ML14091A319

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Order Denying New York'S Motion to Reopen the Record; Setting Deadline for New or Amended Contention
ML14091A319
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 04/01/2014
From: McDade L G
Atomic Safety and Licensing Board Panel
To:
State of NY
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25755
Download: ML14091A319 (7)


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.

(Indian Point Nuclear Generating Units 2 and 3)

Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01

April 1, 2014 ORDER (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention)

I. Responding to Motion to Reopen the Record - New York Contention 12-C On December 7, 2013, the State of New York (New York) filed a motion to Reopen the Record and for the Reconsideration of Contention NYS-12C.

1 Subsequently, Entergy Nuclear Operations, Inc. (Entergy) and the NRC Staff filed answers opposing New York's motion.

2 The Board granted New York's Motion for Leave to File a Reply, 3 and New York filed its reply in support of its motion on January 22, 2014.

4 For the reasons discussed below, we deny New York's Motion to Reopen the Record and for the Reconsideration of Contention NYS-12C.

1 See State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec. 7, 2013) [hereinafter New York Motion to Reopen].

2 See Entergy's Answer Opposing State of New York Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Dec. 23, 2013); NRC Staff's Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec.

23, 2013) [hereinafter Entergy Answer].

3 See Licensing Board Order (Granting New York's Motion) (Jan. 14, 2014) (unpublished).

4 State of New York Reply in Support of Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014). To reopen the record of this closed proceeding, a movant must show that its motion is timely; that it addresses a significant safety or environmental issue; and that a materially different result would be or would have been likely had the newly-proffered evidence been considered initially.

5 The moving party has an "elevated burden to lay a proper foundation for its claim"6 based on "relevant, material, and reliable" evidence.

7 Parties seeking reconsideration of board orders "must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid."

8 The compelling circumstances standard for granting leave to file a motion for reconsideration "is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier."

9 While the Board finds that New York's motion addressed a significant issue, New York did not provide sufficient information to establish that a different result would have been likely had the Board considered the new information proffered by New York when assessing the reasonableness of the TIMDEC input values accepted by the Staff in the Indian Point SAMA analysis. Specifically, New York has asserted that the Board should reconsider its recent ruling in light of the fact that NRC Staff used a TIMDEC input value of 365 days in a MACCS2 analysis of a severe accident at a spent fuel pool.

10 New York argued that the use of a 365-day TIMDEC is 5 10 C.F.R. § 2.326(a).

6 Private Fuel Storage, L.L.C.

(Indep. Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005).

7 10 C.F.R. § 2.337(a).

8 Id. § 2.345(b).

9 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004).

10 See New York Motion to Reopen. contrary to the position taken by the NRC Staff and Entergy before the Board in this proceeding that the NRC Staff had consistently accepted TIMDEC inputs of 60 days and 120 days for the last 30 years.

11 But, as the Applicant and the NRC Staff point out, these representations made before and during the hearing on NYS-12C refer to analyses of numerous failure scenarios performed for license renewal applications, and that the use of the longer duration for decontamination was utilized as a site specific value for a specific postulated spent fuel pool accident.

12 We find New York's explanation insufficient to show that the NRC Staff's acceptance of TIMDEC inputs of 60 days and 120 days for the Indian Point SAMA was not reasonable. Thus, it is unlikely that the Board would reach a materially different result given the information provided by New York and, accordingly, this motion does not meet the requirements for a contention to be reopened.

II. Permitting New York to File New Contention On November 25, 2013, New York filed a motion seeking leave to submit a recently-issued ruling by the New York State Public Service Commission (PSC Order) as an exhibit in connection with contention NYS-37.

13 The Board denied this motion as premature until the Staff determines whether to supplement the FSEIS to address this issue, and directed New York to delay the filing of any new or amended contention based on the PSC Order, or the information contained therein until further Order of this Board.

14 On December 20, 2013, the NRC Staff filed 11 Id. at 1.

12 See Entergy Answer at 14; NRC Staff's Answer to State of New York Motion for Leave to File Reply on Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Jan. 9, 2014). 13 State of New York Motion for Leave to Submit Recently-Issued Ruling by New York State Public Service Commission as an Additional Ex hibit Concerning Contention NYS-37 (Nov. 25, 2013).

14 Licensing Board Order (Denying New York's Motion) at 2 (Nov. 27, 2013) (unpublished).

its response to the Board's Order, in which the NRC Staff provided its evaluation of the information contained in the PSC Order and stated that it will not issue an FSEIS supplement to address that information.

