ML14143A415
| ML14143A415 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/23/2014 |
| From: | Turk S E Atomic Safety and Licensing Board Panel |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25973 | |
| Download: ML14143A415 (32) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
In the Matter of
) ) ENTERGY NUCLEAR OPERATIONS, INC.
) Docket No. 50
-247-LR/50-286-LR ) (Indian Point Nuclear Generating
) Units 2 and 3)
)
NRC STAFF'S ANSWER TO THE STATE OF NEW YORK'S PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF APRIL 1, 2014
____________________________________________________________________________
Sherwin E. Turk C ounsel for NRC Staff May 23, 2014
- ii - TABLE OF CONTENTS Page TABLE OF AUTHORITIES
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......... iii INTRODUCTION
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1 BACKGROUND
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2 QUESTION PRESENTED
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5 ARGUMENT ................................................................................................
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6 I. Applicable Legal Standards
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6 A. Standards Governing Petitions for Review
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6 B. Standards Governing Motions to Reopen and for Reconsideration
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7 1. Reopening Standards
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7 2. Standards Governing Reconsideration
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8 II. New York Has Not Shown That the Board Erred in Denying Its Motion to Reopen
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10 III. New York Has Not Shown That the Board Erred in Denying Its Motion for Reconsideration
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........................................ 19 IV. New York Has Not Shown Any Legal or Prejudicial Procedural Error in The Board's Order Denying the Motion to Reopen and for Reconsideration
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20 V. New York's Motion Was Untimely .................................................................................
21 V I. New York's Arguments Regarding the Staff's Disclosures Should Be Rejected
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2 4 CONCLUSION
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25
- iii - TABLE OF AUTHORITIES Page JUDICIAL DECISIONS U.S. Supreme Court Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989)
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1 3 STATUTES National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321, et seq. ................
3, 10 ADMINISTRATIVE DECISIONS Commission
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............................................................
8, 1 9 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001)
................................
................................................................
.. 7 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), Unit 2), CLI 18, 58 NRC 433 (2003)
................................
....................................................
10 Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-02-22, 56 NRC 213 (2002)
................................
................................................................
.. 7 Dominion Nuclear Connecticut, In
- c. (Millstone Nuclear Power Station, Units 2 and 3), CLI 1, 55 NRC 1 (2002)
..............................................................................
10 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI 2, 55 NRC 5 (2002) ................................
......................................10 Entergy Nuclear Generation Co
. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI 10, 75 NRC 479 (2012
) ...............................................
8 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI 3, 75 NRC 132 (2012)
................................
...........
8, 25 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order by the Secretary (Feb. 28, 2014) (unpublished)
................................
....... 5 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order by the Secretary (Jan. 29, 2014) (unpublished)
................................
........ 5 Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31 (2001)
................................
................................................................
...1 3
- iv - Louisiana Energy Services, L.P.
(National Enrichment Facility), CLI-06-15 , 63 NRC 687 (2006) ................................
................................................................
. 7 Louisiana Energy Services, L.P.
(Claiborne Enrichment Center), CLI-97-2, 45 NRC 3 (1997) ................................
................................................................
......10 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI 27, 64 NRC 399 (2006)
................................
.... 9, 10, 2 0 Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345 (2005) ................................
.............................................................
8, 19 Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261 (2000)
................................
................................................................
.10 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI 08, 74 NRC 214 (2011)
................................
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2 Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 71 NRC 90 (2010)
................................
................................................................
... 6 , 7 Atomic Safety and Licensing Appeal Board
- Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB
-775, 19 NRC 1361 (2006)
........................................................................ 8 Vermont Yankee Nuclear Power Corp., (Vermont Yankee Nuclear Power Station), ALAB
-138, 6 AEC 520 (1973)
................................
......................................................
9 Atomic Safety and Licensing Board
- Amergen Energy Co., LLC (Oyster Creek Nuclear Generation Station), LBP-08-12, 68 NRC 5, aff'd, CLI-08-28, 68 NRC 658 (2008
) ................................
.....................
8 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP 13, 78 NRC ___ (Nov. 27, 2013)
..............................................................
passim Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-10-13, 71 NRC 673 (2010)
................................
................................................................
. 3 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43 (2008)
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2, 1 8 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014) (unpublished)
..........................
passim Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting New York's Motion) (Jan. 14, 2014) (unpublished)
................................
.... 12, 20
- v - Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting in Part and Denying in Part State of New York and Riverkeeper's Motion to Compel) (March 16, 2012) (unpublished)
................................
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24 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (unpublished)
................................
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3 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Ruling on New York State's New and Amended Contentions)
(June 16, 2009) (unpublished)
................................
................................................................
... 3 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-38, 54 NRC 490 (2001
) ................................
................................................................
. 9 Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), LBP-98-17, 48 NRC 69 (1998)
................................
................................................................
... 9 South Carolina Electric & Gas Co.
(Virgil C. Summer Station, Unit 1), LBP-82-84, 16 NRC 1183 (1982
) ................................
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8 REGULATIONS 10 C.F.R. § 2.323(a)(2)
................................................................................................
....... 21, 23 10 C.F.R. § 2.323(c)................................
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2 0 10 C.F.R. § 2.323(e)
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......... 8, 9, 19 10 C.F.R. § 2.323(e) (2004)
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....... 9 10 C.F.R. § 2.326
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7 , 8 10 C.F.R. § 2.326(a)(1)
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21 10 C.F.R. § 2.336(b)
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24 10 C.F.R. § 2.336(b)
(2014) ................................
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......24 10 C.F.R. § 2.336(b)
(2012) ................................
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......24 10 C.F.R. § 2.336(b)(3) (2012)
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..24 10 C.F.R. § 2.3 41(b)(2) ................................
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2, 5 10 C.F.R. § 2.341(b)(3)
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1 10 C.F.R. § 2.341(b)(4)(i)-(v) ................................
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... 6, 7
- vi - 10 C.F.R. § 2.341(b)(4)(ii) ................................
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.........20 10 C.F.R. § 2.341(b)(4)(iv) ................................
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........20 10 C.F.R. § 2.345(b) (2004)
................................
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....... 9 10 C.F.R. § 2.730 (2003)
................................................................................................
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9 10 C.F.R. § 2.771 (2003)
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9 10 C.F.R. § 2.786(b)(4)(i)
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7 10 C.F.R. § 2.1203(b) ................................
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24 MISCELLANEOUS Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562 (Aug. 3, 2012)
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24 Final Rule, "Changes to Adjudicatory Process," 69 Fed. Reg. 2,182 (Jan. 14, 2004)
................................
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9 NUREG-1437, Supplement 38, Vols. 1
-2, Draft Report, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment" (Dec. 2008)
................................
.....................................................
3 NUREG 1437, Supplement 38, Vols. 1
-3, Final Report, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report" (Dec. 2010)
................................
................................................................
3 NUREG-1437, Vols. 1
-2, Main Report, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (May 1996)
................................
................................... 3 SECY-13-0112, Consequence Study of a Beyond
-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark 1 Boiling-Water Reactor (Oct. 9, 2013)
................................
