ML090220032

Indian Point - NRC Staff'S Answer in Support of Entergy'S Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Contention Riverkeeper EC-3/Clearwater EC-1

ML090220032
Person / Time
Site:	Indian Point
Issue date:	01/21/2009
From:	Harris B NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-210
Download: ML090220032 (20)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LRI 286-LR (Indian Point Nuclear Generating Units 2 and 3)

NRC STAFF'S ANSWER IN SUPPORT OF ENTERGY'S PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AND LICENSING BOARD DECISION ADMITTING CONSOLIDATED CONTENTION RIVERKEEPER EC-YCLEARWATER EC-1 Brian G. Harris Counsel for NRC Staff January 21, 2009

TABLE OF CONTENTS Paae TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .................................................................................................................1 BACKGROUND .................................................................................................................2 DISCUSSION ................................................................................................................. 4 I. Legal Standard for Review .................................................................................... 4 II. Pervasive Effect on the License Renewal Proceeding...........................................5 II. The Board Committed Three Errors in Admitting the Consolidated Contention .....7 A. The IP1 SFP is Beyond the Scope of the License Renewal Application for IP2 and IP3................................................................................................ 9 B. The EPA's Drinking Water Standard. Pertinent to the Regulation of Public Water Systems. is Inapplicable ................................................................ 10 C. The GElS Fully Addresses the Impact of Spent Fuel Storage During the License Renewal Term ............................................................................ 11 CONCLUSION ............................................................................................................... 13

REGULATIONS 10 C. F.R. § 2.309(f) ..........................................................................................................

.passim 10 C.F.R. § 2.341(f)(2). ...........................................................................................................

1,4 10 C.F.R. 5 2.341(b)(3) ...............................................................................................................

1 assim 10 C.F.R. § 51.53 ..............................................................................................................p 10 C.F.R. Part 51, Subpt. A, App. B ..................................................................................passim 40 C.F.R. 9 141 ................................................................................................................... 7 MISCELLANEOUS NUREG 1437, Vols. 1-2, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" ("GEIS") (May 1996)...............................................................p assim

January 21, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of 1 1

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/ 286-LR 1

(Indian Point Nuclear Generating 1 Units 2 and 3) 1 NRC STAFF'S ANWER IN SUPPORT OF ENTERGY'S PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AND LICENSING BOARD DECISION ADMllTlNG CONSOLIDATED CONTENTION RIVERKEEPER EC-3lCLEARWATER EC-1 INTRODUCTION Pursuant to 10 C.F.R. 3 2.341(f)(2) and 10 C.F.R. 3 2.341(b)(3), the Staff of the U.S.

Nuclear Regulatory Commission ("Staff') hereby answers Entergy Nuclear Operations, Inc.'s

("Entergy") January 7, 2009, "Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Contention Riverkeeper EC-3lClearwater EC-1"

("Petition"). For the reasons set forth herein, the Staff submits the Petition should be granted and the Atomic Safety and Licensing Board's ("Board") decision in Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 N R C , (July 31, 2008)

("LBP-08-13") should be reversed insofar as it admitted the Consolidated Contention. In this regard, the Staff submits that the Consolidated Contention should have been denied admission in that (1) the lndian Point Unit 1 ("IPI") Spent Fuel Pool ("SFP") is beyond the scope of the license renewal application ("LRA) for lndian Point Unit 2 ("IP2" and lndian Point Unit 3 ("IP3");

(2) the Environmental Protection Agency's ("EPA) drinking water standard, for the regulation of

public water systems, is inapplicable; and (3) the NRC's "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" ("GEIS")l fully addresses the impact of spent fuel storage during the license renewal term. The Board's admission of the Consolidated Contention on the basis of these issues incorrectly would allow the Intervenors to attack the Commission's regulations on a Category 1 issue considered in the GElS and promulgated through 10 C.F.R. § 51.53 and Part 51, Subpt. A, App. B.

BACKGROUND^

This matter arises from the LRA filed by Entergy on April 23, 2007, to renew the operating licenses for Indian Point Units 2 ("IP2") and 3 ("IP3") for an additional twenty-year p e r i ~ d On

. ~ November 30, 2007, Riverkeeper filed a petition to intervene in this matter.4 Similarly, on December 10, 2007, Clearwater filed a petition to i n t e r ~ e n e .Riverkeeper

~ and Clearwater, inter alia, submitted two similar contentions for consideration by the Board, which were consolidated into a single contention in the Board's ruling on contentions, issued on July 31, 2008.~The bases for these contentions were set forth in Riverkeeper's and Clearwater's 1

NUREG-1437 Vols. 1 and 2, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (May 1996).

