ML101520226
| ML101520226 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/24/2010 |
| From: | Greene M, Musegaas P, Sipos J, Snook R Hudson River Sloop Clearwater, Riverkeeper, State of CT, Office of the Attorney General, State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-853-03-LR-BD01, RAS E-358 | |
| Download: ML101520226 (10) | |
Text
E-359 DOCKETED USNRC May 24,2010 (1:42pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re:
License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
x Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BDOI DPR-26, DPR-64 May 24, 2010 JOINT RESPONSE OF THE STATE OF NEW YORK, THE STATE OF CONNECTICUT, RIVERKEEPER, AND HUDSON RIVER SLOOP CLEARWATER TO NRC STAFF'S MOTION FOR LEAVE TO PROPOSE TRANSCRIPT CORRECTIONS AND FOR THE SCHEDULING OF A PREHEARING TELEPHONE CONFERENCE Office of theAttorney General for the State of New York The Capitol State Street Albany, New York 12224 T~mrpI14_+,,
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The State of New York, the State of Connecticut, Riverkeeper, Inc., and the Hudson River Sloop Clearwater, Inc. ("intervenors") respectfully submit this joint response to the May 14, 2010 Motion filed by NRC Staff that makes two requests.
The State and intervenors do not oppose Staff's first request, leave to file corrections to the transcript of the April 19, 2010 telephone conference with the Atomic Safety and Licensing Board by May 21, 2010.' Following receipt of Staff s motion, New York, Entergy, and.
intervenors have worked collaboratively to prepare a single, joint chart containing suggested corrections to the April 19 transcript for review by the ASLB. The proposed joint corrections were submitted on May 21 to the ASLB.
Turning to Staff's second request, the State and intervenors take no position on whether, or not, the ASLB should hold a second conference concerning pre-hearing scheduling issues.
The answer to Staff's request lies ultimately within the ASLB's prerogative. The State notes that the participants have had an opportunity to express their positions on such scheduling issues. In addition,, consistent with its communication with Staff during the § 2.323 consultation process that preceded the filing of the Staff's pending motion,2 the State respectfully requests that should the ASLB grant the Staff's request and convene another conference, the Staff should first be required to set forth, in writing, its substantive concerns about the State's and intervenors' The State of New York notes that the transcript did not become available to the public until May 4, 2010, the day the parties filed their written submission concerning scheduling matters. See ADAMS ML1O1 160416 (reflecting May 4,2010 ADAMS docketing date). Should the Board accept the suggested corrections, the State respectfully suggests that NRC request the reporter file a new and corrected version of the April 19 transcript.
2 Staff initiated the 10 C.F.R. § 2.323 consultation process at 2:28 PM on Friday, May 14, 2010 and filed its motionat 6:49PM the same day. The description of the § 2.323 consultation process contained at pages 3-4 of the Staff's May 14 motion should be updated to reflect that Connecticut agreed with the New York's position. Connecticut communicated its position at 8:30AM on Monday, May 17.
scheduling proposal and that the State and other intervenors should be provided an opportunity to respond before any such conference. 3 Alternatively, in place of convening another conference.
the ASLB could authorize NRC Staff simply to set forth in writing its substantive concerns about the State's and intervenors'. scheduling proposal and permit the State and other intervenors an opportunity to file a written response to the Staff's submission.
FACTUAL BACKGROUND The State and Other intervenors provide the following, background that the ASLB may find relevant in ruling on the Staff's motion.
After consultation with the parties, on April 13, 2010 the Board scheduled the telephonic scheduling conference that was held on April 19, 2010. April 13, 2010 Order (Scheduling Telephonic Status Conference). The Order identified the following topics for discussion that bear directly on the issue of the future schedule for various filings:
(3) solicit the views of the participants regarding the establishment of deadlines for the submission of Motions for Summary Disposition; (4) solicit the views of the. participants regarding the time that will be needed between the publication of the FEIS and the commencement of the hearing and an exposition of the events that must occur during that time period; (5) solicit the views of the participants regarding.the scheduling of the submission of statements of position, direct written testimony, exhibits, rebuttal statements of position, rebuttal testimony, and proposed cross-examination; (6) solicit the Views of the participants regarding the establishment of a deadline for any motion to proceed pursuant to subpart G rather that subpart L; (7) solicit the views of the participants regarding any procedures that will promote the fair and expeditious resolution of this proceeding; 3 Entergy already has commented on the scheduling proposals made by the State of New York and other participants. See May 4, 2010 letter from Attorney Paul Bessette to ASLB.
2.
