ML15288A207
| ML15288A207 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 10/15/2015 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 28388 | |
| Download: ML15288A207 (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) October 15, 2015 ORDER (Denying Entergys Motions; Denying NRC Staffs Motion; Granting New Yorks Motion)
Before the Board are four motions relating to Contentions NYS-25, NYS-26B/RK-TC-1B, and NYS-38/RK-TC-5. Each motion is addressed in turn.
I. Entergy and NRC Staffs Motions in Limine On September 21, 2015, Entergy Nuclear Operations, Inc. (Entergy) filed a Motion to Strike and Motion in Limine addressing testimony and documentary evidence submitted by the State of New York (New York) and Riverkeeper, Inc. (Riverkeeper) (collectively, Intervenors).1 In its motion, Entergy seeks to strike one portion of New Yorks Supplemental Reply Statement of Position on Contention NYS-25, and to exclude portions of the Report of Dr. Joram Hopenfeld in Response to Entergy and NRC Staff Testimony Regarding Contention NYS-26B/RK-TC-1B and Amended Contention NYS-38/RK-TC-5 (NYS-38) from the record.2 Entergy argues that the 1 Entergys Motion to Strike and Motion in Limine to Exclude Portions of the Intervenors Rebuttal Filings on Track 2 Safety Contentions (Sept. 21, 2015) [hereinafter Motion in Limine].
2 For the specific portions of the rebuttal filings at issue, see Motion in Limine, attach. 1 (Exclusion Chart).
submissions include challenges to the current licensing basis (CLB), which cannot be challenged in a license renewal proceeding, and also address issues that are beyond the scope of this proceeding.3 On October 1, 2015, the Intervenors filed a joint response in opposition.4 The Board agrees with Entergys general position that a license renewal proceeding is limited to issues arising from adequate aging management and that it is therefore an inappropriate venue in which to challenge the adequacy of a reactors CLB or any already-granted license amendment. However, the contentions at issue are not as narrowly drawn as Entergy suggests, but include potential failures of Entergys aging management plan (AMP) during the period of extended operation. The Board will receive this testimony and evidence, and weigh its value only in the context of the adequacy of Entergys AMP. For the foregoing reasons, Entergys Motion in Limine is denied.
Additionally, Entergy filed a Motion to Strike and Motion in Limine in January 2013,5 which similarly argue that certain testimony and documentary evidence6 should be excluded from proceedings on Contention NYS-38 because it falls outside the scope of the contention.7 These motions are also denied, for the reasons listed above.
3 Id. at 2-3.
4 State Of New York And Riverkeeper Joint Answer to Entergys Motion to Strike and Motion in Limine (Oct. 1, 2015).
5 Motion in Limine at 3; Entergys Motion to Strike Portions of Intervenors Revised Statement of Position and Motion in Limine to Exclude Portions of the Pre-filed Rebuttal Testimony and Exhibits for Contention NYS-38/RK-TC-5 (Safety Commitments) (Jan. 7, 2013) (corrected Jan.
25, 2013) [hereinafter 2013 Motion to Strike].
6 Entergy seeks to strike testimony from Dr. Lahey and Dr. Hopenfeld as well as New York and Riverkeepers Revised Statement of Position in Support of Joint Contention NYS-38/RK-TC-5 (Nov. 9, 2012) only in part and has provided a line-by-line chart of the portions it seeks to strike.
2013 Motion to Strike, attach. 1 at 1-2 (Exclusion Chart). Entergy also seeks to strike in their entirety Exhibits RIV000130, RIV000132, RIV000133, RIV000135, RIV000136, RIV000137, RIV000138, and RIV000139. Id. at 2.
7 2013 Motion to Strike at 2.
On January 7, 2013, the Nuclear Regulatory Commission Staff (Staff) filed a Motion in Limine8 to exclude certain lines of rebuttal testimony filed by Riverkeeper concerning Contention NYS-38,9 arguing that the rebuttal testimony at issue improperly exceeds the scope of the contention as well as the scope of the direct testimony to which it responds by introducing new issues.10 Given the Boards view on the scope of the contentions as described above, the Staffs motion is denied.
