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Category:Legal-Intervention Petition
MONTHYEARML11257A1102011-09-14014 September 2011 Certificate of Service for Combined Reply to NRC Staff and Entergy'S Answers in Opposition to Motion to Admit New Contention and for Reply Memorandum Regarding Timeliness and Admissibility of New Contentions ML11257A1092011-09-13013 September 2011 Reply Memorandum Regarding Timeliness and Admissibility of New Contentions Seeking Consideration of Environmental Implications of Fukushima Task Force Report in Individual Reactor Licensing Proceedings ML11257A1112011-09-13013 September 2011 Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.'S Combined Reply to NRC Staff and Entergy'S Answers in Opposition to Motion to Admit New Contention Regarding the Fukushima Task Force Report ML11228A0302011-08-11011 August 2011 the State of New York and the State of Connecticut'S Joint Answer in Opposition to Entergy'S Petition for Interlocutory Review of LBP-11-17 ML11217A0662011-07-29029 July 2011 Applicant'S Petition for Review of LBP-11-17 Granting Summary Disposition of Consolidated Contention NYS-35/36 ML11210B4192011-07-26026 July 2011 State of New York'S Response to Applicant'S Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-17B and NYS-37 ML11179A0922011-06-21021 June 2011 Letter Regarding New York State Department of Environmental Conservation Comments on the NRC Staff'S Final Supplemental Environmental Impact Statement in the Matter of Indian Point, Units 2 and 3, License Renewals ML11133A2882011-04-29029 April 2011 Indian Point, Units 2 & 3, State Submittal of Letter to Bring Two Recent Documents to Attention of the Board and Parties in Connection with NYS Contention-25 ML11117A1462011-04-19019 April 2011 Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Dahchi Nuclear Power Station Accident ML11229A8022011-03-22022 March 2011 Supplementary Certification Regarding Consultation ML11108A1062011-03-21021 March 2011 Combined Reply to Staff and Entergy'S Answers in Opposition to Clearwater'S Motion for Leave and Petition to Amend Contention EC-3 ML1108307802011-03-18018 March 2011 State of New York'S Combined Reply to Entergy and NRC Staff'S Answers to the State'S Proposed Contention 37 Concerning NRC Staff'S December 2010 Final Environmental Impact Statement and Its Deficient Analysis of Energy Alternatives ML1107601812011-03-16016 March 2011 Indian Point - Supplement to NRC Staff'S Answer to Riverkeeper, Inc.'S Motion for Leave to File a New Contention, and New Contention EC-8 Concerning NRC Staff'S Final Supplemental Environmental Impact Statement ML1107000972011-03-0404 March 2011 State of New York'S Combined Reply to the Answer of Entergy and NRC Staff to the State'S Proposed Amended Contention NYS-17B ML1106703812011-02-25025 February 2011 Combined Reply to NRC Staff and Entergy'S Answers in Opposition to Clearwater and Riverkeeper'S Joint Motion for Leave and Petition to Add New Contentions ML1107402862011-02-23023 February 2011 State of New York Withdrawal of Request for Enlargement of Page Limitation for the State'S Consolidated Answer to Separate Motions for Summary Disposition on Contention 35/36 ML1106604252011-02-23023 February 2011 State of New York'S Combined Reply to Entergy and Staff Cross-Motions for Summary Disposition on NYS Combined Contentions 35 and 36 Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis ML1105602702011-02-18018 February 2011 Applicant'S Answer to Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'S New Contentions Concerning the Waste Confidence Rule ML1105605892011-02-18018 February 2011 Applicant'S Answer to Proposed Amended Contention, New York State 17B and the Associated Request for Exemption And/Or Waiver of 10 C.F.R. Section 51.23(b) ML1104604922011-02-10010 February 2011 State of New York Answer in Support of the Admission of Clearwater and Riverkeeper'S Proposed Waste Confidence Contentions ML1106802122011-02-0303 February 2011 State of New York New Contention 12-C Concerning NRC Staff'S December 2010 Final Environmental Impact Statement and Underestimation of Decontamination & Clean Up Costs Associated with Severe Reactor Accident in New York Metropolitan Area