ML12135A715
| ML12135A715 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/14/2012 |
| From: | Bessette P, Dennis W, Glew W, Rund J, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22442, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12135A715 (21) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
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May 14, 2012 ENTERGYS ANSWER OPPOSING NEW YORK STATES MOTION TO STRIKE PORTIONS OF ENTERGY PRE-FILED TESTIMONY ON CONTENTIONS NYS-17B (PROPERTY VALUES) AND NYS-37 (ENERGY ALTERNATIVES)
I.
INTRODUCTION In accordance with 10 C.F.R. §§ 2.1204, 2.319, 2.323, 2.337, the Atomic Safety and Licensing Board (Board) Scheduling Order of July 1, 2010 (Scheduling Order), and subsequent Order dated April 18, 2012,1 Entergy Nuclear Operations, Inc. (Entergy) files this timely Answer opposing the New York State (NYS) Motion to Strike Portions of Entergy and U.S. Nuclear Regulatory Commission (NRC or Commission) Staff Witness Testimony As Impermissible Under NRC Regulations (Motion to Strike), filed on April 30, 2012.2 NYS moves to strike portions of Entergys testimony on Contentions NYS-17B and NYS-37 that purportedly: (1) offer conclusions on the interpretation of federal law and NRC regulations; (2) offer repetitious and cumulative reviews of documents that will themselves be received into 1
Licensing Board Order (Memorializing Items Discussed at April 16, 2012 Pre-Hearing Conference) at 1 (Apr.
18, 2012) (unpublished) (April 18 Order).
2 State of New York Motion to Strike Portions of Entergy and NRC Staff Witness Testimony As Impermissible Under NRC Regulations (Apr. 30, 2012) (Motion to Strike), available at ADAMS Accession No. ML12121A702.
evidence; (3) attack the Boards decision to admit NYS-17B; and (4) address alternative energy sources, which NYS claims are not relevant to NYS-37.3 As a threshold matter, the Motion to Strike is untimely with respect to Entergys NYS-17B testimony and thus should be denied for this procedural flaw. Even if NYSs Motion to Strike was timely, denial would still be proper because the Motions arguments are meritless.
Contrary to NYSs claims, Entergys expert testimony discussing NRC regulations, NRC Staff guidance, and environmental evaluations by Entergy and NRC Staff is proper and should be admitted. Rather than offering impermissible legal argument or conclusions, Entergys witnesses properly rebut NYS expert testimony, declarations, and reports claiming that Entergy and NRC Staff environmental evaluations are inadequate and fail to comply with the National Environmental Policy Act (NEPA). Entergy has presented qualified experts who have analyzed the relevant facts and appropriately weighed those facts against various regulations, guidance documents, and past NRC environmental review practices. NYSs claim that such testimony usurps the function or invades the province of the Board is misguidedEntergys experts will be subject to questioning by the Board and the Board may accord such weight to the testimony as it sees fit.
NYSs other arguments are similarly unavailing. Having submitted testimony, exhibits, and position statements on NYS-17B and NYS-37 totaling more than 4500 pages, it ill fits NYS to argue that the 30 pages of Entergys testimony discussing the relevant portions of the Environmental Report (ER), Generic Environmental Impact Statement (GEIS), and Final Supplemental Environmental Impact Statement (FSEIS) is unduly repetitious and cumulative.
Moreover, Entergys expert testimony discussing when, why, and how NRC Staff evaluates 3
See id. at 1, 6-21.
offsite land use and property value impacts is entirely consistent with the Boards prior NYS-17B rulings, which have notand indeed could not haveresolved the ultimate merits issue of whether NEPA requires the property value impact assessment suggested by NYS. Finally, Entergys testimony, as well as the testimony of all three NYS witnesses, demonstrates the direct relevance of energy alternatives to NYS-37 and the no-action alternative. The Board should therefore reject NYSs request to exclude directly-relevant and admissible evidence and deny the Motion to Strike.
II.
LEGAL STANDARD 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.4 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.5 III.
BACKGROUND In December 2011, NYS filed its statements of position and direct testimony on Contentions NYS-17B6 and NYS-37.7 Thereafter, in accordance with the Boards Order 4
10 C.F.R. § 2.337(a).
5 See also 10 C.F.R. § 2.333(b). NYS recently argued that motions in limine are generally inappropriate because no jury is involved in this proceeding. See State of New Yorks Answer to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention NYS-37, at 2 (filed Feb. 17, 2012, but dated Jan. 17, 2012), available at ADAMS Accession No. ML12048B408. NYS has apparently changed its position on this issue.