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1 2 Draft Report, Consequence Study of a Beyond
-Design Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor (June 26, 2013) (ADAMS Accession No.
................................
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21 Final Report, Consequence Study of a Beyond
-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark 1 Boiling Water Reactor (Oct. 2013) (ADAMS Accession No. ML13256A342)
................................
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12, 21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
In the Matter of
) ) ENTERGY NUCLEAR OPERATIONS, INC.
) Docket No. 50
-247-LR/50-286-LR ) (Indian Point Nuclear Generating
) Units 2 and 3)
) NRC STAFF'S ANSWER TO THE STATE OF NEW YORK'S PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF APRIL 1, 20 14 INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b
)(3), the staff of the U.S. Nuclear Regulator y Commission ("Staff" or "NRC Staff") hereby files its answer to the State of New York's ("State
" or "New York")
petition for review 1 of the Atomic Safety and Licensing Board
's ("Board") Order of April 1, 2014, 2 denying the State's motion to reopen the record and to reconsider 3 the Board's "Partial Initial Decision (Ruling on Track 1 Contentions)" with respect to its resolution of Contention NYS-12C (SAMA Decontamination and Clean
-Up Costs).4 For the reasons set forth 1 State of New York Petition for Review of Atomic Safety and Licensing Board's April 1, 2014 Decision Denying the State's Motion to Reopen the Record and for Reconsideration of the Board's November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS
-12C (Apr. 28, 2014) ("Second Petition").
2 Order (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014)
(unpublished) ("Order"). 3 State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C ("Motion") (Dec. 7, 2013).
4 Entergy Nuclear Operations, I nc. (Indian Point Nuclear Generating Units 2 and 3), LBP 13, 78 NRC ___ (Nov. 27, 2013) (slip op.)
("LBP-13-13" or "PID"). below, the Staff submits that New York has not shown any error in the Board's Order that would warrant Commission review. Accordingly, New York's petition should be denied.5 BACKGROUND The Staff previously summarized the background of this proceeding in its Answer to New York's petition for review 6 of the Board's Partial Initial Decision ("PID"), LBP-13-13.7 In brief, on April 23, 2007, Entergy Nuclear Operations Inc. ("Entergy" or "Applicant")
submitted a license renewal application ("LRA") for Indian Point Units 2 and 3 ("IP2" and "IP3"). On July 31, 2008, the Board granted New York's petition to intervene and admitted many of its contentions , including Contention NYS
-12 , concerning the SAMA analysis described in Entergy's Environmental Report ("ER")
.8 As admitted by the Board, Contention NYS-12 asserted that "Entergy's SAMA s for IP2 and IP3 do not accurately reflect decontamination and cleanup costs associated with a severe accident because specific inputs and assumptions made in the MACCS2 code regarding decontamination and cleanup costs may not be correct
,"9 rendering 5 The Staff notes that New York's petition seeks to incorporate by reference a large number of other voluminous pleadings and adjudicatory submissions. See Second Petition at 3 , 4 and nn. 3-5. New York's attempt to incorporat e those materials in its Second Petition should be disregarded, as only the statements and arguments that are explicitly presented in the petition should be considered. Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI 08, 74 NRC 214; 219 (2011) (noting that "[b]riefs on appeal should be comprehensive, concise and self
-contained," and declining to "augment" the appellant's brief by incorporating other pleadings). Further, the substantive statements in the three
-page glossary and one
-page timeline attach ed to its Second Petition should be disregarded as well, in that they should have been included in the petition, itself
- which would have caused New York's petition to exceed the 25
-page limit for petitions set forth in 10 C.F.R. § 2.341(b)(2).
6 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C" (Feb. 14, 2014) ("First Petition").
7 NRC Staff's Answer to "State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS
-12C" (Apr. 28, 2014) ("Staff Answer to First Petition"), at 2
-10. 8 Entergy Nuclear Operations, Inc. (Indian Point , Units 2 and 3), LBP 13, 6 8 NRC 43, 100-02, 218 (20 08). 9 Id. at 218. Entergy's SAMA analysis insufficient under NEPA.
10 The Board admitted the contention to the extent that it "challenge[d] the cost data for decontamination and clean
-up used by MACCS2
,"11 The Board subsequently granted New York's requests to amend Contention NYS
-12 on three occasions, culminating in its admission of Consolidated Contention NYS
-12/12A/12B/12C
- (a) in June 2009, 12 following the Staff's publication of its Draft Supplemental Environmental Impact Statement for license renewal of IP2 and IP3
- 13 (b) in June 2010, 14 following Entergy's December 2009 submittal of a SAMA Reanalysis
, using revised meteorological data
- 15 and (c) in July 2011, 16 following the Staff's publication of its Final Supplemental Environmental Impact Statement for license renewal of IP2 and IP3
.17 Evidentiary hearings on this contention (herein referred to as "
Contention NYS-12C") were held in Tarrytown, New York, on October 17-18, 2012, at which New York, Entergy and 10 National Environmental Policy Act of 1969, as amended
("NEPA"), 42 U.S.C. 4321, et seq. 11 Id. at 102. 12 Order (Ruling on New York State's New and Amended Contentions) (June 16, 2009)
(unpublished), at 3-4. 13 NUREG-1437, Supplement 38, Vols. 1-2, Draft Report, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment" (Dec. 2008) ("DSEIS" or "Draft SEIS") (Ex. NYS000132A
-D). 14 Entergy Nuclear Operations, Inc. (Indian Point
, Units 2 & 3), LBP-1 0-13, 7 1 NRC 673, 683-84 (2010). 15 See Letter from Fred Dacimo (Entergy) to NRC Document Control Desk, NL 165 (Dec. 11, 2009), Attachment 1 (Ex. ENT000009).
16 Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (Ju ly 6, 20 11) (unpublished), at 3-9. 17 NUREG-1437, Supplement 38, Vols. 1
-3, Final Report, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report" (Dec. 2010) ("FSEIS") (Ex.
NYS0001 33A-J). In accordance with established practice, the FSEIS for license renewal of IP2/IP3 was issued as a site
-specific supplement to NUREG 1437, Vols. 1-2, Main Report, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (May 1996) ("GEIS") (Ex. NYS000131A
-I). the Staff presented witnesses and submitted numerous evidentiary exhibits
. More specifically, New York presented the testimony (and rebuttal testimony) of Dr. François Lemay; Entergy presented the testimony of Grant Teagarden, Dr. Kevin O'Kula, and Lori Ann Potts
- and the Staff presented th e testimony of Staff witnesses Dr. Tina Ghosh and Donnie Harrison, and Dr. Nathan Bixler and Joseph Jones from Sandia National Laboratories
("Sandia")
. On November 27, 2013, the Board issued its PID, in which it resolved Contention NYS-12C in favor of the Applicant and Staff. In this regard, the Board conclud ed, in part: We find that a preponderance of the evidence submitted regarding this contention supports the conclusion that Entergy's SAMA analysis is sufficiently site specific and a reasonable method under NEPA standards given that key input parameters are per capita based and multiplied by a site
-specific population distribution.
