ML090400537

Riverkeeper, Inc., Submittal of Answer in Opposition to Entergy'S Petition for Interlocutory Review of the Atomic Safety and Licensing, Board Decision Admitting Consolidated Contention EC-3/Clearwater EC-1 in Proceeding

ML090400537
Person / Time
Site:	Indian Point
Issue date:	01/20/2009
From:	Brancato D Riverkeeper
To:	Annette Vietti-Cook NRC/SECY/RAS
RAS SECY
References
50-247-LR, 50-286-LR, RAS E-217
Download: ML090400537 (34)

Text

DOCKETED C-ýaI/ USNRC January 23, 2009 (8:30am)

OFFICE OF SECRETARY RULEMAKINGS AND RIVERKEEPEP. ADJUDICATIONS STAFF January 20, 2009 Via E-mail and U.S. Mail Annette L. Vietti-Cook Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, DC 20555-0001 Re: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR, 50-286-LR

Dear Mrs. Vietti-Cook:

Enclosed herewith for filing with the Commission, please find, "Riverkeeper, Inc.'s Answer in Opposition to Entergy's Petition for Interlocutory Review of the Atomic Safety and Licensing, Board Decision Admitting Consolidated Contention Riverkeeper EC-3/Clearwater EC-i," in the above-referenced proceeding.

Thank you for your consideration.

Sincerely, Deborah Brancato Enclosures 828 SouthBroadway, Tarrytown, NY 10591

• 914.478.4501 f: 914.478.4527

• www.riverkeeper.org PH=

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UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR

.)

RIVERKEEPER, INC.'S ANSWER IN OPPOSITION TO ENTERGY'S PETITION FOR INTERLOCUTORY REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD DECISION ADMITTING CONSOLIDATED CONTENTION RIVERKEEPER EC-3/CLEARWATER EC-1 Filed January 20, 2009

TABLE OF CONTENTS PRELIM INARY STATEM ENT ........................................................ 1 BA C K G RO U N D ...... ........ ................ .....................................

ARGUMENT ............................................................... 5 POINT I: ENTERGY HAS FAILED TO DEMONSTRATE THAT INTERLOCUTORY REVIEW IS APPROPRIATE ............................. 5 A. Entergy Has Failed To Meet The Standard Under NRC Regulations For A Grant Of Interlocutory Review .......................... 5

i. Entergy has Failedto DemonstrateImmediate and Serious IrreparableHarm in Accordance with 10 C.F. R. § 2.341( ) (2)(i) ....... 6 ii. Entergy has Failedto Demonstrate that the Board'sRuling Affects the Basic Structure of the Proceedingin a Pervasive or Unusual Manner in Accordance with 10 C.F.R. § 2.341JW(2)(ii) ....... 9 B. The Issues Presented Do Not Warrant The Commission's Use Of Its Inherent Supervisory Powers .................................. 12 POINT 11: ENTERGY HAS FAILED TO IDENTIFY ANY REVERSIBLE ERROR BY THE BOARD ............................................... 16 A . Applicable Legal Standard .................... ....................... 16 B. The Board's Decision Admitting the Consolidated Contention Does Not Contain Any Material Errors of Law ......................... 17 The Board's Findingthat it is Uncertain Whether Entergy's Conclusions Regarding the Significance of Groundwater Contaminationare Sufficient to Satisfy Applicable Regulations or Aid the Commission in the Preparationof its EIS is Completely Accurate ...................................... 17 ii. The Board's Findingof a Genuine Issue as to the Significance of the New InformationRelating to Spent Fuel Pool Leaks was Correct ............................................ 20'

a. IPI Leaks are Within the Scope of the Proceeding .............. 20

b. The Board Properly Considered EPA Drinking Water Standards.. .22 iii. The Board's Findingof a Remaining Question as to Whether Entergy Has Determined the Maximum GroundwaterImpact is Wholly Appropriate...................................... 24 CONCLUSION .............................................................. 25 i

TABLE OF AUTHORITIES Page CASES See Advanced Medical Systems, Inc. (One Factory Row Geneva, OH 44041), ALAB-929, 31 N.R.C.

271 (1990) ........................... I ........................................... 12, 14 Amergen Energy Co. (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24, 64 N .R .C . 111 (2006) ........................................................ 6, 10, 16 Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-269, 1 N.R.C. 411..(1975) .... 6 CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant), CLI 11, 51 N.R.C. 297 (2 0 00 ) . . . . . . . . . . . . . . . . . .... . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . 13 Cleveland ElectricIlluminatingCo. (Perry Nuclear Power, Units I and 2), ALAB-675, 15 N.R.C. 1105 (19 82 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-1 16, 6 A.E.C. 258 (1973) ......... 8,9 Connecticut Yankee Atomic Power Co. (Haddam Neck Plant License Termination Plant), CLI-01 -25, 54 N .R .C . 368 (2001) ..... ................ I ........................................ 10, 16, 17 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N .R .C . 631 (2004) ................................................................ passim Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 N.R.C.

- (slip op. July, 2008) .............................................................. passim Entergy Nuclear Vermont Yankee, L.L. C. & Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), CLI-07-01, 65 N.R.C. 1 (2007) ..................................... ... passim Exelon GeneratingCo., L.L.C. (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 N.R.C. 461 (2004) ............................................ .............................. p assim GeorgiaPower Co. (Vogtle Electric Generating Plant, Units I and 2), CLI-94-15, 40 N.R.C. 319 (19 9 4) . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . .. . . . . .... .. . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 10 Hydro Resources, Inc. (2929 Coors Road, Suite 101 Albuquerque, NM 87120), CLI-98-8, 47 N.R.C.

314(1998) ............................................................ 7 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-855, 24 N.R.C. 792 (19 8 6 ) . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 N.R.C. 129 (1987) ....................................................................... 10 LouisianaEnergy Services, L.P. (National Enrichment Facility), CLI-05-21, 62 N.R.C. 538 (2005)... 16 ii

Marsh v. Oregon Natural Resources Counsel, 490 U.S. 360, 374 (1989) ...................... 18, 24 PennsylvaniaPower & Light Co. and Allegheny Electric Cooperative,Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 N.R.C. 550 (1981) ................................. 7 Private Fuel Storage, L.L.C. (Private Fuel Storage Facility), CLI-98-7,'47 N.R.C. 307 (1998)'. ..... 9, 11 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-02, 51 N.R.C. 77 (2000) . " 10 Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-00-13, 52'N.R.C. 23 (2000).. 14 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-01, 53 N.R.C. 1 (2001) ................................................................ ..... 10 See Sacramento Municipal Utility District(Rancho Seco Nuclear Generating Station), CLI-94-02, 39 N.R.C. 91 (1994) ........................................................... 6, 10 Sequoyah Fuels Corp. and GeneralAtomics (Gore, Oklahoma Site), CLI-94-11, 40 N.R.C. 55 (1994 ) . . ...... .......... ... ... .. .. .. .. ... .. ....... ...... . . .... ...... .. ... ...... . 6, 7,9 REGULATIONS 10 C .F .R. § 2.323(f) .................................................... .......... 8 10 C.F.R. § 2.336(a)(2)(iii)....................................................... 8, 11 10 C.F.R. § 2.341(b)(3) ....................................... 1 10 C.F.R. § 2.341(f)(2)(i), (ii) ................ ............................. .passim 10 C .F.R . § 51.53(c)(3)(iv) ...................... ................ ................. 1,23,24 40 C.F.R. § 1508.27 ........ .......... .................................... passim 111

PRELIMINARY STATEMENT On January 7, 2009, Entergy Nuclear Operations, Inc. ("Entergy") filed a petition seeking interlocutory Commission review of the Atomic Safety and Licensing Board ("Board") decision to admit Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 ("Consolidated Contention") in the Indian Point license renewal proceeding. See Entergy's Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Riverkeeper EC-3/Clearwater EC-1, January 7, 2009 (hereinafter referred to as "Entergy Petition for Interlocutory Review"). In accordance with 10 C.F.R. § 2.341(b)(3), Riverkeeper, Inc. ("Riverkeeper") hereby files its response in opposition to Entergy's Petition for Interlocutory Review. As discussed more fully herein, the Commission should deny the instant petition and allow the Board's ruling admitting the Consolidated Contention to stand because the petition has not met the applicable standards for Commission review, or, in the alternative, because Entergy has failed to demonstrate that the Board's decision was in error.

