ML101310551
| ML101310551 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/04/2010 |
| From: | Bessette P, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS E-351 | |
| Download: ML101310551 (16) | |
Text
Morgan, Lewis & Bockius LLP 1000 Louisiana Street Suite 4200 Morgan L
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HousonTX 7002COUNSELORS AT LAW Houston, TX 77002 Tel: 713.890.5000 DOCKETED Fax: 713.890.5001 USNRC www.morganlewis.com May 5, 2010 (8:30am)
Kathryn M. Sutton Partner OFFICE OF SECRETARY 202.739.5738 RULEMAKINGS AND ksutton@morganIewis.com ADJUDICATIONS STAFF Paul M. Bessette Partner 202.739.5796 pbessette@morganlewis.com May 4, 2010 Lawrence G. McDade, Chairman Dr. Richard E. Wardwell Dr. Kaye D. Lathrop Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Docket:
Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR and 50-286-LR RE:
Proposed Hearing! Schedules for IPEC License Renewal Proceeding
Dear Administrative Judges:
During the April 19, 2010 telephonic status call, the Board directed the hearing participants to confer regarding possible schedules for the conduct of the remainder of this proceeding, including evidentiary hearings on admitted safety and environmental contentions. Following numerous communications with the other hearing participants, NRC Staff counsel circulated two proposed hearing schedules on April 28, 2010 to facilitate this effort. The first schedule reflected a "single-track" or consolidated hearing on all remaining admitted contentions. The second schedule reflected "dual-track" or "bifurcated" hearings on safety and environmental contentions, respectively. The other hearing participants provided comments on the proposed schedules on April 30, 2010. On May 3, 2010, at 10 AM, the participants held a conference call to discuss the comments and seek reasonable agreement on a proposed hearing schedule.
As an initial matter, Entergy believes that a bifurcated hearing schedule is a viable option available to the Board that, given the status and complexity of the case (i.e., number of participants, number of contentions, and delays in issuance of the Final Supplemental Environmental Impact Statement (FSEIS)), may offer certain advantages. Such advantages may include simpler logistics (e.g., in convening counsel, witnesses, and Board members) and separate, focused hearings on safety and environmental issues. Also, it would allow the hearing participants and Board the opportunity to get 7ýAfýLA7r-
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Morgan Lewis Lawrence G. McDade, Chairman COUNSELORS AT LAW Dr. Richard E. Wardwell Dr. Kaye D. Lathrop May 4, 2010 Page 2 of 4 a substantial portion of the evidentiary hearings "under their belts" sooner in the proceeding. For reference only, attached is a copy of the draft bifurcated schedule distributed by NRC Staff to the participants for preliminary discussions.
Nevertheless, during the May 3, 2010, 10 AM conference call, New York State, Riverkeeper, Clearwater, Cortlandt and the State of Connecticut expressed a strong preference for a single-track, consolidated hearing (which also may expedite issuance of the Board's final merits decision on all contentions). Therefore, the majority of the remaining discussions during that conference call focused on the content of the proposed consolidated schedule.
After the 10 AM call, Entergy counsel distributed to the other representatives a revised proposed consolidated schedule that attempted to reasonably address the comments of the hearing participants.
On May 3, 2010, at 4 PM, the hearing participants held a second conference call to discuss comments on the revised proposed consolidated schedule. Although the participants were able to agree on certain items, they were not able to achieve full consensus on a single proposed schedule.
After the 4 PM conference call, Entergy counsel redistributed the proposed schedule to allow the participants to submit individual comments to the Board based on the revised proposed consolidated schedule. Earlier today, counsel for New York State forwarded a revised version of the proposed schedule incorporating the recommendations and associated comments of the intervenors and interested state/government participants. That version of the schedule, which now reflects all participants' recommendations, is enclosed as Attachment 1. Please note that Attachment I is based on currently-admitted contentions. Proposed contentions submitted by Clearwater (waste confidence rule) and New York (SAMA) are pending before the Commission and Board, respectively.
During the participants' discussions, two key areas of impasse were evident: (1) the time allotted for certain filings (e.g., amended/new contentions, responses to motions, rebuttal testimony) and (2) the sequence and timing of the participants' written evidentiary presentations (initial statements of position, prefiled direct and rebuttal testimony). With regard to filing due dates, Entergy and the Staff believe that the dates reflected in the third and fifth columns of Attachment I represent reasonable expectations for filings that take into account established NRC deadlines, the number and complexity of admitted issues, and the concerns expressed by the other hearing participants. As noted above, however, the other participants have included comments on certain individual due dates on the attached proposed schedule that reflect their preferences and recommendations.