6 See State of New York Initial Statement of Position Contention NYS-17B (Dec. 17, 2011) (NYS000223); Pre-filed Direct Testimony of Stephen C. Sheppard, Ph.D. Regarding Contention 17B (Dec. 16, 2011) (revised Jan.
30, 2012) (Sheppard Testimony) (NYSR00224).
Granting NRC Staffs Unopposed Time Extension Motion,8 Entergy filed its statement of position and direct testimony on NYS-17B on March 28, 2012,9 and its statement of position and direct testimony on NYS-37 on March 30, 2012.10 On April 30, 2012, NYS filed the instant Motion to Strike almost 60 pages of Entergys testimony on NYS-17B and NYS-37. As discussed below, not only do NYSs arguments lack merit, but the Motion to Strike is untimely with respect to Entergys NYS-17B testimony.
IV.
ARGUMENT A.
NYSs Motion is Untimely With Respect to Entergys Testimony on NYS-17B As noted above, Entergy filed its statement of position and direct testimony on NYS-17B on March 28, 2012. The Boards Scheduling Order states that motions to strike are due 30 days following the service of the relevant testimony.11 As such, any motion concerning Entergys testimony on NYS-17B was due on April 27, 2012. Because NYS did not file its Motion to Strike until April 30, 2012, the Motion is untimely with respect to Entergys testimony on NYS-17B and should therefore be denied.12 7
See State of New York Initial Statement of Position Contention NYS-9/33/37 (NYS-37) (Dec. 14, 2011)
(NYS SOP on NYS-37) (NYS000045); Prefiled Written Testimony of David A. Schlissel Regarding Contention NYS-37 (Dec. 14, 2011) (NYS000046) (Schlissel Testimony); Pre-Filed Written Testimony of Peter J. Lanzalotta Regarding Contention NYS-9-33-37 (Dec. 14, 2011) (NYS000047) (Lanzalotta Testimony); Pre-Filed Written Testimony of Peter A. Bradford Regarding Contention NYS-9-33-37 (NYS-
- 37) (Dec. 14, 2011) (NYS000048) (Bradford Testimony).
8 Licensing Board Order Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates (Feb. 16, 2012) (unpublished).
9 Entergys Statement of Position on Contention NYS-17B (Property Values) (Mar. 28, 2012) (ENT000131);
Testimony of Entergy Witnesses Donald P. Cleary, C. William Reamer, and George S. Tolley Regarding Contention NYS-17B (Property Values) (Mar. 28, 2012) (ENT000132) (Entergy NYS-17B Testimony).
10 Entergys Statement of Position on Contention NYS-37 (Energy Alternatives) (Mar. 30, 2012) (ENT000478);
Testimony of Entergy Witnesses Donald P. Cleary, David Harrison Jr., and Eugene T. Meehan Regarding Contention NYS-37 (Energy Alternatives) (Mar. 30, 2012) (ENT000479) (Entergy NYS-37 Testimony).
11 See Scheduling Order at 15.
12 The Boards April 18 Order modifies the Scheduling Order, stating that [i]f Intervenors file motions in limine on or before April 30, 2012, responses thereto will be deemed timely if filed on or before May 14, 2012.
April 18 Order at 1. Thus, the April 18 Order establishes a specific due date for this Answer, but does not modify the due date for NYSs motion.
B.
NYS Fails to Identify Any Valid Basis for Striking Entergys Expert Testimony Even if NYSs Motion to Strike was timely, denial would still be proper because the Motions arguments are meritless.
- 1.
Entergys Witnesses Offer No Impermissible Legal Argument or Conclusions NYS seeks to strike expert testimony on NYS-17B and NYS-37, primarily by Entergy witness Mr. Donald P. Cleary, discussing NRC regulations, NRC Staff guidance, and Entergys and NRC Staffs environmental evaluations because, according to NYS, such testimony invade[s] the province and usurps the role of the Board in determining the applicable law of the case.13 NYS argues that because such testimony cites primarily to NEPA regulations, associated Federal Register notices, regulatory guidance, and the GEIS, it is not a proper subject for expert testimony, but instead should be addressed only in legal briefing.14 Additionally, NYS claims that Entergy inappropriately asks its experts to offer ultimate legal conclusions about how NEPA applies to this proceeding.15 Expert testimony by Mr. Donald P. Cleary and other Entergy witnesses is proper and should be admitted. Expert testimony is admissible if the expert is qualified based on scientific, technical, or other specialized knowledge, and the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.16 Because Entergys expert witness testimony satisfies both of these requirements, it should be admitted and Point I of the Motion should be rejected.
