ML050680312
| ML050680312 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 02/22/2005 |
| From: | Hofmann S State of VT, Dept of Public Service |
| To: | NRC/SECY |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 9519 | |
| Download: ML050680312 (14) | |
Text
RAS 9519 DOCKETED UNITED STATES USNRC NUCLEAR REGULATORY COMMISSION February 22,2005 (4:07pm)
OFFICE OF SECRETARY In Re: Entergy Nuclear Vermont Yankee) RULEMAKINGS AND LLC and Entergy Nuclear ) Docket No. 50-271 ADJUDICATIONS STAFF Operations, Inc. )
(Extended Power tJprate) ) ASLBP No. 04-832-02-0LA VERMONT DEPARTMENT OF PUBLIC SERVICE REQUEST FOR LEAVE TO FILE AN OPPOSITION TO ENTERGY'S MOTION FOR RECONSIDERATION OF INITIAL SCHEDULING ORDER, OR IN THE ALTERNATIVE, FOR CERTIFICATION If the Board agrees that Entergy's Motion, aithough identified as a Motion for Reconsideration. . . or In the Alternative, For Certification, is, in reality, an objection to a Prehearing Conference Order, it necessarily has to have been filed pursuant to 10 CFR § 2.329 (e). That regrilation requires, inter alia, that leave be obtained to reply to such a filing.
The VernlOntDepartment of Public Service (DPS) requests leave to file the attached Opposition to provide the Board with DPS's analysis ofits position on the issues raised by Entergy. Resolution of the Motion will directly impact DPS's participation in the hearing.
Respectfully submitted, Sarah Hofin Special Counse Department of Public Service 112 State Street -Drawer 20 Montpelier, VT 05620-2601 Anthony Z. Roisman National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 February 22, 2005
RAW 55/
DOCKETED f .USNRC UNITED STATES February 22, 2005 (4:07pm)
NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND In Re: Entergy Nuclear Vermont Yankee) ADJUDICATIONS STAFF LLC and Entergy Nuclear ) Docket No. 50-271 Operations, Inc. )
(Extended Power Uprate) ) ASLBP No. 04-832-02-OLA VERMONT DEPARTMENT OF PUBLIC SERVICE OPPOSITION TO ENTERGY'S MOTION FOR RECONSIDERATION OF INITIAL SCHEDULING ORDER, OR IN THE ALTERNATIVE, FOR CERTIFICATION I. INTRODUCTION It is ironic that the basis of Entergy's motion is its objection to the timing of the Board's decision on whether Subpart G procedures should be used, since the motion itself is untimely in several respects and, for that reason alone, should be rejected. In addition, even if the motion
-were timely, it should be rejected on the merits.
Although the sweep of the objections presented by Entergy in its Motion are quite broad, the relief sought by Entergy really reduces its objections to one issue - whether a party will be allowed to take discovery pursuant to Subpart G in the event it makes the required showing for a subsequently identified witness. See Motion at 7. Thus, Entergy's objections to the lateness of the filing of the Subpart G request are moot in light of the relief it seeks, since the relief retains the Board's power to consider Subpart G requests following the disclosure of all witnesses.'
There are at least two severe problems with Entergy's proposed alternative language to Clause 2 of the Scheduling Order. First, it limits the use of the procedures witness by witness rather than contention by contention. Second, it forces the use of 10 CFR § 2.1204(b) to a date long before the testimony of the witness has been filed. Since use of that provision requires the filing of a cross-examination plan with substantial detail, it will be impossible to meet the required standards when all that is disclosed about the witness is the name and general subject I
.~-/ - .~~/ o.
II. THE MOTION IS UNTIMELY
- 1. Entergy objects because the Board failed to resolve the hearing procedure to be used "at the time it [the Board] admits an intervenor's contentions". M6tion at 3. Any challenge to that determination needed to be made months ago when the Board, in issuing its decision on intervention (LBP-04-28 (November 22; 2004)), announced it would be making its decision on hearing procedures at a later date. Id. Slip op. at 37; 10 CFR § 2.311 (a) (challenge to order on intervention to be filed within 10 days of the order); 10 CFR § 2.323(a) (motion to be filed 10 days from decision to which objection is made).
