ML14080A599
| ML14080A599 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/21/2014 |
| From: | Amitava Ghosh NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, LBP-13-13, RAS 25734 | |
| Download: ML14080A599 (6) | |
Text
March 21, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS REPLY TO STATE OF NEW YORKS ANSWER IN OPPOSITION TO STAFF PETITION FOR REVIEW OF LBP-13-13 (CONTENTION CW-EC-3A)
INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), the staff of the U.S. Nuclear Regulatory Commission (Staff or NRC Staff) hereby files its reply to the State of New Yorks (New York or NYS) answer opposing the NRC Staffs petition for review of the Atomic Safety and Licensing Boards (Board) November 27, 2013 Partial Initial Decision regarding Contention CW-EC-3A (Environmental Justice).1 In its answer, NYS supports Hudson River Sloop Clearwater, Inc.s (Clearwater) petition for review, but opposes the Staffs petition for review; in New Yorks view, the Board correctly found that the Staffs Environmental Justice (EJ) analysis violated the National Environmental Policy Act (NEPA), but the Board committed legal error in finding the Staffs Final Environmental Impact Statement (FSEIS) acceptable as supplemented by the hearing record.
The Staffs petition for review of LBP-13-13 states our view that the Board erred in finding it necessary to supplement the Staffs FSEIS analysis of EJ impacts with evidence 1
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) (NYS Answer).
2 proffered in the adjudicatory proceeding, inasmuch as the FSEIS analysis satisfied NEPA.2 Nonetheless, as pertinent to New Yorks Answer, the Staff submits that supplementation of an EIS, where appropriate, is consistent with the long-standing and approved practice of the Commission and licensing boards, supplementing the Staffs EIS evaluations and conclusions with evidence admitted in the related adjudicatory proceedings. Accordingly, the Commission should decline to undertake New Yorks requested review of this aspect of the Boards decision in LBP-13-13.
DISCUSSION New York asserts that upon finding that the Staffs EJ analysis violated NEPA, the Board committed legal error by supplementing the Staffs FSEIS analysis with evidence in the hearing record. NYS Answer at 3-4. Specifically, New York asserts that nothing in the NRCs regulations provide that an EIS may be supplemented by the adjudicatory record. NYS Answer at 5, 7. New York also asserts that the Boards decision erroneously shifts the burden of evaluating environmental impacts from the Staff to the intervenor, and that using the intervenors evidence in the hearing does not cure deficiencies in the Staffs EJ analysis in the FSEIS. Id. at 14-17. New York, however, points to no legal precedent in support of this proposition - and indeed, there is none.
In accordance with 10 C.F.R. §§ 2.340(a) and 2.344, any decision to issue a renewed license for Indian Point Units 2 and 3 will be made based upon the record as a whole, including the Staffs FSEIS and Safety Evaluation Report, as well as the findings and conclusions in the Boards adjudicatory decisions. The Boards determination that it possesses the authority to supplement the FSEIS in this proceeding is consistent with these regulations and longstanding NRC practice. Thus, both the Commission and its licensing boards have previously supplemented the Staffs EIS conclusions in reactor licensing and other proceedings, even 2
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), at 24-40.
3 where they conclude that the EIS would be deficient absent such supplementation; this practice has been followed in recent decisions,3 as well as in cases dating back several decades.4 New York also asserts that the Commissions elimination of an earlier regulation, which had explicitly permitted licensing boards to modify the content of a final EIS, militates against the Boards determination regarding Contention CW-EC-3A. NYS Answer at 7-8. New York is mistaken. Although the prior regulation, 10 C.F.R. § 51.52(b)(3),5 was removed, the Appeal Board in Limerick found that 10 C.F.R. § 51.102 essentially replaced that provision such that supplementation of the Staffs environmental evaluation by evidence in the hearing record and subsequent board decision is entirely proper under NRC regulations and court precedent.6 Additionally, as the Commission has explicitly stated, In an NRC adjudicatory proceeding, the 3
See, e.g., Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 61 (2012) (citing La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005)); Nuclear Innovation North America LLC (South Texas Project, Units 3 & 4), CLI-11-6, 74 NRC 203, 208-09 (2011).
4 Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 53 (2001);
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).
5 An initial decision . . . may include findings and conclusions which affirm or modify the content of the final environmental impact statement prepared by the staff. To the extent that findings and conclusions different from those in the final environmental statement prepared by the staff are reached, the statement will be deemed modified to that extent and the initial decision will be distributed as provided in § 51.26(c).