BACKGROUND On April 23, 2007, Entergy submitted a license renewal application to the Nuclear Regulatory Commission ("NRC") seeking to extend the operations of the Indian Point Energy Center for an additional twenty years. See Applicant's License Renewal Application ("LRA"). NRC regulations implementing NEPA require an applicant for license renewal to assess any "new and significant" information regarding the environmental impacts of the plant's operation during the renewal period.* 10 C.F.R. § 51.53(c)(3)(iv). NRC regulations do not explicitly defihe "significant," however the Council on Environmental Quality ("CEQ") regulations implementing NEPA offer guidance. 40 C.F.R. § 1508.27.

The CEQ's long definition of "significantly" requires consideration of the effects of the proposed action on the specific locale, as opposed to the world as a whole, as well as the intensity of the impacts. Id.

Entergy's LRA included an Environmental Report which contained a section identifying and assessing "new and significant information," in an attempt to satisfy the requirements of 10 C.F.R. § 51.53(c)(3)(iv). See Entergy's Environmental Report ("ER") at Section 5.0. In this section, Entergy I

identified groundwater contamination as new information, however, assessed that the environmental impacts from this were "small" and therefore not "significant" for purposes of NEPA. See ER at 5-2, 5-4, 5-6. Entergy came to this conclusion by asserting that toxic radionuclides had only been detected in "low concentrations" in monitoring wells. See id. at 5-4. Entergy further claimed that the contamination from Indian Point Unit 2 ("IP2") spent fuel pools was historic and not the result of active leaking, and that the contamination from Indian Point Unit I ("IP I") would cease once those pools were drained. See id. at 5-5, 5-6. Entergy also emphasized that the groundwater around the site was not put to any "beneficial use,"

such as drinking water, and otherwise calculated that the dose to a maximally exposed individual was within NRC limits. Seeid. at 5-4, 5-5. Entergy, thus, concluded that public health and safety had not been, and was not likely to be affected by the current onsite' groundwater contamination. See id. at 5-5.

Viewing this assessment as wholly inadequate, Riverkeeper filed' Contention EC-3, asserting that Entergy's has not sufficiently analyzed the current and future impacts of the spent fuel pool leaks on groundwater and the Hudson River ecosystem in compliance with NEPA and NRC regulations. See Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene in Indian Point License Renewal Proceeding, November 30, 2007 (hereinafter "Riverkeeper Petition") at 74-86. Specifically, Riverkeeper pointed to the fact that Entergy had failed to definitively determine the status and duration of the IP2 leaks, since it was unable to inspect over half of the IP2 spent fuel pool liners and since sample results showed that the contamination in the vicinity of IP2 was not merely a remnant of historic leakage. See id.

at 74, 80-82. Riverkeeper further disputed Entergy's characterization of the degree of the groundwater contamination, since Entergy's claim that radionuclides were only detected in "low concentrations" Was flatly contradicted by the fact that Strontium-90 and cesium-137 had been detected in. concentrations well in excess of levels allowed by the Environmental Protection Agency ("EPA") in drinking water. See id.

at 75, 82-84 (citing to sampling results). Lastly, Riverkeeper took issue with Entergy's complete failure to include any assessment of the current and future impacts of the contamination on the Hudson River ecosystem. See id. at 75, 84-86 (citing to fish samples showing detectible levels of radionuclides).

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Entergy's Answer to Riverkeeper's Petition continued to insist that the releases to the environment from spent fuel pool leaks, although new, was not "significant" information. See Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper Inc.'s Request for Hearing and Petition to Intervene (January 23, 2008) ("Entergy Answer"), at 139-51. Citing to a hydrogeologic study Entergy had completed subsequent to the submission of the LRA and Riverkeeper's Petition ("Investigation Report"), Entergy asserted that it had thoroughly investigated the .IP2 spent fuel pool leaks. See Entergy Answer at 146-49. While Entergy stated that it had repaired all confirmed leaks from the IP2 pool, the Investigation Report acknowledged that "additional active leaks cannot be ruled out." Id. Entergy further maintained thatIP1 spent fuel pool leaks were not within the scope of the proceeding, since the IPI spent fuel pool is not part of the license renewal and since the pool was to be drained, and the leaking thereby terminated, by the end of 2008. Id. at 148-49. Entergy did acknowledge however, that the last spent fuel pool from IPI to be drained was leaking radioactive water at a rate of up to seventy gallons per day. Id. at 146. Entergy further asserted that its characterization of the degree of the groundwater contamination as "low" was accurate because drinking water standards do not apply since the contaminated groundwater is not a drinking water source. See id at 149. Lastly, Entergy maintained that it had satisfactorily assessed the impacts of the groundwater contamination on the Hudson River ecosystem since it had concluded that the only exposure pathway was through consumption of aquatic foods and that calculated doses from this were within NRC limits, and that any further assessment of harm to public health or the environment was contrary to applicable regulations. Id. at 149-50.

In response, Riverkeeper took issue with Entergy's attempt to bifurcate the groundwater contamination from the IPI spent fuel pools from the assessment of the impacts of leaks on groundwater and the Hudson River. See Riverkeeper, Inc.'s Reply to Entergy's and NRC Staff s Responses to Hearing Request and Petition to Intervene, February 15, 2008 ("Riverkeeper Reply"), at 63-64. Riverkeeper maintained that EC-3 was focused on the need for Entergy to assess current and future impacts of spent fuel pool leaks at Indian Point, which included the cumulative impacts due to past leaks, including those emanating from IPl. Id. Riverkeeper further defended its use of EPA drinking water limits as a 3

benchmark for assessing the degree of the groundwater contamination, which demonstrated that Entergy had not sufficiently analyzed the impacts of the contamination in accordance with NEPA. Id. at 70-72.

Riverkeeper also continued to maintain that Entergy had failed to assess impacts of the groundwater contamination to Hudson River biota, and, therefore, Entergy could not conclude that the impacts of spent:

fuel pool leaks are not "significant." Id. at 65, 73-75.

On July 31, 2008, the Board issued its ruling admitting Riverkeeper's EC-3. See Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 N.R.C. (slip op. July, 2008) ("July 31 Ruling"),.at 184-88. The Board found a genuine issue as to whether Entergy's conclusions in its ER regarding the significance of groundwater contamination were sufficient for purposes of satisfying NEPA and NRC regulations.. Id. at 187-88. TheBoard consolidated Riverkeeper's EC-3 with a materially similar contention proffered by Hudson River Sloop Clearwater ("Clearwater").

Id. at 188. Thereafter, Riverkeeper and Clearwater filed a Consolidated Contention with the Board. See Consolidated Contention of Petitioners Riverkeeper, Inc. (EC-3) and Hudson River Sloop Clearwater, Inc. (EC-1) - Spent Fuel Pool Leaks ("Consolidated Contention'.').

Subsequent to the Board's July 31 Ruling, Entergy filed a motion for reconsideration of the Board's decision to admit the Consolidated Contention. See Applicant's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3/Clearwater EC-1, August 11, 2008 ("Entergy Recohsideration Motion"). In this motion, Entergy made substantially the same arguments it had asserted previously, namely that (1) federal drinking water standards are inapplicable and therefore immaterial to a determination of significance of groundwater impacts under NEPA; (2) that Entergy was not required to perform evaluation of impacts to Hudson River fish and shellfish beyond the dose evaluations it had calculated; and (3) that the leakage from the IPI spent fuel pools is not within the scope of the proceeding, and so, at a minimum, the Board should limit the scope of the Consolidated Contention accordingly. See id. Riverkeeper responded, reiterating its position that the contention had met the admissibility requirements. See Riverkeeper, Inc. Response to Applicant's Motion for*

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Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3/Clearwater EC- 1, August 21, 2008 ("Riverkeeper Reconsideration Motion Response").

While Entergy's Reconsideration Motion was pending, Entergy issued a notification to the Board announcing that it had finished draining the last IPI spent fuel pool, thereby terminating the active leakage from the IPI pools. See Applicant's Board Notification Concerning Completion of Indian Point Unit I Spent Fuel Pool Remediation Activities, November 17, 2008 ("Entergy Board Notification").

Riverkeeper responded asserting that this development, although relevant to the Consolidated Contention and the license renewal proceeding, should have no effect on the Board's decision to admit the contention. See Riverkeeper, Inc. Response to Applicant's Board Notification of Indian Point Unit I Spent Fuel Pool Remediation Activities, November 25, 2008. On December 18, 2008, the Board issued its decision on Entergy's Reconsideration Motion. See Memorandum and Order (Denying Entergy's Motion for Reconsideration of the Board's Decision to Admit Riverkeeper Contention EC-3 and Clearwater Contention EC-1), ASLBP No. 07-858-03-LR-BDO0, December 18, 2008, at 12-17.

