ML12286A051
| ML12286A051 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 10/12/2012 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | Entergy Nuclear Operations |
| SECY RAS | |
| References | |
| RAS 23611, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, CLI-12-18 | |
| Download: ML12286A051 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Allison M. Macfarlane, Chairman Kristine L. Svinicki George Apostolakis William D. Magwood, IV William C. Ostendorff
)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR,
) 50-286-LR (Indian Point Nuclear Generating Units 2 and 3) )
)
CLI-12-18 MEMORANDUM AND ORDER I. INTRODUCTION The Atomic Safety and Licensing Board recently issued an order granting, in part, the State of New Yorks motion for cross-examination of witnesses at the upcoming evidentiary hearing in this proceeding on Entergy Nuclear Operations, Inc.s (Entergy) application for the renewal of its operating licenses for Indian Point Nuclear Generating Units 2 and 3.1 In response, Entergy filed an emergency petition for interlocutory review of the Boards order, and additionally requested expedited briefing on its petition.2 We granted Entergys request for 1
See Order (Order Granting, in part, New Yorks Motion for Cross Examination) (Sept. 21, 2012) (unpublished) (corrected Sept. 25, 2012) (Board Order).
2 Entergys Emergency Petition for Interlocutory Review of Board Order Granting Cross-Examination to New York State and Request for Expedited Briefing (Sept. 28, 2012) (Entergy Petition). Entergy also filed an application to stay the Boards order or the hearing pending our resolution of its petition. See Entergys Application to Stay Board Order Granting Cross-(continued . . .)
expedited briefing.3 New York opposes Entergys petition for interlocutory review.4 The NRC Staff supports the petition.5 For the reasons outlined below, we deny Entergys request for interlocutory review of the Boards order, but provide guidance to the Board as it moves forward with evidentiary hearings in this case.
II. ANALYSIS Pursuant to 10 C.F.R. § 2.341(f)(2), we may at our discretion grant a partys request for interlocutory review of a Board decision. We grant review only where the party demonstrates that the issue for which it seeks review:
(i) threatens the party with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through an appeal following the presiding officers final decision; or (ii) affects the basic structure of the proceeding in a pervasive or unusual manner.6 Here, Entergy claims that the Boards order will have a pervasive and unusual effect on the basic structure of the proceeding.7 Entergy notes that the Boards order did not identify specific individuals who may be subject to New Yorks cross-examination, and claims that it therefore will need to spend time preparing each of its witnesses on a broad number of topics Examination to New York State or, in the Alternative, to Grant a Partial Stay of the Hearing Pending the Commissions Decision on Entergys Emergency Petition for Interlocutory Review (Sept. 28, 2012). Our decision today renders moot Entergys stay request.
3 See Order (Oct. 2, 2012) (unpublished).
4 See State of New York Combined Opposition to Entergys Requests for Emergency Stay and Interlocutory Review of the Board Order Granting Limited Cross Examination (Oct. 1, 2012).
Entergy replied in opposition to New Yorks answer. See Entergys Reply to New York States Opposition to Entergys Emergency Petition for Interlocutory Review (Oct. 8, 2012).
5 See NRC Staffs Answer to Entergys Emergency Petition for Interlocutory Review, and Application for Stay, of the Boards Order of September 21, 2012 (Oct. 5, 2012).
6 See 10 C.F.R. § 2.341(f)(2).
7 Entergy Petition at 9.
for which New York might seek cross examination.8 Entergy further claims that the parties at the hearing will be likely to disagree on the scope, duration, and substance of the testimony on cross-examination, and that [a]dditional hearing time dedicated to these issues is assured.9 Entergy also argues that the Boards order threatens Entergy with immediate and irreparable harm. Entergy claims that the order grants New York an essentially unfettered right to examine witnesses without granting Entergy the same right.10 Entergy states that the Boards order is silent on Entergys conditional request that if New Yorks Motion for cross-examination were granted, Entergy should be granted the same opportunity.11 Entergy additionally claims that Judge Lawrence McDade (the Board Chair), in a recent teleconference, indicated that New York will be able to conduct cross-examination without any demonstration of need, while other parties would have an opportunity to cross-examine on discrete issues through oral motions at hearing, but only if they demonstrate a sufficiently compelling request.12 Entergy therefore argues that by subjecting Entergys witnesses to wide-ranging cross-examination by New York, without according Entergy the same reciprocal right, the order prejudices Entergy in a way that cannot be undone after the hearing.13 We find that Entergys petition does not meet our standards for interlocutory review. We view the Boards order in light of Judge McDades clarifying statements made at the September 24 teleconference. Judge McDade explained that he expected the cross-examination to be limited given the nature of a Subpart L proceeding, where the Board itself will first conduct its 8
Id. at 8-9.