2 A more complete summary of the procedural background of this proceeding is contained in the Petition at 6-1 0 (Jan. 7, 2009).

The IP1 spent fuel pool is not a part of the license renewal application. See License Renewal Application ("LRA") at 2.2-24 to 2.2-26, Table 2.2-4.

Request for Hearing and Petition to Intervene by Riverkeeper, Inc. (Nov. 30, 2007)

("Riverkeeper Petition").

Request for Hearing and Petition to Intervene by Hudson River Sloop Clearwater, Inc. (Dec. 10, 2007) ("Clearwater Petition").

respective petitions. On August 21, 2008, Riverkeeper and Clearwater revised and submitted their Consolidated Contention, which states:

Entergy's Environmental Report fails to adequately analyze the environmental impacts of spent fuel pool leaks as required by the National Environmental Policy Act (NEPA) and NRC regu~ations.~

Entergy opposed the admission of Riverkeeper's EC-3 and Clearwater's EC-1 contentions on various grounds, including: ( I ) the Environmental Protection Agency's ("EPA")

drinking water standards are not applicable in this licensing process because IP2 and IP3 are not public water systems, (2) the IP1 SFP is outside the scope of the current license renewal proceeding for IP2 and IP3 because IP1 SFP is not included in the LRA, and (3) the dose resulting from groundwater contamination is within the applicable NRC prescribed limits, is considered a Category 1 issue in the GEIS, and the Intervenors had not submitted significant new information to warrant consideration of this issue under 10 C.F.R. § 51.53(~)(3)(iv).~ The Staff made similar arguments opposing the admission of Riverkeeper's EC-3 and Clearwater's EC-1 contention^.^ The Board's decision to admit the Consolidated Contention did not explicitly address these considerations in detail (see LBP-08-13, slip op. at 187-88 and 192). On August 7

Consolidated Contention of Petitioners Riverkeeper, Inc. (EC-3) and Hudson River Sloop Clearwater, Inc. (EC-1)-Spent Fuel Pool Leaks (Aug. 21, 2008) at 2 ("Consolidated Contention of Petitioners").

Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper, Inc.'s Request for Hearing and Petition to lntervene (Jan. 22, 2008) at 139-51 ("Entergy's Riverkeeper Answer"); Answer of Entergy Nuclear Operations, Inc. Opposing Hudson River Sloop Clearwater, Inc.'s Petition to lntervene and Request for Hearing (Jan. 22, 2008) at 32-49 (Entergy's Clearwater Answer").

NRC Staff's Response to Petitions to lntervene filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) the State of New York, (5) Riverkeeper, Inc., (6) The Town of Cortlandt, and (7) Westchester County (Jan. 22, 2008) at 79-81, 89-92, and 112-1 15.

11, 2008, Entergy filed a motion for reconsideration of the Board's admission of the Consolidated contention;" on August 21, 2008, the Staff filed an answer in support of Entergy's motion, stating that ( I ) the Consolidated Contention had no basis in law because the EPA's regulations are immaterial and no showing had been made that NRC regulatory standards were not being met; (2) the contention lacked adequate factual or expert support for the contention; and (3) the IP1 SFP was beyond the scope of the LRA and this proceeding." The Board denied Entergy's Motion for Reconsideration on December 18, 2008." On January 7, 2009, Entergy timely filed its petition for interlocutory review.13 DISCUSSION I. Leqal Standard for Review Under 10 C.F.R. § 2.341(f)(2), Entergy may be granted interlocutory review at the Commission's discretion if the Board's decision:

(i) [tlhreatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (ii) [alffects the basic structure of the proceeding in a pervasive or unusual manner.

10 C.F.R. 5 2.341(f)(2). While interlocutory review of a decision admitting or rejecting a

'O Applicant's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3lClearwater EC-1 (August 11, 2008) ("Entergy Motion for Reconsideration").

'l NRC Staffs Response in Support of Entergy's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3lClearwater EC-1 (Aug. 21, 2008).

