ML12121A702

State of New York Motion to Strike Portions of Entergy and NRC Staff Witness Testimony as Impermissible Under NRC Regulations

ML12121A702
Person / Time
Site:	Indian Point
Issue date:	04/30/2012
From:	Jeremy Dean State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML12121A700	List: ML12121A702
References
RAS 22365, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12121A702 (35)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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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. April 30, 2012

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x STATE OF NEW YORK MOTION TO STRIKE PORTIONS OF ENTERGY AND NRC STAFF WITNESS TESTIMONY AS IMPERMISSIBLE UNDER NRC REGULATIONS Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

TABLE OF CONTENTS INTRODUCTION.1 LEGAL AND REGULATORY STANDARDS..2 ARGUMENT POINT I......5 TESTIMONY OFFERING PURE ARGUMENT OR LEGAL CONCLUSION IS IMPERMISSIBLE POINT II.......11 ENTERGY AND STAFF OFFER TESTIMONY THAT IS REPETITIOUS AND CUMULATIVE IN VIOLATION OF NRC REGULATIONS POINT III.13 ENTERGY AND STAFF OFFER TESTIMONY THAT IS INADMISSIBLE BECAUSE IT CONSTITUTES A COLLATERAL ATTACK ON THE BOARDS DECISION TO ADMIT CONTENTION NYS-17B POINT IV.17 ENTERGY AND STAFF OFFER TESTIMONY THAT IS INADMISSIBLE BECAUSE IT IS RELEVANT TO NO PENDING ISSUE CONCLUSION20 1

INTRODUCTION The State of New York moves, pursuant to 10 C.F.R. §§ 2.333(b), 2.219(d) and (e), and 2.337(a), to strike portions of the testimony of certain proposed Entergy and Staff witnesses offered in response to Contentions NYS-17B and NYS-37 on grounds that they violate Commission regulations and well-established legal precedent. The objectionable portions of the testimony: (1) impermissibly offer conclusions regarding the purported proper interpretation of federal law and NRC regulations, which is appropriate for briefs, not testimony, and which is the province of the Board, not experts; (2) are argumentative and constitute yet another attack on the Boards decision to admit NYS-17B (and its predecessors); (3) in violation of clear regulatory mandates excluding repetitious and cumulative evidence, offer lengthy reviews of documents that will themselves be received into evidence, and/or (4) are irrelevant because they address an issue explicitly excluded from the hearing and not raised by an intervenor. The questions and/or answers the State proposes be stricken by the Board are contained in the testimony of Entergy witnesses Donald P. Cleary, C. William Reamer, and George S. Tolley Regarding Contention NYS-17B (Property Values) (Entergys 17B Testimony); Donald P. Cleary, David Harrison Jr., and Eugene T. Meehan Regarding Contention NYS-37 (Energy Alternatives) (Entergys 37 Testimony); and the testimony of NRC Staff witnesses Jeffrey J. Rikhoff, Andrew L.

Stuyvenberg, and John P. Boska Concerning Contentions NYS-17, 17A and 17B (Land Use)

(Staffs 17B Testimony); and Andrew L. Stuyvenberg Concerning Contention NYS-9, NYS-33 and NYA-37 (Alternatives, Consolidated) (Staffs 37 Testimony). The State has attached a chart identifying the testimony that it seeks to have stricken, and offers support for its position below.

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LEGAL AND REGULATORY STANDARDS The Commissions regulations prohibit the admission of argumentative, repetitious, cumulative, immaterial, or irrelevant evidence and provide the Board with the authority to strike such evidence. 10 C.F.R. § 2.333(b); see also 10 C.F.R. §§ 2.319(d) and (e) and 2.337(a)

(relevant, material, and reliable evidence which is not unduly repetitious is admissible).

When the Commission adopted the current version of 10 C.F.R. Part 2 in 2004, the major focus was on timely conduct of licensing proceedings and ensur[ing] that hearings are fair and produce adequate records that support decisions made by the NRC. 69 Fed. Reg. 2182, 2183 Changes to Adjudicatory Process (Jan. 14, 2004) (Part 2 SOC). This followed a policy that the Commission articulated as early as 1981 in its Statement of Policy on the Conduct of Adjudicatory Proceedings. See CLI-98-12, 48 NRC 18 (63 Fed. Reg. 41872; Aug. 5, 1998).

One of the key features of this effort to reduce the time required to resolve contested proceedings was 10 C.F.R. § 2.333(b) authorizing a Board to strike argumentative, repetitious, cumulative, unreliable, immaterial, or irrelevant evidence. Id.; see also 10 C.F.R. §§ 2.319(d) and (e) and 2.337(a). The multiple inclusions of this authority is intended, as provided in the preamble to § 2.333(b), [t]o prevent unnecessary delays or an unnecessarily large record. Id.

When the Commission adopted the current version of § 2.333 it confirmed the nexus between use of the authority provided by that provision and the goal of achieving timely completion of the hearings:

This section sets forth the general authority of the presiding officer to regulate the procedure in a hearing, to ensure that argumentative, repetitious, cumulative, irrelevant, unreliable, and immaterial evidence is not introduced into the record, and to provide for an orderly and expeditious conduct of the hearing.

Part 2 SOC, 69 Fed. Reg. at 2224.

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There is a long history of decisions by the ASLB and the Atomic Safety and Licensing Appeal Board (Appeal Board) recognizing the burdens placed on the Board and parties when the record is burdened with material that is repetitious, cumulative, unreliable, immaterial or irrelevant. In Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) 20 N.R.C. 819 (Sept. 6, 1984) at *3, n.2 (citation omitted) the Appeal Board noted that repetitious material, even in a Board decision, holds the potential for creating . . .

inconsistencies as one document seeks to summarize or repeat the contents of another document. In Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and

3) ALAB-540, 9 N.R.C. 428, 435 (Apr. 25, 1979) (footnote omitted), the Appeal Board focused on avoiding repetitious material to relieve the intervenors (and ourselves) of the burden of analyzing repetitious papers. In The Toledo Edison Company and the Cleveland Electric Illuminating Company (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), LBP-76-8, 3 N.R.C. 199 (Mar. 1, 1976), the ASLB emphasized why even relevant information that duplicated material already in the record should not be offered. Id. We would discourage the introduction into evidence of documents which, while otherwise relevant, do nothing more than duplicate materials already in the record. Id. at 203; see also In the Matter of The Curators Of The Univ.