Furthermore, Entergy's use of and the NRC's approval of the TIMDEC and CDNFRM values was reasonable and satisfies the requirements under NEPA and 10 C.F.R.
§ 51.53(c)(3)(ii)(L). It was reasonable for Entergy to use the selected TIMDEC values given its technical basis and what the values represent. . . . Accordingly, NYS
-12C is resolved in favor of the NRC Staff and the issues raised by this contention do not prevent the Commission from issuing the requested renewal licenses.18 On December 7, 2013, New York filed its Motion before the Board, seeking to reopen the record to admit a new exhibit and for reconsideration of the Board's decision o n Contention NYS-12C , regarding Entergy's use of the TIMDEC input parameter
. On February 14, 2014, while its Motion was pending before the Board, New York filed a petition for Commission review of LBP-13-13.19 On February 28, 2014, the Secretary issued an Order holding New York's 18 LBP-13-13, slip op. at 293 (emphasis added).
As stated by the Board, "CDNFRM" defines the non-farmland decontamination cost per individual for each level of decontamination modeled in the MACCS2 code, while "TIMDEC" defines the time required for completion of each of the decontamination levels. Id. at 272. New York's challenge to Entergy's SAMA analysis focused principally on these two inputs to the MACCS2 code, and the Board's decision likewise focused on these two inputs and the site
-specific nature of Entergy's SAMA analysis. See id. at 272-73. 19 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS
-12C (Feb. 14, 2014) ("First Petition"). petition in abeyance pending the Board's resolution of New York's Motion - and offer ed New York an opportunity to amend or withdraw its Petition after the Board rule d on th e Motion.20 On April 1, 2014, the Board denied New York's motion to reopen and reconsider
- 21 and on April 4, 2014, New York notifie d the Commission that it would not seek to amend i t s pending petition for review, but would instead file a new petition for review of the Board's Order denying its motion to reopen and t o reconsider
.22 On April 28, 2014, New York filed the instant Petition.
23 QUESTION PRESENTED In its Petition, New York seeks review of a single, relatively straightforward issue. That issue, succinctly restated, is as follows:
Did the Board commit clear or prejudicial error in its Order of April 1, 2014, in finding that "New York di d 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 20 See Order by the Secretary (Feb. 28, 2014) (unpublished), at 2.
21 Order (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014)
(unpublished). The Board's Order denying New York's Motion trigger ed the 25-day filing period for answers to New York's First Petition. See Order by the Secretary (Feb. 28, 2014) (unpublished), at 2. 22 State of New York's Notice Pursuant to the Secretary's February 28, 2014 Order, (Apr. 4, 2014). Inasmuch as the Board's Order of April 1, 2014, ruled on a motion to reopen/ and reconsider the decision that was the subject of New York's previously
-filed Petition, New York should have amended that Petition to embrace that Order. By electing, instead, to file a second petition, New York made it necessary for other parties and the Commission to consider two petitions concerning the Board's decision in LBP-13 and effectively afforded itself a substantial enlargement of the page limit for petitions, established in 10 C.F.R. § 2.341(b)(2) and the Secretary's Order of January 29, 2014 (granting the parties' joint request for an enlargement of the page limitation, from 25 to 60 pages).
23 Also on April 28, 2014, the Applicant and Staff filed their answers to New York's petition for review of LBP 13, and to the State of Connecticut's Amicus Brief in support thereof. See (1) Staff Answer to Initial Petition; (2) Applicant's Answer Opposing the State of New York's Petition for Review of the Board's Partial Initial Decision (LBP 13) (Apr. 28, 2014) ("Applicant's Answer to First Petition"); (3) NRC Staff's Answer to "Amicus Brief of the Attorney General of Connecticut" (Apr. 28, 2014); and (4) Applicant's Answer to State of Connecticut's Amicus Brief in Support of State of New York Petition for Review of LBP 13 (Apr. 28, 2014).
input values accepted by the Staff in the Indian Point SAMA analysis." 24 For the reasons set forth below, the Staff submits that New York has not shown any clear or prejudicial error in the Board's Or der that would warrant Commission review
. ARGUMENT I. Applicable Legal Standards A. Standards Governing Petitions for Review Pursuant to 10 C.F.R. § 2.341(b)(4), the Commission may grant review of a Board decision, in its discretion
, "giving due weight to the existence of a substantial question with respect to the following considerations" set forth in 10 C.F.R. § 2.341(b)(4)
- (i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii) A substantial and important question of law, policy or discretion has been raised; (iv) The conduct of the proceeding involved a prejudicial procedural error; or (v) Any other consideration which the Commission may deem to be in the public interest.
Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI 5, 71 NRC 90 , 98 (2010). With respect to factual determinations, review is undertaken only as follow s: . . . . We do not exercise our authority to make de novo findings of fact "where a Licensing Board has issued a plausible decision that rests on carefully rendered findings of fact." As we have stated on other occasions, "[w]hile [we have] discretion to review all underlying factual issues de novo, we are disinclined to do so where a Board has weighed arguments presented by experts and rendered reasonable, record
-based factual findings." We defer to a board's factual findings and "generally step in only to correct 'clearly erroneous' findings
- that is, findings 'not even plausible in 24 Order of April 1, 2014, at 2; see Second Petition, at 11, 16
-17, and 23-24. light of the record viewed in its entirety'" - where there "is strong reason to believe that . . . a board has overlooked or misunderstood important evidence." "Our standard of 'clear error' for overturning a Board's factual finding is quite high." Id. at 98-99 (footnotes omitted).25 B. Standards Governing Motions to Reopen and for Reconsideration
- 1. Reopening Standards In accordance with 10 C.F.R.
§ 2.326 , a motion to reopen the closed record of a proceeding to consider additional evidence "will not be granted
" unless certain specified criteria are satisfied, based upon the affidavits of competent individuals or experts
- § 2.326 Motions to reopen.
(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:
(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.
(b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied.
. . . Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met..
. . . It is well established that the proponent of a motion to reopen a closed record bears a 25 Under the "clearly erroneous" standard in § 2.341(b)(4)(i) and former
§ 2.786(b)(4)(i
), the Commission generally "decline[s] to second-guess plausible Board decisions
" that rest on carefully rendered findings of fact, but will undertake review in the case of "obvious error." See, e.g., Louisiana Energy Services, L.P.
(National Enrichment Facility), CLI 15, 63 NRC 687, 697 (2006); Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI 22, 56 NRC 213, 222 (2002); Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant), CLI 11, 53 NRC 370, 382 (2001).
"deliberately heavy" burden.26 In particular, the motion must be supported by competent evidence establishing that each of the criteria in § 2.326 have been satisfied
- i.e., the movant must show t hat th e motion (1) was timely filed, (2) concerns a significant environmental matter, and (3) demonstrates that a materially different result would be or would have been likely had the newly proffered evidence been considered initially
.27 It is not sufficient for the movant to point to the existence of new information; rather , "reopening requires a showing that the new information will 'likely' trigger a 'different result.'"
28 Further, a motion to reopen must be supported by an affidavit by a competent witness, demonstrating that the motion should be granted. The affidavit must provide admissible evidence
, sufficient to withstand summary disposition
- 29 mere speculation, allegations and conclusory assertions, even by an expert, are insufficient. 30 2. Standards Governing Reconsideration Pursuant to 10 C.F.R.
