View source for NL-13-075, Applicant'S Motion for Clarification Regarding the Timing of Adjudicatory Submissions Related to Entergy Letter NL-13-075

{{Adams
| number = ML13176A448
| issue date = 06/25/2013
| title = Applicant'S Motion for Clarification Regarding the Timing of Adjudicatory Submissions Related to Entergy Letter NL-13-075
| author name = Bessette P M, O'Neill M J, Sutton K M, Dennis W C, Glew W B
| author affiliation = Entergy Nuclear Operations, Inc, Morgan, Lewis &amp; Bockius, LLP
| addressee name = 
| addressee affiliation = NRC/ASLBP
| docket = 05000286, 05000247
| license number = 
| contact person = SECY RAS
| case reference number = RAS 24718, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NL-13-075
| document type = Legal-Motion
| page count = 10
}}

=Text=
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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)  ) 

  ) June 25, 2013 APPLICANT'S MOTION FOR CLARIFICATION REGARDING THE TIMING OF ADJUDICATORY SUBMISSIONS RELATED TO ENTERGY L ETTER NL-13-075 I. INTRODUCTION In accordance with 10 C.F.R. &sect; 2.323(a) and discussions held between the parties and the Atomic Safety and Licensing Board ("Bo ard") during the June 10, 2013 status call, 1 Entergy Nuclear Operations, Inc. ("Enter gy") hereby seeks clarification from the Board concerning certain procedural matters related to Contention NYS-35/
36 ("NYS-35/36"), which the Board dispositioned as a matter of law in favor of New York State ("New York") in LBP-11-17.
2  Specifically, Entergy requests clarification and further guidance regarding the timing of further adjudicatory submissions related to NYS-35/36 in light of Entergy's May 6, 2013 submittal (in NL-13-075) of the results of completed engineering project cost estimates for severe accident mitigation alternatives ("SAMAs")
previously identified as potentially cost-beneficial for Indian Point Nuclea r Generating Units 2 and 3 ("IP2" and "IP3").
3  Entergy submits that good cause exists for this Motion given the uncertainties 

1  See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 4556 (June 10, 2013) ("June 10, 2013 Tr.") ("[I]f any of the parties believe that additional clarification is necessary - [they should] submit a proposal with appropriate briefing and the Board would then rule in due course."). This Motion is timely filed based on the availability of the conference call transcript (which was distributed to the parties via the NRC's Electronic Information Exchange system on June 19, 2013) and the parties' need to engage in meaningful consultations pursuant to 10 C.F.R. &sect; 2.323(b).
2  Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-11-17, 74 NRC 11 (2011), petition for interlocutory review denied, CLI-11-14, 74 NRC 801 (2011).
3  See NL-13-075, Letter from F. Dacimo, Vice President, Indian Point Energy Center, to NRC Document Control Desk, License Renewal Application - Completed Engineering Project Cost Estimates for SAMAs Previously 2associated with the time required for the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") Staff's ongoing review of NL-13-075 as well as the ultimate form of that review.
4 II. LEGAL STANDARD In NRC adjudications, a party may seek clarification of a ruling on the scope of an admitted contention and other related procedural matters.
5  The Board has entertained and granted motions for clarification filed by Enter gy earlier in this proceeding.
6   III. BACKGROUND A. Procedural History of Contention NYS-35/36 On March 11, 2010, in response to Entergy's December 2009 revised SAMA analysis, 7 New York proposed two contentions-NYS-35 and NYS-36.
8  NYS-35 alleged that, with respect to the SAMAs identified as potentially cost-beneficial in the revised SAMA analysis, Entergy improperly postponed the more refined engineering cost estimates required to determine whether each SAMA is cost-effective.
9  NYS-36 alleged that the revised SAMA analysis is deficient because Entergy 

