ML12222A302
| ML12222A302 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/09/2012 |
| From: | Sipos J State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23276, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12222A302 (16) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. August 9, 2012
x STATE OF NEW YORKS ANSWER TO ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF NEW YORK STATES REBUTTAL FILINGS ON CONTENTION NYS-16B Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224
TABLE OF CONTENTS Page INTRODUCTION...........................................................................................................................1 ARGUMENT I. DR. SHEPPARDS REBUTTAL TESTIMONY REFERENCING NYS-12C SHOULD NOT BE EXCLUDED BECAUSE IT DIRECTLY RESPONDS TO ENTERGYS PRE-FILED TESTIMONY AND IS RELEVANT TO NYS-16B..........................................................................................2 A. Dr. Sheppards Rebuttal Testimony Responds Directly to Entergys Pre-Filed Testimony...........................................................................................2 B. Dr. Sheppards Rebuttal Testimony Discussing NYS-16B and NYS-12C in Combination is Relevant and Should Not Be Excluded................................3 II. DR. SHEPPARDS REBUTTAL TESTIMONY CRITICIZING ENTERGYS PURPORTED SENSITIVITY ANALYSIS FOR HALVING THE COMMUTER POPULATION PROPERLY RELIES ON TESTIMONY PUT FORTH BY ENTERGYS AND NRC STAFFS WITNESSES AND SHOULD NOT BE EXCLUDED..........................5 III. THE BOARD HAS MADE CLEAR THAT STATEMENTS OF POSITION ARE NOT EVIDENCE AND ARE NOT SUBJECT TO EVIDENTIARY CHALLENGE......................................................................................7 IV. THE BOARD SHOULD ADMIT DR. SHEPPARDS REBUTTAL TESTIMONY TO ENSURE ITS DECISION IS BASED UPON A COMPLETE RECORD....................................................................................................8 CONCLUSION................................................................................................................................9 i
Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards July 1, 2010 Scheduling Order and subsequent Order dated May 16, 2012, the State of New York (the State) submits this Answer to Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Admitted Contention 16/16A/16B (Contention NYS-16B).
INTRODUCTION Contention NYS-16B challenges Entergys severe accident mitigation alternatives (SAMA) analysis, which NRC Staff (Staff) accepted in its Final Supplemental Environmental Impact Statement (FSEIS), on the ground that the SAMA analysis underestimates the population within fifty miles of Indian Point in 2035 that is likely to be exposed to radiation during a severe accident and, based on that underestimation, underestimates the costs of a severe accident and the corresponding benefit of any given SAMA. On June 29, 2012, in response to Entergys and Staffs March 28, 2012 filings, the State submitted a Revised Statement of Position, Rebuttal Testimony, and exhibits for Contention NYS-16B. On July 30, 2012, Entergy asked the Board to exclude from the hearing record certain statements in the States Rebuttal Testimony, as well as references to these statements in the States Revised Statement of Position.1 Entergy argues that these statements, made by the States expert Dr. Stephen C. Sheppard, are beyond the scope of the admitted contention, are improper rebuttal testimony, and lack an adequate technical foundation.
1 Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Contention NYS-16B (July 30, 2012) (Entergy Motion).
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The Board should deny this request for several reasons. First, Dr. Sheppards Rebuttal Testimony regarding Entergys sensitivity analysis is within the scope of NYS-16B because it directly responds to Entergys initial testimony, and it is relevant because it concerns the States National Environmental Policy Act (NEPA) claims. Second, Dr.
Sheppards Rebuttal Testimony about Entergy cutting his population estimate in half has a proper technical foundation, in accordance with Federal Rule of Evidence 703, because it relies on testimony put forth by Entergys and Staffs witnesses. Third, this Board has repeatedly held that because statements of position are legal argument and not evidence, they are not subject to evidentiary challenge in a motion in limine. Finally, motions in limine are typically used to exclude information that could prejudice a jury, but there is no such risk of prejudice in this proceeding before the Board if the Board waits until the hearing to render its decision based on a full record of relevant evidence.
