ML12030A200

Entergy'S Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention CW-EC-3A (Environmental Justice)

ML12030A200
Person / Time
Site:	Indian Point
Issue date:	01/30/2012
From:	Bessette P Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21813, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12030A200 (36)

Text

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) )

) January 30, 2012 ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF PRE-FILED TESTIMONY AND EXHIBITS FOR CONTENTION CW-EC-3A (ENVIRONMENTAL JUSTICE)

William C. Dennis, Esq. Kathryn M. Sutton, Esq.

ENTERGY NUCLEAR OPERATIONS, INC. Paul M. Bessette, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wdennis@entergy.com Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

DB1/ 68831667.9

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) )

) January 30, 2012 ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF PRE-FILED TESTIMONY AND EXHIBITS FOR CONTENTION CW-EC-3A (ENVIRONMENTAL JUSTICE)

I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.319, 2.323, 2.337, 2.1204, the Atomic Safety and Licensing Boards (Board) Scheduling Order of July 1, 2010, and subsequent Order dated November 17, 2011,1 Entergy Nuclear Operations, Inc. (Entergy) hereby moves to exclude from the hearing record certain evidence proffered by Hudson River Sloop Clearwater, Inc.

(Clearwater) on December 22, 2011, in support of Contention CW-EC-3A. Specifically, portions of the testimony of Dr. Michael Edelstein (CLE000003)2 and his supporting report (CLE00012A-C);3 the entirety of the testimony of Ms. Manna Jo Greene (CLE000010)4 and Dr. Erik A. Larsen (CLE000005);5 portions of the testimony of Mr. Aaron Mair (CLE000007)6 1

Licensing Board Initial Scheduling Order (July 1, 2010) (unpublished); Licensing Board Order (Granting Unopposed Motion by the State of New York and Riverkeeper, Inc. to Amend the Scheduling Order) (Nov. 17, 2011) (Scheduling Order) (unpublished).

2 Exh. CLE000003, Pre-filed Direct Testimony of Michael Edelstein (Dec. 22, 2011) (Edelstein Testimony).

3 Exhs. CLE00012A-C, Michael R. Edelstein, Ph.D., Environmental Justice Impacts from the Proposed Relicensing of the Indian Point Nuclear Power Complex: a Focus on Sing Sing Prison (Oct. 5, 2011) Parts 1, 2, and 3 (Edelstein Report Part [ ]).

4 Exh. CLE000010, Pre-Filed Direct Testimony of Manna Jo Greene (Dec. 22, 2011) (Greene Testimony).

5 Exh. CLE000005, Pre-Filed Direct Testimony of Dr. Erik Larsen (Dec. 22, 2011) (Larsen Testimony).

DB1/ 68831667.9

and Mr. Stephen Filler (CLE000009);7 the entirety of the testimony of Mr. Anthony Papa (CLE000004),8 Mr. John Simms (CLE000006),9 and Ms. Dolores Guardado (CLE000008);10 and certain other Clearwater exhibits are inadmissible in this proceeding and should be excluded pursuant to 10 C.F.R. § 2.337(a). Attachment 1 to this Motion identifies the specific evidence that should be excluded, including a description of the evidence and the reason(s) for exclusion.

II. LEGAL STANDARDS U.S. Nuclear Regulatory Commission (NRC or Commission) regulations governing the admissibility of evidence provide that, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable. Thus, pursuant to 10 C.F.R.

§ 2.319(d), the Board may strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative, and under Section 2.319(e) the Board may restrict evidence or arguments for the same reasons.

Because only relevant and material evidence is admissible, the Board may exclude or accord no weight to testimony and exhibits that are outside the admitted contentions scope or that raise issues that were not properly presented in earlier pleadings.11 Similarly, it may exclude 6

Exh. CLE000007, Pre-Filed Direct Testimony of Aaron Mair (Dec. 22, 2011) (Mair Testimony).

7 Exh. CLE000009, Pre-Filed Direct Testimony of Stephen Filler (Dec. 22, 2011) (Filler Testimony).

8 Exh. CLE000004, Pre-Filed Direct Testimony of Anthony Papa (Dec. 22, 2011) (Papa Testimony).

9 Exh. CLE000006, Pre-Filed Direct Testimony of John Simms (Dec. 22, 2011) (Simms Testimony).

10 Exh. CLE000008, Pre-Filed Direct Testimony of Dolores Guardado (In Spanish with English Translation)

(Dec. 22, 2011) (Guardado Testimony).

11 See, e.g., S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), Licensing Board Memorandum and Order (Ruling on In Limine Motions) at 3-7 (Jan. 26, 2009) (unpublished) (granting in part motion to exclude testimony and exhibits outside the scope of the admitted contentions); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), Licensing Board Order (Ruling on Pending Matters and Addressing Preparation of Exhibits for Hearing) at 2 (Mar. 24, 2008) (unpublished) (granting in part motions to exclude testimony on topics outside the scope of a license renewal proceeding, because such issues do not relate to aging and/or because they are addressed as part of ongoing regulatory processes); AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Licensing Board Memorandum and Order DB1/ 68831667.9 testimony and supporting evidence that is outside the scope of this license renewal proceeding, or, in accordance with 10 C.F.R. § 2.335(a), evidence attacking the validity of NRC regulations.

Recent Commission decisions explicitly hold that intervenors are not permitted to change the scope of a contention as admitted by the Board. In the Vogtle proceeding, the Commission emphasized that the scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases.12 Similarly, in the Pilgrim decision, the Commission reiterated that longstanding precedent requires a Board to look back at the bases to determine the scope of a contention, because the reach of a contention necessarily hinges upon its terms coupled with its stated bases.13 The Commission stressed that NRC hearing would prove endless if parties were free . . . to introduce entirely new claims which they either originally opted not to make or which simply did not occur to them at the outset.14 In addition, while the Federal Rules of Evidence do not apply directly to NRC proceedings, Boards often look to those rules for guidance.15 Of particular relevance to this Motion, Federal Rule of Evidence 602 specifically requires a non-expert witness to have (Ruling on Motions in Limine and Motion for Clarification) at 1-2 (Aug. 9, 2007) (unpublished) (granting in part motion to exclude evidence on topics outside scope of contention and license renewal proceeding); La.

Energy Servs., L.P. (Natl Enrichment Facility), Licensing Board Memorandum and Order (Ruling on In Limine Motions and Providing Administrative Directives) at 4-10 (Jan. 21, 2005) (unpublished) (granting in part motions to exclude testimony on topics outside the scope of the admitted contention, including topics raised and rejected at the pleadings stage).

12 S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100-01 (2010).

13 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010)

(emphasis added) (citing Pub. Serv. Co. of N. H. (Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93, 97 (1988)).

14 Id. at 311 (quoting La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 727-28 (2005)).

15 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2187 (Jan. 14, 2004) (Although the Commission has not required the application of the Federal Rules of Evidence in NRC adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances.).

DB1/ 68831667.9 personal knowledge of the matter on which he or she testifies. Consistent with Rule 602, Boards have excluded such testimony by witnesses who lack personal knowledge.16 Further, Federal Rule of Evidence 703 permits an expert witness to provide an opinion despite a lack of personal knowledge of the underlying facts, but consistent with Federal practice, Boards may exclude unreliable expert witness testimony.17 Thus, an experts opinion is admissible only if it is offered by a witness who has demonstrated his or her qualification to provide expert testimony on the specific technical subject at issue.18 An experts opinion is admissible only if the factual basis for that opinion is adequately stated and explained in the affidavit.19 A witness may qualify as an expert by knowledge, skill, experience, training, or education to testify [i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.20 Similarly, opinion testimony is only admissible if it is based on the methods and procedures of science, rather than on subjective belief or unsupported speculation.21 When the qualifications of an expert witness 16 See, e.g., Ga. Inst. of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-96-10, 43 NRC 231 (1996); see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-950, 33 NRC 492, 501 (1991) (non-experts submission considered as argument, not evidence).