Identified as Potentially Cost-Beneficial (May 6, 2013) ("NL-13-075"), available at ADAMS Accession No. ML13142A014.
4  As noted in NL-13-075, Entergy is not waiving any rights to appeal to the Commission any aspect of the Board's decision in LBP-11-17 by submitting NL-13-075 (or by filing the instant Motion).
5  See , e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 374-384, 388 (2002) (addressing the applicant's request that the Commission clarify its intent, as set forth in a prior Commission order (CLI-02-17), regarding the scope of an admitted contention).
6  See , e.g., Licensing Board Memorandum and Order (Granting Entergy's Request for Clarification) (Aug. 10, 2011) (unpublished); Licensing Board Order (Granting Entergy's Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) (Dec. 6, 2011) (unpublished).
7  See NL-09-165, Letter from F. Dacimo, Vice President, Indian Point Energy Center, to NRC Document Control Desk, License Renewal Application - SAMA Reanalysis Using Alternative Meteorological Tower Data, Indian Point Nuclear Generating Units Nos. 2 and 3 (Dec. 11, 2009), available at ADAMS Accession No. ML093580089.
8  See State of New York's Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) ("March 2010 Motion for Leave"), available at ADAMS Accession No. ML100780366; State of New York's New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) ("March 2010 SAMA Contentions"), available at ADAMS Accession No. ML100780366.
9  March 2010 Motion for Leave at 11-12; March 2010 SAMA Contentions at 25.
3failed to commit to implement nine "substantially cost-effective" SAMAs.
10  The Board admitted and consolidated the two contentions as NYS-35/36.
11  It admitted NYS-35 as a contention of omission insofar as it claimed that Entergy's SAMA cost-benefit analysis was incomplete, 12 and admitted NYS-36 insofar as it requested that the NRC either require implementation of "substantially" cost-beneficial SAMAs prior to approving Entergy's license renewal application 
("LRA") or offer a rational explanation for not doing so.
13  On January 14, 2011, New York moved for summary disposition of NYS-35/36, contending that Entergy's LRA should be denied due to Entergy's and the NRC Staff's purportedly inadequate analysis of potentially cost-beneficial SAMAs.
14  In the alternative, New York requested that there be no final decision on Entergy's LRA until the NRC Staff's Final Supplemental Environmental Impact Statement ("FSEIS") is supplemented to include the information called for in NYS-35/36.
15   On July 14, 2011, the Board granted New York's Motion and denied Entergy's and the NRC Staff's Cross-Motions.
16  The Board held that Entergy's licen ses cannot be renewe d unless and until the NRC Staff reviews Entergy's completed SAMA cost analyses and "either incorporates the result of these reviews into the FSEIS or, in the alternative, modifies the FSEIS to provide a valid reason for recommending license renewal before th e analysis of potentiall y cost-effective SAMAs 

10  March 2010 Motion for Leave at 14; March 2010 SAMA Contentions at 37 (citing SAMA candidates IP2-028, 044, 054, 060, 061, 065 and IP3-055, 061, and 062).
11  See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, 695-702 (2010), petition for interlocutory review denied, CLI-10-30, 72 NRC 564 (2010).
12  See id. at 698. 13  Id. at 699-702.
14  See State of New York's Motion for Summary Disposition of Consolidated Contention NYS-35/36 at 2 (Jan. 14, 2011), available at ADAMS Accession No. ML110270252.
15  See id. at 2-3. Both Entergy and the NRC Staff opposed the Motion and filed separate Cross-Motions to dismiss NYS-35/36 as a matter of law.
See Applicant's Consolidated Memorandum in Opposition to New York State's Motion for Summary Disposition of Contention NYS-35/36 and in Support of Its Cross-Motion for Summary Disposition (Feb. 3, 2011), available at ADAMS Accession No. ML110460187; NRC Staff's (1) Cross-Motion for Summary Disposition, and (2) Response to New York State's Motion for Summary Disposition, of Contention NYS-35/36 (Severe Accident Mitigation Alternatives) (Feb. 7, 2011), available at ADAMS Accession No. ML110400012.
16  See Indian Point, LBP-11-17, 74 NRC at 15.
4is complete and for not requiring the implementation of cost-beneficial SAMAs."
17  Citing Commission adjudicatory precedent, the Board further stated that a SAMA need not be implemented as part of a particular plant's license renewal review when the Commission is concurrently resolving the safety improvement achieved by the SAMA through a generic process applicable to the agency's review of all plants' current licensing bases.
18  Entergy appealed the Board's decision to the Commission.
19  The Commission found that Entergy's appeal was interlocutory and, therefore, must await the Board's final merits decision in this proceeding.
20  The Commission noted, however, that "the Board was careful not to require the Staff [to] impose the cost-beneficial SA MAs as a condition" for license renewal.
21  Rather, the Board provided the NRC Staff with the option to further explain its reas oning for not requiring implementation of cost-beneficial SAMA s in the context of license renewal.
22  B. Entergy's May 2013 Submittal of NL-13-075 On May 6, 2013, Entergy submitted the results of its completed engineering project cost estimates for the 22 SAMAs previously identified as potentially cost-beneficial as well as an augmented explanation for not implementing cer tain SAMAs as part of license renewal.
23  Also, as stated in NL-13-075, Entergy has implemented, or elected to implement, four of those SAMAs, albeit not as part of license renewal.
24  Entergy notified the Board and parties of its submittal of NL-

