ML14009A502

NRC Staff'S Answer to State of New York Motion for Leave to File Reply on Motion to Reopen the Record and for Reconsideration of Contention NYS-12C

ML14009A502
Person / Time
Site:	Indian Point
Issue date:	01/09/2014
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25474
Download: ML14009A502 (14)

Text

January 9, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 ANSWER TO STATE OF NEW YORK MOTION FOR LEAVE TO FILE REPLY ON MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION OF CONTENTION NYS-12C INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) herewith files its answer in opposition to the State of New York Motion for Leave to File Reply on Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (New Yorks Request for a Reply). The Staff submits that New Yorks Request for a Reply should be denied, on the grounds that the State of New York (New York or State) has not demonstrated that it has met the requirements in 10 C.F.R. §2.323(c).

BACKGROUND New York requests leave to reply to the NRC Staffs Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Staffs Opposition), filed on December 23, 2013. The Staffs Opposition was filed in response to State of New York Motion to Reopen and for Reconsideration on Contention NYS-12C (New Yorks Motion to Reopen), filed on December 7, 2013.

New York claims that it could not have reasonably anticipated (1) the information contained in the Affidavit of S. Tina Ghosh in Support of the NRCs Staffs Opposition to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C,

(Dr. Ghoshs Affidavit); (2) the Staffs discussion of the States August 1, 2013 Comment letter; 1 (3) arguments regarding the scope of the Staffs disclosures; and (4) Entergys examination of New Yorks disclosures on this same issue.

DISCUSSION I. Legal Standard Governing Motions for Leave to Reply Section 2.323(c) of the Commissions Regulations provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply (emphasis added). In 2004, when the Commission added the compelling circumstances standard to 10 C.F.R. §2.323(c), 2 it stated that in order to satisfy the compelling circumstances, the moving party must show that manifest injustice would occur in the absence of a reply and that the arguments raised in the reply could not have been raised earlier. 3 II. New Yorks Claims of Compelling Circumstances are Unsupported A. Dr. Ghoshs Affidavit is Entirely Consistent with the Staffs Testimony New York argues that could not have anticipated that the Staff would explain why New Yorks unsupported and unqualified conclusions regarding the use of an 1-year decontamination time in the Spent Fuel Pool Scoping Study are incorrect. Further, New York states that [d]uring consultation on the States motion, NRC Staff stated that its use of a 365-day TIMDEC in the Spent Fuel Pool [Scoping] Study was not relevant because it came from a different study, and, again, [t]he material in the Ghosh affidavit was not previously available to the State (or the public) and was not discussed during the consultation preceding the States Motion to reopen 1

Letter from John Sipos, Assistant Attorney General for New York, to Cindy Bladey, Chief of Rules, Announcements, and Directives Branch, NRC, (August 1, 2013 Comment Letter), Staffs Opposition, Attachment B, dated August 1, 2013.

2 See Changes to Adjudicatory Process (Final Rule), 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004).

3 Id.

and reconsider. New York is mistaken.

1. New Yorks Characterization of the Consultations are Incorrect New Yorks characterization of the consultations regarding both its Motion to Reopen and its Request for Reply are incorrect. First, New York represents that Staffs position on the use of the 1-year decontamination time in the Spent Fuel Pool Scoping Study was not relevant because it came from a different study 4 and that the Staff provided no further elaboration. 5 Contrary to these statements by New York, the Staff explained that the Spent Fuel Pool Scoping Study represented a single highly unlikely event that could conditionally result in widespread contamination and, thus, represented an analysis unlike the SAMA analysis. The Staff had previously discussed this same issue during the consultation on New Yorks Motion to Reopen and communicated it by email to New York when the MACCS2 files were made available to the public. 6 During the consultation on the instant motion and New Yorks Motion to Reopen, the Staff explained that the decontamination times should be selected to represent the range of accidents being modeled. 7 For SAMA analysis of reactor accidents, this would include nominal releases from reactor accidents without containment failure. 8 With respect to the Spent Fuel Pool Scoping Study, the Staff explained that it represented a single accident that resulted in either no release or conditional large release. In other words, the Spent Fuel Pool Scoping Study did not model accidents with nominal or minor releases to environment due to its limited purpose.

