ML14055A534

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Applicant'S Unopposed Motion to Hold Appellate Proceedings on Contention NYS-12C in Abeyance and Parties' Joint Motion Seeking Time and Page Limit Enlargements for Filings Related to Contentions NYS-8, NYS-35/36, and CW-EC-3A
ML14055A534
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 02/24/2014
From: Bessette P M
Entergy Nuclear Operations, Entergy Services, Hudson River Sloop Clearwater, Morgan, Morgan, Lewis & Bockius, LLP, NRC/OGC, Springer & Steinberg P C, State of NY, Office of the Attorney General
To:
NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25613
Download: ML14055A534 (8)


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) )

) February 24, 2014 APPLICANT'S UNOPPOSED MOTION TO HOLD APPELLATE PROCEEDINGS ON CON TENTION NYS-12C IN ABEYANCE AND PARTIES' JOINT MOTION SEEKING TI ME AND PAGE LIMIT ENLARGEMENTS FOR FILINGS RELATED TO CONTENTIONS NYS-8, NYS-35/36, AND CW-EC-3A Pursuant to 10 C.F.R. §§ 2.323, 2.341(b) and 2.346, the parties to the In dian Point license renewal proceeding hereby file the following consolidated motions. The first motion, which is filed by Entergy Nuclear Operations, Inc. ("En tergy") and is unopposed by the other parties, requests that the Commission hold all appellate proceedings with respect to Contention NYS-12C in abeyance pending the Atomic Safety and Licensing Board's ("Boar d") resolution of New York State's (the "State") December 7, 2013 motion for reconsideration of the Board's merits ruling on that contention.

1 The second motion, which is filed jointly by Entergy, the State, the NRC Staff, and Hudson River Sloop Clearwater, Inc. ("Clearwater") (collectively, "the parties") seeks enlargements of the page limitations and the times for filing answers and replies related to the petitions for review that were filed by th e parties on February 14, 2014, with respect to contentions other than NYS-12C.

2 As set forth below, good cause exists for the procedural and schedule modifications requested herein.

1 See State of New York Motion to Reopen the Record and For Reconsideration on Contention NYS-12C (Dec. 7, 2013) ("NYS Motion for Reconsideration") available at ADAMS Accession No. ML13341A002 (package).

2 Counsel for the other parties has authorized counsel for Entergy to file the joint motion on their behalf. Although Riverkeeper, Inc. did not file any petitions for review, counsel for Riverkeeper indicated that Riverkeeper does not oppose the procedural requests made in the instant motions.

2I. Entergy's Unopposed Motion to Hold the Appellate Proceedings on Contention NYS-12C in Abeyance Pending Issuance of the Board's Reconsideration Ruling Entergy respectfully requests that the Comm ission hold the State's pe tition for review of Contention NYS-12C in abeyance, and defer the time for other parties to file answers thereto, until the Board has ruled on the State's pending motion for reconsideration. Good cause exists for this request for the reasons stated below. A. Background On November 27, 2013, the Board issued a Part ial Initial Decision (L BP-13-13), in which it resolved the nine "Track 1" safety and environmental contentions on the merits.

3 In that decision, the Board resolved Contention NYS-12C in favor of Entergy and the NRC Staff.

4 The Board concluded that Entergy's severe accident mitigation alternatives ("SAMA") analysis is sufficiently site-specific, and that the NRC Staff had complied w ith NEPA and 10 C.F.R. Part 51 in approving certain contested i nputs to Entergy's SAMA analysis.

5 On December 7, 2013, the State moved the Board to reopen the hearing record on Contention NYS-12C, consider new information presented by the State re lated to one of the input parameters challenged in NYS-12C, and reconsider its merits decision on that contention in light of that new information.

6 Entergy and the NRC Staff submitted answers opposing the State's motion on December 23, 2013.

7 With leave of the Board, 8 the State filed a consolidated

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

4 See id. at 260-93.

5 See id. at 293. 6 See generally NYS Motion for Reconsideration.

7 See Entergy's Answer Opposing State of New York Motion to Reopen the Record and For Reconsideration of Contention NYS-12C (Dec. 23, 2013), available at ADAMS Accession No. ML13357A254; NRC Staff's Response to State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec. 23, 2013), available at ADAMS Accession No. ML13357A775 (package).