ARGUMENT POINT I DR. SHEPPARDS REBUTTAL TESTIMONY REFERENCING NYS-12C SHOULD NOT BE EXCLUDED BECAUSE IT DIRECTLY RESPONDS TO ENTERGYS PRE-FILED TESTIMONY AND IS RELEVANT TO NYS-16B A. Dr. Sheppards Rebuttal Testimony Responds Directly to Entergys Pre-Filed Testimony Entergy argues that Dr. Sheppards Rebuttal Testimony that Entergys sensitivity analysis failed to take into account the errors raised in Contention NYS-12C as well NYS-16B should be excluded because it is not responsive to Entergys pre-filed testimony. Entergy Motion at 6. However, Dr. Sheppards testimony is proper because it responds directly to Entergys argument that Dr. Sheppards population changes would not change the outcome of the SAMA analysis.
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In their March 2012 pre-filed testimony, Entergys experts proffered a sensitivity analysis purporting to show that Dr. Sheppards population changes would not have a material effect on the SAMA analysis.2 As explained in the States Revised Statement of Position, reasonableness, not materiality, is the correct standard by which to evaluate the FSEIS. See State of New York Revised Statement of Position Contention NYS-16B at 11-13 (NYS000403) (June 29, 2012).
But since Entergy raised materiality, the State submitted Dr. Sheppards Rebuttal Testimony showing that because Entergy evaluated the SAMA errors identified in NYS-16B in isolationinstead of taking the other SAMA errors identified in NYS-12C into account as wellEntergy has failed to show a lack of materiality. See Rebuttal Testimony of Dr. Stephen C. Sheppard Regarding Contention NYS-16B at 36-37 (NYS000404) (June 29, 2012) (Sheppard Rebuttal Testimony). By raising the issue of materiality in its Initial Statement of Position and Testimony, Entergy opened the door to rebuttal testimony on this topic. 10 C.F.R. § 2.1207(a)(2) ([P]articipants in an oral hearing may submit . . . [w]ritten responses and rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants.). Thus, having raised the issue, Entergy may not now argue that it is outside the scope of Contention NYS-16B.
B. Dr. Sheppards Rebuttal Testimony Discussing NYS-16B and NYS-12C in Combination is Relevant and Should Not Be Excluded Entergy also argues that Dr. Sheppards testimony concerning Entergys sensitivity analysis should be excluded because it is not relevant to NYS-16B. That is 2
See Testimony of Entergy Witnesses Lori Potts, Kevin OKula, Grant Teagarden, and Jerry Riggs on Consolidated Contention NYS-16B at 49 (ENT0000003) (Mar. 28, 2012); Entergys Statement of Position Regarding Consolidated Contention NYS-16B at 5, 23-24 (ENT0000002) (Mar. 28, 2012).
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incorrect for two reasons. First, if Entergy was correct that materiality is the correct standardwhich it is notDr. Sheppards testimony is relevant because it shows that the Board must evaluate materiality based on the combined impact of the SAMA input changes asserted in Contentions NYS-12C and NYS-16B.
Second, assessing the combined impact of all the errors in Entergys SAMA analysis is necessary to determine whether Staff violated NEPA because the SAMA analysis is a cost-benefit analysis, which weighs the sum of all benefits against the sum of all costs. While all of the SAMA contentions are interrelated, the State initially divided its SAMA analysis arguments into several proffered contentions for administrative convenience and because each contention was supported by a different expertnot because they should be viewed in isolation from one another.3 The fact that NRC Staff was able to combine its expert testimony for Contentions NYS-12C and NYS-16B confirms the strong connection between these two contentions that challenge MACCS2 inputs. See NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison Concerning NYS Contentions NYS 12/16 (NRC000041) (Mar.
30, 2012).
Moreover, since the purpose of the FSEIS is to present an accurate assessment of the full environmental costs of license renewal, the Board cannot treat the identified 3
The State has challenged Entergys SAMA analysis and Staffs approval of that analysis in three separate contentions: Contention NYS-12C (which asserts that Entergys SAMA analysis improperly relies upon computer code input values that are not specific to the area surrounding Indian Point and does not take into account the type of particles released during a severe reactor accident); Contention NYS-16B (which asserts that the SAMA analysis underestimates the population within fifty miles of Indian Point in 2035 that is likely to be exposed to radiation during a severe accident); and Contention NYS-35/36 (which asserts that NRC Staff has to failed to take a hard look at the SAMAs deemed potentially cost-beneficial in Entergys SAMA analysis because it did not explain in its record of decision why it would allow the Indian Point license to be renewed without requiring the implementation of those SAMAs that are plainly cost-beneficial as a condition, precedent to the granting of license renewal). In its November 2007 Petition to Intervene, the State also raised SAMA issues in Contentions NYS-13 (fire safety), NYS-14 (seismic),
NYS-15 (seismic), although these were not admitted.
