ML16095A401

2016-4-4 Entergy Opposition to Riverkeeper Contention RK-EC-11

ML16095A401
Person / Time
Site:	Indian Point
Issue date:	04/04/2016
From:	Bessette P M, Glew W B, O'Neill M J, Sutton K M Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR and 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 51049
Download: ML16095A401 (15)

Text

UNITED STATES OF AMERICA 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) )

April 4, 2016

) ______________________________________________________________________________ ENTERGY'S OPPOSITION TO RIVERKEEPER'S PROPOSED "PLACEHOLDER" CONTENTION RK-EC-11 CONCERNING THE CONTINUED STORAGE RULE

______________________________________________________________________________ William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq. Entergy Services, Inc. Paul M. Bessette, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W. Phone: (914) 272-3360 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: kathryn.sutton@morganlewis.com E-mail: paul.bessette@morganlewis.com

Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000

Houston, TX 77002

Phone: (713) 890-5710

Fax: (713) 890-5001 E-mail: martin.o'neill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. LEGAL STANDARDS ...................................................................................................... 4 III. PROPOSED CONTENTION RK-EC-11 IS INADMISSIBLE AND UNTIMELY ......... 6 A. Controlling Commission Precedent Requires That The Board Reject Proposed Contention RK-EC-11 As Inadmissible Under 10 C.F.R.

§ 2.309(f)(1) ........................................................................................................... 6 B. Proposed Contention RK-EC-11 Also Should Be Rejected As Untimely Because It Fails To Meet The Requirements In 10 C.F.R. § 2.309(f)(2) And

§ 2.309(c)(1) ........................................................................................................... 9 IV. CONCLUSION ................................................................................................................ 11 UNITED STATES OF AMERICA 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) )

April 4, 2016

) ENTERGY'S OPPOSITION TO RIVERKEEPER'S PROPOSED "PLACEHOLDER" CONTENTION RK-EC-11 CONCERNING THE CONTINUED STORAGE RULE I. INTRODUCTION In accordance with 10 C.F.R. § 2.309(i)(1), Entergy Nuclear Operations, Inc. ("Entergy")

files this Answer opposing Riverk eeper, Inc.'s ("Riverkeeper's

") Motion, filed on March 8, 2016, seeking the admission of a "placeholder" environmental contention, designated RK-EC-11.

1 The proposed new contention challenges the Nuclear Regulatory Commission's ("

NRC's") reliance on the September 2014 Continued Storage Rule and associated Generic Environmental Impact Statement ("GEIS")

2 in connection with the proposed renewa l of the Indian Point Units 2 and 3

("IP2" and "IP3," respec tively) operating licenses.

3 In its December 22, 2015 Draft Supplement to the 2010 Final Supplemental Environmental Impact Statement ("FSEIS") for IP2 and IP3 license

renewal,4 the NRC Staff states that the generic environmental impact determinations made

1 Riverkeeper's Request for Admission of New Environmental Contention (Mar. 8, 2016) ("Motion) (ADAMS Accession No. ML16068A441).

See also Letter from Paul Gallay, Counsel for Riverkeeper, to Administrative Judges (Mar. 9, 2016) (ML16069A404) (designating Riverkeeper's proposed new contention as RK-EC-11).

2 See Final Rule, Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) ("Continued Storage Rule"); NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report (Sept. 2014) (ML14196A105).

3 Motion at 1-2.

4 See NUREG-1437, Supp. 38, Vol. 5, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Draft Report for Comment" (Dec. 2015) 2pursuant to the Continued Storage Rule and the associated GEIS are deemed incorporated into the Draft Supplement.

5 By way of further background, the Continued Storage Rule is under going judicial review by the D.C. Circuit as a result of appeals filed by several entities, including Riverkeeper, in late-2014.6 Briefing and oral argument were completed in February 2016.

7 The court's decision is pending.

In its Motion, Riverkeeper asserts that "it does not seek to litigate the substantive content of the contention in an adjudicato ry hearing," but instead seeks solely "to lodge a formal challenge to the NRC's complete and unqualified reliance, in the individual licensing proceeding for Indian Point Units 2 and 3, on the legally deficient Con tinued Spent Fuel Storag e Rule and [supporting]

("Draft Supplement"); Letter from Sherwin E. Turk, NRC Staff Counsel, to the Licensing Board (Dec. 22, 2015) (ML15356A781) (forwarding copies of the Draft Supplement to the Board and parties and advising that the document is available at ADAMS Accession No. ML15351A422); NUREG-1437, Supp. 38, Vols. 1-3, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report" (Dec. 2010) ("FSEIS").

5 See Draft Supplement at 118, 121.

6 Specifically, on October 27, 2014, New York State notified the Board and other parties that it, along with the States of Connecticut and Vermont, had filed a petition for review of the Continued Storage Rule in the D.C. Circuit.

See Letter from John Sipos, Assistant Attorney General, State of New York, to Administrative Judges (Oct. 27, 2014) (ML14300A673). A group of public interest organizations (including Riverkeeper) also filed petitions for review of the NRC's rulemaking, and the court consolidated the various appeals.

See State of New York v. NRC, Nos. 14-1210, 14-1212, 14-1216, and 14-1217 (D.C. Cir.). Entergy filed a motion for leave to intervene in the judicial review proceeding on November 25, 2014, and the court granted that motion on December 18, 2014.

7 In January 2015, the NRC filed a motion to defer briefing until the Commission issued an order ruling on the then-pending October 2014 suspension petitions filed by Riverkeeper and other groups on multiple NRC dockets. On October 3, 2014, Riverkeeper filed a petition seeking the suspension of the Indian Point license renewal proceeding and admission of a new contention, RK-EC-10, alleging that the Commission erred in issuing the Continued Storage Rule without making findings regarding the safety of continued spent fuel storage or disposal of spent nuclear fuel. Riverkeeper's Consolidated Motion for Leave to File a New Contention and New Contention RK-10 Concerning the Absence of Required Waste Confidence Safety Findings (Oct. 3, 2014)

(ML1476A505); Petition to Suspend Final Decision in Indian Point Relicensing Proceeding Pending Issuance of Waste Confidence Safety Findings (Oct. 3, 2014) (ML14276A506).