Of Missouri (Byproduct Lic. No. 24-00513-32; Special Nuclear Materials Lic. No. SNM-247),

LBP-91-31, (July 19, 1991) (recognizing the importance of striking repetitious testimony that consumes valuable time during a public proceeding and that requires intervenor response.).

Moreover, it is axiomatic that lay witnesses cannot offer legal testimony. [A]lthough the Federal Rules of Evidence (FRE) are not directly applicable to Commission proceedings, NRC presiding officers often look to the rules for guidance, including FRE 702 that allows a witness to be qualified as an expert [i]f scientific, technical, or other specialized knowledge will 4

assist the trier of fact to understand the evidence or determine a fact in issue. In the Matter of Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), 53 N.R.C. 239, 250 (2001).

Federal Rule of Evidence 702 provides that If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Although Federal Rule of Evidence 704 does not bar opinion testimony on the ground that it embraces an ultimate issue to be decided by the trier of fact, such testimony nonetheless may not usurp the role of the fact-finder, and an expert may not give testimony stating ultimate legal conclusions. CIT Group/Business Credit, Inc. v. Graco Fishing and Rental Tools, Inc., 815 F.

Supp.2d 673, 677 (S.D.N.Y. 2011) (quoting In re Methyl Tertiary Butyl Ether (MTBE) 2008 WL 197538 at *13) (S.D.N.Y. May 7, 2008). [R]esolving doubtful questions of law is the distinct and exclusive province of the trial judge. Accordingly, federal courts typically prohibit lawyers, professors, and other experts from advising the court about how the law should apply to the facts of a particular case. Pinal Creek Group v. Newmont Mining Corp., 352 F. Supp.2d 1037, 1042 (D. Ariz. 2005) (quoting United States v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988)).

Nor may purported experts testify as to what the law required. Casper v. SMG, 389 F. Supp.2d 618, 621 (D.N.J. 2005) (quoting United States v. Leo, 941 F.2d 181, 196-97 (3d Cir.

1991)). The rule prohibiting experts from providing their legal opinions or conclusions is so well established that it is often deemed a basic premise or assumption of evidence law - a kind of axiomatic principle. In fact, every circuit has explicitly held that experts may not invade the courts province by testifying on issues of law. In re Initial Public Offering Sec. Lit., 174 F.

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Supp.2d 61, 64 (S.D.N.Y. 2001) (citing United States v. Leo, 941 F.2d at 196-97). Moreover,

[t]he meaning of federal regulation is a question of law, not a question of fact. CFM Comms.,

LLC v. Mitts Telecasting Co., 424 F. Supp.2d 1229, 1234 (E.D. Cal. 2005). And, although expert testimony may describe a complicated administrative process, it may not prescribe legal standards to apply to the facts of the case, even where a court, not a jury, sits as trier of fact.

Id. at 1233-34. Experts may not simply tell a trier of fact how it should decide a case. See Nationwide Transport Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1059-60 (9th Cir. 2008);

Owen v. Kerr-McGee Corp., 698 F.2d 236, 239-40 (5th Cir. 1983); CFM Comm., LLC v. Mitts Telecasting Co., 424 F. Supp.2d 1229 (E.D. Cal. 2005); Casper v. SMG, 389 F. Supp.2d 618, 621-22 (D.N.J. 2005).

ARGUMENT POINT I TESTIMONY OFFERING PURE ARGUMENT OR LEGAL CONCLUSION IS IMPERMISSIBLE In response to NYS-17B and NYS-37, Mssrs. Rikhoff, Cleary and Reamer each invade the province of the Board by purporting to summarize and explain basic concepts of federal environmental law and NRC regulations. In Question 281 of their testimony submitted on NYS-17B and Q25 of their testimony on NYS-37, Entergy experts are asked to describe the general requirements of NEPA that are applicable to the claims in NYS-17B and NYS-37. But experts may not opine on what the law required or testify as to the governing law. Casper v. SMG, 389 F. Supp.2d at 621 (quoting United States v. Leo, 941 F.2d at 196-97). In Q29 of their NYS-1 Q_ refers to a Question and A_ to an Answer. For ease of reference, the State cites examples of only the answer or the question in each pair of arguably impermissible questions and answers.

The State does not list every offensive pairing here and instead offers examples of the numerous instances of this type of testimony listed in full in the attached chart.

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17B testimony, Mssrs. Cleary and Reamer are asked to describe the NEPA requirement to consider the environmental impacts of a proposed action, including its applicability to a license renewal proceeding. In their responses to Q28 and Q29 (NYS-17B), Mssrs. Reamer and Cleary cite to 42 U.S.C. § 4332; 10 C.F.R. Part 51; 40 C.F.R. § 1508; the Federal Register; and a guidance document from the Council on Environmental Quality (CEQ). Not surprisingly, their survey of NEPA reads more like a legal brief than an expert opinion and it impermissibly usurps the role of the Board. See Mitts Telecasting Co., 424 F. Supp.2d at 1234 (quoting TC Sys.

v. Town of Colonie, 213 F. Supp.2d 171, 182 (N.D.N.Y. 2002)). Their responses to Q30-Q34, and Q37-Q47 in their NYS-17B testimony likewise constitute explanations of federal environmental law, regulation, and a Generic Environmental Impact Statement, as to which expert testimony is inappropriate. The same is true of Entergys proffered testimony on NYS-37.

See, e.g., Q26-32 (Entergys NYS-37 Testimony in Section titled Background on NEPA Requirements, NRC Implementing Regulations, and the License Renewal GEIS). In response to Entergys Q29, Mr. Cleary opines that NRC generally considers alternative energy sources as direct alternatives to license renewal, and not simply as resulting from the no-action alternative.

Entergys NYS-37 Testimony at 22. Mr. Cleary does not rely on scientific, technical or other specialized knowledge but instead cites only to 61 Fed. Reg. at 28,472 (Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses); see also Entergys NYS-37 Testimony at 17 (A25 (citing only 42 U.S.C. § 4332, 10 C.F.R. Part 51, 40 C.F.R. § 1502, and 61 Fed. Reg. 28,467)); id. at 18 (A27 (citing only GEIS)); id. at 19-20 (A27 (citing only to 10 C.F.R. Pt. 51)); id. at 20-21 (A28 (citing only to GEIS, 61 Fed. Reg. 28,467, and 10 C.F.R. § 51.53)).