17 10 C.F.R. § 2.319(d); see also Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 NRC 453, 475 (1982) (upholding Board conclusion that witness lacked sufficient expertise to testify) .

18 See Entergy Nuclear Vt. Yankee (Vermont Yankee Nuclear Power Station), Licensing Board Order (Ruling on Motions to Strike and Motions in Limine) at 7-8 (July 16, 2008) (unpublished) (granting in part motion to exclude opinion testimony proffered by an individual outside of demonstrated expertise); 10 C.F.R. § 2.319(d);

see also Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 NRC 453, 475 (1982) (upholding Licensing Board conclusion that witness lacked sufficient expertise to testify).

19 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-4, 61 NRC 71, 81 (2005) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990); United States v. Various Slot Machs. on Guam, 658 F.2d. 697, 700 (9th Cir. 1981)).

20 Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 27-28 (2004) (alternation in original omitted) (internal quotation marks omitted).

21 Savannah River, LBP-05-4, 61 NRC at 98-99 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-90 (1993)) (disqualifying expert for certain purposes).

DB1/ 68831667.9 are challenged, the party sponsoring the witness has the burden of demonstrating that the witness is qualified.22 III. ARGUMENT A. Scope of Proceeding and of Contention CW-EC-3A This proceeding concerns Entergys application to renew the operating licenses for Indian Point Nuclear Generating Units 2 and 3 (collectively, Indian Point). As initially proposed, CW-EC-3 raised various broad challenges to the environmental justice (EJ) analysis in Entergys Environmental Report (ER).23 The Board, however, admitted CW-EC-3 only with respect to Clearwaters narrow argument that the EJ evaluation allegedly fails to address alleged disparate severe accident impacts on minority and low-income populations in institutions near Indian Point.24 In doing so, the Board emphasized that CW-EC-3 was admitted as an environmental contention brought under the National Environmental Policy Act (NEPA)and not a safety contention brought under the Atomic Energy Act.25 In subsequently admitting Clearwaters proposed amendment to CW-EC-3 and consolidating the original and amended contentions as CW-EC-3A, the Board made clear it was doing so only to the extent that the amendment updated the contention, as originally admitted, to challenge the Final Supplemental Environmental Impact Statement (FSEIS) in addition to the ER.26 Thus, the only relevant and remaining issue for CW-EC-3A, as admitted, is whetherunder NEPAthe FSEIS and the ER 22 Catawba, CLI-04-21, 60 NRC at 27; Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 &

2), ALAB-410, 5 NRC 1398, 1405 (1977).

23 See Hudson River Sloop Clearwater Incs Petition to Intervene and Request for Hearing at 47-53 (Dec. 10, 2007) (Clearwater Petition), available at ADAMS Accession No. ML073520042.

24 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 200-01 (2008).

25 Id. at 201.

26 See Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) at 56, 60 (July 6, 2011) (unpublished).

DB1/ 68831667.9 sufficiently analyze any disproportionate environmental impact on minority and low-income populations in nearby institutions in the event of a severe accident.

In admitting CW-EC-3A, the Board made clear it was not admitting a contention claiming that Indian Point emergency plans are deficient.27 This restriction is wholly consistent with Commission case law and the Boards emphasis on the limited scope of license renewal.28 Specifically, this Board rejected several contentions challenging the adequacy of emergency preparedness and evacuation planning, explaining that the NRC Regulation dealing with emergency plans, 10 C.F.R. § 50.47(a)(1)(i), provides that no finding relating to emergency planning is necessary for issuance of a renewed nuclear power reactor operating license and thus, [t]his language places consideration of emergency plans outside the scope of this proceeding and is supported by NRC case law.29 Since then, the Commission has confirmed that it is impermissible to use a license renewal NEPA contention to challenge the adequacy of emergency planning.30 Accordingly, the scope of Clearwaters NEPA Contention CW-EC-3A excludes challenges to existing emergency plans.

27 See Indian Point, LBP-08-13, 68 NRC at 201.

28 See id. at 149-150, 188.

29 Id. at 149 (emphasis added) (rejecting proposed contention NYS-29); see also id. at 165-166 (rejecting proposed contention Connecticut EC-2).

30 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 302 (2010)

(ruling that witness statements on the issue of emergency planningthe need to provide accurate, real time projections of the location and duration of potential public exposures to determine whether, when, and where particular population groups may need to be evacuated are beyond the scope of a license renewal severe accident mitigation alternative review).

DB1/ 68831667.9 B. Portions of Dr. Edelsteins Expert Testimony and Report Should Be Excluded Because He (1) Lacks Relevant Expertise, (2) Challenges the Adequacy of Emergency Plans, (3) Addresses Issues Outside the Scope of NEPA, (4) Relies on Unreliable Interview Data, and (5) Raises Issues Likely to Become the Subject of Rulemaking Clearwater offers Dr. Michael Edelsteins expert testimony and report to raise issues related to emergency plan adequacy at the Sing Sing and Rockland County Correctional Facilities. Dr. Edelstein, a professor of environmental psychology, states that he is an expert in psycho-social impact assessment.31 The crux of Dr. Edelsteins assessment is found in his report, which he incorporates as part of his testimony, and focuses on the adequacy of emergency planning at Sing Sing , as well as the potential for radiological and psycho-social impacts on its inhabitants. Dr. Edelstein also addresses lessons learned from the Fukushima accident in Japan as well as alleged non-nuclear emergency planning and evacuation issues associated with Hurricane Katrina. For the following reasons, the Board should exclude portions of Dr. Edelsteins expert testimony and report.

1. Dr. Edelstein Has Not Demonstrated Expertise in Emergency Planning, Severe Accidents, or Health Physics The Board should exclude portions of Dr. Edelsteins testimony and report because Clearwater has failed to meet its burden to demonstrate that Dr. Edelstein is an expert in all areas on which he offers an opinion, including emergency planning, severe accidents, and/or health physics.32 Dr. Edelstein states that his specialty is psycho-social impact assessment of environmental disaster and change and analysis of psychological and mental harms.33 However, he seeks to testify about issues far afield from psychology and psycho-social impacts; namely: (1) the effectiveness of radiological emergency plans and associated protective actions 31 Exh. CLE00012A, Edelstein Report Part 1 at 2.

32 Diablo Canyon, ALAB-410, 5 NRC at 1405.

33 Exh. CLE00012A, Edelstein Report Part 1 at 2.

DB1/ 68831667.9 at preventing health effects from radiation exposure in the event of a severe accident;34 and (2) the likelihood and consequences of severe accidents.35 Nothing in Dr. Edelsteins resume or testimony indicates that he has the requisite expertise, such as any education, knowledge, or experience in the fields of emergency planning, health physics, nuclear reactor safety, or severe accident phenomena, to testify on such issues.36 Accordingly, Clearwater has failed to demonstrate that Dr. Edelstein is competent to give an expert opinion on these issues, and the Board should exclude all such evidence identified in Attachment 1 outside his professed expertise in psycho-social impact assessment and psychological and mental harms.37

2. Dr. Edelstein Challenges the Adequacy of Emergency Plans As noted above, the Board already has ruled that all issues concerning the adequacy of emergency plans are outside the scope of CW-EC-3A,38 and the Commission has since confirmed that NEPA-based contentions cannot be used to challenge emergency planning.39 Despite this unambiguous direction, extensive portions of Dr. Edelsteins testimony and report challenge the adequacy of existing Indian Point, including state and county, emergency plans.

Specifically, Dr. Edelstein first cites to alleged problems associated with evacuating prisoners 34 Exh. CLE000003, Edelstein Testimony at 3-4 (stating that prison evacuations are far more complex, sheltering impacts are likely to be higher due to inability to seal the building, and radiation-related impacts would be significantly greater); see also Exh. CLE00012B, Edelstein Report Part 2 at 20-23, 28-31, 32-33, 36-38; Exh. CLE00012C, Edelstein Report Part 3 at 39-44.

