NL-13-075, State of New York'S Answer to Entergy'S Motion for Clarification Regarding the Timing of Adjudicatory Submissions Related to Entergy Letter NL-13-075
| ML13186A215 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/05/2013 |
| From: | Sipos J State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NL-13-075, RAS 24788 | |
| Download: ML13186A215 (12) | |
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. July 5, 2013
x STATE OF NEW YORKS ANSWER TO ENTERGYS MOTION FOR CLARIFICATION REGARDING THE TIMING OF ADJUDICATORY SUBMISSIONS RELATED TO ENTERGY LETTER NL-13-075 Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the State of New York responds to Entergys motion for clarification regarding the timing of adjudicatory submissions related to Entergy letter NL 075 and Contention NYS-35/36 (NYS-35/36), which the Board dispositioned in favor of the State two years ago in LBP-11-17. Applicants Motion for Clarification Regarding the Timing of Adjudicatory Submissions Related to Entergy Letter NL-13-075 (June 25, 2013)
(ML13176A448) (Entergys Motion). As an initial matter, the State submits that the Boards order granting summary disposition on NYS-35/36 and the Boards previous statements on NL-13-0751 are clear such that Entergys motion is unnecessary. Should, however, the Board decide that its position needs clarification pursuant to Entergys request, the State agrees with Entergy that a supplement to the Final Supplemental Environmental Impact Statement (FSEIS) documenting NRC Staffs review of NL-13-075 or otherwise attempting to address the Boards summary disposition of NYS-35/36 would appropriately trigger further adjudicatory submissions. The State would request 90 days, rather than 30 days as Entergy proposes, to file any adjudicatory submissions, such as new or amended contentions, based on NRC Staff action relating to NL-13-075 or NYS-35/36.
1 Letter from F. Dacimo, Vice President, Indian Point Energy Center, to NRC Document Control Desk, License Renewal Application-Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial (May 6, 2013) (ML13142A014)
(NL-13-075).
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ARGUMENT Clarification Is Unnecessary The clarity of the Boards previous statements regarding NYS-35/36 and NL-13-075 makes further elaboration of the Boards position unnecessary at this point in time.2 In granting summary disposition to the State, the Board found that the NRC Staffs decision to allow Entergy to complete its SAMA review outside of the license renewal process, by deferring the evaluation of SAMAs found to be potentially cost-beneficial until after relicensing, does not provide an adequate record for the agency to make its decision on the impacts of relicensing IP2 and IP3. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
(Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36), LBP-11-17, 74 N.R.C. 11, 16-17 (Jul. 14, 2011), interlocutory review denied, CLI-11-14, 74 N.R.C. 801 (Dec.
22, 2011). Thus, NRC Staffs FSEIS for the proposed license renewal of Indian Point Unit 2 and Unit 3 has been found insufficient and it cannot now provide the basis to issue a renewed operating license for Indian Point Unit 2 or Indian Point Unit 3 under NEPA. While NRC Staff indicated that it has not decided what form the results of its review of NL-13-075 will take (see June 10, 2013 Tr. at 4515:23 - 4516:3 (Turk)), the only way to remedy the deficiencies in the FSEIS is for NRC Staff to follow the Boards order:
[U]nder NRC Regulations, the APA, and NEPA, Entergys licenses cannot be renewed unless and until the NRC Staff reviews Entergys completed SAMA analyses and either incorporates the result of these reviews into the FSEIS or, in the alternative, modifies its FSEIS to provide a valid reason for recommending the 2
Although Entergys Motion relies on the Boards June 10, 2013 solicitation of a proposal with appropriate briefing where additional clarification is necessary, the State notes that the present motion may be outside the scope of the Boards solicitation, as that statement by the Board had direct bearing only on a discussion of disclosure obligations. Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 4556: 7-11 (June 10, 2013)
(ML13170A126) (June 10, 2013 Tr.). See also Entergys Motion at 1 n.1.
2
renewal of the licenses before the analysis of potentially cost effective SAMAs is complete and for not requiring the implementation of cost-beneficial SAMAs.
Indian Point, LBP-11-17, 74 N.R.C. at 27. In order to satisfy NRC Staffs obligation to comply with NEPA, the FSEIS must demonstrate that the NRC has received sufficient information to take a hard look at SAMAs, has in fact taken that hard look, and has adequately explained its conclusions that may, but need not, include requiring the implementation of cost-effective SAMAs. 3 Id.
During the June 10, 2013 teleconference, Judge McDade stated that the disposition of NYS-35/36 could change only if the Commission overrules the Boards decision, or the state of the record changes. See June 10, 2013 Tr. at 4554:24-25 (J. McDade). 4 NRC Staff agreed with the Board generally, but clarified that its determination of whether or not NL-13-075 is new and significant is distinct from that of whether the Boards decision [on NYS-35/36] is [a]ffected by any Staff action. See id. at 4518:5-10 (Turk). Staff further noted that the Boards decision is binding currently. There is nothing before [the Board] on 35 and 36 that would cause [the 3
The Boards order on NYS-35/36 cited Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 N.R.C. 373, 388 n.77 (2002),
along with Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 294 n. 26 (2010), noting that both [cases]
are inapposite here. Indian Point, LBP-11-17, 74 N.R.C. at 25 & n.63. Entergy misreads this statement to suggest that the Board further stated that a SAMA need not be implemented as part of a particular plants license renewal review when the Commission is concurrently resolving the safety improvement achieved by the SAMA through a generic process applicable to the agencys review of all plants current licensing bases. See Entergys Motion at 4 & n.18. The State disagrees with Entergys expansive characterization of dicta.
