ML14332A798

Motion of Entergy Nuclear Operations, Inc., for Leave to Intervene in Support of Respondents

ML14332A798
Person / Time
Site:	Indian Point
Issue date:	11/25/2014
From:	Fagg B, Glew W Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OGC, US Federal Judiciary, District Court for the District of Columbia
Creedon. meghan
References
14-1210, 14-1212, 14-1216, 14-1217, 1524232
Download: ML14332A798 (18)

Text

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 1 of 18 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

STATE OF NEW YORK, et al., )

)

)

Petitioners, )

)

v. ) Nos. 14-1210

) 14-1212 NUCLEAR REGULATORY COMMISSION ) 14-1216 and the UNITED STATES OF AMERICA, ) 14-1217

)

) (Consolidated)

Respondents. )

______________________________________________)

MOTION OF ENTERGY NUCLEAR OPERATIONS, INC.

FOR LEAVE TO INTERVENE IN SUPPORT OF RESPONDENTS Pursuant to Rules 15(d) and 27 of the Federal Rules of Appellate Procedure and Circuit Rules 15(b) and 27, Entergy Nuclear Operations, Inc. (ENOI, or, for these purposes, Entergy) hereby moves for leave to intervene in the above-captioned proceedings in support of the U.S. Nuclear Regulatory Commission (NRC or Commission).

Entergy is the operator and holder of the NRC operating licenses for Indian Point Nuclear Generating Units 2 and 3, located in one of the petitioner states, New York, and is designated by the plant owners to act on their behalf as agent. In New York, Entergys Indian Point facility is undergoing a license renewal

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 2 of 18 proceeding before the NRC, wherein the State of New York (New York) is an adverse party. New York has raised claims before the NRC and against Entergy that substantially overlap the claims it raises in this Court. Although an NRC Atomic Safety and Licensing Board (Licensing Board) recently dismissed the pertinent New York claims for failing to meet the NRCs contention admissibility criteria, that ruling still may be appealed to the Commission. Additionally, New York filed extensive comments on the NRC rulemaking under challenge here that relate specifically to Indian Point Units 2 and 3. Consequently, the relief sought in this petition would, if granted, significantly and uniquely impact Entergys operations of those facilities. Thus, Entergy has a direct interest in this proceeding.

In further support, Entergy states the following:

1. By petitions for review dated October 27 and 29, 2014, the States of New York, Connecticut, and Vermont; Prairie Island Indian Community; Natural Resources Defense Council, Inc.; and Beyond Nuclear et al. initiated the above-captioned proceedings, which the Court consolidated by Order dated October 31, 2014. Petitioners seek review of the NRCs Final Rule on the Continued Storage 2

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 3 of 18 of Spent Nuclear Fuel, 10 C.F.R. § 51.23 (Continued Storage Rule),1 and the related Generic Environmental Impact Statement (GEIS).2

2. The NRC originally adopted 10 C.F.R. § 51.23 in response to this Courts decision in Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), wherein the Court agreed with the NRC that the agency could address issues associated with used fuel storage by generic determinations.3 As a result, the Court did not vacate or stay the contested reactor operating license amendments, which allowed expanded onsite storage of spent fuel.4 But recognizing a then-ongoing NRC rulemaking might be relevant to these issues, the Court remanded the case to the NRC for further consideration using appropriate procedures.5

3. Following the Minnesota remand, the NRC initiated the Waste Confidence proceeding and issued the first Temporary Storage Rule, 10 C.F.R. 1 Final Rule, Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (Continued Storage Rule).

2 Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,263 (Sept. 19, 2014); NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel:

Final Report, Vols. 1 & 2 (Sept. 2014) (GEIS), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr2157/.

3 Minnesota, 602 F.2d at 419.

4 Id. at 418.

5 Id. at 418-19.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 4 of 18

§ 51.23,6 which was supported by the Waste Confidence Decision.7 The Waste Confidence Decision served as an environmental assessment and finding of no significant impact for purposes of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. In later years, including in 2010, the NRC updated and revised the Temporary Storage Rule and Waste Confidence Decision.

4. A number of petitioners, including the States of New York, Vermont, and Connecticut, sought judicial review of the 2010 rulemaking in this Court.

