ML111240437
| ML111240437 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/18/2011 |
| From: | Sipos J State of NY, Office of the Attorney General |
| To: | NRC/SECY |
| SECYRAS | |
| References | |
| Docket 50-247-LR, Docket 50-286-LR, RAS E-496 | |
| Download: ML111240437 (25) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
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. March 18, 2011
x
STATE OF NEW YORK'S COMBINED REPLY TO NRC STAFF AND ENTERGY'S ANSWERS TO CONTENTION 12-C CONCERNING NRC STAFF'S DECEMBER 2010 FINAL ENVIRONMENTAL IMPACT STATEMENT AND THE UNDERESTIMATION OF DECONTAMINATION AND CLEAN UP COSTS ASSOCIATED WITH A SEVERE REACTOR ACCIDENT IN THE NEW YORK METROPOLITAN AREA
Office of the Attorney General for the State of New York
The Capitol
State Street
Albany, New York 12224
TABLE OF CONTENTS Page i TABLE OF AUTHORITIES..........................................................................................................i i
SUMMARY
OF ARGUMENT.......................................................................................................1
ARGUMENT ......................................................................................................................
............4
I. NRC STAFF'S OBJECTIONS LACK MERIT......................................................4
II. THE FSEIS IMPROPERLY CITES SANDIA ANALYSIS THAT STAFF HAS NOT DISCLOSED...............................................................12
III. ENTERGY PROVIDES NO BASIS TO PREJUDGE OR DISMISS CONTENTION 12-C.............................................................................................13
CONCLUSION.....................................................................................................................
.........17
TABLE OF AUTHORITIES Page(s) ii Federal Court Decisions Andrus v. Sierra Club , 442 U.S. 347 (1978)...........................................................................................................
..5 Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission , 869 F.2d 719 (3d Cir. 1989).................................................................................................6
Marsh v. Oregon Natural Resources Council , 490 U.S. 360 (1989)...........................................................................................................
..5 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)............................................................................................................
.18 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)...........................................................................................................
..5 State of N.J., Dept. of Environmental Protection and Energy v.
Long Island Power Authority , 30 F.3d 403 (3d Cir. 1994).............................................................................................5 n.3
Utahns for Better Transp. v. U.S. Dept. of Transp
., 305 F.3d 1152 (10th Cir. 2002).....................................................................................5 n.3
Federal Statutes Administrative Procedure Act (APA) 5 U.S.C. §§ 701-706........................................................................................................2, 6 National Environmental Policy Act (NEPA) 42 U.S.C. § 4321-4370f.............................................................................................
passim Federal Administrative Agency Regulations 10 C.F.R. § 2.1202(b)(3).......................................................................................................
.........12
10 C.F.R. § 2.3(a).............................................................................................................
..............12
10 C.F.R. § 2.309(f)(1)........................................................................................................
.......2,13
10 C.F.R. § 2.309(f)(2)........................................................................................................
...2,3,8,9
10 C.F.R. § 2.336(a)(2)(i).....................................................................................................
.........12 TABLE OF AUTHORITIES Page(s) iii 10 C.F.R. § 2.336(b)(3)........................................................................................................
..........12
10 C.F.R. Part 51..............................................................................................................
......passim 10 C.F.R. § 51.90..............................................................................................................
............7,8
10 C.F.R. § 51.91(a)(1)........................................................................................................
.......3,11
10 C.F.R. § 51.91(b)(3)........................................................................................................
.......3,11
10 C.F.R. § 2.336(b)(3)........................................................................................................
..........12
40 C.F.R. § 1500-5018..........................................................................................................
.passim 40 C.F.R. § 1503.4.............................................................................................................