35 Exh. CLE000003, Edelstein Testimony at 4 (discussing the extent of radiological releases from the Fukushima accident); see also Exh. CLE00012A, Edelstein Report Part 1 at 16-18 (offering testimony on meteorological conditions, radiological plume dispersion, and radiological risk); id. at 18-19 (offering testimony on probability and consequences of severe accidents, including seismic risk); Exh. CLE00012B, Edelstein Report Part 2 at 37 (offering testimony on wind conditions and severity of radioactive release).

36 Although Dr. Edelsteins resume (Exh. CLE000011, Curriculum Vitae of Michael Edelstein (Dec. 21, 2011))

lists experience related to evaluating psychological and sociological harms following Chernobyl accident, Clearwater fails to explain how this experience qualifies Dr. Edelstein as an expert on emergency planning, health physics, or severe accidents.

37 Exh. CLE00012A, Edelstein Report Part 1 at 2.

38 See Indian Point, LBP-08-13, 68 NRC 201; see also id. at 149, 165-166.

39 See Pilgrim, CLI-10-11, 71 NRC at 302.

DB1/ 68831667.9 from, or sheltering-in-place at, Sing Sing in accordance with existing emergency plans.40 He then insists that the Board consider emergency planning changes and improvements involving both Indian Point and Sing Sing.41 Despite Dr. Edelsteins characterization of these emergency planning improvements as mitigation measures, they are in fact challenges to the adequacy of current emergency plans. Because the adequacy of emergency planning is not subject to challenge, this testimony is not within the scope of CW-EC-3A.

Dr. Edelsteins report also contains an extensive, detailed discussion of reported problems with emergency planning and evacuation associated with a Louisiana prison during Hurricane Katrina.42 This discussion should be excluded because: (1) Clearwater failed to offer the underlying American Civil Liberties Union (ACLU) report as an exhibit, contrary to the requirements of the Boards Scheduling Order;43 (2) Dr. Edelstein fails to explain why the ACLU report is methodologically sufficient (e.g., how were prisoner surveys conducted?) for him to rely upon in his testimony; and (3) issues concerning a Louisiana prison and Hurricane Katrina are unrelated to Indian Point. With respect to the latter, Dr. Edelstein fails to demonstrate how an account of a Louisiana prison evacuation after a hurricane has any relevance to existing New York state and county emergency plans for a potential Indian Point radiological event. Thus, the evidence identified in Attachment 1 should be excluded because the underlying 40 See, e.g., Exh. CLE000003, Edelstein Testimony at 3 (asserting that prison evacuations are far more complex than evacuating the general population and carries far more risk of harm, and that sheltering-in-place impacts are likely to be higher due to inability to seal the building).

41 See, e.g., id. at 4 (outlining mitigation measures, including, among other things, evacuation planning, performing tests and drill, and improving communications); see also Exh. CLE00012B, Edelstein Report Part 2 at 21-38; Exh. CLE00012C, Edelstein Report Part 3 at 39-44. Dr. Edelsteins testimony similarly challenges the Rockland County Jail emergency plans. See Exh. CLE000003, Edelstein Testimony at 5.

42 See Exh. CLE00012A, Edelstein Report Part 1 at 7-11, 13, 19; Exh. CLE00012B, Edelstein Report Part 2 at 21-23, 26-28; Exh. CLE00012C, Edelstein Report Part 3 at 31-48.

43 See Scheduling Order at 14 (The exhibits shall include all documents that the party or its witnesses refer to, use, or rely upon for their statements or position. If such documents are not attached, the Board will not consider them for any purpose in making findings of fact.).

DB1/ 68831667.9 referenced report is not an exhibit, and both the report and associated testimony are unreliable and irrelevant.

3. Dr. Edelsteins Report Focuses on Issues Concerning Psychological Impacts; Terrorism; and Crime, Violence, Racial Discrimination, and Other Forms of Mistreatment in Prisons That Are Outside the Scope of NEPA The Board also should exclude those portions of Dr. Edelsteins report that focus on issues that are irrelevant to the NRCs NEPA evaluation, including: (1) the potential for psychological and mental impacts; (2) the potential for terrorism; and (3) the potential for crime, violence, racial discrimination, and other forms of mistreatment in prisons.

NEPA is concerned with actual physical impacts to the environment.44 As the Supreme Court in Metropolitan Edison explained, the theme of [NEPA] is sounded by the adjective environmental, which means that NEPA does not require an agency to assess every impact on a project, but only those that have a reasonably close causal relationship with a change in the physical environment.45 In Metropolitan Edison, the Supreme Court rejected a claim that NEPA required that the NRC consider allegations that the restart of one of the reactors at Three Mile Island after another unit had malfunctioned would result in severe psychological health damage to nearby residents. The Supreme Court found that fear arising from the risk of a nuclear accident was not an effect caused by a change in the physical environment and, thus, did not warrant consideration under NEPA.46 Specifically, the Supreme Court held that the causal chain between the change in the environment and the effect at issue was too attenuated.47 The Supreme Court similarly held in Public Citizen that where an agency has no ability to 44 See Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-73 (1983) (Metro Edison Co.).

45 Id. at 772, 773.

46 Id. at 775-76.

47 Id. at 771, 773.

DB1/ 68831667.9 prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect.48 Applying the same principles here, the Board should exclude the portions of Dr. Edelsteins report identified in Attachment 1 as irrelevant to the NRCs NEPA evaluation.

First, as Dr. Edelstein explains, his specialty is psycho-social impact assessment.49 Aside from the subjects on which he is not qualified to opine (i.e., emergency planning, health physics, and severe accidents, see Section III.B.1 above), Dr. Edelsteins report is fundamentally focused on addressing prisoners psychological issues, including issues related to feelings of powerlessness, victimization, fear, and other psychological pressures.50 As Dr. Edelsteins discussions of the dread associated with exposure to radioactivity,51 perceive[d] dangers not present,52 unknown and invisible threats,53 and stigma54 make clear, these concerns are associated with inmate perception or fear of an accident. In fact, Dr. Edelstein admits that there is only a remotely causal . . . connection between these alleged phenomena and Indian Point.55 As in Metropolitan Edison, such psychological concerns are too attenuated to warrant consideration 48 Dept of Transp. v. Pub. Citizen, 541 U.S. 752, 770 (2004) (Public Citizen) (holding that the Federal Motor Carrier Safety Administration need not consider the environmental impacts of increased cross-border truck traffic due to regulatory changes that would increase such traffic because it had no discretion to prevent cross-border operations) .

49 Exh. CLE00012A, Edelstein Report Part 1 at 2.

50 Id. at 9, 14-15; Exh. CLE00012B, Edelstein Report Part 2 at 21-23, 31-32, 36-39.

51 Id. at 22.

52 Id. at 31.

53 Id.

54 Id. at 36.

55 Exh. CLE00012A, Edelstein Report Part 1 at 16.

DB1/ 68831667.9 under NEPA.56 In turn, to the degree Dr. Edelsteins report either describes such phenomena, or claims to rely upon on them for his opinions, it must be excluded as irrelevant.

Second, the Board should also exclude as irrelevant those portions of Dr. Edelsteins report that address the potential for terrorism.57 The Commissionand this Boardhave consistently held that the NRC does not need to consider, as part of its environmental review, terrorist attacks on nuclear power plants, holding that impacts associated with such attacks are simply too far removed from the natural or expected consequences of agency action to require a study under NEPA.58 Third, the Board should exclude the sections of Dr. Edelsteins report that address the potential for crime and violence,59 racial discrimination,60 and other forms of mistreatment in prisons. Apart from the fact that such discussions are unsupported and unduly speculative, these issues are far removed from Indian Point license renewal, the issues posed by CW-EC-3, and the requisite analysis under NEPA. As the Supreme Court explained in Public Citizen, where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect.61 In the instant case, neither Entergy nor the NRC has any control or authority over Sing Sing or its guards or prisoners. This lack of authority over prisons demonstrates that there is no reasonably 56 Metro. Edison Co., 460 U.S. at 772-76 (holding that fear of an accident is not a cognizable injury under NEPA).