ML1030000602010-10-22022 October 2010 State of New York'S Joint Reply to Entergy and NRC Staff'S Separate Answers to the State'S Additional Bases for Previously-Admitted Contention NYS-25 ML1030101042010-10-12012 October 2010 Applicant'S Answer to Amended Contention New York State 25 Concerning Aging Management of Embrittlement of Reactor Pressure Vessel Internals ML1029101452010-10-0404 October 2010 Supporting Attachments to Applicants Answer to New and Amended Contention New York State 26B/Riverkeeper TC-1B (Metal Fatigue) ML1028802972010-10-0404 October 2010 Letter from Martin J. O'Neill Counsel for Entergy Nuclear Operations, Inc. to Emile L. Julian Attachments 8 & 13 to Entergy'S Answer to New & Amended Contention New York State 26B & Riverkeeper TC-1B ML1029101422010-10-0404 October 2010 Applicant'S Answer to New and Amended Contention New York State 26B/Riverkeeper TC-1B (Metal Fatigue) ML1030105182010-09-14014 September 2010 State of Ny & Riverkeeper, Inc Submittal of Counter Statement of Material Fact, Combined Response to Entergy'S Motion for Summary Disposition of Combined Contentions NYS 26/26A & Rk TC-1/TC-1A, Declaration of Janice A. Dean.. ML1023712142010-08-16016 August 2010 Riverkeeper Opposition to Entergy'S Motion for Summary Disposition of Riverkeeper Technical Contention 2 (Flow-Accelerated Corrosion) ML1023001462010-08-13013 August 2010 Entergy'S Answer to Riverkeeper Inc.'S Motion to Compel Disclosure of Documents ML1022405782010-08-0202 August 2010 Applicant'S Reply to the State of New York'S & State of Connecticut'S Combined Reply to Entergy & NRC Staff Petitions for Interlocutory Review of LBP-10-13 ML1021100862010-07-26026 July 2010 the State of New York'S and State of Connecticut'S Combined Reply to Entergy and NRC Staff Petitions for Interlocutory Review of the Atomic Safety and Licensing Board'S Decision Admitting the State of New York'S Contentions 35 & 36 (LBP-10- ML1020300502010-07-15015 July 2010 Applicant'S Petition for Interlocutory Review of LBP-10-13 ML1011604152010-04-12012 April 2010 State of New York'S Combined Reply to Energy and NRC Staff Answers to the State'S New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis ML1014503282010-04-0505 April 2010 Applicant'S Answer to New York State'S New and Amended Contentions Concerning Entergy'S December 2009 Revised SAMA Analysis ML1011004732010-04-0101 April 2010 Answer of the Attorney General of the State of Connecticut to State of New York'S Motion for Leave to File New & Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives ML1005702402009-11-20020 November 2009 Answer of Richard Blumenthal, Attorney General of Connecticut to Hudson River Sloop Clearwater, Inc.'S Petition Presenting Supplemental Contentions EC-7 and SC-1 Concerning Storage of High-level Radioactive Waste at Indian Point ML0934803252009-11-20020 November 2009 Answer to Riverkeeper, Inc. in Support of Hudson River Sloop Clearwater Inc.'S New Contentions EC-7 and SC-1 ML0934910432009-11-20020 November 2009 Indian Point - NRC Staff'S Answer to Hudson River Sloop Clearwater, Inc.'S Motion for Leave to Add New Contentions Based Upon New Information ML0935101942009-11-20020 November 2009 Town of Cortlandt'S Answer to Hudson River Sloop Clearwater, Inc'S Petition Presenting Supplemental Contentions EC-7 & SC-1 Re Storage of High-Level Radioactive Waste at Indian Point ML1005700112009-11-20020 November 2009 Answer of Riverkeeper, Inc. in Support of Hudson River Sloop Clearwater Inc.'S New Contentions EC-7 and SC-1 ML1008200282009-11-19019 November 2009 Answer of the State of New York to Hudson River Sloop Clearwater, Inc.'S Petition Presenting Supplemental Contentions EC-7 and SC-1 Concerning Storage of High-Level Radioactive Waste at Indian Point ML0930801292009-10-26026 October 2009 Hudson River Sloop Clearwater, Inc.'S Motion for Leave to Add a New Contention Based Upon New Information ML0909802072009-04-0707 April 2009 Lr - NRC Staff'S Answer to Hudson River Sloop Clearwater'S Petition to File New Contention, Based Upon New Information Regarding Environmental and Public Health Impacts of Using the Hudson River as a Drinking Water Supply ML0910502112009-04-0606 April 2009 Entergy'S Consolidated Response to