ML081000564
| ML081000564 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/04/2008 |
| From: | Shapiro S Public Health & Sustainable Energy (PHASE), Rockland County Conservation Association, Sierra Club, Atlantic Chapter, Westchester Citizens Awarenesss Network (WestCAN) |
| To: | NRC/OCM |
| SECY/RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-47 | |
| Download: ML081000564 (49) | |
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DOCKETED USNRC April 4, 2008 (4:36pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION (0
In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.
(Indian Point Nuclear Generating Units 2 and 3)
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Docket Nos.
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50-247 and
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50-286
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ASLBP No. 07-
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858-03
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LR-BD01
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PETITION FOR
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REVIEW April 4, 2008 PETITION FOR REVIEW OF ATOMIC SAFETY AND LICENSE BOARD (ASLB) ORDERS OF MARCH 25, 2008 AND MARCH 31, 2008 CANCELLING ORAL ARGUMENTS ON WESTCAN'S CONTENTIONS Pursuant to 10 CFR 2.341, Petitioners WestCAN, Sierra Club, RCCA, PHASE and Assemblyman Richard Brodsky ("WestCAN") Petition the Nuclear Regulatory Commission for review of the Atomic Safety and Licensing Board ("ASLB") orders, dated March 25, 2008 and March 31, 2008, canceling the scheduled April 1, 2008 oral argument on admissibility of 50 Contentions submitted by WestCAN in the License Renewal Application Proceedings.
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WestCAN represents over a million Stakeholders, and has submitted numerous unique Contentions or contention with different arguments and/or support for its' contentions. WestCAN is the only Intervenor who was not given an opportunity for oral argument to address the admissibility of their contentions.
On February 29, 2008 ASLB initially scheduled oral arguments for the ASLB to direct questions to the attorneys representing WestCAN, the NRC Staff, and Entergy in order to determine if these contentions are admissible for April 1, 2007 (Exhibit 4 ).
On March 25, 2008 the ASLB cancelled the oral arguments (Exhibit 7). On March 31, 2008, the ASLB reaffirmed its cancellation of oral arguments (Exhibit 9) in responses to Petitioners' letter requesting clarification. (Exhibit 8).
Consequently, WestCAN petitions the Commission to review the ASLB orders canceling the Petitioners'oral arguments for the following reasons:
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- a. The ASLB orders are conduct in the proceeding that inolve a prejudicial procedural error, without precedent. The ASLB orders deny a right to the Petitioners granted to all other Intervenors in the same proceedings.
- b. The ASLB orders are a material issue in conflict with the same circumstances granted to other Petitioners in the same License Renewal proceedings, and in other proceedings. WestCAN should be afforded the same right to support all their Contentions in oral arguments as all the other Petitioners.
- c. The following Contentions asserted by Petitioners are unique to the WestCAN Petition.
CONTENTION # 2: The NRC routinely violates § 51.101(b) in allowing changes to the operating license to be done concurrently with the renewal proceedings.
CONTENTION 3: The NRC violated its' own regulations
§51.101(b) by accepting a single License Renewal Application 3
made by the following parties: Entergy Nuclear Indian Point 2, LLC ("IP2 LLC") Entergy Nuclear Indian Point 3, LLC (" IP3 LLC"), and Entergy Nuclear Operations, LLC. (Entergy Nuclear Operations), some of which do not have a direct relationship with the license.
CONTENTION 6: Fire Protection Design Basis Threat. The Applicant's License Renewal Application fails to meet the requirements of 10 CFR54.4 "Scope," and fails to implement the requirements of the Energy Policy Act of 2005.
CONTENTION 12: Entergy either does not have, or has unlawfully failed to provide the Current License Basis' (CLB) for Indian Point 2 and 3, accordingly the NRC must deny license renewal.
CONTENTION 15: Regulations provides that in the event the NRC approves the LRA, then old license is retired, and a new superseding license will be issued, as a matter of law § 54.31.
Therefore all citing criteria for a new license must be fully 4
considered including population density, emergency plans and seismology, etc.
CONTENTION 33: The EIS Supplemental Site Specific Report of the LRA is misleading and incomplete because it fails to include refurbishment plans meeting the mandates of NEPA, 10 C.F.R. 51.53 post-construction environmental reports and of 10 C.F.R. 51.21.
CONTENTION 51: Inability to Access Proprietary Documents Impedes Adequate Review of Entergy Application for License Renewal of IP2 LLC and IP3 LLC.
- d. The other Contentions the Petitioners submitted, though unique in presentation, were similar to those raised by other Petitioners, however WestCAN does not waive the right to support these Contentions in oral argument.
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- e. The scheduled April 1, 2008 oral argument for WestCAN was never placed on the ASLB schedule, in contradiction to the ALSB Order on March 7, 2008. (Exhibit #6).
