ML090370791

Entergy'S Answer to New York State and Riverkeeper Motion for Extension of Time to File Contentions Related to Draft SEIS

ML090370791
Person / Time
Site:	Indian Point
Issue date:	01/12/2009
From:	O'Neill M Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-209
Download: ML090370791 (13)

Text

/ --_ DOCKETED USNRC January 12, 2009 (12:40pm)

OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

(Indian Point Nuclear Generating Units 2 and 3) )

_) January 12, 2009 ENTERGY'S ANSWER TO NEW YORK STATE AND RIVERKEEPER MOTION FOR EXTENSION OF TIME TO FILE CONTENTIONS RELATED TO DRAFT SEIS I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), Entergy Nuclear Operations, Inc. ("Entergy")

hereby files this Answer to the Motion by New York State and Riverkeeper for Extension of Time to File Timely Contentions Related to Draft Supplemental Environmental Impact Statement ("Motion"), dated January 9, 2009. In the Motion, New York State ("New York") and Riverkeeper (collectively, "Intervenors") request an extension to February 27, 2009, in which to file new or amended contentions based on the Draft Supplemental Environmental Impact Statement ("Draft SEIS") for Entergy's license renewal application for the Indian Point Nuclear Generating Units 2 and 3.'

Intervenors claim a 37-day extension of time (on top of the 30 days Intervenors acknowledge is typically permitted for new and amended contentions based on newly available information) is warranted because: (1) the Draft SEIS is a "voluminous" document; (2) the NRC Staff took considerable time preparing the Draft SEIS; (3) the intervening holidays delayed Intervenors' review of the Draft SEIS; (4) an extension would "promote the coordination" See Draft Report for Comment, NUREG-1437, Supp. 38, Generic Environmental Impact Statement for License Renewal of Nuclear Power Plants Regarding Indian Point Nuclear Generating Units Nos. 2 and 3 (Dec. 22, 2008),

which was served on the parties on December 22, 2008.

between Intervenors' submission of written comments on the Draft SEIS, and new and amended contentions; and (5) the requested extension would not have a material impact on the overall 2

schedule for the proceeding.

As discussed below, the Motion should be denied because it is procedurally defective and because these claims do not constitute "unavoidable and extreme circumstances" 3 justifying the protracted extension of time requested by Intervenors.

II. DISCUSSION A. The Motion Should Be Summarily Denied on Procedural Grounds Without needing to reach the merits, the Board can dismiss the Motion because Intervenors have failed to comply with applicable procedural requirements.

NRC regulations at 10 C.F.R. § 2.323(a) specify that motions "must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises." As the Intervenors point out, the Draft SE1S was issued and made available to them on December 22, 2008.4 Furthermore, all the circumstances that Intervenors cite as justification for an extension should have been apparent immediately to Intervenors once the Draft SEIS was issued, if not Motion at 1-4.

3 Bait. Gas and Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units I & 2), CLI-98-25, 48 NRC 325, 342-43 (1998).

4 Motion at 1.

sooner.5 Accordingly, any request for an extension of time should have been made no later than January 2, 2009.6 Therefore, the Motion is untimely and should be rejected.

The Motion also should be rejected for failing to comply with 10 C.F.R. § 2.323(b),

which requires that "[a] motion must be rejected if it does not include a certification by the attorney.. . of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movant's efforts to resolve the issue(s) have been unsuccessful."' 7 In the Motion, Intervenors state that they contacted counsel for Entergy and inquired whether Entergy objected to the filing of the Motion. However, counsel for New York contacted counsel for Entergy just before 5 p.m. on Friday, approximately an hour before filing the Motion. During that call, counsel for New York informed counsel for Entergy that New York would be filing its request for the 37-day extension later that same day. Furthermore, counsel for New York never informed counsel for Entergy that it would be filing the request jointly with Riverkeeper. Nor did counsel for New York offer to discuss a lesser extension which Entergy would have appropriately considered.