The Board denied Entergy's motion, finding that Entergy had not met the high standard for reconsideration since it had "essentially repeated the arguments it presented prior the Board's July 31 Order." Id. at 15-16. Thereafter, Entergy filed the instant Petition for Interlocutory Review, once again making the same exact arguments that the Board previously found, twice, did not warrant rejection of the Consolidated Contention.

ARGUMENT POINT I ENTERGY HAS FAILED TO DEMONSTRATE THAT INTERLOCUTORY REVIEW IS APPROPRIATE A. Entergy Has Failed To Meet The Standard Under NRC Regulations For A Grant Of Interlocutory Review The bar for granting discretionary interlocutory review at the request of a party, is extremely high. In general, the Commission's longstanding policy and practice disfavor interlocutory review. See, e.g., Amergen Energy Co. (License Renewal for Oyster Creek Nuclear Generating Station), CLI-06-24, 5

64 N.R.C. 111, 119 (2006). Such disfavor is largely due to the Commission's general unwillingness to.

engage in piecemeal interference in ongoing Licensing Board proceedings. See Exelon GeneratingCo.,

L.L.C. (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 N.R.C. 461, 465-66 (2004); see also Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-269, I N.R.C. 411, *4 (1975) ("It has been long determined, all things considered, that proceedings can be conducted most efficiently if the right to obtain appellate review of interlocutory orders is deferred to an appeal at the end of the case.").

The Commission will, thus, only undertake such review in the most compelling of circumstances.

See Sequoyah Fuels Corp. andGeneralAtomics (Gore, Oklahoma Site), CLI-94-11, 40 N.R.C. 55(1994).;

In particular, the NRC regulations only allow a petition for interlocutory review by the Commission where the disputed ruling either (i) threatens the aggrieved party with immediate, serious, and irreparable harm which could not be alleviated through a petition for review of the presiding officer's final decision, or, (ii) where the ruling will have a pervasive or unusual effect on the basic structure of the proceeding below. See 10 C.F.R. § 2.341(f)(2)(i),(ii)'; Sequoyah Fuels Corp., 40 N.R.C. 55 (1994). As discussed below, these standards carry a high burden which Entergy has, without a doubt, failed to meet.

i. Entergy has Failedto DemonstrateImmediate andSerious IrreparableHarm in Accordance with 10 C.F.R. § 2.3416(19(2)(

Entergy maintains that litigating the Consolidated Contention will cause immediate and serious irreparable harm, which can not be alleviated through a petition for review of the Board's final decision at the end of the proceeding, since it will cause undue delay and expense by forcing Entergy to litigate issues it believes are outside the scope of the proceeding, i.e. the leakage that has occurred from IPI. See Entergy Petition for Interlocutory Review at 2, 4, 13. Entergy asserts that such an inquiry into the IP I leaks is "boundless," "sprawling," and "freewheeling," and, as a result, would impose exceptional delay and expense by saddling Entergy with tremendous litigation burdens. Id. Entergy's only evidence of These narrow criteria allowing for interlocutory review developed through case law and were eventually codified into regulations, originally at 10 C.F.R. § 2.786(g)(1), (2), and later to its current location. See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-94-02, 39 N.R.C. 91 (1994); Exelon Generating Co., L.L.C., 60 N.R.C. 461, 465-66.

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irreparable harm consists of its estimate that the Consolidated Contention may require mandatory disclosure of three times as many documents as any other admitted contention, and that it will be forced to waste scarce resources combing through thousands of data and sampling points. Id. at 13-14.

Entergy has fallen far short of demonstrating serious, immediate, and irreparable harm sufficient to warrant interlocutory Commission review of the Board's decision. In fact, increased expense and/or potential delay in the proceedings caused by a board's decision below are issues that the Commission has.

expressly found do not constitute irreparable harm for purposes of interlocutory review. See Sequoyah Fuels Corp., 40 N.R.C. 55. (holding that a party fails to meet the irreparable harm standard by merely "asserting potential delay and increased expense attributable to an allegedly erroneous ruling by the Licensing Board."). Indeed, the Commission has consistently found that monetary burdens associated with a board's allegedly erroneous ruling relating to contention admissibility or the proper scope of issues to be litigated is patently insufficient to justify interlocutory review pursuant to the standard in 10 C.F.R.

§ 2.341 (f)(2)(i). See, e.g., PennsylvaniaPower & Light Co. andAllegheny Electric Cooperative,Inc.

(Susquehanna Steam Electric Station, Units I and 2), ALAB-641, 13 N.R.C. 550, *4 (1981); Exelon GeneratingCo.,.L.L.C., 60 N.R.C. 461, 466.

As Entergy has only pointed to increased delay and financial burden due to the Board's decision to admit the Consolidated Contention, it has clearly not satisfied the criteria for review under 10 C.F.R. § 2.34 1(f)(2)(i). Entergy does not cite to any other immediate or serious harm resulting from the Board's decision which could not be addressed by a petition for review by the Commission at the conclusion of proceeding before the Board. See Hydro Resources, Inc. (2929 Coors Road, Suite 101 Albuquerque, NM 87120), CLI-98-8, 47 N.R.C. 314 (1998) (finding interlocutory review under the "irreparable harm" standard is granted in situations where the question or order must be reviewed "now or never.").

Yet, despite the vibrant NRC case law finding an increase in financial burden and delay insufficient to justify interlocutory Commission review, Entergy argues that it meets the immediate, and serious irreparable harm standard because it has suffered what it considers "truly exceptional" delay and expense. See Entergy Petition for Interlocutory Review at 5, 13. To support this, Entergy hangs its hat on 7

a 1973 Atomic Safety and Licensing Appeal Board case, Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-1 16, 6 A.E.C. 258 (1973). However, that case discusses the standard applicable to a Licensing Board referral or certification of an interlocutory ruling to the Commission, which is permissible "only where, 'in the judgment of that Board, a "prompt [appellate] decision is necessary to prevent detriment to the public interest or unusual delay or expense." Commonwealth Edison Co, 6 A.E.C. 258, 258 (emphasis added) (citing the regulations, now codified at 10 C.F.R. §§ 2.341(f)(1),

2.323(f). There has been no referral or certification by the Board in the instant proceeding. Therefore, the "unusual delay or expense" standard is not appropriate for the Commission to consider.

Moreover, even assuming such criteria did apply, Entergy would still fail to satisfy it, as the alleged delay and expense-it points to is by no means "'ýunusual," and certainly would not be considered "exceptional." Riverkeeper is very skeptical of Entergy's classification of the inquiry associatedwith the Consolidated Contention as. "boundless," "sprawling,"'and "freewheeling." To be sure, the inquiry-into the groundwater contamination caused, by the Indian Point spent fuel pools will not be trivial, but there is certainly no endless universe of information as Entergy would have the Commission believe. Clearly, Entergy has whollyoverstatedits litigation burden.

Entergy specifically points to the voluminous amount of documents it will be required to disclose relatingto the Consolidated Contention. See Entergy Petition for Interlocutory Review at 14. However, much of the documents relating to the Consolidated Contention, such as groundwater monitoring data, are publicly available, thus, requiring Entergy to merely generate a list of the documents by name and general location. See 10 C.F.R. § 2.336(a)(2)(iii). This can hardly be considered excessively onerous.

Furthermore, at a prehearing telephone conference with the Board held on January 14, 2009, after Entergy filed its petition for review by the Commission, the parties discussed the imminent deadline for mandatory disclosures, and no mention whatsoever was made by Entergy regarding difficulty relating to

.its discovery obligations relating to the Consolidated Contention. In fact, Entergy indicated it would be ready comply with the mandatory disclosure requirements in a timely fashion. It is, therefore, difficult to believe that Entergy has been or will be genuinely overburdened by document production.-

/-

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Entergy also points to the fact that it will be forced to waste scarce resources to comb through thousands of data points during the course of discovery. See Entergy Petition for Interlocutory Review at 13-14. However, Entergy is referring to data which is already in its possession and which it has already analyzed. See id. at 13. Riverkeeper, thus, finds it difficult to foresee that Entergy will be forced to waste excessive resources through the course of litigating the Consolidated Contention. At any rate, the risk that a licensing board's interlocutory ruling may eventually be found to have been erroneous, and that as a result, extra proceedings were conducted which were unnecessary, are risks "which must be assumed by that board and the partiesto the proceeding." Commonwealth Edison Co, 6 A.E.C. 258, 259; see also Exelon GeneratingCo., 60 N.R.C. 461, 466; Sequoyah Fuels Corp., 40 N.R.C. 55. There is simply "nothing unusual about such an eventuality." See Commonwealth Edison Co, 6 A.E.C. 258, 259.

