33) & 232 (Table 62); Regulatory Analysis for Japan Lessons-Learned Tier 3 Issue on Expedited Transfer of Spent Fuel (Attachment 1 to COMSECY-13-0013) at 7, 46-51 (Nov. 12, 2013) (Regulatory Analysis), available at ADAMS Accession No. ML13273A628).

27 Rulemaking Petition at 2-3, 27.

28 Id.

29 See id. at 4-5, 35-36. The Suspension Petition (sponsored by Clearwater in this proceeding) is narrower in scope, insofar as it is confined to a limited number of pending licensing and license renewal adjudications. This was confirmed by the Secretary of the Commissions March 4, 2014 Order, which likewise only applied to a limited number of proceedings.

6

D. The Petition to Suspend NRC Licensing Decisions On February 27, 2014, Clearwater and various other adjudicatory participants filed the instant Suspension Petition pursuant to 10 C.F.R. § 2.802(d), seeking to suspend certain final NRC licensing decisions until the NRC Staff addresses the allegedly new and significant information identified in the February 18, 2014 Rulemaking Petition (as summarized above). Clearwater cites, and incorporates by reference, the Rulemaking Petition as support for the Suspension Petition.30 Thus, the Suspension Petition is fundamentally generic, and does not address any specific design or mitigative features for Indian Point.

III. THE SUSPENSION PETITION SHOULD BE REJECTED A. The Suspension Petition Does Not Provide an Adequate Basis to Suspend the NRCs License Renewal Decision The Petition should be rejected for failure to include adequate bases and justification for suspension of the Indian Point license renewal decision. The Commission considers the suspension of licensing proceedings or decisions to be a drastic action that is not warranted absent immediate threats to public health and safety, or other compelling reason.31 As discussed in Callaway, the Commission applies three criteria in determining whether to suspend an adjudication or licensing decision: (1) whether moving forward will jeopardize the public health and safety; (2) whether continuing the review process will prove an obstacle to fair and efficient decisionmaking; and (3) whether going forward will prevent appropriate implementation of any pertinent rule or policy changes that might emerge from [the NRCs] . . . ongoing evaluation.32 30 See Suspension Petition at 3.

31 Union Elec. Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 158 (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008)) (internal quotation marks omitted).

32 Id. at 158-59 (quoting Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 380 (2001)).

7

As demonstrated below, the Suspension Petition satisfies none of the three criteria for suspension of a licensing action.33

1. Moving Forward with the Renewed Licenses Will Not Jeopardize Public Health and Safety Although Clearwater acknowledges the three-pronged Callaway test for evaluating suspension requests,34 nowhere in its Suspension Petition does it explicitly address the first criterion. Instead, Clearwater asserts only that suspension of reactor licensing and re-licensing decisions is necessary for compliance with NEPAs requirement that new and significant information be incorporated into reactor licensing decisions before those decisions are finalized.35 Accordingly, it does not challenge the adequacy of the NRCs safety regulations, or the NRCs ability to ensure adequate protection of the public health and safety.36 Clearwater thus fails to show that issuance of the renewed licenses before resolution of the Rulemaking Petition poses an imminent risk to public health and safety.37 Further, as discussed below, Clearwater has not identified any new and significant information that requires supplemental agency analysis under NEPA. Therefore, Clearwater has presented no information or argument to suggest that the first Callaway criterion is met, or that suspension of the NRCs license renewal decision is warranted.

33 NRC regulations also address stays in 10 C.F.R. §§ 2.342 and 2.1213, but those regulations are not applicable in this situation. Even if these regulations did apply, Clearwater has not addressed the factors for a stay. For example, Clearwater had not demonstrated that it will prevail in this proceeding or that it will be irreparably injured if the license renewal decisions were to move forward.

34 See Suspension Petition at 9.

35 Id. at 3-4 (emphasis added).

36 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plants, Units 3 & 4), CLI-01-17, 54 NRC 3, 13 (2001)

(citing Limerick Ecology Action v. NRC, 869 F.2d 719, 729-31 (3d Cir. 1989)) (The AEA and NEPA contemplate separate NRC reviews of proposed licensing actions.) (emphasis in original).

37 Callaway, CLI-11-5, 74 NRC at 163, 166.

8

2. Suspending the Indian Point License Renewal Decision Would Frustrate Fair and Efficient Decisionmaking With regard to the second Callaway criterion, Clearwater avers that because the well-established legal standard for new and significant information is easily satisfied by NRCs own documents , to refuse to stay licensing decisions that are affected by that information would frustrate fair and effective decisionmaking under NEPA.38 Even assuming that the Suspension Petition identified new and significant information (which it does not), it still fails to demonstrate that a stay of the NRCs license renewal decision is warranted in these circumstances.