57 Exh. CLE00012A, Edelstein Report Part 1 at 16, 18 (discussing need to consider terrorism).

58 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 129 (2007); Indian Point, LBP-08-13, 68 NRC at 143 ([W]e are nonetheless bound by the Commission's ruling in Oyster Creek that NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities.).

59 Exh. CLE00012A, Edelstein Report Part 1 at 7-11; Exh. CLE00012B, Edelstein Report Part 2 at 21-22, 31-32, 33-35.

60 Exh. CLE00012A, Edelstein Report Part 1 at 10-11; Exh. CLE00012B, Edelstein Report Part 2 at 21-22, 36, 39.

61 Public Citizen, 541 U.S. at 770.

DB1/ 68831667.9 close causal relationship between the Indian Point license renewal and potential impacts associated with crime, violence, racial discrimination, and other forms of mistreatment. Indeed, such impacts require at least two intervening events: (1) the act of a third-party criminal; and (2) the failure of all government agencies charged with protecting prisoners from such harms.62 Accordingly, such impacts are outside NEPA review and thus this evidence is irrelevant.63

4. Dr. Edelsteins Testimony Concerning Rockland County Jail Is Unreliable The Board should exclude as unreliable the portions of Dr. Edelsteins testimony that rely on undocumented interviews by Ms. Susan Shapiro concerning Rockland County Jail. It is well-established that the reliability of any interviews results depends almost exclusively on whether the interview was conducted according to generally accepted interview principlesi.e., the questions to be asked of interviewees are framed in a clear, non-leading manner and are asked by competent, unbiased interviewers to ensure objectivity.64 Here, Ms. Shapiros so-called research interview has no indicia of reliability. Dr. Edelstein provides only a cursory description of the method in which the interviews were conducted and testifies only to the results without providing any underlying documentation.65 Further, Dr. Edelstein provides no indication that any steps were taken to avoid interviewer bias. This failure is striking given the Board has previously found that Ms. Shapirothe interviewer on which Dr. Edelstein reliesdisplayed an appalling lack of candor and repeatedly misrepresented facts in pleadings filed with this 62 See N.J. Dept of Envtl. Prot. v. NRC, 561 F.3d 132, 140 (3d Cir. 2009).

63 See id.; see also La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 101 (1998)

([N]othing in NEPA or in the cases interpreting it indicates that the statute is a tool for addressing problems of racial discrimination.)

64 See Toys R Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp. 1189, 1205 (E.D.N.Y. 1983) (Toys R Us).

65 Exh. CLE000003, Edelstein Testimony at 5.

DB1/ 68831667.9 Board.66 Therefore, Dr. Edelsteins testimony concerning Rockland County Jail, which relies on unreliable foundation material, should be excluded in its entirety.67

5. Dr. Edelsteins Testimony and Report Raise Issues Concerning Fukushima That Are Likely to Become the Subject of Rulemaking The Board also should exclude those portions of Dr. Edelsteins testimony and report, identified in Attachment 1, concerning lessons learned from events at Fukushima.68 Such issues currently are under active Commission review and are likely to be part of future NRC rulemaking.69 Commission precedent dictates that a contention that raises a matter that is, or is about to become, the subject of a rulemaking, is outside the scope of a licensing proceeding.70 C. Ms. Greenes Testimony Should Be Excluded In Its Entirety Because (1) She Lacks Relevant Expertise and Relies on Unreliable Interviews, (2) Challenges the Adequacy of Emergency Plans, (3) Raises Issues Concerning Non-Institutional and Non-EJ Populations, and (4) Raises Other Issues Outside the Scope of CW-EC-3A Clearwater seeks to have Ms. Manna Jo Greene testify in her professional capacity as Clearwaters Environmental Director based on her EJ experience. Ms. Greene primarily testifies about interviews Clearwater conducted at various facilities near Indian Point to assess their 66 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Striking WestCANs Request for Hearing) at 1 (July 31, 2008) (unpublished), affd CLI-08-29, 68 NRC 899 (2008). Likewise, the Commission found that Ms. Shapiros misrepresentations were neither inadvertent nor isolated, and directed the Secretary of the Commission to screen all future filings with her signature. Indian Point, LBP-08-13, 68 NRC at 901.

67 See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 747-748 (3d Cir. 1994) (If underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.) (citation omitted).

68 See Exh. CLE000003, Edelstein Testimony at 4 (Q15 & A15); Exh. CLE00012A, Edelstein Report Part 1 at 18-19; Exh. CLE00012B, Edelstein Report Part 2 at 38.

69 See Staff Requirements Memorandum - SECY-11-0124, Recommended Actions To Be Taken Without Delay from the Near-Term Task Force Report (Oct. 18, 2011), available at ADAMS Accession No. ML112911571; SECY-11-0124 (Sept. 9, 2011), available at ADAMS Accession No. ML11245A127.

70 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC 98, 100 (July 8, 2010); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 345 (1999) (holding that while the topic petitioners sought to raise was not governed by a current rule, the issuance of an SRM for the NRC Staff to initiate a rulemaking on the topic was sufficient to preclude the topic from litigation in individual licensing proceedings) (citing Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 85 (1974)).

DB1/ 68831667.9 level of emergency preparedness and ability to evacuate. As discussed below, the Board should exclude Ms. Greenes testimony in its entirety.

1. Ms. Greene Lacks Relevant Expertise and Her Research Interviews Do Not Meet the Most Basic Requirements of Reliability The Board should exclude Ms. Greenes testimony because Ms. Greene is neither qualified to testify on Clearwaters interview data, nor are the interviews underlying her testimony reliable. Clearwater relies on Ms. Greenes testimony to introduce the results of emergency planning interviews conducted by Ms. Greene and various other individuals associated with Clearwater.71 Clearwater, however, does not demonstrate that Ms. Greene has the requisite expertise in designing, conducting, or extrapolating data from interviews. Nor has Clearwater presented any evidence suggesting Ms. Greene or any of her co-interviewers has the expertise necessary to interpret the interview results and develop an opinion on whether there is, in fact, a potential for a disparate impact. Accordingly, Ms. Greenes testimony is not reliable evidence.

As noted above in Section III.B.4, the reliability of any interviews results depends on whether the interview was conducted according to generally accepted interview principles.72 Here, the research interviews conducted by Clearwater have no indicia of reliability.

Ms. Greene provides only a cursory description of the method in which the interviews were conducted and testifies only to the results without providing any underlying documentation other than a single blank interview form.73 Ms. Greene provides no indication that any steps were taken to avoid interviewer bias and, indeed, all evidence is to the contrary given that all of the 71 Exh. CLE000010, Greene Testimony at 3-4.

72 See Toys R Us, 559 F. Supp. at 1205.

73 Exh. CLE000010, Greene Testimony at 3-4; see also Exh. CLE000033, Hudson River Sloop Clearwater, Emergency Evacuation Interview Questions (2011).

DB1/ 68831667.9 interviewers are affiliated with Clearwater. This is not a trivial point, as the Board has previously found that one of Clearwaters interviewers, Ms. Susan Shapiro, displayed an appalling lack of candor and repeatedly misrepresented facts in pleadings filed with this Board.74 In summary, Ms. Greenes testimony is presented as an objective recounting of Clearwaters interviews, but is lacking any indicia of reliability. This is further demonstrated by gratuitous, argumentative, and unreliable statements in her testimony. For example, Ms. Greene states: Clearwater also attempted, but was unable, to interview several people who expressed concern for their jobs or funding for their programs, because Entergy provided charitable donations to these facilities.75 Such reported statements by unknown individuals are inherently unreliable and, therefore, inadmissible.76

2. Ms. Greenes Testimony Challenges the Adequacy of Emergency Plans The Board should also exclude Ms. Greenes testimony for directly challenging the adequacy of existing emergency plans. In fact, the sole purpose of Ms. Greenes testimony is to summarize interviews Clearwater conducted at various facilities to assess their level of preparedness and ability to evacuate if there should be a radiological emergency at Indian Point that required an emergency response.77 Based on these interviews, Ms. Greene concludes that the level of emergency preparedness varies considerably among the various facilities,

[r]euniting children with their parents is also problematic, and, [w]hile Clearwater questions the viability of any emergency evacuation for everyone . . . around Indian Point, . . . much better 74 Indian Point, CLI-08-29, 68 NRC at 899.

