ML14119A004

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Applicant'S Answer to State of Connecticut'S Amicus Brief in Support of State of New York Petition for Review of LBP-13-13
ML14119A004
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 04/28/2014
From: Dennis W C, Glew W B, O'Neill M J, Sutton K M
Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP
To:
NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, LBP-13-13, RAS 25875
Download: ML14119A004 (19)
v • d • e


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 28, 2014

______________________________________________________________________________

APPLICANT'S ANSWER TO STATE OF CONNECTICUT'S AMICUS BRIEF IN SUPPORT OF STATE OF NEW YORK PE TITION FOR REVIEW OF LBP-13-13

______________________________________________________________________________

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, N.W.

White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3360 Phone: (202) 739-5738 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com

Martin J. O'Neill, Esq. MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com

COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page -i- I. INTRODUCTION ......................................................................................................... II. PROCEDURAL BACKGROUND ................................................................................ III. LEGAL STANDARDS ................................................................................................. IV. ARGUMENT ................................................................................................................. - 6

- A. Connecticut's Motion and Amicus Brief Are Procedurally Defective .............. 1. The Consultation on the Motion Was Fundamentally Flawed .............. 2. The Motion and Amicus Brief are Premature ........................................ 3. Connecticut Has Failed to Show Th at Its Brief is Desirable and Will Aid the Commission's Deliberations on the Petition for Review ................................................................................................... B. If the Commission Accepts Connecticut's Amicus Brief, Then It Should Reject Connecticut's Arguments As Outside the Scope of Contention NYS-12C and License Renewal in General ....................................................... 1. No Site-Specific Analysis of Seve re Accident Impacts Is Required for Indian Point or Any Other Plant Seeking License Renewal ............ 2. Spent Fuel Storage Issues Are Ou tside the Scope of NYS-12C and License Renewal Proceedings in General ............................................ 3. Emergency Planning Issues Are Outside the Scope of NYS-12C and License Renewal Proceedings ....................................................... 4. Alleged Concerns About the Adequacy of Funding for Decontamination and Remediati on Following an Actual Severe Accident Are Outside the Scope of NYS-12C and License Renewal Proceedings in General ......................................................... 5. Connecticut's Statements Regarding Fukushima and Chernobyl Are Not Relevant to NYS-12C or License Renewal in General .......... V. CONCLUSION ............................................................................................................

TABLE OF AUTHORITIES Pages -ii- U.S. Nuclear Regulatory Commission and Atom ic and Safety Licensing Board Decisions AmerGen Energy Co., LLC (Oyster Creek Nuclear Genera ting Station), CLI-07-8, 65 NRC 124 (2007) ........................................................................................................................

....................10 Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-13-04, 77 NRC 101 (2013) ......................................................8 Dominion Nuclear Conn., Inc.

(Millstone Nuclear Power St ation, Units 2 & 3), CLI-04-36, 60 NRC 631 (2004) ................................................................................................................

.............12 Dominion Nuclear Conn., Inc.

(Millstone Nuclear Power St ation, Units 2 & 3), CLI-05-24, 62 NRC 551 (2005) ................................................................................................................

.............12 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010) ........................................................................................................................

................9, 12 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012) ........................................................................................................................

................9, 14

Entergy Nuclear Operations, Inc.

(Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43 (2008) ........................................................................................................................

............

passim Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-13-13, 78 NRC __, slip op. (Nov. 27, 2013) ..............................................................................................

..1, 4 Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13 (2007) .................................................................................................................

..............11 Fla. Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3 (2001) ..................................................................................................................

...11, 12, 13 La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-97-7, 45 NRC 437 (1997) ...................7 La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-04-35, 60 NRC 619 (2004) ...................6 Pac. Gas & Elec. Co.

(Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413 (2002) ......................................................................................................

........6 TABLE OF AUTHORITIES (continued) Pages -iii- Pub. Serv. Co. of N.H.

(Seabrook Station, Units 1 & 2), ALAB-862, 25 NRC 144 (1987) ............8 Sequoyah Fuel Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-96-3, 43 NRC 16 (1996) ......7 U.S. Dep't of Energy (High Level Waste Repository: Pr e-Application Matters), CLI-08-22, 68 NRC 355 (2008) ................................................................................................................