12 Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) . . . [and] (Denying Entergy's Motion for Reconsideration of the Board's Decision to Admit Riverkeeper Contention EC-3 and Clearwater Contention EC-1) (Dec. 18, 2008) at 16.

l3 Entergy's Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Riverkeeper EC-3lClearwater EC-1 (Jan. 7, 2009).

contention is disfavored, interlocutory review may be justified by a Board's decision "mandating duplicative or unnecessary litigation steps,"14or imposing "exceptional delays or expense."15 II. Pervasive Effect on the License Renewal Proceedinq The Board's decision to admit the Consolidated Contention adversely affects this license renewal proceeding in a pervasive and unusual manner, in that it would allow a party to attack the Commission's regulations adopting the GEIS.16 Further, the Consolidated Contention imports issues not properly before the Board under the license renewal application for IP2 and IP3, including Category 1 issues that are fully addressed by the GEIS.17 Thus, the admission of the Consolidated Contention places the cart before the horse as the Intervenors are now given an impermissible opportunity to challenge the Commission's regulations in 10 C.F.R. § The structure of the proceeding will be pervasively changed if the Board's decision is not reversed because the Consolidated Contention reopens settled generic determination as to l 4Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310 (1998).

l5 Commonwealth Edison Co. (Zion's Station, Units 1 & 2), ALAB-116, 6 AEC 258, 259 (1973).

l6 10 C.F.R. Part 51, Subpt. A, App. B.

Category 1 issues apply to all plants during license renewal proceedings. The Commission determined that Category 1 issues need not be included in the Applicant's Environmental Report or addressed in a site specific manner. Id. at n.2. See also 10 C.F.R. 9 51.53(c). In 10 C.F.R. Part 51, Subpt. A, App. B., the Commission determined that on-site spent fuel storage is a Category 1 issue with a small effect. As such, the Commission determined that mitigation is unwarranted because measures are "likely not to be sufficiently beneficial to warrant implementation." Id. at n. 2. "Within the context of a license renewal review and determination, the Commission finds that there is ample basis to conclude that continued storage of existing spent fuel and storage of spent fuel generated during the license renewal period can be accomplished safely and without significant environmental impact." NUREG 1437 Vol. 1 9 6.4.6.7 at 6-85.

Category 1 issues in the GEIS." The Board's decision sets an unwarranted precedent that the findings by the Commission in its GElS may be challenged in licensing proceedings. These challenges result in unnecessary litigation and delay to the LRA proceedings. Further, the Intervenors' reliance on a speculative assertion that a site would be remediated if the license renewal was not granted is uns~pported.'~ This reopening of settled regulatory issues is sufficient to grant the petition for review."20 The Board's admission of the Consolidated Contention as it relates to IP1 SFP will result in "truly exceptional delay [and] expense" in order to resolve issues pertaining to historical leakage regarding a reactor facility that is not the subject of the license renewal application for IP2 and IP3. The impact of storing spent fuel during the license renewal term and after the term expires has been fully addressed by the GEIS, including radiological impacts resulting from the normal operation of the sFP."

See 10 C.F.R. §51.53(c).

l9 Riverkeeper, Inc.'s Reply to Entergy's and NRC Staff's Responses to Hearing Request and Petition to Intervene (Feb. 15, 2008) at 63-64. Riverkeeper states that "[SFP] of lndian Point 1's operation falls squarely within the scope of license renewal, simply because, if not for Entergy's application to renew the licenses of lndian Point 2 an 3, lndian Point 1 would likely be fully decommissioned and the site eventually restored to unrestricted use .. .." Riverkeeper, Inc. Response to Application's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-31Clearwater EC-1 (Aug. 21, 2008) at 7. This assertion lacked any factual or legal basis and should have been rejected. See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station Units 1 & 2), CLI-03-17, 58 NRC 419, 424 (2003) (quoting Duke Energy Corp.

(Oconee Nuclear Station, Units I , 2, & 3), CLI-99-11, 49 NRC 328, 337-39 (1999)) (finding that contentions should be barred when supported only by generalized suspicions). The GElS already addresses the storage of spent fuel on site after the termination of the license term. NUREG 1437 Vol. 1

§ 6.4.6.2 at 6-79.

20 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310 (1998) (granting interlocutory appeal based on the establishment of a second, separate Board for security issues).

21 Commonwealth Edison Co. (Zion's Station, Units 1 & 2), ALAB-116, 6 AEC 258, 259 (1973).

Further, the Board's acceptance of an issue based on the EPA's drinking water standards, as promulgated in 40 C.F.R. 99 141 et seq.," further undermines the Commission's regulations, which determined that a Category 1 issue with small impact is achieved by "compliance with the [NRC's] dose and release limits applicable to the activities being reviewed.23 Riverkeeper's and Clearwater's application of the EPA regulations for public water systems to IP2 and IP3 is inapposite because the groundwater at the Indian Point site is not utilized for a public water system, and the NRC's regulations establish the applicable groundwater standards for the site.

