ML083530659
| ML083530659 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/18/2008 |
| From: | McDade L G Atomic Safety and Licensing Board Panel |
| To: | |
| SECYRAS | |
| References | |
| 07-858-03-LR-BD01, 50-247-LR, 50-286-LR, RAS E-197 | |
| Download: ML083530659 (9) | |
Text
1 Licensing Board Order (Addressing Requests that the Proceeding be Conducted Pursuant to Subpart G) (Dec. 18, 2008).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell 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 ASLBP No. 07-858-03-LR-BD01
December 18, 2008 MEMORANDUM AND ORDER (Scheduling Prehearing Conference and Ruling on New York State's Motion Requesting Consideration of Additional Matters)
This Order deals with several pending issues before the Board. First, the Board hereby notifies the parties that, in accordance with 10 C.F.R. §§ 2.329 and 2.332, it will convene a
prehearing conference via telephone at 10:00 AM EDT on Wednesday, January 14, 2009 for the
purpose of developing an "Initial Scheduling Order" to govern the conduct of this proceeding.
On or before Wednesday, January 7, 2009, counsel for each of the participants shall inform
Zachary Kahn, the Board's law clerk, via e-mail (Zachary.Kahn@nrc.gov) who will be participating in the call. They shall also advise him of the number of separate phone lines that
each party's representatives will be using to call in on.
All parties and other participants (Interested Governmental Bodies) should advise the Board no later than 5:00 PM EDT on January 7, 2008, of any issues they wish to discuss at the
prehearing conference. Pursuant to the accompanying Order issued today, 1 the parties shall provide the mandatory disclosures required under 10 C.F.R. § 2.336 as soon as possible. At 2 Motion Requesting Consideration of Additional Matters in Scheduling and Case Management Order (Sept. 10, 2008) [New York Motion].
3 Applicant's Answer to New York State Motion Requesting Consideration of Additional Matters in the Licensing Board's Forthcoming Scheduling and Case Management Order (Sept. 22, 2008) [Applicant's Answer]; NRC Staff's Response to the State of New York's "Motion
Requesting Consideration of Additional Matters in Scheduling and Case Management
Order"(Sept 22, 2008) [NRC Staff Answer].
4 Riverkeeper, Inc.'s Response in Support of New York State Motion Requesting Consideration of Additional Matters (Sept. 18, 2008) [Riverkeeper Response]; Town of
Cortlandt's Answer in Support of New York State's Motion Requesting Consideration of
Additional Matters in Scheduling and Case Management Order (Sept. 22, 2008) [Cortlandt
Response].
5 New York Motion at 3.
the prehearing conference, the parties shall be prepared to provide a progress report and a projected time table for providing the remaining disclosures required under 10 C.F.R. § 2.336.
The NRC Staff should be prepared to provide the most recent estimate of the dates for
completion of the Environmental Impact St atement ("EIS") and Safety Evaluation Report
("SER"). Second, the State of New York (New York) has asked the Board to consider various matters in a case scheduling and management order.
2 Entergy and the NRC Staff generally oppose New York's Motion 3 and Riverkeeper, Inc. (Riverkeeper) and the Town of Cortlandt (Cortlandt) support it.
4 Below we address these issues.
A. Site Visit New York asks the Board to schedule a site visit.
5 We deny this request and will not order a site visit at this time. At a later date, after the Board has had the opportunity to review
the EIS and the SER, the Board may sua sponte order a site visit in order to better understand the issues before us. Alternatively, after the Intervenors have received and reviewed the
mandatory discovery materials, and/or the EIS and SER, they may well be able to make a
compelling argument for a site visit (10 C.F.R. § 2.705), but they have not done so at this time. 6 Id at 3-4.7 Id at 5.B. Conference Regarding the Production of Electronically Stored Information New York requests that the Board address procedures for the production of electronically stored information (ESI) in a Case Management Order. Specifically, New York asks that we address: (1) the format and timing of disclosure of ESI including whether it will be provided in a searchable format; (2) how parti es will be given access to computer models; (3) whether paper production will accompany ES I; and (4) how oversized documents such as diagrams, photographs, and maps will be produced.
6 We believe that New York's proposal has merit. Accordingly we direct the parties to confer with each other, discuss matters relating to the production of ESI that were raised by
New York, and, if possible resolve these issues. To the extent that the parties cannot resolve
these matters, the Board will resolve them at the Section 2.332 scheduling conference to be
held on January 14, 2008.
Since New York is the moving party, we place the burden on New York to coordinate these discussions among the parties. If these matters are not resolved before our scheduling
conference, all parties should be prepared to fully discuss and resolve these issues at that time.
Accordingly, we do not anticipate an answer of "I don't know" to questions from the Board such
as - why, how, how many, or how long?
C. Deadline for Filing Section 2.335 Petitions New York has asked the Board to set a deadline for the submission of waiver petitions.
7 In support of the Motion, New York suggests that establishing a deadline "will add predictability 8 Id 9 Id at 6.to a process, which if not subjected to a deadline, could be disruptive to the orderly resolution of the issues in this preceding."
8 We disagree.
We believe that the waiver regulation does not set deadlines because it anticipates that the Board will use a rule of reason in considering such petitions. In determining whether such a
petition has been timely filed, this Board will consider the nature of the request, the materiality of
the issue that would be implicated by granting the waiver, the delay, if any, that would result if the petition was granted, and the time elapsed between when the petitioner learned of the
matters that give rise to the request and when the petition is filed.
We do not believe that it is appropriate to set such a deadline in a vacuum. Instead we believe that it more appropriate to advise the parties to file such petitions as soon as practicable
with the understanding that a failure to so may well result in the rejection of an otherwise
meritorious petition.