State of New York v. NRC, Nos. 11-1045 et al. Entergy sought, and was granted, intervenor party status by this Court in that proceeding. Order, No. 11-1045 (D.C.

Cir., May 9, 2011).

5. On June 8, 2012, in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012),

this Court vacated and remanded elements of the 2010 update for further agency consideration under NEPA. The Court held that the NRC had not satisfied its NEPA obligations with respect to three areas: (1) assessing the environmental impacts of a hypothetical permanent federal failure to establish a high-level waste 6

Final Rule, Requirements for Licensee Actions Regarding the Disposition of Spent Fuel Upon Expiration of Reactor Operating Licenses, 49 Fed. Reg.

34,688 (Aug. 31, 1984).

7 Final Waste Confidence Decision, 49 Fed. Reg. 34,658 (Aug. 31, 1984).

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 5 of 18 repository; (2) assessing the risks of spent fuel pool leaks; and (3) assessing the risks of spent fuel pool fires.8

6. On July 8, 2012, New York, along with two other intervenors in the Indian Point license renewal proceeding, jointly filed a proposed contention with the Licensing Board concerning the on-site storage of spent nuclear fuel at Indian Point.9 See Attachment 1. Citing the Courts decision in New York v. NRC as the basis for the contention,10 New York alleged that the NRCs final supplemental environmental impact statement for Indian Point license renewal violated NEPA and NRC regulations because it fails to include a legally sufficient analysis of the environmental impacts of on-site storage of spent fuel after the conclusion of the extended operating periods for Indian Point Units 2 and 3, as well as alternatives to mitigate those impacts.11 8

New York, 681 F.3d at 478-83.

9 See State of New York, Riverkeeper, and Clearwaters Joint Motion for Leave to File a New Contention Concerning the On-Site Storage of Nuclear Waste at Indian Point (July 8, 2012), available at http://pbadupws.nrc.gov/docs/ML1219/ML12190A003.pdf; State of New York, Riverkeeper, Inc., and Hudson River Sloop Clearwaters Joint Contention NYS-39/RK-EC-9/CW-EC-10 Concerning the On-Site Storage of Nuclear Waste at Indian Point (July 8, 2012) (New York Proposed Contention) (Att. 1).

10 See New York Proposed Contention at 1 (Att. 1) (stating that the new joint contention [is] based on the United States Court of Appeals for the District of Columbia Circuits recent decision in the matter of State of New York v.

Nuclear Regulatory Commission, No. 11-1045 (June 8, 2012)).

11 Id. at 2.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 6 of 18

7. On August 7, 2012, in response to the Courts ruling, the Commission issued a Memorandum and Order (CLI-12-16) stating, in part, that the NRC would not issue new or renewed operating licenses pending completion of action on the Courts remand.12 It also directed that all proposed contentions arising out of the New York decision be held in abeyance pending further order of the Commission.13 Accordingly, on August 8, 2012, the Licensing Board issued an Order holding New Yorks proposed contention in abeyance, thereby deferring any ruling on its admissibility pending further direction from the Commission.14

8. During the next two years, the NRC undertook a fresh generic rulemaking to address the Courts remand. As part of the rulemaking process, the NRC solicited public comments on the proposed new rule and associated draft GEIS. The NRC received extensive public comments, including voluminous comments submitted by New York in December 2013.15 Significantly, New 12 See Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),CLI-12-16, 76 NRC 63, 67 (2012).

13 See id. at 68-69.

14 Licensing Board Order (Holding Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4 in Abeyance) (Aug. 8, 2012) (unpublished), available at http://pbadupws.nrc.gov/docs/ML1222/ML12221A387.pdf.

15 See Additional Comments Submitted by the Attorney General of the State of New York on the Nuclear Regulatory Commissions Draft Waste Confidence Generic Environmental Impact Statement (Dec. 20, 2013), available at http://pbadupws.nrc.gov/docs/ML1336/ML13361A000.pdf. (excerpts provided in Att. 2).

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 7 of 18 Yorks comments, while nominally in response to a generic rulemaking concerning the continued storage of spent fuel at U.S. reactor sites, focused largely on the Indian Point site. The thrust of those comments is that the proposed rule and draft GEIS were inadequate because they did not adequately address site-specific environmental impacts from, and alternatives to, the continued storage of spent nuclear fuel at the Indian Point site. See Attachment 2 (excerpts from State of New York comments).

