ML12040A313
| ML12040A313 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/09/2012 |
| From: | Amitava Ghosh NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21879, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12040A313 (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/50-286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS RESPONSE IN SUPPORT OF ENTERGYS MOTION IN LIMINE ON CONTENTION CW-EC-3A (ENVIRONMENTAL JUSTICE)
Pursuant to 10 C.F.R. § 2.323(c) and the February 1, 2012 Order of the Atomic Safety and Licensing Board (Board) in this proceeding, the staff of the U.S. Nuclear Regulatory Commission (Staff) responds to the January 30, 2012 Motion in Limine (Motion) filed by Entergy Nuclear Operations, Inc. (Entergy) to exclude portions of pre-filed testimony and exhibits submitted by Hudson River Sloop Clearwater, Inc. (Clearwater) in support of Contention CW-EC-3A. For the reasons set forth below, the Staff fully supports Entergys motion to exclude portions of Clearwaters testimony and exhibits. Accordingly, the Staff submits that the Board should exclude, in full or in part, the testimony and exhibits challenged in Entergys motion, for the reasons and to the extent set forth therein.
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 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
2 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).
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).
3 B. Entergys Motion in Limine The Staff agrees with Entergy that the only relevant and remaining issue for Contention CW-EC-3A as admitted by the Board, is whetherunder NEPAthe FSEIS and the ER sufficiently analyze any disproportionate environmental impact on minority and low-income populations in nearby institutions in the event of a severe accident. Motion at 5-6. Thus, the Staff agrees with Entergys view that the portions of Clearwaters pre-filed testimony and exhibits that Entergy seeks to exclude from the hearing record should be excluded, on the grounds that this evidence is unreliable, lacks relevance, is beyond the scope of Contention CW-EC-3A, and/or contains testimony from an unqualified expert witness.
Additionally, as this Board has explicitly recognized, the adequacy of emergency planning is outside the scope of license renewal proceedings.1 Moreover, in the Statement of Consideration for the rulemaking on license renewal, the Commission concluded that the adequacy of existing emergency preparedness plans need not be considered anew as part of issuing a renewed operating license. 56 Fed. Reg. 64,943, 64,967 (Dec. 13, 1991). Rather, the adequacy of emergency planning is a safety issue that is evaluated by the Commission on an ongoing basis as part of its oversight of operating reactors under 10 C.F.R. Part 50.2 1
Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, 687 (2010) (we reaffirm that . . . citing Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 149-50 (2008)); cf. id., LBP-08-13, 68 NRC at 201.
2 To ensure that a licensees emergency preparedness plan remains adequate to protect the health and safety of the public, the NRC requires: (1) a detailed annual review of the facilitys emergency preparedness plan by persons who have no direct responsibility for its implementation, (2) an evaluation of the continued adequacy of applicable and appropriate communication and working relationships with State and local governments, and (3) performance of an annual exercise of the licensees emergency preparedness plans evaluated by the NRC against definitive performance criteria. 56 Fed. Reg.
at 64,966. Offsite emergency preparedness plans are also subject to review and evaluation by the Federal Emergency Management Agency (FEMA), and the effectiveness of those plans is evaluated biennially by FEMA and the NRC in comprehensive emergency preparedness exercises. See 10 C.F.R.
§ 50.47(a)(2); 10 C.F.R. Part 50, Appendix E, § IV.F.2. The Commissions requirements in 10 C.F.R. Part 50 ensure continued adequacy of emergency preparedness in light of changes in site characteristics (continued. . .)
4 Accordingly, the Staff agrees with Entergy that to the extent Clearwaters testimony and exhibits challenge the adequacy of existing emergency plans, these items should be excluded from the hearing record.
The Staffs review of Clearwaters proposed testimony and exhibits leads it to conclude that much of that material (a) represents a challenge to the sufficiency of offsite emergency preparedness plans for the Indian Point facility, which is beyond the scope of a license renewal proceeding and irrelevant to the issues in this proceeding, and/or (b) lacks a proper sponsoring witness with the requisite expertise to present that evidence. Accordingly, for the reasons set forth above and in Entergys motion, the Staff supports Entergys motion to exclude the testimony and exhibits, or parts thereof, challenged in Entergys motion on the grounds that this evidence is unreliable, lacks relevance, is beyond the scope of Contention CW-EC-3A, and/or is testimony from an unqualified expert witness.
CONCLUSION For the foregoing reasons, the Staff supports Entergys Motion in Limine to exclude portions of Clearwaters pre-filed testimony and exhibits for Contention CW-EC-3A.
Respectfully submitted,
/Signed (electronically) by/
Anita Ghosh Counsel for the NRC staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-4113
(. . .continued) that may occur during the term of the existing operating license, such as transportation systems and demographics. 56 Fed. Reg. at 64,966. Thus, the NRC has determined that the current requirements, including continuing update requirements for emergency planning, provide reasonable assurance that an acceptable level of emergency preparedness exists at any operating reactor at any time in its operating lifetime. Id. at 64,966-64,967.
5 E-mail: Anita.Ghosh@nrc.gov Dated at Rockville, Maryland this 9th day of February 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 /50-286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC Staffs Response to Entergys Motion in Limine on Contention CW-EC-3A (Environmental Justice), have been served upon the following persons 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/
Anita Ghosh Counsel for the NRC staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-4113 E-mail: Anita.Ghosh@nrc.gov