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These attempts to interpret the meaning and applicability of [federal law] are not the proper subjects of expert testimony, and should be stricken. United Phosphorous, Ltd. v.

Midland Fumigant, Inc., 173 F.R.D. 675, 688 (D. Kan. 1997); see also Pinal Creek Group, 352 F. Supp.2d at 1045-46 (law professors could not testify as to the law that governs this case, their interpretation of leading case or its application to facts before the court, or the application of law not directly relevant to sole claim pending before court). This is particularly true for Mr.

Cleary, who is not an attorney. The Court is perfectly able to review FCC decisions and regulations to decide how the law applies to the present facts. [Defendant] remains free to use briefing to persuade the Court that [its] interpretation of the law is superior. Mitts Telecasting Co., 424 F. Supp.2d at 1236-37.

In addition to their improper legal testimony, these witnesses are also repeatedly asked to draw conclusions of law. Q72 (Entergys 17B Testimony) poses the question Is the FSEIS assessment of offsite land use impacts consistent with NRC guidance? Similarly, Q73 (Entergys 17B Testimony) asks whether the FSEIS assessment of offsite land use impacts compl[ies] with 10 C.F.R. Part 51 and NEPA? Mr. Cleary offers similar testimony in Entergys NYS-37 Testimony. See, e.g., Entergys NYS-37 Testimony at 17 (A24 - Mr. Cleary opines that the FSEIS assessment of alternatives is consistent with NRC guidance, 10 C.F.R. Part 51 regulations, and NEPA); see also id. at 26 (Q36 (Why is energy conservation not considered a reasonable alternative in the ER?). Mr. Clearys conclusions depend upon no special knowledge, experience, information or expertise. To the contrary, his proposed testimony is nothing more than legal argument:

The FSEIS appropriately considers direct and indirect offsite land use impacts resulting from license renewal and from the no-action alternative. Socioeconomic impacts, such as property values impacts, only need to be considered in an EIS when they are caused by, or themselves cause, some physical change to the 8

environment and not caused by the perception of risk. See 40 C.F.R. § 1508.14.

As the GEIS explains, only those [socioeconomic impacts] directly affecting the natural and built environment are carried forward to the decision to renew an operating license. See GEIS at 4-99 (NYS00131B).

Entergys NYS-17B Testimony at 49 (A73); see also Entergys NYS-17B Testimony at 48-49 (Q72), 50-59 (Q75-Q85, arguing that the GEIS and FSEIS plainly establish that there would be no impacts from the no-action alternative).

This proposed testimony does not depend upon scientific, technical or other specialized knowledge, Fed. R. Evid. 702, but was based merely on his examination of documents and correspondence, which were equally before the judge and jury, Marx & Co., Inc. v. Diners Club Inc., 550 F.2d 505, 510 (2d Cir. 1977). The proposed testimony is merely opinion as to the legal standards which [the witnesses] believed to be derived from the [documents] and which should have governed [defendantss] conduct. Marx, 550 F.2d at 510. This testimony did not concern practices in the securities business, on which [the witness] was qualified as an expert, but were rather legal opinions as to the meaning of the contract terms at issue. Id. at 510.2 Staff also offers legal argument and conclusion couched as expert opinion testimony. In response to the question Why is the discussion of offsite land use in the ER adequate?, non-attorney Jeffrey Rikhoff offers his opinion that the discussion is adequate because it meets the requirements in 10 CFR § 51.53(c)(3)(ii)(l). Staffs 17B Testimony at 8. Mr. Rikhoff goes on to apply the terms of the regulation, and Regulatory Guide 4.2, Supplement 1, to the applicants Environmental Report. Id. at 8-9. Mr. Rikhoff is further asked, Why is the discussion of offsite land use in the ER adequate? as well as Why is the discussion of offsite land use in the DSEIS 2

Notably, Entergys economic expert George S. Tolley does not offer testimony on questions that require legal conclusions, which are the proper province of the Board, not experts.

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adequate? Staff 17B Testimony at 8-9 (Q11, Q12). Even if Mr. Rikhoff were an attorney, the proffered testimony invades the province of the Board.

Next, Mr. Rikhoff moves on to a similar application of 10 C.F.R. §§ 51.71(d) and 51.95(c) to the relevant sections of the DSEIS and FSEIS. Mr. Rikhoff opines further that the discussions of offsite land use in those documents were also adequate. Staffs 17B Testimony at 9-12 (Q12-Q15). Again, the discussion is improper because Mr. Rikhoff has no legal expertise and, even if he did, as a witness/expert he may not offer conclusions of law with respect to a key question on NYS-17B: the adequacy of the environmental review with respect to offsite land use and impacts to property values.3 See, e.g., Nationwide Transport, 523 F.3d at 1059 (district court properly precluded testimony that would have explained how a section of the UCC applied to the facts of the case and how defendants conduct allegedly violated that section).

The Second Circuit Court of Appeals explained in 1977 that the admission of expert testimony that amounts to no more than an expression of the (witness) general belief as to how the case should be decided would give the appearance that the court was shifting to witnesses the responsibility to decide the case. Marx, 550 F.2d at 510 (quoting McCormick on Evid. § 12). The Court cautioned against allowing complex (securities) litigation to become battles of paid advocates posing as experts on the respective sides concerning matters of domestic law. Id. at 511. Although Marx was tried to a jury, legal conclusions couched as expert opinion are no less proper in bench trials. See, e.g., Mitts Telecasting Co., 424 F. Supp.2d 3

If those reasons were not sufficient to strike Mr. Rikhoffs testimony on Q12-Q15, there is the additional impropriety of Mr. Rikhoff opining that he and his colleagues did a competent job on the DSEIS and FSEIS. See, e.g., Staff 17B Testimony at 9 (A12 (The discussion of offsite land use in the DSEIS is adequate because it meets the regulatory requirements at 10 CFR § 51.71(d))); id. at 10 (A13 (The discussion of offsite land use in the FSEIS is adequate because it meets the regulatory reform requirements in 10 CFR § 51.95(c))).

