ML11259A265

Applicants Request to File a Surreply to the Combined Reply of Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. Applicants Request to File a Surreply to the Combined Reply of Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc

ML11259A265
Person / Time
Site:	Indian Point
Issue date:	09/16/2011
From:	Bessette P M, O'Neill M J, Sutton K M Morgan, Morgan, Lewis & Bockius, LLP, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP-07-858-03-LR-BD01
Download: ML11259A265 (7)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) )

) September 16, 2011

APPLICANT'S REQUEST TO FILE A SURREPLY TO THE COMBINED REPLY OF RIVERKEEPER, INC. AND HUDSON RIVER SLOOP CLEARWATER, INC.

In accordance with Section G.3 of the Atomic Safety and Licensing Board's July 1, 2010 Scheduling Order, 1 Entergy Nuclear Operations, Inc. ("En tergy") hereby requests leave to file a surreply to the "Riverkeeper, In

c. and Hudson River Sloop Clearwater, Inc.'s Combined Reply to NRC Staff and Entergy's Answers in Opposition to Motion to Admit New Contention Regarding the Fukushima Task Force Report" ("Combined Reply") and the associated Reply Memorandum filed on September 13, 2011.

2 In support of this request, Entergy respectfully states as follows:

1. On August 11, 2011, Riverkeeper, Inc. ("

Riverkeeper") and Hudson River Sloop Clearwater, Inc. ("Clearwater") (jointly, "Intervenors") filed a Motion to admit a proposed New Contention in this proceeding purportedly based on new and significant information presented by the NRC in its report, "Recommendations for Enha ncing Reactor Safety in the 21st Century: The

1 Licensing Board Scheduling Order at 7 (July 1, 2010) (unpublished).

2 See Reply Memorandum Regarding Timeliness and Admissibility of New Contentions Seeking Consideration of Environmental Implications of Fukushima Task Force Report in Individual Reactor Licensing Proceedings (Sept. 13, 2011). Near-term Task Force Review of Insights from the Fukushima Dai-ic hi Accident" (July 12, 2011) (the "Task Force Report").

3 2. On September 6, 2011, Entergy and the NRC Staff each filed Answers opposing the admission of the New Contention on the grounds that it does not meet the NRC's contention timeliness and admissibility criteria in 10 C.F.R. § 2.309.

4 3. Three days later, on September 9, 2011, the Commission issued a Memorandum and Order (CLI-11-05), in which it ruled on a series of petitions filed in numerous proceedings to suspend adjudicatory, licensing, and rulemaking ac tivities, and requesting additional related relief, in light of the March 2011 events at Fukishima.

5 CLI-11-05 indicates that Riverkeeper's and Clearwater's Rulemaking Petition (and associated suspension request) was among the many filings underlying the Commission's ruling.

6 4. Shortly thereafter, on September 13, 2011, th e Intervenors filed their Combined Reply and Reply Memorandum in response to the An swers of Entergy and the NRC Staff. In the Combined Reply and Reply Memorandum, Intervenors discuss the "relevance" and "effect" of CLI-11-05 with respect to their New Contention, suggesting that it supports admission of the contention.

7 3 Motion to Admit Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. New Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the NRC Fukushima Task Force Report (Aug. 11, 2011) ("Motion"); Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. New Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the NRC Fukushima Task Force Report (Aug. 11, 2011) ("New Contention").

4 See Applicant's Answer to Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.'s Motion to Admit New Contention Regarding the Fukushima Task Force Report (Sept. 6, 2011) ("Applicant's Answer"); NRC Staff's Answer In Opposition to Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Sept. 6, 2011) ("NRC Staff's Answer").

5 See Union Elec. Co. d/b/a/ Ameren Missouri (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op. (Sept. 9, 2011). 6 See id., Appendix at 18.

7 Combined Reply at 2; Reply Memorandum at 1-4. 5. Unlike Riverkeeper and Clearwater, Ente rgy did not have an opportunity to address the implications of CLI-11-05 relative to the admissib ility of the New Contention.

Relevant here, a portion of the Commission's decision addresses claims that the Fukushima events-as discussed in the Task Force Report-constitute "new and significant information" under NEPA that must be analyzed as part of the environmental review for new reactor and license renewal decisions.

8 Accordingly, Entergy submits that its inability to address the import of CLI-11-05 in its Answer, due solely to the timing of that decision, constitutes good cause for

the filing of a brief surreply to address the relevance of CLI-11-5 to the proposed new contention. Indeed, the Combined Reply recognizes as much, stat ing that the "Intervenors would not object to a response by Entergy and the Staff to their arguments regarding the relevance of CLI-11-05 to their contention."

