ML14091A320

Order (Denying Riverkeeper'S Motion and Granting Entergy'S Motion Addressing RK-EC-8A)

ML14091A320
Person / Time
Site:	Indian Point
Issue date:	04/01/2014
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:	Riverkeeper
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25756
Download: ML14091A320 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) April 1, 2014 ORDER (Denying Riverkeepers Motion and Granting Entergys Motion Addressing RK-EC-8A)

On August 20, 2013, Riverkeeper, Inc. (Riverkeeper) filed a Consolidated Motion for Leave to File an Amended Contention, and Amended Contention RK-EC-8A.1 Subsequently, Entergy Nuclear Operations, Inc. (Entergy) and the NRC Staff filed motions opposing Riverkeepers proposed amendment.2 In its motion, Riverkeeper argued that it was necessary to amend RK-EC-8 due to the new information presented in the Staffs Final Supplemental Environmental Impact Statement (FSEIS), which was issued on July 1, 2013.3 1

See Riverkeeper Consolidated Motion for Leave to File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A (Aug. 20, 2013) [hereinafter Riverkeeper Motion].

2 See Entergys Answer to Riverkeeper, Inc.s Consolidated Motion for Leave to File Amended contention RK-EC-8A and Amended Contention RK-EC-8A (Endangered Aquatic Species) (Oct.

1, 2013); NRC Staffs Answer to Riverkeeper, Inc.s Consolidated Motion for Leave to File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A (Oct. 1, 2013)

[hereinafter NRC Staff Answer].

3 See Letter from S. Turk (Counsel for NRC Staff) to ASLB (June 21, 2013); Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report Supplemental Report and Comment Responses (NUREG-1437, Supplement 38, Volume 4), available at, http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement38/v4/.

Entergy, likewise sought to use the new information presented in the FSEIS. According to the applicant, the FSEIS provided a basis to dismiss RK-EC-8 as moot.4 I. Ruling on Entergys Motion On July 17, 2013, Entergy filed a Motion to Dismiss Riverkeeper Contention RK-EC-8 (Endangered and Threatened Aquatic Species) as moot.5 Thereafter, the NRC Staff filed an answer, agreeing with Entergy that all issues raised by RK-EC-8 had been resolved and recommending that Riverkeepers contention be dismissed.6 As filed, Riverkeeper Contention RK-EC-8 asserted:

NRC Staffs FSEIS is deficient for failure to include or consider the assessment of the National Marine Fisheries Service (NMFS) regarding impacts to endangered species due to incomplete ESA § 7 consultation procedures. A supplemental EIS must be prepared by NRC Staff that fully considers the outcome of the consultation process, including NMFS forthcoming biological opinion, prior to any decision by the NRC regarding whether to relicense Indian Point.7 As presented by the NRC Staff and Entergy, following the Boards admission of RK-EC-8, extensive consultations took place between the NRC Staff and NMFS. These consultations led to the issuance of a Biological Opinion (BiOp) by NMFS, which addressed the environmental impacts of Indian Point license renewal on both shortnose sturgeon and Atlantic sturgeon, and 4

See Entergy Motion to Dismiss Riverkeeper Contention RK-EC-8 (Endangered and Threatened Aquatic Species) As Moot (Jul. 17, 2013).

5 See id.

6 NRC Staffs Answer to Entergys Motion to Dismiss Contention RK-EC-8 (Endangered and Threatened Aquatic Species) As Moot (Aug. 6, 2013) [hereinafter NRC Answer to Entergy Motion].

7 Riverkeeper, Inc. Consolidated Motion for Leave to File a New Contention and New Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement at 1 (Feb. 3, 2011) [hereinafter Contention RK-EC-8].

provided an Incidental Take Statement (ITS) and reasonable and prudent measures with which Entergy and the NRC must comply.8 The NRC Staff and Entergy asserted that completion of the ESA § 7 consultation process, followed by the NRC Staffs consideration and incorporation of NMFSs views in the FSEIS Supplement, cures the deficiencies alleged in Contention RK-EC-8, and thus renders the contention moot.9 The FSEIS Supplement gave consideration to NMFSs BiOp and ITS in reaching its conclusions under NEPA regarding the impacts of IPEC license renewal on endangered and threatened species.10 The completion of the ESA § 7 consultation process, followed by the NRC Staffs consideration and incorporation of NMFSs views in the FSEIS Supplement, cures the deficiencies alleged in RK-EC-8. Thus, the Board finds that RK-EC-8 is moot.

