ML080320531

Order (Concerning Certain Exhibits Submitted by Westcan and Associated Petitioners)

ML080320531
Person / Time
Site:	Indian Point
Issue date:	02/01/2008
From:	Lathrop H, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
07-858-03-LR-BD01, 50-247-LR, 50-286-LR, RAS 15013
Download: ML080320531 (13)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED 02/01/08 ATOMIC SAFETY AND LICENSING BOARD SERVED 02/01/08 Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating February 1, 2008 Units 2 and 3)

ORDER (Concerning Certain Exhibits Submitted by WestCAN and Associated Petitioners)

This order concerns the petition for intervention filed on December 10, 2007, on behalf of Westchester Citizens Awareness Network (WestCAN), Rockland County Conservation Association, Inc. (RCCA), Public Health and Sustainable Energy (PHASE), Sierra Club - Atlantic Chapter (Sierra Club), and New York State Assemblyman Richard L. Brodsky [WestCAN Petition].

This Petition was accompanied by numerous exhibits, many of which appear to have been served in an inconsistent manner, and some of which do not appear to have been served on the Licensing Board in any way. Some of the issues arising from the presentation of these exhibits were apparently resolved following e-mail correspondence among the parties that occurred in late December. However, other discrepancies remain. Some documents that have been filed are not included in the exhibit table of contents filed with the petition. Other documents that do appear in the table of contents do not appear to have been filed consistently with all parties. Still other exhibits are labeled inconsistently in the document sets served by different methods - to the extent that different documents appear to have been filed under the same exhibit number at different times.

As we have stated in the past, proper filing and service of documents is essential in a complex proceeding such as this, and all the more so when the documents in question are as lengthy as some of those submitted here.1 The record of this proceeding is already large and will only become larger as the case progresses. Inconsistent, incomplete, and confusing filings, therefore, place an enormous burden on the Board, other litigants, and even on members of the Petitioners organizations who wish to follow the case. The Board has already spent considerable time attempting to determine what we have, and what we have not, received from the Petitioners, and we can only assume that other litigants have been placed in the same position by the failure of the Petitioners to organize their documents properly. This is unfair to all current and potential parties in this litigation, and it detracts from the Boards ability to give proper consideration to the substance of the petition itself.

It is the Boards responsibility to conduct a fair and impartial hearing [and] to take appropriate action to control the prehearing . . . process, . . . and to maintain order. 10 C.F.R.

§ 2.319. For this reason, we decline to leave the record in its current state of disorganization.

Towards that end, we have prepared our own lists of the Petitioners exhibits, which we attach to this order as Appendix A and Appendix B.

Appendix A includes those exhibits that appear in the exhibit table of contents accompanying the petition, that have been served properly on the Board and the parties and with the Office of the Secretary of the NRC, and that are properly part of the record of this case.

Appendix B includes exhibits about which there is ambiguity or inconsistency at this time. It is the Boards intent to strike all the exhibits in Appendix B unless the Petitioners can demonstrate that proper service has already been accomplished.

1 See Licensing Board Memorandum and Order (Administrative Matters and Directing Parties Attention to Requirements for Proper Service) (Oct. 29, 2007) at 2 (unpublished);

Licensing Board Order (Denying an Extension of Time Within Which To File Requests For Hearing) (Nov. 27, 2007) at 3 (unpublished); Licensing Board Memorandum and Order (Denying Entergys Motion to Strike But Sua Sponte Striking FUSEs Multiple Requests For Hearing)

(Nov. 28, 2007) at 2 (unpublished).

The Board therefore directs the Petitioners (1) to review Appendices A and B to this Order, and (2) to the extent that the Petitioner believes the exhibits listed in Appendix B were filed appropriately, to explain to the Board how, when, and on which parties the exhibits were served. This explanation should be submitted in the form of a formal pleading (not an informal e-mail) and served on all the parties in the case no later than February 10, 2008. No supplemental service of these or other exhibits will be accepted.

In an effort to avoid problems of this type in the future, the Board directs all Petitioners to observe the following rules in all future filings:

1. In general, documents may be served on the Board and the parties in hard copy, on CD-ROM, or as files attached to e-mail messages. Regardless of the method used to serve the Board and the parties, a signed paper original and two paper copies of all filings, including exhibits, must be submitted to the Office of the Secretary, U.S. Nuclear Regulatory Commission. See 10 C.F.R. § 2.304(a)-(g) for detailed explanation of NRC filing procedures.

2. Exhibits must be accompanied by a table of contents that describes all the documents adequately, and identifies them unambiguously.

