ML050380536
| ML050380536 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 02/07/2005 |
| From: | Poole B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 9316 | |
| Download: ML050380536 (9) | |
Text
February 7, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE ) Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR )
OPERATIONS, INC. ) ASLBP No. 04-832-02-OLA
)
(Vermont Yankee Nuclear Power Station) )
NRC STAFF ANSWER TO NEW ENGLAND COALITIONS MOTION TO RECOGNIZE NEW ENGLAND COALITIONS INCORPORATION BY REFERENCE OF THE VERMONT DEPARTMENT OF PUBLIC SERVICE CONTENTIONS AND ITS RIGHT TO RECEIVE DISCOVERY DISCLOSURE FROM ENTERGY ON THE DPS CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the staff of the Nuclear Regulatory Commission (Staff) herein responds to the motion of the New England Coalition (NEC) to (1) recognize NECs incorporation by reference of the DPS contentions within NECs contentions and (2) direct applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.
(collectively, Entergy or Applicant) to produce to NEC the mandatory disclosures produced to intervenor Vermont Department of Public Service (DPS) pursuant to 10 C.F.R. § 2.336(a).1 For the reasons set forth below, to the extent that this is a motion to adopt DPSs admitted contentions, the Staff opposes the request as impermissibly late. However, the Staff does not oppose NECs request to receive all mandatory disclosures in this proceeding.
1 See New England Coalitions Motion to Recognize New England Coalitions Incorporation by Reference of the Vermont Department of Public Service [DPS] Contentions and Its Right to Receive Discovery Disclosure From Entergy on the DPS Contentions, dated January 25, 2005 (Motion).
BACKGROUND During a telephone conference in this proceeding on January 21, 2005, counsel for NEC requested that Entergy provide to it the mandatory disclosures pertinent to DPSs admitted contentions. (Tr. at 672-73.) Entergy stated that it had provided disclosures to each party for its contentions. (Id. at 673.) Licensing Board Chairman Karlin then directed that all parties give copies of their mandatory disclosures to all other parties. (Id.) In discussing this issue, a question arose as to whether NEC had, to date, moved to adopt DPSs contentions. The Licensing Board directed NEC to file the instant motion, which it did, on January 26, 2005.2 DISCUSSION A. Motion to Incorporate DPS Contentions by Reference In its Motion, NEC requests that the Licensing Board, pursuant to 10 C.F.R. § 2.319,3 recognize incorporation by reference of the DPS contentions within NECs contentions, to the extent that NECs earlier motion was not specifically recognized by the Board at the time recalled by the Board chair. Motion at 1-2.
The Staff has reviewed the record in this proceeding, including pleadings filed by NEC and its statements at the prehearing conference on October 21 and 22, 2004. The Staff has identified two instances in which NEC specifically incorporated the arguments of DPS. In particular, in its October 11, reply to the Applicants and the Staffs answers to its request for hearing, NEC stated:
New England Coalition incorporates by reference herein, to the extent they do not contradict the arguments advanced below, the legal and factual argument of the Vermont Department of Public Service [DEP]
2 Counsel for NEC sent an electronic mail message transmitting the Motion on January 25, 2005. However, that message did not attach the Motion. A corrected message, including the Motion, was transmitted on January 26, 2005. Pursuant to 10 C.F.R. § 2.305(e)(3),
the Staff considers service of the Motion to be complete on January 26, 2005.
3 Section 2.319 identifies the authority and powers of the presiding officer, and permits the presiding officer discretion to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order.
concerning the defects, inadequacies, and legal maneuvers of the attorneys for [Entergy] and the NRC Staff in their answers to DEP and, as herein incorporated, New England Coalition.4 In addition, at page 4 of its Reply, NEC states:
New England Coalition agrees with, and has incorporated by reference herein above, the DEPs position on Entergys attorneys employing rewriting contentions both to create straw-men to more easily dispose of than the substance of the actual contention and to ridicule New England Coalitions pro se representative for not letting them rewrite New England Coalitions contentions.
Neither of these discussions purports to incorporate by reference all or part of DPSs then-proposed contentions. Indeed, in its Motion, NEC does not cite to any location in the record in which it requested to adopt - or incorporate by reference - all or part of DPSs proffered contentions.
The rules are clear that if a petitioner wishes to participate with respect to another petitioners contention, it must adopt the contention pursuant to 10 C.F.R. § 2.309(f)(3). That section provides, in pertinent part:
If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petition, the requestor/petitioner who seeks to adopt the contention must either agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representative who shall have the authority to act for the requestors/petitioners with respect to that contention.