- 2. Entergy objects because the Board declared that it will provide an opportunity to seek a Subpart G hearing, with all attendant Subpart G procedures, sometime after the date of its Memorandum and Order (Selection of Hearing Procedures and Ruling on State Statutory Claim)(LPB-04-31 (December 16, 2004)) Slip op. at 18. In that decision the Board made clear it would entertain motions under 10 CFR § 2.310(d) for Subpart G proceedings following the identification of witnesses. Id. Since the Board could not anticipate what a yet-to:-be-filed Subpart G request might contain, it cautioned that the request would not automatically warrant a "revisit" of the hearing procedure.2 Any doubt, and realistically there should have been no doubt, the Board intended its December 16, 2004 Order to provide an opportunity to seek a Subpart G hearing after disclosure of witnesses by the parties, was laid to rest during the January 21, 2005 Prehearing Conference when counsel for Entergy raised the identical issue it has raised in this matter of the possible testimony of the witness.'
2 Entergy refers to this process as a "second bite at the apple". Motion at 5. More appropriately, since it occurs immediately after the first identification of the witness, it is a "first bite at the apple". The Board has given no assurance that intervenors will enjoy the taste.
2
Motion and was advised by the Board that First of all, I suggest you take a look at the December i6th ruling at page 18 on this issue, because what we did say was that for the moment, we are ruling that this is a Subpart L proceeding, but once the identity of the witnesses becomes known, then the other side may have another opportunity to request a G hearing for that contention.
Hearing Transcript (1/21/05) at p. 595 (emphasis in original); see also id. at 596-97. At most, Entergy had 10 days from either the December 16, 2004 Order or the January 21St Prehearing Conference to file its challenge to the Board's decision that it would entertain motions for Subpart G hearings following the filing of the final witness lists by the parties. 10 CFR § 2.323 (a); 10 CFR § 2.311(d). Its motion was filed on February 10, 2005 well beyond either of those 10 day deadlines. 3
- 3. Even if the February 1, 2005 Initial Scheduling Order, issued following the January21 Prehearing Conference, is the Order from which Entergy seeks relief, its motion is filed too late.
Since that Order is a Prehearing Conference Order the time for filing any objection to it was 5 days from the date of its issuance. 10 CFR § 2.329(e) 4 The Order was served electronically on February 1. Entergy's Motion was filed on February 10, five days too late.
- 4. Because Entergy has filed a Motion for Reconsideration, admittedly filed pursuant to 3 There is some ambiguity about the time limit for filing a request for certification to the Commission but since it requires a motion and arises under the general section on motions, presumably it also must be filed within 10 days, a deadline Entergy failed to meet. See 10 CFR § 2.323 (a).
4 That regulation also prohibits filing any reply to objections to a Prehearing Conference Order absent the direction of the Board. In the event the Board deems the motion to be subject to 10 CFR § 2.329 (e), DPS respectfully requests the Board grant its Request for Leave to File Opposition to Motion for Reconsideration, which is also filed today.
3
10 CFR § 2.323 (Motion at 1), it is subject to the provisions of 10 CFR § 2.323(e) which prohibit the filing of Motions for Reconsideration "except upon leave of the presiding officer or the Commission". No such leave was either sought or obtained. No showing has been or could be made, as required by the Regulation, of "compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated". Id. As discussed in more detail below, there are no compelling circumstances and no error, much less a material error. In addition, as noted above, Entergy should have known by December 16, 2004 and has known, at least since January 2 1 5', that the Board's December 16kh Order allowed the very procedure whibh Entergy did not challenge until after the 10 day window for seeking leave to file for reconsideration had expired.
Entergy could, and should, have anticipated the February 1st Order and could, and should, have made the arguments it now makes long ago so the parties could have addressed them before the Board's February 1 Order and the Board could have addressed them in that Order. See In the Matter of Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3) 2004 WL 2201269 at *1 ("Such am6tion [for reconsideration] is not an opportunity to present new arguments or evidence, or a 'new thesis,' unless, as provided in the rule, the moving party can demonstrate that the new material's availability could not reasonably have been anticipated and its consideration demonstrates compelling circumstances, such as a 'clear and material error' that renders the decision invalid." (Footnote Omitted)); In the Matter ofPacific Gas and Electric Conmpany (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation) 56 N.R.C.
467, 474-475 (2002)(holding that an intervenor should have anticipated that the workplace address of one of its members would be relevant to the standing issue and denying a motion for 4
reconsideration of denial of staniding based upon the failure to have included that address in the initial factual presentation of the Petition to Intervene).
As the decision in Diablo Canyon makes clear, the "reasonably been anticipated" language is intended to assure the early presentation of arguments, like those now advanced by Entergy, to avoid unnecessary delay in the resolution of licensing matters. Since Entergy could have presented these arguments immediately following the December 16, 2004 Order, thus enabling the Board and the parties to consider them prior to the January 16th Prehearing Conference and to enable them to be addressed in the February 1St Prehearing Conference Order, their presentation at this time should be rejected as untimely.
