ML091670447
| ML091670447 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/16/2009 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 07-858-03-LR-BD01, 50-0247-LR, 50-286-LR | |
| Download: ML091670447 (7) | |
Text
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. 50-0247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3)
June 16, 2009 Order (Denying New York States Motion to Strike)
On February 27, 2009, the State of New York (New York or State) filed new and amended contentions concerning the NRC Staffs Draft Supplemental Environmental Impact Statement (Draft SEIS) regarding the license renewal application of Entergy Nuclear Operations, Inc. (Entergy or Applicant) for Indian Point Nuclear Generating Units 2 and 3.1 In its answer thereto, Entergy asserted inter alia that NYS-9 and 17 - environmental contentions of omission - have been rendered moot by the issuance of the Draft SEIS and should therefore be dismissed by the Board.2 In response, New York filed a motion to strike Entergys mootness argument from Entergys answer, arguing inter alia that Entergy should have filed a separate motion to dismiss NYS-9 and 17 as moot.3 Entergy responded to New Yorks motion, asserting that New Yorks arguments were without merit and that Entergy was not required to submit a separate motion to argue that a mooted contention of omission must either be modified by the 1
State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (Feb. 27, 2009).
2 Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State (Mar. 24, 2009) at 17-19, 37-39.
3 Motion to Strike Entergys Mootness Argument From Its March 24, 2009 Answer to the State of New Yorks DEIS Contentions (Mar. 31, 2009) at 1-2.
sponsoring intervenor or disposed of by the Board.4 The NRC Staff also responded to New Yorks motion, asserting that the motion should be denied though the Board should disregard Entergys assertions of mootness unless the Board decides to rule sua sponte on the potential mootness of NYS-9 and 17 in light of the Draft SEIS or Entergy files a motion to dismiss those contentions as moot.5 For the reasons stated below, the Board agrees with the NRC Staff and denies New Yorks motion and disregards Entergys mootness assertions.
NRC regulations and case law provide two different mechanisms for dismissing contentions that have been admitted to a proceeding - either by a motion for summary disposition submitted by a party or if a board decides to do so sua sponte. The regulations clearly set out the requirements of a motion for summary disposition and the schedule for submitting answers thereto.6 These motions are to be filed when a party believes that there is no genuine issue to be heard on any matter in a proceeding.7 Licensing boards also have the authority to dismiss admitted contentions sua sponte. These are the only two options available to dismiss admitted contentions.
The Board does not agree with Entergys reading of applicable case law that an admitted contention of omission must be dismissed as a matter of law if the Draft SEIS has cured the alleged omission.8 The case law simply stands for the proposition that a board should dismiss a contention of omission, if it has been cured in subsequent documentation and not amended by the petitioner, assuming that issue has been properly brought before the board in the form of a motion for summary disposition or if the board chooses to do so sua sponte. This Board believes that if an admitted contention has been cured by a subsequent filing it would not be 4
Answer of Entergy Nuclear Operations, Inc. to New York States Motion to Strike Entergys Contention Mootness Arguments (Apr. 13, 2009) at 1-2 [hereinafter Entergy Answer].
5 NRC Staffs Answer to State of New Yorks Motion to Strike Entergys Mootness Argument From Its March 24, 2009 Answer to the State of New Yorks DEIS Contentions (Apr. 13, 2009) at 1.
6 See 10 C.F.R. § 2.710, 2.1205.
7 Id. § 2.710(a).
8 See Entergy Answer at 2-5.
proper to ignore this new information and allow the contention to go forward to a hearing on the merits. In that situation, the Board could act sua sponte and ask for briefing on the issue so that each party would have the full opportunity to address the issue before the Board, or the opposing party could file a motion for summary disposition under the regulations and the Board would consider the motion and the responses thereto.
If Entergy believes an admitted contention is now moot and should be dismissed it should say so in a motion before the Board. However, we deny New Yorks motion to strike the mootness argument because it is unnecessary to do so. Allowing the mootness argument to remain in Entergys pleading does not properly put the dismissal of NYS-9 and 17 before the Board. The Board reads Entergys pleading only for its arguments regarding the admission of New Yorks new and amended contentions.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD9
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland June 16, 2009 9
Copies 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 Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Alfred J. Donahue, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR
) 50-286-LR
)
(Indian Point Nuclear Generating Station, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (DENYING NEW YORK STATES MOTION TO STRIKE) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sherwin E. Turk, Esq.