13 Motion to Strike at 6-7.
14 See id. at 7-8.
15 See id. at 9-11.
16 Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 27-28 (2004) (internal quotation marks omitted).
NYS raises no challenge to the qualifications of Mr. Cleary (or any other Entergy expert witness) besides the undisputed fact that he is not an attorney.17 This is not surprising given that Mr. Cleary has more than 38 years of professional experience in the nuclear industry, including more than 25 years as a member of the NRC Staff.18 He also has extensive experience developing and applying NRCs NEPA regulations and guidance and in evaluating alternative energy sources and socioeconomic impacts, including offsite land use impacts.19 Thus, Mr.
Cleary provides testimony as a qualified expert that is based on his extensive experience and specialized knowledge implementing and overseeing NRC environmental regulatory programs in the specific areas at issue in NYS-17B and NYS-37. NYS provides no basis for its apparent claim that expertise on NEPA and its implementation at the NRC is within the exclusive province of legal counsel.20 Because this testimony is helpful to the Board as it considers these contentions, it should be admitted.
Entergys experts cite to NEPA regulations, associated Federal Register notices, regulatory guidance, and the GEIS in offering their opinions. But contrary to NYSs claims, the identification of relevant authorities does not mean that the testimony invades the province and usurps the role of the Board in determining the applicable law of the case.21 Under NYSs unreasonable interpretation of the rules of evidence, expert testimony would be barred as pure argument or legal conclusions22 merely because it describes the methodology used in the GEIS 17 Motion to Strike at 8.
18 See Entergy NYS-17B Testimony at 1-4 (ENT000132); Entergy NYS-37 Testimony at 1-3 (ENT000479).
19 See Entergy NYS-17B Testimony at 1-4 (ENT000132); Entergy NYS-37 Testimony at 1-3 (ENT000479).
20 To the contrary, the Commission has delegated primary responsibility for NEPA implementation to NRC technical staff. See, e.g., 10 C.F.R. § 51.25 (delegating to NRC staff determination on whether NEPA categorical exclusions apply); 10 C.F.R. § 51.26(a) (delegating to NRC staff determination on whether an environmental impact statement will be prepared).
21 See Motion to Strike at 6-10.
22 See id. at 6.
to assess offsite land use impacts; describes the findings and conclusions of the GEIS; summarizes the GEIS case study socioeconomic evaluation; or describes the no-action alternative and how it fits within the assessment of alternatives addressed in the FSEIS.23 In several instances, NYS even suggests that the mere mention of a law, a regulation, the GEIS, or the FSEIS renders expert testimony inadmissible as pure legal conclusion.24 Such an overbroad bar to expert testimony has no legal precedent and would only serve to deprive the Board of helpful information.
Equally unavailing is NYSs claim that Entergy inappropriately asks its experts to offer ultimate legal conclusions about how NEPA applies to this proceeding.25 NYS appears to rest its claim on the outdated notion that expert testimony regarding an ultimate issue is per se inadmissible,26 but the common law prohibition on ultimate issue testimony was abolished long ago. Today, an expert may state an opinion on an ultimate issue provided that all the other requirements for admissibility of expert opinion testimony are met (e.g., the expert is qualified and the opinion is helpful to the trier of fact).27 As NYS acknowledges,28 Federal Rule of Evidence 704 plainly states: An opinion is not objectionable just because it embraces an ultimate issue, and the Advisory Committee Notes elaborate that the basic approach to 23 See id., NYS-17B Chart at 2-3, 6; id., NYS-37 Chart at 1-2.
24 See, e.g., id., NYS-17B Chart at 2 (seeking to strike ENT Q32, which discusses the NRC definitions for SMALL, MODERATE, and LARGE environmental impacts); id. (seeking to strike ENT Q37, which discuses the GEIS evaluation of offsite land use impacts); id., NYS-37 Chart at 1 (seeking to strike ENT Q37, which discusses the standard NRC Staff applies in license renewal proceedings); id. at 2 (seeking to strike ENT Q103 for discussing FSEIS and air quality impacts).
