ML101820578

the State of New York, the State of Connecticut, Riverkeeper, Inc., and the Hudson River Sloop Clearwater'S Joint Comments and Proposed Modifications to Atomic Safety and Licensing Board Draft Scheduling Order

ML101820578
Person / Time
Site:	Indian Point
Issue date:	06/16/2010
From:	Brancato D, Jeremy Dean, Gould R, Musegaas P, Sipos J, Snook R Hudson River Sloop Clearwater, Riverkeeper, State of CT, Office of the Attorney General, 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 E-365
Download: ML101820578 (10)

Text

,* DOCKETED

/~ 7 t§ ~ 2 36fUSNRC, June 16,2010 (2:10p.m.]

OFFICE OF SECRETAR" RULEMAKINGS AND ADJUDICATIONS STAFI UNITED 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-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. June 16, 2010

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x THE STATE OF NEW YORK, THE STATE OF CONNECTICUT, RIVERKEEPER, INC., AND THE HUDSON RIVER SLOOP CLEARWATER'S JOINT COMMENTS AND PROPOSED MODIFICATIONS TO ATOMIC SAFETY AND LICENSING BOARD DRAFT SCHEDULING ORDER The State of New York, the State of Connecticut, Riverkeeper, Inc., and the Hudson River Sloop Clearwater, Inc. (collectively "Intervenors") respectfully submit the following comments to the Atomic Safety and Licensing Board's ("ASLB" or "Board") Draft Scheduling Order dated June 2, 2010 ("Draft Scheduling Order"). Intervenors support the intent of the ASLB's proposed schedule to move as expeditiously as reasonably possible to the evidentiary hearing stage of this AEA § 189 proceeding. However, Intervenors have several concerns with the ASLB's Draft Scheduling Order that may ultimately impact the ability of the parties to adhere to the currently proposed timeline. Intervenors raise these issues now, request certain modifications now and reserve the right to seek extensions of time if the below-described circumstances come to pass.

As an initial matter, Intervenors note that they have worked to comply with the various deadlines provided by NRC regulations and this Board. Having reviewed the Draft Scheduling Order, Intervenors can see the possibility that the Order may result in scheduling conflicts or L3<

"bottlenecks" that will adversely affect the ability of the Intervenors to effectively participate in this § 189 proceeding. These potential bottlenecks result not from dilatory conduct by Intervenors, but from various actions by NRC Staff and the applicant including, but not limited to, Staffs August 2007 acceptance of an incomplete application and the applicant's slow response to the Board's July 31, 2008 ruling that admitted various contentions such as metal fatigue and embrittlement require additional submissions. In short, these bottlenecks arise from decisions that were or are within the control of Staff and the applicant; those decisions by Staff and applicant, however, should not prejudice Intervenors' rights to effectively participate in this proceeding.

I. Timing of Responses to Dispositive Motions The Draft Scheduling Order currently requires the submission of all motions for summary disposition by July 30, 2010 (Draft Scheduling Order at H.4), but does not extend the time for parties to respond (id. at H.3). Currently, the contentions on which no motion has yet been filed include NYS-5, 6, 7, 9/33, 12/12A, 24, 25, NYS-26/26A/RK-TC1/TC1A, RK-TC-2, RK-EC3/CW-EC], arid CW-EC-3. Thus, it is possible that the State may receive eight motions for.

summary disposition by July 30, and that Riverkeeper may receive up to three, with only 20 days to respond to all. This may present a problem for State and Riverkeeper counsel who would have to coordinate with several experts. Despite this potential bottleneck, given that it is not yet known how many summary disposition motions will be filed, Intervenors do not seek an amendment of the Draft Scheduling Order. but instead reserve their right to seek additional time pursuant to the Draft Scheduling Order's provisions at section G.4.

I II. Timing of Dispositive Motions Related to Contentions NYS-25 and NYS-26/26A/RK-TC-1/TC-1A Along those same lines, the applicant in this proceeding, Entergy Nuclear Operations, Inc. ("Entergy") has represented to the ASLB and all parties that it intends to submit supplemental information that will bear upon Contentions NYS-25 (embrittlement) and NYS-26/26A/RK-TC-1/TC-1A (metal fatigue) at the end of June 2010 and at the end of July 2010,

-respectively.' The Draft Scheduling Order urges Entergy to "file any motions that maay arise from those supplements with all deliberate speed" so that "intervenors will have a fair opportunity to respond to those motions before publication of the FEIS," 2 which, as of now, NRC Staff has estimated will occur at the end of August 2010.3 At maximum, the Draft 4

Scheduling Order would require any such motions to be filed within 30 days of the submissions.