3. If multiple methods are used to file a document (e.g., e-mail to the Board and parties, with the required hard copies to the Office of the Secretary), all filings must be identical in every respect.

4. If the Petitioners wish to amend their filings in any way, the new filing must clearly indicate that it is an amendment and include a detailed explanation of the changes. Any such amendment must be served on the Board and all parties, and in hard copy with the Office of the Secretary. These filings must also be identical regardless of the method of service.

5. The Board will not accept any further filings submitted by YouSendIt or similar methods. If files are too large for e-mail or paper service on all parties, the Board authorizes the use of CD-ROMs.

6. Electronic files must follow a clear naming convention (e.g., Exhibit_A.pdf, Exhibit_B.pdf, etc.) so that recipients use the file name to help determine whether the set is complete.

Each exhibit shall be a separate file, although long documents may be subdivided if the parts are clearly identified (e.g., Exhibit_C1.pdf, Exhibit_C2.pdf, etc.).

7. Both electronic and paper copies of exhibits must be clearly marked with the exhibit identification (number or letter) on the first page of the document itself. Cover pages or dividers may be included in addition to this requirement, but not in place of it.

8. Paper exhibits consisting of multiple pages must be numbered, and stapled, clipped together, bound, or otherwise held together to prevent pages from being shuffled while the document is in transit.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD2

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD February 1, 2008 2

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 the State of Connecticut; (5) Counsel for Riverkeeper, Inc.; (6) Counsel for WestCan, RCCA, PHASE, the Sierra Club - Atlantic Chapter, and Richard Brodsky; (7) Nancy Burton, the Representative of CRORIP; (8) Manna Jo Green, the Representative for Clearwater; (9) John LeKay, the Representative for FUSE; (10) Counsel for Westchester County; and (11) Counsel for the Town of Cortlandt.

APPENDIX A Exhibits That Have Been Served Properly Exhibit A - Declaration of Marilyn Elie Exhibit B - Declaration of Dorice Madronero Exhibit C - Declaration of Susan Lawrence Exhibit D - Declaration of Mark Jacobs Exhibit E - Declaration of Gary Shaw Exhibit F - Declaration of Jeanie Shaw Exhibit G - Declaration of Judy Allen Exhibit H - Declaration of Elizabeth Segal Exhibit I - Amendment No. 9 to Application for Licenses Exhibit J - various documents (all received)

Exhibit L - Amendments 251 and 238, Reactor Coolant System Operational Leakage Exhibit M - Chilk Memorandum, Sept. 18, 1992 Exhibit N - Criterion 43-46 Core Cooling Exhibit O - Omitted Exhibit P - Indian Point Licenses Renewal Karl Jacobs Exhibit Q.1 - Second Declaration of Ulrich Witte with Summary1 Exhibit R - Leak Found in Pipe at Indian Point with graphic Exhibit S - various documents (all received)

Exhibit V - Synapse Financial Insecurity p. 1-40 Exhibit W - Corp Watch: Entergy Holds New Orleans Hostage Exhibit GG.1 - Declaration of U. Witte: Review of Contention 14 Exhibit II.2 - Declaration of U. Witte: Review of Contention 35 1

Listed as First Declaration in the index, but otherwise consistent in all filings.

Exhibit NN - Population Growth in Rockland, Orange, Putnam, Westchester 1960-2006 Exhibit QQ - Levitan Study Executive Summary Exhibit RR - NAS Report 2006: Replacement Energy of Indian Point Executive Summary Exhibit TT - Public Health Risks of Extending Licenses of the IP2 and 3 Nuclear Reactors, Dr. J. Mangano Exhibit UU - Expert Witness - J. Mangano - Declaration Exhibit VV - Omitted Exhibit WW- GAO-04-654 Nuclear Regulations: NRCs Liability Insurance Exhibit YY - Omitted Exhibit ZZ - Omitted Exhibit AAA - Declaration of Connie Coker Exhibit BBB - Declaration of Janet Burnet Exhibit CCC - Declaration of Andrew Stewart Exhibit DDD - Declaration of Michael Lee Exhibit EEE - Declaration of Susan Shapiro Exhibit FFF - Declaration of Robert Jones Exhibit GGG - Declaration of Maureen Ritter Exhibit HHH - Declaration of New York City Councilman Vaca Exhibit III - Declaration of Dorice Madronero Exhibit JJJ - Quality Control - Whistleblower letter FP No. 1 - Several news articles FP No. 2 - OIG Report - Adequacy of NRC Staffs Acceptance and Review of Thermo-Lag 330-1 Fire Barrier Material FP No. 3 - Nuclear Security Language for Anti-Terrorism Bill Approved FP No. 4 - Omitted

