ML12212A417

Entergy'S Motion in Limine to Exclude Portions of New York State'S Rebuttal Filings on Contention NYS-16B

ML12212A417
Person / Time
Site:	Indian Point
Issue date:	07/30/2012
From:	Bessette P, Dennis W, Glew W, O'Neill M, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23078, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12212A417 (16)

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) )

) July 30, 2012 ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF NEW YORK STATES REBUTTAL FILINGS ON CONTENTION NYS-16B William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY NUCLEAR OPERATIONS, INC. MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax: (202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.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.

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) )

) July 30, 2012 ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF NEW YORK STATES REBUTTAL FILINGS ON CONTENTION NYS-16B I. INTRODUCTION On June 29, 2012, New York State (NYS) filed its revised statement of position, rebuttal testimony, and associated exhibits on Contention NYS-16B. The Contention challenges the adequacy of the future population estimate used in Entergys severe accident mitigation alternatives (SAMA) analysis for Indian Point Nuclear Generating Units 2 and 3 (IP2 and IP3; collectively, Indian Point Energy Center, or IPEC).

In accordance with 10 C.F.R. §§ 2.1204, 2.319, 2.323, 2.337, the Atomic Safety and Licensing Boards (Board) Scheduling Order of July 1, 2010, and subsequent Order dated May 16, 2012,1 Entergy Nuclear Operations, Inc. (Entergy) hereby timely moves to exclude:

(1) portions of the Rebuttal Testimony of Dr. Stephen C. Sheppard, Ph.D. Regarding Contention NYS-16/16A/16B (NYS-16B) (June 29, 2012) (NYS000404) (Sheppard Rebuttal Testimony),

and (2) related portions of the State of New York Revised Statement of Position [on] Contention NYS-16/16A/16B (NYS-16B) (NYS000403) (NYS Revised Position Statement). As discussed below, the portions of the Sheppard Rebuttal Testimony identified below and in should be excluded from evidence pursuant to 10 C.F.R. §§ 2.319 and 2.337(a), or accorded no weight, because they: (1) are beyond the scope of the admitted contention and proper 1

Licensing Board Order (Granting Unopposed Extension of Time) (May 16, 2012) (unpublished).

rebuttal testimony, and (2) lack the technical foundation required by 10 C.F.R. § 2.337(a) for expert opinion or testimony.

II. LEGAL STANDARDS A. Scope of Rebuttal Testimony 10 C.F.R. § 2.1207 addresses the general process and schedule for submission of evidentiary presentations in hearings conducted pursuant to 10 C.F.R. Part 2, Subpart L. In particular, Section 2.1207(a)(2) states that written responses and rebuttal testimony should be directed to the initial statements and testimony of other participants. Being in the nature of rebuttal, the response, rebuttal testimony, and rebuttal exhibits are not to advance any new affirmative claims or arguments that should have been, but were not, included in the partys previously filed initial written statement.2 B. Scope of the Admitted Contention Recent Commission decisions confirm that intervenors are not permitted to use testimony to change the scope of a contention as admitted by the Board. For example, in Vogtle, the Commission upheld a Board ruling excluding testimony that strayed beyond the scope of the bases as pled and admitted, because those bases defined the scope of the . . . contention.3 In Seabrook, the Commission more recently confirmed that an admitted contention is defined by its bases,4 and that licensing boards must specify each basis relied upon for admitting a contention.5 2

Progress Energy Fla., Inc. (Levy County Nuclear Power Plant, Units 1 & 2), LBP-09-22, 70 NRC 640, 655 (2009).

3 S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 71 NRC 90, 100-101 (2010); see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010)

(stating that intervenors may not freely change the focus of an admitted contention at will to add a host of new issues and objections that could have been raised at the outset because the Commission does not allow distinctly new complaints to be added at will as litigation progresses (internal quotation marks omitted)).

4 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip op. at 11 n.50 (Mar. 8, 2012) (emphasis added) (citation omitted).

