ML110980760
| ML110980760 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/08/2011 |
| From: | Mizuno B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 50-247-LR, 50-286-LR, RAS E-503 | |
| Download: ML110980760 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ENTERGY NUCLEAR OPERATIONS, INC. Docket Nos. 50-247-LRl286-LR (Indian Point Nuclear Generating Units 2 and 3 NRC STAFF'S ANSWER TO APPLICANT'S MOTION TO STRIKE PORTIONS OF HUDSON RIVER SLOOP CLEARWATER. INC.'S REPLY AND ASSOCIATED DECLARATIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission
("NRC Staff' or "Staff') hereby submits its answer to "Applicant's Motion to Strike Portions of Hudson River Sloop Clearwater, Inc.'s Reply and Associated Declarations" ("Motion" or "Motion to Strike") filed by Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant") on March 29, 2011.1 In its Motion, Entergy seeks to strike the new declarations and supporting documents attached to the "Combined Reply to NRC Staff and Entergy's Answers in Opposition to Clearwater's Motion for Leave and Petition to Amend Contention EC-3 "("Reply"), filed by Hudson River Sloop Clearwater, Inc. ("Clearwater') on March 21, 2011 and the portions of the Reply that discuss those new declarations. For the reasons stated in the Applicant's Motion and the reasons set forth below, the Staff supports the Applicant's Motion and recommends that it be granted.
1 Applicant's Motion to Strike Portions of Hudson River Sloop Clearwater, Inc.'s Reply and Associated Declarations (March 29, 2011).
-2 BACKGROUND On November 30,2007, Clearwater filed a petition to intervene in this license renewal proceeding and filed six environmental contentions. The Atomic Safety and Licensing Board
("Board") re-framed Clearwater Contention EC-3 and admitted it. The contention, as admitted by the Board, asserts: "The EJ analysis in the [Applicant's Environmental Report] does not adequately assess the impacts of Indian Point on the minority, low-income and disabled populations in the surrounding area.,,2 On February 3, 2011, Clearwater sought leave to amend Contention EC-3 in light of the issuance of the Final Supplemental Environmental Impact Statement ("FSEIS") concerning license renewal of Indian Point Units 2 and 3, issued by the Staff on December 3, 2010. 3 Clearwater submitted no exhibits or declarations in support of its amended contention. The Staff and the Applicant filed their answers to Clearwater's amendment to Contention EC-3 on March 7, 2011. Clearwater's reply to the Staff's and Applicant's answers, filed on March 21, 2011, included new declarations by Drew Claxton and Stephen Filler.4 The Stephen Filler declaration was accompanied by seventeen new exhibits.
On March 29, 2011, the Applicant filed its Motion to Strike the declarations, exhibits, and the portions of Clearwater's reply that discuss the new declarations and exhibits.
2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 219 (July 31, 2008).
3 NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3" (December 2010).
4 Declaration of Drew Claxton Regarding Hudson River Sloop Clearwater, Inc.'s Combined Reply to NRC Staff and Entergy's Answer to Amended Environmental Justice Contention, March 21, 2011
("Claxton Declaration"); Declaration of Stephen Filler in Support of Hudson River Sloop Clearwater, Inc.'s Combined Reply to NRC Staff and Entergy's Answer to Amended Environmental Justice Contention (EC 3), March 21,2011 ("Filler Declaration").
-3 DISCUSSION I. Legal Standard for Content of a Reply It is well established that a reply to an answer to a petition to intervene or a contention may not raise new arguments, new contention bases or new issues in an attempt to cure a defective petition or contention. See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-225 (2004), reconsideration denied, CLI-04-35, 60 NRC 619 (2004); Nuclear Management Co. (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006). The Commission requires strict adherence to contention admissibility standards, demanding discipline and preparedness on the part of petitioners. LES, CLI-04-25, 60 NRC at 224-225. Because contentions must be based on documents or other information available at the time the petition is filed, as set forth in 10 C.F.R. § 2.309(f)(2), untimely attempts to amend a defective, original petition or contention are to be rejected as failing to satisfy the late-filing factors in 10 C.F.R. §§ 2.309(c) and (f)(2). See Palisades, CLI-06-17, 63 NRC at 732. Thus, the Commission has observed that allowing petitioners to use "reply briefs to provide, for the first time, the necessary threshold support for contentions ... would effectively bypass and eviscerate [the Commission's] rules governing timely filing, contention amendment, and submission of late-filed contentions." LES, CLI-04-35, 60 NRC at 623. Further, raising new claims in a reply unfairly deprives other participants of an opportunity to rebut the claims.