The suspension of licensing actions runs counter to the Commissions long-standing commitment to efficient and expeditious processing of applications and associated hearings.39 The unnecessary postponement of licensing adjudications and decisions contravenes the Commissions interest in regulatory finality and sound case management.40 Here, the NRC has not had an opportunity to review the Rulemaking Petition to assess its merit and the potential need for rulemaking. As the Commission has ruled under similar circumstances, proceedings should not be suspended absent this threshold determination.41 Indeed, staying licensing actions in these circumstances would frustratenot advancethe Commissions objective of promoting expeditious decision-making and regulatory certainty.42 38 Suspension Petition at 10.

39 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18, 24 (1998).

40 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 390-91 (2001) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 24); Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 39 (2001)).

41 See, e.g., Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC 1, 5 (2011) (quoting Private Fuel Storage, CLI-01-26, 54 NRC at 383) (stating that Petitioners concerns are untested and remain to be examined after receipt of comments on the rulemaking petition, and that holding up these proceedings is not necessary to ensure that the public will realize the full benefit of our ongoing regulatory review of Petitioners concerns).

42 See id. at 4 (Absent extraordinary cause, however, seldom do we interrupt licensing reviews or our adjudications particularly by an indefinite or very lengthy stay as contemplated hereon the mere possibility of change. Otherwise, the licensing process would face endless gridlock.).

9

Here, the drastic relief sought by Clearwatersuspension of the Commissions license renewal decisionis premature given the current status of both the Rulemaking Petition and the Indian Point proceeding. Although NRC regulations in 10 C.F.R. § 2.802(d) permit the concurrent filing of rulemaking petitions and suspension requests, such suspension requests are not, ipso facto, warranted. Indeed, Clearwater acknowledges that [s]ome NRC cases have suggested that a motion under 10 C.F.R. § 2.802 should not be submitted until the conclusion of the rulemaking proceeding,43 thereby allowing the rulemaking petitioners concerns to be scrutinized by public comment and agency review.44 The Rulemaking Petition on which Clearwater relies has not been docketed by the NRC, much less circulated for public comment.

Furthermore, in CLI-07-3, the Commission expressly stated that suspension requests are premature when no final licensing decision is imminent:

The [petitioners] rulemaking petition [] asked the NRC to withhold final decisions in the Vermont Yankee and Pilgrim license renewal proceedings until the rulemaking petition is resolved. But final decisions in those proceedings are not expected for another year or more. Those proceedings involve many issues unrelated to the

[petitioners] rulemaking petition. It is therefore premature to consider suspending proceedings or delaying final decisions.45 The Commissions conclusion in CLI-07-3 applies equally to this case. Given ongoing adjudicatory activities that include additional hearings and appeals, the Commissions final license renewal decision for Indian Point is not expected for some time. Thus, as in the Vermont Yankee and Pilgrim license renewal proceedings, it is premature to consider suspending the proceeding or delaying the final license renewal decision.

43 Suspension Petition at 14 (citing Petition for Rulemaking to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC at 4-5)

(emphasis added).

44 Petition to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC at 5.

45 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station; Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 22 n.37 (2007), aff'd, Mass. v. United States, 522 F.3d 115 (1st Cir. 2008) (emphasis added).

10

In the multi-docket Callaway proceeding, the Commission similarly rejected various petitioners requests to suspend licensing proceedings pending disposition of their post-Fukushima rulemaking petitions.46 Citing its ruling in Vermont Yankee and Pilgrim, and to its finding that none of the implicated license applications was on the verge of being granted, the Commission ruled that the petitioners request to suspend was premature.47 In Callaway, the Commission also emphasized the ongoing nature of its post-Fukushima review. It noted that until we have a complete understanding of the Fukushima events, and have provided direction as to potential changes to regulatory requirements, we will not know whether, or the extent to which, an individual NEPA review might be impacted.48 The Commission further explained that if changes to its current environmental assessment rules are warranted, then it can revisit whether an individual licensing review or adjudication should be held in abeyance pending the outcome of a relevant rulemaking.49 So too is the case here, where Clearwaters rulemaking and suspension petitionslike the petitions at issue in Callawaystem from the NRCs ongoing post-Fukushima evaluations and seek to suspend the effectiveness of NRC regulations related to the environmental impacts of spent fuel storage.50 For the reasons stated above, the Commissions rulings in the Vermont Yankee/Pilgrim and Callaway proceedings control here and compel denial of the Suspension Petition.

46 Callaway, CLI-11-5, 74 NRC at 173-75. Not unlike the instant Rulemaking Petitioners, the petitioners in Callaway sought to rescind regulations in 10 C.F.R. Part 51 that draw generic conclusions about the environmental impacts of severe reactor and spent fuel pool accidents and that preclude consideration of those issues in individual licensing proceedings. Id. at 173.