25 Id. at 9-11.
26 See, e.g., id., NYS-37 Chart at 2 (seeking to strike ENT Q52, which discusses conclusions on likely environmental impacts of the no-action alternative because it opines on sufficiency of scope of alternatives considered in the FSEIS).
27 See 1 McCormick on Evidence § 12 (6th ed. 2009).
28 See Motion to Strike at 5.
opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact.29 Moreover, the justification for the old rule barring such testimonythat such opinion testimony usurps the function or invades the province of the jury, which might bow too readily to the opinion of an expert or other influential witness30is inapplicable in this non-jury proceeding before the Board.31 However, assuming arguendo that Entergys expert witnesses have offered legal conclusions, a characterization Entergy does not concede, courts admit expert testimony that is largely legal or regulatory in content when it is helpful to the trier of fact, particularly in complex technical areas.32 Such testimony may be admissible even if it contains both factual and legal conclusions.33 In the context of a nuclear power plant license renewal application, which inevitably involves applying the facts to complicated technical standards and regulations, carefully supported expert testimony is almost indispensable to the Board in carrying out its duties. Because the expert witnesses will be subject to questioning by the Board and the Board 29 Fed. R. Evid. 704(a); Fed. R. Evid. 704(a), Notes of Advisory Committee on Proposed Rules (emphasis added).
30 1 McCormick on Evidence § 12.
31 See, e.g., Rapisardi v. United Fruit Co., 441 F.2d 1308, 1312 (2d Cir. 1971) (Particularly since this is a non-jury case the federal rules should be liberally applied when doubts arise as to the admissibility of evidence, and because there is less likelihood that the trier of fact will be confused by irrelevant or immaterial testimony or inflamed by prejudicial remarks, the better course would have been for the court to receive the evidence and give to it such credence and value as it merits.) (citations omitted).
32 See, e.g., United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011) (allowing expert testimony on federal securities registration requirements to explain intricate regulatory landscape); United States v. Owens, 301 F.3d 521, 526-27 (7th Cir. 2002) (allowing expert testimony to the effect that financial transactions did not comply with regulations and appeared to be fraudulent); United States v. Windfelder, 790 F.2d 576, 581 (7th Cir. 1986) (observing that [e]xpert testimony by an IRS agent which expresses an opinion as to the proper tax consequences of a transaction is admissible evidence); Crom Corp. v. Crom, 677 F.2d 48, 50 (9th Cir. 1982)
(allowing expert testimony in a patent infringement action that a patent was infringed).
33 See, e.g., United States v. Buchanan, 787 F.2d 477, 483 (10th Cir. 1986) (the proper inquiry is whether the testimony would assist the trier of fact to understand the evidence or to determine a fact in issue.) (quoting Fed. R. Evid. 702).
may accord such weight to the testimony as it sees fit, there is no risk that Entergys testimony usurps the role of the Board.
Finally, NYS would have the Board apply a different standard to Entergy than NYS would have applied to itself. In attempting to prove its contentions, NYS offered expert testimony, declarations, and reports alleging that Entergys ER and the NRC Staffs FSEIS are inadequate, omit required evaluations, and fail to comply with NEPAthe mirror image of the testimony to which NYS now objects.34 In direct response to NYSs contentions, Entergy has presented qualified experts in the field who have analyzed the relevant facts and appropriately weighed those facts against various regulations, NRC Staff guidance, and past NRC environmental review practices. NYS now claims that Entergys expert testimony concerning the relevant regulatory framework, applicable guidance, and other relevant background information is barred, while its own testimony on those matters is admissible. In fact, neither NYSs nor Entergys expert testimony invades the province of the Boardthe Board may follow, ignore, and accord weight to such evidence as it deems appropriate.
For all of the foregoing reasons, Point I of the Motion to Strike should be rejected.
34 See, e.g., Sheppard Testimony at 7 (NYSR00224) (asserting that the FSEIS is inadequate because [i]t fails to address the impact on the value of residential services and house prices for residential properties within 5 kilometers of IPEC.); id. at 11 (claiming that certain analysis is missing from the FSEIS); Schlissel Testimony at 22 (NYS000046) (asserting that the FSEIS provides no critical analysis of Schlissel expert report); id. at 32 (providing opinion on weight of evidence in the record on whether FSEIS addresses appropriate energy alternatives); Bradford Testimony at 7-9 (NYS000048) (asserting that the FSEIS does not adequately evaluate the costs and benefits of the no-action alternative, thus preventing the decision maker from having an adequate record on which to make a decision on the no-action alternative); Decl. of David A. Schlissel at 18-19 (Jan.