4 During consultation, Entergy stated that it was considering seeking clarification from the Board on the proper procedural vehicle for changing the record on NYS-35/36. The State expressed its opinion that such a request would be premature at this point and Entergy ultimately agreed. See Entergys Motion at 6 n.33. The State believes that changing the record on NYS-35/36 would require some affirmative action by the parties and the State is ready to provide further opinion on that matter at the appropriate time.
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Board] to reopen that. No party has moved to reopen it. Id. at 4516:13 - 4517:2, 4518:5-10 (Turk).
While NRC Staff suggested that parties could seek to reopen the record or file new or amended contentions before the Staff documents its review (see id. at 4516:14-23 (Turk),
4522:12-16 (Harris), and 4523:11-16 (Harris)), neither Entergy nor the State agreed with that position. See id. at 4528:3-22 (Bessette) (Entergys position); 5 4530:10-16 (Sipos), 4531:2-6 (Sipos) (the States position). The Board indicated that in the post-hearing we have advised parties to hold off filing new and amended contentions pending submission of revised safety evaluation reports and environmental impact statements such that parties use the filing of an EIS, [or a] supplement to the EIS as the trigger rather than the filing or the submission of this information by Entergy. Id. at 4523:18-24 (J. McDade). Furthermore, the Boards statement that Entergys disclosure of NL-13-075 to the other parties was proper because it also had the potential to impact other SAMA contentions such as 16 signifies that NL-13-075 did not, in the Boards eyes, trigger a requirement to file further adjudicatory submissions relating to NYS-35/36, but rather was simply a proper disclosure within the scope of the proceeding. Id. at 4555:19-21 (J. McDade) (emphasis added).
Given the clarity and consistency of the Boards statements on this issue, the State finds no ambiguity necessitating further statements by the Board on the question of what the appropriate trigger for further adjudicatory submissions by the parties would be. The State submits that the Board has been clear on this point: the trigger for further adjudicatory 5
The June 10, 2013 transcript incorrectly attributes these remarks to Mr. Burchfield (another counsel who participated in the conference on behalf of Entergy).
4
submissions would be an FSEIS supplement or other documentation from the NRC Staff reflecting its review of NL-13-075, Entergys most recent revisions to the SAMA analysis.6 If the Board Provides Clarification Pursuant to Entergys Request, the State Agrees that NRC Staff Action on NL-13-075 Could Trigger Further Adjudicatory Submissions, but Respectfully Requests 90 Days for Any Adjudicatory Filings Entergy suggests that a draft FSEIS supplement or other written evaluation of NL-13-075 from NRC Staff would be an appropriate trigger for further adjudicatory submissions. See Entergys Motion at 7 n.37. Should the Board opt to provide further clarification, the State agrees that the triggers that Entergy identifies are traditionally the appropriate ones, but notes that allowing the State to submit comments on the draft and then file contentions or other adjudicatory submissions on the final FSEIS supplement may be more efficient than requiring the State to submit contentions or other adjudicatory submissions on both the draft and the final supplement. Pursuant to 10 C.F.R. § 2.309(f)(vii)(2), participants may file new or amended environmental contentions(e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) (emphasis added), but the regulation does not specify whether a draft supplement or a final supplement would be the more appropriate trigger. Designating a final FSEIS supplement as the trigger would be within the ambit of the regulation while conserving parties litigation resources and the Boards time.
6 Staffs recent July 1, 2013 status report to the Board states: The Staff has not yet decided whether it will issue a supplement to its FSEIS to address the new information contained in NL-13-075. NRC Staffs 17th Status Report in Response to the Atomic Safety and Licensing Boards Order of February 16, 2012 (July 1, 2013) at 5 (ML13182A731). The State maintains that without a supplement to the FSEIS, Staff issuance of a Finding of No Significant Impact (FONSI) or other document relating to NL-13-075 would be insufficient to remedy the deficiencies in the FSEIS that the Board identified in its summary disposition order on NYS-35/36. See supra pp. 2-3 (citing Indian Point, LBP-11-17, 74 N.R.C. at 27).
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Additionally, the State respectfully requests that the Board grant at least 90 days for the State to file any new contentions based on any Staff review of NL-13-075. In the alternative, the State reserves the right to seek additional time if and when NRC Staff action triggers any obligations to file further adjudicatory submissions. The State filed NYS-35/36 in March 2010, identifying the issues with NRC Staffs review of the SAMA analysis in the FSEIS. The Boards ruling on NYS-35/36 occurred two years ago (July 2011), and Entergy worked on NL-13-075 for many months before submitting it in May 2013.7 In light of the time NRC Staff and Entergy have been afforded, the States request of 90 days is reasonable.
