ML081210691

2008/04/30-Commission Memorandum and Order (CLI-08-07)

ML081210691
Person / Time
Site:	Indian Point
Issue date:	04/30/2008
From:	Vietti-Cook A L NRC/SECY
To:
SECY RAS
References
50-247-LR, 50-286-LR, CLI-08-07, RAS-E-91
Download: ML081210691 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED 0 4/30/08 Commissioners: SERVED 04/30/08

Dale E. Klein, Chairman Gregory B. Jaczko Peter B. Lyons Kristine L. Svinicki

_______________________________________________ In the Matter of ) ) ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. (Indian Point Nuclear Generating Unit ) 50-247-LR Nos. 2 and 3) ) and 50-286-LR

_______________________________________________)

CLI-08-07 MEMORANDUM AND ORDER This order responds to a request, styled a "petition for review," by Westchester Citizen's Awareness Network (WestCAN), Sierra Club - Atlantic Chapter, Rockland County Conservation Association, Public Health and Sustainable Energy, and Assemblyman Richard Brodsky (together, WestCAN).

1 The Petition asks us to reverse an Atomic Safety and Licensing Board order cancelling oral argument on the issue of contention admissibility in the proceeding to 1 See Petition for Review of Atomic Safety and License [

sic.] Board (ASLB) Orders of March 25, 2008 and March 31, 2008 [

sic.] Cancelling Oral Arguments on WestCAN's Contentions (Apr. 4, 2008) (Petition). (Board order denying reconsideration was actually dated April 3, 2008).

2renew the operating license of the Indian Point Nuclear Generating Unit Nos. 2 and 3.

2 For the reasons set forth below, we deny the petition.

I. BACKGROUND The Indian Point license renewal application is highly controversial and the associated adjudication promises to challenge the Board's case management skills. In addition to the organizations who have joined with WestCAN in its petition to intervene, numerous other organizations, as well as state and local governments, have sought admission as parties to this proceeding. These various petitioners have asserted dozens of proposed contentions, many of which set forth similar issues.

3 WestCAN's petition to intervene is no exception, with 51 contentions proposed in a 785-page pleading (including supporting documents).

Given the large number of petitioners, even scheduling an opportunity for the Board to hear from the various participants on the threshold issue of contention admissibility proved complex. On January 24, 2008, the Board notified the participants that it intended to schedule oral argument on contention admissibility for the week of March 10 in White Plains, New York, 2 Order (Canceling Oral Argument on WestCAN's Contentions) (Mar. 25, 2008) (unpublished); reconsideration denied, Order (Relating to Wagner Letter Dated March 31, 2008) (Apr. 3, 2008) (unpublished).

3 Compare, e.g., WestCAN proposed contention 13 (Time-limited aging analyses), Petition to Intervene with Contentions and Request for Hearing (Dec. 10, 2007), at 109; with Friends United for Sustainable Energy (FUSE) USA proposed contention 48, Superceding Formal Petition to Intervene, Formal Request for Hearing, and Contentions (Dec. 31, 2007), at 359.

3and asked them to notify the Board of any scheduling conflicts.

4 In a February 29 order, the Board scheduled oral arguments, and directed that each petitioner would have the opportunity to make a 10-minute opening statement, followed by questions from the Board.

5 In the February 29 order, the Board acknowledged that two out of three of WestCAN representatives had notified the Board that they were not available at the proposed time. The Order stated that if the third WestCAN representative was also unavailable at that time, the Board would hear WestCAN's oral argument at NRC headquarters in Rockville, MD during the week of March 24, 2008, "or as soon thereafter as is practicable."

6 In a subsequent order, the Board set argument on WestCAN's petition for April 1, 2008, in Rockville.

7 This scheduling order provided that the Board would follow the same format as for the other oral arguments: a 10-minute presentation by the representatives followed by questions from the Board. The Board cautioned that it did not intend to hear duplicative material or take supplementary evidence: It is not the purpose of this proceeding to entertain general presentations regarding contentions which have already been adequately explained in the pleadings. Likewise, this proceeding is intended only as an opportunity for the Board to question, and the litigants to explain, what has previously been submitted. This will not be an evidentiary hearing and, without a specific 4 Order (Preliminary Notification Regarding the Scheduling of Oral Argument) (Jan. 24, 2008) (unpublished).

5 Order (Scheduling Oral Argument on the Admissibility of Contentions) (Feb. 29, 2008)(unpublished).

6 Id. at 3. 7 Order (Scheduling WestCAN Oral Argument) (March 7, 2008) (unpublished).

4 exemption from the Board, the litigants will not be given an opportunity to supplement the already voluminous record at this point in the proceeding.

8 Thus, the purpose of the oral argument on contention admissibility was solely to ensure that the Board understood the participants' positions.

The Board canceled the oral argument scheduled relevant to WestCAN's petition to intervene following the prehearing conference. In a March 25 Order, the Board explained that "[b]ased on the pleadings submitted, and the insights into the relevant issues in [the] proceeding gained by the Board during the oral arguments that were presented in White Plains, New York, on March 10-12, 2008, the Board has concluded that its understanding of the issues presented by WestCAN's contentions is adequate to enable us to properly rule on their admissibility and would not be materially assisted by oral argument."

