ML091180476

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2009/04/20-Reply to NRC Staff'S Opposition to Petition to Add a New Contention Preliminary Statement
ML091180476
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 04/20/2009
From: Gould R, Greene M
Hudson River Sloop Clearwater
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-250
Download: ML091180476 (26)
v • d • e


Text

P.A- -2. - DOCKETED USNRC April 21, 2009 (8:30am)

UNITED STATES OF AMERICA OFFICE OF SECRETARY RULEMAKINGS AND NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF 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 20, 2009 REPLY TO NRC STAFF'S OPPOSITION TO PETITION TO ADD A NEW CONTENTION PRELIMINARY STATEMENT Pursuant to 10 C.F.R. 2.309 (h)(2) and the Atomic Safety and Licensing Board ("ASLB" or "Board") order dated April 10. 2009 granting an extension for a reply, Hudson River Sloop Clearwater, Inc. ("Clearwater") respectfully submits this reply to the U.S. Nuclear Regulatory Commission Staff ("NRC Staff") and Entergy Nuclear Operations., Inc ("Entergy") answers to Clearwater's motion for leave to file ("Motion"), and petition to file a new contention ("New Contention").

INTRODUCTION If the Board applies the high standard for admission argued for by the NRC Staff and Entergy in their Answers, it would foreclose any meaningful public intervention and debate, and prevent this Board from making a decision on disputed issues of critical importance in the operating license renewal application. Precluding such debate and decision is especially frightening in the case of Indian Point, a facility with a history of unplanned leaks and releases that affect the water, air and environment, as well as public ,health and safety. Certification of Joseph Mangano annexed to Clearwater's Petition to Intervene dated December 10, 2007

("Mangano Cert.") and Timeline-of Leaks at Indian Point Energy Center or "IP Timeline,"

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§~Y1-63a-- ýye)3

attached as Exhibit 3 to Hudson River Sloop Clearwater, Inc.'s Petition to Intervene and Request for a Hearing dated December 10, 2007 ("Petition").

In the NRC Staff Answer to Hudson River Sloop Clearwater, Inc's Petition to File a new Contention dated April 7, 2009'(the "NRC Staff Answer"), the NRC Staff argues that the New Contention:

  • is not timely as it is not based upon new information., i.e., Clearwater knew about the Rockland plant when it filed its original petition;
  • is not a improper amendment to Clearwater's already admitted contention EC- 1; and
  • is not adequately supported.

In the Applicant's Answer Opposing Clearwater's Motion for Leave and New Contention dated April 13, 2009 (the "Entergy Answer"), Entergy argues that the New Contention:

  • is not timely, because of prior board orders;
  • is not timely because Clearwater knew about the "proposal" for the Rockland Count), water facility when it filed its original petition;

" is not admissible because it is beyond the scope of this proceeding;

" is not admissible because Clearwater lacks adequate support;

" is not admissible because Clearwater fails to demonstrate that the issue is material; and 1

  • is not admissible because a genuine dispute does not exist.

As set forth in detail below, these argumnents are flawed and the Board should admit the New Contention.

Indeed, Entergy has fought vigorously throughout this proceeding to deny the intervenors access to a decision on the merits by the Board and has supported its positions, frequently, with weak arguments. To date, the most internally inconsistent argument is found in the Entergy Entergy does not argue that Clearwater failed to meet the requirements of either 10 C.F.R. § 2.309(0(i) or (ii).

(See Entergy Answer at 2, stating that the New Contention "fails to meet each of the admissibility requirements of 10 C.F.R. §2.309(f)(I)(iii)-(vi).")

I With the filing of its initial Answer and Answers to requests for new contention, Entergy has objected to the admissibility of every contention filed in this proceeding, each time arguing that the intervenor lacked adequate 2

Answer to the New Contention. Entergy argues,. on the one hand. that Clearwater filed its New Contention in an untimely manner, while arguing, on the other hand. that Clearwater filed the New Contention too early because there remrain many f.uture steps that need to be completed. In a nutshell, Entergy states that Clearwater is both too earl), and too late for the dance. While arguing in the alternative mray technically be permitted in civil proceedings, the Board should reject Entergy's legal sleight-of-hand and accept the contention because of its importance to the safety and health of the local population. and because Er;tergy will be utterly unprejudiced by its admission.

Significantly, the NRC Staff and Entergy argument that the New Contention is not timely because Clearwater had knowledge of some supporting facts at the time it filed its original petition is not supported by case law. In Vermont Yankee, the panel admitted a new contention when, as here the intervenor, referred to some of the facts in its original petition. The Board held in essence that where the circumstances at the time of the original pleading were insufficient for a ripe contention, a party is not foreclosed from bringing a subsequent contention on those circumstances when later discovered facts round-otut the contention Enlertýv Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station)

LBP-06-14, 63 NRC at __ (slip op. at 13)(May 25, 2006) ("new and material information is sometimes revealed in stages, so that the foundation for the contention is not reasonably apparent until the later pieces fall into place.") Here, the mere fact that a third part)' hoped to build a support, that.the issue is not material and that a genuine dispute does not exist. To date, the parties have put forth approximately 50 contentions and Entergy has argued that all of them were inadmissible.

Panelist on other boards have expressed amazement and concern in similar situations where applicants to the NRC and NRC Staff answer large number of contentions by stating all or all but a very small amount are not admissible.