II. The Board Committed Three Errors in Admittins the Consolidated Contention Since Entergy meets the requirements for granting an interlocutory review, the Board should be reversed on review if it committed an error of law or an abuse of d i ~ c r e t i o n .The

~~

Commission has reversed Board decisions premised on a misinterpretation of statutes and regulationsz5and an unnecessary expansion of the proper scope of the proceedings.26 The Board's decision should be reversed for the following reasons: (1) the IP1 SFP is a Category 1 22 These EPA regulations are only applicable to a public water system. IP2 and IP3 are not public water systems for purposes of the EPA regulations.

23 NUREG 1437 VoI. 1 9 4.6 at 4-84.

24 AmerGen Energy Co. L.L.C. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006) (citations omitted).

25 Entergy Nuclear Vermont Yankee, L.L.C., & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 385-89 (2007).

26 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &

2), CLI-02-17, 56 NRC I , 12-13 (2002). In addition, Entergy emptied and drained IP1 SFP in November 2008. Entergy's Petition at 9 n. 33. See also Entergy's Riverkeeper Answer, Exhibit M, Hydrological Site Investigation Report (Jan. 11, 2008).

issue of the GEIS, and further, is beyond the scope of the license renewal application for IP2 and IP3; (2) doses determined from the groundwater contamination were insignificant and support the application of the GElS to the IP2 and IP3 LRA; and (3) the impact of spent fuel storage on site is addressed in the GElS as a Category 1 issue.

The legal requirements governing the admissibility of contentions are well established, and currently are set forth in 10 C.F.R. 5 2.309(f) of the Commission's Rules of Practice (formerly 5 2.714(b)). Specifically, in order to be admitted, a contention must satisfy the following requirements:

(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor'slpetitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestorlpetitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicantllicensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant (2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report . . .

10 C.F.R. 5 2.309(f)(I)-(2).

A. The IP1 SFP is Beyond the Scope of the License Renewal Application for IP2 and IP3.

In admitting this contention, the Board stated that information on "radiological leaks from the spent fuel pools is undisputedly within the scope of ,the LRA proceeding^."'^ This admission of the Consolidated Contention fails to fully address the license renewal application's specific exclusion of the IP1 SFP from its LRA, as authorized by 10 C.F.R § 51.53(c) and the GEIS, or address the Commission's determination that storage of spent fuel is a Category 1 issue in the GEIS."

Additionally, Riverkeeper and Clearwater have failed to properly petition for a waiver of the Category 1 issue of the GEIS or identify new and significant information that would cast doubt on the GEIS' applicability to IP2's and IP3's LRA." "If a petitioner neglects to provide the requisite support for its contentions, the Board should not make assumptions of fact that favor the petitioner, or supply information that is lacking."30 Intervenors have not demonstrated any information that would suggest or support that the historical leakage from IP1 SFP is of such a significant nature that the GEIS category findings are inappropriate. Thus, the Commission should reverse the Board's admission of the Consolidated Contention.

27 LBP-08-13, slip op. at 188 (July 31, 2008) (emphasis added).

LRA at 2.2-24 to 2.2-26, Table 2.2-4; Entergy's Petition at 9 n. 33. See also Entergy's Riverkeeper Answer, Exhibit M, Hydrological Site Investigation Report (Jan. 11, 2008).

29 As noted in the Applicant's Answer to Riverkeeper's Contention EC3, the Environmental Report discussed the spent fuel pool leaks, including those associated with IPI. See Applicant's Answer of January 22, 2008, at 147-151; Environmental Report at 5 5-6.

30 LBP-08-13, slip op, at 9 (citing Georgia Institute of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 305, vacated in part and aff'd in part, CLI-95-10, 42 NRC 1 (1995), and CLI-95-12, 42 NRC 111 (1995).

B. The EPA's Drinkinq Water Standard, Pertinent to the Requlation of Public Water Svstems, is l n a ~ ~ l i c a b l e In the Consolidated Contention, Riverkeeper and Clearwater have imported inapplicable EPA public water system regulatory requirements, insofar as the contention rests on the EPA's drinking water standard. The GEIS specifically addressed the impact of exposure as small as long as any releases are in "compliance with the [NRC's] dose and [the NRC's] release limits applicable to the activities being re~iewed."~' Both Intervenors have indicated that the EPA's drinking water standards should be applied to the groundwater contamination at IP2 and 1 ~ 3 . ~ '

However, the groundwater at Indian Point is not used as part of a public water system, and neither Intervenor has provided any applicable legal or factual basis showing that IP2 and IP3 are subject to the EPA's regulations for public water systems.