47 Id. at 174 (citing Vt. Yankee, CLI-07-3, 65 NRC at 22 n.37).

48 Id.

49 Id. (emphasis added).

50 Suspension Petition at 8.

11

3. Moving Forward with the Renewed Licenses Will Not Hamper Implementation of Any Potential Rule or Policy Changes Clearwater also fails to explain why suspension of the Indian Point license renewal decision is necessary under the third Callaway criterion. Issuance of the IP2 and IP3 renewed operating licenses is not imminent for the reasons stated above.51 Thus, there is time for the NRC Staff to review the Rulemaking Petition, evaluate its merits, and determine whether rulemaking is warrantedall without the need to suspend the final licensing decision at this time.52 As Clearwater fully acknowledges, the Consequence Study is part of the NRCs continuing post-Fukushima reviews.53 As explained in Callaway, the NRC has well-established processes for imposing any new requirements necessary to protect public health and safety and the common defense and security.54 Further, with respect to its post-Fukushima NEPA review obligations, the Commission has noted that [i]f the NRC determines that changes to its current environmental assessment rules are warranted, then [it] can revisit whether an individual licensing review or adjudication should be held in abeyance pending the outcome of a relevant rulemaking.55 Therefore, [m]oving forward with [its] decisions and proceedings will have no effect on the NRCs ability to implement necessary rule or policy changes that might come out of [its] review of the Fukushima Daiichi events.56 51 In this regard, the Commission already suspended licensing decisions when it stated that it will not issue licenses dependent on the Waste Confidence Decision or the Temporary Storage Rule until the D.C. Circuits remand in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012), has been appropriately addressed. See Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012)).

52 See Callaway, CLI-11-5, 74 NRC at 174-75; Petition to Amend 10 C.F.R. § 54.17(c), CLI-11-1, 73 NRC at 5; AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, 67 NRC 396, 399-400 (2008); Pac.

Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-03-4, 57 NRC 273, 277 (2003).

53 See Suspension Petition at 13.

54 See Callaway, CLI-11-5, 74 NRC at 166.

55 See id. at 174.

56 Id. at 166. See also Diablo Canyon, CLI-03-4, 57 NRC at 277 (As every license the Commission issues is subject to the possibility of additional requirements, moving forward with the current licensing proceeding does not foreclose implementation of any new rules originating from the pending rulemaking petition.) (quoting Pac. Gas & Elec. Co.

12

For all of the above reasons, the Suspension Petition fails to demonstrate that staying the Indian Point license renewal decision pending the NRCs disposition of the Rulemaking Petition is necessary to protect the public health and safety, to facilitate fair and efficient decisionmaking, or to ensure appropriate implementation of any pertinent rule or policy changes. Accordingly, the Suspension Petition can be rejected on this ground alone.

B. The Suspension Petition Does Not Identify New and Significant Information Contrary to Clearwaters claims, the Rulemaking Petition does not identify any new and significant information that would affect the site-specific environmental review for Indian Point license renewal or the NRCs generic determinations regarding the environmental impacts of spent fuel storage. Thus, there is no factual or legal foundation for Clearwaters claim that suspension of this proceeding is necessary to ensure that the NRC Staff supplements its environmental review to account for the purportedly new and significant information.57

1. NEPA Imposes a High Standard With Respect to the Need for Supplemental Environmental Analyses or Documentation Under NEPA and NRC regulations, the NRC Staff is obligated to undertake a supplemental EIS only when it is presented with substantial changes in the proposed action that are relevant to environmental concerns or new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts after the EIS is assembled.58 The U.S. Supreme Court has held that an agency need not supplement an EIS every time new information comes to light after the EIS is finalized.59 In determining whether (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 240 (2002)) (emphasis in original).

57 See Suspension Petition at 4.

58 See 10 C.F.R. §§ 51.92(a)(1)-(2), 51.72(a)(1)-(2).

59 See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373 (1989) (stating that a requirement to supplement an EIS every time new information comes to light would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made).

13

new information requires supplementation, courts apply a rule of reason that turns on the value of the new information to the still pending decisionmaking process.60 Specifically, if there remains major federal action to occur, and if the new information is sufficient to show that the remaining action will affec[t] the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.61 The Commission has looked to federal jurisprudence in construing its obligation to prepare supplemental environmental analyses in response to potentially new and significant information. It has summarized the applicable standard as follows: A supplemental EIS is needed where new information raises new concerns of sufficient gravity such that another, formal in-depth look at the environmental consequences of the proposed action is necessary. The new information must paint a seriously different picture of the environmental landscape.62 Thus, not all new information that might emerge following issuance of an EIS requires a supplement to the impacts analysisonly that which significantly alters the findings and conclusions in the EIS.63 It is not enough that the information may be worthy of further inquiry or may be considered important research.64 Similarly, a petitioners mere pointing to a piece of 60 Id. at 374.