Based on the foregoing, Entergy has clearly failed to meet the standard for interlocutory review under 10 C.F.R. § 2.341(f)(2)(i).

ii. Entergy has Failedto Demonstrate that the Board'sRuling Affects the Basic Structure of the Proceeding in a Pervasive or Unusual Manner in Accordance with 10 C.F.R. § 2.3416((2)(ii)

Entergy next argues that litigating the Consolidated Contention will fundamentally alter the basic structure of the proceeding in a pervasive and unusual manner by "mandating duplicative or unnecessary litigating steps," See Entergy Petition for Interlocutory Review at 2, 4-5, 13-14 (citing to PrivateFuel Storage, L.L.C. (Private Fuel Storage Facility), CLI-98-7, 47 N.R.C. 307 (1998)). In particular, Entergy maintains that such duplicative and unnecessary steps will result if it is forced to litigate issues which it believes are removed from the focus of the proceeding (i.e., the leaks that have occurred from the Indian Point Unit I spent fuel pools). See id To demonstrate it has satisfied the criteria under this standard for interlocutory review, Entergy, once again, only points to what it claims will be burdensome discovery obligations that will result from the Board's decision to admit the Consolidated Contention, including potential subpart G procedures such as depositions and interrogatories, and mandatory disclosure obligations which will involve the disclosure of thousands of relevant documents. Id. at 2, 13-14.

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Entergy has yet again entirely mischaracterized the standard for interlocutory review here. The Commission's case law expounding the "basic structure" standard clearly indicates that increased litigation burdens associated with the inclusion of issues or contentions is not considered to have a "pervasive" or "unusual" affect on a proceeding. See ClevelandElectric Illuminating Co. (Perry Nuclear Power, Units 1 and 2), ALAB-675, 15 N.R.C. 1105,

• 14-15 (1982); Connecticut Yankee Atomic Power Co. (Haddam Neck Plant License. Termination.Plant), CLI-01-25, 54 N.R.C. 368 (2001); PrivateFuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-02, 51 N.R.C. 77 (2000); Long Island Lighting Co. (Shoreham Nuclear Power Statioh;, Unit 1), ALAB-861, 25 N.R.C. 129 (1987);

Georgia Power Co. (Vogtle Electric Generating Plant, Units I and 2), CLI-94-15, 40 N'R.C. 319 (i994).

The Commission has even specifically found that admission of a contention which will require a broad inquiry into matters argued to be outside the scope of the admitted contention, does not affect the basic structure of the proceeding sufficient to warrant interlocutory review. See Sacramento Municipal Utility District,39 N.R.C. 91. Moreover, arguments that a board's ruling is wrong, or in conflict with applicable law and regulations, are not adequate to demonstrate that the structure of the proceeding has been pervasively or unusually affected. See Long IslandLighting Co., 25 N.R.C.. 129; GeorgiaPowerCo., 40 N.R.C. 319.

Rather, Commission precedent establishes that this standard allows review only in extraordinary circumstances. See, e.g., Private Fuel Storage L.L.C., 51 N.R.C. 77; Private Fuel Storage, LL.C.

(Independent Spent Fuel Storage Installation), CLI-0 1-01, 53 N.R.C. 1 (2001); Amergen Energy Co., 64 N.R.C. I111, 119. Petitions for review under 10 C.F.R..§ 2.341(f)(2)(ii) must demonstrate that the board's ruling will have a profound affect on the actual structure of the proceeding, which "comprehends disputes over the very nature of the hearing in a particular proceeding... not to routine arguments over admitting particular contentions." Exelon GeneratingCo., L.L.C., 60 N.R.C. 461, 467. So, issues regarding whether a proceeding should proceed in one or multiple steps, or via formal versus informal proceedings, are appropriate for interlocutory review. See id; Safety Light Corp.,.CLI-92-13, 36 N.R.C. 79 (1992).

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Based on this established law, Entergy has clearly failed to meet the standard for interlocutory review under the "basic structure" standard. Entergy merely claims that it will suffer increased litigation burdens due to the Board's decision to admit the Consolidated Contention. See Entergy Petition for Interlocutory Review at 2, 13-14. To begin with, as discussed above, Entergy had totally exaggerated the discovery burden associated with the Consolidated Contention. While Entergy complains hereof the threat of burdensome subpart G discovery obligations, such concerns are premature and speculative since, based on the Board's ruling, there is no guarantee that any petitioner will be able to utilize subpart G unless they can demonstrate to the Board that mandatory disclosure pursuant to 10 C.F.R. § 2.336 was not adequately followed. See Memorandum and Order (Addressing Requests that the Proceeding be Conducted Pursuant to Subpart G), Dec. 18, 2008. It is, thus, clear that the discovery relating to the Consolidated Contention will not have a pervasive or unusual effect on the proceedings.

Moreover, increased litigation burden is exactly what the Commission would consider totally inappropriate for interlocutory review, since such situations do not have a pervasive or unusual affect on the structure of the proceeding. Entergy claims it will be forced to undertake duplicative or unnecessary steps by having to litigate issues it believes are beyond the scope of the proceeding. However, such a claim is precisely what the Commission has consistently deemed to not affect the basic structure of a proceeding. That Entergy will have to engage in discovery relating to the Consolidated Contention does not affect the basic structure of the proceeding in any way, let alone in a pervasive or unusual way.

In fact, the one supporting case cited by Entergy recognizes the Commission's precedent and, in actuality, undermines Entergy's assertion that there will be a pervasive or usual affect on the proceeding absent Commission review here. See PrivateFuel Storage, L.L.C., 47 N.R.C. 307. In that case, as Entergy recognizes, a party was seeking review of the board's decision to divide the proceeding before a second licensing board. See id. As this issue affected the actual structure of the proceeding, the Commission found it reviewable. See id. In this vein, the Commission found that such a decision, which actually affected the structure of the proceeding, would arguably "mandate duplicative or unnecessary litigation steps. See id. This case by no means changes established Commission case law finding that I1

admission of a contention, with its associated litigation burdens, does not change a proceeding's basic structure for purposes of interlocutory review. Increased litigation burdens due to the admission of a contention are clearly not what the Commission sees as "duplicative or unnecessary steps."

As Entergy has failed to demonstrate how the Board's decision affects the basic structure of the instant relicensing proceeding in any pervasive or unusual manner, Entergy has not met the standard for interlocutory review under 10 C.F.R. § 2.341(f)(2)(ii).

B. The Issues Presented Do Not Warrant The Commission's Use Of Its Inherent Supervisory Powers Entergy maintains that even if it has failed to meet the, standards for interlocutory review under 10 C.F.R. § 2.341(f)(2), which it clearly has, the Commission should accept review of the Consolidated Contention in the exercise of its inherent supervisory power over NRC adjudications. Entergy correctly identifies the inherent power of the Commission to take up substantial and novel questions of law which will have broad impacts and, thus, benefit from early resolution. See Advanced Medical Systems, Inc.

(One Factory Row Geneva, OH 44041), ALAB-929, 31 N.R.C. 271, 279 (1990). However, as explained below, the issues before the Commission relating to the admissibility of the Consolidated Contention do not warrant such an exercise of supervisory powers.

At the outset, review of matters by the Commission via its inherent powers should only occur of the Commission's own accord and not upon the request of a party, as Entergy is doing here. As Commissioner Gregory B. Jaczko explained in the dissent of Entergy Nuclear Vermont Yankee, L.L.C. &

Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-01, 65 N.R.C. 1, 6-7 (2007), "[w]ere it otherwise, there would be no limit to the kinds of arguments parties could legitimately present on appeal, and particularly on interlocutory appeal - a result at odds with the Commission's oft-expressed intent to limit the availability of such appeals." Exercising inherent authority at the request of a party completely undercuts the integrity of the Commission's procedures. See Entergy Nuclear Vermont Yankee, L.L.C., 65 N.R.C. 1, 7 (Comm'r Jaczko, dissenting) (emphasis in original); see also Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-00-1 1, 51 N.R.C. 297 (2000) (finding that 12

inherent supervisory authority of Commission in no way implies that parties have a right to seek interlocutory review on that ground). Therefore, accepting review of the Consolidated Contention as an exercise of inherent supervisory powers at the request of Entergy would be wholly inappropriate. Since the Commission has not seen fit to raise any issues regarding the Consolidated Contention sua sponte, there is no reason they should accept it upon Entergy's request.

