ML14314A350
| ML14314A350 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/10/2014 |
| From: | Kennedy M, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | Hudson River Sloop Clearwater, Riverkeeper, State of NY |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 26903 | |
| Download: ML14314A350 (10) | |
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 Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) November 10, 2014 ORDER (Dismissing Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4)
I. Background Hudson River Sloop Clearwater, New York State, and Riverkeeper, Inc. moved for leave to file two new contentions challenging the on-site storage of nuclear waste at Indian Point.1 In accordance with the Commissions direction in CLI-12-16,2 the Board ordered the motions held in abeyance.3 Based on the Commissions action discussed below, we now address these contentions.
In view of its adoption of a revised rule codifying the NRCs generic determinations regarding the pertinent environmental impacts associated with continued storage of spent nuclear fuel, the Commission issued a memorandum and order (CLI-14-08) directing that, to the extent that Contentions CW-SC-4 and NYS-39/RK-EC-9/CW-EC-10 raise issues resolved by the Continued Storage Rule 1
See State Of New York, Riverkeeper, Inc., And Hudson River Sloop Clearwaters Joint Contention NYS-39/RK-EC-9/CW-EC-10 Concerning The On-Site Storage Of Nuclear Waste At Indian Point (July 8, 2012) and Hudson River Sloop Clearwater, Inc.s Motion For Leave To Add A New Contention Based Upon New Information And Petition To Add New Contention (July 9, 2012). [hereinafter CW-SC-4].
2 CLI-12-16, 76 NRC 63, 68-69 (2012).
3 See Licensing Board Order (Holding Waste Confidence Contentions in Abeyance) (Aug. 9, 2012)
(unpublished).
(CSR), the Indian Point Board dismiss them and, if issues raised in those contentions remain unresolved by the Commissions actions, the Board was directed to rule on the admissibility of those challenges.4 Subsequently, the Board directed the parties to submit briefs expressing their views regarding the extent to which Contentions CW-SC-4 and NYS-39/RK-EC-9/CW-EC-10 raise issues not resolved by the CSR.5 Meanwhile, following its receipt of a number of substantively identical petitions seeking the suspension of licensing decisions and presenting motions requesting the admission of new contentions relating to disposal of spent nuclear fuel, the Commission issued a memorandum and order in which it exercised its inherent supervisory authority over agency adjudications to review the petitions and motions itself.6 Accordingly, no challenge related to spent fuel disposal is before this board.
II. NYS-39/RK-EC-9/CW-EC-10 After reviewing the parties briefs, the Board has concluded that Contention NYS-39/RK-EC-9/CW-EC-10 was resolved in its entirety by the final CSR and associated generic environmental impact statement (GEIS).7 In their brief responding to the Boards September 17th Order, the Intervenors stated that the only basis for their contention was that the [Generic Environmental Impact Statement did not address site-specific environmental impacts from, and alternatives to, the continued storage of spent nuclear fuel at the Indian Point site.8 However, the Commission expressly stated, in the GEIS, that it considered addressing the environmental impacts of continued storage in site-specific reviews, 4
CLI-14-08, 80 NRC _, _, (slip op. at 10) (Aug. 26, 2014).
5 Order (Requesting Briefs on NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4) at 2 (Sept. 17, 2014).
6 CLI-14-09, 80 NRC _, _. (slip op. at 2) (Oct. 7, 2014).
7 See 79 Fed. Reg. 56238 (Sept. 19, 2014) [hereinafter CSR]. Staff RequirementsSECY-14-0072 Final Rule, Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (Aug. 26, 2014)
(ML14237A092); see Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20),
Commission Paper SECY-14-0072 (July 21, 2014) (attaching the GEIS and the draft Final Rule, Continued Storage of Spent Nuclear Fuel). The Commission paper and its attachments may be found at ML14177A482 (package).
8 State of New York, Riverkeeper, and Clearwater Brief Concerning Contention NYS-39/RK-EC-9/CW-EC-10 at 7 (Oct. 1, 2014).
but concluded that the impacts of continued storage will not vary significantly across sites.9 With the Commission having determined that site-specific environmental aspects of continued storage should not be considered in individual licensing proceedings, the Board dismisses Contention NYS-39/RK-EC-9/CW-EC-10.
III. CW-SC-4 The Board has determined that Clearwater Contention CW-SC-4 raises two distinct issues: (1) the adequacy of Entergys aging management program (AMP) for spent fuel pools at Indian Point during the period of extended operations (PEO), and (2) the safety of long-term storage of spent fuel under the Atomic Energy Act.10 A. Part 1 - Entergys AMP As for the first part of the contention, the Board finds that it is not admissible. Specifically, as discussed below, CW-SC-4 does not meet the standards for contention admissibility because it is not timely, is not adequately supported by alleged facts or expert opinion, and does not raise a genuine dispute on a material issue with the application.
