ML043640420
| ML043640420 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 12/21/2004 |
| From: | Karlin A Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| ASLBP No. 04-832-02-OLA, Docket No. 50-271-OLA, RAS 9025 | |
| Download: ML043640420 (7) | |
Text
RAS 9025 UNITED STATES OF AMERICA DOCKETED 12/21/04 NUCLEAR REGULATORY COMMISSION SERVED 12/21/04 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Alex S. Karlin, Chairman Dr. Anthony J. Baratta Lester S. Rubenstein In the Matter of Docket No. 50-271-OLA ENTERGY NUCLEAR VERMONT YANKEE L.L.C. ASLBP No. 04-832-02-OLA and ENTERGY NUCLEAR OPERATIONS, INC. December 21, 2004 (Vermont Yankee Nuclear Power Station)
ORDER (Denying Intervenors Motion for Procedural Protections Due to Unavailability of ADAMS)
Before the Board is a motion by the New England Coalition (NEC) seeking certain procedural protections in a proceeding related to the application of Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (collectively, Entergy), for an amendment to the operating license for the Vermont Yankee Nuclear Power Station in Windham County, Vermont. For the reasons stated below, we deny NECs motion.
On October 25, 2004, the NRC Staff (Staff) notified the Board that the Commission had blocked public access to the NRCs Agencywide Documents Access and Management System (ADAMS) in order to conduct a security review of all documents, including those related to this case.1 The following day, NEC filed a motion seeking procedural protections until public access to ADAMS is restored, claiming that the suspension of ADAMS prejudices NEC and 1
Letter from Brooke D. Poole, Counsel for NRC Staff, to Administrative Judges (Oct. 25, 2004), ADAMS Accession No. ML043010095.
denies NEC of meaningful participation in this proceeding.2 Specifically, NEC asks the Board to order: (1) Entergy to provide NEC with copies of all correspondence with the NRC related to all aspects of the EPU at Vermont Yankee; (2) the Staff to provide NEC with copies of all correspondence with Entergy related to all aspects of the EPU at Vermont Yankee; (3) Entergy to provide NEC with four complete sets of all non-confidential EPU application documents, supplements, and any other EPU related matter to NEC; (4) the Staff to provide NEC with a copy of all generic correspondence, reports, or announcements related to EPUs issues at all nuclear reactors; and (5) that all filing deadlines in the case be extended by thirty days from the date ADAMS is placed back on line. NEC Motion at 3-4.
Both Entergy and the Staff oppose NECs motion.3 Entergy asserts: (1) NEC failed to comply with 10 C.F.R. § 2.323(b), which requires a party to certify that it has consulted the other parties before filing a motion with the Board; (2) the remedies provided in the NRC contention regulation, 10 C.F.R. § 2.309(f), are sufficient; and (3) there is no legal basis for the relief NEC seeks. Entergy Answer at 4-6. The Staff makes similar arguments, pointing out that NEC did not comply with 10 C.F.R. § 2.323(b) and that 10 C.F.R. § 2.309 provides NEC with sufficient procedural protections. Staff Answer at 2-4. Additionally, the Staff asserts that NECs requests are unnecessary because NEC is already on the NRC distribution list for non-sensitive NRC/Entergy correspondence and overbroad because requiring all generic correspondence is more than 10 C.F.R. §§ 2.336 and 2.1203 require. Staff Answer at 2-3.
2 New England Coalitions Motion and Memorandum for Procedural Protections and Proposed Order (Oct. 26, 2004) at 1, 3 [hereinafter NEC Motion].
3 Entergys Answer to New England Coalitions Motion and Memorandum for Procedural Protections and Proposed Order (Nov. 5, 2004) [hereinafter Entergy Answer]; NRC Staff Answer to New England Coalitions Motion and Memorandum for Procedural Protections and Proposed Order (Nov. 5, 2004) [hereinafter Staff Answer].
Subsequent to the briefing on this motion several relevant events have occurred. First, the Board admitted two of NECs seven contentions. LBP-04-28, 60 NRC __ (Nov. 22, 2004).
Second, the Board found that Subpart L hearing procedures are most appropriate in this proceeding. LBP-04-31, 60 NRC __ (Dec. 16, 2004). Third, the public Citrix-based version of ADAMS Publicly Available Records System (PARS) was partially restored on December 7, 2004.4 NECs motion is denied for several reasons.
First, granting the motion is unnecessary because the Commissions regulations have procedural protections built in to deal with the unavailability of information. Should NEC determine that information that became available after October 25, 2004 could have provided the basis for filing additional contentions, NEC may be able to take advantage of 10 C.F.R. § 2.309(c) and (f). These provisions take into consideration the unavailability of information upon which a late, new, or amended contention may be based.