On February 26, 2015, the NRC notified the court of the Commission's ruling in CLI-15-4 rejecting the suspension petitions. Nonetheless, the NRC suggested that the Court wait until either the petitioners filed a petition for review of CLI-15-4, or the deadline for such petition expired, before issuing a briefing schedule. On May 22, 2015, the court issued an order establishing a briefing schedule. The initial round of briefing was completed on November 13, 2015. Thereafter, on February 1, 2016, the court sua sponte ordered supplemental briefing on a jurisdictional matter. This supplemental briefing was completed on February 12, 2016. Oral argument was held on February 22, 2016.

3GEIS."8 Curiously, it notes its "reasonable expectation" that the contention will be denied in view of the Commission's rulings in CLI-15-11, CL I-15-12, and CLI-15-15 rejecting substantively identical contentions-which Riverkeeper itself cites.

9 It nevertheless posits that a placeholder contention is the only procedural means by which it can protect its rights in this proceeding should the D.C. Circuit invalidate the Continued Storage Rule.

10 Riverkeeper also notes its intention to appeal the presumed denial of th e contention to the D. C. Circuit.

11 It further claims that RK-EC-11 is timely and supported by good cause because "it does not depend at all on past information,"

12 but instead serves as a placeholder contention "whose admissibility depends entirely on an event that will occur in the future"-

i.e., the D.C. Circuit's forthcoming ruling on the various consolidated appeals of the Continued Storage Rule.

13 As discussed further below, Riverkeepe r's convoluted logi c does not hold up under scrutiny, as evidenced by the Commission's re peated rejection of s ubstantively identical "placeholder" contentions in the Callaway, Fermi, and numerous other licensing proceedings. The Commission's holdings in those cases are directly apposite and controlling here. Specifically, proposed contention RK-EC-11 improperly challenges the Continued Storage Rule and associated GEIS, and fails to raise a genuine material disp ute with the Draft Supplement on a material issue of fact or law, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi). It also is untimely under 10 C.F.R. § 2.309(c)(1)(i)-(iii) because it is not based on any new and materially different

8 Motion at 2.

9 Id. (citing Union Elec. Co. (Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC 546 (2015);

DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-12, 81 NRC 551 (2015); Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2) CLI-15-15, 81 NRC __ (slip op.) (June 9, 2015)).

10 See id. 11 See id. at 2-3.

12 Id. at 8. 13 Id.

4information, and was filed (without good cause) substantially after the deadline for new and amended contentions related to the NRC Staff's Draft Supplement issued on December 22, 2015.

14 Accordingly, the Board must reject RK-EC-11 as inadmissible.

II. LEGAL STANDARDS New or amended contentions, including thos e based on an NRC Staff draft environmental document, must meet the substantive admissibility standards that apply to all contentions. Namely, under 10 C.F.R. § 2.309(f)(1)(i)-(vi), the contention must: (1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioner's position and upon which the petitioner intends to re ly; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact. The Commission's "strict-by-design contention admissibility standards focus [the] hearing process on 'disputes that can be resolved in - adjudication.'"

15 Failure to comply with any one of the six admissibility criteria is grounds for rejecting a proposed contention.

16 Additionally, and as directly relevant here, a contention that challenges an NRC rule is outside the scope of the

14 The Board's July 31, 2010 Scheduling Order states that "[a] motion and proposed new contention shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) [now § 2.309(c)(1)(iii)] if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available." Licensing Board Order (Scheduling Order) at 6 (July 1, 2010).

15 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC __ (slip op. at 5) (Nov. 9, 2015) (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 233 (2008)).

16 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

5proceeding because, absent a waiver, "no rule or regulation of the Commission . . . is subject to attack . . . in any ad judicatory proceeding."

17 With regard to timeliness, a contention genera lly must be based on th e application or other documents available at the time the hearing request and petition to intervene is filed.

18 NRC regulations, however, allow an intervenor to file a new or amended contention after the initial deadline for intervention petitions-for example, based on a draft or final NRC review document or supplement thereto-but only if the intervenor demonstrates "good cause" by showing that: (i) The information upon which the filing is based was not previously available

(ii) The information upon which the filing is based is materially different from informat ion previously available

and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

19 Thus, with respect to the specific information in the Draft Supplement on which RK-EC-11 purportedly is based, Riverkeeper must explain why that information is new and how it is

17 10 C.F.R. § 2.335(a). A party can petition for a waiver of a specific NRC regulation, based on a showing of "special circumstances" such that application of the rule would not serve the purposes for which it was adopted. Id. § 2.335(b); see also Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005) (laying out a four-factor test for determining whether to grant a waiver).

Significantly, Riverkeeper has not petitioned for a waiver of the Continued Storage Rule.

18 See 10 C.F.R. § 2.309(f)(2) 19 10 C.F.R. § 2.309(c)(1)(i)-(iii) (emphasis added); 10 C.F.R. § 2.309(f)(2) (stating that participants may file new or amended environmental contentions based on a draft or final NRC environmental impact statement, or any supplements to these documents, if the contention complies with the requirements in 10 C.F.R. § 2.309(c));

see also Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Licensing Board Memorandum and Order (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5) at 1 (Mar. 31, 2015) (unpublished) ("To be admissible, a new or amended contention must satisfy the good cause requirements of 10 C.F.R. § 2.309(c)(1) . . . .."). The requirements for demonstrating "good cause" under current 10 C.F.R. § 2.309(c)(1)(i)-(iii) are the same as the requirements for filing "late" contentions previously available under former 10 C.F.R. § 2.309(f)(2)(i)-(iii);

i.e., before the NRC revised Section 2.309 in August 2012.

See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,566, 45,571 (Aug. 3, 2012).

6materially different from previously available information.

20 That is, "new or amended contentions must be based on new facts not previously available."

21 Insofar as a proposed new contention simply repeats previously-asserted claims or relies on information that is not materially different from previously-available information, it fails to meet the requirements of 10 C.F.R.

