ML073250137
| ML073250137 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/21/2007 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 07-858-03-LR-BD01, 50-0247-LR, 50-286-LR, RAS 14671 | |
| Download: ML073250137 (5) | |
Text
1 FUSE Petition to Require Entergy To Address All Category 1 and Category 2 issues in the EIS (Oct. 23, 2007) [FUSE Petition].
2 Id. at 2.
3 Commission Referral of the Fuse Petition to the ASLBP (Nov. 13, 2007) [Commission Referral].
UNITED STATES OF AMERICA DOCKETED 11/21/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD SERVED 11/21/07 Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
Docket Nos. 50-0247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01 November 21, 2007 ORDER (Authorizing FUSE to Submit a Section 2.335 Petition)
In a letter dated October 23, 2007, Friends United for Sustainable Energy (FUSE) petitioned the Nuclear Regulatory Commission (NRC or the Commission) for an exemption pursuant to 10 C.F.R. § 51.6.1 More specifically, FUSE urged that, because of facts unique to the Indian Point Nuclear Plant, the Commission should set aside the provisions of 10 C.F.R. Part 54 and require the Applicant, in this case, Entergy, to address all Category 1 and Category 2 issues in the EIS Scoping Process for IP2 and IP3.2 On November 13, 2007, the Commission referred FUSEs letter to this Board with the direction that we treat it as a petition under 10 C.F.R. § 2.335.3 The Commission also authorized this Board to request additional information from FUSE and to allow other 4 Id.
5 10 C.F.R. § 2.335(b).
6 Id.
7 Id.
8 The Board also notes that FUSE did not provide an adequate Proof of Service with its Petition.
9 10 C.F.R. § 2.335(c).
participants to respond to FUSEs request.4 The sole ground for the granting of a petition for exemption or waiver of a regulation is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the... regulation (or a provision of it) would not serve the purposes for which the... regulation was adopted.5 In addition, any such petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the... regulation (or provision of it) would not serve the purposes for which the... regulation was adopted.6 Finally, the affidavit must identify with particularity the special circumstances that justify the waiver or exception.7 In its Petition dated October 23, 2007, FUSE alleged numerous facts. It did not, however, present those alleged facts in the form of an affidavit. It did not identify its basis for believing the allegations to be true. Nor did it provide references for the Board, or any other participants in this proceeding, to verify the accuracy of the alleged facts.8 Accordingly, at this time there is no evidence before this Board upon which we could make a determination that FUSE has made a prima facia showing that the application of the... regulation (or provision thereof) to a particular aspect or aspects of the subject matter of th[is] proceeding would not serve the purposes for which the... regulation was adopted and that application of the...
regulation should be waived or an exception granted.9 10 FUSE will serve its Amended Petition on the Board, the NRC Staff, and the Licensee, Entergy, so that it is received on or before December 17, 2007.
11 See Licensing Board Memorandum and Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) (Oct. 29, 2007) (unpublished).
12 Copies of this Memorandum and Order were sent this date by Internet e-mail to:
(1) Counsel for Entergy; (2) Counsel for FUSE; (3) New York Affordable Reliable Electricity Alliance; (4) Counsel for the New York City Economic Development Corporation; and (5) Counsel for the NRC Staff.
However, given the specific referral of the matter to this Board from the Commission, we will allow FUSE to submit an Amended Petition in accordance with Section 2.335 on or before December 17, 2007.10 The NRC Staff and the licensee, Entergy, may file responses to FUSEs Section 2.335 Petition on or before January 14, 2008. Once the Board has had the opportunity to review FUSEs Amended Petition, and any responses to the Petition that are filed, we will determine whether scheduling an oral argument on the Petition would be helpful to the Boards consideration of this matter.
In drafting an Amended Petition, FUSE must submit an affidavit which provides the basis for any alleged facts, and it must focus its argument on those factors outlined in Section 2.335.
In addition, it must provide adequate Proof of Service.11 It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD12
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD November 21, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
ENTERGY NUCLEAR OPERATIONS, INC. )
Docket Nos. 50-247/286-LR
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(Indian Point Nuclear Generating,
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (AUTHORIZING FUSE TO SUBMIT A SECTION 2.335 PETITION) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 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 Administrative Judge Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Sherwin E. Turk, Esq.
Lloyd B. Subin, Esq.
Beth N. Mizuno, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan H. Shapiro, Esq.
Attorney for Friends United for Sustainable Energy USA, Inc.
21 Perlman Drive Spring Valley, NY 10977
2 Docket Nos. 50-247/286-LR LB ORDER (AUTHORIZING FUSE TO SUBMIT A SECTION 2.335 PETITION)
Michael J. Delaney, Vice President - Energy New York City Economic Development Corporation 110 William Street New York, NY 10038 Arthur J. Kremer, Chairman New York AREA 347 Fifth Avenue, Suite 508 New York, NY 10016 Martin J. ONeill, Esq.
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Mauri T. Lemoncelli, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 21st day of November 2007