Intervenors have several concerns about this proposed course as it relates to Entergy's forthcoming submission relevant to NYS-25 and Consolidated Contention NYS-26/26A/RK-TC-1i/TC-1A. Foremost, Intervenors are concerned that allowing for immediate dispositive motions after Entergy's supplemental submission would deny Intervenors an appropriate amount of time to digest the long-awaited and ostensibly complex supplemental information, determine how this new information impacts the currently admitted contentions, and, if appropriate, prepare supplemental contentions that comply with NRC's "strict" contention pleading regulations. This will require careful review of Entergy's submissions as well as any supplemental disclosures Transcript of Entergy Nuclear Operations Indian Point, Units 2 & 3, Pre-Hearing Conference, April 19, 2010, ADAMS Accession No. ML101160416 ("Pre-Hearing Conference Transcript"), at 807.

2 Draft Scheduling Order at 11, Footnote 28.

3 Pre-Hearing Conference Transcript at 802-03, 807-08.

" Draft Scheduling Order at 11.

resulting therefrom, further discovery if necessary, coordination between two intervenors, and consultation with more than one expert.

Notably, it is apparent that Entergy has had the luxury of an unfettered opportunity to work on a supplemental submission relevant to Consolidated Contention NYS-26/26A/RK-TC-l/TC-1A as well as NYS-25 for months on end. The ASLB's Ruling on Petitions to Intervene and Requests for Hearing, dated July 31, 2008, almost two years ago, recognized that Entergy's License Renewal Application was incomplete without further metal fatigue calculations. 5 Moreover, Entergy could have anticipated the need for a refined metal -fatigue analysis as early as 2006, given a parallel ruling on this same issue in the Vermont Yankee nuclear plant license renewal proceeding. 6 The State of New York raised concerns to NRC and thisBoard over the Entergy corporate family's approach to the metal fatigue issue as earlylas the State's November 2007 petition to intervene. The State's concerns have been well founded: more than three years after it submitted its initial license application, Entergy effectively will submit a new license application with respect to embrittlement and metal fatigue issues. The timing of Entergy's forthcoming submission so late in the ongoing process should not prejudice the Intervenors, who should have a full and fair opportunity to assess new information on a critical safety issue prior 5

Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1, Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing (July 31, 2008), ADAMS Accession No. ML082130436; at 116 ("[T]his Board admits NYS-26/26A to the limited extent that it asserts that the LRA is incomplete without the calculations of the CUFs as threshold values necessary to assess the need for an AMP, that Entergy's AMP is inadequatefor lack of thefinal values, and that the LRA must specify actions to be carried out by the Applicant during extended operations to manage the aging of key reactorcomponents susceptible to metal fatigue. In doing so, the Boardrecognizes the requirementfor inclusion of the actualCUF calculationsin the LRA to meet the TLAA regulations, 10 C.F.R. § 54.21(a)(3), and to provide the specificity needed to achieve the demonstration required of an AMP, 10 C.F.R. § 54.21(c)(1)(iii).") (emphasis added).

6 See July 31, 2008 Board Ruling at 116 ("[C]onsistent with a recent ruling in Vermont Yankee; this Board recognizes that an AMP that merely summarizes options for future plans does not meet the specific requirement for demonstrating that the effects of aging will be adequately managed for the period of extended operations as required by Part 54."). See also Entergy Nuclear Vermont Yankee, LLC, (Vermont Yankee Nuclear Power Station),

LBP-06-20, 64 NRC 131, 186 (2006).

7.. See, e.g., State of New York Notice of Hearing and Petition to Intervene (Nov. 30, 2007) at 227-33.

to addressing a motion for summary disposition. The Intervenors propose that the Draft Scheduling Order be revised to require Entergy to file motions on these contentions no sooner than 60 days from the submission of new data, which would give Intervenors time to evaluate the new information with their experts. When Congress amended the AEA to provide the opportunity for a proceeding to explore license applications under § 189, it did not intend that right to be so limited as to be an opportunity in name only. Given that Entergy has had an unfettered opportunity to consult with its experts and review and revise its April 2007 license application, and given, the fact that the State and others have identified the problematic aspects of Entergy's approach'for some time now, Intervenors and .their experts should not be forced to undertake substantial review and filing efforts under a unduly and unnecessarily, compressed schedule with conflicting litigation demands.