- i. Timeliness In judging the timeliness of CW-SC-4, the Board looks to the first time this challenge was raised by Clearwater. 11 In this case, CW-SC-1 is substantially the same as the current contention and so, in conducting its timeliness analysis, the Board looks to 2009, when Clearwater first brought forward this issue in CW-SC-1.12 Although at that time Clearwater stated that CW-SC-1 was based on new information regarding the Waste Confidence Decision (WCD),13 there was no new information available 9
CLI-14-08, 80 NRC _, _, (slip op. at 9) (Aug. 26, 2014).
10 Hudson River Sloop Clearwater, Inc.s Motion for Leave to Add a New Contention Based Upon New Information and Petition to Add New Contention at 7 (July 9, 2012).
11 10 C.F.R. § 2.309(f)(2)(i)-(iii).
12 See Hudson River Sloop Clearwater, Inc.s Motion for Leave to Add New Contentions Based Upon New Information (Oct. 26, 2009).
13 See 49 Fed. Reg. 34658, 34688 (Aug. 31, 1984). Modification of the WCD in subsequent years has updated the anticipated range of dates for the availability of a geologic repository for waste disposal
in 2009 regarding the Indian Point AMP upon which to base this contention. The lack of new information also pertains to the filing of CW-SC-4 in 2012. Absent a showing of new information, this portion of CW-SC-4 was not timely filed.
ii. Failure to Raise a Material Issue of Fact Under 10 CFR § 2.309(f)(1)(v) and (vi), Intervenors must provide a concise statement of the alleged facts or expert opinions which support their position and identify a genuine dispute on a material issue of fact or law. In its motion relating to the Applicants AMP, Clearwater listed several lengthy reports to show that degradation of spent fuel pools has occurred in nuclear plants, but did not explain how these documents provide support for the proposition that Entergys AMP is deficient.14 Moreover, Dr. Gundersons declaration, attached to Clearwaters Brief Regarding CW-SC-4, does not provide any specific information about the Indian Point facility that could tend to show the AMP is deficient.15 Thus, the Board finds that the proposed portion of the contention relating to Entergys AMP does not provide a concise statement of alleged facts or expert opinions to support their position, and does not provide any information to demonstrate a material dispute with Entergy on Indian Point.16 The portion of contention CW-SC-4 challenging Entergys AMP is therefore inadmissible.
B. Part 2 - Safety of Long-Term Spent Fuel Storage Clearwater alleges that, as a result of the Courts vacating the WCD Update and the Temporary Storage Rule (TSR) in New York v. NRC,17 and the Commission decision not to address safety findings and the estimated length of time that spent fuel can be stored safely and without environmental impacts prior to the completion of the disposal facility.
14 See, e.g., Hudson River Sloop Clearwater, Inc.s Motion for Leave to Add A New Contention Based Upon New Information and Petition to Add New Contention at 12-14 (Jul. 9, 2012).
15 See Expert Witness Declaration of Arnold Gundersen Regarding Aging Management of Nuclear Fuel Racks (Feb. 25, 2011) (ADAMS Accession No. ML14274A545).
16 10 C.F.R. § 2.309(f)(1)(v), (vi).
17 Hudson River Sloop Clearwater, Inc.s Brief Regarding Contention SC-4 at 2 (Oct. 1, 2014)
[hereinafter Clearwater Brief]; see New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).
in its Continued Storage Rule,18 the Staffs SER lacks sufficient safety analysis to provide a reasonable assurance of safety for the long-term fuel storage at IPEC.19 In 1984, the Commissions WCD presented safety and National Environmental Policy Act (NEPA) findings20 relating to the storage and disposal of spent nuclear fuel.21 In its ruling on New York v. NRC, the Court vacated the Commissions safety conclusions and its assessment of environmental impacts in its WCD Update and TSR under NEPA and remanded the matter to the Commission to assess whether spent fuel can be indefinitely stored safely on-site.22 Recently, the Commission codified its changes to the environmental impacts from indefinite spent fuel storage in its CSR and the associated GEIS.23 In this rule making, the Commission stated that the NRC is not making a safety determination under the AEA to allow for the continued storage of spent fuel24 because, inter alia, these safety issues are addressed in the specific licenses for facilities.25 Therefore, the current status is as follows: the AEA safety findings and analysis of environmental impacts under NEPA originally addressed in the WCD Update and TSR were vacated by the Court of Appeals in New York v. NRC. Subsequently, the NEPA impacts were evaluated in the Commissions CSR, the safety of spent fuel storage during the PEO is addressed by the appropriate 18 Clearwater Brief at 15; see 79 Fed. Reg. 56238, 56252 (Sept. 19, 2014) [hereinafter Continued Storage Rule].