With regard to the second issue, the intervenors and interested governmental bodies have suggested that Entergy and NRC Staff should submit summaries of their positions on admitted contentions before the contentions' proponents are required to submit their initial position statements and prefiled direct testimony. John Sipos of New York State suggested that requiring Entergy and the NRC Staff to file initial position statements first would enable New York (and presumably other participants) to better understand the positions of Entergy and the Staff on specific contentions and to better tailor
Morgan Lewis Lawrence G. McDade, Chairman COUNSELORS AT LAW Dr. Richard E. Wardwell Dr. Kaye D. Lathrop May 4,2010 Page 3 of 4 their position statements and hearing testimony. Accordingly, Attachment 1 includes a placeholder for such filings (see line 22).
Entergy respectfully disagrees with the approach suggested by New York State. First, it is well-established that, "[w]hile an applicant has the ultimate burden of proof on any issues upon which a hearing is held, hearings are held on only those issues that an intervenor brings to the fore." Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-05-12, 61 NRC 319, 326 (2005), aff'd, Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403 (2005). Therefore, "the burden of going forward on any issues that make it to the hearing process is on the intervenor that is pursuing that issue." Id. Also, while Entergy believes that a focused efficient hearing is a laudable, common goal of all the participants, it is concerned that requiring preliminary applicant and NRC position statements, in addition to intervenor prefiled testimony, applicant and NRC Staff prefiled testimony, and intervenor rebuttal testimony, would add unnecessary redundancy, complexity and possible delays to the hearing schedule. Specifically, Entergy would hope to avoid the filing of motions in limine, motions for additional time to review the statements, or even new/amended contentions based on such position statements.
Therefore, Entergy proposes that the intervenors submit their initial position statements and testimony first, followed by Entergy and the NRC Staff. The intervenors, in turn, would then submit rebuttal statements and testimony. Entergy sees no prejudice in this filing sequence, which is consistent with the approach followed by the Board in the Vermont Yankee license renewal proceeding. See Entergy Nuclear Vt. Yankee, L.L.C. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Initial Scheduling Order at 10-11 (Nov. 17, 2006). Alternatively, the parties may file both their initial and rebuttal statements of position and testimony simultaneously. This approach also is consistent with NRC regulations and adjudicatory practice.
See, e.g., 10 C.F.R. § 2.1207(a)(1)-(2).
Entergy remains amenable to further discussions with the other participants and Board so that a firm hearing schedule is established for this proceeding. To the extent the Board prefers the filing of preliminary position statements by Entergy, the NRC, or other parties, Entergy respectfully suggests that the scope and content of such position statements, and any responses by the parties thereto, be clearly defined in advance such that the goals of an efficient, focused hearing are in fact achieved.
Finally, Entergy notes that the proposed schedule in Attachment 1 was developed to provide a common platform or basis for the participants to provide their respective views on key hearing milestones and associated filing dates. Although Entergy has agreed to transmit the proposed hearing schedule and attempted to portray accurately the events of the past two weeks, it does not purport to speak for all other participants in this transmittal letter, especially on issues where there may be differences of opinion.
Morgan Lewis Lawrence G. McDade, Chairman COUNSELORS AT LAW Dr. Richard E. Wardwell Dr. Kaye D. Lathrop May 4, 2010 Page 4 of 4 Counsel for Entergy thanks the representatives of all participants for their diligent efforts and cooperation in developing an initial proposed schedule for the Board's consideration. The process has required extensive interactions among the parties.
Respectfully submitted, Kathrfn M. Sutton, Esq.
Paul M. Bessette, Esq.
Counsel for Entergy Nuclear Operations, Inc.
Attachments:
(1)
Proposed Hearing Schedule - Consolidated Hearings on All Safety & Environmental Contentions (Reflects Revisions and Comments by the Participants)
(2)
Proposed Schedule - Simplified to Establish a Two Track Proceeding (For Information Only
- Does Not Reflect any Comments, Revisions, or Agreements by the Participants) cc:
Service List
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
)
)
Docket Nos.
50-247-LR and 50-286-LR May 4, 2009 CERTIFICATE OF SERVICE I hereby certify that copies of the letter entitled "Proposed Hearing Schedule for IPEC License Renewal Proceeding," dated May 4, 2010, were served this 4th day of May, 2010 upon the persons listed below, by first class mail and e-mail as shown below.
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: lgml1 nrc.gov)
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 (E-mail: rewgnrc.gov)
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 (E-mail: ocaamailgnrc.gov)
Administrative Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane E.
