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| number = ML101820387
| number = ML101820387
| issue date = 07/01/2010
| issue date = 07/01/2010
| title = 2010/07/01-LB Scheduling Order
| title = LB Scheduling Order
| author name = McDade L
| author name = Mcdade L
| author affiliation = NRC/ASLBP
| author affiliation = NRC/ASLBP
| addressee name =  
| addressee name =  
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{{#Wiki_filter:UNITED STATES OF AMERICA                                     NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.  
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of                                       Docket Nos. 50-0247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.                      ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3)        July 1, 2010 SCHEDULING ORDER1 This proceeding arises from a challenge to the application of Entergy Nuclear Operation, Inc. (Entergy or Applicant) to renew its operating licenses for Indian Point Nuclear Generating Units 2 and 3 in Buchanan, New York.2 On July 31, 2008, the Board issued a Memorandum and Order admitting the State of New York (New York),
Riverkeeper, Inc. (Riverkeeper), and Hudson River Sloop Clearwater, Inc. (Clearwater) as Parties to this proceeding and granting the State of Connecticut (Connecticut),
Westchester County (Westchester), New York City (through its Economic Development Corporation), the Town of Cortlandt (Cortlandt), and the Village of Buchanan (Buchanan) 1 If any deadline specified in this Scheduling Order falls on a Saturday, Sunday, or federal holiday, the deadline shall be the first business day thereafter.
2 See Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134, 42,134-35 (Aug. 1, 2007).


(Indian Point Nuclear Generating Units 2 and 3)
an option, which was subsequently accepted, to participate in this proceeding as interested governmental entities.3 The initial scheduling conference in this proceeding was conducted on January 14, 2009.4 Thereafter, on August 24, 2009, and April 19, 2010, the Board conducted a second and then a third scheduling conference.5 During the April 19th conference, the Board raised various scheduling issues and offered the participants in this proceeding the opportunity to address these issues in writing. These conferences and the subsequent written submissions6 have resulted in this Scheduling Order which, hereafter, will govern the course of this proceeding.
 
A.     Final Environmental Impact Statement and Final Safety Evaluation Report.
Docket Nos. 50-0247-LR and 50-286-LR
During the scheduling conference on August 24, 2009, the NRC Staff advised the Board that it anticipated the Final Environmental Impact Statement (FEIS) would be 3
 
LBP-08-13, 68 NRC 43, 217 (2008); Licensing Board Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) (Dec. 18, 2008) at 2 (unpublished).
ASLBP No. 07-858-03-LR-BD01
4 Tr. at 748-833 (Jan. 14, 2009). Scheduling Conferences are conducted pursuant to 10 C.F.R. §§ 2.329 and 2.332.
 
5 Tr. at 748-94 (Aug. 24, 2009) and Tr. at 795-900 (Apr. 19, 2010). We note that the page numbers for the January 14, 2009, and the August 24, 2009, transcripts overlap.
July 1, 2010 SCHEDULING ORDER 1  This proceeding arises from a challenge to the application of Entergy Nuclear Operation, Inc. (Entergy or Applicant) to renew its operating licenses for Indian Point Nuclear Generating Units 2 and 3 in Buchanan, New York.
Apparently the court reporter was unaware of the January 14th conference when he began the August 24th conference at page 748. Accordingly, we will reference the date as well as the page number for transcript citations.
2  On July 31, 2008, the Board issued a Memorandum and Order admitting the State of New York (New York), Riverkeeper, Inc. (Riverkeeper), and Hudson River Sloop Clearwater, Inc. (Clearwater) as Parties to this proceeding and granting the State of Connecticut (Connecticut), Westchester County (Westchester), New York City (through its Economic Development Corporation), the Town of Cortlandt (Cortlandt), and the Village of Buchanan (Buchanan) 1  If any deadline specified in this Scheduling Order falls on a Saturday, Sunday, or federal holiday, the deadline shall be the first business day thereafter.
6 See Letter from Counsel, Entergy Nuclear Operations, Inc., to Atomic Safety and Licensing Board (May 4, 2010) (ADAMS Accession No. ML101310551); Letter from Intervenors, to Atomic Safety and Licensing Board (May 4, 2010) (ADAMS Accession No. ML101310601); Letter from Counsel, Entergy Nuclear Operations, Inc., to Atomic Safety and Licensing Board (June 16, 2010); NRC Staffs Comments On the Boards Draft Scheduling Order of June 2, 2010 (Jun. 16, 2010); The State of New York, Riverkeeper, and Hudson River Sloop Clearwaters Supplemental Joint Comments to Atomic Safety and Licensing Board Draft Scheduling Order (Jun 16, 2010); The State of New York, Riverkeeper, Inc., and Hudson River Sloop Clearwaters Joint Comments and Proposed Modifications to Atomic Safety and Licensing Board Draft Scheduling Order (Jun 16, 2010).
2  See Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134, 42,134-35 (Aug. 1, 2007).
 
an option, which was subsequently accepted, to participate in this proceeding as interested governmental entities.
3 The initial scheduling conference in this proceeding was conducted on January 14, 2009.4 Thereafter, on August 24, 2009, and April 19, 2010, the Board conducted a second and then a third scheduling conference.
5 During the April 19th conference, the Board raised various scheduling issues and offered the participants in this proceeding the opportunity to address these issues in writing. These conferences and the subsequent written submissions 6 have resulted in this Scheduling Order which, hereafter, will govern the course of this proceeding.
A. Final Environmental Impact Statement and Final Safety Evaluation Report. During the scheduling conference on August 24, 2009, the NRC Staff advised the Board that it anticipated the Final Environmental Impact Statement (FEIS) would be 3 LBP-08-13, 68 NRC 43, 217 (2008); Licensing Board Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) (Dec. 18, 2008) at 2 (unpublished).  
 
4 Tr. at 748-833 (Jan. 14, 2009). Scheduling Conferences are conducted pursuant to 10 C.F.R. §§ 2.329 and 2.332.
5 Tr. at 748-94 (Aug. 24, 2009) and Tr. at 795-900 (Apr. 19, 2010). We note that the page numbers for the January 14, 2009, and the August 24, 2009, transcripts overlap. Apparently the court reporter was unaware of the January 14th conference when he began the August 24th conference at page 748. Accordingly, we will reference the date as well as the page number for transcript citations.
6 See Letter from Counsel, Entergy Nuclear Operations, Inc., to Atomic Safety and Licensing Board (May 4, 2010) (ADAMS Accession No. ML101310551); Letter from  
 
Intervenors, to Atomic Safety and Licensing Board (May 4, 2010) (ADAMS Accession No. ML101310601); Letter from Counsel, Entergy Nuclear Operations, Inc., to Atomic Safety and Licensing Board (June 16, 2010); NRC Staff's Comments On the Board's Draft Scheduling Order of June 2, 2010 (Jun. 16, 2010); The State of New York, Riverkeeper, and Hudson River Sloop Clearwater's Supplemental Joint Comments to Atomic Safety and Licensing Board Draft Scheduling Order (Jun 16, 2010); The State of New York, Riverkeeper, Inc., and Hudson River Sloop Clearwater's Joint Comments and Proposed Modifications to Atomic Safety and Licensing Board Draft Scheduling Order (Jun 16, 2010).
published in or around February 2010.
7  Thereafter, the Board was advised by letter that the projected publication date for the FEIS had been changed to May 31, 2010, 8 and during the April 19, 2010, status conference the NRC Staff stated that the projected date for the publication of the FEIS had been further delayed by several months and that late August 2010 was the expected date of issuance of the document.
9  The Final Safety Evaluation Report (FSER) was published in November 2009.
10 B. Mandatory Disclosures and Production of Hearing File
.11 The regulations specify that, within thirty (30) days of the Board's ruling admitting contentions, the parties must make certain mandatory disclosures.
12  In addition, Subpart L proceedings require the NRC Staff to produce a hearing file and make it available to all parties.
13    In this proceeding the parties agreed to a disclosure schedule under which the initial phase of the mandatory disclosures would be completed by January 23, 2009, and information or documents subsequently developed or obtained would be disclosed in 7  Tr. at 755 (Aug. 24, 2009).
8  Letter from Sherwin E. Turk, Counsel for NRC Staff, to Atomic Safety and Licensing Board (Feb. 4, 2010) (ADAMS Accession No. ML1003511910).
9  Tr. at 802-03, 807-08 (Apr. 19, 2010); see also Letter from Sherwin E. Turk, Counsel for NRC Staff, to Atomic Safety and Licensing Board (May 27, 2010) (ADAMS Accession No. ML1014701750).
10  See Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Units Nos. 2 and 3, Docket Nos.
50-247 and 50-248, Entergy Nuclear Operations, Inc., NUREG-1930 (Vols. 1-2 Nov.  


published in or around February 2010.7 Thereafter, the Board was advised by letter that the projected publication date for the FEIS had been changed to May 31, 2010,8 and during the April 19, 2010, status conference the NRC Staff stated that the projected date for the publication of the FEIS had been further delayed by several months and that late August 2010 was the expected date of issuance of the document.9 The Final Safety Evaluation Report (FSER) was published in November 2009.10 B.      Mandatory Disclosures and Production of Hearing File.11 The regulations specify that, within thirty (30) days of the Boards ruling admitting contentions, the parties must make certain mandatory disclosures.12 In addition, Subpart L proceedings require the NRC Staff to produce a hearing file and make it available to all parties.13 In this proceeding the parties agreed to a disclosure schedule under which the initial phase of the mandatory disclosures would be completed by January 23, 2009, and information or documents subsequently developed or obtained would be disclosed in 7
Tr. at 755 (Aug. 24, 2009).
8 Letter from Sherwin E. Turk, Counsel for NRC Staff, to Atomic Safety and Licensing Board (Feb. 4, 2010) (ADAMS Accession No. ML1003511910).
9 Tr. at 802-03, 807-08 (Apr. 19, 2010); see also Letter from Sherwin E. Turk, Counsel for NRC Staff, to Atomic Safety and Licensing Board (May 27, 2010) (ADAMS Accession No. ML1014701750).
10 See Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Units Nos. 2 and 3, Docket Nos.
50-247 and 50-248, Entergy Nuclear Operations, Inc., NUREG-1930 (Vols. 1-2 Nov.
2009) (ADAMS Accession Nos. ML093170451 and ML093170671).
2009) (ADAMS Accession Nos. ML093170451 and ML093170671).
11 Except where otherwise specified herein, the term "mandatory disclosures" includes the witness lists and privilege logs required under 10 C.F.R. § 2.336(a) and (b).
11 Except where otherwise specified herein, the term mandatory disclosures includes the witness lists and privilege logs required under 10 C.F.R. § 2.336(a) and (b).
12 10 C.F.R. § 2.336(a), (b).
12 10 C.F.R. § 2.336(a), (b).
13 10 C.F.R. § 2.1203(a).  
13 10 C.F.R. § 2.1203(a).