II. New Yorks Motion for Leave to File Additional Exhibits On September 23, 2015, New York filed a motion seeking leave to file two NRC documents and supplemental testimony as exhibits in support of Contentions NYS-25, NYS-26B/RK-TC-1B, and NYS-38/RK-TC-5.11 Entergy and the Staff filed responses opposing New Yorks motion on the grounds that the submissions are untimely and redundant.12 The documents New York seeks to file could and should have been included in New Yorks earlier submissions. However, given the fact that these documents were published in July 2015 and identified by Entergy as potentially relevant in August and September 2015,13 and 8 NRC Staffs Motion in Limine to Exclude Portions of the Prefiled Rebuttal Testimony Filed by Riverkeeper Concerning Contention NYS-38/RK-TC-5 (Jan. 7, 2013) [hereinafter NRC Staffs Motion in Limine].
9 Specifically, the Staff seeks to strike from Exhibit RIV000134 (Prefiled Rebuttal Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5) (Nov. 9, 2012) the following:
page 6, lines 15-17; page 11, lines 10 and 15; page 12, line 5, through page 14, line 13; and page 14, line 15, through page 15, line 21. NRC Staffs Motion in Limine at 4-5.
10 NRC Staffs Motion in Limine at 3-4.
11 State of New York Motion for Leave to File Two NRC Documents as Additional Exhibits along with Pre-Filed Supplemental Testimony (Sept. 23, 2015) [hereinafter Motion for Leave to File Additional Exhibits].
12 Entergys Answer Opposing New Yorks Motion for Leave to File Additional Hearing Exhibits and Supplemental Testimony (Oct. 5, 2015) [hereinafter Answer Opposing New Yorks Motion];
NRC Staffs Answer to State of New York Motion for Leave to File Two NRC Documents as Additional Exhibits Along with Pre-Filed Supplemental Testimony (Oct. 5, 2015); see also Licensing Board Revised Scheduling Order (Dec. 9, 2014) at 2-3 (unpublished).
13 Motion for Leave to File Additional Exhibits at 1-2.
the large volume of documents in this proceeding, the Board finds New Yorks failure to include these documents both understandable and excusable.
Additionally, the Board finds the documents and testimony relevant as it anticipates that it will have questions concerning the subject matter addressed in these documents and that New Yorks expert witness Dr. Richard Lahey may wish to refer to these documents in answering those questions. Further, because one of these documents is the final version of a previously admitted exhibit,14 and the other is an NRC report already identified by Entergy as potentially relevant,15 their inclusion may create a more fully developed record while not prejudicing other parties or causing unnecessary delay. As such, New Yorks motion is granted.
As requested in Entergys Answer Opposing New Yorks Motion,16 the Board grants Entergy and the Staff two weeks from the date of this Order to submit any supplemental testimony and additional documents which they believe may rebut or explain the newly admitted exhibits and testimony.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland October 15, 2015 14 Id. at 5.
15 Id. at 6.
16 Answering Opposing New Yorks Motion at 2.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) 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 Entergys Motions; Denying NRC Staffs Motion; Granting New Yorks Motion) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Edward L. Williamson, Esq.
Mail Stop O-7H4M Beth N. Mizuno, Esq.
Washington, DC 20555-0001 David E. Roth, Esq.
ocaamail@nrc.gov Sherwin E. Turk, Esq.
Brian Harris, Esq.
U.S. Nuclear Regulatory Commission Mary B. Spencer, Esq.
Office of the Secretary of the Commission Anita Ghosh, Esq.
Mail Stop O-16C1 Christina England, Esq.
Washington, DC 20555-0001 Catherine E. Kanatas, Esq.
hearingdocket@nrc.gov Joseph Lindell, Esq.
John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 sherwin.turk@nrc.gov; Lawrence G. McDade, Chair edward.williamson@nrc.gov Administrative Judge beth.mizuno@nrc.gov; brian.harris.@nrc.gov lawrence.mcdade@nrc.gov david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; Richard E. Wardwell christina.england@nrc.gov; Administrative Judge catherine.kanatas@nrc.gov; richard.wardwell@nrc.gov joseph.lindell@nrc.gov; john.tibbetts@nrc.gov Michael F. Kennedy Administrative Judge OGC Mail Center michael.kennedy@nrc.gov OGCMailCenter@nrc.gov Alana Wase, Law Clerk William B. Glew, Jr.
alana.wase@nrc.gov Organization: Entergy 440 Hamilton Avenue, White Plains, NY 10601 Julie Reynolds-Engel, Law Clerk wglew@entergy.com Julie.Reynolds-Engel@nrc.gov
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Entergys Motions; Denying NRC Staffs Motion; Granting New Yorks Motion)
Elise N. Zoli, Esq. Melissa-Jean Rotini, Esq.