Riverkeeper'S February & March 2009 Filings Concerning Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 and Riverkeeper Contention TC-2 ML0909604702009-03-31031 March 2009 State of New York Combined Reply to Entergy Nuclear Operations, Inc., and NRC Staff in Support of Contentions 12-A, 16-A, 17-A, 33, and 34 ML0909302042009-03-24024 March 2009 Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State ML0908401162009-03-24024 March 2009 Indian Point - NRC Staff'S Answer to Amended and New Contentions Filed by the State of New York and Riverkeeper, Inc., Concerning the Draft Supplemental Environmental Impact Statement ML0908608682009-03-18018 March 2009 Riverkeeper, Inc.'S Preservation of Right to Amend Contention TC-2 - Flow Accelerated Corrosion Based Upon NRC Staff'S Safety Evaluation Report with Open Items ML0906903032009-02-27027 February 2009 State of New York Contentions Concerning NRC Staff'S Draft Supplemental Environmental Impact Statement ML0904105002009-01-26026 January 2009 Entergy'S Reply to Riverkeeper'S Answer Opposing Interlocutory Appeal of Licensing Board Admission of Consolidated Contention 2011-09-14
[Table view] Category:Responses and Contentions
MONTHYEARML11257A1102011-09-14014 September 2011 Certificate of Service for Combined Reply to NRC Staff and Entergy'S Answers in Opposition to Motion to Admit New Contention and for Reply Memorandum Regarding Timeliness and Admissibility of New Contentions ML11257A1092011-09-13013 September 2011 Reply Memorandum Regarding Timeliness and Admissibility of New Contentions Seeking Consideration of Environmental Implications of Fukushima Task Force Report in Individual Reactor Licensing Proceedings ML11257A1112011-09-13013 September 2011 Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.'S Combined Reply to NRC Staff and Entergy'S Answers in Opposition to Motion to Admit New Contention Regarding the Fukushima Task Force Report ML11228A0302011-08-11011 August 2011 the State of New York and the State of Connecticut'S Joint Answer in Opposition to Entergy'S Petition for Interlocutory Review of LBP-11-17 ML11217A0662011-07-29029 July 2011 Applicant'S Petition for Review of LBP-11-17 Granting Summary Disposition of Consolidated Contention NYS-35/36 ML11210B4192011-07-26026 July 2011 State of New York'S Response to Applicant'S Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-17B and NYS-37 ML11179A0922011-06-21021 June 2011 Letter Regarding New York State Department of Environmental Conservation Comments on the NRC Staff'S Final Supplemental Environmental Impact Statement in the Matter of Indian Point, Units 2 and 3, License Renewals ML11133A2882011-04-29029 April 2011 Indian Point, Units 2 & 3, State Submittal of Letter to Bring Two Recent Documents to Attention of the Board and Parties in Connection with NYS Contention-25 ML11117A1462011-04-19019 April 2011 Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Dahchi Nuclear Power Station Accident ML11229A8022011-03-22022 March 2011 Supplementary Certification Regarding Consultation ML11108A1062011-03-21021 March 2011 Combined Reply to Staff and Entergy'S Answers in Opposition to Clearwater'S Motion for Leave and Petition to Amend Contention EC-3 ML1108307802011-03-18018 March 2011 State of New York'S Combined Reply to Entergy and NRC Staff'S Answers to the State'S Proposed Contention 37 Concerning NRC Staff'S December 2010 Final Environmental Impact Statement and Its Deficient Analysis of Energy Alternatives ML1107601812011-03-16016 March 2011 Indian Point - Supplement to NRC Staff'S Answer to Riverkeeper, Inc.'S Motion for Leave to File a New Contention, and New Contention EC-8 Concerning NRC Staff'S Final Supplemental Environmental Impact Statement ML1107000972011-03-0404 March 2011 State of New York'S Combined Reply to the Answer of Entergy and NRC Staff to the State'S Proposed Amended Contention NYS-17B ML1106703812011-02-25025 February 2011 Combined Reply to NRC Staff and Entergy'S Answers in Opposition to Clearwater and Riverkeeper'S Joint Motion for Leave and Petition to Add New Contentions ML1107402862011-02-23023 February 2011 State of New York Withdrawal of Request for Enlargement of Page Limitation for the State'S Consolidated