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at 1233-34 (concerns about admitting expert opinion may be lesser where court sits as . . . trier of fact but the meaning of federal regulations is a question of law, not a question of fact); see also CIT Group/Business Credit, Inc., 815 F. Supp.2d at 678 (bench trial in commercial lending case). The Court also pointed out that the abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Marx, 550 F.2d at 511, n.17 (quoting Notes of the Advisory Committee on Proposed rule 704, Fed. R. Evid.).

Even if Mr. Cleary were an attorney, which he is not, neither he nor Mr. Reamer may offer his expertise on how NEPA applies to the States contentions or to a license renewal proceeding in general as set forth in Q28-Q30 and Q32-Q34 (Entergys 17B Testimony at 19-24). See Midland, 173 F.R.D. at 688; see also FAA v. Landy, 705 F.2d 624, 632 (2d Cir. 1983)

(former FAA official precluded from testifying about industry practice and FAA policy concerning application of FAA regulation on ground that meaning and applicability of a specific law invades the province of the court), cert. denied, 464 U.S. 895 (1983). In Midland, the District of Kansas precluded the expert report of a former staff member of the Environmental Protection Agency who offered opinions as to whether the actions of [defendant] constituted misbranding under certain provisions of [the Federal Insecticide, Fungicide and Rodenticide Act]. 173 F.R.D. at 687. The court excluded the testimony of the former staffer because he attempt[ed] to interpret the meaning and applicability of FIFRA, neither of which he is permitted to do as an expert. Id. at 688. Mssrs. Cleary, Reamer and Rikhoff may not offer legal arguments and conclusions couched as expert opinion.

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POINT II ENTERGY AND STAFF OFFER TESTIMONY THAT IS REPETITIOUS AND CUMULATIVE IN VIOLATION OF NRC REGULATIONS The Commissions regulations prohibit the admission of argumentative, repetitious, cumulative, immaterial, or irrelevant evidence and provide the Board with the authority to strike such evidence. See 10 C.F.R. § 2.333(b); see also 10 C.F.R. §§ 2.319(d) and (e). Indeed,

[o]nly relevant, material, and reliable evidence which is not unduly repetitious is admissible.

10 C.F.R. § 2.337(a).

In response to the States Initial Statements of Position on NYS-17B, Entergy offers expert testimony that does nothing more than summarize portions of documents that will be moved into evidence, including the 1996 GEIS, the Applicants ER, and the FSEIS. Entergys Testimony on 17B includes sections titled Background on NEPA Requirements, NRC Implementing Regulations, and the License Renewal GEIS; Summary of Relevant Evaluations in the ER, and Summary of Relevant Evaluations in the FSEIS. For the reasons already set forth, the background on NEPA and NRC regulations is improper. So, too, are the summaries of the GEIS, the ER and the FSEIS. See Entergys 17B Testimony at 25 (Q37 (Please summarize the methodology used in the GEIS to assess offsite land use impacts)); id. at 27 (Q38 (Please describe the findings of the GEIS evaluation of offsite land use impacts during the license renewal term)); id. at 28 (Q39 (Turning first to potential land use impacts resulting from plant-related population growth, please describe the GEIS findings and conclusions)); id. (Q40 (Turning next to potential tax-driven land use impacts, please describe the GEIS findings and conclusions)); id. at 29 (Q42 (Please summarize the methodology used in the GEIS to assess housing impacts)); id. at 30 (Q43 (Please describe the findings of the GEIS evaluation of 12

housing impacts during the license renewal term); id. at 31 (Q44 (Please describe the NRC license renewal guidance addressing housing impacts)); id. at 32 (Q45 (Please describe generally how the GEIS evaluation of alternatives is used for site-specific license renewal reviews)); id. (Q46 (Please describe the methodology and findings of the GEIS evaluation of the no-action alternative)); see also id. at 34-40 (Q48-Q57 (Summary of Relevant Evaluations in the ER)) and id. at 40-48 (Q58-71 (Summary of Relevant Evaluations in the FSEIS)).

Each of these documents, summarized at length in Entergys NYS-17B testimony, will be in the record. The Board is perfectly able to review these documents for itself, cf. Mitts Telecasting Co., 424 F. Supp.2d at 1236-37, following citations that Entergy may provide in any legal memoranda that it provides. The offending portions of the testimony should be stricken from the record to avoid the the burden of analyzing repetitious papers, Philadelphia Electric Company, 9 N.R.C. at 435, and to avoid an unnecessarily large record, 10 C.F.R. § 2.333, which includes testimony that is both argumentative and irrelevant to issues in the admitted contentions. Much of the proffered testimony on these two contentions consists of summaries of the content of documents that are being received in evidence, including the Environmental Report (ER), the Final Supplemental Environmental Impact Statement (FSEIS) (NYS000133A-NYS00133J), and the 1996 Generic Environmental Impact Statement (GEIS) (NYS00131A-NYS00131I). 4 4

Neither Entergy nor Staff argues, nor could they do so persuasively, that the objectionable testimony is intended as a summary of documents within the meaning of Rule 1006 of the Fed.

R. of Evid. First, the documents they purport to summarize are at the heart of the case and have been routinely cited and used in briefs and decisions in this case. Second, the testimony is not a summary of the all the contents of the documents used to reduce the need to review voluminous documents, but is a selected summary of limited portions of the documents, that the Board will need to review as written to address the legal issue. These summaries are nothing more than an effort to make it appear to the Board and any appellate body that Entergy and Staff views of 13

These expert summaries are not evidence of any description and they are certainly not relevant, material, and reliable evidence, that is not unduly repetitious. 10 C.F.R. § 2.337(a). Accordingly, the proffered testimony should be stricken. See, e.g., Matter of Duke Power Co., 15 N.R.C. 453, 477 (evidence that would merely have reiterated evidence already in the record was properly excluded on the ground that it was either unreliable for lack of an expert sponsor, irrelevant, or repetitious).