- f. WestCAN had responded in a timely manner to all ASLB letters and orders regarding oral arguments.. Exhibit #1 - #9 are the complete correspondence between the ASLB and Petitioners with regard to the scheduling of WestCAN's oral arguments. It was never stated by the ASLB that due to the unavailability of the WestCAN on March 13, that Petitioners would be denied oral arguments. It is unreasonable for the ASLB to cancel WestCAN's oral arguments on admissibility due to scheduling conflicts. It is customary in the scheduling of legal proceedings to schedule hearings and oral arguments on the reasonable availability of all parties and their legal counsel.
WestCAN was available for hearings on March 14 in White Plains, New York, or in Washington, D.C. as scheduled by the ASLB on April 1, 2008. Petitioners were fully prepared to travel to Washington, D.C. for the April 1, 2008 hearings.
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On February 2 91h ASLB first scheduled oral argument for the Petitioners they wrote "Accordingly, each litigant will be given an opportunity to answer questions relating to the contentions that they have presented.", and "...the purpose of this proceeding is to allow the Board to clarify its understanding of the Petitioners' contentions and the NRC Staff's and the Applicant's responses thereto.
The ASLB also stated that "If, however, no representative of WestCAN is available on that day, the Board will conduct oral argument on the admissibility of WestCAN's contentions at the ASLBP Hearing Room in Rockville, Maryland, during the week of March 24, 2008, or as soon thereafter as is practicable." (Exhibit 4)
On April 7, 2008 the ASLB ordered that "attorneys who have filed Notices of Appearance shall then be prepared to answer questions posed by the Board regarding the contentions that they have submitted" and, "This proceeding is intended only as an opportunity for the Board to question, and the attorneys to explain, that which has previously been submitted." (Exhibit 7).
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Yet in the ASLB Orders dated March 25, 2008 and on April 3, 2008 the ASLB wrote, "we currently have no questions to ask WestCAN... regarding the admissibility of WestCAN's Contentions".
(Exhibit 9). The ASLB has not explained when, from whom and what information they obtained and used that rendered its earlier decision to accept oral testimony "would not be materially assisted by oral argument."
- h. The orders of canceling the Oral Arguments of WestCAN undermines the very reasoning for holding public hearings - to ensure the concerns of interested parties and individuals are heard and considered. The even handedness of the ASLB is in the public in interest.
Therefore, WestCAN respectfully requests that Commission grant a Petition for Review of ASLB's orders of cancellation; the ASLB orders of Cancellation be overturned; and, that the ASLB immediately schedule an oral hearing on admissibility of WestCAN's Contentions to be held in Westchester County on WestCAN's contentions, with all appropriate public 8
and official notice, including sufficient microphones and audio equipment to accommodate public participation.
Respectfully,
/SS' Susan Shapiro Representing Westchester Citizen's Awareness Network, Rockland County Conservation Association, PHASE, Sierra Club - Atlantic Chapter and Assemblyman Richard Brodsky Spring Valley, NY Submitted April 4, 2008 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION PETITION FOR REVIEW BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of
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ENTERGY NUCLEAR OPERATIONS, INC. )
Docket Nos. 50-247/286-LR ASLBP No. 07-853-03-LR-BD01 (Indian Point Nuclear Generating)
Units 2 and 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Petitioners' WestCAN et. al Petition for Review dated April 4, 2008, has been served upon the following by electronically as shown to the address below, this 4th day of April, 2008. Hard copies have been sent to the Office of the Secretary as required by the February 1, 2008 ASLB Order.
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: LGM1(dnrc.qov Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: REW(anrc..qov Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane E.
Ridgeway, CO 81432 E-mail: KDL2(anrc.qov Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication U. S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, D.C. 20555-0001 Email: OCAAMAIL(5nrc..qov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: HEARINGDOCKETenrc.qov Zachary S. Kahn, Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Email: ZXK1(@nrc..gov
2 Mail Stop - T-3 F23 Washington, D.C. 20555-0001 William C. Dennis, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Email: wdennis(d)enter-qy.com Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 E-mail: ksutton(cmorganlewis.com E-mail: pbessette(omorganlewis.com E-mail: martin.o'neill(,mor-qanlewis.com Michael J. Delaney, Esq.
Vice President - Energy Department New York City Economic Development Corporation (NYCDEC) 110 William Street New York, NY 10038 E-mail: mdelaney@nycedc.com John LeKay FUSE USA 351 Dyckman Street Peekskill, NY 10566 E-mail: fuse usa*vahoo.com Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016 E-mail: aikremerarmfp.com kremer(area-alliance ora Manna Jo Greene Hudson River Sloop Clearwater, Inc.
112 Little Market Street Poughkeepsie, NY 12601 Email: Mannaio(aclearwater.org Justin D. Pruyne, Esq.
Assistant County Attorney Office of the Westchester County Attorney 148 Martine Avenue, 6 "' Floor White Plains, NY 10601 E-mail: idp3(@westchestergov.com Daniel E. O'Neill, Mayor James Seirmarco, M.S.