61 Id. (emphasis added).

62 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 28 (2006) (emphasis in original) (quoting Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 1984) (holding that new information regarding biological effects of extremely low frequency electromagnetic radiation was not of such significance as to find that the Navy was arbitrary or capricious in not responding with a supplemental environmental impact statement)); Friends of the River et al. v. FERC, 720 F.2d 93, 109 (D.C. Cir. 1983) (holding that a decision to grant a license for the construction of a hydroelectric power plant would not have to be continually reassessed every time new forecasts for power consumption came to light if such forecasts were speculative and subject to frequent changes, because review and reassessment of [a licensing] decision, absent sufficient reason, should not continue indefinitely).

63 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-29, 64 NRC 417, 419, 421-22 (2006).

64 Wisconsin, 745 F.2d at 420.

14

information and speculating that the results of the environmental risk analysis may be different is insufficient to trigger the need for supplemental NEPA analyses or documentation.65

2. The Suspension Petition and Rulemaking Petition Have Not Identified Any New and Significant Information Related to Indian Point License Renewal As a threshold matter, the Suspension Petition and the Rulemaking Petition have not identified any new and significant information related to Indian Point license renewal. Neither of the petitions addresses the environmental documents for IP2 and IP3 (e.g., the Final Supplemental Environmental Impact Statement (FSEIS)) to show how those documents are affected, and why the information identified by Clearwater is significant. In particular, Clearwater has not shown that the Expedited Fuel Transfer Proceeding raises environmental impacts that differ significantly from the impacts that the NRC has already reviewed and addressed in the FSEIS for Indian Point license renewal.66 Notably, Clearwater does not even allege that the type of event evaluated in the Consequence Study (a low-likelihood seismic event leading to draining of the SFP) is even possible at Indian Point. Instead, it references general information without applying it to this specific licensing action.67

3. The Information in the Expedited Fuel Transfer Proceeding Is Not New and Significant as Evaluated Under NEPA The Suspension Petition does not meet the high standard imposed by NEPA and related case law regarding the need for supplemental environmental analyses or documentation. It relies almost exclusively on information in the NRC Staffs Consequence Study. As the Suspension 65 Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 199 (D.C. Cir. 2013) (quoting Mass. v. NRC, 708 F.3d 63, 76-77 (1st Cir. 2013)) (quotation marks omitted).

66 S. Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), CLI-12-11, 75 NRC 523, 533 (2012); see also id. at 534 (Petitioners simply have not shown, from a NEPA perspective, that the Fukushima events or our potential regulatory responses to those events reveal environmental impacts that differ significantly from those the NRC has already studied.).

67 See id. at 533-34 (Petitioners stay motion never even refers to the analyses in the ESP FEIS and the COL FSEIS.).

15

Petition itself acknowledges,68 the environmental impacts (or risks) of an accident are a product of the probability of the accident times the consequences of the accident.69 As discussed below, the Consequence Study does not contain any information that is significantly different than information previously available regarding the probability and consequences of SFP fires. If anything, the Consequence Study indicates that the environmental impacts of a SFP fire are less than previously estimated.

a. Probability of a Spent Fuel Pool Fire The Consequence Study states that the probability of a SFP fire is 1 x 10-7 per year without accounting for the SFP mitigation required by 10 C.F.R. § 50.54(hh)(2).70 It further states that the probability is a factor of 20 lower when mitigation is credited.71 Thus, when accounting for

§ 50.54(hh)(2) mitigation measures, which have been deployed at IP2 and IP3,72 the Consequence Study indicates that the probability of a SFP fire is approximately 6 x 10-9 per year.73 Therefore, when determining the probability of SFP fires at IP2 and IP3 based upon the Consequence Study, the appropriate probability is approximately 6 x 10-9 per year. That probability is substantially less than the probabilities of SFP fires estimated in previous NRC studies.74 Thus, the 68 See Suspension Petition at 12.

69 See, e.g., City of New York v. Dept of Transp., 715 F.2d 732, 738 (2d Cir. 1983) (The concept of overall risk incorporates the significance of possible adverse consequences discounted by the improbability of their occurrence.).

70 See Consequence Study at x, 151-52 (including Table 31), 247.

71 See id. at x, 171, 247.

72 See Letter from Douglas Pickett, Senior Project Manager, NRC, to Vice President, Operations, Entergy Nuclear Operations, Inc., Indian Point Entergy Center, Closeout of Bulletin 2011-01, Mitigation Strategies - Indian Pont Nuclear Generating Unit Nos. 2 and 3 - (TAC Nos. ME6441 and ME6442) (May 15, 2012), available at ADAMS Accession No. ML121290620.