19 Clearwater Brief at 4.
20 The Board notes that there are two distinct findings in the WCD, with the safety finding reaching a definitive conclusion on public health and safety from radiological exposure and the NEPA procedural finding defining the effects of environmental impacts to aid decision makers in their licensing actions. 49 Fed. Reg. at 34658.
21 See 49 Fed. Reg. at 34688.
22 New York v. NRC, 681 F.3d at 473, 483.
23 Continued Storage Rule at 56238-56263.
24 Id. at 56254-55.
25 Id. at 56255.
AMP,26 and a resolution of radiological safety of geologic disposal will result from the on-going Commission review of recently filed contentions.27 Accordingly, what remains of CW-SC-4 is a safety challenge addressing the long-term or indefinite storage of spent fuel. In resolving this challenge, we must first determine whether this issue falls within the bounds of a license renewal proceeding. With regard to this question, we turn to 10 C.F.R. § 54.21(a)(3) which describes specific requirements for the technical information to be provided in a renewal application. This section requires that for each structure and component within the scope of this section, the applicant must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the [Current Licensing Basis] for the period of extended operation.28 As this applies to the second part of CW-SC-4, the Board finds that license renewal is limited to aging management during the PEO, and that the aging management of spent fuel pools through the PEO has been addressed by the Applicant. What remains is the safety of storage of spent fuel after the PEO, but this issue is not within the scope of license renewal proceedings. Accordingly, we find that CW-SC-4 is not admissible.
C. Conclusion In summary, the Board finds that NYS-39/RK-EC-9/CW-EC-10 has not raised an issue left unresolved by the Commission in assessing continued storage of spent nuclear fuel and, as such, it is dismissed. We also find that the portion of CW-SC-4 challenging the adequacy of the AMP for the PEO is inadmissible for being untimely, for failing to provide a concise statement of alleged facts or expert opinions to support their position, and for failing to articulate the material dispute upon which the contention is based. Finally, we conclude that the storage of spent fuel after the expiration of the period 26 Supra note 25.
27 CLI-14-09, 80 NRC _, _. (slip op at 2) (Oct 7, 2014).
28 10 C.F.R. § 54.21(a)(3).
of extended operation is outside the scope of license renewal and, accordingly, is not admissible in this proceeding.29 Contention CW-SC-4 is therefore dismissed.30 It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE
/RA/
Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE
/RA/
Dr. Michael F. Kennedy ADMINISTRATIVE JUDGE Rockville, Maryland November 10, 2014 29 The Board notes that the Commission finds reasonable assurance that spent fuel can be stored safely and without significant environmental impacts after license expiration and that 10 C.F.R. 50.54(bb) requires the licensee to submit to the Commission a program by which they will manage spent fuel after the PEO and prior to DOE taking possession.
30 Although a safety evaluation for long-term spent-fuel storage is outside the scope of this license renewal proceeding, the Commission may wish to clarify how the safety of such storage after the proposed PEO is to be effected and licensed when it rules on the pending contentions dealing with the safety of spent-fuel disposal.
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 (Dismissing Contentions NYS-39/ RK-EC-9/ CW-EC-10 and CW-SC-4) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.
Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.
Mail Stop O-7H4M David E. Roth, Esq.
Washington, DC 20555-0001 Sherwin E. Turk, Esq.
ocaamail@nrc.gov Brian Harris, Esq.
Mary B. Spencer, Esq.
U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.
Office of the Secretary of the Commission Christina England, Esq.
Mail Stop O-16C1 Catherine E. Kanatas, Esq.
Washington, DC 20555-0001 Joseph Lindell, Esq.
hearingdocket@nrc.gov John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel Atomic Safety and Licensing Board Panel Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 sherwin.turk@nrc.gov; edward.williamson@nrc.gov Lawrence G. McDade, Chair beth.mizuno@nrc.gov; brian.harris.@nrc.gov Administrative Judge david.roth@nrc.gov; mary.spencer@nrc.gov lawrence.mcdade@nrc.gov anita.ghosh@nrc.gov; christina.england@nrc.gov; Richard E. Wardwell catherine.kanatas@nrc.gov; Administrative Judge joseph.lindell@nrc.gov; richard.wardwell@nrc.gov john.tibbetts@nrc.gov Michael F. Kennedy OGC Mail Center Administrative Judge OGCMailCenter@nrc.gov michael.kennedy@nrc.gov William C. Dennis, Esq.
Carter Thurman, Law Clerk Assistant General Counsel carter.thurman@nrc.gov Entergy Nuclear Operations, Inc.
440 Hamilton Avenue Kathleen E. Schroeder, Law Clerk White Plains, NY 10601 Kathleen.Schroeder@nrc.gov 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 (Dismissing Contentions NYS-39/ RK-EC-9/ CW-EC-10 and CW-SC-4)
Elise N. Zoli, Esq. Phillip Musegaas, Esq.
