ML14100A002

Entergy Reply to Clearwater Answer to Entergy and Staff Petitions for Review Regarding Contention CW-EC-3A

ML14100A002
Person / Time
Site:	Indian Point
Issue date:	04/09/2014
From:	Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25799
Download: ML14100A002 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 9, 2014 ENTERGY REPLY TO CLEARWATER ANSWER TO ENTERGY AND STAFF PETITIONS FOR REVIEW REGARDING CONTENTION CW-EC-3A I. INTRODUCTION On February 14, 2014, Entergy Nuclear Operations, Inc. (Entergy),1 the Nuclear Regulatory Commission (NRC or Commission) Staff,2 and Hudson River Sloop Clearwater, Inc. (Clearwater)3 each filed a petition for review of the Atomic Safety and Licensing Boards (Board) Partial Initial Decision (LBP-13-13) concerning Contention CW-EC-3A (Environmental Justice (EJ)) in the Indian Point license renewal proceeding. On March 25, 2014, Clearwater filed a consolidated answer opposing both the Entergy and Staff Petitions.4 Pursuant to 10 C.F.R. § 2.341(b)(3), Entergy submits this Reply to Clearwaters Answer. For the reasons discussed below, Clearwaters arguments lack merit, if not relevance, and only serve to underscore the need for Commission review of the Boards decisions on CW-EC-3A.

1 Applicants Petition for Review of Board Decisions Regarding Contentions NYS-8 (Electrical Transformers), CW-EC-3A (Environmental Justice), and NYS-35/36 (SAMA Cost Estimates) (Feb. 14, 2014) (Entergy Petition), available at ML14045A332.

2 NRC Staffs Petition for Commission Review of LBP-13-13 in Part (Contentions NYS-8 and CW-EC-3A), and LBP-11-17 (Contention NYS-35/36) (Feb. 14, 2014) (Staff Petition), available at ADAMS Accession No. ML14045A088.

3 Hudson River Sloop Clearwater, Inc. Petition for Review (Feb. 14, 2014) (Clearwater Petition), available at ADAMS Accession No. ML14045A417.

4 Hudson River Sloop Clearwater, Inc.s Combined Answer in Opposition to the Applicants Petition for Review and the NRC Staffs Petition for Review of Board Decision Regarding Contention CW-EC-3A (Mar. 26, 2014) (Clearwater Answer), available at ADAMS Accession No. ML14085A002.

II. ARGUMENT Clearwater expends substantial effort in its Answer detailing the history of the EJ movement,5 but there is no argument between the parties regarding the origins of EJ or the need to conduct an EJ analysis for the Indian Point license renewal. Instead, the issues on appeal are whether the Board committed reversible error by: (1) admitting CW-EC-3A in the first place; (2) admitting into the record extensive evidence regarding alleged emergency planning deficiencies; and (3) finding that there would be potentially disproportionate and adverse impacts on EJ populations from evacuation or sheltering-in-place in the event of a severe accident at Indian Point.6 Clearwaters Answer fails to show that the Board did not err on all three counts.

A. Entergy and the Staff Appropriately Filed Petitions for Review As a threshold matter, Clearwater argues that Commission review of the Boards findings concerning the adequacy of the Staffs EJ analysis is unnecessary for three principal reasons:

(1) the Board ultimately resolved CW-EC-3A in Entergys and the Staffs favor; (2) Commission review of the Boards findings would result in an unauthorized advisory ruling; and (3) the Boards findings are limited to this licensing proceeding and consequently have no generic implications.7 Those arguments lack merit and should be summarily rejected by the Commission.

First and foremost, the Board findings under appeal hardly can be described as favorable to Entergy and the Staff. To wit, the Board admitted a plainly defective contention, infused the adjudicatory record with irrelevant and immaterial evidence, and erroneously concluded that the Staff failed to meet its EJ-related obligations under the National Environmental Policy Act (NEPA). In fact, the Board even considered returning the issue to the NRC Staff so that it could amend the [Final Supplemental Environmental Impact Statement (FSEIS)], but declined 5

See generally Clearwater Answer at 1-21.