5 Id.

C. Admissibility of Evidence NRC regulations governing the admissibility of evidence provide that only relevant, material, and reliable evidence will be admitted, and that material and irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.6 Because only relevant and material evidence is admissible, the Board may exclude or accord no weight to testimony and exhibits that are outside the scope of the admitted contention or the proceeding,7 or that raise issues that were not properly presented in earlier pleadings.8

1. Expert Qualifications An experts opinion is admissible only if it is offered by an individual who has demonstrated his or her qualification to provide expert testimony on the specific technical subject at issue.9 An experts opinion is also admissible only if the factual basis for that opinion is adequately stated and explained in the affidavit.10 A witness may qualify as an expert by 6

10 C.F.R. § 2.337(a); see also 10 C.F.R. § 2.319(d) (stating that the presiding officer may strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative, or cumulative); id. § 2.319(e) (stating that the presiding officer may restrict irrelevant, immaterial, unreliable, duplicative, or cumulative evidence and/or arguments).

7 See 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).

8 See S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), Licensing Board Memorandum and Order (Ruling on In Limine Motions) at 2-4 (Feb. 23, 2009) (unpublished) (granting applicant and Staff motions in limine to strike portions on intervenor rebuttal testimony on the ground that the stricken testimony was not relevant to the admitted contention or to the applicants and Staffs prefiled direct testimony); Nuclear Mgmt.

Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2).).

9 See Entergy Nuclear Vt. Yankee (Vt. Yankee Nuclear Power Station), Licensing Board Order (Ruling on Motions to Strike and Motions in Limine) at 7-8 (July 16, 2008) (unpublished) (Vermont Yankee Order)

(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).

10 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 knowledge, skill, experience, training, or education to testify if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.11 An individuals admission of lack of expertise in a particular topic is grounds for exclusion of any expert witness testimony on that topic.12 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.13 When the qualifications of an expert witness are challenged, the party sponsoring the witness has the burden of demonstrating that the witness is qualified.14

2. Bases of Expert Opinion Testimony An experts opinion is admissible only if the opinion would assist the trier of facts in understanding the evidence or to determine a fact in issue.15 Further, an experts opinion must be based not only on sufficient facts or data, but also on reliable principles and methods, which the witness must reliably apply to the facts of the case.16 Thus, [a]n expert opinion that merely states a conclusion ... without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the Machs. on Guam, 658 F.2d. 697, 700 (9th Cir. 1981)). Thus, Boards may look to federal cases and the Federal Rules of Evidence as sources of authority for evaluating the admissibility of expert witness testimony. See 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.).

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

12 See, e.g., Porter v. Whitehall Labs., Inc., 9 F.3d 607, 614-15 (7th Cir. 1993) (excluding expert testimony of a doctor who admitted that his theory of causation lay outside his field of expertise); Centricut, LLC v. ESAB Group, Inc., 390 F.3d 1361, 1368 (Fed. Cir. 2004) (individual who admitted, based on his education and experience, that he was not an expert on relevant topic was not qualified to offer expert testimony on that topic).

13 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).

14 See 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).

15 Savannah River, LBP-05-4, 61 NRC at 80, 98-99 (citing Daubert, 509 U.S. at 589-90).

16 Id.

opinion.17 An expert opinion that relies on subjective belief or unsupported speculation, rather scientific methods and procedures, is entitled to no weight.18 III. ARGUMENT As discussed below, the portions of the Sheppard Rebuttal Testimony identified below and in Attachment 1 should be excluded from evidence pursuant to 10 C.F.R. §§ 2.319 and 2.337(a),

or accorded no weight, because they: (1) are beyond the scope of the admitted contention and rebuttal testimony, and (2) lack the technical foundation required by 10 C.F.R. § 2.337(a) for expert opinion or testimony.

A. Dr. Sheppards Statement That Entergys Sensitivity Analysis Experts Should Have Accounted for Deficiencies with Other Parameters Is A New Claim That Is Beyond the Scope of the Admitted Contention and Rebuttal Testimony As described in their prefiled written testimony, Entergy experts Dr. Kevin OKula and Mr. Grant Teagarden performed a MACCS2 sensitivity analysis in which they increased Entergys 2035 population estimate for census undercount and commuters, making certain reasonable assumptions that are explained in their testimony.19 Entergys experts stated explicitly that they performed a sensitivity case for the IP2 SAMA analysis to evaluate the potential impacts of the population increase posited by Dr. Sheppard in his report and testimony in support of NYS-17 Seabrook, CLI-12-05, slip op. at 24 n.117.