monthly updates.
monthly updates.14 At the April 19th conference, all parties stated that the disclosures to date had been made consistent with the approved agreement and that no problems had arisen in that regard.15 The obligation of all participants in this proceeding to update disclosures with newly acquired or developed information that is material to the issues presented in this proceeding continues until the Board has issued its initial decision in this proceeding.
14 At the April 19th conference, all parties stated that the disclosures to date had been made consistent with the approved agreement and that no problems had arisen in that regard.
However, once the hearing has commenced, updates are not to be made in monthly reports but must be made immediately upon the discovery of any new, relevant information.
15 The obligation of all participants in this proceeding to update disclosures with newly acquired or developed information that is material to the issues presented in this proceeding continues until the Board has issued its initial decision in this proceeding. However, once the hearing has commenced, updates are not to be made in monthly reports but must be made immediately upon the discovery of any new, relevant information.
C.       Protective Order and Non-Disclosure Agreement.
C. Protective Order and Non-Disclosure Agreement. Consistent with the cooperative spirit demonstrated to date in this proceeding, all parties agreed to a comprehensive Protective Order to facilitate the expeditious disclosure of sensitive information. After review, the Board approved and entered a Protective Order in the form agreed to by the parties.
Consistent with the cooperative spirit demonstrated to date in this proceeding, all parties agreed to a comprehensive Protective Order to facilitate the expeditious disclosure of sensitive information. After review, the Board approved and entered a Protective Order in the form agreed to by the parties.16 That Protective Order will continue to govern the disclosure and use of proprietary trade secret, commercial, and financial information in this proceeding unless it is expressly modified by order of the Board.
16 That Protective Order will continue to govern the disclosure and use of proprietary trade secret, commercial, and financial information in this proceeding unless it is expressly modified by order of the Board. D. Disclosure Disputes and Motions to Compel. If the need to file a motion to compel arises, it shall be filed not later than twenty (20) days after the occurrence or circumstance that gives rise to the motion or the date 14 Tr. at 770-72 (Jan. 14, 2009); Tr. at 756 (Aug. 24, 2009).
D.       Disclosure Disputes and Motions to Compel.
15 Tr. at 758 (Aug. 24, 2009); Tr. at 803-05 (Apr. 19, 2010). During the April 19th conference, the representative of Hudson River Sloop Clearwater, Inc. (Clearwater) stated that he was engaging in discussions regarding an unspecified disclosure issue. Tr. at 803-04 (Apr. 19, 2010). To date, no discovery motion has been presented by Clearwater. Accordingly, the Board assumes that the issue has been resolved to the satisfaction of the parties. However, while the Board desires parties to resolve disputes if possible, if an impasse occurs, the Board will promptly resolve disclosure disputes.  
If the need to file a motion to compel arises, it shall be filed not later than twenty (20) days after the occurrence or circumstance that gives rise to the motion or the date 14 Tr. at 770-72 (Jan. 14, 2009); Tr. at 756 (Aug. 24, 2009).
15 Tr. at 758 (Aug. 24, 2009); Tr. at 803-05 (Apr. 19, 2010). During the April 19th conference, the representative of Hudson River Sloop Clearwater, Inc. (Clearwater) stated that he was engaging in discussions regarding an unspecified disclosure issue.
Tr. at 803-04 (Apr. 19, 2010). To date, no discovery motion has been presented by Clearwater. Accordingly, the Board assumes that the issue has been resolved to the satisfaction of the parties. However, while the Board desires parties to resolve disputes if possible, if an impasse occurs, the Board will promptly resolve disclosure disputes.
16 Licensing Board Protective Order (Sept. 4, 2009) (unpublished).


16  Licensing Board Protective Order (Sept. 4, 2009) (unpublished).  
of this Order, whichever is later. This additional time will be authorized for the filing of such motions in order to allow the parties a full opportunity to resolve such disputes before seeking intervention by the Board.17 E.      Monthly Status Report.
Commencing on August 3, 2010, the NRC Staff shall submit a short report that includes an update of its estimate of the date on which the FEIS will be issued.
Thereafter, the NRC Staff shall update this status report on the first Tuesday of every month until the FEIS is issued. In addition, each party shall promptly inform the Board of any other developments that could potentially impact the schedule for this proceeding.
F.      Additional Contentions.
: 1.      Consolidated Briefing. A party seeking to file a motion or request for leave to file a new or amended contention shall file such motion and the substance of the proposed contention simultaneously. The pleading shall include a motion for leave to file a timely new or amended contention under 10 C.F.R. § 2.309(f)(2), or a motion for leave to file a nontimely new or amended contention under 10 C.F.R. § 2.309(c)(1) (or both), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Within twenty-five (25) days after service of the motion and proposed contention, any other party may file an answer responding to all elements of the motion and contention. Within seven (7) days of service of the answer, the movant may file a reply.18 17 Ordinarily, motions must be filed within ten (10) days after the occurrence or circumstance from which the motion arises. 10 C.F.R. § 2.323(a).
18 This procedure resolves difficulties that have arisen in several proceedings concerning the interplay of the sequence and timing for motions under 10 C.F.R. § 2.323 (motion, answer), and the sequence and timing for contentions under 10 C.F.R.
§ 2.309(h) (contention, answer, reply). Further, this procedure expedites the process by collapsing the two-step process established by the regulations into a single step.
: 2.      Timeliness. A motion and proposed new contention specified in the preceding paragraph shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available. If filed thereafter, the motion and proposed contention shall be evaluated as a nontimely proposed contention under the rubric of 10 C.F.R.
§ 2.309(c)(1). If the movant is uncertain, it may file pursuant to both sections, and the motion should cover the three criteria of 10 C.F.R. § 2.309(f)(2) and the eight criteria of 10 C.F.R. § 2.309(c)(1) (as well as the six criteria of 10 C.F.R. § 2.309(f)(1)).
: 3.      Selection of Hearing Procedures. A motion and proposed new contention specified in paragraph F.1 supra may address the selection of the appropriate hearing procedure for the proposed new contention.19 G.      Pleadings and Motions - Generally.
: 1.      Pleadings - Page Limitation. Motions and answers to motions shall not exceed twenty-five (25) pages in length (including signature page but excluding attachments, see paragraph M.5, infra), absent preapproval of the Board. A motion for preapproval to exceed this page limitation shall be submitted in writing no less than three (3) business days prior to the time the motion or answer is due to be filed. A motion to exceed this page limitation must (i) indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition; (ii) provide a good faith estimate of the number of additional pages that will be filed; and (iii) demonstrate good cause for being permitted to exceed the page limitation.
: 2.      Response to New Facts or Arguments in Answer Supporting a Motion.
Except for a motion to file a new or amended contention as set forth in Section F supra 19 See 10 C.F.R. §§ 2.309(g) and 2.310(d).


of this Order, whichever is later. This additional time will be authorized for the filing of such motions in order to allow the parties a full opportunity to resolve such disputes before seeking intervention by the Board.
or where there are compelling circumstances, the moving party shall have no right to reply to an answer or response opposing the granting of a motion.20 However, if any party files an answer that supports a motion, then a party opposing the motion may, within ten (10) days after service of that answer, file a reply to any new facts or arguments presented in that answer. Except as otherwise specified herein, no further supporting statements or responses thereto will be entertained.21
17    E. Monthly Status Report. Commencing on August 3, 2010, the NRC Staff shall submit a short report that includes an update of its estimate of the date on which the FEIS will be issued. Thereafter, the NRC Staff shall update this st atus report on the first Tuesday of every month until the FEIS is issued. In addition, each party shall promptly inform the Board of any other developments that could potentially impact the schedule for this proceeding.
: 3. Motion for Leave to File Reply. Except as provided for in Section G.2.
F. Additional Contentions. 1. Consolidated Briefing. A party seeking to file a motion or request for leave to file a new or amended contention shall file such motion and the substance of the proposed contention simultaneously. The pleading shall include a motion for leave to file a timely new or amended contention under 10 C.F.R. § 2.309(f)(2), or a motion for leave to file a nontimely new or amended contention under 10 C.F.R. § 2.309(c)(1) (or both), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Within twenty-five (25) days after service of the motion and proposed contention, any other party may file an answer responding to all elements of the motion and contention. Within seven (7) days of service of the answer, the movant may file a reply.
above, no party may file a reply without prior leave from the Board. A motion for leave to file a reply shall be submitted not less than three (3) business days prior to the time the reply would be required to be filed.22 A motion to file a reply must demonstrate good cause for permitting the reply to be filed and must indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition.
18 17  Ordinarily, motions must be filed within ten (10) days after the occurrence or circumstance from which the motion arises. 10 C.F.R. § 2.323(a).
: 4. Motion for Extension of Time. Unless modified by the Board, or otherwise specified in this Order, a motion for extension of time shall be submitted in writing at least three (3) business days before the due date for the pleading or other submission for which an extension is sought. In addition to all other requirements, a motion for extension of time must (i) demonstrate appropriate cause that supports permitting the extension; and (ii) indicate whether the request is opposed or supported by the other 20 See 10 C.F.R. § 2.323(c).
18  This procedure resolves difficulties that have arisen in several proceedings concerning the interplay of the sequence and timing for motions under 10 C.F.R. § 2.323 (motion, answer), and the sequence and timing for contentions under 10 C.F.R.  
21 This provision avoids unnecessary confusion and litigation that has arisen on this point in several cases. This provision is modeled on 10 C.F.R. § 2.710(a).
§ 2.309(h) (contention, answer, reply). Further, this procedure expedites the process by collapsing the two-step process established by the regulations into a single step. 
22 Although the agencys rules of practice regarding motions do not provide for reply pleadings, the Board will presume that for a reply to be timely it would have to be filed within seven (7) days of the date of service of the answer it is intended to address. See 10 C.F.R. § 2.309(h)(2).
: 2. Timeliness. A motion and proposed new contention specified in the preceding paragraph shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available. If filed thereafter, the motion and proposed contention shall be evaluated as a nontimely proposed contention under the rubric of 10 C.F.R. § 2.309(c)(1). If the movant is uncertain, it may file pursuant to both sections, and the motion should cover the three criteria of 10 C.F.R. § 2.309(f)(2) and the eight criteria of 10 C.F.R. § 2.309(c)(1) (as well as the six criteria of 10 C.F.R. § 2.309(f)(1)).  
: 3. Selection of Hearing Procedures. A motion and proposed new contention specified in paragraph F.1 supra may address the selection of the appropriate hearing procedure for the proposed new contention.
19    G. Pleadings and Motions - Generally. 1. Pleadings - Page Limitation. Motions and answers to motions shall not exceed twenty-five (25) pages in length (including signature page but excluding attachments, see paragraph M.5, infra), absent preapproval of the Board. A motion for preapproval to exceed this page limitation shall be submitted in writing no less than three (3) business days prior to the time the motion or answer is due to be filed. A motion to exceed this page limitation must (i) indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition; (ii) provide a good faith estimate of the number of additional pages that will be filed; and (iii) demonstrate good cause for being permitted to exceed the page limitation. 2. Response to New Facts or Arguments in Answer Supporting a Motion. Except for a motion to file a new or amended contention as set forth in Section F supra


19  See 10 C.F.R. §§ 2.309(g) and 2.310(d).  
participants in the proceeding; and, if opposed, succinctly describe the grounds stated for such opposition.
: 5.      Answer Opposing a Motion to Exceed the Page Limitation, to File a Reply, or to Extend the Time for Filing a Pleading. An answer to a motion to exceed the page limit, to file a reply, or to extend the time for filing a pleading shall be filed and served within one (1) business day after the filing of the motion.
: 6.      Motion Certification. In accordance with 10 C.F.R. § 2.323(b), a motion will be rejected if it does not include the following certification by the attorney or representative of the moving party:
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 my efforts have been unsuccessful. 23
: 7.      Answer Certification. If the attorney or representative of a party is contacted pursuant to the consultation requirement of 10 C.F.R. § 2.323(b), then that person (or his or her alternate) shall make a sincere effort to make himself or herself available to listen and respond to the moving partys explanation, and to resolve the factual and legal issues raised in the motion. If the answering party is unaware of any attempt by the moving party to contact it, then the answer shall so certify. Otherwise, an answer will be rejected if it does not include the following certification by the contacted attorney or representative (or his or her alternate) of the answering party:
23 Although in general the movant has only ten (10) days within which to file its motion under 10 C.F.R. § 2.323(a), the Board believes that, in order to be sincere, the effort should be timely, i.e., not initiated at the last minute, but instead commenced sufficiently in advance to provide enough time for the possible resolution of the matter or issues in question. Cf. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-05, 63 NRC 116, 128-31 (2006).
If the initial consultation is initiated at a reasonable time and the parties believe that all or part of the matter may be resolved amicably if additional time for filing the motion were provided, the parties are encouraged to file a joint motion requesting an extension of time.