Village of Buchanan Municipal Building Buchanan, NY 10511-1298 E-mail: vobt.bestweb, net John J. Sipos, Esq.
Charlie Donaldson, Esq.
Assistants Attorney General New York State Department of Law Environmental Protection Bureau The Capitol Albany, NY 12224 E-mail: iohn.sipos-oag. state. ny.us Joan Leary Matthews, Esq.
Senior Attorney for Special Projects New York State Department of Environmental Conservation Office of the General Counsel 625 Broadway, 14 1 Floor Albany, NY 12233-1500 E-mail: ilmatthe(.qw.dec, state. ny. us Diane Curran, Esq.
3 Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, NW, Suite 600 Washington, D.C. 20036 E-mail: dcurran(dharmoncurran.com Robert Snook, Esq.
Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 E-mail: ro bert.snook(c.po.state.ct.us Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Ms. Jessica Steinberg, J.D.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel(cspriaw.com j steinbergO(sprlaw.com Ms. Nancy Burton 147 Cross Highway Redding Ridge, CT 06876 E-mail: nancyburtonct(,aol.com Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 E-mail: kimberly.sexton(dnrc.qov Sherwin.turk(dnrc.gov clhristopher.chandler~Jnrc.qgoy Beth. Mizuno(@nrc.qov David, Roth(anrc.cov Lloyd. Subin(,nrc.gov Office of the Secretary*
U.S. Nuclear Regulatory Sixteenth Floor One Flint North 11555 Rockville Pike Rockville, Maryland 20852 Victor Tafur, Esq.
Phillip Musegaas, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 E-mail: phillip(o)riverkeeper.orq vtafur(.riverkeeper.org Elise N. Zoli, Esq.
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 E-mail: ezoWiýqoodwinproctercom Janice A. Dean, Esq.
Assistant Attorney General Office of the Attorney General 120 Broadway, 2 6th Floor New York, NY 10271 E-mail: janice.dean(Doag. state.ny.us Mylan L. Denerstein Executive Deputy Attorney General Office of the N.Y. Attorney General 120 Broadway, 25th floor New York, New York 10271 E-mail: Mvlan.DenersteinDoao.state.nv.us
5 John Louis Parker, Esq.
Regional Attorney Office of General Counsel, Region 3 NYS Dep't of Envt'l Conservation 21 S. Putt Corners Road New Paltz, New York 12561-1620 ilparkercDqov.dec.state. nV.us Marcia Carpentier, Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3 E2B U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Marcia.Carpentier(@nrc.gov
- Original and two copies
EXHIBIT TABLE OF CONTENTS PETTION FOR REVIEW OF ATOMIC SAFETY AND LICENSE BOARD (ASLB) ORDERS OF MARCH 25, 2008 AND MARCH 31, 2008 CANCELLING ORAL ARGUMENTS ON WESTCAN'S CONTENTIONS Exhibit #1 January 24, 2008 ASLB ORDER Preliminary Notification Regarding the Scheduling of Oral Argument Exhibit #2 January 30, 2008 WestCAN Notification of Anticipated Conflicts during the week of March 10, 2008 Exhibit #3 Exhibit #4 Exhibit #5 Exhibit # 6 Exhibit #7 Exhibit # 8 Exhibit #9 February 26, 2008 WestCAN Letter Response to Entergy's letter dated Feb I 9th - Reiterated schedule conflicts February 2 9th ASLB Order Scheduling Oral Argument on Admissibility of Contentions for March 13 th date March 6, 2008 WestCAN Request for Oral Arugments to be March 14 March 7 ASLB Scheduling WestCAN Oral Argument for April 1, 2008 March 25, 2008 ASLB Canceling Oral Argument on WestCAN's Contentions March 31, 2008 WestCAN request for Clarification of cancellation of Oral Argument April 3, 2008 Order Relating to Wagner Letter Dated March 31, 2008
EXHIBIT #1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade. Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247.LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS. INC.
ASLOP No. 07.858-03-LR-BDOI (Indian Point Nuclear Generating January 24. 2008 Units 2 and 3)
ORDER (Preliminary Notification Regarding The Scheduling Of Oral Argument) it is the intent of the Board to heat oral argument on the admissibility of contentions, and any other matters then, outstanding, during the week of March 10. 2008. at the Richard J.
Daronco Courthouse. 111 Dr. Martin Luther King Blvd.. 'hitte Plains. New York.
It will be necessary for rcpresentatives of the NRC Staff and the Applicant. Enfergy Nuclear Operations. Inc.. to be available during all business hours (9:00 am until 6:00 or) throughout that week. Other participants in this litigatiurn need only be present when contentions, or other matters which they presented, are being discussed.
Accordingly. in order to assist the Board in establishing a schedule for oral argument that will pose the least inconvenience to all involved, we direct all participants in this litigation.
on of before Thursday. January 31. 20-08. to notify the Board of any conflicts anticipated during the oral argument week. This notification shall include a listing of the business hours during the week of March 10' that would present a scheduling problem and a brief description of the nature of the time conflict.