As the Licensing Board in the Vermont Yankee power uprate proceeding observed in describing a party's obligations under Section 2.323(b), "[t]he last-minute timing of the For example, as discussed below, on September 2, 2008, NRC Staff rescheduled the expected issuance of the Draft SEIS to mid-December. See Letter from B. Holian, NRC, toJ. Pollock, Entergy, "Revision of Schedule for the Conduct of Review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application" (Sept. 9, 2008), available at ADAMS Accession No. ML082400214. Thus, it should have been readily apparent months before issuance of the Draft SEIS that Intervenors would be required to prepare new and amended contentions during the holiday season. Likewise, it should have been apparent that Intervenors would be expected to file new or amended contentions before the deadline for public comments on the Draft SEIS prior to issuance of the Draft SEIS because the comment deadline had previously been set forth in the NRC Staff's review schedules during the entirety of this proceeding.

6 Ten days from December 22, 2008, would have been January 1, 2009, which was a New York and Federal legal holiday; however, NRC regulations at 10 C.F.R. § 2.306(a) provide that in computing any period of time, "[t]he last day of the period so computed is included unless it is a ... legal holiday at the place where the action or event is to occur, . . . in which event the period runs until the end of the next day [which is neither] a Saturday, Sunday, .... [nor]

holiday."

7 10 C.F.R. § 2.323(b) (emphasis added).

8 Motion at 5.

)

telephone call. 'on the same day that the motion had to be filed, strongly indicates that there was little or' no ,-,,eaningful effort, and no realistic opportunity, to resolve the issues before the motion had to be filed." 9 ' So too here. Counsel for New York's last-minute call to counsel for Entergy clearly does not satisfy the requirement for a reasonable effort to resolve a matter before filing a motion. Accordingly, as required by Section 2.323(b), the Motion "must be rejected."

B. The Motion Does Not Demonstrate Good Cause for an Extension Notwithstanding the procedural defects of the Motion, the Board should still deny the Motion because Intervenors have not provided a sufficient basis for the requested extension.

As set forth in the Commission's Model Milestones, any new or amended contentions submitted in license renewal proceedings are to be filed within 30 days of the issuance of the NRC's Draft SEIS. 10 Furthermore, NRC has a long-standing policy that parties to an adjudicatory proceeding are expected to adhere to the time frames specified in the Rules of Practice in 10 C.F.R. Part 2.11 Nevertheless, under 10 C.F.R. § 2.307(a), the Board may grant extensions of time for good cause:

Except as otherwise provided by law, the time fixed or the period of time prescribed for an act that is required or allowed to be done at or within a specified time, may be extended or shortened either by the.. presiding officer for good cause ... 12 9 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-5, 63 NRC 116, 129-30 (2006).

10 See 10 C.F.R. Pt. 2, App. B, Sec. II (requiring that any "proposed late-filed contentions on ... necessary NEPA documents" be filed "[w]ithin 30 days of issuance of... any necessary NEPA document"). See also Entergy Vt.

Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-07-15, 66 NRC 261, 266 n. 11 (2007) (stating that "many boards, including this one, have established a general 30-day rule for the filing of [new or amended contention] motions").

Statement of Policy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998) ("Policy Statement").

2 10 C.F.R. § 2.307(a) (emphasis added).

The Commission Policy Statement makes clear that the standard for granting extensions of time requires a demonstration of "unavoidable and extreme circumstances." 13 Thus, the Commission has interpreted "good cause" to require a showing of "unavoidable and extreme 14 circumstances."

As demonstrated further below, Intervenors have failed to demonstrate "unavoidable or extreme circumstances" that justify a departure from the Commission's long-standing procedural milestones that new and amended contentions be submitted 30 days after the issuance of the Draft SEIS."5 First, Intervenors claim that an extension is warranted because the Draft SEIS is a voluminous document,16 but the length of that document cannot be considered sufficient grounds for an extension. Specifically, the Draft SEIS in this proceeding is not significantly longer or even more complex than the draft environmental supplement issued in other recent 13 Policy Statement, CLI-98-12, 48 NRC at 21.

