ML111171399

NRC Staff'S Unopposed Request for an Extension of Time to Respond to the State of New York'S Motion to Compel the Production of Documents

ML111171399
Person / Time
Site:	Indian Point
Issue date:	04/27/2011
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
References
50-247-LR, 50-286-LR
Download: ML111171399 (7)

Text

April 27, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ENTERGY NUCLEAR OPERATIONS, INC. Docket Nos. 50-247-LR/286-LR (Indian Point Nuclear Generating Units 2 and 3)

NRC STAFF'S UNOPPOSED REQUEST FOR AN EXTENSION OF TIME TO RESPOND TO THE STATE OF NEW YORK'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS Pursuant to 10 C.F.R. § 2.323(a), the NRC Staff ("Staff") hereby requests an extension of time of one week, until May 9, 2011, to respond to the "State of New York Motion to Compel NRC Staff to Produce Documents Relied Upon in Staff's Final Supplemental Environmental Impact Statement" (Motion") filed by the State of New York ("New York") on April 22, 2011. In support of this request, the Staff states as follows:

1. In its Motion, New York seeks to compel the Staff to produce or identify additional documents pertaining to the Staff's evaluation of severe accident mitigation alternatives ("SAMAs"), set forth in the Staff's Final Supplemental Environmental Impact Statement in this proceeding. 1 In particular, New York seeks the production of analyses or documents generated by the Staff's consultants at Information Systems Laboratories, Inc.

("ISLI") or Sandia National Laboratory ("Sandia") (Motion at 1-3, 12-14).

2. Significantly, New York does not seek the production of any documents which the Staff has previously identified as privileged in the numerous document disclosures which 1 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3" (Dec. 2010) ("FSEIS").

-2 the Staff has made since January 30, 2009; in this regard, New York avers: "The State does not seek to overturn any privilege designation made to date in this proceeding. Rather, the State seeks documents which Staff has not produced and not logged but which are clearly relevant to the State's admitted contentions" (ld. at 12; emphasis added). Similarly, New York observes that "Staff has logged documents that appear to communicate Sandia or ISLSI opinions to the Staff "- and indicates that "[t]he State does not challenge the Staff's privilege designation over documents the State has not asked for. However, the relevant documents have never been included on any disclosure log from Staff and never been produced" (ld. at 16; emphasis in original).

3. New York asserts that the Staff has failed to produce or identify documents as privileged (Id. at 5, 16, 17); that "Sandia generated analyses and reports that Staff never disclosed or logged as privileged" (ld. at 14); that the Staff has "refus[ed]" to produce such documents to the State (ld. at 4, 10); and that the Staff is in "willful disregard of [its] regulatory obligations" (Jd. at 1). New York provides no factual basis for these assertions.

4. The Staff is cognizant of its document disclosure obligations in this proceeding, and believes that it has acted in accordance with those obligations. As Staff Counsel has previously pointed out to Counsel for New York, the Staff has produced or identified numerous documents pertaining to its evaluation of SAMA-related issues in its disclosures and privilege logs in this proceeding. 2 Nonetheless, in order to assure that it has produced or identified all responsive documents in accordance with its obligations in this proceeding, the Staff has again requested that its employees and consultants review the documents in their possession, to 2 As indicated in the Declaration of Janice A Dean submitted with New York's Motion, and Attachments 3 and 5 thereto, Counsel for the Staff has informed New York on several occasions that the Staff has identified numerous documents on its privilege logs that are responsive to New York's request.

See E-mail from Sherwin Turk to Janice Dean, dated April 18, 2011 (Attachment 5 to New York's Motion).

- 3 assure that all documents which it is required to produce or identify, that are the subject of New York's Motion, have been (or are) disclosed or identified.

5. The Staff expects to conclude its further document review within the next week.

If any additional documents are discovered that have not yet been produced or identified as privileged, the Staff will identify or produce them, consistent with the Staff's disclosure obligations under 10 C.F.R. §§ 2.336(b) and 2.1203(b).

6. Pursuant to 10 C.F.R. § 2.323(c), the Staff is required to file its answer to New York's Motion within 10 days after the filing thereof, i.e., on or before May 2, 2011. Inasmuch as the Staff expects to receive all facts necessary to definitively respond to the State's Motion within the next week, the Staff requests that it be permitted to respond to New York's Motion on or before May 9,2011.

7. In accordance with 10 C.F.R. § 2.323(a), Staff Counsel has contacted Counsel for New York and Counsel for Entergy, both of whom have stated that they do not object to the Staff's request for an extension of time until May 9,2011, to respond to New York's Motion.

8. The Staff submits that a one-week extension of time in which to file its answer to New York's Motion is reasonable and will assist the parties and Board to properly resolve the issues presented by New York's Motion. Further, the Staff submits that a one-week delay in the Staff's filing of its answer to New York's Motion will not cause hardship for any party or substantial delay in the proceeding.

