ML061670204

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NRC Staff Answer to New England Coalition Notice of Adoption of Contentions or Alternative Motion to Adopt Contentions
ML061670204
Person / Time
Site: Vermont Yankee Entergy icon.png
Issue date: 06/15/2006
From: Matt Young
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
M Young, NRC/OGC, 310-415-1523
References
50-271-LR, ASLBP 06-849-03-LR, RAS 11791
Download: ML061670204 (6)


Text

June 15, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station) )

NRC STAFF ANSWER TO NEW ENGLAND COALITION NOTICE OF ADOPTION OF CONTENTIONS OR ALTERNATIVE MOTION TO ADOPT CONTENTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission

("NRC" or "Commission") hereby answers the "New England Coalition's Notice of Adoption of Contentions, or in the Alternative, Motion to Adopt Contentions, dated June 5, 2006 (Motion).

Although the motion does not satisfy the requirements of 10 C.F.R. § 2.323(b),1 the Staff has no objection to the proposed adoption provided that New England Coalition (NEC) is admitted as a party to this proceeding (based on its initial petition) and, if the initial contention sponsor is not admitted as a party to (or subsequently departs from) this proceeding, NEC then demonstrates an independent ability to litigate any adopted contentions.

BACKGROUND By letter dated January 26, 2006, as supplemented March 15, 2006, Entergy Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy" or "Applicant")

submitted an application, under 10 C.F.R. Part 54, to renew Operating License No. DPR-28 for 1

NEC does not certify that it tried to contact other participants in the proceeding, namely the NRC Staff or the Licensee, as required by 10 C.F.R. § 2.323(b). A motion is to be rejected if it does not include a certification that the movants attorney or representative made a sincere effort to contact the other parties in the proceeding to resolve issues raised in the motion, and that those efforts were unsuccessful. 10 C.F.R. § 2.323(b).

the Vermont Yankee Nuclear Power Station ("VYNPS").2 The proposed renewal would authorize the Applicant to operate VYNPS for an additional 20 years beyond the current expiration date of March 21, 2012. See Entergy Nuclear Operations, Inc.; [VYNPS]: Notice of Acceptance of Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. DPR-28 for an Additional 20-Year Period, 71 Fed.

Reg. 15220 (Mar. 27, 2006). In response to the notice of acceptance for docketing and opportunity for hearing published in the Federal Register, id., the New England Coalition (NEC),

the Massachusetts Attorney General, the Town of Marlboro, Vermont Select Board, and the Vermont Department of Public Service timely filed intervention petitions See [NEC] Petition for Leave to Intervene Request for Hearing and Contentions, dated May 26, 2006; Massachusetts Attorney Generals Request for a Hearing and Petition for Leave to Intervene With Respect To Entergy Nuclear Operations Inc.s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operation and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Accidents, dated May 26, 2006; Vermont Department of Public Service Notice of Intention to Participate and Petition to Intervene, dated May 26, 2006; Letter from Town of Marlboro Selectboard and Emergency Management Director, dated April 27, 2006.3 In a filing dated June 5, 2006, NEC provided notice that it was adopting contentions filed by the State of Vermont and the Commonwealth of Massachusetts, pursuant to 10 C.F.R.

§ 2.309(f)(3), or alternatively, filing a motion, pursuant to 10 C.F.R. § 2.323, to adopt such 2

See Letter from William F. Maguire, Entergy, to U.S. NRC, dated January 25, 2006 (Agencywide Documents Access and Management System (ADAMS) Accession Nos. ML060300082, ML060300085, ML060300086).

3 On June 8, 2006, this Atomic Safety and Licensing Board was established to preside over the proceeding. See Establishment of Atomic Safety and Licensing Board, dated June 6, 2006. 71 Fed.

Reg. 34397 (June 14, 2006).

contentions. Motion at 1. NEC further indicated that it had consulted with representatives for Vermont and Massachusetts who agreed to the arrangement provided that each governmental entity served as the representative for their respective contentions. Motion at 2.

