ML13148A468
| ML13148A468 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/28/2013 |
| From: | Bessette P, Dennis W, Glew W, Sutton K Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24585, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13148A468 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) May 28, 2013 ENTERGYS ANSWER OPPOSING HUDSON RIVER SLOOP CLEARWATERS MOTION FOR LEAVE TO FILE ONE ADDITIONAL EXHIBIT RELATED TO CONTENTION EC-3A (ENVIRONMENTAL JUSTICE)
I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(b), Entergy Nuclear Operations, Inc. (Entergy) files this Answer opposing Hudson River Sloop Clearwater, Inc.s (Clearwater) Motion for Leave to File One Additional Exhibit Related to Contention EC-3A (Environmental Justice)
(Motion), dated May 17, 2013. Clearwater proposes to supplement the hearing record for its environmental justice (EJ) contention, CW-EC-3A, with a Statement of Interest filed by a U.S.
Attorney for the Southern District of New York in an unrelated court proceeding challenging the City of New Yorks emergency management and preparedness plans under the Americans With Disabilities Act (ADA). This Motion follows Clearwaters November 13, 2012 and November 26, 2012 motions, which proposed to add numerous newspaper articles about events related to Hurricane Sandy.1 In rejecting those two prior motions, the Atomic Safety and Licensing Board (Board) held that only relevant, material, and reliable evidence that is not unduly repetitious 1
See Hudson River Sloop Clearwater, Inc.s Motion to Supplement the Record with Relevant New Information that Became Apparent After Hurricane Sandy (Nov. 14, 2012); Hudson River Sloop Clearwater, Inc.s Notice of Supplemental Exhibits to Motion to Supplement the Record with Relevant New Information that Became Apparent After Hurricane Sandy (Nov. 26, 2012).
will be admitted post-hearing.2 As the proposed new exhibit fails to meet these criteria, the Board should deny this Motion.
II. CLEARWATERS NEW EXHIBIT IS INADMISSIBLE A. Background CW-EC-3A alleges that Entergys Environmental Report (ER) and the Nuclear Regulatory Commission (NRC or Commission) Staffs Final Supplemental Environmental Impact Statement (FSEIS) contain flawed EJ analyses that fail to address alleged disparate severe accident impacts on EJ populations near Indian Point.3 In admitting CW-EC-3A, the Board made clear it was not admitting a contention claiming that Indian Point emergency plans are deficient.4 This restriction is dictated by Commission regulations and case law.5 Likewise, the Board has recognized that the EJ analysis itself is a limited one. The Commissions 2004 Environmental Justice Policy Statement emphasizes that the focus of an EJ review is identifying and weighing disproportionately significant and adverse environmental impacts on minority and low-income populations that may be different from the impacts on the 2
Licensing Board Order (Denying Clearwaters Motion to Supplement the Record) at 3-4 (Dec. 5, 2012)
(unpublished) (Dec. 5, 2012 Order).
3 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 200-01 (2008); Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) at 56, 60 (July 6, 2011) (unpublished).
4 See Indian Point, LBP-08-13, 68 NRC at 201.
5 See id. (quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI 24, 62 NRC 551, 561 (2005)); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 302 (2010) (ruling that witness statements on the issue of emergency planning - the need to provide accurate, real time projections of the location and duration of potential public exposures to determine whether, when, and where particular population groups may need to be evacuated are beyond the scope of a license renewal severe accident mitigation alternatives National Environmental Policy Act (NEPA) review).
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general population.6 The EJ inquiry, therefore, is not an inquiry into potential disproportionate impacts on any groups other than minority or low-income populations.