§ 2.309(c)(1)(i) and (ii).

22 III. PROPOSED CONTENTION RK-EC-11 IS INADMISSIBLE AND UNTIMELY A. Controlling Commission Precedent Requires That The Board Reject Proposed Contention RK-EC-11 As Inadmissible Under 10 C.F.R. § 2.309(f)(1) Riverkeeper explicitly notes its expectation that RK-EC-11 "will be denied[] pursuant to the Commission's decision on virtually identical motions in other cases."

23 Riverkeeper, in other words, acknowledges that the Commission's decisions in CLI-15-11, CLI-15-12, and CLI-15-15 are binding on this Board and similarly require the denial of RK-EC-11. For example, in the Callaway license renewal proceeding, the Commission, in CLI-15-11, reject ed an essentially identical "placeholder" contention as inadmissible because "it impermissibly challenges an agency

20 See Crow Butte Res., Inc. (License Renewal for the In Situ Leach Facility, Crawford, Neb.), LBP-15-11, 81 NRC __, __ (slip op. at 7) (Mar. 16, 2015), petitions for interlocutory review denied, CLI-15-17, 82 NRC __ (slip op. at 2, 20) (Aug. 6, 2015).

21 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 493 n.70 (2012) (emphasis in original); see also id. ("We did not suggest that it is appropriate to file amended contentions only to raise claims that are not based on genuinely new information.") (emphasis added); Phila. Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 69 (1983) (The finding of good cause for late-filing of new or amended contentions is related to the "total previous unavailability of information.").

22 See Crow Butte

, LBP-15-11, 81 NRC at ___ (slip op. at 21) ("New contentions cannot be based on previously available information.");

id. at 34 ("Intervenors do not explain how the EA [environmental assessment] introduces new or materially different information from the LRA [license renewal application]. Indeed, Intervenors state that their asserted defects with the EA were 'carried forward' from the LRA. . . . Because it is not based on new information, EA Contention 8 is inadmissible as untimely."); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-15-1, 81 NRC __ (slip op. at 20-21) (Jan. 15, 2015) (denying motion to amend and supplement a contention because the applicant document on which it purportedly was based contained "no new or materially different information"); Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 53 (2010) ("We agree with the Board that [the intervenor] has simply rehashed old arguments in Contention 2C . . . .").

23 Motion at 2.

7regulation and is therefore outside the scope of this individual licensing proceeding."

24 It also found that none of the contention's bases pertained specifically to the Callaway license renewal application, and that the contention therefore failed to provide sufficient information to demonstrate a genuine dispute with the applicant on a material issue.25 Importantly, the Commission amplified on its ruling, making several ke y observations that are directly applicable to Riverkeeper and proposed contention RK-EC-11: In [petitioner's] view, its "placeholder contention" is "the only procedural means" available for ensuring that any court decision resulting from the pending appeal of the Continued Storage Rule and GEIS will be applied to the Callaway license renewal matte

r. However, [the petitioner]

cannot litigate the Continued St orage Rule and GEIS here. We addressed the environmental impacts of conti nued storage generically, via the rulemaking process, in accordance w ith NEPA and general principles of administrative law. [The petiti oner] had-and took advantage of-the opportunity to provide comments on th e proposed rule and draft GEIS.

Now that the rule has been adopted, [t he petitioner] has sought review of the rule and GEIS in the appropriate ve nue, the court of appeals. Absent a successful petition that the rule should be waived in accordance with 10 C.F.R. § 2.335, [the petitioner's] cha llenges to the Continued Storage Rule and GEIS are appropriately brought before the court of appeals. Should the D.C. Circuit find any infirmities in the Continued Storage Rule or GEIS, we would take appropriate ac tion consistent with the court's direction. In the meantime, however, admission of a "placeholder" contention is not necessary to ensure that [the petitioner's] challenges to the Continued Storage Rule and GE IS receive a full and fair airing

. 26 In the Fermi combined operating license ("COL") proceeding, the Commission rejected another "placeholder" contention filed by a petitioner in anticipation of the D.C. Circuit's decision on the various judicial challenges to the Continued Storage Rule.

27 The Commission, in CLI-15-12, rejected the contention for the same reasons set forth in its Callaway decision.

28 24 Callaway, CLI-15-11, 81 NRC at 549.

25 See id. 26 Id. at 549-50 (internal footnotes and citations omitted) (emphasis added).

27 Fermi, CLI-15-12, 81 NRC at 553-54.

28 See id.

8 Finally, in CLI-15-15, the Commission denied placeholder contentions filed by petitioners in nine separate operating license, COL, and license renewal proceedings.

29 The Commission cited the petitioners' acknowledgment that the proposed contentions were "substantively identical" to those filed in the Callaway and Fermi proceedings and, accordingly, denied their admission for the reasons set forth in CLI-15-11 and CLI-15-12.

30 The above-cited Commission decisions compel the same result here-denial of proposed contention RK-EC-11. Like the "placeholder" contentions rejected in the Callaway, Fermi, and numerous other proceedings, RK-EC-11 impermi ssibly challenges an agency regulation and generic NRC determinations and, thus, is outsi de the scope of this plant-specific licensing proceeding. This is evidenced by Riverkeeper's allegations that: (1) the Continued Storage Rule GEIS is inadequate to support IP2 and IP3 license renewal, 31 and (2) the environmental findings in the Continued Storage Rule and the GEIS are unsupported and legally deficient.

32 Moreover, as putative support for its contention, Riverkeeper relies on its comments (including declarations attached thereto) on the proposed Con tinued Storage Rule and draft GEIS.

33 Furthermore, Riverkeeper, which does not differentiate RK-EC-11 from previously-rejected placeholder contentions, fails to specifically challenge any litigable aspect of Entergy's LRA or the Staff's Draft Supplement. Accordingly, RK-EC-11 fails, at a minimum, to the meet the requirements in 10 C.F.R. § 2.309(f)(1)(iii)-(vi), and must be rejected for the same reasons set forth in the Commission's controlling Callaway (CLI-15-11) and Fermi (CLI-15-12) decisions.