§ 2.323(e), a party that seeks reconsideration of a decision must demonstrate the existence of "compelling circumstances" which render th at decision invalid:
26 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI 10, 75 NRC 479, 495 (2012) ("the reopening standard
. . . is intended to impose a
'deliberately heavy
' burden on parties seeking to supplement the evidentiary record at the 11th hour, after the record has closed."), citing Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 3, 75 NRC 132, 139 (2012); cf. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28. 68 NRC 658, 674, 675 (2008
). 27 Oyster Creek, 68 NRC at 674.
28 Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI
-0 5-12, 61 NRC 345, 350, 355 (200 5) (upholding the Board's determination not to reopen, in that the newly proffered information was "much too thinly supported to conclude that taking it to hearing would 'likely' cause a different result within the meaning of our reopening rule"). Accord, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB
-775, 19 NRC 1361, 1365
-66 (2006).
29 South Carolina Electric & Gas Co.
(Virgil C. Summer Station, Unit 1) LBP 84, 16 NRC 1183, 1186 (1982) (citing Vermont Yankee Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138. 6 AEC 520, 523 (1973)).
30 Amergen Energy Co., LLC (Oyster Creek Nuclear Generation Station), LBP 12, 68 NRC 5, 22, aff'd , CLI-08-28, 68 NRC 658 (2008).
(e) Motions for reconsideration. Motions for reconsideration may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. . . . 31 Th is standard, requiring a showing of "compelling circumstances
," was adopted by the Commission in 2004 to permit reconsideration "only where manifest injustice would occur in the absence of reconsideration
, and the claim could not have been raised earlier.
"32 As th e Commission stated in adopting this rule, "reconsideration should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.
"33 As the Commission has emphasized, this standard is strictly applied, and motions for reconsideration are not to be granted lightly.
34 It is not sufficient for a movant to point to facts that were not considered by the Board in its decision; rather, those facts must establish "a clear and material error" by the Board that "renders the decision invalid." Significantly, motions for reconsideration may not rest upon new evidence or arguments that were not presented to the Board previously; 35 where the facts presented by the motion were not in evidence and thus could not have been considered by the Board in its decision, they may not be relied upon as a basis for "reconsidering" th at decision.36 31 10 C.F.R. § 2.323(e) (emphasis added).
32 Final Rule, "Changes to Adjudicatory Process," 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004).
Compare 10 C.F.R. §
§ 2.323(e) and 2.345(b) (2004) with former §§ 2.730 and 2.771 (2003).
33 69 Fed. Reg. at 2,207 (emphasis added).
34 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400
-01 (2006).
35 Id. at 402. 36 Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), LBP 38, 54 NRC 490, 493 (2001)
(citing Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), LBP 17, 48 NRC 69, 73
-74 (1998)). Further, motions to reopen may not reargue claims that were presented and considered previously; rather, the motion must demonstrate that some significant fact or controlling decision or principle of law was overlooked or misunderstood by the Board.
37 II. New York Has Not Shown That the Board Erred in Denying Its Motion to Reopen As discussed supra at 4, t he Board determined in its PID that Entergy's use of the TIMDEC and CDNFRM inputs in its MACCS2 SAMA analysis was reasonable, and that Entergy's SAMA analysis was sufficiently site specific and reasonable under NEPA
.38 In particular, the Board found that the TIMEDEC inputs utilized by Entergy in its SAMA analysis (i.e., 60-days and 120
-days), were reasonable in light of the nature of the analysis.
39 The Board determined that a SAMA analysis is intended to consider a probability
-weighted average of "numerous postulated accident scenarios, spanning a spectrum of potential initiating events, accident sequences, and severity of consequences."
40 The Board emphasized that the input variables need to be reasonable for use over the entire set of modeled accidents for a range of meteorology conditions over a large geographic area and were not meant to represent a "single, specific accident scenario
."41 The Board further found that New York's presentation and reliance on extreme events including Chernobyl and Fukushima Daiichi represented individual unlikely events that would need to be appropriately weighted to be included in the input 37 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI 27, 64 NRC 399, 40 2 (2006); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI 18, 58 NRC 433, 434 (2003); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI 2, 55 NRC 5, 7 (2002);
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit s 2 and 3), CLI-0 2-1, 5 5 NRC 1, 2-3 (200 2); Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI 21, 52 NRC 261, 264 (2000); Louisiana Energy Services, L.P.
(Claiborne Enrichment Center), CLI 2, 45 NRC 3, 4
-5 (1997). 38 LBP-13-13, slip op. at 293.
39 Id.at 283. 40 Id. 41 Id. at 283-84. values.42 Moreover, the Board determined that the selected values for TIMDEC need to represent a frequency
-weighted average decontamination time over all of the modeled accidents and not just a worst case accident scenario.
43 Citing the Staff's expert testimony, the Board determined that for the SAMA analysis to produce "a reliable and reasonable analysis, the decontamination times must represent all the modeled severe accidents including ones that require little decontamination."
44 In addition, the Board found that the Staff (which approved Entergy's use of this value in the FSEIS), has been examining appropriately weighted clean
-up times of nuclear plant accidents for 37 years, beginning with the 1975 Reactor Safety Study, and continuing through NUREG
-1150 to the present.
45 The Board accordingly resolved this issue in favor of Entergy and the Staff.
On December 7, 2013, New York filed its motion to reopen the record to admit a new exhibit and for reconsideration of the Board's determination, in LBP-13-13, that Entergy's use of the TIMDEC input parameter was reasonable. In this regard, New York submitted a 7
-page motion, supported by the Declaration s of its lead attorney and an employee of its testifying expert's firm , 46 and other attachments, in which it present ed information concerning a MACCS2 computer analysis that was conducted by the NRC Office of Nuclear Regulatory Research ("RES") in November
-December 2012, as part of a "scoping study" of the consequences of a n 42 Id. at 285. 43 Id. at 286-87. 44 Id. at 287 (citing NRC Staff NYS
-12C/16B Testimony, Ex.
NRC000041, at 90). Citing the Staff's expert testimony, the Board also recognized that "it is likely that an actual decontamination effort would depart from the modeled inputs based on the extent of the accident, environmental conditions during the clean
-up, and actual resources expended during the clean
-up." Id.; cf. Tr. at 2189
-91. 45 Id. at 285-86. 46 Declaration of Assistant Attorney General John Sipos in Support of State of New York's Motion to Reopen the Record and for Reconsideration of Board Ruling LBP 13 in Contention NYS
-12C (Dec. 7, 2013) ("Sipos Declaration"); Declaration of Timothy Mahilrajan of International Safety Research, Inc. (Dec. 7, 2013) ("Mahilrajan Declaration").
extremely severe spent fuel pool ("SFP") accident following the events at Fukushima Dai-Ichi.47 New York allege d that (1) it did not receive the native format files for this MACCS2 run until November 2 6, 2013, (2) the proffered evidence concerns a significant environmental matter, and (3) a materially different result would have been likely if the newly proffered evidence had been disclosed by the Staff and considered by the Board initially
.48 New York further claimed - without citing any specific testimony
- that the SFP Scoping Study's use of a one
-year decontamination time period somehow contradicted statements by Entergy's and the Staff's witnesses regarding the decontamination times used in the SAMA analyses for other license renewal applications
.49 Entergy and the Staff filed answers in opposition to New York's Motion , to which New York then replied, 50 having been given an opportunity to do so by the Board.