14 See Calvert Cliffs, CLI-98-25, 48 NRC at 342 (holding that "construction of 'good cause' to require a showing of

'unavoidable and extreme circumstances' constitutes a reasonable means of avoiding undue delay in this important license renewal proceeding").

15 Despite the Intervenors suggestion to the contrary, the mere issuance of the Draft SEIS does not automatically trigger a right to submit new or amended contentions. While environmental contentions must be initially filed based on the environmental report, a "petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement ... that differ significantlyfrom the data or conclusions in the applicdnt's documents." 10 C.F.R. § 2.309(0(2) (emphasis added). In adding these requirements to the regulations, the Commission emphasized that it did not intend "to alter the standards in § 2.714(a) of its rules of practice [i.e., those currently set forth in 10 C.F.R. § 2.309(c)] as interpreted by NRC caselaw ... respecting late-filed contentions nor are they intended to exempt environmental matters as a class from the application of those standards."

Rules of Practice for Domestic License Proceeding-Procedural Changes in the Hearing Process, 54 Fed. Reg.

33,168, 33,172 (Aug. 11, 1989) (final rule). Accordingly, any new or amended contentions based on the Draft SEIS can only be admitted upon a favorable balancing of the factors in Section 2.309(c). The most significant of those factors, the "good cause" factor, requires not only that one seeking the admission of a late-filed contention "have acted promptly after learning of the new information, but [that] the information itself must be new information, not information already in the public domain." Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units I & 2),

CLI-92-12, 36 NRC 62, 70 (1992). Therefore, the appropriate subject of any new or amended contentions must be significantnew information, not simply the NRC's identification or analysis of information that was previously available to Intervenors.

16 Motion at 2.

-5

license renewal proceedings.' 7 Moreover, the 37 extra days requested by Intervenors, in addition to the normal 30 days (for a total of 67 days), would allow Intervenors more time to submit new or amended contentions than the 60 days that the regulations contemplate for the initial filing of hearing requests on all safety and environmental issues.18 Given that the Commission expects any new or amended contentions in license renewal proceedings to be filed within 30 days of the issuance of the Draft SEIS, and that Intervenors point to nothing atypical about that document in this proceeding, the length of the Draft SEIS cannot be considered "unavoidable and extreme circumstances." Accordingly, this reason provides no support for the 37-day extension requested by intervenors.

Second, Intervenors claim that an extension is justified because the NRC Staff took considerable time and, in fact took extra time, developing the Draft SEIS. 19 The length of time the NRC Staff takes to prepare its review documents is simply irrelevant to whether there are "unavoidable and extreme circumstances" applicable to Intervenors that justify the requested extension. As reflected in the Model Milestones for proceedings of this type, the filing of new or amended contentions within 30 days of the Staff s issuance of the Draft SEIS is the norm, 20 irrespective of whether the Staff takes over 12 months to prepare such documents.

Accordingly, the length of time expended by the NRC Staff in preparing its Draft SEIS provides no support for an extension and likely reflects the additional time required by the Staff to address the exceptionally large volume of public comments filed in this proceeding. Specifically, it has See, e.g., Draft Report for Comment, NUREG-1437, Supp. 30, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Vermont Yankee Nuclear Power Station (Dec. 13, 2006), availableat ADAMS Accession No: MIL063390344 (678 pages); Draft Report for Comment, NUREG-1437, Supp. 29, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Pilgrim Nuclear Power Station (Dec. 8, 2006), available at ADAMS Accession No. ML063260173 (634 pages).

1 See 10 C.F.R. § 2.309(b)(3)(i)-(ii).

" Motion at 3.

20 See 10 C.F.R. Part 2, Appendix B, Sect. 11, no bearing on the time required by the Intervenors to file new or amended contentions based on the Draft SEIS.