7 Documents recently requested from Entergy show that Entergy and its consultants work on NL-13-075 matters dates back to September 2012, if not earlier. See June 10, 2013 Tr. at 4553:2-23 (Liberatore).
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CONCLUSION For the foregoing reasons, the State of New York respectfully requests the Board deny Entergys motion for clarification. Should the Board grant Entergys motion and provide clarification, the State respectfully requests that the Board set Staffs issuance of a draft or final supplement to the FSEIS as an appropriate trigger date, and that the State be afforded at least 90 days to file new contentions based on any supplement.
Respectfully submitted, Signed (electronically) by Signed (electronically) by Kathryn M. Liberatore John J. Sipos Assistant Attorney General Assistant Attorney General Office of the Attorney General Tiffany Woo, Legal Intern for the State of New York The Capitol Office of the Attorney General Albany, New York 12224 for the State of New York (518) 402-2251 120 Broadway New York, New York 10271 (212) 416-8482 July 5, 2013 7
Certificate Pursuant to 10 C.F.R. § 2.323 In accordance with the Boards Scheduling Order of July 1, 2010 (at 8-9) and 10 C.F.R.
§ 2.323(b), the undersigned counsel hereby certifies that counsel for the State of New York have made a sincere effort to make themselves available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that their efforts to resolve the issues have been unsuccessful.
Signed (electronically) by John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 July 5, 2013 8
UNITED 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. July 5, 2013
x CERTIFICATE OF SERVICE I hereby certify that on July 5, 2013, copies of the accompanying State of New Yorks Answer to Entergys Motion for Clarification Regarding the Timing of Adjudicatory Submissions Related to Entergy Letter NL-13-075 were served electronically via the Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Shelbie Lewman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge Carter Thurman, Esq., Law Clerk Michael F. Kennedy, Administrative Judge James Maltese, Esq., Law Clerk Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Shelbie.Lewman@nrc.gov Richard.Wardwell@nrc.gov Carter.Thurman@nrc.gov Michael.Kennedy@nrc.gov James.Maltese@nrc.gov Atomic Safety and Licensing Board Panel Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 16 G4 11545 Rockville Pike One White Flint North Rockville, MD 20852-2738 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov 1
Office of the Secretary Bobby R. Burchfield, Esq.
Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.
U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.
Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.
David E. Roth, Esq. Richard A. Meserve, Esq.
Beth N. Mizuno, Esq. Matthew W. Swinehart, Esq.
Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Joseph A. Lindell, Esq. Washington, DC 20004-2401 Office of the General Counsel rmeserve@cov.com U.S. Nuclear Regulatory Commission mswinegart@cov.com Mailstop 15 D21 One White Flint North Elise N. Zoli, Esq.
11555 Rockville Pike Goodwin Procter, LLP Rockville, MD 20852-2738 Exchange Place sherwin.turk@nrc.gov 53 State Street david.roth@nrc.gov Boston, MA 02109 beth.mizuno@nrc.gov ezoli@goodwinprocter.com brian.harris@nrc.gov anita.ghosh@nrc.gov William C. Dennis, Esq.
Joseph.Lindell@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.
Kathryn M. Sutton, Esq. 440 Hamilton Avenue Paul M. Bessette, Esq. White Plains, NY 10601 Jonathan Rund, Esq. wdennis@entergy.com Raphael Kuyler, Esq.
Morgan, Lewis & Bockius LLP Robert D. Snook, Esq.
1111 Pennsylvania Avenue, NW Assistant Attorney General Washington, DC 20004 Office of the Attorney General ksutton@morganlewis.com State of Connecticut pbessette@morganlewis.com 55 Elm Street jrund@morganlewis.com P.O. Box 120 rkuyler@morganlewis.com Hartford, CT 06141-0120 robert.snook@ct.gov Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2
Melissa-Jean Rotini, Esq. Karla Raimundi, Assistant County Attorney Environmental Justice Associate Office of the Westchester County Attorney Hudson River Sloop Clearwater, Inc.
Michaelian Office Building 724 Wolcott Avenue 148 Martine Avenue, 6th Floor Beacon, NY 12508 White Plains, NY 10601 karla@clearwater.org MJR1@westchestergov.com Richard Webster, Esq.
Sean Murray, Mayor Public Justice, P.C.
Kevin Hay, Village Administrator Suite 200 Village of Buchanan 1825 K Street, NW Municipal Building Washington, DC 20006 236 Tate Avenue rwebster@publicjustice.net Buchanan, NY 10511-1298 Administer@villageofbuchanan.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Daniel Riesel, Esq. Riverkeeper, Inc.
Thomas F. Wood, Esq. 20 Secor Road Victoria S. Treanor, Esq. Ossining, NY 10562 Sive, Paget & Riesel, P.C. phillip@riverkeeper.org 460 Park Avenue dbrancato@riverkeeper.org New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Teresa Manzi State of New York (518) 474-1978 Dated at Albany, New York this 5th day of July 2013 3