2. New Yorks Expectations Regarding Consultations Are Not Equitable New York complains that the Staff should have discussed the precise contents of Dr.

4 New Yorks Request for a Reply at 3.

5 Id.

6 See, e.g., New Yorks Motion to Reopen, Attachment 5, at 4, 8 7

Transcript at 1907, 2139-40, 2146, 2153-55 8

Id. at 1907, 2153-54.

Ghoshs affidavit prior to New Yorks filing of its Motion to Reopen, Mr. Sipos declaration, and Mr. Mahilrajans declaration. 9 During New Yorks consultation on its Motion to Reopen, Mr.

Sipos made no reference to his declaration or Mr. Mahilrajans declaration. As such, New York cannot claim that the Staff had any obligation to discuss the precise nature of Dr. Ghoshs affidavit. 10 New Yorks expectations that other parties describe in detail the exact nature and specific contents of their opposition in response to the States general description of its proposed motion are inequitable. New York, however, exempts itself from these inequitable requirements. For example, when the Staff and Entergy both questioned New York on why it should not have been aware of the 1-year decontamination time disclosed in the Draft Spent Fuel Pool Scoping Study, the State provided only a cursory response that the MACCS2 input/output files confirmed the TIMDEC and that the term, TIMDEC, did not appear in the studies. 11

3. Dr. Ghoshs Affidavit Repeats the Information Provided to the Board During the Hearing New York also complains that information in Dr. Ghoshs Affidavit is new and was not previously available. In support of this argument, New York asserts that Dr. Ghoshs Affidavit for the first time attempts to set forth an explanation why Staff used a 365-day TIMDEC value, and attempts to distinguish the study of spent fuel pool severe accidents from the Indian Point

[SAMA] Analysis. 12 Yet, New York points to no requirement or reason for the NRC Staff to 9

New Yorks Request for a Reply at 3.

10 At the time of New Yorks consultation, the Staff had not yet determined whether it would need or include any affidavit from the Staff.

11 Although it difficult to integrate many of New Yorks incongruent statements and actions with respect to the Spent Fuel Pool Scoping Study, New York did explain that they had conducted a word search of the Spent Fuel Pool Scoping Study and were unable to locate the term TIMDEC. See New Yorks Request for a Reply at 5. Conducting a single search for a single term merely represents New Yorks failure to conduct appropriate due diligence for information made available to the public. As explained in the Staffs Opposition, the information regarding the 1-year decontamination time was available to anyone who cared to read the document.

12 New Yorks Request for a Reply at 3.

have needed to explain its selection of a 1-year decontamination time or explain the differences between the Spent Fuel Pool Scoping Study and a SAMA analysis conducted under NEPA. It is important to note that up and until New York filed its Motion to Reopen, there was no reason to distinguish Indian Points SAMA analysis from the Spent Fuel Pool Scoping Study or provide any explanation of the 1-year decontamination times. 13 Dr. Ghoshs explanation is entirely consistent with the testimony provided in this proceeding. Her affidavit was provided in direct response to New Yorks declarations from Mr.

Sipos and Mr. Mahilrajan and their conclusions. Witnesses at the hearing explained that the TIMDEC should represent all modeled scenarios and not just a worst case scenario. 14 Prior to New Yorks Motion to Reopen, the Staff had cautioned the State that the Spent Fuel Pool Scoping Study was unique. By email, the Staff indicated that the Spent Fuel Pool Scoping Study represented a highly unlikely spent fuel pool accident . 15 In other words, the Spent Fuel Pool Scoping Study examined a singular type of spent fuel pool accident and not the full range of accidents. As a result of the scope of the Spent Fuel Pool Scoping study and its very limited purpose of whether to expedite transfer of spent fuel from the pool to dry casks, a 1-year decontamination time was selected. 16

4. Dr. Ghoshs Affidavit is Not Misleading New York asserts that Dr. Ghoshs Affidavit is misleading. 17 In New Yorks opinion, Dr.

Ghoshs Affidavit is misleading because (1) it does not discuss the impact of population on the 13 As explained later, New York admits that it did not think that the Spent Fuel Pool Scoping Study was relevant to Contention NYS-12C until receiving the input/output files. As such, New York can hardly suggest that the Staff should have anticipated the States arguments when it drafted the Spent Fuel Pool Scoping Study.