To the degree practicable. the Board will attempt to formulate its schedule for oral argument to accommodate any significant conflicts. Howtevc, given) the number of participants in this litigation and the number of issues too be addressed, the Board may not be able to acquiesce to all scheduling reqluests.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD' IRAI Lawrenc,'z G. McDade. Chaitman ADMINISTRATIVE JUDGE Rockville. MD January 24. 2008
- Cooies of this Order wore sent this date by Internet e-mail to
- (1) Counsel for the NRC Staff: (2) Counsel for Entergy: (3) Counsel for the State of New York: (4) Counsel for the State of Connecticut: (5) Counsel for Riverkeeper. Inc.: (6) Counsel for W'.,stCan, RCCA. PHASE, the Sierra Club - Atlanic Chapter: and Richard Brodsky: (7) Nancy Burton. the Representati;ve of CRORIP: (8) Manna Jo Green. the Reoresentative for Clearwator: (9f) John LeKay. the Representative for FUSE: (10) Counsel for Westchestor County: and (I1 ) Counsel for the Town of Colrlandl.
EXHIBIT #2
DOCKETED USNRC January 30, 2008 Office of the Secretary Rulemaking and Adjudications Staff UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247 and
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50-286 ENTERGY NUCLEAR OPERATIONS, INC.
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ASLBP No. 07-858-03
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LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) )
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January 24, 2008 Notification of Conflicts Anticipated during the Week of March 10, 2008 The Counsel for Westchester's Citizen's Awareness Network (WestCAN),
Rockland County Conservation Association (RRCA), PHASE (Promoting
Hlealth and Sustainable Energy, LLC) and the Sierra Club-Atlantic Chapter; and Richard Brodsky have the following conflicts:
Susan Shapiro has a pre-planned vacation from March 8 to March 24, 2008 due to her children's school spring break schedule.
Assemblyman Richard Brodsky is required to attend Session of the New York State Assembly during the week of March 10, 2008.
Therefore we request scheduling oral argument on the admissibility of the contentions, and other matters then outstanding to March 27 and March 28, 2008.
Counsel for WestCAN, RCCA, PHASE Sierra Club and Richard Brodsky Iss/
Richard Brodsky and Susan Shapiro Spring Valley, NY SUBMITTED JANUARY 30, 2008
Copies of this Request were sent this date by Internet e-mail to: (1) ASLB Staff; (2)
Counsel for the NRC Staff; (3) Counsel for Entergy; (4) Counsel for the State of New York; (5) Counsel for the State of Connecticut; (6) Counsel for Riverkeeper, Inc.; (7)
Nancy Burton, the Representative of CRORIP; (8) Manna Jo Green, the Representative for Clearwater; (9) John LeKay, the Representative for FUSE; (10) Counsel for Westchester County; and (11) Counsel for the Town of Cortlandt.
EXHIBIT #3
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EXHIBIT #4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade. Chaiirni Dr. Kaye D. Lathrop Dr. Richard E. Ward,.,ell In the Matter if Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS. INC.
ASLBP No. 07.858.03-LR-BDOI jlndian Point Nuclear Genratirn, Fe b'uary 29. 2008 Units 2 and 3) iScheduling Oral Argument Of! the Admissibility of Contentions)
The Board has set the following schedule for the Oral Argument to be held at the Ricatrd J. Daronco Cuurthouse. U 1 Dr. Martin Luther King Blvd. White Plains. New York.
Ropresentatves for Entery and tVe NRC Staff shall be present for the entire week (or the durat;on of tie oral argument should it be completed before mne end of the week). All other lit;gants shall be in the courtooom arnd ready to proceed as scheduled below.
Consistont,ith the regular schedule at tMe Daronco Courthouse. the Board intends to conclude thre proceeding by 5:00 pm each day. Once tlheir presentations are comploted.
litigants may remain in the courtroom, or leave, as they deemri appropriate. Likewise. a litigant nay. but riebd not. be present when anotlhef liligant is scheduled for oral argument.
If the All litigants are reminded that they) must arrive at the Darotnco Courthouse sufficiently in advance of the scheduled start of the proceeding so that they may clear security. find the courtroon,. and be fully prepared to proceed before the time set.
Board has not finished asking cuu.estions of a litigant on the day scheduled. the Board will continue the argument the following moming. All litigants shall arr.ange their schedules accordingly.
The following schedule will be adhered to to the extent possible. if the Board concludes its questioning of the litigants scheduled for a specific day before 5:00 pnm we will recess until the next morning. Litigants need not be present before the day on which tihey are scheduled Monday. March 10. 2008. at 10:00 AM EDTr - (in order of appearance) Westchester County.
The State of New York.
Tuesday, March 11, 2008. at 9:00 AM EDT - (in order of appearance) The Town of Corilandt.
The Statr of Connecticut. Riverkeeper. Inc.