9 Id. at 9.
10 Id.
11 Id. at 7.
12 See id. 7-8.
13 Id. at 10.
own thorough questioning of the witnesses based on written questions that the parties themselves already have submitted to the Board.14 Judge McDade further stated that cross-examination would be permitted if New York is able to identify areas that the Board missed, and if the questions and answers prove of value to the Boards understanding of the issues; the process would not be an occasion to ask anything you want if youre curious.15 He further emphasized that cross-examination would not be open-ended, and that the Board will cut off any questioning that is repetitive or not relevant to the issues.16 Both Judge McDade and New York suggest that if the Boards questioning of the witnesses proves to be sufficiently complete, additional questions on cross-examination may be unnecessary.17 While the Boards order failed to provide any explanatory details, Judge McDades comments at the teleconference reflect an intent to allow only limited, supplemental questions, not an unfettered opportunity to pose extensive, unfocused, or immaterial questions. Whether the Boards ruling was reasonable or not, its resulta potential for limited cross-examination cannot be said to impact the basic structure of the proceeding in a pervasive or unusual manner warranting interlocutory review. We fully expect the Board to conform to Judge McDades stated intention to prohibit open-ended, lengthy cross-examination, and to restrict any permitted cross-examination to material inquiries that the Board did not already cover.
14 See Teleconference Transcript (Sept. 24, 2012), at 1236 (Tr.).
15 Id. at 1238.
16 Id.
17 Id. at 1236; State of New York Combined Opposition to Entergys Requests for Emergency Stay and Interlocutory Review of the Board Order Granting Limited Cross-Examination (Oct. 1, 2012), at 6 (because the Board has likely . . . already . . . prepared extensive cross-examination plans, it is possible that neither the State nor other parties will see fit to ask additional questions at the conclusion of the Boards examination of the parties experts).
We turn next to Entergys claim of irreparable, prejudicial harm. As Entergy points out, the Boards order curiously did not address Entergys request for a reciprocal opportunity to cross-examine witnesses. Judge McDade, however, made clear at the teleconference that counsel for Entergy can request the opportunity to question witnesses at the hearing. Outlining the approach he anticipates, Judge McDade described that after the Board concludes its questioning, counsel for the parties would have a reasonable opportunity to interrogate the witnesses in the event that the Board has missed something, but again, questions could not be repetitive or just going over the same ground as the Board.18 We hold the Board to its word that it will provide Entergy and the Staff (as well as any other parties participating on these contentions) a full and fair opportunity to request cross-examination, and we expect that the Board will act on any such requests fairly and evenhandedly, including taking into consideration any cross-examination opportunities granted to New York. While there is no right to reciprocal cross-examination, the parties should be accorded equivalent treatment under the applicable regulatory standard.19 We conclude on a note of caution. Without the additional assurances that Judge McDade provided at the teleconference, we would have been inclined to vacate the Boards decision as unduly vague and overbroad. The only reason the Board gave for granting cross-examinationthe observation that the proceeding involves a voluminous and technical record20does not, without more, support ordering cross-examination in a Subpart L proceeding. The Statements of Consideration for the Subpart L hearing rules even specify that 18 See Tr. at 1236-37, 1242-43.
19 For example, we find troubling that the Board did not base its decision on any specific showing by New York, and also did not address Entergys request for cross-examination or its offer to submit its own cross-examination plan.