31, 2011) (NYS000054) (opining on reasonableness and completeness of the FSEIS); Decl. of Peter A.
Bradford at 2 (Feb. 2, 2011) (NYS000106) (describing NRC NEPA regulatory framework, including what NEPA requires and concluding that FSEIS falls well short of the NRCs NEPA obligations both to take a hard look); Decl. of Peter A. Bradford at 6 (Nov. 28, 2007) (NYS000105) (In order to comply with its NEPA obligations the NRC needs an analysis that reveals whether other options are environmentally preferable to extending the Indian Point license.).
- 2.
Entergys Witnesses Do Not Provide Unduly Repetitious or Cumulative Testimony NYS moves to strike Entergy testimony on NYS-17B and NYS-37 summarizing relevant portions of the ER, GEIS, and FSEIS as repetitious and cumulative.35 According to NYS, such testimony should be excluded to avoid an unnecessarily large record and to avoid the the burden of analyzing repetitious papers because these documents will be in the record and the Board is able to review the documents itself.36 Entergy acknowledges that the ER, GEIS, and FSEIS will be included in the record.37 However, together, the ER, GEIS, and FSEIS total more than 3,000 pages. NYS seeks to exclude approximately 30 pages from Entergys prefiled written testimony that discuss the relevant portions of those documents. NYS, however, fails to demonstrate how Entergys testimony would somehow burden or complicate the record. Nor does NYS explain why Entergys expert testimony differs significantly from similar NYS testimony summarizing and quoting from the FSEIS.38 As the licensing board explained when it denied a motion to strike in the Curators of the University of Missouri proceeding, repetition is not particularly harmful in this written proceeding, where repetitious testimony does not consume valuable time during a public 35 Motion to Strike at 12.
36 Id. at 13 (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-540, 9 NRC 428, 435 (1979); 10 C.F.R. § 2.333).
37 See Applicants Environmental Report Operating License Renewal Stage Indian Point Energy Center (Apr. 24, 2007) (ER) (ENT00015B); NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (GEIS) (NYS00131A-I); NUREG-1437, Supp. 38, Final Supplemental Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (Dec. 2010) (FSEIS) (NYS00133A-J).
38 See, e.g., Sheppard Testimony at 8-10 (NYSR00224) (Q. How does the FSEIS address the impact of license renewal, or non-renewal, on land use values in the area around IPEC?; Q. What conclusions are drawn in the FSEISs Cumulative Socioeconomic Impact section?).
proceeding.39 So too here, where NYS has failed to provide any specific reason why inclusion of this relevant testimony creates an unnecessarily large record or otherwise runs afoul of 10 C.F.R. § 2.333(b).
Although NYS cites the Peach Bottom Atomic Safety and Licensing Appeal Board (Appeal Board) decision to support its claim that Entergys expert testimony should be excluded to avoid the burden of analyzing repetitious papers,40 that decision was not based on a motion to exclude testimony or the application of the Commissions rules of evidence. Instead, it involved an Appeal Board order consolidating proceedings involving separate license applications that had similar contentions and then instructing that the various applicants file any summary disposition motions jointly to relieve the intervenors (and [the Board]) of the burden of analyzing repetitious papers.41 Accordingly, the Peach Bottom decision is inapposite and Entergys testimony discussing the ER, GEIS, and FSEIS is admissible as it will not place any undue burden on the parties or the Board.42 In addition, NYS cites a Diablo Canyon Appeal Board decision for the proposition that the allegedly repetitious material holds the potential for creating... inconsistencies.43 That decision also was not based on a motion to exclude testimony or the Commissions rules of evidence. Instead, the Appeal Board was merely explaining that the format for licensing board initial decisions is somewhat repetitive because it typically includes two overlapping sections (the opinion and the findings of fact and conclusions of law) and that this format holds the 39 Curators of the Univ. of Mo. (TRUMP-S Project), LBP-91-31, 34 NRC 29, 120 (1991).