Goodwin Proctor, LLP Assistant County Attorney Exchange Place, 53 State Street Office of Robert F. Meehan, Boston, MA 02109 Westchester County Attorney ezoli@goodwinprocter.com 148 Martine Avenue, 6th Floor White Plains, NY 10601 Daniel Riesel, Esq. mjr1@westchestergov.com Victoria Shiah Treanor, Esq.
Adam Stolorow, Esq. Bobby Burchfield, Esq.
Natoya Duncan, Paralegal Matthew Leland, Esq.
Counsel for Town of Cortlandt Emre Ilter, Esq.
Sive, Paget & Riesel, P.C. McDermott, Will and Emery LLP 460 Park Avenue 500 North Capitol Street NW New York, NY 10022 Washington, DC 20001 driesel@sprlaw.com; vtreanor@sprlaw.com bburchfield@mwe.com astolorow@sprlaw.com; nduncan@sprlaw.com mleland@mwe.com eilter@mwe.com Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq. Matthew W. Swinehart, Esq.
Martin J. ONeill, Esq. Covington & Burling LLP Raphael Kuyler, Esq. 1201 Pennsylvania Avenue, NW Brooke McGlinn, Esq. Washington, DC 20004 Grant Eskelsen, Esq. mswinehart@cov.com Ryan Lighty, Esq.
Lesa G. Williams-Richardson, Legal Secretary Edward F. McTiernan, Esq.
Doris Calhoun, Legal Secretary New York State Department Mary Freeze, Legal Secretary of Environmental Conservation Morgan, Lewis & Bockius, LLP Office of General Counsel 1111 Pennsylvania Avenue, NW 625 Broadway Washington, DC 20004 14th Floor ksutton@morganlewis.com Albany, NY 12233-1500 martin.oneill@morganlewis.com efmctier@gw.dec.state.ny.us rkuyler@morganlewis.com; lescher@morganlewis.com Manna Jo Greene, Environmental Director bmcglinn@morganlewis.com Steven C. Filler sraimo@morganlewis.com Peter A. Gross geskelsen@morganlewis.com Hudson River Sloop Clearwater, Inc.
rlighty@morganlewis.com 724 Wolcott Ave.
lrichardson@morganlewis.com Beacon, NY 12508 dcalhoun@morganlewis.com mannajo@clearwater.org; mfreeze@morganlewis.com stephenfiller@gmail.com; peter@clearwater.org Deborah Brancato, Esq. Andrew Reid, Esq.
Ramona Cearley, Secretary Organization: Hudson River Sloop Riverkeeper, Inc. Clearwater, Inc.
20 Secor Road Springer & Steinberg, P.C.
Ossining, NY 10562 1600 Broadway, Suite 1200 dbrancato@riverkeeper.org Denver, CO 80202 rcearley@riverkeeper.org lawyerreid@gmail.com 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying Entergys Motions; Denying NRC Staffs Motion; Granting New Yorks Motion)
Richard Webster, Esq. John J. Sipos, Esq.
Public Justice, P.C. Lisa S. Kwong, Esq.
For Hudson River Sloop Clearwater, Inc. Brian Lusignan, Esq.
1825 K Street, NW, Suite 200 Assistant Attorneys General Washington, D.C. 20006 Teresa Manzi, Legal Assistant rwebster@publicjustice.net Office of the Attorney General of the State of New York The Capitol, State Street Michael J. Delaney, Esq. Albany, New York 12224 Director, Energy Regulatory Affairs john.sipos@ag.ny.gov NYC Department of Environmental Protection lisa.kwong@ag.ny.gov 59-17 Junction Boulevard brian.lusignan@ag.ny.gov Flushing, NY 11373 teresa.manzi@ag.ny.gov mdelaney@dep.nyc.gov Kathryn M. DeLuca, Esq.
Robert D. Snook, Esq. Laura Heslin, Esq.
Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 kathryn.deluca@ag.ny.gov robert.snook@po.state.ct.us laura.heslin@ag.ny.gov Sean Murray, Mayor David A. Repka, Esq. Kevin Hay, Village Administrator Victoria Hsia, Esq. Village of Buchanan Carlos L. Sisco, Paralegal Municipal Building Winston & Strawn 236 Tate Avenue 1701 K Street NW Buchanan, NY 10511-1298 Washington, DC 20006 smurray@villageofbuchanan.com drepka@winston.com administrator@villageofbuchanan.com vhsia@winston.com CSisco@winston.com
[Original signed by Brian Newell ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 15th day of October, 2015 3