20 Board Order at 6.
the complexity and number of issues in a proceeding do not per se, lead ineluctably to the conclusion that cross-examination is necessary to ensure a fair and adequate hearing.21 If large records and complexity justified cross-examination, such questioning would be commonplace at many, if not most, Subpart L hearings. That was not the intent of Subpart L.,
which was designed to shift most questioning of witnesses from parties to the Board itself. The Commission envisioned a need for cross-examination principally in circumstances involving disputes over the occurrence of an activity or the credibility of a material witness.22 Given that the parties provide pre-filed direct testimony in Subpart L cases, and further submit a list of confidential proposed questions for the Board to ask the witnesses, the need for the parties themselves also to conduct questioning should be a rare circumstance, except where questions of witness credibility, motive, or intent are at issue.23 Cross-examination, in other words, should be reserved for cases where the Board determines that it is truly necessary to develop a sound record.
We recognize, however, that it is the Board that has the responsibility in the first instance to oversee the development of the case record and to ensure that it has adequate information to issue a reasoned decision on the contested matters. And the Board is in the best position to determine whether cross-examination is necessary to ensure a fair and complete record. Here the Board has determined that cross-examination is necessary to ensure development of an adequate record.24 While we will not disturb the Boards decision, we fully expect future boards 21 Changes to Adjudicatory Process, Final Rule, 69 Fed. Reg. 2182, 2196 (Jan. 14, 2004).
22 Id.
23 See id., 69 Fed. Reg. at 2196, 2205. See also id. at 2204-05 (rejecting the proposed rules numerous and complex issues criterion for the use of formal procedures). See generally 10 C.F.R. § 2.1207(a).
24 Board Order at 6.
to explain the necessity of cross-examination in greater detail than a broad-brush reference to a proceedings voluminous or technical nature.25 III. CONCLUSION Entergys petition for interlocutory review is denied. We expect that the Board will rigorously oversee any cross-examination it allows and limit the cross-examination by all parties to supplemental and genuinely material inquiries, necessary to develop an adequate and fair record for decision.
IT IS SO ORDERED.26 For the Commission NRC SEAL /RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 12th day of October 2012.
25 We note, additionally, that boards considering a departure from the usual hearing format should issue rulings sufficiently in advance of a scheduled hearing, so that the parties have adequate time for any necessary preparations, and so that we have a meaningful opportunity to exercise our oversight role.
26 Commissioner Apostolakis did not participate in this matter.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
) Docket Nos. 50-247-LR
) and 50-286-LR (Indian Point Nuclear Generating, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-12-18) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Sherwin E. Turk, Esq.
Office of Commission Appellate Adjudication Edward L. Williamson, Esq.
Mail Stop O-7H4M Beth N. Mizuno, Esq.
Washington, DC 20555-0001 David E. Roth, Esq.
ocaamail@nrc.gov Brian Harris, Esq.
Mary B. Spencer, Esq.
U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.
Office of the Secretary of the Commission Karl Farrar, Esq.
Mail Stop O-16C1 Brian Newell, Paralegal Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission hearingdocket@nrc.gov Office of the General Counsel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Atomic Safety and Licensing Board Panel sherwin.turk@nrc.gov; Mail Stop T-3F23 edward.williamson@nrc.gov Washington, DC 20555-0001 beth.mizuno@nrc.gov; brian.harris.@nrc.gov david.roth@nrc.gov; mary.spencer@nrc.gov Lawrence G. McDade, Chair anita.ghosh@nrc.gov; karl.farrar@nrc.gov Administrative Judge brian.newell@nrc.gov lawrence.mcdade@nrc.gov OGC Mail Center Richard E. Wardwell OGCMailCenter@nrc.gov Administrative Judge richard.wardwell@nrc.gov William C. Dennis, Esq.
Assistant General Counsel Michael F. Kennedy Entergy Nuclear Operations, Inc.
Administrative Judge 440 Hamilton Avenue michael.kennedy@nrc.gov White Plains, NY 10601 wdennis@entergy.com Anne Siarnacki, Law Clerk Shelbie Lewman, Law Clerk William B. Glew, Jr.
James Maltese, Law Clerk Organization: Entergy Carter Thurman, Law Clerk 440 Hamilton Avenue, White Plains, NY 10601 anne.siarnacki@nrc.gov wglew@entergy.com shelbie.lewman@nrc.gov james.maltese@nrc.gov Elise N. Zoli, Esq.
carter.thurman@nrc.gov Goodwin Proctor, LLP Exchange Place, 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com
Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-12-18)
Thomas F. Wood, Esq. Melissa-Jean Rotini, Esq.