14 See Staffs Testimony on NYS-12C, Ex. NRC000041, at 89-90; Entergys Testimony on NYS-12C, Ex. ENT000450, at 12; Transcript at 2139-40, 2146, 2153-55.

15 New York Motion to Reopen, Attachment 5, at 4, 8 (emphasis added).

16 Staffs Opposition at 13.

17 New Yorks Request for a Reply at 3.

economic costs of an accident and (2) it overstates the unlikeliness of the spent fuel pool accident in comparison to the accidents modeled in the Indian Point SAMA analysis.

New York argues that Dr. Ghoshs Affidavit should have discussed the impact of population on the overall economic costs. 18 New Yorks Motion to Reopen, however, focused solely on the 1-year decontamination time. New Yorks own motion did not discuss any relationship between the decontamination time and population residing in any particular sector.

As such, the Staff was under no obligation to address an issue New York failed to raise. If New York believes that TIMDEC was tied to the resident population, it was incumbent on the State to raise the issue in its initial filing. 19 New York, also, argues that the frequency Dr. Ghosh provides in her affidavit is on par with the frequencies of accident scenarios, i.e. releases, examined by Entergy in its Indian Point SAMA analysis .... 20 New York misreads the meaning and context Dr. Ghoshs Affidavit. New York interprets this frequency as the fully developed statement of probability similar to the frequencies identified in the Indian Point SAMA analysis. However, the Draft Spent Fuel Pool Scoping Study and the Final Spent Fuel Pool Scoping Study explain that this frequency simply provides the upper bound for analysis. The Final Spent Fuel Scoping Study states that, The inclusion of probabilistic aspects within the current study allows the study to consider some aspects of likelihood, but will not support definitive statements on risk. 21 The study explains that actual frequencies are likely to be much lower than 10-7 per reactor year. 22 Thus, New Yorks comparison of frequencies of the modeled reactor accidents with the modeled spent fuel 18 New Yorks Request for a Reply at 3-4.

19 TIMDEC is, in fact, independent of the population residing in the modeled area, unlike decontamination costs.

20 New Yorks Request for a Reply at 4.

21 New Yorks Motion to Reopen, Attachment 7, at 7.

22 Although not quantified in this study, the study does indicate that the overall likelihood of a spent fuel pool accident once credit for 10 C.F.R. 50.54(hh)(2) mitigation measures is incorporated is approximately a factor of 20, 5.5x10-9 per reactor year. Id., Attachment 7, at x.

pool accident is incorrect because it fails to control for the significant differences in the analyses.

The frequencies New York argues are on par with the Reactor accidents are not directly comparable. New Yorks belated arguments on frequency also fail to account the Final Spent Fuel Pool Scoping Studys conclusion that the actual accident is likely to be 20 times lower than the frequency used in its analysis. 23 Once this conservatism is removed, the spent fuel pool accident frequency is an order of magnitude less probable than the least likely accident modeled at either Indian Point Unit 2 or Unit 3. Regardless, this information was available to New York prior to its Motion to Reopen and should have been raised earlier.

Belatedly, New York seeks through its request for a reply to substitute a qualified experts declaration for the declarations submitted by Mr. Sipos and Mr. Mahilrajan. 24 The regulations required that a party seeking to reopen a closed record must submit affidavits by competent and qualified individuals. 25 The time for providing an experts declaration in support of its Motion to Reopen has passed and cannot be cured through wholesale substitution in a reply.

B. New Yorks August 1, 2013 Comment Letter Demonstrates Its Active Participation in the Spent Fuel Pool Scoping Study New York asserts that the Staff mischaracterized the August 1, 2013 Comment Letter. 26 New York explains that it is seeking a reply to correct NRC Staffs mischaracterization of the letter and to reiterate that it was not aware of the 365-day TIMDEC until its experts had a chance to review the MACCS2 input/output files. 27 Beginning first with New Yorks second reason, the State asserts that it simply wants to repeat its arguments from its Motion to Reopen 23 New Yorks Motion to Reopen, Attachment 7, at x 24 New Yorks Request for Reply at 3-4.

