ML12040A264
| ML12040A264 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/09/2012 |
| From: | Mizuno B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21877, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12040A264 (8) | |
Text
February 9, 2012 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 STAFFS ANSWER IN SUPPORT OF ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF PRE-FILED TESTIMONY AND EXHIBITS FOR CONTENTION NYS-37 (ENERGY ALTERNATIVES)
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the February 1, 2012 Order of the Atomic Safety and Licensing Board (Board),1 the staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) herewith files its answer in support of Entergy Nuclear Operations, Inc.s (Entergy) Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention NYS-37 (Energy Alternatives) (Motion). The Motion is consistent with the Boards July 6, 2011 ruling on Contention NYS-37.2 In addition, the Motion is consistent with the history of the regulation governing the license renewal environmental review. For these reasons, the Motion should be granted.
DISCUSSION A. Legal Standards Governing Motions in Limine.
In an evidentiary hearing, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will 1
Order (Setting Dates for Responsive Pleadings to Entergys Motions in Limine) (February 1, 2012) at 1 (unpublished).
2 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) at 35 (unpublished) (July 6 Order).
be segregated and excluded so far as is practicable. 10 C.F.R. § 2.337(a). While the strict rules of evidence do not apply to written submissions, the Board may on motion or on the presiding officers own initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.
10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).
NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded. See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors testimony and exhibits that were outside the scope of the admitted contention). As the Commission explained:
The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.
Id., 71 NRC at 100-01 (internal footnotes omitted). Recently, the Commission emphasized:
We have long required contention claims to be set forth with particularity, stressing that it should not be necessary to speculate about what a pleading is supposed to mean. Our proceedings would prove unmanageableand unfair to the other partiesif an intervenor could freely change an admitted contention at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.
Petitioners must raise and reasonably specify at the outset their objections to a license application.
Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, __ NRC __ (Feb.
9, 2012) (slip op. at 22-23) (internal citations omitted).
Further, an expert opinion is only admissible if the witness is competent to give an expert
opinion and adequately states and explains the factual basis for the expert opinion. Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-04, 61 NRC 71, 81 (2005). An admissible expert opinion must be based upon sufficient facts or data to be the product of reliable principles and methods that the witness applied to the facts of the case. Id. at 80. In addition, a party bears the burden of demonstrating that its witness is qualified to serve as an expert. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2),
CLI-04-21, 60 NRC 21, 27 (2004). 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.
Id. at 27-28 (internal quotation marks omitted, alteration in original).
B. The Pre-Filed Testimony and Exhibits Address an Issue that Is Beyond the Scope of this Proceeding.
The Motion seeks to strike those portions of the pre-filed testimony, exhibits, and Statement of Position that Intervenor New York State (NYS) filed in support of its Contention NYS-37 that address the need for power from Indian Point. These documents support NYSs assertion that Entergys license renewal application and the Staffs Draft and Final Supplemental Environmental Impact Statements are deficient for failing to address the need for the continued operation of the Indian Point nuclear power plant. They support the proposition that there is no need for the power that the plant generates either directly or in support of grid reliability. However, this Board has previously ruled that the portions of Contention NYS-37 that address the need for the power are precluded by Commission regulations and beyond the scope of this proceeding and, for those reasons, limited the contention.3 The Motion, which seeks to strike portions of NYS submissions consistent with the Boards ruling and Commission regulations, should therefore be granted.
3 July 6 Order at 35, see also, Memorandum and Order (Granting Entergys Request for Clarification) (August 10, 2011) at 6 (unpublished).
C. The Regulations History Provides Further Support for the Motion in Limine.
The Motion is also supported by the regulatory history of the regulation governing the environmental review for license renewal. That regulation provides that license renewal environmental impact statements are not required to include discussion of need for power. 10 C.F.R. § 51.95(c)(2). The regulatory history that accompanied the promulgation of 10 C.F.R.
§ 51.95(c) shows that the Commission considered and rejected a requirement that environmental impact statements for license renewal include an analysis of need for power.