29 William States Lee III et al., CLI-15-15, slip op. at 2.

30 Id. 31 See Motion at 6.

32 See id. at 2. 7.

33 See id. at 4, 7, 8.

9B. Proposed Contention RK-EC-11 Also Should Be Rejected As Untimely Because It Fails To Meet The Requirements In 10 C.

F.R. § 2.309(f)(2) And

§ 2.309(c)(1) Given that proposed contention RK-EC-11 is patently inadmissible, the Board need not consider its timeliness under 10 C.F.R. § 2.309(f)(2) and § 2.309(c)(1). But even if it does, the Board should find that RK-EC-11 does not satisfy those criteria. First, RK-EC-11 is not based on any new and materially different information, as required by 10 C.F.R. § 2.309(c)(1)(i) and (ii), respectively. The Draft Supplement make s this clear in stating as follows: In CLI-14-08 . . . , the Commissi on held that the revised 10 CFR 51.23 and associated NUREG-2157 cure the de ficiencies identified by the Court in New York v. NRC

, 681 F.3d 471 (D.C. Cir. 2012) and stated that the rule satisfies the NRC's NEPA obliga tions with respect to continued storage for initial, renewed, and amended licenses for reactors

.

As the Commission noted in CLI-14-08, the NRC staff must account for these environmental impacts before fi nalizing its licensing decision in an individual licensing proceeding. To account for these impact determinations, the generic environmental impact determinations made pursuant to the Continued Storage Ru le and the associated NUREG-2157 are deemed incorporated into this final supplemental environmental impact statement (FSEIS) supplement.

34 In other words, the Staff's intention to rely on the generic environmental impact determinations made pursuant to the Continued Storage Rule and the associated GEIS in individual licensing proceedings like this one has been known since at least August 2014. At that time, the Commission approved issuance of the Con tinued Storage Rule and also issued CLI-14-8, wherein it specifically stated that the GEIS impact determinations will inform the decision-makers in individual licensing proceedings of the impacts of continued storage.

35 Riverkeeper

34 Draft Supplement at 118 (emphasis added).

35 See Staff Requirements-SECY-14-0072-Final Rule, Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (Aug. 26, 2014) (ML14237A092); "Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20)," Commission Paper SECY-14-0072 (July 21, 2014) (attaching the GEIS and the draft Final Rule, Continued Storage of Spent Nuclear Fuel (Continued Storage Rule)) (ML14177A482 (package)); Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71 (2014). See also Continued Storage Rule, 79 Fed. Reg. at 56,243 ("Under final 10 CFR 10thus cannot credibly claim that the Draft Supplement's reliance on the GEIS impact determinations is new and materially different information.

Consequently, RK-EC-11 fails to satisfy the criteria in 10 C.F.R.

§ 2.309(c)(1)(i) and (ii). Finally, insofar as RK-EC-11 is ostensibly based on the Draft Supplement, it also fails to satisfy 10 C.F.R. § 2.309(c)(1)(iii). Riverk eeper belatedly filed RK-EC-11 on March 8, 2016-11 weeks after the Staff issued the Draft Supplement.

Riverkeeper seeks to eschew this timeliness issue by arguing that the "new contention satisfies the NRC's standards for timeliness and good cause because it does not depend at all on past information," but instead is tied to a "future" event.36 That argument contravenes Commission rules and precedent, which do not permit placeholder contentions. For example, the Commission has rejected pleadings intended to function as "placeholders" for future pleadings, stating that "our regulations do not contemplate such filings, which are tantamount to impermissible 'notice pleadings.'"

37 The Commission reiterated this principle in Byron/Braidwood, rejecting the use of "placeholder" motions as impermissible under its Rules of Practice and "inconsistent with [its] l ongstanding interest in sound case management and regulatory finality."

38 51.23, the impact determinations in NUREG-2157 are deemed incorporated into an [environmental impact statement] that is prepared to support a licensing action for a power reactor or [independent spent fuel storage installation].").

36 Motion at 8.

37 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009).

38 Exelon Generation Co., LLC (Byron Nuclear Power Station, Units 1 and 2; Braidwood Nuclear Power Station, Units 1 and 2), CLI-14-6, 79 NRC 445, 448 (2014); see also id. at 449 ("Nor do our rules contemplate motions filed as a placeholder for a further motion to be filed later." (internal quotation marks and citation omitted)).

11IV. CONCLUSION For the foregoing reasons, the Board should deny the admission of proposed contention RK-EC-11.

Executed in accord with 10 C.F.R. § 2.304(d)

William B. Glew, Jr., Esq. Entergy Services, Inc.

440 Hamilton Avenue

White Plains, NY 10601

Phone: (914) 272-3360 E-mail: wglew@entergy.com Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

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

Washington, D.C. 20004

Phone: (202) 739-5738

Fax: (202) 739-3001 E-mail: kathryn.sutton@morganlewis.com E-mail: paul.bessette@morganlewis.com

Signed (electronically) by Martin J. O'Neill Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002

Phone: (713) 890-5710

Fax: (713) 890-5001 E-mail: martin.o'neill@morganlewis.com

Counsel for Entergy Nuclear Operations, Inc.

Dated at Washington, DC

this 4th day of April 2016

UNITED STATES OF AMERICA 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) )

) April 4, 2016

ANSWER CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to reso lve the factual and legal issues raised in the Motion for Leave, and that his efforts to resolve the issues have been unsuccessful.

Executed in Accord with 10 C.F.R. § 2.304(d) Paul M. Bessette, Esq. MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: paul.bessette@morganlewis.com

Counsel for Entergy Nuclear Operations, Inc.