..............8
Federal Register Notices 42 Fed. Reg. 26967 (May 25, 1977), Executive Order No. 11991..................................................5
49 Fed. Reg. 9352 (Mar. 12, 1984), Environmental Protective Regulations for Domestic Licensing and re lated Regulatory Functions and Related Conforming Amendments......................................................................................6
54 Fed. Reg. 33168 (Aug. 11, 1989), Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process.................................................................................................13, 15
69 Fed. Reg. 2182 (Jan. 14, 2004), Changes to Adjudicatory Process; Final Rule, Statement of Considerations.............................................................................4
Nuclear Regulatory Commission Decisions Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), 49 N.R.C. 328 (Apr. 15, 1999)............................................................................................3
Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-10-13, 71 N.R.C. __ (Jun. 30, 2010)...........................................................................6
Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station) CLI-10-11, __ N.R.C. __(Mar. 26, 2010)..........................................................................13
TABLE OF AUTHORITIES Page(s) iv Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station) 62 N.R.C. 813 (Dec. 2, 2005) (quoting Louisiana Energy Serv., LP (National Enrichment Facility) 60 N.R.C. 619 (Dec. 8, 2004)..............................................................................................3 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. Vermont Yankee Nuclear Power Station), 63 N.R.C. 568 (May 25, 2006)........................4
Entergy Nuclear Vermont Yankee , L.L.C. (Vermont Yankee Nuclear Power Station)
ASLB LBP-06-20, Slip Op (Sep. 22, 2006)......................................................................13
Louisiana Energy Services, L.P., (National Enrichment Facility), 60 N.R.C. 619 (Dec. 8, 2004).......................................................................................10,15 Southern Nuclear Operating Co., (Early Site Permit for Vogtle ESP Site), CLI-10-05 (2010 NRC LEXIS 5) (Jan. 7, 2010)..............................................................2,3
Additional Citations NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants ("GEIS") (May 1996) http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/....................13 n.9,16
Reichmuth, et al, Economic Consequences of a Rad/Nuc Attack: Cleanup Standards Significantly Affect Risk , Pacific Northwest Laboratory, Working Together Conference, PNNL-SA-45256 (Apr. 18, 2005)..................................14
SAND96-0957, (May 1996), Site Restoration: Estimation of Attributable Costs from a Plutonium-Dispersal Accident (May 1996)
D.I. Chanin & W.B. Murfin,.........................................................................................10,14
1 A severe accident at Indian Point could result in the release of radiation throughout the New York metropolitan area and have profound economic and environmental consequences.
However, NRC and its predecessor, the Atomic Energy Commission, did not examine the impacts of severe accidents or whether any alternatives could lessen the impact of such accidents when they issued the initial licenses for Indian Point betw een 1956 and 1975. In 1989, a federal court ordered NRC to examine severe accidents in licensing proceedings pursuant to the National Environmental Policy Act ("NEPA"), and seven years later NRC promulgated a regulation implementing that court order and requiring St aff to conduct a Severe Accident Mitigation Alternatives ("SAMA") analysis. There can be no dispute that accurate sc ientific analysis is essential to implementing NEPA and conducting a meaningful analysis of severe accidents. The State of New York contends that Entergy and Staff's analysis of severe accidents is fundamentally flawed because it underestimates the cost to decontaminate and clean up radiation in the New York City metropolitan area.
SUMMARY
OF ARGUMENT Proposed State of New York Contention 12-C extends the previously-admitted NYS Contentions 12, 12-A, and 12-B to include the deficiencies now disclosed in NRC Staff's December 2010 Final Supplemental Environmental Impact Statement ("December 2010 FSEIS") concerning the clean up costs of a severe accident that are examined under the Severe Accident Mitigation Alternatives ("SAMA") analysis that Staff is required to conduct and complete pursuant to NRC's Part 51 regulations and the National Environmental Policy Act ("NEPA"). In the December 2010 FSEIS, NRC Staff, for the first time, commented on the State's concern that
Entergy and NRC Staff used incorrect clean up cost figures. As set fort h in Proposed Contention 12-C, not only does Staff's December 2010 FSEIS contain several material deficiencies 2 concerning clean up costs, but it also explicitly (and improperly) to relies on undisclosed analyses prepared by Sandia Laboratories for NRC Staff. As such, Proposed Contention 12-C is timely and presents a litigable issue under 10 C.F.R. 2.309(f)(1), (2). Staff and Entergy present a mix of arguments to curtail the litigation of this important NEPA issue. Staff does not oppose admission of Proposed Contention 12-C to the extent it extends admitted Contentions 12, 12-A, and 12-B to the FSEIS, but does object, primarily on grounds of timeliness, to references to the Administrative Procedure Act ("APA") and Council on Environmental Quality ("CEQ") regulations and to additional bases that are proposed in response to the FSEIS's attempt to address the c oncerns that underlie Contentions 12, 12-A, and 12-B. Staff's arguments are based on a profound misunderstanding of NEPA and its iterative decisional process, NRC's own Pa rt 51 regulations, and CEQ regula tions. Like Staff, Entergy does not object to the admission of Proposed Cont ention12-C to the extent it applies previously admitted challenges to the ER and the DSEIS to the FSEIS. Entergy Answer at 16-17. However, Entergy also attempts to raise substa ntive disputes with the supporting evidence for Proposed Contention 12-C.
Both Entergy and Staff base their objections to Proposed Contention 12-C on an erroneous analysis of the contention admissibility requirements, e ssentially arguing: (1) that any new or amended contention is not admissible unless it is demonstrably correct; and (2) that adding new supporting evidence for a previously-admitted contention or basis is subject to a timeliness limitation. Well-established NRC precedent refutes both of these arguments. The purpose of the contention pleading require ments is to put the
"[p]arties and licensing boards . . . on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing."
