ML12265A061
| ML12265A061 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 09/21/2012 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | State of NY, Office of the Attorney General |
| SECY RAS | |
| References | |
| RAS 23489, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12265A061 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) September 21, 2012 ORDER (Order Granting, in part, New Yorks Motion for Cross Examination)
INTRODUCTION On August 8, 2012, the State of New York (New York) filed a motion seeking to invoke what it claims to be its statutorily-granted cross-examination rights under Section 274(l) of the Atomic Energy Act (AEA).1 New York claims that the expansive cross-examination rights conferred upon it as a host state by Section 274(l) of the AEA, 42 U.S.C § 2021(l) (Section 2021(l)) take precedence over the restrictive cross-examination rights allowed pursuant to 10 C.F.R. §§ 2.135(c) and 2.1204(b)(3).2 More specifically, New York argues that the 2004 modifications to the NRCs Administrative Procedure Act compliant regulations, which it contends generally restrict the use of cross-examination by most parties, do not purport to 1
See State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) (Aug. 8, 2012) [hereinafter New York Motion].
2 See id. at 14-15, 19.
2 address the rights preserved to the States in [Section 2021(l)].3 Thus, New York argues that 10 C.F.R. §§ 2.135(c) and 2.1204(b)(3) do not apply to it as a host state and do not restrict its right to interrogate witnesses.4 New York further argues that the language of Section 2021(l), and its legislative history, make it clear that a State in which the federal government has been asked to authorize the operation of a nuclear reactor has an absolute right to conduct cross-examination of witnesses in NRC licensing proceedings regarding the reactor.5 According to New York, this right to interrogate witnesses at Commission licensing proceedings was conferred to the states by the United States Congress [i]n exchange for [states] not having the right to regulate certain aspects of nuclear safety of nuclear power plants within their borders6 and guarantees every state that a nuclear facility will not operate within its borders until and unless the State has been given the opportunity to ensure that all relevant questions are asked and answered.7 Moreover, New York contends this cross-examination rightspecifically granted by the AEA to states that house nuclear reactorsis not, and cannot be, delegated to federal authorities and cannot be circumscribed by federal regulations that grant to federal authorities the determination of whether cross-examination by a State is warranted.8 In addition, according to New York, this right has not been subsequently diminished either by Congress or NRC regulations.9 3
Id. at 14.
4 Id. at 15.
5 Id. at 1.
6 Id. at 7.
7 Id. at 10.
8 Id. at 10-11.
9 Id. at 5.
3 New York emphasizes that in this proceeding its rights to cross-examination are particularly important not only because of the profound actual and potential impact of Indian Point on the residents of New York State but because of the full and active role that New York has played in this proceeding.10 New York contends that [w]ithout in any way diminishing the role the Board plays in conducting cross-examination of witnesses, it is vital to the sovereign interests . . . of New York that the State be allowed the opportunity to ensure that the record is fully developed and the facts are fully disclosed regarding the vital issues at stake in the proceeding.11 Entergy Nuclear Operations, Inc. (Entergy) and the NRC Staff (Staff) oppose this motion.12 Entergy argues that [n]othing in the relevant statutes, regulations, and case law supportslet alone requires[New Yorks] unprecedented and unfair request for cross examination.13 Entergy further argues that Section 2021(l) does not provide an absolute right
[to cross examination], as New York insists, but only a reasonable opportunity, . . . to cross-examine that is equivalent to that set forth in [10 C.F.R. § 2.2104(b)(3)].14 According to Entergy, to find otherwise would mean that New York, not the Board, is the arbiter of whether its own request [for cross examination] is reasonable.15 It would also mean that states that 10 Id. at 10.
11 Id.
12 See Entergys Answer Opposing New York States Motion to Cross-Examine (Aug. 20, 2012)
[hereinafter Entergys Answer]; NRC Staffs Answer to State of New Yorks Motion to Implement Statutorily-Granted Cross-Examination Rights under Atomic Entergy Act § 274(l)
(Aug. 20, 2012) [hereinafter Staffs Answer].