DB1/ 87099294 UNITED STATES OF AMERICA 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) )

) April 4, 2016

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised),

I certify that, on this date, copies of "Entergy's Opposition to Riverkeeper's Proposed 'Placeholder' Contention RK-EC-11 Concerning the Continued Storage Rule" were served upon the Electronic Information Exchange (the NRC's E-Filing System) in the above-captioned proceeding. Signed (electronically) by Martin J. O'Neill Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000

Houston, TX 77002

Phone: (713) 890-5710

Fax: (713) 890-5001 E-mail: martin.o'neill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

UNITED STATES OF AMERICA 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) )

April 4, 2016

) ______________________________________________________________________________ ENTERGY'S OPPOSITION TO RIVERKEEPER'S PROPOSED "PLACEHOLDER" CONTENTION RK-EC-11 CONCERNING THE CONTINUED STORAGE RULE

______________________________________________________________________________ William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq. Entergy Services, Inc. Paul M. Bessette, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W. Phone: (914) 272-3360 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: kathryn.sutton@morganlewis.com E-mail: paul.bessette@morganlewis.com

Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000

Houston, TX 77002

Phone: (713) 890-5710

Fax: (713) 890-5001 E-mail: martin.o'neill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. LEGAL STANDARDS ...................................................................................................... 4 III. PROPOSED CONTENTION RK-EC-11 IS INADMISSIBLE AND UNTIMELY ......... 6 A. Controlling Commission Precedent Requires That The Board Reject Proposed Contention RK-EC-11 As Inadmissible Under 10 C.F.R.

§ 2.309(f)(1) ........................................................................................................... 6 B. Proposed Contention RK-EC-11 Also Should Be Rejected As Untimely Because It Fails To Meet The Requirements In 10 C.F.R. § 2.309(f)(2) And

§ 2.309(c)(1) ........................................................................................................... 9 IV. CONCLUSION ................................................................................................................ 11 UNITED STATES OF AMERICA 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) )

April 4, 2016

) ENTERGY'S OPPOSITION TO RIVERKEEPER'S PROPOSED "PLACEHOLDER" CONTENTION RK-EC-11 CONCERNING THE CONTINUED STORAGE RULE I. INTRODUCTION In accordance with 10 C.F.R. § 2.309(i)(1), Entergy Nuclear Operations, Inc. ("Entergy")

files this Answer opposing Riverk eeper, Inc.'s ("Riverkeeper's

") Motion, filed on March 8, 2016, seeking the admission of a "placeholder" environmental contention, designated RK-EC-11.

1 The proposed new contention challenges the Nuclear Regulatory Commission's ("

NRC's") reliance on the September 2014 Continued Storage Rule and associated Generic Environmental Impact Statement ("GEIS")

2 in connection with the proposed renewa l of the Indian Point Units 2 and 3

("IP2" and "IP3," respec tively) operating licenses.

3 In its December 22, 2015 Draft Supplement to the 2010 Final Supplemental Environmental Impact Statement ("FSEIS") for IP2 and IP3 license

renewal,4 the NRC Staff states that the generic environmental impact determinations made

1 Riverkeeper's Request for Admission of New Environmental Contention (Mar. 8, 2016) ("Motion) (ADAMS Accession No. ML16068A441).

See also Letter from Paul Gallay, Counsel for Riverkeeper, to Administrative Judges (Mar. 9, 2016) (ML16069A404) (designating Riverkeeper's proposed new contention as RK-EC-11).

2 See Final Rule, Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) ("Continued Storage Rule"); NUREG-2157, Generic Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, Final Report (Sept. 2014) (ML14196A105).

3 Motion at 1-2.

4 See NUREG-1437, Supp. 38, Vol. 5, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Draft Report for Comment" (Dec. 2015) 2pursuant to the Continued Storage Rule and the associated GEIS are deemed incorporated into the Draft Supplement.

5 By way of further background, the Continued Storage Rule is under going judicial review by the D.C. Circuit as a result of appeals filed by several entities, including Riverkeeper, in late-2014.6 Briefing and oral argument were completed in February 2016.

7 The court's decision is pending.

In its Motion, Riverkeeper asserts that "it does not seek to litigate the substantive content of the contention in an adjudicato ry hearing," but instead seeks solely "to lodge a formal challenge to the NRC's complete and unqualified reliance, in the individual licensing proceeding for Indian Point Units 2 and 3, on the legally deficient Con tinued Spent Fuel Storag e Rule and [supporting]

("Draft Supplement"); Letter from Sherwin E. Turk, NRC Staff Counsel, to the Licensing Board (Dec. 22, 2015) (ML15356A781) (forwarding copies of the Draft Supplement to the Board and parties and advising that the document is available at ADAMS Accession No. ML15351A422); NUREG-1437, Supp. 38, Vols. 1-3, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report" (Dec. 2010) ("FSEIS").

5 See Draft Supplement at 118, 121.

6 Specifically, on October 27, 2014, New York State notified the Board and other parties that it, along with the States of Connecticut and Vermont, had filed a petition for review of the Continued Storage Rule in the D.C. Circuit.

See Letter from John Sipos, Assistant Attorney General, State of New York, to Administrative Judges (Oct. 27, 2014) (ML14300A673). A group of public interest organizations (including Riverkeeper) also filed petitions for review of the NRC's rulemaking, and the court consolidated the various appeals.

See State of New York v. NRC, Nos. 14-1210, 14-1212, 14-1216, and 14-1217 (D.C. Cir.). Entergy filed a motion for leave to intervene in the judicial review proceeding on November 25, 2014, and the court granted that motion on December 18, 2014.

7 In January 2015, the NRC filed a motion to defer briefing until the Commission issued an order ruling on the then-pending October 2014 suspension petitions filed by Riverkeeper and other groups on multiple NRC dockets. On October 3, 2014, Riverkeeper filed a petition seeking the suspension of the Indian Point license renewal proceeding and admission of a new contention, RK-EC-10, alleging that the Commission erred in issuing the Continued Storage Rule without making findings regarding the safety of continued spent fuel storage or disposal of spent nuclear fuel. Riverkeeper's Consolidated Motion for Leave to File a New Contention and New Contention RK-10 Concerning the Absence of Required Waste Confidence Safety Findings (Oct. 3, 2014)

(ML1476A505); Petition to Suspend Final Decision in Indian Point Relicensing Proceeding Pending Issuance of Waste Confidence Safety Findings (Oct. 3, 2014) (ML14276A506).

