ML082750014

2008/09/22-Town of Cortlandt'S Answer in Support of New York State'S Motion Requesting Consideration of Additional Matters in Scheduling and Case Management Order

ML082750014
Person / Time
Site:	Indian Point
Issue date:	09/22/2008
From:	Riesel D Sive, Paget & Riesel, PC, Town of Cortlandt, NY
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-149
Download: ML082750014 (9)

Text

DOCKETED gA-sL~/4USNRC September 22, 2008 (4:00pm)OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247- LR and 50-286-LR (Indian Point Nuclear Generating

)Units 2 and 3) September 22, 2008 TOWN OF CORTLANDT'S ANSWER IN SUPPORT OF NEW YORK STATE'S MOTION REQUESTING CONSIDERATION OF ADDITIONAL MATTERS IN SCHEDULING AND CASE MANAGEMENT ORDER I. Background The Town of Cortlandt

("Cortlandt")

files this Answer in support of the State of New York ("New York") Motion, pursuant to 10 C.F.R. § 2.323(c).

On April 23, 2007, Entergy Nuclear Operations, Inc. ("Entergy")

submitted a License Renewal Application for Indian Point Units 2 and 3 to the Nuclear Regulatory Commission

("NRC"). On November 29, 2007, Cortlandt filed its Petition to Intervene and Request for Hearing. Subsequent to Answers by the NRC Staff and Entergy, Cortlandt filed its Reply on February 8, 2007. On July 31, 2008, the Atomic Safety and Licensing Board (the "Board") denied Cortlandt's Petition to Intervene and Request for Hearing, but stated that Cortlandt may participate as an interested governmental entity on the admitted contentions, pursuant to 10 C.F.R. § 2.315(c).'

On August 20, 2008, See Board Order (Ruling on Petitions to Intervene and Requests for Hearing), LBP-08-13 at 4 (July 31, 2008)(unpublished) (the "Order").

In its Order, the Board admitted three parties: (1) the State of New York; (2)Riverkeeper; and (3) Hudson River Sloop Clearwater.

0 S- Oý,3 Cortlandt submitted its Request for Participation by a Person Not a Party.2 On September 10, 2008, the State of New York submitted a Motion, 3 in which it requested the Board to consider several issues related to scheduling and discovery.

II. Rights of an Interested Governmental Entity Cortlandt is an interested governmental body, within the meaning of 10 C.F.R. §2.315(c).

As Cortlandt previously stated in its Request, 4 Cortlandt's right to participate is established by the fact that Indian Point Nuclear Generating Units 2 and 3 are located within Cortlandt.

As an interested governmental entity, Cortlandt may "introduce evidence, interrogate witnesses where cross-examination by the parties is permitted, advise the Commission without requiring the representative to take a position with respect to the issue, file proposed findings in those proceedings where findings are permitted, and petition for review by the Commission under § 2.341 with respect to [any] admitted contentions." 10 C.F.R. § 2.315(c);

see also Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2201 (Jan. 14, 2004) (an interested governmental body may "fil[e] testimony, briefs, and interrogat[e]

witnesses").

Because Cortlandt may participate with respect to any admitted contention, Cortlandt must be afforded access to all documents during the hearing process. Discovery serves "as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues." Hickman v. Taylor, 329 U.S. 495, 501 (1947). Additionally, discovery enables petitioners to "obtain the fullest possible knowledge of the issues and facts." Id.2 Sec Town of Cortlandt's Request for Participation by a Person not a Party (Aug. 20, 2008) ("Request").

NRC Staff does not object to Cortlandt's participation as an interested governmental entity. See NRC Staff's Response to"Town of Cordandt's Request for Participation by a Person not a Party" (Sept. 2, 2008, as corrected, Sept. 11 2008).See New York State Motion Requesting Consideration of Additional Matters in Scheduling and Case Management Order (Sept. 10, 2008) ("New York Motion").4 See Request at 1.2 Without access to all issues and facts prior to the hearing, Cortlandt will be unable to reasonably participate in the proceedings.

5 III. The State of New York's Issues for the Board's Consideration should be Granted In its Motion, the State of New York ("New York") requested that the Board consider several issues, including:

(1) scheduling a site visit to Indian Point Units 1, 2, and 3; (2) holding a conference regarding discovery of electronically stored information; (3) scheduling a deadline for filing waiver petitions pursuant to 10 C.F.R. § 2.335; and (4) notifying New York and other parties of meetings and communications between NRC Staff and Entergy. See New York Motion at 3-5. Although Cortlandt is not a "party" in these proceedings, its role as an interested governmental entity is just as important.

