ML12272A363

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Entergy'S Emergency Petition for Interlocutory Review of Board Order Granting Cross-Examination to New York State and Request for Expedited Briefing
ML12272A363
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 09/28/2012
From: Bessette P, Dennis W, Glew W, Kuyler R, Sutton K
Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP
To:
NRC/OCM
SECY RAS
References
RAS 23530, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12272A363 (26)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) September 28, 2012 ENTERGYS EMERGENCY PETITION FOR INTERLOCUTORY REVIEW OF BOARD ORDER GRANTING CROSS-EXAMINATION TO NEW YORK STATE AND REQUEST FOR EXPEDITED BRIEFING William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY SERVICES, INC. Raphael P. Kuyler, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND .............................................................................................................. 4 A. THE INDIAN POINT LICENSE RENEWAL PROCEEDING ........................... 4 B. THE BOARDS DECISION.................................................................................. 6 III. ARGUMENT ..................................................................................................................... 8 A. THE COMMISSION SHOULD GRANT INTERLOCUTORY REVIEW OF THE BOARDS ORDER BECAUSE IT SERIOUSLY PREJUDICES ENTERGY IN A WAY THAT CANNOT BE REMEDIED LATER .................. 8 B. THE BOARDS ORDER IGNORES THE COMMISSIONS DIRECTION FOR CROSS-EXAMINATION IN SUBPART L PROCEEDINGS .................................................................................................. 10 C. THE BOARDS UNPRECEDENTED ORDER GRANTING CROSS-EXAMINATION RIGHTS TO NEW YORK ALONE IS ERRONEOUS, PREJUDICIAL, AND SHOULD BE REVERSED ON REVIEW ..................... 11

1. The Boards Decision to Grant Cross Examination Is Unprecedented and Contrary to the Governing Regulations ................... 11
2. The Boards Decision to Grant Cross-Examination Only to New York Alone Is a Prejudicial Procedural Error .......................................... 14
3. The Boards Unprecedented Decision Raises Substantial Questions of Law, Policy, and Discretion ................................................................ 15 D. IN THE ALTERNATIVE, ENTERGY SHOULD BE AFFORDED EQUAL RIGHT TO EXAMINE WITNESSES ON NEW YORKS CONTENTIONS.................................................................................................. 16 IV. CONCLUSION ................................................................................................................ 17

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TABLE OF AUTHORITIES Page DECISIONS A. U.S. Supreme Court Mathews v. Eldridge, 424 U.S. 319 (1976)....................................................................................15 B. U.S. Court of Appeals Citizens Awareness Network v. United States, 391 F.3d 338 (1st Cir. 2004) ................................11 City of W. Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983) ............................................................15 Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978) ......................................15 D. Nuclear Regulatory Commission Amergen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station),

Licensing Board Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives and Final Scheduling Order) (Apr. 17, 2007) (unpublished) .........................................................................14 Ameren Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009).....................................................................................................8, 9 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

CLI-02-7, 55 NRC 205 (2002).........................................................................................................8 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2),

CLI-04-6, 59 NRC 62 (2004)...........................................................................................................9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

CLI-10-30, 72 NRC __ (2010).......................................................................................................13 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

LBP-11-17, 74 NRC __ (2011).....................................................................................................13 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Notice of Hearing (Application for License Renewal)

(June 8, 2012) (unpublished) ....................................................................................................1,3, 4 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Order (Denying Applicants Motion for Leave to File Surrebuttal Testimony on NYS-12C) (Aug. 2, 2012) (unpublished).............................................14

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TABLE OF AUTHORITIES Page Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Order (Evidentiary Hearing Administrative Matters)

(Sept. 14, 2012) ................................................................................................................................4 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Order (Granting in Part and Denying in Part Applicants Motion in Limine)

(Mar. 6, 2012) ................................................................................................................................13 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Order (Order Granting, in part, New Yorks Motion for Cross Examination) (Sept. 21, 2012) ............................................................................................... passim Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Order (Scheduling Order) (July 1, 2010) (unpublished) ..............................4, 6, 7 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3),

Licensing Board Memorandum and Order (Ruling on Motion for Summary Disposition)

(Nov. 3, 2009) ................................................................................................................................13 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station),

LBP-04-31, 60 NRC 686 (2004) ......................................................................................................5 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station),

LBP-06-20, 64 NRC 131 (2006) ......................................................................................................5 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station),

CLI-07-16, 65 NRC 731 (2007).......................................................................................................5 Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station),

CLI-10-17, 70 NRC __ (2010).......................................................................................................15 Exelon Generation Co. (Early Site Permit for the Clinton ESP Site),

CLI-04-31, 60 NRC 461 (2004).......................................................................................................8 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2),

CLI-95-15, 42 NRC 181 (1995).....................................................................................................10 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-565, 10 NRC 521 (1979) ...............................................................................................9, 15 Hydro Resources Inc. (2929 Coors Road Suit 101, Albuquerque, New Mexico, 87120),

CLI-98-8, 47 NRC 314 (1998).........................................................................................................9 Hydro Resources Inc. (P.O. Box 777, Crownpoint, New Mexico, 87313),