Id. at 2. During the telephonic scheduling conference the Board accorded the parties ample opportunity to discusstheir views on these matters. During the telephonic conference, there was
.some discussion of the issue of filing of statements of position. See Transcript (uncorrected) of 4/19/10 Telephonic Conference at pp. 810-815. After the Board decided to allow the parties a period of time to see if they could work out a proposed schedule for filings and a date for filing either a single mutually agreed-upon schedule, or multiple individual schedules, NRC Staff Counsel Mr. Sherwin Turk stated:
I think it's a great idea that the parties talk amongst themselves.
Maybe: we can come up with a joint written proposal. But I would say at this point may be it's better that we just submit in writing, jointly, if possible, otherwise separately. And then based on that you could determine whether there's a need for a conference call or what the issues should be to address in that conference call. I would go with your original suggestion which is approximately in rd two weeks, by May 3, the parties submit either jointly or separately their positions.
Id.-at 822. At the State's request, the date was changed to May 4, 2010, and Judge Wardwell sought a clarification of exactly what the parties would be filing on May 4 th:
Would everyone clarify what we're gettingon May 4th because I'm getting a little confused here.
As I understood what I heard, is that parties are going to talk among themselves as convenient or as logistics allow and then on May 4h there are going to be written submissions on a suggested scheduling order talking about the various items we just have postponed discussion of Is that a fair assessment of what I just heard?
CHAIRMAN McDADE: That's your understanding Mr. Turk?
MR. TURK: Yes, Your Honor.
CHAIRMAN McDADE: Mr. Bessette?
MR. BESSETTE: Yes, Your Honor.
CHAIRMAN McDADE: Mr. Sipos?
MR. SIPOS: Yes...
3
Id. at 825-26 (emphasis added).
Subsequently Entergy, NRC Staff, the State, and other participants held a number of bilateral and multilateral teleconferences to discuss their respective positions on the schedule.
The participants invested substantial efforts in those discussions and in the preparation of the May 4 submissions. NRC Staff proposed schedules which the participants reviewed and discussed; Entergy and New York proposed modifications to the "single track" schedule, and the participants also reviewed and discussed those modifications. During these conversations and in its proposed schedule, the State noted that fairness and efficiency would be promoted if the applicant and the Staff substantively address the merits of the remaining admitted contentions before an intervenor or other party expended resources preparing pre-hearing testimony. Absent such a "joinder of issue" on the admitted contentions, the State observed the parties might continue on in this proceeding like "two ships passing in the night." Consistent with this reasoning the State proposed in its alternative schedule that either opposing parties file a document setting forth their substantive position regarding the contentions the ASLB admitted at some time before the proponent of a contention filed direct testimony or, alternatively, if the first time the proponent of the contention would learn of the position of the opponents was at the time that the opponents filed their pre-filed testimony, then the proponent of the contention should have 60 days, not 30 days, to file rebuttal testimony to enable it to have time to fully consider the position of the opponents.
When Entergy and Staff indicated they did not agree with the State's proposal and were unable to reconcile all their differences with the State regarding the proposed schedule, it was agreed to file a single proposal that identified the points of disagreement, to briefly express the bases for the disagreement in the proposed schedule and to supplement that statement, if any 4
party wished, with a letter, also to be filed on May 4. The State of New York, along with the State of Connecticut, the Town of Cortlandt, Riverkeeper, and Clearwater filed a letter. Entergy filed a letter. NRC Staff did not.
IF THE ASLB WISHES TO ENTERTAIN ADDITIONAL INFORMATION FROM NRC STAFF, THE ASLB SHOULD REQUIRE STAFF TO SET FORTH STAFF'S POSITION IN WRITING AND PERMIT INTERVENORS TO RESPOND NRC Staff asserts that the State's and intervenors' proposal that a position statement be filed'by opponents of admitted contentions before the proponents were to file direct testimony would "create substantial inequities and inefficiencies in the conduct of this proceeding." NRC Staff Motion at 2. However, Staff provides nothing to support this assertion in its motion, has offered no reasoning during the § 2.323 consultation process that would support this assertion, and failed to file a letter on May 4 expressing its views on that subject. Unless the Staff is required to set forth its position in writing, the State, other intervenors, and the ASLB will be unable to understand the rationale underling the Staff's conclusory statement. Thus, should the ASLB determine to give Staff another opportunity to explain its position, the State respectfully*
suggests the ASLB: (1) direct Staff to promptly provide its position in writing, and (2) provide intervenors and interested governmental entities a corresponding opportunity to respond. 4 As noted above, all parties, including NRC Staff, had ample opportunity to provide the Board with their views on the proposed schedule. As Judge Wardwell clarified, and as all parties (including NRC Staff) agreed, the filing on May 4th was to include'a proposed schedule and 4 Based on its May 4th letter, presumably Entergy supports the Staff on this issue, and therefore no reason exists for Entergy to file a further statement. !However, because intervenors are unaware of the rationale behind Staff s position that the proposal would "create substantial inequities and inefficiencies in the conduct of this proceeding," and thus could not address it in their May 4th letter, the State and intervenors should be allowed to file a response. The State 5
"written submissions."