On February 26, 2015, the NRC notified the court of the Commission's ruling in CLI-15-4 rejecting the suspension petitions. Nonetheless, the NRC suggested that the Court wait until either the petitioners filed a petition for review of CLI-15-4, or the deadline for such petition expired, before issuing a briefing schedule. On May 22, 2015, the court issued an order establishing a briefing schedule. The initial round of briefing was completed on November 13, 2015. Thereafter, on February 1, 2016, the court sua sponte ordered supplemental briefing on a jurisdictional matter. This supplemental briefing was completed on February 12, 2016. Oral argument was held on February 22, 2016.

3GEIS."8 Curiously, it notes its "reasonable expectation" that the contention will be denied in view of the Commission's rulings in CLI-15-11, CL I-15-12, and CLI-15-15 rejecting substantively identical contentions-which Riverkeeper itself cites.

9 It nevertheless posits that a placeholder contention is the only procedural means by which it can protect its rights in this proceeding should the D.C. Circuit invalidate the Continued Storage Rule.

10 Riverkeeper also notes its intention to appeal the presumed denial of th e contention to the D. C. Circuit.

11 It further claims that RK-EC-11 is timely and supported by good cause because "it does not depend at all on past information,"

12 but instead serves as a placeholder contention "whose admissibility depends entirely on an event that will occur in the future"-

i.e., the D.C. Circuit's forthcoming ruling on the various consolidated appeals of the Continued Storage Rule.

13 As discussed further below, Riverkeepe r's convoluted logi c does not hold up under scrutiny, as evidenced by the Commission's re peated rejection of s ubstantively identical "placeholder" contentions in the Callaway, Fermi, and numerous other licensing proceedings. The Commission's holdings in those cases are directly apposite and controlling here. Specifically, proposed contention RK-EC-11 improperly challenges the Continued Storage Rule and associated GEIS, and fails to raise a genuine material disp ute with the Draft Supplement on a material issue of fact or law, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi). It also is untimely under 10 C.F.R. § 2.309(c)(1)(i)-(iii) because it is not based on any new and materially different

8 Motion at 2.

9 Id. (citing Union Elec. Co. (Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC 546 (2015);

DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-12, 81 NRC 551 (2015); Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2) CLI-15-15, 81 NRC __ (slip op.) (June 9, 2015)).

10 See id. 11 See id. at 2-3.

12 Id. at 8. 13 Id.

4information, and was filed (without good cause) substantially after the deadline for new and amended contentions related to the NRC Staff's Draft Supplement issued on December 22, 2015.

14 Accordingly, the Board must reject RK-EC-11 as inadmissible.

II. LEGAL STANDARDS New or amended contentions, including thos e based on an NRC Staff draft environmental document, must meet the substantive admissibility standards that apply to all contentions. Namely, under 10 C.F.R. § 2.309(f)(1)(i)-(vi), the contention must: (1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioner's position and upon which the petitioner intends to re ly; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact. The Commission's "strict-by-design contention admissibility standards focus [the] hearing process on 'disputes that can be resolved in - adjudication.'"

15 Failure to comply with any one of the six admissibility criteria is grounds for rejecting a proposed contention.

16 Additionally, and as directly relevant here, a contention that challenges an NRC rule is outside the scope of the

14 The Board's July 31, 2010 Scheduling Order states that "[a] motion and proposed new contention shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) [now § 2.309(c)(1)(iii)] if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available." Licensing Board Order (Scheduling Order) at 6 (July 1, 2010).

15 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC __ (slip op. at 5) (Nov. 9, 2015) (quoting Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 233 (2008)).

16 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

5proceeding because, absent a waiver, "no rule or regulation of the Commission . . . is subject to attack . . . in any ad judicatory proceeding."

17 With regard to timeliness, a contention genera lly must be based on th e application or other documents available at the time the hearing request and petition to intervene is filed.

18 NRC regulations, however, allow an intervenor to file a new or amended contention after the initial deadline for intervention petitions-for example, based on a draft or final NRC review document or supplement thereto-but only if the intervenor demonstrates "good cause" by showing that: (i) The information upon which the filing is based was not previously available

(ii) The information upon which the filing is based is materially different from informat ion previously available

and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

19 Thus, with respect to the specific information in the Draft Supplement on which RK-EC-11 purportedly is based, Riverkeeper must explain why that information is new and how it is

17 10 C.F.R. § 2.335(a). A party can petition for a waiver of a specific NRC regulation, based on a showing of "special circumstances" such that application of the rule would not serve the purposes for which it was adopted. Id. § 2.335(b); see also Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005) (laying out a four-factor test for determining whether to grant a waiver).

Significantly, Riverkeeper has not petitioned for a waiver of the Continued Storage Rule.

18 See 10 C.F.R. § 2.309(f)(2) 19 10 C.F.R. § 2.309(c)(1)(i)-(iii) (emphasis added); 10 C.F.R. § 2.309(f)(2) (stating that participants may file new or amended environmental contentions based on a draft or final NRC environmental impact statement, or any supplements to these documents, if the contention complies with the requirements in 10 C.F.R. § 2.309(c));

see also Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Licensing Board Memorandum and Order (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5) at 1 (Mar. 31, 2015) (unpublished) ("To be admissible, a new or amended contention must satisfy the good cause requirements of 10 C.F.R. § 2.309(c)(1) . . . .."). The requirements for demonstrating "good cause" under current 10 C.F.R. § 2.309(c)(1)(i)-(iii) are the same as the requirements for filing "late" contentions previously available under former 10 C.F.R. § 2.309(f)(2)(i)-(iii);

i.e., before the NRC revised Section 2.309 in August 2012.

See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,566, 45,571 (Aug. 3, 2012).

6materially different from previously available information.

20 That is, "new or amended contentions must be based on new facts not previously available."

21 Insofar as a proposed new contention simply repeats previously-asserted claims or relies on information that is not materially different from previously-available information, it fails to meet the requirements of 10 C.F.R.

§ 2.309(c)(1)(i) and (ii).

