ML090350569

LB Memorandum and Order (Summarizing Pre-Hearing Conference)

ML090350569
Person / Time
Site:	Indian Point
Issue date:	02/04/2009
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:
SECY/RAS
References
50-247-LR, 50-286-LR, RAS E-216
Download: ML090350569 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 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 4, 2009 Units 2 and 3)

MEMORANDUM AND ORDER (Summarizing Pre-Hearing Conference)

On January 14, 2009, this Board convened a pre-hearing conference to discuss various issues pending in the Indian Point License Renewal Proceeding. The following is a summary of the matters discussed during the conference including specific Board rulings.

1. Electronic Information Exchange The Board asked the parties to consider whether this proceeding should be transferred into the NRCs electronic filing system - the Electronic Information Exchange (EIE). More specifically, the Board directed the participants to review the information describing the EIE which can be found on the NRCs website and to decide whether they want to adopt the EIEs procedures. The Board then directed the NRC Staff to coordinate this effort and inform the Board within seven days whether the participants in the proceeding wanted to switch to the EIE format.1 Tr. at 757-58. To date, the Board has not been informed of the participants decision and we direct the NRC Staff to respond to the Board no later than February 9, 2009.

1 In order to transfer into the EIE system all of the participants in the proceeding must agree to switch. 72 Fed. Reg. 49,139.

2. Clarifying the Participants in the Proceeding The Board clarified that the participants in this proceeding, and the only entities that need to be on the service list, are the following: the Board (including its law clerk(s)), the Office of the Secretary, Entergy Nuclear Operations, Inc. (Entergy), the NRC Staff, the State of New York (New York), Riverkeeper, Inc. (Riverkeeper), Hudson River Sloop Clearwater (Clearwater), the State of Connecticut (Connecticut), Westchester County, the Town of Cortlandt, the Village of Buchanan, and the New York City Economic Development Corporation.

Tr. at 758-61.

3. Motion for Extension of Time to File Contentions On January 9, 2009, New York and Riverkeeper jointly filed a motion for an extension of time within which to file contentions related to the Draft Supplemental Environmental Impact Statement (Draft SEIS)2 that had been submitted by the NRC Staff on December 22, 2008.3 The motion asked for a 37-day extension of time to file. Entergy filed an answer to the motion and asked the Board to deny the extension request.4 The NRC Staff was allowed to address the motion orally during the pre-hearing conference.

The Board granted the Extension Motion. Tr. at 768. The Board found that the Motion was timely because it was reasonable for the intervenors to carefully review the Draft SEIS in an effort to file within an appropriate amount of time, and only to ask for an extension when it became clear that they would not be able to file contentions within the required time frame.

2 Motion by New York State and Riverkeeper for Extension of Time to File Timely Contentions Related to Draft Supplemental Environmental Impact Statement (Jan. 9, 2009)

[hereinafter Extension Motion].

3 Clearwater and Connecticut asked to join the Extension Motion during the pre-hearing conference. Tr. at 764-65.

4 Entergys Answer to New York State and Riverkeeper Motion for Extension of Time to File Contentions Related to Draft SEIS (Jan. 12, 2009).

Tr. at 765-66. The Board noted that the Extension Motion was filed sufficiently before the contentions were due and that it is in the best interests of the Board and the public for the participants to have time to provide well-thought out and well-written contentions. Tr. at 766.

Additionally, the Board reminded the parties that any new contentions may only deal with new environmental issues raised by the Draft SEIS. Tr. at 767-68. The Board will not entertain contentions based on environmental issues that could have been raised when the original contentions were filed.

The Board voiced its displeasure with the minimal efforts of New York and Riverkeeper to comply with the consultation requirements of 10 C.F.R. § 2.323(b). The parties were reminded that this is not merely a notice requirement but there must be a reasonable attempt to resolve the issue. Tr. at 767. The Board put all the parties on notice that if a motion is to be filed in the future, the Board expects a real effort on the part of the parties to resolve the issues presented before the motion is filed, not just simply a notice at the last minute that the motion is going to be filed. Tr. at 767.

4. Mandatory Disclosures The Board stated that it had no objections to the provisions of the Letter Agreement filed by the parties memorializing mandatory disclosure protocols agreed to by all parties.5 Based on a suggestion by the NRC Staff, the Board agreed to set January 30, 2009, as the due date for submission of the initial mandatory disclosures. Tr. at 830-31.

5. Scheduling The NRC Staff indicated that the Audit Report and the Safety Evaluation Report (SER) with Open Items would be filed shortly after the pre-hearing conference. Tr. at 773. The Audit 5

Agreement of the Parties Regarding Mandatory Discovery Disclosures (Jan. 13, 2009).

The Board also noted that no objection to the provisions of the agreement of the parties was made by any interested governmental entity and that all mandatory disclosures will be served on all the governmental bodies that have been admitted to this proceeding.