Transcript (uncorrected) of 4/19/10 Telephonic Conference at p. 826.
The ASLB may wish to entertain Staff s views; however, if that is the case, Staff should be required to do s0.in writing. In addition, the State of New York, the State of Connecticut, Riverkeeper, and Clearwater should be afforded a reasonable opportunity to respond in writing.
NRC Staff also asserts in its motion that the State's and intervenors' May 4 submission inaccurately summarized NRC Staff opposition to the State's and intervenors' scheduling proposal. See NRC Staff Motion at 3, ¶T4. It is difficult to see what basis exists for that assertion. The State did no more than identify the fact that NRC Staff opposition existed and that it reflected, in part, a concern, expressed in Entergy's May 4 letter (p. 3), that filing of statements of position by NRC Staff and Entergy could trigger new contentions. Since NRC Staff and Entergy expressed that position during the multilateral conferences, the State cannot discern how NRC Staff was harmed by the State and intervenors noting Staff's position in their May 4 letter.
Respectfully submitted, John Sipos Janice Dean Assistant Attorneys General State of New York Phillip Musegaas Deborah Brancato Riverkeeper, Inc.
Robert Snook Assistant Attorney General State of Connecticut Manna Jo Greene Hudson River Sloop Clearwater, Inc.
May 24, 2010 proposes that such response be due 5 business days after receipt of the Staff filing.
6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD X
Docket Nos. 50-247-LR and 50-286-LR In re:
License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
x ASLBP No. 07-858-03-LR-BDO1 DPR-26, DPR-64 May 24, 2010 CERTIFICATE OF SERVICE I hereby certify that on May 24, 2010, copies of the Joint Response to NRC Staffs motion for a scheduling conference and to correct a transcript were served by the State of New York on behalf of itself, the State of Connecticut, Riverkeeper, and Clearwater upon the following persons via U.S. Mail and e-mail at the following addresses:
Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 190 Cedar Lane E.
Ridgway, CO 81432 Kaye.Lathrop@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11 545 Rockville Pike Rockville, MD 20852-2738 Zachary S. Kahn, Esq. &
Joshua A. Kirstein, Esq., Law Clerks Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Zachary.Kahn@nrc.gov Josh.Kirstein@nrc.gov I
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North 11555 Rockville Pike
.Rockville, MD 20852-2738 ocaamail@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov Sherwin E. Turk, Esq.
David E. Roth, Esq.
Andrea Z. Jones, Esq.
'Beth N. Mizuno, Esq.
BrianG. Harris, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 sherwin.turk@nrc.gov andrea.jones@nrc.gov david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Mauri T. Lemoncelli, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com mlemoncelli@morganlewis.com cadams@morganlewis.com Martin J. O'Neill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.o'neill@morganlewis.com Elise N. Zoli, Esq.
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com William C. Dennis, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 wdennis@entergy.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 robert.snook@po.state.ct.us Gergory Spicer, Esq.
Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 gss I @westchestergov.com Daniel E. O'Neill, Mayor James Seirmarco, M.S.
Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net 2
Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Jessica Steinberg, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 driesel@sprlaw.com j steinberg@sprlaw.com Michael J. Delaney, Esq.
Vice President - Energy Department New York City Economic Development Corporation (NYCEDC) 110 William Street New York, NY 10038 mdelaney@nycedc.com Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.
112 Little Market St.
Poughkeepsie, NY 12601 Mannajo@clearwater.org Stephen Filler, Esq.
Board Member Hudson River Sloop Clearwater, Inc.
Suite 222 303 South Broadway Tarrytown, NY 10591 sfiller@nylawline.com Ross H. Gould Member Hudson River Sloop Clearwater, Inc.
10 Park Ave, #5L New York, NY 10016 rgouldesq@gmail.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
828. South Broadway Tarrytown, NY 10591 phillip@riverkeeper.org dbrancato@riverkeeper.org
, Po- /-ýý John Sipos Dated at Albany, New York this 24th day of May 2010 3