...........7, 8 Federal Regulations 10 C.F.R. § 2.309 .............................................................................................................

................6

10 C.F.R. § 2.315 .............................................................................................................

...... passim 10 C.F.R. § 2.323 .............................................................................................................

....1, 5, 6, 7

10 C.F.R. § 2.341 .............................................................................................................

............6, 7

10 C.F.R. § 50.47 .............................................................................................................

..............11 Federal Register Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004) .........................6

Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 15, 1996) ..............................................................................................

....10 Notice of Acceptance for Docketing of the Appl ication and Notice of O pportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134 (Aug. 1, 2007) ......................................................................2

Other Authorities NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1 (May 1996)..............................................................................................................

........9, 10

NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 38, Final Report (Dec. 2010) ............................................................................................

...10 1 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 28, 2014

APPLICANT'S ANSWER TO STATE OF CONNECTICUT'S AMICUS BRIEF IN SUPPORT OF STATE OF NEW YORK PE TITION FOR REVIEW OF LBP-13-13 I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.315(d) and 2.323(

c) and the Nuclear Regulatory Commission's ("NRC" or "Commission") Order dated February 28, 2014, 1 Entergy Nuclear Operations, Inc. ("Entergy") submits this Answer to the State of Connecticut's ("Connecticut") Motion for Leave and Amicus Brief, filed on February 14, 2014.

2 In its Motion, Connecticut seeks leave to file an amicus curiae brief in support of the State of New York's ("New York") February 14, 2014 petition for Commission review of LBP-13-13.

3 Along with its Motion, Connecticut filed its Amicus Brief, in which Connecticut purports to provide "a perspective that will aid the Commission in determining whether to grant New York's petition for review."

4 As demonstrated below, Connecticut's Moti on is procedurally de fective and should be rejected on that basis alone. Regardless, even if the Commission opts to consider any of the

1 Commission Order at 2 (Feb. 28, 2014) ("Commission Order") (unpublished).

2 State of Connecticut's Motion for Leave to File Brief Amicus Curiae in Support of the State of New York's Petition for Review of the Atomic Safety and Licensing Board's Partial Initial Decision LBP-13-13 ("Motion"),

available at ADAMS Accession No. ML14049A227; Amicus Brief of the Attorney General of Connecticut (Feb. 28, 2014) ("Amicus Brief"),

available at ADAMS Accession No. ML14049A219.

3 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-13-13, 78 NRC __, slip op.

(Nov. 27, 2013).

4 Motion at 3.

2arguments presented in Connecticut's Amicus Brief, it should disregard those arguments as irrelevant to the subject of New York's petition for review; i.e., the Atomic Safety and Licensing Board's ("Board") merits decision on Contention NYS-12C ("NYS-12C"). In short, contrary to Connecticut's claim, the Amicus Brief will not inform the Commission's decision on whether to

grant New York's pending pet ition for review of LBP-13-13.

II. PROCEDURAL BACKGROUND On April 23, 2007, Entergy applied to rene w the operating licenses for Indian Point Nuclear Generating Units 2 and 3 (respectively, "IP2" and "IP3," and collectively, "Indian Point")

for twenty years beyond their current expiration dates of September 28, 2013, and December 12, 2015, respectively. After the NRC published a Federal Register notice of opportunity for hearing,5 Connecticut filed a Petition to Intervene, proposing two contentions.

6 Proposed Contention Connecticut EC-1 alleged that a fire or terrori st attack involving Indian Point's spent fuel pools could result in ra dioactive releases leading to human fatalities and large-scale land contamination, and that such issues must be cons idered as part of the license renewal process.

7 Proposed Contention Connecticut EC-2 challenged emergenc y evacuation plans for the area around Indian Plant and claimed that NRC's National Environmental Policy Act ("NEPA") evaluation must evaluate evacuation prot ocols as part of the license renewal process.

8 The Board found both of Connecticut's proposed contentions inadmissible and denied Connecticut's Petition to Intervene.