The rule expressly addresses adoption of contentions by a requestor/petitioner, thus requiring, by its terms, that a petitioner seeking to adopt contentions do so while the request for hearing and/or petition for leave to intervene is pending before the presiding officer. NEC plainly did not do this, 4
See New England Coalitions Reply to Applicant and NRC Staff Answers to New England Coalitions Request for Hearing, Demonstration of Standing, Discussion of Scope of Proceeding and Contentions, dated October 11, 2004, at 1 (Reply).
despite ample opportunity to do so.5 Rather, NEC appears to have stated its intention to adopt the contentions for the first time at the January 21, 2005 teleconference.
To raise the issue at this late date - more than four months after submission of the contentions in question - NRC case law dictates that NEC must satisfy the late-filing criteria in 10 C.F.R. § 2.309(c) in order to adopt the contentions.6 See Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 182 (1998) (denying an intervenors request to incorporate by reference other petitioners contentions where that request was submitted well after the deadline for filing contentions, and the intervenor did not address the late-filing factors); reconsideration granted in part and denied in part on other grounds, LBP-98-10, 47 NRC 288, affd on other grounds, CLI-98-13, 48 NRC 26 (1998). Cf. Houston Lighting &
Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 381-383 (1985); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-99-6, 49 NRC 114 (1999);
Gulf States Utils. Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 795-98 (1977)
(cases applying the late-filing factors where a petitioner or party sought to adopt the contentions of an intervenor withdrawing from a proceeding).
NEC has not done so here. Its failure to address the late-filing standards precludes further consideration of the issue. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),
LBP-00-12, 51 NRC 247, 280-81 (2000), affd, CLI-01-11, 53 NRC 370, 391-92 (2001);
5 The statements of consideration for Section 2.309(f)(3) suggest that the Commission might have intended the rule to apply to adoption of admitted contentions, as well. See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 col. 3 (January 14, 2004) (One commenter suggested that the Commission adopt a new § 2.309(f)(3) to specify, where a petitioner adopts an admitted contention of another party, that the presiding officer or Licensing Board must require one of the petitioners to act as lead. The Commission agrees that a new § 2.309(f)(3) should be adopted to include such a requirement . . .) (Emphasis added.) In the final rule, the Commission nonetheless provided only that a requestor or petitioner may so adopt anothers contention.
6 Because the contentions are not newly advanced, the Staff does not believe that the late-filing provisions of 10 C.F.R. § 2.309(f)(2) would apply.
Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 465-68 (1985). For this reason, its Motion should be denied.
Even considering the late-filing factors, it does not appear to the Staff that NEC should be permitted to adopt the DPS contentions at this late date. Under Section 2.309(c), the following factors must be considered:
(i) good cause, if any, for the failure to file on time; (ii) the nature of the requestors/petitioners right under the Atomic Energy Act to be made a party to the proceeding; (iii) the nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; (iv) the possible effect of any order that may be entered in the proceeding on the requestors/petitioners interest; (v) the availability of other means whereby the requestors/petitioners interests will be protected; (vi) the extent to which the requestors/petitioners interests will be represented by existing parties; (vii) the extent to which the requestors/petitioners participation will broaden the issues or delay the proceeding; and (viii) the extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record.
The good cause factor is accorded the most weight when considering the late-filing factors. See State of New Jersey (Department of Law & Public Safety), CLI-93-25, 38 NRC 289, 296 (1993).
NEC had ample opportunity to adopt the DPS contentions in a timely fashion - indeed, NECs proposed Contention 6 raised similar issues to admitted DPS Contentions 1 and 2 - and NEC did incorporate certain of the legal and factual arguments set forth in DPSs request for hearing. Had NEC sought to adopt the contentions, it should have done so at that time. The Staff has not identified any reason for NECs lateness - let alone one establishing good cause for not filing an earlier request.
Where no showing of good cause for lateness is tendered, petitioners demonstration on the other factors must be particularly strong. Texas Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 73 (1992) (quoting Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), ALAB-431, 6 NRC 460, 462 (1977)). The Staff has weighed these additional factors and concludes that such a balancing does not support justification of late filing, even though some factors would weigh in NECs favor. Because NEC is already a party to the proceeding, factors (ii), (iii) and (iv) weigh in NECs favor. Factor (v) also weighs in favor of NEC, as no other participant is representing NECs interests in this proceeding. Factor (vii) also weighs in favor of NEC, as the contentions in question are already admitted. Additional participation with respect to those contentions would not be expected to broaden the issues or delay the proceeding.