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environmental concern in a vacuum. Grand Canyon Trust v. FAA, 290 F.3d 339, 346 (D.C. Cir.2002) (finding an Environmental Assessment deficient for failing to examine the aggregate effect of various incremental environmental impacts); see also Generic Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 38 Regarding Indian Point Generating Unit Nos. 2 and 3 at xvi (Dec. 2010)([t]he purpose of the NRC staffs environmental review, as defined in 10 CFR 51.95(c)(4) and the GEIS, is to determine the following: 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.). Instead, the Board must determine whether the combined impact of all the individual input errors in Entergys SAMA analysis distorted its outcome by underestimating the environmental costs of relicensing.
POINT II DR. SHEPPARDS REBUTTAL TESTIMONY CRITICIZING ENTERGYS PURPORTED SENSITIVITY ANALYSIS FOR HALVING THE COMMUTER POPULATION PROPERLY RELIES ON TESTIMONY PUT FORTH BY ENTERGYS AND NRC STAFFS WITNESSES AND SHOULD NOT BE EXCLUDED Entergy argues that another portion of Dr. Sheppards rebuttal testimony explaining why it was incorrect for Entergy to halve his commuter population estimate in its sensitivity analysislacks an adequate technical foundation because he testifies on issues outside of his expertise. Contrary to Entergys assertion, Dr. Sheppard does not form independent conclusions about how the MACCS2 code works; instead, he properly relies on statements made by NRC Staffs and Entergys witnesses.
While the Federal Rules of Evidence are not controlling in NRC adjudicatory 5
proceedings, Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances. Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2187 (Jan. 14, 2004). Federal Rule of Evidence 703 (FRE 703), Bases of an Experts Opinion Testimony, is instructive here. It states: An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. This includes having the expert attend the trial and hear the testimony establishing the facts. Notes of Advisory Committee on Proposed Rule 703.
Dr. Sheppards opinionthat Entergy improperly reduced the number of commuterschiefly relies on facts of which he was made aware by reviewing Entergys and Staffs testimony. His statements that commuters could be exposed to radiation or lose income as a result of interdiction and [c]ommuters also have an impact on building density come directly from Staffs and Entergys testimony, which Dr. Sheppard quotes in his Rebuttal Testimony. See Sheppard Rebuttal Testimony at 32; see also id. at 31 (See Staff Test. at 39, A34, ([T]he returning population receives a dose that contributes to the population dose.)); id. (Entergy Test. at 30, A61 ([C]ommuters could be impacted by lost income, because their job sites would be impacted by interdiction.));
and id. 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.)). As Dr.
Sheppards opinion is based on facts that he has been made aware of in accordance with FRE 703, it does not lack a proper technical foundation.4 4
The only statement challenged by Entergy that is not directly supported by Staffs or Entergys testimony is: Any personal property commuters had in the region, such as automobiles, could be exposed to 6
POINT III THE BOARD HAS MADE CLEAR THAT STATEMENTS OF POSITION ARE NOT EVIDENCE AND ARE NOT SUBJECT TO EVIDENTIARY CHALLENGE This Board has already made clear on several occasions that regarding challenge[s] to Initial Statement[s] of Position, this document is not evidence, but rather consists merely of attorney arguments. Any motion to strike testimony in this document is inappropriate. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 14 (Mar. 6, 2012) (unpublished) (March 6, 2012 Board Order);
see also id. at 19 (Statements of positions are not evidence. Thus, the admissibility standards of Section 2.337(a) do not apply and statements of positions are not subject to evidentiary challenge.); id. at 24 (Finally, statements of position are a partys legal interpretation of its evidence, not its actual evidence, and we will use it inasmuch as it is supported by the evidence ... Therefore, we will not exclude portions of [a] Statement of Position.). As a result, Entergys motion to strike portions of the States Revised Statement of Position for NYS-16B should be denied.