25 10 C.F.R. § 2.326(b).

26 New Yorks Request for a Reply at 6.

27 Id. at 6.

that it was not aware of the 1-year decontamination time until it received the MACCS2 input/output files in their native format. 28 New York fully articulated this argument in its Motion to Reopen. The mere repetition of New Yorks previous arguments regarding timeliness is inadequate to satisfy the compelling circumstances and manifest injustice required to grant a reply. In light of the consultation preceding New Yorks filing, the State was fully aware that the Staff was going to oppose the Motion to Reopen based on timeliness. Simply put, the August 1, 2013 Comment Letter clearly demonstrates that New York should have identified this information earlier and that New Yorks failure to exercise sufficient due diligence cannot excuse its untimeliness. Thus, there is no reason to allow New York to reiterate or supplement its timeliness arguments.

New York also argues that the Staff mischaracterized its August 1, 2013 Comment Letter. 29 Even if New Yorks arguments were assumed to be true, it would not give raise to any manifest injustice if the request for a reply was denied because the Staff provided a full copy of the States letter. The Board is capable of examining the August 1, 2013 Comment Letter and giving it the appropriate weight in its ruling.

New Yorks assertions regarding the Staffs interpretation of August 1, 2013 Comment Letter, however, are incorrect. While the Staff would acknowledge that the August 1, 2013 Comment Letter is vague, New Yorks selected quotation regarding sufficient time and experts references a conversation between Ms. Janice Dean, counsel for New York, and Mr. Don Algama, Office of Nuclear Regulatory Research, during the week of July 22. The full quotation states:

During the week of July 22, New York State Assistant Attorney General Janice Dean communicated with NRC Staff to request an extension of the comment period noticed in the Federal Register.

As AAG Dean explained to Don Algama at NRCs Office of 28 New Yorks Request for a Reply at 6.

29 Id. at 6.

Nuclear Regulatory Research, the 30-day comment period did not afford sufficient time for the State to identify and retain expert consultants to review the highly technical Draft Study. 30 New York seemingly asserts that this description of Ms. Deans July conversation shows that New York did not consult with its experts. If that was the only reference to the States experts, New York might be correct that the letter was unclear regarding expert consultation. But, the August 1, 2013 Comment Letter states fairly conclusively that the State used its experts. Mr.

Sipos stated the short 30-day comment period and the release of the study occurred in the middle of the summer vacation season, which further complicated review and expert interaction. 31 Notably, Mr. Sipos statements in the August 1, 2013 Comment Letter appear to contradict his statements in New Yorks Request for a Reply. New Yorks reasons for seeking a reply to Staffs characterization of the August 1, 2013 Comment Letter fail to satisfy the compelling circumstances standard because the Board has August 1, 2013 Comment Letter before them and is capable of drawing any appropriate inferences. Furthermore, the Staffs characterization is fully consistent with the letter. Thus, New Yorks Request for a Reply should denied.

C. The Staffs Discussion of its Disclosure Obligations is Entirely Consistent with the Boards Orders in this Proceeding New York argues, first, that the Staff misinterpret[ed] its disclosure argument and contradicts the Commissions 2012 amendments to 2.336(b); 32 and second, based solely on attorney argument, that the Staff failed to disclose information New York believes to be contradictory to the Staffs testimony in this proceeding. 33 New Yorks arguments are incorrect.

New Yorks arguments that it could not anticipate that the Staff would argue that the 30 Staffs Opposition, Attachment B, at 1.