Southern Nuclear Operating Co., (Early Site Permit for 3 Vogtle ESP Site), CLI-10-05 (2010 NRC LEXIS 5, 20-21) (Jan. 7, 2010). Proffered contentions must put "other parties in the proceeding on notice of the petitioners' specific grievances" in order to "give [] them a good idea of the claims they will be either supporting or opposing."
Duke Energy Corp
., (Oconee Nuclear Station, Units 1, 2 and 3) 49 N.R.C. 328, 333 (Apr. 15, 1999). "[A] petitioner must provide some sort of minimal basis indicating the potential validity of the contention." Final Rule, Rules of Practice for Domestic Licensing Proceedings -
Procedural Changes in th e Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989). This minimal basis need not be "an exhaustive list of possible bases, but simply" enough to provide the alleged factual or legal base s in support of th e contention. In the Matter of Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) 62 N.R.C. 813, 825 (Dec. 2, 2005) (quoting Louisiana Energy Serv., LP (National Enrichment Facility), 60 N.R.C. 619, 623 (Dec.
8, 2004)). In addition, when the proffered contention addresses environmental issues, one of the key challenges can focus on compliance with 10 C.F.R. §§ 51.91(a)(1) and (b)(3) and the requirement that the FSEIS address significant information that has been brought to Staff' s attention through comments on the DSEIS and document disclosures in the hearing. In derogatio n of these established principles, Entergy and NRC Staff argue against the admissibility of Pr oposed Contention 12-C because either some of the supporting evidence was availabl e prior to the public ation of the FSEIS and/or Entergy and Staff attorneys disagree with the State's expert, David Chanin, about the meaning or significance of the supporting evidence. Both ignore the obligations of 10 C.F.
R. §§ 51.91(a)(1) and (b)(3).
4 ARGUMENT I. NRC STAFF'S OBJECTIONS LACK MERIT Staff and Entergy both assert that admission of Proposed Contention 12-C hinges on the State's demonstrating compliance with the requirements of 10 C.F.R. §2.309(f)(2)(i
),(ii) and (iii).
However, those provisions are not applicable to Proposed Contention 12-C because it is based on new information contained, for the first time, in the December 2010 FSEIS. In Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), 63 N.R.C. 568 (May 25, 2006) the ASLB confirmed that a new contention, based, as is Proposed Contention 12-C, on new information appearing for the first time in a Staff environmental document, is not subject to any of the requirements of 10 C.F.R. §2.309 (f)(2)(i),(ii) and (iii).
Id. 63 N.R.C. at 572, n.12 ("[n]ew NEPA contentions are not subject to the three conditions specified in (f)(2)(i)-(iii)... [N]ew or amended environmental contentions may be admitted if the petitioner shows that the new or amended contention is based on data or conclusions in the NRC's environmental documents that differ significantly from the data or conclusions in the applicant's documents...").
The new bases in Proposed Contention 12-C directly respond to the new analysis offered - for the first time - in the December 2010 FSEIS that challenges the bases for previously-admitted Contentions 12, 12-A, and 12-B.
1 Moreover, as is apparent from this Board's July 31, 2008, June 19, 2009 and June 30, 2010 decisions that admitted Contentions 12, 12-A, and 12-B, Proposed Contention 12-C satisfies 10 C.F.R.
1 The extent to which the new bases directly challenge the newly offered justification for the SAMA decontamination estimates is well-illustrated in Entergy's An swer at 22-25 where Entergy presents arguments about why Mr. Chanin's analyses either fail to effectively challenge the new FSEIS analysis or are incorrect - arguments that simply underscore the inherent factual nature of this dispute and why the appropriate place for its resolution is in the hearings.
5 §2.309(f)(2)(i),(ii) and (iii).
2 Staff's objection to the State's adding refe rences to CEQ regulations and the federal Administrative Procedure Act (APA) in support of Proposed Contention 12-C is baseless. To begin with, the CEQ promulgated regulations which are binding on all agencies pursuant to Executive Order No. 11991, 42 Fed. Reg. 26967 (1977), and which are entitle d to substantial deference.
Andrus v. Sierra Club , 442 U.S. 347, 358 (1978).
3 The CEQ regulations can come as no surprise to Staff. In previous filings, the State has referenced CEQ regulations in support of earlier versions of Proposed Contention 12-C.
See, e.g., State of New York Combined Reply To Entergy Nuclear Operations, Inc., and NRC Sta ff In Support of Contentions 12-A, 16-A, 17-A, 33, and 34, at 8 (March 31, 2009) (ML090960470), quoting from Marsh v. Oregon Natural Resources Council , 490 U.S. 360 (1989) and its conclusion that:
The CEQ regulations, which we have held are entitled to substantial deference, see Robertson , 490 U.S. at 355-356; Andrus v. Sierra Club , 442 U.S. 347 (1979), impose a duty on all federal agencies to prepare supplements to either draft or final EIS's if there "are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts."
