ML12318A035
| ML12318A035 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/12/2012 |
| From: | Rund J Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23741, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12318A035 (10) | |
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) )
) November 12, 2012 ENTERGYS ANSWER TO NEW YORK STATES MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS ON CONTENTIONS NYS-37 AND NYS-5 I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(b), Entergy Nuclear Operations, Inc. (Entergy) files this Answer to the State of New York (New York) Motion for Leave to File Additional Exhibits Concerning Contentions NYS-37 and NYS-5 (Motion).1 New York proffers four additional exhibits, two of which New York asserts are relevant to Contention NYS-37 (Energy Alternatives) and two of which are relevant to Contention NYS-5 (Buried Piping). Although Entergy did not object to admission of three of these exhibits, at this time, Entergy opposes the admission of Exhibit NYS000447, a report prepared at Riverkeepers request by Synapse Energy Economics entitled Indian Point Replacement Analysis: A Clean Energy Roadmap, and issued on October 11, 2012 (2012 Synapse Report). That document has not been referenced in any NYS-37 written or oral testimony. Nor has New York made any demonstration that it will be discussed during the upcoming supplemental NYS-37 hearing. Accordingly, Entergy respectfully requests that the Atomic Safety and Licensing Board (Board) defer a decision on 1
Partially Unopposed Motion by State of New York Motion for Leave to File Additional Exhibits Concerning Contentions NYS-37 and NYS-5 (Nov. 9, 2012) (Motion).
this one document until the upcoming supplemental NYS-37 hearing, at which time it will be apparent whether and how that document is relevant to NYS-37.
II. ARGUMENT During the 10 C.F.R. § 2.323(b) consultation on New Yorks Motion, Entergy requested that New York state Entergys position as follows:
Entergy objects to the admission of the October 11, 2012 Synapse Report as an exhibit at this time, as it is not referenced in any NYS testimony, and NYS has not made any demonstration that it will be discussed in the supplemental testimony of Mr. Bradford. Entergy respectfully suggests that a decision on the admission of this exhibit be deferred until the supplemental hearing on NYS-37, when it will be more clear whether and how October 11, 2012 Synapse Report is relevant to NYSs testimony on this contention.2 New York, however, elected not to use this language and instead, incompletely characterized Entergys position as simply opposing admission at this time and responded to this incomplete characterization.3 Because New York provided an incomplete rephrasing of Entergys position, Entergy is obligated to file this Answer to clarify Entergys position.
The Board has indicated that, to the extent relevant, newly-created or recently-obtained documents are identified prior to hearing, such documents may be proffered as new exhibits.4 The admissibility decision for such documents, however, cannot be made in a vacuum.
Specifically, with regard to the 2012 Synapse Report and another newly-disclosed document, the Board indicated that without testimony addressing the documents, it could not address the 2
Attachment 1, E-mail from P. Bessette, Counsel for Entergy, to J. Sipos, Counsel for New York (Nov. 9, 2012)
(emphasis added).
3 Motion at 3.
4 See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 1 & 2 [sic -2 & 3] at 1220, 1245-46 (Sept. 24, 2012).
2
admissibility question.5 Nothing has changed since the Board made this statement. For this reason, Entergy continues to oppose the admission of the 2012 Synapse Report until there is some witness discussion of why and how this document is of consequence to NYS-37. It is not enough for New York to simply assert the 2012 Synapse Report is relevant.
As a reminder, the 2012 Synapse Report was not discussed by any witness during the full-day hearing already held on NYS-37. Nor is it apparent how or why witnesses at the upcoming, limited hearing session will rely upon that document, particularly when New York has maintained that nobody affiliated with the State had any role in that documents preparation.
Further, because Riverkeeper, one of the entities responsible for commissioning the 2012 Synapse Report, is not a party to NYS-37 and is not authorized to participate in the supplemental hearing, it is not apparent who can establish that documents reliability or speak to the validity of any analysis or conclusions it contains. Absent some testimony from a witness demonstrating sufficient familiarity with the 2012 Synapse Report, including the methodologies used therein, the Board cannot make the requisite determination of whether that document is reliable and relevant. Accordingly, admission of the 2012 Synapse Report is inappropriate at this time.
