ML082590700

Riverkeeper - NRC Staff'S Response to Riverkeeper'S Request for Subpart G Hearing Procedures

ML082590700
Person / Time
Site:	Indian Point
Issue date:	09/15/2008
From:	Jessica Bielecki NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-164
Download: ML082590700 (10)

Text

September 15, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFF'S RESPONSE TO RIVERKEEPER'S REQUEST FOR SUBPART G HEARING PROCEDURES INTRODUCTION On August 21, 2008, Riverkeeper, Inc. ("Riverkeeper") filed a request for the Atomic Safety and Licensing Board ("Board") to adopt Subpart G discovery and hearing procedures for the litigation of all three of its admitted contentions,' in response to the Atomic Safety and Licensing Board's "Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing)," LBP-08-13, 68 hlRC -(July 31, 2008), slip op. at 227. In accordance with 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission ("Staff') hereby responds to Riverkeeper's Request.' For the reasons set forth below, the Staff opposes Riverkeeper, Inc.'s Request to the Atomic Safety and Licensing Board Regarding the Use of Subpart G and L Hearing Procedures for Admitted Contentions (Aug. 21,2008) ("Riverkeeper Motion").

• The State of New York ("State") also submitted a request for the adoption of formal Subpart G procedures to eight of its eleven admitted contentions. See The State of New York's Response to the Board's Question Concerning Hearing Procedures and Motion that the Board Apply Subpart 'G' Discovery Procedures to Certain Admitted Contentions (Aug. 21, 2008) ("New York Motion"). The Staff is filing, simultaneously herewith, a separate response to New York's Motion, which is incorporated by reference throughout this response.

Riverkeeper's request, and recommends that the Board adopt Subpart L procedures for the litigation of all of Riverkeeper's admitted contention^.^

BACKGROUND This proceeding concerns the license renewal application ("LRA") for lndian Point Nuclear Generating Units 2 and 3 ("lndian Point" or "IP"), submitted by Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant") on April 23, 2007. On August I,2007, the Staff published a "Notice of Consideration" and "Notice of Opportunity for Hearing" in the Federal

~ e g i s t e r .Requests

~ for hearing, petitions for leave to intervene, and numerous proposed contentions were timely filed by the State, Riverkeeper, Clearwater, and other petitioners (collectively, "Petitioners"), and responses to those petitions and the Petitioners' proposed contentions were filed by the Applicant and Staff. An oral argument on the proposed contentions was held on March 10-12, 2008. The Board then issued LBP-08-13! ruling on the Petitioners' standing and the admissibility of contentions, on July 31, 2008.~

In LBP-08-13, the Licensing Board, inter alia, granted the petitions to intervene of the State of New York, Riverkeeper and Clearwater, and it admitted a total of 15 contentions for The Staff notes that Hudson River Sloop Clearwater, Inc. ("Clearwater") filed a response to the Licensing Board's Order addressing the hearing procedures for Clearwater Contentions EC-1 and EC-3.

See Hudson River Sloop Clearwater, Inc's Response to the Board's Request Concerning Discovery, at 1 (Aug. 21, 2008) ("Clearwater Motion"). With regard to Clearwater EC-1, which was consolidated with Riverkeeper EC-3, Clearwater stated that it joined in and supported Riverkeeper's Motion for the application of Subpart G. Id. With regard to Clearwater EC-3, Clearwater stated that "[b]ecause it has not yet had any discovery, it has not yet identified any witness credibility issues. Therefore, currently, Clearwater believes that the provisions of Subpart L are more appropriate." Id. (reserving the right to request Subpart G procedures in the future, if such rules then appear to be appropriate).

Entergy Nuclear Operations, Inc., lndian 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, 42,135 (Aug. 1, 2007). The Commission subsequently extended the deadline for filing notices of intent to participate and requests for hearing. See 72 Fed. Reg. 55,834 (Oct. 1, 2007).

5 See also Order (Denying CRORIP's 10 C.F.R. 5 2.335 Petition) (July 31, 2008); Order (Striking WestCAN's Request for Hearing) (July 31,2008).

adjudication herein. See LBP-08-13, slip op. at 1, 225-27. The Board admitted three of Riverkeeper's contentions: TC-1mC-IA, TC-2 and EC-3. Id. at 226-27. The Board, however, consolidated TC-IITC-1A with New York State's Contention 26126A and EC-3 with Clearwater EC-1. Id. at 227.

The Board directed the State, Riverkeeper and Clearwater to indicate, by August 21, 2008, whether they wished to proceed under Subpart G or Subpart L for each admitted contention and to explain why a particular Subpart is more appropriate for each contention. Id.

at 227. The Board afforded the Staff and Entergy an opportunity to respond to these proposals by September 15, 2008. Id. On August 21, 2008, Riverkeeper filed its response to the Board's order, in which it requested the adoption of Subpart G procedures for all three of its admitted contentions. Request at 2. Riverkeeper also reserved the right to request an opportunity for cross-examination at a later date. ~ d . ~

DISCUSSION I. Leqal Framework.