NYS submitted comments on the rulemaking, specifically on the issue of how to address the issue of need for power in the regulatory scheme.4 NYS proposed that the Commissions relicensing decisions should make reference to State determinations on the issues of need for generating capacity and alternative energy sources, and should defer to and be guided by those State determinations to the maximum degree possible pursuant to [the National Environmental Policy Act (NEPA)] .5 NYS also proposed that the Commission make need for power a site-specific determination, rather than a generic determination, and that the Commission state that its analysis of need for power was solely for the purpose of fulfilling its obligations under the NEPA and did not preclude states from making their own determinations regarding need for power.6 The Commission explicitly declined to adopt NYSs approach. The Commission rejected NYSs proposal that need for power be analyzed and that the Commission should be guided by, and defer to, state determinations on the question.7 Instead of adopting NYSs proposal that 4
Environmental Review for Renewal of Operating Licenses, Supplemental Proposed Rulemaking, 59 Fed. Reg. 37742, 37725 (July 25, 1994).
5 Id.
6 Id.
7 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Final Rule, 61 Fed. Reg. 28467, 28471-72 (June 5 1996); see also 59 Fed. Reg. at 37725.
focused on need for power, the Commission excised the issue of need for power from the license renewal process, stating: the NRC will neither perform analyses of the need for power nor draw any conclusions about the need for generating capacity in a license renewal review.8 To the extent that NYS seeks to introduce documents and arguments for the purpose of injecting the issue of need for power into this license renewal proceeding, the regulatory history makes clear that was an approach that the Commission considered and rejected when it promulgated the license renewal environmental regulation in 10 C.F.R. § 51.95(c). Thus, those exhibits, testimony and portions of NYS Statement of Position that Entergy has identified as addressing the need for power should be stricken and Entergys Motion in Limine should be granted.
CONCLUSION For the foregoing reasons, Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention NYS-37 (Energy Alternatives) should be granted.
Respectfully submitted,
/Signed (electronically) by/
Beth N. Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-3122 E-mail: beth.mizuno@nrc.gov Dated at Rockville, Maryland this 9th day of February, 2012 8
61 Fed. Reg. at 28472.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC Staffs Answer in Support of Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention NYS-37 (Energy Alternatives) in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 9th day of February, 2012.
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: O-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAIL.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: O-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 Anne Siarnacki, Esq.
190 Cedar Lane E. Atomic Safety and Licensing Board Panel Ridgway, CO 81432 Mail Stop - T-3 F23 E-mail: Kaye.Lathrop@nrc.gov U. S, Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-Mail: Josh.Kirstein@nrc.gov E-Mail: Anne.Siarnacki@nrc.gov
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 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. ONeill, Esq. Assistant Attorney General, Morgan, Lewis & Bockius, LLP Office of the Attorney General 1000 Louisiana Street, Suite 4000 of the State of New York Houston, TX 77002 120 Broadway, 25th 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
Daniel E. ONeill, Mayor Manna Jo Greene James Seirmarco, M.S. Karla Raimundi 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: karla@clearwater.org Robert Snook, Esq. Daniel Riesel, Esq.
Office of the Attorney General Thomas F. Wood, Esq.
State of Connecticut Victoria Shiah, Esq.
55 Elm Street Sive, Paget & Riesel, P.C.
P.O. Box 120 460 Park Avenue Hartford, CT 06141-0120 New York, NY 10022 E-mail: robert.snook@ct.gov E-mail: driesel@sprlaw.com E-mail: vshiah@sprlaw.com Phillip Musegaas, Esq. Michael J. Delaney, Esq.
Deborah Brancato, Esq. Director, Energy Regulatory Affairs Riverkeeper, Inc. New York City Department of Environmental 20 Secor Road Protection Ossining, NY 10562 59-17 Junction Boulevard E-mail: phillip@riverkeeper.org Flushing, NY 11373 E-mail: dbrancato@riverkeeper.org E-mail: mdelaney@dep.nyc.gov
/Signed (electronically) by/
Beth N. Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: 301-415-3122 E-mail: beth.mizuno@nrc.gov Dated at Rockville, Maryland this 9th day of February, 2012