ML090890837

2009/03/30 - Indian Point - Hearing File Update - Supplement 2

ML090890837
Person / Time
Site:	Indian Point
Issue date:	03/30/2009
From:	Harris B G, Turk S E NRC/OGC
To:	Lathrop K D, McDade L G, Wardwell R E Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-239
Download: ML090890837 (10)

Text

OFFICE OF THE GENERAL COUNSEL UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON.

D.C. 20555-0001 March 30, 2009 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 Administrative Judge Dr. Richard E.

Wardwell Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Dr. Kaye D. Lathrop 190 Cedar Lane East Ridgeway, CO 81432 In the Matter of ENTERGY NUCLEAR OPERA-I-IONS, INC. (Indian Point Nuclear Generating Station Units 2 and 3) Docket Nos. 50-247-LR and 50-286-LR

Dear Administrative Judges:

Pursuant to the Atomic Safety and Licensing Board's December 18, 2008, "Memorandum and Order (Addressing Requests that the Proceeding be Conducted Pursuant to Subpart G)," slip op. at 13, and the Licensing Board's "Order (Granting Consent Motion Regarding Mandatory Disclosures)," dated January 30, 2009, at I, the staff of the U.S. Nuclear Regulatory Commission

("Staff') herein notifies the Licensing Board and the parties that the hearing file has been supplemented for this proceeding.

The hearing file includes materials required pursuant to 10 C.F.R. § 2.1203, the Staff's mandatory disclosures under 10 C.F.R.

§ 2.336(b), and the Licensing Board's Order of January 30, 2009, addressing Consolidated Contention Riverkeeper EC-3lCleawater EC-1. Materials in the hearing file may be accessed through the Agencywide Documents Access and Management System ("ADAMS").

An index containing the ADAMS accession number, date, and title or description of each item in Hearing File Index, Supplement 2 is appended hereto as Attachment

1. On or about April 3, 2009, the newly identified documents in the hearirrg file will be made available via the Electronic Hearing Docket ("EHD"), which may be accessed at the following URL: htt~://ehd.nrc.nov/EHD Proceedinn/home.asp. The hearing file will be contained in a sub-folder entitled, "Indian PT Hearing File, Supplement 2" in the "Indian-PT-2&3-50-247&50- 286-LR" folder of the EHD. In addition, as required by 10 C.F.R.

§ 2.336(b)(5), the Staff is producing an updated privilege log, identifying documents withheld under the deliberative process privilege, which are appended hereto as Attachment 2. Also, attached is the Declaration of Brian E. Holian formally Judge McDade Judge Lathrop Judge Wardwell March 30, 2009 invoking the deliberative process privilege with respect to each of the documents in Attachment 2. The Staff will preserve and maintain the privileged documents identified in these logs during the pendency of this proceeding. Further, pursuant to 10 C.F.R. 9 2.336(c), attached is the Affidavit of Andrew L. Stuyvenberg, certifying that all relevant materials required by this section have been disclosed, and that the disclosures are accurate and complete as to documents identified by March 20, 2009 (except for groundwater-related documents which the Staff identified previously and which have not yet been entered into ADAMS by the Office of Information Services).

The Staff also notes that four privileged documents were inadvertently listed as publicly available in Attachment 1 to Hearing File Supplement 1, transmitted on February 27, 2009 (Document ID Nos.01-069, 01-070,01-071, and 01-073 Those four documents had been withheld from public disclosure and should have been included in the Staff's deliberative process privilege log, "Attachment 2 - Indian Point License Renewal Hearing File Index Deliberative Process Privilege, Supplement 1 - February 27, 2009." Those four documents have now been identified as privileged and are included on the Attachment 2 to this letter as Document Nos. DPP-02-002, DPP-02-003, DPP-02-004, and DPP-02-005.

Finally, the NRC Staff notes that it has made a good faith effort to identify and characterize all documents meeting the criteria of 10 C.F.R. § 2.336(b) and 10 C.F.R. § 2.1203 in this proceeding.

In identifying these documents, the Staff does not concede their relevance to the license renewal issues to be decided in this proceeding.

Sincerely, Brian G. Harris Counsel for NRC Staff

Enclosures:

Attachment 1 - Hearing File Index, Supplement 2 Attachment 2 - Privilege Log - Deliberative Process Declaration of Brian E. Holian Affidavit of Andrew L. Stuyvenberg cc wIEncls.: Service List Attachment 1 - lndian Point License Renewal Hearing File Index Supplement 2 - March 30, 2009 Page 1 of 1 ID # 02-001 02-002 02-003 ,02-004 02-005 02-006 ,02-007 Accession Number ML090550981 ML090560796 ML090680256 ML090750632 ML090761271 ML090780177 ML090540426 Document Date 2/24/2009 2/25/2009 3/9/2009 311 612009 311 712009 311 912009 2/26/2009 Title 2009l02124 lndian Point LR Hearing - Draft RAls for 5 Open Items 2009l02125 lndian Point LR Hearing - RE: lndian Point: NUREG-1 437 2009/03/09 Indian Point LR Hearing - Draft Telecon Summary 2009/03/16 lndian Point LR Hearing - RE: lndian Point Units 2 & 3 2009103117 lndian Point LR Hearing - revised draft RAls regarding Open Items 2009/03119 lndian Point LR Hearing - RE: lndian Point Coordination Summary of Teleconference Held on January 27, 2009, Between the USNRC Staff and Entergy Representatives to Discuss NRC Analysis of Aquatic Impacts in Supplement 38 NUREG-1437.