17  Id. at 27 (emphasis added).
18  See id. at 25 (citing McGuire/Catawba, CLI-02-28, 56 NRC at 388 n.77).
19  See Applicant's Petition for Review of LBP-11-17 Granting Summary Disposition of Consolidated Contention NYS-35/36 (July 29, 2011), available at ADAMS Accession No. ML11217A066.
20  See Indian Point, CLI-11-14, 74 NRC at 802, 810-12.
21  See id. at 813. 22  See id. The Commission noted, for example, that it would be reasonable for the NRC Staff to further explain in the FSEIS why it believes the cost-beneficial SAMAs are appropriately excluded from further consideration in license renewal, and whether the Staff believes that any of the cost-beneficial SAMAs may warrant further consideration as a safety matter outside of the license renewal review.
See id. at n.70.
23  See generally NL-13-075.
24  See id., Attach. 1 at 9.

5 13-075 by letter dated May 7, 2013.
25  As stated therein, Entergy submitted NL-13-075 to support resolution of certain issu es identified by the Board in its July 14, 2011 decision.
26   C. The June 10, 2013 Conference Call During the June 10, 2013 conference call, the Board and parties briefly discussed the implications of Entergy's submittal of NL-13-075, including related procedural issues that might warrant clarification from the Board.
27  During those discussions, NRC Staff counsel stated that the Staff is reviewing the new information provided by Entergy as part of NL-13-075 and evaluating whether that information triggers the need for an FSEIS supplement.
28  NRC Staff counsel indicated that the Staff would make that determination in the "near term."
29  NRC Staff counsel also expressed the view that parties co uld seek to "reopen" the record or file proposed new contentions before the Staff documents its review of NL-13-075.
30  Entergy and New York counsel stated different opinions, suggesting th at further NRC Staff action (e.g., the issuance of an FSEIS supplement or some other documentation) is required before any motions or proposed contentions stemming from NL-13-075 are ripe for adjudication by the Board.
31 D. The Parties' June 20 and June 24, 2013 Consultations Before filing this Motion, Entergy consulted with the other parties on certain matters 

discussed during the June 10, 2013 conference call.
The parties' consultati ons, which took place on June 20 and June 24, 2013, informed the presentation of issues in this Motion. Generally speaking, 25  See Letter from Counsel for Entergy to Atomic Safety and Licensing Board, "Notification of Entergy's Submittal of the Results of Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial" (May 7, 2013), available at ADAMS Accession No. ML13127A458.
26  See id. at 1. 27  See June 10, 2013 Tr. at 4515-31.
28  See id. at 4515-18.
29  Id. at 4518.
30  See June 10, 2013 Tr. at 4516-17 (Turk), 4521-23 (Harris).
31  See id. at 4527-28 (Bessette) (Note that the transcript incorrectly attributes Entergy counsel's statements to Mr. Burchfield.); see also id. at 4530 (Sipos).
6 the parties adhered to the views set forth above, with Ente rgy and New York suggesting that motions or proposed contentions based on NL-13-075 and potentially implicating the Board's summary disposition ruling in LBP-11-17 would not be ripe for adjudication until the NRC Staff documents its evaluation of NL-13-075.
32  NRC Staff counsel again suggested that such submissions need not await the Staff's completion and documentation of its review.
33 IV. REQUEST FOR CLARIFICATION In view of the above, Entergy seeks clarification from the Board on a threshold procedural issue:  What is the appropriate "trigger" for further adjudicatory submissions by the parties related to NL-13-075?  In light of the Board's su mmary disposition ruling in LBP-11-17, Entergy respectfully submits that any such submissions would be premature until the NRC Staff documents its review of NL-13-075. Entergy's position rests on the express language of LBP-11-17, in which the Board held that "the NRC Staff has prematurel y concluded its review be fore receiving all the requisite information from Entergy, and that until the NRC Staff receives and analyzes that information , it necessarily cannot take the requisite ha rd look at Entergy's LRA that is required under NEPA."
34  In a similar vein, the Board stated th at Entergy's licenses cannot be renewed:  (1) unless and until the NRC Staff reviews Entergy's completed SAMA analyses and either incorporates the result of these reviews into the FSEIS or, in the alternative, (2) modifies its FSEIS to provide a valid reason for reco mmending the renewal of Entergy's li censes before the analysis of potentially cost-effective SAMAs is complete and for not requiring the implementation of cost-