POINT III ENTERGY AND STAFF OFFER TESTIMONY THAT IS INADMISSIBLE BECAUSE IT CONSTITUTES A COLLATERAL ATTACK ON THE BOARDS DECISION TO ADMIT CONTENTION NYS-17B Many of the questions and answers posed to Mssrs. Cleary, Reamer and Rikhoff essentially challenge the propriety of the Boards decision to admit NYS-17B and its predecessors. All three argue that NEPA requires no analysis of offsite land use or impacts to property values and that, therefore, the discussions set forth in the ER, DSEIS and FSEIS are adequate. This amounts to a complaint that, had the Board properly understood the law, it would not have admitted NYS-17B or its predecessors. See, e.g., Entergys 17B Testimony at 21-22 (Q31 (Is there a general requirement under NEPA to consider offsite land use and property value impacts?)); Staffs 17B Testimony at 8-12, 14 ((A10) (Entergy and the Staff are not required to address the impact of continued operations on real estate values in the area surrounding Indian Point); Q11 (Why is the discussion of offsite land use in the ER adequate?); Q12 (Why is the discussion of offsite land use in the DSEIS adequate?); Q13 (Why is the discussion of offsite land use in the FSEIS adequate?); Q16 (Was Entergy in the the meaning of these documents are supported by experts, which is precisely the use that is universally rejected as improper for testimony.

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ER or the Staff in its DSEIS and FSEIS required to analyze the impacts of license renewal on property values?)).

As set forth above, the testimony solicited in response to these questions (and the questions themselves) should be stricken because it invades the province of the Board, which has already characterized it as legal argument. See Mem. and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) (ASLBP No. 07-858-03-LR-BD01)

(Apr. 22, 2010) at 3 (observing that Entergys legal argument posits that the National Environmental Policy Act (NEPA) does not require consideration of the impact that the license renewal would have on property values adjacent to the Indian Point plant since any effect on property values would not be based on a physical impact upon those properties.)

But it is also improper because it amounts to yet another collateral attack on the Boards decision to admit NYS-17B and its predecessors. Entergy first made this argument in opposition to proposed Contention NYS-17.

In opposing the admission of NYS-17 Entergy insists that the analysis in the ER is consistent with the GEIS and applicable NRC guidance documents. These documents, Entergy maintains, require that an applicant in a license renewal proceeding need only analyze impacts from population growth related to the plant or from the public services that local governments provide to encourage development using the tax payments from the plant. Entergy asserts that it provided a proper assessment in the ER and that NYS does not allege any specific deficiencies with that portion of the ER. Entergy also contends that there is no regulatory requirement or guidance document which calls for an analysis of property values for purposes of license renewal, nor does NYS point to one for support.

Mem. and Order (Ruling on Petitions to Intervene and Requests for Hearing) at 80 (ASLBP No.

07-858-03-LR-BD01) (Jul. 31, 2008) (footnotes omitted).

Likewise, The NRC Staff, in opposing the admission of NYS-17, points to Reg. Guide 4.2, which explains that only tax revenue changes were intended to be considered 15

Category 2 issues. In addition, the NRC Staff points to the statement in the GEIS that population driven changes to land-use will be small in license renewal proceedings to show that tax-driven changes are the only land-use issues that must be considered during a license renewal.

Id. at 80-81 (footnotes omitted).

In response to these legal arguments, the Board said, We disagree. Id. at 82. To the contrary, the Board said, In conducting its analysis of the impact of the license renewal on land-use, Entergy should have considered the impact on real estate values that would be caused by license renewal or non-renewal. NRC Regulations do not limit consideration to tax-driven land-use changes. Table B-1 merely notes that significant changes in land use may be associated with population and tax-revenue changes resulting from license renewal. It does not limit consideration to tax-driven land-use changes. Accordingly, we admit NYS-17 as a contention of omission.

Id. at 83 (emphasis added).

Entergy reiterated its legal arguments in its subsequent motion for summary disposition on NYS-17.

Entergy posits that the National Environmental Policy Act (NEPA) does not require consideration of the impact that the license renewal would have on property values adjacent to the Indian Point plant since any effect on property values would not be based on a physical impact upon those properties. . . .

Entergy then argues that NYS 17/17A should be dismissed because NEPA requires consideration of potential changes in property value only if such effects (1) are directly linked to impacts to the physical environment and (2) are reasonably likely to actually occur as postulated by New York.

Mem. and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) (ASLBP No. 07-858-03-LR-BD01) (Apr. 22, 2010) at 3 (emphasis added). Staff made the same argument:

The NRC Staff argues that an analysis of the impact on adjacent property values of a license renewal for the Indian Point facility is not mandated by NEPA.

Id. at 7. The Board found that NYS-17 was within the scope of the proceeding. Id. at 11.

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Despite the Boards clear and repeated rulings, Staff and Entergy again seek to relitigate the admissibility of NYS-17B. In Entergy Q31, Mssrs. Cleary and Reamer are asked Is there a general requirement under NEPA to consider offsite land use and property value impacts?

Their response directly challenges the Boards determinations. In Staffs 17B Testimony, NRC witness and non-lawyer, Mr. Rikhoff is asked whether Entergy or Staff were required to analyze the impacts of license renewal on property values. Staffs 17B Testimony at 14 (Q16). Mr.

Rikhoff is further asked whether he agree[s] with Contentions NYS 17, 17A and 17B? Staffs 17B Testimony at 7 (Q10). His response includes the following: No. Entergy and the Staff are not required to address the impact of continued operations on real estate values in the area surrounding Indian Point. Id. at 7-8 (A10).

In addition, both Entergy and Staff propose lengthy additional testimony related to this already-determined question of law. In NRC Questions 11, 12 and 13, NRC asks why the discussions of offsite land use in the ER, DSEIS and FSEIS are adequate. Staffs 17B Testimony at 8-9. The answers to these questions merely seek to support the failed argument that NEPA does not require the analysis this Board has said was required. In conducting its analysis of the impact of the license renewal on land-use, Entergy should have considered the impact on real estate values that would be caused by license renewal or non-renewal. Mem.

and Order (Ruling on Petitions to Intervene and Requests for Hearing) at 83 (emphasis added).