51 On April 1, 2014, the Board issued its Order denying New York's Motion. After reviewing the standards governing motions to reopen and for reconsideration, the Board found as follows:
While the Board finds t h at New York's motion a ddressed a significant issue, New York di d not provide sufficient information to establish that a differ e nt result w ould have been likely had the Board consider e d the new information proffered by New York w h en assessi n g the reasonable ness of the T IMDEC input values acc epted by the Staff in the I ndian Point SAMA analysis.
47 See SECY-13-0112, Consequence Study of a Beyond
-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark 1 Boiling Water Reactor (Oct. 9, 2013), and Final Report, Consequence Study of a Beyond Desig n-Basis-Earthquake Affecting the Spent Fuel Pool for a U.S. Mark 1 Boiling Water Reactor (Oct. 2013) ("Final SFP Scoping Study") (ADAMS Accession No. ML13256A342) (Motion, Attach. 7).
48 Motion at 5.
49 Id. at 2, 5, 6.
50 See (1) NRC Staff's Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS
-12C (Dec. 23, 2013) ("Staff Response to Motion"); (2) Entergy's Answer Opposing State of New York Motion to Reopen the Record and for Reconsideration o f Contention NYS-12C (Dec. 23, 2014); (3)
State of New York Reply in Support of Motion to Reopen the Record and for Reconsideration of Contention NYS
-12C (Jan 22, 2014).
51 Order (Granting New York's Motion) (Jan. 14, 2014) (unpublished).
Specifically, New York h as asserted that the Board should r econsider i t s 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 p ool. Ne w York argued th a t the use of a 365-day TIMDEC is contrary to the position taken by the NRC Staff a nd 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. Bu t, as the Applicant and the NRC Staff point out, these representations made before and during the hearing on NYS-12C ref e r to analyses of numerous failure scenarios performed for license r enewal applications, and that the use of the longer duration for decontamination was utilized as a si t e specific value for a sp ecific p ostula t ed spent fu e l pool accident. We find New York's explanation insufficient to show that the NRC Staff's acceptance of TIMDEC inputs of 60 d a ys and 120 days for the Indian Point SAMA wa s not reason able. Thus, it is unlikely that the Board would reach a materially different result given t he information provided by New York and, accordi ngly, this motion does not meet the requirements for a contention t o be reopened.52 In sum, the Board examined the information presented by New York, and found it did not show that a different result would have been likely if the information had been considered in its PID
.53 New York's Second Petition challenges the Board's denial of New York's Motion. Significantly, however, New York does not show that the Board erred in finding that the Staff's and Entergy's testimony had pertained to SAMA analyses involving "numerous failure scenarios performed for license renewal applications"
- in contrast to the SFP Scoping Study, for which a "longer duration for decontamination was utilized as a site specific value for a specific 52 Order of April 1, 2014, at 2
-3 (emphasis added; footnotes omitted).
53 While the Board found that "New York's motion addressed a significant issue" (Order at 2), the Staff submits that New York did not show that the information it presented concerning the use of a one-year decontamination period in RES's analysis of an extremely severe SFP accident has any bearing on the Staff's use of shorter average time periods in more "realistic" analyses of potentially cost
-beneficial SAMAs for license renewal. As a result, New York did not show that its information "reveal[s] a seriously different picture of the environmental impact" of license renewal. See Staff Response to Motion, at 8-9, citing Hydro Resources, Inc.
(P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 52 (2001); cf. Marsh v. Oregon Natural Resources Council , 490 U.S. 360, 374 (1989)
. postulated spent fuel pool accident
."54 Nor does New York's Second Petition show that the new information (concerning the decontamination tim e u sed in the SFP Scoping Study for a single, extremely severe SFP accident
), 55 has any bearing on the average TIMDEC values used in Entergy's SAMA analys i s for a broad range of reactor accidents and accident conditions.56 Moreover, there is no basis for New York's claim that the Board would likely have reached a different conclusion if it had considered the SFP Scoping Study's use of a one
-year decontamination time for a severe SFP accident. Indeed, New York's witness, Dr. Lemay, had presented extensive testimony regarding the longer decontamination times needed for a severe accident like Chernobyl and Fukushima
, 57 a nd argued for the use of longer time periods for TIMEDEC58 -- which the Board essentially found to be inapposite, in that his testimony pertain ed to "a single scenario of an extreme case" 59 whereas a SAMA analysis must utilize average 54 Order of April 1, 2014, at 3. 55 See Affidavit of S.
Tina Ghosh, attached to Staff Response to Motion ("Ghosh Affidavit"), at 2. As a result of modeling essentially a single accident and in light of the large source term and contaminated area, the Staff selected a TIMEDEC of 1 year, in contrast to the TIMDEC values used in a reactor SAMA analysis, which model a broad range of accidents including accidents with very small releases to the environment. Id.; see LBP-13-13, slip op. at 286
-87. 56 Indeed, the Staff's e
-mail message informing Mr. Sipos that the MACCS2 files would be made available through ADAMS
, explicitly cautioned New York regarding the important differences between a SAMA analysis and the newly
-modeled spent fuel pool accident.
The Staff stated:
The output files represent a site
-specific analysis of a highly unlikely spent fuel pool accident at a BWR plant with Mark I containment reference plant.
As with other BWR plants with Mark I containments, the spent fuel pool is located outside the containment structure and generally contains several times the source term found in an operating reactor.
Motion, Attach
. 5, at [unnumbered]
4; cf. id. at [unnumbered]
- 8. 57 See, e.g., LBP-13-13, slip op. at 277.
58 Pre-filed Written Testimony of Dr. François J Lemay Regarding Consolidated NYS C (NYS-12/12-A/12-B/12-C) (Ex. NYS00241) ("Lemay Testimony"), at 52
-55; Transcript at 2182, 2203.
59 LBP-13-13, slip op. at 285.
decontamination time s to reflect a broad range of modeled reactor accidents.
60 Undaunted, New York's motion to r e open/reconsider presented yet another postulated single accident, involving an extremely severe
, post-Fukushima SFP accident, in which RES utilized a longer decontamination time input in framing its Scoping Study. Significantly, New York's Motion showed no error in the Board's explanation in LBP 13 , that a SAMA analysis must utilize average decontamination times given the broad range of accidents that are modeled in a SAMA analysis. Moreover, New York failed to demonstrate that reopening the record to consider th e decontamination time input used in a n analysis of an extremely severe SFP accident would likely show that "the NRC Staff's acceptance of TIMDEC inputs of 60 days and 120 days for the Indian Point SAMA was not reasonable," or that the Board erred in finding "it is unlikely that the Board would reach a materially different result given the information provided by New York
."61 New York's Second Petition argues that the Board failed to acknowledge or analyze "the State's evidence regarding the TIMDEC/worker calculations
,"62 referring to the expansive arguments presented by New York's Declarants in support of the Motion. Those Declarant s' statements, however
- like New York's Second Petition
- disregard the established principle that SAMA analyses must address a broad range of reactor accidents with differing accident consequences, for which an average decontamination time value must be used.