or where there are compelling circumstances, the moving party shall have no right to reply to an answer or response opposing the granting of a motion.
I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.
20  However, if any party files an answer that supports a motion, then a party opposing the motion may, within ten (10) days after service of that answer, file a reply to any new facts or arguments presented in that answer. Except as otherwise specified herein, no further supporting statements or responses thereto will be entertained.
It is inconsistent with the dispute avoidance/resolution purposes of 10 C.F.R. § 2.323(b),
21  3. Motion for Leave to File Reply. Except as provided for in Section G.2. above, no party may file a reply without prior leave from the Board. A motion for leave to file a reply shall be submitted not less than three (3) business days prior to the time the reply would be required to be filed.
and thus insufficient, for the contacted attorney or representative to fail or refuse to consider the substance of the consultation attempt, or for the party to respond that it takes no position on the motion (or issues) and that it reserves the right to file a response to the motion when it is filed.
22  A motion to file a reply must demonstrate good cause for permitting the reply to be filed and must indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition. 4. Motion for Extension of Time. Unless modified by the Board, or otherwise specified in this Order, a motion for extension of time shall be submitted in writing at least three (3) business days before the due date for the pleading or other submission for which an extension is sought. In addition to all other requirements, a motion for extension of time must (i) demonstrate appropriate cause that supports permitting the extension; and (ii) indicate whether the request is opposed or supported by the other 20  See 10 C.F.R. § 2.323(c).
: 8.       Supplemental Information. The certifications specified in the foregoing two subsections may be supplemented with any additional information that the representative or attorney deems necessary to ensure the accuracy of the certification or to explain the situation.
21  This provision avoids unnecessary confusion and litigation that has arisen on this point in several cases. This provision is modeled on 10 C.F.R. § 2.710(a).
H.      Dispositive Motions.
22  Although the agency's rules of practice regarding motions do not provide for reply pleadings, the Board will presume that for a reply to be timely it would have to be filed within seven (7) days of the date of service of the answer it is intended to address. See 10 C.F.R. § 2.309(h)(2).
Dispositive motions, such as motions for summary disposition under 10 C.F.R.
§ 2.1205 and Subpart L evidentiary hearings under 10 C.F.R. § 2.1207, are both conducted on the basis of written pleadings, testimony, and exhibits. The Board finds that such motions for summary disposition, if filed late in the proceeding when the parties are heavily engaged in other tasks (e.g., preparing and submitting their pleadings, testimony, and exhibits immediately prior to the commencement of the evidentiary hearing), may impede and burden the litigants and the Board, rather than serve to narrow the scope or expedite the resolution of the adjudicatory proceeding.
Indeed, the Subpart L proceeding has two key advantages over motions for summary disposition. First, in a Subpart L evidentiary hearing, the Board may ask the witnesses to appear in person and answer questions, the answers to which might


participants in the proceeding; and, if opposed, succinctly describe the grounds stated for such opposition. 5. Answer Opposing a Motion to Exceed the Page Limitation, to File a Reply, or to Extend the Time for Filing a Pleading. An answer to a motion to exceed the page limit, to file a reply, or to extend the time for filing a pleading shall be filed and served within one (1) business day after the filing of the motion. 6. Motion Certification. In accordance with 10 C.F.R. § 2.323(b), a motion will be rejected if it does not include the following certification by the attorney or representative of the moving party: "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 my efforts have
significantly assist in resolving the matter.24 This is not possible when ruling on a motion for summary disposition. Second, in an evidentiary hearing, the Board may weigh competing evidence and expert opinion and may resolve/decide factual disputes, whereas this is not possible when ruling on motions for summary disposition, which are restricted to situations where there is no genuine issue as to any material fact.25 Further, a motion for summary disposition requires significant and often duplicative time and effort from all parties (and the Board), whereas, historically, Subpart L evidentiary hearings have proven to be short, often requiring a day or less to hear any particular contention. For the foregoing reasons, motions for summary disposition and other dispositive motions, while permissible, will be managed in this proceeding as follows:26
: 1.      Certification. A dispositive motion (e.g., motion for summary disposition or motion to dismiss) will be rejected unless, in addition to the signature requirements of 10 C.F.R. § 2.304(d), the certifications required by 10 C.F.R. § 2.323(b), and this Order, 24 See 10 C.F.R. § 2.1207(b)(6). The Board may also allow parties to conduct cross-examination in Subpart L proceedings pursuant to 10 C.F.R. § 2.1204(b)(3).
25 10 C.F.R. § 2.710(d)(2). See also id. § 2.1205(c).
26 The Commission has stated that there may be times where dispositive motions should not be entertained because consideration of such motions would unduly delay or complicate proceedings and distract parties from preparation for a scheduled hearing.
Moreover, according to the Commission, there may be situations in which the time required to consider dispositive motions and to issue a ruling on these motions will substantially exceed the time needed to complete the hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2186 (Jan. 14, 2004). More recently, the Commission issued a notice in an expedited case prohibiting summary disposition motions from proceeding absent an affirmative finding by the Board that it would expedite the proceeding. Notice of Receipt of Application for License; Notice of Consideration of Issuance of License; Notice of Hearing and Commission Order and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation; In the Matter of Areva Enrichment Services, LLC (Eagle Rock Enrichment Facility), 74 Fed. Reg. 38,052, 38,057 (July 30, 2009) ([T]he Licensing Board shall not entertain motions for summary disposition under 10 C.F.R. 2.710, unless the Licensing Board finds that such motions, if granted, are likely to expedite the proceeding.).


been unsuccessful."
the motion includes the following certification by the attorney or representative of the moving party:
23      7. Answer Certification. If the attorney or representative of a party is contacted pursuant to the consultation requirement of 10 C.F.R. § 2.323(b), then that person (or his or her alternate) shall make a sincere effort to make himself or herself available to listen and respond to the moving party's explanation, and to resolve the factual and legal issues raised in the motion. If the answering party is unaware of any attempt by the moving party to contact it, then the answer shall so certify. Otherwise, an answer will be rejected if it does not include the following certification by the contacted attorney or representative (or his or her alternate) of the answering party:
I certify that this motion is not interposed for delay or any other improper purpose, that I believe in good faith that there is no genuine issue as to any material fact relating to this motion, and that the moving party is entitled to a decision as a matter of law, as required by 10 C.F.R.
23  Although in general the movant has only ten (10) days within which to file its motion under 10 C.F.R. § 2.323(a), the Board believes that, in order to be sincere, the effort should be timely, i.e., not initiated at the last minute, but instead commenced sufficiently in advance to provide enough time for the possible resolution of the matter or issues in question. Cf. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-05, 63 NRC 116, 128-31 (2006). If the initial consultation is initiated at a reasonable time and the parties believe that all or part of the matter may be resolved amicably if additional time for filing the motion were provided, the parties are encouraged to file a joint motion requesting an extension of time. 
        §§ 2.1205 and 2.710(d).27
"I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful."
: 2.       Additional Time for Dispositive Motions. In light of the gravity and importance of dispositive motions, and in order to accommodate careful consultation as specified above, dispositive motions may be filed up to thirty (30) days after the occurrence or circumstance from which the motion arises (rather than the ten (10) day time frame established by 10 C.F.R. § 2.323(a)), provided that the moving party commences sincere efforts to contact and consult all other parties within fifteen (15) days of the occurrence or circumstance, and the accompanying certification so states.28
It is inconsistent with the dispute avoidance/resolution purposes of 10 C.F.R. § 2.323(b), and thus insufficient, for the contacted attorney or representative to fail or refuse to consider the substance of the consultation attempt, or for the party to respond that "it takes no position on the motion (or issues) and that it reserves the right to file a response to the motion when it is filed."      8. Supplemental Information. The certifications specified in the foregoing two subsections may be supplemented with any additional information that the representative or attorney deems necessary to ensure the accuracy of the certification or to explain the situation. H. Dispositive Motions. Dispositive motions, such as motions for summary disposition under 10 C.F.R. § 2.1205 and Subpart L evidentiary hearings under 10 C.F.R. § 2.1207, are both conducted on the basis of written pleadings, testimony, and exhibits. The Board finds that such motions for summary disposition, if filed late in the proceeding when the parties are heavily engaged in other tasks (e.g., preparing and submitting their pleadings, testimony, and exhibits immediately prior to the commencement of the evidentiary hearing), may impede and burden the litigants and the Board, rather than serve to narrow the scope or expedite the resolution of the adjudicatory proceeding. Indeed, the Subpart L proceeding has two key advantages over motions for summary disposition. First, in a Subpart L evidentiary hearing, the Board may ask the witnesses to appear in person and answer questions, the answers to which might significantly assist in resolving the matter.
: 3.      Answers. In accordance with 10 C.F.R. § 2.1205(b), an answer supporting or opposing a motion for summary disposition or other dispositive motion shall be filed within twenty (20) days after service of the motion. If the answering party concludes that additional time is needed in order to prepare an appropriate answer, it 27 See 10 C.F.R. § 2.304(d) (representations of a signatory to a pleading); cf. Fed. R.
24  This is not possible when ruling on a motion for summary disposition. Second, in an evidentiary hearing, the Board may weigh competing evidence and expert opinion and may resolve/decide factual disputes, whereas this is not possible when ruling on motions for summary disposition, which are restricted to situations where "there is no genuine issue as to any material fact."
Civ. P. 11(b).
25  Further, a motion for summary disposition requires significant and often duplicative time and effort from all parties (and the Board), whereas, historically, Subpart L evidentiary hearings have proven to be short, often requiring a day or less to hear any particular contention. For the foregoing reasons, motions for summary disposition and other dispositive motions, while permissible, will be managed in this proceeding as follows:
28 At the April 19, 2010 conference, Entergy indicated that it intended to supplement its application in a manner that, in its view, could impact contentions NYS-25 and NYS-26/26A. Tr. at 806-07 (Apr. 19, 2010). While neither setting specific deadlines, nor giving specific guidance with regard to those anticipated submissions other than what is contained in section H, we urge Entergy to file any supplements to its Application, and then file any motions that may arise from those supplements with all deliberate speed in order to minimize any delay that may otherwise result. Specifically, we expect that, within the context of the schedule outlined in this Order, the intervenors will have a fair opportunity to respond to those motions before the publication of the FEIS. If the Board determines that the intervenors do not have sufficient time under the schedule set out in this order to asses new information on critical safety issues prior to addressing dispositive motions, the Board shall grant the intevenors such additional time as we deem appropriate. Such action, however, would result in the delay of this proceeding.
26    1. Certification. A dispositive motion (e.g., motion for summary disposition or motion to dismiss) will be rejected unless, in addition to the signature requirements of 10 C.F.R. § 2.304(d), the certifications required by 10 C.F.R. § 2.323(b), and this Order, 24  See 10 C.F.R. § 2.1207(b)(6). The Board may also allow parties to conduct cross-examination in Subpart L proceedings pursuant to 10 C.F.R. § 2.1204(b)(3).
25  10 C.F.R. § 2.710(d)(2). See also id. § 2.1205(c).
26  The Commission has stated that there may be times where dispositive motions should not be entertained because consideration of such motions would unduly delay or complicate proceedings and distract parties from preparation for a scheduled hearing.
Moreover, according to the Commission, there may be situations in which the time required to consider dispositive motions and to issue a ruling on these motions will substantially exceed the time needed to complete the hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2186 (Jan. 14, 2004). More recently, the Commission issued a notice in an expedited case prohibiting summary disposition motions from proceeding absent an affirmative finding by the Board that it would expedite the proceeding. Notice of Receipt of Application for License; Notice of Consideration of Issuance of License; Notice of Hearing and Commission Order and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation; In the Matter of Areva Enrichment Services, LLC (Eagle Rock Enrichment Facility), 74 Fed. Reg. 38,052, 38,057 (July 30, 2009) ("[T]he Licensing Board shall not entertain motions for summary disposition under 10 C.F.R. 2.710, unless the Licensing Board finds that such motions, if granted, are likely to expedite the proceeding.").  


