ML14091A319

Order Denying New York'S Motion to Reopen the Record; Setting Deadline for New or Amended Contention

ML14091A319
Person / Time
Site:	Indian Point
Issue date:	04/01/2014
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:	State of NY
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25755
Download: ML14091A319 (7)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) April 1, 2014 ORDER (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention)

I. Responding to Motion to Reopen the Record - New York Contention 12-C On December 7, 2013, the State of New York (New York) filed a motion to Reopen the Record and for the Reconsideration of Contention NYS-12C.1 Subsequently, Entergy Nuclear Operations, Inc. (Entergy) and the NRC Staff filed answers opposing New Yorks motion.2 The Board granted New Yorks Motion for Leave to File a Reply,3 and New York filed its reply in support of its motion on January 22, 2014.4 For the reasons discussed below, we deny New Yorks Motion to Reopen the Record and for the Reconsideration of Contention NYS-12C.

1 See State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec. 7, 2013) [hereinafter New York Motion to Reopen].

2 See Entergys Answer Opposing State of New York Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Dec. 23, 2013); NRC Staffs Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec.

23, 2013) [hereinafter Entergy Answer].

3 See Licensing Board Order (Granting New Yorks Motion) (Jan. 14, 2014) (unpublished).

4 State of New York Reply in Support of Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014).

To reopen the record of this closed proceeding, a movant must show that its motion is timely; that it addresses a significant safety or environmental issue; and that a materially different result would be or would have been likely had the newly-proffered evidence been considered initially.5 The moving party has an elevated burden to lay a proper foundation for its claim6 based on relevant, material, and reliable evidence. 7 Parties seeking reconsideration of board orders must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid.8 The compelling circumstances standard for granting leave to file a motion for reconsideration is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier.9 While the Board finds that New Yorks motion addressed a significant issue, New York did not provide sufficient information to establish that a different result would have been likely had the Board considered the new information proffered by New York when assessing the reasonableness of the TIMDEC input values accepted by the Staff in the Indian Point SAMA analysis.

Specifically, New York has asserted that the Board should reconsider its recent ruling in light of the fact that NRC Staff used a TIMDEC input value of 365 days in a MACCS2 analysis of a severe accident at a spent fuel pool.10 New York argued that the use of a 365-day TIMDEC is 5

10 C.F.R. § 2.326(a).

6 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).

7 10 C.F.R. § 2.337(a).

8 Id. § 2.345(b).

9 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004).

10 See New York Motion to Reopen.

contrary to the position taken by the NRC Staff and Entergy before the Board in this proceeding that the NRC Staff had consistently accepted TIMDEC inputs of 60 days and 120 days for the last 30 years.11 But, as the Applicant and the NRC Staff point out, these representations made before and during the hearing on NYS-12C refer to analyses of numerous failure scenarios performed for license renewal applications, and that the use of the longer duration for decontamination was utilized as a site specific value for a specific postulated spent fuel pool accident.12 We find New Yorks explanation insufficient to show that the NRC Staffs acceptance of TIMDEC inputs of 60 days and 120 days for the Indian Point SAMA was not reasonable. Thus, it is unlikely that the Board would reach a materially different result given the information provided by New York and, accordingly, this motion does not meet the requirements for a contention to be reopened.

II. Permitting New York to File New Contention On November 25, 2013, New York filed a motion seeking leave to submit a recently-issued ruling by the New York State Public Service Commission (PSC Order) as an exhibit in connection with contention NYS-37.13 The Board denied this motion as premature until the Staff determines whether to supplement the FSEIS to address this issue, and directed New York to delay the filing of any new or amended contention based on the PSC Order, or the information contained therein until further Order of this Board.14 On December 20, 2013, the NRC Staff filed 11 Id. at 1.

12 See Entergy Answer at 14; 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 (Jan. 9, 2014).

13 State of New York Motion for Leave to Submit Recently-Issued Ruling by New York State Public Service Commission as an Additional Exhibit Concerning Contention NYS-37 (Nov. 25, 2013).

14 Licensing Board Order (Denying New Yorks Motion) at 2 (Nov. 27, 2013) (unpublished).

its response to the Boards Order, in which the NRC Staff provided its evaluation of the information contained in the PSC Order and stated that it will not issue an FSEIS supplement to address that information.15 Because the NRC Staff has chosen not to issue an FSEIS supplement to address the information in the PSC Order, New Yorks request is ripe and the Board will permit New York to file a new or amended contention based on this information within 30 days of the issuance of this order.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland April 1, 2014 15 NRC Staffs Response to the Atomic Safety and Licensing Boards Order of November 27, 2013 (Denying New Yorks Motion) (Dec. 20, 2013).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR

) and 50-286-LR (Indian Point Nuclear Generating, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.

Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.

Mail Stop O-7H4M David E. Roth, Esq.

Washington, DC 20555-0001 Sherwin E. Turk, Esq.

ocaamail@nrc.gov Brian Harris, Esq.

Mary B. Spencer, Esq.

U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.

Office of the Secretary of the Commission Christina England, Esq.

Mail Stop O-16C1 Catherine E. Kanatas, Esq.