Daniel Riesel, Esq. Assistant County Attorney Victoria Shiah Treanor, Esq. Office of Robert F. Meehan, Adam Stolorow, Esq. Westchester County Attorney Jwala Gandhi, Paralegal 148 Martine Avenue, 6th Floor Peng Deng, Paralegal White Plains, NY 10601 Counsel for Town of Cortlandt mjr1@westchestergov.com Sive, Paget & Riesel, P.C.
460 Park Avenue Clint Carpenter, Esq.
New York, NY 10022 Bobby Burchfield, Esq.
driesel@sprlaw.com; vtreanor@sprlaw.com Matthew Leland, Esq.
astolorow@sprlaw.com; jgandhi@sprlaw.com McDermott, Will and Emergy LLP pdeng@sprlaw.com 600 13th Street, NW Washington, DC 20005 Kathryn M. Sutton, Esq. ccarpenter@mwe.com; bburchfield@mwe.com Paul M. Bessette, Esq. mleland@mwe.com Martin J. ONeill, Esq.
Raphael Kuyler, Esq. Matthew W. Swinehart, Esq.
Jonathan M. Rund, Esq. Covington & Burling LLP Lena Michelle Long, Esq. 1201 Pennsylvania Avenue, NW Laura Swett, Esq. Washington, DC 20004 Lance Escher, Esq. mswinehart@cov.com Mary Freeze, Legal Secretary Antoinette Walker, Legal Secretary John Louis Parker, Esq.
Morgan, Lewis & Bockius, LLP Office of General Counsel, Region 3 1111 Pennsylvania Avenue, NW New York State Department Washington, DC 20004 of Environmental Conservation ksutton@morganlewis.com 21 South Putt Corners Road martin.oneill@morganlewis.com New Paltz, NY 12561-1620 rkuyler@morganlewis.com; jlparker@gw.dec.state.ny.us jrund@morganlewis.com llong@morganlewis.com; Edward F. McTiernan, Esq.
lswett@morganlewis.com New York State Department lescher@morganlewis.com of Environmental Conservation mfreeze@morganlewis.com Office of General Counsel awalker@morganlewis.com 625 Broadway Albany, NY 12233-1500 Phillip Musegaas, Esq. efmctier@gw.dec.state.ny.us Deborah Brancato, Esq.
Ramona Cearley, Secretary Manna Jo Greene, Environmental Director Riverkeeper, Inc. Steven C. Filler 20 Secor Road Karla Raimundi Ossining, NY 10562 Hudson River Sloop Clearwater, Inc.
phillip@riverkeeper.org; 724 Wolcott Ave.
dbrancato@riverkeeper.org Beacon, NY 12508 rcearley@riverkeeper.org mannajo@clearwater.org; stephenfiller@gmail.com karla@clearwater.org 2
Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-12-18)
Richard Webster, Esq. Robert D. Snook, Esq.
Public Justice, P.C. Assistant Attorney General For Hudson River Sloop Clearwater, Inc. Office of the Attorney General 1825 K Street, NW, Suite 200 State of Connecticut Washington, D.C. 20006 55 Elm Street rwebster@publicjustice.net P.O. Box 120 Hartford, CT 06141-0120 Michael J. Delaney, Esq. robert.snook@po.state.ct.us Director, Energy Regulatory Affairs NYC Department of Environmental Protection Janice A. Dean, Esq.
59-17 Junction Boulevard Assistant Attorney General Flushing, NY 11373 Kathryn Liberatore, Esq.
mdelaney@dep.nyc.gov Office of the Attorney General of the State of New York John J. Sipos, Esq. 120 Broadway, 26th Floor Charles Donaldson, Esq. New York, New York 10271 Assistant Attorneys General janice.dean@ag.ny.gov Office of the Attorney General kathryn.liberatore@ag.ny.gov of the State of New York Elyse Houle, Legal Support Sean Murray, Mayor The Capitol, State Street Kevin Hay, Village Administrator Albany, New York 12224 Village of Buchanan john.sipos@ag.ny.gov Municipal Building charlie.donaldson@ag.ny.gov 236 Tate Avenue elyse.houle@ag.ny.gov Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com Dated at Rockville, Maryland [Original signed by Christine M. Pierpoint]
this12th day of October 2012 Office of the Secretary of the Commission 3