Further, as New York has explicitly acknowledged, Entergy's SAMA analysis included very severe accidents, includin g "severe accidents with greater releases than Fukushima
";63 th ose low-probability high
-consequence events were appropriate ly weight ed in Entergy's SAMA analysis 60 Id., at 285, 286
-87. 61 Order of April 1, 2014, at
- 3. 62 Second Petition, at 17 (capitalization omitted).
63 First Petition at 2
- 4. based on their expected frequency.
64 Moreover, the State had presented evidence to the Board regarding the consequences of an extremely severe accident , 65 and it s Motion provided no reason to believe that the additional "evidence" contained in its Declarations, regarding the consequences of another extremely severe (inapposite SFP) accident, would have been likely to lead to a different result in the Board's resolution of this contention.
66 In its petition, New York claims that the Board failed to acknowledge or analyze "the State's evidence showing that the severe accident analyzed using a 365 day TIMDEC is within the range of accidents Entergy modeled for the Indian Point SAMA analysis."
67 New York points to the Affidavit of Staff witness Dr. S. Tina Ghosh , filed in response to New York's Motion, in which she stated that the SFP Scoping Study "focused on a single challenging accident scenario: a severe accident from an example spent
-fuel pool initiated by an extreme seismic event, with an estimated frequency of occurrence of 10
-7 per reactor year"
- 68 New York asserts that the Board did not address or "ignored" Dr. Lemay's further analysis (submitted with New York's Reply , in January 2014)
, 69 concerning the us e of a 365-day TIMDEC value for "the four 64 See Staff Answer to First Petition, at 19-20 , citing Staff's Testimony on NYS
-12C (Ex. NRC000041) at 89-90; Entergy's Testimony on NYS
-12C (Ex. ENT000450), at 12, 18; Tr. at 2139-40, 2146, 2153
-55. 65 See, e.g., Tr. at 2179
-80, 2183-86. 66 New York again argues that Entergy's use of the TIMDEC values results in unrealistic projections of the number of decontamination workers, and that use of a 365
-day TIMDEC value would result in "a lower, more reasonable number of workers." Second Petition at 18
-20; cf. Tr. at 2113
-14, 2192-93 (Dr. Lemay)
. This assertion was rebutted by Entergy's witnesses, who explained that the projected number of workers is not intended to model the events that would actually occur, but is instead an artifact, using average values for all modeled accidents, that is used as a means of calculating the decontamination costs that would be incurred to achieve the intended dose reduction factor ("DRF"). See Tr. at 204 8-50, 2189-91. New York has not shown that the Board erred in rejecting its claims regarding the number of workers modeled in Entergy's SAMA analysis.
67 Second Petition, at 20 (capitalization omitted).
68 Id. at 20-21, quoting Ghosh Affidavit at 2 ¶ 3.
69 "Declaration of Dr. François J. Lemay in Support of the State of New York's Motion to Reopen the Record and for Reconsideration" (Jan. 22, 2014) ("Lemay Declaration"), at 6
-9. 'most challenging accident scenarios' that Entergy chose to model for Indian Point."
70 New York's arguments miss the point: Dr. Ghosh's Affidavit did not say that challenging reactor accident scenarios should be modeled with longer decontamination times; rather, she explain ed that the SFP Scoping Study had sought to model a single , extremely severe SFP accident scenario, in which "the calculated sources terms and contaminated land areas were larger than those calculated in typical reactor accident probabilistic risk assessments (PRAs)."
71 SAMA analyses, in contrast, are intended to model a range of reactor accidents, with smaller source terms than the postulated SFP accident, and a broad range of accident consequences; accordingly, it is appropriate for SAMA analyses t o use a frequency-weighted average decontamination time input
.72 New York's claim that a different result would have been likely if the Board had considered Dr. Lemay's chart of four "challenging" reactor accidents fails to address the need to use average TIMDEC values , and should therefore be rejected.
Finally, the Staff notes that New York's Second Petition asserts that the Staff misstate d the facts in its testimony before the Board. New York alleges, without any citation to the record, that "[t]hroughout the course of this proceeding, NRC Staff and its Sandia National Laboratories witnesses maintained that the only TIMDEC values NRC ever used or approved were 60 days and 120 days (or an average of 90 days.)"
73 Further, New York alleges
- again without any citation to the record
- that "Staff told the Board that even pos t-Fukushima, NRC continued to use 60 and 120 days for TIMDEC. That wa s false."74 New York then asserts - again without 70 Second Petition at 20-21. 71 Ghosh Affidavit at 2 ¶ 3. 72 The Board correctly recognized that SAMA analyses utilize average decontamination time values. See LBP-13-13, slip op. at 28 4-87; NRC Staff Testimony on NYS-12C (Ex. NRC000041) at 89-90; Entergy's Testimony on NYS
-12C (Ex. ENT000450), at 12, 18; Tr. at 2139
-4 1, 2153-55, 2189. 73 Second Petition, at 1.
74 Id. at 3 (emphasis added).
any citation to the record
- that "[the] NRC Staff's use of a 365 day TIMDEC value in the Consequence Study contradicts the sworn testimony it provided in this proceeding and demonstrates that NRC Staff should have required that Entergy use a 365 day or greater TIMDEC value for the Indian Point SAMA analysis."
75 Significantly, New York does not point to any statement by the Staff's witnesses that it believes was "false" or was "contradict[ed]" by the information concerning the SFP accident Scoping Study attache d t o its Motion.76 In fact, the Staff's witnesses acknowledged that the MACCS2 code allows for decontamination times of up to one year
.77 Moreover, the testimony presented by Entergy's and the Staff's witnesses address ed the issues raised in Contention NYS-12C, concerning the reasonableness of Entergy's SAMA analysis
- in this context, the witnesses explained that the same TIMDEC inputs had been used consistently in other reactor SAMA analyses a nd in the NRC's State of the Art Reactor Consequence Accident ("SOARCA") analysis.78 As Entergy's witnesses explained, it is standard practice for SAMA analyses to use these same NUREG
-1150 input values.
79 The witnesses did not address the time input that might be used in a future study, nor did they discuss modeling the consequences of a single severe SFP accident. Moreover, the Board recognized that the statements by Entergy and the Staff "made before and during the hearing . . . refer to analyses of numerous failure scenarios performed for license renewal applications"
- such that Dr. Lemay's analysis of selected single 75 Id. at 25 (emphasis added); cf. id. at 2. 76 Second Petition at 2, 3, 25.
77 Tr. at 227
- 3. 78 See NRC Staff NYS
-12C/16B Testimony (Ex. NRC000041), at 89
-90; Tr. at 1951, 2044, 2158-61, 2274, 2341, 2372-74. 79 See LBP-13-13, slip op. at 289; Tr. at 1951.
accidents was of little relevance.