Report was filed on January 13, 2009,6 and the SER with Open Items was filed on January 15, 2009.7

6. Bifurcation of the Evidentiary Hearing During the pre-hearing conference the parties discussed the idea of bifurcating the evidentiary hearing to allow the safety contentions to be heard earlier than the environmental contentions. The Board deferred any ruling on the subject finding it premature until the Final SER is issued. Tr. at 777.

7. Limits on Pleading Length A question was raised regarding a page limitation on pleadings. The Board noted that all of the participants who are currently involved in this proceeding have consistently submitted pleadings that are of an appropriate length. Therefore, relying on the assumption that all participants would continue to file such focused pleadings, the Board stated that it would not set a page limitation on pleadings at this time but indicated that it could reconsider that ruling in the event that this leeway was abused in the future. Tr. at 786.

8. Disclosure of Various Codes New York asserted that it had not reached an agreement with the NRC Staff with respect to the States ability to have access to the MACCS2 code. Tr. at 787. New York also stated that it desired access to the MELCOR code. Tr. at 790. The NRC Staff responded that New York, or any other participant, can secure access to the MACCS2 code by paying a user fee.

Tr. at 789. The Board directed New York, acting on behalf of the intervenors, to discuss this issue in greater detail with the NRC Staff and Entergy to try to work out an agreement that would make available needed information. If they can not reach a satisfactory agreement, New 6

Letter from Sherwin Turk (NRC Staff) to the Licensing Board (Jan. 15, 2009).

7 Letter from Sherwin Turk (NRC Staff) to the Licensing Board (Jan. 22, 2009).

York was instructed to notify the Board. Tr. at 790-91.

In terms of the CHECWORKS code, Riverkeeper indicated that it would engage in discussions with Entergy regarding the possibility of entering into a protective agreement that would allow for the release of information about the code. Tr. at 797.

New York and Riverkeeper shall provide the Board with a status report on the negotiations regarding the disclosure of codes by March 1, 2009.

9. Schedule for Filing New or Amended Contentions and Adopting Contentions The Board declined to set a schedule for the filing of new or amended contentions and stated that it would follow the requirements of 10 C.F.R. § 2.309(f)(2) and case law. Tr. at 797-

98. In addition, the Board stated that it considered the presumption of 25 days to respond to new or amended contentions, expressed in 10 C.F.R. § 2.309(h), to be appropriate but would consider motions to lengthen or shorten the time for responding based on specific, relevant facts. Tr. at 798. In addition, the Board stated that parties would have 30 days to adopt any new or amended contentions that are accepted by the Board. Tr. at 798-99.

10. Discovery of Documents Reviewed but Not Taken into Possession by the NRC Staff The NRC Staff pointed to the Commissions decision in CLI-08-23 wherein the Commission indicated that documents created by individual reviewers, not shared with other members of the NRC Staff, and that do not contain unique information, need not be retained.

Tr. at 800. Furthermore, the NRC Staff pointed out that the Audit Report would list the documents reviewed on site but not taken into possession. Tr. at 801. The Board noted that if there are documents on this list that Entergy does not disclose as part of its mandatory disclosures, and another participant believes they should be disclosed, that participant may come to the Board and represent why the documents should be disclosed. Tr. at 801-02.

11. Schedule for Summary Disposition The Board expressed its strong feeling that there not be late-filed motions for summary

disposition. Tr. at 803. However, the Board declined to set a specific date for when summary disposition motions may no longer be filed. The Board advised the parties that it would set a date for submission of motions for summary disposition that would be significantly in advance of the hearing. Tr. at 804.

12. Communications Between the NRC Staff and Entergy The NRC Staff described the different forms of communication between the NRC Staff and Entergy: telephone communications, meetings, e-mail communications, and written communications. Tr. at 805. The NRC Staff stated that documents submitted by Entergy to the NRC Staff are not necessarily sent to all parties on the adjudicatory service list, but they do become part of the Hearing File and are available on ADAMS. The documents sent by the NRC Staff to Entergy are copied to every party on the Technical Staff Service List, placed in the Hearing File, and are available on ADAMS. Tr. at 805-06. Email communications are collected and placed in the Hearing File. Tr. at 819. The NRC Staff stated that it tries to provide advanced notice to the parties on the Technical Staff Service List of any meetings or telephone calls between the NRC Staff and Entergy, and the summaries of the meetings or calls will be put into ADAMS and the Hearing File. Tr. at 819-20.

The Board pointed out that in its view, placing documents on ADAMS does not necessarily mean that the participants in this litigation are on notice of the documents existence but that placing a document into the Hearing File does put the participants on notice. The Board anticipates that all documents subject to disclosure will be put into the Hearing File within 30 days after they become available.

13. Searchability of Discovery Documents There was a lengthy discussion during the conference regarding the searchability of documents provided during the disclosure process. Tr. at 780-85, 823-24, 831-32. The participants in the litigation had come to an agreement regarding the searchability requirements

of the initial mandatory disclosures, however some parties expressed displeasure about the agreement. The Board did not make any rulings on the issue but encouraged the parties to engage in discussions to reach an agreement about the searchability of all future documents after the initial mandatory disclosures.