For all these reasons, the Board need not reach the merits of the Motion.
III. THE BOARD DID NOT COMMIT LEGAL ERROR The Board decided as early as December 16, 2004 that it would allow any party a reasonable period of time following the disclosure of a witness to present an argument that as to the contention or contested matter to be addressed by that witness, a Subpart G hearing as to that contention or contested matter was required. 5 Entergy objects for two reasons. First, it argues
- the regulations should be read to require a party to prove that testimony from an eye-witness raises issues of credibility and/or motive and intent even before the party knows the identity of the witness and the subject of the testimony of the witness. Second, it argues that waiting until the identity of the witness and the testimony of the witness is known to determine whether to 5 For purposes of this argument, we accept, as we must, the reading of the operative language of 10 CFR § 2.3 10(d) adopted by the Board in its December 16, 2004 Order because it is the law of the case. With due respect, we do not waive our claim that the ruling was in error.
hold a Subpart G hearing will create chaos. Entergy is wrong on both counts.
A. The Regulations Do Not Impose An Impossible Standard As A Pre-condition To A Subpart G Hearing There is nothing in 10 CFR which requires the Board to resolve the Subpart G issue at the time it resolves the admissibility of contentions. In fact 10 CFR § 2.3 10 begins with the words "Upon a determination that a request for hearing/petition to intervene should be granted",
indicating that the decision on hearing procedures must follow the decision on admissibility of contentions. See 10 CFR § 2.311 which treats the decision on admissibility of contentions ((a) -
(c)) as one decision and the decision on hearing procedures ((d)) as a separate decision. If, as Entergy argues, the decision on hearing procedures is to be made "at the time a Licensing Board determines that a petition to intervene should be granted" (Motion at 3), there would be no need for § 2.311 to provide separate provisions for the timing of appeals from those decisions. There is also no time limit on how soon after admission of contentions the Board is to decide the hearing procedure question. The Board has ruled that principles similar to those in 10 CFR §§ 2.309(f)(2)(i) and (iii) maybe relevant in setting the time. Pursuant to 10 CFR §§ 2.319 (g)(h)(k) and (r) the Board possesses broad power to "regulate" the hearing, "[d]ispose of procedural requests", "[s]et reasonable schedules for the conduct ofthe proceeding" and "[t]ake any other action consistent with the Act". Id. That is what the Board has done in this case.
Entergy focuses on language which indicates that the Subpart G request is to be based on information contained in the petition to intervene and in Subpart G, citing 10 CFR § 2.309(g).
From this it argues that any subsequent~information is to be ignored by the Board. That position directly contradicts the intent of 10 CFR § 2.309(0(2) which recognizes that newly discovered 6
evidence may warrant an amendment to .a previously filed petition to intervene and establishes criteria for its use. In this case, as the Board explained in its December 16t Order, Slip op. at 18,
- n. 19, a claim in support-of Subpart G proceedings based on the credibility, motives or intent of a proposed witness cannot possibly be made before the identity of the witness is known. 6 That information, and the timely filing of a Subpart G request based on that information, would effectively amend the petition to intervene and thus provide ample justification for the Board to consider.the request at that time. Entergy's view of the law would have it that the Commission has imposed an impossible burden on a party seeking a Subpart G hearing because an Applicant could, as Entergy has done here, not reveal'its potential witness list until after the petition to intervene has been acted upon, thus depriving an intervenor of the one critical piece of information needed to make the Subpart G showing. We, and apparently the Board also, are not 6 It is likely the language upon which Entergy has focused in the Statement of Consideration, which language it claims demonstrates that only the information submitted with the petition to intervene may be used to support the request for a Subpart G hearing (69 Fed. Reg. 2182, 2222 (January 14, 2004)), is merely an artifact of the regulation consideration process. As originally proposed on April 16, 2001 (66 Federal Register 19610, 19637) the language of 10.
CFR § 2.3 10 proposed to allow-Subpart G hearings whenever there was "licensing proceedings involving a large number of very complex -issues that would demonstrably benefit from the use of formal hearing procedures may be conducted under,the procedures of subpart G of this part." In such a case it would be reasonable to believe that a party that could meet the specificity requirements for admission of a contention could similarly demonstrate, on the same record, why resolution of the contentions would be complex and would benefit from Subpart G procedures.
The current version of 10 CFR § 2.3 10 (d) was only added in the final version of the regulations.