Attachment 2 - lndian Point License Renewal Hearing File Index Deliberative Process Privilege, Supplement 2 - March 30, 2009 Certain documents otherwise subject to inclusion in the hearing file and mandatory disclosures for this proceeding have been determined by the NRC Staff to contain information subject to withholding from public disclosures as predecisional, deliberative information. Pursuant to 10 C.F.R. 5 2.336(b)(5), the Staff is providing this log to identify the following documents, withheld under the "deliberative process" privilege.

I l~ccession l~uthor Name1 I IDocument I l~age I ID # DPP 001 : Number ML090560301 DPP 003 DPP 004 DPP 002 7/6/2008 Affliation M McLaughlin NRCIRGN-I ML090300340 ,ML082180323 711 112008 Page 1 of 1 ML090300342 I I E-Mail DPP 005 Title Preliminary Conclusions of NRC assessment of IPEC relative to contaminated ground-water condition.

A Stuyvenberg NRCl NRR R Conte NRCl RGN. 1 Drafl Inspection Report Letter A Stuyvenberg NRCl NRR 2008/07/06 Indian Point LR Hearing - Re: Chapter

3. 05000247-08-006 and 05000286-08-006; on January 28 - June 6, 2008; lndian Point Nuclear Generating Unit Nos.

2 and 3; Scoping of Non-Safety Systems and the Proposed Aging Management Procedures for the Indian Point Application for Renewed License, Drafl. Internal transmission of comments regarding SER ML090300341 Date 2/5/2008 3 Drafl Letter 2008/07/03 Indian Point LR Hearing - Chapter 3. 23 ,D Logan NRCI NRR Document Type E-Mail 7/3/2008 2008/07/24 Indian Point LR Hearing - Needs for Cumulative in Ecology. Comment Drafl Report count 3 E-Mail 7/24/2008 Internal transmission of comments regarding SER E-Mail 18 Internal transmission of comments regarding SER 3 March 30, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ENTERGY NUCLEAR OPERATIONS, INC.

j 1 Docket Nos. 50-246

& 50-286-LR 1 ) ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Ur~its 2 and 3) ) DECLARATION OF BRIAN E. HOLIAN I, Brian E.

Holian, do hereby state as follows:

1. I am employed as the Director of the Division of Licensing Renewal

("DLR) in the U.S. Nuclear Regulatory Commission's

("NRC") Office of Nuclear Reactor Regulation

("NRR). My supervisory responsibilities include oversight of the NRC Staff's review and evaluation of the Indian Point Nuclear Generating Station Units 2 and 3 license renewal application.

2. As part of their responsibilities in updating the hearing file and mandatory disclosures for these proceedings, NRC staff members under my supervision identified certain documents as privileged because they contained information concerning the Staff's pre- decisional deliberative process.

'Those documents are listed in Attachment 2 to the March 30, 2009 submission of the Staff's Hearing File Index Supplement

2. 3. I have personally reviewed the documents identified as privileged in Attachment 2, and have determined, in accordance with the guidance set forth in Management Directive 3.4, that they contain pre-decisional information concerning the Staff's review of the license renewal application.

All documents contain either Staff's analyses, recommendations, opinions, or evaluations, and may not necessarily reflect the final agency position with respect to the matters discussed therein. Each of the documents comprises part of the deliberative process necessary for the Staff's review of the pending license renewal application.

4. Further, I have determined that disclosure of these documents could result in harm to the agency, in that it would (a) prematurely disclose the preliminary views of individual Staff members and/or the Staff prior to reaching a final agency decision, and could thus create confusion as to the actual policy or views of the NRC Staff; (b) hinder the efficiency of the Staff, in that forced disclosure of its internal discussions on an unresolved issue would tend to chill all future deliberations and would interfere with the Staff's ability to engage in a free exchange of opinions and analyses prior to publishing its final review documents; and (c) imply or suggest incorrectly that the opinions of the Staff members involved in these communications are actually the final decisions of the agency, while no such final decision has yet been made.

5. Accordingly, I formally invoke the deliberative process privilege with respect to each of the documents listed in Attachment 2 to the March 30, 2009 submission of the Staff's Hearing File Index Supplement

2. 6. 1 declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief.