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TABLE OF AUTHORITIES Page CLI-06-7, 63 NRC 165 (2006).......................................................................................................15 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-05, 75 NRC __ (Mar. 8, 2012) ..........................................................................................13 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2),

LBP-09-22, 70 NRC 640 (2009) ................................................................................................3, 10 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-839, 24 NRC 45 (1986) .....................................................................................................10 Siemaszko, CLI-06-12, 63 NRC 495 (2006) ....................................................................................9 Virginia Electric Power Co. (North Anna Power Station, Units 1 & 2)

ALAB-741, 18 NRC 731 (1983) .....................................................................................................8 Wisconsin Electric Power Co. (Point Beach Nuclear Plant Unit 1),

ALAB-696, 16 NRC 1245 (1982) ...................................................................................................3 FEDERAL STATUTES 42 U.S.C. § 2021(l) ..................................................................................................................2, 5, 6 FEDERAL REGULATIONS 10 C.F.R.

§ 2.310(d) .............................................................................................................................4

§ 2.319(d)-(e) .....................................................................................................................13

§ 2.341 .................................................................................................................................1

§ 2.341(f)(2) .........................................................................................................................8

§ 2.341(b)(4)(ii)-(iv) ....................................................................................................11, 15

§ 2.1204................................................................................................................2, 4, 11, 12

§ 2.1204(b) .................................................................................................................2, 7, 17

§ 2.1204(b)(3) .........................................................................................................5,6, 7, 12

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TABLE OF AUTHORITIES Page

§ 2.1207(a) .........................................................................................................................13

§ 2.1207(a)(3)(i) ...................................................................................................................4

§ 2.1207(a)(3)(ii)..................................................................................................................4

§ 2.1207(b)(6) ....................................................................................................................13 FEDERAL REGISTER 69 Fed. Reg. 2182 Changes to Adjudicatory Process, Final Rule (Jan. 14, 2004).................................. passim

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) September 28, 2012 ENTERGYS EMERGENCY PETITION FOR INTERLOCUTORY REVIEW OF BOARD ORDER GRANTING CROSS-EXAMINATION TO NEW YORK STATE AND REQUEST FOR EXPEDITED BRIEFING I. INTRODUCTION Pursuant to 10 C.F.R. § 2.341, Entergy Nuclear Operations, Inc. (Entergy) petitions the U.S. Nuclear Regulatory Commission (the Commission) for interlocutory review, with expedited briefing, of the Atomic Safety and Licensing Boards (Board) September 21, 2012 Order (Order Granting, in part, New Yorks Motion for Cross Examination) (Order).1 Entergy also respectfully requests an expedited briefing schedule.

The hearing in this proceeding is set to begin in less than three weeks.2 Expedited, immediate review is necessary because the Order threatens Entergy with immediate, serious, and irreparable harm and affects the basic structure of this proceeding in a pervasive and unusual manner.

1 In connection with this Petition, Entergy also filed a separate application for a stay of the Order, and any hearings to be conducted under the Order, pending the disposition of this appeal. See Entergys Application to Stay Board Order Granting Cross-Examination to New York State and Stay the Hearing Pending the Commissions Decision on Entergys Emergency Petition for Interlocutory Review (Sept. 28, 2012) (Stay Application). Entergy has no objection to proceeding with hearings on the contentions of other Intervenors and is not requesting a stay of those hearings.

2 See Licensing Board Notice of Hearing (Application for License Renewal) at 5 (June 8, 2012) (unpublished)

(Notice of Hearing).

If interlocutory review is granted, reversal of the Boards Order is warranted. The Order rests solely on regulations that even the moving party (the State of New York (New York))

explicitly disclaimed in its moving papers as inapplicable.3 The Order does not rest on Section 274(l) of the Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. § 2021(l), which was New Yorks entire basis for its request for cross-examination. Under 10 C.F.R. § 2.1204, the regulation that does govern this proceeding, cross-examination is allowed only in rare circumstances where it is the only reasonable course of action, because the Boards examination of witnesses is the better approach to develop an adequate record.4 In granting New Yorks request for cross-examination (while at the same time implicitly rejecting New Yorks entire basis for that request), the Board failed to require New York to carry its burden (or any burden) of demonstrating that cross-examination is necessary, as the governing regulations require.

In light of New Yorks reliance only on 42 U.S.C. § 2021(l) for its cross-examination request, Entergy and other parties, including the NRC Staff, had no opportunity to address whether the state can satisfy the cross-examination standards set forth in 10 C.F.R. § 2.1204(b).

Without the benefit of the parties briefing, the Board based its Order on an entirely new and prejudicial standard for permitting cross-examination: when the proceeding involves a voluminous and technical record.5 This broad standard has already been rejected by the Commission,6 and it cannot be reconciled with the rule that cross-examination in proceedings 3

State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) at 15 (Aug. 8, 2012) (Motion).

4 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2196 (Jan. 14, 2004).