Wednesday. March 12. 2008, at 9:00 AM EDT- (in o,,der of appearance) Riverkeepei. Inc..
Hudson River Sloop Clearwater. Inc. (Clearwvater). Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP).
Thursday. March 13. 2008. at 9:00 AM EDT-Westchester Citizen's Awareness Network.
Rockland County Conservation Association. Public Health and Sustainable Energy. Sierra Club Atlantic Chapter. and Assemblyman Richard Brodsky (collectively. WestCAN).
The litigants are reminded that daylight savings time begins on March 9. 2008.
In a Licensing Board Order dated February 1. 2008. we stated that the Board would base its decision regarding the admissibility of WestCAN's contentions only on their Petition to Intervene and those suoporling documlents that we had listed in Appeýndix A to our Order unless WesICAN could demonstrate to the satisfaction of the Board that the other documents referred to by WestCAN in its Petition had been properly submitted and served (Appendix B). WestCAN attempted to meet this requirement in a pleading dated Feb. 11. 2008 (sent to the Board by USPS first class mail with a postmark of Feb. 12. 2008. and initially received by the Board on February 21. 2008 -- the Board has ro record of receiving an electronic copy of this submission even though the Certificate of Service states that service on the Board was perfected on February 11. 2008. via electronic mail.) WestCAN was unsuccessful. The Board will not consider those docurnents listed in) Appendix B to tIre Board's Order of February 1.
20%8. in support of the admissibility of WosICAN's contentions.
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The Board recognizes that in its response to our Scheduling Order. WestCAN asserted that two of its representatives. Susan Shapiro and Assemblyman Richard Brodsky. are not available to participate in this proceeding during the week of March 10. 200A.' However. since that filing. WestCAN has submitted an additional Notice of Appearance for Sarah L. Wagncr.ýý We also note that it dues not apocar that the New Ytrk Assembly is scheduled to meet on March 13. 2008. Accordingly. should Ms. Wagner and/or Richard Brodsky be available on this date. the Board proposes to conduct oral argument on the admissibility of WestCAN s contentions in White Plains. NY on Thursday. March 13. 2008. If. however. no representative of WesICAN is available on that day. the Board will conduct. oral argument on the admissibility of WestCAN's contentions at the ASLBP Hearing Room in Rockville. Maryland. during the week of March 24. 2008. or as soon thereafter as is otacticable.
No later than nuon on March 6. 2008. WestCAN shal! notify the Board whether it will proceed with the oral argument in White Plains. NY on March 13. 2008. If WestCAN is unable to proceed orn March 13. it shall notify the Board of any conflicts that would prevent its reoresentatives from appearing in Rockville. MD between March 24. and April 4. 2008.
If they are notified by WestCAN that it canr not proceed on March 13', the NRC Staff and Entergy shall promptly notify the Board of any conflicts that they anticipate between March 2,4.
and April 4. 2008.
The Board does not expect, nor will it entertain, presentations by the litigants on all the contentions presented. Rather, the Petitioners may. but need not, make opening statemenrts Notification of Conflicts Anticipated During the Week of March 10. 2007 (Jan. 30.
2C-08).
Notice of Appearance for Sarah L. Wagner. Esq. (Feb. 4. 2008).
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whvich shall not exceed 10 minutes. in which they may speak genrally regarding their Petitions to Intervene. The Petitioners shall then be orepared to answer questions pos,-d by the Board r*egarding the content,ons that they have submitted. The NRC Staff and Entergy may. but need nlot. make opening statements in response to each Petitioner's opening. These statements by the NRC Staff and Entergy shall not exceed 5 minutes each. Questions will then be addressed to the Petiticner, the NRC Staff. and Entergy as the Board deems appropriate.
We will follow this procedure because the oufoose of this preceeding is to allow the Board to clarify its understanding of the Petit~oners contentions and the NRC Staffs and the Applicant's responses thereto. It is not the p)urpose of this oroceeding to entertain general oresentations regarding contentions,vhichi have already been adequately explained in the oleadings. Likewise. this Proceeding is intended only as an ooortunity for the Board to question. and the litigants to exolain. what has previously been submitted. This will not be an evidentiary hearing and. wiltiout a specific exemption from the Board, the litigants will not be given an oooortunity to supplement the already voluminous record at this point in the proceeding.
The Board has concludea that the standing of all Petitioners has been adequately discusse-d in the pleadings. Accordingly, we will have no questions regarding standing and the Board will not enteilain any argument on the issue of standing.
With regard to the admissibility of contentions, the Board will not consolidate contentions Prior to their beoing admitted. Accordingly. each litigant will be givenr an opportunity to answer questions relating to "ho contentions that they have presented. Moreover. the Board will only address questions regarding specific contentions to the proponent thereof and to the current Parties. the NRC Staff and Entergy. Where the positions of the litigants on a particular
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contention are clear to all of the members of the Board based on the pleadings. we will ask no questions and entertarn no oresentation regarding that contention.