Palisades, CLI-06-17, 63 NRC at 732.
Likewise, the Commission has held that petitioners may not use a reply to reinvigorate thinly supported contentions. LES, CLI-04-25, 60 NRC at 224. Nor may petitioners "initially file vague, unsupported, and generalized allegations and simply recast, support or cure them later."
LES, CLI-04-35, 60 NRC at 622. Although petitioners are not required "to prove their case, or to provide an exhaustive list of possible bases," they are required to provide "sufficient alleged factual or legal bases to support the contention, and to do so at the outset." Id.; see also
-4 Dominion Nuclear Connecticut. Inc. (Millstone Power Station, Unit 3) CLI-08-17. 68 NRC 231, 237 n.27 (2008).
In applying these standards, Boards have struck. or declined to consider, new information and argument offered for the first time in a reply. See e.g. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),
LBP-06-20, 64 NRC 131, 198-199 (2006); PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2), LPB-07-04, 65 NRC 281, 301-302 (2007).
II. Clearwater's New Information and Arguments Should Be Stricken Clearwater's reply and the new declarations, exhibits and argument submitted therein do not address the issues raised in the answers filed by the Applicant and the Staff, and do not constitute a permissible reply. In its Reply, Clearwater provided new information in the form of declarations by Mr. Filler and Mr. Claxton. Mr. Filler's declaration proffered information regarding a number of environmental groups and was accompanied by seventeen new exhibits.
Mr. Claxton's declaration proffered information regarding minority and low-income populations in Peekskill, New York and questions the feasibility of evacuating residents from schools, nursing homes, assisted living facilities, group homes and shelters, hospitals, and correctional facilities and jails. In addition, Mr. Claxton asserted that Peekskill has a higher percentage of residents without private transportation than higher-income communities. Based on Mr. Claxton's declaration, Clearwater argued that the NRC Staff should assess the disparate impact of a severe accident on the minority and low-income population that have reduced access to private transportation.
Clearwater's submission of these new declarations, exhibits and arguments constitutes an impermissible attempt to expand the bases and scope of Contention EC-3. Clearwater could have submitted all of the information in the Filler and Claxton Declarations and the new exhibits when it filed its amendment to Contention EC-3 in February 2011; had it done so, the Staff and
-5 the Applicant would have then had an opportunity to address the admissibility and timeliness of that additional material. Clearwater should not be allowed to use its Reply brief to expand the basis for its contention. Mil/stone, CLI-08-17, 68 NRC at 237 n.27. Furthermore, Contention EC-3, as originally filed, as re-framed by the Board, and as proffered in amended form in February 2011, did not include the argument regarding reduced access to private transportation.
In accordance with established Commission rulings, Clearwater's new argument cannot be raised in a reply. LES, CLI-04-25, 60 NRC at 224-225. To allow this information and argument in at this point, when the other parties have no opportunity to address them in a substantive way, would be unfair. Palisades, CLI-06-17, 63 NRC at 732. Moreover, Clearwater's submission of its new information and argument in its reply is untimely, as all such information and argument were required to be filed as part of its FSEIS contentions on February 3, 2011.
CONCLUSION The Applicant's Motion correctly observes that the Reply filed by Hudson River Sloop, Clearwater, Inc. includes new arguments and information in support of Clearwater Contention EC-3 that are impermissible in a reply brief. Accordingly, the Staff submits that the Applicant's Motion to Strike should be granted.
Beth N. Mizuno Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop 0-15021 Washington, DC 20555-0001 (301) 415-3122 Beth.Mizuno@nrc.gov Dated at Rockville, Maryland this 8th day of April 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LRl286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO APPLICANT'S MOTION TO STRIKE PORTIONS OF HUDSON RIVER SLOOP CLEARWATER, INC.'S REPLY AND ASSOCIATED DECLARATIONS," dated April 8, 2011, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, or by deposit in the U.S. Postal Service, as indicated by an asterisk, with copies by electronic mail, this 8th day of April, 2011:
Lawrence G. McDade, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adj udication Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAIL.resource@nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Richard. Wardwell@nrc.gov E-mail: Hearing. Docket@nrc.gov Dr. Kaye D. Lathrop Josh Kirstein, Esq.
Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgway, CO 81432 U. S, Nuclear Regulatory Commission E-mail: Kaye. Lathrop@nrc.gov Washington, D.C. 20555-0001 E-Mail: Josh.Kirstein@nrc.gov
-2 Atomic Safety and Licensing Board Panel Melissa-Jean Rotini, Esq.
U.S. Nuclear Regulatory Commission Assistant County Attorney Mail Stop: T -3 F23 Office of Robert F. Meehan, Esq.
Washington, DC 20555-0001 Westchester County Attorney (Via Internal Mail Only) 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-Mail: MJR1@westchestergov.com Kathryn M. Sutton, Esq.
- John J. Sipos, Esq.
- Paul M. Bessette, Esq. Charlie Donaldson, Esq.
Jonathan Rund, Esq. Assistants Attorney General Morgan, Lewis & Bockius, LLP New York State Department of Law 1111 Pennsylvania Avenue, NW Environmental Protection Bureau Washington, D.C. 20004 The Capitol E-mail: ksutton@morganlewis.com Albany, NY 12224 E-mail: pbessette@morganlewis.com E-mail: John.Sipos@ag.ny.gov E-mail: jrund@morganlewis.com Janice A. Dean, Esq.
- Martin J. O'Neill, Esq.* Assistant Attorney General, Morgan, Lewis & Bockius, LLP Office of the Attorney General 1000 Louisiana Street, Suite 4000 of the State of New York Houston, TX 77002 120 Broadway, 25th Floor E-mail: martin.o.neill@morganlewis.com New York, NY 10271 E-mail: Janice.Dean@ag.ny.gov Elise N. loli, Esq.* Joan Leary Matthews, Esq.
- Goodwin Procter, LLP Senior Attorney for Special Projects Exchange Place New York State Department of 53 State Street Environmental Conservation Boston, MA 02109 Office of the General Counsel E-mail: ezoli@goodwinprocter.com 625 Broadway, 14th Floor Albany, NY 12233-1500 E-mail: jlmatthe@gw.dec.state.ny.us William C. Dennis, Esq.* John Louis Parker, Esq.
- Assistant General Counsel Office of General Counsel, Region 3 Entergy Nuclear Operations, Inc. New York State Department of 440 Hamilton Avenue Environmental conservation White Plains, NY 10601 21 South Putt Corners Road E-mail: wdennis@entergy.com New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us
-3 Daniel E. O'Neill, Mayor* Manna Jo Greene*
James Seirmarco, M.S. Stephen Filler Village of Buchanan Hudson River Sloop Clearwater, Inc.
Municipal Building 724 Wolcott Avenue Buchanan, NY 10511-1298 Beacon, NY 12508 E-mail: vOb@bestweb.net E-mail: mannajo@clearwater.org E-mail: smurray@villageofbuchanan.com E-mail: stephenfiller@gmail.com Robert Snook, Esq.* Daniel Riesel, Esq.
- Office of the Attorney General Thomas F. Wood, Esq.
State of Connecticut Ms. Jessica Steinberg, J.D.
55 Elm Street Sive, Paget & Riesel, P.C.
P.O. Box 120 460 Park Avenue Hartford, CN 06141-0120 New York, NY 10022 E-mail: robert.snook@ct.gov E-mail: driesel@sprlaw.com jsteinberg@sprlaw.com Phillip Musegaas, Esq.
- Deborah Brancato, Esq. Ross H. Gould, Esq.*
Riverkeeper, Inc. 270 Route 308 20 Secor Road Rhinebeck, NY 12572 Ossining, NY 10562 T: 917-658-7144 E-mail: phillip@riverkeeper.org E-mail: rgouldesg@gmail.com dbrancato@riverkeeper.org Michael J. Delaney, Esq.*
Director, Energy Regulatory Affairs New York City Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 E-mail: mdelaney@dep.nyc.gov Counsel for NRC Staff