ML11210B419

State of New York'S Response to Applicant'S Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-17B and NYS-37

ML11210B419
Person / Time
Site:	Indian Point
Issue date:	07/26/2011
From:	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 07-858-03-LR-BD-01, RAS E-556
Download: ML11210B419 (7)

Text

/2+/-? C--- -,-5-S (,.

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. July 26, 2011

---

x STATE OF NEW YORK'S RESPONSE TO APPLICANT'S MOTION FOR CLARIFICATION OF LICENSING BOARD ADMISSIBILITY RULINGS ON CONTENTIONS NYS-17B AND NYS-37 Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

-tFkPL4-7-,ý27-21 Sec-Y b S 0-3

INTRODUCTION Pursuant to 10 C.F.R. § 2.323(b), the State of New York urges the Board to deny Entergy's motion for "clarification," which is nothing more than an unsupported motion for reconsideration and, in any event, premature.

DISCUSSION With regard to Contention 17B, although styled a motion for "clarification," Entergy is really seeking reconsideration of the Board's ruling, which is sufficiently clear and requires no clarification. The Board ruled that " [b]ecause the Commission has specifically barred consideration of the environmental impacts of long-term storage of spent fuel in adjudicatory proceedings, this aspect of NYS-17B is inadmissible." Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (unpublished) (Order) at 18. Immediately thereafter the Board also ruled that "the negative effect on property values predicted by Dr. Sheppard that would result from the longer-term presence of spent fuel anticipated by the updated Waste Confidence Rule is not an environmental impact barred by the Waste Confidence Rule." Id. at 18. There is nothing contradictory, apparently or otherwise, in these statements. Entergy simply disapproves of the Board's ruling. The Board should reject Entergy's attempt to characterize its request for reconsideration as a motion for clarification.

A motion to reconsider may be made only with leave of the Board or the Commission and "upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid." 10 C.F.R. § 2.323(e). Accord Entergy Nuclear Generation Company and Entergy 1

Nuclear Operations,Inc. (Pilgrim Nuclear Power Station) CLI-10-28 (November 5, 2010) at 1 &

n.2. Entergy has not satisfied, nor could it, the standard for reconsideration.

With regard to its efforts at "clarification" of the ruling on both Contentions 17B and 37, Entergy's motion is not only unnecessary but premature. In addition to seeking clarification of the ruling on 17B, Entergy seeks "clarification" of a footnote in the Board's Order related to certain concerns regarding non-fossil fuel alternatives that the Board found untimely. Order at 35 & n. 156. Entergy will not know until New York files its direct testimony regarding Contentions 17B and 37 whether New York has misunderstood the Board's ruling and strayed into subjects that Entergy believes are precluded. As Entergy itself stated in opposing an intervenor's interlocutory request for clarification in another proceeding, "[c]ertainly, the Board should not be forced to offer speculative advice on these matters in advance of the development of the record." Entergy Nuclear GenerationCo. (Pilgrim Nuclear Power Station) ASLBP No.

06-848-02-LR, Entergy's Opposition to Pilgrim Watch's Interlocutory Motion Seeking Further Clarification (October 4, 2010) at 10, ML102850137. When New York files its direct testimony regarding Contentions 17B and 37, Entergy may file an in limine motion to preclude any portions of New York's testimony that Entergy believes are not within the scope of the Board's Order.

Until such time, Entergy has no need for "clarification." The State seeks no further guidance and plans to file its direct testimony in full compliance with the Board's unambiguous rulings.

2

CONCLUSION Based on the foregoing the State of New York urges the Board to deny the motion for "clarification."

