ML12275A327

State of New York Combined Opposition to Entergy'S Request for Emergency Stay and Interlocutory Review of the Board Granting Limited Cross Examination

ML12275A327
Person / Time
Site:	Indian Point
Issue date:	10/01/2012
From:	State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23544, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12275A327 (17)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. October 1, 2012

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x STATE OF NEW YORK COMBINED OPPOSITION TO ENTERGYS REQUESTS FOR EMERGENCY STAY AND INTERLOCUTORY REVIEW OF THE BOARD ORDER GRANTING LIMITED CROSS-EXAMINATION Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

TABLE OF CONTENTS PRELIMINARY STATEMENT..1 The Boards September 21, 2012 Order..2 The Boards September 24, 2012 Teleconference...2 ARGUMENT..3 POINT I ENTERGY HAS NOT MET THE STANDARD FOR INTERLOCUTORY REVIEW ...3 POINT II THE BOARD HAS GRANTED RELIEF THAT IS AUTHORIZED BY THE COMMISSIONS SUBPART L REGULATIONS, AND WHICH IS SQUARELY WITHIN THE BOARDS DISCRETION AND AUTHORITY 6 POINT III A STAY OF THE PROCEEDING IS NOT WARRANTED AND WOULD BE HIGHLY PREJUDICIAL TO ALL PARTIES AND THE BOARD7 CONCLUSION10 i

TABLE OF AUTHORITIES FEDERAL CASES Citizens Awareness Network v. United States, 391 F.3d 338 (1st Cir. 2004)..5 FEDERAL STATUTES 10 C.F.R. § 2.319.6 10 C.F.R. § 2.342(e).7 10 C.F.R. § 2.1204...2, 6 NUCLEAR REGULATORY COMMISSION DECISIONS Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station),

2011 WL 6854157 (Dec. 22, 2011))....4 Pacific Gas And Electric Company (Diablo Canyon Nuclear Power Plant),

Units 1 and 2, CLI-12-13, 75 N.R.C. __ (June 7, 2012).8 S. Nuclear Operating Co. (Vogtle Electric Generating Plant Units 3 and 4),

CLI-12-11, 75 N.R.C. __ (Apr. 16, 2012)...7, 8 ii

PRELIMINARY STATEMENT On Friday, September 28, 2012, Entergy filed two requests for relief from the Commission: (1) a petition seeking expedited interlocutory review of the Boards Order granting the State of New York limited cross-examination rights1 at the relicensing hearing currently scheduled to begin in two weeks; and (2) an application for a stay of the hearing pending resolution of its petition for review.2 Entergy argues that cross-examination is not necessary, that it should have the right to conduct cross-examination - which opportunity has already been given by the Board in the teleconference that followed issuance of the Order, as Entergy acknowledges

- and that the Boards authorization of cross-examination allowed by 10 C.F.R. § 2.1204 is pervasive and unusual, warranting Commission intervention. Entergys arguments lack merit.

Entergy has raised no issues warranting emergency review. Rather, these requests are Entergys belated attempt to obtain relief it could have sought from the Board, but did not.

Entergys failure to seek relief from the Board at the appropriate time does not warrant Commission review now.3 Entergy has not shown that it is adversely affected by the Boards 1

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station), Docket Nos. 50-247-LR and 50-286-LR, Atomic Safety and Licensing Board Order (Granting, in part, New Yorks Motion for Cross Examination) (Sept. 21, 2012)(unpublished) (Order).

2 See Entergys Application to Stay Board Order Granting Cross- 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) (Entergy Application for Stay) and 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). Had Entergy called this a motion, it would have been obligated to consult with parties pursuant to 10 C.F.R. § 2.323. It is not clear to the State that an application can properly escape these provisions; in any event, Entergy conducted no consultation and provided no notice to the Board or parties during pre-hearing discussions that it would be requesting a stay.

3 Entergy, in opposing the States motion for cross-examination, indicated in a footnote that should the Board grant the States motion, it wanted the same relief. The Board did not 1

Order; in fact, Entergy has benefitted from the Boards Order and subsequent statements because Entergy and the other parties gained the right to cross-examine experts, upon a proper showing, despite not having moved for such relief at the appropriate time. Official Transcript of Proceedings, Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station),

Teleconference (Sept. 24, 2012) (Tr.) at 1236-43. A stay of the evidentiary hearing -

scheduled to begin in two weeks - would prejudice all parties and the Board. In sum, Entergys Petition and Application should both be denied.