In any event, the Commission should not exercise its inherent powers to undertake review in this case because there is no issue of law which would benefit from early resolution. As Entergy explains, the Commission's exercise of its inherent authority to review board rulings is appropriate where the ruling involves questions of law which have not previously been addressed, and which have generic' implications. See Entergy Petition for Interlocutory Review at 2-5, 14-15 (citing Advanced Medical Systems, Inc., 31 N.R.C. 271; Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-00-13, 52 N.R.C. 23 (2000); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18 (1998)). Entergy maintains that such a situation exists here, insisting-that guidance is needed on an significant, novel question of law, specifically, how groundwater contamination should be treated by a licensing board in a license renewal proceeding, including the applicability and meaning of NRC regulations implementing NEPA pertaining to environmental and exposure monitoring. See Entergy Petition for Interlocutory Review at 2-3, 14-15. Entergy asserts that this question has the requisite broad applicability since numerous plants with groundwater contamination due to leaks will be undergoing relicensing in the future, "several"with the potential to reach the contention admissibility stage prior to the conclusion of the Indian Point license renewal proceeding. Id.

While admittedly the issues raised by Entergy involve questions of law which the Commission has never specifically ruled on, Riverkeeper utterly fails to see how such questions would benefit from early resolution. Firstly, Entergy completely overstates the broad applicability of theBoard's ruling. Of the fourteen nuclear energy facilities indentified in the Task Force Report cited by Entergy as having experienced contamination from leaks in addition to Indian Point, four have reactors that have already been relicensed (Dresden, Hatch, Point Beach, and Wolf Creek); two are already well into the relicensing 13

process and are not litigating groundwater contamination issues (Oyster Creek and Three Mile Island);

three have reactors with current operating licenses that do not expire until 2024 or later; (Watts, Braidwood, and Byron); four have submitted letters of intent to apply for license renewal in August 2013, December 2011, June 2010, and September 2009 (Perry, Callaway, Seabrook, and Salem, respectively);

and one facility submitted its license renewal application in December 2008 (Palo Verde). See NRC Status of License Renewal Applications and Industry Activities, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications.htmi; Liquid Radioactive Release Lessons Learned Task Force Final Report at 3-10 (Sept. 1, 2006), available at http://www.nrc.gov/reactors/operating/ops-experience/tritium/lr-release-lessons-leamed.pdf.

Based on this information, at the very most, three of four license renewal proceedings have the potential to reach the contention admissibility stage before the conclUsion of the Indian Point proceeding which could potentially raise similar issues, which, even so, is very speculative at this point. This can, thus, hardly be considered an issue of "wide application" necessitating immediate resolution. See Entergy Nuclear Vermont Yankee, L.L.C., 65 N.R.C. 1, 7 (Comm'r Jaczko, dissenting). Indeed, even the case cited by Entergy, Advanced MedicalSystems, Inc., only found that a question had general implications where there were a number of similar adjudications then pending in which the same issue could arise.

Advanced Medical Systems, Inc., 31 N.R.C. 271, 279. Another case cited by Entergy similarly found early Commission review appropriate where the question at issue came up "frequently" and "in a variety of contexts." Private Fuel Storage, 52 N.R.C. 23. In contrast, the matters at issue in the Consolidated Contention will rarely arise prior to the resolution in the Indian Point relicensing proceeding.

To be sure, based on the unfortunate trend of leaks at nuclear power reactors, groundwater contamination issues are likely to arise in the future, however, it will largely be after the Indian Point relicensing proceeding is complete. By then, the Commission will have had the opportunity to decide the issues on appeal after final board resolution in the Indian Point proceeding, and its decision will be applicable to future instances where such questions are raised. See Entergy Nuclear Vermont Yahkee, L.L.C., 65 N.R.C. 1, 7 (Comm'r Jaczko, dissenting). There is no reason why the Commission should 14

take up the issues now when the Board's ruling will not have a "broad impact" on future relicensing proceedings. This could unnecessarily deprive Riverkeeper of the opportunity to litigate the issues fully via the hearing process.

Moreover, the leaking and groundwater contamination at Indian Point is of a unique nature. For example, Indian Point is the only nuclear power plant that has had strontium-90, one of the most toxic radionuclides, leaking into the environment and causing residual contamination. Also, as Entergy and the NRC concede, radioactively contaminated groundwater is leaking into the Hudson River, including Haverstraw bay, a critical coastal fish andwildlife habitat, with unknown long term impacts. See Riverkeeper Reply at 74. In the same vein, any groundwater contamination issues that might be brought up in future relicensing proceedings will undoubtedly arise based upon site specific factors present at each facility. As such, the issue of groundwater contamination from leaks simply does not lend itself to wholly generic determinations at this point by the'Commission. In fact, this could only work to preclude future petitioners from raising the concerns regarding the impacts of leaking plant systems and groundwater contamination that are likely unique to each situation.

Entergy cites to Entergy Nuclear Vermont Yankee, 65 N.R.C. I, as an analogous situation where the Commission accepted review of the board's decision to admit a contention relating to impacts of thermal discharges from a once-through cooling system. However, in that case, the Commission emphasized that "[tihe sharply differing views of the majority and dissenting members of the Board on the

[relevant] regulatory requirements" warranted providing guidance to the licensing board. See Entergy Nuclear Vermont Yankee, 65 N.R.C. 1, 5 (emphasis added). There has been no such discord in the Indian Point licensing board that warrants such guidance here. Rather, the Board here has recognized genuine disputes among the partiesthat necessitate advancing to a hearing, and this determination should be afforded considerable weight. See Connecticut Yankee Atomic Power Co., 54 N.R.C. 368 ("Licensing Boards are granted a great deal of discretion in managing the proceedings of cases before them").

At the end of the day, the present situation simply boils down to a dispute over the admissibility of a contention, and such situations are not appropriate for interlocutory Commission review. See Exelon 15

GeneratingCo., L.L.C., 60 N.R.C. 461, 466 (holding that a "Board's routine ruling on contention admissibility provides no occasion for [the Commission] to invoke our 'inherent supervisory authority."'); Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-21, 62 N.R.C. 538, 539 (2005) (Finding that routine rulings on contention admissibility are not occasions to exercise the Commission's authority to step into ongoing Licensing Board proceedings and undertake interlocutory review); see also Entergy Nuclear Vermont Yankee, L.L.C., 65 N.R.C. 1, 7 (Comm'r Jaczko, dissenting)

(opining that "[i]t hardly seems a worthwhile exercise of the Commission's supervisory authority to resolve a routine contention admissibility dispute.")..

Based on the foregoing, the Commission should not exercise its inherent supervisory powers to accept interlocutory review of the Consolidated Contention.

POINT II1 ENTERGY HAS FAILED TO IDENTIFY ANY REVERSIBLE ERROR BY THE BOARD Should the Commission decide to grant Entergy's request for interlocutory review, the Commission should deny the relief requested because the Board has not committed any error necessitating reversal of its decision to admit the Consolidated Contention.

A. Applicable Legal Standard The Commission affords "substantial deference" to licensing board determinations on threshold issues, such as contention admissibility. See Amergen Energy Co., 64 N.R.C. 111, 121. The Commission regularly affirms "[b]oard rulings on the admissibility of contentions if the appellant 'points to no error of law or abuse of discretion."' Dominion Nuclear'Connecticut,Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004); see also Amergen Energy Co., 64 N.R.C. 111, 121. The determination of a licensing board that an issue has been properly presented to it is given considerable weight and should only be overturned where the board's decision lacks a rational, reasonable foundation. See Long IslandLighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-855, 24 N.R.C. 792 (1986); Connecticut Yankee Atomic Power Co., 54 N.R.C. 368.

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Moreover, the instant case is materially different from the cases cited by Entergy ývhere the Commission reversed admissibility decisions since, as explained below, the Board has not unlawfully expanded the scope of Entergy's responsibilities under NEPA or misinterpreted applicable regulations.

See Entergy Petition for Interlocutory Review at 17-19.

