ML081890408
| ML081890408 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/30/2008 |
| From: | Jeremy Dean, Matthews J State of NY, Dept of Environmental Conservation, State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS-E-116 | |
| Download: ML081890408 (11) | |
Text
UNITED STATES DOCKETED USNRC
-~ NUCLEAR R-EGýUTATORY -COMMISSION:
June 30, 2008 (1:30pm)
ATOMIC. SAFETY LICENSING BOARD OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF
- re:....
In Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBPNo. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and DPR-26, DPR-64 Entergy Nuclear Operations, Inc.
x June 30, 2008 MOTION TO PRESERVE ALL NRC STAFF NOTES AND WORKING PAPERS PURSUANT TO 10 C.F.R. § 2.336(b)(3)
Pursuant to 10 C.F.R. § 2.323, the State of New York moves for an order requiring NRC Staff to preserve all NRC Staff documentation that would have to be produced, or identified as allegedly privileged pursuant to 10 C.F.R. § 2.336(b), to any party in this proceeding. This Motion is necessary in light of recent statements made by NRC Staff at a public meeting held June 18, 2008, in Cortlandt Manor, New York. At that meeting, NRC Staff acknowledged a conflict between the Indian Point Audit and Review Plan and internal guidance, the latter of which provides for lesser retention of documents, but Staff did not commit to following the more protective retention policy.
CONSULTATION WITH PARTIES PURSUANT TO 10 C.F.R. § 2.323 Prior to filing this motion, on Tuesday, June 24, 2008, Assistant Attorney General Janice A. Dean contacted Sherwin Turk, Esq., counsel to the NRC Staff, and inquired whether NRC Staff would agree to preserve audit-related working papers. AAG Dean explained the basis for her request, namely, the statements made by NRC Staff at the June 18, 2008, meeting detailed r7 ~k79 C-
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below, and agreed to speak with Mr. Turk again on the. issue. when he had had the opportunity to consult with Staff. Mr. Turk and AAG Dean:spoke again onThursday, June 26, 2008, when Mr.
Turk stated that NRC Staff opposed the motion, and that he would not discuss the Staffs position on the conflict between policy documents or Staff s position on whether the IP Audit and Review Plan even controlled here. Also on June 26, AAG Dean contacted Paul Bessette, Esq., counsel forthe Applicant, explained the basis for her motion, and gave Entergy the opportunity to-take a position. Mr. Bessette indicated that Entergy opposed the motion, and expressed his view that the potential conflict between policy documents was an internal NRC issue.
BACKGROUND ON THIS ISSUE On September 6, 2007, the OIG released an Audit Report which concluded its audit of the NRC LicenselRenewal Process. See NRC Inspector General Audit, NRC's License Renewal Program, (Sept. 6, 2007), ML072490486. The Audit found that NRC Staff often copied, word-for-word, language provided by applicants in NRC documents, casting doubt on NRC Staffs independent role in reviewing of license renewal application. Id. As a result of this audit finding, the OIG conducted a further review of NRC Staffs preparation of license renewal Safety Evaluation Reports for four nuclear plants. On May 2, 2008, the OIG released a report which observed that NRC Staff does not regularly retain (that is, Staff discards) the working papers developed by inspectors during license renewal audits, documents which, according to the Inspector General, "provide direct support of the specifics of the NRC review." See Memorandum from Hubert T. Bell, Inspector General, to Dale E. Klein, Chairman, NRC, dated May 2, 2008, ML081280227.
The State of New York was concerned with the OIG's findings but did not move for protection-of documents within the context of this proceeding because-the Audit and Review Plan-for Indian Point imposes document retention obligations on NRC Staff, and because the State of New York relied on the IP Audit and Review Plan being followed. See Audit and Review Plan for Plant Aging Management Reviews and Programs, Indian Point Nuclear Generating Station, Units 2 and 3 (IPNGS), Sept.27, 2007, ML072290180 (the '"IP Audit and Review Plan"). Specifically, the IP Audit and Review Plan, at section 6.6, states:
Any documents reviewed that were used to formulate the basis for .resolution of an issue, such as the basis for a technical resolution, the basis for the acceptance of an exception or an enhancement, etc., should be documented as a reference in the SER input.
Upon issuance of the SER input, all Worksheets that were completed by contractor and NRC personnel shall be given to the NRC project team leader.
After the-NRC has made its licensing decision, all copies of documents collected and all documents generated to complete the SER input, such as audit worksheets, question and answer tracking documentation, etc., are to be discarded.
IP Audit and Review Plan, § 6.6, ML072290180, at 41. This provision appeared to adequately protect potentially discoverable information until the final completion of the license renewal process, including all possible appeals and remands.
