ML13157A457

State of Ny'S Answer to Entergy'S Request for Leave to File Additional Exhibit & Supplemental Proposed Findings of Fact & Conclusions of Law in Response to New York'S Supplemental Proposed Findings of Fact & Conclusions of Law on Contention

ML13157A457
Person / Time
Site:	Indian Point
Issue date:	06/06/2013
From:	Heslin L E, Liberatore K M, Sipos J J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24655, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13157A457 (9)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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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. June 6, 2013

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STATE OF NEW YORK'S ANSWER TO ENTERGY'S REQUEST FOR LEAVE TO FILE AN ADDITIONAL EXHIBIT AND SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN RESPONSE TO NEW YORK'S SUPPLEMENTAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONTENTION NYS-16B

Office of the Attorney General

for the State of New York

The Capitol

State Street

Albany, New York 12224

1 INTRODUCTION Pursuant to 10 C.F.R. § 2.323(2)(c), the State of New York responds to Entergy's request for leave to file supplemental Proposed Findings of Fact and Conclusions of Law ("Proposed Findings") in response to the State's supplemental Proposed Findings for Consolidated Contention NYS-16B, and to enter the entirety of NL-13-075, License Renewal Application-Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial (May 6, 2013) (ML13127A459) ("NL 075") as an exhi bit instead of the excerpted table proffered by the State.

Entergy's Answer Opposing State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Findings of Fact and Conclusions of Law (May 28, 2013) ("Entergy Opp'n") at 1, 5, n.21 (ML13148A498).

1 Today's answer by the State is timely was filed 9 days after Entergy's submission.

While the State does not object to Entergy responding to the State's Proposed Findings, the State does object to Entergy's request that the entirety of NL-13-075 be admitted as an exhibit. 2 As explained in more detail below, only the excerpted tabl e-containing Entergy's revised cost-benefit conclusions-is relevant to NYS-16B. This table has been offered as an exhibit for the sole purpose of rebutting Entergy's and Staff's argument that including commuters and undercounted minority residents in the population estimate will not have a material impact on the Severe Accident Mitig ation Alternatives ("SAMA") analysis. The remainder of NL-13-075-which contains Entergy's decision to implement some cost-beneficial

1 Instead of filing a separate motion for leave, En tergy requested leave to file responsive findings in its answer to the State's motion. Entergy's proposed supplemen tal findings are attached to its answer.

2 During consultation for the State's motion, the pa rties discussed the State's proposal to submit an excerpt of NL-13-075 containing Table 1 as an exhibit, but En tergy did not indicate that it would seek to have the entirety of NL-13-075 entered as an exhibit.

2 SAMA candidates and defer consideration of others-may be relevant to NRC Staff's efforts to remedy the deficiencies in the Final Supplemental Environmental Impact Statement ("FSEIS")

set forth by the Board in its July 14, 2011 summa ry disposition of NYS-35/36, but it is not relevant to the issues raised in NYS-16B-i.e., whether commuters and undercounted minority residents should be included in the population estimate for Indian Point.

Additionally, now that Entergy has submitted responsive findings, the State reiterates its request to submit brief reply findings.3 ARGUMENT The State does not object to Entergy's request to submit supplemental Proposed Findings. The State does, however, object to Entergy's request that the entirety of NL-13-075 be admitted as an exhibit. Aside from the excerpted table submitted by the State (NYS000476), NL-13-075 is not relevant to NYS-16B. The relevant portion of NL-13-075 is th e revised SAMA cost-benefit table reclassifying pr eviously cost-beneficial SAMA candidates as no longer cost-beneficial. NL-13-075, attach. 1 at 4-5. Upon reviewing the costs a nd benefits reported in this table, the State determined that two SAMA candidates Entergy wish es to reclassify as not cost-beneficial would still be cost-beneficial if the increases in population se t forth in NYS-16B were taken into account. This eviden ce directly rebuts Entergy's argument that the population errors identified in NYS-16B will not have a material impact on the SAMA analysis. The excerpt was submitted by the State solely for this purpose.

3 NRC Staff requested an opportunity to submit responsive find ings, but did not attach any proposed findings to its answer to the State's motion.