Westchoster County. which proposes to adopt the contentions submitted by the State of New York. is the first scheduled litigant. Westchester. the NRC Staff. and Entergy should be orcoared to discuss the applicability of the ASLBP decision in Entergy Nuclear Vermont Yankee. LLC. and Enteroy Nuclear Operations Inc. (Vermont Yankee Nuclear Power Station).
LBP-06-20. 64 NRC 131. 206-08 (2006) and the Commission decision in tn,,sidaLezd.son iC.o._of.N zciY. ork (Indian Point. Units I and 2). CLI-0 i-t9. 59 NRC 109. 131-33 (2001) to Westchester's Petition. In addition. these litigants should be prepared to discuss the role that Westchestet would have in this proceeding if it is admitted as a party by adopting New Yorks contentions. as opposed to the role that it would have in ths proceeding if it were to oaricipate as an interested governmental body pursuant to 10 C.F.R. § 2.315,c).
The Board notes that CRORIP has submitted a Section 2.335(b) Motion which is pending. CRORIP. the NRC Staff. and Entergy should be prepared to present oral argument on this Motion on Wednesday. March 12. 2008.
The Board also notes that there are a number of Motions to Strike that have been filed and are pending. Tlhese Motions focus on the appropriate content of a Reply under our Rules of Practice. 10 C.F.R. § 2.309(h)(2). The Board does not oerceive the nced for oral argument
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on thOese motions. Furthermore we will not rule on thenm at this time. Rather we will address these Motions in our ru!ing on contention admissibility.
It is-so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD'
/RAI Lawrence G. McDade. Chairman ADMINISTRATIVE JUDGE Rockville. MD February 29. 2008 However. we note at this time that the requirement established by 10 C.F.R § 2.323(b) that a "sincere effort" be made to "resolve the issue(s) raised in [a] motion" prior to filing contemplates something more than mere notification that a motion will be filed made moments before a acadlino.
" Cooies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff: (2) Counsel for Entergy: (3) Counsel for the State of New York: (4) Counsel for the State of Connctic7iut: (5) Counsel for Riverkeoper. Inc.: (6) Counsel for WestCAN. RCCA. PHASE, tho Sierra Club - Atlantic Chapter: and Richard Brodsky: (7) Nancy Burton. the Representative of CRORIP: ý8) Manna Jo Green. the Representative for Clearwater: (9) Counsel for Westchester County: and (10) Counsel for the Town of Cortlandt.
EXHIBIT #5
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EXHIBIT #6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. r,,'cDade. Chairman Dr. Kaye D. Lalhrop Dr. Richard E. WAIardwell In the 1
atter Docket Nos. 50.247.LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS. INC.
ASLBP No. 07-858-03..LR-BD0i (Indian Point Nuclear G-.neratin March 7. 2008 Units 2 and 3}
(Scheduling WestCAN Oral Argument)
In an Order dated February 29. 2008. the Board scheduled oral argument to be held at thre Richard J. Daronco Courthouse. 111 Dr. Martin Luther King Blvd.. White Plains. New York during the week of March 10. 2C.M8.
In that Order the Board also recognized that WestCAN had oreviously asserted its two reoresefntatives. Susan Shapiro and Assemblyman Richard Brodsky. would not be available during the week of March 10. 2008. due to preexisting commitments.f However, the Board then noted that. after WestCAN advised the Board of the conflicts. it submitted an additional Notice of Appearance 'or Susan Waginer. Esu.o Licensing Board Order fScheduling Oral Argument on tie Admissibility of Contentions)
(Feb. 29. 2008).
Notification of Conflicts Anticioated During the Week of March 10. 2008 (Jan. 24.
2008).
Notice of Appearaince for Sarah L. Wagner. Esq. (Feb. 4. 2008).
Accordingly. since it appeared that it might be possible for an attorney representing WestCAN to be present, the Board proposed to c6nduct oral argument on the admissibility of WestCAN's contentions in White Plains. NY on Thursday. March 13. 2008. However, in that Scheduling Order the Board also offered WestCAN ani alternative to the March 13" date.
Specifically. the Board proposed holding oral argument on the admissibility of WestCAN's contentions 'at the ASLBP Hearing Room in Rockville. Maryland. during the week of March 24, 2008. or as soon thereafter as is oracticable.-'
We then directed WestCAN to notify the Board no later than noon on March 6. 2008.
whether it wished to proceed with the oral argument in White Plains. NY on March 13. 2008.
and. if not. to notify the Board of any conflicts that would orevent its representatives frorir appearing in Rockville, MD between March 24 and April 4. 2008.
By letter dated March 6. 2008. WestCAN notified the Board that it did not wish to proceed on March 13. 2008. WestCAN did riot. howe'oer. notify the Board of any conflicts that would.revent its rrpresentatives from appearing in Rockville. MD between March 24. and April
- 4. 2008.