18 Savannah River, LBP-05-4, 61 NRC at 98-99 (citing Fed. R. Evid. 702); Elcock v. Kmart Corp., 233 F.3d 734, 738, 745 (3d Cir. 2000) (holding that trial court erred by failing to hold a Daubert hearing to determine the reliability of psychologists testimony and admitting testimony of economist regarding lost future earnings because the testimony was based on assumptions wholly without foundation in the trial record); Phila. Elec. Co.

(Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 735 (1985) ([W]here an asserted expert witness can supply no scientific basis for his statements (other than his belief) . . . a board would be remiss in giving such testimony any weight whatsoever); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), 7 NRC 92, 126 (1978) (giving little or no weight to the evidence of an expert who was totally unfamiliar with the technical documents describing the facility in question and its surrounding environment).

19 Testimony of Entergy Witnesses Lori Potts, Kevin OKula, Grant Teagarden, and Jerry Riggs on Consolidated Contention NYS-16B (Severe Accident Mitigation Analysis) at 48-50 (Mar. 28, 2012) (Entergy Testimony)

(ENT000003).

16B.20 In response to the sensitivity analysis, however, NYS presents the following rebuttal testimony:

Q. NYS Consolidated Contention 12C challenges other MACCS2 input values. Has Entergy or NRC Staff demonstrated that an increased population, combined with other site-specific values, would not have a material effect on the SAMA analysis?

A. No. Neither Entergy nor NRC Staff have disclosed what would happen if the SAMA analysis were re-run, taking both the underestimation of population and the deficiencies with other parameters into account.21 This NYS rebuttal testimony should be excluded because it is neither relevant to admitted contention NYS-16B nor responsive to Entergys prefiled testimony. Although both NYS-12C and NYS-16B relate to Entergys SAMA analysis, the two contentions raise two distinct challengesseparately asserted by NYS and separately admitted by the Board. To Entergys knowledge, NYS has not previously asserted that one contention must be viewed or analyzed in tandem with the other. In NYSs own words, NYS-16B alleges that the Staffs December 2010 final supplemental environmental impact statement (FSEIS) for Indian Point is legally deficient because it accepts a SAMA analysis predicated on inaccurate population estimates.22 In its current form, NYS-16B alleges no other underestimated inputs to Entergys SAMA analysis.23 Furthermore, as Dr. Sheppard acknowledges, Entergys experts increased the population input, but did not change any other parameters.24 Nor should they have done so in addressing NYS-16B, which focuses solely on the adequacy of Entergys year-2035 population estimate, as 20 Id. at A87 (emphasis added).

21 Sheppard Rebuttal Test. at 36-37 (emphasis added).

22 State of New York Initial Statement of Position [on] Contention NYS-16/16A/16B (NYS-16B) at 14 (Dec. 16, 2011) (NYS000206).

23 NYS chose not to pursue the claim that the MACCS2 ATMOS air dispersion model used by Entergy to perform its SAMA analysis is being used beyond its range of validity and does not accurately predict the geographic dispersion of radionuclides released in a severe accident and, therefore, it is no longer at issue in this contention.

See State of New York, Entergy Nuclear Operations, Inc., and NRC Staff Joint Stipulation at 2 (Jan. 23, 2012).

24 Sheppard Rebuttal Test. at 36.

input to the MACCS2 code. Entergys experts also addressed NYSs challenges to Entergys MACCS2 decontamination cost inputs in NYS-12C, but they appropriately did so in a separate piece of testimony.25 Accordingly, NYSs attempt to import other claims or issues into contention NYS-16B is improper, and the testimony in question should be excluded from evidence.