NRC Staff's Opposition to State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Proposed Findings of Fact and Conclusions of Law on Contention NYS-16B at 1 n.2 (May 23, 2013) (ML13134A354). The State respectfully requests that it be permitted to file a single reply to both the Entergy and Staff supplemental Proposed Findings after Staff tenders its supplemental Proposed Findings.

3The remainder of NL-13-075, however, has no bearing on NYS-16B. Although it is generally inappropriate to communicate matters of substance to the Board via letter or e-mail, 4 Entergy informed the Atomic Safety and Licensing Board via letter that it "submitted this information [in NL-13-075] to the NRC to support resolution of certain is sues identified by the Board in its July 14, 2011 decision granting New York State's motion for summary disposition of Consolidated Contention NYS-35/36."

Entergy Letter to ASLB, Re: Notification of Entergy's Submission of the Results of Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficia l (May 7, 2013) (ML13127A458). The majority of the document explains Entergy's decision to implement some cost-beneficial SAMA candidates and its decision to defer consideration of other cost-beneficial SAMA candidates. For example, in NL-13-075 Entergy discloses for the first time that it has implemented a SAMA candidate at Indian Point Unit 3, and plans to implement three more SAMA candidates (two at Unit 3 and one at Unit 2) by August 31, 2014. Putting aside the fact that NL-13-075 fails to explain why Entergy chose to implement any SAMA candidates at all and why it chose to implement these four as compared to the other cost-beneficial candidates, providing a rational basis for the implementation of SAMA candidates is not the subject of NYS-16B. Entergy's only justification for seeking admission of the entire NL-13-075 document is that it will "provide appropriate factual and legal context."

Entergy Opp'n at 5, n.21. But the

4 The "record should not be clut tered with such casual 'for your information' letters."

Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Order St riking New England Coalition's Letter to the Board at 1-2 (May 12, 2005). Instead, matters of substance should be communicated to the Board in formal filings, with the caption of the case, signature of c ounsel, and affidavits to support any factual statements. Id; see also 10 C.F.R. § 2.323(2)(b) (a motion must "state with particularity the grounds and the relief sought").

4State's supplemental Proposed Findings and Entergy's responsive Pr oposed Findings already provide that context. See State supplemental Proposed Fi ndings at 2-5, ¶¶207-214; Entergy supplemental Proposed Findings at 4, ¶6. As NL-13-075 does not mention NYS-16B, and only Table 1 of that document is relevant to Entergy's and Staff's material ity defense for NYS-16B, admitting the entire document will not provide the necessary context.

Moreover, entering the entirety of NL-13-075 as an exhibit to NYS-16B would also be inappropriate because it represents an attempt by Entergy to circumvent the proper process for remedying the National Environmental Policy Act ("NEPA") deficiencies outlined in the Board's summary disposition order on NYS-35/36.

In granting summary disposition to the State, the Board found "that the NRC Staff's decision to allow Entergy to complete its SAMA review outside of the license renewal process, by deferring the evaluation of SAMAs found to be potentially cost-beneficial until after relicensing, does not provide an adequate record for the agency to make its decision on the impacts of relicensing IP2 and IP3."

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), (Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36), LBP-11-17, 74 N.R.C. 11, 16-17 (Jul. 14, 2011), interlocutory review denied , CLI-11-14, __ N.R.C. ___ (Dec. 22, 2011). Thus, at present NRC Staff's FSEIS for the proposed license renewa l of Indian Point Unit 2 and Unit 3 has been found to be insufficient and it ca nnot now provide the basis to i ssue a renewed operating license for Indian Point Unit 2 or Indian Point Unit 3 under the NEPA. While NL-13-075 highlights the fact that the SAMA analysis is incomplete, the only way to remedy the deficiencies in NYS-35/36 is for NRC Staff to fo llow the Board's order: [U]nder NRC Regulations, the APA, and NEPA, Entergy's licenses cannot be renewed unless and until the NRC Staff reviews Entergy's completed SAMA analyses and either incorporates the result of these reviews into the FSEIS or, in the alternative, modifies its FSEIS to provide a valid reason for recommending the 5renewal of the licenses before the analysis of potentially cost effective SAMAs is complete and for not requiring the implementation of cost-beneficial SAMAs.