FP No. 6 - Entergy letter dated July 24, 2006, Request for Revision of Existing Exemptions from 10 C.F.R. 502 FP No. 7 - First Declaration of Ulrich Witte (only)

FP No. 10 - Report on the Nuclear Regulatory Commission Reactor Safety Review Process, by Robert Pollard FP No. 16 - NUREG-1852, Demonstrating the Feasibility and Reliability of Operator Manual Actions in Response to Fire, October, 2007 FP No. 17 - Omitted FP No. 18 - Omitted FP No. 19 - Omitted 2

Appears to contain several pages from another exhibit as well, but the Board will consider it as submitted.

APPENDIX B Exhibits With Filing Problems Exhibit K - The first of the three documents listed was filed and served properly. The second and third do not appear to have been served on the Board.

Exhibit T - Not listed in table of contents. Omitted?

Exhibit U - Listed as omitted in table of contents, but appears to have been served by e-mail on the Board and the parties.

Exhibit X - Does not appear to have been served on the Board.

Exhibit Y - Does not appear to have been served on the Board.

Exhibit Z - Does not appear to have been served on the Board.

Exhibit AA - Does not appear to have been served on the Board.

Exhibit BB - Does not appear to have been served on the Board.

Exhibit CC - Does not appear to have been served on the Board.

Exhibit DD - Does not appear to have been served on the Board. Paper copy filed with the Office of the Secretary has this exhibit merged with the previous one, with no indication that it is a separate exhibit.

Exhibit EE - Neither of the two documents listed is filed with the Office of the Secretary under this name. One was included in e-mail service to the Board, but the other was not. See further discussion under FP Nos. 13, 14, and 15.

Exhibit FF - Listed as omitted in index, but two different exhibits with this designation are included in filings. E-mail and paper service are not consistent.

Exhibit HH - Not included in filing with Office of the Secretary.

Exhibit JJ - Does not appear to have been served on the Board.

Exhibit KK - Does not appear to have been served on the Board.

Exhibit LL - Does not appear to have been served on the Board.

Exhibit MM - Does not appear to have been served on the Board. Paper copy filed with the Office of the Secretary has this exhibit merged with the previous one, with no indication that it is a separate exhibit.

A document entitled The EPA Radiation Standard for Spent-Fuel Storage in a Geologic Repository: Background Information is included after Exhibit MM. It is not clear whether it is meant to be part of that exhibit or an exhibit in its own right, and it does not appear in the table of contents.

Exhibit OO - Appears both in: (1) the e-mail filing to the Board and the parties, and (2) the paper copy filed with the Office of the Secretary, but it is not the same document in the two cases.

Exhibit PP - Does not appear to have been served on the Board.

Exhibit SS - Does not appear to have been served on the Board.

Exhibit XX - Not included in filing with Office of the Secretary.

Exhibit LLL - Declaration of Richard L. Brodsky - Does not appear to have been served on the Board, and not included in table of contents.

FP No. 5 - Served by e-mail on the Board and parties, but the filing with the Office of the Secretary included two different documents with the same designation.

FP No. 7 - The table of fire prevention exhibits lists only one document as part of this exhibit, the First Declaration of Ulrich Witte. This document was served properly both by e-mail and in paper copy to the Office of the Secretary, and is now considered part of the record in this case.

However, there are numerous discrepancies concerning other documents that appear as part of (or alternatives to) this exhibit. A second exhibit, a letter to Nils Diaz from POGO (Dec. 9, 2003), is also labeled as FP No. 7 and appears in both document sets. It does not appear under that exhibit name in the table of contents. However, it MAY be the document listed as FP No. 12 in the table of contents.

In the paper copy filed with the Office of the Secretary, a number of documents are also included (without explanation) under the label of FP No. 7. These include documents that appear to be FP No. 6, FP No. 13, FP No. 14, and FP No. 20, as listed in the table of contents. (FP Nos. 13 and 14 also appear to be the two documents listed in the table of contents as Exhibit EE.)

Other documents appearing under FP No. 7 are not identifiable.

Several of these documents appear multiple times.

FP No. 8 - Served by e-mail on the Board and parties, but the filing with the Office of the Secretary included a different document under this name -

specifically a drawing with no title.

FP No. 9 - Not included in filing with Office of the Secretary; only one of the two drawings listed in the table of contents was submitted to the Board.