However, at the NRC's Region One License Inspection Exit Management Meeting held in Cortlandt Manor, New York, on June 18, 2008, NRC Staff members Rani Franovich (Chief, Environmental Branch, Division of License Renewal) and Sam Collins (Region I Administrator) stated that the IP Audit and Review Plan was not controlling and that an internal conflict existed between this Plan and another internal directive. The document to which Staff referred may be Management Directive 3.53, "NRC Records and Document Management Program," NRC Office of Information Services, June 15, 1995, Revised March 15, 2007, ML071160026.1 Management Directive 3.53 authorizes destruction of "personally held nonrecord materials," materials which pertain to the agency business but which may nevertheless be:retained or discarded "at the author's sole discretion." Management Directive 3.53 at 62. Management Directive 3.53 therefore appears to allow individual Staff members to exercise their own, discretion concerning document classification and subsequent destruction, in contrast to thelP Audit and Review Plan's strict requirements. Therefore,. absent intervention by this Board, the Staff believes it has the authority to destroy documents, and presumably is destroying documents, whose preservation is required under the IP Audit and Review Plan and whose production, or listing on a privilege log, is mandated by 10 C.F.R. § 2.336(b)(3).
NRC Region One staff indicated at the June 18, 2008, public meeting that although Staff is currently following the permissive provisions of the Management Directive, this internal .
conflict is currently undergoing Commission review. During the June 18, 2008, meeting, representatives from Riverkeeper, Inc., and the Office of the New York State Attorney General asked NRC Staff to preserve all working papers until the end of the license renewal process for Indian Point, and certainly through the resolution of the NRC's conflict between directives, but!
NRC Staff did not affirmatively state that they would do so. While Staff did not identify the precise document retention policy under which they believed they are now subject, they did indicate that they do not believe the IP Audit and Review Plan to be controlling; that is, Staff stated that the broader policy of Management Directive 3.53 takes precedence over the more To the best of the movant's knowledge, the meeting held on June 18, 2008 was not transcribed. Representatives from the State of New York were in attendance.
specific IP Audit and Review Plan.
Discovery Obligations in,this Proceeding 10 C.F.R. §,2.336(b)(3) requires the NRC Staff to, within thirty (30) days of the issuance of the.order granting a request for hearing or petition to intervene, disclose or provide "[a] 11 documents (including documents that provide support for, or opposition to, the application or proposed action) supporting the NRC..Staffs review of the application or proposed actionthat is the subject of the proceeding." 10 C.F.R. § 2.336(b)(3). Significantly, the documents whichrmust be disclosed, or included on a privilege claim log, are those that support the "review," i.e:lthe process conducted by the Staff, not the conclusion of that process. Thus, notes by individual auditors and staff members taken during onsite plant audits, document reviews, and meetings with Entergy or others, as well as memoranda and draft and final reports generated in reliance on such notes, are included within the scope of the document production duties imposed on the Staff by § 2.336(b)(3). Since a review of the license application and its acceptance or rejection for docketing is within the scope of the Staff's review of the application, notes and other documenits created during that part of the review process are also subject to the obligations imposed by
§ 2.336(b).
The appeal from a decision to grant or deny the license renewal application will be based, at least in part, on the quality and thoroughness of the Staffs review. For example, the justification for not considering various safety:issues during the LRA process is the assumed adequacy of the NRC Staff's ongoing safety reviews. See, e.g., 10 C.F.R. § 54.30. However, pursuant to 10 C.F.R. § 2.335, the exclusion of safety issues from this proceeding imposed by
§ 54.30 may be modified if there is evidence that "special circumstances" exist that would make application of the rule inconsistent with the purposes for the rule. Thus, the adequacy of the NRC Staff audit andregulatory activities with regard to.Indian Point 2 and.3 can become anissue in this proceeding, including any appellate review of the final agency decision. As~the NRC itself has acknowledged, it has an obligation to provide "a record adequate for judicial review."
See NRC.Brief, CANv. NRC, 59 F.3d 284 (1st Cir. 1995)(brief on file with authors; available:
upon request). Therefore, it is imperative that the NRC preserve all,the documents that :support its review of Entergy's license renewal application, as required by the IP, Audit-land Review Plan.
