ML12340A179
| ML12340A179 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/05/2012 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | Entergy Nuclear Operations, Hudson River Sloop Clearwater |
| SECY RAS | |
| References | |
| RAS 23840, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12340A179 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) December 5, 2012 ORDER (Denying Clearwaters Motion to Supplement the Record)
On November 14, 2012, Hudson River Sloop Clearwater, Inc. (Clearwater) filed a motion to supplement the record with eleven exhibits, largely describing the effects of Hurricane Sandy on environmental justice populations in the New York metropolitan area.1 On November 26, 2012, Clearwater filed a notice of supplemental exhibits, which urged the Board to admit four additional exhibits discussing the impacts of Hurricane Sandy.2 Clearwater argues this evidence is new, different, and highly relevant, and should be admitted in support of its contention CW-EC-3A.3 1
Hudson River Sloop Clearwater, Inc.s Motion to Supplement the Record with Relevant New Information that Became Apparent after Hurricane Sandy (Nov. 14, 2012) [hereinafter Clearwater Motion].
2 Hudson River Sloop Clearwater, Inc.s Notice of Supplemental Exhibits to Motion to Supplemental the Record with Relevant New Information that Became Apparent After Hurricane Sandy (Nov. 26, 2012) [hereinafter Supplemental Notice].
3 Clearwater Motion at 9-10; Supplemental Notice at 2.
Entergy Nuclear Operations, Inc. (Entergy) and the NRC Staff object to the admission of Clearwaters recent filings.4 The NRC Staff argues that the reopening standard of 10 C.F.R.
§ 2.326(a) should apply to Clearwaters exhibits or, in the alternative, that Clearwaters exhibits are unreliable, irrelevant, and immaterial.5 Entergy argues that Clearwater has failed to meet its burden under 10 C.F.R. §§ 2.323 and 2.337. In addition, Entergy requests that the Board deny Clearwaters request to file an additional response brief and additional related exhibits, and close the record on CW-EC-3A (and all other contentions on which the Board has collected oral testimony) to prevent additional filings.6 Clearwaters initial motion is deficient in several regards. First, Clearwater encourages the Board to apply the standards of the former 10 C.F.R. § 2.309(f)(2)(i)-(iii) to the admission to its proffered evidence.7 On the other hand, Entergy and the Staff encourage the Board to apply the reopening standards of 10 C.F.R. § 2.326(a).8 Both suggestions are misguided in several respects. Section 2.309(f)(2)(i)-(iii), as cited by Clearwater, is no longer in effect, as that section was amended on September 4, 2012 by the Commission and pertained to contention admissibility.9 Since the Board has not closed the record, and is not prepared to do so at this 4
See Entergys Answer Opposing Hudson River Sloop Clearwaters Motion to Supplement the Record with New Information that Became Apparent After Hurricane Sandy (Nov. 28, 2012)
[hereinafter Entergy Answer]; NRC Staffs Answer to Hudson River Sloop Clearwater, Inc.s Motion to Supplement the Record with Relevant New Information that Became Apparent Hurricane Sandy (Nov. 28, 2012) [hereinafter NRC Staff Answer]. Entergy also made a separate filing opposing Clearwaters Supplemental Notice. See Entergys Answer Opposing Hudson River Sloop Clearwaters Second Motion to Supplement the Record (Nov. 30, 2012).
5 NRC Staff Answer at 4-6, 11-16.
6 Entergy Answer at 2-3.
7 Clearwater Motion at 10.
8 Entergy Answer at 4 n.4; NRC Staff Answer at 4-6.
9 Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed.
Reg. 46,562 (Aug. 3, 2012). See also Licensing Board Order (Concerning Recent Changes to 10 C.F.R. Part 2) (Aug. 8, 2012) at 1-2 (unpublished) (holding implementation of the new rules, as to scheduling issues, in abeyance in this case).
time, the reopening standards do not apply to Clearwaters proffered exhibits. Instead, the Board finds that 10 C.F.R. § 2.337(a) is the relevant standard, and therefore, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted.10 In applying this standard, the Board finds that the documents submitted by Clearwater dealing with an unrelated weather event are immaterial and not relevant to the reasonableness of the NRC Staffs environmental justice review of Indian Point, Units 2 and 3.