Administrative Judge Beth N. Mizuno, Esq.
Lawrence G. McDade, Chair David E. Roth, Esq.
Brian Harris, Esq.
Administrative Judge Andrea Z. Jones, Esq.
Richard E. Wardwell Karl Farrar, Esq.
Brian Newell, Paralegal Administrative Judge Kaye D. Lathrop 190 Cedar Lane E.
Ridgway, CO 81432 Zachary S. Kahn, Law Clerk
2 Docket Nos. 50-247-LR and 50-286-LR ORDER (DENYING NEW YORK STATES MOTION TO STRIKE)
William C. Dennis, Esq. Andrew M. Cuomo, Attorney General Assistant General Counsel John J. Sipos, Assistant Attorney General Entergy Nuclear Operations, Inc. Mylan L. Denerstein 440 Hamilton Avenue Deputy Assistant Attorney General White Plains, NY 10601 Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq. Joan Leary Matthews, Esq.
Paul M. Bessette, Esq. Senior Attorney for Special Projects Martin J. ONeill, Esq. New York State Department Mauri T. Lemoncelli, Esq. of Environmental Conservation Counsel for Entergy Nuclear Operation, Inc. 625 Broadway, 14th Floor Morgan, Lewis & Bockius, LLP Albany, New York 12233-5500 1111 Pennsylvania Avenue, NW Washington, DC 20004 Michael J. Delaney Robert D. Snook, Esq.
Vice President, Energy Department Office of The Attorney General New York City Economic Development State of Connecticut Corporation (NYCEDC) 55 Elm Street 110 William Street P.O. Box 120 New York, NY 10038 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman Stephen C. Filler, Board Member New York Affordable Reliable Electricity Hudson River Sloop Clearwater, Inc.
Alliance (AREA) 303 South Broadway, Suite 222 347 Fifth Avenue, Suite 508 Tarrytown, NY 10591 New York, NY 10016
3 Docket Nos. 50-247-LR and 50-286-LR ORDER (DENYING NEW YORK STATES MOTION TO STRIKE)
Daniel E ONeill, Mayor Manna Jo Greene, Environmental Director James Siermarco, M.S. Hudson River Sloop Clearwater Liaison to Indian Point 112 Little Markey Street Village of Buchanan Poughkeepsie, NY 12601 Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 Thomas F. Wood, Esq. Nancy Burton, Esq.
Town of Cortlandt Connecticut Residents Opposed Daniel Riesel, Esq. to Relicensing of Indian Point (CRORIP)
Jessica Steinberg, J.D. 147 Cross Highway Counsel for the Town of Cortlandt Redding Ridge, CT 06876 Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 Elise N. Zoli, Esq. Justin D. Pruyne Goodwin Proctor, LLP Assistant County Attorney, Litigation Bureau Exchange Place Of Counsel to Charlene M. Indelicato, Esq.
53 State Street Westchester County Attorney Boston, MA 02109 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA Westchester Citizens Awareness Network John LeKay (WestCan), Citizens Awareness Network, Heather Ellsworth Burns-DeMelo (CAN), et al Remy Chevalier Susan H. Shapiro, Esq.
Bill Thomas 21 Pearlman Drive Belinda J. Jaques Spring Valley, NY 10977 351 Dyckman Street Peekskill, New York 10566 Victor M. Tafur, Senior Attorney Richard L. Brodsky Philip Musegaas, Esq. Assemblyman Deborah Brancato, Esq. 5 West Main Street Riverkeeper, Inc. Suite 205 828 South Broadway Elmsford, NY 10523 Tarrytown, NY 10591
4 Docket Nos. 50-247-LR and 50-286-LR ORDER (DENYING NEW YORK STATES MOTION TO STRIKE)
Diane Curran, Esq. Sarah L. Wagner, Esq.
Counsel for Riverkeeper, Inc. Legislative Office Building, Room 422 Harmon, Curran, Spielberg, Albany, NY 12248
& Eisenberg, LLP 1726 M. Street NW, Suite 600 Washington, DC 20036
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 16th day of June 2009