Should Management Directive 3.53 control in this instance, NRC's document destruction policies would conflict not only with the IP Audit and Review Plan but also with NRC Chairman Klein's dedication to transparency in government. Indeed, Chairman Klein recently stated:that the NRC ",.continue[s] to emphasize the value of regulatory openness by ensuring that our decisions are made in consultation with the public, our Congress, and other stakeholders." He continued,:"[w]e view nuclear regulation as the public's business and, as such, we believe it should betransacted as openly and candidly as possible." 2 The NRC's failure to maintain 2 "Report to the Convention on Nuclear Safety": Remarks Prepared for NRC Chairman Dale E. Klein, Vienna, Austria (Apr. 15, 2008), availableat http://www.nrc.gov/reading-rm/doc-collections/commission/speeches/2008/s-08-015.html (last visited Apr. 27, 2008); see also "Guiding Principles: Culture, Transparency, and Communication": Prepared Remarks by The Honorable Gregory B. Jaczko, Commissioner, U.S. Nuclear Regulatory Commission before the Regulatory Information Conference, Washington, DC (Mar. 9, 2005), availableat http://www.nrc.gov/reading-rm/doc-collections/commission/speeches/2005/s-O5-006.html (last visited Apr. 27, 2008); "Openness and Transparency: The Road to Public Confidence": Prepared Remarks for The Honorable Gregory B. Jaczko, Commissioner, U.S. Nuclear Regulatory Commission at the Organization for Economic Co-operation and. Development's Nuclear Energy Agency Workshop on the Transparency of Nuclear Regulatory Activities, Tokyo, Japan (May 22, 2007), availableat http://www.nrc.g-ov/reading-rm/doc-collections/commission/speeches/2007/S-07-032.html (last visited Apr. 27, 2008).
documentation that relates to its decisionmaking simply fails to conform to the Chairman's stated philosophy.
Conclusion Document. destruction would prevent a petitioner, the public, or the Commission as the NRC's appellate body from conducting a meaningful, in-depth review of the NRC Staff's activities,.which form a vital part of the license renewal process. As required by the IP Audit and Review Plan, NRC Staff must be required to maintain all Indian Point-related working papers through theconclusion of the Indian Point license renewal proceeding and through the-conclusion of Commission and judicial review.
Respectfully submitted, June 30, 2008 ice A. Dean AcIan Leary M hews J. Sipos 'S/nior Counsel for Special Projects Assistant Attorney General New York State Department of Office of the Attorney General Environmental Conservation for the State of New York Office of General Counsel The Capitol 625 Broadway, 14th Floor Albany, New York 12224 Albany, NY 12223-5500 (518) 402-2251 (518) 402-9190 ioln.sipos(aoa2.state.nv.us jlmatthedgw.dec.state.ny.us John L. Parker Region 3 Attorney New York State Department of Environmental Conservation Region 3 Headquarters 21 South Putt Comers Road New Paltz, NY 12561-1620 (845) 256-3037 iloarker0.(-w.dec.state.nv.us 4
V UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3)
DECLARATION OF SERVICE Pursuant to 28 U.S.C. §1746, Teresa Fountain hereby declares upon penalty of perjury that:
- 1. I am over 18 years old and am an employee of the Office of the Attorney General for the State of New York, counsel for the petitioner State of New York.
- 2. On June 30, 2008, 1forwarded the attached motion to preserve all NRC staff notes and working papers to the following judges, law clerk, offices, organizations, attorneys, and/or petitioners at the e-mailaddresses that follow.
Lawrence G. McDade, Chair AtomicSafety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Comnimission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 3 F23 11545 Rockville Pike Two White Flint North Rockville, MD 20852-2738 11545 Rockville Pike Rockville, MD 20852-2738 Zachary S. Kahn, Esq.
Lawrence.McDade@ nrc.gov Law Clerk Atomic Safety and Licensing Board Panel Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Mailstop 3 F23 Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike Mailstop 3 F23 Rockville, MD 20852-2738 Two White Flint North Zachary.Kahn@nrc.gov 11545 Rockville Pike Rockville, MD 20852-2738 Marcia Carpentier Richard.Wardwell@nrc.gov Law Clerk Atomic Safety and Licensing Board Panel Kaye D. Lathrop U.S. Nuclear Regulatory Commission Administrative Judge- Mailstop 3 E2B Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike 190 Cedar Lane E. Rockville, MD 20852-2738 Ridgway, CO 81432 Marcia.Carpentier@nrc.gov Kaye.Lathrop@ nrc.gov
Office of Commission Appellate Adjudication William C. Dennis, Esq.
U.S. Nuclear Regulatory Commission Assistant General Counsel Mailstop 16 G4 Entergy Nuclear Operations, Inc.
One White Flint North 440 Hamilton Avenue 11555 Rockville Pike White Plains, NY 10601 Rockville, MD 20852-2738 wdennis@entergy.com ocaamail@nrc.gov Robert D. Snook, Esq.
Office of the Secretary Assistant Attorney General Attn: Rulemaking and Adjudications Staff Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 3 F23 55 Elm Street Two White Flint North P.O. Box 120 11545 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@po.state.ct.us hearingdocket@nrc.gov Justin D. Pruyne, Esq.
