ML12205A361

State of New York'S Answer in Opposition to Entergy'S Motion for Leave to File Sur-Rebuttal Testimony on Consolidated Contention NYS-12C

ML12205A361
Person / Time
Site:	Indian Point
Issue date:	07/23/2012
From:	Sipos J J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23027, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12205A361 (13)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR; 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. July 23, 2012

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STATE OF NEW YORK'S ANSWER IN OPPOSITION TO ENTERGY'S MOTION FOR LEAVE TO FILE SU R-REBUTTAL TESTIMONY ON CONSOLIDATED CONTENTION NYS-12C

Office of the Attorney General for the State of New York

The Capitol

State Street

Albany, New York 12224 iTABLE OF CONTENTS PAGE INTRODUCTION...................................................................................................................

........1

ARGUMENT ......................................................................................................................

............2 A. The State Submitted NUREG/CR-3413, NUREG/CR-5148, and the May 2, 2012 Email Exchange In Dire ct Response to Entergy and NRC Staff's Statements of Position and Pre-filed Testimoy............................................2 B. The State Timely Disclosed NUREG/CR-3413, NUREG/CR-5148, and the May 2, 2012 Email Exchange............................................................................5

C. NUREG/CR-3413, NUREG/CR-5148, and the May 2, 2012 Email Exchange Can Be Addressed During the October 2012 Hearing............................6

CONCLUSION.....................................................................................................................

...........7

1 In accordance with 10 C.F.R. § 2.323(c), the State of New York State hereby submits this answer in opposition to Entergy's July 12, 2012 motion seeking leave to file written sur-rebuttal testimony by August 13, 2012, concerning the State's admitted consolidated contentions 12, 12A, 12B, and 12C (collectively "Consolidated Contention NYS-12C" or "NYS-12C").

INTRODUCTION Throughout this proceeding the State has sought to ensure a transparent process where all relevant issues are addressed. At times, the State has had to seek this Board's assistance to require other parties disclose material to which the State, and the public, has a right.

1 Consistent with that commitment, the State notes that an alternative to Entergy's request exists: the matter could be addressed by the parties' witne sses at the evidentia ry hearing. As is explained in both the State's Revised Statement of Position (NYS000419) ("NYS Revised SOP") and the Pre-filed Rebuttal Testimony of Dr. François Lemay of International Safety Research ("ISR") (NYS000420) ("Lemay Rebuttal Test.") for NYS-12C, in the course of developing a response to Entergy and NRC Staff's arguments, the State's experts discovered a site-specific case study commissioned by the NRC to estimate the costs associated with a severe accident at Indian Point, "NUREG/CR-5148 Property-Related Costs of Decontamination" (Feb.

1990) (NYS000424).

See NYS Revised SOP at 14-16; Lemay Rebuttal Test. at 26-28. Notably, Entergy and the federal government (including N RC Staff and the national laboratories) did not disclose this document.

Entergy now requests a lengthy opportunity to prepare and file sur-rebuttal pre-filed

1 See, e.g., State of New York Motion to Compel NRC Staff to Produce Documents Relied Upon in Staff's Final Supplemental Environmental Impact Statement (Apr. 22, 2011) (ML11132A149); State of New York's Motion to Compel NRC Staff to Produce the MACCS2 Code Absent a Fee in Compliance with the National Environmental Policy Act ("NEPA") and NRC Disclosure Regulations (Jan. 15, 2010) (ML100210550).

2testimony to discuss NUREG/CR-5148 along with two other State exhibits: NUREG/CR-3413 (NYS000425) and a May 2, 2012 email exchange betw een ISR and Dr. J. Tawil, the author of NUREG/CR-5148 and NUREG/CR-3413 (NYS000426). The State, however, properly submitted those exhibits as rebuttal evidence in direct response to arguments in Entergy and NRC Staff's Statements of Position and Pre-filed Testimony on NYS-12C. The filing of additional pre-filed written testimony by Entergy and/or NRC Staff could require, at a minimum, an adjustment of the deadline to submit proposed cross-examination on this Track 1 contention, which is slated for the October 2012 hearing dates.

