ML110740285

Applicant'S Motion to Strike

ML110740285
Person / Time
Site:	Indian Point
Issue date:	03/04/2011
From:	Sutton K Morgan, Morgan, Lewis & Bockius, LLP, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RASE-475
Download: ML110740285 (14)

Text

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7 DOCKETED March 7, 2011 (8:30 a.m.)

7 5 OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

)S 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

)_ March 4, 2011 APPLICANT'S MOTION TO STRIKE I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), Entergy Nuclear Operations, Inc. ("Entergy"),

applicant in the above-captioned proceeding, files this motion to strike the filings of Hudson River Sloop Clearwater, Inc. ("Clearwater") and Riverkeeper, Inc. ("Riverkeeper") (collectively, "Petitioners") dated February 25, 2011. Specifically, Entergy moves to strike the "Petition for Exemption from or Waiver of Restrictions Contained in 10 C.F.R. § 51.23(b)" ("Waiver Petition"), the "Declaration of Manna Jo Green [sic]" ("Greene Declaration"), and the "Expert Witness Declaration of Arnold Gundersen Regarding Aging Management of Nuclear Fuel Racks" ("Gundersen Declaration"), in their entireties, and moves to strike specified limited portions of the "Combined Reply to NRC Staff and Entergy's Answers in Opposition to Clearwater and Riverkeeper's Joint Motion for Leave and Petition to Add New Contentions"

("Combined Reply").'

As discussed below, the Combined Reply includes new arguments, is accompanied by a new declaration (the Gundersen Declaration), and raises new factual information that is not All of these February 25, 2011 filings currently are not yet publicly available on ADAMS.

within the scope of Petitioners' New Contentions. 2 Despite the presentation of new arguments and factual information, Petitioners make no attempt to satisfy the standards governing late-filed contentions set forth in 10 C.F.R. § 2.309(c) and (f)(2). Accordingly, this new information should be stricken.

Moreover, instead of filing a waiver petition at the time of their New Contentions (as did another intervenor, New York State), Petitioners waited an additional month to do so-i.e., until after Entergy and the NRC Staff submitted their answers. The Board, however, has previously advised all of the parties to this proceeding to file waiver petitions "as soon as practicable with the understanding that a failure to [do] so may well result in the rejection of an otherwise meritorious petition." 3 Rehabilitating and bolstering proposed contentions through an untimely Waiver Petition and the new Greene Declaration is impermissible under the Rules of Practice.

Accordingly, the Board should strike the Waiver Petition and Greene Declaration in their entireties.

In the alternative, if the Board does not grant this motion to strike, then Entergy moves the Board to establish a deadline for responses to the Waiver Petition. While 10 C.F.R.

§ 2.335(b) grants other parties the right to respond to a waiver request, it does not specify a deadline for such responses. Thus, in the event that the Board does not strike the Waiver Petition and Greene Declaration, Entergy respectfully requests that the Board set a due date of March 22, 2011 for all responses to the Waiver Petition, including any objections thereto on timeliness and 2 See Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'s Joint Motion for Leave to Add New Contentions Based Upon New Information and Petition to Add New Contentions (Jan. 24, 2011) ("New Contentions"), availableat ADAMS Accession No. ML110330089.

3 Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Scheduling Prehearing Conference and Ruling on New York State's Motion Requesting Consideration of Additional Matters) at 4 (Dec. 18, 2008) (unpublished). This order also set forth the Board's standards for evaluating the timeliness of waiver petitions in this proceeding (including the nature of the request, materiality of the issue, resulting delay, and time elapsed prior to filing). See id. The Waiver Petition does not recognize or address those standards. These factors, however, are addressed generally in this motion. Entergy, however, reserves its rights to fully address these factors should it be required to file an answer to the Waiver Petition in conjunction with the request for alternative relief set forth herein.

substantive grounds. The requested due date, which is 25 days from the filing of the Waiver Petition, is consistent with prior Board Orders in this proceeding.4 In addition, given the proposed due date for responses to the Waiver Petition, Entergy respectfully requests that the Board consider and issue a ruling on this motion on an expedited 5

basis.