the motion includes the following certification by the attorney or representative of the moving party: "I certify that this motion is not interposed for delay or any other improper purpose, that I believe in good faith that there is no genuine issue as to any material fact relating to this motion, and that the moving party is entitled to a decision as a matter of law, as required by 10 C.F.R.
shall file a motion for additional time within which to respond to the dispositive motion within ten (10) days after service thereof.
§§ 2.1205 and 2.710(d)."
: 4.     Deadline. With the exceptions noted below, absent express authorization from the Board, all motions for summary disposition based on information that is now available, including motions based on the FSER, shall be filed on or before July 30, 2010. In addition, no motion for summary disposition or other dispositive motion relating to a National Environmental Policy Act (NEPA) contention may be filed more than thirty (30) days after the NRC Staff publishes the FEIS. With regard to any motion for summary disposition filed after that date, the moving party shall identify and explain the new information or event that gave rise to the motion and the reason why the motion could not be filed by the due date. If the Board determines that the motion was not filed in a timely manner, or that its consideration would delay the hearing in this proceeding, the motion will be summarily denied.
27 
I.       Clarification, Simplification, and Amendment of the Pleadings.
: 2. Additional Time for Dispositive Motions. In light of the gravity and importance of dispositive motions, and in order to accommodate careful consultation as specified above, dispositive motions may be filed up to thirty (30) days after the occurrence or circumstance from which the motion arises (rather than the ten (10) day time frame established by 10 C.F.R. § 2.323(a)), provided that the moving party commences sincere efforts to contact and consult all other parties within fifteen (15) days of the occurrence or circumstance, and the accompanying certification so states.
The Board encourages the parties and NRC Staff to continue to consider and pursue such measures as are specified in 10 C.F.R. §§ 2.329(c)(1)-(3) and 2.338. We will revisit these issues throughout this proceeding. For example, if it appears that stipulations or admissions of fact can narrow or eliminate factual or legal disputes, the parties and the NRC Staff are encouraged to consult with each other and/or file motions to pursue the same.
28    3. Answers. In accordance with 10 C.F.R. § 2.1205(b), an answer supporting or opposing a motion for summary disposition or other dispositive motion shall be filed within twenty (20) days after service of the motion. If the answering party concludes that additional time is needed in order to prepare an appropriate answer, it 27  See 10 C.F.R. § 2.304(d) (representations of a signatory to a pleading); cf.
J.       Consolidation of the Safety and Environmental Issues for Hearing.
Fed. R. Civ. P. 11(b).
The Board does not believe that a bifurcated hearing is practicable in this proceeding. Accordingly, the Board contemplates a single evidentiary hearing that will
28  At the April 19, 2010 conference, Entergy indicated that it intended to supplement its application in a manner that, in its view, could impact contentions NYS-25 and NYS-26/26A. Tr. at 806-07 (Apr. 19, 2010). While neither setting specific deadlines, nor giving specific guidance with regard to those anticipated submissions other than what is contained in section H, we urge Entergy to file any supplements to its Application, and then file any motions that may arise from those supplements with all deliberate speed in order to minimize any delay that may otherwise result. Specifically, we expect that, within the context of the schedule outlined in this Order, the intervenors will have a fair opportunity to respond to those motions before the publication of the FEIS. If the Board determines that the intervenors do not have sufficient time under the schedule set out in this order to asses new information on critical safety issues prior to addressing dispositive motions, the Board shall grant the intevenors such additional time as we deem appropriate. Such action, however, would result in the delay of this proceeding.
shall file a motion for additional time within which to respond to the dispositive motion within ten (10) days after service thereof. 4. Deadline. With the exceptions noted below, absent express authorization from the Board, all motions for summary disposition based on information that is now available, including motions based on the FSER, shall be filed on or before July 30, 2010. In addition, no motion for summary disposition or other dispositive motion relating to a National Environmental Policy Act (NEPA) contention may be filed more than thirty (30) days after the NRC Staff publishes the FEIS. With regard to any motion for summary disposition filed after that date, the moving party shall identify and explain the new information or event that gave rise to the motion and the reason why the motion could not be filed by the due date. If the Board determines that the motion was not filed in a timely manner, or that its consideration would delay the hearing in this proceeding , the motion will be summarily denied. I. Clarification, Simplification, and Amendment of the Pleadings. The Board encourages the parties and NRC Staff to continue to consider and pursue such measures as are specified in 10 C.F.R. §§ 2.329(c)(1)-(3) and 2.338. We will revisit these issues throughout this proceeding. For example, if it appears that stipulations or admissions of fact can narrow or eliminate factual or legal disputes, the parties and the NRC Staff are encouraged to cons ult with each other and/or file motions to pursue the same. J. Consolidation of the Safety and Environmental Issues for Hearing. The Board does not believe that a bifurcated hearing is practicable in this proceeding. Accordingly, the Board contempl ates a single evidentiary hearing that will address both environmental and safety contentions. At this point the Board anticipates that, once begun, the hearing will continue from day to day until it is concluded.
29 K. Evidentiary Hearings Filings. Pursuant to 10 C.F.R. § 2.1207, a number of documents must be filed immediately prior to the evidentiary hearing. The Board has determined that the earliest practicable "Trigger Date" for the initiation of such filings is the date when the NRC Staff makes the FEIS publicly available and provides a copy of it to all participants in this proceeding.
30  However, if new or amended contentions are filed that are based on the FEIS, the trigger date will be the day on which the last timely Reply arising from the filing of the new or amended contentions is filed.
31  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 party's 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 29  We do not, however, anticipate conducting the hearing on Saturday, Sunday, or legal holidays.
30  10 C.F.R. § 2.332(d) prohibits the commencement of evidentiary hearings on environmental issues until after issuance of the FEIS. It also prohibits commencement of evidentiary hearings on safety issues until after issuance of the FSER, unless the Board affirmatively finds that the safety hearing can be held earlier and still expedite the ultimate resolution of the case.
31  See Section F.1. supra.
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. Entergy's and the NRC Staff's 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). The written statement of position shall be in the nature of a response brief that identifies the legal and factual weaknesses or, in the event that the NRC Staff supports a contention, the strengths in the intervenor's position, identifies witnesses and evidence, and specifies the precise purpose of witnesses and evidence. This testimony shall also 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 are relying upon for their statements of 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. 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. 4. Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities under paragraphs K.1 or K.3 or by Entergy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3. Answers shall be filed no later than ten (10) days after service of such motions.
address both environmental and safety contentions. At this point the Board anticipates that, once begun, the hearing will continue from day to day until it is concluded.29 K.       Evidentiary Hearings Filings.
32  5. Proposed Questions for the Board to Ask
Pursuant to 10 C.F.R. § 2.1207, a number of documents must be filed immediately prior to the evidentiary hearing. The Board has determined that the earliest practicable Trigger Date for the initiation of such filings is the date when the NRC Staff makes the FEIS publicly available and provides a copy of it to all participants in this proceeding.30 However, if new or amended contentions are filed that are based on the FEIS, the trigger date will be the day on which the last timely Reply arising from the filing of the new or amended contentions is filed.31
. 33  No later than thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3, all parties may file proposed questions for the Board to consider propounding to the direct or rebuttal witnesses, pursuant to 10 C.F.R. § 2.1207(a)(3)(i) and (ii). The direct or rebuttal examination plans should contain a brief description of the issue or issues that the party contends need further examination, the objective of the examination, and the 32  A Motion in limine or to strike regarding a submission made pursuant to Section K.1. must be filed within thirty (30) days after the Section K.1. submission is made. Likewise a Motion regarding a submission made pursuant to Section K.2. must be filed within thirty (30) days after the Section K.2. submission is made, etc.  
: 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 29 We do not, however, anticipate conducting the hearing on Saturday, Sunday, or legal holidays.
30 10 C.F.R. § 2.332(d) prohibits the commencement of evidentiary hearings on environmental issues until after issuance of the FEIS. It also prohibits commencement of evidentiary hearings on safety issues until after issuance of the FSER, unless the Board affirmatively finds that the safety hearing can be held earlier and still expedite the ultimate resolution of the case.
31 See Section F.1. supra.


33  A party should cover all essential points in the direct and rebuttal testimony that it prefiles for each of its own witnesses. The prefiled proposed questions should not focus on a party's own witnesses, but should instead be directed to the witnesses of the other parties.  
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). The written statement of position shall be in the nature of a response brief that identifies the legal and factual weaknesses or, in the event that the NRC Staff supports a contention, the strengths in the intervenors position, identifies witnesses and evidence, and specifies the precise purpose of witnesses and evidence. This testimony shall also 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 are relying upon for their statements of 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.
: 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


proposed line of questioning (including specific questions) that may logically lead to achieving the objective. The proposed direct examination questions and plans should be filed in camera and not served on the NRC Staff or any other party. Such proposals shall be submitted only to the Board, and the Board will not disclose such proposals to the other parties, except in any hearing conducted in furtherance of such matters.
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.
34  6. Motions for Cross-Examination
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.
.35  No later than thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3, all parties shall file any motions or requests to permit that party to conduct cross-examination of a specified witness or witnesses, together with the associated cross-examination plan(s), pursuant to 10 C.F.R. § 2.1204(b). The motion for cross-examination shall be filed with all parties, but the cross-examination plan itself should be filed in camera and not be served on the NRC Staff or any other party.
: 4. Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities under paragraphs K.1 or K.3 or by Entergy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3. Answers shall be filed no later than ten (10) days after service of such motions.32
36 7. Witnesses with Written Testimony Must be Available in Person. Unless the Board expressly provides otherwise, each party (including the NRC Staff) must, at its own expense and effort, assure that each person for whom it submitted written direct or 34  The proposed questions will, however, be provided to the Commission's Secretary for inclusion in the official record of the proceeding when the Board issues its Initial Decision. 10 C.F.R. § 2.1207(a)(iii).
: 5. Proposed Questions for the Board to Ask. 33 No later than thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3, all parties may file proposed questions for the Board to consider propounding to the direct or rebuttal witnesses, pursuant to 10 C.F.R. § 2.1207(a)(3)(i) and (ii). The direct or rebuttal examination plans should contain a brief description of the issue or issues that the party contends need further examination, the objective of the examination, and the 32 A Motion in limine or to strike regarding a submission made pursuant to Section K.1.
35  The basis for permitting cross-examination in Subparts L and G arises from § 556(d) of the Administrative Procedure Act. Progress Energy Florida, Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 145 (2009) (citing Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338, 351 (1st Cir. 2004); 69 Fed. Reg. 2182, 2195-96 (Jan. 14, 2004)).
must be filed within thirty (30) days after the Section K.1. submission is made. Likewise a Motion regarding a submission made pursuant to Section K.2. must be filed within thirty (30) days after the Section K.2. submission is made, etc.
36  These prepared cross-examination plans will be kept in confidence by the Board until the issuance of the Board's Initial Decision, at which time they will be provided to the Commission's Secretary for inclusion in the official record of this proceeding. 10 C.F.R.
33 A party should cover all essential points in the direct and rebuttal testimony that it prefiles for each of its own witnesses. The prefiled proposed questions should not focus on a partys own witnesses, but should instead be directed to the witnesses of the other parties.
§ 2.1204(b)(2).  