The Boards September 21, 2012 Order On September 21, 2012, the Board granted the State of New Yorks motion seeking the right to cross-examination at the evidentiary hearing. Order at 6-7 (citing 10 C.F.R. § 2.1204(b)(3)).4 The Board explained that New York may examine witnesses after the Boards examination, so long as New Yorks questions are relevant, reasonable, and nonrepetitive.

Order at 7. Noting that the pre-filed testimony and exhibits in this proceeding are voluminous and technical, the Board found cross-examination necessary to ensure development of an adequate record for this proceeding. Id. at 6.

The Boards September 24, 2012 Teleconference The Boards Order granted only the State of New York the right to cross-examine consider this the equivalent of a motion. As the Chair stated during the teleconference, at this point the only party that submitted a request to do examination is New York, nobody else has.

Entergy hasnt, the NRC Staff hasnt, Clearwater hasnt, Riverkeeper hasnt. At this point, the only one who has made the request and filed the motion is New York. Tr. 1237:13-19.

4 In its August 8, 2012 motion, the State sought to invoke its statutorily-granted cross-examination rights under Section 274(l) of the Atomic Energy Act. State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l)

(Aug. 8, 2012). In granting the States motion, the Board found it unnecessary to address whether and if so to what extent, in some theoretical sense, the right to cross-examination granted to host states by the AEA may be different from those provided to parties under 10 C.F.R. Part 2. Order at 5-6.

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witnesses for the simple reason that the State was the only party who sought such relief.

However, during a September 24, 2012 teleconference, the Board made clear that any party may seek a similar right upon oral motion at the hearing. Tr. at 1241-42. The Board also made clear that the States right to cross-examination is not unfettered, is limited to matters that are not redundant of matters the Board has already covered, and that the Board will terminate any cross-examination it believes does not serve the purpose of advancing the record. Tr. at 1237-43.

Accordingly, Entergy is not prejudiced by the Boards exercise of discretion regarding the conduct of the impending hearing. Moreover, Entergys instant motion asserts that cross-examination is not necessary; as such it is welcome to disregard the Boards offer to consider a request for cross at the hearing. However, Entergy should not be heard to deny the State or other parties that right granted by the Board under the Boards authority.

ARGUMENT POINT I ENTERGY HAS NOT MET THE STANDARD FOR INTERLOCUTORY REVIEW A party seeking interlocutory review must show that the issue to be reviewed:

(i) 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 officer's final decision; or (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner.

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station0, 2011 WL 6854157 (Dec. 22, 2011)) at 5. The limited relief afforded the State - and all other parties - by the Boards Order and subsequent telephone conference is by no means pervasive or unusual. Rather, the Board has granted relief contemplated and authorized by the Commission under Subpart L, and limited cross-examination to only those questions that are not relevant, 3

reasonable and repetitive of questions the Board itself has already asked. Tr. 1236-38. The Order by no means subject[s] Entergys witnesses to wide-ranging cross-examination by New York with no reciprocal equal opportunity for Entergy to cross-examine the States witnesses as Entergy has argued. Entergy Petition at 4. In fact, in response to similar concerns from NRC Staff - a party that was also given the right to seek cross-examination at the hearing - Chairman McDade said if the questions that are being asked by counsel for New York are repetitive, we are going to cut it off. If they are not relevant to the issues as we understand them, we are going to cut it off. On the other hand, if the Board feels that we are learning something, then we will go ahead and allow, again, a reasonable interrogation of the witness. But that is not an open-ended, that isnt ask anything you want if youre curious.

Tr. at 1238:12-20.

Entergy makes much of the Boards Order granting cross-examination to the State. But it is hardly unusual for a Board to grant relief only to the party seeking such relief; Entergy cites no authority for the proposition that when one party moves for relief, the Board should formally grant all non-moving parties identical relief. Entergy makes what amounts to an equitable argument that New York has demonstrated no greater ability to assist the Board in developing an adequate record than Entergy or the NRC Staff and requests identical relief, while simultaneously taking the position that cross examination is not necessary. Entergy Petition at 16, n.68. While Entergy did not move for cross-examination, it nevertheless asserts that

[c]ommon sense and fairness dictate that each side in an adjudicatory proceeding should have an equal opportunity to be heard. Id. at 15. As plainly demonstrated by the Transcript, the Board acknowledged the need for fairness at the hearing, and stated that it will allow even non-moving parties like Entergy the right to propose to ask cross-examination questions at the hearing. Tr. 1241-43. Contrary to Entergys characterizations, the Board has not acted in a 4

one-sided or unilateral manner. Id.