Recently, in High-Level Repository, in response to 229 contentions the Department of Eniergy ("DOE) answered the petition arguing that none of the contentions were admiissible. Administrative Judge Alan Rosenthal stated on the record that "I discovered to my amazement that the Department of Energy was taking the position that riot a single one of the 100 - of the 229 separate contentions met the standard for admission..." In the Matter of U.S.

Department of Energy ("High-Level Waste Repository") ASLBP 09-878-HLW-CAB03, Docket No.63-001 -HLW Interim Draft Copy of April 1, 2009 Transcript of Proceedings (Apr. 1, 2009).

desalination plant was insufficient, and the contention did not become ripe until Clearwater learned that the DEC was notifying the public about the UNWY application for permits.

Without this public act by the DEC, the Board would have been forced to act on a proposal that had little likelihood of materializing. Clearwater filed its New Contention 22 days after uncovering this new information. (New Contention at 15).

In addition, the NRC Staff and Entergy seek to raise the bar of admission set by the ASLB, to well above what is required by law. For example, one of the arguments that NRC Staff and Entergy appear to make is that Clearwater has not provided ample support are based upon the notion that Clearwater is required to support the New Contention with expert opinion. 4 As correctly outlined by the ASLB and supported by the NRC case law, a party is not required to support a contention with an expert opinion. Indeed, the ALSB order explicitly addresses the NRC rule stating that a party may provide factual support or expert opinion. 10 C.F.R. § 2.309(f)(1)(v). Regardless, as set forth in the New Contention and in greater detail below, Clearwater supports its New Contention with a certification from expert, Joseph Mangano (filed with its Original Petition), scientific journals, Entergy's own internal memorandum, other Entergy ar2ues that Clearwater has not provided sufficient evidence to support its claim because the Certification of Manna Jo Greene is "her lay review of technical literature and other information sources..." and she is not an expert. (Entergy Answer at 20). Whether or not Ms. Greene is an expert, Clearwater has experts as resources arid advisors called upon to assist in Clearwater's research relating to the New Contention. Its Directors and volunteers are experts in chemistry, biology. environmental sciences arid the energy industry, and include Dr. William Flank, a Research Scientist and Manager and Adjunct Professor of Chemistry, Environmental Science & Statistics, Pace University: an organic chemistry professor; and a Physicist, at the Medical School of Columbia University. See Clearwater "About Clearwater" http://www.clearwater.org/board.htinl , last visited April 20, 2009 Ironically, Entergy to date has not identified any experts it plans to use, and in its mandatory initial disclosure stated that "Entergy has not yet identified the persons that it may rely upon as its witnesses. Entergy will update this disclosure when it has identified such persons." (A copy of Entergy's initial disclosure is attached.) To hold that intervenors are required to identify their experts and their opinions at the time of filing a contention while refusing to identify its own experts and their opinions underiniies Entergy's argument.

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documents and references to contamination data, and the Certification of Clearwater's Environnrental Director. (New Contention at 2-5 and 8-12).

In addition, there is no evidence that Entergy or the NRC staff will be prejudiced in any way by accepting the NeW Contention at this date. Indeed. Clearwater has consistently raised the issue that Entergy's Environmental Report should consider the impact of a renewal license on the local drinking water. See e.g. Petition at 266 and Standing Ex. 1.15 Declaration of George Potanovic Jr. at 2 (dated Nov. 23, 2007), I-ludson River Sloop Clearwater Inc's Reply to Entergy and the Nuclear Regulatory Commission Responses to Clearwater Petition to Intervene and Request for hearing (Feb. 8, 2008) at 4-5 Specifically with regard to the desalination plant, no evidence has been destroyed, or witnesses missing. On the contrary, the fact that the plans for the desalination plant have moved from being simply one option out of many. to an actual plan filed with a public agency gives Entergy, NRC staff and the Board a much better basis to respond and make a decision about the New Contention.

Despite the NRC Staff s and Entergy,'s efforts to muddy the waters, Clearwater's New Contention goes far beyond s the NRC requirements for the admission of new contentions.

Therefore, the ASLB should grant Clearwater leave to file the New Contention and grant Clearwater a hearing on the New Contention.

Significantly, Ms. Greene has a master's degree in environmental sciences, a B.A. in biology and was a registered nurse for 25 years. See Petition at Standing Ex. 1.6 Declaration of' Manna Jo Greene, Environmental Director, Hudson River Sloop Clearwater, Inc. (December 8. 2007).

BACKGROUND Background information.is set forth in the New Contention. the Certification of Manna Jo Greene dated March 19% 2009 and Clearwater's earlier pleadings in this proceeding. The relevant background information is summarized here.

A. Procedural History On April 23, 2007, Entergy Nuclear Operations, Inc. ("Entergy") filed an application to renew the operating licenses of the Indian Point Generating Units 2 and 3. That application included an environmental report ("ER"), purporting that "this assessment is based on the fact that there is no drinking water pathway associated with groundwater or the Hudson River..." (New Contention at 6)(emphasis added).

On December 10., 2007, Clearwater filed a Petition to Intervene and Request a Hearing

("Petition"). On .July 3 1. 2008, the ASLB granted, in part, Clearwater's Petition admitting two contentions for a hearing. The ASLB order set forth in great detail the standards of admissibility of contentions. Entergv Nuclear Operations. Inc. (Indian Point Generating Units 2 & 3), LBP-08-13, slip. Op. at 5-11 (.July 31, 2008) ("ASLB Order"). In December 2008, the NRC Staff issued Supplement 38 to the Generic Environmental Impact Statement for License Renewal for Nuclear Plants, Regarding Indian Point Generating Units 2 and 3 (hereinafter referred to as "DSEIS") The DSEIS also incorrectly stated that there are no drinking water pathway exposures (New Contention at 7, citing DEIS section 2.2.7).