The Board is of the view that in the interest of expediting this proceeding, wherever possible, document production should be made in an electronic format that is efficiently and economically searchable and that the failure to do so may well result in the necessity of the Board granting extensions of time to participants who are required to inefficiently review disclosed documents.

Any participant to this proceeding may request that this Board conduct a pre-hearing conference to resolve matters that may arise. Absent a request from one or more participant, the Board anticipates convening another pre-hearing conference in approximately 90 days and, after consultation regarding conflicts, will issue the appropriate Scheduling Order.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD8

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, MD February 4, 2009 8

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 Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Alfred J. Donahue, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.

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

)

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

) 50-286-LR

)

(Indian Point Nuclear Generating Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (SUMMARIZING PRE-HEARING CONFERENCE) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sherwin E. Turk, Esq.

Administrative Judge Beth N. Mizuno, Esq.

Lawrence G. McDade, Chair David E. Roth, Esq.

Jessica A. Bielecki, Esq.

Administrative Judge Marcia J. Simon, Esq.

Richard E. Wardwell Karl Farrar, Esq.

Brian Harris, Esq.

Administrative Judge Brian Newell, Paralegal Kaye D. Lathrop 190 Cedar Lane E.

Ridgway, CO 81432 Zachary S. Kahn, Law Clerk

2 Docket Nos. 50-247-LR and 50-286-LR LB MEMORANDUM AND ORDER (SUMMARIZING PRE-HEARING CONFERENCE)

William C. Dennis, Esq. Andrew M. Cuomo, Attorney General Assistant General Counsel John J. Sipos, Assistant Attorney General Entergy Nuclear Operations, Inc. Mylan L. Denerstein 440 Hamilton Avenue Deputy Assistant Attorney General White Plains, NY 10601 Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq. Joan Leary Matthews, Esq.

Paul M. Bessette, Esq. Senior Attorney for Special Projects Martin J. ONeill, Esq. New York State Department Mauri T. Lemoncelli, Esq. of Environmental Conservation Counsel for Entergy Nuclear Operation, Inc. 625 Broadway, 14th Floor Morgan, Lewis & Bockius, LLP Albany, New York 12233-5500 1111 Pennsylvania Avenue, NW Washington, DC 20004 Michael J. Delaney Robert D. Snook, Esq.

Vice President, Energy Department Office of The Attorney General New York City Economic Development State of Connecticut Corporation (NYCEDC) 55 Elm Street 110 William Street P.O. Box 120 New York, NY 10038 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman Stephen C. Filler, Board Member New York Affordable Reliable Electricity Hudson River Sloop Clearwater, Inc.

Alliance (AREA) 303 South Broadway, Suite 222 347 Fifth Avenue, Suite 508 Tarrytown, NY 10591 New York, NY 10016

3 Docket Nos. 50-247-LR and 50-286-LR LB MEMORANDUM AND ORDER (SUMMARIZING PRE-HEARING CONFERENCE)

Daniel E ONeill, Mayor Manna Jo Greene, Environmental Director James Siermarco, M.S. Hudson River Sloop Clearwater Liaison to Indian Point 112 Little Markey Street Village of Buchanan Poughkeepsie, NY 12601 Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 Thomas F. Wood, Esq. Nancy Burton, Esq.

Town of Cortlandt Connecticut Residents Opposed Daniel Riesel, Esq. to Relicensing of Indian Point (CRORIP)

Jessica Steinberg, J.D. 147 Cross Highway Counsel for the Town of Cortlandt Redding Ridge, CT 06876 Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 Elise N. Zoli, Esq. Justin D. Pruyne Goodwin Proctor, LLP Assistant County Attorney, Litigation Bureau Exchange Place Of Counsel to Charlene M. Indelicato, Esq.

53 State Street Westchester County Attorney Boston, MA 02109 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA Westchester Citizens Awareness Network John LeKay (WestCan), Citizens Awareness Network, (CAN),

Heather Ellsworth Burns-DeMelo etc.

Remy Chevalier Bill Thomas Susan H. Shapiro, Esq.

Belinda J. Jaques 21 Pearlman Drive 351 Dyckman Street Spring Valley, NY 10977 Peekskill, New York 10566

4 Docket Nos. 50-247-LR and 50-286-LR LB MEMORANDUM AND ORDER (SUMMARIZING PRE-HEARING CONFERENCE)

Victor M. Tafur, Senior Attorney Richard L. Brodsky Philip Musegaas, Esq. Assemblyman Deborah Brancato, Esq. 5 West Main Street Riverkeeper, Inc. Suite 205 828 South Broadway Elmsford, NY 10523 Tarrytown, NY 10591 Diane Curran, Esq. Sarah L. Wagner, Esq.

Counsel for Riverkeeper, Inc. Legislative Office Building, Room 422 Harmon, Curran, Spielberg, Albany, NY 12248

& Eisenberg, LLP 1726 M. Street NW, Suite 600 Washington, DC 20036

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 4th day of February 2009