ML043200379
| ML043200379 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 11/05/2004 |
| From: | Silberg J Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, ShawPittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 8813 | |
| Download: ML043200379 (9) | |
Text
RAS 8 613 November 5, 2004 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC November 5, 2004 (1 :49PM)
Before the Atomic Safety and Licensing Board OFFICE OF SECRETARY RULEMAKINGS AND
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ADJUDICATIONS STAFF In the Matter of
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Docket No. 50-271 ENTERGY NUCLEAR VERMONT
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YANKEE, LLC and ENTERGY
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ASLBP No. 04-832-02-OLA NUCLEAR OPERATIONS, INC.
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(Operating License Amendment)
(Vermont Yankee Nuclear Power Station)
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ENTERGY'S ANSWE R TO NEW ENGLAND COALITION'S MIOTION AND MEMORANDUM FOR PROCEDURAL PROTECTIONS AND PROPOSED ORDER Pursuant to 10 C.F.R. § 2.323(c), Applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively "Entergy") submit hereby their answer in opposition to Newv England Coalition's ("NEC") motion for "procedural protections" in this proceeding.' As further discussed below, the Atomic Safety and Licensing Board ("Board")
should deny the NEC Motion because the Motion: (1) was filed without complying with the provisions of 10 C.F.R. § 2.323(b), which require consultation with other parties in an attempt to resolve the issue that is the subject of a motion before filing it; (2) seeks relief that is unnecessary in light of the protections already afforded by Commission regulations and practice; and (3) is without substantive legal support.
I.
PROCEDURAL BACKGROUND Entergy filed a license amendment application to increase the authorized power level of the Vermnont Yankee Nuclear Power Station ("VY") from 1593 megawatts thermal ("MWt") to "New England Coalition's Motion and Memorandum For Procedural Protections and Proposed Order" (Oct. 26, 2004) ("NEC Motion").
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1912 MWt on September 10, 2003.2 On February 20, 2004, the Nuclear Regulatory Commission
("NRC") Staff determined that Entergy had provided the information necessary for review of the license amendment request.
A Notice of Consideration of Issuance of Amendment to Facility Operating License and Opportunity for a Hearing was published in the Federal Register on July 1, 2004.3 On August 30, 2004, NEC gave notice of its intention to participate in this proceeding by filing a petition to intervene and raising seven proposed contentions. 4 The Board conducted a pre-hearing conference regarding, inter alia, the admissibility of the proposed NEC contentions on October 21 and 22, 2004.
On October 25, 2004, the NRC blocked public access through the Agencywide Document and Access Management System ("ADAMS") to all NRC-and licensee-generated documents relating to this and other proceedings. The purpose of the NRC action is to review all documents in ADAMS and remove sensitive unclassified information, It appears that the blocking of access to licensing documents in ADAMS is only temporary and the block will be removed soon with respect to documents in active licensing dockets such as those for the VY uprate proceeding.
2 Letter from J. Thayer to U.S.N.R.C., "Vermont Yankee Nuclear Power Station License No. DPR-28 (Docket No. 50-271) Technical Specification Proposed Change No. 263 Extended PowerUprate" (Sep. 10,2003)
("Application").
3 69 Fed. Reg. 39,976 (2004).
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"[NEC] 's Request for Hearing, Demonstration of Standing, Discussion of Scope of Proceeding and Contentions" (Aug. 30,2004) ('Tetition'`.
5 See letter from NRC Staff Counsel to the Board dated October 25, 2004.
6 A November 4,2004 issue of NRC News (No.04-140, available online at http /wvwvxv.nrc.gov/readin,-rmfdoc-collections/newvs/2004/04-140.html) announces that the agency has already started restoring public access to the documents in ADAMS that were removed from access on October 25. The first documents for which access has been restored are those in the Staff's electronic Licensing Support Network for a possible application for a high-level waste repository. The announcement goes on to state that "[tlhe agency expects to restore the remaining documents, in the following priority order, over the next few weeks:
Additional hearing-related documents (i.e., non-high-level waste)
Time-sensitive documents related to opportunities for hearing or needed for public reviews and comments, including license amendment applications Footnote continued on next page 2
On October 26, 2004, NEC filed this motion. In it, NEC broadly seeks that (1) ENVY/ENTERGY, applicant in this case, shall forthwith copy to NEC all correspondence with NRC related to all aspects of the EPU application; (2) NRC Staff shall forthwith copy to NEC all correspondence with ENVY/ENTERGY related to all aspects of the EPU at Vermont Yankee, including the Engineering Inspection; (3) ENVY/ENTERGY shall forthwith provide four complete sets of all non-confidential EPU application documents, supplements and any other EPU related matter to NEC as following: one set to NEC Technical Advisor Raymond Shadis, one set to NEC attorney Jonathan M. Block, and two set to the NEC office (for use by NEC's experts); (4) NRC Staff shall forthwith copy to NEC any and all generic correspondence, reports, or announcements related to EPUs issues at all nuclear reactors; (5) that all filing deadlines in the case will be extended by thirty (30) days from the date ADAMS is placed back on line to allow for researching it to be sure that all application related material has been provided to NEC and allow time for requesting any material that was not provided under the other terms of this order."