Entergy has raised numerous objections to similar evidence proffered by Clearwater in the past. For example, because extensive portions of Clearwaters pre-filed direct and rebuttal testimony challenged emergency plan adequacy and addressed non-EJ populations, Entergy filed motions in limine seeking to exclude such testimony.7 While the Board denied Entergys motions, it did not alter its previous holdings that emergency plan challenges and issues concerning non-EJ populations are outside the scope of CW-EC-3A and this proceeding.8 Notwithstanding these principles, six months after the hearing on CW-EC-3, Clearwater now proposes to introduce into the record a filing by a U.S. attorney in an entirely different adversarial proceeding pending before the Southern District of New York involving whether New York Citys emergency plans are deficient for not sufficiently accounting for the needs of the disabled (i.e., a non-EJ population) under the ADA. Clearwater also asks the Board to take judicial notice of the fact that a disproportionate number of low-income individuals are disabled as compared to the general population.9 6
Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040, 52,047 (Aug. 24, 2004) (NRC Environmental Justice Policy Statement)
(ENT000260).
7 See generally Entergys Motion in Limine to Exclude Portions of Pre-filed Testimony and Exhibits for Contention CW-EC-3A (Environmental Justice) (Jan. 30, 2012), available at ADAMS Accession No. ML12030A200; Entergys Motion in Limine to Exclude Portions of Clearwaters Rebuttal Filings on Contention CW-EC-3A (Environmental Justice) (July 30, 2012), available at ADAMS Accession No. ML12212A345.
8 See, e.g., Licensing Board Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 35 (Mar. 6, 2012) (unpublished) (To the extent any populations that Clearwaters witnesses describe do not fit within the definition of an EJ population and are not necessary to an EJ analysis, we will discount the weight of such evidence in ruling on the merits of the FSEISs EJ analysis.).
9 Motion at 2, nn. 1 & 2.
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B. Clearwaters New Exhibit Is Irrelevant and Immaterial As an initial matter, Clearwater sweepingly characterizes the proposed exhibit as the official position of the United States. It asserts that admission of the exhibit will assist in the development of a full hearing record and ensure that the Board can take full account of [the United Statess] position.10 But the proposed exhibit is no more than a filing prepared by a U.S.
attorney in an unrelated, unresolved court proceeding challenging the Mayor of New York City under the ADAa statute unrelated to the license renewal proceeding pending before this Board.
In fact, a word search of the proposed exhibit identifies no mention of Entergy, Indian Point, license renewal, NRC, severe accidents, NEPA, or environmental justice.11 Therefore, the proposed exhibit is entirely irrelevant to CW-EC-3.
More importantly, Clearwaters proposed exhibit is immaterial. Commission precedent and policy clearly establish that the purpose of an EJ evaluation is to consider disproportionately high and adverse impacts on low-income and minority populations.12 By proffering the proposed exhibit, Clearwater ignores that precedent. Disabled individuals, which are the subject of the proposed exhibit, are not part of the EJ population groups.13 It is also unclear how the proposed exhibit, which discusses the adequacy of New York Citys emergency response to natural disasters and phenomena, relates to the Indian Point EJ 10 Id. at 3.
11 See generally Statement of Interest of the United States of America (May 10, 2013) (CLE000076).
12 See Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 64 (2001); La. Energy Servs. L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 100 (1998); NRC Environmental Justice Policy Statement at 52, 040 (ENT000260); LIC-203, Rev. 2, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues, App. C, at C-3 (Feb. 17, 2009) (ENT000264).
13 In support of its motion, Clearwater points to the language of the admitted contention, which states that the FSEIS does not adequately assess the impacts of relicensing on minority, low-income and disabled populations. Indian Point, LBP-08-15, 68 NRC at 196, 201 (emphasis added). But the Board was merely quoting Clearwaters contention as pled and did not expand the category of EJ populations, nor does it have the legal authority to do so. See Hydro Res., CLI-01-4, 53 NRC at 64.