Entergy Questions 28 through 34 and Q36, also solicit legal argument disguised as testimony to support the Applicants firm conviction that NEPA does not require the consideration of impacts to property values. See, e.g., Entergy 17B Testimony at 19-25 (laying the legal foundation for the claim that some impacts identified by the State are allegedly Category 1 issues that should not have been admitted). Because the Board has already considered and rejected these 17

arguments twice, it should not entertain this attempt by Staff and the Entergy to admit them to the proceeding. Nor should the Board countenance the effort by Staff and Entergy to give pure legal argument some sort of expert imprimatur.5 POINT IV ENTERGY AND STAFF OFFER TESTIMONY THAT IS INADMISSIBLE BECAUSE IT IS RELEVANT TO NO PENDING ISSUE Finally, the State moves to strike so much of the testimony of Staff witness Andrew Stuyvenberg and Entergy witnesses Donald P. Cleary, David Harrison Jr., and Eugene T.

Meehan submitted in opposition to New Yorks Initial Statement of Position on NYS-37 as addresses the non-existent claim that the FSEIS fails to adequately consider alternatives to relicensing Indian Point.

In their testimony on Contention 37 Entergy and NRC Staff witnesses improperly rebut an issue that is not disputed in this contention and thus is irrelevant. The issue Entergy and Staff improperly address, at length, in the testimony of Donald P. Cleary, David Harrison Jr., and Eugene T. Meehan for Entergy, and Andrew L. Stuyvenberg for Staff, is whether the Staff has done an adequate job of analyzing energy conservation and renewable energy resources in the FSEIS section discussing alternatives to the proposed action.

Even the title of the proposed testimony of these witnesses reveals the fundamental misperception by Entergy and Staff regarding Contention 37. Both refer to their testimony as addressing the issue of alternatives when Contention 37 is only about the no-action alternative and is focused on the likely consequences of denial of the license and the 5

If Entergy or Staff believed expert opinions were relevant to their legal arguments on the admissibility of Contention 17B, the time to present those opinions would have been when they opposed the contention or sought summary disposition of it. Prefiled testimony is not an opportunity to seek reconsideration of issues long since resolved by the Board.

18

environmental impact of that denial. The discussion in the alternatives section of the FSEIS is only relevant to Contention 37 to the extent it may contain an analysis of the environmental consequences of a particular alternative or an analysis of the viability of that alternative.

Although Entergy and Staffs testimony is replete with references to the purported adequacy of the discussion of alternatives in the ER or the FSEIS, that issue was excluded by the Board in its initial decision on contention admissibility (LBP-08-13, 68 N.R.C. 43,95-100 (2008)) and in all subsequent amendments and clarifications to the contention that is now NYS-

37. See Mem. and Order (Granting Entergys Request for Clarification) August 10, 2011 at 5-7; see also Order (Granting in Part and Denying in Part Applicants Motions in Limine) March 6, 2012 at 16-20)). This testimony should be stricken because it is irrelevant as a matter of law.

The ASLB and the Appeal Board routinely exclude testimony that addresses an issue that is not in the proceeding. See, e.g., Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-824, 22 N.R.C. 776 (1985) (affirming the exclusion of testimony that was irrelevant to the issue before the ASLB) and Illinois Power Company (Clinton Power Station, Units 1 and 2), LBP-75-59, 2 N.R.C. 579 (1975) (striking testimony irrelevant to the issues in the proceeding or containing legal conclusions).

As noted above, the Commission has empowered the Board to take steps to prevent the presentation of testimony that is irrelevant to the issues admitted in the proceeding. 10 C.F.R. §§ 2.319(d), (e), 2.333(b) and 2.337(a). As set forth above, decisions by the ASLB and Appeal Board, underscore the importance of not burdening the record with irrelevant evidence.

Nonetheless Entergy and Staff have included testimony that seeks to defend the discussion of alternatives in the alternatives portions of the FSEIS, even though there is no admitted contention addressing that portion of the FSEIS. For example, Mr. Stuvenberg is asked Q.10. Is the ER 19

required to discuss conservation as an alternative to license renewal? and responds A.10. No, an applicant is not required to discuss conservation as an alternative to license renewal and continues with a discussion of the GEIS requirements regarding the discussion of conservation as an alternative to relicensing. Similarly, in their testimony, Donald P. Cleary, David Harrison Jr., and Eugene T. Meehan for Entergy offer opinions and references to the GEIS that purport to limit the extent of the examination of alternatives to relicensing, rather than focusing on the real issue raised by Contention 37, i.e. the adequacy of the analysis of likely consequences of denial of the license. See, e.g., Q35. Were certain alternatives eliminated from detailed consideration as not reasonable in the ER? A35. (DPC) Yes. Section 8.3 of the ER discusses alternative generation sources that were eliminated as reasonable alternatives to the proposed action because such sources were not baseload technologies capable or feasible of supplying 2,158 gross MWe of electricity. . . . Q36. Why is energy conservation not considered a reasonable alternative in the ER? A36. (DPC) As the ER explains, the concept of energy conservation as a resource does not meet the primary NRC criterion that a reasonable set of alternatives should be limited to analysis of a single, discrete electric generation source and only electric generation technologies that are technically feasible and commercially viable. ER at 8-20, 56 (ENT00015B) (citing GEIS at § 8.1 (NYS00131D)). The full list of questions and answers that, like these, address the issue of the adequacy of the discussion of alternatives to replace Indian Point, rather than the adequacy of the discussion of the likely consequences of the no-action alternative, are provided in the attached Chart.

Some portions of the testimony of these four witnesses specifically relate their comments about the alternatives discussion in the FSEIS to the no-action alternative. Those portions, except to the extent they contain legal conclusions or are repetitious of documents being received 20

in evidence, are not objected to on the basis of irrelevancy. However, the objectionable testimony identified in the accompanying chart as irrelevant seeks to confuse the issue in this case and attempts to use the existence of the discussion of alternatives in the FSEIS as a substitute for the full discussion of the no-action alternative even though the critical elements required for the no-action alternative analysis are missing in the FSEIS. Leaving this irrelevant testimony in the record burdens the record and threatens to distract from the voluminous relevant evidence that the parties will put before the Board.

CONCLUSION For these reasons, the State respectfully requests that the Board strike those portions of the proposed testimony of Entergy and NRC Staff as outlined in this motion and set forth in the accompanying chart.