I NEC Motion at 4-5.
II.
DISCUSSION Entergy opposes the NEC Motion. First, NEC has failed to comply with the requirement in the Rules of Practice that it consult with the other parties in an attempt to resolve the issue that is the subject of the motion before filing it. Second, adequate remedy for the unavailability of information in ADAMS is already available in the Commission rules and practices applicable to this proceeding. Finally, the relief NEC seeks is without legal basis. Each of these reasons for denying the Motion is discussed in detail below.
Footnote continued from previous page Other nuclear reactor documents, and other documents not related to specific facilities, in ADAMS.
It appears, therefore, that NEC's Motion may soon become moot by the restoration of public access to the documents in ADAMS that relate to the VY license amendment application.
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A.
NEC Has Failed to Comply with the Essential Prerequisite of Consulting with the Other Parties Prior to Filing its Motion Section 2.323(b) of the NRC Rules of Practice states in relevant part:
A motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movant's efforts to resolve the issue(s) have been unsuccessful.
10 C.F.R. § 2.323(b), emphasis added.
This provision, which codifies long-standing practice in NRC licensing proceedings, see, e.g., Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 245 (1998), is clearly intended to prevent raising before the Board disputed matters that could have been resolved by negotiation among the parties. NEC failed to meet this requirement, for it filed its Motion without first consulting with counsel for Applicants and (to the best of our knowledge) the NRC Staff in an effort to resolve the issues raised by NEC's motion.7 NEC has thus failed to explore the possibility of resolving the temporary gap in the availability of documents through ADAMS and has burdened the Board with a potentially unnecessary motion. Accordingly, as the rule dictates, the NEC Motion "must be rejected".
B.
The Remedies Provided by NRC Regulations and Practice are Sufficient No action is necessary by the Board to ensure that NEC has a fair opportunity to obtain and consider any relevant information submitted on the VY extended power uprate ("EPU")
docket after October 25, 2004.8 If, at a future date, NEC determines that information generated 7
NEC also failed to comply with the requirements of 10 C.F.R. § 2.323(b) in connection with NEC's "Motion to Dismiss Proceeding Due to Failure to Provide Proper Notice," dated October 20, 2004 (currently pending before the Board).
8 NEC is clearly not entitled to relief with respect to information that was available in ADAMS prior to October 25, 2004. NEC had unrestricted access to the Application and related information for approximately a year (i.e.,
from shortly after September 10, 2003, until October 25, 2004). NEC had an ironclad obligation to review this information before submitting its proposed contentions. 54 Fed. Reg. 33,170, 33,170 (1989) (quoting Duke Power Co. (Catawba Nuclear Station, Units I & 2), ALAB-687, 16 NRC 460,468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041(1983)). NEC should therefore have no need for pre-October 25 Footnote continued on next page 4
after October 25, 2004 could have provided the basis for the filing of additional contentions, it will be able to take advantage of Commission regulations that authorize filing proposed additional or amended contentions based on new or previously unavailable information. 10 C.F.R. § 2.309(f)(2); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation),
LBP-01-39, 54 NRC 497, 517-521 (2001) (admitting late-filed contention based on "Applicant's having revised its calculations"); Consmaners Power Co. (Midland Plant, Units I and 2), LBP 63, 16 NRC 571, 577 (1982); Indiana Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units I and 2), CLI-72-75, 5 AEC 13, 14 (1972); Cincinnati Gas and Electric Co. (William H.
Zimmer Nuclear Station), LBP-80-14, 11 NRC 570, 574 (1980). Likewise, good cause for filing new contentions has been found based on "the late date on which the Staff provided the intervenors with needed documents." Carolina Powter & Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-19, 52 NRC 85, 92 (2000). Thus, Commission regulations already assure NEC the opportunity to propose new or amended contentions if the availability of relevant information is delayed by the current access restrictions. The Board has no need to grant additional relief beyond that provided by the Commission's rules.
C.