II. BACKGROUND On January 24, 2011, Petitioners jointly filed their New Contentions, which included a total of four newly-proposed contentions: two safety and two environmental.6 The New Contentions relied upon allegedly new information in the Commission's recent amendments to the Waste Confidence Rule. 7 On February 18, 2011, Entergy and the NRC Staff each filed answers opposing Petitioners' New Contentions on numerous grounds, principally because the New Contentions improperly challenged the Commission's Waste Confidence Rule, 8 lacked 4 See Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Extending Page Limits and Establishing Deadline for Filing Responses to Waiver Petition) (Feb. 1,2011) (unpublished) (establishing a 25-day deadline for responses to a waiver petition); Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Clarifying Time for Entergy to File Answer to CRORIP 10 C.F.R. 2.335 Petition) at 1 (Jan. 2, 2008) (unpublished) (ordering responses to be filed 43 days after the waiver petition, the same date that answers to the related contention were due to be filed); Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2

& 3), Licensing Board Order (Authorizing FUSE to Submit a Section 2.335 Petition) at 3 (Nov. 21, 2007) (unpublished)

(ordering responses to be filed 28 days after the waiver petition).

5 See, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station,.Units 2 & 3), CLI-05-24, 62 NRC 551, 566-67 (2005) (explaining the Commission's policy of "expediting the handling of license renewal applications); Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2197 (Jan. 14, 2004) (noting that under the rules in Part 2 the presiding officer is required to establish a schedule for the proceeding and to manage the case against that schedule).

6 See New Contentions at 17-18.

.7 See Waste Confidence Decision Update, 75 Fed. Reg. 81,037 (Dec. 23, 2010); Final Rule, Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010).

See Applicant's Answer to Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'s New Contentions Concerning the Waste Confidence Rule at 12-14 (Feb. 18, 2011) ("Applicant's Answer") (currently not publicly available on ADAMS);

NRC Staff's Answer to Hudson River Sloop Clearwater, Inc. and Riverkeeper, Inc.'s Joint Motion and Petition to Add New Contentions at 22-26 (Feb. 18, 2011) ("NRC Staff's Answer"), availableat ADAMS Accession No. MLI11054070.

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support in the form of alleged facts or expert opinion, 9 and failed to raise a genuine dispute on a 0

material issue of law or fact.'

On February 25, 2011, Petitioners filed their Combined Reply with its supporting Gundersen Declaration, and the Waiver Petition with its supporting Greene Declaration. As discussed in Section IV below, these documents contain entirely new arguments, references, and factual information that Petitioners could have submitted a month ago. These untimely new arguments and information should be accordingly stricken from the record.

III. LEGAL STANDARDS A reply is intended to give a petitioner an opportunity to address arguments raised in the opposing parties' answers.'1 A reply may not be used as a vehicle to introduce new arguments or support, may not expand the scope of arguments set forth in the proposed contention, and may not attempt to cure an otherwise deficient contention.' 2 As the Commission has stated:

It is well established in NRC proceedings that a reply cannot expand the scope of the arguments set forth in the original hearing request [or, in this case, a newly-proposed contention]. Replies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it.

New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, 9 See Applicant's Answer at 8 & n.34, 18-20, 23.

10 See generally Applicant's Answer at 21-23; NRC Staff's Answer at 30-31.

See La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).

12 See FirstEnergyNuclear OperatingCo. (Davis-Besse Nuclear Power Station, Unit I), Licensing Board Memorandum and Order at 3 (Feb. 18, 2011) (unpublished) ("Davis-Besse Order") (granting a motion to strike specified portions of a reply brief because the relevant "portions of the Combined Reply and the Attachment impermissibly attempt to expand the scope of Contention 4 and attempt to add new bases and supporting material for the contention"); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 182, 198-99 (2006) (granting in part a motion to strike and finding that petitioners impermissibly "expand[ed] their arguments" by filing a second declaration from their expert in a reply brief that provided additional detail regarding the proposed contention); NuclearMgmt. Coý,

LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63 (refusing to consider references to various documents identified in a petitioner's reply that were not included in the original petition), aff'd, CLI-06-17, 63 NRC 727 (2006).

unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2)."3 This prohibition on new arguments in replies reflects the Commission's interest in 4

conducting adjudicatory hearings efficiently and consistent with basic principles of fairness.1 As the Commission has explained: "As we face an increasing adjudicatory docket, the need for parties to adhere to our pleading standards and for the Board to enforce those standards are paramount."' 5 Absent such discipline and preparedness on the part of petitioners, there would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements every time they realize[d] . . . that maybe there was something after all to a challenge it either originally opted not to make or which simply did not occur to it at the outset. 6 Accordingly, a petitioner must include all of its arguments and claims in its initial filing. Allowing a petitioner to amend or supplement its pleadings in reply to the applicant's or NRC Staff's answer would defeat the purpose of the NRC's contention pleading requirements "by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them later."'17 Moreover, because NRC regulations do not allow the applicant to respond to a petitioner's reply,' 8 principles of fairness mandate that a petitioner restrict its reply brief to addressing issues raised in the Applicant's or the NRC Staffs Answers. Allowing new claims in a reply not only defeats the contention-filing deadline, it also unfairly deprives other participants 13 Palisades,CLI-06-17, 63 NRC at 732 (citation omitted).

14 See La. Energy Servs., L.P. (Nat'i Enrichment Facility), .CLI-04-35, 60 NRC 619, 622-23 (2004) ("The Commission has made numerous efforts over the years to avoid unnecessary delays and increase the efficiency of NRC adjudication and our contention standards are a cornerstone of that effort.").

15 La. Energy Servs., L.P., CLI-04-25, 60 NRC at 225.

16 Duke Energy Corp. (McGuire Nuclear Station, Units I & 2; Catawba Nuclear Station, Units I & 2), CLI-03-17, 58 NRC 419, 428-29 (2003) (internal quotation marks and citations omitted), quoted with approvalin CLI-04-25, 60 NRC at 224-25.

17 La. Energy Servs., CLI-04-35, 60 NRC at 622-23 (2004)."

18 See 10 C.F.R. § 2.309(h)(3).

of an opportunity to rebut the new claims.19 Thus, in Commission practice, and in litigation practice *generally, new arguments may not be raised for the first time in a reply brief.20 Any such new and improper arguments should be stricken from the record. 2 '

IV. BASES FOR MOTION TO STRIKE A. The Board Should Strike Petitioners' Combined Reply In Part and the Gundersen Declaration In Its Entirety Petitioners' Combined Reply contains new arguments and relies on new factual information, including the Gundersen Declaration, that was not submitted with the New Contentions, and therefore should be stricken. First, on page 7, note 5, Petitioners, for the first time, reference and attempt to raise technical disputes with certain portions of Entergy's aging management program for the Indian Point spent fuel pools, citing the new Gundersen Declaration for support. 22 Entergy seeks to strike note 5 in its entirety.

Second, on page 11, Petitioners cite NRC Information Notice 2009-26.23 They also again cite the Gundersen Declaration as new factual support for their allegation that "Entergy has failed to provide adequate aging management plans for the spent fuel pool during this period[,]"

i.e., the period commencing 60 years after the expiration of the license. 24 The New Contentions 19 See Palisades,CLI-06-17, 63 NRC at 732.

20 See La. Energy Servs., CLI-04-25, 60 NRC at 225. See also Changes to the Adjudicatory Process, 69 Fed. Reg. at 2203 (reply should be narrowly focused on the legal or logical arguments presented in the other party's answer).

21 A licensing board has the authority to strike individual arguments and exhibits. See, e.g., 10 C.F.R. § 2.319 (stating that the presiding officer has all the powers necessary "to take appropriate action to control the preheating... process"). See also Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 &4), LBP-08-16, 68 NRC 361, 376-77, 399-400,407, 429 (2008) (granting the applicant's motion to strike portions of petitioners' reply that contained new arguments and factual allegations (including a new affidavit and reports) in an attempt to cure deficiencies in the proposed contentions in the petition to intervene); Davis-Besse Orderat 3 (striking specified new material filed in reply that expanded the scope of a proposed contention through new bases and supporting material).

22 Combined Reply at 7 n.5.

23 NRC Information Notice 2009-26: Degradation of Neutron-Absorbing Materials in Spent Fuel Pool (Oct. 28, 2009)

("Information Notice 2009-26"), available in ADAMS at Accession No. ML092440545.

24 Combined Reply at 1I. Entergy, moreover, agrees with the NRC Staff that the safety of long-term storage of spent fuel, whether in spent fuel pools or in dry cask storage, is addressed under the current operating license and is therefore outside the scope of this proceeding. See NRC Staff's Answer at 31; 10 C.F.R. § 50.54(bb).

did not cite the Gundersen Declaration or Information Notice 2009-26.25 Entergy seeks to strike the paragraph on page 11 of the Combined Reply that begins with "Significantly, the importance of the requirement..." and concludes with the citation to the Gundersen Declaration, ¶¶ 15-37.