On February 4, 2009 the ASLB in response to the telephonic pre-hearing scheduling conference set forth an order in part addressing requirements for filing of new contentions. On March 19. 2009, Clearwater filed a motion for leave to file a new contention regarding 6

environmiental impacts and public health impacts. The New Contention was filed based upon new information that is materially different from earlier information.

B. The Background information relating to the Hudson River being used as a source of drinking water.

Rockland County is located across the river from Indian Point and its municipal water supply is managed on the County's behalf by United Water New York ("UWNY"). (New Contention at 2). In 2007, UXVNY was ordered by the New York State Public Service Commission to submit a plan for increasing the supply of water for Rockland County. The Center for International Earth Science Information Network (CIESIN) at Earth Institute at Columbia University htp s**Uperfu.nd. c ie.sin. c.ol.umbi.a. edu.I/Rockl and waler/s u.pply planninC.Ittial.

last visited April 18, 2009. UWNY analyzed several options for increasing the supply of water.

Id. Those options included the desalination plant at issue here, building a reservoir at Ambrey Pond in Stony Point, a reservoir at Suffern Quarry, using unused water wells for water storage, among other alternatives. "Environmental Committee meeting minutes March 9, 2005 Legislature of Rockland County, visited, April 18. 2009) Cite http://www.co.rockland.ny.us/Legislature/Cininutes/2005/env0 0 5.htm6 On January 26, 2009, New York State Department of Environmental Conservation issued a letter stating that it would become lead agency on the permit application filed by UWNY ("DEC Letter"). 7 This 6 This note is not submitted as additional evidence for its contention but rather to set forth that UWNY had several proposals for increasing water supply for Rockland county, in addition to the desalination plant and at the earlier stages of this proceeding all plans were potentially the solution, however now UWNY has announced that it is putting its plan into action by applying for a permit from the New York State Department of Environmental Conservation ("DEC").

7 The DEC Letter also outlined its intent to expand upon the pre-draft EIS submitted by UWNY for its proposed long term water supply project in the Town of Haverstraw. DEC will conduct a formal "scoping" process to detail the scope required for the new Environmental Impact Statement. Center For International Earth Science Information 7

letter is an indication that UWNY is no longer planning on considering options but is moving forward with a plan of action to build the desalination plan. Indeed, UWNY has indicated that now after 40 years of contemplation as the appropriate solution. it only considers the reservoir at Ambrey Pond as an alternative to the desalination plan. J(UWNY http://haverstrawwatersupplýprioject.com/index.php/draft-environmental-imrpact-stud.y-deis.html, last visited April 10, 2009.

ARGUMENT I. STANDARD OF LAW A. Timeliness Requirement A party to a license renewal proceeding may file a new contention based upon materially different new infoirmation in accordance with 10 C.F.R. §2.309(f)(2)(i)-(iii). A party seeking to file a new contention must demonstrate:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The informnation upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(f)(2)(i)-(iii). See also, Crow Butte Resources, Inc. (License Renewal for the In Situ Leach Facility, Crawford, Nebraska) LBP-08-27, ASLBP No. 08-867-02-OLA-BDO0 (Dec. 10, 2008).

Network (CIESIN) at Earth Institute at Columbia University http://superfund.ciesin .columbia.edui'Rocklandwateri/suppl y planniing.htmlni, last visited April 18, 2009.

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It is well established that "if new and materially different infortnation becomes available during the processing of the application, and a petitioner promptly files a new contention based on this new information, the contention is admissible if it also satisfies the general contention admissibility standards contained in 10 C.F.R. § 2. 309(f)( 1). Eniertgy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations. Inc. (Vermont Yankee Nuclear Power Station) LBP-06-14, 63 NRC at __ (slip op. at 4)(May 25, 2006). In addition, NRC case law holds "that new and material information is sometimes revealed in stages, so that the foundation for the contention is not reasonably apparent until the later pieces fall into place /d. at 13.

B. ASLB Prior Decisions are the Law of the Case The ASLB pre-hearing order dated February 4, 2009 ("Pre-Hearing Order") addressed the three following points relating to filing new contentions:

" the ASLB declined to set a schedule for the filing of new or amended contentions and stated that it would follow the reqcuirements of 10 C.F.R. § 2.309(f)(2) and case law. Tr. at 797- 98. (Pre-Hearing Order at 5)

" the ASLB "will nol entertain contentions based on environmental issues that could have been raised when the original contentions were filed."

(Pre-Hearing Order at 3)

" extended the tirme to file new contentions for contentions on the DSEIS to Feb 28, 2009. (Pre-Hearing Order)

A plain reading of the Pre-Hearing Order makes clear that it could only be discussing contentions that were "reasonably ascertainable" at the time the DSEIS was issued. As is set forth in the New Contention, Clearwater became aware of the new and materially different information on February 25, 2009. See Certification of Manna Jo Greene submitted in support of the New Contention ("Greene Cert in Support") at ¶ 4.

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These decisions provide the law of the case and where they are silent NRC case law is applied.