Marsh, 490 U.S. at 372 (further internal citations omitted).
4 In addition, NRC has adopted those
2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing) LBP-08-13 at 82-83, 68 NRC 43 (July 31, 2008) (ML082130436); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) Order (Ruling on New York State's New and Amended Contentions) (June 16, 2009) (ML091670435); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on the Admissibility of New York's New and Amended Contentions 12B, 16B, 35, and 36), LBP-10-13 at 9-10, 71 N.R.C. - (June 30, 2010)(ML101810344); see also Stat e of New York Motion for Leave to File New and Amended Contention 12-C (Feb. 3, 2011) (ML110680212).
3 See also State of N.J., Dept. of Environm ental Protection and Energy v. Long Island Power Authority , 30 F.3d 403 (3d Cir. 1994);
Utahns for Better Transp. v. U.S. Dept. of Transp
., 305 F.3d 1152 (10th Cir. 2002). Staff concedes that it must give CEQ regulations "substantial deference." Staff Answer, at 10, n.25.
Dominion Nuclear North Anna. LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 222 n.21 (Nov. 20, 2007).
4 The State also cited to CEQ regulations wh en it presented its contentions and comments 6 CEQ guidelines that relate to the need to consider comments on the DSEIS and discuss alternatives that New York refe rences in Proposed Contention 12-C.
Limerick Ecology Action v.
NRC, 869 F.2d 719, 727 (3rd Cir. 1989)("The ame nded [NRC] regulations adopt the CEQ guidelines with a few significant exceptions");
see also Environmental Protection Regulations for Domestic Licensing and Related Regulat ory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352 (March 12,1984). Similarl y, this Board has held the APA is applicable to actions taken by Staff in its environmental review.
Entergy Nuclear Operations (Indian Point Units 2 and 3) LBP-10-13 at 5 ("Consistent with the mandate of the Administrative Procedure Act (APA) and NEPA, if properly carried out, the NRC Staff's hard look analysis of all potentially cost beneficial SAMAs under NEPA and Part 51 (not just those that are aging-related) ensures that it has give n proper consideration to all rele vant factors in granting a license renewal"). Thus, the addition of references to CEQ regulations and the APA in Proposed Contention 12-C is only a house-keeping amendment that does not introduce any new concepts or represent a "surprise" to Staff. Staff's objection to additional bases that address Staff and Sandia's newly-developed (but not disclosed) "rationale" for the manner in which the SAMA analysis considers the clean up costs associated with a severe accident is equally without merit.
The core of Staff's objection is that a party is not entitled to amend the bases of its contention to respond to arguments presented by NRC Staff in the FSEIS in opposition to the contention. Staff Answer at 10-11 ("the Staff's
on Staff's December 2008 DSEIS. State of New York's Contentions Concerning NRC Staff's Draft Supplemental Environmental Impact Statement , at 3, 21-22, 39, 41 (February 27, 2009)(ML090690303);
see also State of New York Supplemental Submission Concerning Draft Supplemental Environmental Impact Statement Re garding the License Renewal of Indian Point Units 2 and 3, and Recent Events Including the December 2009 Reanalysis of Severe Accident Mitigation Alternatives Analysis and the Fede ral Government's Decision to Withdraw the Application for Yucca Mountain, at 2, 25 n.6 (March 19, 2010) (ML101120602).
7 evaluation of a party's contentions in the proceeding fails to raise a material issue for litigation" id. at 11). Staff cannot seriously claim that a pa rty is not entitled to respond to new arguments advanced by NRC Staff - wherever they may app ear in a Staff-issued FSEIS publication. Thus, the only question is whether the party should disclo se its response at an early date by amending its contention bases or delay that disclosure until submittal of its pre-filed testimony. Common sense supports the view that early disclosure in the form of amended bases is preferable to delayed disclosure.
The essence of Proposed Contention 12-C is id entical to the essen ce of the previously admitted versions of this Contention -
i.e., the methodology used for calculating the cost of decontamination and clean up following a severe accident, and the results obtained therefrom, are flawed. Specific examples of these flaw s were provided in support of the previously admitted contentions. In the December 2010 FSEIS, for the first time, Staff attempts to respond to these criticisms, relying primarily on as-yet-undisclosed analyses performed by Sandia National Laboratories. Proposed Contention 12-C provides preliminary rebuttals to those responses and as such is a timely response to the newly-stated Staff positions. The fact that some of the references which support thes e rebuttals have been in existence for some time is irrelevant to the issue of timeliness si nce it is not the references, but Staff's December 2010 FSEIS statements, which Staff was obligated to prepar e pursuant to 10 C.F.R.