9 In rejecting Connecticut EC-1, the Board emphasized that

5 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134 (Aug. 1, 2007). 6 Petition for Leave to Intervene, Request for Hearing and Contentions of Richard Blumenthal, Attorney General of Connecticut, for the License Renewal Proceeding for Indian Point Nuclear Generating Unit Nos. 2 and 3, DPR-26 and DPR 64 (Nov. 30, 2007) ("Petition to Intervene"),

available at ADAMS Accession No. ML073370334.

7 See Petition to Intervene at 13-16.

8 See id. at 16-20.

9 See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 161-166 (2008).

3Connecticut's terrorism-based claim was outside the scope of license renewal proceedings, and that spent fuel storage environmental impacts dur ing operations are SMALL for all plants pursuant to 10 C.F.R. Part 51, Appendix B, Table B-1 and the Generic Environmental Impact Statement

("GEIS").

10 In rejecting Connecticut EC-2, the Board ruled that evacuation and emergency planning issues are also outside the scope of license renewal proceedings.

11 Connecticut thus was denied party status. However, Connect icut requested an opportunity to participate as an interested Stat e pursuant to 10 C.F.R. § 2.315(c).

12 Although it noted that the Board had admitted "eleven discrete contentions,"

13 Connecticut listed six admitted contentions on which it wished to participate.

14 With regard to those conten tions, Connecticut also identified certain other "concerns" that it sough t to address at any Board hearing.

15 Given that several of Conn ecticut's other "concerns" were outside the scope of the admitted contentions, Entergy responded to Connecticut's Request and asked that the Board limit Connecticut's participation accordingly.

16 For example, Entergy highlighted that, despite the Board's earlier ruling, Connecticut again sought to address terrorist attacks on the Indian Point facility as part of the NYS-12 adjudication.

17 Entergy emphasized that interested States are subject to the same procedural requirements and constraints that apply to admitted parties and thus

10 See id. at 163.

11 See id. at 165-66.

12 Request of the State of Connecticut for an Opportunity to Participate as an Interested Government Body in Proceeding and Hearing on Relicensing of Indian Point Units 2 and 3 (Sept. 25, 2008) ("Request to Participate"), available at ADAMS Accession No. ML082750012.

13 Id. at 2. 14 Id. at 2-3. Connecticut identified contentions NYS-12 (Severe Accident Mitigation Alternatives ("SAMA") cleanup costs), NYS-16 (SAMA population estimates), NYS-24 (containment concrete), NYS-26 (metal fatigue), RK-EC-3 (spent fuel pool leaks), and CW-EC-3 (environmental justice). NYS-24 and RK-EC-3 have since been settled.

See Licensing Board Order (Approving Settlement of Contention NYS-24) at 2 (Jan. 26, 2012) (unpublished).

15 See Request to Participate at 4-6.

16 Entergy's Response to the State of Connecticut's Request to Participate as an Interested Governmental Body at 4 (Oct. 2, 2008) ("Entergy Response to Request to Participate"), available at ADAMS Accession No. ML082840110.

17 Id. at 3; Request to Participate at 4.

4"may not freely 'change the focus of an admitted contention at will as litigation progresses.'"

18 The Board granted Connecticut's Request to Participate pursuant to Section 2.315(c), but without expanding the scope of any admitted contention.

19 Since that time, Connecticut periodically has participated in briefings on admitted Contention NYS-35/36 20 and rejected Clearwater Proposed Contentions CW-EC-7 and CW-SC-1.

21 Additionally, in connection with the "Track 1" evidentiary hearings, Connecticut filed a Statement of Position on June 28, 2012. In that filing, Connecticut merely expressed support for New York's positions in this proceeding, and asked the Board to deny the Indian Point license

renewal until the NRC Staff considers the environmental impacts of population relocations resulting from an accident or terrorist attack at Indian Point and the environmental impacts of storing additional spent nuclear fuel at Indian Point during the period of extended operation.

22 Although the Board mentioned its receipt of Connecticut's Statement of Position, it did not otherwise discuss that filing in LBP-13-13.

23 Connecticut filed the instant Motion and Amicus Brief on February 28, 2014, to which Entergy and the NRC Staff filed initial answers.