8 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Granting New York's Motion) (Jan. 14, 2014) (unpublished).

3 reply to those answers on January 22, 2014.

9 The State's motion is pending before the Board.

On February 14, 2014, the State filed a petition for review of LBP-13-13, in which it seeks Commission review of the Board' s merits decision on NYS-12C.

10 B. Basis for Entergy's Unopposed Motion As explained above, both a motion for rec onsideration and a petition for review concerning Contention NYS-12C are pending concurrently before the Board and the Commission, respectively. 10 C.F.R. § 2.341(b)(6) st ates: "A petition for review will not be granted as to issues raised be fore the presiding officer on a pending motion for reconsideration." Thus, the Commission's regulations and case law generally defer br iefing and consideration of petitions for review until after a Licensing Board has issued a decision on a pending motion for reconsideration.

11 Accordingly, Entergy respectfully requests that the Commission hold the State's petition for review of C ontention NYS-12C (including the other parties' answers thereto) in abeyance until the Board rules on the State's pending motion for reconsideration. Until the Board rules on the pending reconsideration motion, it would be an injudicious use of the parties' and the Commission's resources to prematurely engage in appellate proceedings on Contention NYS-12C.12 In accordance with 10 C.F.R. § 2.323(b), Entergy counsel consulted with the other

9 See State of New York's Reply in Support of Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014), available at ADAMS Accession No. ML14022A272 (package).

10 See 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) ("NYS Petition for Review"), available at ADAMS Accession No. ML14045A412 (package).

11 See , e.g , NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 306 n.23 (2012) ("Under NRC practice, the filing of this motion [for Board reconsideration] tolled our consideration of the two appeals") (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-1, 53 NRC 1, 3 (2001) and Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-659, 14 NRC 983, 985 (1981); Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Order of the Secretary at 1 (Jan. 16, 2009) (unpublished) (citing Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-933, 31 NRC 491, 498 (1990); 10 C.F.R. § 2.346(b)(6)) (placing an NRC Staff petition for review in abeyance after the intervenor filed a motion for reconsideration of the same Board decision appealed by the Staff), available at ADAMS Accession No. ML090160426.

12 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-13-03, 77 NRC 51, 54 (2013) (citations omitted) (noting the Commission's "strong disfavor of piecemeal review of licensing board rulings during ongoing proceedings."). The Commission has emphasized its disfavor of "piecemeal litigation" in this 4parties regarding this matter. The NRC Staff stat ed that it supports Entergy's Motion. The other parties agreed not to oppose Entergy's Motion on the condition that Entergy supports (which it does) the filing time and page limit enlargements requested in Section II below.

Although the State agreed not to oppose Entergy's motion to hold briefing on NYS-12C in abeyance based on 10 C.F.R. § 2.341(b)(6), it does not necessarily agree with the arguments or characterization of case law contained in the motion. The State further notes that its motion for reconsideration and to reopen the record is directed to one issue raised in NYS-12C-the decontamination time input value used by Entergy and approved by NRC Staff. II. Joint Motion of the Parties Seeking Enlargements of Time and Page Limits Pursuant to 10 C.F.R. § 2.323, all parties hereby request that the Commission grant an enlargement of the page limitation and time for answ ers and replies to petitions for review of the Board's rulings on all conten tions other than NYS-12C, as filed on February 14, 2014. A. Background On February 14, 2014, the parties filed petitions for review of LBP-13-13 and several earlier Board rulings. In accordance with 10 C.F.R. § 2.341(b)(3), each answer supporting or opposing Commission review must be filed within 25 days after a petition for review and is limited to 25 pages. Also, under 10 C.F.R. § 2.341(b)(3), each reply brief is due within 10 days of the answer and is limited to 5 pages. B. Basis for the Parties' Joint Motion Earlier in this proceeding, the Commission approved an enlargement of time and page limits for the petitions for review. On Februa ry 14, 2014, Entergy, the NRC Staff, the State, and Clearwater filed petitions for review of LBP-13-13; those petitions were lengthy and complex. The NRC Staff, Entergy, and the State each file d 60-page petitions, a nd Clearwater filed a 14-

proceeding. See , e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-11-14, 74 NRC 801, 811 (2011).