Answer to Separate Motions for Summary Disposition on Contention 35/36 ML1106604252011-02-23023 February 2011 State of New York'S Combined Reply to Entergy and Staff Cross-Motions for Summary Disposition on NYS Combined Contentions 35 and 36 Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis ML1105602702011-02-18018 February 2011 Applicant'S Answer to Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'S New Contentions Concerning the Waste Confidence Rule ML1105605892011-02-18018 February 2011 Applicant'S Answer to Proposed Amended Contention, New York State 17B and the Associated Request for Exemption And/Or Waiver of 10 C.F.R. Section 51.23(b) ML1104604922011-02-10010 February 2011 State of New York Answer in Support of the Admission of Clearwater and Riverkeeper'S Proposed Waste Confidence Contentions ML1106802122011-02-0303 February 2011 State of New York New Contention 12-C Concerning NRC Staff'S December 2010 Final Environmental Impact Statement and Underestimation of Decontamination & Clean Up Costs Associated with Severe Reactor Accident in New York Metropolitan Area ML1030000602010-10-22022 October 2010 State of New York'S Joint Reply to Entergy and NRC Staff'S Separate Answers to the State'S Additional Bases for Previously-Admitted Contention NYS-25 ML1030101042010-10-12012 October 2010 Applicant'S Answer to Amended Contention New York State 25 Concerning Aging Management of Embrittlement of Reactor Pressure Vessel Internals ML1029101452010-10-0404 October 2010 Supporting Attachments to Applicants Answer to New and Amended Contention New York State 26B/Riverkeeper TC-1B (Metal Fatigue) ML1028802972010-10-0404 October 2010 Letter from Martin J. O'Neill Counsel for Entergy Nuclear Operations, Inc. to Emile L. Julian Attachments 8 & 13 to Entergy'S Answer to New & Amended Contention New York State 26B & Riverkeeper TC-1B ML1029101422010-10-0404 October 2010 Applicant'S Answer to New and Amended Contention New York State 26B/Riverkeeper TC-1B (Metal Fatigue) ML1030105182010-09-14014 September 2010 State of Ny & Riverkeeper, Inc Submittal of Counter Statement of Material Fact, Combined Response to Entergy'S Motion for Summary Disposition of Combined Contentions NYS 26/26A & Rk TC-1/TC-1A, Declaration of Janice A. Dean.. ML1023712142010-08-16016 August 2010 Riverkeeper Opposition to Entergy'S Motion for Summary Disposition of Riverkeeper Technical Contention 2 (Flow-Accelerated Corrosion) ML1023001462010-08-13013 August 2010 Entergy'S Answer to Riverkeeper Inc.'S Motion to Compel Disclosure of Documents ML1022405782010-08-0202 August 2010 Applicant'S Reply to the State of New York'S & State of Connecticut'S Combined Reply to Entergy & NRC Staff Petitions for Interlocutory Review of LBP-10-13 ML1021100862010-07-26026 July 2010 the State of New York'S and State of Connecticut'S Combined Reply to Entergy and NRC Staff Petitions for Interlocutory Review of the Atomic Safety and Licensing Board'S Decision Admitting the State of New York'S Contentions 35 & 36 (LBP-10- ML1020300502010-07-15015 July 2010 Applicant'S Petition for Interlocutory Review of LBP-10-13 ML1011604152010-04-12012 April 2010 State of New York'S Combined Reply to Energy and NRC Staff Answers to the State'S New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis ML1014503282010-04-0505 April 2010 Applicant'S Answer to New York State'S New and Amended Contentions Concerning Entergy'S December 2009 Revised SAMA Analysis ML1011004732010-04-0101 April 2010 Answer of the Attorney General of the State of Connecticut to State of New York'S Motion for Leave to File New & Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives ML1005702402009-11-20020 November 2009 Answer of Richard Blumenthal, Attorney General of Connecticut to Hudson River Sloop Clearwater, Inc.'S Petition Presenting Supplemental Contentions EC-7 and SC-1 Concerning Storage of High-level Radioactive Waste at Indian Point ML0934803252009-11-20020 November 2009 Answer to Riverkeeper, Inc. in Support of Hudson River Sloop Clearwater Inc.'S New Contentions EC-7 and SC-1 ML0934910432009-11-20020 November 2009 Indian Point - NRC Staff'S Answer to Hudson River Sloop Clearwater, Inc.'S Motion for Leave to Add New Contentions Based