Ridgway, CO 81432 (E-mail: kdl2@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)
Zachary S. Kahn, Law Clerk Josh Kirstein, Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxk 1 @nrc.gov)
(E-mail: Josh.Kirsteingnrc.gov)
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: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: setknrc.gov)
(E-mail: bnml (nrc.gov)
(E-mail: david.rothgnrc.gov)
(E-mail: brian.harrisgnrc.gov)
(E-mail: andrea.jones(cnrc.gov)
Manna Jo Greene Environmental Director Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Beacon, NY 12508 (E-mail: mannaio(2clearwater.org)
Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222 Tarrytown, NY 10591 (E-mail: sfillergnylawline.com)
Greg Spicer, Esq.
Office of the Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 (E-mail: gssl 1westchestergov.com)
Thomas F. Wood, Esq.
Daniel Riesel, Esq.
Ms. Jessica Steinberg, J.D.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 (E-mail: driesel@sprlaw.com)
(E-mail: isteinberg2sprlaw.com)
John Louis Parker, Esq.
Regional Attorney Office of General Counsel, Region 3 NYS Dept. of Environmental Conservation 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: Ilparkerkgw.dec.state.ny.us)
Michael J. Delaney, V.P. - Energy New York City Economic Development Corp.
110 William Street New York, NY 10038 (E-mail: mdelaney(2nycedc.com)
Ross Gould, Member Hudson River Sloop Clearwater, Inc.
10,Park Avenue, #5L New York, NY 10016 (E-mail: rgouldesqcgmail.com)
p Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 (E-mail: phillipgriverkeeper.org)
(E-mail: dbrancato@riverkeeper.org)
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.Snookkpo.state.ct.us)
Andrew M. Cuomo, Esq.
Attorney General of the State of New York John J. Sipos, Esq.
Charlie Donaldson Esq.
Assistants Attorney General The Capitol Albany, NY 12224-0341 (E-mail: iohn.siposgoag.state.ny.us)
Daniel E. O'Neill, Mayor James Siermarco, M.S.
Liaison to Indian Point Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 (E-mail: vobgbestweb.net)
Mylan L. Denerstein, Esq.
Executive Deputy Attorney General, Social Justice Office of the Attorney General of the State of New York-120 Broadway, 2 5 th Floor New York, New York 10271 (E-mail: Mylan.Denersteingoag.state.ny.us)
Janice A. Dean Office of the Attorney General of the State of New York Assistant Attorney General 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Dean goag.state.ny.us)
Joan Leary Matthews, Esq.
Senior Attorney for Special Projects Office of the General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, NY 12207 (E-mail: ilmatthe(gw.dec.state.ny.us)
Original and 2 copies provided to the Office of the Secretary.
Martin J. O'Neill, Esq.
Counsel for Entergy Nuclear Operations, Inc.
DBI/64783911
ATTACHMENT 1 IPEC License Renewal Proceeding - Proposed Hearing Schedule Consolidated Hearings on All Safety & Environmental Contentions Note: This proposed hearing schedule is based on currently-admitted contentions. Proposed contentions submitted by Clearwater (waste confidence rule) and New York (SAMA) are pending before the Commission and Board, respectively.
fl4 2
Intervenor Replies to Entergy &
Staff Answers Re Amended/New Contentions Based on RPV Internals AMP 10 days (7 days to file replies per 10 CFR 2.309(h)(2))
Entergy & Staff Answers to Amended/New Contentions Based On Metal Fatigue Calculations 25 days to file answers per 10 CFR 2.309(h)(1)
ASLB Ruling on Amended/New Contentions Based on RPV Internals AMP 30 days after FSEIS to file contentions per ASLB proposal New York State representation during Apr. 19, 2010 ASLB conference.
Intervenor Replies to Entergy/Staff Answers to Amended/New Contentions Based On Metal Fatigue Calculations 7 days to file replies per 10 CFR 2.309(h)(2)
Entergy & NRC Staff Answers to Amended/New Contentions Based on FSEIS 25 days to file answers per 10 CFR 2.309(h)(1)
Intervenor Replies to Entergy/Staff Answers re Amended/New Contentions Based on FSEIS 7 days to file replies per 10 CFR 2.309(h)(2) 3
4
Update of Mandatory Disclosures and Hearing File, Including Final List of Witnesses for All Admitted Contentions.
Apr. 15, 2011 (F) 10 days after ASLB ruling on SD Apr. 15, 2011 (F) 10 days after ASLB ruling on SD Interested states and governments identify which contentions they plan to participate.
Approximately 2 weeks before filing of initial testimony. Entergy:
Recommend that monthly mandatory disclosure obligations end approximately 2 weeks prior to filing prefiled testimony.
Thereafter, should relevant information come to light that warrants disclosure, the parties will notify the Board.
See Memorandum and Order, Oyster Creek License Renewal Proceeding, Apr.