Brian E. Holian Executed in Rockville, Maryland this 30th day of March, 2009 March 30, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ENTERGY NUCLEAR OPERATIONS, INC. ) ) Docket Nos. 50-246 & 50-286-LR OPERATIONS, INC. ) 1 ) ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generation Station, Units 2 and 3) ) ) AFFIDAVIT OF ANDREW L.

STUWENBERG CONCERNING MANDATORY DISCLOSURE REQUIREMENT OF 10 C.F.R. 6 2.336(b) I, Andrew L. Stuyvenberg, do hereby state as follows: 1. I am employed as a Project Manager in the Division of License Renewal in the U.S. Nuclear Regulatory Commission's ("NRC") Office of Nuclear Reactor Regulation.

I serve as a project manager for the Indian Point Nuclear Generating Station, Units 2 and 3 license renewal application ("LRA"). Among other things, I am managing the preparation of the hearirlg file and mandatory disclosures in connection with the LRA at issue in this proceeding.

2. I hereby certify that all relevant materials required to be disclosed pursuant to 10 C.F.R. 5 2.336 (b) and (c) in the captioned proceeding have been disclosed, and that the disclosures are accurate and complete for documents identified as of March 20, 2009, except with respect to Agencywide Documents Access and Management System Accession Nos, for documents still being processed by the NRC Office of Information Services.

3. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief.

Executed in Rockville, Maryland this 30th day of March, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 1 ) ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR ) (Indian Point Nuclear Generating ) Units 2 and

3) 1 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ""Letter to the ASLB regarding the Indian Point Hearing File, including: Attachment 1 - Indian Point License Renewal Hearing File Index, Supplement 2; Attachment 2 -Indian Point License Renewal Hearing File Index, Deliberative Process Privilege Supplement 2; Declaration of Brian E. Holian, dated March 30, 2009, and Affidavit of Andrew L. Stuyvenberg, dated March 30, 2009, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, with copies by electronic mail, as indicated by double asterisk, this 30th day of March 2009: Lawrence G. McDade, Chair* Office of Commission Appellate Atorrric Safety and Licensiqg Board Panel Adjudication* Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: 0-1 6G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: LGMI @nrc.gov E-mail: OCAAMAIL@nrc.gov Dr. Richard E. Wardwell*

Office of the Secretary* Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop:

0-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: REW@nrc.gov E-mail: HEARINGDOCKET@nrc.qov Dr. Kaye D. Lathrop* Zachary S. Kahn* Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgway, CO 81432 U.S. Nuclear Regulatory Commission E-mail: KDL2@nrc.gov Washington, DC 20555-0001 E-mail: ZXKl @nrc.gov Atomic Safety and Licensing Board Panel* U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 (Via Internal Mail Only) Kathryn M. Sutton, Esq.** Paul M. Bessette, Esq.

Martin J. O'Neill, Esq. Morgan, Lewis

& Bockius, LLP 11 11 Pennsylvania Avenue, NW Washington, D.C. 20004 E-mail: ksutton@morganlewis.com

E-mail: pbessette@morganlewis.com E-mail: martin.o'neill~moraanlewis.com Elise N. Zoli, Esq.** Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 021 09 E-mail: ezoli@qoodwinprocter.com William C. Dennis, Esq.** Assistant General Counsel Entergy Nuclear Operations, Inc. 440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis@entergy.com Justin D. Pruyne, Esq.** Assistant County Attorney Office of the Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-mail: jd~3@westchesteraov.com John Louis Parker, Esq.** 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: jlparker@gw.dec.state.ny.us Mylan L. Denerstein, Esq.** Janice A. Dean, Esq. Executive Deputy Attorney General, Social Justice Office of the Attorney General of the State of New York 120 Broadway, 25th Floor New York, NY 10271 E-mail: mvlan.denerstein@oag .state.ny .us janice.dean@oag.state.nv.us 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@,oaq.state.nv.us Joan Leary Matthews, Esq.** Senior Attorney for Special Projects New York State Department of Environmental Conservation Office of the General Counsel 625 Broadway, 1 4'h lo or Albany, NY 12233-1 500 E-mail: jlmatthe@gw.dec.state.nv.us Michael J. Delaney, Esq.** Vice President - Energy Department New York City Economic Development Corporation (NYCDEC) 1 10 William Street New York, NY 10038 E-mail: mdelanev@nvcedc.com Daniel E. O'Neill, Mayor** James Seirmarco, M.S. Village of Buchanan Municipal Building Buchanan, NY 1051 1-1298 E-mail: vob@bestweb.net Darriel Riesel, Esq*". Thomas F. Wood, Esq. Ms. Jessica Steinberg, J.D.

Sive, Paget & Riesel, P.C. 460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com jsteinber&Qs~rlaw.com Robert Snook, Esq.** Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CN 06141-01 20 E-mail: robert.snook@po.state.ct.us Manna Jo Greene*" Hudson River Sloop Clearwater, Inc.

1 12 Little Market Street Poughkeepsie, NY 12601 E-mail: Mannaio@clearwater.orq 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.orq . BF&. Harris Counsel for NRC Staff