73 See Consequence Study at 152, 247.

74 For example, NUREG-1353 estimated that the probability of a SFP fire was 2 x 10-6 per year for two older spent fuel pools. NUREG-1353 at ES-2 and -3. NUREG-1738 estimated the probability of a SFP fire to be 6 x 10-7 to 2 x 10-6 per year for a SFP that has a decay time of one year. NUREG-1738 at 3-7.

16

probabilities of a SFP fire as used in the Consequence Study cannot be considered significant new information when determining whether there is a need for a supplemental EIS.75 Furthermore, the probabilities of a SFP fire, as discussed in the Consequence Study, are so small that they render it unnecessary even to consider the potential for a SFP fire under NEPA. As both the courts and the NRC long have recognized, it is not necessary under NEPA to consider those severe accidents that are remote and speculative.76 Although the Commission has not specified a particular threshold probability for designating an accident as remote and speculative, the Licensing Board in the Calvert Cliffs combined operating license proceeding held that only events with frequencies of greater than one in a million (1 x 10-6 per year) need to be considered under NEPA.77 Based upon that criterion, a SFP fire as evaluated in the Consequence Study is remote and speculative for purposes of NEPA evaluation.

Also, in 2008, when the Commission denied two rulemaking petitions filed by the Attorney Generals of Massachusetts and California related to SFP accidents, 78 it relied on, inter 75 Citing the Consequence Study, Clearwater also asserts that the NRC Staff concluded for the first time that the likelihood of [SFP] fires could be affected by reactor accidents. Suspension Petition at 6. As an initial matter, the portion of the study cited by Clearwater does not support that claim. Instead, it only describes the four broad interplays that can be defined between the SFP and the reactor, and states that [t]o the extent practicable, this study has attempted to qualitatively account for some of these effects. Consequence Study at 28, 29. In any event, the Consequence Study does not speak to the effects of reactor accidents on the probability of SFP fires, much less suggest that reactor accidents increase that probability to any appreciable degree.

76 See, e.g., Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 739 (3d Cir. 1989) (It is undisputed that NEPA does not require consideration of remote and speculative risks.); San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1300-01 (D.C. Cir. 1984), rehg en banc granted on other grounds, 760 F.2d 1320 (D.C. Cir. 1985), aff'd on rehg en banc, 789 F.2d 26 (D.C. Cir. 1986), cert. denied, 479 U.S. 923 (1986); Carolina Envtl. Study Grp. v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975); Vt. Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-90-4, 31 NRC 333, 335 (1990).

77 See Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-09-4, 69 NRC 170, 209 (2009).

78 See The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204 (Aug. 8, 2008) (2008 Rulemaking Denial). Similar to Clearwaters Rulemaking Petition, rulemaking petitions requested that the Commission consider purported new and significant information showing that the license renewal GEIS mischaracterized the impacts of spent fuel storage as insignificant, and revoke the regulations that codify this conclusion so as to exclude consideration of spent fuel storage impacts in plant-specific NEPA review documents. See id. at 46,205.

17

alia, its decision in the Shearon Harris SFP expansion proceeding.79 In that proceeding, the Licensing Board concluded that the probability of the postulated sequence of events resulting in a SFP zirconium fire was conservatively in the range described by the Staff: 2.0E-7 per year (two occurrences in 10 million reactor years) or less.80 The Board concluded that an event having this probability of occurrence falls within the category of remote and speculative matters.81 The Commission affirmed the Boards decision, and the U.S. Court of Appeals for D.C. Circuit upheld the Commissions decision.82 Thus, by any reasonable standard, an accident with a probability of 6 x 10-9 per year is remote and speculative. In fact, the Commission itself has found that SFP accidents are remote.83 In summary, given prior NRC determinations that SFP fires are remote events, and given the substantially lower probability of a SFP fire as identified in the Consequence Study and resulting from the protective and mitigative features for IP2 and IP3, it is evident that the potential for a SFP fire at Indian Point is remote and speculative. As a result, the Commission may reject the Suspension Petition on that basis alone, without considering any further information from the Consequence Study related to SFP fires. Nevertheless, even if that information is considered, it would not represent significant new information, as discussed below.

79 See id. at 46,210 (citing Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-01-9, 53 NRC 239, 244-245 (2001)).

80 Shearon Harris, LBP-01-9, 53 NRC at 267.

81 Id. at 268.

82 Carolina Power Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001), pet. for review denied, sub nom, Orange County, NC v. NRC, 2002 WL 31098379 (D.C. Cir. 2002).

83 For example, the Commission recently stated that the likelihood of major accidents at spent fuel pools resulting in offsite consequences is remote. Waste ConfidenceContinued Storage of Spent Nuclear Fuel, 78 Fed. Reg. 56,776, 56,797 (Sept. 13, 2013) (Proposed Waste Confidence Rule) (emphasis added). Notably, that finding was based on the probabilities presented in NUREG-1738, not on the even lower probabilities identified in the Consequence Study.

