ML11132A101

2011/04/28-State of New York Answer to NRC Staff'S Unopposed Motion for Extension of Time

ML11132A101
Person / Time
Site:	Indian Point
Issue date:	04/28/2011
From:	Dean J A, Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-513
Download: ML11132A101 (6)

Text

I \.~OR.IGINL April 28, 2011 (4:30 p.m.)UNITED STATES OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF 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-BDOI Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 28, 2011------------------------------------------------

x STATE OF NEW YORK ANSWER TO NRC STAFF'S UNOPPOSED MOTION FOR EXTENSION OF TIME The State of New York files this answer to NRC Staff s April 27, 2011 motion for an extension of time to respond to the State's April 22, 2011 motion to compel production of various documents.

As noted in Staff's 10 C.F.R. § 2.323 certification, the State does not oppose Staff's request for additional time.However, Staff's motion goes beyond the request for time and contains substantive statements concerning the merits of the parties' dispute. In light of those statements, the State submits this brief answer to yesterday's motion in an attempt to clarify for Staff and the Board the focus of the State's motion.Staff uses its Unopposed Request for an Extension of Time to Respond to the State of New York's Motion to Compel the Production of Documents as an opportunity to initiate its defense of its document production regarding the FSEIS and SAMA related issues. Staff's central theme is that all possible Sandia documents have been identified on the Deliberative Process Privilege

("DPP") logs and, in the unlikely event any new ones emerge after further inquiry at Sandia, those will be disclosed, although not necessarily produced.Staff's position and .its proposal to make further inquiries to Sandia, as expressed in its April 27 motion, may misapprehend the State's concern. The FSEIS uses these words and phrases to describe Sandia's work: "reviewed," "comparison," "considered,. "cost comparison,""assessed," "performed two analyses," "performed an independent assessment," "performed a separate population projection." See State of New York Motion to Compel NRC Staff To Produce Documents Relied upon in Staffs Final Supplemental Environmental Impact Statement (4/22/11) at pp. 12-14. The handful of Sandia-authored documents disclosed on the DPP log, a total of 9, were all described as containing a "discussion," an "internal discussion" or providing"Comments Regarding the EIS" indicating Sandia internal comments or discussion of drafts prepared by NRC Staff. See DPP-10-001, 004, 006, 007, 011,012, DPP-18-005, 006, DPP-25-045 (listed in Attachment 6 to the Declaration of Janice Dean in support of the State's Motion to Compel). None of those Staff DPP log entries reflected or even suggested that they Were documents that constituted a review, a comparison, an assessment, or the performance of analyses, independent assessments or a separate population projection.

Those "discussion" and"comment" documents that were listed in Staff's DPP logs apparently consisted of Sandia's suggestions to NRC Staff about the draft text or phraseology of draft versions of the FSEIS; such editorial suggestions are not the subject of the State's motion. Rather, the State seeks documents reflecting Sandia's (and ISLI's) "review[]," "comparison," " consider[ation]," "cost comparison,""assess[ment]," "perform[ance of ] two analyses," "perform[ance of] an independent assessment," "perform[ance of] a separate population projection." If, as Staff appears to argue, Staff's DPP logs are intended to cite to Sandia's substantive 2

analysis (i.e., "review[]," "comparison," "consider[ation]," "cost comparison," "assess[ment],""perform[ance of] two analyses," "perform[ance of] an independent assessment," "perform[ance of] a separate population projection")

as opposed to mere FSEIS wordsmithing, then (1) Staff's identification of documents listed in the DPP logs is not accurate, and (2) such factual and analytical documents would not be entitled to be withheld under the deliberative process privilege and new logs must be promptly produced so the State can request, for the reasons discussed in the State's Motion to Compel, that the assertion of privilege be removed from such documents..

In any event, by disclosing Sandia's opinions in the FSEIS, Staff has opened the door to the actual production of those Sandia opinions and all underlying documentation, as discussed in the State's Motion to Compel.Respectfully submitted, Jalice A. Dean Assistant Attorney General Office of the Attorney General 120 Broadway New York, New York 10271 (212) 416-8459 janice.dean@ag.ny.gov April 28, 2011 ss John S~pos Assistant Attorney General Office of the Attorney General State Capitol Albany, New York 12224 (518) 402-2251 john.sipos@ag.ny.gov 3

ORIGI NAL: UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD......................................----------------------

x In re: License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.------------------------------------------

x Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BDO1 DPR-26, DPR-64 April 28, 2011 CERTIFICATE OF SERVICE I hereby certify that on April 28, 2011, copies of the State of New York's Answer to NRC Staff's Unopposed Motion for Extension of Time were served upon the following persons via U.S. Mail and e-mail at the following addresses:

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 190 Cedar Lane E.Ridgway, CO 81432 Kaye.Lathrop@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-273 8 Josh Kirstein, Esq. Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh.Kirstein@nrc.gov I

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov

..Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov Sherwin E. Turk, Esq.David E, Roth, Esq.Andrea Z. Jones, Esq.Beth N. Mizuno, Esq.Brian G. Harris, Esq.Office of the General Counsel U.S: Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 sherwin.turk@nrc.gov andrea.j ones@nrc.gov david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov Emily L. Monteith Megan A. Wright Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 emily.monteith@nrc.gov megan.wright@nrc.gov Kathryn M. Sutton, Esq.Paul M. Bessette, Esq.Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com Martin J. O'Neill, Esq.Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.o'neill@morganlewis.com Elise N. Zoli, Esq.Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com William C. Dennis, Esq.Assistant General Counsel Entergy Nuclear Operations, Inc.440 Hamilton Avenue'White Plains, NY 10601 wdennis@entergy.com 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@ct.gov Melissa-Jean Rotini, Esq.Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 MJR I @westchestergov.com

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Daniel E. O'Neill, Mayor James Seirmarco, M.S.Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net Daniel Riesel, Esq.Thomas F. Wood, Esq.Jessica Steinberg, Esq.Sive, Paget &'Riesel, P.C.460 Park Avenue New York, NY 10022 driesel@sprlaw.com j steinberg@sprlaw.com Michael J. Delaney, Esq.Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Manna Jo Greene, Director Stephen Filler, Esq., Board Member Hudson River Sloop Clearwater, Inc.724 Wolcott Avenue Beacon, NY 12508 Mannajo@clearwater.org stephenfiller@gmail.com Ross H. Gould Board Member Hudson River Sloop Clearwater, Inc.270 Route 308 Rhinebeck, NY 12572 rgouldesq@gmail.com Phillip Musegaas, Esq.Deborah Brancato, Esq.Riverkeeper, Inc.20.Secor Road Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org Janice A. Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 28th day of April, 2011 3