ML061040107

New England Coalition'S Reply to Applicant'S Response on the Legal Scope of New England Coalition Contention 4

ML061040107
Person / Time
Site:	Vermont Yankee
Issue date:	04/04/2006
From:	Shadis R New England Coalition
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-271-OLA, ASLBP 04-832-02-OLA, RAS 11535
Download: ML061040107 (8)

Text

%AS f1535 DOCKETED LISNRC Aprl 13, 2006 (11:21am)

UNITED STATES NUCLEAR REGULATORY COMMISSION OFFICE CF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of April 4,2006 ENTERGY NUCLEAR VERMONT YANKEE, LLC Docket No. 50-271 and ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station) ASLBP No. 04-832-02-OLA NEW ENGLAND COALMON'S REPLY TO APPLICANT'S RESPONSE ON THE LEGAL SCOPE OF NEW ENGLAND COALITION CONTENTION 4 INTRODUCTION New England Coalition hereby complies with Atomic Safety and Licensing Board Panel

("Board") Orders given March 14,2006 and March 23, 2006 for a Reply to Entergy Nuclear Vermont Yankee's Answer on the legal scope of New England Coalition's Contention 4.

BACKGROUND On March 10, 2006, during a Scheduling Conference the Board Ordered New England Coalition to provide a Brief on the legal scope of New England Coalition's Contention 4.

JUDGE KARLIN: And what I want to make clear is that the brief needs to address.. .first, Mr. Shadis, you need to tell us what deficiencies you are alleging and against which standards they might apply. For example, as I understand it, you have identified several deficiencies. A, B, and C let's call them. Deficiency A may be measured against regulation or standard X. Alleged deficiency B may be measured against a different one. I don't know. You have to tell me what you think.

Tr. at 791-792 Precisely, the Board's Order of March 14h stated:

NEC Contention 4 alleges that certain deficiencies in the license application render the application "'not in conformance with the plant specific original

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licensing basis and/or 10 C.F.R. Part 50, paragraph I (a) [sic'], and/or 10 C.FR. Part 100, Appendix A." On March 17, 2006, NEC shall submit a statement or brief, not to exceed ten pages, that identifies which of these three legal standards are allegedly not satisfied with regard to each of the deficiencies asserted by NEC. This statement or brief should also specify with more particularity, which provisions of the legal standards are allegedly not satisfied, eg.. which part of Appendix A of Part 100 or which part of the plant specific licensing basis are not met. On that same date, in addition to any other method, this brief shall be served electronically on all parties.

On March 20, 2006, New England Coalition, with the agreement of the parties, electronically filed a retroactive motion for extension from March 17 to March 20, 2006; together a Brief on the Legal Scope ofNew England Coalition's Contention 4. Due to a glitch in the pro se representative's E-mail program, the filing, though queued for transmission on March 20" did not actually leave, was not seit, until 3:45 AM on March 21".

On March 28, 2006, Entergy Nuclear Vermont Yankee ("ENVY") filed its Response to New England Coalition's Brief.

DISCUSSION ENVY opens its Response with the assertion that New England Coalition did not comply with the Board's Orders of March 10'h and 14th because New England Coalition did not narrow its selection of legal standards allegedly not satisfied. New England Coalition did not interpret the Board's order to identify "which" standards, as an order to identify which one or which two, but rather which in particular. In particular and individually, New England Coalition asserts that all three legal standards are not satisfied.

ENVY claims that New England Coalition does not state which legal standards apply to each of the three legal standards cited. New England Coalition had hoped to make clear its I New England Coalition's Contention 4 as submitted and as modified by the ASLBP upon admission actually reads, " 10 CFR Part 50, Appendix S, paragraph I (a)."

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assertion that all three standards cited, applied to the specific deficiencies enumerated in its Contention 4 as modified by the Board, as follows:

The Entergy Vermont Yankee [ENVY] license application (including all supplements) for an extended power uprate of 20% over rated capacity ...does not provide analyses that are adequate, accurate, and complete in all material respects to demonstrate that the Vermont Yankee Nuclear Power Station Alternate Cooling System [ACS] in its entirety, in its actual physical condition (or in the actual physical condition ENVY will effectuate prior to commencing operation at EPU), will be able to withstand the effects of an earthquake and other natural phenomena without loss of capability to perform its safety functions in service at the requested increased plant power level.

ENVY asserts that New England Coalition citation to 10 CFR § 50.9, which was also cited in New England Coalition's Request for Leave to File a New Contention, does not apply here because it only speaks to accuracy of licensee communications with NRC as essential to ensuring public health and safety. It is plainly what New England Coalition is trying to convey when it asserts that analyses of the ACS have not been provided that are adequate, accurate end complete. If ENVY believes that some other 10 CFR section is more appropriately applied, they have not offered that either in their response or in the few attempts the parties have made to come to terms on the question of the scope of Contention 4. In fact, in discussions with New England Coalition ENVY has proposed nothing with regard to the legal scope of Contention 4.

ENVY asserts that licensing documents quoted in New England Coalition's Brief due "nothing to pinpoint which portions of the provisions are allegedly violated." Again, all of the licensing documents cited demonstrate operability and functional criteria for components of the ACS for which it must be determined to be able to withstand earthquakes or other natural phenomena.

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As New England Coalition asserted in its original list of proffered contentions, the Vermont Yankee licensing basis is a fairly impenetrable maze, but what documents have been cited should be sufficient to put ENVY on notice of what it is expected to defend.