Riverkeeper and Clearwater seek to have the determination of the expected dose from groundwater contamination re-calculated for assessing exposure beyond the information already contained in Entergy's reports and the A careful reading of Entergy's submissions shows that the calculated exposure is determined to be significantly below (11100'~)

the applicable NRC limits, an insignificant amount.34 Further, the Staff's inspections determined that ( I ) there was "no detectable plant-related radioactivity in groundwater beyond the site boundary" and (2) "the current radioactive releases and associated public doses are below the 3' NUREG 1437 Vol. 1 3 4.6 at 4-84.

32 Consolidated Contention of Petitioners at 3.

33 Id. at 3-4. Compare also Entergy's Riverkeeper Answer, Exhibit M, Hydrological Site Investigation Report (Jan. 11, 2008).

34 Entergy's Riverkeeper Answer at 147.

NRC radioactivity release and public dose limits."35 Significantly, the lntervenors have not challenged these determinations, but argue, instead, that radiological impacts to fish and shellfish must be considered In sum, the Consolidation Contention is based on unsupported speculation that Indian Point releases may have a significant adverse impact, regardless of whether the facility meets the NRC's regulation^.^^ Such claims are insufficient to support the admission of a contention.

C. The GElS Fully Addresses the Impact of Spent Fuel Storaqe Durinq the License Renewal Term In LBP-08-13, the Board stated that "there is still the question as to whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the The intervenors, however, never disputed Entergy's assertion that such impacts were well within regulatory standards. As promulgated in the GElS and 10 C.F.R. § 51.53(c) & Part 51, Subpt. A, App. 6, the Commission's regulations find that the impact of spent fuel storage is small and is a Category 1 issue applicable to all plants. Intervenors failed to identify any new and significant information that would support the admission of a contention on this issue.

35 See "NRC Staff's Response To Petitions For Leave To Intervene Filed By (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed To Relicensing Of Indian Point, And Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) The State Of New York, (5)

Riverkeeper, Inc., (6) The Town Of Cortlandt, And (7) Westchester County" (January 22, 2008) at 114 n.78-80 ("NRC Answer"). See also NRC Staffs Response in Support of Entergy's Motion for Reconsideration of the Board's Decision to Admit Consolidated Contention Riverkeeper EC-3IClearwater EC-1 (Aug. 21, 2008) at 5.

36 NRC Answer at 14 n. 78-80.

In its Petition, Entergy states that the maximum dose resulting from groundwater sources at Indian Point was 11100'~of the applicable federal limits,38which supports the application of the GElS to IP2 and I P ~ . ~The ' GElS determined the impact of the additional storage of spent fuel was small and was a Category 1 issue that is not subject to site-specific challenges. Neither Intervenor has indicated how, where, or under what legal bases the dose calculations fail to satisfy an applicant's duty under the regulations. More importantly, they failed to show how the GElS Category 1 determinations fail to satisfy these issues. Category 1 issues may not be litigated in LRA proceedings, in the absence of new and significant information - which has not been provided here.

Finally, the Board's determination that Entergy may have failed to perform a "maximum groundwater impact" analysis requires a showing by the Intervenors that some relevant legal requirement may not be satisfied, and that there is a factual basis for such a claim.40 No such showing has been identified by Riverkeeper, Clearwater, or the Board. Accordingly, the Board's decision regarding the admission of this Consolidated Contention should be reversed.

38 Petition at 8.

39 See also Entergy's Riverkeeper Answer, Exhibit M, Hydrological Site Investigation Report (Jan. 11, 2008).

40 10 C.F.R. 5 2.309(f)(l)(vi).

COIVCLUSION For the reasons set forth above, the Staff respectfully submits that Entergy's Petition should be granted, and the Board's decision to admit the Consolidated Contention should be reversed.