Sherwin E. Turk, Esq. Assistant County Attorney David E. Roth, Esq. Office of the Westchester County Attorney Marcia J. Simon, Esq. Michaelian Office Building Beth N. Mizuno, Esq. 148 Martine Avenue, 6th Floor Jessica A. Bielecki, Esq. White Plains, NY 10601 Office of the General Counsel jdp3@westchestergov.com U.S. Nuclear Regulatory Commission Mailstop 15 D21 Daniel E. O'Neill, Mayor One White Flint North James Seirmarco, M.S.
11555 Rockville Pike Village of Buchanan Rockville, MD 20852-2738 Municipal Building set@nrc.gov 236 Tate Avenue der@nrc.gov Buchanan, NY 10511,-1298 jessica.bielecki@nrc.gov vob@bestweb.net bnml@nrc.gov marcia.simon@nrc.gov Daniel Rie'sel, Esq.
Thomas F. Wood, Esq.
Kathryn M. Sutton, Esq. Jessica Steinberg, J.D.
Paul M. Bessette, Esq. Sive, Paget & Riesel, P.C.
Martin J. O.Neill, Esq. 460 Park Avenue Mauri T. Lemoncelli, Esq. New York, NY 10022 Morgan, Lewis & Bockius LLP driesel@sprlaw.com 1111 Pennsylvania Avenue, NW jsteinberg@sprlaw.com Washington, DC 20004 ksutton@morganlewis.com Michael J. Delaney, Esq.
pbessette@morganlewis.com Vice President - Energy Department martin.o'neill@morganlewis.coni New York City Economic Development m lemoncelli@morganlewis.com Corporation (NYCEDC) cadams@ morganlewis.com 110 William Street New York, NY 10038 Elise N. Zoli, Esq. mdelaney@nycedc.com Goodwin Procter, LLP Exchange Place Arthur J. Kremer, Chairman 53 State Street New York Affordable Reliable Electricity Alliance Boston, MA 02109 (AREA) ezoli@goodwinprocter.com 347 Fifth Avenue, Suite 508 New York, NY 10016 krem er@area-alliance.org ajkrem er@rmfpc.com
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Manna Jo Greene, Director Phillip Musegaas, Esq.
Hudson River Sloop Clearwater, Inc. Victor Tafur, Esq.
112 Little Market St. Riverkeeper, Inc.
Poughkeepsie, NY 12601 828 South Broadway Man najo@clearwater.org Tarrytown, NY 10591 phillip@riverkeeper.org Stephen Filler, Esq. vtafur@riverkeeper.org Board Member Hudson River Sloop Clearwater, Inc. Mylan L. Denerstein, Esq.
Suite 222 Executive Deputy Attorney General 303 South Broadway Social Justice Tarrytown, NY 10591 Office of the Attorney General sfiller@ nylawline.com State of New York 2 5th floor Susan H. Shapiro, Esq. 120 Broadway Weschester Citizen's Awareness Network New York, NY 10271 (WestCan), Citizens Awareness Network Mylan.Denerstein@oig.state.ny.us (CAN),etc.
21 Perlman Drive John J. Sipos, Esq.
Spring Valley, NY 10977 Assistant Attorney General mbs@ourrocklandoffice.com Office of the Attorney General State of New York Nancy Burton The Capitol 147 Cross Highway Albany, NY 12224 Redding Ridge, CT 06876 John.Sipos@oag.state.ny.us NancyBurtonCT@aol.com Janice A. Dean, Esq.
Richard L. Brodsky, Esq. Assistant Attorney General Assemblyman ,Office of the Attorney General Suite 205 State of New York 5 West Main Street 26th floor Elmsford, NY 10523 .120 Broadway brodskr@assem bly.state.ny.us 'New York, NY 10271 richardbrodsky@msn.com Jan ice.Dean@oag.state.ny.us Sarah L. Wagner, Esq. Joan Leary Matthews Room 422 Senior Attorney for Special Projects Legislative Office Building New York State Department of Albany, NY 12248 Environmental Conservation sarahwagneresq@gmail.com 625 Broadway, 14 th floor Albany, NY 12233-5500 John LeKay jlmatthe@gw.dec.state.ny.us FUSE USA 351 Dyckman. Street John Louis Parker, Esq.
Peekskill, NY 10566 Regional Attorney fuse-usa@yahoo.com Office of General Counsel, Region 3 New York State Department of Diane Curran, Esq. Environmental Conservation Harmon, Curran, Spielberg & Eisenberg, LLP 21 South Putt Corners Road Suite 600 New Paltz, NY 12561-1620 1726 M Street, NW- jlparker@gw.dec.state.ny.us Washington, DC 20036 dcurran@harmoncurran.com
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Executed on:
June 30, 2008 Albany, New York Is/
Teresa Fountain Office of the Attorney General State of New York The Capitol Albany, New York 12224-0341 (518) 474-1978 Teresa. Fountain@oag.state.ny.us