40 Motion to Strike at 13 (citing Peach Bottom, ALAB-540, 9 NRC at 435).
41 Peach Bottom, ALAB-540, 9 NRC at 435.
42 In contrast, NYS has filed duplicative testimony. Compare Schlissel Testimony at 37 (NYS000046)
(discussing Hudson Transmission Partners line), with Lanzalotta Testimony at 7-8 (NYS000047) (same), with Bradford Testimony at 16 (NYS000048) (same).
43 Motion to Strike at 4 (quoting Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
ALAB-781, 20 NRC 819, 823 n.2 (1984)).
potential for creating... inconsistencies within the four corners of the decision.44 This Appeal Board decision thus says nothing about whether Entergys evidence should be excluded and provides no support for NYSs Motion to Strike.45 Accordingly, the Board should deny Point II of the Motion to Strike.
- 3.
Entergys Witnesses Do Not Challenge the Boards Decision to Admit NYS-17B NYS seeks to strike Entergy testimony on NYS-17B that addresses NRC regulations, guidance, and associated environmental evaluations relating to when and how NRC Staff evaluates offsite land use and property value impacts, arguing that such testimony constitutes a collateral attack on the Board decision to admit NYS-17B.46 According to NYS, the Board decision to admit NYS-17B and its predecessor contentions essentially resolved the issue of whether the FSEIS appropriately considers property values impacts and precludes Entergy from offering any responsive testimony on relevant NRC regulations and environmental evaluations.47 NYS mistakes the Board decision admitting NYS-17B (and its predecessor contentions) for a ruling on the merits. In originally admitting NYS-17, the Board allowed litigation on whether the Indian Point offsite land use evaluation should have considered property value impacts.48 The Board did notand indeed could not haveresolved the ultimate merits issue of 44 Diablo Canyon, ALAB-781, 20 NRC at 823 n.2.
45 Although NYS does not claim that anything in Entergys allegedly repetitious and cumulative testimony actually creates any such inconsistencies, NYS has a more than adequate remedy if were to identify one. NYS could simply address any such issues in its upcoming rebuttal filings.
46 See Motion to Strike at 14-15.
47 See id. at 17-18.
48 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 116 (2008).
whether NEPA requires the property value impact assessment suggested by NYS.49 Such an interpretation of the Boards initial admissibility ruling would defeat the need for a hearing.
In fact, in ruling on Entergys motion for summary disposition, the Board agreed it had not yet resolved whether NEPA requires the property value assessment recommended by NYS.
Entergy moved for summary disposition for several independent reasons, including that:
(1) NEPA does not require consideration of alleged financial impacts arising from the publics perception of risk at Indian Point; and (2) NEPA does not require consideration of environmental impacts that depend on speculative actions to be taken by unknown third parties many decades in the future.50 Although it denied Entergys motion, the Board found that a question existed regarding whether there was a reasonably close causal relationship between any changes to the physical environment resulting from the no-action alternative and the property value impact NYS alleged.51 The Board also found a question existed concerning the likelihood of offsite land use changes near the Indian Point site under the no-action alternative.52 Implicit in this ruling was that Entergy would be entitled to resolution of the contention in its favor if either of these factual questions were resolved in its favor.
As the Boards summary disposition decision demonstrates, NYS is simply wrong that the Board previously found that NEPA requires the type of property value analysis it asserts 49 See So. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 & 4), CLI-11-8, 74 NRC __, slip op. at 7 (Sept. 27, 2011) ([T]he evaluation of a contention that is performed at the contention-admissibility stage should not be confused with the evaluation that is later conducted at the merits stage of a proceeding.); Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2190 (Jan. 14, 2004) (The contention standard does not contemplate a determination of the merits of a proffered contention.).
50 Entergy Nuclear Operation, Inc. Motion for Summary Disposition of New York State Contention 17/17-A (Property Values) at 2 (Feb. 26, 2010), available at ADAMS Accession No. ML101100474.
51 Licensing Board Memorandum and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) at 12 (Apr. 22, 2010) (unpublished).
52 See id. at 13.
must be performed.53 Thus, Entergys witness testimony explaining the circumstances, guidance, and rationale for when, why, and how NRC Staff evaluates offsite land use and property value impacts is thus entirely consistent with the Boards prior rulings.
Furthermore, Dr. Sheppard testifies for NYS that the FSEIS is inadequate and must contain further analysis of property values.54 Entergys witnesses are entitled to use their specialized experience implementing and overseeing NRC environmental regulatory programs to provide appropriate background and refute such assertions. Accordingly, the Board should reject Point III of the Motion to Strike.
- 4.