15 Because the NRC Staff has chosen not to issue an FSEIS supplement to address the information in the PSC Order, New York's request is ripe and the Board will permit New York to file a new or amended contention based on this information within 30 days of the issuance of this order. It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD

________________________ Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE

Rockville, Maryland April 1, 2014 15 NRC Staff's Response to the Atomic Safety and Licensing Board's Order of November 27, 2013 (Denying New York's Motion) (Dec. 20, 2013).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR

) and 50-286-LR (Indian Point Nuclear Generating, ) Units 2 and 3) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing ORDER (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop O-7H4M Washington, DC 20555-0001

ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001

hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel

Mail Stop T-3F23 Washington, DC 20555-0001

Lawrence G. McDade, Chair Administrative Judge lawrence.mcdade@nrc.gov Richard E. Wardwell

Administrative Judge richard.wardwell@nrc.gov Michael F. Kennedy

Administrative Judge michael.kennedy@nrc.gov Carter Thurman, Law Clerk carter.thurman@nrc.gov

Kathleen E. Oprea, Law Clerk

Kathleen.Oprea@nrc.gov

Edward L. Williamson, Esq.

Beth N. Mizuno, Esq. David E. Roth, Esq.

Sherwin E. Turk, Esq.

Brian Harris, Esq.

Mary B. Spencer, Esq.

Anita Ghosh, Esq. Christina England, Esq.

Catherine E. Kanatas, Esq.

John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001

sherwin.turk@nrc.gov; edward.williamson@nrc.gov beth.mizuno@nrc.gov; brian.harris.@nrc.gov david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; christina.england@nrc.gov; catherine.kanatas@nrc.gov; john.tibbetts@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov

William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc. 440 Hamilton Avenue White Plains, NY 10601

wdennis@entergy.com

William B. Glew, Jr. Organization: Entergy 440 Hamilton Avenue, White Plains, NY 10601

wglew@entergy.com

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention) 2 Elise N. Zoli, Esq.

Goodwin Proctor, LLP Exchange Place, 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com

Daniel Riesel, Esq.

Victoria Shiah Treanor, Esq.

Adam Stolorow, Esq.

Jwala Gandhi, Paralegal Natoya Duncan, Paralegal Counsel for Town of Cortlandt Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022

driesel@sprlaw.com; vtreanor@sprlaw.com astolorow@sprlaw.com; jgandhi@sprlaw.com; nduncan@sprlaw.com Kathryn M. Sutton, Esq. Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

Raphael Kuyler, Esq.

Lena Michelle Long, Esq.

Laura Swett, Esq. Lance Escher, Esq.

Brooke McGlinn, Esq.

Susan Raimo, Esq.

Mary Freeze, Legal Secretary

Doris Calhoun, Legal Secretary Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com martin.oneill@morganlewis.com rkuyler@morganlewis.com; llong@morganlewis.com; lswett@morganlewis.com lescher@morganlewis.com bmcglinn@morganlewis.com sraimo@morganlewis.com mfreeze@morganlewis.com dcalhoun@morganlewis.com

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Ramona Cearley, Secretary Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org

dbrancato@riverkeeper.org rcearley@riverkeeper.org Melissa-Jean Rotini, Esq.

Assistant County Attorney

Office of Robert F. Meehan, Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601

mjr1@westchestergov.com

Clint Carpenter, Esq.

Bobby Burchfield, Esq.

Matthew Leland, Esq. McDermott, Will and Emergy LLP

600 13th Street, NW Washington, DC 20005 ccarpenter@mwe.com; bburchfield@mwe.com mleland@mwe.com

Matthew W. Swinehart, Esq.

Covington & Burling LLP

1201 Pennsylvania Avenue, NW Washington, DC 20004 mswinehart@cov.com Edward F. McTiernan, Esq.

New York State Department

of Environmental Conservation Office of General Counsel 625 Broadway

14th Floor Albany, NY 12233-1500 efmctier@gw.dec.state.ny.us

Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention) 3 Manna Jo Greene, Environmental Director Steven C. Filler

Hudson River Sloop Clearwater, Inc.

724 Wolcott Ave.

Beacon, NY 12508 mannajo@clearwater.org; stephenfiller@gmail.com

Andrew Reid, Esq. Organization: Hudson River Sloop Clearwater, Inc.

Springer & Steinberg, P.C.

1600 Broadway, Suite 1200 Denver, CO 80202 areid@springersteinberg.com Richard Webster, Esq.

Public Justice, P.C.

For Hudson River Sloop Clearwater, Inc.

1825 K Street, NW, Suite 200 Washington, D.C. 20006 rwebster@publicjustice.net

Michael J. Delaney, Esq. Director, Energy Regulatory Affairs NYC Department of Environmental Protection

59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov

John J. Sipos, Esq.

Charles Donaldson, Esq.

Kathryn Deluca, Esq.

Elyse Houle, Legal Support Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol, State Street Albany, New York 12224 john.sipos@ag.ny.gov charlie.donaldson@ag.ny.gov kathryn.deluca@ag.ny.gov elyse.houle@ag.ny.gov Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120

Hartford, CT 06141-0120

robert.snook@po.state.ct.us

Janice A. Dean, Esq.

Kathryn DeLuca, Esq.

Assistant Attorney General Office of the Attorney General of the State of New York

120 Broadway, 26th Floor

New York, New York 10271 janice.dean@ag.ny.gov kathryn.deluca@ag.ny.gov Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com

[Original signed by Brian Newell ] Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of April, 2014