II. Ruling on Riverkeepers Motion Riverkeepers proposed amended contention fails to [p]rovide a specific statement of the issue of law or fact to be raised or controverted; provide a concise statement of the alleged facts or expert opinions which support the requestors . . . position on the issue; or provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact as required by 10 C.F.R. § 2.309(f)(1)(i), (v), and (vi).11 Accordingly, it is inadmissible.

8 NRC Answer to Entergy Motion at 4-5 (Aug. 6, 2013) (citing Letter from John K. Bullard, Regional Administrator, Northeast Region, National Oceanic and Atmospheric Administration, to Dr. Amy Hull (NRC) (Jan. 30, 2013)).

9 Id. at 7.

10 NUREG-1437, Supplement 38, Vol. 4 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Units Nos. 2 and 3 (June 2013).

11 10 C.F.R. § 2.309(f)(1) (2013).

In its Motion to Amend, Riverkeeper asserted that the FSEIS Supplement did not resolve the FSEIS prior deficiencies:

because it (1) fails to properly consider or address Riverkeepers comments regarding various deficiencies with NMFs analyses and conclusions resulting from the ESA § 7 consultation process, and, in turn, fails to adequately assess impacts to endangered species posed by the potential relicensing of Indian Point, and (2) fails to explain how the new and significant information assessed by NRC Staff in the FSEIS Supplement affect NRC Staffs recommendation to the Commission regarding the appropriateness of the proposed license renewal of Indian Point.12 Yet, Riverkeeper failed to set forth specific facts, references, or expert opinions indicating how NMFS could have conducted its evaluation differently. Nor did Riverkeeper present technical analysis negating the rationale provided in the 2013 BiOp and the FSEIS when they concluded that continued operation of IP2 and IP3 would not likely jeopardize the continued existence of shortnose or Atlantic sturgeon. Likewise, although Riverkeeper asserts that the NRC Staffs response to its comments was not meaningful, Riverkeeper did not point to or demonstrate specific deficiencies in the NRC Staffs substantive response to its comments.

While Riverkeeper may disagree with the NRC Staffs assessment of its comments, the Motion fails to identify specific errors in the NRC Staffs analysis that would render the final FSEIS Supplement inadequate. Absent such showing, Riverkeepers assertions concerning the meaningfulness of the NRC Staffs analysis of its comments fail to establish a genuine dispute of material fact or law.

The instances where Riverkeeper cited specific comments that the FSEIS Supplement failed to consider were either not timely or did not address a material issue. For instance, New York State Department of Environmental Conservations comments of March 25, 2013, were submitted seven months after the Federal Register deadline for comments on the draft FSEIS Supplement had passed, far too late to be considered as a practical matter in the final FSEIS Supplement. In another instance, although the NRC Staffs Supplement did not reproduce the 12 Riverkeeper Motion at 6-7.

August 2012 Pisces Conservation, Ltd. Report, Riverkeeper does not assert that the NRC Staff failed to address any of its comments that were based on the Pisces report. Accordingly, these two specific instances where the FSEIS Supplement allegedly ignored comments are not sufficient to raise a genuine issue of material fact or law.13 Thus, Riverkeepers Consolidated Motion to File Amended Contention RK-EC-8A is denied.

Riverkeeper has 14 days to appeal this order.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

________________________

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland April 1, 2014 13 NRC Staff Answer at 20 .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

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

) and 50-286-LR (Indian Point Nuclear Generating, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Riverkeepers Motion and Granting Enetergys Motion Addressing RK-EC-8A) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.

Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.

Mail Stop O-7H4M David E. Roth, Esq.

Washington, DC 20555-0001 Sherwin E. Turk, Esq.

ocaamail@nrc.gov Brian Harris, Esq.

Mary B. Spencer, Esq.

U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.

Office of the Secretary of the Commission Christina England, Esq.

Mail Stop O-16C1 Catherine E. Kanatas, Esq.

Washington, DC 20555-0001 John Tibbetts, Paralegal hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop T-3F23 sherwin.turk@nrc.gov; Washington, DC 20555-0001 edward.williamson@nrc.gov beth.mizuno@nrc.gov; brian.harris.@nrc.gov Lawrence G. McDade, Chair david.roth@nrc.gov; mary.spencer@nrc.gov Administrative Judge anita.ghosh@nrc.gov; lawrence.mcdade@nrc.gov christina.england@nrc.gov; catherine.kanatas@nrc.gov; Richard E. Wardwell john.tibbetts@nrc.gov Administrative Judge richard.wardwell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov Michael F. Kennedy Administrative Judge William C. Dennis, Esq.

michael.kennedy@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.

Carter Thurman, Law Clerk 440 Hamilton Avenue carter.thurman@nrc.gov White Plains, NY 10601 wdennis@entergy.com Kathleen E. Oprea, Law Clerk Kathleen.Oprea@nrc.gov William B. Glew, Jr.