75 Exh. CLE000010, Greene Testimony at 4.

76 Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-367, 5 NRC 92, 121 (1977)

(finding non-expert testimony unreliable when based only on what he was told by anonymous expert). The incomplete nature of these interviews casts further doubt on the reliability of Clearwaters interview process.

77 Exh. CLE000010, Greene Testimony at 3 (emphasis added).

DB1/ 68831667.9 outreach and disaster preparedness is needed for institutions that house poverty-stricken or low-income, disabled, minority and non-English-speaking populations.78 Because the adequacy of emergency plans is not subject to challenge in this proceeding, this testimony is irrelevant.

3. Ms. Greenes Testimony Addresses Non-Institutional and Non-EJ Populations That Are Beyond the Scope of CW-EC-3A Ms. Greenes testimony is irrelevant for an additional reason. The Board admitted CW-EC-3A only with respect to the potential for disparate impacts on institutional EJ populations in the event of a severe accident.79 Ms. Greenes testimony largely ignores this issue and focuses on non-institutional, transportation-dependent populations;80 non-residential day care centers and head start programs;81 nursing homes, hospitals, and other facilities that are not EJ populations;82 non-institutional affordable housing communities;83 and emergency services providers.84 Because none of this testimony concerns impacts associated with severe accidents on EJ populations residing in institutions, none of this testimony is relevant.

4. Ms. Greenes Testimony Concerns the Impacts of PCBs and Other Toxins that Are Outside the Scope of CW-EC-3A and that Were Previously Rejected Ms. Greene improperly expands the scope of CW-EC-3A by claiming that the FSEIS should have considered EJ impacts associated with ingestion or exposure to PCBs, mercury, dioxin, and other chemicals, in conjunction with planned releases of radioactivity from Indian Point.85 As the Commission stated, the scope of a contention is limited to issues pled with 78 Id. at 29.

79 See Indian Point, LBP-08-13, 68 NRC at 200-01.

80 Exh. CLE000010, Greene Testimony at 4-6.

81 Id. at 6-13.

82 Id. at 13-22.

83 Id. at 24-26.

84 Id. at 26-27.

85 Id. at 29-32.

DB1/ 68831667.9 particularity unless the contention is amended in accordance with NRC regulations.86 Not only are these issues not part of the admitted bases of the contention, but the Board specifically rejected an earlier attempt by Clearwater to litigate similar issues.87 Therefore, for this additional reason, Ms. Greenes testimony is irrelevant.

D. Dr. Larsens Testimony Should Be Excluded In Its Entirety Because Issues Concerning Non-EJ Populations Are Outside the Scope of CW-EC-3A, and Because It Challenges Emergency Plans Clearwater seeks to have Dr. Erik A. Larsen, Associate Medical Director at White Plains Hospital Emergency Department, testify in his individual capacity as a physician and as a concerned citizen with expertise in emergency medical response.88 Dr. Larsens testimony describes a single experience treating a worker from Indian Point and local emergency medical response capabilities. As discussed below, the Board should exclude his testimony in its entirety.

The Board admitted CW-EC-3A only with respect to the potential for disparate impacts on institutional EJ populations in the event of a severe accident.89 Dr. Larsens testimony does not address this issue. Instead, Dr. Larsens testimony focuses on hospital patients in general.90 The only discussion of potential EJ populations in his testimony relates to potential disparities the uninsured may have in obtaining follow-up medical care.91 But Dr. Larsen fails to provide any connection between the uninsured and the scope of this contention. Therefore, Dr. Larsens testimony is irrelevant.

86 Vogtle, CLI-10-05, 71 NRC at 100.

87 Indian Point, LBP-08-13, 68 NRC at 200 (rejecting argument concerning ingestion of radionuclides and toxins due to subsistence fishing).

88 Exh. CLE000005, Larsen Testimony at 1.

89 See Indian Point, LBP-08-13, 68 NRC at 200-01.

90 Exh. CLE000005, Larsen Testimony at 2-3.

91 Id. at 3.

DB1/ 68831667.9 Furthermore, Dr. Larsens testimony directly challenges the adequacy of current emergency plans. For example, Dr. Larsen asserts that local hospitals would be unprepared in the event of an accident at Indian Point, that current emergency plans are not viable for either ambulatory or non-ambulatory patients, and that it is essential to create a more robust and comprehensive plan.92 Accordingly, Dr. Larsens testimony regarding the adequacy of emergency plans should be excluded as irrelevant.

E. Portions of Mr. Mairs Testimony Should Be Excluded Because Issues Concerning Non-Institutional Populations Are Outside the Scope of CW-EC-3A and For Challenging the Adequacy of Emergency Plans Clearwater seeks to have Mr. Aaron Mair, a radio talk show host and staff member of the New York State Department of Health, testify in his personal capacity and based on his general experience in EJ and geographic information systems. Mr. Mair provides background on the EJ movement and focuses on the City of Peekskill, including its demographics, impacts from landfills and other industrial facilities, and emergency planning issues related to automobile ownership rates and local terrain and roads. As discussed below, the Board should exclude irrelevant portions of Mr. Mairs testimony identified in Attachment 1.

The Board admitted CW-EC-3A only with respect to the potential for disparate impacts on institutional EJ populations in the event of a severe accident.93 Mr. Mairs testimony does not address this issue. Instead, it concerns: (1) the demographics of the City of Peekskill, with no discussion of institutional populations; (2) impacts from industrial facilities in Peekskill; and (3) the potential for disparate impacts due to the asserted low rate of automobile ownership in 92 Id. at 2-3. In addition, Dr. Larsen provides no basis on which to conclude that he has the expertise to assess likely medical demand if an accident were to occur, or to quantify existing medical capacity, much less to compare the two. Thus, Dr. Larsens opinion on such issues is not reliable evidence.

93 See Indian Point, LBP-08-13, 68 NRC at 200-01.

DB1/ 68831667.9 Peekskill and the rugged terrain and limited road access.94 Because none of this testimony directly relates to the scope of the admitted contention, none of it is relevant.

Furthermore, portions of Mr. Mairs testimony amount to a challenge to current emergency plans. For example, Mr. Mair asserts that there would be evacuation difficulties for EJ populations that do not have access to automobiles.95 Because the adequacy of evacuation plans is not subject to challenge in this proceeding, none of this testimony is relevant.

Accordingly, the evidence identified in Attachment 1 should be excluded.

F. Portions of Mr. Fillers Testimony Should Be Excluded Because It Challenges the Adequacy of Emergency Plans and Issues Concerning Non-Institutional Populations Are Outside the Scope of CW-EC-3A Clearwater seeks to have Mr. Stephen Filler testify in his personal capacity and as a Clearwater Board Member regarding Indian Point emergency planning documents. As discussed below, the Board should exclude the irrelevant portions of Mr. Fillers testimony identified in Attachment 1.

As the Board and Commission case law have made clear, challenges to Indian Point emergency plans are outside the scope of CW-EC-3A.96 Mr. Filler, however, ignores this directive and includes several challenges to the adequacy of emergency plans. For example, he voices his concerns regarding planning for food and water supplies at certain medical facilities that might shelter-in-place rather than evacuate, transit-dependent individuals, and maintenance of an up-to-date list of the location of non-institutionalized mobility-impaired individuals.97 Because the adequacy of emergency plans is not subject to challenge, this testimony is irrelevant.