9. Also, in October 2013, New York State Attorney General Eric Schneiderman provided testimony to the NRC and issued a related press release, in which he assailed the NRCs draft GEIS as substantially flawed because it allegedly did not account for the densely populated areas surrounding Indian Point in assessing spent fuel pool accident consequences. See Attachments 3 (Schneiderman testimony) and 4 (Schneiderman press release). He further asserted that the NRC must conduct site-specific analysis of environmental impacts of a severe accident at the Indian Point spent fuel pools, or use the Indian Point site, and not less-populated sites, as its baseline for spent fuel pool accident risk nationwide. See Attachment 3 at 1-2.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 8 of 18

10. On August 26, 2014, the Commission approved issuance of the final Continued Storage Rule and associated GEIS.16 The GEIS documents the NRCs generically-applicable assessment of the environmental impacts of continued storage of spent nuclear fuel.17 The final rule, in turn, codifies the environmental impacts reflected in the GEIS and indicates that these impact determinations will inform the decision-makers in individual licensing proceedings of the impacts of continued storage.18 On the same day, the Commission issued a Memorandum and Order (CLI-14-08), in which it lifted its suspension of final licensing decisions in view of its issuance of the Continued Storage Rule and supporting GEIS.19

11. In light of the Commissions ruling, the Licensing Board in September 2014 requested additional briefing from the parties to the Indian Point 16 See Staff Requirements - SECY-14-0072 - Final Rule, Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (Aug. 26, 2014); Commission Paper SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20), (July 21, 2014) (attaching the GEIS and the draft final rule). The final rule was published in Federal Register on September 19, 2014, and became effective on October 20, 2014.

17 Continued Storage Rule, 79 Fed. Reg. at 56,239.

18 Id. at 56,238; see also id. at 56,260 (setting forth the revised 10 C.F.R.

§ 51.23).

19 See Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC

__, slip. op. at 7 (Aug. 26, 2014), available at http://www.nrc.gov/reading-rm/doc-collections/commission/orders/2014/2014-08cli.pdf.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 9 of 18 license renewal proceeding on New Yorks pending waste confidence contention.20 Following that briefing, the Licensing Board dismissed New Yorks proposed contention by Order dated November 10, 2014, finding that the contention was resolved in its entirety by the final [Continued Storage Rule] and associated

[GEIS].21 In this regard, the Licensing Board noted that the only basis for [New Yorks] contention was that the [GEIS] did not address site-specific environmental impacts from, and alternatives to, the continued storage of spent nuclear fuel at the Indian Point site.22 Citing the NRCs conclusions in the GEIS that the impacts of continued storage will not vary significantly across sites, the Board stated that site-specific environmental aspects of continued storage should not be considered in individual licensing proceedings.23 The Licensing Boards decision is subject to appeal by New York (and its co-intervenors) to the NRC in accordance with the provisions of 10 C.F.R. § 2.341.

12. As New Yorks participation in the pending Indian Point license renewal proceeding and the 2010 Waste Confidence Decision update and 2014 20 Licensing Board Order (Requesting Briefs on NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4) at 2 (Sept. 17, 2014) (unpublished), available at http://adams.nrc.gov/wba/ using ADAMS Accession No. ML14260A241.

21 Licensing Board Order (Dismissing Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4) at 2 (Nov. 10, 2014) (unpublished), available at http://adams.nrc.gov/wba/ using ADAMS Accession No. ML14314A350.

22 Id. (emphasis added).

23 Id. at 2-3.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 10 of 18 Continued Storage Rule proceedings demonstrates, New Yorks primary interests in this case likely will focus on Entergys Indian Point facility. See paragraphs 6, 8-9, 11, supra; Attachments 1-4. Entergy thus expects New Yorks claims before this Court to substantially overlap the claims that the State has raised before the NRC in challenging Entergys license renewal application for Indian Point and the applicability of the Continued Storage Rule and GEIS to Indian Point, which New York claims is unique and in need of a site-specific analysis of spent fuel storage impacts. See Attachment 2 at 18. Entergy and New York, in other words, are adverse with respect to the issues raised in this appeal, in a currently pending parallel administrative proceeding.

