ML11208B438
| ML11208B438 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/18/2011 |
| From: | Bessette P, Dennis W, O'Neill M, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-554 | |
| Download: ML11208B438 (7) | |
Text
2 S / DOCKETED July 18, 2011, 2011 (4:30 p.m.)
OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF 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. ) ASLBP No. 07-858-03-LR-BDOI
)
(Indian Point Nuclear Generating Units 2 and 3) )
) July 18, 2011 APPLICANT'S MOTION FOR CLARIFICATION OF LICENSING BOARD ADMISSIBILITY RULINGS ON CONTENTIONS NYS-17B AND NYS-37 Pursuant to 10 C.F.R. § 2.323(a), Entergy Nuclear Operations, Inc. ("Entergy") respectfully requests clarification of the Atomic Safety and Licensing Board's ("Board") July 6, 2011 Order, in which the Board admitted certain amended and new contentions proffered by New York State
("NYS").' Specifically, Entergy seeks clarification of certain statements made by the Board in its admissibility rulings on Consolidated NYS-17B and Consolidated NYS-37.2 Ii LEGAL STANDARD The purpose of a motion for clarification is to explain or clarify something ambiguous or vague, not to alter or amend. Thus, in contrast to a motion for reconsideration, a clarification request does not seek reexamination of the record for the purpose of substantively modifying a decision. In NRC adjudications, a party may seek clarification of a ruling on the scope of an admitted contention.4 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (unpublished) ("July 6, 2011 Board Order").
2 In accordance with 10 C.F.R. § 2.323(b), counsel for Entergy certifies that he made a sincere effort to contact the other parties in this proceeding on July 14, 2011, to explain to them the factual and legal issues raised in this Motion, and to resolve those issues, and he certifies that his efforts have been unsuccessful. NYS stated that it is not opposed to Entergy seeking clarification of the Board's ruling on the subject contentions, but noted its procedural right to file a response to the motion if so compelled. The NRC Staff stated that it does not oppose the motion for clarification.
See United States v. Philip Morris USA. Inc., No. No. 99-2496, 2011 WL 2469733, at *2 (D.D.C. June 22, 2011)
(quoting Resolution Trust Corp. v. KPMG Peat Ma-wick, No. 92-1373, 1993 WL 211555, at *2 (E.D.Pa. June 8, 1993)),
See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 28. 56 NRC 373, 374-384, 388 (2002) (addressing the applicant's request that the Commission clarify its intent, as set forth in a prior Commission order (CLI-02-17), regarding the scope of an admitted contention, and holding that "CLI-02-17 did not broaden or in any respect redefine the scope of the Intervenors' original contention").
II. REQUESTS FOR CLARIFICATION A. Consolidated NYS-17B On January 24, 2011, NYS filed amended contention NYS-17B, 5 in which it asserted that the bases for its previously-admitted contention NYS-17/17A should apply as well to the NRC Staff s Final Supplemental Environmental Impact Statement ("FSEIS") for the Indian Point Units 2 and 3 ("IP2" and "IP3") license renewal application ("LRA"). 6 NYS also asserted that 10 C.F.R. § 51.23(b) should not bar consideration of the environmental impacts of spent fuel storage at Indian Point in this proceeding.7 The Board admitted NYS- 17B to the extent it applies the bases of NYS- 17/17A to the FSEIS instead of the DSEIS. 8 The Board, however, rejected NYS's argument that its proffered new bases are site-specific and exempt from 10 C.F.R. § 51.23(b).9 It stated that because the Commission has specifically barred consideration of the environmental impacts of long-term storage of spent fuel in adjudicatory proceedings, this aspect of NYS-17B is inadmissible.' 0 Specifically, the Board held that
"[t]o argue that the presence of spent fuel itself on the site affects property values is to assert that there is an environmental impact from the presence of spent fuel that must be assessed on a site-specific basis, contradicting the language of the Waste Confidence Rule, 10 C.F.R. § 51.23(b)."l" In the next paragraph, however, the Board included an apparently contradictory statement that the negative effect on property values postulated by NYS associated with the longer-term presence of spent fuel "is not an environmental impact barred by the Waste Confidence Rule."' 2 The Board further stated that the See State of New York Motion for Leave to File Timely Amended Bases to Contention 17A (Now to Be Designated Contention 17B) (Jan. 24, 2011) ("Amended Bases Motion"); State of New York Contention 17B (Jan. 24, 2011)
("Contention 17B").
6 See Amended Bases Motion at 2-5.
7 See id. at 3-4.
July 6, 2011 Board Order at 16.
9 Id. at 17.
10 Id. at 18.
I I d. at 17.
1, Id. at 18 (emphasis added).
potential for spent fuel to indefinitely stay on-site is not an environmental impact associated with the spent fuel itself; instead, it is the occupation of the site by "components of IPEC" that has the potential to bring down property values if license renewal is granted.13 Accordingly, the Board appears to have drawn a distinction between the long-term presence on site of spent fuel and other plant components.
Entergy respectfully submits that the statements made on page 18 of the July 6, 2011 Board Order cited above might be misconstrued to permit inquiry into the environmental impacts attributable to the long-term presence or storage of spent fuel.14 Entergy does not believe this to be the intent of the Board's ruling given the Board's explicit recognition in the instant decision and in several prior rulings by this Board and the Commission that contentions relating to the environmental impacts of long-term spent fuel storage are categorically barred by the Waste Confidence Rule.' 5 Nevertheless, to avoid any potential confusion, Entergy seeks confirmation that the Board's reference to "occupation of the site by components of IPEC ... if license renewal is granted" on page 18 of the July 6, 2011 Board Order does not include consideration of environmental impacts of long-term on-site spent fuel storage.