However, factor (vi) weighs against NEC. Although, as noted above with respect to factor (v), DPS and NEC do not necessarily share a common interest in this proceeding, it is expected that DPS will fully litigate its admitted contentions, and that all safety issues associated with those contentions will be resolved in this proceeding irrespective of NECs participation on those contentions. Moreover, factor (viii) also weighs against NEC, as it is not clear how NEC will assist in developing a sound record on the DPS contentions. On balance, the Staff does not find that the seven additional factors weigh particularly strongly in favor of NEC.
For all of these reasons, NECs request to incorporate by reference the DPS contentions should be denied.
B. Request to Receive Mandatory Disclosures as of Right In its Motion, NEC also requests that the Licensing Board direct Entergy to produce to NEC the mandatory disclosures produced to DPS pursuant to 10 C.F.R. § 2.336(a). In the absence of adoption, an intervenor does not ordinarily participate in a proceeding with respect to contentions it does not sponsor. As such, it is not at all clear that NEC would, as it claims, have a right to receive the mandatory disclosures produced with respect to DPSs contentions. However, in view
of the Licensing Boards direction that all parties produce their mandatory disclosures to all other parties,7 the Staff does not oppose NECs request to receive Entergys mandatory disclosures to DPS in this instance.
CONCLUSION For the reasons set forth above, the Staff submits that NEC has not demonstrated that it should be permitted to adopt DPSs admitted contentions in this proceeding. However, the Staff does not object to NEC receiving the mandatory disclosures relevant to the contentions sponsored by DPS.
Respectfully submitted,
/RA/
Brooke D. Poole Counsel for NRC Staff Dated in Rockville, Maryland this 7th day of February 2005 7
(Tr. at 673.) It should be noted that all parties receive identical mandatory disclosures from the Staff. The rules governing the Staffs hearing file and mandatory disclosures require production of materials associated with the application, rather than with the contentions. Compare 10 C.F.R. § 2.336(b); 2.1203 with 10 C.F.R. § 2.336(a).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE ) Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR )
OPERATIONS, INC. ) ASLBP No. 04-832-02-OLA
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF ANSWER TO NEW ENGLAND COALITIONS MOTION TO RECOGNIZE NEW ENGLAND COALITIONS INCORPORATION BY REFERENCE OF THE VERMONT DEPARTMENT OF PUBLIC SERVICE CONTENTIONS AND ITS RIGHT TO RECEIVE DISCOVERY DISCLOSURE FROM ENTERGY ON THE DPS CONTENTIONS in the captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commissions internal mail system; and by e-mail as indicated by a double asterisk
(**), this 7th day of February, 2005.
Alex S. Karlin, Chair** Dr. Anthony J. Baratta**
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: ajb5@nrc.gov Lester S. Rubenstein** Office of the Secretary**
Administrative Judge ATTN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 4270 E Country Villa Drive U.S. Nuclear Regulatory Commission Tucson, AZ 85718 Washington, DC 20555-0001 E-mail: lesrrr@comcast.net E-mail: HEARINGDOCKET@nrc.gov Office of Commission Appellate John M. Fulton, Esq.
Adjudication* Assistant General Counsel Mail Stop: O-16C1 Entergy Nuclear Operations, Inc.
U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Washington, DC 20555-0001 White Plains, NY 10601
Jay E. Silberg, Esq.** Sarah Hofmann, Esq.**
Matias Travieso-Diaz, Esq.** Special Counsel Douglas Rosinski, Esq.** Department of Public Service Shaw Pittman, LLP 112 State Street - Drawer 20 2300 N St., NW Montpelier, VT 05620-2601 Washington, DC 20037-1128 E-mail: sarah.hofmann@state.vt.us E-mail: jay.silberg@shawpittman.com matias.travieso-diaz@shawpittman.com douglas.rosinski@shawpittman.com Anthony Z. Roisman, Esq.** Raymond Shadis**
National Legal Scholars Law Firm Staff Technical Advisor 84 East Thetford Rd. New England Coalition Lyme, NH 03768 P.O. Box 98 E-mail: aroisman@valley.net Edgecomb, ME 04556 E-mail: shadis@prexar.com shadis@ime.net Jonathan M. Block, Esq.**
94 Main Street P.O. Box 566 Putney, VT 05346-0566 E-mail: jonb@sover.net Respectfully submitted,
/RA/
Robert M. Weisman Counsel for NRC Staff