ML050470487
| ML050470487 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 02/16/2005 |
| From: | Karlin A Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 9366 | |
| Download: ML050470487 (8) | |
Text
1 Entergys Response to New England Coalitions Motion to Recognize Incorporation by Reference of the DPS Contentions and NECs Right to Receive Discovery on DPS Contentions (Feb. 4, 2005) [Entergy Answer].
2 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 (Feb. 7, 2005) [Staff Answer].
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED 02/16/05 RAS 9366 SERVED 02/16/05 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Alex S. Karlin, Chairman Dr. Anthony J. Baratta Lester S. Rubenstein In the Matter of ENTERGY NUCLEAR VERMONT YANKEE L.L.C.
and ENTERGY NUCLEAR OPERATIONS, INC.
(Vermont Yankee Nuclear Power Station)
Docket No. 50-271-OLA ASLBP No. 04-832-02-OLA February 16, 2005 MEMORANDUM AND ORDER (Denying Incorporation by Reference and Additional Discovery Disclosure)
On January 26, 2005, the New England Coalition (NEC) filed a 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 (NEC Motion). Entergy filed its answer on February 4, 2005 opposing the motion.1 The NRC Staff filed its answer on February 7, 2005 opposing NECs motion to adopt the States contentions but not opposing NECs request to receive the mandatory disclosures in this proceeding.2 For the reasons set forth below, the motion is DENIED.
3 At most, at one point NEC incorporated certain legal arguments that had been made by the State. 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 (Oct. 11, 2004) at 1 and 5.
I. Background During a January 21, 2005 pre-hearing telephone conference in this proceeding, intervenor NEC requested that Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations Inc. (collectively, Entergy) provide NEC with a copy of the documents that Entergy was disclosing, pursuant to 10 C.F.R. § 2.336(a)(2), to the other intervenor herein, the Department of Public Service of the State of Vermont (State). Tr. at 672-73. The Board chairman stated that he recollected that NEC had already asked to adopt the States contentions and, on this basis, initially indicated such documents should be provided to NEC.
Id. at 673. However, the Board directed NECs counsel to determine whether NEC had in fact previously sought to incorporate or adopt the States contentions, id., and, if that was NECs intent, to file a written motion to that effect. Id. at 675. Accordingly, NEC filed the instant motion.
Upon review of the record, it is clear that prior to January 26, 2005, NEC never sought to incorporate or adopt the contentions filed by the State. As Entergy and the Staff point out, there is nothing in the prior pleadings or transcripts of this proceeding whereby NEC indicated any intent to adopt or incorporate the States contentions. Entergy Answer at 2-3; Staff Answer at 2-3.3 II. Analysis A.
Incorporation by Reference The Board treats NECs request to allow NEC to incorporate the States contentions by reference as a motion to adopt the States contentions and, for the reasons set forth below, denies it. First, the basic premise of the NEC Motion, i.e., that NEC had previously sought to adopt or incorporate the States contentions, is factually incorrect.
Second, the motion is denied because it is untimely under 10 C.F.R. § 2.323(a), which requires that motions be made no later than 10 days after the occurrence or circumstance from which the motion arises. Under this rule, the motion to adopt the States contentions should have been filed within 10 days of August 30, 2004, the date the State filed its contentions, or, at the latest, within 10 days of November 22, 2004, the date the Board admitted the States contentions. NEC makes no effort to explain its delay. Entergy asserts that an untimely motion to adopt another partys contention must address the same balancing factors that apply to untimely contentions under 10 C.F.R. § 2.309(c), citing Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-799, 21 NRC 360, 381-82 (1985) and Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-99-6, 49 NRC 114, 118 (1999).
Without deciding the validity of this legal proposition, the Board concludes that NECs failure to even attempt to explain the delay is fatal.
Third, NECs motion is rejected because it fails to comply with 10 C.F.R. § 2.309(f)(3),
which states:
If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petitioner, 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.
As required by this rule, NEC should have consulted with the State and advised the Board regarding (a) whether the State concurred in the motion, and (b) who would serve as the lead on the States contentions. NEC ignored these requirements.
B.
Document Disclosure We now turn to NECs request that Entergy be compelled to provide it with a copy of the documents Entergy is disclosing to the State pursuant to 10 C.F.R. § 2.336(a)(2). NEC 4 The regulation was issued in 2004. See 69 Fed. Reg. 2182 (Jan. 14, 2004) provides no legal argument or support for this portion of its motion. Instead, NEC relies solely on the assumption that if it adopts the States contentions, then it is entitled to receive the same documents that Entergy disclosed to the State. The abstract logic is valid, but since NEC was denied the right to adopt the States contentions, NECs argument fails.
Meanwhile, Entergy presents slightly different argument, i.e., that absent NECs adoption of [the States] contentions, NRC case law establishes that NEC is not entitled to such discovery. Entergy Answer at 7. In essence, Entergy is arguing that contention adoption is the only grounds for allowing NEC to obtain copies of documents relevant to the States contentions. The only support that Entergy cites for this proposition is Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), Licensing Board Memorandum and Order (Denying Motion to Compel) (Dec. 3, 1999) (unpublished).
Private Fuel Storage was decided long before 10 C.F.R. § 2.336 was promulgated 4 and we find it neither persuasive nor controlling in this case. In Private Fuel Storage, the Board denied an intervenors motion to compel responses to two interrogatories and six document requests stating in the context of this multi-party proceeding in which there are contention-related limitations on the number and timing of discovery requests, we see no basis for allowing a party to engage in discovery unless its request has some relevance to admitted contentions it sponsored or adopted. Private Fuel Storage at 2-3 n.1. But Private Fuel Storage never states the broad proposition that contention adoption is the necessary prerequisite to document discovery. Further, Private Fuel Storage was decided on practical considerations that distinguish it from the present case. In Private Fuel Storage, the intervenor sought discovery on financial and organizational matters totally unrelated to its sole contention, which dealt with environmental justice. Here, the contentions of NEC and the State are on technical and safety issues that are reasonably related. Also, in Private Fuel Storage, the intervenor sought active discovery (interrogatories and document production) that would have imposed additional burdens on the responding party. In the instant case, there would be virtually no burden in requiring Entergy to make an extra electronic copy of the documents it is already providing to the State. In addition, Private Fuel Storage involved Subpart G discovery procedures, with the prospect that the inquisitive intervenor, having once obtained the relevant documents, might seek additional discovery or depositions thereon. Here, there is no further discovery allowed, see 10 C.F.R. § 2.336(f). Based on this limited precedent, we are not prepared to accept Entergys broad assertion that contention adoption is the only possible basis for allowing NEC to obtain copies of the documents Entergy is disclosing to the State pursuant to 10 C.F.R. § 2.336.
Nevertheless, the Board concludes that NEC has failed to establish either (a) that it is legally entitled to receive copies of the documents that are relevant to the States contentions and that Entergy is disclosing to the State, or (b) that there are any special circumstances that warrant an order from the Board requiring Entergy to provide the documents to NEC. The regulation requires that Entergy provide NEC with access to all documents (other than privileged or protected status documents) that are relevant to NECs contentions. 10 C.F.R. § 2.336(a)(2). This includes documents that are also relevant to the States contentions, but it does not include those that are not relevant NECs contentions. We see no reason why NEC needs more.
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.
III. Conclusion For the foregoing reasons, the Board denies NECs motion.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD5
/RA/
Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE
/RA/
Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE
/RA/
Lester S. Rubenstein ADMINISTRATIVE JUDGE Rockville, Maryland February 16, 2005
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 MEMORANDUM AND ORDER (DENYING INCORPORATION BY REFERENCE AND ADDITIONAL DISCOVERY DISCLOSURE) 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 Administrative Judge Alex S. Karlin, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Lester S. Rubenstein 4270 E Country Villa Drive Tucson, AZ 85718 Brooke D. Poole, Esq.
Robert M. Weisman, Esq.
Marisa C. Higgins, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Raymond Shadis New England Coalition P.O. Box 98 Edgecomb, ME 04556
2 Docket No. 50-271-OLA LB MEMORANDUM AND ORDER (DENYING INCORPORATION BY REFERENCE AND ADDITIONAL DISCOVERY DISCLOSURE)
John M. Fulton, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Sarah Hofmann, Esq.
Special Counsel Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 Anthony Z. Roisman, Esq.
National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 Jay E. Silberg, Esq.
Matias F. Travieso-Diaz, Esq.
Douglas J. Rosinski, Esq.
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 Jonathan M. Rund, Esq.
Chris Wachter Law Clerks Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 16th day of February 2005