17, 2007. ML071070437 Intervenors believe the obligation to continue disclosures at least up to the hearing is mandated by NRC Regulations. See 10 C.F.R. 2.336(d) and 2.1203(c); see also Vermont Yankee License Renewal Scheduling Order (Nov.
17, 2006) slip op. at 4 (" The duty to update mandatory disclosures and the hearing file shall terminate at the close of the evidentiary hearing.")
22 Summary of Initial Positions with a Apr. 15, 2011 (F) 10 days after the Apr. 15, 2011 (F) 10 days after the To be filed by Applicant, To be filed by Applicant, NRC detailed statement of position as to ASLB ruling in 20 ASLB ruling in NRC staff, and/or Staff. See Intervenors' comments each basis and supporting evidence above 20 above.
intervenors. Entergy: See in May 4, 2010 Letter to ASLB and declaration in the Contention Entergy comments in May 4, that has not been dismissed by SD.
2010 Letter to ASLB.
23 Intervenors' Initial Statements of May 2, 2011 (M) 21 days after May 2, 2011 (M) 21 days after Assume parties have been See Intervenors' comments in Position, Prefiled Direct Testimony, disclosures in event disclosures in preparing testimony and file May 4, 20 10 Letter to ASLB Affidavits, and Exhibits Due 22 above event 22 above testimony 30 days after ruling on summary disposition motions.
5
6
I I
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ATTACHMENT 2 I
FOR INFORMATION ONLY - DOES NOT REFLECT ANY COMMENTS, AGREEMENTS OR REVISIONS BY THE HEARING PARTICIPANTS Proposed Schedule - Simplified to Establish a Two Track Proceeding Milestone Safety Safety Safety Environmental Contentions Contention Contention Contentions NYS 5, 617, 8, 24 NYS 25 NYS 26126A Riverkeeper TC-2 1
Further Submissions 06/30/10 (W) 07/30/10 (F) by Entergy 2
Issuance of FSEIS 08/31/10 (T) 3 New Contentions Due 09/30/10 (Th)
(30 days) 4 Responses to New 10/25/10 (M)
Contentions (25 days) 5 Replies to Responses 11/01/10 (M) on Contentions (7 days) 6 Board Ruling on 12/01/10 (W)
Contentions (30 days)
6/20/11 7
Summary Disposition 06/15/10 (T) 07/30/10 (F) 08/20/10 (F) 6/7/11 (T)
Motions (30 days)
(21 days)
(45 days after Reply Findings) 8 Answers to SD 07/06/10 (T) 08/20/10 (F) 09/09/10 (Th) 06/28/11 (T)
Motions (21 days)
(21 days)
(20 days)
(21 days) 9 Board Ruling on SD 08/5/10 (Th) 09/20/10 (M) 10/11/10 (M) 07/28/11 (Th)
Motions (30 days)
(30 days)
(30 days)
(30 days) 10 Intervenors Initial 11/1/10 (M) 11/1/10 (M) 11/1/10 (M) 08/29/11 (M)
Direct Testimony, (88 days)
(42 days)
(21 days)
(30 days)
Exhibits and Position Statements 11 Entergy and NRC 11/22/10 (M) 9/19/11 (M)
Staff Initial Testimony, (21 days)
(21 days)
Exhibits, and Position Statements 12 Intervenors Rebuttal 12/13/10 (M) 10/10/11 (M)
Testimony, Exhibits &
(21 days)
(21 days)
Position Statements 13 Motions in Limine on 12/23/10 (Th) 10/20/11 (Th)
All Prefiled Testimony (10 days)
(10 days) 14 Responses to 1/5/11 (W) 10/27/11 (Th)
Motions (10 days plus holidays)
(7 days) 15 Board Ruling on 1/19/11 (W) 11/10/11 (Th)
Prefiled Testimony (14 days)
(14 days)
Motions 16 Parties to File 2/2/11 (W) 11/28/11 (M)
Proposed Board (14 days) 14 days plus Questions for holiday)
Witnesses 17 Hearings 2114/11 (M) 1215/11 (M Commence (12 days)
(7 days))
18 Hearings Conclude No Later Than 3/4/11 (F) 12123/11 (F)
(3 weeks or 14 hearing days)
(3 weeks) 19 Applicant's Proposed 4/4/11 (M) 1/23/12 (M)
Findings of Fact and (31 days)
(31 days)
Conclusions of Law 20 Other Parties' 4/14/11 (Th) 1/30/12 (M)
Proposed Findings (10 days)
(10 days) and Conclusions 21 Applicant's Reply 4/21/11 (Th) 2/6/12 (M)
Proposed Findings (7 days)
(7 days) and Conclusions 22 Partial Initial 06120111 (M) 04/6112 (F)
Decision (60 days)
(60 days)