rebuttal testimony attends the evidentiary hearing in person and is available to testify and to respond orally to questions.
proposed line of questioning (including specific questions) that may logically lead to achieving the objective. The proposed direct examination questions and plans should be filed in camera and not served on the NRC Staff or any other party. Such proposals shall be submitted only to the Board, and the Board will not disclose such proposals to the other parties, except in any hearing conducted in furtherance of such matters.34
37 8. Evidentiary Hearing. Although the specific time and date for the evidentiary hearing will be determined later, the Board currently contemplates that it will commence between thirty (30) and sixty (60) days after the service of the material specified in paragraphs K.5 and K.6. L. Requests for Subpart G Proceeding Based on Disclosures of Eyewitnesses. A request that a contention be handled pursuant to Subpart G procedures based on 10 C.F.R. § 2.310(d) (which focuses, inter alia, on issues "where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness") shall be filed within thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3. M. Attachments to Motions and other Pleadings. 1. Documents Must be Attached. If written testimony, an affidavit, or a motion or pleading of any kind seeks to have the Board rely on the contents of a report, website, NUREG, guidance document, or other document of any kind (other than to a statute, regulation, case, or other legal authority), then a copy of that document, or the relevant portion thereof, shall be submitted with and attached to the pleading. The pleading must cite to the specific page or section of the document that the offering party considers to be relevant.  
: 6.     Motions for Cross-Examination.35 No later than thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3, all parties shall file any motions or requests to permit that party to conduct cross-examination of a specified witness or witnesses, together with the associated cross-examination plan(s), pursuant to 10 C.F.R. § 2.1204(b). The motion for cross-examination shall be filed with all parties, but the cross-examination plan itself should be filed in camera and not be served on the NRC Staff or any other party.36
: 2. Exception. If the following documents are publicly available on the NRC ADAMS system, then they do not need to be attached to written testimony, an affidavit, a 37  If, after reading the prefiled testimony, the Board concludes that is has no questions for a particular witness and has not granted a motion to allow cross-examination of that witness, it will so advise the parties and that individual will not need to attend the evidentiary hearing. Likewise, if the Board concludes that it has no questions for any witness concerning a particular contention, it will so advise the parties and will resolve that contention pursuant to 10 C.F.R. § 2.1208.
: 7.     Witnesses with Written Testimony Must be Available in Person. Unless the Board expressly provides otherwise, each party (including the NRC Staff) must, at its own expense and effort, assure that each person for whom it submitted written direct or 34 The proposed questions will, however, be provided to the Commissions Secretary for inclusion in the official record of the proceeding when the Board issues its Initial Decision. 10 C.F.R. § 2.1207(a)(iii).
motion, or pleading: Entergy's Application and Environmental Report (ER), the FEIS, the FSER, and pleadings previously filed in this proceeding.
35 The basis for permitting cross-examination in Subparts L and G arises from § 556(d) of the Administrative Procedure Act. Progress Energy Florida, Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 145 (2009) (citing Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338, 351 (1st Cir. 2004); 69 Fed. Reg. 2182, 2195-96 (Jan. 14, 2004)).
38  With regard to such documents, it is sufficient if the offering party clearly identifies the document (including its date and revision number, if any), provides its ADAMS ML number, and cites to the specific page or section that the offering party considers to be relevant. All other documents (or the relevant portions thereof), even if they can be found in ADAMS, shall be attached to the pleading or they will not be considered by the Board.
36 These prepared cross-examination plans will be kept in confidence by the Board until the issuance of the Boards Initial Decision, at which time they will be provided to the Commissions Secretary for inclusion in the official record of this proceeding. 10 C.F.R.
39  3. Attached Documents are "Attachments."  All documents referred to in written testimony and affidavits shall be labeled and referred to as Exhibits, while documents referred to in motions and pleadings shall be labeled and referred to as "Attachments," not exhibits.
§ 2.1204(b)(2).
40 4. Designation and Marking of Attachments. A separate numeric designation shall be assigned by contention to each Attachment (e.g., New York State Contention 17, Attachment 1). With regard to Attachments covered by paragraph M.1, the numeric designation shall be prominently marked either on the first page of the appended document or on a cover/divider sheet in front of the appended document. 5. Page Limits for Attachments. Attachments are not subject to the page limitation set forth in Section G.1 supra.
38  The offering party must, however, clearly identify the previously filed document, the party that filed it, the date filed, and cite to the specific page or pages that the offering party considers to be relevant.  


39  The NRC's E-Filing guidance document has instructions concerning the filing of copyrighted material (at page 21). See http://www.nrc.gov/site-help/e-submittals.html (under Adjudicatory Submissions, Related Instructional Resources, access link for Guidance for Electronic Submissions to the NRC, Revision 6).  
rebuttal testimony attends the evidentiary hearing in person and is available to testify and to respond orally to questions.37
: 8.      Evidentiary Hearing. Although the specific time and date for the evidentiary hearing will be determined later, the Board currently contemplates that it will commence between thirty (30) and sixty (60) days after the service of the material specified in paragraphs K.5 and K.6.
L.        Requests for Subpart G Proceeding Based on Disclosures of Eyewitnesses.
A request that a contention be handled pursuant to Subpart G procedures based on 10 C.F.R. § 2.310(d) (which focuses, inter alia, on issues where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness) shall be filed within thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3.
M.        Attachments to Motions and other Pleadings.
: 1.      Documents Must be Attached. If written testimony, an affidavit, or a motion or pleading of any kind seeks to have the Board rely on the contents of a report, website, NUREG, guidance document, or other document of any kind (other than to a statute, regulation, case, or other legal authority), then a copy of that document, or the relevant portion thereof, shall be submitted with and attached to the pleading. The pleading must cite to the specific page or section of the document that the offering party considers to be relevant.
: 2.     Exception. If the following documents are publicly available on the NRC ADAMS system, then they do not need to be attached to written testimony, an affidavit, a 37 If, after reading the prefiled testimony, the Board concludes that is has no questions for a particular witness and has not granted a motion to allow cross-examination of that witness, it will so advise the parties and that individual will not need to attend the evidentiary hearing. Likewise, if the Board concludes that it has no questions for any witness concerning a particular contention, it will so advise the parties and will resolve that contention pursuant to 10 C.F.R. § 2.1208.


40 The term "exhibit" is reserved for use as a designation for those items that are submitted pursuant to Section K as proffered evidence for the evidentiary hearing.
motion, or pleading: Entergys Application and Environmental Report (ER), the FEIS, the FSER, and pleadings previously filed in this proceeding.38 With regard to such documents, it is sufficient if the offering party clearly identifies the document (including its date and revision number, if any), provides its ADAMS ML number, and cites to the specific page or section that the offering party considers to be relevant. All other documents (or the relevant portions thereof), even if they can be found in ADAMS, shall be attached to the pleading or they will not be considered by the Board.39
: 3.      Attached Documents are Attachments. All documents referred to in written testimony and affidavits shall be labeled and referred to as Exhibits, while documents referred to in motions and pleadings shall be labeled and referred to as Attachments, not exhibits.40
: 4.      Designation and Marking of Attachments. A separate numeric designation shall be assigned by contention to each Attachment (e.g., New York State Contention 17, Attachment 1). With regard to Attachments covered by paragraph M.1, the numeric designation shall be prominently marked either on the first page of the appended document or on a cover/divider sheet in front of the appended document.
: 5.      Page Limits for Attachments. Attachments are not subject to the page limitation set forth in Section G.1 supra.
38 The offering party must, however, clearly identify the previously filed document, the party that filed it, the date filed, and cite to the specific page or pages that the offering party considers to be relevant.
39 The NRCs E-Filing guidance document has instructions concerning the filing of copyrighted material (at page 21). See http://www.nrc.gov/site-help/e-submittals.html (under Adjudicatory Submissions, Related Instructional Resources, access link for Guidance for Electronic Submissions to the NRC, Revision 6).
40 The term exhibit is reserved for use as a designation for those items that are submitted pursuant to Section K as proffered evidence for the evidentiary hearing.


N. Findings of Fact and Conclusions of Law. All parties shall submit proposed Findings of Fact and Conclusions of Law within sixty (60) days after the close of the evidentiary hearing in this proceeding. Thereafter, within thirty (30) days after service of the proposed Findings of Fact and Conclusions of Law, all parties may submit responses thereto.
N.     Findings of Fact and Conclusions of Law.
All parties shall submit proposed Findings of Fact and Conclusions of Law within sixty (60) days after the close of the evidentiary hearing in this proceeding. Thereafter, within thirty (30) days after service of the proposed Findings of Fact and Conclusions of Law, all parties may submit responses thereto.
It is so ORDERED.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 41  ___________________________
FOR THE ATOMIC SAFETY AND LICENSING BOARD41
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE  
                                                        /RA/
 
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland July 1, 2010 41 Copies of this Order were sent this date by Internet e-mail to: Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.;
Rockville, Maryland  
 
July 1, 2010
 
41 Copies of this Order were sent this date by Internet e-mail to: Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.;  
(5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Sean Murray, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.
(5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Sean Murray, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC.  )  Docket Nos. 50-247-LR
) 50-286-LR
) (Indian Point Nuclear Generating Station, )            Units 2 and 3)  )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing SCHEDULING ORDER  have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC  20555-0001 U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission
Mail Stop O-16C1 Washington, DC  20555-0001
U.S. Nuclear Regulatory Commission. Atomic Safety and Licensing Board Panel
Mail Stop T-3F23 Washington, DC  20555-0001 Administrative Judge
Lawrence G. McDade, Chair
Administrative Judge Richard E. Wardwell
Administrative Judge Kaye D. Lathrop
190 Cedar Lane E.
Ridgway, CO  81432 Joshua A. Kirstein, Law Clerk
U.S. Nuclear Regulatory Commission Office of the General Counsel
Mail Stop O-15D21 Washington, DC  20555-0001 Sherwin E. Turk, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.


UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of                                    )
                                                      )
ENTERGY NUCLEAR OPERATIONS, INC.                    )                Docket Nos. 50-247-LR
                                                      )                              50-286-LR
                                                      )
(Indian Point Nuclear Generating Station,            )
Units 2 and 3)                              )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing SCHEDULING ORDER have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate                      U.S. Nuclear Regulatory Commission Adjudication                                      Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission                  Mail Stop O-16C1 Washington, DC 20555-0001                            Washington, DC 20555-0001 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 E. Turk, Esq.
Administrative Judge                                Beth N. Mizuno, Esq.
Lawrence G. McDade, Chair                            David E. Roth, Esq.
Brian Harris, Esq.
Brian Harris, Esq.
Andrea Z. Jones, Esq.
Administrative Judge                                Andrea Z. Jones, Esq.
Michael G. Dreher, Esq.
Richard E. Wardwell                                  Michael G. Dreher, Esq.
Karl Farrar, Esq.  
Karl Farrar, Esq.
 
Administrative Judge                                Brian Newell, Paralegal Kaye D. Lathrop 190 Cedar Lane E.
Brian Newell, Paralegal  
Ridgway, CO 81432 Joshua A. Kirstein, Law Clerk
 
2  Docket Nos. 50-247-LR and 50-286-LR SCHEDULING ORDER William C. Dennis, Esq. Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue
 
White Plains, NY 10601 Andrew M. Cuomo, Attorney General  John J. Sipos, Assistant Attorney General Mylan L. Denerstein Deputy Assistant Attorney General Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York
 
The Capitol State Street Albany, New York  12224
 
Kathryn M. Sutton, Esq. Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
Counsel for Entergy Nuclear Operation, Inc.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC  20004
 
Joan Leary Matthews, Esq. Senior Attorney for Special Projects New York State Department
 
of Environmental Conservation 625 Broadway, 14 th Floor Albany, New York  12233-5500
 
Michael J. Delaney Vice President, Energy Department New York City Economic Development
 
Corporation (NYCEDC) 110 William Street New York, NY  10038
 
Robert D. Snook, Esq. Office of The Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT  06141-0120
 
Arthur J. Kremer, Chairman New York  Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016
 
Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
303 South Broadway, Suite 222 Tarrytown, NY  10591 Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY  10511-1298
 
Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater
 
112 Market Street
 
Poughkeepsie, NY  12601
 
Docket Nos. 50-247-LR and 50-286-LR SCHEDULING ORDER 
 
3  Counsel for the Town of Cortlandt Thomas F. Wood, Esq.
Daniel Riesel, Esq.
 
Jessica Steinberg, J.D.
Sive, Paget & Riesel, P.C.
 