The Staff, in its response to the State of New York's Motion, fully addresses the legal framework for the application of Subpart L and Subpart G procedures in license renewal proceedings. See Staff Response at 3-9. The Staff incorporates this discussion in totality herein. A brief discussion of the legal framework is, however, provided below.

6 Riverkeeper, like New York, states that it is premature to request cross-examination at this initial stage in the proceeding, and therefore "explicitly reserves the right to make a showing to the Board at a later date that cross-examination is warranted, and would lead to the 'resolution of material issues of fact which may best be determined through the use of the identified procedures.' In the alternative, if the board denies Riverkeeper's request . . . Riverkeeper reserves the right to move to be allowed to conduct cross-examination, pursuant to § 2.1204(b)." Riverkeeper Motion at 2 (internal citation omitted). The Staff addresses the right to request an opportunity for cross-examination in its Response to New York's Motion. See NRC Staff's Response to "The State of New York's Response to the board's Question Concerning Hearing Procedures and Motion that the Board Apply Subpart 'G' Discovery Procedures to Certain Admitted Contentions" (Sept. 15, 2008) at 28-29 ("Staff Response") (this discussion is incorporated by reference herein). The Staff reserves the right to address any request by Riverkeeper to conduct cross-examination in this proceeding.

In 2004 the Commission revised its Rules of Practice for adjudicatory proceedings to "improve the effectiveness and efficiency of the NRC's hearing process, and better focus and use limited resources of all involved." Changes to Adjudicatory Process, 69 Fed.

Reg. 2182. 2190 (Jan. 14. 2004). The commissiondecided that "the greater use of more informal hearing procedures is desirable" and thus revised its rules to expand the use of informal Subpart L procedures. Id. at 2206. Accordingly, "Subpart L procedures would be used, as a general matter, for hearings on . . . license renewal applications under part 54." Id.

Specifically, the Commission stated that Subpart L procedures "would be used . . . in licensing proceedings for the resolution of contentions which do not meet the criteria set forth in section 2.310(d) for use of Subpart G hearing procedures." Id. at 2205-06.

Section 2.310(d) provides two situations in which a licensing proceeding must be resolved using formal Subpart G procedures: "resolution of ( I ) Issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, andlor (2) issues of motive or intent of the party or eyewitness material to the resolution of the contested matter." 69 Fed. Reg. at 2222 (discussing 10 C.F.R.

$j2.310(d)). The determination of applicable hearing procedures is made on a contention by contention basis. Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 202 (2006).

II. Riverkeeper Fails to Establish that Subpart G Procedures Should be Adopted for its Admitted Contentions Riverkeeper requests that the Board apply Subpart G hearing procedures in the litigation of all three of its admitted contentions. Riverkeeper Motion at 2. Riverkeeper states that it fully agrees with and supports New York's interpretation and application of the Commission's regulations regarding the applicability of Subpart L and G hearing procedures. See id.

However, as explained more fully in the Staff's Response to New York's Motion, this

interpretation of the regulations is flawed. Staff Response at 14-20 (incorporated by reference herein). Thus, Riverkeeper cannot rely on the State of New York's interpretation of the Commission's regulations to support its request for the application of Subpart G discovery procedures.

As discussed below, Riverkeeper has not shown that its contentions require the application of Subpart G procedures pursuant to Section 2.310(d), and therefore Riverkeeper's Motion should be denied.

1. Consolidated Contention NY-26126A and TC-1nC-1A Riverkeeper requests that Subpart G hearing procedures be applied to Riverkeeper Contention TC-IITC-1A and New York Contention 26126A. Riverkeeper Motion at 2. This contention raises concerns regarding the aging effect of metal fatigue on key reactor components. LBP-08-13, slip op. at 104-16, 152-62. Riverkeeper does not put forth any arguments to support the application of Subpart G procedures to this contention, but rather incorporates by reference New York's Request for the application of Subpart G discovery procedures. See Riverkeeper Motion at 2.

The Staff addresses the applicability of Subpart G procedures to consolidated Contention TC-11TC-1A and 26126A in its response to New York's Motion. See Staff Response at 27-28 (the Staff fully incorporates that discussion herein). In short, as indicated in the Staff's Response, New York's assertions are without merit, 'are based on speculation, and are not relevant to this proceeding. See id. at 27. New York failed to show any reason why Subpart G procedures are required to properly adjudicate this contention. Id. at 27-28. Thus, Riverkeeper cannot rely on New York's Motion to support its request for the application of Subpart G procedures. For the reasons stated above and incorporated by reference herein, Riverkeeper's request for the adoption of Subpart G procedures to this contention must be rejected.