5 Order at 6.

6 See Changes to Adjudicatory Process, 69 Fed. Reg. at 2204-5 (considering and rejecting a rule that would have allowed Subpart G procedures (including cross-examination) to be used in proceedings involving numerous/complex issues).

such as this one should occur only when it is absolutely necessary. Indeed, no Boarduntil this onehad ever granted cross-examination rights to a party in a Subpart L proceeding.7 What is more, the Boards unprecedented, sua sponte, grant of broad cross-examination only to a single party, while ignoring Entergys request for a reciprocal opportunity, establishes a hearing process that is manifestly unfair. Entergy and the NRC Staff, not New York, have the burden of proof in this proceeding. The Board has, in effect, shared its responsibility to conduct an efficient and impartial hearing with a single party, giving New Yorkan opponent of license renewalan unfair procedural advantage, particularly given that its witnesses will not be subject to equal cross-examination under the Order.

Because less than three weeks remain before the hearing is scheduled to begin,8 Entergy respectfully requests that the Commission order expedited briefing of this petition for review, so that hearings can proceed on schedule.9 To that end, Entergy proposes the following briefing schedule to allow the Commission sufficient time to rule in advance of the hearing:

1. Any responses to this petition should be due within five calendar days after this petition is filed.
2. Any reply to an answer filed in response to this petition should be due within two calendar days after the response is filed.

7 See Progress Energy Fl., Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-22, 70 NRC 640, 651 n.27 (2009) (To date, no party has ever been granted the opportunity to conduct cross-examination in a Subpart L proceeding).

8 See Notice of Hearing at 5.

9 See, e.g., Wis. Elec. Power Co. (Point Beach Nuclear Plant Unit 1), ALAB-696, 16 NRC 1245, 1263 (1982)

(As a general matter when expedition is necessary, the Rules of Practice are sufficiently flexible to permit it by ordering such steps as shorteningeven drastically in some circumstancesthe various time limits for the partys filings . . . .).

As an alternative to the Commissions reversal of the Order, Entergy respectfully requests that the Commission grant Entergy a full and equal right to examine witnesses at the hearing on its license renewal application.

II. BACKGROUND A. THE INDIAN POINT LICENSE RENEWAL PROCEEDING Entergys Indian Point Nuclear Generating Units 2 and 3 (Indian Point) reactors operate under licenses which expire on September 28, 2013, and December 12, 2015, respectively. In April 2007, Entergy filed a timely application to renew those licenses. On October 15, 2012less than three weeks from todaythe Board will preside over a hearing on ten currently pending admitted contentions.10 This license renewal hearing is being held under the procedures in 10 C.F.R., Subpart L.11 Consistent with 10 C.F.R. § 2.1207(a)(3)(i) and (ii), the Boards Scheduling Order provides all parties the opportunity to submit confidential proposed questions for the Board to ask witnesses.12 The parties have submitted questions to the Board pursuant to NRC regulations and the Boards Scheduling Order.

The Scheduling Order also allowed parties to file motions for cross examination of a specified witness or witnesses under 10 C.F.R. § 2.1204, and to file motions to apply Subpart G procedures for a particular contention under Section 2.310(d).13 New York did neither. Arguing 10 See Licensing Board Order (Evidentiary Hearing Administrative Matters) at 2-3 (Sept. 14, 2012)

(unpublished).

11 See Notice of Hearing at 4.

12 See Licensing Board Order (Scheduling Order) at 15-16 (July 1, 2010) (unpublished) (Scheduling Order).

13 See Motion at 16 -17 (emphasis added).

that the standards for cross-examination in Subpart L proceedings were inapplicable,14 the state instead filed a sweeping motion for cross-examination on all of its contentions under Section 274(l) of the AEA (42 U.S.C. § 2021(l)) asserting that this statue granted New York an absolute, inviolate, and unfettered right to cross-examination because of its status as a sovereign state.15 New York demanded a hearing process that would give the state the final word on all contentions by allowing it to conduct cross-examination after any of the Boards witness examinations.16 By asserting that this right arose from its status as a sovereign state,17 New York held that other parties did not hold a similar right to cross-examination in this proceeding.

Entergy and the NRC Staff filed timely answers to New Yorks Motion.18 Citing previous Board determinations as support,19 Entergy (and the Staff) argued that Section 274(l) of the AEA confers the same opportunity to cross-examine witnesses as that set forth in Section 2.1204(b)(3)and not the absolute right asserted by New York.20 Entergy and the Staff objected that New Yorks citations to excerpts of legislative history were taken out of context, and did not transform the plain language of the statutewhich on its face confers a 14 Id. at 15 (emphasis added). Because New York did not rely on the Subpart L cross-examination standards, New York did not consult with Entergy or the NRC Staff on any motion related to the application of those standards in this proceeding 15 Motion at 1, 4, 7, 10.

16 See id. at 1-2.

17 See id. at 4, 7, 10, 16.

18 Entergys Answer Opposing New York States Motion to Cross-Examine (Aug. 20, 2012) (Entergys Answer); NRC Staffs Answer to State of New Yorks Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) (Aug. 20, 2012) (NRC Staffs Answer).