III. Timing of Intervenor Submission of Initial Hearing Filings/"Trigger Date" Issue Another area of concern is the "trigger date" and subsequent submissions of initial position and testimony. As an initial matter, as to the trigger date itself, it should be the date on which the notice of the availability of the FEIS appears in the Federal Register. However, should parties file motions for summary disposition on NEPA-based contentions in response to the issuance of the Final Supplemental Environmental Impact Statement ("FSEIS"), respondents would be focused on answering such motions during the same period of time which the ASLB contemplates for the preparation of initial hearing filings (Statements of Position, testimony, etc).

Similarly, should a party receive a high number of summary disposition motions simultaneously in July, necessitating an extension of time in which to respond as discussed above, parties would likewise be engaged in responding to such motions through the end of September 2010, already halfway into the time allotted for Intervenors to prepare initial hearing documents.

Of more significant concern to Intervenors is the possibility that, should any extension of time for response to summary disposition motions that must be filed before July 30 become necessary, or should a party find cause to file summary disposition motions following the FSEIS, Intervenors would find themselves in the position of utilizing. limited resources to draft and submit statements of position and initial testimony on contentions which may be disposed of prior to hearing. Intervenors' initial testimony for environmental contentions cannot be prepared entirely in advance, because they must consider information in the FEIS, which will not be available until the end of August at the earliest. Moreover, corralling resources, which is difficult particularly for non-governmental intervenors, becomes much more difficult when it is unclear whether the resources being expended on testimony preparation could be rendered valueless by a subsequent summary disposition ruling. For these reasons, Intervenors request that the Board allow Intervenors at least 45 days from the date of resolution of any motions for summary disposition based upon the FSEIS to file testimony regarding the challenged contentions.

IV. Timeframe for Motions in Limine/Motions to Strike Intervenors understand proposed paragraph K.4 to allow for the submission of in limine filings directed at the initial testimony 21 days after the service of the initial testimony and for the submission of another set of in limine motions directed at the rebuttal testimony 21 days after the service of the rebuttal testimony (that is, two rounds of motions -- one directed at the initial testimony and one directed at the rebuttal testimony). Draft Scheduling Order at K.4. As such, Intervenors respectfully submit that footnote 39 appears redundant in that it offers an "extension" of time which is not necessary, since applicant and Staff are already granted the right to submit

in limine filings on K.3 rebuttal testimony in paragraph K.4. Intervenors seek clarification from the Board as to the significance of footnote 39 if Intervenors' understanding is not correct.

CONCLUSION The Intervenors respectfully submit the above comments for the Board's consideration.

Respectfully submitted,

/s /s Janice A. Dean Robert D. Snook John J. Sipos Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General 55 Elm Street, P.O. Box 120 for the State of New York Hartford, CT 06141-0120 The Capitol Tel: (860) 808-5020 Albany, New York 12224. Fax: (860) 808-5347 (518) 402-2251 Robert.Snook@ct.gov john.sipos@ag.ny.gov

/s /s Deborah Brancato, Esq. Manna Jo Greene Phillip Musegaas, Esq. Ross Gould Riverkeeper, Inc. Hudson River Sloop Clearwater, Inc.

828 South Broadway 112 Little Market Street Tarrytown, NY 10591 Poughkeepsie, NY 12601 (914) 478-4501 mannajo@clearwater.org dbrancato@riverkeeper.org rgould@gmail.com phillip@riverkeeper.org

UNITED 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-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. June 16, 2010

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x CERTIFICATE OF SERVICE I hereby certify that on June 16, 2010, copies of Joint Comments and Proposed Modifications to Atomic Safety And Licensing Board Draft Scheduling Order on behalf of the State of New York, the State of Connecticut, Riverkeeper, Inc., and the Hudson River Sloop Clearwater were served upon the following persons via U.S. Mail and e-mail at the following addresses:

Lawrence G. McDade, Chair Administrative Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North 190 Cedar Lane E.