Upon New Information ML0935101942009-11-20020 November 2009 Town of Cortlandt'S Answer to Hudson River Sloop Clearwater, Inc'S Petition Presenting Supplemental Contentions EC-7 & SC-1 Re Storage of High-Level Radioactive Waste at Indian Point ML1005700112009-11-20020 November 2009 Answer of Riverkeeper, Inc. in Support of Hudson River Sloop Clearwater Inc.'S New Contentions EC-7 and SC-1 ML1008200282009-11-19019 November 2009 Answer of the State of New York to Hudson River Sloop Clearwater, Inc.'S Petition Presenting Supplemental Contentions EC-7 and SC-1 Concerning Storage of High-Level Radioactive Waste at Indian Point ML0930801292009-10-26026 October 2009 Hudson River Sloop Clearwater, Inc.'S Motion for Leave to Add a New Contention Based Upon New Information ML0909802072009-04-0707 April 2009 Lr - NRC Staff'S Answer to Hudson River Sloop Clearwater'S Petition to File New Contention, Based Upon New Information Regarding Environmental and Public Health Impacts of Using the Hudson River as a Drinking Water Supply ML0910502112009-04-0606 April 2009 Entergy'S Consolidated Response to Riverkeeper'S February & March 2009 Filings Concerning Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 and Riverkeeper Contention TC-2 ML0909604702009-03-31031 March 2009 State of New York Combined Reply to Entergy Nuclear Operations, Inc., and NRC Staff in Support of Contentions 12-A, 16-A, 17-A, 33, and 34 ML0909302042009-03-24024 March 2009 Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State ML0908401162009-03-24024 March 2009 Indian Point - NRC Staff'S Answer to Amended and New Contentions Filed by the State of New York and Riverkeeper, Inc., Concerning the Draft Supplemental Environmental Impact Statement ML0908608682009-03-18018 March 2009 Riverkeeper, Inc.'S Preservation of Right to Amend Contention TC-2 - Flow Accelerated Corrosion Based Upon NRC Staff'S Safety Evaluation Report with Open Items ML0906903032009-02-27027 February 2009 State of New York Contentions Concerning NRC Staff'S Draft Supplemental Environmental Impact Statement ML0904105002009-01-26026 January 2009 Entergy'S Reply to Riverkeeper'S Answer Opposing Interlocutory Appeal of Licensing Board Admission of Consolidated Contention 2011-09-14
[Table view] |
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'F AS ~S~f-3~DOCKETED USNRC August 2, 2010 (4:15 p.m.)
OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF 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) )
._) August 2, 2010 APPLICANT'S REPLY TO THE STATE OF NEW YORK'S AND THE STATE OF CONNECTICUT'S COMBINED REPLY TO ENTERGY AND NRC STAFF PETITIONS FOR INTERLOCUTORY REVIEW OF LBP-10-13 Pursuant to 10 C.F.R. § 2.341(b)(3), Entergy replies to New York State's and Connecticut's (jointly, "NYS") Combined Reply to the Entergy and NRC Staff petitions for interlocutory review of LBP- 10-13.1 As shown below, NYS: (1) fundamentally misstates NEPA and Commission precedent as it applies to severe accident mitigation alternative ("SAMA")
analysis; (2) conflates NEPA's and Part 51 's environmental requirements with the safety requirements of Parts 50 and 54; (3) incorrectly depicts the Indian Point SAMA analysis as uniquely lacking in rigor when it is fully consistent with NRC-endorsed guidance and SAMA analyses approved by the NRC in prior license renewal applications; and (4) fails to refute the appellants' compelling showing that litigation of contention NYS-35/36 will have a pervasive and unusual effect on this proceeding, so as to warrant interlocutory review.
Importantly, NYS's arguments underscore the needfor prompt Commission intervention.
NYS and the Board, on the one hand, and Entergy and the Staff on the other, have diametrically-opposed views of the NRC's regulations relating to the scope of license renewal, the purpose of SAMA analyses, and the application of the backfit rule (10 C.F.R. § 50.109) that must be reconciled now by the Commission to avoid a pervasive and unusual effect on this proceeding.
Entergy and Staff filed petitions for interlocutory review of LBP- 10-13 ("Entergy Petition" and "Staff Petition") on July 15, 2010. NYS and Connecticut (the latter being an interested state) filed a Combined Reply on July 26, 2010.