Respectfully submitted, Signed (electronically) by Signed (electronically) by Susan L. Taylor Janice A. Dean Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General for the State of New York for the State of New York The Capitol 120 Broadway Albany, New York 12227 New York, New York 10271 (518) 474-2432 (212) 416-8459 April 30, 2012 21

10 C.F.R. § 2.323 Certification Pursuant to 10 C.F.R. § 2.323(b) and the Boards July 1, 2010 scheduling order, I certify that I and other Assistant Attorneys General have made a sincere effort to contact counsel for NRC Staff and Entergy in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that our efforts have been unsuccessful.

Signed (electronically) by

_______________________

Janice A. Dean Assistant Attorney General State of New York dated: April 30, 2012 22

CHARTS Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant NRC Q10 Do you agree with Contentions NYS 17, 17A and 17B? X NRC Q11 Why is the discussion of offsite land use in the ER adequate? X X NRC Q12 Why is the discussion of offsite land use in the DSEIS X X adequate?

NRC Q13 Why is the discussion of offsite land use in the FSEIS X X adequate?

NRC Q14 What is the relationship of the GEIS to the DSEIS and the X FSEIS?

NRC Q15 What is the impact of license renewal on offsite land use for X land near Indian Point?

NRC Q16 Was Entergy in the ER or the Staff in its DSEIS and FSEIS X required to analyze the impacts of license renewal on property values?

NRC Q19 What is the No-Action Alternative? X NRC Q20 Did the applicant analyze the impact of the no-action X alternative on offsite land use for land near Indian Point?

NRC Q22 Did the Staff analyze the impact of the no-action alternative on X offsite land use for land near Indian Point?

NRC Q23 Did the Staff address the impact of the no-action alternative on X offsite property values for the area around Indian Point?

NRC Q32 Please discuss the deficiencies that you found in Dr. X Sheppards testimony. Pre-Filed Direct Testimony of Stephen C. Sheppard, Ph.D., Regarding Contention 17B (Sheppard Testimony) (NYS000024).

NRC Q33 X 1

Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q28 Please describe the general requirements of NEPA that are X X applicable to the claims in NYS-17B.

ENT Q29 Please describe the NEPA requirement to consider the X X environmental impacts of a proposed action, including its applicability to a license renewal proceeding.

ENT Q30 Please describe the NEPA requirement to consider the no- X X action alternative, including its applicability to a license renewal proceeding.

ENT Q31 Is there a general requirement under NEPA to consider offsite X X land use and property value impacts?

ENT Q32 As a general matter, how does NRC characterize X X environmental impacts of the proposed action for license renewal?

ENT Q33 Please identify how NRC regulations implementing NEPA X X apply to license renewal applications.

ENT Q34 Please identify any issues addressed in Table B-1 that are X X relevant to NYS-17B.

ENT Q36 Are there any issues in Table B-1 related to the NYS X allegations of offsite property values because of aesthetic impacts, noise impacts, and human health impacts (see NYS Summary Disposition Response at 7-8)?

ENT Q37 Please summarize the methodology used in the GEIS to assess X X offsite land use impacts.

ENT Q38 Please describe the findings of the GEIS evaluation of offsite X X land use impacts during the license renewal term.

ENT Q39 Turning first to potential land use impacts resulting from X X plant-related population growth, please describe the GEIS findings and conclusions.

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Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q40 Turning next to potential tax-driven land use impacts, please X X describe the GEIS findings and conclusions.

ENT Q41 Please describe NRC license renewal guidance addressing X offsite land use impacts.

ENT Q42 Please summarize the methodology used in the GEIS to assess X X housing impacts.

ENT Q43 Please describe the findings of the GEIS evaluation of housing X X impacts during the license renewal term.

ENT Q44 Please describe NRC license renewal guidance addressing X X housing impacts.

ENT Q45 Please describe generally how the GEIS evaluation of X X alternatives is used for site-specific license renewal reviews.

ENT Q46 Please describe the methodology and findings of the GEIS X X evaluation of the no-action alternative.

ENT Q47 Please describe the NRC approach to addressing spent fuel X storage impacts after the cessation of operations.

ENT Q48 Please summarize the relevant background discussions in the X ER concerning offsite land use.

ENT Q49 Please summarize the relevant evaluations in the ER X concerning offsite land use land use impacts resulting from license renewal.

ENT Q50 Please summarize the ER evaluation of population-driven land X use changes.

ENT Q51 Please summarize the ER evaluation of tax-driven land use X changes.

ENT Q52 What conclusion does the ER reach regarding offsite land use X land use impacts resulting from license renewal?

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Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q53 Please summarize the relevant background discussions in the X ER concerning housing.

ENT Q54 Please summarize the relevant evaluations in the ER X concerning housing impacts resulting from license renewal.

ENT Q55 Please provide an overview of Entergys approach to X addressing the noaction alternative in the ER.

ENT Q56 Please summarize the relevant discussions and evaluations in X the ER concerning decommissioning impacts resulting from the no-action alternative.

ENT Q57 Please summarize the relevant discussions and evaluations in X the ER concerning localized socioeconomic impacts resulting from the no-action alternative.

ENT Q58 Please summarize the background information in the FSEIS X concerning offsite land use.

ENT Q59 Please summarize the relevant findings and evaluations in the X FSEIS concerning offsite land use impacts resulting from license renewal.

ENT Q60 Please summarize the FSEIS evaluation of population-driven X land use changes.

ENT Q61 Please summarize the FSEIS evaluation of tax-driven land use X changes.

ENT Q62 Please summarize the relevant background information in the X FSEIS concerning housing.

ENT Q63 Please summarize the relevant findings and evaluations in the X FSEIS concerning housing impacts resulting from license renewal.

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Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q64 Please summarize any discussion in the FSEIS about the X impact that continued operations would have on property values in the area surrounding Indian Point.

ENT Q65 Please summarize the NRC conclusions in the FSEIS X concerning the socioeconomic impacts resulting from license renewal.

ENT Q66 Please provide an overview of the NRC Staffs approach to X addressing the no-action alternative in the FSEIS.

ENT Q67 Please summarize the relevant discussions and evaluations in X the FSEIS concerning decommissioning impacts, including those resulting from the no-action alternative.

ENT Q68 Please summarize the relevant findings and evaluations in the X FSEIS concerning localized land use impacts resulting from the no-action alternative.

ENT Q69 Please summarize the relevant findings and evaluations in the X FSEIS concerning land use impacts resulting from the no-action alternative.

ENT Q70 Please summarize the relevant findings and evaluations in the X FSEIS concerning other localized socioeconomic impacts resulting from the no-action alternative.