22 III. PROPOSED CONTENTION RK-EC-11 IS INADMISSIBLE AND UNTIMELY A. Controlling Commission Precedent Requires That The Board Reject Proposed Contention RK-EC-11 As Inadmissible Under 10 C.F.R. § 2.309(f)(1) Riverkeeper explicitly notes its expectation that RK-EC-11 "will be denied[] pursuant to the Commission's decision on virtually identical motions in other cases."

23 Riverkeeper, in other words, acknowledges that the Commission's decisions in CLI-15-11, CLI-15-12, and CLI-15-15 are binding on this Board and similarly require the denial of RK-EC-11. For example, in the Callaway license renewal proceeding, the Commission, in CLI-15-11, reject ed an essentially identical "placeholder" contention as inadmissible because "it impermissibly challenges an agency

20 See Crow Butte Res., Inc. (License Renewal for the In Situ Leach Facility, Crawford, Neb.), LBP-15-11, 81 NRC __, __ (slip op. at 7) (Mar. 16, 2015), petitions for interlocutory review denied, CLI-15-17, 82 NRC __ (slip op. at 2, 20) (Aug. 6, 2015).

21 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 493 n.70 (2012) (emphasis in original); see also id. ("We did not suggest that it is appropriate to file amended contentions only to raise claims that are not based on genuinely new information.") (emphasis added); Phila. Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 69 (1983) (The finding of good cause for late-filing of new or amended contentions is related to the "total previous unavailability of information.").

22 See Crow Butte

, LBP-15-11, 81 NRC at ___ (slip op. at 21) ("New contentions cannot be based on previously available information.");

id. at 34 ("Intervenors do not explain how the EA [environmental assessment] introduces new or materially different information from the LRA [license renewal application]. Indeed, Intervenors state that their asserted defects with the EA were 'carried forward' from the LRA. . . . Because it is not based on new information, EA Contention 8 is inadmissible as untimely."); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-15-1, 81 NRC __ (slip op. at 20-21) (Jan. 15, 2015) (denying motion to amend and supplement a contention because the applicant document on which it purportedly was based contained "no new or materially different information"); Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 53 (2010) ("We agree with the Board that [the intervenor] has simply rehashed old arguments in Contention 2C . . . .").

23 Motion at 2.

7regulation and is therefore outside the scope of this individual licensing proceeding."

24 It also found that none of the contention's bases pertained specifically to the Callaway license renewal application, and that the contention therefore failed to provide sufficient information to demonstrate a genuine dispute with the applicant on a material issue.25 Importantly, the Commission amplified on its ruling, making several ke y observations that are directly applicable to Riverkeeper and proposed contention RK-EC-11: In [petitioner's] view, its "placeholder contention" is "the only procedural means" available for ensuring that any court decision resulting from the pending appeal of the Continued Storage Rule and GEIS will be applied to the Callaway license renewal matte

r. However, [the petitioner]

cannot litigate the Continued St orage Rule and GEIS here. We addressed the environmental impacts of conti nued storage generically, via the rulemaking process, in accordance w ith NEPA and general principles of administrative law. [The petiti oner] had-and took advantage of-the opportunity to provide comments on th e proposed rule and draft GEIS.

Now that the rule has been adopted, [t he petitioner] has sought review of the rule and GEIS in the appropriate ve nue, the court of appeals. Absent a successful petition that the rule should be waived in accordance with 10 C.F.R. § 2.335, [the petitioner's] cha llenges to the Continued Storage Rule and GEIS are appropriately brought before the court of appeals. Should the D.C. Circuit find any infirmities in the Continued Storage Rule or GEIS, we would take appropriate ac tion consistent with the court's direction. In the meantime, however, admission of a "placeholder" contention is not necessary to ensure that [the petitioner's] challenges to the Continued Storage Rule and GE IS receive a full and fair airing

. 26 In the Fermi combined operating license ("COL") proceeding, the Commission rejected another "placeholder" contention filed by a petitioner in anticipation of the D.C. Circuit's decision on the various judicial challenges to the Continued Storage Rule.

27 The Commission, in CLI-15-12, rejected the contention for the same reasons set forth in its Callaway decision.

28 24 Callaway, CLI-15-11, 81 NRC at 549.

25 See id. 26 Id. at 549-50 (internal footnotes and citations omitted) (emphasis added).

27 Fermi, CLI-15-12, 81 NRC at 553-54.

28 See id.

8 Finally, in CLI-15-15, the Commission denied placeholder contentions filed by petitioners in nine separate operating license, COL, and license renewal proceedings.

29 The Commission cited the petitioners' acknowledgment that the proposed contentions were "substantively identical" to those filed in the Callaway and Fermi proceedings and, accordingly, denied their admission for the reasons set forth in CLI-15-11 and CLI-15-12.

30 The above-cited Commission decisions compel the same result here-denial of proposed contention RK-EC-11. Like the "placeholder" contentions rejected in the Callaway, Fermi, and numerous other proceedings, RK-EC-11 impermi ssibly challenges an agency regulation and generic NRC determinations and, thus, is outsi de the scope of this plant-specific licensing proceeding. This is evidenced by Riverkeeper's allegations that: (1) the Continued Storage Rule GEIS is inadequate to support IP2 and IP3 license renewal, 31 and (2) the environmental findings in the Continued Storage Rule and the GEIS are unsupported and legally deficient.

32 Moreover, as putative support for its contention, Riverkeeper relies on its comments (including declarations attached thereto) on the proposed Con tinued Storage Rule and draft GEIS.

33 Furthermore, Riverkeeper, which does not differentiate RK-EC-11 from previously-rejected placeholder contentions, fails to specifically challenge any litigable aspect of Entergy's LRA or the Staff's Draft Supplement. Accordingly, RK-EC-11 fails, at a minimum, to the meet the requirements in 10 C.F.R. § 2.309(f)(1)(iii)-(vi), and must be rejected for the same reasons set forth in the Commission's controlling Callaway (CLI-15-11) and Fermi (CLI-15-12) decisions.