§ 51.90 , that are new and these rebuttals to the FSEIS could not have been advanced until, and unless, Staff offered some response to the initial bases offered for the earlier admitted versions of Proposed Contention 12.
There is no authority, and Staff cites none, for the proposition that a rebuttal to arguments advanced by Staff for the first time in the December 2010 FSEIS is not timely if it relies, in part, on documents that existed before the FSEIS was published.
8 Staff argues that because Proposed Contention 12-C is supported by some documents that have been in existence for some time, when these documents became known to the State, it should have filed an amended Contention 12. Staff's argument is based on several erroneous assumptions. First, it assumes that new supporting evidence for previously admitted contentions and bases requires contention amendments. That argument, however, does not even apply to safety contentions, much less environmental contentions. Second, it assumes that the NEPA contentions are divorced from the ER, DSEIS, and FSE IS when in fact they are inherently tied to those documents and the publication of those documen ts is what triggers contention obligations. For example, 10 C.F.R. § 2.309(f)(2) specifica lly authorizes new c ontentions based on differences between the ER and DSEIS, regardless of when documents which support the contention were first disclosed to the intervenor. Third, Staff assumes all the documents identified in Proposed Contention 12-C are newly di sclosed. In fact they were disclosed to the parties by the State in its monthly disclosure statements so thei r existence cannot be a "surprise" to Staff.5 Finally, Staff assumes requiring contention amendments every time a new document is discovered by an intervenor will make for a more orderly hearing process. In fact, just the opposite would occur. If every new document triggered the need for an amended contention, the parties and the Board would be inundated with amendment requests, responsive pleadings, replies and the need for decisions. There is no rational reading of NRC Regulations that could produce that irrational result.
In another effort to block Proposed Contention 12-C, Staff seeks to borrow principles concerning AEA safety issues and inject them into the NEPA arena and thereby shield its FSEIS
5 By way of example: the Reichmuth Paper (Entergy Answer Attachment No. 7) was disclosed by the State in Ma rch 2010 (NYS Disclosure 615); th e Luna Paper (Entergy Answer Attachment No. 6) was disclosed by the State in March 2010 (NYS Disclosure 593); the CSNI 9 from challenge. This effort is misguided because NEPA places an unconditional and non-delegable duty upon Staff to conduct a thorough evaluation of environmental issues, evaluate alternatives to the proposed action, and to prepare a Final Environmental Impact Statement. 42 U.S.C. § 4332; 10 C.F.R. § 51.90; 40 C.F.R. § 1503.4.
Staff asserts "it is well established that claims concerning the adequacy of the Staff's eval uations, as distinct from the adequacy of an applicant's LRA, fail to present an admissible contention; nor does the State's interest in disputing the Staff's evaluation of the State's own claims fails to raise a material issue for litigation in this proceeding." Staff Answer at 14 (footnote omitted). However, the proposition asserted by Staff applies to safety reviews by Staff, not to environmental reviews where the core of most contentions is the failure of Staff to comply with NEPA, an obligation uniquely imposed on NRC. To support this claim, Staff, (Staff Answer at 14, n.32), cites to ["] Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) [sic]
6 , CLI-08-23, 68 NRC 461, 482 (2008) ("The focus of the license proceeding must be the sufficiency of the application, not the adequacy of the Staff's review.")," but the proposed contention at issue there challenged Staff's safety review. Moreover, Staff's argument constitutes a direct challenge to a NRC regulation that makes clear that a State may present c ontentions based on Staff's Draft or Final Environmental Impact Statement. That regulation, 10 C.F.R.
§ 2.309(f)(2), states:
On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner may amend those contentions or f ile new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents.
See also Staff Answer at 17-18 and 18, n.38.87-139 document was disclosed by the Stat e in July 2010 (NYS Disclosure 713).
6 The proper case citation for CLI-08-23, which did include the Verm ont Yankee facility, 10 Staff's assertion that in re sponding to new analysis contained in an FSEIS an intervenor may not cite to any document that existed prior to the FSEIS's publica tion, would produce the absurd result that an intervenor must speculate on what Staff might say in a future NEPA decisional document and then present its entire case when it files a contention challenging the applicant's Environmental Report and is prohibited from cha llenging any response to its contention unless the documents relied upon came into existence after the challenged response was disclosed. NRC case law rejects such an absurd result.
See In re La. Energy Servs., L.P., CLI-04-35, 60 N.R.C. 619, 623 (Dec. 8, 2004) ("Unde r our contention rule, intervenors are not being asked to prove their case, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factua l or legal basis to support the contention, and to do so at the outset"). Staff confuses the bases for a conten tion with the evidence that supports the bases.