7~CE7Cy 5% 3 c3
NYS first argues that that the Commission already has "rejected" Entergy's alleged "fundamental argument" that a SAMA analysis "need not be completed for any SAMA that is not within Part 54's narrow scope." 2 This argument incorrectly implies that Entergy (1) has not completed its SAMA analysis, and (2) must implement any cost-beneficial SAMA. Via SAMA analyses, NRC requires "that any plant changes that have a potential for significantly improving severe accident safety performance are identified and assessed." 3 Entergy has done precisely that in its SAMA analysis. To identify cost-beneficial SAMAs, Entergy followed NRC-endorsed guidance by conceptually estimating the cost of implementing each SAMA candidate to the 4
extent that allowed it to adequately gauge the economic viability of the proposed modification.
5 Nothing in NRC regulations or guidance supports the claim that "more work needs to be done."
Also, Entergy and the Staff have demonstrated that neither Part 51 nor Part 54 mandates actual implementation of SAMAs unrelated to aging management as a prerequisite to license renewal. In this regard, the "rational basis" that NYS repeatedly insists is missing resides firmly in two clear and settled principles. First, the Staff lacks the legal authority to order non-aging-related modifications to the Indian Point Unit 2 and Unit 3 current licensing bases ("CLBs") as a condition precedent to license renewal. Second, insofar as the Staff may require plant-specific safety enhancements unrelated to aging management, it must do so in accordance with the backfit rule and, thus, separate and apart from the license renewal process.6 2 Combined Reply at 6.
3 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-I0-1lI, slip op. at 3 (Mar. 26, 2010).
4 See Entergy Petition at 6-10; NEI 05-01, Rev. A, Severe Accident MitigationAlternatives (SAMA) Analysis, Guidance Document, at 28-29 (Nov. 2005), available at ADAMS Accession No. ML060530203 ("NEI 05-0 1").
5 Combined Reply at 13 n.8.
6 See Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-06-26, 64 NRC 225, 226-27 (2006)
(holding that CLB backfits are "not suitable for a license renewal adjudication but perhaps suitable for consideration under 10 C.F.R. § 2.206."); NRR Office Instruction LIC-202, Rev. 2, Proceduresfor ManagingPlant-Specific Backfits and 50.540f Information Requests, at 1 (May 17, 2010) (ADAMS Accession No. ML092010045) (stating that "if the NRC proposes to address safety issues outside the [aging management] scope of Part 54 ... , then any actions necessary to address such out-of-scope safety issues are subject to the Backfit Rule."); NUREG-1800, Rev. 1, As such, there is no legal basis for NYS's mistaken belief that "Part 54 contemplates that the [SAMA] analyses conducted pursuant to Part 51 can result in licensing conditions being added to the CLB" as a prerequisite to license renewal. 7 NYS cites 10 C.F.R. § 54.33(c), but that provision refers to possible amendment or supplementation of CLB conditions related to a licensee's environmental monitoring, reporting, and recordkeeping obligations under 10 C.F.R.
§ 50.36b. NYS also cites, for the first time, 10 C.F.R. § 51.103(a)(4), a provision not relied upon or even cited by the Board in its ruling. Section 51.103(a)(4) refers to "practicable measures within [the NRC' s] jurisdiction to avoid or minimize environmental harm from the alternative selected." Even if this provision had any discernible nexus to SAMA analysis, the fact remains that the Atomic Energy Act, as implemented by Part 54, does not confer authority on the NRC to compel an applicant to implement mitigation measures unrelated to aging management, whether through a license condition or a Part 50 backfit, as a prerequisite to license renewal. 8 The Staff's adherence to the foregoing principles in its draft EIS is hardly an "about-face" from the position reflected in the Commission's 2001 denial of an NEI rulemaking petition.9 In that proceeding, the Commission denied an NEI petition to abolish the requirement for SAMA reviews in Part 51 "on the belief that the requirement conflicts with the technical requirements for license renewal in 10 CFR part 54."10 Here, Entergy and the Staff have not suggested that Part 54 limits the scope of a NEPA review in a license renewal proceeding." Instead, they have StandardReview Planfor Review of License Renewal Applicationsfor Nuclear Power Plants, at 4.1-1, 4.7-1 (Sept.
2005) (ADAMS Accession No. ML052110007) ("Any question regarding the adequacy of the CLB must be addressed under the backfit rule (10 CFR 50.109) and is separate from the license renewal process.").
7 Combined Reply at 19-20.
8 See Fla.Pover & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-10 (2001).
9 Combined Reply at 7 (citing Nuclear Energy Institute; Denial of Petition for Rulemaking, PRM 51-7, 66 Fed. Reg.
10,834 (Feb. 20, 2001) ("NEI Rulemaking Petition Denial")).