2 Entergy presents no credible argument to support such changes in the procedural schedule set by the Board because any issues related to the State's exhibits could be a ddressed at the hearing itself.

If, however, the Board grants Entergy's motion, the State respectfully requests that it be afforded an equal amount of time to prepare pre-filed testimony to respond to Entergy and NRC Staff's additional filings. ARGUMENT A. The State Submitted NUREG/CR-3413, NUREG/CR-5148, and the May 2, 2012 Email Exchange In Direct Response to Entergy and NRC Staff's Statements of Position and Pre-filed Testimony Entergy incorrectly argues that the State has presented "new arguments and evidence that expand the scope of the arguments set forth in their direct testimony, and to which Entergy has not had a fair opportunity to respond." Applican ts' Motion for Leave to F ile Surrebuttal Test. on Consolidated Contention NYS-12C at 1 (Jul. 12, 2012) ("Entergy's Mot."). Instead, the State's Revised SOP and Rebuttal Testimony responds directly to Entergy and NRC Staff's arguments

2 "NRC Staff counsel stated that the Staff doe s not oppose Entergy's Motion, and that if the Board grants the Motion, then the Staff would lik e to have the opportunity to file surrebuttal testimony and a revised position statement in res ponse to New York's filing as well, should the Staff decide to do so, at the same time as Entergy." Applicants' Motion for Leave to File Surrebuttal Testimony on Consolidated Contenti on NYS-12C at 7 (Jul. 12, 2012) ("Entergy's Mot.").

3 that using NUREG-1150, and thus Sample Problem A, is reasonable under NEPA. In its initial statement of position and pre-filed testimony, th e State argued that it was unreasonable under NEPA for Entergy and NRC Staff to rely upon Sample Problem A values, developed for the Surry site in rural Virginia, instead of developing si te-specific inputs to estimate the costs associate with a severe accident used in the SAMA analysis for Indian Point.

See generally NYS Initial Statement of Position at 12-33 (NYS000240) ("NYS Initial SOP"). In its Statement of Position and Pre-filed Testimony, Entergy argued that using Sample Problem A was reasonable because its values were sourced from NUREG-1150 and, thus, have "have a long-established and appropriate technical basis, are widely accepted within the PRA community, and continue to be used today in PRAs and SAMA analyses."

3 Entergy faulted the State for "not acknowledg[ing] the source and pedi gree of the inputs used by Entergy." Entergy Test. at A76. The testimony submitted by NRC Staff makes a similar claim.

4 In researching Entergy and NRC's "pedigree" argument about NUREG-1150, the State's experts honed in on a document, "NUREG/CR-3413 Off-Site Consequences of Radiological Accidents: Methods, Costs and Schedules for Decontamination" (NYS000425), which is cited in NUREG-1150. NYS Revised SOP at 14; Lema y Rebuttal Test. at 26, 28. NUREG/CR-3413 describes a database and computer program calle d DECON developed by an NRC contractor to conduct a decontamination analysis of a large, radiologically contaminated area.

5 Id. ISR 3 Entergy's Statement of Position Regardi ng Consolidated Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis) (Mar. 30, 2012) (ENT000449) ("Entergy SOP") at

29. See also Entergy SOP at 5; Testimony of Entergy Experts Lori Potts, Kevin O'Kula, and Grant Teagarden on NYS-12C (ENT000450) ("En tergy Test.") at A26, A35, A72, A76, A78, A160. 4 See Testimony of NRC Staff Experts Nathan Bixl er, S. Tina Gosh, Joseph A. Jones, and Donald Harrison Concerning NYS 12/16 (NRC 000041) ("Staff Test.") at A39 ("NUREG-1150

-was subjected to an extensive peer review and public comment.").