Second, the Board finds NECs motion substantially moot. The Boards order finding Subpart L procedures most appropriate for NECs two admitted contentions, LBP-04-31, 60 NRC __ (Dec. 16, 2004), triggers mandatory disclosures among the parties and requires the Staff to create a hearing file. See 10 C.F.R. §§ 2.336 and 2.1203. This will provide NEC with access to relevant materials. Under section 2.336, both Entergy and the Staff must make mandatory disclosures to NEC. Specifically, Entergy is required, within thirty days of the Boards LBP-04-31 order, to disclose and provide NEC with, among other items, a copy, or a description by category and location, of all documents and data compilations in the possession, custody, or control of the party that are relevant to the contentions. 10 C.F.R. § 2.336(a)(2)(I).
In addition, the Staff is required to provide NEC with the application, all NRC/Entergy 4
Letter from Brooke D. Poole, Counsel for NRC Staff, to Administrative Judges (Dec. 7, 2004), ADAMS Accession No. ML043430181.
communications related to the EPU, and all documents supporting the NRC Staffs review of the application. 10 C.F.R. § 2.336(b). Within those same thirty days, pursuant to section 2.1203, the Staff must create a hearing file which will consist of the application, application amendments, and relevant NRC/Entergy correspondence. The hearing file must be made available to the parties in this proceeding. Additionally, NEC should now be able to access the documents contained in the docket for this proceeding from PARS. Therefore, the Board finds it unnecessary to grant NECs motion because NEC will have access to the materials it is entitled to via the mandatory disclosures, the hearing file, and PARS.
Third, the Board denies the motion based on NECs failure to comply with 10 C.F.R. § 2.323(b). Under section 2.323(b), 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 movants efforts to resolve the issue(s) have been unsuccessful. This requirement is intended to avoid burdening the parties and the Board with motions that could have been resolved by discussion and negotiation among the parties. NEC did not attempt to contact the Staff or Entergy prior to filing this motion and the motion does not contain the necessary certification. Staff Answer at 2; Entergy Answer at 4. Because the certification requirement is new, see 69 Fed. Reg. 2,182, 2,244 (Jan. 14, 2004), the Board, in this instance, examined the merits of NECs motion despite its procedural defect. In the future, however, the Board will not hesitate to summarily deny any motion where the movant fails first to make a sincere effort to contact the other parties to resolve the issues, and to so certify in the motion.
Finally, regarding NECs request that all filing deadlines in the case be extended by thirty days from the date ADAMS is placed back online, the Board notes that if, at a future date, NEC is able to demonstrate that the unavailability of ADAMS actually disrupted its preparation
in this proceeding, the Board will take the ADAMS restrictions into consideration when entertaining a motion for an extension of time. Should NEC learn that the unavailability of relevant documents impeded its preparation, NEC should identify with specificity the relevant documents and the actual delays caused by unavailability.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD5
/RA/
Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 21, 2004 5
Copies of this order were sent this date by Internet e-mail transmission to counsel for (1) licensees Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc.; (2) intervenors Vermont Department of Public Service and New England Coalition of Brattleboro, Vermont; and (3) the Staff.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE L.L.C. ) Docket No. 50-271-OLA and ENTERGY NUCLEAR OPERATIONS, INC. )
)
Vermont Yankee Nuclear Power Station) )
)
(Operating License Amendment) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (DENYING INTERVENORS MOTION FOR PROCEDURAL PROTECTIONS DUE TO UNAVAILABILITY OF ADAMS) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Anthony J. Baratta Lester S. Rubenstein Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brooke D. Poole, Esq. Raymond Shadis Robert M. Weisman, Esq. New England Coalition Marisa C. Higgins, Esq. P.O. Box 98 Office of the General Counsel Edgecomb, ME 04556 Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
2 Docket No. 50-271-OLA LB ORDER (DENYING INTERVENORSS MOTION FOR PROCEDURAL PROTECTIONS DUE TO UNAVAILABILITY OF ADAMS)
John M. Fulton, Esq. Sarah Hofmann, Esq.
Assistant General Counsel Special Counsel Entergy Nuclear Operations, Inc. Department of Public Service 440 Hamilton Avenue 112 State Street - Drawer 20 White Plains, NY 10601 Montpelier, VT 05620-2601 Anthony Z. Roisman, Esq. Jay E. Silberg, Esq.
National Legal Scholars Law Firm Matias F. Travieso-Diaz, Esq.
84 East Thetford Rd. Douglas J. Rosinski, Esq.
Lyme, NH 03768 Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 Jonathan M. Block, Esq.
94 Main Street P.O. Box 566 Putney, VT 05346-0566
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 21st day of December 2004