Third, Intervenors claim the issuance of the Draft SEIS prior to the holiday season, a time when many of Intervenors' technical reviewers were out of the office, justifies an extension. 21 As the Licensing Board in the Savannah River MOXproceeding explained, the "unavoidable and extreme circumstances" standard "effectively ties the Board's hands with respect to extending any filing deadline due to the holiday season." 22 Furthermore, even if the holiday season provided justification for a more-limited extension, Intervenors completely fail to explain how holidays in two consecutive weeks justifies a 37-day extension. Accordingly, Intervenors have not demonstrated "unavoidable and extreme circumstances" justifying the requested extension.

Fourth, Intervenors claim that the requested extension would allow for better coordination between the submission of (1) new and amended contentions and (2) public comments on the Draft SEIS.23 The March deadline for submission of comments on the Draft SEIS, however, is just that: the last date to submit such comments. Nothing prevents Intervenors, in the name of efficiency-and coordination, from submitting comments developed as part of their preparation of amended or new contentions prior to the NRC Staff s deadline for comments. Furthermore, Intervenors' argument ignores that the different deadlines for new and amended contentions and public comments are clearly contemplated by NRC regulations.

Specifically, Commission regulations require that "[a] minimum comment period of 45 days will 21 Motion at 3.

22 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), No. 070-03098-ML, Licensing Board Memorandum and Order at 4 (Feb. 12, 2002) (unpublished). In fact, as the Board issued its decision rejecting Entergy's Motion for Reconsideration on December 18, 2008, Entergy was required to work over the holidays in order to meet the Commission's deadline for filing its pending interlocutory appeal concerning Consolidated Riverkeeper EC-3/Clearwater EC-1. See Entergy's Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Riverkeeper EC-3/Clearwater EC- I (Jan. 7, 2009).

23 Motion at 3-4.

be provided," that this comment period "be calculated from the date on which the Environmental Protection Agency notice stating that the draft statement ... is published in the Federal Register," and that, "[t]o the extent practicable, NRC staff.., grant reasonable requests for extensions of time of up to fifteen (15) days." 24 In contrast, in the adjudicatory context, the regulations contemplate that new or amended contentions will be filed within 30 days of the issuance of the Draft SEIS, and that extensions will only be granted upon a showing of good cause (i.e., "unavoidable and extreme circumstances"). Thus, this reason provides no basis for the requested extension.

Fifth, Intervenors assert that the requested extension will not have a "material impact" on the schedule for this proceeding.25 The "unavoidable and extreme circumstances" standard, however, simply does not permit Intervenors to aver that the requested extension will not interfere with the commencement of the hearing. Allowing Intervenors a not-insubstantial extension to submit still further contentions in an already complex proceeding may in fact adversely impact the resolution of contentions that were already admitted, the issuance of the Final SEIS and SER, the commencement of the hearing, and ultimately the conclusion of this proceeding. Accordingly, Intervenors claim that the requested extension will not have a material impact on the completion of this proceeding should be rejected because it is not a factor to be considered under the "unavoidable and extreme circumstances" standard.

24 10 C.F.R. § 51.73.

25 Motion at 4.

III. CONCLUSION For the foregoing reasons, the Motion is procedurally defective and fails to demonstrate "unavoidable and extreme circumstances" that warrant the requested extension. Accordingly, the Motion should be denied.

Respectfully submitted, Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o'neill@morganlewis.com William C. Dennis, Esq.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 12th day of January 2009 DB 1/62471676.4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

.) January 12, 2009 CERTIFICATE OF SERVICE I hereby certify that copies of the "Entergy's Answer to New York State and Riverkeeper Motion for Extension of Time to File Contentions Related to Draft SEIS," dated January 12, 2009, were served this 12th day of January, 2009 upon the persons listed below, by first class mail and e-mail as shown below.

Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission Lawrence G. McDade, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail(anrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Igml (ahnrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kd12(bnrc.gov)

(E-mail: rew(anrc.gov)

Office of the Secretary

• Sherwin E. Turk, Esq.

Attn: Rulemaking and Adjudications Staff Beth N. Mizuno, Esq.

U.S. Nuclear Regulatory Commission David E. Roth, Esq.

Washington, D.C. 20555-0001 Jessica A. Bielecki, Esq.

