ML14008A358

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

ML14008A358
Person / Time
Site:	Indian Point
Issue date:	01/08/2014
From:	Liberatore K, Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25470
Download: ML14008A358 (13)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 8, 2014

---

x STATE OF NEW YORK MOTION FOR LEAVE TO FILE REPLY ON MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION OF CONTENTION NYS-12C Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

The State of New York respectfully requests leave from the Atomic Safety and Licensing Board to file a reply, including a responsive expert declaration, to (1) NRC Staffs Response to State of New York Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (ML13357A775 package) and (2) Entergys Answer Opposing State of New York Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (ML13357A254). Both were filed on December 23, 2013. On December 31, 2013, the Board granted the State an extension of time to file its motion for leave until January 8, 2014. 1 Good cause and compelling circumstances exist for a reply to be filed. First, the opportunity for a reply is necessary to respond to the Affidavit of S. Tina Ghosh, submitted by NRC Staff as part of its responsive papers, which contains new facts and technical information not previously available to the State either during consultation or otherwise. The Ghosh affidavit represents the first time that Staff has attempted to explain why a 365-day TIMDEC was used, and it contains several misleading statements. As such, the State could not have reasonably anticipated the substance of this affidavit, and the State requests an opportunity to address these points with a responsive expert declaration. Additionally, a reply is necessary for the State to respond to Entergys allegation that the State violated disclosure obligations, including Entergys assertion that the State could be subject to sanctions; to correct NRC Staffs mischaracterization of the States August 1, 2013 comment letter (ML13357A781); and to address NRC Staffs arguments regarding the correct standard for relevancy in disclosure obligations.

The State has consulted with counsel for Entergy, NRC Staff, Clearwater, and Riverkeeper regarding this motion for leave. Clearwater and Riverkeeper do not oppose this motion. Entergy and NRC Staff oppose this motion because they believe the State has not met 1

ASLB Order Granting New Yorks Motion for an Extension of Time (Dec. 31, 2013)

(ML13365A162).

1

the standard justifying a reply and should have anticipated these points.

STANDARD FOR REPLY NRCs regulations provide that The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.

10 C.F.R § 2.323(c). The Boards July 1, 2010 Scheduling Order states that [a] motion to file a reply must demonstrate good cause for permitting the reply to be filed and must indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition. ASLB Scheduling Order, ¶ G.3.

(Jul. 1, 2010) (ML101820387).

GOOD CAUSE AND COMPELLING CIRCUMSTANCES JUSTIFY THE STATES REQUEST FOR A REPLY In its motion to reopen and for reconsideration, the State of New York requests that the Atomic Safety and Licensing Board reopen the hearing record on Contention NYS-12, consider the evidence presented by the State, and reconsider its recent ruling in light of information that NRC Staff used a TIMDEC input value of 365 days in a MACCS2 analysis of a severe accident at a spent fuel pool.

Both NRC Staffs and Entergys answers to the State of New Yorks Motion for Reconsideration and to Reopen present new facts, new information, and new arguments which the State could not reasonably have anticipated based on its initial filing. As such this motion meets the standards set forth in the regulations and in this Boards Scheduling Order. See 10 C.F.R. § 2.323(c); ASLB Scheduling Order, ¶ G.3. (Jul. 1, 2010) (ML101820387).

2

1. Ghosh Affidavit. During consultation on the States motion, NRC Staff stated that its use of a 365-day TIMDEC in the Spent Fuel Pool Consequence Study was not relevant because it came from a different study. Staff provided no further elaboration on its position, nor do any documents available to the State explain why Staff used a 365-day TIMDEC.

The Ghosh affidavit, submitted by NRC Staff with its responsive papers on December 23, 2013, 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 Severe Accident Mitigation Alternatives (SAMA) Analysis. The 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 and reconsider. Thus, the State could not have reasonably anticipated these new facts and new technical justifications and arguments.

NRC Staff asserted, As stated in the attached Declaration of Dr. Tina Ghosh, one of the Staffs testifying experts, the differences between the SAMA analysis performed at Indian Point and the analysis conducted for the SFP Scoping Study are stark. NRC Staff Resp. at 13. But after working with its experts to review the Ghosh affidavit, the State has discovered that some of the information in the Ghosh affidavit is misleading, and the Indian Point SAMA analysis and the Spent Fuel Pool Consequence Study are more similar than NRC Staff maintains.

For example, Dr. Ghosh claims that [b]ecause of the large magnitude of contaminated land areas, the team chose a TIMDEC of 365 days, which is longer than what has been chosen historically in most reactor accident PRAs. Ghosh Affidavit ¶ 3 (emphasis added). Dr. Ghosh, however, fails to discuss the population in those contaminated land areas, despite the fact that the economic costs of an accident as modeled by MACCS2 are influenced by population. The State should be afforded an opportunity to demonstrate, in a reply expert declaration, that the 3

contaminated populations, as opposed to land areas, in the Indian Point SAMA analysis are similar or greater than those in the Spent Fuel Pool Consequence Study.