80 Further, the Board had excluded spent fuel pool accidents from this proceeding as out
-of-scope ,81 and it sustained the Staff's objections to efforts by New York to question the Staff
's witnesses on spent fuel pool accidents
.82 There is no basis for New York's claims that the Staff's testimony was somehow false or misleading
. In sum, New York's Motion failed to satisfy its burden of showing that a different result would have been likely if the Board had considered i t s new information when assessing Entergy's SAMA analysis.
83 Accordingly, the Board did not err in denying New York's motion to reopen.
III. New York Has Not Shown That the Board Erred in Denying It s Motion for Reconsideration As discussed supra at 8-10, a party seeking reconsideration of an Order or ruling must demonstrate "compelling circumstances, such as the existence of a clear and material error in a decision, which could not have been reasonably been anticipated, that renders the decision invalid."84 New York made no such showing in its Motion, asserting simply that it "has demonstrated 'compelling circumstances' supporting a motion for leave for reconsideration under 10 C.F.R.
§ 2.323(e)."85 The sole basis for its Motion was New York's assertion that the use of a longer TIMDEC value in a MACCS2 analysis of a single, extremely severe SFP accident in the Office of Nuclear Regulatory Research's SFP Scoping Study - which was 80 Order of April 1, 2014, at 3.
81 Indian Point
, LBP-08-13, 68 NRC at 163, 180-81. 82 Tr. at 2341.
83 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28. 68 NRC 658, 674 (2008)
- Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI
-0 5-12, 61 NRC 345, 350, 355 (200 5). 84 10 C.F.R. §2.323(e).
85 Motion at 6
-7. conducted, as New York acknowledges, after all hearings on this contention had concluded.
86 In LBP-13-13, the Board examined the methodology utilized in Entergy's SAMA analysis and determined that it was a reasonable and reliable method for producing results reflective of the entire spectrum of modeled accidents.
87 Significantly, New York has not show n any error by the Board in its consideration of the evidence of record in LBP-13-13, or any "compelling circumstances
" involving material errors of law or fact made by the Board in its decision.88 Absent any showing of a material error in the Board's decision , New York's motion for reconsideration was properly denied. New York's Second Petition
, seeking for review of the Board's Order denying its motion for reconsideration
, shoul d likewise be denied.
IV. New York Has Not Shown Any Legal or Prejudicial Procedural Error in The Board's Order Denying the Motion to Reopen and for Reconsideration As set forth in 10 C.F.R.
§ 2.341(b)(4)(ii) and (iv)
, the Commission may grant review of a Board decision, in its discretion, "giving due weight to the existence of a substantial question with respect to whether "[a] necessary legal conclusion is without governing precedent or is a departure from or contrary to established law," and whether "the conduct of the proceeding involved a prejudicial procedural error." New York's Second Petition claims that the Board's decision not "to order the reopening of the record constituted an error of law and a procedural error"89 - but it does not point to a n y legal conclusion in the Order which it contends is a departure from or contrary to established law, or any prejudicial procedural error in the Board's decision. Moreover, contrary to New York's unsupported claim s, the Board afforded New York 86 Second Petition at ix, 3, 24.
87 LBP-13-13, slip op. at 2 86-87; see NRC Staff NYS
-12C/16B Testimony (Ex. NRC000041) at 89-90. 88 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI 27, 64 NRC 399, 400
-01 (2006).
89 Second Petition, at 24.
a full opportunity to show that reopening the record or reconsideration was warranted, going so far as to afford New York the extraordinary opportunity to file a reply to the Staff's and Entergy's answers to its Motion, over those parties' strong objections.
90 New York's claims that the Board committed some unspecified legal or prejudicial procedural error should be rejected.
V. New York's Motion Was Untimely Pursuant to 10 C.F.R. § 2.326(a)(1), a motion to reopen "must be timely
" in order to be granted. Further, a s stated in 10 C.F.R. § 2.323(a)(2)
, "[a]ll motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises."
New York claims that its Motion was timely because it had received the native file formats for the SFP Scoping Study on November 26, 2013
, and those files , "upon expert review, demonstrate that NRC has abandoned its practice of only using 60 and 120 day TIMDEC values and used a 365 day TIMDEC value for its assessment of severe accident consequences in a spent fuel pool.
"91 New York then states, "[t]he day after the State received the native format MACCS2 input/output files showing the 365 day TIMDEC, the Board issued a Partial Initial Decision closing the record on NYS-12C." New York's claims do not establish that its Motion was timely
- and although the Board did not address the issue of timeliness, it could have denied the Motion on this ground, as well. In this regard, New York did not inform the Board (or the Commission) that it had information showing that the Staff had used a one
-year time input in the SFP Scoping Study approximately five months before it obtained the native format MACCS2 output files and then filed its Motion. Thus, the Draft version of the SFP Scoping Study , made available in June 2013
, described the 90 See Order (Granting New York's Motion) (Jan. 14, 2014) (unpublished); 10 C.F.R. § 2.323(c) ("The moving party has no right to reply, except as permitted by . . . the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.")
91 Second Petition, at 8; Motion at 5-6. modeling used in the study and stated: "Decontamination is modeled in a manner consistent with both NUREG
-1150 and NUREG
-1935. Two levels of decontamination (a decontamination factor of 3 and 15) are each assumed to take one year."92 New York had the Draft Scoping Study in hand at least as early as early July 2013 , and certainly knew of the Draft Study's use of a one-year decontamination time , given New York's submission of comments on the Draft Study on August 1, 2013 (including comments regarding the same portion of the Draft SFP Scoping Study that was addressed in its Motion)
,93 and its participation in two public meeting s on th e Draft Study in August and September
.94 New York thus had sufficient information to have filed its Motion long before it s expert received the MACCS2 native format files in November 2013
.95 Further, as noted in Mr. Sipos' Declaration (attached to New York's Motion), New York received a PDF version of the SFP Scoping Study's MACCS2 output files on October 23, 2013
- some 45 days before New York filed its Motion and 35 days before the Board issued its PID.96 Th ose PDF files contained the same information that is at the crux of New York's Motion (i.e., 92 See Motion, Attach
. 3, Consequence Study of a Beyond
-Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling Water Reactor, Draft Report (June 26, 2013) ("Draft SFP Scoping Study") (ADAMS Accession No. ML13133A132), at 160 (emphasis added). The same statement appeared in the Final SFP Scoping Study, issued in October 2013. See Motion, Attach
. 7 , at 160. 93 See Letter from John Sipos, New York Assistant Attorney General, to Cindy Bladey, Chief of Rules, Announcements, and Directives Branch, NRC (Aug. 1, 2013) ("Sipos Letter"), at 3 (filed as Attachment B to Staff Response to New York's Motion). In his letter, Mr. Sipos alleged, inter alia , that "the offsite consequence analysis in section 7 of the Draft study
[which had discussed the one
-year TIMEDEC analysis
], is flawed. In particular, the Draft Study fails to use realistic input values for its MACCS2 analysis." Sipos Letter at 3. See also Sipos Declaration at 1
-2, ¶¶ 1-2. 94 See Motion, Attachment 1, "Declaration of Assistant Attorney General John Sipos in Support of [New York's Motion]" ("Sipos Declaration") at 3 (¶ 2); Motion, Attachment 5, E-mail from J. Sipos, New York Assistant Attorney General, to K. Witt, Project Manager, Japan Lessons Learned Project Directorate, NRC RES, at 1 (reflecting the State's participation in an NRC public meeting on August 22, 2013)
. 95 Sipos Declaration at 1
-2, ¶¶ 1-2. 96 Sipos Declaration, at 1
-2. The only real difference between the files New York received on November 26, 2013, and the files it received on October 23, 2013, was type of program necessary to display the files. The PDF files could be displayed by the widely accessible Adobe Acrobat or other freely available reader, while a text editor was needed to display the native format files.