24 Entergy opposed the Motion on the grounds

18 Entergy Response to Request to Participate at 2-3.

19 See Licensing Board Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) at 2 (Dec. 18, 2008) (unpublished).

20 See Answer of the Attorney General of the State of Connecticut to State of New York's Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives

(Apr. 1, 2010),

available at ADAMS Accession No. ML101100473; Response of Attorney General of Connecticut in Support of New York's Motion for Summary Disposition of Consolidated Contention NYS-35/36 (Feb. 3, 2011),

available at ADAMS Accession No. ML110400479.

21 See 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 (Nov. 20, 2009), available at ADAMS Accession No. ML100570240.

22 See Statement of Position of the Attorney General of Connecticut at 1 (June 28, 2012),

available at ADAMS Accession No. ML12180A511.

23 See Indian Point, LBP-13-13, slip op. at 20-21. Thus, the Board did not even discuss, much less rely on, Connecticut's Statement of Position in its merits decision on NYS-12C.

24 See Entergy's Answer Opposing the State of Connecticut's Motion for Leave to File Amicus Curiae Brief (Feb. 24, 2014) ("Entergy February 24 Answer"),

available at ADAMS Accession No. ML14055A533; NRC Staff's Answer to 5that Connecticut failed to: (1) properly consult wi th the parties, as required by 10 C.F.R. § 2.323; and (2) state the reasons why an amicus brief is desirable under the circumstances, as required by 10 C.F.R. § 2.315(d).

25 With regard to the latter requireme nt, Entergy noted that Connecticut's Amicus Brief raises numerous issues that are out side the scope of the contention (NYS-12C) and the Board ruling now under appeal.

26 Nonetheless, Entergy requested an opportunity to respond to Connecticut's Amicus Brief in the event the Commission granted Connecticut's related Motion.

27 The NRC Staff stated that it does not oppose Connecticut's Motion, prov ided that the Staff is permitted to file a response to Connecticut's Amic us Brief when the Staff files its answer to the State of New York's petition for review of LBP-13-13.

28 However, the Staff similarly noted that Connecticut's Amicus Brief raises various issues "that exceed the scope of Contention NYS-12C and/or are beyond the proper scope of this license renewal proceeding."

29 In its February 28, 2014 Order, the Commission directed that "any answers to

Connecticut's amicus curiae brief that Entergy and/or the Staff may deem appropriate" be filed concurrently with those parties' answ ers to New York's petition for review.

30 In doing so, the Commission explicitly stated that "[t]his order does not address the question whether Connecticut's amicus curiae brief will be accepted or rejected under 10 C.F.R. § 2.315(d)."

31 Accordingly, Entergy files this Answer to Connecticut's Motion and Amicus Brief.

State of Connecticut's Motion for Leave to File Brief Amicus Curiae (Feb. 24, 2014) ("NRC Staff February 24 Answer"),

available at ADAMS Accession No. ML14055A528.

25 See Energy February 24 Answer at 1-4.

26 See id. at 3-4.

27 See id. at 1, 5.

28 See NRC Staff February 24 Answer at 1, 4.

29 Id. at 3-4.

30 Commission Order at 2.

31 Id. n.4.

6III. LEGAL STANDARDS 10 C.F.R. § 2.315(c) limits an interested State's participation to those matters already placed in controversy by the parties-i.e., the admitted contentions.

32 Relevant here, Section 2.315(c) permits an interested State to file a petition for review by the Commission under 10 C.F.R. § 2.341 with respect to those admitted contentions previously identified by that State as contentions on which it intends to pa rticipate. 10 C.F.R. § 2.315(d), in turn, permits non-parties to seek leave from the Commission to file amicus curiae briefs with respect matters that are "taken up by the Commission under § 2.341 or sua sponte.

"33 An interested State must comply with the strict contention timeliness and admissibility requirements in 10 C.F.R. § 2.309 if it seeks to litigate new issues that are not encompassed by the admitted contentions.

34 Allowing an interested State to "interject 'informal' issues for litigation would not only undermine the purposes of [the contention requirement], but would remove any incentive for governmental entities to participate in proceedings as full intervenor parties."