Accordingly. unless the NRC Staff and Entergy promptly (no later than 5:00 prm. March
- 10. 2008) notify the Board of specific conflicts, the Board will hold oral argument onl the admissibility of WcstCANs contentions on Aoril 1. 2008. at the ASLBP Hearing Room in Rockville. Maryland. beginning at 10:00 arn.
As previously stated in out Order of February 29. 2008. the Board does not expect, nor wil! it enrtertain, presentanons on al! the contenctio*ns presented. Rather. WestCAN may. but rieed nrot. make am opening statement which shall not exceed 10 Minutes. in which it may speak generally regarding its Petition to Intervene. Its attorneys who have filed Notices of Licensing Board Order !Scheduling Oral Argument on the Admissibility of Contentions)
(Feb. 29, 2008) at 3.
.1 Appearance shall then, be prepared to answer questions eased by the Board regarding the contentions that they have submitted. The NRC Staff and Ent-rgy may. but need not, make opening statements in response which shall not exceed 5 minutes each. Questions will then be addressed to the atturneys representing WestCAN. tie NRC Staff. and Entorgy. as the Board deems appropnate.
We will follow this procedure because it is the purpose of this Proceeding to allow the Board to clarify its understanding of WestCANs contentions and the NRC Staffs and the Applicant's responses thereto. it is not the purpose of this oroceeding to entertain general presentations regarding contentions which have already been adequately explained in the pleadings. Likewise. this oroceeding is intended only as an ooottulnity for the Board to question, and the attorneys to explain, that which has previously been submitted. This will not be anl ovidentiary hearino and. without a specific exemption from the Board, the litigants will not be given an opportunity to supplement the already voluminous record at this point in the Proceeding.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARDý'
_/RAL___
Lawrence G. McDade. Chairman ADMINISTRATIVE JUDGE Rockville. MD March 7. 2008 Cooies of this Order were sent this date by Internet e-mail to: (1) Counsel for WestCAN. RCCA, PHASE, tlhe Sierra Club. Atlantic Chapter: and Richard Biodsky, 12) Counsel for the NRC Staff: 13? Coonsel for Entergy: (4) Counsel for the State of New Yom`: (5) Counsel for the State of Connecticut: (6) Counsel for Riverkeeper. Inc.: (7) Nancy Burton. the Representative of CRORIP: (8) Manna Jo Green, the Representative for Clearwater: (9)
Counsel for Westchester County: and (10) Counsel for vie Town of Cortlandt.
EXHIBIT #7
UNITES STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND' LICENSING BOARD Before Admnis*rativf. Judges:
Law,,ence G. McDadc. Chairman Dr. Kaye D. Lathrop Or. Richard E. A'ar(:twell In the Matter oi Ducket Nus. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS. INC.
ASLOP No. 07.858.03-LR-BDO0 (indian Paint Nuclear Generating March 25. 2008 Units 2 and 3)
ORDER (Canceling Oral Argument on WesiCANs Contentions)
In an Order dated March 7. 2008. the Board scheduled oral argument on the admissibility of the contentiohns submitted by Westehester Citizenes Awareness Network.
Rockland County Constrvation Association. Public Health and Sustainable Energy. Sierra Club
- Atlantic Chapter. and Assemblyman Richard Brodsky (collectively "WestCAN'). Pursuant to that Order. oral argurm'ent was to be heard ocn April 1. 2008. at the ASLBP Hearing Room in)
Rockville. Maryland. beginning at 10:00 am. We are now canceling that proceeding.
As stated in that Order. and in our earlier Scheduling Order dated February 29. 2008. it was not our intent at the oral argument to entertain presentations on the contentions Presented.
Rather. it was the Beard's intent to direct,uestions to the-attorneys representing WestCAN. the NRC Staff. and Entercy. as we deemed appropriate. in order to clarify our underslanding of WestCAN's contentions, and tile NRC Staffs and tihe ApPlicant's responses theretu. Expressly.
it was n0ot our intent to entertain general presentations regarding contentions which had already been adequately explained in the pleadings and which we believed were understood by the
Board. The pruceedincj was intended only as an opportunity for the Board to question. and tvh attorneys to explain, that whic;h has previously been submrtted.ý Based orn the Oleadins sUbmitted, and the !nsights into the relevant issues in) this oroCeedino gained by the Board during the oral arguments fhat! were presented in 1.41mite Plains.
Now York. on March 1012. 2C-08. the Board has concluded that its understanding of the issues presented by WestCAN's contentions is adequate to enaole us to properly rule on threir admissibility and would not be materially assisted by oral argum.ent. Accordingly. the additional oral argument scheduled for April I. 2008. has been canceled.
If. during the process of drafting its decision on the admissibility of %VestCAN's contentions, the Board determines that clarification of any issue is necessary. we will schedule additional oral argument at that !tmi.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD' Lawrence G. McDade. Chairman ADMINISTRATIVE JUDGE Rockville. MD March 25. 2008 The Board exoressly slated in our Orders of February 29"' and March 7' that we were scheduling a orocecding at -,%-hich litigants would answer queslions from tmle Board based on the pleadings and exhibits that had oreviously been submitted and that the litigants would not be given an oportunity to supplement thie already voluminous record in conjunction with tMe oral argutnent.