See Staff Answer at 16-17. The former may be subject to timeliness restricti ons, but the latter are not. Staff also asserts that f ootnote 4 to Paragraph 10 of Pr oposed Contention 12-C should be rejected because "[n]owhere in Contention 12 did the State assert that particles smaller than those involved in the nu clear weapons data should be used and the State fails to identify any place where it had made that assertion." Staff Answer at 15, n.33. Staff ignores the initial and admitted Contention 12 which included Paragraph 5 identifying "small-sized radionuclide particles" as the likely result of a severe ac cident and Paragraph 15 noting that MAACS used large particle sized radionuclides from weapons tests to determine the cost, not the distribution, of radionuclide particle s and citing the Sandia Site Restoration study (SAND96-0957) at 2-9 to 2-10, 5-7, for the proposition that decontaminatio n costs using nuclear weapons explosions are
is to the lead party, Amergen Energy Company, LLC (Oyster Creek Nuclear Generating Station).
11 incorrect for reactor accidents be cause they use large particle ra dionuclides to calculate costs.
New York State Notice of Intention to Participate and Petition to Intervene (November 30, 2007) at 141 and 143.
Staff asserts that the Appendices to the FSEIS which include its analysis of the ER and the portions of the FSEIS that include responses to Contentions 12/12-A/12-B somehow are not all part of the FSEIS and that therefore the Appendices and their analyses and statements are not appropriate subjects for conten tions. Staff Answer at 18-
- 19. Staff ignores 10 C.F.R. § 51.91(a)(1) that requires that pa rt of the FSEIS is "responses to any comments on the draft environmental impact statement or on any supplement to the draft environmental impact statement" as well as the similar obligations impo sed by 10 C.F.R. § 51.91(3)(b). If, as the State alleges, these responses are incorrect or incomplete, they are appropriate subjects for a contention, a contention that could not be filed until after the FSEIS was issued. In objecting to Paragraphs 19-21 of Proposed Contention 12-C bases (Staff Answer at 19-21), Staff asserts that the bases are vague and lack specificity. However, these bases offer a summary of the previous bases, which provide the detail and specificity Staff asserts is missing.
Staff also objects that "New York fails to e xplain why it could not have made any of these generalized claims (regarding the adequacy of the FEIS)" prior to publication of the FSEIS. Staff Answer at 19. In addition to the logical impossibility of meeting th e standard asserted by Staff, Staff also misses the point of these bases insomuch as they are focused on the failure of the FSEIS to comply with specific provisions of NRC regulations requiring in the FSEIS a thorough and competent response to concerns rais ed with regard to the DSEIS. Finally, Staff devotes considerable space (Staff Answer at 20-25) to objecting to the admission of supporting evidence offered by New York for Proposed Contention 12-C. Once 12 again, Staff's argument misses the mark. First, there is no time limitation on when supporting evidence can be provided. Second, there is no re gulatory basis for supporting evidence to be rejected at the contention admissi bility stage. Staff's disagreements with the State's supporting evidence demonstrate that there is a material dispute with regard to the underlying evidence which requires resolution at an evidentiary hearing.
II. THE FSEIS IMPROPERLY CITES SANDIA ANALYSIS THAT STAFF HAS NOT DISCLOSED Staff provided no justification for failing to disclose the work of Sandia National Laboratories that forms the underpinning of Staff's FSEIS statements about severe accident clean up costs. Staff is under an obligation to produce "all documents . . . supporting the NRC staff's review" of the application. 10 C.F.R. § 2.336(b)(3). According to the text of the December 2010 FSEIS, Sandia was used as a consultant to Sta ff to respond to concerns raised by the State with regard to the ER and DSEIS, and the disclosure of Sandia's reports and documents used in preparing the FSEIS should have occurred as part of the routine disclosures made by Staff at the end of each month in which documents became available from Sandia. In addition, now that Staff has become a party to this proceeding, it is subject to the obligations imposed by 10 C.F.R.
§ 2.1202(b)(3) that require Staff, once it chooses to participate in a proceeding, to meet all the "responsibilities of a party" with respect to admitted contentions. Pursuant to 10 C.F.R. § 2.3(a) the specific provision of § 2.1202(b)(3) "governs" over any limita tions on Staff disclosures contained in Subpart C. Thus, as to all admitted contentions, Staff should be complying with
§ 2.336(a)(2)(i) and producing all documents "relevant to the cont entions." The State called this omission to Staff's attention, 7 but Staff's January and Februa ry 2011 disclosures still did not
7 January 31, 2011 letter from AAG Janice Dean to NRC Staff Attorney Sherwin Turk (not yet posted on ADAMS).
13 include Sandia's documents. Staff indicated th at it is continuing to study whether it should produce any Sandia documents.
See Staff Answer at 18, n.38. The State maintains its position that Staff's continuing failure to produce the Sandia analyses and reports is inexcusable.