C. Ripeness of a Contention for a licensing proceeding In discussing when a contention is concrete i.e., ripe, a panel held that "the concept of factual concreteness requires an inquiry into the question of when the moving party had access to information sufficient to permit it to frame an issue statement with reasonable specificity and basis." In the Matter qf Private Fuel Storage, L.L.C (Independent Spent Fuel Storage Installation), 49 N.R.C. 431, 437 1999 WL 386934 (N.R..C.), Docket No. 72-22-ISFSI May 26, 1999.

Indeed, the Supreme Court has indicated that the time when a contemplated action becomes a proposed action National Environmental Policy Act ("NEPA") requires an assessment of the impacts. Kieppe v. Sierra Club, 427 U.S. 390, 410, 96 S. Ct. 2718, 2730 (1976)(NEPA "does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed action; should contemplated actions later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval on the existing environment.")

D. Admissibilit, Requirements A late filed contention must also meet the admissibility requirements defined by the NRC. Here, this Board has already set forth at length the standard for admissibility of a contention in this case. (ASLB Order at 5-11). To be admissible a party must meet the requirements of 2.309 (t)(I)(i)-(vi):

(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 10

proceeding; (5) provide a concise statement of the alleged f-acts or expert opinions.

including references to specific sources and documents. that support the petitioner's position and upon which the petitioner intends to rely at hearing: and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case when the application is alleged to be deficient, the identification of such deficiencies and supporting reasons for this belief.

(ASLB at 5-6).

The ASLB Order defines the parameters by which it will evaluate the substantive requirements of admissibility in this proceeding. Initially, the ASLB holds that when assessing support. "[t]he petitioner does not have to prove its contention at the admissibility stage" and that the "threshold is less than is required at the suminary disposition stage." (ASLB Order at 8).

Indeed, it is well established that. a licensing board should not address the merits of a contention when determining its admissibility. PUblic Service Co. of New JlHarnpshirc (Seabrook Station, Units 1 and 2). LBP-82-106, 16 NRC 1649, 1654 (1982). citing Allens Creek, 11 *NRC at 542; Kansas Gas, & Electric Co. (Wolf Creek Generating Station, Unit I). LBP-84-1. 19 NRC 29, 34 (1984).

1. Scope of the Proceeding The scope of the proceeding includes a review of environmental issues set forth in §§ 51.71(a) and 51.95(c). That review must occur even if the nuclear facility is in compliance with the Federal Water Pollution Control Act. 10 C.F.R. § 51.71(d) (fin)(3). ASLB in addressing the scope of this proceeding held that it is "defined by the Coim.ission in its initial hearing notice and order referring the proceeding to the Licensing Board." (ASLB Order at 7)
2. Basis, which the NRC Staff and Entergy refer to as support The ASLB held that "at the contention admissibility stage ... adequate support can be either an expert opinion or some alleged fact, or facts, in support of its position." (ASLB II

Order at 10) (emphasis added.) The factual support necessary to show a genuine dispute exists need not be in affidavit or formal evidentiary form, or by the quality necessary to withstand a summary disposition motion." In the Matter of Georgia Institute of Technology, 42 N.R.C. 111 (October 1-2, 1995). Only a minimal legal and factual foundation is required for a contention to be admissible. Duke Energy Corp. (Oconoee Nuclear Station Units 1, 2, and 3), 49 N.R.C. 328, 334 ("full adjudicatory hearings are triggered only by those able to offer minimal factual and legal foundation in support of their contentions.")(emphasis added).

3. Demonstration that issue is material to findings A petitioner must show the significance of the issue as it relates to the proceeding. ASLB held that

'Materiality' requires that the petitioner show why the alleged error or omission is of possible significance to the result of the proceeding. This means that there must be some significant link between the claimed deficiency and either the health and safety of the public, or the environment.

(ASLB at 8) (emphasis added). As set forth in the New Contention, this requirement however is not onerous and only a "minimal showing that material facts are in dispute, indicating that a further inquiry is appropriate." Georgia Institute of Technology, CLI-95-12, 42 N.R.C. 111, 118 (1995); Final Rule, Rules of Practicefor Domestic Licensing Proceedings- ProceduralChanges in the Hearing Process, 54 Fed. Reg. 33,171 (Aug. 11, 1989).

4. Existence of a genuine dispute The ASLB held that to "show that a genuine dispute exists" with regard to the license application in question, challenge and identify either specific portions of, or alleged omissions from, the application, and provide the supporting reasons for each dispute. (ASLB Order at 10).

A genuine dispute has been found based upon the vigorous defense of an applicant in its answer.

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N. Ati. Energy Serv. Corp. (Seabrook Station, Unit 1). CLI-99-6. 49 N.R.C. 201. 219-220, dismissed due to settlement, CLI-99-16, 49 N.R.C. 370 (1999)('relying upon the applicants own "vigorous response" to deterrine that a genuine dispute exists regarding the issue).

II. CLEARWATER'S NEW CONTENTI.ON IS TIMELY ANID ADMISSIBLE:

1. Clearwater's new contention is timely On timeliness, the NRC Staff and Entergy make two main arguments. First. they argue that the New Contention is not timely based upon the Board orders dated ,July 31., 2008 and February 4, 2009. Second, they argue that the New Contention is not timely because Clearwater had knowledge of the desalination plant at the time it filed its Petition and therefore the information is neither new nor materially different. 8 A. The New Contention is timely under the ASLB order dated February 4, 2009 The ASLB placed two requirements upon a party filing a new contention in the pre-hearing order: 1) the contention must be filed within 25 days of learning of the new information and 2) a party may not raise an environmental contention that could have been raised at the time the original contention was filed. (Pre-Hearing Order). As set forth in the New Contention, Clearwater became aware of the DEC Letter notifying the public that it would be lead agency in response to the UWNY permit applications. Clearwater filed its motion within 22 days of the date that it became aware of the new information. (Greene Cert. at ¶ 4). Thus, Clearwater filed within the time frame set forth by the ASLB.