460 Park Avenue New York, NY  10022 
 
Nancy Burton, Esq. Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP)
 
147 Cross Highway
 
Redding Ridge, CT 06876
 
Elise N. Zoli, Esq.
Goodwin Proctor, LLP Exchange Place
 
53 State Street  Boston, MA  02109 Gregory Spicer Assistant County Attorney
 
Of Counsel to Robert F. Meehan Westchester County Attorney 148 Martine Avenue, 6 th Floor White Plains, NY 10601
 
FUSE USA John LeKay Heather Ellsworth Burns-DeMelo Remy Chevalier Bill Thomas Belinda J. Jaques 351 Dyckman Street Peekskill, New York 10566
 
Westchester Citizens' Awareness Network (WestCan), Citizens Awareness Network, (CAN), et al Susan H. Shapiro, Esq. 21 Pearlman Drive Spring Valley, NY 10977
 
Philip Musegaas, Esq. Deborah Brancato, Esq. Riverkeeper, Inc.
828 South Broadway Tarrytown, NY  10591
 
Richard L. Brodsky, Esq. Member of Assembly 92 nd  Assembly District, State of New York
 
5 West Main Street
 
Suite 205
 
Elmsford, NY 10523
 
Sarah L. Wagner, Esq. Legislative Office Building, Room 422 Albany, NY 12248


        [Original signed by Christine M. Pierpoint]
Docket Nos. 50-247-LR and 50-286-LR SCHEDULING ORDER William C. Dennis, Esq.                    Andrew M. Cuomo, Attorney General Assistant General Counsel                  John J. Sipos, Assistant Attorney General Entergy Nuclear Operations, Inc.            Mylan L. Denerstein 440 Hamilton Avenue                        Deputy Assistant Attorney General White Plains, NY 10601                      Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq.                    Joan Leary Matthews, Esq.
Office of the Secretary of the Commission
Paul M. Bessette, Esq.                      Senior Attorney for Special Projects Martin J. ONeill, Esq.                    New York State Department Counsel for Entergy Nuclear Operation, Inc. of Environmental Conservation Morgan, Lewis & Bockius, LLP                625 Broadway, 14th Floor 1111 Pennsylvania Avenue, NW                Albany, New York 12233-5500 Washington, DC 20004 Michael J. Delaney                          Robert D. Snook, Esq.
Vice President, Energy Department          Office of The Attorney General New York City Economic Development          State of Connecticut Corporation (NYCEDC)                      55 Elm Street 110 William Street                          P.O. Box 120 New York, NY 10038                          Hartford, CT 06141-0120 Arthur J. Kremer, Chairman                  Stephen C. Filler, Board Member New York Affordable Reliable Electricity    Hudson River Sloop Clearwater, Inc.
Alliance (AREA)                          303 South Broadway, Suite 222 347 Fifth Avenue, Suite 508                Tarrytown, NY 10591 New York, NY 10016 Sean Murray, Mayor                          Manna Jo Greene, Environmental Director Kevin Hay, Village Administrator            Hudson River Sloop Clearwater Village of Buchanan                        112 Market Street Municipal Building                          Poughkeepsie, NY 12601 236 Tate Avenue Buchanan, NY 10511-1298 2


Dated at Rockville, Maryland this 1st day of July, 2010.}}
Docket Nos. 50-247-LR and 50-286-LR SCHEDULING ORDER Counsel for the Town of Cortlandt    Nancy Burton, Esq.
Thomas F. Wood, Esq.                  Connecticut Residents Opposed Daniel Riesel, Esq.                  to Relicensing of Indian Point (CRORIP)
Jessica Steinberg, J.D.              147 Cross Highway Sive, Paget & Riesel, P.C.            Redding Ridge, CT 06876 460 Park Avenue New York, NY 10022 Elise N. Zoli, Esq.                  Gregory Spicer Goodwin Proctor, LLP                  Assistant County Attorney Exchange Place                        Of Counsel to Robert F. Meehan 53 State Street                      Westchester County Attorney Boston, MA 02109                      148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA                              Westchester Citizens Awareness Network John LeKay                            (WestCan), Citizens Awareness Network, Heather Ellsworth Burns-DeMelo        (CAN), et al Remy Chevalier                        Susan H. Shapiro, Esq.
Bill Thomas                          21 Pearlman Drive Belinda J. Jaques                    Spring Valley, NY 10977 351 Dyckman Street Peekskill, New York 10566 Philip Musegaas, Esq.                Richard L. Brodsky, Esq.
Deborah Brancato, Esq.                Member of Assembly Riverkeeper, Inc.                    92nd Assembly District, 828 South Broadway                    State of New York Tarrytown, NY 10591                  5 West Main Street Suite 205 Elmsford, NY 10523 Sarah L. Wagner, Esq.
Legislative Office Building, Room 422 Albany, NY 12248
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of July, 2010.
3}}

Latest revision as of 22:38, 11 March 2020

LB Scheduling Order
ML101820387
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 07/01/2010
From: Lawrence Mcdade
Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
ASLBP 07-858-03-LR-BD01, RAS E-368
Download: ML101820387 (22)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-0247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) July 1, 2010 SCHEDULING ORDER1 This proceeding arises from a challenge to the application of Entergy Nuclear Operation, Inc. (Entergy or Applicant) to renew its operating licenses for Indian Point Nuclear Generating Units 2 and 3 in Buchanan, New York.2 On July 31, 2008, the Board issued a Memorandum and Order admitting the State of New York (New York),

Riverkeeper, Inc. (Riverkeeper), and Hudson River Sloop Clearwater, Inc. (Clearwater) as Parties to this proceeding and granting the State of Connecticut (Connecticut),

Westchester County (Westchester), New York City (through its Economic Development Corporation), the Town of Cortlandt (Cortlandt), and the Village of Buchanan (Buchanan) 1 If any deadline specified in this Scheduling Order falls on a Saturday, Sunday, or federal holiday, the deadline shall be the first business day thereafter.

2 See Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134, 42,134-35 (Aug. 1, 2007).

an option, which was subsequently accepted, to participate in this proceeding as interested governmental entities.3 The initial scheduling conference in this proceeding was conducted on January 14, 2009.4 Thereafter, on August 24, 2009, and April 19, 2010, the Board conducted a second and then a third scheduling conference.5 During the April 19th conference, the Board raised various scheduling issues and offered the participants in this proceeding the opportunity to address these issues in writing. These conferences and the subsequent written submissions6 have resulted in this Scheduling Order which, hereafter, will govern the course of this proceeding.

A. Final Environmental Impact Statement and Final Safety Evaluation Report.

During the scheduling conference on August 24, 2009, the NRC Staff advised the Board that it anticipated the Final Environmental Impact Statement (FEIS) would be 3

LBP-08-13, 68 NRC 43, 217 (2008); Licensing Board Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) (Dec. 18, 2008) at 2 (unpublished).

4 Tr. at 748-833 (Jan. 14, 2009). Scheduling Conferences are conducted pursuant to 10 C.F.R. §§ 2.329 and 2.332.

5 Tr. at 748-94 (Aug. 24, 2009) and Tr. at 795-900 (Apr. 19, 2010). We note that the page numbers for the January 14, 2009, and the August 24, 2009, transcripts overlap.

Apparently the court reporter was unaware of the January 14th conference when he began the August 24th conference at page 748. Accordingly, we will reference the date as well as the page number for transcript citations.

6 See Letter from Counsel, Entergy Nuclear Operations, Inc., to Atomic Safety and Licensing Board (May 4, 2010) (ADAMS Accession No. ML101310551); Letter from Intervenors, to Atomic Safety and Licensing Board (May 4, 2010) (ADAMS Accession No. ML101310601); Letter from Counsel, Entergy Nuclear Operations, Inc., to Atomic Safety and Licensing Board (June 16, 2010); NRC Staffs Comments On the Boards Draft Scheduling Order of June 2, 2010 (Jun. 16, 2010); The State of New York, Riverkeeper, and Hudson River Sloop Clearwaters Supplemental Joint Comments to Atomic Safety and Licensing Board Draft Scheduling Order (Jun 16, 2010); The State of New York, Riverkeeper, Inc., and Hudson River Sloop Clearwaters Joint Comments and Proposed Modifications to Atomic Safety and Licensing Board Draft Scheduling Order (Jun 16, 2010).

published in or around February 2010.7 Thereafter, the Board was advised by letter that the projected publication date for the FEIS had been changed to May 31, 2010,8 and during the April 19, 2010, status conference the NRC Staff stated that the projected date for the publication of the FEIS had been further delayed by several months and that late August 2010 was the expected date of issuance of the document.9 The Final Safety Evaluation Report (FSER) was published in November 2009.10 B. Mandatory Disclosures and Production of Hearing File.11 The regulations specify that, within thirty (30) days of the Boards ruling admitting contentions, the parties must make certain mandatory disclosures.12 In addition, Subpart L proceedings require the NRC Staff to produce a hearing file and make it available to all parties.13 In this proceeding the parties agreed to a disclosure schedule under which the initial phase of the mandatory disclosures would be completed by January 23, 2009, and information or documents subsequently developed or obtained would be disclosed in 7

Tr. at 755 (Aug. 24, 2009).

8 Letter from Sherwin E. Turk, Counsel for NRC Staff, to Atomic Safety and Licensing Board (Feb. 4, 2010) (ADAMS Accession No. ML1003511910).

9 Tr. at 802-03, 807-08 (Apr. 19, 2010); see also Letter from Sherwin E. Turk, Counsel for NRC Staff, to Atomic Safety and Licensing Board (May 27, 2010) (ADAMS Accession No. ML1014701750).

10 See Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Units Nos. 2 and 3, Docket Nos.

50-247 and 50-248, Entergy Nuclear Operations, Inc., NUREG-1930 (Vols. 1-2 Nov.

2009) (ADAMS Accession Nos. ML093170451 and ML093170671).

11 Except where otherwise specified herein, the term mandatory disclosures includes the witness lists and privilege logs required under 10 C.F.R. § 2.336(a) and (b).

12 10 C.F.R. § 2.336(a), (b).

13 10 C.F.R. § 2.1203(a).

monthly updates.14 At the April 19th conference, all parties stated that the disclosures to date had been made consistent with the approved agreement and that no problems had arisen in that regard.15 The obligation of all participants in this proceeding to update disclosures with newly acquired or developed information that is material to the issues presented in this proceeding continues until the Board has issued its initial decision in this proceeding.

However, once the hearing has commenced, updates are not to be made in monthly reports but must be made immediately upon the discovery of any new, relevant information.

C. Protective Order and Non-Disclosure Agreement.

Consistent with the cooperative spirit demonstrated to date in this proceeding, all parties agreed to a comprehensive Protective Order to facilitate the expeditious disclosure of sensitive information. After review, the Board approved and entered a Protective Order in the form agreed to by the parties.16 That Protective Order will continue to govern the disclosure and use of proprietary trade secret, commercial, and financial information in this proceeding unless it is expressly modified by order of the Board.

D. Disclosure Disputes and Motions to Compel.

If the need to file a motion to compel arises, it shall be filed not later than twenty (20) days after the occurrence or circumstance that gives rise to the motion or the date 14 Tr. at 770-72 (Jan. 14, 2009); Tr. at 756 (Aug. 24, 2009).

15 Tr. at 758 (Aug. 24, 2009); Tr. at 803-05 (Apr. 19, 2010). During the April 19th conference, the representative of Hudson River Sloop Clearwater, Inc. (Clearwater) stated that he was engaging in discussions regarding an unspecified disclosure issue.

Tr. at 803-04 (Apr. 19, 2010). To date, no discovery motion has been presented by Clearwater. Accordingly, the Board assumes that the issue has been resolved to the satisfaction of the parties. However, while the Board desires parties to resolve disputes if possible, if an impasse occurs, the Board will promptly resolve disclosure disputes.

16 Licensing Board Protective Order (Sept. 4, 2009) (unpublished).

of this Order, whichever is later. This additional time will be authorized for the filing of such motions in order to allow the parties a full opportunity to resolve such disputes before seeking intervention by the Board.17 E. Monthly Status Report.

Commencing on August 3, 2010, the NRC Staff shall submit a short report that includes an update of its estimate of the date on which the FEIS will be issued.

Thereafter, the NRC Staff shall update this status report on the first Tuesday of every month until the FEIS is issued. In addition, each party shall promptly inform the Board of any other developments that could potentially impact the schedule for this proceeding.

