ML11290A295

State of New York'S Motion for Clarification (Board'S October 7, 2011 Order (Procedures for Evidentiary Filings))

ML11290A295
Person / Time
Site:	Indian Point
Issue date:	10/17/2011
From:	Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21254, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML11290A295 (8)

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. October 17, 2011

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x STATE OF NEW YORKS MOTION FOR CLARIFICATION (Boards October 7, 2011 Order (Procedures for Evidentiary Filings))

The State of New York respectfully requests clarification of the Atomic Safety and Licensing Boards recent October 7, 2011 order concerning Procedures for Evidentiary Filings with respect to the Boards July 1, 2010 Scheduling Order.

Specifically, following the Boards July 1, 2010 Scheduling Order, the State understood that with respect to pre-filed testimony, exhibits, and statements of position, the parties were required to make their presentations on a contention-by-contention basis. July 1, 2010 Scheduling Order at ¶ K1, K2, K3. The State has been organizing its pre-filed presentations in accordance with that July 1, 2010 directive.

While the October 7, 2011 Order does not expressly reference or amend the July 1, 2010 Scheduling Order, the State is concerned that the October 7, 2011 Order could be read as envisioning a different organizational and filing format from that provided in the July 1, 2010 Scheduling Order. The October 7, 2011 Order could be read as anticipating one single omnibus submission from each party commencing with a single exhibit list followed by one combined statement of position for all contentions, to be followed by testimony on all contentions, to be

followed by exhibits on all contentions. October 7, 2011 Order at ¶ A1. Alternatively, the October 7, 2011 Order could be read as silent on this point, in which case the July 1, 2010 Order's contention-by-contention process would remain in place.

The State requests that the Board clarify whether the October 7, 2011 order modified the filing and organizational procedures established by the July 1, 2010 Order. The State also respectfully requests and recommends that the Board retain the contention-by-contention basis established by the July 1, 2010 order for the below reasons.

First, the State anticipates that the pre-filed submissions on the States admitted contentions (and the combined Riverkeepers TC-1B contention) will be extensive and involve testimony from various experts and numerous exhibits.1 In addition, with respect to a few contentions, it is possible that Riverkeeper or the State may reference material that Entergy or Westinghouse has designated as containing confidential material, which, in turn, will involve additional filings and procedures in accordance with the Boards Protective Order. Permitting parties to make their presentations on a contention-by-contention basis will likely allow the State to complete the filing of some of its pre-filed submissions for certain contentions in the days leading up to the filing deadline, thus reducing demands and stress on computer capabilities, the EIE electronic filing system, and paralegals and attorneys on the day of the deadline.

Conversely, in this proceeding -- where there are many admitted contentions and amendments thereto -- placing the entirety of the States multi-contention submissions in a single electronic filing where each document is linked to all other documents may cause unintended challenges on the filing date.2 Allowing smaller-sized filings on a contention-by-contention basis may 1

This proceeding will likely involve a relatively larger set of pre-filed submissions than other contested license renewal proceedings.

2 Under the EIE process, each document that is submitted by a party must be uploaded 2

alleviate these concerns.

Second, the State has been operating in accordance with the contention-by-contention format for the past 16 months; moving to a different organizational and filing format will complicate the States preparation.

REGULATORY BACKGROUND For the convenience of the Board and the parties, the State provides the following excerpts of the July 1, 2010 Scheduling Order and the October 7, 2011 Order.

The Boards July 1, 2010 Scheduling Order provides:

K. Evidentiary Hearings Filings.

1. Initial Statements of Position, Testimony, Affidavits, and Exhibits. Unless modified by the Board due to the admission of new or amended contentions or for some other due cause, ninety (90) days after the trigger date, the intervenors shall file their initial written statement of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). The initial written statement should be in the nature of a trial brief that provides a precise road map of the partys case, setting out affirmative arguments and applicable legal standards, identifying witnesses and evidence, and specifying the purpose of witnesses and evidence (i.e.,

stating with particularity how the witness, exhibit, or evidence supports a factual or legal position). The written testimony shall be under oath or by an affidavit so that it is suitable for direct receipt into evidence, in accordance with 10 C.F.R. § 2.1207(b)(2). The exhibits shall include all documents that the party or its witnesses refer to, use, or rely upon for their statements or position. If such documents are not attached, the Board will not consider them for any purpose in making findings of fact. Such submissions shall be made on a contention-by-contention basis.

2. Entergys and the NRC Staffs Statements of Position, Testimony, Affidavits, and Exhibits. No later than sixty (60) days after service of the materials submitted under paragraph K.1, Entergy and the NRC Staff shall file their respective written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(2).

and linked to the larger filing through a multi-step process -- document by document.

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3. Optional Revised Statement of Position by Intevenors and Submissions by Interested Governmental Entities. The Intervenors may, but need not, submit a revised statement of position and rebuttal testimony with supporting affidavits and exhibits in response to the materials submitted by Entergy and/or the NRC Staff. If they choose to do so, they shall notify all parties of their intention no later than ten (10) days after the service of the materials submitted by Entergy and the NRC Staff under paragraph K.2 and must submit their revised statement of position and rebuttal testimony no later than sixty (60) days after the service under paragraph K.2. Likewise, the interested governmental entities who have been authorized to participate in this proceeding pursuant to 10 C.F.R. § 2.315(c) may submit a written statement of position, written testimony with supporting affidavits, and exhibits no later than sixty (60) days after the submission of materials by Entergy and/or the NRC Staff under paragraph K.2. Such submissions shall be made on a contention-by-contention basis. If interested governmental entities submit written statements of position and/or written testimony, rebuttal may be submitted within thirty (30) days of such submissions.