35 IV. ARGUMENT A. Connecticut's Motion and Amicus Brief Are Procedurally Defective

1. The Consultation on the Motion Was Fundamentally Flawed As a threshold matter, Connecticut's Motion and Amicus Brief should be rejected for lack of adequate consultation pursuant to 10 C.F.R. § 2.323(b). Entergy described the circumstances

32 See 10 C.F.R. § 2.315(c); see also La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-04-35, 60 NRC 619, 627 (2004) ("Designated governmental representatives who have not been admitted as a party, but who choose to participate [under Section 2.315(c)] also may participate on any admitted contentions.") (emphasis added); Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2201 (Jan. 14, 2004) (indicating that interested State "participation is dependent on the existence of a hearing independent of the interested State, local governmental body or Indian Tribe participation, and such participation ends when the hearing is terminated").

33 10 C.F.R. § 2.315(d).

34 See Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), LBP-02-23, 56 NRC 413, 456 (2002).

35 Id. (stating that NRC regulations prevent "parties from having to expend resources on litigating unsubstantiated issues, while at the same time affording interested governmental entities a full opportunity to be heard on the issues being

litigated").

7associated with Connecticut's defective consultation in its February 24 Answer and does not repeat them here.

36 In short, by initiating consultation less than three hours before it filed its Motion and by failing to provide any information re garding the scope or c ontent of its motion and brief (despite repeated requests by counsel for En tergy), Connecticut fail ed to engage in any "sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion."37 The parties to this proceeding, including Connecticut, long have been on notice that more than "minimal efforts" are required to comply with the consultation requirements.

38 Accordingly, the Commission should deny Connec ticut's Motion for inadequate consultation.

39 2. The Motion and Amicus Brief are Premature 10 C.F.R. §2.315(d) states that an amicus curiae brief may only be file d and considered "if a matter is taken up by the Commission under § 2.341," which governs the filing and requirements for petitions for review. 10 C.

F.R. §2.315 governs participation by a person not a party to the proceeding. Taken together, those regulations by their plain language do not provide for amicus curiae briefs supporting or opposing pe titions for review except "[i]f a matter is taken up by the Commission."

40 The Commission, in fact, has stated that "[NRC] rules contemplate amicus curiae briefs only after the Commissi on grants a petition for review, and do not provide for amicus briefs supporting or oppos ing petitions for review."

41 Accordingly, the Commission should reject Connecticut's Motion and Amicus Brief consistent with its rules and precedent.

36 See Entergy February 24 Answer at 2-4 (including attachments referenced therein).

37 10 C.F.R. § 2.323(b).

38 Licensing Board Memorandum and Order (Summarizing Pre-Hearing Conference) at 3 (Feb. 4, 2009) (unpublished) (citations and quotations omitted) (stating further that it "expects a real effort on the part of the parties to resolve the issues presented before the motion is filed, not just simply a notice at the last minute that the motion is going to be filed").

39 See U.S. Dep't of Energy (High Level Waste Repository: Pre-Application Matters), CLI-08-22, 68 NRC 355, 359 (2008) (denying a motion for leave to file an amicus brief in part because the movant failed to consult).

40 See 10 C.F.R. §2.315(d).

41 La. Energy Servs. (Claiborne Enrichment Center), CLI-97-7, 45 NRC 437, 438-439 (1997) (citing former 10 C.F.R.

§ 2.715(d); Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-96-3, 43 NRC 16, 17 (1996))

83. Connecticut Has Failed to Show That Its Brief is Desirable and Will Aid the Commission's Deliberations on the Petition for Review Section 2.315(d) also requires the movant to demonstrate "the reasons why a brief is desirable." Connecticut has not made that showing. As discussed further below, the Amicus Brief raises a host of unrelated issues that are outside the scope of NYS-1 2C-the only contention New York has appealed-including claims related to the Price Anderson Act, emergency planning, and evacuation plans.

42 To the extent that Connecticut mentions issues that arguably are related to the issues raised in NYS-12C, it does so only in a general and conclusory manner, with just one citation to record evidence or the Board's decision.

43 For these reasons, Connecticut does not "supply a perspective that would materially aid" the Commission's deliberations 44 or demonstrate that its brief is necessary as "a matter of fairness or sound decision-making."