13. As the operator and holder of the NRC operating licenses for Indian Point Units 2 and 3, Entergy will be directly affected by this Courts review of the NRCs Continued Storage Rule and related GEIS. If New Yorks request for relief were to be granted, and if the NRC were to consequently modify or rescind the Continued Storage Rule and GEIS, then Entergys rights with respect the Indian Point Units 2 and 3 license renewals could be substantially and adversely affected.

Entergy, therefore, has a unique, direct, and substantial interest in this proceeding.

14. Entergy also has a broader interest in the present challenge. ENOI and other entities within the Entergy family of companies own and/or operate a total of 11 nuclear facilities at nine sites across the United States. This is one of 10

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 11 of 18 the larger fleets of domestic U.S. nuclear power reactors, and, to the extent that New Yorks claims could have potential generic consequences, Entergy is clearly a party whose interests would be directly implicated.

15. In general, the Courts of Appeals have evaluated intervention requests consistent with the standards of Fed. R. Civ. P. 24(a)(2). See, e.g., Building &

Construction Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir.

1994); Sierra Club v. EPA, 358 F.3d 516, 517-18 (7th Cir. 2004). Fed. R. Civ. P.

24(a)(2) permits intervention when the movant claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest.

16. This Court has in the past routinely granted intervention and party status to affected NRC licensees or applicantsincluding Entergyin lawsuits brought against the NRC regarding agency rulemakings. See, e.g., Toledo Coal.

for Safe Energy v. Nuclear Regulatory Commn, No. 95-1161, 1995 U.S. App.

LEXIS 38540, at *1 (D.C. Cir. 1995) (identifying third party intervenor respondents in a direct challenge to an NRC rule and issuance of a certificate of compliance); Natural Res. Def. Council v. Nuclear Regulatory Commn, 685 F.2d 459, 459 (D.C. Cir. 1982) (identifying utilities as respondent intervenors in a direct 11

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 12 of 18 challenge to NRC rules regarding the generic environmental impacts of nuclear fuel cycle), revd on other grounds 462 U.S. 87 (1983). Indeed, as noted above, Entergy was granted intervenor party status by this Court in the prior lawsuit that directly led to the very agency action at issue in this proceeding. State of New York

v. NRC No. 11-1045 (Order granting intervention) (D.C. Cir., May 9, 2011).

17. Pursuant to Fed. R. App. P. 15, Entergy should be deemed to be a party to this proceeding. Numerous Petitioners in these consolidated proceedings have explicitly identified Entergys facilities as the focus of their challenges to the NRCs rules. Entergy is responsible for property that is the subject of this action, and therefore has a direct and substantial interest in the outcome of this proceeding. The disposition of this action may as a practical matter impair or impede Entergys ability to protect its interests. Entergy is the only party fully capable of asserting and protecting the unique interests that it has in the subject matter of this proceeding.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 13 of 18 WHEREFORE, for the foregoing reasons, Entergy respectfully requests that this Court grant Entergy leave to intervene in the above-captioned proceeding, with the full rights attendant thereto.

Respectfully Submitted, Of Counsel: s/ Brad Fagg__________________

William B. Glew, Jr., Esq. Brad Fagg Entergy Nuclear Operations, Inc. (Counsel of Record) 440 Hamilton Avenue Morgan, Lewis & Bockius, LLP White Plains, NY 10601 1111 Pennsylvania Ave., NW Tel: (914) 272-3202 Washington, DC 20004 Tel: (202) 739-5191 E-mail: wglew@entergy.com E-mail: bfagg@morganlewis.com Attorney for Entergy Nuclear Operations, Inc.

Dated: November 25, 2014 13

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 14 of 18 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

)

STATE OF NEW YORK, et al., )

)

)

Petitioners, )

)

v. ) Nos. 14-1210

) 14-1212 NUCLEAR REGULATORY COMMISSION ) 14-1216 and the UNITED STATES OF AMERICA, ) 14-1217

)

) (Consolidated)

Respondents. )

______________________________________________)

CORPORATE DISCLOSURE STATEMENT FOR ENTERGY NUCLEAR OPERATIONS, INC.