6 See Entergy Petition at 24-43; Staff Petition at 24-41.

7 Clearwater Answer at 10-11.

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to do so because, in its view, the Commission and the public have been presented with the relevant EJ facts so that an informed decision can be made.8 As reflected in the cases cited by Clearwater, appeals are appropriate where a party is aggrieved by, or dissatisfied with, the action taken below9 and appeals are not appropriate when a party will be entirely satisfied with the result.10 For the reasons explained in their petitions for review, both Entergy and the NRC Staff have been aggrieved by the Boards decision. In short, without a valid factual or legal basis, the Board de facto reversed the Staffs finding in the FSEIS that there are no disproportionate adverse impacts on EJ populations associated with Indian Point license renewal. In doing so, it disregarded substantial uncontroverted Entergy and Staff evidence in favor of inadmissible Clearwater evidence and lay opinion, and misconstrued controlling law and precedent governing the proper contours of an EJ analysis.

Second, Entergy and the Staff are not seeking an unauthorized advisory decision from the Commission.11 Plainly, there remains a live controversy, or concrete dispute, where all of the parties [each of which has filed an appeal] have a stake in the outcome of the litigation.12 Moreover, Commission review of the Boards erroneous findings would not be a mere academic exercise.13 The Commissions practice is to address novel legal or policy issues and to provide appropriate guidance. The Commission will do so even in moot cases if necessary to clarify 8

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3) LBP-13-13, 77 NRC __, slip op. at 388 n.2107 (Nov. 27, 2013).

9 Pub. Serv. Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 202 (1978).

10 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-282, 2 NRC 9, 10 n.1 (1975).

11 Furthermore, even assuming Entergy and Staff sought an advisory ruling, the Commission has ample authority to issue such a ruling, if so inclined, given its inherent supervisory authority over NRC adjudicatory proceedings. See, e.g.,

Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-90-3, 31 NRC 219, 229 (1990) (noting the Commissions inherent supervisory authority, including the power to assume part or all of the functions of the presiding officer in a given adjudication, as appropriate in the context of a particular proceeding).

12 S. Calif. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-13-10, 77 NRC __, slip op. at 8 (Dec.

5, 2013).

13 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-21, 68 NRC 351, 353 (2008).

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important issues for the future.14 The Boards ruling on CW-EC-3A raises important questions of law and policy concerning the scope of the NRCs EJ analysis and mitigation responsibilities, including the propriety of considering emergency planning issues in that context.

Finally, the fact that the Board findings under appeal arose from a site-specific licensing adjudication is irrelevant.15 Under that dubious logic, no Board adjudicatory decision would ever give rise to novel legal or policy issues worthy of Commission review. Regardless, the Boards EJ ruling clearly has important generic implications that justify Commission intervention. The Boards decision contravenes Commission policy and precedent concerning the scope of an EJ analysis, and NRC regulations and legal precedent that exclude emergency planning issues from the scope of license renewal proceedings.16 The Commission should not allow petitioners, as the Board has done here, to use EJ analyses as a backdoor for challenging state and federally-approved emergency planning procedures and guidelines in a license renewal proceeding.

B. The Board Clearly and Materially Erred by Admitting the EJ Contention As discussed in Entergys Petition, the Board erred in admitting CW-EC-3 (as well as amended CW-EC-3A), because the contention failed to meet the NRCs contention admissibility requirements, and improperly challenged the adequacy of the Indian Point emergency plans (which, as noted above, are outside the scope of license renewal).17 14 Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-05-14, 61 NRC 359, 362 (2005) (citation omitted)

(reviewing a Licensing Board decision sua sponte and noting that the Commission is not subject to the constitutional case or controversy requirement that prevents federal courts from deciding moot questions).