2. Riverkeeper TC-2 and Consolidated Riverkeeper EC-3 and Clearwater EC-1 Riverkeeper argues that Subpart G discovery procedures should be applied to TC-2, which challenges the adequacy of Entergy's program to manage Flow Accelerated Corrosion.

Riverkeeper Motion at 3. Riverkeeper alleges that Entergy has demonstrated an unwillingness to explain or disclose information related to this contention as well as a similar contention in the Vermont Yankee license renewal proceeding. Id. at 3. Riverkeeper states that it "is concerned that the informal discovery requirements of 5 2.336 will not be sufficient" to ensure that Entergy discloses information. Id. at 4. Similarly, Riverkeeper requests that Subpart G hearing procedures should be applied to the litigation of Consolidated Riverkeeper EC-3 and Clearwater EC-1,7 which challenges the Applicant's assessment of environmental impacts caused by spent fuel pool leaks. Id. at 5. Again, Riverkeeper supports its request by stating its "concern" that "Entergy's unwillingness to provide" information "will continue during discovery." Id.

Riverkeeper argues that Subpart G discoverjl procedures "will aid Riverkeeper, and ultimately the Board, in developing an adequate record for decision." Id. at 5. Thus, Riverkeeper requests depositions upon oral examination, written interrogatories, interrogatories to parties, production of documents or things, permission to enter upon land or other property for inspection and other purposes, and requests for admission be used to litigate TC-2 and consolidated Riverkeeper EC-3 and Clearwater EC-1. Id. at 4, 5-6. Clearwater states that it joins in Riverkeeper's response regarding consolidated Riverkeeper EC-3 and Clearwater EC-1, and "incorporates such response herein by reference in its entirety." Clearwater Motion at 1.

Clearwater did not put forth any additional arguments to support the application of Subpart G Riverkeeper and Clearwater have agreed that Riverkeeper will be the lead for this consolidated contention. Clearwater Motion at 1.

discovery procedures to the consolidated contention. See id. The Staff submits that Riverkeeper's arguments, which Clearwater relies on in totality, are not supported.

Riverkeeper's allegation, that a perceived unwillingness to disclose information indicates that the Applicant will not comply with disclosure requirements in the future, is similar to New York's arguments for the application of Subpart G procedures for the litigation of New York Contentions 5, 6, 7, 12, and 16. See, e.g., New York Motion at 21-24, 27. As discussed more fully in the Staff's Response to New York, these assertions are without merit and are based on speculation. See Staff Response at 22-25 (incorporated by reference herein). A Board cannot presume that a party will not comply with its regulatory duty to disclose documents. See Entergy Nuclear Vermont Yankee L.L.C. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-31,60 NRC 686,698 (2004). Moreover, even if a party does violate disclosure obligations, a Board may impose sanctions against the offending party, e.g.,

the use of depositions and interrogatories. Id.' Riverkeeper's speculative assertions do not raise issues of motive or intent as required by Section 2.310(d).

In addition, Riverkeeper's assertion that Subpart G discovery procedures are required to create an adequate record directly contradicts the Commission's position that the use of Subpart G hearing procedures "is not essential to the development of an adequate hearing record." 69 Fed. Reg. at 2182. In fact, the Commission has explicitly stated that Subpart L procedures, through public access to NRC documents under § 2.390, mandatory disclosure requirements, and maintenance of a hearing file under § 2.1203, is "sufficient in most proceedings to provide a party with adequate information to prepare its position and

' See also AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), Memorandum and Order (Denying NIRS's Motion to Apply Subpart G Procedures) at 6 (June 5,2006) (unpublished)

(stating that the Commission's "regulations do not contemplate that a single alleged discovery dispute will give rise to the imposition of a Subpart G hearing procedure as a sanction").

presentations . . . ." Id. at 2195.' Riverkeeper's argument to the contrary ignores the Commission's determination and therefore, should be rejected.

CONCLUSION For the foregoing reasons, Riverkeepers' Motion should be denied. The Staff respectfully requests that the Board apply Subpart L procedures in the litigation of Riverkeeper's three admitted contentions.