94 Exh. CLE000007, Mair Testimony at 6-11.

95 Id. at 7-11.

96 Indian Point, LBP-08-13, 68 NRC at 201; see also Pilgrim, CLI-10-11, 71 NRC at 302.

97 Exh. CLE000009, Filler Testimony at 2-3.

DB1/ 68831667.9 Furthermore, the Board admitted CW-EC-3A only with respect to the potential for disparate impacts on institutional EJ populations in the event of a severe accident.98 Portions of Mr. Fillers testimony, however, focus on non-institutional or non-EJ populations.99 Because this testimony is irrelevant, the Board should exclude the evidence identified in Attachment 1.

G. Mr. Papas Testimony Should Be Excluded In Its Entirety Because It Challenges the Adequacy of Emergency Plans and Issues Related to U.S. Drug Policy Are Irrelevant to CW-EC-3A Clearwater seeks to have Mr. Anthony Papa, the manager of media relations at the Drug Policy Alliance and a former inmate at Sing Sing, testify in his individual capacity. Mr. Papas testimony discusses his incarceration and release from Sing Sing, U.S. drug policy, his work for the Drug Policy Alliance, and his personal views concerning emergency planning at Sing Sing.

As discussed below, the Board should exclude Mr. Papas testimony in its entirety.

Essentially all of Mr. Papas testimony amounts to a challenge to current emergency planning related to Sing Sing. For example, Mr. Papa asserts that it would be extremely difficult to evacuate Sing Sing in a reasonable amount of time and that Sing Sing is not a very good building for sheltering in place.100 Because the adequacy of existing emergency plans is not subject to challenge in this proceeding, none of this testimony is relevant. Furthermore, Mr. Papas opinions about U.S. drug policy and his work at the Drug Policy Alliance101 are irrelevant and have no bearing on resolution of CW-EC-3A. Accordingly, none of this testimony is relevant.102 98 See Indian Point, LBP-08-13, 68 NRC at 200-01; see also Pilgrim, CLI-10-11, 71 NRC at 302.

99 Exh. CLE000009, Filler Testimony at 2-3.

100 Exh. CLE000004, Papa Testimony at 3, 4.

101 Id. at 2-3 (Q5 to Q8).

102 Although not admissible as evidence, 10 C.F.R. § 2.315(a) provides the option for limited appearance statements.

DB1/ 68831667.9 H. Mr. Simms Testimony Should Be Excluded In Its Entirety Because Mr. Simms (1) Raises Issues Concerning Non-EJ Populations, (2) Lacks Relevant First-Hand Knowledge, and (3) Challenges the Adequacy of Emergency Plans Clearwater seeks to have Mr. John Simms, a retiree living in Bethel Springvale Inn, testify in his individual capacity regarding demographics and emergency planning at Bethel Springvale Inn. As discussed below, the Board should exclude this testimony in its entirety.

As an initial matter, the Board should exclude Mr. Simms testimony because it is beyond the scope of CW-EC-3A. The Board admitted CW-EC-3A only with respect to the potential for disparate impacts on institutional EJ populations in the event of a severe accident.103 Mr.

Simms testimony does not address this issue. In fact, when asked about Springvale Inn residents, Mr. Simms opines that the average person here is at least middle class.104 Thus, Mr.

Simms testimony is not relevant.

In addition, Mr. Simms states that he has never been given information or prepared for a radiological emergency, and thus his testimony is definitely not an official answer about Indian Point emergency plans.105 Nonetheless, Clearwater asked Mr. Simms to speculate about local emergency plans despite his admitted lack of knowledge about such issues. Clearwater does nothing to establish that Mr. Simms personal opinions have any relevance to existing Indian Point emergency plans or how such plans would be applied at Springvale Inn or any other facility. Therefore, Mr. Simms testimony is not reliable or relevant evidence.

Furthermore, portions of Mr. Simms testimony challenges the adequacy of current emergency plans. For example, Mr. Simms testimony asserts that [a]n evacuation would be 103 See Indian Point, LBP-08-13, 68 NRC at 200-01.

104 Exh. CLE000006, Simms Testimony at 2 (emphasis added).

105 Id. at 2-3.

DB1/ 68831667.9 extremely difficult for people at [Bethel Springvale Inn].106 Accordingly, Mr. Simms testimony should be excluded as irrelevant for this reason as well.

I. Ms. Guardados Testimony Should Be Excluded In Its Entirety Because (1) Issues Concerning Non-Institutional Populations Are Outside the Scope of CW-EC-3A, (2) It Challenges the Adequacy of Emergency Plans, and (3) Ms. Guardado Lacks Relevant First-Hand Knowledge Clearwater seeks to have Ms. Dolores Guardado, a resident of Peekskill and member of its Hispanic community, testify in her personal capacity regarding the Hispanic community in Peekskill and Indian Point emergency plans, including KI distribution and evacuations. As discussed below, the Board should exclude Ms. Guardados testimony in its entirety as set forth in Attachment 1.

The Board admitted CW-EC-3A only with respect to the potential for disparate impacts on institutional EJ populations in the event of a severe accident.107 Ms. Guardados testimony does not address this issue. Instead, Ms. Guardados testimony concerns alleged challenges in evacuating non-institutional members of the general Hispanic community.108 Therefore, none of this testimony is relevant.

Ms. Guardados testimony also challenges current emergency plans. For example, Ms. Guardado asserts that Spanish translations of emergency planning information are not distributed appropriately, and that the language barrier will result in evacuation difficulties.109 Because the adequacy of evacuation and emergency plans is not subject to challenge in this proceeding, this testimony should be excluded.

106 Id. at 2.

107 See Indian Point, LBP-08-13, 68 NRC at 200-01.

108 Exh. CLE000008, Guardado Testimony at 4-6.

109 Id. at 4-5.

DB1/ 68831667.9 The Board should also exclude Ms. Guardados testimony because Clearwater has failed to demonstrate that Ms. Guardado has sufficient knowledge in the areas on which she offers an opinion. For example, she testifies based only on her own personal experience and admittedly has no specific knowledge of Indian Point emergency plans. Nonetheless, Clearwater offers her opinions about the general adequacy of those plans. Accordingly, given her lack of personal knowledge about, or expertise in, emergency planning, Ms. Guardados opinion is not reliable evidence.110 J. Portions of Clearwaters Position Statement Addressing Excluded Evidence Should Also Be Excluded and Accorded No Weight Clearwater also discusses the preceding testimony and supporting evidence in its Position Statement on this contention.111 Those portions of Clearwaters Position Statement that rely on inadmissible evidence or otherwise raise excluded issues may be stricken.112 Therefore, to the extent the Board grants this Motion and excludes evidence indentified in Attachment 1 to this Motion, the associated discussions in the Position Statement should be excluded and accorded no weight in the Boards decision on CW-EC-3A.

IV. CONCLUSION For the foregoing reasons, the Board should exclude the portions of Clearwaters pre-filed testimony and exhibits discussed above and identified in Attachment 1 to this Motion.

110 See, e.g., Georgia Tech, LBP-96-10, 43 NRC at 231; see also Turkey Point, ALAB-950, 33 NRC at 501 (non-experts submission considered as argument, not evidence).

111 Exh. CLE000002, Initial Statement of Position for Clearwaters Contention EC-3A Regarding Environmental Justice at 22-32 (Dec. 22, 2011) (Position Statement).

112 See AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Licensing Board Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) at 2 (Aug. 9, 2007) (unpublished); Entergy Nuclear Vt. Yankee (Vt. Yankee Nuclear Power Station), Licensing Board Order (Ruling on Motions to Strike and Motions in Limine) at 2-3 (July 16, 2008) (unpublished). But see Calvert Cliffs 3 Nuclear Project, LLC (Combined License Application for Calvert Cliffs Unit 3), Licensing Board Order (Granting in Part and Denying in Part NRC Staffs Motion in Limine) at 5 (Jan. 17, 2012) (unpublished)

(We need not rule on the admissibility of statements of position because they will not be admitted as evidence, but will only be considered by the Board in its merits ruling to the extent they are based on admitted evidence.).