6 Limerick, ALAB-819, 22 NRC at 705-07 (We need not decide which regulation controls, for section 51.102 serves the same purpose as its differently worded predecessor, section 51.52(b)(3). LEA's argument is therefore without merit. Section 51.102(a) states that [a] Commission decision on any action for which a final environmental impact statement has been prepared shall be accompanied by or include a concise public record of decision. Generally, that record is to be prepared by the staff. 10 C.F.R. § 51.102(b). When an adjudicatory hearing is held on the action, however, the initial decision of the
[Licensing Board] . . . will constitute the record of decision. An initial or final decision constituting the record of decision will be distributed as provided in § 51.93. 10 C.F.R. § 51.102(c). Section 51.103 describes the contents of the record of decision, noting that it may incorporate by reference any material in the final environmental statement. On its face, 10 C.F.R. § 51.102 thus merges the FES with any relevant licensing board decision to form the complete environmental record of decisionjust as former section 51.52(b)(3) did. But even under the stricter construction of section 51.102 urged by LEA, nothing in it precludes modification of an FES by licensing board decision.).
4 adjudicatory record, Board decision and any Commission decision become effectively part of the environmental review document.7 New York also asserts that the Boards decision to supplement the hearing record would constitute an end-run around 10 C.F.R. § 51.92 requiring a formal supplement to the FSEIS to be circulated for public comments. NYS Answer at 3, 8. However, the Commission has uniformly rejected the argument that supplementing the EIS with the adjudicatory record in a contested proceeding is improper or would frustrate public participation in the NEPA process.8 New York notes that few federal agencies have internal administrative procedures like the NRCs for adjudicating or appealing NEPA decisions and describes how an Appeal Board at the Department of Interior has required that a deficient EIS be remedied through a formal supplement to the EIS. NYS Answer at 10. However, other agencies such as the Federal Energy Regulatory Commission (FERC) have allowed supplementation through public hearings.9 Further, contrary to New Yorks claim that the Boards decision is a departure from established federal NEPA law, multiple U.S. Courts of Appeals have consistently upheld the NRCs practice of supplementing an EIS through the adjudicatory process.10 7
Pilgrim, CLI-12-01, 75 NRC at 61 (citing La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005)).
8 Hydro Res., CLI-01-04, 53 NRC at 53 (([T]he hearing process itself allows for additional and more rigorous public scrutiny of the FES than does the usual circulation for comment.) (quoting Limerick, ALAB-819, 22 NRC at 707) (emphasis added)).
9 Pacific Alaska LNG Co., 9 FERC ¶ 61,334, 61,709 (the CEQ General Counsel suggests that the matter should also be considered in the FEIS because the Commission proceeding does not provide the broad public review and comment required by NEPA. We disagree. Our final decision will address this issue in detail, based on the record in the proceeding. All interested parties have had an opportunity to contribute to that record, and our decision will therefore be based on full information. This procedure fully comports with the letter and spirit of NEPA.) (citing Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320-21 (1975); Citizens For Safe Power, Inc. v. NRC, 582 F.2d 87 (1st Cir. 1978)).
10 See, e.g., Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1294 n. 5 (D.C. Cir. 1975)
(holding that the deemed modified principled did not depart from either the letter or the spirit of NEPA);
Ecology Action v. AEC, 492 F.2d 998, 1001-02 (2nd Cir. 1974) (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). See also Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1 (1978); Limerick, ALAB-819, 22 NRC at 705-07 (despite the removal of § 51.52(b)(3), authorizing
5 New York further asserts that because the NRC Staff refused to consider EJ impacts in the FSEIS, its decision on whether and what mitigation measures to implement was not informed by this information. Those statements are not correct. The Staff presented its analysis of the human health and environmental effects from the continued operation of IP2 and IP3 on EJ populations during the license renewal term in section 4.4.6 of the FSEIS, in which the Staff, inter alia, cited and relied upon the Commissions generic determination that the probability-weighted consequences of severe accidents is small for all plants and all populations, including consideration of emergency preparedness issues.11 CONCLUSION As discussed above, while the Staffs FSEIS analysis was legally sufficient under NEPA, the Boards decision supplementing the Staffs FSEIS conclusions is consistent with longstanding NRC practice and federal case law. Accordingly, Commission review of this aspect of the Boards decision in LBP-13-13 is unwarranted.
Respectfully submitted,
/Signed (electronically) by/
Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-4113 E-mail: anita.ghosh@nrc.gov Dated at Rockville, Maryland this 21st day of March, 2014 Board supplementation of an EIS through the adjudicatory record, [t]here is no reason to believe that the courts would not be just as approving of the same procedure today, either as embodied in section 51.102 or, indeed, in the absence of any regulation, as a matter of board practice).
11 See 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), at 31-32, 35-39; Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, NUREG-1437, Supplement 38 (Dec.
2010) (FSEIS) (Ex. NYS000133B), § 4.4.6, at 4 4-56.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC STAFFS REPLY TO STATE OF NEW YORKS ANSWER IN OPPOSITION TO STAFF PETITION FOR REVIEW OF LBP-13-13 (CONTENTION CW-EC-3A), dated March 21, 2014, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 21st day of March, 2014.
/Signed (electronically) by/
Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-4113 E-mail: anita.ghosh@nrc.gov Date of signature: March 21, 2014