13 Entergys Answer at 2.
14 Id. at 3.
15 Id. at 5.
4 house nuclear facilities, like New York, can cross-examine witnesses indefinitely (and even badger those witnesses) with impunity.16 Moreover, Entergy states that New York did not show that cross-examination is necessary under [10 C.F.R. § 2.2104(b)(3)], the regulation, according to Entergy, that governs cross examination in this proceeding.17 At most, Entergy asserts, New York speculates it is possible that its cross-examination would be allowed under [10 C.F.R. § 2.2104(b)(3)].18 This speculation, according to Entergy, does not establish a necessity for New Yorks requested cross-examination.19 Finally, Entergy argues that New Yorks motion should be denied as untimely.20 Entergy asserts that [u]nder 10 C.F.R. § 2.323(a), [a] motion must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.21 Entergy states that there was no occurrence in the ten days between July 29th and August 8th (the date New York filed its motion seeking cross examination) that triggered the timely filing of this motion.22 Thus, Entergy contends that this motion is untimely.23 16 Id. at 8.
17 Id. at 12.
18 Id.
19 See id.
20 Id. at 13.
21 Id.
22 Id.
23 Id. Entergy does acknowledge that the July 12, 2012 Order directs the parties to file motions for cross-examination by August 29, 2012. Id. But Entergy asserts that the July 12, 2012 Order was a clarification of the July 1, 2010 Scheduling Order, and the Scheduling Order, according to Entergy, only sets a deadline for cross-examination motions under 10 C.F.R. § 2.1204(b). Id. at 13 & n.12. Thus, according to Entergy, New Yorks present motion for cross examination was not timely filed under the Scheduling Order or the July 12, 2012 Order because it seeks cross examination under Section 2021(l), not 10 C.F.R. § 2.1204(b). Id. at 13.
5 The Staff argues that in this proceeding New York is not just the State housing Indian Point, but it is also a party to this proceeding.24 Thus, the Staff argues that New Yorks cross-examination rights are governed by 10 C.F.R. § 2.1204(b)(3), the same regulation that governs the cross-examination rights of all of the parties to this proceeding.25 In support of this argument, the Staff asserts that if Section 2021(l) had provided a separate cross-examination right to States when they are parties to the proceeding, it is reasonable to expect that the NRC would have codified those additional rights in its regulationsparticularly upon adopting clarifying revisions of these regulations in 2004.26 The Commission, however, did not codify such additional rights, and therefore, according to the Staff, New York, having elected to become a party to the proceeding, cannot take advantage of the opportunities afforded to non-parties by [Section 2021(l)].27 BOARD DECISION Whether participating in this proceeding as a host state, an admitted party intevenor, or both, New York must observe the procedural requirements imposed by regulation on all participants to this proceeding,28 and the Board must follow all applicable Commission Regulations. Accordingly, in this proceeding, New Yorks opportunity to cross-examine witnesses is bound by the same 10 C.F.R. Part 2 regulations that govern all parties to this proceeding. However, that opportunity, as it will be applied in this proceeding, will comply with the Commissions Regulations and provide New York with the reasonable opportunity to interrogate witness which it argues it is guaranteed by Section 2021(l). Thus, it is not necessary 24 See Staffs Answer at 4.
25 Id. at 4-5.
26 Id. at 8.
27 Id. at 9.
28 See Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 768 (1977).
6 for the board, in this Order, 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.
Pursuant to 10 C.F.R. § 2.315(c) representatives of states and other interested governmental bodies shall be afforded the right to interrogate witnesses when, and to the extent that, admitted intervenor parties are permitted to interrogate witnesses. Commission regulations do not recognize a greater right of governmental entities to cross-examine witnesses than that of intevenor parties. Likewise, governmental entities cross-examination rights are in no way diminished when they are admitted as a party to the proceeding.