July 1, 2010 Scheduling Order (excerpt).

The Boards October 7, 2011 Order (Procedures for Evidentiary Filings) provides:

A. Format of Evidentiary Submissions

1. Each participants evidentiary submission shall begin with an exhibit list containing four columns: the exhibits number, the contention(s) addressed by the exhibit, the exhibits name (including date of creation, if useful), and the exhibits submission date.3 That exhibit list will constitute each respective participants first exhibit. Each participants second exhibit will consist of its statement of position and the third exhibit will be the pre-filed testimony (which, at the participants option, may be broken into more than one exhibit). This will be followed in numerical order by each of the exhibits supporting that testimony.

October 7, 2011 Order (excerpt) (footnote omitted).

CONCLUSION The requested clarification will assist the State (and possibly other participants) in preparing for the upcoming pre-filed submissions.

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Respectfully submitted, Signed (electronically) by

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John J. Sipos Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Dated: October 17, 2011 10 C.F.R. § 2.323(b) Certification I certify that I have made a sincere effort to contact the other parties 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 NRC Staff, Entergy, Riverkeeper, and Clearwater do not oppose the request for clarification.

Signed (electronically) by

______________________

John J. Sipos October 17, 2011 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR and 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. October 17, 2011

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x CERTIFICATE OF SERVICE I hereby certify that on October 17, 2011, copies of the State of New Yorks Motion for Clarification (Boards October 7, 2011 Order (Procedures for Evidentiary Filings)), were served upon the following persons via U.S. Mail and e-mail at the following addresses:

Lawrence G. McDade, Chair Kaye D. Lathrop Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 190 Cedar Lane E.

Two White Flint North Ridgway, CO 81432 11545 Rockville Pike Kaye.Lathrop@nrc.gov Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Richard E. Wardwell Mailstop 3 F23 Administrative Judge Two White Flint North Atomic Safety and Licensing Board Panel 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Mailstop 3 F23 Two White Flint North Josh Kirstein, Esq. Law Clerk 11545 Rockville Pike Atomic Safety and Licensing Board Panel Rockville, MD 20852-2738 U.S. Nuclear Regulatory Commission Richard.Wardwell@nrc.gov Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh.Kirstein@nrc.gov 1

Office of Commission Appellate Martin J. ONeill, Esq.

Adjudication Morgan, Lewis & Bockius LLP U.S. Nuclear Regulatory Commission Suite 4000 Mailstop 16 G4 1000 Louisiana Street One White Flint North Houston, TX 77002 11555 Rockville Pike martin.oneill@morganlewis.com Rockville, MD 20852-2738 ocaamail@nrc.gov Elise N. Zoli, Esq.

Goodwin Procter, LLP Office of the Secretary Exchange Place Attn: Rulemaking and Adjudications Staff 53 State Street U.S. Nuclear Regulatory Commission Boston, MA 02109 Mailstop 3 F23 ezoli@goodwinprocter.com Two White Flint North 11545 Rockville Pike William C. Dennis, Esq.

Rockville, MD 20852-2738 Assistant General Counsel hearingdocket@nrc.gov Entergy Nuclear Operations, Inc.

440 Hamilton Avenue Sherwin E. Turk, Esq. White Plains, NY 10601 David E. Roth, Esq. wdennis@entergy.com Andrea Z. Jones, Esq.

Beth N. Mizuno, Esq. Robert D. Snook, Esq.

Brian G. Harris, Esq. Assistant Attorney General Office of the General Counsel Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 15 D21 55 Elm Street One White Flint North P.O. Box 120 11555 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@ct.gov sherwin.turk@nrc.gov andrea.jones@nrc.gov Melissa-Jean Rotini, Esq.

david.roth@nrc.gov Assistant County Attorney beth.mizuno@nrc.gov Office of the Westchester County Attorney brian.harris@nrc.gov Michaelian Office Building 148 Martine Avenue, 6th Floor Kathryn M. Sutton, Esq. White Plains, NY 10601 Paul M. Bessette, Esq. MJR1@westchestergov.com Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Daniel E. ONeill, Mayor Washington, DC 20004 James Seirmarco, M.S.

ksutton@morganlewis.com Village of Buchanan pbessette@morganlewis.com Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net 2

Daniel Riesel, Esq. Manna Jo Greene, Director Thomas F. Wood, Esq. Karla Raimundi, Environmental Justice Victoria Shiah, Esq. Associate Sive, Paget & Riesel, P.C. Stephen Filler, Esq., Board Member 460 Park Avenue Hudson River Sloop Clearwater, Inc.

New York, NY 10022 724 Wolcott Avenue driesel@sprlaw.com Beacon, NY 12508 vshiah@sprlaw.com Mannajo@clearwater.org karla@clearwater.org Michael J. Delaney, Esq. stephenfiller@gmail.com Director Energy Regulatory Affairs Phillip Musegaas, Esq.

NYC Department of Environmental Deborah Brancato, Esq.

Protection Riverkeeper, Inc.

59-17 Junction Boulevard 20 Secor Road Flushing, NY 11373 Ossining, NY 10562 (718) 595-3982 phillip@riverkeeper.org mdelaney@dep.nyc.gov dbrancato@riverkeeper.org Signed (electronically) by

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John J. Sipos Assistant Attorney General State of New York (518) 402-2251 Dated at Albany, New York this 17th day of October 2011 3