Entergys Witnesses Offer Relevant Testimony Concerning Energy Alternatives NYS moves to strike Entergy testimony on NYS-37 that addresses FSEIS Section 8.3, Alternative Energy Sources, because NYS-37 only concerns the no-action alternative.55 According to NYS, because there is no admitted contention addressing [Section 8.3] of the FSEIS, any testimony that addresses the adequacy of the energy alternatives section rather than the likely consequences of the no-action alternative is irrelevant and should be excluded.56 Notwithstanding NYSs unsupported claim to the contrary, Section 8.3 of the FSEIS is relevant to the no-action alternative and NYS-37. As Mr. Cleary explains in one of the answers that NYS seeks to exclude as irrelevant:
Section 8.2 of the FSEIS addresses the no-action alternative.
FSEIS at 8-20 (NYS00133C). The FSEIS further explains: Plant shutdown will result in a net loss of power generating capacity.
The power not generated by IP2 and IP3 during the license renewal 53 If NYS disagreed with aspects of the Boards summary disposition order, then it could have sought reconsideration of that decision in accordance with 10 C.F.R. § 2.323(e). Having failed to do so, NYS may not now use its Motion to Strike as an opportunity to challenge the Boards summary disposition order.
54 Sheppard Testimony at 7 (NYSR00224).
55 Motion to Strike at 18-19.
56 Id. at 19-20.
term would likely be replaced by (1) power supplied by other producers (either existing or new units) using generating technologies that may differ from that employed at IP2 and IP3, (2) demand-side management and energy conservation, or (3) some combination of these options. The environmental impacts of these options are discussed in Section 8.3 of this SEIS. While these options can be alternatives to license renewal (given sufficient resource availability), they also constitute potential consequences of the no-action alternative. Impacts from these options will [be]
addressed in their respective portions of this Section. FSEIS at 8-22 (NYS00133C).57 As this testimony demonstrates, a clear and direct link exists between FSEIS Sections 8.2 (No-Action Alternative) and 8.3 (Alternative Energy Sources). As such, testimony by Entergys witnesses concerning energy alternatives is directly relevant to NYS-37.
Moreover, all three of the NYS witnesses concede that FSEIS Section 8.3 is directly relevant to the no-action alternative and themselves recognize that the FSEIS addresses the no-action alternative by relying on the discussion of energy alternatives in Section 8.3 of the FSEIS.58 In fact, NYSs prefiled testimony and position statement on NYS-37 contain approximately 100 references and citations to Section 8.3 of the FSEIS, including specific critiques of that section.59 In light of the recognized significance and the extensive discussion of Section 8.3 of the FSEIS, surely Entergys witnesses are entitled to provide a discussion of that section of the FSEIS (as well as corresponding sections of the ER).
57 Entergy NYS-37 Testimony at 32-33 (ENT000479).
58 Schlissel Testimony at 5 (NYS000046) (The [FSEIS] looks at the consequences of the no action alternative to relicensing by relying, in part, on the findings and conclusions in the discussion of alternatives in the FSEIS at FSEIS § 8.3); Lanzalotta Testimony at 3 (NYS000047) (The FSEIS looks at the consequences of the no-action alternative to relicensing by relying, in part, on the findings and conclusions in the discussion of alternatives in the FSEIS at FSEIS § 8.3.); Bradford Testimony at 5 (NYS000048) (The FSEIS looks at the consequences of the no-action alternative to relicensing by relying in part on the findings and conclusions in the discussion of specified alternatives in the FSEIS at FSEIS § 8.3.).
59 See, e.g., NYS SOP on NYS-37, at 32-33 (NYS000045) (challenging various portions of FSEIS Section 8.3).
Similarly, in proposing NYS-37, NYS extensively cited to and discussed portions of FSEIS Section 8.3, including the evaluations of conservation (8.3.3), purchased electrical power (8.3.2), and combinations of alternatives (8.3.5). State of New York Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement at 17-18 (Feb. 3, 2011), available at ADAMS Accession No. ML110680290.
Furthermore, Section 8.3 of the FSEIS is also relevant to refute NYSs argument that the FSEIS does not provide a basis to allow decision-makers to determine whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.60 In establishing this standard, the Commission explained that it would only be unreasonable to preserve the license renewal option when the impacts of license renewal sufficiently exceed the impacts of all or almost all of the alternatives.61 That NYS does not dispute the FSEIS energy alternatives conclusions does not detract from the relevance of testimony addressing the uncontested but otherwise material issue of the impacts from all energy alternatives.62 To the extent NYS asserts that the FSEIS does not reasonably conclude that the ultimate preserving the option standard is satisfied, Entergys witnesses may point to Section 8.3 of the FSEIS to demonstrate otherwise.