Under 10 C.F.R. § 2.1204(b)(1), [i]n any oral hearing under [Subpart 2], a party may file a motion with the presiding officer to permit cross-examination by the parties on particular admitted contentions or issues. The motion must be accompanied by a cross-examination plan
. . . . And pursuant to 10 C.F.R. § 2.1204(b)(3), [t]he 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.
In this case, New York did file a motion for cross-examination before the August 29, 2012, deadline for cross-examination motions.29 It also filed proposed examination questions on August 29, 2012,30 which, in the Boards judgment, constituted a reasonable cross-examination plan. Thus, the Board finds that New York complied with 10 C.F.R. § 2.1204(b).
Moreover, the pre-filed testimony and exhibits in this proceeding are voluminous and technical. Thus, the Board has determined that granting New Yorks request for cross-examination is necessary to ensure development of an adequate record for this proceeding.
Accordingly, the Board grants New Yorks request for cross-examination under 10 C.F.R. § 29 See New York Motion at 20; Licensing Board Order (Memorializing Items Discussed During the July 9, 2012, Status Conference) (July 12, 2012) at 2 (unpublished).
30 The State of New Yorks Proposed Examination Questions to Entergy and NRC Staff Witnesses on Contentions NYS 5, 6/7, 8, 12C, 16B, 17B, and 37 (Aug 29, 2012).
7 2.1204(b)(3). During the evidentiary hearing New York may examine witnesses after the Boards examination, so long as New Yorks questions are relevant, reasonable, and non-repetitive.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
___________________________
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland September 21, 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Order Granting, in part, New Yorks Motion for Cross Examination) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop O-7H4M Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 ocaamail@nrc.gov Hearing Docket hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Sherwin E. Turk, Esq.
Atomic Safety and Licensing Board Panel Edward L. Williamson, Esq.
Mail Stop T-3F23 Beth N. Mizuno, Esq.
Washington, DC 20555-0001 David E. Roth, Esq.
Brian Harris, Esq.
Lawrence G. McDade, Chair Mary B. Spencer, Esq.
Administrative Judge Anita Ghosh, Esq.
lawrence.mcdade@nrc.gov Karl Farrar, Esq.
Brian Newell, Paralegal Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Office of the General Counsel richard.wardwell@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Michael F. Kennedy sherwin.turk@nrc.gov; edward.williamson@nrc.gov Administrative Judge beth.mizuno@nrc.gov; brian.harris.@nrc.gov michael.kennedy@nrc.gov david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; karl.farrar@nrc.gov Anne Siarnacki, Law Clerk brian.newell@nrc.gov anne.siarnacki@nrc.gov Shelbie Lewman, Law Clerk OGC Mail Center shelbie.lewman@nrc.gov OGCMailCenter@nrc.gov James Maltese, Law Clerk james.maltese@nrc.gov Carter Thurman, Law Clerk carter.thurman@nrc.gov
Docket Nos. 50-247-LR and 50-286-LR ORDER (Order Granting, in part, New Yorks Motion for Cross Examination)
William C. Dennis, Esq. Thomas F. Wood, Esq.
Assistant General Counsel Daniel Riesel, Esq.
Entergy Nuclear Operations, Inc. Victoria Shiah Treanor, Esq.
440 Hamilton Avenue Adam Stolorow, Esq.
White Plains, NY 10601 Jwala Gandhi, Paralegal wdennis@entergy.com Peng Deng, Paralegal Counsel for Town of Cortlandt William B. Glew, Jr. Sive, Paget & Riesel, P.C.
Organization: Entergy 460 Park Avenue 440 Hamilton Avenue, White Plains, NY 10601 New York, NY 10022 wglew@entergy.com driesel@sprlaw.com; vtreanor@sprlaw.com astolorow@sprlaw.com ;jgandhi@sprlaw.com Elise N. Zoli, Esq. pdeng@sprlaw.com Goodwin Proctor, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com Kathryn M. Sutton, Esq. Phillip Musegaas, Esq.