Moreover, it is unlikely that the limited cross-examination granted here will threaten[] to undermine the Commissions longstanding efforts to develop more efficient hearing processes (Entergy Petition at 15-16). If anything, the Board was clear that it intended to require all cross-examination to be focused and non-repetitive. As the only Circuit court to have addressed the procedural rule changes NRC made to streamline license renewal proceedings, the First Circuit took great pains to emphasize the importance of cross-examination. Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 354 (1st Cir. 2004). The First Circuit held that,

[i]mportantly, however, the new rules do not completely do away with cross-examination.

Rather, they leave its availability to the discretion of the hearing officer. Id. Noting that [t]he

[Administrative Procedure Act] does require that cross-examination be available when required for a full and true disclosure of the facts, the First Circuit found that [h]ad the new rules abolished cross-examination entirely, we might well find the Commissions action insupportable. Id. Finding cross-examination necessary to develop a full record, the Boards Order here is directly in line with Citizens Awareness and NRC regulations.

Entergys procedural omissions do not form the basis for a proper motion for interlocutory review. Nor has Entergy been prejudiced by the Boards granting the States motion for cross-examination. Moreover, since Entergy does not believe cross-examination is necessary, it is hard to understand how the Boards willingness to allow it to conduct cross-examination upon a proper showing at the hearing is critical enough to warrant the Commissions intervention.

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POINT II THE BOARD HAS GRANTED RELIEF THAT IS AUTHORIZED BY THE COMMISSIONS SUBPART L REGULATIONS, AND WHICH IS SQUARELY WITHIN THE BOARDS DISCRETION AND AUTHORITY Contrary to Entergys characterizations, the Board did not grant the State wide-ranging relief, but granted only limited relief pursuant to Subpart L regulations. This action was squarely within the Boards discretion and authority and should be upheld by the Commission.

Under 10 C.F.R. § 2.319, A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order. The presiding officer has all the powers necessary to those ends[.] 10 C.F.R. § 2.319. The Board, in granting limited relief authorized under the Commissions regulations, and upon the States motion, acted well within its authority under 10 C.F.R. § 2.319. The Board decided that allowing the State - and upon oral motion, other parties

- to conduct limited, non-repetitive cross-examination would further the goals of creating a full administrative record. This determination is expressly included in the Boards authority. See 10 C.F.R. § 2.1204 (The presiding officer shall allow cross-examination by the parties only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision.). Entergys assertion that no adjudicatory proceeding to date has included a grant of cross-examination rights is irrelevant; the Commissions regulations provide for such relief and contemplate proceedings employing this provision.

Moreover, the breadth and complexity of this proceeding makes it likely that the Board has already received and prepared extensive cross-examination plans. Thus, 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. The Board has made clear that should any party go 6

beyond the focused cross-examination it has authorized, it will limit such questioning. Tr. 1238, 1243.

Finally, there is no inequity here. Entergy did not move for cross-examination rights, and yet it has been afforded the opportunity - upon a proper showing at the hearing - to cross-examine witnesses. Entergy cannot claim to have been aggrieved when it has gained procedural rights that it had neglected to seek for itself. As noted above, if Entergy does not believe cross-examination will be necessary, then presumably it will seek to ask no questions at the hearing.

That is Entergys choice.

POINT III A STAY OF THE PROCEEDING IS NOT WARRANTED AND WOULD BE HIGHLY PREJUDICIAL TO ALL PARTIES AND THE BOARD Entergy correctly recites the four factors the Commission considers upon receiving a request for a stay under 10 C.F.R. § 2.342(e): (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether that party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm the other parties; and (4) where the public interest lies. Entergy Application for Stay at 4. Under this test, Entergy has not only failed to demonstrate that a stay of the October 15, 2012 hearing is warranted, it is clear that a stay at this late date would prejudice the Board and other parties to the proceeding and is contrary to the public interest.