9 WestCAN responded by letter asking the Board to reconsider and explain its decision to cancel the oral argument.

10 The Board responded with an Order explaining simply that it had no questions for WestCAN, the NRC Staff, or the applicant on any of the matters raised

WestCAN's petition.

in 11 8 Id. at 3. 9 Order (Canceling Oral Argument on WestCAN's Contentions), at 2.

10 Letter from WestCAN representative Sarah L. Wagner (Mar. 31, 2007). In particular, WestCAN inquired as to whether the Board changed its mind based on information gained from the oral argument that WestCAN was unable to attend.

11 Order (Relating to Wagner Letter Dated March 31, 2008).

5WestCAN contends that the Board's order rescinding the opportunity for oral argument deprived it of a procedural right that was granted to all other would-be intervenors, the NRC Staff, and the applicant.

II. DISCUSSION This preliminary, procedural Board ruling does not merit Commission review. Although WestCAN invokes our rule of procedure at 10 C.F.R. § 2.341, that rule provides standards for review of final Board decisions (full or partial initial decisions).

12 The Board here has not made even the threshold ruling on WestCAN's standing and contentions. Therefore, we consider WestCAN's Petition under our usual standard for review of an interlocutory Board order:

whether the ruling threatens the petitioner with "immediate and serious, irreparable impact" or will affect the "basic structure of the proceeding in a pervasive and unusual manner."

13 WestCAN's pleading does not address the standards for interlocutory review, and they clearly

have not been met. First, it cannot be said that the Board's order has harmed WestCAN at all, let alone to a "serious" degree. Oral argument on contention admissibility is not a "right." Rather, Boards often schedule these arguments, as this Board did here, to ensure that its members fully understand the participants' positions. Our rules provide that a petitioner must explain and 12 10 C.F.R. §2.341(b)(1).

13 10 C.F.R. § 2.341(f)(2).

6support its contention in the petition to intervene.

14 The rules further allow a petitioner to reply to any answers to its petition, and WestCAN took the opportunity to file a lengthy reply in this matter.15 And, as this Board cautioned in its orders scheduling oral argument, a petitioner may not offer additional evidence or arguments during such an oral presentation. Further, even assuming that the Board's refusal to hear WestCAN's oral presentation and ask follow-up questions could be said to negatively affect WestCAN, the "impact" would not be irreparable. The supposed harm - which is speculative at this point - would be the Board's misunderstanding of WestCAN's position. If the Board rejects WestCAN's petition in its entirety, then WestCAN may appeal to the Commission at that time.

16 On the other hand, if the Board grants WestCAN party status, but declines to admit some of its contentions, this would not constitute "immediate and serious irreparable impact." We have found - repeatedly - that the rejection or admission of a contention, where the Petitioner has been admitted as a party and has other contentions pending, neither constitutes serious and irreparable impact, nor affects the "basic structure of the proceeding in a pervasive and unusual manner."

17

14 10 C.F.R. § 2.309(f).

15 Reply of Petitioners Westchester County Citizen's Awareness Network (WestCAN), Sierra Club - Atlantic Chapter, Rockland County Conservation Association, Public Health and Sustainable Energy, and Assemblyman Richard Brodsky (Feb. 15, 2008). That there appears to be an ongoing issue regarding service of that reply is not material to today's decision.

16 10 C.F.R. § 2.311(b).

17 See, e.g., Exelon Generation Co., LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 466-67 (2004).

See also Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

7We note that our Boards have broad discretion to issue procedural orders to regulate the course of proceedings and the conduct of participants. It is the Board's responsibility to "conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, and to maintain order."

18 As a general matter, we decline to interfere with the Board's day-to-day case management decisions, unless there has been an abuse of power.

19 We see no abuse in the Board's actions here. III. CONCLUSION For the foregoing reasons, the Petition is denied. IT IS SO ORDERED. For the Commission

/RA/

___________________ Annette L. Vietti-Cook Secretary of the Commission

Dated at Rockville, MD This 30 th day of April, 2008 (Pilgrim Nuclear Power Station), 65 NRC 10, 12 (2007); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-00-2, 51 NRC 77, 79-80 (2000).

18 10 C.F.R. § 2.319.

19 E.g. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit Nos. 2 and 3), CLI-07-28, 66 NRC 275 (2007); Consolidated Edison Co. of New York (Indian Point, Unit 2), CLI-82-5, 16 NRC 27, 37 (1982).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONIn the Matter of )

)ENTERGY NUCLEAR OPERATIONS, INC. )Docket Nos. 50-247/286-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-08-07) have been served upon the following persons by electronic mail this date, followed

by deposit of paper copies in the U.S. mail, first class, and NRC internal mail.