Id. at 17.

As such, NL-13-075 should not be entered in it s entirety as an exhibit for NYS-16B. The Board should admit only the excerpt of Table 1 (NYS000476), for the sole purpose of rebutting Entergy's and NRC Staff's materiality defense in NYS-16B. CONCLUSION For the foregoing reasons, New York State opposes Entergy's request that the Board admit NL-13-075 in its entirety. Additionally, now that Entergy has submitted responsive Proposed Findings, the State reiterates its request to submit brie f reply Proposed Findings. For the sake of efficiency, the State respectfully requests that it be permitted to file combined Proposed Findings, replying to both Entergy and NRC Staff, 10 days after the date of Staff's filing of responsive findings.

Respectfully submitted, Signed (electronically) by Signed (electronically) by Laura E. Heslin Kathryn M. Liberatore Assistant Attorneys General Office of the Attorney General for the State of New York 120 Broadway New York, New York 10271 (212) 416-6091 (212) 416-8482 John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 June 6, 2013 1UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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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. June 6, 2013

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x CERTIFICATE OF SERVICE I hereby certify that on June 6, 2013, copies of the accompanying State of New York Answer to Entergy's Request to File and Additional Exhib it Concerning Contention NYS-16B were served electronically via the Electronic Informa tion Exchange on the following recipients:

Lawrence G. McDade, Chair

Richard E. Wardwell, Administrative Judge Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Lawrence.McDade@nrc.gov Richard.Wardwell@nrc.gov

Michael.Kennedy@nrc.gov

Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Shelbie Lewman, Esq., Law Clerk Carter Thurman, Esq., Law Clerk James Maltese, Esq., Law Clerk Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738 Shelbie.Lewman@nrc.gov Carter.Thurman@nrc.gov James.Maltese@nrc.gov

Office of Commission Appellate

Adjudication

U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738 ocaamail@nrc.gov

2Office of the Secretary Attn: Rulemaking and Adjudications Staff

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

hearingdocket@nrc.gov

Sherwin E. Turk, Esq.

David E. Roth, Esq.

Beth N. Mizuno, Esq.

Brian G. Harris, Esq.

Anita Ghosh, Esq.

Joseph A. Lindell, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738

sherwin.turk@nrc.gov

david.roth@nrc.gov beth.mizuno@nrc.gov

brian.harris@nrc.gov

anita.ghosh@nrc.gov Joseph.Lindell@nrc.gov

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Jonathan Rund, Esq.

Raphael Kuyler, Esq.

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

ksutton@morganlewis.com pbessette@morganlewis.com jrund@morganlewis.com rkuyler@morganlewis.com

Martin J. O'Neill, Esq.

Morgan, Lewis & Bockius LLP

Suite 4000

1000 Louisiana Street

Houston, TX 77002 martin.o'neill@morganlewis.com Bobby R. Burchfield, Esq.

Matthew M. Leland, Esq.

Clint A. Carpenter, Esq.

McDermott Will & Emery LLC

600 13th Street, NW

Washington, DC 20005-3096 bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com

Richard A. Meserve, Esq.

Matthew W. Swinehart, Esq.

Covington & Burling LLP

1201 Pennsylvania Avenue, NW

Washington, DC 20004-2401 rmeserve@cov.com mswinegart@cov.com

Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109

ezoli@goodwinprocter.com

William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue

White Plains, NY 10601 wdennis@entergy.com

Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General

State of Connecticut 55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

robert.snook@ct.gov

3Melissa-Jean Rotini, Esq.

Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building

148 Martine Avenue, 6th Floor

White Plains, NY 10601

MJR1@westchestergov.com

Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298 Administer@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.govKarla Raimundi, Environmental Justice Associate

Hudson River Sloop Clearwater, Inc.

724 Wolcott Avenue

Beacon, NY 12508 karla@clearwater.org

Richard Webster, Esq.

Public Justice, P.C.

Suite 200

1825 K Street, NW

Washington, DC 20006 rwebster@publicjustice.net

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org

Signed (electronically) by

____________________________________ Kathryn M. Liberatore Assistant Attorney General State of New York (212) 416-8482

Dated at New York, New York

this 6th day of June 2013