There is no Legal Basis for the Relief that NEC Seeks There is no legal basis for the relief NEC seeks. Notwithstanding NEC's vague references to 42 U.S.C. § 2239, 10 C.F.R. Part 2, and the "Administrative Procedure Act, as applied to all NRC proceedings" (see NEC Motion at 3), there is no statutory or regulatory basis for requiring Entergy to "forthwith copy" all of "its correspondence with NRC" and "complete sets of all non-confidential EPU application documents" and provide those materials to NEC.
Likewise, there is no legal basis for requiring the NRC Staff to "forthwith provide" to NEC Footnote continued from previous page information at this time and has provided no explanation why it would require such information in order to support its "meaningful participation" in this proceeding.
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copies of its correspondence with Applicants and of "any and all generic correspondence, reports, or announcements related to EPUs [sic] issues at all nuclear reactors." In reality, the only documents and other materials to which NEC would be entitled under the NRC regulations would be those relating to any NEC contentions that the Board finds admissible. See 10 C.F.R. § 2.336(a)(2). Since no NEC contentions have been admitted so far, provision of those documents and other materials is not required at this time.
There is even less basis for NEC's request "that all filing deadlines" in the proceeding "be extended by thirty (30) days from the date ADAMS is placed back on line." NEC Motion at
- 5. There is no pending "filing deadline" and there will not be any until the Board issues its rulings on the admissibility of the pending contentions. See 10 C.F.R. § 2.309(i). In the event the Board finds any of the contentions proposed by NEC admissible, the next "deadline" is the obligation of each party to disclose to the other parties relevant documents and other information "in the possession, custody, or control of the party." See 10 C.F.R. § 2.336(a)(2)(i). The disclosures are to be "based on the information and documentation then reasonably available to it." Id. § 2.336(c). The current unavailability of ADAMS is irrelevant to these obligations.
- Further, The duty of disclosure under [10 C.F.R. § 2.336] is continuing, and any information or documents that are subsequently developed or obtained must be disclosed within fourteen (14) days.
Id. § 2.336(d). Thus, the discovery rules already account for late or subsequently obtained documents and informnation, and the deadline for the required disclosures would not need to be extended to assure that these materials are provided.
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In short, there is no basis under the Rules of Practice for imposing an indefinite delay of all filing deadlines, particularly when the extent of the delay period is vague, unspecified and unrelated to this proceeding.9 III.
CONCLUSION For the reasons stated above, the NEC Motion should be denied.
Respectfully submitted, fEB Silberg{
rvati/SF. Travieso-DiazJ Douglas J. Rosinski SHAW PITTMAN LLP 2300 N Street, N.W.
Washington, DC 20037-1128 Tel. (202) 663-8063 Counsel for Entergy Nuclear Vermnont Yankee, LLC and Entergy Nuclear Operations, Inc.
Dated: November 5, 2004 9
In addition to failing to provide a basis for imposing a filing delay, NEC has also failed to address how it would be determined when "ADAMS is placed back on line," or why it would not be sufficient for NEC to obtain copies of or access to all documents and information on the VY EPU docket generated after October 25, 2004.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ENTERGY NUCLEAR VERMONT YANKEE, LLC and ENTERGY NUCLEAR OPERATIONS, INC.
(Vermont Yankee Nuclear Power Station)
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Docket No. 50-271 ASLBP No. 04-832-02-OLA (Operating License Amendment)
CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy's Answer to New England Coalition's Motion and Memorandum For Procedural Protections and Proposed Order" were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 5th day of November, 2004.
- Administrative Judge Alex S. Karlin, Chair Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ask2nanrc.gov
- Administrative Judge Dr. Anthoy J. Baratta Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 aib5(anrc.pov
- Administrative Judge Lester S. Rubenstein Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 lesrrrarmsn.com Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
- Secretary Att'n: Rulemakings and Adjudications Staff Mail Stop 0-16 C I U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 secy(nrc.gov, hearingdocket(nrc.ov Office of Commission Appellate Adjudication Mail Stop 0-16 C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001
- Sarah Hofmann Special Counsel Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 Sarah.Hofmannelstate.vt.us
- Anthony Z. Roisman National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 aroismani),vallev.net
- Brooke Poole, Esq.
- Robert Weisman, Esq.
- Marisa Higgins, Esq.
Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 bdp(inrc.gov, yvfgnrc.gov mch5!anrc.gov
- Jonathan M. Block 94 Main Street P.O. Box 566 Putney, VT 05346-0566 ionbniasover.net
- Raymond Shadis New England Coalition P.O. Box 98 Shadis Road Edgeccmb ME 04556 shadise.prexar.com Matias F. Travieso-Diaz 2