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analyses.14 In response to similar motions by Clearwater seeking to admit Hurricane Sandy-related exhibits, the Board ruled that documents dealing with an unrelated weather event are immaterial and not relevant to the reasonableness of the NRC Staffs environmental justice review of Indian Point, Units 2 and 3.15 The same is true in this instance. The proposed exhibit does not in any way relate to the purported significant and adverse radiological impacts of a severe accident on EJ populations at issue in this contention.16 Clearwaters new exhibit also represents yet another impermissible challenge to emergency planning. In admitting the original version of CW-EC-3A, the Board made clear that it was not admitting a contention claiming that Indian Point emergency plans are deficient.17 Although Clearwater has consistently sought to challenge the adequacy of the Indian Point emergency plans in this proceeding,18 this Board has recognized that NRC regulations provide that no finding relating to emergency planning is necessary for issuance of a renewed nuclear power reactor operating license and thus, [t]his language places consideration of emergency plans outside the scope of this proceeding.19 Accordingly, because the proposed exhibit focuses entirely on the adequacy of New York Citys emergency planning,20 it is inadmissible.
14 See Statement of Interest of the United States of America at 1 (May 10, 2013) (CLE000076) (listing the natural hazards and disasters that can affect New York City).
15 Dec. 5, 2012 Order at 3.
16 Indian Point, LBP-08-13, 68 NRC at 200.
17 See id. at 201. The Board reemphasized this point at the hearing. See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2735:3-4 (Oct. 23, 2012) (Judge McDade)([T]his isnt a challenge to the evacuation plan.); id. at 2870:20-22 (Judge McDade).
18 Clearwater most recently attempted to raise these issues during the October 2012 hearings. See, e.g., id. at 2795:6-12 (Edelstein) (emphasizing concerns regarding the adequacy of emergency plans for institutional populations).
19 Indian Point, LBP-08-13, 68 NRC at 149 (rejecting proposed contention NYS-29); see also id. at 165-66 (rejecting proposed contention Connecticut EC-2).
20 Statement of Interest of the United States of America at 3-4 (May 10, 2013) (CLE000076).
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C. Judicial Notice Is Improper in These Circumstances Clearwater requests that the Board take judicial notice of the fact that a disproportionate number of low-income individuals are disabled as compared to the general population.21 In essence, Clearwater seeks to bootstrap disabled populations into the scope of an EJ review. The Commission has stated that presiding officers may only take official notice of matters that are beyond a reasonable controversy and that are capable of immediate and accurate determination.22 As Entergy has noted throughout its testimony and related filings, Commission precedent and policy have clearly delineated the groups that constitute EJ populationsand they do not include the disabled. Further, to the extent Clearwater attempts to equate disabled with low-income populations, their argument is undermined by their own statistic, which shows that the majority of disabled individuals are not low-income.23 Thus, the issue presented by Clearwater for judicial notice is certainly not a matter beyond a reasonable controversy. Accordingly, the standards for judicial notice have not been met, and Clearwaters Motion should be denied.
21 Motion at 2, nn. 1 & 2. This fact is based on a Census Bureau document issued in September 2012. If Clearwater wanted this fact in the record, it should have submitted the Census Bureau document as an exhibit.
Instead, nearly eight months after the document was issued, and after the parties filed findings of fact and replies to those findings, Clearwater makes this request.
22 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 74-75 (1991).
23 See Motion at 2 n.1 ([T]he poverty rate among people with a disability was 28.8% in 2011.).
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III. CONCLUSION For the reasons set forth above, the Board should deny the Motion because the proposed exhibit is irrelevant and relates to matters outside the scope of this proceeding.
Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)
William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.
William C. Dennis, Esq. Paul M. Bessette, Esq.
ENTERGY SERVICES, INC. MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax: (202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.
this 28th day of May 2013 7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) May 28, 2013 MOTION CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Executed in accord with 10 C.F.R. § 2.304(d)
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) May 28, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergy Answer Opposing Hudson River Sloop Clearwater Motion for Leave to File One Additional Exhibit Related to Contention EC-3A (Environmental Justice) 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 DB1/ 74278708 1