As a side note, Clearwaters initial motion also fails under 10 C.F.R. § 2.323(b), which requires that the Board reject a motion if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful.11 The Board has cautioned many times about the importance of consultation under this provision,12 and without such certification, the motion must be denied. Clearwaters supplemental notice indicates that consultation with the Staff and Entergy was attempted, but it appears that the other parties to the proceeding were not consulted, as required by the regulation.13 In addition, the statement on consultation in the supplemental notice fails to meet the requirements of 10 C.F.R. § 2.323(b).14 10 10 C.F.R. § 2.337(a).
11 Id. § 2.323(b). While it appears that some consultation occurred, it is unclear whether this consultation occurred in relation to Clearwaters November 8, 2012 motion for an extension of time or during consultation on this motion. See Clearwater Motion at 2 n.2, 10 n.12.
Regardless, neither footnote is clear or contains the information required by 10 C.F.R.
§ 2.323(b).
12 Licensing Board Memorandum and Order (Summarizing Pre-Hearing Conference) (Feb. 4, 2009) at 3 (unpublished); Licensing Board Order (Denying New Yorks Motion in Limine and Holding Riverkeepers Motion in Limine in Abeyance) (June 1, 2012) at 5-6 (unpublished);
Licensing Board Order (Denying New York States Motion to Supplement) (June 6, 2012) at 3 (unpublished).
13 Supplemental Notice at 2.
14 Id.
Exhibits CLE000061 through CLE000075 are not admitted. Exhibit Lists CLER50001 and CLER60001 are marked for identification but are not received in evidence. The next exhibit list for Clearwater, if needed, would be CLER70001. In addition, the Board denies as moot Entergys requests for additional filings on this matter, as well as Clearwaters request to file an additional response and a continued ability to make filings related to Hurricane Sandy. In addition, Entergys request to close the record on certain contentions is denied at this time.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 5, 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
) Docket Nos. 50-247-LR
) and 50-286-LR (Indian Point Nuclear Generating, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Clearwaters Motion to Supplement the Record) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.
Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.
Mail Stop O-7H4M David E. Roth, Esq.
Washington, DC 20555-0001 Sherwin E. Turk, Esq.
ocaamail@nrc.gov Brian Harris, Esq.
Mary B. Spencer, Esq.
U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.
Office of the Secretary of the Commission Karl Farrar, Esq.
Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the General Counsel hearingdocket@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission sherwin.turk@nrc.gov; Atomic Safety and Licensing Board Panel edward.williamson@nrc.gov Mail Stop T-3F23 beth.mizuno@nrc.gov; brian.harris.@nrc.gov Washington, DC 20555-0001 david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; karl.farrar@nrc.gov Lawrence G. McDade, Chair Administrative Judge OGC Mail Center lawrence.mcdade@nrc.gov OGCMailCenter@nrc.gov Richard E. Wardwell William C. Dennis, Esq.
Administrative Judge Assistant General Counsel richard.wardwell@nrc.gov Entergy Nuclear Operations, Inc.
440 Hamilton Avenue Michael F. Kennedy White Plains, NY 10601 Administrative Judge wdennis@entergy.com michael.kennedy@nrc.gov William B. Glew, Jr.
Anne Siarnacki, Law Clerk Organization: Entergy Shelbie Lewman, Law Clerk 440 Hamilton Avenue, White Plains, NY 10601 James Maltese, Law Clerk wglew@entergy.com Carter Thurman, Law Clerk anne.siarnacki@nrc.gov Elise N. Zoli, Esq.
shelbie.lewman@nrc.gov Goodwin Proctor, LLP james.maltese@nrc.gov Exchange Place, 53 State Street carter.thurman@nrc.gov Boston, MA 02109 ezoli@goodwinprocter.com
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Clearwaters Motion to Supplement the Record)
Thomas F. Wood, Esq. Melissa-Jean Rotini, Esq.