10 NEI Rulemaking Petition Denial, 66 Fed. Reg. at 10,835.
Combined Reply at 7. In fact, on page 26 of its April 5, 2010 answer to NYS-35/36, Entergy quoted Turkey Point:
"The Commission's AEA review under Part 54 does not compromise or limit NEPA." CLI-01-17, 54 NRC at 13.
correctly explained that, consistent with NRC regulations, NEPA requires reasonable evaluation and disclosure of possible mitigation measures, including'non-aging-related SAMAs, but not the actual implementation of those measures, as sought by NYS.12 By providing a complete SAMA analysis, Entergy and the Staff have complied fully with the requirements of NEPA and Part 51.
This position is fully consistent with the Commission's' statement in 2001 that "NRC's obligation to consider mitigation exists whether or not mitigation is ultimately found to be cost-
.beneficial and whether or not mitigation ultimately will be implemented by the licensee." 13 Notably, in reaching this conclusion, the Commission cited the U.S. Supreme Court's long-standing Methow Valley decision,14 whose unambivalent holding NYS refuses to accept: "NEPA imposes no substantive requirement that mitigation measures actually be taken."' 5 NYS overreaches in trying to distinguish the facts underlying that case and in incorrectly arguing that the Court applied a "rational basis" test. The Court's holding remains clear, unaltered, and controlling here: NEPA requires only a "reasonably complete discussion of possible mitigation measures."' 16 It does not, in this case, require implementation of SAMAs unrelated to 'aging management, or related Part 50 backfit analyses, as a prerequisite to license renewal.
NYS next attempts to diminish the fundamental impact of the Board's decision on this proceeding by arguing that, "[w]hile the Board identified the backfit procedure. as a source of Staff authority, it did not limit the Staff to that authority."' 7 But the Board's actual words refute this claim. The Board specifically admitted NYS-35/36 "as a contention of omission ... insofar 12 See Combined Reply at 18 ("Identification without implementation defeats the purpose of SAMAs.").
13 NEI Rulemaking.Petition Denial, 66 Fed. Reg. at 10,836 (emphasis added).
14 Id. (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)).
15 Methow Valley, 490 U.S. at 353 n.16.
16 Id. at 352.
17 Combined Reply at 21.
as it alleges that the Draft SEIS does not provide a rational basis for granting the license 18 extension without mandating a CLB backfit as a prerequisitefor the extension."
Finally, NYS does not deny that admission of NYS-35/36 will have a pervasive and unusual effect on this proceeding. It is difficult to imagine a more pervasive and unintended effect than endlessly litigating CLB and backfit issues for 18 mitigation measures unrelated to aging management in the context of a license renewal proceeding. The potential for pointless, protracted litigation is truly substantial, especially given the Board's admission of two other SAMA contentions.1 9 Further, as the Staff attests, backfit analyses are complex endeavors that require substantial time and agency resources. 20 Accordingly, prompt Commission review is warranted to avoid a pervasive and unusual effect on this proceeding.
Respectfully submitted, William C. Dennis, Esq. Kathryn M. Sutton, Esq.
Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq.
440 Hamilton Avenue Martin J. O'Neill, Esq.
White Plains, NY 10601 MORGAN, LEWIS & BOCKIUS LLP Phone: (914) 272-3202 1111 Pennsylvania Avenue, N.W.
Fax: (914) 272-3205 Washington, D.C. 20004 E-mail: wdennis@entergy.com Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com Dated in Washington, D.C.
this 2nd day of August 2010 18 LBP-10-13, slip op. at 29-30 (July 30, 2010) (emphasis added); see also id. at 5 (stating that "an order by the NRC Staff to implement SAMAs not dealing with aging management can be issued concurrently as part of a Part 50 CLB review"); id at 28 (stating that Staff must "explain why it has not instituted a backfit to a CLB as a condition precedent to license renewal); id. at 29 (stating that the Staff may "institute a backfit prior to license renewal under Part 50 as a result of its SAMA review").
9 Cf Georgia Poiver Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-95-15, 42 NRC 181, 184 (1995)
("The potential difficulty of unscrambling and remedying the impact of an improper disclosure in this lengthy, complex, and contentious proceeding, which spans years of litigation and has generated a massive record, presents exceptional circumstances, making immediate review appropriate. This dispute poses a discrete legal question, more easily resolved now, lest we be unable later to tailor meaningful relief.").