5 DECON was designed to be used with CRAC2, a predecessor to the MACCS2 code, and

4 contacted one of NUREG/CR-3413's authors, Dr. J. Tawil, via email on May 2, 2012.

Id. The email exchange between Dr. Taw il and ISR revealed that NRC Staff conducted a site-specific study at Indian Point and was concerned about the results. Dr. Tawil wrote: I think the primary difficulty was that my last project for the NRC was to characterize the off-site consequences of reactor accidents . . . for three reactor sites, one of which was Indian Point . . . . I think the NRC was a little shocked at the magnitude of the off-site consequences of an SST-5 at Indian Point and decided not to publish the report.

May 2, 2012 Email Exchange between ISR a nd J. Tawil (NYS000426) (emphasis added).

6 In its revised SOP, the State argued th at NUREG/CR-5148 shows that NRC has actually conducted a site-specific analysis of the decontamination costs associated with a severe accident at Indian Point, without using NUREG-1150 values, and, therefore, without relying upon Sample Problem A. NYS Revised SOP at 15. Thus , NUREG/CR-5148 shows that a site-specific analysis was not only required under NEPA and NRC's regulations, but eminently possible and had been completed in c onjunction with NUREG/CR-5148.

See Limerick Ecology Action, Inc.

v. N.R.C., 869 F.2d at 729-31 (3d Cir. 1989) (holding that NEPA requires NRC to examine, on a site-specific basis, the environm ental effects of significant acciden ts at nuclear power plants). This directly responds to and rebuts Entergy and NRC Staff's arguments.

appears to be similar to CONDO, which was one of the methodologies that ISR previously described as one of several bases that could be used to calculate site-specific costs (NYS000250) and was also one of the methodologies that Entergy and N RC Staff criticized ISR for using. Lemay Rebuttal Test. at 26, 28.

6 Entergy states, in a footnote, that "[a]ny statements made by Dr. Tawil in e-mail communications with NYS's consultant are hear say, the reliability of which has not been established by NYS." Entergy' s Mot. at 4, n.17. Even if the email is hearsay, NRC has implemented a "long established rule that hearsay is generally admissible in NRC proceedings."

See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C. 397, 411-12 (1976);

Phila. Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 N.R.C. 273, 279 (1987). The email is admissibl e in this proceeding under NRC standards because it is reliable, relevant, material, and not repetitious under 10 C.F.R. § 2.337(a).

5B. The State Timely Disclosed NUREG/CR-3413, NUREG/CR-5148, and the May 2, 2012 Email Exchange Entergy's motion seeks to deflect ques tions about why it di d not disclose the NUREG/CR-5148 Indian Point site-specific study by claiming that "[i]t is not clear why NYS did not disclose and rely on [N UREG/CR-5148] in its earlier subm ission" (Entergy Mot. at 4).

Contrary to its apparent confus ion, Entergy well knows that the State explained th at it did not know of NUREG/CR-5148 until May 2012. The State provided an explanation of how and when it discovered NUREG/CR-5148 in its revised statement of position, rebuttal testimony, and even during consultation with Entergy on this very motion for sur-rebu ttal-before Entergy presented it. In sum, after ISR showed the State its May 2, 2012 email exchange with Dr. Tawil, the State located a copy of the site-specific study that Dr. Tawil authored and referred to in his email:

NUREG/CR-5148. NYS Revised SOP at 14. The State timely disclosed both the May 2, 2012 email exchange and NUREG/CR-5148 in its May 2012 disclosures-the same month the email exchange took place and NUREG/CR-5148 was discovered. NUREG/CR-3413 had been disclosed by the State back on March 31, 2011. Entergy requested copy of NUREG/CR-5148 from the State on June 5, 2012, and the State sent Entergy copy of it, by CD, on June 7, 2012. Therefore, Entergy had a copy of NUREG/CR-5148 for at least 20 days before State submitted its revised statement of position and rebuttal testimony on June 29. Thus, Entergy seeks to have 65 days from the receipt of NUREG/CR-5148 in this proceeding and 45 days from the receipt of Dr. Lemay's pre-filed testimony to prepare additional testimony. NRC has had the document for 22 years. NUREG/CR-5148 was requested and authorized by the NRC and funded by the U.S. taxpayers. It has a formal a "NUREG/CR" number and was preserved by NRC in its microf iche collection. Although the State's revised SOP identifies the document being "circulated in final draft form" (NYS Revised SOP at 14),

6upon further examination it appears that the docum ent is not a draft. There are no "draft" markings or any other designation to indicate that NUR EG/CR-5148 is a draft. If any party is prejudiced by the late disclosure of this document, it is the State. C. NUREG/CR-3413, NUREG/CR-5148, and the May 2, 2012 Email Exchange Can Be Addressed During the October 2012 Hearing If the Board grants Entergy's request that it have until August 13, 2012 to file sur-rebuttal testimony, 7 fairness dictates that the State should be afforded a similar amount of time to file its own sur-rebuttal testimony to any additional testimony proffered by Entergy and NRC Staff. In addition, the August 29, 2012 deadline for cross-examination issue submissions may need to be extended. Affording the State an equal opportuni ty for sur-rebuttal is especially important because Entergy has indicated it will likely broaden the scope of the limited arguments the State

raised with respect to NUREG/CR-5148 and "may include the methodology used by the [NUREG/CR-5148]'s authors and how they applied it to the Indian Point s ite; the interface with the CRAC2 code; the types of cost estimated; and how those cost types compare with the MACCS2-based offsite economic costs applied in a SAMA analysis." Entergy's Mot. 6. These topics go well beyond the State's testimony and arguments on NUREG/CR-5148, which are summarized in A. above.

Because the States arguments with respect to NUREG/CR-5148 are li mited to directly responding the Entergy and NRC Staff's arguments, any relevant issues related to NUREG/CR-5148 can be adequately address at the hearing by Entergy submitting proposed cross-

7 As noted, Entergy's proposed August 13 date for submission of pre-filed testimony is 65 days from when Entergy received NUREG/CR-5148 and 45 days from when Entergy received the Pre-filed Rebuttal Testimony of Dr. Lemay and the State's Revised Statement of Position (June 29, 2012).

7examination for the State's witnesses.

8 Entergy has failed to show why written sur-rebuttal is necessary and, therefore, its motion should be denied. CONCLUSION For the above reasons Entergy's motion fo r leave to file sur-rebuttal testimony on Consolidated Contention NYS-12C should be denied. If, however, the Board grants Entergy's motion, the State respectfully reque sts that it be afforded an equal amount of time to prepare pre-filed testimony to respond to Entergy and NRC Staff's additional filings.

Respectfully submitted, Signed (electronically) by Kathryn M. Liberatore Assistant Attorney General John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12227 (518) 402-2251

Dated: July 23, 2012

8 In other contexts, boards have allowed live surrebuttal testimony at hearings.

See In the Matter of Louisiana Energy Servs., L.P. (Nat'l Enrichment Facility), 63 N.R.C. 241, 270-271 (2006) ("[T]he Board and the parties agreed that the part ies would litigate the is sues raised by [an] amended contention . . . to the extent possible through oral testimony (in the form of redirect/surrebuttal and cross-examination) by their respective witnesses/witness panels

scheduled to testify . . . .").

Certificate Pursuant to 10 C.F.R. § 2.323 In accordance with the Board's Scheduling Order of July 1, 2010 (at 8-9) and 10 C.F.R. § 2.323(b), the undersigned counsel he reby certifies that counsel for the State of New York participated in discussions initiated by Enter gy Nuclear Operations, In

c. ("Entergy" or the "movant"), with the movant and NRC Staff, con cerning Entergy's Motion for Leave to File Sur-rebuttal Testimony on Consolidated Contention NYS-12C, filed on July 12, 2012 in this matter, and has made a sincere effort to make themselves available to listen and respond to the movant and NRC Staff, and to resolve the factual and legal issues raised in the motions. The State of New York's efforts to resolve the issues have been unsuccessful.