(E-mail: hearingdocket(anrc.gov) Marcia J. Simon, Esq.

Office of the General Counsel Mail Stop: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set(dinrc.gov)

(E-mail: bnmll(ýnrc.gov)

(E-mail: david.roth(Thnrc.gov)

(E-mail: jessica.bielecki(inrc, gov)

(E-mail: marcia.simon(inrc. gov)

Zachary S. Kahn Justin D. Pruyne, Esq.

Law Clerk Assistant County Attorney, Litigation Bureau Atomic Safety and Licensing Board Panel of Counsel to Charlene M. Indelicato, Esq.

Mail Stop: T-3 F23 Westchester County Attorney U.S. Nuclear Regulatory Commission 148 Martine Avenue, 6th Floor Washington, DC 20555-0001 White Plains, NY 10601 (E-mail: zxkl (@nrc.gov) (E-mail: idp3 (@,westchestergov.com)

Manna Jo Greene Diane Curran, Esq.

Environmental Director Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

Hudson River Sloop Clearwater, Inc. 1726 M Street N.W., Suite 600 112 Little Market Street Washington, D.C. 20036 Poughkeepsie, NY 12601 (E-mail: dcurran(2harmoncurran.com)

(E-mail: mannaj o(cclearwater.org)

Stephen C. Filler, Board Member Thomas F. Wood, Esq.

Hudson River Sloop Clearwater, Inc. Daniel Riesel, Esq.

303 South Broadway, Suite 222 Ms. Jessica Steinberg, J.D.

Tarrytown, NY 10591 Sive, Paget & Riesel, P.C.

(E-mail: sfiller(anylawline.com) 460 Park Avenue New York, NY 10022 (E-mail: driesel Risprlaw.com)

(E-mail: i steinberg(asprlaw.com) 2

Phillip Musegaas, Esq. John Louis Parker, Esq.

Victor M. Tafur, Esq. Regional Attorney Deborah Brancato, Esq. Office of General Counsel, Region 3 Riverkeeper, Inc. NYS Dept. of Environmental Conservation 828 South Broadway 21 S. Putt Corners Road Tarrytown, NY 10591 New Paltz, New York 12561-1620 (E-mail: phillip(ariverkeeper.org) (E-mail: jlparker@,*w.dec.state.ny.us)

(E-mal: vtafur0),riverkeeper.org)

(E-mal: dbrancato(riverkeeper.org)

Robert D. Snook, Esq. Michael J. Delaney, V.P. - Energy Office of the Attorney General New York City Economic Development Corp.

State of Connecticut 110 William Street Assistant Attorney General New York, NY 10038 55 Elm Street (E-mail: mdelaneygnycedc.com)

P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert. Snook(ibpo. state. ct.us)

Daniel E O'Neill, Mayor*

Andrew M. Cuomo, Esq. James Siermarco, M.S.

Attorney General of the State of New York Liaison to Indian Point John J. Sipos, Esq. Village of Buchanan Charlie Donaldson Esq. Municipal Building Assistants Attorney General 236 Tate Avenue The Capitol Buchanan, NY 10511-1298 Albany, NY 12224-0341 (E-mail: iohn.sipos (aoag.state.ny.us)

Joan Leary Matthews, Esq. Mylan L. Denerstein, Esq.

Senior Attorney for Special Projects Executive Deputy Attorney General, Office of the General Counsel Social Justice New York State Department of Office of the Attorney General Environmental Conservation of the State of New York 625 Broadway, 14th Floor 120 Broadway, 25th Floor Albany, NY 12207 New York, New York 10271 (E-mail: ilmatthe(gw. dec. state.ny.us) (E-mail: Mylan. Denerstein 6h)oag. state.ny.us)

Janice A. Dean Office of the Attorney General of the State of New York Assistant Attorney General 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Dean(aoag.state.ny.us) 3

• The Office of the Secretary receives the original and 2 copies.

Martin J. O'Neill, Counsel for Entergy Nuclear Operations, Inc.

DB1/62473193.1 4