8 III. ENTERGY PROVIDES NO BASI S TO PREJUDGE OR DISMISS CONTENTION 12-C Entergy places substantial reliance on the Commission's decision in Entergy Nuclear Generation Co., (Pilgrim Nuclear Power Station) CL I-10-11, __N.R.C. __ (March 26, 2010) asserting that it is "[d]irectly relevant here". Entergy Answer at 18. It devotes a number of pages to attacking Mr. Chanin's Report 9 because, it asserts the Report suffers from the same defects that the Commission relied upon in reachi ng its conclusion in CLI-10-11, a case in which the State was not a party. Entergy Answer at 18-22. The central defect in this argument is that, in Pilgrim, the Commission was ruling on the appropr iateness of the ASLB's grant of summary disposition , not on the appropriateness of the denial of the admission of a contention. The widely recognized difference between those two criteria makes the entire argument by Entergy irrelevant. "[A]t the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a su mmary disposition motion."
Rules of Practice for Domestic Licensing Proceedings--Procedural Changes in the Hearing Process , 54 Fed. Reg. 33168, 33171 (August 11, 1989); see also Entergy Nuclear Vermont Yankee , L.L.C. (Vermont Yankee Nuclear Power Station) ASLB LBP-06-20, Slip Op. at 36 (Sep. 22, 2006)("At the contention admission stage, which is a lesser threshold than a merits determination or even a summary disposition
8 Entergy, too, relies on the Sandia work for NRC (Entergy Answer at 22-23), but, again, that federally funded work has not b een shown to the State of New York.
9 D. Chanin, Errors and Omissions in NRC Staff's Economic Cost Estimates of Severe Accident Mitigation Alternatives Analysis C ontained in December 2010 Indian Point Final 14 ruling, the Board's purpose in applying 10 C.F.
R. § 2.309(f)(1) is only to 'ensure that the adjudicatory process is used to address real, c oncrete, specific issues that are appropriate for litigation.' Final Rule, 'Changes to the Ad judicatory Process,' 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)").10 Further, in this proceeding, the State has now submitted a report from Mr. Chanin, one of the authors of the SAND 96-0957 Report, and at this juncture in this proceeding that report simply needs to demonstrate that there are issues to resolve, not to provide the definitive analysis of those issues or provide his final testimony on Propos ed Contention 12-C. Entergy's discussion of the merits of Mr. Chanin's Repor t (Entergy Answer at 22-25), while interesting, does nothing more than demonstrate that Enterg y's lawyers and Mr. Chan in disagree about a number of critical scientific issues and the appropriate interpretation to place on various relevant documents. These differences are intended to be resolved at the evidentiary hearings, not at the contention admissibility stage.
Entergy's attempt to pit its attorney's understanding of the relevant documents addressing cleanup costs for the post-severe a ccident scenario against Mr. Chan in's expert analysis of those same documents, only underscores the inherently factual nature of Entergy's challenge and why resolution of those disputes at this stage of the proceeding is inappropriate. For example Entergy mistakenly claims that the State has not demonstrated a sufficient nexus between radiological
dispersal devices ("RDDs") and the SAMA analysis. Entergy Answer at 19. Entergy's lack of understanding is readily resolved by a cursory review of the Reichmuth Paper, which reveals that one scenario she examined involved an RDD that released Cesium 137 into the atmosphere of the New York City area, Cesium 137 being one of the airborne radiological pollutants of concern
Supplemental Environmental Impact Statem ent (FSEIS), NUREG-1437, Supp. 38 (Feb. 3, 2011).
10 Additionally, Pilgrim involved a pro se petitioner and the State of New York was not a party in that proceeding.
15 and examined by Staff as part of its severe accident analysis.
See Reichmuth, et al Economic Consequences of a Rad/Nuc Attack: Cle anup Standards Significantly Affect Risk, Pacific Northwest Laboratory, Working Together Confer ence, PNNL-SA-45256 at 2, 5, 9, 12 (Figure 9) (Apr. 18, 2005). Moreover, Reichmuth observes that it could be extremely expensive to clean up cesium 137 in the New York City area. Id. at 11-12 Entergy's discussion of air transport modeling (Entergy Answer at 22) ignores a central point of the State's contention: Entergy and NRC staff used unreasonably low clean up costs when conducting the SAMA/MACCS2 alternatives analysis. Entergy also asserts that Proposed Contention 12-C is defective because it does not contain a challenge to all the arguments made in the FSEIS in support of Entergy's cleanup cost estimates. Entergy Answer at 22-25. The premise of Entergy's argument, that to produce an admissible contention a party must provide all of its factual analyses in support of its bases for the contention, has been routinely rejected by the Commission.
See, e.g., Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process , 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) and Louisiana Energy Serv., LP (National Enrichment Facility), 60 N.R.C. 619, 623 (Dec. 8, 2004)).