POINT IV THE BOARD SHOULD ADMIT DR. SHEPPARDS REBUTTAL TESTIMONY TO ENSURE ITS DECISION IS BASED UPON A COMPLETE RECORD Rather than exclude evidence, this Board has generally opted to give all evidence its appropriate weight at evidentiary hearing in the context of evaluating the specific issue before [it]. March 6, 2012 Board Order at 20; see also id. at 24; c.f. Licensing Board radiation, requiring decontamination. Sheppard Rebuttal Testimony at 32. However, this statement relates to Dr. Sheppards knowledge of commuting patternsi.e., the methods by which commuters travel to their places of employmentand therefore, is not outside his area of expertise.
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Order (Denying New Yorks Motion in Limine and Holding Riverkeepers Motion in Limine in Abeyance) at 6 (June 1, 2012) (unpublished) (While some of the testimony provided by Entergy and the NRC Staff might appear as statements of a witnesss opinion as to what the law requires, we are comfortable exercising our responsibility to interpret independently what the law is.). Entergy has failed to demonstrate why it is necessary for the Board to exclude the evidence at issue, rather than afford it the appropriate weight after considering the evidence presented by all parties at the hearing.
In this administrative proceeding, there is no danger of prejudice, as there would be in a jury trial, if the Board waits until the hearing to consider the evidence.5 Licensing Boards are accustomed to weighing evidence, including expert testimony, and determining its relevance to the issues presented. Amergen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) at 2 (Aug. 9, 2007) (unpublished)
(ML072210832) (Oyster Creek).
It is of the utmost importance that the Board have a full record of all evidence before it when rendering its relicensing decision. Excluding evidence before the hearing does not serve this interest. As the Appeal Board held, No conceivable good is served by making empty findings in the absence of essential evidence. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 N.R.C. 227, 230 (Appeal Board 1980) (vacating Licensing Boards finding as unsupported by the record and ordering a de novo consideration of the issues at an evidentiary hearing before the 5
Calvert Cliffs 3 Nuclear Project, LLC (Combined License Application for Calvert Cliffs Unit 3),
Licensing Board Order, LBP 09-874-02-COL-BD01 at 3 (Jan. 17, 2012) (unpublished) (ML12017A200)
(In administrative proceedings such as this, where no jury is involved, no such threat of prejudice is present, . . . there is accordingly no compelling need for a ruling on the materiality of challenged testimony before the hearing has begun.).
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Appeal Board).
For this reason, even in instances where a licensing board has found material to be inadmissible, it has declined to strike it from the record. Oyster Creek at 2 (This Board will refrain from actually expunging the irrelevant material from the record.
Rather, to the extent we conclude that material is irrelevant or otherwise inadmissible, we will accord it no weight in making our determination. . .). Since the Board can determine the proper weight to afford Dr. Sheppards Rebuttal Testimony, it should deny Entergys request to strike portions of it from the hearing record.6 CONCLUSION For the above-stated reasons, the State of New York respectfully requests that the Board deny Entergys Motion.
Respectfully submitted, Signed (electronically) by Laura E. Heslin John J. Sipos Kathryn M. Liberatore Assistant Attorney General Assistant Attorneys General Office of the Attorney General for the State of New York The Capitol Albany, New York 12227 (518) 402-2251 Dated: August 9, 2012 6
Should the Board chose to grant Entergys motion in limine, the State requests that any stricken or excluded evidence be preserved for appeal. See Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241, 267 (S.D.N.Y. 2001).
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10 C.F.R. § 2.323 Certification Pursuant to 10 C.F.R. § 2.323(b) and the Boards July 1, 2010 Scheduling Order (at 8-9), with respect to Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Contention NYS-16B, I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.
Signed (electronically) by Laura E. Heslin Kathryn M. Liberatore Assistant Attorneys General State of New York Dated: August 9, 2012 10
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. August 9, 2012
x CERTIFICATE OF SERVICE I hereby certify that on August 9, 2012, copies of the State of New Yorks Answer to Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Contention NYS-16B were served electronically via the Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Michael F. Kennedy Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Michael.Kennedy@nrc.gov Richard E. Wardwell Atomic Safety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 3 F23 11545 Rockville Pike Two White Flint North Rockville, MD 20852-2738 11545 Rockville Pike Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov 1
Shelbie Lewman, Esq. Law Clerk Kathryn M. Sutton, Esq.