The entire Gundersen Declaration should be stricken. As Petitioners readily acknowledge, this declaration was submitted "accompanying Petitioners' Reply" as well as the Waiver Petition. 26 Significantly, the Gundersen Declaration addresses only safety issues-not environmental issues-and does not mention or relate in any way to Petitioners' new request for an exemption from, or waiver of, 10 C.F.R. § 51.23(b)--an environmental regulation.27 The Waiver Petition references the Gundersen Declaration, but states only that the declaration "further demonstrates in great detail Entergy and NRC Staff's inadequate assessment of critical aging management issues ,"28 Thus, the Gundersen Declaration is an impermissible attempt to cure deficiencies in Petitioners' safety contentions, and has absolutely no nexus to the issues 29 raised in the Waiver Petition.

The Board should strike the new arguments and factual information that Petitioners now include in their Combined Reply. These portions of the Petitioners' Combined Reply and the Gundersen Declaration fail to focus narrowly on the legal or factual arguments first presented in 25 Petitioners failed to attach a copy of the Information Notice, contrary to the requirements of the Board's Scheduling Order.

See Scheduling Order at 18 (requiring that all documents, with specified exceptions that do not apply to the Information Notice, "even if they can be found in ADAMS, shall be attached to the pleadingor they will not be consideredby the Board") (emphasis added). Petitioners appear to take the position that the enforcement of this provision of the Board's Scheduling Order would "elevate form over substance.. ." Combined Reply at 13. Entergy respectfully submits that Petitioners' routine disregard of Board-imposed requirements, if permitted to continue, would likely complicate the efficient completion of this adjudicatory proceeding.

26 Waiver Petition at 6.

27. See, e.g., Gundersen Declaration at I ("I have been asked to examine the aging management issues of the fuel racks at Indian Point Units 2 and 3.') (emphasis added).

28 Waiver Petition at 6 (emphasis added).

29 See, e.g., La. Energy Servs. CLI-04-25, 60 NRC at 224 ("we concur with the Board that the reply briefs constituted a late attempt to reinvigorate thinly supported contentions").

the New Contentions or raised in Entergy's and the NRC Staff's subsequent answers.30 Instead, Petitioners impermissibly attempt to expand the scope of the New Contentions, particularly Clearwater SC-2 (Riverkeeper TC-3) ("CW SC-2/RK TC-3"), and provide new bases and supporting material for the contentions, without addressing the criteria for late-filed or amended contentions in 10 C.F.R. § 2.309(c) and (f)(2). By submitting this new information, Petitioners attempt to cure the lack of factual or expert opinion support for their contentions; a failure that renders their New Contentions inadmissible under 10 C.F.R. § 2.309(f)(1)(v).31 However, Petitioners are not permitted to bolster their inadequately-supported New Contentions with new alleged expert opinion or factual information that is not narrowly focused on the legal or factual arguments presented in the Applicant's and NRC Staffs Answers, 32 and to which Entergy and the NRC Staff have no opportunity to respond. Accordingly, the Board should summarily strike the new arguments, references, and attachment identified above.

B.

• The Board Also Should Strike Petitioners' Waiver Petition and the Greene Declaration In Their Entireties Petitioners previously recognized that the New Contentions are barred by the Waste Confidence Rule. 33 For this reason, Petitioners chose to submit an "alternative" set of safety and environmental contentions that, they asserted, should be admitted in the event that the "Board 3 4 decides that Petitioners cannot challenge duly adopted NRC rules in these proceedings."'

Entergy and the NRC Staff submitted answers to the New Contentions, responding to 30 Palisades,CLI-06-17, 63 NRC at 732.

31 See Applicant's Answer at 8 & n.34, 18-20, 23. See also La. Energy Servs., CLI-04-25, 60 NRC at 224 ("we concur with the Board that the reply briefs constituted a late attempt to reinvigorate thinly supported contentions").

32 Changes to Adjudicatory Process, 69 Fed. Reg. at 2203.

33 See Applicant's Answer at 7 (citing New Contentions at 18).

34 New Contentions at 18.

Petitioners' originalarguments.35 In their Combined Reply, however, Petitioners pursue an entirely new line of argument. Specifically, they now assert that contentions CW SC-2/RK TC-3 and Clearwater EC-8 (Riverkeeper EC-6) ("CW EC-8/RK EC-6")---which Petitioners had previously described as addressing the "rule invalid scenario"3 6-- should now be considered in conjunction with Petitioners' new "companion" Waiver Petition.37 In other words, Petitioners are now attempting to augment and rehabilitate their New Contentions through the Waiver Petition. As discussed above, however, introducing new arguments and new factual information under the guise of a reply, is impermissible under the Rules of Practice.

Contrary to the Commission's recurring admonition, the Waiver Petition and the Greene Declaration do not focus narrowly on the legal or factual arguments first presented in the Petitioners' original filing or the other parties' answers thereto. 38 Instead, they raise an entirely new legal claim; i.e., whether CW SC-2/RK TC-3 and CW-EC8/RK EC-6 should be admitted for hearing based on either an exemption under 10 C.F.R. § 51.6 or a waiver under Section 2.335.

Petitioners' procedural maneuver runs directly counter to controlling Commission precedent:

Consistent with our responsibilities to protect public health and safety and to conduct fair adjudications, we endeavor to resolve those adjudications promptly. To this end, we seek wherever possible to avoid the delays (such as an additional round of pleadings) caused by a petitioner's attempt to 39backstop elemental deficiencies in its original petition to intervene.

35 See generally Applicant's Answer; NRC Staff's Answer.

36 New Contentions at 17.

37 See Combined Reply at 3. See also Waiver Petition at 2 ("In the event that the Atomic Safety and Licensing Board (ASLB) disagrees with the arguments contained in Petitioners New Waste Contentions and Petitioners consolidated Reply... then, in the alternative, Petitioners hereby request an exemption from or grant of a waiver of the restrictions contained in 10 C.F.R. § 51.23(b), as they apply to the issue of the impacts of long-term onsite waste storage at Indian Point.").

38 Palisades,CLI-06-17, 63 NRC at 732.

39 Entergy Nuclear Operations,Inc. (Palisades Nuclear Power Plant), CLI-08-19, 68 NRC 251, 262 (2008) (citations and internal quotations omitted).

While the Palisades case involved the submission of new authorization affidavits to support standing in a license transfer proceeding, the same principles apply here.4" If the Board allows the Waiver Petition to stand, but authorizes Entergy and the Staff to file written responses thereto, then a delay of approximately one month will result. This delay is significant, given that the submittal of prefiled testimony is scheduled to commence in a few months.4" In fact, Petitioners' belated submittal of the Waiver Petition might impact the trigger date for initial filings specified in the Board's Scheduling Order.42 Such delay would be directly contrary to the Commission's longstanding goal of completing its adjudicatoiy proceedings in an expeditious manner. 43 Therefore, the Board should strike the Waiver Petition and the Greene Declaration in their entireties.

V. CONCLUSION For the foregoing reasons, the Board should strike the new arguments and factual declaration impermissibly provided in Petitioners' Combined Reply to Entergy's and the NRC Staffs February 18, 2011 Answers to their New Contentions, and should strike the Waiver Petition, the Gundersen Declaration, and the Greene Declaration in their entireties. In the alternative, if the Board does not strike the Waiver Petition and the Greene Declaration, then Entergy moves the Board to establish a deadline of March 22, 2011 for responses to Petitioners' Waiver Petition. In addition, Entergy respectfully requests that the Board consider and issue a ruling on this motion on an expedited basis.

40 See id. at 261-62.

41 See Scheduling Order at 13.

42 In this respect, the instant Waiver Petition is quite different from the one filed in the Watts Baroperating license proceeding. See Tenn. Valley Auth. (Watts Bar Unit 2), LBP- 10-12, slip op. (June 29, 2010), interlocutoryreview denied, CLI-10-29, slip op. (Nov. 30, 2010). The Watts Bar proceeding had just commenced, and the petitioner filed its waiver request shortly after the Board rejected a contention filed in the initialpetition. See id. at 1-2, 6 n.19. This proceeding, on the other hand, is nearing the hearing phase, and briefing of the merits of the Waiver Petition could have a direct impact on the hearing schedule.

43 See, e.g., Millstone, CLI-05-24, 62 NRC at 566-67.

CERTIFICATION OF COUNSEL UNDER 10 C.F.R. 4 2.323(b)

I certify that I have made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and that my efforts to resolve the issues have been unsuccessful. The NRC Staff supports the relief requested in this motion.

William C. Dennis, Esq. KathrjeW. Sutton, Esq.

Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq.

440 Hamilton Avenue Martin J. O'Neill, Esq.

White Plains, NY 10601 MORGAN, LEWIS & BOCKIUS LLP Phone: (914) 272-3202 S111 Pennsylvania Avenue, N.W.

Fax: (914) 272-3205 Washington, D.C. 20004 E-mail: wdennis@entergy.com Phone: (202) 739-5738 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 4th day of March 2011 DB 1/66666753 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

)) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.

)

(Indian Point Nuclear Generating Units 2 and 3) )

) March 4, 2011 CERTIFICATE OF SERVICE I hereby certify that copies of.the "Applicant's Motion to Strike" were served this 4th day of March, 2011, upon the persons listed below, by first class mail and e-mail as shown below.

Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

U.S, Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2@nrc.gov)

(E-mail: 1gm 1@nrc.gov)

Administrative Judge Office of the Secretary*

Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)

Washington, DC 20555-0001 (E-mail: rew@nrc.gov)

Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: O-7H4M Mail Stop: T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: ocaamail.resource@nrc.gov) Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)

DB 1/66701975

Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.

Beth N. Mizuno, Esq. Assistant County Attorney David E. Roth, Esq. Office of Robert F. Meehan, Esq.

Brian G. Harris, Esq. Westchester County Attorney Andrea Z. Jones, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: O-15D21 (E-mail: MJR 1@westchestergov.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set@nrc.gov)

(E-mail: bnml @nrc.gov)

(E-mail: david.roth@nrc.gov)

(E-mail: brian.harris@nrc.gov)

(E-mail: andreaojones@nrc.gov)

Manna Jo Greene Thomas F. Wood, Esq.

Stephen C. Filler Daniel Riesel, Esq.

Hudson River Sloop Clearwater,. Inc. Ms. Jessica Steinberg, J.D.

724 Wolcott Ave. Sive, Paget & Riesel, P.C.

Beacon, NY 12508 460 Park Avenue (E-mail: mannajo@clearwater.org) New York, NY 10022 (E-mail: sfiller@nylawline.com) (E-mail: driesel@sprlaw.com)

(E-mail: jsteinberg@sprlaw.com)

Joan Leary Matthews, Esq. John Louis Parker, Esq.

Senior Attorney for Special Projects Office of General Counsel, Region 3 Office of the General Counsel NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Comers Road Environmental Conservation New Paltz, New York 12561-1620 625 Broadway, 14th Floor (E-mail: jlparker@gw.dec.state.ny.us)

Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)

Ross Gould, Esq. Michael J. Delaney, Esq.

Hudson River Sloop Clearwater, Inc. V.P. - Energy 270 Route 308 New York City Economic Dev. Corp.

Rhinebeck, NY 12572 110 William Street (E-mail: rgouldesq@grnail.com) New York, NY 10038 (E-mail: mdelaney@nycedc.com)

Phillip Musegaas, Esq. Daniel E. O'Neill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.

Riverkeeper, Inc. Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue (E-mail: phillip@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: dbrancato@riverkeeper.org) (E-mail: vob@bestweb.net)

(E-mail: smurray@villageofbuchanan.com)

Robert D. Snook, Esq. Mylan L. Denerstein, Esq.

Assistant Attorney General Executive Deputy Attorney General, Office of the Attorney General Social Justice State of Connecticut Office of the Attorney General 55 Elm Street of the State of New York P.O. Box 120 120 Broadway, 2 5 th Floor Hartford, CT 06141-0120 New York, New York 10271 (E-mail: Robert.Snook@po.state.ct.us) (E-mail: Mylan.Denerstein@oag.state.ny.us)

John J. Sipos, Esq. Janice A. Dean, Esq.

Charlie Donaldson Esq. Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York 120 Broadway, 26th Floor The Capitol New York, New York 10271 Albany, NY 12224-0341 (E-mail: Janice.Dean@oag.ny.gov)

(E-mail: John. Sipos@ag.ny.gov)

Original and 2 copies provided to the Office of the Secretary.

4aphIP. Kuyler, Esq.