45 Therefore, the Commission should reject the Amicus Brief under 10 C.F.R. § 2.315(d).

B. If the Commission Accepts Connecticut's Amicus Brief, Then It Should Reject Connecticut's Arguments As Outside the Scope of Contention NYS-12C and License Renewal in General If the Commission in its discretion accepts the Amicus Brief, then it should reject Connecticut's substantive arguments as irrelevant. The overarching premise of Connecticut's Amicus Brief is that "a full and complete review of the environmental impacts from a major release from Indian Point is required and to date this has not been done."

46 In support of that argument, Connecticut cites an array of issues purportedly requiring c onsideration by the NRC

(denying the Nuclear Energy Institute's motion for leave to file an amicus curiae brief in support of the petition for review, but permitting it to file a brief on the merits should it choose to do so). But see Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-13-04, 77 NRC 101, 103 n.9 (2013) (denying the Applicant's petition for review but nevertheless reviewing amicus curiae briefs filed by another NRC license applicant and the Nuclear Entergy Institute "as a matter of discretion").

42 See Amicus Brief at 5-6.

43 Id. at 5 ("The input values appear to lack primary support or are based on out-of-date assumptions and documents.");

id. ("[T]he inputs do not begin to adequately account for the cost of effectively decontaminating, for example, the commercial and residential areas of Stamford, Greenwich, or Danbury.").

44 See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-862, 25 NRC 144, 150-51 (1987).

45 High Level Waste Repository, CLI-08-22, 68 NRC at 359.

46 Amicus Brief at 7 (emphasis added).

9Staff as part of this license renewal proceeding. Those issues include: (1) the environmental impacts of severe reactor accidents (including impacts caused by terrorist attacks), (2) spent fuel storage impacts, (3) emergency planning issu es and population relocation impacts, (4) the availability of funding for decontamination and remediation of affected resources following a severe accident, and (5) the Fukushima and Chernobyl accidents.

As demonstrated below, none of the issues ra ised by Connecticut in its Amicus Brief falls within the scope of this license renewal proceeding, much less the scope of NYS-12C, which concerns the adequacy of Energy's decontamination cost and time inputs to its MACCS2-based SAMA analysis for Indian Point. Therefore, even if the Commission accep ts Connecticut's filing under 10 C.F.R. § 2.315(d), it should disregard Connecticut's arguments as irrelevant and immaterial to New York's petition for re view and to license renewal generally.

1. No Site-Specific Analysis of Severe Accident Impacts Is Required for Indian Point or Any Other Plant Seeking License Renewal Connecticut's argument that the NRC must undertake a "full and comp lete" review of the environmental impacts of radionuclide releases re sulting from a postulate d severe accident is directly contrary to Commission rules and legal precedent. As the Commission recently stated: The [facility's] SAMA analysis must also be understood against the backdrop of our Generic Environmental Impact Statement (GEIS), which contains a bounding, generic severe accident impacts analysis, applicable to all plants. Thus, although our rule s require that potential severe accident mitigation alternatives be considered for license renewal, no site-specific severe accident im pacts analysis need be done.

47 Thus, the NRC's GEIS provides an evaluation of severe accident impacts that applies to all U.S. nuclear power plants-including Indian Point.

48 Further, the Commission has noted that the

47 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012) (emphasis added) (citations omitted).

48 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1 at 5-12 to 5-116 (May 1996) ("GEIS") (NYS00131C); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010) ("Because the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the environmental impacts of severe accidents during the license renewal term 10GEIS analyses represent plant-specific estimates of the impacts from severe accidents that would generally over-predict, rather than under-predict, environmental consequences.

49 Based on the GEIS evaluation, 10 C.F.R. Part 51 concludes that

"[t]he probability weig hted consequences of atmospheric releases, fallout onto open bodies of water, re leases to ground water, and societal and economic impacts from severe accidents are small for all plants

."50 The NRC, therefore, already has considered the types of environmental impacts cited by Connecticut, including impacts to water and economic resources.

Insofar as Connecticut suggests that the N RC Staff must consider radionuclide release impacts caused by an "attack" on Indian Point, it raises another issue out side the scope of NYS-12C and this proceeding.