IIndeed, the NRC Staff and Entergy both point out that discussions relating to the desalination plant date back to 2007. As set forth in this reply, the fact that the desalination plant has been an idea since at least 2007 is irrelevant because NRC.case law holds that even if a party was aware of an issue before filing its petition a later piece of information may complete the puzzle and the time for filing the contention runs firom the time of the later piece of information. Entergy Nuclear Vermowt Yankee L.L.C. and Etergy Nuclear Operacioris. hnc. (Vermont Yankee Nuclear Power Station) LBP-06-14, 63 NRC at (slip op. at 13)(May 25, 2006).

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The new information that Clearwater obtained in the letter provided Clearwater with concrete information.. In the Matter of Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installation), 49 N.R.C. 431 Docket No. 72-22-ISFSI May 26, 1999. The DEC's acceptance of lead agency status means that the plan reached a threshold level to show that it would be acted on. This is the final piece of the puzzle that Clearwater required in order to have an actionable contention. Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC at _ (slip op.

at 13)(May 25, 2006) Clearwater timely filed the New Contention when it became aware that it was ripe.

Entergy,. in fact, acknowledges that the New Contention was not ripe at the time Clearwater filed its original petition, although it argues that the contention is still not ready for submission. In its Answer to the New Contention, Entergy states that the public health harms and environmental concerns raised by Clearwater are "[a]t this juncture, ... purely speculative, because the mere existence of the proposed desalination facility is subject to countless contingencies and eventualities..." (Entergy Answer at 18.) Implicit in this argument is the notion that Clearwater could not have filed this contention at the time it filed its Original Petition.

For the foregoing reasons, Clearwater's New Contention is timely.

B. Clearwater's New Contention meets the NRC requirements for timely riling a new contention that arises after the Intervenor filed its initial petition As set forth above, the NRC rules provide three criteria for a party seeking leave to file a new contention. In short, a new contention is timely if it is based on information that was not 14

previously available, miaterially different from previous inform ati on and submitted timely after the new information. 10 C.F.R.. § 2.309(f)(2)(i)-(iii). Clearwater's New Contention clearly meets these requirements.

Contrary to both the NRC Staff and Entergy's arguments, the fact that Clearwater was aware that UWNY was considering a desalination plant at the time it filed its Petition is not grounds for denying Clearwater's Motion and the New Contention. NRC case law does not hold parties to the rigid standard that NRC Staff and Entergy seek from the ASLB. Indeed, NRC rulings have concluded that a party may have several pieces of the puzzle for years before filing a contention, but it is not until they have the final piece in place that the clock for the filing of a new contention begins to run. Entergv Nuclear Vermont L.L. C. and Enterg, Nuclear Operations Inc, ASLBP No. 04-832-02-OLA, Docket No.. 50-271 -OLA (July 7, 2006). ln Vermont Y(nkee, the board noted "that new and material infornmation is somnetimes revealed in stages, so that the foundation for the contention is not reasonably apparent until the later pieces fall into place.

LBP-06-14, 63 NRC at _ (slip op. at 13). When this occurs, the timeliness of a contention "turns on a . determinationabout when. as a cumulative matter, the separate pieces of the...

information 'puzzle' were sufficiently in)place to make the particular concerns. reasonably apparent." Id. (citing Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8, 26 (1996)).

Here, the information was "not sufficiently in place to make the particular concerns ...

reasonably apparent" until a permit application was accepted, which was demonstrated by the DEC lead agency letter.

One of the main issues before this board is whether the filing of the permnit is materially new information. Clearwater contends that the DEC Letter supplies Clearwater with materially 15

new information. The new information in the DEC Letter is that the DEC will be lead agency and begin the review of the permit, which indicates that the Rockland plant is being acted upon and no longer merely a plan.. Before the DEC Letter, Clearwater only knew about contemplated actions. After the DEC Letter it was clear that UWNY sought to implement the proposal. This is materially different information.

II. Clearwater's New Contention is admissible under 2.309 (f)(1)

As cited in the Petition, "an intervenor need not ... prove its case at the contention stage..." In the Matter of Georgia.Instituteof Technology, 42 N.R.C. 111 (October 12, 1995).

Indeed, the ASLB Order reiterates this long held NRC standard. Despite this, Entergy attacks the merits of the claim by questioning the weight and credibility of the support by Clearwater in the New Contention. Entergy's Answer refers to Clearwater's support as "assertions lacking technical underpinning," "patently incorrect," or makes statements such as "Clearwater does not credibly explain."

In addition to improperly seeking summary disposition of the New Contention, both the NRC Staff and Entergy contend that Clearwater's new contention fails to meet the NRC's admissibility requirements. The NRC Staff merely argues that Clearwater failed to properly support its New Contention because it "is altogether lacking in support." Entergy argues that Clearwater fails to meet four out of the six requirements. (Entergy Answer). Apparently conceding that Clearwater's contention is a specific statement of the issue raised and its explanation is brief 16

A. Clearwater's New Contention is within the scope of this proceeding.

Clearwater's contention raises an isst.ie that afTfcts the public health. safety and the environment. In this proceeding Entergy aid the NRC are required under NEPA to take a "hard-look" at all probable impacts. 42 U.S.C §4332 etseq. In addition.