5 See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2926 (Oct. 24, 2012)
([A]t this point its difficult to assess [these documents,] not having seen them, not having hear[d] how that testimony is going to be addressed or come from the witnesses.).
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III. CONCLUSION For the reasons set forth above, the Board should defer a decision on the admission of Exhibit NYS000447 until the supplemental hearing on NYS-37, when it will be more clear whether and how the 2012 Synapse Report is relevant to this contention.
Respectfully submitted, Signed (electronically) by Jonathan M. Rund William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.
William C. Dennis, Esq. Paul M. Bessette, Esq.
ENTERGY SERVICES, INC. Jonathan M. Rund, Esq.
440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.
this 12th day of November 2012 4
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) )
) November 12, 2012 MOTION CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving parties, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Executed in accord with 10 C.F.R. § 2.304(d)
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
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Attachment 1 From: Bessette, Paul M.
Sent: Friday, November 09, 2012 10:21 AM To: John J. Sipos Cc: Turk, Sherwin; Rund, Jonathan M.; Tenpas, Ronald J.; Mizuno, Beth; Janice Dean; Lisa Feiner; Lisa M. Burianek; Adam Solomon
Subject:
RE: consultation - submission of exhibits Then please note our objection as follows:
Entergy objects to the admission of the October 11, 2012 Synapse Report as an exhibit at this time, as it is not referenced in any NYS testimony, and NYS has not made any demonstration that it will be discussed in the supplemental testimony of Mr. Bradford. Entergy respectfully suggests that a decision on the admission of this exhibit be deferred until the supplemental hearing on NYS-37, when it will be more clear whether and how October 11, 2012 Synapse Report is relevant to NYSs testimony on this contention.
Thank you, Paul M. Bessette Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004-2541 Direct: 202.739.5796 l Main: 202.739.3000 l Fax: 202.739.3001 pbessette@morganlewis.com l www.morganlewis.com Assistant: Lena M. Long l 202.739.5182 l llong@morganlewis.com From: John J. Sipos [1]
Sent: Friday, November 09, 2012 9:58 AM To: Bessette, Paul M.
Cc: Turk, Sherwin; Rund, Jonathan M.; Tenpas, Ronald J.; Mizuno, Beth; Janice Dean; Lisa Feiner; Lisa M. Burianek; Adam Solomon
Subject:
RE: consultation - submission of exhibits Paul:
Thank you again for Entergy's response on the State's proposal for the admission of the Synapse report.
Upon further reflection here, it seems to us that Entergy's rationale does not sustain its objection to the requested admission of the document. While Janice and I did not commission the report, that is essentially besides the point; rather, the report seems to shed light on aspects of Contention 37, and for that reason it seems appropriate to seeks its admission.
Thanks again for discussing this.
John Sipos, Assistant Attorney General 518 - 402 - 2251 From: Bessette, Paul M. [2]
Sent: Thursday, November 08, 2012 3:44 PM To: John J. Sipos Cc: Turk, Sherwin; Rund, Jonathan M.; Tenpas, Ronald J.; Mizuno, Beth; Janice Dean
Subject:
RE: consultation - submission of exhibits 1
John, we have conferred and also do not oppose your filing of the telephone conference call summary on buried piping as an exhibit, subject to inclusion of the Oct. 18, 2012 letter from Entergy to NRC on the same subject. We also do not oppose inclusion of the October 22 NYS Energy Highway Task Force report, as that document (or a version thereof) was the subject of prior testimony.
However, at this time we oppose admission of the . Both you and Janice stated to me several times during hearing that NYS was not aware of, and not involved in, the preparation or issuance of that document so it could not have been prepared by or for NYS in response to any points raised in our respective testimony. It has also not been the subject of any testimony to date, and thus there appears to be no basis for inclusion in the record as an exhibit. Accordingly, and consistent with prior Board direction on this issue, we suggest you wait until the supplemental hearing on NYS-38 to request introduction of this document as an exhibit, when we will know if it is referenced in any testimony and some appropriate foundation can be established.