19 See Entergys Answer at 5-7 (citing Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station),

LBP-04-31, 60 NRC 686, 698 (2004); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),

LBP-06-20, 64 NRC 131, 203-04 (2006), revd on other grounds, Entergy Nuclear Vt. Yankee. (Vt. Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371 (2007)).

20 See generally Entergys Answer.

reasonable opportunity for cross-examinationinto the absolute right asserted by New York.21 Entergy (and the Staff) also explained that New York failed to satisfy its burden to show that cross-examination is necessary and, therefore, was unable to satisfy standards set forth in 10 C.F.R. § 2.1204(b)(3). Furthermore, New York could not overcome the Commissions presumption that examination by the Board is the better approach for assuring the expeditious, controlled and deliberate development of an adequate record for decision in informal hearings such as this one.22 Entergy also highlighted the patent unfairness of New Yorks approach, and requested an equal opportunity for cross-examination if the Board were to grant such cross-examination rights to New York.23 Entergy did not, in its answer, address with any particularity whether cross-examination was necessary for a specified witness or witnesses24 because New York made no such arguments in its Motion. The NRC Staff took a similar position in their answer, arguing that New Yorks interpretation of AEA § 274(l) lacked merit, conflicted with Board interpretations of the statute, and that New Yorks request for one-sided cross-examination rights was unsupported.25 B. THE BOARDS DECISION On September 21, 2012, the Board issued an Order granting part of New Yorks motion.

It did so, however, on a basis that New York had explicitly disavowed. The Board ruled sua sponte that under Section 2.1204(b)(3) cross-examination by New York (and New York alone) is necessary to ensure an adequate record because the pre-filed testimony and exhibits in this 21 See id. at 9-11.

22 See id. at 12-13 (quoting Changes to Adjudicatory Process, 69 Fed. Reg. at 2195-96).

23 See id. at 10-11 & n.10.

24 See Scheduling Order at 16.

25 See NRC Staffs Answer at 2.

proceeding are voluminous and technical.26 The Board also found that New York satisfied the requirement under Section 2.1204(b) by submitting proposed examination questions on its contentions for use by the Boardas all parties did under Section 2.1207(b)(6).27 The Board provided no analysis to support its conclusions.

The Board wholly adopted New Yorks proposal that the state be permitted to examine witnesses after the Board has done so, as long as its questions are relevant, reasonable, and non-repetitive.28 Thus, the Order does not limit New York to cross-examination, but broadly permits examin[ing] witnesses. To that extent, the Order apparently grants more rights to New York than it had requested. Moreover, the Order is silent on Entergys conditional request that if New Yorks Motion for cross-examination were granted, Entergy should be granted the same opportunity, particularly considering that Entergy bears the ultimate burden of proof in this proceeding.29 On September 24, 2012, the Board discussed its Order in a pre-hearing conference call in response to questions from the NRC Staff and Entergy. During that conference, the Board Chair confirmed that New York will have the opportunity to examine witnesses on areas that the Board missed in its own witness examinations.30 Although the Chair suggested that it might limit New Yorks questioning if it becomes repetitive31 and stated that other parties will have the opportunity for cross-examination on discrete issues through oral motions at the hearing if they 26 Order at 6.

27 Id. The Board also dismissed Entergys timeliness objections to New Yorks Motion by finding that its very recent Order (Memorializing Items Discussed During the July 9, 2012, Status Conference) (July 12, 2012)

(unpublished) implicitly authorized the filing of cross-examination motions other than those contemplated in 10 C.F.R. § 2.1204(b)(3) and the Boards original Scheduling Order. See Order at 6.

28 Order at 7.

29 See Entergys Answer at 11 n.10.

30 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 1 & 2 [sic2 & 3] at 1238 (Sept.

24, 2012) (Tr.).

31 Id.

make a sufficiently compelling request,32 only New York can examine witnesses without any demonstrationcompelling or otherwise. Further, although Entergy reiterated its previous, conditional request for equal cross-examination rights, the Chair responded by stating that [n]o other party requested cross-examination.33 III. ARGUMENT A. THE COMMISSION SHOULD GRANT INTERLOCUTORY REVIEW OF THE BOARDS ORDER BECAUSE IT SERIOUSLY PREJUDICES ENTERGY IN A WAY THAT CANNOT BE REMEDIED LATER Under 10 C.F.R. § 2.341(f)(2), interlocutory review is appropriate when a decision of the presiding officer:

  • affects the basic structure of the proceeding in a pervasive and unusual manner; or
  • threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officers final decision.

As demonstrated below, interlocutory review of the Boards Order is warranted for both reasons.

First, the Boards Order presents a dispute over the very nature of the hearing in a particular proceeding, which the Commission has deemed a sufficient basis for interlocutory review.34 The Boards Order, on its face, grants New York the broad right to examine witnesses, but does not identify the specific individuals who are subject to New Yorks cross-examination. With minimal time to prepare, Entergy must spend time and resources preparing 32 Id. at 1239.