Accordingly, the Board should deny Point IV of the Motion to Strike.
V.
CONCLUSION For the foregoing reasons, Entergys witnesses offer no impermissible legal argument or conclusions, do not provide unduly repetitious or cumulative testimony, do not challenge the Board decision admitting NYS-17B, and offer relevant testimony on NYS-37 concerning energy alternatives. Furthermore, the Motion to Strike is untimely with respect to Entergys NYS-17B testimony. Accordingly, the Board should deny NYSs Motion to Strike in its entirety.
60 NYS SOP on NYS-37, at 5 (quoting 10 C.F.R. §51.103 (a)(5)).
61 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.
28,467, 28,473 (June 5, 1996) (NYS000127) (emphasis added).
62 See Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009) (Evidence may be relevant even
... if it relates to undisputed facts.) (citing Old Chief v. United States, 519 U.S. 172, 179 (1997)); Fed. R.
Evid. 401, Notes of Advisory Committee on Proposed Rules (The fact to which the evidence is directed need not be in dispute.).
Respectfully submitted, Signed (electronically) by Jonathan M. Rund Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Jonathan M. Rund, 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: jrund@morganlewis.com William B. Glew, Jr., Esq.
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: wglew@entergy.com E-mail: wdennis@entergy.com Counsel for Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.
this 14th day of May 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
)
)
(Indian Point Nuclear Generating Units 2 and 3)
)
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May 14, 2012 ANSWER CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Signed (electronically) by Jonathan M. Rund Jonathan M. Rund, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5061 Fax: (202) 739-3001 E-mail: jrund@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
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)
)
)
May 14, 2012 CERTIFICATE OF SERVICE I hereby certify that on May 14, 2012, a copy of the Entergys Answer Opposing New York States Motion to Strike Portions of Entergy Pre-filed Testimony on Contentions NYS-17B (Property Values) and NYS-37 (Energy Alternatives) was served electronically via the Electronic Information Exchange on the following recipients:
Administrative Judge Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Michael.Kennedy@nrc.gov)
Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: hearingdocket@nrc.gov)
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-7H4M Washington, DC 20555-0001 (E-mail: ocaamail.resource@nrc.gov)
Josh Kirstein, Law Clerk Anne Siarnacki, Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
(E-mail: Anne.Siarnacki@nrc.gov)
Sherwin E. Turk, Esq.
Edward L. Williamson, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Brian G. Harris, Esq.
Mary B. Spencer, Esq.
Anita Ghosh, Esq.
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)
Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of Robert F. Meehan, Esq.
Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 (E-mail: MJR1@westchestergov.com)
Manna Jo Greene Karla Raimundi Stephen Filler Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave.
Beacon, NY 12508 (E-mail: mannajo@clearwater.org)
(E-mail: karla@clearwater.org)
(E-mail: stephenfiller@gmail.com)
Daniel Riesel, Esq.
Victoria Shiah, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 (E-mail: driesel@sprlaw.com)
(E-mail: vshiah@sprlaw.com)
Janice A. Dean, Esq.
Assistant Attorney General Office of the Attorney General of the State of New York 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Dean@ag.ny.gov)
John Louis Parker, Esq.
Office of General Counsel, Region 3 NYS Dept. of Environmental Conservation 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: jlparker@gw.dec.state.ny.us)
DB1/ 69722375 John J. Sipos, Esq.
Charlie Donaldson, Esq.
Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)
(E-mail: Charlie.Donaldson@ag.ny.gov)
Michael J. Delaney, Esq.
Vice President -Energy Department New York City Economic Development Corporation (NYCDEC) 110 William Street New York, NY 10038 (E-mail: mdelaney@nycedc.com)
Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 (E-mail: phillip@riverkeeper.org)
(E-mail: dbrancato@riverkeeper.org)
Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 (E-mail:
Administrator@villageofbuchanan.com)
Robert D. Snook, Esq.
Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snook@po.state.ct.us)
Signed (electronically) by Jonathan M. Rund Jonathan M. Rund, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5061 Fax: (202) 739-3001 E-mail: jrund@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.