7 Actually, the Board's December 16' decision that an amendment to the petition to intervene based upon the later disclosure of a proposed witness could be a qualifying amendment that could justify a Subpart G hearing, was a boon to Entergy. It gave advanced notice of the Board's decision on a matter which might never arise, thus allowing Enitergy, had it acted in a timely manner, to challenge that determination before the Board or the Commission. The Board could have waited until, if at all, a party sought Subpart G status based on the later disclosure of a witness and ruled at that time on its inherent power to entertain the request.
7
willing to attribute such a perverse outcome to the Commission's regulations. 8 Entergy also apparently claims that the scope of any Subpart G hearing is limited to the particular topic of the particular witness and nothing more. Motion at 6. Significantly they do not, and cannot, cite any authority for that theory. The regulations clearly state that the Subpart G hearings are to be held as to the "contention or contested matter" as to which the witness testimony is relevant. 10 CFR § 2.310(d). See also 69 Fed. Reg. 2182, 2205 (Statement of Considerations accompanying the adoption of Rules of Practice) January-14, 2004 ("In sum, the Commission has concluded that the procedures in Subpart G should be utilized in any nuclear power plant licensing proceedingfor the resolution of a contention involving: (1) Issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or (2) issues of motive or intent of the party or eyewitness material to the resolution of the contested matter. Section 2.310(d) specifies the use of Subpart G hearing procedures in these circumstances." (Emphasis added)). If the Commission intended to limit the Subpart'G procedures witness by witness, it would have said so, just as it did when it limited the scope of the Subpart G procedures contention by contention.
See id. at 2222. There is good reason for the course chosen by the Commission. Attempting to dissect contentions for purposes of discovery or examination of witnesses into neat cubbyholes that just match the scope of the alleged credibility, intention or motive of a witness would create 8 If, as Entergy claims, the Commission's standard to obtain the right of cross-examination were impossible to meet, then its representations to the First Circuit in Can v.
N.R.C. were, at best disingenuous, a charge we do not believe is warranted. Id. Slip Op. at 23.
("The Commission represents that, despite the difference in language, it interprets the standard for allowing cross-examination under the new rules to be equivalent to the APA standard. 69 Fed. Reg. at 2,195-96.").
a procedural nightmare and never-ending wrangling-among the parties.
B. Application Of The Board's Order Will Not Prevent Orderly Resolution of the Issues in This Docket Entergy conjures up horrific chaos it asserts will arise if the Board is allowed to.
determine at a later date whether the Subpart G procedures should be used for a particular contention. Entergy's fears are not well-founded.
First, Entergy has total control over the timing of the supplemental Subpart G submissions. If it wants to force that decision early in the process, it needs only to disclose its witnesses at'an early date and refrain from the temptation to add new witnesses. Under the new Subpart C regulations with the detail required to be submitted by a prospective intervenor as a precondition to admission of a contention, coupled with the 10 CFR § 2.336 mandatory disclosures and an applicant's superior knowledge of the technical issues, any applicant should be able to identify its witnesses at an early stage in the proceeding, thus, preventing the Subpart G decision from being made anywhere near the critical path. 9 Second, even if the Subpart G decision is made late in the process, the Board has the inherent power in 10 CFR § 2.319 to control the timing of Subpart G discovery (assuming any is sought) to reduce, if not totally eliminate, its impact on the hearing schedule. 10 Entergy's 9 For the same reason, the request to certify should be denied because the Board's ruling does not threaten the orderly resolution of this proceeding and referral to the Commission of this issue, which is neither novel nor wrongly decided, will delay, not expedite this proceeding.
'0 As a practical matter the scope of discovery under Subpart G and under 10 CFR § 2.336 are essentially identical as to documents. All relevant documents, including reports by experts, documents generated by witnesses, and any relevant document in the possession of the party or its consultants are required to be produced under § 2.336. Nothing more is really required in the way of document production under Subpart G. There are three forms of discovery uniquely available under Subpart G - requests for admissions, interrogatories and depositions.
9
speculation about months of discovery, is just that, speculation. The Board can expect all parties, including Entergy, to act expeditiously to file discovery requests, respond to them and schedule and take depositions and can establish a schedule if that is necessary. Obviously, the addition bf party-controlled cross-examination to the hearing procedure will not extend the hearing time since under Subpart G and or L a'party must prepare and submit a cross-examination plan.
CONCLUSION For all the reasons stated, Entergy's Motion for Reconsideration should be denied.
Respectfully submitted, Sarah Hofm Special Counsel Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 Anthony.Z. Roisman National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 February 22, 2005 These are discovery devices the use of which are increasingly controlled by federal and state courts to prevent abuse by limiting the number of interrogatories and limiting the duration and number of depositions. See Rule 26(b)(2) of the Fed. Rules of Civ. P. The Board possesses ample authority to impose any reasonable limitations on the use of these procedures to assure a full exploration ofthe relevant facts and efficient resolution ofthe issues. 10 CFR § 2.319.
10
UNITED, STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of - )
) Docket No. 50-271 ENTERGY NUCLEAR VERMONT )
YANKEE LLC AND ENTERGY NUCLEAR )
- ASLBP No. 04-832-02-OLA-OPERATIONS, INC. )
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the Vermont Department of Public Service Opposition to Entergy's Motion for Reconsideration of Initial Scheduling Order, or in the Alternative,' for Certification and the Vermont Department 'of Public Service Request for Leave to File an Opposition to Entergy's Motion for Reconsideration of Initial Scheduling Order, or in'the Alternative, for Certification, and the accompanying cover letter in the above captioned proceeding has been served on the following by deposit in the United States Mail, first class, postage prepaid, and where indicated by asterisk by electronic mail, this, 22nd 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-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 E-mail: ask2(nrc.gov E-mail: aib5(nrc.gov' Lester S. Rubenstein* ' - . Office of the Secretary*'
Administrative Judge ATTN: Rulemaking & Adjudications Staff Atomic Safety and Licensing Board Paneli Mail Stop: 0-16 Cl 4270 E. Country Villa Drive U.S. Nuclear Regulatory Commission Tuscon, AZ 85718 Washington, DC 20555-0001 E-mail: 1esm(rcomcast.net '-' E-mail: HEARINGDOCKET(a~nrc.mov Atomic Safety and Licensing Board - "'. Office of Commission Appellate Adj.
Mail Stop T-3 F23 ' Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001
JayE. Silberg, Esq.* Brooke Poole, Esq.*
Matias Travieso-Diaz, Esq.* Robert Weisman, Esq.*
Douglas J. Rosinski, Esq. Marissa Higgins, Esq.*
Shaw Pittman, LLP Office of the General Counsel 2300 N St., NW Mail Stop 0-15 D21 Washington, DC 20037-1128 U.S. Nuclear Regulatory Commission jay.silberg@shawpittman.com Washington, D.C. 20555-0001 matias.travieso-diaz@shawpittman.com bdp@nrc.gov rmw@nrc.gov Mch5@nrc.gov Anthony Z. Roisman, Esq.* Jonathan M. Block, Esq.*
National Legal Scholars Law firm 94 Main Street 84 East Thetford Rd. P.O. Box 566 Lyme, NH 03768 Putney, VT 05346-0566 aroisman@valley.net ionb@sover.net Raymond Shadis* John M. Fulton, Esq.*
New England Coalition Assistant General Counsel P.O. Box 98 Entergy Nuclear Operations, Inc.
Shadis Road 440 Hamilton Avenue Edgecomb, ME 04566 White Plains, NY 10601 shadis@prexar.com . jfultol@entergy.com Chris Wachter* Jonathan Rund*
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 cmw@nrc.gov Jmr3@nic.goV Respectfully submitted, r-
~ ~= m-;:ff-SpecialCounsel
f 112 STATE STREET FAX: (802) 828-2342 DRAWER 20 T XY1-800-73428390 (VT):
MONTPELIER VT 05620-2601. /j e-mail: vtdps@psd.state.vt.us TEL: (802) 828-2811 Internet: http://www.state.vt.us/psd STATE OF VERMONT DEPARTMENT OF PUBLIC SERVICE February 22, 2005 Office of the Secretary ATTN: Rulemaking & Adjudications Staff Mail Stop: 0-16 C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Re: Docket No. 50-271/ASLBP 04-832-02-OLA DPS Opposition to Entergy Motion for Reconsideration and Leave to File Opposition
Dear Rulemakings and Adjudications Staff:
Please find enclosed for filing an original and two copies of the Vermont Department of Public Service Request for Leave to File an Opposition to Entergy's Motion for Reconsideration of Initial Scheduling Order, or in the Alternative, for Certification and an original and two copies of the Vermont Department of Public Service Opposition to Entergy's Motion for Reconsideration of Initial Scheduling Order, or in the Alternative, for Certification.
Thank you for your assistance in making this filing.
Sincerely, Sarah Hofma Special Counsel Vermont Department of Public Service cc: See Attached Certificate of Service I