ENT Q71 Please summarize any further discussion in the FSEIS about X the impact that the no-action alternative would have on property values in the area surrounding Indian Point.

ENT Q72 Is the FSEIS assessment of offsite land use impacts consistent X with NRC guidance?

ENT Q73 Does the FSEIS assessment of offsite land use impacts comply X with 10 C.F.R. Part 51 and NEPA?

5

Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q75 Are you aware of any evaluations of offsite land use impacts X from Indian Point that consider these other factors?

ENT Q76 In assessing offsite land use and housing impacts during the X license renewal period, is it appropriate to rely on the GEIS case study impact evaluations?

ENT Q77 Please summarize the GEIS case study evaluation and findings X for Indian Point in the area of offsite land use from construction.

ENT Q78 Please summarize the GEIS case study evaluation and findings X for Indian Point in the area of offsite land use from operations.

ENT Q79 Does this mean that license renewal offsite land use impacts X are also significant?

ENT Q80 Please summarize the GEIS case study evaluation and findings X for Indian Point regarding offsite land use impacts from license renewal.

ENT Q81 Please summarize the GEIS case study evaluation and findings X for Indian Point regarding housing impacts from construction and operations.

ENT Q82 Please summarize the GEIS case study evaluation and findings X for Indian Point in the area of housing impacts from license renewal.

ENT Q83 Is the GEIS evaluation of offsite land use and housing impacts X from continued operations during the license renewal term consistent with the findings and conclusions in the FSEIS?

ENT Q84 Please explain what changes have taken place since the X publication of the GEIS.

6

Table Of Improper Testimony To Be Stricken NYS-17B Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q85 Based on the GEIS evaluations, what, if any, conclusions are X you able to draw about the potential for property value-driven offsite land use impacts from IP2 and IP3 license renewal and for the no-action alternative?

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Table Of Improper Testimony To Be Stricken NYS-37 Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q24 Could you summarize your overall conclusions? Answer opines X on the legal sufficiency of the FSEIS.

ENT Q25 Please describe the general requirements of NEPA that are X applicable to the claims in NYS-9/33/37.

ENT Q28 Please identify the NRC regulations implementing NEPA and X briefly describe how those regulations apply to license renewal applications.

ENT Q29 What is the no-action alternative and how does it fit with the X assessment of alternatives required by NEPA?

ENT Q30 Which specific energy sources are required to be considered as X part of the no-action alternative under NEPA?

ENT Q31 Does the no-action alternative review include a review of the X need for power?

ENT Q32 What is the overall standard applied for evaluating the X environmental impacts of the proposed license renewal action and the environmental impacts of the alternatives?

ENT Q36 Why is energy conservation not considered a reasonable X X alternative in the ER?

ENT Q37 Why does the ER not consider combinations of alternatives? X X ENT Q38 Please summarize the relevant findings and evaluations in the X X ER concerning the no-action alternative.

ENT Q39 What are the conclusions in the ER concerning energy X X alternatives?

ENT Q40 Please summarize the relevant determinations in the FSEIS X concerning the proposed action and the purpose and need for the proposed action.

1

Table Of Improper Testimony To Be Stricken NYS-37 Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant ENT Q41 Is the fact that IP2 and IP3 provide base load power factored X into the FSEIS evaluation of energy alternatives?

ENT Q42 Does the FSEIS consider natural gas-fired generation as an X X alternative?

ENT Q43 Does the FSEIS consider purchased power as an alternative? X X ENT Q44 Does the FSEIS consider energy conservation as an alternative? X X ENT Q45 Does the FSEIS eliminate as not reasonable any alternatives X X from detailed, standalone consideration?

ENT Q46 Does the FSEIS consider combinations of alternatives? X X ENT Q47 Does the FSEIS consider combinations of alternatives? X X ENT Q52 How do your conclusions on likely environmental impacts of X the no-action alternative compare to those in the FSEIS?

Answer opines on sufficiency of scope of alternatives considered in the FSEIS.

ENT Q103 How would these environmental impacts be characterized by X NRC under NEPA?

ENT Q156 Please summarize your testimony and the bases for your X conclusions regarding Contention NYS-37. Answer opines on the legal sufficiency of the FSEIS.

NRC Q10 Is the ER required to discuss conservation as an alternative to X X license renewal?

NRC Q11 Why is the Staff not required to analyze conservation as an X X alternative to license renewal?

NRC Q12 Does the GEIS address energy conservation under the no-action X alternative?

2

Table Of Improper Testimony To Be Stricken NYS-37 Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant NRC Q13 Did the Staff analyze energy conservation and energy efficiency X X as an alternative to license renewal in the FSEIS?

NRC Q19 What other alternatives to the proposed license renewal did the X Staff analyze?

NRC Q20 Were there alternatives that the Staff decided not to analyze? X NRC Q31 Does the FSEIS analyze the need for the power produced by X Indian Point?

NRC Q32 In the absence of a need-for-power assessment, how does the X Staff determine the electric generating capacity that alternatives must provide?

NRC Q47 How long is the assessment of energy alternatives in the Indian X X Point FSEIS?

NRC Q48 Did any of the 1970s-era FESs you reviewed determine that X alternatives other than coal were reasonable alternatives?

NRC Q49 Did the Indian Point FSEIS consider alternatives other than coal X X to be reasonable alternatives?

NRC Q50 Did the Indian Point FSEIS consider coal-fired power as a X X reasonable alternative to license renewal?

NRC Q51 Did any of the 1970s-era FESs that you reviewed determine that X energy efficiency or energy conservation were reasonable alternatives to a new nuclear power plant?

NRC Q52 Did any of the 1970s-era FESs that you reviewed determine that X natural gas was a reasonable alternative to a new nuclear power plant?

NRC Q53 Did any of the 1970s-era FESs that you reviewed determine that X purchased power was a reasonable alternative to a new nuclear power plant?

3

Table Of Improper Testimony To Be Stricken NYS-37 Pure Argument Repetitious Collateral Question or Legal and Attack on No. Conclusion Cumulative NYS-17B Irrelevant NRC Q54 Did any of the 1970s-era FESs that you reviewed consider X combinations of alternatives as reasonable alternatives to a new nuclear power plant.

4