51 The Commission and the Indian Point Board consistently have held that the NRC does not need to consider, as part of its environmental review, terrorist attacks on nuclear power plants.

52 In fact, in rejecting a similar argument in proposed contention Connecticut EC-1, the Board held that such issues are outside the scope of this proceeding.

53 2. Spent Fuel Storage Issues Are Outsid e the Scope of NYS-12C and License Renewal Proceedings in General Connecticut also alludes to spent fuel storage environmental impacts in its Amicus Brief. Specifically, it states that damage caused to the Fukushima reactors and spent fuel pools

already have been addressed generically in bounding fashion.");

see also GEIS at 5-17, 5-22, 5-29, 5-34, 5-36, 5-38, 5-40, 5-45, 5-47, 5-85 to -88, 5-97 (NYS00131C).

49 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,480 (June 5, 1996).

50 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 38, Final Report at 5-3 (Dec. 2010) (NYS00133B) (quoting 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1 (Postulated Accidents; Severe Accidents)) (emphasis added).

51 Amicus Brief at 1-2.

52 See, e.g.

, AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007) (holding that impacts associated with terrorist attacks are "simply too far removed from the natural or expected consequences of agency action to require a study under NEPA."); Indian Point, LBP-08-13, 68 NRC at 143 ("[W]e are nonetheless bound by the Commission's ruling in Oyster Creek 'that NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities.'").

53 Indian Point, LBP-08-13, 68 NRC at 163.

11demonstrates the potential for long-lasting environmental impacts.

54 Again, Connecticut raises an issue that clearly is outside th e scope of the contention at issu e and license renewal generally. As an initial matter, Connecticut makes no attempt to link its spent fuel storage-related arguments to the admitted contention under ap peal-NYS-12C-which re lates to potential measures for mitigating the risk of a reactor severe accident, not a spent fuel pool accident. Furthermore, as both the Board and the Commissi on have held, onsite spent fuel storage during operations is a Category 1 issue addressed in the GEIS that is beyond the scope of a license renewal proceeding.

55 As the Board appropriately recognized, this generic determination encompasses spent fuel pool accidents.

56 Thus, Connecticut's reference to spent fuel storage impacts contravenes the Board's and Commission's previous rulings and the generic findings codified in 10 C.F.R. Part 51 and should be disr egarded as irrelevant to the contention at bar.

3. Emergency Planning Issues Are Outside the Scope of NYS-12C and License Renewal Proceedings Connecticut further argues that the NRC' s NEPA review failed to consider the environmental impacts of a majo r population relocation in the even t of an evacuation resulting from an Indian Point severe accident.

57 Connecticut, however, makes no attempt to link its evacuation-related arguments to NYS-12C or New York's petition for review.

The Board, moreover, previously rejected several proposed contentions challenging emergency preparedness and evacuation planning, including Connecticut EC-2.

58 In doing so, it made clear that "the NRC Regulation dealing with emergency plans, 10 C.F.R. § 50.47(a)(1)(i),

54 See Amicus Brief at 6-7.

55 See Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 16 (2007); Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 &4), CLI-01-17, 54 NRC 3, 21 (2001); Indian Point

, LBP-08-13, 68 NRC at 162-63, 185-86.

56 See Indian Point, LBP-08-13, 68 NRC at 162-63, 185-86.

57 See Amicus Brief at 6-7.

58 Indian Point, LBP-08-13, 68 NRC at 165-166 (rejecting proposed contention Connecticut EC-2).

12provides that no finding relating to emergency planning is necessa ry for issuance of a renewed nuclear power reactor operating license" and thus

, "[t]his language plac es consideration of emergency plans outside the scope of this proceeding."

59 The Commission repeatedly has confirmed that a NEPA-based contention may not be used to challenge the adequacy of emergency planning in a license renewal proceeding.

60 Accordingly, Connecticut may not now use an amicus curiae brief filed pursuant to 10 C.F.R. 2.315(d) to reintroduce an issue that the Commission has categorically rejected as outside the scope of license renewal.

4. Alleged Concerns About the Adequacy of Funding for Decontamination and Remediation Following an Actual Severe Accident Are Outside the Scope of NYS-12C and License Renewa l Proceedings in General Connecticut states that its concerns regarding purportedly overlooked severe accident costs "are further underscored given that is not clear that the Price Anderson framework would provide money to decontaminate and remediate affected areas and resources."