15 See Clearwater Answer at 10-11. It bears emphasis that Clearwaters arguments regarding purported problematic evacuations due to car ownership constraints and inadequate sheltering are not unique to the facts of this case. All or nearly all emergency plans rely on some form of public transport for persons without the ability to self evacuate, as well as permit and even recommend sheltering in designated circumstances. Moreover, Indian Point is not the only nuclear plant located within 50 miles of a prison population or populations without access to personal vehicles.

16 See 10 C.F.R. § 50.47(a)(1)(i); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI 24, 62 NRC 551, 560-61 (2005); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 640 (2004); Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 9 (2001).

17 Entergy Petition at 33-36.

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1. Clearwaters Arguments Are Largely Irrelevant to Contention Admissibility Although Clearwater states its opposition to Entergys admissibility arguments in its Answer, most of its own arguments are unrelated to contention admissibility. Clearwater instead focuses on the sufficiency of the Boards merits decision in LBP-13-13 and the purported need for additional mitigation measures.18 Significantly, Clearwaters Answer fails even to mention LBP-08-13,19 the Board decision that originally admitted CW-EC-3.

As such, Clearwater offers no counterargument to Entergys position that Clearwater failed to show at the contention admissibility stage that any likely or probable adverse environmental impacts would be visited upon EJ populations as a result of license renewalmuch less significant or high impacts that would disproportionately affect EJ populations.20 Clearwater claims that Entergy ignores the likelihood, admitted by Entergys own witness (Ex. ENT000258 at 15), of the risk [sic] significant radiation exposure to the socioeconomically trapped EJ populations in the event of a severe nuclear accident at Indian Point.21 However, that argument clearly relates to the evidentiary hearing and has nothing to do with the Boards threshold decision to admit Clearwaters EJ contention nearly six years ago. Moreover, it is factually incorrect.22 No Entergy witness admitted any risk of significant radiation exposure, and the specific exhibit cited by Clearwater (Ex. ENT000258) does not support that claim.

18 See Clearwater Answer at 22-27.

19 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43 (2008).

20 Entergy Petition at 35 (emphasis in original).

21 Clearwater Answer at 26.

22 See Clearwater Answer at 22-27. Clearwater misstates other Board findings in this proceeding. For example, it claims that [a]s the Board found, [m]inority and poor communities within [the 50-mile] radius were more likely to suffer significant risk of exposure from radiation released during [severe accident] events because they do not have the same transportation infrastructure and resources to shelter in place as white, affluent, communities. Clearwater Answer at

22. In the Boards decision admitting CW-EC-3, it does not make these findings. See Indian Point, LBP-08-13, 68 NRC at 196-201. Even in its merits decision, the Board did not discuss or make any findings about a white, affluent, communities. Nor did it state that there was a significant risk; rather, the Board stated that the risk was improbable and small. See Indian Point, LBP-13-13, slip op. at 382, 387.

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Clearwater also quotes the Boards statement in LBP-13-13 (the Boards merits decision) that [o]nly if the harm in question is so remote and speculative as to reduce the effective probability of its occurrence to zero may the agency dispense with the consequences portion of the analysis.23 Again, Clearwaters argument is irrelevant to Entergys position that Clearwater failed to meet its burdenat the contention admissibility stageto show that there are any likely or probable adverse environmental impacts.24 Finally, Clearwater fails to address yet another dispositive Entergy argument. In opposing the admission of CW-EC-3, Entergy argued that Clearwater provided no evidence suggesting that the Indian Point license renewal would result in radiological doses above regulatory thresholds,25 so as to establish a genuine dispute with Entergy on a material issue of fact or law.26 Remarkably, that argument remains unchallenged by Clearwater todayyears later and even after the evidentiary hearing.27 Accordingly, Clearwater has provided no valid reason for the Commission to allow the Boards erroneous admissibility determinations to stand on appeal.