33 Id. at 1242.

34 Exelon Generation Co. (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 467 (2004);

Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 55 NRC 205, 214 (2002) (granting interlocutory review on an appeal that questioned the very structure of the licensing process); Va. Elec. Power Co. (N. Anna Power Station, Units 1 & 2), ALAB-741, 18 NRC 371, 378 n.11 (1983) (interlocutory review is appropriate when the error fundamentally alters the very shape of the ongoing adjudication) (citations omitted); cf. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 279 (2009) (rejecting a post-hearing appeal of the selection of hearing procedures as untimely because such an appeal cannot wait until a board issues a decision on the merits of a contention).

each of its witnesses on a broad number of topics for which New York might seek cross examination. In such a proceeding, Entergy, New York, and the NRC staff are likely to disagree on the scope, duration, and substance of testimony on cross-examination. Additional hearing time dedicated to these issues is assured. It is difficult to imagine a more pervasive and unusual effect on the basic structure of a proceeding.35 Second, the Order threatens Entergy with immediate and serious irreparable harm by granting another party an unequal, essentially unfettered right to examine witnesses without granting Entergy the same right.36 In view of Entergys burden of proof in this proceeding, the Boards proposed process disproportionately favors New York.37 This uneven treatment is further underscored by the Board Chairs suggestion in the subsequent prehearing conference that Entergy may seek cross examination only by making a sufficiently compelling showing that justifies cross-examination on discrete issues or certain witnesses.38 Interlocutory review also is appropriate under the irreparable impact standard where the order at issue is reviewable now or not at all.39 The Commission has previously granted interlocutory review when it would be difficult to unscramble and remedy the effects of an order in the future, particularly in a lengthy, complex, and contentious proceeding, which spans years 35 See Siemaszko, CLI-06-12, 63 NRC 495, 500 (2006) (granting interlocutory review of an order holding an enforcement proceeding in abeyance indefinitely because the decision stopp[ed] the entire proceeding in its tracks and because the Commission and its boards have rarely, if ever made such a decision).

36 See Oyster Creek, CLI-09-7, 69 NRC at 269.

37 See Hous. Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979) (the cardinal rule, so far as fairness is concerned, is that each side must be heard).

38 Tr. at 1239.

39 Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-98-8, 47 NRC 314, 321 (1998);

see also Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 NRC 62, 71 (2004)

(Review at the end of the case would be meaningless because the Commission cannot later, on appeal from a final Board decision, rectify an erroneous disclosure order. A bell cannot be unrung.)

of litigation and has generated a massive record.40 By subjecting Entergys witnesses to wide-ranging cross-examination by New York without a reciprocal right to cross-examine New Yorks witnesses, the Boards Order will prejudice Entergy in a way that cannot be undone after the hearing.41 Indeed, the Order will affect the record on at least seven pending admitted contentions proffered by New York, and possibly other contentions.

B. THE BOARDS ORDER IGNORES THE COMMISSIONS DIRECTION FOR CROSS-EXAMINATION IN SUBPART L PROCEEDINGS According to the Commission, the use of cross examination will be rare in Subpart L proceedings.42 There are two reasons for this limitation. First, cross-examination conducted by the parties often is not the most effective means for ensuring that all relevant and material information with respect to a contested issue is efficiently developed for the record of the proceeding.43 Second, questioning by the Board after consideration of questions for witnesses propounded by the parties, has the potential to be the better approach for assuring the expeditious, controlled and deliberate development of an adequate record for decision.44 Consistent with that determination, no Board has ever granted cross-examination in any Subpart L proceeding.45 The Commission has rejected other bases for cross-examination in such proceedings.

While promulgating the 2004 revisions to 10 C.F.R. Part 2, the Commissions proposed rule 40 Ga. Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), CLI-95-15, 42 NRC 181, 184 (1995).

41 Interlocutory review has also been found appropriate when a Board order compromises the ability of a party to challenge a future final Board ruling. See Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-839, 24 NRC 45, 50 (1986). Here, the one-sided record that would be created by allowing New York a unilateral right of cross-examination would compromise Entergys ability to appeal any future adverse Board rulings.

42 Changes to Adjudicatory Process, 69 Fed. Reg. at 2228.

43 Id. at 2195-96 (emphasis added).

44 Id. (emphasis added).

45 See Levy County, LBP-09-22, 70 NRC at 651 n.27.

included a provision making cross-examination more generally available in licensing proceedings with a large number of complex issues.46 After notice and public comment on the proposal, the Commission decided against adopting the provision because, among other reasons, such an approach would spur unnecessary litigation and it could not ensure that testimony would assist the Board in complex cases.47 Thus, the Commission has firmly rejected the idea that cross-examination is necessary on the sole ground that the issues are complex and numerous.48 C. THE BOARDS UNPRECEDENTED ORDER GRANTING CROSS-EXAMINATION RIGHTS TO NEW YORK ALONE IS ERRONEOUS, PREJUDICIAL, AND SHOULD BE REVERSED ON REVIEW The Commission should grant review under 10 C.F.R. § 2.341(b)(4)(ii)-(iv) and reverse the Boards Order because the decision to grant New York (and New York alone) cross-examination: (1) is without precedent and contrary to established law; (2) is a prejudicial procedural error; and (3) raises substantial and important questions of law, policy, or discretion.