[c]umulative effects analysis under National Environmental Policy Act (NEPA requires the final environmental impact statement (EIS) to analyze the impact of a proposed project in light of that project's interaction with the effects of past, current. and reasonably foreseeable future projects; in assessing cumulative effects. EIS must give a sufficiently detailed catalogue of past., present, arid future projects, and provide adequate analysis.."

The Lands Council v. Powell, 495 F.3d 1019. 1027 (9th Cir. 2005).

Moreover, although this claim is riot. an amendment to EC-1, it shares some similarities, and since as EC-1 has been found to be within the scope of the proceedings. the New Contention is also within the scope of this proceeding. In the New Contention Clearwater asserted that this is within the scope because it concerns the environmental and public health impacts on-the water quality and drinking water quality degradation of the Hudson River in the vicinity of IP. (New Contention at 11)

Other NRC panels have found that a drinking water contention is within the scope of the relicensing proceeding. In Crow Butte Resources, Inc.Ma similar late filed contention relating to drinking water concerns was admitted in relicensing proceeding. ASLBP No. 08-867-02-OLA-BD0L, LBP-08-27 (December 10. 2008). In granting a late filed contention involving drinking water quality in a license renewal proceeding, the board made it clear that a new contention is "submitted in a timely fashion based on the availability of the subsequent information." Id. citing 10 C.F.R. §2.309(f)(2)(iii).

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B. Clearwater has demonstrated that the New Contention is material to the findings that must be made in a license renewal proceeding Contrary to Entergy's argument, Clearwater has demonstrated that an assessment of the Hudson River as a source of drinking water is required because a failure to do so jeopardizes public health, safety and the environment. In the New Contention, Clearwater shows the link between the deficiency in the Environmental Report and health, safety and the environment.

(New Contention at 2-5 and p 11, citing Public Health Risks of Extending Licenses of the Indian Point 2 and 3 Nuclear Reactors, (Radiation and Public Health Project, Revised December 7, 2007) (attached as Exhibit 4 to Mangano Decl. submitted as part of Clearwater's Petition to Intervene)("Public Health Risks").

Moreover, the failure to assess the Hudson River as a drinking water source violates NEPA's requirement that environmental decisions must contain an evaluation of those aspects of a proposed action that will affect the quality of the human environment "in a significant manner or to a significant extent not already considered." Marsh v. Oregon NaturalResources Council, 490 U.S. 360, 374 (1989).

C. Clearwater has provided ample support for the New Contention Contrary to Entergy and NRC Staffs argument, Clearwater's contention is more than adequately supported. Indeed, the New Contention is supported by a factual affidavit, attached documentary evidence, references to agency standards, references to industry journals and prior pleadings and submissions in this proceeding. (New Contention at 2-5 and 9-11). Clearwater has also provided evidence that there is radioactive groundwater with levels of contamination above safe drinking water standards leaking into the Hudson (New Contention at 11), fish have been found to contain 18

.radioactive isotopes (New Contention at 10-11 and Exhibit 3), and that desalination plants using reverse osmosis cannot remove all radioactive isotopes. (Green Cert. in Suppori ¶ 9 citing Journal qf~nvironnmental Radioactivio,. 63 C(2002) 105-115. The Mangano Cert states: "Indian Point 2 and 3 emit radioactivity, in the form of gases and particles, into the air and water on a routine basis." (Mangano Cert. at ¶ 4).- "Indian Point has also experienced unplanned rel~ases of radioactive chemicals into the environment, documented in the official reports of radioactive emissions and' environmental levels." (Mangano Cert. at ¶ 5). In addition. Clearwater's original Petition included a timeline of leaks at Indian Point. (Original Petition, Ex. 3). Despite all this support, the NRC Staff erroneously argues that thifs contention is unsupported.

In addition, Entergy attempts to argue that Clearwater's New Contention is fatally flawed because it is not supported by expert opinion. The NRC rules for admissibility of a contention, however, do not require an intervenor to supply expert opinion in its petition. 10 C.F.R.

§2.309(f)(1)(i)-(vi). Indeed, boards have admitted contentions witho ut expert support holding that fact-based arguments are sufficient. See Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and3) cli-99-1 1I (April 15, 1999) and Fansteel,Inc. (Muskogee. Oklahoma, Site) Ci1 13 (Oct. 5, 2003). NRC case law holds that at a hearing a party may submit additional evidence that it did not rely upon to support its contention. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plant, Units 1 and 2). LBP-93-., 37 NRC 5. 20-21 (1993). Therefore. it is clear that Clearwater was not required to provide expert opinion to support the New Contention.

The NRC Staff lists various information that it claims is needed for admissibility, however there are no requirements that Clearwater provide this particular type of information at the pleadings stage. Indeed, the NRC rules do not require specific facts, resources or other types 19

of information that a petitioner must include as support for an admissible contention. All that is required is "a minimal showing that material facts are in dispute, thereby demonstrating that an iinquiry in depth' is appropriate." Gulf States Utilities Co. (River Bend Station, Unit 1), CLI 10, 40 NRC 43, 51 (1994) (citing Final Rule, Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug.

11, 1989). quoting Connecticut Bankers Association v. Board of Governors, 627 F.2d 245 (D.C.

Cir. 1980).

Clearwater has provided ample support for its New Contention.