Office of Commission Appellate Adjudication

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

ocaamail@nrc.gov Administrative Judge

Lawrence G. McDade, Chair

Atomic Safety and Licensing Board Panel

Mail Stop - T-3 F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

lgm1@nrc.gov Administrative Judge

Richard E. Wardwell

Atomic Safety and Licensing Board Panel

Mail Stop - T-3 F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

rew@nrc.gov Administrative Judge

Kaye D. Lathrop

190 Cedar Lane E.

Ridgway, CO 81432

Kaye.lathrop@nrc.gov Docket Nos. 50-247/286-LR COMMISSION MEMORANDUM AND ORDER (CLI-08-07) 2 Sherwin E. Turk, Esq.

Lloyd B. Subin, Esq.

Beth N. Mizuno, Esq.

David E. Roth, Esq.

Kimberly A. Sexton, Esq.

Christopher C. Chandler, Esq.

Karl Farrar, Esq.

Office of the General Counsel

Mail Stop - O-15 D21

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001 set@nrc.gov lbs3@nrc.gov bnm1@nrc.gov der@nrc.gov kimberly.sexton@nrc.gov christopher.chandler@nrc.gov klf@nrc.gov Mylan L. Denerstein Executive Deputy Attorney General

Social Justice

Office of the Attorney General

of the State of New York

120 Broadway, 25 th Floor New York, NY 10271

Mylan.Denerstein@oag.state.ny.us Michael J. Delaney, Vice President - Energy

New York City

Economic Development Corporation

110 William Street

New York, NY 10038

mdelaney@nycedc.com Arthur J. Kremer, Chairman

New York AREA

347 Fifth Avenue, Suite 508

New York, NY 10016

kkremer@area-alliance.org Martin J. O'Neill, Esq.

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Mauri T. Lemoncelli, Esq.

Counsel for Entergy Nuclear Operations, Inc.

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

martin.o'neill@morganlewis.com ksutton@morganlewis.com pbessette@morganlewis.com mlemoncelli@morganlewis.com Manna Jo Greene, Director

Hudson River Sloop Clearwater, Inc.

112 Little Market St.

Poughkeepsie, NY 12601

mannajo@clearwater.org Docket Nos. 50-247/286-LR COMMISSION MEMORANDUM AND ORDER (CLI-08-07) 3 Daniel E. O'Neill, Mayor

Village of Buchanan

James Seirmarc, M.S., Liaison to Indian Point

236 Tate Avenue

Buchanan, NY 10511 Robert D. Snook, Esq.

Assistant Attorney General

of the State of Connecticut

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

robert.snook@po.state.ct.us Charlene M. Indelicato, Esq.

Westchester County Attorney

Justin D. Pruyne, Esq.

Assistant County Attorney

148 Martine Avenue, 6 th Floor White Plains, NY 10601

jdp3@westchestergov.com Thomas F. Wood, Esq.

Daniel Riesel, Esq.

Counsel for the Town of Cortlandt

Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022

driesel@sprlaw.com Andrew M. Cuomo, Esq.

Attorney General of the State of New York

John J. Sipos, Esq.

Assistant Attorney General

The Capitol

Albany, NY 12224-0341

john.sipos@oag.state.ny.us Nancy Burton

147 Cross Highway

Redding Ridge, CT 06876

NancyBurtonCT@aol.com Riverkeeper, Inc.

Phillip Musegaas, Esq.

Victor Tafur, Esq.

828 South Broadway

Tarrytown, NY 10591

phillip@riverkeeper.org vtafur@riverkeeper.org Diane Curran, Esq.

Counsel for Riverkeeper, Inc.

Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M. Street N.W., Suite 600

Washington, DC 20036

dcurran@harmoncurran.com Janice A. Dean, Assistant Attorney General

Office of the Attorney General

of the State of New York

120 Broadway, 26 th Floor New York, NY 10271

janice.dean@oag.state.ny.us Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109

ezoli@goodwinprocter.com Docket Nos. 50-247/286-LR COMMISSION MEMORANDUM AND ORDER (CLI-08-07) 4 Joan Leary Matthews, Esq.

Senior Counsel for Special Projects

Office of General Counsel

New York State Department of

Environmental Conservation

625 Broadway

Albany, NY 12224

jlmatthe@gw.dec.state.ny.us Westchester Citizen's Awareness Network (WestCan), Citizens Awareness Network (CAN),

etc.Susan H. Shapiro, Esq.

21 Perlman Drive

Spring Valley, NY 10977

mbs@officeonline.ws Richard L. Brodsky Assemblyman

5 West Main Street

Suite 205 Elmsford, NY 10523

brodskr@assembly.state.ny.us FUSE USA Heather Ellsworth Burns-Demelo

John Lekay

Remy Chevalier

Belinda J. Jaques

Bill Thomas

351 Dyckman Street

Peekskill, New York 10566

www.fuseusa.org fuse_usa@yahoo.com Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109

ezoli@goodwinprocter.com Stephen C. Filler, Board Member

Hudson River Sloop Clearwater, Inc.

303 South Broadway, Suite 222

Tarrytown, NY 10591

sfiller@nylawline.com

[Original signed by Evangeline S. Ngbea] Office of the Secretary of the Commission Dated at Rockville, Maryland this 30 th day of April 2008