Respectfully submitted, N40J. Sipos Susan L. Taylor Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General The Capitol The Capitol Albany, New York 12224 Albany, New York 12224 (518) 402-2251 (518) 474-2432 john.sipos@ag.ny.gov susan.taylor@ag.ny.gov July 26, 2011 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

X In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. July 26, 2011

---

x CERTIFICATE OF SERVICE I hereby certify that on July 26, 2011, copies of the State of New York's Response to Applicant's Motion for Clarification of Licensing Board Admissibility Rulings on Contentions NYS-I 7B and NYS-37, were served upon the following persons via U.S. Mail and e-mail at the following addresses:

Lawrence G. McDade, Chair Administrative Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North 190 Cedar Lane E.

11545 Rockville Pike Ridgway, CO 81432 Rockville, MD 20852-2738 Kaye.Lathrop@nrc.gov Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Mailstop 3 F23 Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike Mailstop 3 F23 Rockville, MD 20852-2738 Two White Flint North 11545 Rockville Pike Josh Kirstein, Esq., Law Clerk Rockville, MD 20852-2738 Atomic Safety and Licensing Board Panel Richard. Wardwell@nrc.gov U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh.Kirstein@nrc.gov I

Q Office of Commission Appellate Martin J. O'Neill, Esq.

Adjudication Morgan, Lewis & Bockius LLP U.S. Nuclear Regulatory Commission Suite 4000 Mailstop 16 G4 1000 Louisiana Street One White Flint North Houston, TX 77002 11555 Rockville Pike martin.o'neill@morganlewis.com Rockville, MD 20852-2738 ocaamail@nrc.gov Elise N. Zoli, Esq.

Goodwin Procter, LLP Office of the Secretary Exchange Place Attn: Rulemaking and Adjudications Staff 53 State Street U.S. Nuclear Regulatory Commission Boston, MA 02109 Mailstop 3 F23 ezoli@goodwinprocter.com Two White Flint North 11545 Rockville Pike William C. Dennis, Esq.

Rockville, MD 20852-2738 AssistantGeneral Counsel hearingdocket@nrc.gov Entergy Nuclear Operations, Inc.

440 Hamilton Avenue Sherwin E. Turk, Esq. White Plains, NY 10601 David E. Roth, Esq. wdennis@entergy.com Andrea Z. Jones, Esq.

Beth N. Mizuno, Esq. Robert D. Snook, Esq.

Brian G. Harris, Esq. Assistant Attorney General Office of the General Counsel Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 15 D21 55 Elm Street One White Flint North P.O. Box 120 11555 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@ct.gov sherwin.turk@nrc.gov andrea.jones@nrc.gov Melissa-Jean Rotini, Esq.

david.roth@nrc.gov Assistant County Attorney beth.mizuno@nrc.gov Office of the Westchester County Attorney brian.harrisanrc.gov Michaelian Office Building 148 Martine Avenue, 6th Floor Kathryn M. Sutton, Esq. White Plains, NY 10601 Paul M. Bessette, Esq. MJR I @westchestergov.com Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Daniel E. O'Neill, Mayor Washington, DC 20004 James Seirmarco, M.S.

ksutton@morganlewis.com Village of Buchanan pbessette@morganlewis.com Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net 2

Daniel Riesel, Esq. Manna Jo Greene, Director Thomas F. Wood, Esq. Stephen Filler, Esq., Board Member Victoria Shiah, Esq. Hudson River Sloop Clearwater, Inc.

Sive, Paget & Riesel, P.C. 724 Wolcott Avenue 460 Park Avenue Beacon, NY 12508 New York, NY 10022 Mannajo@clearwater.org driesel@sprlaw.com stephenfiller@gmail.com vshiah@sprlaw.com Phillip Musegaas, Esq.

Michael J. Delaney, Esq. Deborah Brancato, Esq.

Director Riverkeeper, Inc.

Energy Regulatory Affairs 20 Secor Road NYC Department of Environmental Ossining, NY 10562 Protection phillip@riverkeeper.org 59-17 Junction Boulevard dbrancato@riverkeeper.org Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov s/TyIo [.

Susan L. Taylor Dated at Albany, New York this 26th day of July 2011