DB1/ 68831667.9 Respectfully submitted, Signed (electronically) by Paul M. Bessette Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com William C. Dennis, Esq.

ENTERGY NUCLEAR OPERATIONS, INC.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.

this 30th day of January 2012 DB1/ 68831667.9 Entergy Attachment 1 to Motion In Limine to Exclude Portions of Clearwaters Pre-Filed Testimony and Exhibits for Contention CW-EC-3A (Environmental Justice)

Location of Information to Be Excluded Basis for Exclusion CLE000003: Edelstein Testimony Page 3, A11, exclude the sentence beginning These portions of the Edelstein Testimony Second, even if there . . . through the end of the challenge the adequacy of emergency plans.

sentence ending . . . social disruption and violence.

Page 4, A14, exclude entirety.

Page 5, A16, first paragraph, exclude the sentence beginning Sheltering in place would result in . .

. through the end of the sentence ending . . . if sufficient transport were available.

Page 3, A11, exclude the sentence beginning Edelstein has not demonstrated requisite Second, even if there . . . through inability to qualifications to offer an opinion on the seal the building. effectiveness of emergency plans and Pages 3-4, A11, exclude entire sentence associated protective actions at preventing beginning Overall . . . health effects from radiological exposure in the event of a severe accident.

Page 4, A15, exclude the sentence beginning Edelstein has not demonstrated requisite The accident at Fukushima. . . through the end qualifications to offer an opinion on the of the sentence ending . . . close to the reactor. likelihood and consequences of a severe accident.

Page 5, A16, exclude the entire paragraph This portion of the Edelstein Testimony beginning Yes. relies on unreliable interviews.

Page 4, Q15 & A15, exclude entirety. This portion of the Edelstein Testimony raises issues that are likely to become the subject of rulemaking.

CLE00012A: Edelstein Report Part 1 Pages 16-18, exclude the section beginning 4. Edelstein has not demonstrated requisite The Conditions created by a nuclear accident qualifications to offer an opinion on the represent a unique type of disaster through the effectiveness of emergency plans and end of the sentence ending . . . nothing to be associated protective actions at preventing done. health effects from radiological exposure in Pages 18-19, exclude the sentence beginning the event of severe accidents.

The range of what could happen. . . through the end of the sentence ending . . . worst case event occur.

Page 9, exclude the sentence beginning In this These portions of the Edelstein report Dantesque situation . . . through the end of the concern psychological issues that do not sentence ending left to die. warrant consideration under NEPA.

Pages 14-15, exclude the sentence beginning A failure to be protective. . . through the end of the sentence ending inmate prison culture.

Pages 7-11, exclude the section beginning 1. This portion of the Edelstein report DB1/ 68831667.9 Location of Information to Be Excluded Basis for Exclusion Lessons of Katrina about Prison Disaster challenges impacts too attenuated to warrant Response through the end of the sentence ending consideration under NEPA: prison

. . . what symptoms do prisoners have? conditions.

Pages 18-19, exclude entire section beginning This portion of the Edelstein report raises Lessons of Fukushima issues likely to become the subject of rulemaking.

CLE00012B: Edelstein Report Part 2 Pages 20-21, exclude entire sections beginning These portions of the Edelstein report Protective Options for Radiation Exposure and challenge the adequacy of emergency plans.

Evacuation Trigger---Two Guidances.

Pages 21-23, exclude entire section beginning Summary1. Lessons of Katrina for Sing Sing.

Particularly irrelevant are bullets beginning First, Sixth, Seventh, and Finally.

Pages 23-28, exclude entire section beginning 2.

An inmate perspective on protective mitigation.

Pages 28-36, exclude entire section beginning 3.

Is shelter-in-place a viable mitigation for the Sing Sing inmate population? through the end of the sentence ending even more challenging possibilities.

Pages 36-38, exclude entire section beginning 4.

Is evacuation a viable mitigation for the Sing Sing inmate population?

Pages 28-31, exclude the section beginning 3. Is Edelstein has not demonstrated requisite shelter-in-place a viable mitigation for the Sing qualifications to offer an opinion on the Sing inmate population? through the end of the effectiveness of emergency plans and bullet ending and for how long? associated protective actions at preventing Pages 32-33, exclude the section beginning health effects from radiological exposure in Shadow Evacuations through the end of the the event of a severe accident.

sentence ending strategy for Sing Sing.

Pages 36-38, exclude entire section beginning 4.

Is evacuation a viable mitigation for the Sing Sing inmate population?

Page 37, exclude entire sentence beginning Should sheltering not prove viable . . .

Pages 21-23, exclude the sentence beginning Edelstein has not demonstrated requisite Psychological and social threats. . . through the qualifications to offer an opinion on the end of the sentence ending . . . perceptions, likelihood and consequences of severe expectations and behavior. accidents.

Pages 31-32, exclude the section beginning These portions of the Edelstein report Psycho-Social Impacts through the end of the concern the potential for psychological and sentence ending . . . inmate anger would be a mental impacts, which is irrelevant to the near certainty. NRCs NEPA evaluation.

DB1/ 68831667.9 Location of Information to Be Excluded Basis for Exclusion Page 36, exclude entire paragraph beginning Given the plan to shelter-in-place.

Page 16, exclude the words failures to consider These portions of the Edelstein report terrorism concern the potential for terrorism, which is Page 18, exclude the sentence beginning As a irrelevant to the NRCs NEPA evaluation.

result, the full range of events . . . through the end of the sentence ending . . . terrorism and other potential yet undefined calamities.

Pages 21-23, exclude the sentence beginning Of course, the Louisiana disaster. . . through the end of the sentence ending . . . perceptions, expectations and behavior.

Pages 31-32, exclude the section beginning These portions of the Edelstein report Psycho-Social Impacts through the end of the challenge conditions over which neither sentence ending . . . pre-decision to shelter-in- Entergy nor the NRC has any control or place. authority, which are irrelevant to the NRCs Pages 33-35, exclude the section beginning The NEPA evaluation.

ETS experience at Sing Sing through the end of the sentence ending . . . requests for help.

Page 38, exclude entire paragraph beginning The This portion of the Edelstein report raises latter point . . . issues likely to become the subject of rulemaking.

CLE00012C: Edelstein Report Part 3 Pages 39-40, exclude entire section beginning This portion of the Edelstein report Moving a high security prison population is challenges the adequacy of emergency problematic through the end of the sentence plans.

ending . . . protect this EJ population.

Pages 40-44, exclude entire section beginning 5. Edelstein has not demonstrated requisite Proposals to strengthen mitigation, through qualifications to offer an opinion on the conclusion. effectiveness of emergency plans and associated protective actions at preventing health effects from radiological exposure in the event of a severe accident.

Pages 39-43, exclude section beginning Moving This portion of the Edelstein report a high security prison population is problematic challenges conditions over which neither through the end of the sentence ending meeting Entergy nor the NRC has any control or inmate needs. authority, which are irrelevant to the NRCs NEPA evaluation.

CLE000010: Greene Testimony Exclude entirety. Greene has not demonstrated requisite DB1/ 68831667.9 Location of Information to Be Excluded Basis for Exclusion expertise, relies on unreliable interviews, challenges the adequacy of emergency plans, raises issues concerning non-institutional and non-EJ populations, and raises other issues outside the scope of CW-EC-3A.

CLE000005: Larsen Testimony Exclude entirety. The Larsen Testimony challenges the adequacy of emergency plans and raises issues concerning non-EJ populations.