Paul M. Bessette, Esq. Deborah Brancato, Esq.
Martin J. ONeill, Esq. Ramona Cearley, Secretary Raphael Kuyler, Esq. Riverkeeper, Inc.
Jonathan M. Rund, Esq. 20 Secor Road Lena Michelle Long, Esq. Ossining, NY 10562 Laura Swett, Esq. phillip@riverkeeper.org; dbrancato@riverkeeper.org Lance Escher, Esq. rcearley@riverkeeper.org Mary Freeze, Legal Secretary Antoinette Walker, Legal Secretary Morgan, Lewis & Bockius, LLP Melissa-Jean Rotini, Esq.
1111 Pennsylvania Avenue, NW Assistant County Attorney Washington, DC 20004 Office of Robert F. Meehan, ksutton@morganlewis.com Westchester County Attorney martin.oneill@morganlewis.com 148 Martine Avenue, 6th Floor rkuyler@morganlewis.com White Plains, NY 10601 jrund@morganlewis.com MJR1@westchestergov.com llong@morganlewis.com;lswett@morganlewis.com lescher@morganlewis.com mfreeze@morganlewis.com awalker@morganlewis.com Clint Carpenter, Esq. Manna Jo Greene, Environmental Director Bobby Burchfield, Esq. Steven C. Filler Matthew Leland, Esq. Karla Raimundi McDermott, Will and Emergy LLP Hudson River Sloop Clearwater, Inc.
600 13th Street, NW 724 Wolcott Ave.
Washington, DC 20005 Beacon, NY 12508 ccarpenter@mwe.com; bburchfield@mwe.com mannajo@clearwater.org; stephenfiller@gmail.com mleland@mwe.com karla@clearwater.org 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Order Granting, in part, New Yorks Motion for Cross Examination)
Matthew W. Swinehart, Esq. Michael J. Delaney, Esq.
Covington & Burling LLP Director, Energy Regulatory Affairs 1201 Pennsylvania Avenue, NW NYC Department of Environmental Protection Washington, DC 20004 59-17 Junction Boulevard mswinehart@cov.com Flushing, NY 11373 mdelaney@dep.nyc.gov John Louis Parker, Esq.
Office of General Counsel, Region 3 Richard Webster, Esq.
New York State Department Public Justice, P.C. (for Hudson River Sloop) of Environmental Conservation 1825 K Street, NW, Suite 200 21 South Putt Corners Road Washington, D.C. 20006 New Paltz, NY 12561-1620 rwebster@publicjustice.net jlparker@gw.dec.state.ny.us John J. Sipos, Esq.
Charles Donaldson, Esq. Robert D. Snook, Esq.
Assistant Attorneys General Assistant Attorney General Office of the Attorney General Office of the Attorney General of the State of New York State of Connecticut Elyse Houle, Legal Support 55 Elm Street The Capitol P.O. Box 120 State Street Hartford, CT 06141-0120 Albany, New York 12224 robert.snook@po.state.ct.us John.Sipos@ag.ny.gov; charlie.donaldson@ag.ny.gov elyse.houle@ag.ny.gov Janice A. Dean, Esq.
Assistant Attorney General Sean Murray, Mayor Kathryn Liberatore, Esq. Kevin Hay, Village Administrator Office of the Attorney General Village of Buchanan of the State of New York Municipal Building 120 Broadway, 26th Floor 236 Tate Avenue New York, New York 10271 Buchanan, NY 10511-1298 janice.dean@ag.ny.gov; SMurray@villageofbuchanan.com kathryn.liberatore@ag.ny.gov Administrator@villageofbuchanan.com Dated at Rockville, Maryland [Original signed by Nancy Greathead]
this 21st day of September 2012 Office of the Secretary of the Commission 3