B. Dr. Sheppards Testimony on Decontamination Cost Issues Should Be Excluded From Evidence Due to the Lack of an Adequate Technical Foundation In his rebuttal testimony, Dr. Sheppard also testifies on issues that plainly are outside the scope of his self-described expertise. Specifically, he states that:

Halving the commuter population is problematic because it does not reflect the costs of an accident that occurs when the entire commuter population is present within the 50 mile zone. As I mentioned, commuters could be exposed to radiation or lose income as a result of interdiction. Any personal property commuters had in the region, such as automobiles, could be exposed to radiation, requiring decontamination. One important cost associated with a severe accident is the decontamination of property. It follows that the higher the building density, the more buildings there are to decontaminate.

Commuters also have an impact on building density because if there are more workers in a region, more buildings will be required to house those workers. These extra buildings will need to be decontaminated in the event of a severe accident, increasing the costs of that accident. See Staff Test. at 41, A35 (The cost of achieving the DF [decontamination factor] is input in terms of dollars per person ($/person). By using a per person basis, this approach takes into account the site-specific high population density of New York City and the correspondingly high density of buildings.).26 25 See Testimony of Applicant Witnesses Lori Potts, Kevin OKula, and Grant Teagarden Concerning Consolidated Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis) (Mar. 30, 2012) (Entergy Testimony) (ENT000450).

26 Sheppard Rebuttal Test. at 32-33. The testimony in question also arguably raises new issues beyond the scope of proper rebuttal testimony. Dr. Sheppard purports to respond to a particular assumption made by Entergys expert in the context of their sensitivity analysis. Specifically, Entergys experts reduced Dr. Sheppards commuter estimate by 50 percent to account for the amount of time commuters would be expected to be within the 50-mile SAMA analysis region. See Entergy Test. at 48-49. This assumption is consistent with the fact that a SAMA analysis uses probabilistic methods and calculates mean annual consequences (as opposed to the consequences of a single radiological release event at a single moment in time) and, as such, examines numerous possible combinations of representative sets of radiological source terms, weather sequences, and exposed populations. See id. at 22, 24-25. Dr. Sheppards detour into the issue of decontamination coststhe subject of another contention (NYS-12C) and an area beyond his expertiseis beyond the scope of proper rebuttal on this issue.

Dr. Sheppard, however, describes himself as economist who has expertise in estimating populations and who has worked frequently with census and other demographic data.27 He further states that I do not have experience in the nuclear field, using the MACCS or MACCS2 computer codes, or performing SAMA analyses,28 and that [t]he technical details of the use of the MACCS2 model in the SAMA analysis are not within my expertise.29 Accordingly, insofar as Dr. Sheppards testimony relates to: (1) potential radiological exposure and contamination resulting from a severe accident, and (2) the MACCS2 codes treatment of those processes or phenomena (including the decontamination factor), it should be excluded from evidence because it lacks a proper technical foundation. Alternatively, it should be accorded no weight by the Board in its merits ruling on NYS-16B.

C. Portions of New York States Revised Position Statement Should Be Excluded And Accorded No Weight NYS discusses the preceding testimony in its Revised Position Statement.30 The Statement is not evidence in this proceeding,31 but may nevertheless be subject to a motion in limine or motion to strike.32 Therefore, to the extent the Board grants this Motion and excludes the testimony identified in Attachment 1, the associated discussions in the Revised Position Statement should be either excluded or accorded no weight in the Boards merits decision on NYS-12C.

27 Sheppard Rebuttal Test. at 2.

28 Id.

29 Id. at 37.

30 See NYS Revised Position Statement at 7, 13.

31 See AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Licensing Board Memorandum and Order (Hearing Directives) at 2 n.2 (Sept. 12, 2007) (unpublished). This Board has noted that a position statement is a partys legal interpretation of its evidence, not its actual evidence, and that the Board will use it inasmuch it is supported by the evidence proffered by that party. See Licensing Board Order (Granting in Part and Denying in Part Applicants Motion in Limine) at 24 (Mar. 6, 2012) (unpublished).

32 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 1-2 (Aug. 9, 2007) (unpublished); Entergy Nuclear Vt. Yankee (Vt. Yankee Nuclear Power Station), Licensing Board Order (Rulings on Motions to Strike and Motions in Limine) at 2-3 (July 16, 2008) (unpublished).