Respectfully submitted, Jessica A. Bielecki Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 15th day of September 2008

' See also Staff Response at 11-12 & 17.20 (further discussing the Commission's statements regarding the adequacy of Subpart L procedures). In fact, in the recent Vermont Yankee license renewal proceeding, Subpart L procedures were used to litigate a contention similar to TC-2, challenging the adequacy of the applicant's program to monitor and manage the effects of aging of plant piping due to flow-accelerated corrosion. Vermont Yankee, LBP-06-20, 64 NRC at 192-94.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE 'THE ATOMIC SAFETY AND I-ICENSING BOARD In the Matter of 1 1

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR 1

(Indian Point Nuclear Generating )

Units 2 and 3) ) t CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S RESPONSE TO RIVERKEEPER'S REQUEST FOR SUBPART G HEARING PROCEDURES1',dated September 15,2008, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, as indicated by double asterisk, with copies by electronic mail on this 1 5 ' ~day of September, 2008:

Lawrence G. McDade, Chair* Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication*

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.qov 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.qov E-mail: Hearinq.Docketanrc.qov Dr. Kaye D. Lathrop* Zachary S. Kahn*

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.Lathro~@nrc.qov Washington, DC 20555-0001 E-mail: Zacharv.Kahn@.nrc.qov

Atomic Safety and Licensing Board Panel* Marcia Carpentier*

U.S. Nuclear Regulatory Commission Law Clerk Mail Stop: T-3 F23 Atomic Safety and Licensing Board Washington, DC 20555-0001 Mail Stop: T-3 E2B (Via Internal Mail Only) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Marcia.Car~entier@nrc.nov)

Kathryn M. Sutton, Esq.** William C. Dennis, Esq.**

Paul M. Bessette, Esq. Assistant General Counsel Martin J. O'Neill, Esq. Entergy Nuclear Operations, Inc.

Morgan, Lewis & Bockius, LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, D.C. 20004 E-mail: wdennis@enterqv.com E-mail: ksutton@morsanlewis.com E-mail: pbessette@mornanlewis.com E-mail: martin.o'neill@~moraanlewis.com Michael J. Delaney, Esq.** Susan H. Shapiro, Esq.**

Vice President - Energy Department 21 Perlman Drive New York City Economic Development Spring Valley, NY 10977 Corporation (NYCDEC) E-mail: mbs@ourrocklandoffice.com 110 William Street New York, NY 10038 E-mail: mdelanev@nvcedc.com Arthur J. Kremer, Chairman** Manna Jo Greene**

New York Affordable Reliable Electricity Hudson River Sloop Clearwater, Inc.

Alliance (AREA) 112 Little Market Street 347 Fifth Avenue, Suite 508 Poughkeepsie, NY 12601 New York, NY 10016 E-mail: Mannaio@clearwater.orq E-mail: aikremer@rmfpc.com kremeraarea-alliance.orq Justin D. Pruyne, Esq.** John LeKay**

Assistant County Attorney FUSE USA Office of the Westchester County Attorney 351 Dyckman Street 148 Martine Avenue, 61h Floor Peekskill, NY 10566 White Plains, NY 10601 E-mail: fuse u s a ~ v a h o o . c o m E-mail: jd~3@.westchesterc1ov.com

Daniel E. OINeill, Mayor** John J. Sipos, Esq.**

James Seirmarco, M.S. Charlie Donaldson, Esq.

Village of Buchanan Assistants Attorney General Municipal Building New York State Department of Law Buchanan, NY 10511-1298 Environmental Protection Bureau E-mail: vob@bestweb.net The Capitol Albany, NY 12224 E-mail: john.sipos@oan.state.nv.us Joan Leary Matthews, Esq.** Diane Curran, Esq.**

Senior Attorney for Special Projects Harmon, Curran, Spielberg & Eisenberg, LLP New York State Department of 1726 M Street, NW, Suite 600 Environmental Conservation Washington, D.C. 20036 Office of the General Counsel E-mail: dcurran@~harmoncurran.com 625 Broadway, 1 4 ' ~Floor Albany, NY 12233-1500 E-mail: jlmatthe@qw.dec.state.nv.us 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@po.state.ct.us E-mail: driesel@.s~rlaw.com isteinberqCi?sprlaw.com Ms. Nancy Burton** Mylan L. Denerstein, Esq.**

147 Cross Highway Janice A. Dean, Esq.

Redding Ridge, CT 06876 Executive Deputy Attorney General, E-mail: nancvburtonct@.aol.com Social Justice Office of the Attorney General of the State of New York 120 Broadway, 25'h Floor New York, NY 10271 E-mail: mvlan.denerstein@oan.state.nv.us janice.dean@oan.state.nv.us Victor Tafur, Esq.** Richard L. Brodsky, Esq.**

Phillip Musegaas, Esq. 5 West Main St.

Riverkeeper, Inc. Elmsford, NY 10523 828 South Broadway E-mail: brodskr@assemblv.state.nv.us Tarrytown, NY 10591 richardbrodsky@msn.com E-mail: phiIlip@riverkeeper.org vtafurCi?riverkeeper.org

Elise N. Zoli, Esq.** Sarah L. Wagner, Esq.**

Goodwin Procter, LLP Legislative Office Building, Room 422 Exchange Place Albany, NY 12248 53 State Street E-mail: sarahwasneresq@amaiI.com Boston, MA 02109 E-mail: ezoli@soodwinprocter.com

' Jessica A. bielecki Counsel for NRC Staff