D. A genuine dispute as to a material issue exists The material issues in a license proceeding are whether the license renewal will impact the public health and safety and the environment. Specifically, in terms of the New Contention the material issues ate the threat posed to public health and safety and the environment from the failure to assess the Hudson River as a source of drinking water in light of the releases from Indian Point. The New Contention provides that the "failure to assess the impact of these risks violates NEPA's requirement that environmental decisions must contain an evaluation of those aspects of a proposed action that will affect the quality of the human environment "in a significant manner or to a significant extent not already considered." (New Contention at 13, citing Marsh v. Oregon NaturalResources Council, 490 U.S. 360, 374 (1989).

Clearwater has shown factual evidence indicating that strontium-90 and cesium-137 have been detected in the groundwater at Indian Point at concentrations many times the Maximum Contaminant Level ("MCL") allowed by the Environmental Protection Agency ("EPA") in drinking water. (New Contention at 11). Clearwater has also provided an expert report from 20

Joseph Mangano provides supporil for the assertion that exposure to radioactive materials leads to injury to the public health. (New Contention at 11). Finally, Clearwater indicated that this contaminated groundwater is leaking into the Fiudson River and that the H-Iudson River is a source for drinking water. (New Contention at 5). Clearly, this provides a significant link.

In its Answer, Entergy painstakingly details its opposition to the factual and scientific basis for the New Contention. Indeed, by going to such great lengths to oppose Clearwater's New Contention, Entergy has clearly demonstrated that there is a material dispute. NRC case law holds that evidence of a genuine dispute is found by a party's vigorous response to a contention filing. N All. Energyo Serv. Corp. (Seabrook Station. Unit 1), CLI-99-6. 49 N.R.C.

201, 219-220, dismissed due to settlement, CLI-99-16, 49 N.R.C. 370 (1999). In North Atlantic, the NRC held that in determining if a contention is admissible the panel can rely on the applicants own "vigorous response" to determine that a genuine dispute exists regarding the issue. Id. Here, Entergy has vigorously responded to the New Contention raised by Clearwater.

As such, the ASLB should find that the New Contention raises genuine dispute.

Clearwater has demonstrated that a genuine dispute of a material issue exists.

E. Entergy is not prejudiced by the admission of this contention There is no evidence that Entergy or the NRC staff will be prejudiced in any way by accepting the New Contention at this date. Indeed. Clearwater has consistently raised the issue that Entergy's Environmental Report should consider the impact of a renewal license on the local drinking waterSee e.g. Petition at 266 and Standing Ex. 1.15 Declaration of George Potanovic Jr. at 2 (dated Nov. 23. 2007), Hudson River Sloop Clearwater Inc's Reply to Entergy and the 2I

Nuclear Regulatory Commission Responses to Clearwater Petition to Intervene and Request for

'hearing (Feb. 8, 2008) at 4-5. Specifically with regard to the desalination plant, no evidence has been destroyed, or witnesses missing. On the contrary., the fact that the plans for the desalination plant have moved from being simply one option out of many., to an actual plan filed with a-public agency gives Entergy, NRC staff and the Board a much better basis to respond and make a decision about the New Contention.

The plan for a desalination plant is no longer hypothetical. It is a real proposal for a real drinking facility that will be located directly across the Hudson River from the Indian Point Nuclear Plant. There can be no more important environmental assessment that this Board conducts than the possible impact upon the drinking water of the local residents. There is a clearly demonstrated pathway of radionuclide releases from the Plant to the Hudson and thus to the desalination plant, and this Board should not be prevented from evaluating these impacts by hyper technical arguments. The analysis is required not just by NEPA, but by a proper regard for human health and common sense.

III. THE NEW CONTENTION IS A NEW AND DISTINCT CONTENTION, NOT AN IMPERMISSIBLE EFFORT TO AMEND AN EXISTING CONTENTION In its Answer, the NRC Staff argues that this contention should be dismissed because it is an impermissible effort to amend a contention. This argument is without support. The New Contention is not an amendment of Clearwater's admitted contention EC-1. It is true that the New Contention shares some of the same factual underpinnings as EC-1. It also shares some of 9

the same factual support as other contentions that have been admitted in this proceeding.

E.g. NYS EC-5.

22

However, the New Contention rests fundamenltally on new and different facts. and the contention is fundamentally different..

CONCLUSION Clearwater filed its Motion and New Contention in a time]j fashion by filing them within 22 days from the date it obtained the information that provided Clearwater with reasonable certainty that it had a viable New Contention. The New Contention is admissible because serious factual differences exist between the positions of Entergy and Clearwater regarding radiological leaks, the cumulative effects of all releases, the ability of a desalination plant to remove radiological compounds, and whether the issues are within the scope of this proceeding.

Moreover, in admitting Clearwater EC-I this Board found that because there were "serious factual differences" on leaks and whether this is in the scope of the proceeding. That same reasoning should apply in admitting the New Contention. As such, a hearing is required.

For the foregoing reasons and the reasons provided in the New Contention, the ASLB should grant Clearwater leave to file the New Contention and admit the proposed New Contention in its entirety and grant Clearwater a hearing on the issues raised.

/U~yij 67reeLA) ý Manna Jo Greene Environmental Director Hudson River Sloop Clearwater, Inc.

112 Market St.

Poughkeepsie, NY 12601 845 4.54-7673 x 113 Ross Gould Member, Hudson River Sloop Clearwater. Inc.

10 Park Ave, #5L New York, New York 10017 (917) 658-7144

April 20. 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Entergy Nuclear Operations, Inc. Docket Nos.