18

b. Consequences of a Spent Fuel Pool Fire Clearwater also fails to identify any information indicating that SFP fire consequences differ significantly from those the NRC has already studied.84 The environmental consequences of a SFP fire are largely dependent on the amount of radioactive material released during the accident. As stated in the Consequence Study, [t]he releases of radioactive material [calculated by the Consequence Study] are generally comparable to past studies.85 Table 62 of the Consequence Study provides a line-by-line comparison of five evaluations of SFP accidents, including the Consequence Study.86 In each case, the consequences calculated by the Consequence Study are similar to, or substantially less than, the previously-estimated consequences.87 For example, the Consequence Study notes that [t]he collective dose values predicted in this study are consistent with the lower end of the range reported in past SFP studies.88 The Suspension Petition claims that the Consequence Study contains new and significant information related to land contamination.89 It is true that, unlike previous SFP evaluations, the Consequence Study includes a quantitative estimate of land interdiction (i.e., land from which individuals would be temporarily relocated following an accident) as opposed to condemnation (i.e., land from which individuals would be permanently relocated if decontamination and natural processes cannot reduce contamination levels to habitability limits).90 However, the Consequence Study makes clear that this information is not significant for purposes of NEPA.

84 Vogtle, CLI-12-11, 75 NRC at 534.

85 Consequence Study at x.

86 See id. at 232.

87 See id.

88 Id. at 233 (emphasis added).

89 See Suspension Petition at 5.

90 See Consequence Study at 233-34 (including Table 62).

19

Specifically, Table 62 of the Consequence Study compares the studys results to the results of several previous evaluations with respect to condemned land from a SFP accident.91 The study states that it is clear that both this study and past studies have predicted that SFP accidents can lead to significant land contamination.92 Thus, the observation that a postulated SFP fire could result in significant land contamination is not new or previously undocumented. Moreover, Table 62 shows that the Consequence Study predicts substantially less land condemnation (and permanent dislocation of individuals) than previous NRC studies reported in the table.93 In summary, the Consequence Study does not contain significant new information regarding the consequences of a SFP fire, especially as applied to Indian Point. On the contrary, the study concludes that the consequences of a SFP fire are similar to, or substantially less than, the consequences of a SFP fire as calculated in previous NRC studies and reflected in Part 51.

c. Environmental Impacts of a Spent Fuel Pool Fire Clearwater claims that the NRC Staff made a prima facie case or an admission that the environmental impacts of a SFP fire are greater than previously estimated, and that mitigation is likely to be cost-effective.94 Again, however, as the Suspension Petition acknowledges,95 the environmental impacts (or risk) of an accident are a product of the accidents probability and 91 See id. at 232 (Table 62).

92 Id. at 169.

93 See id. at 232 (Table 62). Furthermore, the Consequence Study reports the interdicted land as a range, spanning from 170 to 9,400 square miles. See id. Clearwater cites the upper end of that range, and fails to note that the underlying calculation does not credit the mitigation provided by the equipment required by 10 C.F.R. § 50.54(hh)(2). When such equipment is credited, the value drops substantiallyto only 230 square miles. Id. at 168 (Table 35). As noted above, IP2 and IP3 include the mitigation required by § 50.54(hh)(2); therefore, the smaller value is the appropriate measurenot the thousands of square miles cited in the Suspension Petition. Suspension Petition at 11. In particular, the 230 square miles of interdicted land is comparable to or less than the amount of condemned land predicted in previous studies. See Consequence Study at 232 (Table 62).

94 Suspension Petition at 9-10.

95 See id. at 12.

20

consequences. Thus, even if the consequences of a potential accident are high, the environmental impacts of the accident may still be low if the probability of the accident is low.

Consistent with the findings of previous NRC studies, the Consequence Study indicates that the environmental impacts (i.e., probability times consequences) of a SFP fire are small:

In conclusion, past SFP risk studies have shown that high-density spent fuel storage is safe and risk of a release due to an accident is low. This study is consistent with earlier research conclusions that spent fuel pools are robust structures that are likely to withstand severe earthquakes without leaking.96 This conclusion also is reflected in the NRCs proposed waste confidence rule, which states that the NRC has determined that the risk of a SFP zirconium fire, whether caused by an accident or a terrorist attack, is very low.97 In short, the Consequence Studys overall conclusions regarding the impacts of a SFP fire are consistent with the conclusions of previous studies on SFP fires. NEPA requires EIS supplementation only where new information identifies a previously unknown environmental concern, but not where the new information amounts to mere additional evidence supporting one side or the other of a disputed environmental effect.98 The Consequence Study does not identify a previously unknown environmental concern that requires EIS supplementation. Accordingly, the Suspension Petition is without basis and should be denied for that reason too.

d. Environmental Impacts of a Spent Fuel Pool Fire Versus a Reactor Accident The NRC has long excluded explicit evaluation of SFP fires in its EISs for nuclear power plants. Instead, the NRCs EISs for nuclear power plants address severe accidents involving the 96 Consequence Study at xii (emphasis added). See also Turkey Point, CLI-01-17, 54 NRC at 22 (stating, in the context of a contention regarding the need for an environmental evaluation of SFP accidents, that past studies have demonstrated that the risk of such accidents is acceptably small).

