ML11290A295

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

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

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR; 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. October 17, 2011

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x STATE OF NEW YORK'S MOTION FOR CLARIFICATION (Board's October 7, 2011 Order (Procedures for Evidentiary Filings))

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

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

While the October 7, 2011 Order does not expressly reference or amend the July 1, 2010 Scheduling Order, the State is concerned that the October 7, 2011 Order could be read as envisioning a different organizational and filing format from that provided in the July 1, 2010 Scheduling Order. The October 7, 2011 Order could be read as anticipating one single omnibus submission from each party commencing with a single exhibit list followed by one combined statement of position for all contentions, to be followed by testimony on all contentions, to be 2 followed by exhibits on all contentions. Oct ober 7, 2011 Order at ¶ A1. Alternatively, the October 7, 2011 Order could be read as silent on this point, in which case the July 1, 2010 Order's contention-by-contention process would remain in place.

The State requests that the Board clarify whether the October 7, 2011 order modified the filing and organizational proce dures established by the July 1, 2010 Order. The State also respectfully requests and recommends that the Board retain th e contention-by-contention basis established by the July 1, 2010 or der for the below reasons. First, the State anticipates that the pre-filed submissions on the State's admitted contentions (and the combined Riverkeeper's TC

-1B contention) will be extensive and involve testimony from various experts and numerous exhibits.

1 In addition, with respect to a few contentions, it is possible that Riverkeeper or the State may reference material that Entergy or Westinghouse has designated as containing confidential material, which, in turn, will involve additional filings and procedures in accordance with the Board's Protective Order. Permitting parties to make their presentations on a contention-by-contention basis will likely allow the State to complete the filing of some of its pre-filed submissions for certain contentions in the days leading up to the filing deadline, thus reducing demands and stress on computer capabilities, the EIE electronic filing system, a nd paralegals and attorneys on the day of the deadline. Conversely, in this proceeding -- where there are many admitted contentions and amendments thereto -- placing the entirety of the State's multi-contention submissions in a single electronic filing where each document is "linked" to all other documents may cause unintended challenges on the filing date.

2 Allowing smaller-sized filings on a contention-by-contention basis may

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

2 Under the EIE process, each document that is submitted by a party must be uploaded 3alleviate these concerns. Second, the State has been operating in accordance with the contention-by-contention format for the past 16 months; moving to a different organizational and filing format will complicate the State's preparation. REGULATORY BACKGROUND For the convenience of the Board and th e parties, the State provides the following excerpts of the July 1, 2010 Scheduli ng Order and the October 7, 2011 Order. The Board's July 1, 2010 Scheduling Order provides:

K. Evidentiary Hearings Filings.

1. Initial Statements of Position, Testimony, Affidavits, and Exhibits. Unless modified by the Board due to the admission of new or amended contentions or for some other due cause, ni nety (90) days after the trigger date, the intervenors shall file their initial written statement of position, written testimony with supporting affidav its, and exhibits, on a contention-by-contention basis, pursuan t 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 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 witn esses 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).

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

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3. Optional Revised Statement of Position by Intevenors and Submissions by Interested Governmental Entities. The Intervenors may, but need not, submit a revised statement of position and rebuttal testimony with supporting affidavits and exhibits in response to the materials submitted by Entergy and/or the NRC Staff. If they choose to do so, they shall notify all parties of their intenti on no later than ten (1

0) 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 En tergy and/or the NRC Staff under paragraph K.2. Such submissions shall be made on a contention-by-

contention basis. If interested governmental entities submit written statements of position and/or written testimony, rebuttal may be submitted within thirty (30) days of such submissions.

July 1, 2010 Scheduling Order (excerpt).

The Board's October 7, 2011 Order (Procedur es for Evidentiary Filings) provides:

A. Format of Evidentiary Submissions

1. Each participant's evidentiary submission shall begin with an exhibit list containing four columns: the exhibit's number, the

contention(s) addressed by the exhibit, the exhibit's name (including date of creation, if useful), and the exhibit's submission date.

3 That exhibit list will constitute each respective participant's first exhibit. Each participant's second exhibit will consist of its statement of position and the third exhibit will be the pre-filed testimony (which, at the participant's option, may be broken into more than one exhibit). This will be followed in numerical order by each of the exhibits supporting that testimony.

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

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

5 Respectfully submitted, Signed (electronically) by

_______________________

John J. Sipos Assistant Attorneys General Office of the Attorney General of the State of New York

The Capitol

Albany, New York 12224

(518) 402-2251

Dated: October 17, 2011 10 C.F.R. § 2.323(b) Certification I certify that I have made a sincere effort to c ontact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that NRC Staff, Entergy, Riverkeeper , and Clearwater do not oppose the request for clarification.

Signed (electronically) by

______________________

John J. Sipos

October 17, 2011 1UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR and 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. October 17, 2011

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

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike

Rockville, MD 20852-2738

Lawrence.McDade@nrc.gov

Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov

Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission 190 Cedar Lane E.

Ridgway, CO 81432 Kaye.Lathrop@nrc.gov

Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Josh Kirstein, Esq. Law Clerk Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Josh.Kirstein@nrc.gov

2 Office of Commission Appellate Adjudication

U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738 ocaamail@nrc.gov

Office of the Secretary Attn: Rulemaking and Adjudications Staff

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

hearingdocket@nrc.gov

Sherwin E. Turk, Esq.

David E. Roth, Esq.

Andrea Z. Jones, Esq.

Beth N. Mizuno, Esq.

Brian G. Harris, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike

Rockville, MD 20852-2738

sherwin.turk@nrc.gov

andrea.jones@nrc.gov

david.roth@nrc.gov beth.mizuno@nrc.gov

brian.harris@nrc.gov

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW

Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com

Martin J. O'Neill, Esq.

Morgan, Lewis & Bockius LLP

Suite 4000

1000 Louisiana Street

Houston, TX 77002 martin.o'neill@morganlewis.com

Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109 ezoli@goodwinprocter.com

William C. Dennis, Esq.

Assistant General Counsel

Entergy Nuclear Operations, Inc.

440 Hamilton Avenue

White Plains, NY 10601 wdennis@entergy.com

Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General

State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120

robert.snook@ct.gov

Melissa-Jean Rotini, Esq.

Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building

148 Martine Avenue, 6th Floor

White Plains, NY 10601 MJR1@westchestergov.com

Daniel E. O'Neill, Mayor James Seirmarco, M.S.

Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298

vob@bestweb.net

3 Daniel Riesel, Esq. Thomas F. Wood, Esq.

Victoria Shiah, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022 driesel@sprlaw.com vshiah@sprlaw.com

Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental

Protection

59-17 Junction Boulevard

Flushing, NY 11373

(718) 595-3982

mdelaney@dep.nyc.gov Manna Jo Greene, Director Karla Raimundi, Environmental Justice

Associate Stephen Filler, Esq., Board Member

Hudson River Sloop Clearwater, Inc.

724 Wolcott Avenue

Beacon, NY 12508 Mannajo@clearwater.org

karla@clearwater.org stephenfiller@gmail.com

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562

phillip@riverkeeper.org dbrancato@riverkeeper.org

Signed (electronically) by

____________________________________ John J. Sipos Assistant Attorney General State of New York (518) 402-2251

Dated at Albany, New York

this 17th day of October 2011