As another example, Dr. Ghosh claims [t]he Spent Fuel Pool Study focused on a single challenging accident scenario: a severe accident from an example spent-fuel pool initiated by an extreme seismic event, with an estimated frequency of occurrence of 10-7 per reactor year.

Ghosh Affidavit ¶ 3 (emphasis added). This frequency, however, is on par with the frequencies of accident scenarios, i.e. releases, examined by Entergy in its Indian Point SAMA analysis:

ENT000464 (ML12339A570) at Tables 5 and 6. The State requests the opportunity to discuss this, and other technical critiques of the Ghosh affidavit, in a reply filing.

Furthermore, the State notes that the Ghosh affidavit is less absolute in describing Staffs TIMDEC practices than Staffs previous testimony on the subject. In discussing the MACCS2 4

analysis for the Spent Fuel Pool Consequence Study, the Ghosh affidavit stated: the calculated source terms and contaminated land areas were significantly larger than those calculated in typical reactor accident probabilistic risk assessments (PRAs). Ghosh Affidavit

¶ 3 (emphasis added). The implication of Dr. Ghoshs sworn statement is that not every probabilistic risk assessment or MACCS2 analysis has used a TIMDEC of 60 and 120 days, which conflicts with testimony Staff provided in the Indian Point relicensing proceeding.

2. Entergys Disclosure Arguments. Entergy argues that the information regarding the 365 day TIMDEC was available since mid-2013 and that the State of New York should have previously disclosed the information. Entergy suggests that the State ran afoul of the Commissions disclosure obligation. Entergy Oppn at 8, 11. Entergy even goes so far as to state As such, New York either failed to comply with its disclosure obligations, subject to the risk of sanctions under 10 C.F.R. § 2.336(e), or did not consider any of the referenced information relevant to Contention NYS-12C. Id. at 11 (emphasis added). The disclosure issue vis--vis the State was not discussed during consultation on the States motion to reopen.

Further, Entergys argument seeks to conflate the information contained in the MACCS2 input and output files with the Spent Fuel Pool Consequence Study and a single line of text therein.

The State is not contending that the entire 369-page draft Spent Fuel Pool Consequence Study is relevantthe fact that NRC Staff used a TIMDEC input of 365 days, after contending that it has always used the Sample Problem A / NUREG-1150 values of 60 and 120 days, is what is relevant. The Spent Fuel Pool Consequence Study does not mention TIMDEC, and Entergy admits this (Entergy Oppn at 8, n. 37). In fact, up until the State received the MACCS2 input/output files, and its experts reviewed them and noticed that a 365-day TIMDEC (expressed as 3.15x10E7) was used, the State did not believe the Spent Fuel Pool Consequence Study was 5

relevant to NYS-12C. Also, the State included the MACCS2 input and output files in the attachments to its motion to reopen and in its December 2013 disclosures.

3. NRC Staffs Mischaracterization of the States August 1, 2013 Comment Letter.

In an attempt to demonstrate that the State should have been able to determine that a 365-day TIMDEC was used in the Consequence Studydespite the fact that the Consequence Study does not mention TIMDEC and the fact that Staff did not provide the underlying MACCS2 runs to the State until one year from when they were completedStaff argues New York has been actively participating in the SFP Scoping Study; thus, New York [] formulated written comments, apparently upon consultation with its experts, and submitted those comments on the draft study. NRC Resp. at 7 (emphasis added). The States August 2013 comments, however, are clear: the State requested more time to comment on the draft Spent Fuel Pool Consequence Study because 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. NYS Comment Letter at 1, Attachment B to NRC Staffs Resp. The State seeks to submit 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.

4. NRC Staffs Argument Regarding the Proper Relevancy Standard The NRC Staff Response (at 16-18) misinterprets the States disclosure argument and contradicts the Commissions 2012 amendments to 2.336(b). In its motion (at 4), the State set out what it believed to be a fundamental and generally accepted point regarding disclosure obligations that holds true regardless of what version of 2.336(b) appliesthe NRCs own regulation essentially obligated Staff to disclose information within its possession that supported the Staffs position as well as information that contradicted or opposed Staffs position. New 6

York believed that the NRCs own regulations and basic fairness did not permit Staff to make factual representations to the Atomic Safety and Licensing Board while at the same time exempting Staff from disclosing information within Staffs possession that contradicted such representations by Staff.

In its response, not only did Staff misconstrue New Yorks concise summary of Staffs

§ 2.336(b) obligations, but Staff then went on to contradict the Commissioners statement of the relative scope of the 2004 and 2012 versions of § 2.336(b). The Commissions Statement of Considerations in the August 2012 Federal Register confirm that the Commissioners understood that the Staffs disclosure obligations under the 2004 regulation were substantially broader and more burdensome than were Staffs obligations under the revised 2012 obligations. 77 Fed. Reg. 46562, 46563, Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements (Aug. 3, 2012). 2 After reviewing the public comments and considering the proposal to make changes to the scope of the staffs disclosure obligations, the NRC has decided to adopt a revised § 2.336 that will limit the scope of the staffs mandatory disclosures to documents relevant to the admitted contentions. Id. (emphasis added).