9 6. In accordance with 10 C.F.R. § 2.323(b), Counsel for Entergy has contacted Counsel for the NRC Staff, who stated that he does not oppose Entergy' s Motion for Leave to file a limited surreply. Intervenors noted thei r lack of objection in their Combined Reply.

8 See CLI-11-05, slip op. at 30-31.

9 Combined Reply at 2 n.4 ("Because Entergy and the NRC Staff have not had an opportunity to address the effect of CLI-11-05 on the timeliness and admissibility of Intervenors' contention, Intervenors would not object to a response by Entergy and the Staff to their arguments regarding the relevance of CLI-11-05 to their contention."). WHEREFORE, Entergy respectfully requests that the Board grant its Motion for Leave to file a brief surreply to the Combined Reply and Reply Memorandum on or before Tuesday, September 20, 2011.

Respectfully submitted, Signed (electronically) by Paul M. Bessette William C. Dennis, Esq. Kathryn M. Sutton, Esq.

Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq. 440 Hamilton Avenue Martin J. O'Neill, Esq.

White Plains, NY 10601 MORGAN, LEWIS & BOCKIUS LLP Phone: (914) 272-3202 1111 Pennsylvania Avenue, N.W.

Fax: (914) 272-3205 Washington, D.C. 20004 E-mail: wdennis@entergy.com Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com

COUNSEL FOR ENTERGY

Dated in Washington, D.C.

this 16th day of September 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) )

) September 16, 2011 CERTIFICATE OF SERVICE I certify that, on September 16, 2011 , a copy of "Applicant's Request to File a Surreply to the Combined Reply of Riverkeeper, Inc. and Huds on River Sloop Clearwater, Inc.," was served electronically with the Electronic Informa tion Exchange on the following recipients:

Administrative Judge

Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel

Mail Stop: T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov)

Administrative Judge Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel

190 Cedar Lane E.

Ridgway, CO 81432 (E-mail: Kaye.Lathrop@nrc.gov) Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel

Mail Stop: T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)

Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: hearingdocket@nrc.gov)

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-7H4M

Washington, DC 20555-0001 (E-mail: ocaamail.resource@nrc.gov)

Josh Kirstein, Law Clerk Katherine Tucker, Law Clerk Atomic Safety and Licensing Board Panel

Mail Stop: T-3 F23

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)

(E-mail: Katie.Tucker@nrc.gov)

2 Sherwin E. Turk, Esq.

Beth N. Mizuno, Esq.

David E. Roth, Esq.

Brian G. Harris, Esq.

Andrea Z. Jones, Esq.

Office of the General Counsel

Mail Stop: O-15D21

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)

(E-mail: Beth.Mizuno@nrc.gov)

(E-mail: david.roth@nrc.gov)

(E-mail: brian.harris@nrc.gov)

(E-mail: andrea.jones@nrc.gov)

Melissa-Jean Rotini, Esq.

Assistant County Attorney

Office of Robert F. Meehan, Esq.

Westchester County Attorney

148 Martine Avenue, 6th Floor

White Plains, NY 10601 (E-mail: MJR1@westchestergov.com)

Manna Jo Greene Stephen C. Filler Karla Raimundi

Hudson River Sloop Clearwater, Inc.

724 Wolcott Ave.

Beacon, NY 12508 (E-mail: mannajo@clearwater.org)

(E-mail: karla@clearwater.org)

(E-mail: stephenfiller@gmail.com)

Thomas F. Wood, Esq.

Daniel Riesel, Esq.

Victoria Shiah, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022 (E-mail: driesel@sprlaw.com)

(E-mail: vshiah@sprlaw.com)

Joan Leary Matthews, Esq. Associate Commissioner Hearings and Medi ation Services New York State Department of Environmental Conservation

625 Broadway, 14th Floor

Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)

John Louis Parker, Esq. Office of General Counsel, Region 3 NYS Dept. of Environmental Conservation

21 S. Putt Corners Road

New Paltz, New York 12561-1620 (E-mail: jlparker@gw.dec.state.ny.us)

John J. Sipos, Esq.

Charlie Donaldson Esq.

Assistant Attorneys General Office of the Attorney General

of the State of New York

The Capitol

Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)

Michael J. Delaney, Esq. Vice President -Energy Department New York City Economic Development

Corporation (NYCDEC) 110 William Street New York, NY 10038

mdelaney@nycedc.com

3 DB1/ 68132912.1 Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562 (E-mail: phillip@riverkeeper.org)

(E-mail: dbrancato@riverkeeper.org) Daniel E. O'Neill, Mayor James Siermarco, M.S.

Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298 (E-mail: vob@bestweb.net)

(E-mail: smurray@villageofbuchanan.com)

Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General

State of Connecticut 55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120 (E-mail: Robert.Snook@po.state.ct.us)

Janice A. Dean, Esq. Assistant Attorney General 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)

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 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com

COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.