B. The Board's Decision Admitting the Consolidated Contention Does Not Contain Any Material Errors of Law Entergy asserts that the Board made three material errors of law in its ruling admitting the Consolidated Contention which warrant reversal of the decision. For the following reasons, the Board's decision is without any reversible error, and the Commission should uphold the Board's ruling admitting the Consolidated Contention in its entirety.

i. The Board's Findingthat it is Uncertain Whether Entergy's Conclusions Regarding the Significance of GroundwaterContamination are Sufficient to Satisfy Applicable Regulations or Aid the Commission in the Preparationof its EIS is Completely Accurate The Board found that, based on the factual assertions presented by Riverkeeper, there was a genuine issue as to whether Entergy's conclusions contained in their Environmental Report regarding the significance of the groundwater contamination were legally sufficient for purposes of satisfying NEPA and NRC regulations and to aid the Commission in the preparation of its EIS. See July 31 Ruling at 187-

88. Entergy asserts that the Board erred in this finding since it provided enough information to satisfy the "narrowly defined" applicable requirements and to inform the Staff's preparation of an EIS. See Entergy Petition for Interlocutory Review at 17-19. Entergy believes it satisfied its legal obligations by providing what it calls a "full" characterization of the impact to groundwater that was ongoing when the LRA was submitted to the NRC, as well as by providing the Investigation Report. Id. at 19.

However, as Riverkeeper and Clearwater have repeatedly pointed out in the pleadings to date, the analyses of groundwater contamination provided by Entergy erroneously rely solely on NRC standards for protection of human health and short-term lack of drinking water impacts. See ER at 5-4, 5-5, 5-6; 17

Investigation Report. 2 In fact, contrary to Entergy's classification of the applicable requirements as "narrow," NEPA requires a broad assessment of environmental impacts beyond merely public health concerns. See Consolidated Contention at 6-7; Riverkeeper Reply at 75; see also Marsh v. Oregon NaturalResources Counsel, 490 U.S. 360, 374 (1989). The CEQ regulation defining "significantly,"

which Entergy explicitly relies upon, requires consideration of the context of the action and intensity or severity of the impacts. See 40 C.F.R. § 1508.27 (requiring analysis often different factors); ER at 5-L.

Yet, despite this guidance, Entergy's analysis fails to acknowledge the high degree of the groundwater contamination (as evidenced by sampling levels well in excess of EPA maximum

.contaminant levels for drinking water), and is utterly devoid of any assessment of the impacts of groundwater contamination on the Hudson River ecosystem. See Consolidated Contention 6-8, 10-16; Riverkeeper Reply at 70-75; Riverkeeper Reconsideration Motion Response at 4-6. Entergy fails to.

consider the effects of the groundwater contamination on any part of the natural environment of the Hudson River, including any adverse affects to nearby critical habitat, Haverstraw Bay, or potential effects on the river's federally listed endangered species, or cumulative long-term effects of the contaminated groundwater plumes. See Consolidated Contention at 13-16;,Riverkeeper Reply at 72-75; 10 C.F.R. § 1508.27. Thus, Riverkeeper asserts that Entergy had failed to demonstrate that the impacts of spent fuel pool leaks are "not significant" for purposes of satisfying NEPA.

Entergy maintains that it has satisfied its responsibilities under NEPA because it is only required to address those impacts that are reasonably foreseeable, and that evaluation of "remote," "speculative,"

"inconsequentially small," impacts is not required. See Entergy Petition for Interlocutory Review at 17-

18. However, based on the data and expert opinion provided by Riverkeeper and Clearwater, there is nothing trivial or speculative about the potential impacts of groundwater contamination to the Hudson 2 Entergy cites 10 C.F.R. Part 51, Subpart A, Appendix B, which states that "[fior the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commission's regulations are considered small as the term is used in this table." However, this table delineates the Commission's environmental findings relating to current Category I and 2 impacts, and does not contemplate "new and significant" information, as is present here, i.e. impacts from unplanned, unmonitored releases from leaking plant systems into the environment. Thus, analysis beyond such public health dose limits is not in contravention of NRC regulations.

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River ecosystem. See Consolidated Contention at 4, 10-16; Riverkeeper Reply at 64, 7075. Entergy is, thus, required to assess such impacts. Entergy further says that it is only required to provide "new and significant information" relating to environmental impacts of license renewal "of which it is aware." See Entergy Petition for Interlocutory Review at 19. However, Entergy acknowledges it its ER, and is, thus, "aware," that the contamination is migrating to the Hudson. Therefore, by its own terms, Entergy should fully assess the impacts of this situation. See ER at 5-5.

Despite the foregoing, Entergy maintains that it has provided enough information to assist the Commission in the development of its independent analysis. See Entergy Petition for Interlocutory Review at 17-19. However, since Riverkeeper and Clearwater point to serious deficiencies in Entergy's analysis of the impacts of groundwater contamination, it is'impossible to say that Entergy has aided the NRC in the preparation of its EIS. Entergy maintains that it is sufficient that it has described potential environmental effect and states that "[tihe ultimate determination as to 'significance' of [new]

information, however, rests with the NRC Staff." See Entergy Petition for Interlocutory Review at 18:

However, Entergy's blatant misreading of the law, if accepted, would completely obviate the requirement that an applicant analyze environmental impacts in an ER at all. Instead, an applicant is to provide sufficient analysis to meaningfully inform the Staff's own review. See Consolidated Contention at 7-8.

Indeed, in the instant case, the NRC issued its Draft Supplemental EIS on December 22, 2008, and essentially adopted Entergy's analysis, finding that the leakage to groundwater was not significant since the releases were within NRC's radiation safety standards. See Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Main Report, at 4-49, available at http://www.nrc2gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement38/. As the NRC Staff's draft SEIS suffers the same deficiencies relating to impacts from groundwater contamination as Entergy's assessment, it is obvious that Entergy has not provided enough analysis to aid the Commission in its review. See id.

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Based on the foregoing, the Board's finding of a genuine issue as to whether Entergy's analysis of groundwater impacts was sufficient to satisfy applicable regulations and aid the Staff's independent review is entirely reasonable. See July 31 Ruling at 184-88. There has been no abuse of discretion, or error of law, necessitating reversal. See Dominion Nuclear Connecticut, 60 N.R.C. 631, 637.

II. The Board's Findingof a Genuine Issue as to the Significance of the New Information Relating to Spent Fuel Pool Leaks was Correct Entergy next takes issue with the Board's finding of a genuine issue as to the significance of new information relating to the spent fuel pool leaks. See Entergy Petition for Interlocutory Review at 17, 19-

23. Specifically, Entergy asserts that there is no genuine issue as to the significance of spent fuel pool leaks because (1) the history of leaks emanating from IPI are not within the scope of the proceeding, and (2) since the board improperly considered EPA drinking water standards. For the following reasons, the Board's ruling was proper.

a. IPI Leaks are Within the Scope of the Proceeding Entergy asserts that there is no genuine issue as to the significance of the spent fuel pool leaks because the Board's reliance upon Intervenors' IPI -related claims in admitting the Consolidated Contention was a material error of law and since the history of leaks from IPI are beyond the scope of this proceeding. See Entergy Petition for Interlocutory Review at 19-23. To start with, Entergy maintains that the Board wrongfully deferred Intervenors' burden to demonstrate that IPI issues are within the scope of the proceeding until the evidentiary hearing, rather than before admitting the Consolidated Contention, thereby improperly broadening the proceeding beyond legal requirements. Id. at 19-21.

However, Entergy has completely misread the Board's decision to come to that conclusion.

While quoting the Board in regards to Clearwater's EC-1, Entergy completely ignores the Board's ruling on Riverkeeper EC-3, which found that the issue of radiological leaks from spent fuel pools was "undisputedly within the scope of the LRA proceedings." July 31 Ruling at 187-88. Notably, the Board's decision found a genuine issue of fact as to the significance of the spent fuel pool leaks without any reference or regardto the source of the leaks, making it clear that the Board was not questioning the 20

relevance of leakage from IPI at any point. Id. at 187-88, 192. Thus, the Board has not allowed Intervenors to circumvent contentionadmissibility requirements as Entergy maintains. See Entergy Petition for Interlocutory Review at 20.

Entergy further claims that the leakage from IPI does not.relate to the renewed operation of IP2 and IP3 and is, thus, not within the legal scope of the proceeding. Id. at 20, 22-23. Entergy points to the fact that the IPI spent fuel pools are now empty to conclude that there is "no legal nexus" between the license renewal and the "purely historical groundwater contamination." See id at 23. Entergy states that Riverkeeper and Clearwater's only basis for asserting that leaks from IPI are within the scope of the proceeding is that, but for thelicense renewal,IPI would be decommissioned, and the site remediated.