The NRC believes that limiting the staffs mandatory disclosures to only documents relevant to the admitted contentions will reduce the burden on both the NRC staff and the other parties to the proceeding. The NRC staff will have to produce fewer documents and the other parties will have to review fewer documents. Further, the documents provided to the parties by the NRC staff will be relevant to the admitted contentions, which will allow parties to focus on the disputed issues in the proceeding without having to review documents with no relevance to the admitted contentions.

Id. If, in August 2012, the NRC Commissioners revised the 2004 disclosure obligations to limit the Staffs disclosure obligations to documents that were relevant to admitted 2

Staffs response (at 16, n.59) referred to this Federal Register notice and related rulemaking.

7

contentions, logic holds that earlier 2004 regulations must have at least as broad and also included an obligation on NRC Staff to disclose documents that were relevant to admitted contentions.

The State could not have anticipated that Staff would mischaracterize the 2012 statement of consideration and regulatory amendments and, hence, the Staffs disclosure obligations under the 2004 and 2012 versions of § 2.336(b). Therefore, the Board should permit the State the opportunity to file a reply to address and refute the Staffs position.

CONCLUSION In light of the above, the State of New York respectfully submits that good cause exists for the Board to permit the State to file a Reply to NRC Staffs Response and Entergys Answer to the States Motion for Reconsideration and to Reopen the Record on NYS-12C. If this motion is granted, the State requests that it have until January 16, 2014 to file its reply with the Board (or 7 days following an order by the Board permitting such a filing).

Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Kathryn M. Liberatore Assistant Attorneys General Assistant Attorney General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York The Capitol 120 Broadway Albany, New York 12224 New York, New York 10271 (518) 402-2251 (212) 416-8482 Dated: January 8, 2014 8

10 C.F.R. § 2.323 Certification Pursuant to 10 C.F.R. § 2.323(b) and the Boards July 1, 2010 Scheduling Order (at 8-9),

I certify that I have made a sincere effort to contact counsel for the parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that Clearwater and Riverkeeper do not oppose the States motion for leave, but NRC Staff and Entergy do oppose.

Signed (electronically) by Kathryn M. Liberatore Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway New York, New York 10271 (212) 416-8482 January 8, 2014

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 8, 2014

---

x CERTIFICATE OF SERVICE I hereby certify that on January 8, 2014, copies of the State of New York Motion for Leave to File Reply on Motion to Reopen the Record and for Reconsideration of Contention NYS-12C were served electronically via the Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair Carter Thurman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge James Maltese, Esq., Law Clerk Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Carter.Thurman@nrc.gov Lawrence.McDade@nrc.gov James.Maltese@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 16 G4 Mailstop 3 F23 One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 ocaamail@nrc.gov 1

Office of the Secretary Bobby R. Burchfield, Esq.

Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.

U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.

Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.

David E. Roth, Esq. Richard A. Meserve, Esq.

Beth N. Mizuno, Esq. Matthew W. Swinehart, Esq.

Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Office of the General Counsel Washington, DC 20004-2401 U.S. Nuclear Regulatory Commission rmeserve@cov.com Mailstop 15 D21 mswinehart@cov.com One White Flint North 11555 Rockville Pike Elise N. Zoli, Esq.

Rockville, MD 20852-2738 Goodwin Procter, LLP sherwin.turk@nrc.gov Exchange Place david.roth@nrc.gov 53 State Street beth.mizuno@nrc.gov Boston, MA 02109 brian.harris@nrc.gov ezoli@goodwinprocter.com anita.ghosh@nrc.gov William C. Dennis, Esq.

Kathryn M. Sutton, Esq. Assistant General Counsel Paul M. Bessette, Esq. Entergy Nuclear Operations, Inc.

Raphael Kuyler, Esq. 440 Hamilton Avenue Lance A. Escher, Esq. White Plains, NY 10601 Morgan, Lewis & Bockius LLP wdennis@entergy.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Robert D. Snook, Esq.

ksutton@morganlewis.com Assistant Attorney General pbessette@morganlewis.com Office of the Attorney General rkuyler@morganlewis.com State of Connecticut leascher@morganlewis.com 55 Elm Street P.O. Box 120 Martin J. ONeill, Esq. Hartford, CT 06141-0120 Morgan, Lewis & Bockius LLP robert.snook@ct.gov Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2

Melissa-Jean Rotini, Esq. Richard Webster, Esq.

Assistant County Attorney Public Justice, P.C.

Office of the Westchester County Attorney Suite 200 Michaelian Office Building 1825 K Street, NW 148 Martine Avenue, 6th Floor Washington, DC 20006 White Plains, NY 10601 rwebster@publicjustice.net MJR1@westchestergov.com Phillip Musegaas, Esq.

Sean Murray, Mayor Deborah Brancato, Esq.

Kevin Hay, Village Administrator Riverkeeper, Inc.

Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue phillip@riverkeeper.org Buchanan, NY 10511-1298 dbrancato@riverkeeper.org Administrator@villageofbuchanan.com smurray@villageofbuchanan.com Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Victoria S. Treanor, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Teresa Manzi Legal Assistant State of New York (518) 474-1978 Dated at Albany, New York this 8th day of January 2014 3