(Indian Point Nuclear Generating 50-247-LR Units 2 and 3) and 50-286-LR CERTIFICATE OF SERVICE I certify that on April 20, 2009 copies of the foregoing Reply dated April 20, 2009 was served on the following by first-class mail and e-mail:

Lawrence G. McDade, Chair Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane East Atomic Safety and Licensing Board Ridgeway, CO 81432 U.S. Nuclear Regulatory Commission E-mail: Kaye.Lathrop(nrc. oy Washington, D.C. 20555 E-mail: Lawrence. McDade(&nrc. Lo v Richard E. Wardwell Michael .1. Delaney, V.P.- Energy Atomic Safety and Licensing Board New York City Econ. Development Corp.

U.S. Nuclear Regulatory Commission 110 William Street Washington, D.C. 20555 New York, NY 10038 E-mail: Richard. Wardwel]'inrc.eov E-mnail: ancleyanv,[*ý_.e:ilcedcconii John J. Sipos, Esq. Martin .. O'Neill, Esq.

Assistant Attorney General Kathryn M. Sutton, Esq.

Office of the New York Attorney General Paul M. Bessette., Esq.

for the State of New York Mauri T. Lernoncelli. Esq.

The Capitol Morgan. Lewis & Bockius. LLP Albany, NY 12224 1111 Pennsylvania Ave. N.W.

E-mail: John.Sip.os(Laoag.state.n. us Washington, D.C. 20004 E-mail:

martin.oneill(-id;morvanlewis.com p b s settNe mora iws.`com1 ksutton(omorvan lewi s.coml

Diane Curran, Esq ... Office of Commission Appellate Adjudication Harmon. Curran, Spie/berg & Eisenberg, LLP U.S. Nuclear Regulatory Commission 1726 M. Street NW, Suite- 60 0 Washington. D.C. 20555 E-mail: O.CAAMA ..II.0)nrc.gov Washington, DC 20036 E-mail: dcurran',:ihharlmoncurran.com Office of the Secretary William C. Dennis, Esq.

Rulemakings and Adjudications Staff Entergy Nuclear OperTti6ns, Inc.

U.S. Nuclear Regulatory Commission 440 Hamilton Avenue.c Washington, D.C. 20555 White Plains, NY. 106.0.1 E-mail: [W1FAR.I.NG.[)O.(CKlYtJ nr.)!ry.g.ov E-nmail: wd.e.ni.s @cn.tcr..coln Justin D. Pruyne, Esq. Joan Leary Matthews, Esq.

Assistant County Attorney, Litigation Bureau Senior Attorney for Special Projects Of Counsel to Charliene M. lndelicato,.Esq. New York State Depairtrent Westchester County Attorney of Environmental Conservation 148 Martine Avenue. 6 "'Floor** 625 -Broadway,. It." floor, White Plains, NY 10601' Albany, New York 12233-5500 E-rna ii: j_ ,p ( w s c .hct..... corn.... E -m ail1: j..t*t..cg.gw.dec. state. ny.us Zachary S. Kahn, Esq., Law Clerk Thomas F. Wood, Esq.

Atomic Safety and Licensing Board Panel Daniel Riesel, Esq.

U.S. Nuclear Regulatory Commission Ms. Jessica Steinberg, J.D.

Washington, D.C. 20555 Sive, Paget and Riesel, P.C.

E-mail: Zachary.Kahn(inrc. gov 460 Park Avenue New York, NY 10022 E-mail: driesel sprlaw.com isteinbern(gisnrlaw.com Robert D. Snook, Esq. John L. Parker, Esq.

Assistant Attorney General Regional Attorney, Region 3 55 Elm Street. P.O. Box 120 New York State Department of Hartford. CT 06141-0120 Environmental Conservation E-mail: Robert.Snookbpo.state.ct. Lis 21 South Putt Corners New Paltz, NY 12561 E-mail: iInarkertii),gw.dec.state.nv.us Elise N. Zoli. Esq. .Janice A. Dean, Esq.

Goodwin Procter, LLP Assistant Attorney General 53 State Street Office of the Attorney General Boston, MA 02109 120 Broadway, 2 6th Floor E-mail: ezoli0,,%oodwinProcter.com New York, NY 10271 E-mail: ...ani.cc. dca* *w(.oag_. state. nv.us 2

Sherwin E. Turk Daniel E. O'Neill, Mayor Beth N. Mizuno James Seirmarco, M.S.

Brian G. Harris Village of Buchanan David E. Roth Municipal Building Andrea Z. Jones 236 Tate Avenue Office of General Counsel Buchanan, NY 10511-1298 Mail Stop: 0-15D21 E-mail: vob(,bestweb.net U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Sherwin.Turkgnrc. gov; Beth.Mizunoanrc.gov; brian.harris~a nrc.gov; David.Rothgnrc.gov; andrea.jonesgnrc.gov; Mylan L. Denerstein, Esq. Phillip Musegaas, Esq.

Executive Deputy Attorney General Victor M. Tafur, Esq.

120 Broadway, 2 5 th. Floor Deborah Brancato, Esq.

New York, NY 10271 Riverkeeper, inc.

E-mail: mylan.denerstein~d-oag.state.nv .us 828 South Broadway Tarrytown, NY 10591 E-Mail: phil lippriverkeeper.org vtafura.,riverkeeper.org dbrancatonariverkeeper.ora X

o9 Ross Gould April 20, 2009 6

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