Anne Siarnacki, Esq., Law Clerk Paul M. Bessette, Esq.
Atomic Safety and Licensing Board Panel Jonathan Rund, Esq.
U.S. Nuclear Regulatory Commission Raphael Kuyler, Esq.
Mailstop 3 F23 Morgan, Lewis & Bockius LLP Two White Flint North 1111 Pennsylvania Avenue, NW 11545 Rockville Pike Washington, DC 20004 Rockville, MD 20852-2738 ksutton@morganlewis.com Shelbie.Lewman@nrc.gov pbessette@morganlewis.com Anne.Siarnacki@nrc.gov jrund@morganlewis.com rkuyler@morganlewis.com Office of Commission Appellate Adjudication Martin J. ONeill, Esq.
U.S. Nuclear Regulatory Commission Morgan, Lewis & Bockius LLP Mailstop 16 G4 Suite 4000 One White Flint North 1000 Louisiana Street 11555 Rockville Pike Houston, TX 77002 Rockville, MD 20852-2738 martin.oneill@morganlewis.com ocaamail@nrc.gov Bobby R. Burchfield, Esq.
Office of the Secretary Matthew M. Leland, Esq.
Attn: Rulemaking and Adjudications Staff Clint A. Carpenter, Esq.
U.S. Nuclear Regulatory Commission McDermott Will & Emery LLC Mailstop 3 F23 600 13th Street, NW Two White Flint North Washington, DC 20005-3096 11545 Rockville Pike bburchfield@mwe.com Rockville, MD 20852-2738 mleland@mwe.com hearingdocket@nrc.gov ccarpenter@mwe.com Sherwin E. Turk, Esq. Richard A. Meserve, Esq.
David E. Roth, Esq. Covington & Burling LLP Beth N. Mizuno, Esq. 1201 Pennsylvania Avenue, NW Brian G. Harris, Esq. Washington, DC 20004-2401 Anita Ghosh, Esq. rmeserve@cov.com Office of the General Counsel U.S. Nuclear Regulatory Commission Elise N. Zoli, Esq.
Mailstop 15 D21 Goodwin Procter, LLP One White Flint North Exchange Place 11555 Rockville Pike 53 State Street Rockville, MD 20852-2738 Boston, MA 02109 sherwin.turk@nrc.gov ezoli@goodwinprocter.com david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov anita.ghosh@nrc.gov 2
William C. Dennis, Esq. Michael J. Delaney, Esq.
Assistant General Counsel Director Entergy Nuclear Operations, Inc. Energy Regulatory Affairs 440 Hamilton Avenue NYC Department of Environmental White Plains, NY 10601 Protection wdennis@entergy.com 59-17 Junction Boulevard Flushing, NY 11373 Robert D. Snook, Esq. (718) 595-3982 Assistant Attorney General mdelaney@dep.nyc.gov Office of the Attorney General State of Connecticut Manna Jo Greene, Director 55 Elm Street Karla Raimundi, Environmental Justice P.O. Box 120 Associate Hartford, CT 06141-0120 Stephen Filler, Esq., Board Member robert.snook@ct.gov Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Melissa-Jean Rotini, Esq. Beacon, NY 12508 Assistant County Attorney Mannajo@clearwater.org Office of the Westchester County Attorney karla@clearwater.org Michaelian Office Building stephenfiller@gmail.com 148 Martine Avenue, 6th Floor White Plains, NY 10601 Phillip Musegaas, Esq.
MJR1@westchestergov.com Deborah Brancato, Esq.
Riverkeeper, Inc.
Daniel E. ONeill, Mayor 20 Secor Road James Seirmarco, M.S. Ossining, NY 10562 Village of Buchanan phillip@riverkeeper.org Municipal Building dbrancato@riverkeeper.org 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Victoria S. Treanor, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com 3
Signed (electronically) by John J. Sipos Assistant Attorney General State of New York (518) 402-2251 Dated at New York, New York this 9th day of August 2012 4