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Circuit Rule 26.1 of this Court, Entergy Nuclear Operations, Inc. hereby represents that it is the operator and holder of the NRC operating license for the Indian Point Energy Center Units 2 and 3 nuclear plants, located in New York, and the Vermont Yankee Nuclear Power Plant, located in Vermont. Petitioner further represents as follows:

Entergy Nuclear Operations, Inc. is a wholly owned subsidiary of Entergy Nuclear Holding Company #2, which in turn is a wholly owned subsidiary of Entergy Corporation. Entergy Corporation is the only publicly held corporation in this chain of ownership and, through its subsidiary, owns more than 10% of Entergy Nuclear Operations, Inc.

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 15 of 18 Respectfully submitted,

___s/ Brad Fagg___________

Brad Fagg (Counsel of Record)

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Tel: (202) 739-5191 Attorneys for Dated: November 25, 2014 Entergy Nuclear Operations, Inc.

Of Counsel:

William B. Glew, Jr., Esq.

Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601 Tel: (914) 272-3202 E-mail: wglew@entergy.com 15

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 16 of 18 CERTIFICATE OF SERVICE Pursuant to Rule 25 of the Federal Rules of Appellate Procedure and Circuit Rule 25 of this Court, I hereby certify that I have this 25th day of November 2014, served the Motion of Entergy Nuclear Operations, Inc., for Leave to Intervene in Support of Respondents, its attachments, the Corporate Disclosure Statement for Entergy Nuclear Operations, Inc., through the Electronic Case Filing system and via first class mail, postage prepaid, upon all the parties set forth on the attached list.

s/ Brad Fagg_______________________

Brad Fagg Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue N.W.

Washington, DC 20004 (202) 739-5191 bfagg@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 17 of 18 SERVICE LIST ERIC T. SCHNEIDERMAN DIANE CURRAN Attorney General Harmon, Curran, Spielberg &

JOHN J. SIPOS Eisenberg, LLP Assistant Attorney General 1726 M Street, NW Suite 600 Office of the Attorney General Washington DC 20036 For the State of New York 202-328-3500 The Capitol dcurran@harmoncurran.com Albany, New York 12224 518-402-2251 john.sipos@ag.ny.gov GEORGE JEPSEN MINDY GOLDSTEIN Attorney General Turner Environmental Law Clinic ROBERT SNOOK Emory Law School Assistant Attorney General 1301 Clifton Road 55 Elm Street Atlanta, GA 30322 P.O. Box 120 404-727-3432 Hartford, Connecticut 06106 magolds@emory.edu 860-808-5020 robert.snook@ct.gov WILLIAM H. SORRELL JOSEPH F. HALLORAN Attorney General Jacobson, Magnuson, Anderson, &

THEA SCHWARTZ Halloran, PC KYLE H. LANDIS-MARINELLO 335 Atrium Office Building Assistant Attorneys General 1295 Bandana Building State of Vermont St. Paul, MN 55108 Office of the Attorney General 651-644-4710 109 State Street jhalloran@thejacobsonlawgroup.com Montpelier, Vermont 05609-1001 802-828-3186 thea.schwartz@state.vt.us kyle.landis-marinello@state.vt.us

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 18 of 18 GEOFFREY H. FETTUS PHILIP R. MAHOWALD Senior Attorney General Counsel Natural Resources Defense Council, Inc. Prairie Island Indian Community 1152 15th Street, N.W., Suite 300 5636 Sturgeon Lake Blvd.

Washington, D.C. 20005 Welch, MN 55089 202-289-2371 651-385-4136 gfettus@nrdc.org pmahowald@plic.org ANDREW P. AVERBACH DAVID A. REPKA Solicitor DARANI M. REDDICK Office of the General Counsel Counsel for the Nuclear Energy U.S. Nuclear Regulatory Commission Institute, Inc.

11555 Rockville Pike Winston & Strawn LLP Rockville, MD 20852 1700 K Street, N.W.

301-415-1956 Washington, D.C. 20006 andrew.averbach@nrc.gov (202) 282-5726 drepka@winston.com dreddick@winston.com 2

DB1/ 81350510.2