Id. However, these arguments indicate that Entergy has grossly mischaracterized the Consolidated Contention, as well as the Board's decision, as that is not the only basis for asserting the IPI leaks is within the scope of the license proceeding.

Rather, the Consolidated Contention is entirely focused on challenging Entergy's assessment of the current and future impacts of spent fuel pool leaks at Indian Point on the groundwater and the Hudson River. See Consolidated Contention; Riverkeeper Reply at 63-64.3 The toxic radionuclides that have leaked from IPI will remain in the groundwater as it slowly leaches into the Hudson River. See Riverkeeper Reply at 64; Riverkeeper Reconsideration Motion Response at 7. The ongoing leaks from IP2, combined with likely additional leaks from IP2, and future leaks from IP3 or other plant systems will add to this substantial groundwater contamination already in existence. Id. Thus, an accurate assessmerit of the significance of spent fuel pool leaks under NEPA must take into account the cumulative effects of the contamination, which includes the IPI plume. See Riverkeeper Reply at 64; 40 C.F.R. § 1508.27.

That the active leaking from IP I has stopped 4 does not change the fact that Entergy must adequately 3 Intervenors take issue with Entergy's assertion that "the majority of claims"' in the Consolidated Contention relate to impacts from the IPI leaks. See Entergy Petition for Interlocutory Review at 20. The contention does not bifurcate the assessment of contamination according to its source, but is rather concerned with the overall inadequate assessment of the degree and affects of contamination. See Consolidated Contention.

4 The active leaking from IPI spent fuel pools ceased only recently in November 2008, and it is not "purely historic" as Entergy would have the Commission believe. See Entergy Board Notification. Up until that time, Entergy 21

assess the current and future environmental impacts of the collective spent fuel pool leaks on the groundwater and the Hudson River ecosystem. See Consolidated Contention; Riverkeeper Reply at 60-76; Riverkeeper Reconsideration Motion Response.

Based on the foregoing, contrary to Entergy's assertions, Riverkeeper and Clearwater have adequately demonstrated that the leakage from IPI is properly within the scope 'of Consolidated Contention. Since Intervenors assert that Entergy has inadequately analyzed the impacts of the contamination, the Board correctly identified a genuine issue regarding the significance of radiological leaks from spent fuel pools, without regard to source. See July 31 Ruling at 188. This decision contained no material error of law, as Entergy asserts, or abuse of discretion, since the impacts of leakage from IP I are indisputably within the scope of the proceeding. See Dominion Nuclear Connecticut, 60 N.R.C. 631, 637.

b. The Board Properly Considered EPA Drinking Water Standards Entergy asserts that there is ho genuine issue as to the significance of the spent fuel pool leaks because the Board unacceptably considered EPA drinking water standards instead of relying on Entergy's assessment that it is complying with NRC radiological dose limits. See Entergy Petition for Interlocutory Review at 21-22. Entergy adamantly maintains that the only required inquiry for determining "significance" of groundwater contamination is whether groundwater radionuclide concentrations comply with NRC dose limits. See id.5 Entergy maintains that EPA drinking water standards are "wholly inapplicable" and that Intervenors failed to demonstrate how they are material to the licensing proceeding estimated that the last IPI pool to be drained was leaking an up to seventy gallons of radioactive water per day. See Entergy Answer at 146. This leaking was ongoing for months after Entergy's initial evaluations up until the draining was complete, contributing to thousands and thousands of gallons of additional polluted water into the groundwater and eventually the Hudson River. See Riverkeeper Reply at 64-65, fn 109. It is not clear at all whether Entergy factored this additional contamination into their conclusions in their ER or the Investigation report. Id 5 To support this, Entergy relies on section 4.6 of the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (NUREG-1437 Vol. 1) which says that radiological impacts must exceed permissible dosage levels in NRC regulations before they can be categorized as having more than "small significance." See Entergy Petition for Interlocutory Review at 21. However, Entergy fails to note that section 4.6 of the GElS only addresses radiological impacts to man from routine operations and releases. See NUREG-1437, Vol. 1, at Section 4.6.

Moreover, the GEIS does not apply here, because we are dealing-with "new and significant" information which the GEIS does not contemplate, i.e., unplanned, unmonitored releases from leaking plant systems into the environment.

See Riverkeeper Reply at 63, 65-66.

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or to the assessment of the "significance" of new information, or how they could apply to Indian Point Energy Center which is not a public water supplier. Id.

However,.Entergy is totally misconstruing its obligations under the law. The significance of groundwater contamination'impacts must be'assessed according to NEPA and CEQ regulations, not just according to NRC dose limits. See 40 C.F.R.-§ 1508.27; 10 C.F.R. § 51.53(c)(3)(iv). Under NEPA, a broader assessment of environmental impacts beyond mere public health risk is necessary. See 40 C.F.R.

§ 1508.27. Since Entergy determined radionuclide concentrations were "low," without defining what that means or providing any alternative method for measuring groundwater contamination, Intervenors used EPA maximum contaminant levels as a recognized, highly conservative benchmark for comparison purposes, to assess the degree of contamination. See Riverkeeper Replyat 70-7-2. Intervenors' supporting data showed exceedances of the EPA limits in the groundwater. See Consolidated Contention at 10- 13; Riverkeeper Reply at 71.

As Riverkeeper has consistently pointed out, Entergy and the NRC routinely use the same method of measurement in the same capacity as Intervenors use them here, i.e., in their own analyses of spent fuel pool leaks. Id. at 70-71; Riverkeeper Reconsideration Motion' Response at 4-5. It is, thus, remarkable that Entergy and NRC argue that the use of such standards is incorrect in this instance. Moreover, the fact that the groundwater at Indian Point is not used for drinking water-is irrelevant for purposes of determining whether groundwater contamination is causing "significant" environmental impacts under NEPA. See Riverkeeper Reply at 71-72; Riverkeeper Reconsideration Motion Response at 5. In sum, it is completely appropriate to assess the degree of groundwater contamination using drinking water standards.

Based on Riverkeeper's assertion, supported by data, that impacts of the groundwater contamination were higher than alleged by Entergy, the Board identified a genuine dispute between Intervenors and the Applicant as to the "significance" of the spent fuel pool leaks. See July 31 Ruling at 187-88. Based on the foregoing, the Board's decision did not contain any material error of law or abuse of discretion. See Dominion Nuclear Connecticut,60 N.R.C. 631; 637.

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iii. The Board's Finding of a Remaining Question as to Whether Entergy Has Determined the Maximum GroundwaterImpact is Wholly Appropriate Entergy lastly takes issue with the Board's finding that despite Entergy's estimate of NRC radiological dose limits, "there is still a question as to whether the maximum groundwater impact (and, in turn, maximum dose) has been determined for the site." See July 31 Ruling at 192. In yet another iteration of the same argument, Entergy once again maintains that since it has calculated that doses from consumption of fish and invertebrates in the Hudson River (the only exposure pathway of significance),

are within NRC limits, it has fully complied with the required obligations under NEPA and need not do anything more. See Entergy Petition for Interlocutory Review at 23-25. However, as has already been explained numerous times herein, Entergy is misunderstanding its obligations under the law.

Assessing the "significance" of groundwater contamination cannot consist solely of an examination of public health impacts. See Consolidated Contention at 6-7; Riverkeeper Reply at 75; see also Marsh v. Oregon NaturalResources Counsel, 490 U.S. 360, 374,(1989); 40 C.F.R. § 1508.27; 10 C.F.R. § 51.53(c)(3)(iv). Yet, Entergy claims it is complying with NEPA since its approach is consistent with that contemplated in the GEIS. See Entergy Petition for Interlocutory Review at 24. However, as explained, supra in footnote 5, Entergy cites to section 4.6 of the GELS, which only addresses radiological impacts to man from routine operations and releases. See NUREG-1437, Vol. 1, at Section 4.6.

Moreover, the GEIS in general does not apply here, because we are dealing with "new and significant" information which the GEIS does not contemplate, i.e., unplanned, unmonitored releases from leaking plant systems into the environment. See Riverkeeper Reply at 63, 65-66. As such, mere calculation of dose limits is not sufficient for assessing the "significance" of groundwater contamination from leaks.

Limiting the assessment of "significance" in this way violates the letter and spirit of NEPA which, as Entergy explicitly recognizes, calls for a broader assessment. See Riverkeeper Reply at 73-75.

Specifically, under the CEQ definition of significantly, an assessment of the' impacts of spent fuel pool leaks must consider many factors including the context and the severity of the effects. See id.; 40 C.F.R.