23 Clearwater Answer at 26 (quoting Indian Point, LBP-13-13, slip op. at 382).

24 See Entergy Petition at 35.

25 See id. at 35-36; Answer of Entergy Nuclear Operations, Inc. Opposing Hudson River Sloop Clearwater Inc.s Petition to Intervene and Request for Hearing at 62-63, 66-67 (Jan. 22, 2008), available at ADAMS Accession No. ML080300053.

26 See S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 263-64 (2007) (denying the admission of a similar EJ contention, on the basis that the contention lacks an adequate showing of adverse impacts, without which disparate impacts have no significance, making the potential issue immaterial to the environmental findings associated with the . . . application and thus an inadmissible contention); Dominion Nuclear N.

Anna, LLC (Early Site Permit for N. Anna ESP Site), CLI-07-27, 66 NRC 215, 247 (2007) (describing EJ issues as those that could lead to a disproportionately high and adverse impact).

27 Notably, NRC Staff witnesses provided uncontroverted testimony that any radiation doses received by any population as a result of a severe accident at Indian Point would be within acceptable federal guidelines set by the U.S.

Environmental Protection Agency. NRC Staff Testimony of Jeffrey J. Rikhoff and Patricia A. Milligan Regarding Contention CW-EC-3A (Environmental Justice) at 12 (A11) (Mar. 30, 2012) (NRC000063); Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2774:20-23 (Rikhoff), 2762:6-25 (Milligan) (All of these doses are well within the established federal guidelines.), 2780:17-25 (Milligan) (agreeing that nobody would receive an inappropriate dose beyond the regulatory limits) (Oct. 23, 2012). A dosage increase that remains well under regulatory limits is not a high and adverse effect that would be cognizable for EJ analysis purposes. Vogtle ESP, LBP-07-3, 65 NRC at 266.

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2. Emergency Planning Is Outside the Scope of License Renewal Clearwater claims that Entergy distorts the substantive focus of the Board in [LBP-13-13]

from an EJ analysis under NEPA to a challenge of the emergency preparedness plans.28 Ironically, it is Clearwater that seeks to cloak the issues at bar in a veil of smoke, often through impassioned but superfluous discussions of systemic racial and economic discrimination.29 It was quite evident, from the start, that Clearwaters contention is based directly on purported disproportionate impacts on minority and low-income populations caused by an evacuation resulting from a severe accident at Indian Point.30 Clearwater unambiguously attributed those disproportionate impacts to purported deficiencies in state and local emergency plans for Indian Point.31 Tellingly, Clearwater asserts that [t]he lack of an adequate emergency plan is not the issue here, but in the next paragraph, states that [r]evising the emergency plan to address and ameliorate this inequity is one of many possible mitigation measures.32 No amount of semantical sleight of hand can conceal Clearwaters direct challenges to the adequacy of Entergys emergency plans. As such, the Board clearly erred in failing to follow Commission precedent and reject the contention as outside the scope of this license renewal adjudication.33 28 Clearwater Answer at 6.

29 Id. at 7, 17-18. In doing so, Clearwater also resorts to ad hominem attacks on Entergy, which it portrays as indifferent to social inequity and the public health and safety. For example, it states that Entergy profits by putting people of color and those with less economic resources at a greater risk in the event of a severe nuclear accident at Indian Point.

Id. at 6. Such statements are as groundless as they are gratuitous.

30 See Hudson River Sloop Clearwater, Incs Petition to Intervene and Request for Hearing at 47-48 (Dec. 10, 2007),

available at ADAMS Accession No. ML073520042.

31 In particular, Clearwater cited alleged significant difficulties in evacuating low-income and minority populations that rely on public transportation (Id. at 47-48), the alleged lack of evacuation plans for Sing Sing Correctional Facility prisoners (Id. at 48-53), and extremely problematic evacuations of disabled individuals due to the lack of sufficient emergency planning (Id. at 51-52). As further support, Clearwater referenced various reports on emergency preparedness, hurricane Katrina, and also a New York State proposed contention which alleged that Entergys Environmental Report failed to address emergency preparedness and evacuation planning for Indian Point. Id. at 47-48.