32  At this juncture, it is unclear what conclusions the Staff will reach with respect to the additional information provided by Entergy in NL-13-075, and how it will document those conclusions. However, it is reasonable to assume that the Staff's evaluation could precipitate further adjudicatory submissions by the parties, such that it is appropriate to pursue the clarification sought herein now.
33  Entergy also raised, and the parties discussed, possible procedural vehicles by which Entergy might seek Board review of its summary disposition ruling in LBP-11-17. Although Entergy would welcome Board guidance on that procedural matter, the parties agreed that such a request for clarification might be regarded as premature at this time. 34  Indian Point, LBP-11-17, 74 NRC at 26 (emphasis added).
7 beneficial SAMAs as part of license renewal.
35  Accordingly, Entergy seeks confirmation that any future adjudicatory submissions related to NL-13-075 and/or LBP-11-17 (e.g., motions, proposed contentions) should await the NRC Staff's documentation of its evaluation of NL-13-075. Entergy respectfully submits that such an approach would be consistent with (1) the terms of the Board's ruli ng in LBP-11-17 and (2) the well-established principle that "the ultimate issue in determining NEPA compliance is the adequacy of the Staff's environmental review."
36  Furthermore, Entergy proposes that any future adjudicatory submissions arising from information in NL-13-075 be made within 30 days of the NRC Staff's issuance of its written evaluation of that information, whatever form that may take. If that evaluation takes the form of an FSEIS supplement, then Entergy proposes that the parties make any such submissions within 30 days of the Staff's issuance of the draft FSEIS supplement.
37    V. CONCLUSION Entergy respectfully requests that the Board grant the clarification requested in this Motion in order to remove current procedural uncertainties and facilitate the timely and efficient resolution of this proceeding. Specifically, Entergy reques ts that the Board clarify whether any future adjudicatory submissions relate d to NL-13-075 and/or LBP-11-17 (e.g., motions and proposed 

35  Id. at 27. See also June 10, 2013 Tr. at 4517-18, 4554-55 (Judge McDade) (("[W]e have ruled that given the state of the record at the time of our ruling, the license would not be approvable [but] two things could change that. Either the Commission overrules the Board's decision, or the state of the record changes.").
36  Entergy Nuclear Generation Co. & En tergy Nuclear Operations, Inc.  (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC ___, slip op. at 30 (Feb. 9, 2012).
37  Entergy suggests proceeding based on the draft FSEIS supplement (assuming one is issued) given the advanced stage of this litigation and the Board's stated desire to promote the fair and expeditious resolution of this proceeding. See Licensing Board Order (Scheduling Telephonic Conference) at 2 (May 30, 2013) (unpublished). It also would be consistent with the well-established principle that petitioners/intervenors are expected to submit proposed contentions based on new information-in this case, the results of the NRC's review of NL-13-075-as that information becomes available to them. See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010) (stating, in the context of a new contention filed after the initial petition, that the Commission has a "longstanding policy that a petitioner has an 'iron-clad obligation to examine the publicly available documentary material . . . with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention'") (citations omitted); Duke Power Co.
 (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1045, 1048 (1983) (holding that the institutional unavailability of a licensing-related document does not establish good cause for filing a contention late if information was publicly available early enough to provide the basis for the timely filing of that contention).
8 contentions) should await the NRC Staff's documen tation of its evaluation of NL-13-075. Entergy also requests Board guidance, to the extent practicable, on the timing of any such submissions.
Respectfully submitted,  Executed in accord with 10 C.F.R. &sect; 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) 739-5738 E-mail:  wglew@entergy.com   E-mail:  ksutton@morganlewis.com E-mail:  wdennis@entergy.com   E-mail:  pbessette@morganlewis.com 

Martin J. O'Neill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 

Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail:  martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc. 

Dated at Washington, DC 

this 25th day of June 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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)  ) 

  ) June 25, 2013 CERTIFICATION OF COUNSEL In accordance with 10 C.F.R. &sect; 2.323(b), counsel for Entergy certifies that he made a sincere effort to contact the other partie s in this proceeding on June 20, 2013, to explain to them the factual and legal issues raised in this Motion, and to reso lve those issues to the extent practicable, and he certifies that his efforts to avoid the need fo r this Motion have been unsuccessful. During the parties' consultations, New York State and the NRC Staff indicated that they likely will file answers to Entergy's Motion expressing their respective views on the issues raised therein. Riverkeeper and Clearwater take no position on Entergy's Motion at this time.
Executed in accord with 10 C.F.R. &sect; 2.304(d)
Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 

Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail:  martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 74492699 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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)  ) 

  ) June 25, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. &sect; 2.305 (as revised), I cert ify that, on this date, copies of "Applicant's Motion For Clarification Regarding the Timing of Adjudicatory Submissions Related to Entergy Letter NL-13-075" were served upon the Electronic Information Exchange (the NRC's 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.}}