B. Consolidated NYS-37 NYS-37 relates to the FSEIS discussion of energy alternatives. The Board admitted NYS-37 in part, but only to the extent it updated and superseded NYS-9/33 and challenged the adequacy of the FSEIS responses to public comments on the DSEIS concerning the environmental impacts of the no-action alterative. 16 The Board stated that it was not authorizing a broad-ranged inquiry into alternative scenarios and the need for power, because such an inquiry is precluded by NRC regulations and prior 13 Id.
14 Entergy is referring, in particular, to the first full paragraph on page 18 of the July 6, 2011 Board Order, the first sentence of which states: "Nevertheless, the negative effect on property values predicted by Dr. Sheppard that would result from the longer-term presence of spent fuel anticipated by .the updated Waste Confidence Rule is not an environmental impact barred by the Waste Confidence Rule."
15 See, e.g., July 6, 2011 Board Order at 17-18; Licensing Board Memorandum and Order (Denying Entergy's Motion for the Summary Disposition of NYS Contention 17/17A) at 13 (Apr. 22, 2010) (unpublished) (agreeing with Entergy that NEPA "contentions relating to on-site spent fuel storage are outside the scope of this proceeding due to the Waste Confidence Rule (codified as 10 C.F.R. § 51.23)").
16 July 6, 2011 Board Order at 34.
Board rulings in this proceeding.1 7 In associated footnote 156, the Board also found that "New York's concerns About the FSEIS's analysis of certain non-fossil alternativesuntimely, given that these issues go beyond those raised by New York in its contentions on the DSEIS and New York could have raised 18 them earlier."'
It is not clear to Entergy which of New York's "concerns" about the FSEIS's analysis of "certain non-fossil alternatives" the Board has excluded as untimely. Therefore, Entergy seeks clarification of the meaning andintent of footnote 156 of the July 6, 2011 Board Order to avoid any confusion about the proper scope of ConsolidatedNYS-37.
III. CONCLUSION Entergy respectfully requests that the Board clarify the scope of Consolidated NYS- I 7B and Consolidated NYS-37 to address the issues discussed above.
Respectfully submitted, William C. Dennis, Esq. Kathryn M. Sutton, Esq.
Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq.
440 Hamilton Avenue Martin J. O'Neill, Esq.
White Plains, NY 10601 MORGAN, LEWIS & BOCKIUS LLP Phone: (914) 272-3202 1111 Pennsylvania Avenue, N.W.
Fax: (914) 272-3205 Washington, D.C. 20004 E-mail: wdennis@entergy.com Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
Dated in Washington, D.C.
this 18th day of July 2011 Id. at 35 (citing 10 C.F.R. § 51.95(c)(2); Order (Ruling on New York State's New and Amended Contentions) at 11-13 (June 16, 2009); Entergv Nuclear Operations,Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 92-93 (2008)),
i' Id. n. 156 (emphasis added).
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)
_____________________________) Julyl18, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of the "Applicant's Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-17B and NYS-37" were served this 18th day of July, 2011, upon the persons listed below, by first class mail and e-mail as shown below.
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.
U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: Kaye.Lathrop@nrc. gov)
(E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Office of the Secretary*
Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)
Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Katherine Tucker, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
(E-mail: Katie.Tucker@nrc.gov)
Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.
Beth N. Mizuno, Esq. Assistant County Attorney David E. Roth, Esq. Office of Robert F. Meehan, Esq.
Brian G. Harris, Esq. Westchester County Attorney Andrea Z. Jones, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: O-15D21 (E-mail: MJRI @westchestergov.com)
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Beth.Mizuno@nrc.gov)
(E-mail: david.roth@nrc.gov)
(E-mail: brian.harris@nrc.gov)
(E-mail: andrea.jones@nrc.gov)
Manna Jo Greene Thomas F. Wood, Esq.
Stephen C. Filler Daniel Riesel, Esq.
Hudson River Sloop Clearwater, Inc. Victoria Shiah, Esq.
724 Wolcott Ave. Sive, Paget & Riesel, P.C.
Beacon, NY 12508 460 Park Avenue (E-mail: mannajo@clearwater.org) New York, NY 10022 (E-mail: stephenfiller@grnail.com) (E-mail: driesel@sprlaw.com)
(E-mail: vshiah@sprlaw.com)
Joan Leary Matthews, Esq. John Louis Parker, Esq.
Associate Commissioner Office of General Counsel, Region 3 Hearings and Mediation Services NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Corners Road Environmental Conservation New Paltz, New York 12561-1620 625 Broadway, 14th Floor (E-mail: jlparker@gw.dec.state.ny.us)
Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)
John J. Sipos, Esq. Michael J. Delaney, Esq.
Charlie Donaldson Esq. Vice President -Energy Department Assistant Attorneys General New York City Economic Development Office of the Attorney General Corporation (NYCDEC) of the State of New York 110 William Street New York, NY 10038 The Capitol mdelaney@nycedc.com Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)
Phillip Musegaas, Esq. Daniel E. O'Neill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.
Riverkeeper, Inc. Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue (E-mail: phillip@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: dbrancato@riverkeeper.org) (E-mail: vob@bestweb.net)
(E-mail: smurray@villageofbuchanan.com)
Robert D. Snook, Esq. Janice A. Dean, Esq.
Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 (E-mail: Janice.Dean@ag.ny.gov)
(E-mail: Robert.Snook@po.state.ct.us)
Original and 2 copies provided to the Office of the Secretary.
e, q Martin J. O'Neill, Esq.
DBI/ 67696123.3