32 Clearwater Answer at 23.

33 See, e.g., Millstone, CLI-05-24, 62 NRC at 560-61.

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3. The Mitigation Measures Cited by Clearwater Are Not Within the Scope of This License Renewal Proceeding As noted above, Clearwater asserts that revising the emergency plan is one of many possible mitigation measures.34 Clearwater further states that other possible mitigation measures could be outside and independent of or within the emergency plan itself, such as training prison bus drivers, training guards and law enforcement, providing additional buses for transportation in a severe accident, and creating new facilities for sheltering in place.35 These proposed mitigation measures undeniably relate to evacuation or sheltering following a severe accident. Therefore, they relate directly to emergency planning and are outside the scope of this proceeding.36 Clearwater also argues that EJ-related mitigation measures, even if related to emergency planning, can and should be considered within the context of the severe accident mitigation alternatives (SAMA) analysis required by NRC regulations.37 That argument, however, rests on a complete misunderstanding of the purpose and scope of an NRC-required SAMA analysis.38 As the Commission has explained, a SAMA analysis examines a variety of potential severe accident progression scenarios, and evaluates the degree to which specific additional mitigation measures (e.g., new plant procedures or hardware) may reduce the riskby reducing the probability or the 34 Clearwater Answer at 23; see also id. at 6, 18-20, 23-24, 31.

35 Id. at 23-24 (emphasis in original).

36 Furthermore, Clearwaters mitigation-related arguments do not directly relate to the Entergy and Staff petitions, which argued that the Board should not have admitted CW-EC-3A and that the Board erred in rejecting the FSEIS EJ analysis.

Instead, they relate to Clearwaters own petition, which argued that mitigation needs to be further addressed. See Clearwater Petition at 11-13. Nonetheless, Entergy already has responded to those arguments in its answer to the Clearwater Petition. Entergy explained there that the FSEIS need not discuss mitigation for SMALL severe accident impacts; the FSEIS need not discuss mitigation requiring changes to the emergency plans; and the SAMA evaluation already addresses severe accident mitigation. See Applicants Answer Opposing Hudson River Sloop Clearwater, Inc.

Petition for Review of Board Decision Regarding Contention CW-EC-3A (Environmental Justice) at 21-25 (Mar. 25, 2014), available at ADAMS Accession No. ML14084A612. Additionally, Entergy explained that Clearwaters reference to Limerick Ecology, which is repeated in the Clearwater Answer at 19, misstates the holding of the case and does not support any claim that the Court found that the Commission . . . violated NEPA and that the Commission

. . . abused its discretion in failing to consider the training of civilian drivers. Id. at 24 & n.115.

37 Clearwater Answer at 24-27.

38 The FSEIS already includes the SAMA evaluation required by the NRCan evaluation on which Clearwater did not proffer an admissible contention.

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consequencesof the accident scenarios evaluated.39 It does not evaluate alternative emergency planning strategies or means for addressing racial and socioeconomic disparities. Clearwater has cited no authority that would support a contrary conclusion.40 C. The Board Clearly and Materially Erred in Concluding that the NRC Staffs EJ Analysis Was Deficient Clearwater states in passing that the Board did not err in rejecting the Staffs EJ analysis, but then shifts focus to its main argument that the EJ analysis requires further development beyond what is included in the adjudicatory record.41 This line of argument is not responsive to Entergys and the Staffs arguments on appeal and exceeds the proper scope of an answer. In this regard, Clearwaters Answer completely fails to rebut Entergys and the Staffs arguments that the Board materially erred in concluding that the EJ analysis in the Indian Point FSEIS was inadequate.42 D. The Board Erred in Denying Entergys Motions In Limine Contrary to Clearwaters claim, the Board materially erred in rejecting Entergys motions in limine because, in doing so, it failed to consider only relevant, material, and reliable evidence.43 As a result, the Board erroneously concluded that the FSEIS was deficient on the basis of an 39 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 706 (2012). See also Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,481 (June 5, 1996) (NYS000127).