FP No. 11 - Appears both in the e-mail filing to the Board and the parties and in the paper copy filed with the Office of the Secretary, but it is not the same document in the two cases.

FP No. 12 - Appears both in the e-mail filing to the Board and the parties and in the paper copy filed with the Office of the Secretary, but it is not the same document in the two cases. The document filed with the Office of the Secretary under this designation appears to be the document listed in the table of contents as FP No. 9. See also discussion of FP No. 7.

FP No. 13 - Not included in filing with Office of the Secretary under this designation, but see discussion of FP No. 7.

FP No. 14 - Not included in filing with Office of the Secretary under this designation, but see discussion of FP No. 7.

FP No. 15 - Duplicate of FP No. 13.

FP No. 20 - Not included in filing with Office of the Secretary under this designation, but see discussion of FP No. 7.

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

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR

)

)

(Indian Point Nuclear Generating, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (CONCERNING CERTAIN EXHIBITS SUBMITTED BY WESTCAN AND ASSOCIATED PETITIONERS) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Lawrence G. McDade, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane E.

Mail Stop - T-3 F23 Ridgway, CO 81432 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Sherwin E. Turk, Esq. Stephen C. Filler, Board Member Lloyd B. Subin, Esq. Hudson River Sloop Clearwater, Inc.

Beth N. Mizuno, Esq. 303 South Broadway, Suite 222 David E. Roth, Esq. Tarrytown, NY 10591 Kimberly A. Sexton, Esq.

Christopher C. Chandler, Esq.

Karl Farrar, Esq.

Catherine Marco, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket Nos. 50-247/286-LR LB ORDER (CONCERNING CERTAIN EXHIBITS SUBMITTED BY WESTCAN AND ASSOCIATED PETITIONERS)

Michael J. Delaney, Vice President - Energy Arthur J. Kremer, Chairman New York City New York AREA Economic Development Corporation 347 Fifth Avenue, Suite 508 110 William Street New York, NY 10016 New York, NY 10038 Martin J. ONeill, Esq. Manna Jo Greene, Director Kathryn M. Sutton, Esq. Hudson River Sloop Clearwater, Inc.

Paul M. Bessette, Esq. 112 Little Market St.

Mauri T. Lemoncelli, Esq. Poughkeepsie, NY 12601 Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Daniel E. ONeill, Mayor Robert D. Snook, Esq.

Village of Buchanan Assistant Attorney General James Seirmarc, M.S., Liaison to Indian Point of the State of Connecticut 236 Tate Avenue 55 Elm Street Buchanan, NY 10511 P.O. Box 120 Hartford, CT 06141-0120 Charlene M. Indelicato, Esq. Thomas F. Wood, Esq.

Westchester County Attorney Daniel Riesel, Esq.

Justin D. Pruyne, Esq. Sive, Paget & Riesel, P.C.

Assistant County Attorney 460 Park Avenue 148 Martine Avenue, 6th Floor New York, NY 10022 White Plains, NY 10601 Andrew M. Cuomo, Esq. Nancy Burton Attorney General of the State of New York 147 Cross Highway John J. Sipos, Esq. Redding Ridge, CT 06876 Assistant Attorney General The Capitol Albany, NY 12224-0341

3 Docket Nos. 50-247/286-LR LB ORDER (CONCERNING CERTAIN EXHIBITS SUBMITTED BY WESTCAN AND ASSOCIATED PETITIONERS)

Riverkeeper, Inc. Diane Curran, Esq.

Phillip Musegaas, Esq. Counsel for Riverkeeper, Inc.

Victor Tafur, Esq. Harmon, Curran, Spielberg, & Eisenberg, 828 South Broadway L.L.P.

Tarrytown, NY 10591 1726 M. Street N.W., Suite 600 Washington, DC 20036 Joan Leary Matthews, Esq. Weschester Citizens Awareness Network Senior Counsel for Special Projects (WestCan), Citizens Awareness Network (CAN),

Office of General Counsel etc.

New York State Department of Environmental Conservation Susan H. Shapiro, Esq.

625 Boadway 21 Perlman Drive Albany, NY 12224 Spring Valley, NY 10977 Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523 FUSE USA Elise N. Zoli, Esq.

Heather Ellsworth Burns-DeMelo Goodwin Procter, LLP John LeKay Exchange Place Remy Chevalier 53 State Street Belinda J. Jaques Boston, MA 02109 Bill Thomas 351 Dyckman Street Peekskill, New York 10566

[Original signed by Adria T. Byrdsong]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 1st day of February 2008