20 See Staff Petition at 21-22.
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) )
August 2, 2010 CERTIFICATE OF SERVICE I hereby certify that copies of the "Applicant's Reply to the State of New York's and the State of Connecticut's Combined Reply to Entergy and NRC Petitions for Interlocutory Review of LBP-10-13," dated August 2, 2010, were served this 2nd day of August, 2010 upon the persons listed below, by first class mail and e-mail as shown below.
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.
U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2@.nrc.gov)
(E-mail: lgmlmnrc.gov)
Administrative Judge Office of the Secretary*
Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocketgnrc. gov)
Washington, DC 20555-0001 (E-mail: rewgnrc.gov)
Office of Commission Appellate Adjudication Zachary S. Kahn, Law Clerk U.S. Nuclear Regulatory Commission Josh Kirstein, Law Clerk Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail(2nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxkl (2nrc.gov)
(E-mail: Josh.Kirstein(2cnrc.gov)
Sherwin E. Turk, Esq. Greg Spicer, Esq.
Beth N. Mizuno, Esq. Office of the Westchester County Attorney David E. Roth, Esq. 148 Martine Avenue, 6th Floor Brian G. Harris, Esq. White Plains, NY 10601 Andrea Z. Jones, Esq. (E-mail: gssl twestchestergov.com)
Office of the General Counsel Mail Stop: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set(2nrc.gov)
(E-mail: bnml @nrc.gov)
(E-mail: david.rothgnrc.gov)
(E-mail: brian.harris@nrc.gov)
(E-mail: andrea.j ones Qnrc.gov)
Manna Jo Greene Thomas F. Wood, Esq.
Environmental Director Daniel Riesel, Esq.
Hudson River Sloop Clearwater, Inc. Ms. Jessica Steinberg, J.D.
724 Wolcott Avenue Sive, Paget & Riesel, P.C.
Beacon, NY 12508 460 Park Avenue (E-mail: mannaio(2clearwater.org) New York, NY 10022 (E-mail: driesel@sprlaw.com)
(E-mail: -jsteinberggsprlaw.com)
Stephen C. Filler, Board Member John Louis Parker, Esq.
Hudson River Sloop Clearwater, Inc. Regional Attorney 303 South Broadway, Suite 222 Office of General Counsel, Region 3 Tarrytown, NY 10591 NYS Dept. of Environmental Conservation (E-mail: sfillergnylawline.com) 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: ilparker(,gw.dec.state.ny. us)
Ross Gould, Member Michael J. Delaney, V.P. - Energy Hudson River Sloop Clearwater, Inc. New York City Economic Development 10 Park Avenue, #5L Corp.
New York, NY 10016 1 10 William Street (E-mail: rgouldesqjcgmail.com) New York, NY 10038 (E-mail: mdelaney@nycedc.com)
Phillip Musegaas, Esq. Daniel E. O'Neill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.
Riverkeeper, Inc. Liaison to Indian Point 828 South Broadway Village of Buchanan Tarrytown, NY 10591 Municipal Building (E-mail: phillip@riverkeeper.org) 236 Tate Avenue (E-mail: dbrancato driverkeeper.org) Buchanan, NY 10511-1298 (E-mail: vobkbestweb.net)
Robert D. Snook, Esq. Mylan L. Denerstein, Esq.
Assistant Attorney General Executive Deputy Attorney General, Office of the Attorney General Social Justice State of Connecticut Office of the Attorney General 55 Elm Street of the State of New York P.O. Box 120 120 Broadway, 25th Floor Hartford, CT 06141-0120 New York, New York 10271 (E-mail: Robert. Snook@lpo. state. ct.us) (E-mail: Mylan. Denersteingoag.state.ny.us)
Andrew M. Cuomo, Esq. Janice A. Dean Attorney General of the State of New York Office of the Attorney General John J. Sipos, Esq. of the State of New York Charlie Donaldson Esq. Assistant Attorney General Assistants Attorney General 120 Broadway, 26th Floor The Capitol New York, New York 10271 Albany, NY 12224-0341 (E-mail: Janice.Deangoag.state.ny.us)
(E-mail: iohn.sipos@oag.state.ny.us)
Joan Leary Matthews, Esq.
Senior Attorney for Special Projects Office of the General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, NY 12207 (E-mail: j l mattheggw.dec. state.ny.us)
- Original and 2 copies provided to the Office of the Secretary.
Martin J. O'Neill, Esq.
Counsel for Entergy Nuclear Operations, Inc.
DB 1/65393238.1