Where a party seeks a stay of proceedings, the Commission has stated that irreparable injury is the most important. Specifically, [a] party seeking a stay must show it faces imminent, irreparable harm that is both certain and great. S. Nuclear Operating Co. (Vogtle Electric Generating Plant Units 3 and 4), CLI-12-11, 75 N.R.C. __, slip op. at 3 (Apr. 16, 2012).

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Proponents of a stay who fail to demonstrate irreparable injury will not prevail unless they demonstrate that their success on the merits is a virtual certainty, a burden the Commission deems a high standard. Vogtle, CLI-12-11, at 5. Entergy has not shown that it will suffer irreparable harm, and indeed has not met any of the four factors articulated in 10 C.F.R. § 2.342(e).

As the Commission has ruled, interlocutory review is reserved for extraordinary circumstances. Pacific Gas And Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2, CLI-12-13, 75 N.R.C. __ (June 7, 2012). Entergy has not articulated how it will be harmed by the State conducting limited cross-examination following the Boards examination of expert witnesses; it states only that additional hearing time may be devoted to the States questions, and that [i]t is difficult to imagine a more pervasive and unusual effect on the basic structure of a proceeding. Entergy Petition at 9. Certainly the Boards provision of relief allowed under Commission regulations is far from pervasive and unusual. As the September 24, 2012 teleconference demonstrated, the Board is fully cognizant of the need to conducting a fair and efficient hearing, and intends to do so. Tr. 1236-43. Entergy has not shown it will prevail on the merits.

Entergy has not shown that it will be irreparably injured if the Boards Order remains in effect. In fact, Entergy has gained, not lost, procedural rights, without having made a formal motion. The cross-examination right granted to the State and upon oral application, other parties, is narrow and limited. Similarly, Entergy therefore has not met the second factor for a stay.

Having failed to make a showing regarding the first two factors, Vogtle, CLI-12-11 at 3, the Commission need not look any further.

That said, it is the third factor that Entergy has most greatly mischaracterized. Contrary 8

to Entergys claim that A Stay Would Not Harm New York or Any Other Party (Entergy Application for Stay at 7), the other parties and the Board will be significantly prejudiced if the hearing does not go forward on its scheduled timetable. Entergy states without support or discussion that a stay would not prejudice any party. Entergy Application for Stay at 7. But Entergy did not indicate to the Board or parties, though it had multiple opportunities to do so (including during the September 24, 2012 Board teleconference dedicated exclusively to hearing logistics) that it intended to seek review of the Boards Order or request a stay of the proceeding.

Nor did Entergy conduct consultation with parties. As such, the Board has issued multiple orders relating to the structure of the hearing, in reliance upon which the State alone has arranged travel and accommodations for 17 counsel and witnesses traveling from locations in New York State, the eastern United States, and Canada, a number which is significantly larger for other parties. Given that only 3 of the 12 contentions being heard during the October Track One phase of this hearing belong to parties other than the State, the State would be considerably prejudiced should the hearing not go forward as scheduled. In addition to the expense of rescheduling travel and accommodations, counsel and witnesses have other matters that have been rescheduled, postponed, or reassigned to colleagues, the reversal of which would cause further hardship to all involved. In addition to the impact of a rescheduled or reordered hearing on the States counsel and witnesses, the same or similar prejudice would likely accrue to the Board, law clerks, Staff counsel and witnesses, Riverkeeper and Clearwater counsel and witnesses, and interested governmental entities.

Finally, Entergy states in conclusory fashion that [t]he public interest is served by a full, fair, efficient, and impartial adjudication of Entergys license renewal application. Entergy Application for Stay at 8. While the State agrees with Entergys statement taken alone, plainly 9

full and fair adjudication will be accomplished through the application of the limited cross-examination rights provided by the regulations and granted to parties by the Board.

CONCLUSION For the above-stated reasons, Entergys Petition and Application for Stay should be denied.