Respectfully submitted, Counsel for NRC Staff Dated at Rockville, Maryland this 21st day of January 2009

January 21,2009 UNITED STATES OF AMERICA IVUCLEAR REGULATORY COMMISSION BEFORE THE COMMlSSlOlV In the Matter of 1

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR (Indian Point Nuclear Generating 1 Units 2 and 3)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S ANWER IN SUPPORT OF ENTERGY'S PETITION FOR INTERLOCUTORY REVIEW OF ATOMIC SAFETY AhlD LICENSING BOARD DECISION ADMITTING CONSOLIDATED CONTENTION RIVERKEEPER EC-3lCLEARWATER EC-1,"' dated January 21,2009, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, with copies by electronic mail, as indicated by double asterisk, this 21" day of January, 2009:

Lawrence G. McDade, Chair* Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication*

Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0 - 16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: LGM1 Qnrc.qov E-mail: OCAAMAILQ nrc.qov Dr. Richard E. Wardwell* Office of the Secretary*

Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0 - 16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: REW Bnrc.aov E-mail: HEARlNGDOCKET@nrc.aov Dr. Kaye D. Lathrop* Zachary S. Kahn*

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Atomic Safety and Licensing Board Panel* John Louis Parker, Esq.**

U.S. Nuclear Regulatory Commission Office of General Counsel, Region 3 Mail Stop: T-3 F23 New York State Department of Washington, DC 20555-0001 Environmental conservation (Via Internal Mail Only) 21 South Putt Corners Road New Paltz, NY 12561-1620 E-mail: jlparker@aw.dec.state.nv.us Kathryn M. Sutton, Esq.** Mylan L. Denerstein, Esq.**

Paul M. Bessette, Esq. Janice A. Dean, Esq.

Martin J. O'Neill, Esq. Executive Deputy Attorney General, Morgan, Lewis & Bockius, LLP Social Justice 1111 Pennsylvania Avenue, NW Office of the Attorney General Washington, D.C. 20004 of the State of New York E-mail: ksutton @moraanlewis.com 120 Broadway, 25thFloor E-mail: pbessette @ morqanlewis.com New York, NY 10271 E-mail: martin.olneill 8 moraanlewis.com E-mail: mvlan.denerstein Q0aq.state.nv.u~

janice.dean @oaa.state.nv.us Elise N. Zoli, Esq.** John J. Sipos, Esq.**

Goodwin Procter, LLP Charlie Donaldson, Esq.

Exchange Place Assistants Attorney General 53 State Street New York State Department of Law Boston, MA 02109 Environmental Protection Bureau E-mail: ezoli@aoodwinprocter.com The Capitol Albany, NY 12224 E-mail: john.si~os@oaa.state.nv.us William C. Dennis, Esq.** Joan Leary Matthews, Esq.**

Assistant General Counsel Senior Attorney for Special Projects Entergy Nuclear Operations, Inc. New York State Department of 440 Hamilton Avenue Environmental Conservation White Plains, NY 10601 Office of the General Counsel E-mail: wdennis @enterqv.com 625 Broadway, 14th lo or Albany, NY 12233-1500 E-mail: jlmatthe@nw.dec.state.nv.us Justin D. Pruyne, Esq.** Michael J. Delaney, Esq.**

Assistant County Attorney Vice President - Energy Department Office of the Westchester County Attorney New York City Economic Development 148 Martine Avenue, 6thFloor Corporation (NYCDEC)

White Plains, NY 10601 110 William Street E-mail: idp3 Bwestchesterqov.com New York, NY 10038 E-mail: mdelanevB nvcedc.com

Daniel E. O'Neill, Mayor** Manna Jo Greene**

James Seirmarco, M.S. Hudson River Sloop Clearwater, Inc.

Village of Buchanan 112 Little Market Street Municipal Building Poughkeepsie, NY 12601 Buchanan, NY 10511-1298 E-mail: Mannaio@clearwater.orq E-mail: vob 63 bestweb.net Daniel Riesel, Esq**. Diane Curran, Esq.**

Thomas F. Wood, Esq. Harmon, Curran, Spielberg & Eisenberg, LLP Ms. Jessica Steinberg, J.D. 1726 M Street, NW, Suite 600 Sive, Paget & Riesel, P.C. Washington, D.C. 20036 460 Park Avenue E-mail: dcurran Q harmoncurran.com New York, NY 10022 E-mail: driesel @sprlaw.com jsteinbera @sprlaw.com Robert Snook, Esq.** Victor Tafur, Esq.**

Office of the Attorney General Phillip Musegaas, Esq.

State of Connecticut Riverkeeper, Inc.

55 Elm Street 828 South Broadway P.O. Box 120 Tarrytown, NY 10591 Hartford, CN 06141-0120 E-mail: phillipG3riverkeeDer.orq E-mail: robert.snook @ p0.state.ct.u~ vtafur @riverkeeper.orq

( 0 r i h 6 . Harris

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Counsel for NRC Staff