5page petition. Given the breadth of issues implicated in the parties' filings on NYS-8, CW-EC-3A, and NYS-35/36, the parties respectfully submit that good cause exists for the requested enlargements. Specifically, the parties have consulted pursuant to 10 C.F.R. § 2.323(b), and submit the following jointly agreed upon requests for extensions of time and pagination for Commission approval:

  • The State would submit a combined answer to the NRC Staff's and Entergy's petitions for review concerning contentions NYS-8 and NYS-35/36 on March 25, 2014, not to exceed 65 pages.

13

  • Clearwater would submit a combined answer to the NRC Staff's and Entergy's petitions for review concerning contention CW-EC-3A on March 25, 2014, not to exceed 50 pages.
  • Entergy and the NRC Staff would submit their answers to Clearwater's petition for review concerning contention CW-EC-3A on March 25, 2014; each of those answers

would not exceed 25 pages. Any replies to such answers would be filed on April 9, 2014, not to exceed 5 pages.

  • The NRC Staff and Entergy would submit separate replies to the aforementioned State and Clearwater answers (i.e., Entergy and the NRC Staff would each file two replies) on April 9, 2014, not to exceed 10 pages each.

14 III. Conclusion Entergy requests that the Commission place the State's February 14, 2014 petition for review of the Board's merits ruling on Cont ention NYS-12C in abeyance pending the Board's resolution of the State's motion for reconsideration of that same ruling (and further direction from the Commission, as appropriate). Addition ally, the parties join tly request that the Commission grant the time and page limit enlargemen ts proposed above. For the reasons stated

13 Entergy and the NRC Staff reserve the right under 10 CFR § 2.341(b)(3) to file answers to each other respective petitions for review, as well as the right to seek associated time or page limit enlargements, if necessary, via a separate motion.

14 Given Entergy's unopposed request to hold the appellate proceedings on NYS-12C in abeyance, the parties are not seeking any further schedule or page limit modifications in connection with future NYS-12C filings at this time, but reserve the right to do so at an appropriate time, if necessary.

6 above, good cause exists for the proposed schedule and procedural modifications, which the Secretary of the Commission may approve pursu ant to her authority under 10 C.F.R. § 2.346.

Respectfully submitted, Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq. MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5796 E-mail: pbessette@morganlewis.com

7Executed in accord with 10 C.F.R. § 2.304(d)

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

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

Washington, D.C. 20004

Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com

William B. Glew, Jr., Esq.

William C. Dennis, Esq.

Entergy Services, Inc.

440 Hamilton Avenue

White Plains, NY 10601

Phone: (914) 272-3202 E-mail: wglew@entergy.com E-mail: wdennis@entergy.com

Counsel for Entergy Nuclear Operations, Inc.

John J. Sipos, Esq. Office of the Attorney General

of the State of New York The Capitol, State Street

Albany, New York 12224 E-mail: john.sipos@ag.ny.gov

Janice A. Dean, Esq.

Kathryn DeLuca, Esq.

Office of the Attorney General

of the State of New York

120 Broadway, 26th Floor

New York, New York 10271 E-mail: janice.dean@ag.ny.gov E-mail: kathryn.liberatore@ag.ny.gov

Counsel for the State of New York Andrew B. Reid, Esq.

Springer & Steinberg, P.C.

1600 Broadway, Suite 1200

Denver, Colorado 80202 E-mail: areid@springersteinberg.com

Counsel for Hudson River Sloop Clearwater Sherwin E. Turk, Esq.

U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop O-15D21

Washington, DC 20555-0001 E-mail: sherwin.turk@nrc.gov Counsel for the NRC Staff Dated at Washington, DC

this 24th day of February 2014 DB1/ 77962909 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) )

) February 24, 2014 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of the "Applicant's Unopposed Motion to Hold the Appe llate Proceedings on Contention NYS-12C in Abeyance and Parties' Joint Motion Seeking Time and Page Limit Enlargements for Filings Related to Contentions NYS-8, NYS-35/36, and CW-EC-3A" 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.