In some instances, Cortlandt's rights are broader than those of the admitted parties. For example, Cortlandt may participate in any admitted contention, whereas parties may only participate on contentions they sponsored or adopted. See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 N.R.C. 619, 626-27 (2004). Therefore, Cortlandt's interest in a fair and open hearing process is just as important as the interests of the parties. As detailed below, Cortlandt urges the Board to grant the New York Motion if the hearing proceeds under Subpart G.6 In its Motion, New York requested that the Board authorize a site visit of Indian Point Units 1, 2, and 3 for the parties' counsel, staff, and experts. Additionally, New York requested that the parties participate in a conference to determine how the Board should consider production of electronically stored information

("ESI"). Both requests are appropriate in a 5 Cortlandt recognizes that the Board has not ruled whether the proceeding will proceed under the formal adjudication rules of Subpart G or the informal hearing procedures of Subpart L. Regardless of which hearing procedure the Board establishes, Cortlandt has a right to access the documents prior to the proceedings.

6 Cortlandt reserves its right to fully'participate in all discovery, regardless of whether this proceeding continues under Subpart G or Subpart L.3 Subpart G hearing. See 10 C.F.R. § 2.705(a) (discovery may be obtained by "permission to enter upon land or other property" and "by... production of documents or things").

As an interested governmental entity, Cortlandt's representatives, experts, counsel, and/or staff, should also be authorized for any site visit and be able to participate in any conference regarding production of documents.

The Board should include Cortlandt in any and all rulings regarding discovery so that Cortlandt may reasonably participate in the proceedings.

See 10 C.F.R. § 2.315(c)(interested local governmental body will be "afford[ed]

... a reasonable opportunity to participate in a hearing").

Additionally, New York requested that the parties be given advance notification of meetings and communications between Entergy and NRC Staff. See New York Motion at 5.The-Commission has recognized "the fundamental importance of meaningful public participation in our adjudicatory process." Northern States Power Co. (Prairie Island Nuclear Generating Plants, Units I & 2), CLI-75-1, 1 N.R.C. 1, 2 (1975). The hearing provides the parties and interested governmental entities with the opportunity to engage in meaningful public participation by determining whether the applicant has fully complied with the NRC regulations and whether the facility will be able to safely operate for an additional twenty years. Therefore, the parties to the proceeding must have access to all pertinent information, including communications between the applicant and NRC Staff regarding license renewal. See 10 C.F.R.§ 2.336(a)(2) (party must disclose "all documents and data compilations..

.that are relevant to the contentions").

Cortlandt, as an interested governmental entity, should be allowed to participate in any and all conferences among the parties, NRC Staff, and Entergy, regardless of which hearing procedure governs this proceeding.

Cortlandt's standing as an interested governmental body necessitates its participation in any and all meetings.4 IV. Conclusion For the reasons set forth above, the State of New York's Motion Requesting Consideration of Additional Matters in Scheduling and Case Management Order should be granted.Dated: September 22, 2008 New York, New York Respectfully Submitted, Thomas F. Wood Town Attorney Town of Cortlandt And Sive, Paget & Riesel, P.C.Daniel Riesel 460 Park Avenue New York, New York 10022 Phone: (212) 421-2150 Facsimile:

(212) 421-1891 Email: driesel@sprlaw.com 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of)ENTERGY NUCLEAR OPERATIONS, INC.(Indian Point Nuclear Generating Units 2 and 3)) Docket Nos. 50-247- LR and 50-286-LR))September 22, 2008 CERTIFICATE OF SERVICE I hereby certify that on September 22, 2008 a true copy of the foregoing TOWN OF CORTLANDT'S ANSWER IN SUPPORT OF NEW YORK STATE'S MOTION REQUESTING CONSIDERATION OF ADDITIONAL MATTERS IN SCHEDULING AND CASE MANAGEMENT ORDER, were served by electronic mail and by first class mail upon all parties, upon the following parties and participants:

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: LGMI@nrc.gov Dr. Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: REW@nrc.gov Dr. Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel 190 Cedar Lane E.Ridgway, CO 81432 E-mail: KDL2@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, D.C. 20555-0001 E-mail: OCAAMAIL@nrc.gov Office of the Secretary

• Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: HEARINGDOCKET@nrc.gov Sherwin E. Turk, Esq.Jessica A. Bielecki Beth N. Mizuno, Esq.David E. Roth Marcia J. Simon Office of the General Counsel Mail Stop 0-15-D-21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: set@nrc.gov E-mail: jessica.bielecki@nrc.gov E-mail: bnm l@nrc.gov E-mail: der@nrc.gov E-mail: 'marcia.simon@nrc.gov Zachary S. Kahn, Esq.Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-2 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: ZXKI @nrc.gov William C. Dennis, Esq.Assistant General Counsel Entergy Nuclear Operations, Inc.440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis@entergy.com Kathryn M. Sutton, Esq.Paul M. Bessette, Esq.Martin J. O'Neill, Esq.Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o' neill@morganlewisý.com Michael J. Delaney, Esq.Vice President

-Energy New York City Economic Development Corporation (NYCDEC)110 William Street New York, NY 10038 Joan Leary Matthews, Esq.Senior Attorney for Special Projects New York State Department of Environmental Conservation Office of the General Counsel 625 Broadway, 14'h Floor Albany, NY 12233-1500 E-mail: j lmatthe@gw.dec.state.ny.us Michael A. Cardozo Corporation Counsel of the City of New York New York City Law Department 100 Church Street, Room 20-82 New York, NY 10007 E-mail: rcosta@law.nyc.gov Elise N. Zoli, Esq.Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com Justin D. Pruyne, Esq.Assistant County Attorney Office of Westchester County Attorney 148 Martine Avenue, 6 th Floor White Plains, NY 10601 E-mail: jdp3 @westchestergov.com Daniel E. O'Neill, Mayor James Seirmarco, M.S.Village of Buchanan 2 E-mail: mdelaney@nycedc.com Richard L. Brodsky, Esq.5 West Main Street Elmsford, NY 10523 E-mail: brodskr@assembly.state.ny.us richardbrodsky@msn.com Susan Shapiro, Esq.21 Perlman Drive Spring Valley, NY 10977 E-mail: mbs@ourrocklandoffice.com John LeKay, FUSE USA 351 Dyckman Street Peekskill, NY 10566 E-mail: fuse usa@yahoo.com Manna Jo Greene Hudson River Sloop Clearwater, Inc.112 Little Market Street Poughkeepsie, NY 12601 E-mail: Mannajo@clearwater.org Diane Curran, Esq.Harmon, Curran, Spielberg

& Eisenberg, LLP 1726 M Street, NW, Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Victor Tafur, Esq.Phillip Musegaas, Esq.Riverkeeper, Inc.828 South Broadway Tarrytown, NY 10591 E-mail: phillip@riverkeeper.org vtafur@riverkeeper.org Municipal Building Buchanan, NY 10511-1298 E-mail: vob@bestweb.net John J. Sipos, Esq.Charlie Donaldson, Esq.Assistants Attorney General New York State Department of Law Environmental Protection Bureau The Capitol Albany, NY 12224 E-mail: john.sipos@oag.state.ny.us Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA)347 Fifth Avenue, Suite 508 New York, NY 10016 E-mail: ajkremer@rmfpc.com kremer@area-alliance.org Robert Snook, Esq.Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 E-mail: Robert.snook@po.

state.ct.us Ms. Nancy Burton 147 Cross Highway Redding Ridge, CT 06876 E-mail: nancyburtonct@aol.com Sarah Wagner, Esq.Legislative Office Building, Room 422 Albany, NY 12248 E-mail: sarahwagneresq@gmail.com 3

Janice Dean, Esq.Assistant Attorney General Office of the Attorney General 120 Broadway, 26th Floor New York, NY 10271 E-mail: Janice.dean@oag.state.ny.us Marcia Carpentier Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3 E2B U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Marcia.Carpentier@nrc.gov Stephen C. Filler, Esq.Board Member Hudson River Sloop Clearwater, Inc.303 South Broadway, Ste 222 Tarrytown, NY 10592 E-mail: sfiller@nylawline.com By: John Louis Parker, Esq.Regional Attorney Office of General Counsel, Region 3 New York State Department of Environmental Conservation 21 South Putt Corners Road New Paltz, NY 12561-1620 E-mail: j lparker@gw.dec.

state.ny.

us Mylan L. Denerstein, Esq.Executive Deputy Attorney General Office of the Attorney General 120 Broadway, 2 5 th Floor New York, NY 10271 E-mail: Mylan.Denerstein@oag.state.ny.us Thomas F. Wood Town Attorney Town of Cortlandt And Sive, Paget & Riesel, P.C.Daniel Riesel 460 Park Avenue New York, New York 10022 Phone: (212) 421-2150 Facsimile:

(212) 421-1891 Email: driesel@sprlaw.com

• Original and 2 copies 4