40 Relatedly, Clearwater also argues that Entergy and the Staff cannot rely upon the Generic Environmental Impact Statement (GEIS) to avoid a site-specific consideration of severe accident mitigation. See Clearwater Answer at 24-

27. Entergy and the Staff have not done this; rather, they have provided a full SAMA evaluation. Furthermore, to the extent Clearwater is challenging the generic determination in the License Renewal GEIS and Table B-1 in 10 C.F.R. Part 51 that [t]he probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants, it is prohibited from doing so. Commission precedent establishes that this finding applies to all plants and that no site-specific severe accident impacts analysis need be done for license renewal. See Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010); Pilgrim, CLI-12-15, 75 NRC at 709.

41 Clearwater Answer at 27-29. Clearwater essentially argues that the Board should have remanded the FSEIS to the Staff for further EJ analysis once it concluded that the existing FSEIS EJ analysis did not satisfy NEPA. In doing so, Clearwater simply copied arguments that it made in its own Petition about the need for a more detailed EJ analysis.

Compare id. with Clearwater Petition at 7-9. Entergy already has responded to Clearwaters arguments on this issue in its answer to the Clearwater Petition. If the Commission grants the relief requested by the Entergy and Staff Petitions, then the need for further EJ analysis beyond the adjudicatory record is moot. If the Commission rejects the requested relief, then the sufficiency of the EJ analysis would be considered as part of the Clearwater petition for review.

42 See Entergy Petition at 37-42; Staff Petition at 24-41.

43 10 C.F.R. §§ 2.337(a), 2.319(d)-(e).

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evidentiary record that is replete with patently inadmissible Clearwater evidence.44 Clearwater wrongly claims that Entergy failed to show that the Board was influenced by the evidence covered by the motions in limine.45 Entergys Petition describes the extensive body of Clearwater testimony and evidencewhich Entergy properly sought to exclude as inadmissiblechallenging the adequacy of the Indian Point emergency plans,46 and demonstrates that the Board did consider that evidence in critiquing the adequacy of the emergency plans.47 Moreover, the Board overlooked countervailing testimony by Entergys and the Staffs experts that directly refuted Clearwaters emergency planning-related claims. This is further indication that the Board both considered and credited the Clearwater testimony in a manner that constitutes prejudicial procedural error. The fact that the Board dispositioned CW-EC-3A by amending the FSEIS via its decision and the adjudicatory record does not cure or diminish that error, because the Boards substantive decision rests on testimony and evidence that were improperly admitted into evidence.

Respectfully submitted, Signed (electronically) by Kathryn M. Sutton MORGAN, LEWIS & BOCKIUS LLP Kathryn M. Sutton, Esq. 1111 Pennsylvania Avenue, N.W.

Paul M. Bessette, Esq. Washington, D.C. 20004 Martin J. ONeill, Esq. Phone: (202) 739-3000 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc. E-mail: martin.oneill@morganlewis.com Dated at Washington, D.C. this 9th day of April 2014 44 Entergy provided three illustrative examples of the Boards elicitation of testimony critiquing the adequacy of the Indian Point emergency plans. Clearwater accuses Entergy of cherry-picking and insists that the Boards questions were actually directed at EJ issues. Each of the three examples, however, clearly relates to emergency planning:

automobile ownership or public transportation; non-English language sources of information with regards to emergency planning; and circumstances . . . applicable to people in assisted living and in nursing homes in the event of a disaster in the area. Entergy Petition at 36-37 n.191. Merely calling something an EJ issue does not make it so.

45 Clearwater Answer at 31.

46 See Entergy Petition at 27-29.

47 See id. at 40-42.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 9, 2014 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of the Entergy Reply to Clearwater Answer to Entergy and Staff Petitions for Review Regarding CW-EC-3A were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

DB1/ 78283673