TIMEDEC=3.15x10 7s), and were readily accessible by New York 45 days before New York filed its Motion.97 Indeed, one of New York's two declarants, Mr. Timothy Mahilrajan
, indicated that his Declaration was based in
-part on an examination of October 23, 2013 PDF files.98 Moreover, Dr. Lemay's analysis and chart calculating the number of workers required for decontamination following a severe accident (Second Petition at 19), was first presented by New York in Dr. Lemay's Declaration of January 22, 2014, filed in support of New York's Reply to the Staff's and Entergy's answers to i t s Motion.99 New York did not explain why it could not have presented that information, or other new information contained in Dr. Lemay's Declaration of January 22, 2014, sooner or even at the hearing
- particularly since Dr. Lemay presented other testimony at the hearing on the number of workers required for decontamination efforts.
100 In sum, New York should have filed its Motion in July 2013
, ten days after it first learn ed of the SFP Scoping Study's use of a one-year time period
- or even by November 2, 2013, ten days after it receiv ed the MACCS2 PDF files. Further, New York should have presented Dr. Lemay's additional analysis sooner, rather than waiting to present it until after the oth e r parties had responded to its Motion. Had it done so, the Board could have consider ed th at information prior to issuing its PID. New York's delay presenting this information rendered its Motion untimely, and would have justified denial of the Motion for that reason alo ne.101 97 Prior to rounding, one year = 3.1536 x10 7 seconds. Compare SFPS MACCS2 output
, LNT 3.4 LowDensity (TIMDEC = 3.15E+07)
(Attach. A to Staff Response to Motion
), with Motion, Attach
. 6, at 41. 98 Mahilrajan Declaration at 2, ¶ 6.
99 C om p a re Second Petition at 19 (Chart, "Number of workers required for decontamination within 50-miles"), with Lemay Declaration (Jan. 22, 2014), at 4 (Chart, "Number of workers required for decontamination within 50
-miles"). 100 See, e.g., "Pre-filed Written Rebuttal Testimony of Dr. François J. Lemay Regarding Consolidated Contention NYS
-12C [ ]" (Ex. NYS000240), at 22-23; Tr. at 211 2-14, 2192-93. 101 See generally, 10 C.F.R. § 2.323(a)(2) ("All motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.").
VI. New York's Arguments Regarding the Staff's Disclosures Should Be Rejected In its Second Petition, New York again asserts that the Staff failed to satisfy its disclosure obligations, allegedly resulting in prejudice to the State.
102 In this regard, New York claims that the Staff was under an obligation to disclose to New York (and the Board) the fact that RES had conducted its SFP Scoping Study using a one
-year TIMDEC value, "after [the] NRC Staff and Sandia witnesses finished testifying" on Contention NYS-12C.103 These assertions should be rejected.
New York incorrectly characterizes the Staff's discovery obligations, as set forth in 10 C.F.R. §§ 2.336(b) and 2.1203(b). In accordance with the regulations governing the Staff's disclosure obligations in this Subpart L proceeding, the Sta ff is required to disclose "[a]ll documents (including documents that provide support for, or opposition to, the application or proposed action) supporting the NRC staff's review of the application or proposed action that is the subject of the proceeding[.]
"104 New York's claims ignore the Board's prior ruling on the scope of the Staff's discovery obligations in this proceeding
- in which the Board explained that the Staff's disclosure obligations do not include "[g]enerically applicable documents or documents that the NRC Staff simply did not use in its review
" of the Indian Point LRA
.105 In sum, the Staff was not obliged to disclose the SFP Scoping Study to New York , as it was not require d to disclose documents that were developed or utilized in other NRC regulatory activities, if not utilized in the Staff's review of the LRA. Moreover, contrary to New York's 102 Second Petition at 24; see also First Petition at 41, 43. 103 Id. 104 The current rule adds a limitation, requiring the Staff to disclose the same category of documents, but only if they "are relevant to the admitted contentions." Compare 10 C.F.R. § 2.336(b)(3)
(2014) with 10 C.F.R. § 2.336(b)(3) (2012).
Se e Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562 (Aug. 3, 2012).
105 Order (Granting in Part and Denying in Part State of New York and Riverkeeper's Motion to Compel) (March 16, 2012) (unpublished), at 8
-9. assertions, the Staff disclose d the fact that RES had used a one
-year decontamination time in its SFP Scoping Stu dy long before New York filed its Motion, having stated th is fact in both the Draft and Final versions of the SFP Scoping Study a nd in the PDF files that it provided to New York.106 Further, even though the Staff was no t oblig ed to provide the MACCS2 code runs for the SFP Scoping Study to New York, it provide d th at information to the State
, in both PDF and a native file format. New York
's assertions that the Staff failed to disclose the information
, or that it was somehow prejudiced by the Staff's actions are simply without merit
. CONCLUSION The Commission's regulations impose a heavy burden on a litigant seeking to re-open a closed record
.107 New York's motion to reopen did not establish that a different result would have been likely if i ts new information had been considered. Further, New York did not demonstrate any "compelling circumstances" that would render the Board's PID invalid, so as to warrant reconsideration
. Likewise, New York's Second Petition does not show any error in the Board's decision to deny its Motion. New York's Second Petition should
, therefore , be denied.
Signed Electronically by Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop
- O-15D21 Washington, DC 20 555 Telephone: (301) 415
-1 53 3 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 23 rd day of May 201 4 106 See discussion supra, at 21-22. 107 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 3, 75 NRC 132, 139 (2012).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) ) ENTERGY NUCLEAR OPERATIONS, INC.
) Docket No. 50
-247-LR/50-286-LR ) (Indian Point Nuclear Generating
) Units 2 and 3)
) CERTIFICATE OF SERVICE Pursuant to 10 C.F.R
. § 2.305, I hereby certify that copies of the foregoing "
NRC STAFF'S ANSWER TO THE STATE OF NEW YORK'S PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF APRIL 1, 2014
,'" dated May 23 , 2014, have been served upon the Electronic Information Exchange, the NRC's E
-Filing System, in the above
-captioned proceeding, this 2 3 rd day of May, 2014.
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop
- O-15D21 Washington, DC 20555 Telephone: (301) 415
-1 533 E-mail: Sherwin.Turk@nrc.gov
Date of Signature: May 23, 2014