§ 1508.27. Thus, Entergy's assertion that that Intervenors have not identified any legal requirement that 24

Entergy perform additional analysis is clearly without merit, since the regulations, which Entergy says it employed, call for consideration of the impacts to the environment. See 10 C.F.R. § 1508.27 (requiring analysis often different factors); ER at 5-I.

Moreover, Intervenors point to the specific ways Entergy's LRA fails to provide sufficient analysis as required, with adequate support, in satisfaction of the contention admissibility regulations, contrary to Entergy's claim otherwise. See Entergy Petition for Interlocutory Review at 25. For example, Intervenors cite to data and correspondence which raise wholly unaddressed concerns of bioaccumulation of radionuclides in the Hudson. See Consolidated Contention at 13-16; Riverkeeper Reply at 73; 40 C.F.R. § 1508.27. Intervenors also point to Entergy's complete failure to consider the impacts of the groundwater contamination on the ecologically critical area of Haverstraw Bay, or on the Hudson River's federally listed species. See Consolidated Contention at 13-16; Riverkeeper Reply at 73; 40 C.F.R. § 1508.27. Nor did Entergy properly analyze the long-term cumulative impacts of the contamination. See Riverkeeper Reply at 75; 40 C.F.R. § 1508.27.

Based on Entergy's reliance on public dose calculations and its failure to submit any analysis of-the impacts of spent fuel pool leaks on the Hudson River ecosystem, the Board correctly identified a question as to whether Entergy had determined the maximum the groundwater impact. See July 31 Ruling at 192. This finding is reasonably based on the information offered by Intervenors and does not contain an error of law or abuse of discretion. See Dominion Nuclear Connecticut, 60 N.R.C. 631, 637.

CONCLUSION For the reasons set forth above, Commission should deny the instant petition and allow the Board's ruling admitting the Consolidated Contention to stand because the petition has not met the applicable standards for Commission review, or, in the alternative, because Entergy has failed to demonstrate that the Board's decision contained any errors of law or abuse of discretion.

25

I, Respectfully submitted, Deborah Brancato Staff Attorney Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 230) dbrancato(triverkeeoer.oru, Phillip Musegaas, Esq.

Hudson River Program Director.

Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 224) phillip~i~riverkeeper.org Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater, Inc.

112 Market Street Poughkeepsie, NY 12601

.845-454-7673 x 113 Mannajo(2a~clearwater.org January 20, 2009 26

¶ January 20, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR

)

CERTIFICATE OF SERVICE I certify that on January 20, 2009 copies of the foregoing "Rivei'keeper, Inc.'s Answer in Opposition to Entergy's Petition for Interlocutory Review of the Atomic Safety and Licensing Board Decision Admitting Consolidated Contention Riverkeeper EC-3/Clearwater EC-1," were served on the following by first-class mail and, except where indicated by an asterisk, by e-mail:

Hon. Dale E. Klein Hon. Peter B. Lyons Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission

,Mail Stop O-16G4 Mail Stop 0-1 6G4 Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 E-mail: CHAIRMAN(t'.nrc.goov E-mail: CMRLYONSd-"nrc.gov Hon. Gregory B. Jaczko* Hon. Kristine L. Svinicki Commissioner Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Mail Stop O-16G4 Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 E-mail: CMRSVINICKIdnrc.gov Lawrence G. McDade, Chair Annette L. Vietti-Cook Atomic Safety and Licensing Board Panel Secretary of the Commission Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop O-16G4 Washington, D.C. 20555 Washington, DC 20555-0001 E-mail: Lawrence.McDade_),nrc.gov E-mail: NRCExecSec Thnrc.gov

Richard -E. Wardwell Michael J. Delaney, V.P. - Energy Atomic Safety and Licensing Board New York City Econ. Development Corp.

U.S. Nuclear Regulatory Commission 110 William Street Washington, D.C. 20555 New York, NY 10038 E-mail: Richard.Wardwell ia.nrc.gov E-mail: mdelaney(invcedc.com John J. Sipos, Esq. Martin J. O'Neill, Esq.

Assistant Attorney General Kathryn M. Sutton, Esq.

Office of the New York Attorney General Paul M. Bessette, Esq.

for the State of New York Mauri T. Lemoncelli, Esq.

The Capitol Morgan, Lewis & Bockius, LLP Albany, NY 12224 1111 Pennsylvania Ave. N.W.

E-mail: John.Sipos oag. state.ny.us Washington, D.C. 20004 E-mail:

martin.oneill(dimorgzanlewis.com Dbessette~ii~moraanlewisxcom ksuitton(a),morganlewisxcom Diane Curran, Esq. Office of Commission Appellate Adjudication Harmon, Curran, Spielberg & Eisenberg, LLP U.S. Nuclear Regulatory Commission 1726 M. Street NW, Suite 600 Washington, D.C. 20555 Washington, DC 20036 E-mail: OCAAMA[.@1Anrc.gov E-mail: dcurran(&~harmoncun'an.com Office of the Secretary William C. Dennis, Esq.

Rulemakings and Adjudications Staff Entergy Nuclear Operations, Inc.

U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Washington, D.C. 20555 White Plains, NY 10601 E-mail: 1EARINGDOCKET(_nrc.gov E-mail: wdennis(Aentergy.corn Stephen C. Filler, Board Member Manna Jo Greene Hudson River Sloop Clearwater, Inc. Hudson River Sloop.Clearwater, Inc.

303 South Broadway, Suite 222 112 Little Market Street Tarrytown, NY 10591 Poughkeepsie, NY 12601 E-mail: sfiller(0nylawline.com E-mail: Mannajo(d)clearwater.org Justin D. Pruyne, Esq., Joan Leary Matthews, Esq.

Assistant County Attorney, Litigation Bureau Senior Attorney for Special Projects Of Counsel to Charlene M. Indelicato, Esq. New York State Department Westchester County Attorney of Environmental Conservation 148 Martine Avenue, 6 th Floor 625 Broadway, 14 th floor White Plains, NY 10601 Albany, New York 12233-5500" E-mail: jdp3@k)westchestergov.com E-mail: ji matthe(a.gw.dec.state.nv.us 2

Zachary S. Kahn, Esq., Law Clerk Thomas F. Wood, Esq.

Atomic Safety and Licensing Board Panel Daniel Riesel, Esq.

U.S. Nuclear Regulatory Commission Ms. Jessica Steinberg, J.D.

Washington, D.C. 20555 Sive, Paget and Riesel, P.C.

E-mail: Zachary.Kahn @)nrc.gov 460 Park Avenue New York, NY 10022 E-mail: driesel(k),sprlaw.com Judge Kaye D. Lathrop John L: Parker, Esq.

190 Cedar Lane East Regional Attorney, Region 3 Ridgeway, CO 81432 New York State Department of E-mail: Kave.Lathrop(&,nrc. aov Environmental Conservation 21 South Putt Corners New Paltz, NY 12561 E-mail: ilparkeridgw.dec.state.nv.us Elise N. Zoli, Esq. Janice A. Dean, Esq.

Goodwin Procter, LLP Assistant Attorney General 53 State Street Office of the Attorney General Boston, MA 02109 120 Broadway, 26th Floor E-mail: ezoli()goodwinprocter.com New York, NY 10271 E-mail: Janice.dean(t'ioagy.state.nv.us Sherwin E. Turk, Esq., Beth N. Mizuno, Esq., Daniel E.'O'Neill, Mayor David E. Roth, Esq., Jessica Bielecki, Esq., James Seirmarco, M.S.

Marcia J. Simon, Esq. Village of Buchanan Office of General Counsel Municipal Building U.S. Nuclear Regulatory Commission 236 Tate Avenue Washington, D.C. 20555 Buchanan, NY 10511-1298 E-mail: Sherwin.Turk(d)nrc.gov lbs3@(m'nrc.gov E-mail: vob(Ibestweb.net Beth.Mi zuno(adrnrc..ov David.Roth(d',:nrc.gov Jessica.Bielecki(cfinrc. gov Marcia.Sirnon(d)nrc.gov Mylan L. Denerstein, Esq. Robert D. Snook, Esq.

Executive Deputy Attorney General Assistant Attorney General 120 Broadway, 2 5 th Floor 55 Elm Street, P.O. Box 120 New York, NY 10271 Hartford, CT 06141-0120 E-mail: mnvlan.denerstein(dioag. state.nv.us E-mail: Robert. Snook@2po.state.ct.us Deborah Brancato V

January 20, 2009 3