97 Proposed Waste Confidence Rule, 78 Fed. Reg. at 56,797.

98 Vogtle, CLI-12-11, 75 NRC at 533 n.53 (quoting Private Fuel Storage, CLI-06-3, 63 NRC at 28).

21

reactor core.99 The reasons for this are readily apparent. As the NRC has stated, even under the worst probable cause of a loss of spent-fuel pool coolant (a severe seismic-generated accident causing a catastrophic failure of the pool), the likelihood of a fuel-cladding fire is highly remote (55 FR 38474).100 In other words, the NRC has determined that the probability of SFP accidents is less than reactor accidents.101 Furthermore, the NRC has reached similar conclusions when looking at the environmental impacts of SFP fires versus the impacts of reactor severe accidents. For example, the 1996 GEIS for license renewal discussed qualitatively the reasons why the impact of accidents at SFPs would be much less than that from reactor accidents.102 The 2013 update of the GEIS, which accounts for more recent studies such as NUREG-1738, reached the same conclusion:

[I]t is concluded that the environmental impacts from accidents at SFPs (as [conservatively] quantified in NUREG-1738) can be comparable to those from reactor accidents at full power (as estimated in NUREG-1150 [NRC 1990b]). Subsequent analyses performed, and mitigative measures employed since 2001, have further lowered the risk of this class of accidents. In addition, even the conservative estimates from NUREG-1738 are much less than the impacts from full power reactor accidents as estimated in the 1996 GEIS. Therefore, the environmental impacts stated in the 1996 GEIS bound the impact from SFP accidents.103 This is an important point, given that Clearwater asserts that the NRC should republish the 2013 revised GEIS for license renewal for public comment.104 But Clearwater presents no 99 See, e.g., NUREG-1555, Environmental Standard Review Plan § 7.2, Severe Accidents (Oct. 1999).

100 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Main Report (May 1996), Section 6.4.6.1.

101 See, e.g., NUREG-1353, at ES-3 and -4. See also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station, CLI-10-14, 71 NRC 449, 475 (2010) (quoting 2008 Rulemaking Denial, 73 Fed. Reg. at 46,207-208, 46,211-212)

(stating that [spent fuel pool] accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident).

102 NUREG-1437, Rev. 1, App. E at E-34.

103 Id. at E-39 (internal citations omitted; emphasis added).

104 See Suspension Petition at 8.

22

information in the Suspension Petition or Rulemaking Petition to undermine the GEIS conclusions that (1) the environmental impacts of a full-power reactor accident bound those of a SFP accident, and (2) SFP storage impacts are appropriately treated as a Category 1 issue (for which generic analysis is appropriate) in Table B-1 of the NRCs Part 51 regulations. Furthermore, there is nothing in the Consequence Study that would indicate that the environmental impacts of SFP fires are comparable to the environmental impacts of severe reactor accidents. As a result, there is no reason for the NRC to supplement its FSEIS, or to republish the 2013 revised license renewal GEIS, to account for the information in the Consequence Study on SFP fires, as the environmental impacts of a SFP fire are bounded by the environmental impacts of a severe reactor accident.

e. Spent Fuel Pool Mitigation Measures In its Suspension Petition, Clearwater also claims that the NRC Staff has newly acknowledged that a combination of reduced-density pool storage and dry storage constitutes a reasonable alternative for mitigating the risks of high-density pool storage of spent fuel.105 That argument is both factually and legally baseless. First and foremost, it runs counter to the NRC Staffs overarching conclusion that the expedited transfer of spent fuel to dry cask storage would provide only a marginal increase in the overall protection of public health and safety, and would not be warranted due to the expected implementation costs.106 105 See id. at 6; Rulemaking Petition at 3. Relatedly, Clearwater points to an NRC Staff non-concurrence, which claims a billion dollars of benefit from removing spent fuel from pools. See Suspension Petition at 12-13. However, that non-concurrence is not the agencys position. Furthermore, Clearwater ignores the results of other sensitivity analyses that support the NRC Staffs ultimate conclusion that the costs outweigh the benefits (see COMSECY-13-0030, Encl. 1, at 50-53) such that the expedited transfer of spent fuel to dry cask storage would provide only a minor or limited safety benefit, and that its expected implementation costs would not be warranted. COMSECY-13-0030 at 10.