DISCUSSION The Staff does not object to NECs request provided that NEC is admitted as a party to this proceeding (based upon its initial petition) and, if the primary sponsor of the adopted contention is not admitted as a party or subsequently leaves this proceeding, NEC then demonstrates its independent ability to litigate any contentions adopted. See Consolidated Edison Co. of New York & Entergy Nuclear Indian Point 2 LLC and Entergy Nuclear Operations, Inc. (Indian Point, Units 1 and 2), CLI-01-19, 54 NRC 109, 131-33 (2001) (adoption provisionally permitted at an early stage of a proceeding so long as it does not circumvent pleading requirements and the proponent later demonstrates its independent ability to litigate the issue upon the departure of the original sponsor). If NEC were allowed merely to adopt the contentions of another party without otherwise establishing standing and proffering its own admissible contention, there would be a circumvention of NRC pleading requirements.

The Commissions regulations do not appear to specify how or when a request to adopt a contention may be raised. See 10 C.F.R. § 2.309(f)(3). The use of terms such as adoption of contentions of another . . . requestor/ petitioner, however, implies that a contention adoption request would be timely if made prior to any ruling on contentions. See id. See also Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 627 (2004)

(petitioners seeking intervention as a party under section 2.309 may chose to participate on other petitioners contentions by adopting them) (emphasis in original).

CONCLUSION For the foregoing reasons, although the motion has procedural defects, the Staff has no objection to NEC being allowed to provisionally adopt contentions proffered by Vermont and

Massachusetts, provided NEC is admitted as a party to this proceeding based on its initial petition and later demonstrates an independent ability to litigate any adopted contentions if the initial sponsor is not admitted as a party to, or subsequently departs from, this proceeding.

Respectfully submitted,

/RA/

Mitzi A. Young Counsel for NRC Staff Dated at Rockville, Maryland this 15th day of June 2006

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station )

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF ANSWER TO NEW ENGLAND COALITION NOTICE OF ADOPTION OF CONTENTIONS OR ALTERNATIVE MOTION TO ADOPT CONTENTIONS in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail with copies by U.S. mail, first class, or, as indicated by a double asterisk, by electronic mail with copies by overnight express mail, this 15th day of June 2006.

Administrative Judge Administrative Judge Alex S. Karlin, Chair Richard E. Wardwell Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 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: rew@nrc.gov Administrative Judge Office of the Secretary Thomas S. Elleman** Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 5207 Creedmoor Road, #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 E-mail: elleman@eos.ncsu.edu E-mail: hearingdocket@nrc.gov Office of Commission Appellate Sarah Hofmann, Esq.*

Adjudication Director of Public Advocacy Mail Stop: O-16C1 Department of Public Service U.S. Nuclear Regulatory Commission 112 State Street - Drawer 20 Washington, DC 20555-0001 Montpelier, VT 05620-2601 E-mail: OCAAmail@nrc.gov E-mail: sarah.hofmann@state.vt.us

Diane Curran, Esq.* Anthony Z. Roisman, Esq.*

Harmon, Curran, Spielberg National Legal Scholars Law Firm

& Eisenberg, L.L.P. 84 East Thetford Rd.

1726 M Street, NW., Suite 600 Lyme, NH 03768 Washington, DC 20036 E-mail: aroisman@nationallegalscholars.com E-mail: dcurran@harmoncurran.com Matthew Brock, Esq.*

Ronald A. Shems, Esq.* Assistant Attorney General Karen Tyler, Esq. Office of the Massachusetts Attorney Shems Dunkiel Kassel & Saunders, PLLC General 91 College Street Environmental Protection Division Burlington, VT 05401 One Ashburton Place, Room 1813 E-mail: rshems@sdkslaw.com Boston, MA 02108-1598 Ktyler@sdkslaw.com E-mail: matthew.brock@ago.state.ma.us Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Marcia Hamilton P.O. Box Box 30 Town of Marlboro Marlboro, VT 05344 Selectboard E-mail: dmacarthur@igc.org P.O. Box 518 Marlboro, VT 05344 E-mail: cbnewton@sover.net David R. Lewis, Esq.*

marcialynn@ev1.net Matias F. Travieso-Diaz Pillsbury Winthrop Shaw Pittman LLP Marcia Carpentier, Esq. 2300 N Street, NW Jonathan M. Rund, Esq. Washington, DC 20037-1128 Atomic Safety and Licensing Board Panel E-mail: david.lewis@pillsburylaw.com Mail Stop: T-3F23 matias.travieso-diaz@pillsburylaw.com U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.gov Jmr3@nrc.gov

/RA/

Mitzi A. Young Counsel for NRC Staff Dated at Rockville, Maryland, this 15th day of June 2006