CLE000007: Mair Testimony Pages 6-11, Q6 through A16, exclude entirety. This portion of the Mair Testimony is beyond the scope of CW-EC-3A (does not concern impacts associated with severe accidents on low-income or minority populations residing in institutions).

Pages 8-11, exclude from sentence beginning This portion of the Mair Testimony The higher proportion . . . through end of A16. challenges the adequacy of emergency plans.

CLE000009: Filler Testimony Page 2, A3, exclude the sentence It is unclear These portions of the Filler Testimony how replacement supplies of water and food challenge the adequacy of emergency plans.

would be provided.

Page 2, A3, exclude the sentence Further, there is no plan . . . safely ventilated.

Page 2, A4, exclude the sentence Although those people are supposed to shelter-in-place prior to arrival of the bus, it is unclear how this is possible.

Page 2, A4, exclude the sentence It is again unclear how this groups will shelter in place . .

.will be maintained.

Page 3, A4, exclude entire sentence In addition .

Page 2, A3, exclude entire sentence Thus the These portions of the Filler Testimony focus Westchester. . .exposed to. on non-institutional or non-environmental Page 2-3, Q4 & A4, exclude entirety. justice populations.

Page 3, Q5 & A5, exclude entirety.

CLE000004: Papa Testimony Exclude entirety. The Papa Testimony challenges the adequacy of emergency plans, and issues related to U.S. drug policy are irrelevant.

CLE000006: Simms Testimony Exclude entirety. The Simms Testimony does not discuss disparate impacts on minority and low-DB1/ 68831667.9 Location of Information to Be Excluded Basis for Exclusion income populations in institutions, is based almost exclusively on speculation, and challenges the adequacy of emergency plans.

CLE000008: Guardado Testimony Exclude entirety. The Guardado Testimony does not address impacts associated with institutional low-income or minority populations and challenges the adequacy of emergency plans. Ms. Guardado also lacks relevant first-hand knowledge of Indian Point emergency plans.

CLE000013: Letter from Bates to DelBello (February 4, 1981)

Exclude entirety. Relied upon to challenge the adequacy of emergency plans. See Exh. CLE000003, Edelstein Testimony at 2, A9; Exh.

CLE00012B, Edelstein Report Part 2 at 21.

CLE000019: Tony Papa Artwork Exclude entirety. Irrelevant to CW-EC-3A.

CLE000022: Brookings Institution Report: Alan Berube, Elizabeth Deakin and Steven Raphael, Socioeconomic Differences in Household Automobile Ownership Rates:

Implications for Evacuation Policy (June 2006)

Exclude entirety. Relied upon to challenge the adequacy of emergency plans and concerns only non-institutional populations. See Exh.

CLE000010, Greene Testimony at 6, A9; Exh. CLE000007, Mair Testimony at 9, A12.

CLE000023: Patrick McGeehan, Operators of Indian Point Say Changes are Likely (NY Times, March 21, 2011)

Exclude entirety. Relied upon to challenge the adequacy of emergency plans. See Exh. CLE000007, Mair Testimony at 10, A16.

CLE000026: NJ DEP Strategies For Addressing Cumulative Impacts In Environmental Justice Communities (March 2009)

Exclude entirety. Irrelevant to CW-EC-3A. See Exh.

CLE000010, Greene Testimony at 30, A165.

CLE000027: Faber & Kreig, Unequal Exposure to Ecological Hazards: Environmental Injustices in the Commonwealth of Massachusetts (April 2002)

Exclude entirety. Relied upon to raise an issue that is beyond the scope of CW-EC-3A: environmental DB1/ 68831667.9 Location of Information to Be Excluded Basis for Exclusion justice in Massachusetts. See Exh.

CLE000010, Greene Testimony at 30, A165.

CLE000032: MJ Wilson, Partial Inventory of Potential EJ Institutions Within 50 miles of Indian Point Exclude entirety. Does not necessarily address environmental justice populations within the scope of CW-EC-3A. See Exh. CLE000010, Greene Testimony at 3, A5, 13, A54.

CLE000034: AJM Consulting, Inc. and Nelson\Nygaard Consulting Associates, Westchester County Bee-Line System On-Board Survey-2010 (April 2011)

Exclude entirety. Relied upon to raise an issue that is beyond the scope of CW-EC-3A: transportation of non-institutional or non-environmental justice populations. See Exh. CLE000010, Greene Testimony at 4, A7; Exh.

CLE000002, Position Statement at 30, x.

CLE000035: Abby Luby, Schools say Indian Point Evacuation Plan Unrealistic (North Country News, Nov. 19, 2008)

Exclude entirety. Relied upon to challenge the adequacy of emergency plans. See Exh CLE000010, Greene Testimony at 11, A43.

CLE000040: Pratt Center for Community Development, Public Housing in New York City:

Building Communities of Opportunity (2009)

Exclude entirety. Relied upon to challenge the adequacy of emergency plans. See Exh. CLE000010, Greene Testimony at 5, A8.

CLE000041: Federal Transit Administration, Transportation Equity in Emergencies (May 2007)

Exclude entirety. Relied upon to challenge the adequacy of emergency plans. See Exh. CLE000010, Greene Testimony at 5, A8.

DB1/ 68831667.9 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) )

) January 30, 2012 MOTION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), counsel for Entergy certifies that he 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 he certifies that his efforts have been unsuccessful. The NRC Staff does not oppose this Motion and anticipates filing an answer.

Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

DB1/ 68831667.9 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) )

) January 30, 2012 CERTIFICATE OF SERVICE I hereby certify that on January 30, 2012, a copy of the Entergys Motion in Limine to Exclude Portions of Clearwaters Pre-Filed Testimony and Exhibits for Contention CW-EC-3A (Environmental Justice) was served electronically via the Electronic Information Exchange on the following recipients:

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: Kaye.Lathrop@nrc.gov)

(E-mail: Lawrence.McDade@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: Richard.Wardwell@nrc.gov)

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

(E-mail: Anne.Siarnacki@nrc.gov)

DB1/ 68831667.9

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

Edward L. Williamson, Esq. Assistant County Attorney Beth N. Mizuno, Esq. Office of Robert F. Meehan, Esq.

David E. Roth, Esq. Westchester County Attorney Brian G. Harris, Esq. 148 Martine Avenue, 6th Floor Mary B. Spencer, Esq. White Plains, NY 10601 Anita Ghosh, Esq. (E-mail: MJR1@westchestergov.com)

Brian Newell, Paralegal Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)

(E-mail: Edward.Williamson@nrc.gov)

(E-mail: Beth.Mizuno@nrc.gov)

(E-mail: David.Roth@nrc.gov)

(E-mail: Brian.Harris@nrc.gov)

(E-mail: Mary.Spencer@nrc.gov)

(E-mail: Anita.Ghosh@nrc.gov)

(E-mail: Brian.Newell@nrc.gov)

Manna Jo Greene Daniel Riesel, Esq.

Karla Raimundi Victoria Shiah, Esq.

Hudson River Sloop Clearwater, Inc. Sive, Paget & Riesel, P.C.

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

(E-mail: karla@clearwater.org) (E-mail: vshiah@sprlaw.com)

(E-mail: stephenfiller@gmail.com)

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

Associate Commissioner Office of General Counsel, Region 3 Hearings and Mediation Services NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Corners 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)

DB1/ 68831667.9 John J. Sipos, Esq. Michael J. Delaney, Esq.

Charlie Donaldson Esq. Vice President -Energy Department Assistant Attorneys General New York City Economic Development Office of the Attorney General Corporation (NYCDEC) of the State of New York 110 William Street New York, NY 10038 The Capitol mdelaney@nycedc.com Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)

Phillip Musegaas, Esq. Sean Murray, Mayor Deborah Brancato, Esq. Kevin Hay, Village Administrator 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. Janice A. Dean, Esq.

Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 (E-mail: Janice.Dean@ag.ny.gov)

(E-mail: Robert.Snook@po.state.ct.us)

Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

DB1/ 68831667.9