Goodwin Proctor, LLP Deborah Brancato, Esq.
Exchange Place, 53 State Street Ramona Cearley, Secretary Boston, MA 02109 Riverkeeper, Inc.
ezoli@goodwinprocter.com 20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org; dbrancato@riverkeeper.org Daniel Riesel, Esq. rcearley@riverkeeper.org Victoria Shiah Treanor, Esq.
Adam Stolorow, Esq.
Jwala Gandhi, Paralegal Melissa-Jean Rotini, Esq.
Natoya Duncan, Paralegal Assistant County Attorney Counsel for Town of Cortlandt Office of Robert F. Meehan, Sive, Paget & Riesel, P.C. Westchester County Attorney 460 Park Avenue 148 Martine Avenue, 6th Floor New York, NY 10022 White Plains, NY 10601 driesel@sprlaw.com; vtreanor@sprlaw.com mjr1@westchestergov.com astolorow@sprlaw.com; jgandhi@sprlaw.com; nduncan@sprlaw.com Bobby Burchfield, Esq.
Matthew Leland, Esq.
Kathryn M. Sutton, Esq. Emre Ilter, Esq.
Paul M. Bessette, Esq. McDermott, Will and Emery LLP Martin J. ONeill, Esq. 500 North Capitol Street NW Raphael Kuyler, Esq. Washington, DC 20001 Brooke McGlinn, Esq. bburchfield@mwe.com Grant Eskelsen, Esq. mleland@mwe.com Ryan Lighty, Esq. eilter@mwe.com Lesa G. Williams-Richardson, Legal Secretary Doris Calhoun, Legal Secretary Matthew W. Swinehart, Esq.
Mary Freeze, Legal Secretary Covington & Burling LLP Morgan, Lewis & Bockius, LLP 1201 Pennsylvania Avenue, NW 1111 Pennsylvania Avenue, NW Washington, DC 20004 Washington, DC 20004 mswinehart@cov.com ksutton@morganlewis.com martin.oneill@morganlewis.com Edward F. McTiernan, Esq.
rkuyler@morganlewis.com; New York State Department lescher@morganlewis.com of Environmental Conservation bmcglinn@morganlewis.com Office of General Counsel sraimo@morganlewis.com 625 Broadway geskelsen@morganlewis.com 14th Floor rlighty@morganlewis.com Albany, NY 12233-1500 lrichardson@morganlewis.com efmctier@gw.dec.state.ny.us dcalhoun@morganlewis.com mfreeze@morganlewis.com 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Dismissing Contentions NYS-39/ RK-EC-9/ CW-EC-10 and CW-SC-4)
Manna Jo Greene, Environmental Director John J. Sipos, Esq.
Steven C. Filler Charles Donaldson, Esq.
Peter A. Gross Kathryn Deluca, Esq.
Hudson River Sloop Clearwater, Inc. Elyse Houle, Legal Support 724 Wolcott Ave. Assistant Attorneys General Beacon, NY 12508 Office of the Attorney General mannajo@clearwater.org; of the State of New York stephenfiller@gmail.com; The Capitol, State Street peter@clearwater.org Albany, New York 12224 john.sipos@ag.ny.gov charlie.donaldson@ag.ny.gov Andrew Reid, Esq. kathryn.deluca@ag.ny.gov Organization: Hudson River Sloop elyse.houle@ag.ny.gov Clearwater, Inc.
Springer & Steinberg, P.C.
1600 Broadway, Suite 1200 Denver, CO 80202 Kathryn DeLuca, Esq.
areid@springersteinberg.com Laura E. Heslin, Esq.
Teresa Manzi, Legal Assistant Richard Webster, Esq. Assistant Attorney General Public Justice, P.C. Office of the Attorney General For Hudson River Sloop Clearwater, Inc. of the State of New York 1825 K Street, NW, Suite 200 120 Broadway, 26th Floor Washington, D.C. 20006 New York, New York 10271 rwebster@publicjustice.net kathryn.deluca@ag.ny.gov laura.heslin@ag.ny.gov teresa.manzi@ag.ny.gov Michael J. Delaney, Esq.
Director, Energy Regulatory Affairs Sean Murray, Mayor NYC Department of Environmental Protection Kevin Hay, Village Administrator 59-17 Junction Boulevard Village of Buchanan Flushing, NY 11373 Municipal Building mdelaney@dep.nyc.gov 236 Tate Avenue Buchanan, NY 10511-1298 smurray@villageofbuchanan.com Robert D. Snook, Esq. administrator@villageofbuchanan.com 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
[Original signed by Brian Newell ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 10th day of November, 2014 3