Daniel Riesel, Esq. Assistant County Attorney Victoria Shiah Treanor, Esq. Office of Robert F. Meehan, Adam Stolorow, Esq. Westchester County Attorney Jwala Gandhi, Paralegal 148 Martine Avenue, 6th Floor Peng Deng, Paralegal White Plains, NY 10601 Counsel for Town of Cortlandt mjr1@westchestergov.com Sive, Paget & Riesel, P.C.
460 Park Avenue Clint Carpenter, Esq.
New York, NY 10022 Bobby Burchfield, Esq.
driesel@sprlaw.com; vtreanor@sprlaw.com Matthew Leland, Esq.
astolorow@sprlaw.com; jgandhi@sprlaw.com McDermott, Will and Emergy LLP pdeng@sprlaw.com 600 13th Street, NW Washington, DC 20005 Kathryn M. Sutton, Esq. ccarpenter@mwe.com; bburchfield@mwe.com Paul M. Bessette, Esq. mleland@mwe.com Martin J. ONeill, Esq.
Raphael Kuyler, Esq. Matthew W. Swinehart, Esq.
Jonathan M. Rund, Esq. Covington & Burling LLP Lena Michelle Long, Esq. 1201 Pennsylvania Avenue, NW Laura Swett, Esq. Washington, DC 20004 Lance Escher, Esq. mswinehart@cov.com Mary Freeze, Legal Secretary Antoinette Walker, Legal Secretary John Louis Parker, Esq.
Morgan, Lewis & Bockius, LLP Office of General Counsel, Region 3 1111 Pennsylvania Avenue, NW New York State Department Washington, DC 20004 of Environmental Conservation ksutton@morganlewis.com 21 South Putt Corners Road martin.oneill@morganlewis.com New Paltz, NY 12561-1620 rkuyler@morganlewis.com; jlparker@gw.dec.state.ny.us jrund@morganlewis.com llong@morganlewis.com; Edward F. McTiernan, Esq.
lswett@morganlewis.com New York State Department lescher@morganlewis.com of Environmental Conservation mfreeze@morganlewis.com Office of General Counsel awalker@morganlewis.com 625 Broadway Albany, NY 12233-1500 Phillip Musegaas, Esq. efmctier@gw.dec.state.ny.us Deborah Brancato, Esq.
Ramona Cearley, Secretary Manna Jo Greene, Environmental Director Riverkeeper, Inc. Steven C. Filler 20 Secor Road Karla Raimundi Ossining, NY 10562 Hudson River Sloop Clearwater, Inc.
phillip@riverkeeper.org; 724 Wolcott Ave.
dbrancato@riverkeeper.org Beacon, NY 12508 rcearley@riverkeeper.org mannajo@clearwater.org; stephenfiller@gmail.com karla@clearwater.org 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Clearwaters Motion to Supplement the Record)
Richard Webster, Esq. Janice A. Dean, Esq.
Public Justice, P.C. Assistant Attorney General For Hudson River Sloop Clearwater, Inc. Kathryn Liberatore, Esq.
1825 K Street, NW, Suite 200 Office of the Attorney General Washington, D.C. 20006 of the State of New York rwebster@publicjustice.net 120 Broadway, 26th Floor New York, New York 10271 Michael J. Delaney, Esq. janice.dean@ag.ny.gov Director, Energy Regulatory Affairs kathryn.liberatore@ag.ny.gov NYC Department of Environmental Protection 59-17 Junction Boulevard Sean Murray, Mayor Flushing, NY 11373 Kevin Hay, Village Administrator mdelaney@dep.nyc.gov Village of Buchanan Municipal Building John J. Sipos, Esq. 236 Tate Avenue Charles Donaldson, Esq. Buchanan, NY 10511-1298 Assistant Attorneys General smurray@villageofbuchanan.com Office of the Attorney General administrator@villageofbuchanan.com of the State of New York Elyse Houle, Legal Support The Capitol, State Street Albany, New York 12224 john.sipos@ag.ny.gov charlie.donaldson@ag.ny.gov elyse.houle@ag.ny.gov 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 robert.snook@po.state.ct.us
[Original signed by Nancy Greathead]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 5th day of December 2012 3