- 4 WHEREFORE, the Staff respectfully requests that it be afforded an extension of time, until May 9, 2011, in which to file its answer to New York's motion to compel.

Respectfully submitted,

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Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 2ih day of April 2011

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S UNOPPOSED REQUEST FOR AN EXTENSION OF TIME TO RESPOND TO THE STATE OF NEW YORK'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS," dated April 27, 2011, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an deposit in the U.S. Postal Service, as indicated by an asterisk, with copies by electronic mail, this 2ih day of April, 2011:

Lawrence G. McDade, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAll.resource@nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Richard. Wardwell@nrc.gov E-mail: Hearing.Docket@nrc.gov Dr. Kaye D. Lathrop Josh Kirstein, Esq.

Atomic Safety and Licensing Board Panel Atomic Safety and licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgway, CO 81432 U. S, Nuclear Regulatory Commission E-mail: Kaye. Lathrop@nrc.gov Washington, D.C. 20555-0001 E-Mail: Josh. Kirstein@nrc.gov

-2 Atomic Safety and Licensing Board Panel Melissa-Jean Rotini, Esq.

U.S. Nuclear Regulatory Commission Assistant County Attorney Mail Stop: T -3 F23 Office of Robert F. Meehan, Esq.

Washington, DC 20555-0001 Westchester County Attorney (Via Internal Mail Only) 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-Mail: MJR1@westchestergov.com Kathryn M. Sutton, Esq.* John J. Sipos, Esq.*

Paul M. Bessette, Esq. Charlie Donaldson, Esq.

Jonathan Rund, Esq. Assistants Attorney General Morgan, Lewis & Bockius, LLP New York State Department of Law 1111 Pennsylvania Avenue, NW Environmental Protection Bureau Washington, D.C. 20004 The Capitol E-mail: ksutton@morganlewis.com Albany, NY 12224 E-mail: pbessette@morganlewis.com E-mail: John.Sipos@ag.ny.gov E-mail: jrund@morganlewis.com Janice A. Dean, Esq.*

Martin J. O'Neill, Esq.* Assistant Attorney General, Morgan, Lewis & Bockius, LLP Office of the Attorney General 1000 Louisiana Street, Suite 4000 of the State of New York th Houston, TX 77002 120 Broadway, 25 Floor E-mail: martin.o.neill@morganlewis.com New York, NY 10271 E-mail: Janice.Dean@ag.ny.gov Elise N. Zoli, Esq.* Joan Leary Matthews, Esq.

• Goodwin Procter, LLP Senior Attorney for Special Projects Exchange Place New York State Department of 53 State Street Environmental Conservation Boston, MA 02109 Office of the General Counsel E-mail: ezoli@goodwinprocter.com 625 Broadway, 14th Floor Albany, NY 12233-1500 E-mail: jlmatthe@gw.dec.state.ny.us William C. Dennis, Esq.

• John Louis Parker, Esq.

• Assistant General Counsel Office of General Counsel, Region 3 Entergy Nuclear Operations, Inc. New York State Department of 440 Hamilton Avenue Environmental conservation White Plains, NY 10601 21 South Putt Corners Road E-mail: wdennis@entergy.com New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us

-3 Daniel E. O'Neill, Mayor* Manna Jo Greene*

James Seirmarco, M.S. Stephen Filler Village of Buchanan Hudson River Sloop Clearwater, Inc.

Municipal Building 724 Wolcott Avenue Buchanan, NY 10511-1298 Beacon, NY 12508 E-mail: vob@bestweb.net E-mail: mannajo@clearwater.org E-mail: smurray@villageofbuchanan.com E-mail: stephenfiller@gmail.com Robert Snook, Esq.* Daniel Riesel, Esq.*

Office of the Attorney General Thomas F. Wood, Esq.

State of Connecticut Ms. Jessica Steinberg, J.D.

55 Elm Street Sive, Paget & Riesel, P.C.

P.O. Box 120 460 Park Avenue Hartford, CN 06141-0120 New York, NY 10022 E-mail: robert.snook@ct.gov E-mail: driesel@sprlaw.com jsteinberg@sprlaw.com Phillip Musegaas, Esq.*

Deborah Brancato, Esq. Ross H. Gould, Esq.*

Riverkeeper, Inc. 270 Route 308 20 Secor Road Rhinebeck, NY 12572 Ossining, NY 10562 T: 917-658-7144 E-mail: phillip@riverkeeper.org E-mail: rgouldesq@gmail.com dbrancato@riverkeeper.org Michael J. Delaney, Esq.*

Director, Energy Regulatory Affairs New York City Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 E-mail: mdelaney@dep.nyc.gov Sherwin E. Turk Counsel for NRC Staff