' Copies of this Order were sent this date by I;ternet ermail to: (1) Counsel for WesICAN. RCCA. PHASE, the Sierra Club - Atlantic Chapter: and Richard Brodsky. (2) Counsel for th* NRC Staff. (3) Counsel for Entergy:,4j Counsel for the State of New York: (5) Counsel for the State of Connecticut: (6) Counsel for Riverkeeper, Inc.: (7) Nancy Burton. the Representative of CRORIP; (8) Manna Jo Green. the Representative for Clearwater; (9)
Counsel for Westchester County: and (10) Counsel for the Town of Cortlandt.
EXHIBIT #8
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 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. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BDO1 April 3, 2008 ORDER (Order Relating to Wagner Letter Dated March 31, 2008)
On March 31, 2008, the Board received via electronic mail a copy of a letter sent by Sarah Wagner. Although the letter does not expressly state on whose behalf it was being sent, since Ms. Wagner has entered an appearance in this proceeding on behalf of Westchester Citizen's Awareness Network, Rockland County Conservation Association, Public Health and Sustainable Energy, Sierra Club - Atlantic Chapter, and Assemblyman Richard Brodsky (collectively, "WestCAN"), the Board presumes that the letter was sent on behalf of WestCAN.
The letter requests clarification of the Board's March 25, 2008, Order and asks that the Board reconsider its decision canceling oral argument on the admissibility of WestCAN's contentions.1 First, the correct vehicle for requesting clarification of an Order and/or the reconsideration of an Order is by filing a Motion, not by sending a letter to the Judges who issued the Order. Having noted this error, we shall treat Ms. Wagner's letter as a Motion by WestCAN for Clarification and Reconsideration of the Board's March 25 Order.
1 Licensing Board Order (Canceling Oral Argument on WestCAN's Contentions) (Mar.
25, 2008) [hereinafter March 25 Order].
4 Second, the Board has repeatedly advised the participants in this proceeding that "[a]
motion must be rejected if it does not include a certification by the attorney...
of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion..... " 10 C.F.R. § 2.323(b). Having been advised of this requirement several times, WestCAN did not comply with Section 2.323(b). Accordingly, we are not at liberty to act favorably on WestCAN's Motion.
Third, even if WestCAN had met the procedural requirements of Section 2.323(b), its Motion lacks merit. The Board's March 25 Order was clear, and WestCAN has presented no persuasive argument why we should reschedule oral argument. As stated in that Order, and in our earlier Scheduling Orders dated February 29, 2008,2 and March 7, 2008,' oral argument was intended as an opportunity for the Board to direct questions to the attorneys representing Petitioners, the NRC Staff, and Entergy, as we deemed appropriate, in order to clarify our understanding of contentions that had been submitted, and the NRC Staff's and the Applicant's responses thereto.4 Since we currently have no questions to ask WestCAN, the NRC Staff, or Entergy, regarding the admissibility of WestCAN's Contentions, scheduling an oral argument at this time would serve only to delay this proceeding.
In sum, the Board has concluded that our understanding of the issues would not be materially assisted by oral argument and that our understanding of the issues presented by 2 See Licensing Board Order (Scheduling Oral Argument on the Admissibility of Contentions) (Feb. 29, 2008) [hereinafter February 29 Order].
' See Licensing Board Order (Scheduling WestCAN Oral Argument) (Mar. 7, 2008)
[hereinafter March 7 Order].
4 The Board expressly stated in the Orders of February 29, March 7, and March 25 that we were scheduling oral arguments at which litigants would answer questions from the Board based on the pleadings and exhibits that had previously been submitted and that the litigants would not be given an opportunity to supplement the already voluminous record in conjunction with the oral argument. See February 29 Order at 3-5; March 7 Order at 2-3; March 25 Order at 1-2.
WestCAN's contentions is adequate to enable us to properly rule on their admissibility.
Accordingly, we see no reason to revisit our earlier decision, or to schedule additional oral argument at this time.
Therefore, for the reasons stated above, WestCAN's Motion for Clarification and Reconsideration of the Board's Order of March 25, 2008, is DENIED.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD5 IRA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD April 3, 2008
' Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for WestCAN, RCCA, PHASE, the Sierra Club - Atlantic Chapter; and Richard Brodsky; (2) Counsel for the NRC Staff; (3) Counsel for Entergy; (4) Counsel for the State of New York; (5) Counsel for the State of Connecticut; (6) Counsel for Riverkeeper, Inc.; (7) Nancy Burton, the Representative of CRORIP; (8) Manna Jo Green, the Representative for Clearwater; (9)
Counsel for Westchester County; and (10) Counsel for the Town of Cortlandt.