ML110740287
| ML110740287 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/23/2011 |
| From: | Jeremy Dean, Vonresusner S State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, RAS e-467, ASLBP 07-858-03-LR-BD01 | |
| Download: ML110740287 (12) | |
Text
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S i-+*7 February 23, 2011 (3:28 p.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 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; 50-286-LR ASLBP No. 07-858-03-LR-BD01 DPR-26, DPR-64 February 23, 2011 NEW YORK STATE MOTION FOR APPROVAL OF EXTENSION OF PAGE LIMITATIONS FOR PROPOSED CONTENTION 37, NUNC PRO TUNC, JANUARY 31,2011 On February 3, 2011, the State of New York filed Proposed Contention 37 which focuses on the shortcomings in the FSEIS analysis of energy alternatives and the no action alternative.
Contention 37 essentially consolidates and then expands upon the bases for previously admitted Contentions 9 and 33. Proposed Contention 37 is 46 pages.
On July 1, 2010 the Board issued a Scheduling Order that included the following:
A party seeking to file a motion or request for leave to file a new or amended contention shall file such motion and the substance of the proposed contention simultaneously.
Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) Scheduling Order (July 1, 2010) at 5. The same Order also included a page limitation applicable to motions:
Motions and answers to motions shall not exceed twenty-five (25) pages in length (including signature.page but excluding attachments, see paragraph M.5, infra),
absent preapproval of the Board. A motion for preapproval to exceed this page limitation shall be submitted in writing no less than three (3) business days prior to the time the motion or answer is due to be filed.
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Id. at 6. On February 17, 2011 the Board issued.an order with regard to page limitations for responses to new contentions. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) Order (Extending Page Limitations for Pleadings as They Apply to Answers to Clearwater's and Riverkeeper's January 24, 2011, Joint Motion, and New York State's Motion to Amend Contention 17A and Waiver Petition, Filed January 24, 2011) February 17, 2011. In the February 17th Order the Board clarified its earlier Scheduling Order and stated:
when we issued the Scheduling Order, we anticipated that such motions [for leave to file a new contention] and their proposed contentions would be filed as separate documents, each separately subject to the 25-page limit set at Paragraph G.1 of that Order.
Id. at 2. Until the latter Order was issued, the State believed that the page limitation only applied to motions and did not apply to new proposed contentions. For that reason, Proposed Contention 37 exceeds the 25 page limit and no request to exceed that page limit was filed prior to the filing of the proposed contention. Thus, the need for this nunc pro tunc motion.
The State believes good cause exists for granting this motion. First, some of the length of Contention 37 is attributable to the repetition of the already accepted bases from admitted Contentions 9 and 33.. As set forth in the contention itself, these bases were repeated out of an exercise of caution, or, in some cases, were necessarily repeated in order to demonstrate a
.persistent failure of consideration, or a persistent pattern of analytical error.
Secondly, the length of Contention 37 reflects the complexity of the alternatives analysis and that the State has taken seriously the admonition that "[a]ll parties are obligated, in their filings before the presiding officer and the Commission, to ensure that their arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citations to the record. Failure to doso may result in appropriate sanctions, including striking a matter from the record or, in extreme circumstances, dismissal of 2
the party." 10 C.F.R. § 2.323(d); see 69 Fed. Reg. 2182, 2183, Statement of Considerations, Changes to Adjudicatory Process (Jan. 14, 2004) referring to "existing requirements... to proffer specific, adequately supported contentions in order to be admitted as a party to the proceeding." Thus, the State of New York has provided the Board with substantial evidence in the form of expert reports and declarations, and publicly available studies which support the State's assertions of numerous inaccuracies in the FSEIS, and of unexamined alternatives to license renewal that are feasible and. not speculative.
Third, the State's confusion on this matter was not unreasonable since, as the Board noted in its February 17'h Order (id. at 2), the State has filed its motions for leave as a separate document from its proposed contentions, thus isolating the motion, to which the State believed the page limitation applied, from the proposed contention, as to which the State believed no page limitation applied. No such page limitation on contentions is contained in 10 C.F.R. § 2.309, which is understandable given the heightened scrutiny the Commission has declared should be giyen to its requirements for proposed contentions which requirements are to be considered "strict by design." Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) Memorandum and Order (Denying the Village of Buchanan's Hearing Request and Petition to Intervene) (Dec. 5, 2007) at 4.
Under these circumstances, and for the good cause shown, the State of New York requests that this Motion to exceed the page limitation for Proposed Contention 37 be allowed and be deemed filed on January 31, 2011.
3
CONCLUSION For the foregoing reasons, the State respectfully requests that the Board grant the State's motion nunc pro tunc to exceed the page limitation for Proposed Contention 37 concerning energy alternatives.
.Respectfully submitted, S1
!a.,*'
Jan1Ve A. Dean As-istant Attorney General Office of the Attorney General 120 Broadway New York, New York 10271 (212) 416-8459 janice.dean@ag.ny.gov
/s Su n C. von Reus-Assistant Attorney General Office of the Attorney General The Capitol Albany, New York 12224 (518) 474-1968 susan.vonreusner@ag.ny.gov February 23, 2011 4
Certification pursuant to 10 C.F.R. § 2.323 and ASLB Scheduling Order Pursuant to 10 C.F.R. § 2.323(b) and this Atomic Safety and Licensing Board's July 1, 2010 Scheduling Order ¶ G.6, 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 I certify that my efforts have been unsuccessful.
/sa Janitce D a 5
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-BDO1 DPR-26, DPR-64 February 23, 2011 CERTIFICA.TE OF SERVICE I hereby certify that on February 23, 201 1, copies of the State of New York's New York State Motion For Approval Of Extension Of Page Limitations For Proposed Contention 37, Nunc Pro Tunc, January 31, 2011 were served 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 11545 Rockville Pike Rockville, MD 20852-2738 Josh Kirstein, Esq. Law Clerk 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 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.
Brian G. Harris, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Mailstop 15 D2.1 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 Emily L. Monteith Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 emily.monteith@nrc, gov Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@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@ct.gov Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 MJR1 @westchestergov.com 2
Daniel E. O'Neill, Mayor James Seirmarco, M.S.
Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 105.11-1298 vob@bestweb.net 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 stei-nberg@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Manna Jo Greene, Director StephenTiller, Esq., Board Member Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Beacon, NY 12508 Mannajo@clearwater.org stephenfiller@gmail.com Ross H. Gould Board Member Hudson River Sloop Clearwater, Inc.
270 Route 308 Rhinebeck, NY 12572 rgouldesq@gmail.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org Janice A. Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 23rd day of February 2011 3
. DOCKETED February 23, 2011 (3:28 p.m.)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY ANND LICENSING BOARD In re:
License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
Docket Nos. 50-247-LR; 50-286-LR ASLBP No. 07-858-03-LR-BDOl DPR-26, DPR-64 February 23, 2010 NOTICE OF WITHDRAWAL OF COUNSEL Notice is hereby given af the withdrawal of Mylan Denerstein, Esq., as counsel for the State of New York in this proceeding. The State requests that all service lists in this proceeding be amended accordingly.
Respectfully submitted, Q O-
~e AjYo Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York 120 Broadway, 26th Floor New York, New York 10271 Dated: February 23, 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In re:
License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BDOI DPR-26, DPR-64 February 23, 2011 CERTIFICATE OF SERVICE I hereby certify that on February 23, 2011, copies of the Notice of Withdrawal of Mylan Denerstein were served 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 11545 Rockville Pike Rockville, MD 20852-2738 Josh Kirstein, Esq. Law Clerk 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 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.
Brian G. 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 Emily L. Monteith Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 emily.monteithgnrc.gov Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com Martin J. O'Neill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.o'neill@morganlewis.com EliseN. 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@ct.gov Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 MJRI @westchestergov.com 2
Daniel E. O'Neill, Mayor James Seirmarco, M.S.
Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net 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 jsteinberg@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Manna Jo Greene, Director Stephen Filler, Esq., Board Member Hudson River Sloop Clearwater, Inc.-
724 Wolcott Avenue Beacon, NY 12508 Mannajo@clearwater.org stephenfiller@gmail.com Ross H. Gould Board Member Hudson River Sloop Clearwater, Inc.
270 Route 308 Rhinebeck, NY 12572 rgouldesq@gmail.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org