31 Id., Attachment B, at 2.

32 New Yorks Request for a Reply at 6.

33 Id. at 7.

scope of its discovery obligations were different than New Yorks assertions in its Motion to Reopen are not plausible. New York has previously argued in motions to compel 34 that the scope of the Staffs discovery included without limitation any documents that were relevant to admitted contentions. 35 The Staff, however, opposed New Yorks assertions regarding the scope of discovery in every set of filings. For example, the Staff explained that although the scope of discovery was broad it was not without limitation. 36 The Staffs discovery obligations extended to documents supporting the Staffs review. 37 Inexplicably, both New Yorks Motion to Reopen and its Request for a Reply fail to address the Boards Order in this proceeding. The Board, in ruling on one of New Yorks motions to compel, adopted the Staffs interpretation regarding the scope of discovery and explicitly ruled that documents like the Spent Fuel Pool Scoping Study are not within the Staffs discovery obligations in this proceeding. 38 As such New York cannot credibly claim that it could not anticipate the Staffs arguments regarding the scope of its discovery. New York should have anticipated that the Staff would raise the Boards previous rulings regarding the scope of the Staffs discovery and, specifically addressed how that ruling should not apply here. Finally, New Yorks description of the arguments it seeks to include in its reply appear to rehash the arguments previously raised in its Motion to Reopen.

Despite asserting that the Staff failed to disclose information contradicting its previous testimony in this proceeding, New York fails to identify any statements by the Staff during its testimony regarding SAMA analysis that is contradicted by the information in the Spent Fuel Pool Scoping Study or Dr. Ghoshs Affidavit. Importantly, New York has not pointed to any 34 State of New York And Riverkeeper Motion to Compel Compliance with Disclosure Obligations By NRC Staff, at 11-14 (Jan. 30, 2012).

35 New Yorks Request for a Reply at 8.

36 NRC Staff's Answer to " State of New York And Riverkeeper Motion to Compel Compliance with Disclosure Obligations By NRC Staff, at 11.

37 See Order (Granting in Part and Denying in Part State of New York and Riverkeepers Motion to Compel), at 8 (March 16, 2012) (unpublished).

38 Id.

contradictory statements by Staff. New Yorks unsupported assertion is insufficient to satisfy the compelling circumstances required to grant a reply.

New Yorks should have anticipated that the Staff would (1) object in similar matter as in its previous filings to the scope of discovery advanced by New York, (2) argue that the scope of discovery should be governed by the controlling precedent contained in the Boards previous rulings, and (3) assert that the information contained in the Spent Fuel Pool Scoping Study and Dr. Ghoshs Affidavit are consistent with the Staffs previous representations and testimony.

Thus, New Yorks Request for Reply does satisfy the requirements of 10 C.F.R. §2.323(b) and should be denied.

D. Entergys Examination of the States Disclosures New York takes issue with Entergys analysis of the States disclosures. New Yorks arguments appear to misconstrue Entergys Answer Opposing State of New York Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Entergys Opposition),

filed on December 23, 2013. New York inexplicably focuses only on Entergys reference to the presiding officers inherent ability to impose sanctions on a party. Entergys argument, however, simply suggests that New Yorks failure to disclose documents related to the Draft and Final Spent Fuel Pool Scoping Study was either a result of New Yorks determination that they were not particularly relevant or had not been disclosed properly. 39 Importantly, New York admits that it did not believe the information in the studies to be relevant to Contention NYS-12C. New York states that it did not believe the Spent Fuel Pool Consequence Study was relevant to NYS-12C, 40 until reviewing the MACCS2 input/output files which provided the 1-year decontamination time in an equally accessible but different format. Regardless, New Yorks request to respond to Entergys discussion of the States disclosures does not satisfy the 39 Entergys Opposition at 11.

40 New Yorks Request for a Reply at 5-6.

compelling circumstances standard or result in some manifest injustice if the reply was not granted. Thus, New Yorks Request for a Reply should be denied.

CONCLUSION New Yorks request for leave to reply to the Staffs Answer is not authorized by 10 C.F.R. § 2.323(b). New York failed to establish that it could not have reasonably anticipated the arguments raised in the Entergys Opposition and the Staffs Opposition. New York, also, failed to demonstrate why it could not have raised issues in its initial filing. Finally, New York never showed how manifest injustice would occur in the absence of a reply. Thus, New Yorks Motion should be denied.

Respectfully submitted, Signed Electronically by Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, Maryland this 9th day of January 2014

CERTIFICATION OF COUNSEL Counsel for the Staff certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.

Signed Electronically by Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, Maryland this 9th day of January, 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) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO STATE OF NEW YORK MOTION FOR LEAVE TO FILE REPLY ON MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION OF CONTENTION NYS-12C, dated January 9, 2014, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 9th day of January, 2014. :

Signed Electronically by Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov