ML050550365
| ML050550365 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 02/18/2005 |
| From: | Block J New England Coalition |
| To: | Anthony Baratta, Karlin A, Rubenstein L Atomic Safety and Licensing Board Panel |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 9415 | |
| Download: ML050550365 (14) | |
Text
...
FRn5 9415 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board Alex S. Karlin, Chairman Dr. Anthony J. Baratta Lester S. Rubenstein DOCKETED USNRC February 18, 2005 (4:48pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the.Alauer of ENTERGY NUCLEAR VERMONT YANKEE LL.C.
and ENTERGY NUCLEAR OPERATIONS, INC.
(Vermont Yankee Nuclear Power Station)
Docket No. 50-271-OLA ASLBP No. 04-832-02-OLA February 18, 2005 NEW ENGLAND COALITION'S OPPOSITION TO ENTERGY'S MOTION FOR RECONSIDERATION OF INITIAL SCHEDULING ORDER, OR IN THE ALTERNATIVE, FOR CERTIFICATION I.
INTRODUCTION New England Coalition, pursuant to 10 C.F.R. §2.323(e), files this opposition to Entergy's Motion for Reconsideration ("Entergy's Motion') of the Atomic Safety and Licensing Board ("the Board") Initial Scheduling Order (February 1, 2005) ("Initial Scheduling Order'), and requests the Board to deny Entergy's Motion.
The Initial Scheduling Order established, in pertinent part, deadlines for parties to file motions requesting a subpart G-type proceeding based on credibility of witnesses. Entergy's Motion should be denied because the Initial Scheduling Order is consistent with the NRC's rules and Entergy's Motion is untimely. Moreover, as Entergy's Motion presents neither a novel issue nor one where resolution would materially advance the orderly disposition of this proceeding, the Board should deny Entergy's request to certify the issue to the Commission for review.
enpk
-sac-01 SECY - 0
II.
MEMORANDUM OF FACTS AND LAW Entergy requests that the Board reconsider a portion of its February 1, 2005 Initial Scheduling Order dealing with deadlines for motions to request a subpart G proceeding. The pertinent part of the Board's order states:
- 2.
Any request, pursuant to 10 C.F.R. §2.310(d), that is based on a challenge to the credibility of an eyewitness, that a contention or contested matter be handled pursuant to Subpart G procedures, shall be filed as follows:
- a. For witnesses previously listed or identified by a party pursuant to 10 C.F.R. §2.336, within 30 days of the issuance of this order; and
- b. For additional witnesses subsequently listed or identified by a party, within 20 days of such listing or within 10 days after service of the final witness list specified in paragraph 5 below, whichever is earlier.
Initial Scheduling Order at 2. The Board's decision of the appropriate procedures to govern this case occurred on December 16, 2004.
Entergy now uses the instant motion and request for certification to challenge that decision. The time has long passed for filing such a motion and request for certification. 10 C.F.R. §2.323(e).
A.
MOTION FOR RECONSIDERATION The NRC held a preheating conference in Brattleboro, Vermont, October 21-22, 2004, on the admissibility of submitted contentions and related matters. The Board issued an Order selecting the type of hearing procedures governing this case on December 16, 2004 ("Order Selecting Hearing Procedures'). In its decision, the Board concluded that Subpart L procedures would govern, "at this point." Order Selecting Hearing Procedures at 18. The Board vent on to explain that "at some later stage in this proceeding (eg., when the identity of witnesses is known)" a party could submit a motion pursuant to 10 C.F.R. §2.310(d) arguing that the credibility of an eyewitness is at issue. Id.
As a result, the Board decided that it "may revisit the matter" of whether Subpart G procedures are necessary to resolve witness credibility issues. Id.
2
Approximately one month later the parties discussed the type of hearing procedures selected and the deadlines for any challenges to this determination. Preheating Conference Call Transcript at 577-608 January 21, 2005) ("Scheduling Telcon tr."). The Board asked the parties their opinions on the appropriate deadlines for a final witness list and a final timeframe for requesting a subpart G hearing on a contention. Scheduling Telcon tr. at 592. The Board asked, "When is the deadline we should set for when the last person can ask for subpart G proceedings?" Id. at 593.
Significantly, the Department of Public Service ("DPS'), the New England Coalition and the NRC Staff agreed that there should be a short time period between filing a disclosure of the final list of witnesses and motions requesting a subpart G hearing based upon that disclosure. Scheduling Telcon. tr. at 604-606.
The Board, accordingly, determined that the appropriate amount of time for subpart G requests is 30 days from filing the initial witness list, 20 days from subsequently listed witnesses, or 10 days after the final witness list, whichever is earlier.
Initial Scheduling Order at 2. A party, therefore, may initiate a request for subpart G procedures when a witness is identified and there is a challenge to his or her credibility-- so long as the request falls within the deadlines established by the Board.
Entergy's motion for reconsideration claims that these deadlines are contrary to the Selection of Hearing Procedures Order.
Entergy's Motion at 5.
Entergy claims the "Initial Scheduling order goes beyond the rulings of LBP-04-31 and the Commission's regulations by explicitly providing an opportunity for parties" to request subpart G proceedings at a later time. Id.
In fact, the opposite is true.
The Initial Scheduling Order is consistent with the Selection of Hearing Procedures Order in that it establishes a time frame for requests under 2.3 09(g) and 2.310(d). Initial Scheduling Order deadlines reflect the Board's attempt to balance the availability of subpart G procedures under 3
2.309(g) and 2.310(d) against the objective of expedited hearing procedures mandated by §§2.323 and 2.329.
Noting that the Board "left open the possibility" for motions pursuant to 10 C.F.R.
§2.310(d) at a later stage, Entergy claims, contrary to the Board's.ruling, that the Board did not intend to provide parties an opportunity to argue for subpart G procedures following the identification of witnesses. Entergy's Motion at 5. Entergy's argument misunderstands the Board's ruling on that point in its Selection of Hearing Procedures Order. Entergy also appears unaware that the substance of that order is now beyond challenge.1 The fact of the matter is that Entergy failed to take a bite of the proverbial apple when the "fruit" was placed on the table by the Board's ruling on procedural matters in its Selection of Hearing Procedure Order. Entergy may not raise that issue now. Under NRC rules, a motion for reconsideration:
may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.
A motion must be fied within ten (10) days of the actionfor which reconsideration is requested.
10 C.F.R. §2.323(e) (emphasis added).
The true purpose underlying Entergy's Motion is not a challenge to the Initial Scheduling Order of February 1, 2005, but a collateral attack on the law of the case as set forth in the Board's December 16, 2004, Selection of Hearing Procedures Order.
Entergy's hidden purpose is not availed by its failure to follow Commission regulations.
First, Entergy fails to request permission of the presiding officer or the Commission to file its motion, violating 10 CFR §2.323(e).
Second, Entergy fails to demonstrate any compelling circumstances for rendering the Board's decision invalid, violating the same provision.
- Third, As the DPS stated in the prehearing conference call, "The Law of the case applies, number one. Time for filing either an appeal from that opinion or a motion for reconsideration of that opinion has passed."
Scheduling Telcon tr. at 598. Furthermore, a review of Entergy's statements in the transcript on this issue demonstrate its confusion regarding the timing of motions to request a subpart G hearing where witness credibility is at issue. Id at 594-608.
4
Entergy fails to demonstrate a clear and material error in the Board's decision--again violating
§2.323(e). Fourth, despite certification to the contrary, Entergy failed, before filing the motion, to attempt to "contact the other parties in the proceeding and resolve the issue(s) raised in the motion" in violation of 10 CFR §2.323(b) (emphasis added); see Declaration of Jonathan M. Block, attached hereto as Exhibit 'A'. Fifth, and finally, Entergy failed to file the motion on or before December 27th, 2004, thus, violating the requirement that a motion must be filed "no later than ten (10) days after the occurrence or circumstance from which the motion arises." Id. at §2.323(a).
Given these violations, the Board should neither reconsider its Initial Scheduling Order nor certify the issue to the Commission.
The NRC's rules permit a party to request the selection of hearing procedures in its petition to intervene or when the identity of witnesses become known and there is information available regarding lack of credibility on issues material to the proceeding. Compare 10 CFR §§2.309() uith 2.310(d). Entergy claims that a party "must demonstrate in its petition to intervene that Subpart G procedures are appropriate." Entergy's Motion at 2 (emphasis added). Entergy misstates the rule.
Under 2.30 9 (g), requests for a hearing or petitions to intervene "may also address the selection of hearing procedures" (emphasis added). Here, the parties did in fact address the selection of hearing procedures in their respective motions to intervene and requests for a hearing which were fully addressed in the Board's Selection of Hearing Procedures Order. The issue of the selection of procedures was also fully vetted in the preheating conference at the end of October, 2004.
Prehearing Conference Transcript at 496-550 (October 22, 2004) ('Prehearing tr.").
A party may also request the use of subpart G type hearing procedures where an opposing party discloses a witness whose credibility "may reasonably be expected to be at issue." 10 CFR
§2.310(d). Entergy argues that NRC regulations require the Board's decision on the selection of hearing procedures to be rigidly fixed at the outset and not subject to any subsequent modification.
5
Entergy's Motion at 2. Entergy bases this argument on misreading both the relevant Commission Rules of Practice and the Board's Selection of Hearing Procedures Order. In the Order, the Board ruled that it was free to revisit the matter of the need to use subpart G procedures later in the case were a party to argue "that the credibility of an eyewitness as to a material past activity reasonably
[is] expected to be in issue." Selection of Hearing Procedures Order at 18. The Board concluded that this position is consistent with the Commission's new rules. Id. at n.19.
The Board and the Commission agree that a party may not later complain about selection of hearing procedures when the party fails to address that issue from the beginning of the case. Id. A party must raise questions regarding witness credibility as soon as it has evidence that places the matter in issue. Id. For this reason, the Board stated:
If however, the petitioner shows that the identity of the eyewitnesses of opposing parties, or information regarding their lack of credibility on issues material to this proceeding, was not previously available and submits a motion in a timely fashion, it may be considered.
Id. at 18-19.
In this case, there is still an opportunity to request subpart G procedures because Entergy has yet to divulge the subject matter on which its witnesses will testify--and may offer different witnesses than those currently disclosed. A party also could reasonably request subpart G procedures if a new witness is identified and new information regarding the witness's lack of credibility becomes available.
Entergy claims that allowing a contention or contested matter to be heard under subpart G procedures will "seriously disrupt and delay this proceeding" contrary to the efficiency goals of the Commission's rules. Entergy's Motion at 6. However, as the Board noted, the NRC's rules permit a party to file a motion when a new witness becomes known and credibility on a material issue of fact is in question.
Selection of Hearing Procedures Order at 18; see also 10 C.F.R. §2.310(d).
Furthermore, the NRC's rules, practices and procedures are merely acknowledging the reality that before a party is in a position to raise the issue of witness credibility, the opposing party must 6
disclose both the witnesses and the subject matter of the testimony.
Thus, contrary to Entergy's claims, the Board's ruling already avoids undue delay by setting limitations on the time in which a party must raise credibility issues.
B.
CERTIFICATION The New England Coalition opposes Entergy's request for certification of its issue to the Commission as unnecessary. There is no novel issue here. The NRC's rules require the presiding officer to determine whether "prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense," or whether a "decision or ruling involves a novel issue that merits Commission review at the earliest opportunity." 10 C.F.R. §2.323(f)(1). A party may also "petition the presiding officer to certify an issue to the Commission for early review." Id. at (0(2).
The presiding officer must apply the standards under 2.341(f (interlocutory review). The rule requires both the existence of "significant and novel legal or policy issues" and that "resolution of the issues would materially advance the orderly disposition of the proceeding."
10 C.F.R.
§2.341(0(1). Here, where only a matter of the Initial Scheduling Order is involved there is neither a novel issue nor any matter for immediate resolution that would materially advance the disposition of the proceeding.
There is no conceivable way that appeal of the Initial Scheduling Order rises to the level of a proper certified question. Generally, the Commission exercises its authority for interlocutory review "sparingly." See Safey light Corporation, et al ("Safey Light"), 36 NRC 79, 85 (1992) ("We certainly do not leap forward to scrutinize every interlocutory directive or procedural order of the presiding officers or boards"); Consolidated Edison Co. of N.Y., Power Authority of the State of N.Y. (Indian Point, Unit 2; Indian Point, Unit 3), LBP-82-23, 15 NRC 647, 650 (1982) (absent a compelling reason, certification will be declined).
The scheduling matter at issue in Entergy's Motion is ordinarily resolved by the parties, their attorneys and the Board--not the Commission. After all, it is common 7
practice that minor alterations in a schedule -- enlargements in time, changes of dates -- take place continuously by agreement or stipulation of the parties and consent of the Board--hence the term "initial" before "scheduling order". Entergy has not shown, nor could it show, that the instant schedule so prejudices its interests as to raise a mere scheduling matter to the level of novel legal issue meriting Commission attention.
Furthermore, Entergy made no effort to resolve the matter before filing its motion. A few hours before filing the motion, Entergy's lead counsel called NEC's counsel to announce Entergy's intention to file such a motion sometime in the future. There was no substantive discussion of the motion and no attempt to resolve the issue raised in the motion. See Declaration of Jonathan M.
Block, attached hereto as Exhibit 'A'. Entergy's certification is, thus, a misrepresentation. A motion must be rejected if it fails to provide the certification under 10 CFR 2.323(b). Surely, where, as in this case, the certification is a misrepresentation, the motion should also be rejected.
Entergy claims that "provisions for selecting hearing procedures are new, and there is no case law authority or express Commission guidance on how they should be applied."
Entergy Motion at 8. Contrary to this assertion, there are cases dealing with procedural matters and the choice between formal as opposed to informal proceedings, and vice versa.
For example, an informal adjudication under Subpart L ("old" rules), the petitioner may request that the proceeding be conducted employing procedures other than those set forth in Subpart L, which could include use of the procedures for formal, trial-type adjudications set forth in 10 CFR Part 2, subpart G. See, e.g., Sequgyah Fuels Corp. (Sequoyah UF6 to UF4 Facility), CLI-86-17, 24 NRC 489, 497 (1986)
(request for trial-type procedures in Subpart L proceedings requires considering whether use of such procedures appreciably assists the fact-finding process).
A novel question, on the other hand, is one with precedential effect, or one where the issue has not previously been heard. For instance, whether the Board and Presiding officer have authority 8
to consolidate two proceedings and thereby alter the type of hearing procedures used. Safe/v Li ht, sa~pra, at 85. In that case, the Commission held that the Board lacked the authority to consolidate where consolidation would convert the entire case into a subpart G proceeding. Nevertheless, the Commission allowed the Board to consolidate the proceedings.
Entergy also claims that early Commission review "'would provide clarification of this issue on a schedule consistent with the orderly and expeditious completion of the proceeding." Entergy's Motion at 8. The Board's Initial Scheduling Order already does this. NRC regulations require that a party seeking certification must either establish that failure to resolve the problem will cause the public interest to suffer or will result in unusual delay and expense. See, e.g. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1652-53 (1982). Entergy cannot meet either burden because the Board's Initial Scheduling Order achieves the Commission's objectives for a scheduling order under §2.332(c). In general, the Commission's objectives for a scheduling order include: expediting the disposition of the proceeding, establishing early and continuing control of the proceeding, and discouraging wasteful preheating activities.
10 CFR
§2.332(c)(1)-(3). The Board's Initial Scheduling Order in this case achieves all of these objectives.
The order is straightforward and sets clear deadlines for filing a motion to request subpart G type proceedings if necessay. Thus, granting Entergy's request for certification could ultimately result in delay of the proceedings were the Commission to take up the matter and reverse the Board's Initial Scheduling Order.
Finally, while interlocutory review of the selection of hearing procedures may be appealed "on the question as to whether the selection of the particular hearing procedures was in clear contravention of the criteria set forth in §2.310" an appeal "must be filed with the Commission no later than ten (10) days after issuance of the order selecting a hearing procedure."
10 C.F.R.
§2.311(d). Entergy once again fails to meet the filing deadline. The Board issued its Selection of 9
Hearing Procedures Order on December 16, 2004. It selected subpart L procedures--for the time being. Entergy's Motion neither challenges the selection of these procedures nor claims they were issued in contravention of the criteria in §2.310(d).
Instead, by attacking the Initial Scheduling Order, Entergy attempts to challenge that portion of the Selection of Hearing Procedures Order permitting subsequent changes to the hearing procedures when witness credibility is at issue.
Entergy missed the deadline for interlocutory review of anj part of the Board's Selection of Hearing Procedures Order. Neither the Board nor the Commission should allow Entergy to use its motion to launch a collateral attack upon the law of the case established in the December 16th order.
III.
CONCLUSION For the foregoing reasons, the Board should deny Entergy's Motion and refuse to consider certifying the issue to the Commission.
Respectfully submitted:
Jonathan M. Block 94 Main Street P.O. Box 566 Putney, VT 05346-0566 (802) 387-2646 jonb(isover.net Phoebe L. Mills, Law Clerk, On Brief cc: Service List 10
EXHIBIT 'A' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Alex S. Karlin, Chairman Dr. Anthony J. Baratta Lester S. Rubenstein In the Matter of Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc (Vermont Yankee Nuclear Power Station)
Docket No. 50-271 ASLBP No. 04-832-02-OLA February 18, 2005 DECLARATION OF JONATHAN M. BLOCK I,Jonathan M. Block, state:
- 1.
My name is Jonathan M. Block, counsel to the New England Coalition in the above captioned proceeding.
- 2.
Earlier on February 10, 2005, in the day on which I received an electronic filing of Entergy's "Motion For Reconsideration Of Initial Scheduling Order, Or In The Alternative, For Certification," I received a telephone call from Entergy's lead counsel in this matter, Jay Silberg, who told me that he planned to file such a motion.
- 3.
Other than Mr. Silberg's statement that Entergy planned to file a motion for reconsideration at some future time, no discussion took place concerning the substance of the motion, nor was there any attempt to resolve the issues underlying the need to file such a motion.
I declare under penalty of perjury that the foregoing is true and correct. Executed on February 18, 2005.
Jonathan M. Block Counsel for New England Coalition 94 Main Street P.O. Box 566 Putney, Vermont 05302 802-387-2646
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)
Docket No. 50-271 ASLBP No. 04-832-02-OLA (Operating License Amendment)
CERTIFICATE OF SERVICE I, Jonathan M. Block, hereby certify that copies of "New England Coalition's New England Coalition's Opposition To Entergy's Motion For Reconsideration Of Initial Scheduling Order, Or In The Alternative, For Certification" 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 18th day of February, 2005. Persons listed below with a '**' received paper copies only.
Alex S. Karlin, Chairman*
Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ask2@nrc.gov Dr. Anthony J. Baratta*
Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ajb5@nrc.gov Office of the Secretary*
Att'n: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 secy(Xanrc.gov, hearingdocketanrc.gov Lester S. Rubenstein*
Administrative Judge Atomic Safety and Licensing Board Panel 4270 E Country Villa Drive Tuscon, AZ 85718 lesrrr(msn.com lesrrr(.comcast.net Atomic Safety and Licensing Board*
U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 imr3()nrc.goy; cmw(~nrc.gov; src2()nrc. ov ; kxp1(a)nrc.gov; ksvanrc.gov Office of Commission Appellate Adjudication**
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.Hofmann(lstate.vt.us Anthony Z. Roisman*
National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 aroisman(Qvalley.net Brooke Poole, Esq.*
Robert Weisman, Esq.*
Marisa Higgins, Esq.*
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 bdpVntc.goy, rmv(~nrc.go, mch5(Rnrc.gov Jay E. Silberg, Esq.*, Matias Travieso-Diaz, Esq.,*
Douglas Rosinski, Esq.*
Shaw Pittman, LLP 2300 N St., NW Washington, DC 20037-1128 Jay.Silberg)shawpittman.com Matias.Travieso-Diaz(shawpittman.com Douglas,.Rosinski(ishawpittman.com John Fulton, Esq.*
Assistant General Counsel Entergy Nuclear Operations 440 Hamilton Avenue White Plains, NY 10601 jfultol (ientergy.com Raymond Shadis*
New England Coalition P.O. Box 98 Shadis Road Edgecomb, ME 04556 shadistprexar.com nathan M. Block Counsel to New England Coaltion 94 Main Street P.O. Box 566 Putney, VT 05346-0566 (802) 387-2646 JONATHAN M. BLOCK ATTORNEY AT LAW 94 Main Street P.O. Box 566 Putney, VT. 05346-0566 802-387-2646 (vox)
-2667 (fax) jonb(2asover.net February 18,2004 Secretary United States Nuclear Regulatory Commission Washington, DC 20555-0001 ATT: Rulemakings and Adjudications Staff RE:
Entergy Nuclear Vermont, LLC and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station)
Docket No. 50-271-OLA; ASLBP No. 04-832-02-OLA Dear Rulemnakings and Adjudications Staff Enclosed for filing on behalf of New England Coalition, please find the original and two copies of New England Coalition's "Opposition To Entergy's Motion For Reconsideration Of Initial Scheduling Order, Or In The Alternative, For Certification' in the above referenced matter.
Thank you for your cooperation in this matter.
Sincerely, yfonathan M. Block Attorney for Citizens Awareness Network cc:
Service list