Organization: Entergy 440 Hamilton Avenue, White Plains, NY 10601 wglew@entergy.com

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Riverkeepers Motion and Granting Enetergys Motion Addressing RK-EC-8A)

Elise N. Zoli, Esq. Phillip Musegaas, Esq.

Goodwin Proctor, LLP Deborah Brancato, Esq.

Exchange Place, 53 State Street Ramona Cearley, Secretary Boston, MA 02109 Riverkeeper, Inc.

ezoli@goodwinprocter.com 20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org; dbrancato@riverkeeper.org Daniel Riesel, Esq. rcearley@riverkeeper.org Victoria Shiah Treanor, Esq.

Adam Stolorow, Esq.

Jwala Gandhi, Paralegal Melissa-Jean Rotini, Esq.

Natoya Duncan, Paralegal Assistant County Attorney Counsel for Town of Cortlandt Office of Robert F. Meehan, Sive, Paget & Riesel, P.C. Westchester County Attorney 460 Park Avenue 148 Martine Avenue, 6th Floor New York, NY 10022 White Plains, NY 10601 driesel@sprlaw.com; vtreanor@sprlaw.com mjr1@westchestergov.com astolorow@sprlaw.com; jgandhi@sprlaw.com; nduncan@sprlaw.com Clint Carpenter, Esq.

Bobby Burchfield, Esq.

Kathryn M. Sutton, Esq. Matthew Leland, Esq.

Paul M. Bessette, Esq. McDermott, Will and Emergy LLP Martin J. ONeill, Esq. 600 13th Street, NW Raphael Kuyler, Esq. Washington, DC 20005 Lena Michelle Long, Esq. ccarpenter@mwe.com; bburchfield@mwe.com Laura Swett, Esq. mleland@mwe.com Lance Escher, Esq.

Brooke McGlinn, Esq. Matthew W. Swinehart, Esq.

Susan Raimo, Esq. Covington & Burling LLP Mary Freeze, Legal Secretary 1201 Pennsylvania Avenue, NW Doris Calhoun, Legal Secretary Washington, DC 20004 Morgan, Lewis & Bockius, LLP mswinehart@cov.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Edward F. McTiernan, Esq.

ksutton@morganlewis.com New York State Department martin.oneill@morganlewis.com of Environmental Conservation rkuyler@morganlewis.com; Office of General Counsel llong@morganlewis.com; 625 Broadway lswett@morganlewis.com 14th Floor lescher@morganlewis.com Albany, NY 12233-1500 bmcglinn@morganlewis.com efmctier@gw.dec.state.ny.us sraimo@morganlewis.com mfreeze@morganlewis.com dcalhoun@morganlewis.com 2

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Riverkeepers Motion and Granting Enetergys Motion Addressing RK-EC-8A)

Manna Jo Greene, Environmental Director John J. Sipos, Esq.

Steven C. Filler Charles Donaldson, Esq.

Hudson River Sloop Clearwater, Inc. Kathryn Deluca, Esq.

724 Wolcott Ave. Elyse Houle, Legal Support Beacon, NY 12508 Assistant Attorneys General mannajo@clearwater.org; Office of the Attorney General stephenfiller@gmail.com of the State of New York The Capitol, State Street Albany, New York 12224 Andrew Reid, Esq. john.sipos@ag.ny.gov Organization: Hudson River Sloop charlie.donaldson@ag.ny.gov Clearwater, Inc. kathryn.deluca@ag.ny.gov Springer & Steinberg, P.C. elyse.houle@ag.ny.gov 1600 Broadway, Suite 1200 Denver, CO 80202 Robert D. Snook, Esq.

areid@springersteinberg.com Assistant Attorney General Office of the Attorney General Richard Webster, Esq. State of Connecticut Public Justice, P.C. 55 Elm Street For Hudson River Sloop Clearwater, Inc. P.O. Box 120 1825 K Street, NW, Suite 200 Hartford, CT 06141-0120 Washington, D.C. 20006 robert.snook@po.state.ct.us rwebster@publicjustice.net Janice A. Dean, Esq.

Michael J. Delaney, Esq. Kathryn DeLuca, Esq.

Director, Energy Regulatory Affairs Assistant Attorney General NYC Department of Environmental Protection Office of the Attorney General 59-17 Junction Boulevard of the State of New York Flushing, NY 11373 120 Broadway, 26th Floor mdelaney@dep.nyc.gov New York, New York 10271 janice.dean@ag.ny.gov kathryn.deluca@ag.ny.gov Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com

[Original signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of April, 2014 3