1. The Boards Decision to Grant Cross Examination Is Unprecedented and Contrary to the Governing Regulations.

New Yorks motion did not request cross-examination under 10 C.F.R. § 2.1204, and indeed explicitly disclaimed that the regulation applied to its request. In a Subpart L proceeding,

[t]he party seeking to cross-examine bears the burden of showing that cross-examination is necessary.49 Under this standard, parties may cross-examine witnesses only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development 46 Changes to Adjudicatory Process, 69 Fed. Reg. at 2204.

47 See id. at 2204-05.

48 See id.

49 Citizens Awareness Network v. United States, 391 F.3d 338, 351 (1st Cir. 2004) (quoting Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 880 n.16 (1st Cir. 1978)).

of an adequate record for decision.50 As explained by the Commission, the showing of necessity for cross-examination is a high bar to overcome:

[T]he presiding officer will permit cross-examination only in the rare circumstance where the presiding officer finds in the course of the hearing that his or her questioning of witnesses will not produce an adequate record for decision, and that cross-examination by the parties is the only reasonable action to ensure the development of an adequate record.51 By relying only on the AEA for its request for cross-examination, and disclaiming the applicability of 10 C.F.R. § 2.1204, New York failed to assert any necessity for cross-examining witnesses. Entergys response, in turn, challenged New York on its AEA arguments because New York was asserting no basis for relief under 10 C.F.R. § 2.1204. Inasmuch as New York offered no showing of necessity for cross-examination, the Boards Order should be reversed.

Although purporting to grant New Yorks request pursuant to Section 2.1204(b)(3), the Board made a sua sponte ruling that cross-examination by New York (and New York alone) is necessary to ensure an adequate record because the pre-filed testimony and exhibits in this proceeding are voluminous and technical.52 As explained above, the Board thus adopted a legal standard the Commission has already considered and rejected.53 The rejected numerous/complex issues standard is indistinguishable from the voluminous and technical record standard articulated by the Board.54 Moreover, because nearly every contested 50 10 C.F.R. § 2.1204(b)(3) (emphasis added).

51 Changes to Adjudicatory Process, 69 Fed. Reg. at 2196 (emphases added). Notably, the Commissions discussion of this issue implies cross-examination by the parties, not by only one party.

52 Order at 6. Also, as noted in Section II.B, above, by granting New York the right to examine witnesses, the Order is not necessarily limited to cross-examination.

53 As noted previously, the parties did not consult on this issue, and had no opportunity to brief the application of this standard to the facts of this case, because New Yorks Motion did not raise the issue.

54 Changes to Adjudicatory Process, 69 Fed. Reg. at 2204-05.

proceeding involves a voluminous and technical record, cross-examination will no longer be the exception, but the rule. That is directly contrary to the Rules of Practice and the Commissions decades-long effort to develop more efficient hearing processes.55 The Boards new standard is also unnecessary. The existing rules already provide ample means for the Board to develop the record. First, the Board has received extensive testimony and briefings by the parties, as contemplated in Section 2.1207(a). Second, the Board has received proposed questions by the parties and, if it so chooses, may ask the parties to submit additional questions for its consideration during the evidentiary hearing.56 Finally, to focus the hearing, the Board can restrict evidence that is irrelevant, immaterial, and unreliable,57 although it has generally thus far declined to do so in this proceeding.58 Although the Board may use each of these hearing procedures to develop an adequate record, it has not explained in its Order why cross-examination by New York (and New York alone) is the only reasonable action for this purpose. Here, it is noteworthy that the contentions in this proceeding are no different from the numerous complex and technical contentions that other Boards have adjudicated in informal hearings under Subpart L.

55 See id. at 2182-90.

56 See 10 C.F.R. § 2.1207(b)(6).

57 See 10 C.F.R. § 2.319(d)-(e).

58 Instead, the Board has construed the admitted contentions broadly. See, e.g., Licensing Board Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 6 (Mar. 6, 2012) (unpublished) (we admit contentions, not bases); see also id. at 19-20 (declining to strike any evidence from New York on the issue of need for power, which is excluded from consideration in this proceeding); id. at 35 (declining to strike evidence on the issue of emergency planning, which is outside the scope of this proceeding); id. (deferring ruling on the qualifications of witnesses until the oral hearing); Licensing Board Memorandum and Order (Ruling on Motions for Summary Disposition) at 7 (Nov. 3, 2009) (unpublished) (denying summary disposition of a transformers contention based on a battle of the experts determination, when the Commission itself later considered and summarily rejected an identical contention). Cf. NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip op. at 23-26 (Mar. 8, 2012) (reversing admission of an essentially identical transformers contention). But see Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 & 3), LBP-11-17, 74 NRC __ (2011) (granting summary disposition in favor of New York on a contention whose admissibility the Commission had previously found problematic in Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-30, 72 NRC __ (2010)).