Entergy mistakenly claims that the two Indian Point reactors are 35 miles away from New York City. Entergy Answer at 20. Contra ry to Entergy's understanding, the reactors are 24 miles from the northern boundary of the Bronx, on e of New York City's five boroughs. The reactors are approximately 37 miles from Wall Street at the southe rn tip of Manhattan.
See Declaration of Bruce Egan, August 28, 2009, ¶ 31 (ML092610916); NYS Contention 35 ¶ 10. In addition, Entergy's claim that what the State is demanding is an illegal "worst case analysis" for SAMA (Entergy Answer at 24-25) misses the point. Neither New York nor Mr.
16 Chanin demand that all the most extreme assumptions must be used in making the analysis, only that realistic consideration must be given to the facts as they exist. What Entergy ignores is that any severe accident at Indian Point, with more than 17 million people living within 50 miles at risk, extensive surrounding real estate development, and the na tion's financial center being only 35 miles away, is not some hypothetical "worst case," but the "actual case." These are not assumptions, these are facts. And these facts exist because the Atomic Energy Commission approved the construction of an atomic power reactor at that location in 1956 and later approved the construction of two more reac tors at the same site. By any objective measure, the Indian Point reactors have always been the national outliers, but that does not mean that they should receive a relaxed environmental review by Staff. Because of AEC and NRC licensing decisions, Indian Point's siting is automatically an extreme "actual case" as NRC's own GEIS analysis plainly recognizes. GEIS, Vol. 2, SAMA Analysis, Table G-4 (showing the normalized latent fatality estimate of 300,000 for Indian Point Unit 3 when the next closest estimate is 70,000 for Vogtle) id. Table G-5 (where the normalized total dose estimate for Indian Point is 3800 and the next closest is 410 at Limerick);
id. Vol. 1, Table 5.3 showing I ndian Point having twice the population living within 50 miles of any other currently operating plant. Two days ago, in testimony to the United States Senate, Chairman Jazcko emphasized
NRC's work on severe accident analysis. Such analysis depends on an accurate assessment of clean up costs. When realistic and defensible estimates of the cleanup costs for such a severe accident are used, the actual costs of the accident are many factors higher than those used by Entergy and accepted in the December 2010 FSEIS. The size of the population and the value and density of the development of the property within 50 miles of Indian Point is not a reason to do a shoddy analysis of evaluating the cost of cl eanup in the event of a severe accident, but, 17 rather, all the more reason to do a competent analys is to assure that all the economically feasible mitigation alternatives are identified and their implementation is rationally considered. CONCLUSION The State of New York respectfully requests that the Atomic Safety and Licensing Board admit Proposed Contention 12-C.
Respectfully submitted,
s/ s/ John J. Sipos Assistant Attorney General Office of the Attorney General
The Capitol
Albany, New York 12224
(518) 402-2251 john.sipos@ag.ny.gov Adam J. Dobson Assistant Attorney General Office of the Attorney General
The Capitol
Albany, New York 12224
(518) 473-6486 adam.dobson@ag.ny.gov
March 18, 2011 1UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR and 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. March 18, 2011
x CERTIFICATE OF SERVICE I hereby certify that on March 18, 2011, copies of the State of New York's Combined Reply to Entergy and NRC Staff's Answers to the State's Proposed Contention 12-C, were served upon the following persons via U.S. Mail and e-mail at the following addresses:
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
Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission 190 Cedar Lane E.
Ridgway, CO 81432 Kaye.Lathrop@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
Josh Kirstein, 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
Josh.Kirstein@nrc.gov
2 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.
Andrea Z. Jones, Esq.
Beth N. Mizuno, Esq.
Brian G. Harris, 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
andrea.jones@nrc.gov
david.roth@nrc.gov beth.mizuno@nrc.gov
brian.harris@nrc.gov
Emily L. Monteith Megan A. Wright
Office of the General Counsel
U.S. Nuclear Regulatory Commission Washington, DC 20555 emily.monteith@nrc.gov megan.wright@nrc.gov
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW
Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com
Martin J. O'Neill, Esq.
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
Melissa-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
3Daniel 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.
Jessica Steinberg, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022 driesel@sprlaw.com jsteinberg@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 Manna Jo Greene, Director Stephen Filler, Esq., Board Member
Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue
Beacon, NY 12508 Mannajo@clearwater.org stephenfiller@gmail.com
Ross H. Gould
Board Member
Hudson River Sloop Clearwater, Inc.
270 Route 308
Rhinebeck, NY 12572 rgouldesq@gmail.com
Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road
Ossining, NY 10562
phillip@riverkeeper.org dbrancato@riverkeeper.org
s/
____________________________________ Adam J. Dobson Assistant Attorney General State of New York (518) 473-6486
Dated at Albany, New York
this 18th day of March 2011