61 Like Connecticut's other claims, this argument lacks relevance to NYS-12C and license re newal in general. The Commission made this fact clear in the Pilgrim license renewal proceeding, wherein it affirmed the Board's rejection of a proposed SAMA-related "cleanup cont ention" that raised issues similar to those now raised by Connecticut. The Commission stated that "[d]eterminations regarding the precise role and relative authority of each relevant agency in the event of a severe reactor accident, and statutory interpretations going to sources of funding for decontamination efforts, do not fall within the scope of an individual license renewal proceeding."

62 It further

59 Id. at 149 (rejecting proposed contention NYS-29).

60 See Pilgrim, CLI-10-11, 71 NRC at 302 (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 alternative review-a NEPA-based review); see also Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 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);

Turkey Point

, CLI-01-17, 54 NRC at 9.

61 Amicus Brief at 5.

62 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 485-86 (2012).

13emphasized that a SAMA analysis "is not direct ed to, and does not re ly upon, the relative roles different agencies may take following a potential actual accident, or th e funding sources for any actual decontamination effort."

63 Therefore, the Commission should reject Connecticut's argument as outside the scope of license renewal and the contention at issue.

5. Connecticut's Statements Regarding Fukushima and Chernobyl Are Not Relevant to NYS-12C or License Renewal in General Connecticut states that "[t]he decontamination time used in the analysis here for Indian Point is disconnected from real world experience."

64 At first glance, this statement seems relevant to NYS-12C, which challenges, in part, the adequacy of Entergy's decontamination time inputs to the MACCS2 code used to perform the Indian Po int SAMA analysis. However, in actuality, Connecticut makes this statement while discussing the "evacuation and emergency planning zone" and "population relocation" impacts in the vicinity of Indian Point.

65 Specifically, it asserts that "it is not possible to state w ith any certainty when populations relocated from areas around Fukushima and Chernobyl will be permitted to return, if ever."

66 For the reasons stated above, emergency planning and population relocation issues are outside the scope of NYS-12C and this license renewal proceeding. Insofar as Connecticut might suggest that the NRC should reeval uate the adequacy of its generic environmental impact findings for license renewal in light of Fukushima, it ove rlooks recent and direc tly relevant Commission precedent on that issue. Specifically, in CLI-12-15, the Commission stated: That the Fukushima accident was a severe accident with serious consequences is self-evident. But our GEIS analysis encompasses severe accidents with serious consequences, as does the [licensee's] SAMA analysis. We re-emphasize, though, that our review of the Fukushima accident continues, and that if new and significant information comes to

63 Id. at 486.

64 Amicus Brief at 6.

65 See id. 66 Id.

14light that is relevant to ongoing application-specific NEPA documents the NRC will evaluate the information as appropriate.

67 In short, in discussing the Fukushima accident in its Amicus Brief, Connecticut provides no information that bears on adequacy of Entergy's SAMA analysis or the Staff's review thereof, or that would inform the Commi ssion's disposition of New York

's pending petition for review.

V. CONCLUSION For the foregoing reasons, the Board should deny Connecticut's Motion and Amicus Brief because they are procedurally defective. If the Commission accepts Connecticut's Amicus Brief under 10 C.F.R. § 2.315(d), then it should reject Connecticut's substantive arguments because they relate solely to issues that exceed the scope of NYS-12C and/or are beyond the proper scope of this license renewal proceeding.

Respectfully submitted,

Signed (electronically) by Kathryn M. Sutton Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq. Martin J. O'Neill, Esq.

Counsel for Entergy Nuclear Operations, Inc.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-3000 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com

Dated at Washington, D.C. this 28th day of April 2014

67 Pilgrim, CLI-12-15, 75 NRC at 726-27.

DB1/ 78783684 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 28, 2014 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised),

I certify that, on this date, copies of "Applicant's Answer to State of Connecticut's Amicus Brief in Support of State of New York Petition for Review of LBP-13-13" were served upon the Electronic Information Exchange (the NRC's 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

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