Signed (electronically) by Kathryn M. Liberatore Assistant Attorney General John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12227 (518) 402-2251 July 23, 2012

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR; 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. July 23, 2012

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x CERTIFICATE OF SERVICE I hereby certify that on July 23, 2012, copies of the State of New York's Answer to Entergy's Motion for Leave to File Sur-rebuttal Testimony on Consolidated Contention NYS-12C were served electronically via the Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel

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

11545 Rockville Pike

Rockville, MD 20852-2738

Lawrence.McDade@nrc.gov

Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel

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

11545 Rockville Pike

Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov

Michael F. Kennedy Administrative Judge Atomic Safety and Licensing Board Panel

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

11545 Rockville Pike

Rockville, MD 20852-2738

Michael.Kennedy@nrc.gov

Atomic Safety and Licensing Board Panel

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

11545 Rockville Pike

Rockville, MD 20852-2738

2Shelbie Lewman, Esq. Law Clerk Anne Siarnacki, Esq., Law Clerk Atomic Safety and Licensing Board Panel

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

11545 Rockville Pike

Rockville, MD 20852-2738 Shelbie.Lewman@nrc.gov

Anne.Siarnacki@nrc.gov

Office of Commission Appellate

Adjudication

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

11555 Rockville Pike

Rockville, MD 20852-2738 ocaamail@nrc.gov

Office of the Secretary Attn: Rulemaking and Adjudications Staff

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

11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov

Sherwin E. Turk, Esq.

David E. Roth, Esq.

Beth N. Mizuno, Esq.

Brian G. Harris, Esq.

Anita Ghosh, Esq.

Office of the General Counsel

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

11555 Rockville Pike

Rockville, MD 20852-2738

sherwin.turk@nrc.gov

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

brian.harris@nrc.gov

anita.ghosh@nrc.gov

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Jonathan Rund, Esq.

Raphael Kuyler, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW

Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com jrund@morganlewis.com rkuyler@morganlewis.com

Martin J. O'Neill, Esq.

Morgan, Lewis & Bockius LLP

Suite 4000

1000 Louisiana Street

Houston, TX 77002 martin.o'neill@morganlewis.com

Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109 ezoli@goodwinprocter.com

William C. Dennis, Esq.

Assistant General Counsel

Entergy Nuclear Operations, Inc.

440 Hamilton Avenue

White Plains, NY 10601 wdennis@entergy.com

Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General

State of Connecticut 55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

robert.snook@ct.gov

3Melissa-Jean Rotini, Esq.

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

148 Martine Avenue, 6th Floor

White Plains, NY 10601 MJR1@westchestergov.com

Daniel E. O'Neill, Mayor James Seirmarco, M.S.

Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298

vob@bestweb.net

Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Victoria S. Treanor, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com

Michael J. Delaney, Esq. Director Energy Regulatory Affairs NYC Department of Environmental

Protection

59-17 Junction Boulevard

Flushing, NY 11373

(718) 595-3982

mdelaney@dep.nyc.gov

Dated at New York, New York

this 23rd day of July 2012

Manna Jo Greene, Director Karla Raimundi, Environmental Justice

Associate Stephen Filler, Esq., Board Member

Hudson River Sloop Clearwater, Inc.

724 Wolcott Avenue

Beacon, NY 12508 Mannajo@clearwater.org

karla@clearwater.org stephenfiller@gmail.com

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562

phillip@riverkeeper.org dbrancato@riverkeeper.org

Signed (electronically) by

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Kathryn M. Liberatore Assistant Attorney General State of New York

(212) 416-8482