F. Additional Contentions.

1. Consolidated Briefing. A party seeking to file a motion or request for leave to file a new or amended contention shall file such motion and the substance of the proposed contention simultaneously. The pleading shall include a motion for leave to file a timely new or amended contention under 10 C.F.R. § 2.309(f)(2), or a motion for leave to file a nontimely new or amended contention under 10 C.F.R. § 2.309(c)(1) (or both), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Within twenty-five (25) days after service of the motion and proposed contention, any other party may file an answer responding to all elements of the motion and contention. Within seven (7) days of service of the answer, the movant may file a reply.18 17 Ordinarily, motions must be filed within ten (10) days after the occurrence or circumstance from which the motion arises. 10 C.F.R. § 2.323(a).

18 This procedure resolves difficulties that have arisen in several proceedings concerning the interplay of the sequence and timing for motions under 10 C.F.R. § 2.323 (motion, answer), and the sequence and timing for contentions under 10 C.F.R.

§ 2.309(h) (contention, answer, reply). Further, this procedure expedites the process by collapsing the two-step process established by the regulations into a single step.

2. Timeliness. A motion and proposed new contention specified in the preceding paragraph shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available. If filed thereafter, the motion and proposed contention shall be evaluated as a nontimely proposed contention under the rubric of 10 C.F.R.

§ 2.309(c)(1). If the movant is uncertain, it may file pursuant to both sections, and the motion should cover the three criteria of 10 C.F.R. § 2.309(f)(2) and the eight criteria of 10 C.F.R. § 2.309(c)(1) (as well as the six criteria of 10 C.F.R. § 2.309(f)(1)).

3. Selection of Hearing Procedures. A motion and proposed new contention specified in paragraph F.1 supra may address the selection of the appropriate hearing procedure for the proposed new contention.19 G. Pleadings and Motions - Generally.
1. Pleadings - Page Limitation. Motions and answers to motions shall not exceed twenty-five (25) pages in length (including signature page but excluding attachments, see paragraph M.5, infra), absent preapproval of the Board. A motion for preapproval to exceed this page limitation shall be submitted in writing no less than three (3) business days prior to the time the motion or answer is due to be filed. A motion to exceed this page limitation must (i) indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition; (ii) provide a good faith estimate of the number of additional pages that will be filed; and (iii) demonstrate good cause for being permitted to exceed the page limitation.
2. Response to New Facts or Arguments in Answer Supporting a Motion.

Except for a motion to file a new or amended contention as set forth in Section F supra 19 See 10 C.F.R. §§ 2.309(g) and 2.310(d).

or where there are compelling circumstances, the moving party shall have no right to reply to an answer or response opposing the granting of a motion.20 However, if any party files an answer that supports a motion, then a party opposing the motion may, within ten (10) days after service of that answer, file a reply to any new facts or arguments presented in that answer. Except as otherwise specified herein, no further supporting statements or responses thereto will be entertained.21

3. Motion for Leave to File Reply. Except as provided for in Section G.2.

above, no party may file a reply without prior leave from the Board. A motion for leave to file a reply shall be submitted not less than three (3) business days prior to the time the reply would be required to be filed.22 A motion to file a reply must demonstrate good cause for permitting the reply to be filed and must indicate whether the request is opposed or supported by the other participants in the proceeding and, if opposed, to succinctly describe the grounds stated for such opposition.

4. Motion for Extension of Time. Unless modified by the Board, or otherwise specified in this Order, a motion for extension of time shall be submitted in writing at least three (3) business days before the due date for the pleading or other submission for which an extension is sought. In addition to all other requirements, a motion for extension of time must (i) demonstrate appropriate cause that supports permitting the extension; and (ii) indicate whether the request is opposed or supported by the other 20 See 10 C.F.R. § 2.323(c).

21 This provision avoids unnecessary confusion and litigation that has arisen on this point in several cases. This provision is modeled on 10 C.F.R. § 2.710(a).

22 Although the agencys rules of practice regarding motions do not provide for reply pleadings, the Board will presume that for a reply to be timely it would have to be filed within seven (7) days of the date of service of the answer it is intended to address. See 10 C.F.R. § 2.309(h)(2).

participants in the proceeding; and, if opposed, succinctly describe the grounds stated for such opposition.

5. Answer Opposing a Motion to Exceed the Page Limitation, to File a Reply, or to Extend the Time for Filing a Pleading. An answer to a motion to exceed the page limit, to file a reply, or to extend the time for filing a pleading shall be filed and served within one (1) business day after the filing of the motion.
6. Motion Certification. In accordance with 10 C.F.R. § 2.323(b), a motion will be rejected if it does not include the following certification by the attorney or representative of the moving party:

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 my efforts have been unsuccessful. 23

7. Answer Certification. If the attorney or representative of a party is contacted pursuant to the consultation requirement of 10 C.F.R. § 2.323(b), then that person (or his or her alternate) shall make a sincere effort to make himself or herself available to listen and respond to the moving partys explanation, and to resolve the factual and legal issues raised in the motion. If the answering party is unaware of any attempt by the moving party to contact it, then the answer shall so certify. Otherwise, an answer will be rejected if it does not include the following certification by the contacted attorney or representative (or his or her alternate) of the answering party:

23 Although in general the movant has only ten (10) days within which to file its motion under 10 C.F.R. § 2.323(a), the Board believes that, in order to be sincere, the effort should be timely, i.e., not initiated at the last minute, but instead commenced sufficiently in advance to provide enough time for the possible resolution of the matter or issues in question. Cf. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-05, 63 NRC 116, 128-31 (2006).

If the initial consultation is initiated at a reasonable time and the parties believe that all or part of the matter may be resolved amicably if additional time for filing the motion were provided, the parties are encouraged to file a joint motion requesting an extension of time.

I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.

It is inconsistent with the dispute avoidance/resolution purposes of 10 C.F.R. § 2.323(b),

and thus insufficient, for the contacted attorney or representative to fail or refuse to consider the substance of the consultation attempt, or for the party to respond that it takes no position on the motion (or issues) and that it reserves the right to file a response to the motion when it is filed.

8. Supplemental Information. The certifications specified in the foregoing two subsections may be supplemented with any additional information that the representative or attorney deems necessary to ensure the accuracy of the certification or to explain the situation.

H. Dispositive Motions.

Dispositive motions, such as motions for summary disposition under 10 C.F.R.

§ 2.1205 and Subpart L evidentiary hearings under 10 C.F.R. § 2.1207, are both conducted on the basis of written pleadings, testimony, and exhibits. The Board finds that such motions for summary disposition, if filed late in the proceeding when the parties are heavily engaged in other tasks (e.g., preparing and submitting their pleadings, testimony, and exhibits immediately prior to the commencement of the evidentiary hearing), may impede and burden the litigants and the Board, rather than serve to narrow the scope or expedite the resolution of the adjudicatory proceeding.

Indeed, the Subpart L proceeding has two key advantages over motions for summary disposition. First, in a Subpart L evidentiary hearing, the Board may ask the witnesses to appear in person and answer questions, the answers to which might

significantly assist in resolving the matter.24 This is not possible when ruling on a motion for summary disposition. Second, in an evidentiary hearing, the Board may weigh competing evidence and expert opinion and may resolve/decide factual disputes, whereas this is not possible when ruling on motions for summary disposition, which are restricted to situations where there is no genuine issue as to any material fact.25 Further, a motion for summary disposition requires significant and often duplicative time and effort from all parties (and the Board), whereas, historically, Subpart L evidentiary hearings have proven to be short, often requiring a day or less to hear any particular contention. For the foregoing reasons, motions for summary disposition and other dispositive motions, while permissible, will be managed in this proceeding as follows:26

1. Certification. A dispositive motion (e.g., motion for summary disposition or motion to dismiss) will be rejected unless, in addition to the signature requirements of 10 C.F.R. § 2.304(d), the certifications required by 10 C.F.R. § 2.323(b), and this Order, 24 See 10 C.F.R. § 2.1207(b)(6). The Board may also allow parties to conduct cross-examination in Subpart L proceedings pursuant to 10 C.F.R. § 2.1204(b)(3).

25 10 C.F.R. § 2.710(d)(2). See also id. § 2.1205(c).

26 The Commission has stated that there may be times where dispositive motions should not be entertained because consideration of such motions would unduly delay or complicate proceedings and distract parties from preparation for a scheduled hearing.

Moreover, according to the Commission, there may be situations in which the time required to consider dispositive motions and to issue a ruling on these motions will substantially exceed the time needed to complete the hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2186 (Jan. 14, 2004). More recently, the Commission issued a notice in an expedited case prohibiting summary disposition motions from proceeding absent an affirmative finding by the Board that it would expedite the proceeding. Notice of Receipt of Application for License; Notice of Consideration of Issuance of License; Notice of Hearing and Commission Order and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation; In the Matter of Areva Enrichment Services, LLC (Eagle Rock Enrichment Facility), 74 Fed. Reg. 38,052, 38,057 (July 30, 2009) ([T]he Licensing Board shall not entertain motions for summary disposition under 10 C.F.R. 2.710, unless the Licensing Board finds that such motions, if granted, are likely to expedite the proceeding.).

the motion includes the following certification by the attorney or representative of the moving party:

I certify that this motion is not interposed for delay or any other improper purpose, that I believe in good faith that there is no genuine issue as to any material fact relating to this motion, and that the moving party is entitled to a decision as a matter of law, as required by 10 C.F.R.

§§ 2.1205 and 2.710(d).27

2. Additional Time for Dispositive Motions. In light of the gravity and importance of dispositive motions, and in order to accommodate careful consultation as specified above, dispositive motions may be filed up to thirty (30) days after the occurrence or circumstance from which the motion arises (rather than the ten (10) day time frame established by 10 C.F.R. § 2.323(a)), provided that the moving party commences sincere efforts to contact and consult all other parties within fifteen (15) days of the occurrence or circumstance, and the accompanying certification so states.28
3. Answers. In accordance with 10 C.F.R. § 2.1205(b), an answer supporting or opposing a motion for summary disposition or other dispositive motion shall be filed within twenty (20) days after service of the motion. If the answering party concludes that additional time is needed in order to prepare an appropriate answer, it 27 See 10 C.F.R. § 2.304(d) (representations of a signatory to a pleading); cf. Fed. R.

Civ. P. 11(b).

28 At the April 19, 2010 conference, Entergy indicated that it intended to supplement its application in a manner that, in its view, could impact contentions NYS-25 and NYS-26/26A. Tr. at 806-07 (Apr. 19, 2010). While neither setting specific deadlines, nor giving specific guidance with regard to those anticipated submissions other than what is contained in section H, we urge Entergy to file any supplements to its Application, and then file any motions that may arise from those supplements with all deliberate speed in order to minimize any delay that may otherwise result. Specifically, we expect that, within the context of the schedule outlined in this Order, the intervenors will have a fair opportunity to respond to those motions before the publication of the FEIS. If the Board determines that the intervenors do not have sufficient time under the schedule set out in this order to asses new information on critical safety issues prior to addressing dispositive motions, the Board shall grant the intevenors such additional time as we deem appropriate. Such action, however, would result in the delay of this proceeding.

shall file a motion for additional time within which to respond to the dispositive motion within ten (10) days after service thereof.

4. Deadline. With the exceptions noted below, absent express authorization from the Board, all motions for summary disposition based on information that is now available, including motions based on the FSER, shall be filed on or before July 30, 2010. In addition, no motion for summary disposition or other dispositive motion relating to a National Environmental Policy Act (NEPA) contention may be filed more than thirty (30) days after the NRC Staff publishes the FEIS. With regard to any motion for summary disposition filed after that date, the moving party shall identify and explain the new information or event that gave rise to the motion and the reason why the motion could not be filed by the due date. If the Board determines that the motion was not filed in a timely manner, or that its consideration would delay the hearing in this proceeding, the motion will be summarily denied.