To the extent the Board believes it is necessary to take further steps to ensure the development of an adequate record of this proceeding,59 several additional options are available to it. The Board could, for example, seek additional proposed questions from the parties at the hearing. By reviewing those questions, the Board can determine which questions it should ask of the witnesses, and thereby ensure a controlled and deliberate development of the record, as the Commission intended.60 The Board could also authorize sur-rebuttal testimony, as other Boards have done, to help focus the hearing.61 What the Board cannot do, however, is authorize a single partyespecially one adverse to the applicant and the Commissions own regulatory Staff62to conduct essentially unfettered cross-examination without any showing by that party why such a drastic departure from the Commissions established procedure is truly necessary under the proper legal standards. The Boards Order should therefore be immediately reviewed and reversed.

2. The Boards Decision to Grant Cross-Examination Only to New York Alone Is a Prejudicial Procedural Error.

Entergy, the other parties to this proceeding and the public have a significant interest in the full and fair adjudication of the Indian Point license renewal application, which has been pending for five years. The Board Order results in a prejudicial procedural error just weeks 59 See Order at 6.

60 Changes to Adjudicatory Process, 69 Fed. Reg. at 2195-96.

61 Compare AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station),

Licensing Board Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order) at 6 (Apr. 17, 2007) (unpublished) ([a]lthough not required by the regulations, the Board has found that a thoughtful and concise written reply and sur-rebuttal testimony can benefit the Boards efficient analysis of issues), with Licensing Board Order (Denying Applicants Motion for Leave to File Surrebuttal Testimony on NYS-12C) (Aug. 2, 2012) (unpublished).

62 New York has repeatedly stated its intent to use every means possible to prevent license renewal for Indian Point. See, e.g., New York State Notice of Intention To Participate and Petition To Intervene, at 3 (Nov. 30, 2007) (If the federal government will not take adequate steps to ensure public safety with respect to the Indian Point power plants, the State of New York will step into this void and use every legal tool and resource to force a full consideration of these issues.).

before the hearing is set to begin by creating an unprecedented and patently unfair hearing procedure.63 Common sense and fairness dictate that each side in an adjudicatory proceeding should have an equal opportunity to be heard.64 Contrary to that fundamental principle, the Board has granted to New York the opportunity to examine witnesses, but has not granted Entergy the reciprocal right to cross-examine New Yorks witnesses. There is no precedent for such a one-sided hearing. The Boards sua sponte Order granting unilateral witness examination rights to New York is a prejudicial procedural error that warrants reversal under 10 C.F.R.

§ 2.341(b)(4)(iv).

3. The Boards Unprecedented Decision Raises Substantial Questions of Law, Policy, and Discretion.

Entergys petition for review also raises substantial questions of law, policy, and discretion that warrant immediate Commission reversal of the Boards decision under 10 C.F.R.

§ 2.341(b)(4)(iii). Commission review is warranted under this standard when a Board decision raises issues that could affect a broad spectrum of licensing decisions, or is an issue that lacks governing precedent.65 As explained above,66 the Boards sua sponte decision is unprecedented.

It is the first time a Board has ever granted cross-examination in a Subpart L proceeding, and the Order is based on a voluminous and technical record standard that the Commission considered and rejected when it promulgated the Rules of Practice. If permitted to stand, the Boards 63 See Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (holding that a review of administrative hearing procedures against due process requirements requires consideration of the private interest that may be affected by the action, the risk of erroneous deprivation of that interest through the proposed procedures, and the probable value of the additional procedures, including the fiscal and administrative burdens the additional procedure might entail); see also City of W. Chicago v. NRC, 701 F.2d 632, 646 (7th Cir. 1983) (reviewing NRC proceedings under this standard).

64 See Allens Creek, ALAB-565, 10 NRC at 525.

65 See Hydro Res. Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-7, 63 NRC 165, 166 (2006); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-10-17, 70 NRC __, slip op. at 13 (2010).

66 See supra § III.C.1.

adoption of that rejected standard threatens to undermine the Commissions longstanding efforts to develop more efficient hearing processes.67 D. IN THE ALTERNATIVE, ENTERGY SHOULD BE AFFORDED EQUAL RIGHTS TO EXAMINE WITNESSES ON NEW YORKS CONTENTIONS The most appropriate proceeding is one envisioned by the Commission when it promulgated the Rules of Practice.68 If, however, the Commission determines that cross-examination by New York is appropriate under the circumstances, Entergy requests as an alternative to reversal of the Order that it be granted an equal opportunity to examine witnesses on New Yorks contentions. Given that Entergy has the burden of proof in this proceeding, its request for alternative relief is essential to a fair proceeding and to mitigate the pervasive impact of granting unilateral cross-examination to New York on all of its contentions.

As previously noted, fundamental fairness dictates that all parties be given an equal opportunity to present their case. The same rationale relied upon by the Board in granting cross-examination to New York applies with just as much force to Entergy. New York has demonstrated no greater ability to assist the Board in developing an adequate record than Entergy or the NRC Staff. Like New York, Entergy also submitted confidential proposed examination questions on New Yorks contentions on August 29, 2012questions that more than adequately constitute a reasonable cross-examination plan, as contemplated in the Boards Order.69 And like New York, Entergy requested an equal opportunity to cross-examine witnesses.70 If the evidence in this proceeding is so voluminous and technical as to require cross-examination by 67 Changes to Adjudicatory Process, 69 Fed. Reg. at 2182-90.