IV. CONCLUSION For the foregoing reasons, the Board should exclude from the record the portions of the Sheppard Rebuttal Testimony (NYS000404) identified in Attachment 1 to this Motion. The Board also should exclude the associated discussion in the Revised Position Statement (NYS000403), or accord that discussion no weight, because it not supported by NYSs proffered evidence.

Respectfully submitted, Signed (electronically) by Martin J. ONeill William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY NUCLEAR OPERATIONS, INC. MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax: (202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.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.

Dated in Washington, D.C.

this 30th day of July 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

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) July 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. NYS indicated that it opposes this Motion and that it will file an answer on the merits. The NRC Staff indicated that it does not oppose Entergys Motion in Limine.

Signed (electronically) by Martin J. ONeill Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (713) 739-3001 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 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

ENTERGYS MOTION IN LIMINE FOR NYS-16B ATTACHMENT 1 Exclusion Chart

Entergy Attachment 1 to Entergys Motion in Limine to Exclude Portions of Intervenors Pre-Filed Direct Testimony, Expert Report, Exhibits, and Statement of Position for Contention NYS-16B (SAMA Analysis Population Estimate)

Location of Information to Be Stricken Basis for Exclusion NYS000404: Sheppard Rebuttal Testimony Page 36, Line 21 through Page 37, Line 5: strike Testimony advances new claims beyond the testimony (question and answer) in its entirety. scope of the admitted contention and the scope of rebuttal testimony, contrary to 10 C.F.R. § 2.1207(a)(2).

Page 32, Line 10 through Page 33, Line 3: delete Testimony lacks a proper technical the testimony on Page 32, Line 10 beginning with foundation and therefore, has not been As I mentioned through the testimony ending shown to constitute reliable evidence under on Page 33, Line 3. 10 C.F.R. § 2.337(a).

NYS000403: NYS Revised Position Statement Page 13: delete the following text: Discussion advances new claims beyond the scope of the admitted contention and the First, Entergy improperly viewed two of the scope of rebuttal testimony, contrary to 10 States SAMA contentions (NYS- 16B and NYS- C.F.R. § 2.1207(a)(2).

12C) in isolation. To determine what result increasing population has on PDR and OECR, Entergy would need to run the MACCS2 code with both sets of inputs, which it has not done.

Page 7: delete the following text: Discussion is based on testimony that lacks a proper technical foundation and therefore, Additionally, the number of commuters has not been shown to constitute reliable contributes to decontamination costs because evidence under 10 C.F.R. § 2.337(a).

they increase building density. Sheppard Rebuttal Test. at 32-33; see Staff Test. at 41, A35 (The cost of achieving the DF [decontamination factor] is input in terms of dollars per person

($/person)). By using a per person basis, this approach takes into account the site-specific high population density of New York City and the correspondingly high density of buildings.).

Commuters also have tangible property such as automobiles that could be contaminated in a severe accident. Sheppard Rebuttal Test. at 32.

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) )

) July 30, 2012 CERTIFICATE OF SERVICE I hereby certify that on July 30, 2012, a copy of Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Contention NYS-16B was served electronically via the Electronic Information Exchange on the following recipients.

Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov) (E-mail: Michael.Kennedy@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 Shelby Lewman, 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: shelbie.lewman@nrc.gov)

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

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 Treanor, 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)

John J. Sipos, Esq. John Louis Parker, Esq.

Charlie Donaldson Esq. Office of General Counsel, Region 3 Assistant Attorneys General NYS Dept. of Environmental Conservation Office of the Attorney General 21 S. Putt Corners Road of the State of New York New Paltz, New York 12561-1620 The Capitol (E-mail: jlparker@gw.dec.state.ny.us)

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 mdelaney@nycedc.com 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: smurray@villageofbuchanan.com)

(E-mail:

Administrator@villageofbuchanan.com)

Robert D. Snook, Esq. Janice A. Dean, Esq.

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

(E-mail: Teresa.Manzi@ag.ny.gov)

Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

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