ML063310276
| ML063310276 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 11/27/2006 |
| From: | Karlin A Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 12590 | |
| Download: ML063310276 (6) | |
Text
1 The New England Coalition offered no exhibits. Tr. at 1508.
2 [NEC] Motion to Reopen the Record for the Purpose of Re-Examining Dr. Joram Hopenfeld (Oct. 26, 2006) [NEC Motion]. The motion was dated October 24, 2006, but was not filed (electronically) until October 26, 2006.
RAS 12590 UNITED STATES OF AMERICA DOCKETED 11/27/06 NUCLEAR REGULATORY COMMISSION SERVED 11/27/06 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 November 27, 2006 ORDER (Denying Motion to Reopen Record)
The evidentiary hearing in this proceeding was held on September 13, and 14, 2006.
During the hearing, a number of pre-filed exhibits proffered by the applicants, Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations Inc., (collectively, Entergy), and the NRC Staff, were introduced and admitted into evidence.1 In addition, the Board admitted pre-filed written testimony from, and orally questioned, the witnesses of Entergy, the NRC Staff, and the intervenor, the New England Coalition (NEC). The record was closed (subject to transcript corrections) at the end of the hearing on September 14, 2006. Tr. at 1609.
On October 26, 2006, NEC moved to reopen the record for the purpose of re-examining Dr. Joram Hopenfeld, NECs sole expert witness.2 NEC argued that Dr. Hopenfelds testimony
2 3 Entergys Response to [NECs] Motion to Reopen the Record (Oct. 31, 2006) at 3.
4 NRC Staffs Response to [NECs] Motion to Reopen the Record (Nov. 2, 2006) [Staff Answer] at 1-2.
was disrupted and otherwise negatively affected by irregularities in the identification of
[Entergys] exhibits. Id. at 1. Specifically, NEC complained that, when the Board questioned Dr. Hopenfeld about some of the Entergy exhibits, there was some confusion as to which document was being discussed and its correct exhibit number. NEC averred that Dr. Hopenfeld was deprived of an opportunity to respond in full and directly to the Boards questions, and thus to fully and openly inform the Board and build a record on the technical and safety issues confronting the Board. Id. at 8.
Entergy and the NRC Staff both oppose the motion. Entergy points out that the NEC Motion fails to satisfy, or even cite, the requirements of 10 C.F.R. § 2.326, the regulation entitled Motions to Reopen.3 The NRC Staff agrees, arguing that the motion was not timely, does not raise a significant safety issue, does not assert that reopening the record would likely lead to a materially different result, and is not supported by an affidavit, all in contravention of the regulation.4 The Staff adds:
NECs desire to build a record at this juncture is not persuasive. Any significant issue should have been adequately addressed in NECs [pre-filed] direct testimony, or in responses to the Boards questions when asked; a party should not rely on Board examination to create an adequate record of its position, nor should the record be reopened merely because a witness wishes to supplement his testimony. Further, in a subpart L proceeding, the Board controls the live questioning of witnesses. It is the Board that ultimately decides whether such questioning is necessary and, if so, whether its examination of a particular witness has been sufficient. See 10 C.F.R. § 2.1207(b)(6). No party has the right to have its witnesses examined in a manner and to a degree of its own choosing; that decision is within the discretion of the Board. See id.
Staff Answer at 2.
After considering the matter, the Board denies NECs motion to reopen the record.
First, the motion fails to satisfy the requirements of 10 C.F.R. § 2.326. The motion does not
3 address a significant safety issue, does not demonstrate that a materially different result would have been likely, and was not accompanied by an affidavit. See 10 C.F.R. §§ 2.326(a)(2)-(3),
(b).
Second, NEC incorrectly assumes that the oral hearing held under 10 C.F.R. § 2.1207 is a platform for the parties to give oral presentations, of their own choosing, for the enlightenment of the Board. NEC speaks of its desire to fully and openly inform the Board and build a record, NEC Motion at 8, and of affording a party a proper opportunity to ventilate the issues.
NEC Motion at 9 n.4. NEC misses the point. Unless cross-examination by a party is requested and granted, the sole function of an oral hearing is for the Board to obtain clarification of points in controversy by asking its questions of the witnesses. Participants and witnesses will be questioned... only by the presiding officer. 10 C.F.R. § 2.1207(b)(6). As the Staff points out, absent cross-examination, the time for a party to make its record and inform the Board of its position is when it pre-files its initial and rebuttal written statement of position, testimony, affidavits, and exhibits pursuant to 10 C.F.R. § 2.1207(a).
Third, and perhaps most importantly, whatever confusion occurred regarding the numbering of the exhibits during our questioning of Dr. Hopenfeld was negligible, and in no way affected our understanding of his testimony. In fact, similar confusion occurred at various times during the evidentiary hearing and no harm was done. Tr. at 1158-59, 1168-72, 1261, 1297-98, 1302-04, 1315-16, 1322, 1411-12, 1423, 1469, 1471, 1507. Such minor mis-references will not hinder the Boards ability to render a decision. The purpose of a Subpart L oral hearing is for the Board to obtain answers to its questions and, despite minor confusion regarding exhibit numbering, our questioning of Dr. Hopenfeld satisfied our concerns. We have no further questions for Dr. Hopenfeld and thus there is no reason to recall him to the stand or to reopen the record.
4 5 Copies of this order were sent this date by Internet e-mail transmission to representatives for (1) licensees Entergy Nuclear Vermont Yankee L.L.C., and Entergy Nuclear Operations, Inc.; (2) intervenor New England Coalition of Brattleboro, Vermont; and (3) the NRC Staff.
For the foregoing reasons, NECs motion to reopen the record is denied.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD5
/RA/
Alex S. Karlin ADMINISTRATIVE JUDGE Rockville, Maryland November 27, 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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ENTERGY NUCLEAR VERMONT YANKEE L.L.C. )
Docket No. 50-271-OLA and ENTERGY NUCLEAR OPERATIONS, INC.
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(Vermont Yankee Nuclear Power Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (DENYING MOTION TO REOPEN RECORD) have been served upon the following persons by deposit in the 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 Sherwin E. Turk, Esq.
Steven C. Hamrick, 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 ORDER (DENYING MOTION TO REOPEN RECORD)
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.
Scott A. Vance, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 Jonathan M. Rund, Esq.
Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Terence A. Burke, Esq.
Associate General Counsel Entergy Services, Inc.
1340 Echelon Parkway Jackson, MS 39213
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 27th day of November 2006