- Thanks, Paul M. Bessette Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004-2541 Direct: 202.739.5796 l Main: 202.739.3000 l Fax: 202.739.3001 pbessette@morganlewis.com l www.morganlewis.com Assistant: Lena M. Long l 202.739.5182 l llong@morganlewis.com From: John J. Sipos [3]
Sent: Thursday, November 08, 2012 2:45 PM To: 'Turk, Sherwin' Cc: Bessette, Paul M.; Janice Dean; Sutton, Kathryn M.; O'Neill, Martin; Kathryn Liberatore; Rund, Jonathan M.; Kuyler, Raphael Philip; 'IPNonPublicHearingFile'; IPRenewal NPEmails; Teresa Manzi; 'Mizuno, Beth'
Subject:
RE: consultation - submission of exhibits Sherwin:
Thank you for sending the October 18, 2012 letter. As an alternative, how about the State including the Oct 18, 2012 letter in the motion that we are discussing (so that the motion would include 4 documents, not 3), and NRC Staff can submit revised testimony when the witness returns to the office?
John Sipos, Assistant Attorney General 518 - 402 - 2251 From: Turk, Sherwin [4]
Sent: Thursday, November 08, 2012 12:37 PM To: John J. Sipos Cc: Bessette, Paul M.; Janice Dean; Sutton, Kathryn M.; 'O'Neill, Martin'; Kathryn Liberatore; Rund, Jonathan M.; Kuyler, Raphael Philip; 'IPNonPublicHearingFile'; IPRenewal NPEmails
Subject:
RE: consultation - submission of exhibits John -
The Staff does not oppose your filing of the telephone conference call summary on buried piping as an exhibit
- although I would prefer to file it as a Staff exhibit, along with Entergys follow-up letter of October 18, 2012 (attached). As I mentioned in our conversation a few moments ago, I think the two documents should be filed 2
together; I would propose filing them as Staff exhibits, along with a mark-up of the Staffs testimony on buried piping that will address the new information.
Sherwin From: John J. Sipos [5]
Sent: Wednesday, November 07, 2012 3:30 PM To: 'pbessette@morganlewis.com'; Mizuno, Beth; 'Sutton, Kathryn M.'; Turk, Sherwin Cc: 'dbrancato@riverkeeper.org'; 'Richard Webster'; 'karla@clearwater.org'; Phillip Musegaas (PMusegaas@riverkeeper.org); Lisa Feiner; Janice Dean; Adam Solomon
Subject:
consultation - submission of exhibits
Dear Counsel:
The State of New York seeks to consult with NRC and Entergy concerning the State's plan to seek leave from the Atomic Safety and Licensing Board for the admission of three documents that recently came into existence. The three documents are:
On October 11, 2012 Synapse Energy Economics, Inc. released the a report, detailing the capacity for generating power in the absence of Indian Point Unit 2 and Indian Point Unit 3. Indian Point Replacement Analysis: A Clean Energy Roadmap, A Proposal for Replacing the Nuclear Plant with Clean, Sustainable Energy Resources, T. Woolf, M. Whited, T. Vitolo, K. Takahashi, D. White, October 11, 2012. The Board, on October 24, 2012, marked that document as Board Exhibit 6. New York State will ask the Board to admit the Synapse Report as NYS000447.
On October 22, 2012, the New York Energy Highway Task Force released its "New York Energy Highway Blueprint," describing power generation and transmission opportunities throughout the State. New York Energy Highway Blueprint, New York Energy Highway Task Force, October 22, 2012. The Board, on October 24, 2012, marked that document as Board Exhibit 7. New York State will ask the Board to admit the report as NYS000448.
On October 31, 2012, the Nuclear Regulatory Commission released a summary of a telephone conference from October 11, 2012. Summary of Telephone Conference Call Held on October 11, 2012 Between the U.S.
Nuclear Regulatory Commission and Entergy Nuclear Operations, Inc.,
Concerning the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application, U.S. NRC, 10/31/2012, Adams Accession Number ML12289A880. The call discussed recently-identified piping at the Indian Point facilities. New York State will ask the Board to admit the summary as NYS000449.
Please let me know whether or not your clients oppose the contemplated motion for the admission of these documents. Thank you.
John Sipos Assistant Attorney General tel. 518 - 402 - 2251 3
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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) )
) November 12, 2012 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Answer to New York States Motion for Leave to File Additional Exhibits on Contentions NYS-37 and NYS-5 were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Jonathan M. Rund Jonathan M. Rund, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5061 Fax: (202) 739-3001 E-mail: jrund@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 71792576