Signed (electronically) by Janice A. Dean Assistant Attorney General 120 Broadway, 26th Floor New York, New York 12224 (212) 416-8459 Dated: October 1, 2012 10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. October 1, 2012

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x CERTIFICATE OF SERVICE I hereby certify that on October 1, 2012, copies of the State Of New York Combined Opposition To Entergys Requests For Emergency Stay And Interlocutory Review Of The Board Order Granting Limited Cross-Examination, were served upon the following persons via Electronic Information Exchange (EIE) at the following addresses:

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel Michael F. Kennedy U.S. Nuclear Regulatory Commission Administrative Judge Mailstop 3 F23 Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike Mailstop 3 F23 Rockville, MD 20852-2738 Two White Flint North Lawrence.McDade@nrc.gov 11545 Rockville Pike Rockville, MD 20852-2738 Richard E. Wardwell Michael.Kennedy@nrc.gov Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov

Shelbie Lewman, Esq. Law Clerk Joseph.Lindell@nrc.gov Anne Siarnacki, Esq., Law Clerk Atomic Safety and Licensing Board Panel Kathryn M. Sutton, Esq.

U.S. Nuclear Regulatory Commission Paul M. Bessette, Esq.

Mailstop 3 F23 Jonathan Rund, Esq.

Two White Flint North Raphael Kuyler, Esq.

11545 Rockville Pike Morgan, Lewis & Bockius LLP Rockville, MD 20852-2738 1111 Pennsylvania Avenue, NW Shelbie.Lewman@nrc.gov Washington, DC 20004 Anne.Siarnacki@nrc.gov ksutton@morganlewis.com pbessette@morganlewis.com Office of Commission Appellate jrund@morganlewis.com Adjudication rkuyler@morganlewis.com U.S. Nuclear Regulatory Commission Mailstop 16 G4 Martin J. ONeill, Esq.

One White Flint North Morgan, Lewis & Bockius LLP 11555 Rockville Pike Suite 4000 Rockville, MD 20852-2738 1000 Louisiana Street ocaamail@nrc.gov Houston, TX 77002 martin.oneill@morganlewis.com Office of the Secretary Attn: Rulemaking and Adjudications Staff Bobby R. Burchfield, Esq.

U.S. Nuclear Regulatory Commission Matthew M. Leland, Esq.

Mailstop 3 F23 Clint A. Carpenter, Esq.

Two White Flint North McDermott Will & Emery LLC 11545 Rockville Pike 600 13th Street, NW Rockville, MD 20852-2738 Washington, DC 20005-3096 hearingdocket@nrc.gov bburchfield@mwe.com mleland@mwe.com Sherwin E. Turk, Esq. ccarpenter@mwe.com David E. Roth, Esq.

Beth N. Mizuno, Esq. Richard A. Meserve, Esq.

Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Joseph A. Lindell, Esq. Washington, DC 20004-2401 Office of the General Counsel rmeserve@cov.com U.S. Nuclear Regulatory Commission Mailstop 15 D21 Elise N. Zoli, Esq.

One White Flint North Goodwin Procter, LLP 11555 Rockville Pike Exchange Place Rockville, MD 20852-2738 53 State Street sherwin.turk@nrc.gov Boston, MA 02109 david.roth@nrc.gov ezoli@goodwinprocter.com beth.mizuno@nrc.gov brian.harris@nrc.gov anita.ghosh@nrc.gov

William C. Dennis, Esq. 59-17 Junction Boulevard Assistant General Counsel Flushing, NY 11373 Entergy Nuclear Operations, Inc. (718) 595-3982 440 Hamilton Avenue mdelaney@dep.nyc.gov White Plains, NY 10601 wdennis@entergy.com Manna Jo Greene, Director Karla Raimundi, Environmental Justice Robert D. Snook, Esq. Associate Assistant Attorney General Stephen Filler, Esq., Board Member Office of the Attorney General Hudson River Sloop Clearwater, Inc.

State of Connecticut 724 Wolcott Avenue 55 Elm Street Beacon, NY 12508 P.O. Box 120 Mannajo@clearwater.org Hartford, CT 06141-0120 karla@clearwater.org robert.snook@ct.gov stephenfiller@gmail.com Melissa-Jean Rotini, Esq. Phillip Musegaas, Esq.

Assistant County Attorney Deborah Brancato, Esq.

Office of the Westchester County Attorney Riverkeeper, Inc.

Michaelian Office Building 20 Secor Road 148 Martine Avenue, 6th Floor Ossining, NY 10562 White Plains, NY 10601 phillip@riverkeeper.org MJR1@westchestergov.com dbrancato@riverkeeper.org Daniel E. ONeill, Mayor James Seirmarco, M.S.

Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Victoria S. Treanor, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental Protection

Signed (electronically) by Janice A. Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 1st day of October, 2012