29 William States Lee III et al., CLI-15-15, slip op. at 2.

30 Id. 31 See Motion at 6.

32 See id. at 2. 7.

33 See id. at 4, 7, 8.

9B. Proposed Contention RK-EC-11 Also Should Be Rejected As Untimely Because It Fails To Meet The Requirements In 10 C.

F.R. § 2.309(f)(2) And

§ 2.309(c)(1) Given that proposed contention RK-EC-11 is patently inadmissible, the Board need not consider its timeliness under 10 C.F.R. § 2.309(f)(2) and § 2.309(c)(1). But even if it does, the Board should find that RK-EC-11 does not satisfy those criteria. First, RK-EC-11 is not based on any new and materially different information, as required by 10 C.F.R. § 2.309(c)(1)(i) and (ii), respectively. The Draft Supplement make s this clear in stating as follows: In CLI-14-08 . . . , the Commissi on held that the revised 10 CFR 51.23 and associated NUREG-2157 cure the de ficiencies identified by the Court in New York v. NRC

, 681 F.3d 471 (D.C. Cir. 2012) and stated that the rule satisfies the NRC's NEPA obliga tions with respect to continued storage for initial, renewed, and amended licenses for reactors

.

As the Commission noted in CLI-14-08, the NRC staff must account for these environmental impacts before fi nalizing its licensing decision in an individual licensing proceeding. To account for these impact determinations, the generic environmental impact determinations made pursuant to the Continued Storage Ru le and the associated NUREG-2157 are deemed incorporated into this final supplemental environmental impact statement (FSEIS) supplement.

34 In other words, the Staff's intention to rely on the generic environmental impact determinations made pursuant to the Continued Storage Rule and the associated GEIS in individual licensing proceedings like this one has been known since at least August 2014. At that time, the Commission approved issuance of the Con tinued Storage Rule and also issued CLI-14-8, wherein it specifically stated that the GEIS impact determinations will inform the decision-makers in individual licensing proceedings of the impacts of continued storage.

35 Riverkeeper

34 Draft Supplement at 118 (emphasis added).

35 See Staff Requirements-SECY-14-0072-Final Rule, Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (Aug. 26, 2014) (ML14237A092); "Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20)," Commission Paper SECY-14-0072 (July 21, 2014) (attaching the GEIS and the draft Final Rule, Continued Storage of Spent Nuclear Fuel (Continued Storage Rule)) (ML14177A482 (package)); Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71 (2014). See also Continued Storage Rule, 79 Fed. Reg. at 56,243 ("Under final 10 CFR 10thus cannot credibly claim that the Draft Supplement's reliance on the GEIS impact determinations is new and materially different information.

Consequently, RK-EC-11 fails to satisfy the criteria in 10 C.F.R.

§ 2.309(c)(1)(i) and (ii). Finally, insofar as RK-EC-11 is ostensibly based on the Draft Supplement, it also fails to satisfy 10 C.F.R. § 2.309(c)(1)(iii). Riverk eeper belatedly filed RK-EC-11 on March 8, 2016-11 weeks after the Staff issued the Draft Supplement.

Riverkeeper seeks to eschew this timeliness issue by arguing that the "new contention satisfies the NRC's standards for timeliness and good cause because it does not depend at all on past information," but instead is tied to a "future" event.36 That argument contravenes Commission rules and precedent, which do not permit placeholder contentions. For example, the Commission has rejected pleadings intended to function as "placeholders" for future pleadings, stating that "our regulations do not contemplate such filings, which are tantamount to impermissible 'notice pleadings.'"

37 The Commission reiterated this principle in Byron/Braidwood, rejecting the use of "placeholder" motions as impermissible under its Rules of Practice and "inconsistent with [its] l ongstanding interest in sound case management and regulatory finality."

38 51.23, the impact determinations in NUREG-2157 are deemed incorporated into an [environmental impact statement] that is prepared to support a licensing action for a power reactor or [independent spent fuel storage installation].").

36 Motion at 8.

37 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009).

38 Exelon Generation Co., LLC (Byron Nuclear Power Station, Units 1 and 2; Braidwood Nuclear Power Station, Units 1 and 2), CLI-14-6, 79 NRC 445, 448 (2014); see also id. at 449 ("Nor do our rules contemplate motions filed as a placeholder for a further motion to be filed later." (internal quotation marks and citation omitted)).

11IV. CONCLUSION For the foregoing reasons, the Board should deny the admission of proposed contention RK-EC-11.

Executed in accord with 10 C.F.R. § 2.304(d)

William B. Glew, Jr., Esq. Entergy Services, Inc.

440 Hamilton Avenue

White Plains, NY 10601

Phone: (914) 272-3360 E-mail: wglew@entergy.com Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

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

Washington, D.C. 20004

Phone: (202) 739-5738

Fax: (202) 739-3001 E-mail: kathryn.sutton@morganlewis.com E-mail: paul.bessette@morganlewis.com

Signed (electronically) by Martin J. O'Neill Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002

Phone: (713) 890-5710

Fax: (713) 890-5001 E-mail: martin.o'neill@morganlewis.com

Counsel for Entergy Nuclear Operations, Inc.

Dated at Washington, DC

this 4th day of April 2016

UNITED STATES OF AMERICA 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) )

) April 4, 2016

ANSWER CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to reso lve the factual and legal issues raised in the Motion for Leave, and that his efforts to resolve the issues have been unsuccessful.

Executed in Accord with 10 C.F.R. § 2.304(d) Paul M. Bessette, Esq. MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: paul.bessette@morganlewis.com

Counsel for Entergy Nuclear Operations, Inc.

DB1/ 87099294 UNITED STATES OF AMERICA 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) )

) April 4, 2016

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised),

I certify that, on this date, copies of "Entergy's Opposition to Riverkeeper's Proposed 'Placeholder' Contention RK-EC-11 Concerning the Continued Storage Rule" were served upon the Electronic Information Exchange (the NRC's E-Filing System) in the above-captioned proceeding. Signed (electronically) by Martin J. O'Neill Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000

Houston, TX 77002

Phone: (713) 890-5710

Fax: (713) 890-5001 E-mail: martin.o'neill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.