Washington, DC 20555-0001 John Tibbetts, Paralegal hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop T-3F23 sherwin.turk@nrc.gov; Washington, DC 20555-0001 edward.williamson@nrc.gov beth.mizuno@nrc.gov; brian.harris.@nrc.gov Lawrence G. McDade, Chair david.roth@nrc.gov; mary.spencer@nrc.gov Administrative Judge anita.ghosh@nrc.gov; lawrence.mcdade@nrc.gov christina.england@nrc.gov; catherine.kanatas@nrc.gov; Richard E. Wardwell john.tibbetts@nrc.gov Administrative Judge richard.wardwell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov Michael F. Kennedy Administrative Judge William C. Dennis, Esq.

michael.kennedy@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.

Carter Thurman, Law Clerk 440 Hamilton Avenue carter.thurman@nrc.gov White Plains, NY 10601 wdennis@entergy.com Kathleen E. Oprea, Law Clerk Kathleen.Oprea@nrc.gov William B. Glew, Jr.

Organization: Entergy 440 Hamilton Avenue, White Plains, NY 10601 wglew@entergy.com

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention)

Elise N. Zoli, Esq. Phillip Musegaas, Esq.

Goodwin Proctor, LLP Deborah Brancato, Esq.

Exchange Place, 53 State Street Ramona Cearley, Secretary Boston, MA 02109 Riverkeeper, Inc.

ezoli@goodwinprocter.com 20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org; dbrancato@riverkeeper.org Daniel Riesel, Esq. rcearley@riverkeeper.org Victoria Shiah Treanor, Esq.

Adam Stolorow, Esq.

Jwala Gandhi, Paralegal Melissa-Jean Rotini, Esq.

Natoya Duncan, Paralegal Assistant County Attorney Counsel for Town of Cortlandt Office of Robert F. Meehan, Sive, Paget & Riesel, P.C. Westchester County Attorney 460 Park Avenue 148 Martine Avenue, 6th Floor New York, NY 10022 White Plains, NY 10601 driesel@sprlaw.com; vtreanor@sprlaw.com mjr1@westchestergov.com astolorow@sprlaw.com; jgandhi@sprlaw.com; nduncan@sprlaw.com Clint Carpenter, Esq.

Bobby Burchfield, Esq.

Kathryn M. Sutton, Esq. Matthew Leland, Esq.

Paul M. Bessette, Esq. McDermott, Will and Emergy LLP Martin J. ONeill, Esq. 600 13th Street, NW Raphael Kuyler, Esq. Washington, DC 20005 Lena Michelle Long, Esq. ccarpenter@mwe.com; bburchfield@mwe.com Laura Swett, Esq. mleland@mwe.com Lance Escher, Esq.

Brooke McGlinn, Esq. Matthew W. Swinehart, Esq.

Susan Raimo, Esq. Covington & Burling LLP Mary Freeze, Legal Secretary 1201 Pennsylvania Avenue, NW Doris Calhoun, Legal Secretary Washington, DC 20004 Morgan, Lewis & Bockius, LLP mswinehart@cov.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Edward F. McTiernan, Esq.

ksutton@morganlewis.com New York State Department martin.oneill@morganlewis.com of Environmental Conservation rkuyler@morganlewis.com; Office of General Counsel llong@morganlewis.com; 625 Broadway lswett@morganlewis.com 14th Floor lescher@morganlewis.com Albany, NY 12233-1500 bmcglinn@morganlewis.com efmctier@gw.dec.state.ny.us sraimo@morganlewis.com mfreeze@morganlewis.com dcalhoun@morganlewis.com 2

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention)

Manna Jo Greene, Environmental Director John J. Sipos, Esq.

Steven C. Filler Charles Donaldson, Esq.

Hudson River Sloop Clearwater, Inc. Kathryn Deluca, Esq.

724 Wolcott Ave. Elyse Houle, Legal Support Beacon, NY 12508 Assistant Attorneys General mannajo@clearwater.org; Office of the Attorney General stephenfiller@gmail.com of the State of New York The Capitol, State Street Albany, New York 12224 Andrew Reid, Esq. john.sipos@ag.ny.gov Organization: Hudson River Sloop charlie.donaldson@ag.ny.gov Clearwater, Inc. kathryn.deluca@ag.ny.gov Springer & Steinberg, P.C. elyse.houle@ag.ny.gov 1600 Broadway, Suite 1200 Denver, CO 80202 Robert D. Snook, Esq.

areid@springersteinberg.com Assistant Attorney General Office of the Attorney General Richard Webster, Esq. State of Connecticut Public Justice, P.C. 55 Elm Street For Hudson River Sloop Clearwater, Inc. P.O. Box 120 1825 K Street, NW, Suite 200 Hartford, CT 06141-0120 Washington, D.C. 20006 robert.snook@po.state.ct.us rwebster@publicjustice.net Janice A. Dean, Esq.

Michael J. Delaney, Esq. Kathryn DeLuca, Esq.

Director, Energy Regulatory Affairs Assistant Attorney General NYC Department of Environmental Protection Office of the Attorney General 59-17 Junction Boulevard of the State of New York Flushing, NY 11373 120 Broadway, 26th Floor mdelaney@dep.nyc.gov New York, New York 10271 janice.dean@ag.ny.gov kathryn.deluca@ag.ny.gov Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com

[Original signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of April, 2014 3