CONCLUSION New England Coalition herein avers that Contention 9, and the it Brief on the Legal Scope of New England Coalition Contention 4, as submitted by New England Coalition and redrawn by the Board, together with the supporting argument in New England Coalition's Rq t and its Reply to NRC Staff's and Entergy's Responses, is sufficient to meet the legal standard for specificity under NRC's Rules and as established by NRC practice. 2 ENVY argues that New England Coalition should now be required to provide a Brief of greater specificity and particularity. If, for whatever reasons, the Board deems this pleading insufficient, New England Coalition now respectfully requests an opportunity to cure any de Fects the Board identifies in a new or amended pleading according to the Board's discretion.

Respectfully submitted:

2 Pro se' intervenors are not held in NRC proceedings to a high degree of technical compliance with legal requirements and, accordingly, as long as parties are sufficiently put on notice as to what has to be defended against or opposed, specificity requirements will generally be considered satisfied. However, that is not to suggest that a sound basis for each contention is not required to assure that the proposed issues are proper for adjudication Consolidated Edison Co. of N.Y.'(Indian Point, Unit 2) and Power Authority of the State of N.Y. (Indian Poinr, Unit 3), LBP.83-5, 17 NRC 134,136 (1983).

A basis ror a contention is set forth with reasonable specificity if the applicants are sufficiently put on notice so that they will know, at least generally, what they will have to defend against or oppose, and if there has been sufficient foundation assigned to warrant further exploration of the proposed contention.

Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit -1), LBP-8471, 19 NRC 29,34 (1984), citing Peach Bottom, supra, 8 AEC at 20-21; Commonwealth Edison Co.(Braidwood Nuclear Power Station, Units I and 2), LBP-85-20, 21 NRC 1732, 1742 (1985), rev'd and remanded on other grounds, CLI-86-8, 23 NRC 241 (1936).

See Public 'Service Co; of New Hampshire (Seabrook Station, Units land 2), ALAB-942,32 NRC 395, 427-28:

(1990).

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NEW ENGLAND COALITION BY: 3 Raymond G. Shadis pro se representative Post Office Box 98 (Express delivery: Shadis Road)

Edgecomb, ME 05446 (207) 882-7801 Shadiseprexar.com 5

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+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 NEW ENGLAND COALITION'S REPLY TO APPLICANTS RESPONSE ON THE LEGAL SCOPE of NEW ENGLAND COALITION CC)NTENTION 4 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class and by e-mail as indlicated by a double asterisk (*),this 4 day of APRIL 2006 Alex S. Karlin, Chair* Dr. Anthony J. Baratta*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Mail Stop T-3F23 Panel U.S'. Nuclear Regulatory Commission Mail Stop T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-rnail: ask2@nrc.gov Washington, DC 20555-0001 E-mail: ajb5@nrc.gov Lester S. Rubenstein" Office of the Secretary" Administrative Judge ATTN: Rulemaking and Adjudications Atomic Safety and Licensing Board Panel Staff 4760 East Country Villa Drive Mail Stop: 0-16C1 Tucson, AZ 85718 U.S. Nuclear Regulatory Commission E-rnail: lesrrr@comcast.net Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov I.

Office of Commission Appellate Adjudication John M. Fulton, Esq.

Mail Stop: 0-16C1 Assistant General Counsel U.S). Nuclear Regulatory Commission Entergy Nuclear Operations, Inc.

Washington, DC 20555-0001 440 Hamilton Avenue White Plains, NY 10601

Jay E. Silberg, Esq.** Sarah Hofmann, Esq.'

Matias Travieso-Diaz, Esq.** Special Counsel Pillsbury Winthrop Shaw Pittman, LLP Department of Public Service 2300 N St, NW 112 State Street - Drawer 20 Washington, DC 20037-1128 Montpelier, VT 05620-2601 E-rnail: jay.silberg@pillsburylaw.com E-mail: sarah.hofmann@state.vt.us matias.travieso-diaz@pillsburylaw.com douglas.rosinski@pillsburylaw.com Anthony Z. Roisman, Esq.**

National Legal Scholars Law Firm 84 East Thetford Rd.

Lyme, NH 03768 E-rnail: aroisman@nationallegalscholars.com Jonathan M. Rund, Esq.** Sherwin E. Turk, Esq.**

Law Clerk Jason C. Zom, Esq.**

Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail opthe G D21 U.S'. Nuclear Regulatory Commission Mail Stop 0-15 D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: imr3(anrc.qov) Washington, DC 20555-0001 set(~nrc.qov, icz(anrc.gov Raymond Shadis Pro Se Representative New England Coalition Post Office Box 98, Edgecomb, Maine 04556 207-882-7801 shadis@prexar.com

UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of ARIL 4,2006 ENTERGY NUCLEAR VERMONT YANKEE, LLC Docket No. 50-271 and ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station) ASLBP No. 04-832-02-OLA Office of the Secretary ATTN: Rulemaking and Adjudications Staff Mail Stop: 0-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

Dear Rulemaking and Adjudications Staff,

Please find for filing in the above captioned matter one original and two copies of New England Coalition's REPLY TO ENVY on the Legal Scope of New England Coalition Conttntion 4.

Thank you for your kind assistance in making this filing, Raymond Shadis Pro s: Representative New England Coalition Post Office Box 98 Edgenomb, Maine 04556 207-482-7801 shadi s)prexar.com