ML070590337
| ML070590337 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 02/28/2007 |
| From: | Karlin A Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 06-849-03-LR, 50-271-LR, RAS 13116 | |
| Download: ML070590337 (5) | |
Text
1 New England Coalition, Inc.s Second Motion to Compel (Feb. 12, 20070 (NEC Second Motion).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 13116 DOCKETED 02/28/07 ATOMIC SAFETY AND LICENSING BOARD SERVED 02/28/07 Before Administrative Judges:
Alex S. Karlin, Chairman Dr. Richard E. Wardwell Dr. Thomas S. Elleman 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-LR ASLBP No. 06-849-03-LR February 28, 2007 ORDER (Staying Further Discovery Disputes Concerning NEC Contention 1)
On February 12, 2007, the New England Coalition (NEC), an intervenor herein, filed its second motion to compel, seeking the clarification of certain portions of the third supplemental privilege logs filed by Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (collectively, Entergy) and the production of four of Entergys documents.1 Specifically, NEC asked the Board (1) to require Entergy to clarify whether the attachments [to three emails] contain modeling results/data, and to produce any such results/data, and (2) to require Entergy to state the actual purpose for which [a 2005 email] was prepared and to produce it. NEC Second Motion at 1. NEC also noted that Entergys third supplemental privilege logs appear identical to Entergys second supplemental privilege logs, and thus NEC moved to compel production of certain documents for the same reasons stated in NECs first
2 2 Entergys Answer to New England Coalitions Second Motion to Compel (Feb. 15, 2007) (Entergy Answer).
3 Entergy represents that the Friday afternoon email stated Please confirm that the privilege logs you served with Entergys Third Supplemental Disclosure are duplicates of logs served with Entergys Second Supplemental Disclosure, with the exception of the log listing only one document; email from R. Buckley to L. DeWald (11/3/05). Entergy Answer at 1.
4 Entergy represents that the Monday email stated For the same reasons stated in NECs prior motion to compel, NEC will file a motion to compel production of documents newly identified as privileged in Entergys third supplemental privilege logs. Entergy Answer at 1-2.
motion to compel. NEC Second Motion at 1-2.
On February 15, 2007, Entergy filed its answer.2 First, Entergy asserted that NECs two emails, one late on a Friday afternoon3 and the other at 12:53 PM on the following Monday February 12, 2007 (the day the motion was filed),4 failed to comply with the consultation requirements of 10 C.F.R. § 2.323(b). Entergy Answer at 1. Second, Entergy argued that the NECs motion is barred by the Boards January 27, 2007, order which stayed NECs first motion to compel until the Commission rules on the admissibility of NEC Contention 1. Entergy Answer at 2.
Our response is twofold. First, NEC is reminded of our instruction that In accordance with 10 C.F.R. § 2.323(b), motions (including requests of any kind) will be rejected if they do not include a certification by the attorney... [that] he or she has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raise in the motion or request.
Section II. 8 of Initial Scheduling Order (Nov. 17, 2006)(unpublished) at 8. NEC failed to include the quoted language, which comes straight from the regulation, in its motion. In addition, it does not appear that NEC met the spirit of the regulation. Instead, we got a clarification squabble that could and should have been resolved by consultation between the parties.
Second, given that the documents that are the subject of NECs second motion all deal
3 5 Copies of this order were sent this date by Internet e-mail transmission to counsel for (1) licensees Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.;
(2) intervenors Vermont Department of Public Service and New England Coalition of Brattleboro, Vermont; (3) the Staff and (4) the State of New Hampshire.
solely with the subject matter of NEC Contention 1 (NPDES permitting and hydrothermal modeling), we believe these disputes should also be held in abeyance until the Commission rules on Entergys appeal.
Accordingly, we hereby expand our January 23, 2007, stay to cover all discovery disputes relating to privilege claims for documents that deal solely with the subject matter of NEC Contention 1. Mandatory disclosure of such documents and privilege logs is still required.
However, motions to challenge privilege claims or to compel the production of such documents shall be filed after, but within10 days of, the filing of the Commission ruling on the admission of NEC Contention 1. In addition, we advise counsel for NEC to make a timely telephone call to opposing counsel and to make a sincere attempt to resolve the issue before filing the next motion. See Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station) LBP-06-5, 63 NRC 116, 128 (2006).
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD5
/RA/
Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland February 28, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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ENTERGY NUCLEAR VERMONT YANKEE, LLC, )
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and
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ENTERGY NUCLEAR OPERATIONS, INC.
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Docket No. 50-271-LR
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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 (STAYING FURTHER DISCOVERY DISPUTES CONCERNING NEC CONTENTION 1) have been served upon the following persons by 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 Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Thomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612 Mitzi A. Young, Esq.
Steven C. Hamrick, Esq.
David E. Roth, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Ronald A. Shems, Esq.
Karen Tyler, Esq.
Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401
2 Docket No. 50-271-LR LB ORDER (STAYING FURTHER DISCOVERY DISPUTES CONCERNING NEC CONTENTION 1)
Sarah Hofmann, Esq.
Director for Public Advocacy 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 Matthew Brock, Esq.
Assistant Attorney General Office of the Massachusetts Attorney General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598 Diane Curran, Esq.
Harmon, Curran, Spielberg,
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036 Callie B. Newton, Chair Gail MacArthur Lucy Gratwick Town of Marlboro SelectBoard P.O. Box 518 Marlboro, VT 05344 Dan MacArthur, Director Town of Marlboro Emergency Management P.O. Box 30 Marlboro, VT 05344 David R. Lewis, Esq.
Matias F. Travieso-Diaz, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 Jennifer J. Patterson, Esq.
Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 28th day of February 2007