68 Entergys position remains that cross-examination is not necessary. For that reason, Entergy did not file a motion for cross-examination, but only made its alternative request in response to New Yorks Motion.

69 Order at 6.

70 See Entergys Answer at 10-11 & n.11.

New York to ensure the development of an adequate record, then Entergy should have an equal opportunity to examine witnesses, consistent with 10 C.F.R. § 2.1204(b).

IV. CONCLUSION For the foregoing reasons, the Commission should order expedited briefing of this petition, take immediate review of the Boards Order, and reverse it. In the alternative, the Commission should grant Entergy an equal right to examine witnesses at the hearing on its license renewal application.

Respectfully submitted, Signed (electronically) by Raphael P. Kuyler William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY SERVICES, INC. Raphael P. Kuyler, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 28th day of September 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) September 28, 2012 CERTIFICATE OF SERVICE I hereby certify that copies of the Entergys Emergency Petition for Interlocutory Review of Board Order Granting Cross-Examination to New York State and Application to Stay the Decision and Hearing Pending the Commissions Decision was served electronically via the Electronic Information Exchange on the following recipients.

Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov) (E-mail: Michael.Kennedy@nrc.gov)

Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)

Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)

Office of Commission Appellate Adjudication Shelbie Lewman, Law Clerk U.S. Nuclear Regulatory Commission Anne Siarnacki, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: shelbie.lewman@nrc.gov)

(E-mail: Anne.Siarnacki@nrc.gov)

Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.

Edward L. Williamson, Esq. Assistant County Attorney Beth N. Mizuno, Esq. Office of Robert F. Meehan, Esq.

David E. Roth, Esq. Westchester County Attorney Brian G. Harris, Esq. 148 Martine Avenue, 6th Floor Mary B. Spencer, Esq. White Plains, NY 10601 Anita Ghosh, Esq. (E-mail: MJR1@westchestergov.com)

Joseph A. Lindell, Esq.

Brian Newell, Paralegal Phillip Musegaas, Esq.

Office of the General Counsel Deborah Brancato, Esq.

Mail Stop: O-15D21 Riverkeeper, Inc.

U.S. Nuclear Regulatory Commission 20 Secor Road Washington, DC 20555-0001 Ossining, NY 10562 (E-mail: Sherwin.Turk@nrc.gov) (E-mail: phillip@riverkeeper.org)

(E-mail: Edward.Williamson@nrc.gov) (E-mail: dbrancato@riverkeeper.org)

(E-mail: Beth.Mizuno@nrc.gov)

(E-mail: David.Roth@nrc.gov)

(E-mail: Brian.Harris@nrc.gov)

(E-mail: Mary.Spencer@nrc.gov)

(E-mail: Anita.Ghosh@nrc.gov)

(E-mail: Joseph.Lindell@nrc.gov)

(E-mail: Brian.Newell@nrc.gov)

Manna Jo Greene Daniel Riesel, Esq.

Karla Raimundi Victoria Shiah Treanor, Esq.

Hudson River Sloop Clearwater, Inc. Sive, Paget & Riesel, P.C.

724 Wolcott Ave. 460 Park Avenue Beacon, NY 12508 New York, NY 10022 (E-mail: mannajo@clearwater.org) (E-mail: driesel@sprlaw.com)

(E-mail: karla@clearwater.org) (E-mail: vshiah@sprlaw.com)

(E-mail: stephenfiller@gmail.com)

John J. Sipos, Esq. John Louis Parker, Esq.

Charlie Donaldson Esq. Office of General Counsel, Region 3 Assistant Attorneys General New York Dept. of Environmental Office of the Attorney General Conservation of New York of New York 21 S. Putt Corners Road The Capitol New Paltz, New York 12561-1620 Albany, NY 12224-0341 (E-mail: jlparker@gw.dec.state.ny.us)

(E-mail: John.Sipos@ag.ny.gov)

(E-mail: Charlie.Donaldson@ag.ny.gov)

Sean Murray, Mayor Michael J. Delaney, Esq.

Kevin Hay, Village Administrator Vice President -Energy Department Village of Buchanan New York City Economic Development Municipal Building Corporation (NYCDEC) 236 Tate Avenue 110 William Street New York, NY 10038 Buchanan, NY 10511-1298 mdelaney@nycedc.com (E-mail: smurray@villageofbuchanan.com)

(E-mail: Administrator@villageofbuchanan.com)

Janice A. Dean, Esq.

Kathryn M. Liberatore, Esq.

Teresa Manzi Assistant Attorney General Office of the Attorney General of New York of New York 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Dean@ag.ny.gov)

(E-mail: Kathryn.Liberatore@ag.ny.gov)

(E-mail: Teresa.Manzi@ag.ny.gov)

Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (202) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

DB1/ 71231646

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