D. Advance and Timely Notification of Meetings and Communications Between Entergy and the NRC Staff New York next asks the Board to order the NRC Staff:
to provide notice of all future meetings and phone calls between Entergy and NRC Staff concerning the license renewal application and/or this administrative
proceeding sufficiently in advance to allow representatives of [New York] or other
parties or participants to attend the meetings or listen in on the phone
conversation.
9 We do not believe that we have the authority to grant the relief sought by New York and, even if the Board did have such authority, we do not believe that it would be appropriate.
As pointed out by the NRC Staff, granting New York's request would prevent the NRC Staff from communicating spontaneously with Entergy when, in completing its independent 10 NRC Staff Answer at 13.
11 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for
the State of Connecticut; (7)
Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Alfred J. Donahue, the Representative for the Village of Buchanan; and
(10) Counsel for the New York City Economic Development Corporation.
review function, the NRC Staff deems it necessary and appropriate to do so.
10 This would, in our view, retard the review process and limit the flow of relevant information to the appropriate reviewers. We are not predisposed toward that course. Accordingly, we deny New York's
request at this time but direct the NRC Staff to inform the Board at, or before, the scheduling
conference on January 14, 2009, of the procedures that it has in place to insure that the
substance of communications between the NRC Staff and Entergy is provided to all the parties
and the other participants in a complete and timely manner.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 11
Lawrence G. McDade, Chairman
ADMINISTRATIVE JUDGE Rockville, MD
December 18, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) )
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR
) 50-286-LR
) (Indian Point Nuclear Generating Station, )
Units 2 and 3) ) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (Scheduling Prehearing Conference and Ruling on New York State's Motion Requesting Consideration of Additional Matters) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001
U.S. Nuclear Regulatory Commission.
Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Washington, DC 20555-0001
Administrative Judge
Lawrence G. McDade, Chair Administrative Judge
Richard E. Wardwell
Administrative Judge Kaye D. Lathrop 190 Cedar Lane E.
Ridgway, CO 81432
Zachary S. Kahn, Law Clerk
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001
Sherwin E. Turk, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq. Jessica A. Bielecki, Esq.
Marcia J. Simon, Esq.
Karl Farrar, Esq.
Brian Newell, Paralegal
2 Docket Nos. 50-247-LR and 50-286-LR LB MEMORANDUM AND ORDER (Scheduling Prehearing Conference and Ruling on New York State's Motion Requesting Consideration of Additional Matters
William C. Dennis, Esq. Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601
Andrew M. Cuomo, Attorney General John J. Sipos, Assistant Attorney General Mylan L. Denerstein Deputy Assistant Attorney General Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol
State Street Albany, New York 12224
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. O'Neill, Esq.
Mauri T. Lemoncelli, Esq.
Counsel for Entergy Nuclear Operation, Inc.
1111 Pennsylvania Avenue, NW Washington, DC 20004 Joan Leary Matthews, Esq. Senior Attorney for Special Projects New York State Department of Environmental Conservation
625 Broadway, 14 th Floor Albany, New York 12233-5500
Michael J. Delaney Vice President, Energy Department New York City Economic Development
Corporation (NYCEDC) 110 William Street
New York, NY 10038 Robert D. Snook, Esq.
Office of The Attorney General State of Connecticut 55 Elm Street P.O. Box 120
Hartford, CT 06141-0120 Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508
New York, NY 10016
Stephen C. Filler, Board Member
Hudson River Sloop Clearwater, Inc. 303 South Broadway, Suite 222 Tarrytown, NY 10591
Docket Nos. 50-247-LR and 50-286-LR
LB MEMORANDUM AND ORDER (Scheduling Prehearing Conference and Ruling on New York State's Motion Requesting Consideration of Additional Matters 3 Daniel E O'Neill, Mayor James Siermarco, M.S.
Liaison to Indian Point Village of Buchanan
Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298
Manna Jo Greene, Environmental Director
Hudson River Sloop Clearwater
112 Little Markey Street
Poughkeepsie, NY 12601
Thomas F. Wood, Esq.
Town of Cortlandt
Daniel Riesel, Esq.
Jessica Steinberg, J.D. Counsel for the Town of Cortlandt Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022
Nancy Burton, Esq. Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP)
147 Cross Highway Redding Ridge, CT 06876 Elise N. Zoli, Esq.
Goodwin Proctor, LLP Exchange Place
53 State Street Boston, MA 02109
Justin D. Pruyne Assistant County Attorney, Litigation Bureau Of Counsel to Charlene M. Indelicato, Esq.
Westchester County Attorney
148 Martine Avenue, 6 th Floor White Plains, NY 10601 FUSE USA John LeKay Heather Ellsworth Burns-DeMelo Remy Chevalier
Bill Thomas
Belinda J. Jaques 351 Dyckman Street Peekskill, New York 10566 Westchester Citizens' Awareness Network (WestCan), Citizens Awareness Network, (CAN), etc.
Susan H. Shapiro, Esq.
21 Pearlman Drive Spring Valley, NY 10977
4 Docket Nos. 50-247-LR and 50-286-LR LB MEMORANDUM AND ORDER (Scheduling Prehearing Conference and Ruling on New York State's Motion Requesting Consideration of Additional Matters
Victor M. Tafur, Senior Attorney Philip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591
Richard L. Brodsky Assemblyman
5 West Main Street Suite 205 Elmsford, NY 10523
Diane Curran, Esq.
Counsel for Riverkeeper, Inc.
Harmon, Curran, Spielberg, & Eisenberg, LLP 1726 M. Street NW, Suite 600 Washington, DC 20036
Sarah L. Wagner, Esq.
Legislative Office Building, Room 422 Albany, NY 12248
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland
this 1 8th day of December, 2008