• 11545 Rockville Pike Ridgway, CO 81432 Rockville, MD 20852-2738 Kaye. Lathrop@nrc.gov Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Mailstop 3 F23 Atomic Safety and Licensing Board Panel Two White Flint North U.S. NuclearRegulatory Commission 11545 Rockville Pike Mailstop 3 F23 Rockville, MD 20852-2738 Two White Flint North 11545 Rockville Pike Zachary S. Kahn, Esq. &

Rockville, MD 20852-2738 Josh Kirstein, Esq. Law Clerks Richard.Wardwell@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 1

Zachary.Kahn@nrc.gov Josh.Kirstein@nrc.gov Martin J. O'Neill, Esq.

Office of Commission Appellate Morgan, Lewis & BockiUs LLP Adjudication Suite 4000 U.S. Nuclear Regulatory Commission 1000 Louisiana Street Mailstop 16 G4 Houston, TX 77002 One White Flint North martin.o'neill@morganlewis.com 11555 Rockville Pike Rockville, MD 20852-2738 Elise N. Zoli, Esq.

ocaamail@nrc.gov Goodwin Procter, LLP Exchange Place Office of the Secretary 53 State Street Attn: Rulemaking and Adjudicatioris Staff Boston, MA 02109 U.S. Nuclear Regulatory Commission ezoli@goodwinprocterncom Mailstop 3 F23 Two White Flint North William C. Dennis, Esq.

11545 Rockville Pike Assistant General Counsel Rockville, MD 20852-2738 Entergy Nuclear Operations, Inc.

hearingdocket@nrc. gov 440 Hamilton Avenue White Plains, NY 10601 Sherwin E. Turk, Esq. wdennis@entergy.com David E. Roth, Esq.

Andrea Z. Jones, Esq. Robert D. Snook, Esq.

Beth N. Mizuno, Esq. Assistant Attorney General Brian G. Harris, Esq. Office of the Attorney General Office of the General Counsel State of Connecticut U.S. Nuclear Regulatory Commission 55 Elm Street Mailstop 15.D21 P.O. Box 120 One White Flint North Hartford, CT 06141-0120 11555 Rockville Pike robert. snook@po. state.ct.us Rockville, MD 20852-2738 sherwin.turk@nrc.gov Gregory Spicer, Esq.

andrea.jones@nrc.gov Assistant County Attorney david.roth@nrc.gov Office of the Westchester County Attorney beth.mizuno@nrc.gov Michaelian Office Building brian.harris@nrc.gov 148 Martine Avenue, 6th Floor White Plains, NY 10601 Kathryn M. Sutton, Esq. gss 1@westchestergov.com Paul M. Bessette, Esq.

Morgan, Lewis & Bockius LLP Daniel E. O'Neill, Mayor 1111 Pennsylvania Avenue, NW James Seirmarco, M.S.

Washington, DC 20004 Village of Buchanan ksutton@morganlewis.com Municipal Building pbessette@morganlewis.com 236 Tate Avenue cadams@morganlewis.com Buchanan, NY 10511-1298 2

4. ,

vob@bestweb.net Stephen Filler, Esq.

Daniel Riesel, Esq. Board Member Thomas F. Wood, Esq. Hudson River Sloop Clearwater, Inc.

Jessica Steinberg, Esq. Suite 222 Sive, Paget & Riesel, P.C. 303 South Broadway 460 Park Avenue Tarrytown, NY 10591 New York, NY 10022 sfiller@nylawline.com driesel@sprlaw.com jsteinberg@sprlaw.com Ross H. Gould Member Michael J. Delaney, Esq. Hudson River Sloop Clearwater, Inc.

Vice President - Energy Department 10 Park Ave, #5L New York City Economic Development New York, NY 10016 Corporation (NYCEDC) rgouldesq@gmail.com 110 William Street New York, NY 10038 Phillip Musegaas, Esq.

mdelaney@nycedc.com Deborah Brancato, Esq.

Riverkeeper, Inc.

Manna Jo Greene, Director 828 South Broadway Hudson River Sloop Clearwater, Inc. Tarrytown, NY 10591 112 Little Market St. phillip@riverkeeper.org Poughkeepsie, NY 12601 dbrancato@riverkeeper.org Mannajo@clearwater.org tice A."Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 16th day of June, 2010 3