106 Regulatory Analysis at 54. Clearwater cites the Staffs Regulatory Analysis as the basis for its claim, namely sensitivity studies performed as part of the Staffs cost-benefit analyses. See Suspension Petition at 6 (citing Regulatory Analysis at 7, 46-51). The Staff performed sensitivity analyses on key factors to measure each attributes effect on the overall result. For each sensitivity analysis, the Staff provided a low and a high estimate that combines the range of expected SFP attributes with conservative assumptions to model the range of pool accidents postulated.

The Regulatory Analysis states that [t]hese high and low estimates are expected to over and under estimate the consequences from SFP accidents, and that even the high estimate sensitivity cases yielded only a marginal safety improvement in terms of public health and safety. Regulatory Analysis at 44, 54. Thus, the Regulatory Analysis in no way suggests the existence of reasonable mitigation alternatives.

23

Clearwaters argument also fails when viewed within NEPAs legal framework. NEPA requires that possible mitigation measures be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.107 Given the remote and speculative likelihood of a SFP fire, and thus the very low probability-weighted environmental impacts of a SFP fire, there is no need for the FSEIS to consider mitigation alternatives of the type suggested by Clearwater. As the D.C. Circuit has held, an agency may decline to discuss mitigation measures when it believes an actions environmental impact will be minor or fall within the scope of the original NEPA analysis.108 In view of the above, there is no factual or legal basis for Clearwaters claim of new and significant information related to SFP risk mitigation strategies.

C. The Suspension Petition Also Should Be Rejected As Procedurally Deficient Even if Clearwaters Suspension Petition had substantive merit, it still should be rejected as untimely. Clearwater claims that the Suspension Petition is timely because it is being filed within ten days of the filing of Petitioners Rulemaking Petition, i.e., the event or circumstance from which the petition arises. 10 C.F.R. § 2.323.109 It further states that the Rulemaking Petition, in turn, is based exclusively on purportedly new and significant information contained in NRC Staff documents.110 However, the specific sources of that informationas cited in the Suspension Petition itselfinclude the NRC Staffs Consequence Study and associated 107 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989).

108 See, e.g., 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). See also Pilgrim, CLI-10-14, 71 NRC at 475 (quoting 2008 Rulemaking Denial, 73 Fed. Reg. at 46,212 (stating that a mitigation measure that addresses SFP accidents would not be expected to have a significant impact on total risk for the site because the spent fuel pool accident risk level is less than that for a reactor accident.)); 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).

109 Suspension Petition at 14. In the past, the Commission has treated suspension petitions as general motions. See Diablo Canyon, CLI-02-23, 56 NRC at 237; Oyster Creek, CLI-08-23, 68 NRC at 484-85.

110 Suspension Petition at 9 (citing Section III of the Rulemaking Petition).

24

Regulatory Analysis, issued in October and November 2013, respectively.111 The documents on which Clearwater relies thus have been available for four to five months, with drafts of those documents available even earlier.112 It is fundamentally unfair to permit Clearwater to unduly delay filing its suspension request under the guise that the request is timely filed because it is based on a generic rulemaking petition (especially where the rulemaking petition has no demonstrated relevance to the Indian Point site). Accordingly, the Suspension Petition also should be rejected as untimely.113 IV. CONCLUSION Suspending the NRCs final license renewal decision is an extraordinary remedy that is not warranted and should not be granted under the present circumstances. Clearwater has not substantiated that such extraordinary relief is warranted in this proceeding, as its Suspension Petition is marred by the numerous substantive and procedural deficiencies discussed above. For all of these reasons, the Suspension Petition should be denied in its entirety.

111 See id. at 5-6; see also n.26 supra.

112 Drafts of the Consequence Study and Regulatory Analysis were available even in July 2013 and September 2013, respectively. See COMSECY-13-0030 at 9, available at ADAMS Accession Nos. ML13133A132 (draft Consequence Study) & ML13256A348 (draft Regulatory Analysis).

113 Additionally, even if Clearwater had filed a contention, which it has not, it still would be untimely. According to the initial Scheduling Order in this proceeding, new or amended contentions must be filed within 30 days of the date when the purported new and material information on which it is based first becomes available. See Scheduling Order at 6 (July 1, 2010) (unpublished). Clearwaters filing was made well past that deadline.

25

Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, N.W.

White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3202 Phone: (202) 739-5796 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.,

this 21st day of March 2014 26

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) )

) March 21, 2014 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Opposition to Clearwaters Petition to Suspend License Renewal Decision Pending Completion of Rulemaking 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/ 78108493