I. Clarification, Simplification, and Amendment of the Pleadings.

The Board encourages the parties and NRC Staff to continue to consider and pursue such measures as are specified in 10 C.F.R. §§ 2.329(c)(1)-(3) and 2.338. We will revisit these issues throughout this proceeding. For example, if it appears that stipulations or admissions of fact can narrow or eliminate factual or legal disputes, the parties and the NRC Staff are encouraged to consult with each other and/or file motions to pursue the same.

J. Consolidation of the Safety and Environmental Issues for Hearing.

The Board does not believe that a bifurcated hearing is practicable in this proceeding. Accordingly, the Board contemplates a single evidentiary hearing that will

address both environmental and safety contentions. At this point the Board anticipates that, once begun, the hearing will continue from day to day until it is concluded.29 K. Evidentiary Hearings Filings.

Pursuant to 10 C.F.R. § 2.1207, a number of documents must be filed immediately prior to the evidentiary hearing. The Board has determined that the earliest practicable Trigger Date for the initiation of such filings is the date when the NRC Staff makes the FEIS publicly available and provides a copy of it to all participants in this proceeding.30 However, if new or amended contentions are filed that are based on the FEIS, the trigger date will be the day on which the last timely Reply arising from the filing of the new or amended contentions is filed.31

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 29 We do not, however, anticipate conducting the hearing on Saturday, Sunday, or legal holidays.

30 10 C.F.R. § 2.332(d) prohibits the commencement of evidentiary hearings on environmental issues until after issuance of the FEIS. It also prohibits commencement of evidentiary hearings on safety issues until after issuance of the FSER, unless the Board affirmatively finds that the safety hearing can be held earlier and still expedite the ultimate resolution of the case.

31 See Section F.1. supra.

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). The written statement of position shall be in the nature of a response brief that identifies the legal and factual weaknesses or, in the event that the NRC Staff supports a contention, the strengths in the intervenors position, identifies witnesses and evidence, and specifies the precise purpose of witnesses and evidence. This testimony shall also 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 are relying upon for their statements of 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.
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.

4. Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities under paragraphs K.1 or K.3 or by Entergy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3. Answers shall be filed no later than ten (10) days after service of such motions.32
5. Proposed Questions for the Board to Ask. 33 No later than thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3, all parties may file proposed questions for the Board to consider propounding to the direct or rebuttal witnesses, pursuant to 10 C.F.R. § 2.1207(a)(3)(i) and (ii). The direct or rebuttal examination plans should contain a brief description of the issue or issues that the party contends need further examination, the objective of the examination, and the 32 A Motion in limine or to strike regarding a submission made pursuant to Section K.1.

must be filed within thirty (30) days after the Section K.1. submission is made. Likewise a Motion regarding a submission made pursuant to Section K.2. must be filed within thirty (30) days after the Section K.2. submission is made, etc.

33 A party should cover all essential points in the direct and rebuttal testimony that it prefiles for each of its own witnesses. The prefiled proposed questions should not focus on a partys own witnesses, but should instead be directed to the witnesses of the other parties.

proposed line of questioning (including specific questions) that may logically lead to achieving the objective. The proposed direct examination questions and plans should be filed in camera and not served on the NRC Staff or any other party. Such proposals shall be submitted only to the Board, and the Board will not disclose such proposals to the other parties, except in any hearing conducted in furtherance of such matters.34

6. Motions for Cross-Examination.35 No later than thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3, all parties shall file any motions or requests to permit that party to conduct cross-examination of a specified witness or witnesses, together with the associated cross-examination plan(s), pursuant to 10 C.F.R. § 2.1204(b). The motion for cross-examination shall be filed with all parties, but the cross-examination plan itself should be filed in camera and not be served on the NRC Staff or any other party.36
7. Witnesses with Written Testimony Must be Available in Person. Unless the Board expressly provides otherwise, each party (including the NRC Staff) must, at its own expense and effort, assure that each person for whom it submitted written direct or 34 The proposed questions will, however, be provided to the Commissions Secretary for inclusion in the official record of the proceeding when the Board issues its Initial Decision. 10 C.F.R. § 2.1207(a)(iii).

35 The basis for permitting cross-examination in Subparts L and G arises from § 556(d) of the Administrative Procedure Act. Progress Energy Florida, Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC 51, 145 (2009) (citing Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338, 351 (1st Cir. 2004); 69 Fed. Reg. 2182, 2195-96 (Jan. 14, 2004)).

36 These prepared cross-examination plans will be kept in confidence by the Board until the issuance of the Boards Initial Decision, at which time they will be provided to the Commissions Secretary for inclusion in the official record of this proceeding. 10 C.F.R.

§ 2.1204(b)(2).

rebuttal testimony attends the evidentiary hearing in person and is available to testify and to respond orally to questions.37

8. Evidentiary Hearing. Although the specific time and date for the evidentiary hearing will be determined later, the Board currently contemplates that it will commence between thirty (30) and sixty (60) days after the service of the material specified in paragraphs K.5 and K.6.

L. Requests for Subpart G Proceeding Based on Disclosures of Eyewitnesses.

A request that a contention be handled pursuant to Subpart G procedures based on 10 C.F.R. § 2.310(d) (which focuses, inter alia, on issues where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness) shall be filed within thirty (30) days after service of the last materials submitted under paragraph K.2 or, if applicable, K.3.

M. Attachments to Motions and other Pleadings.

1. Documents Must be Attached. If written testimony, an affidavit, or a motion or pleading of any kind seeks to have the Board rely on the contents of a report, website, NUREG, guidance document, or other document of any kind (other than to a statute, regulation, case, or other legal authority), then a copy of that document, or the relevant portion thereof, shall be submitted with and attached to the pleading. The pleading must cite to the specific page or section of the document that the offering party considers to be relevant.
2. Exception. If the following documents are publicly available on the NRC ADAMS system, then they do not need to be attached to written testimony, an affidavit, a 37 If, after reading the prefiled testimony, the Board concludes that is has no questions for a particular witness and has not granted a motion to allow cross-examination of that witness, it will so advise the parties and that individual will not need to attend the evidentiary hearing. Likewise, if the Board concludes that it has no questions for any witness concerning a particular contention, it will so advise the parties and will resolve that contention pursuant to 10 C.F.R. § 2.1208.

motion, or pleading: Entergys Application and Environmental Report (ER), the FEIS, the FSER, and pleadings previously filed in this proceeding.38 With regard to such documents, it is sufficient if the offering party clearly identifies the document (including its date and revision number, if any), provides its ADAMS ML number, and cites to the specific page or section that the offering party considers to be relevant. All other documents (or the relevant portions thereof), even if they can be found in ADAMS, shall be attached to the pleading or they will not be considered by the Board.39

3. Attached Documents are Attachments. All documents referred to in written testimony and affidavits shall be labeled and referred to as Exhibits, while documents referred to in motions and pleadings shall be labeled and referred to as Attachments, not exhibits.40
4. Designation and Marking of Attachments. A separate numeric designation shall be assigned by contention to each Attachment (e.g., New York State Contention 17, Attachment 1). With regard to Attachments covered by paragraph M.1, the numeric designation shall be prominently marked either on the first page of the appended document or on a cover/divider sheet in front of the appended document.
5. Page Limits for Attachments. Attachments are not subject to the page limitation set forth in Section G.1 supra.

38 The offering party must, however, clearly identify the previously filed document, the party that filed it, the date filed, and cite to the specific page or pages that the offering party considers to be relevant.

39 The NRCs E-Filing guidance document has instructions concerning the filing of copyrighted material (at page 21). See http://www.nrc.gov/site-help/e-submittals.html (under Adjudicatory Submissions, Related Instructional Resources, access link for Guidance for Electronic Submissions to the NRC, Revision 6).

40 The term exhibit is reserved for use as a designation for those items that are submitted pursuant to Section K as proffered evidence for the evidentiary hearing.

N. Findings of Fact and Conclusions of Law.

All parties shall submit proposed Findings of Fact and Conclusions of Law within sixty (60) days after the close of the evidentiary hearing in this proceeding. Thereafter, within thirty (30) days after service of the proposed Findings of Fact and Conclusions of Law, all parties may submit responses thereto.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD41

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland July 1, 2010 41 Copies of this Order were sent this date by Internet e-mail to: Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.;

(5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Sean Murray, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR

) 50-286-LR

)

(Indian Point Nuclear Generating Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing SCHEDULING ORDER have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 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 E. Turk, Esq.

Administrative Judge Beth N. Mizuno, Esq.

Lawrence G. McDade, Chair David E. Roth, Esq.

Brian Harris, Esq.

Administrative Judge Andrea Z. Jones, Esq.

Richard E. Wardwell Michael G. Dreher, Esq.

Karl Farrar, Esq.

Administrative Judge Brian Newell, Paralegal Kaye D. Lathrop 190 Cedar Lane E.

Ridgway, CO 81432 Joshua A. Kirstein, Law Clerk

Docket Nos. 50-247-LR and 50-286-LR SCHEDULING ORDER William C. Dennis, Esq. Andrew M. Cuomo, Attorney General Assistant General Counsel John J. Sipos, Assistant Attorney General Entergy Nuclear Operations, Inc. Mylan L. Denerstein 440 Hamilton Avenue Deputy Assistant Attorney General White Plains, NY 10601 Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq. Joan Leary Matthews, Esq.

Paul M. Bessette, Esq. Senior Attorney for Special Projects Martin J. ONeill, Esq. New York State Department Counsel for Entergy Nuclear Operation, Inc. of Environmental Conservation Morgan, Lewis & Bockius, LLP 625 Broadway, 14th Floor 1111 Pennsylvania Avenue, NW Albany, New York 12233-5500 Washington, DC 20004 Michael J. Delaney Robert D. Snook, Esq.

Vice President, Energy Department Office of The Attorney General New York City Economic Development State of Connecticut Corporation (NYCEDC) 55 Elm Street 110 William Street P.O. Box 120 New York, NY 10038 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman Stephen C. Filler, Board Member New York Affordable Reliable Electricity Hudson River Sloop Clearwater, Inc.

Alliance (AREA) 303 South Broadway, Suite 222 347 Fifth Avenue, Suite 508 Tarrytown, NY 10591 New York, NY 10016 Sean Murray, Mayor Manna Jo Greene, Environmental Director Kevin Hay, Village Administrator Hudson River Sloop Clearwater Village of Buchanan 112 Market Street Municipal Building Poughkeepsie, NY 12601 236 Tate Avenue Buchanan, NY 10511-1298 2

Docket Nos. 50-247-LR and 50-286-LR SCHEDULING ORDER Counsel for the Town of Cortlandt Nancy Burton, Esq.

Thomas F. Wood, Esq. Connecticut Residents Opposed Daniel Riesel, Esq. to Relicensing of Indian Point (CRORIP)

Jessica Steinberg, J.D. 147 Cross Highway Sive, Paget & Riesel, P.C. Redding Ridge, CT 06876 460 Park Avenue New York, NY 10022 Elise N. Zoli, Esq. Gregory Spicer Goodwin Proctor, LLP Assistant County Attorney Exchange Place Of Counsel to Robert F. Meehan 53 State Street Westchester County Attorney Boston, MA 02109 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA Westchester Citizens Awareness Network John LeKay (WestCan), Citizens Awareness Network, Heather Ellsworth Burns-DeMelo (CAN), et al Remy Chevalier Susan H. Shapiro, Esq.

Bill Thomas 21 Pearlman Drive Belinda J. Jaques Spring Valley, NY 10977 351 Dyckman Street Peekskill, New York 10566 Philip Musegaas, Esq. Richard L. Brodsky, Esq.

Deborah Brancato, Esq. Member of Assembly Riverkeeper, Inc. 92nd Assembly District, 828 South Broadway State of New York Tarrytown, NY 10591 5 West Main Street Suite 205 Elmsford, NY 10523 Sarah L. Wagner, Esq.

Legislative Office Building, Room 422 Albany, NY 12248

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of July, 2010.

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