ML081710726

Vermont Yankee - NRC Staff'S Response to Nec'S Motion to Strike NRC Staff'S Rebuttal Testimony Concerning NEC Contention 4

ML081710726
Person / Time
Site:	Vermont Yankee
Issue date:	06/19/2008
From:	Subin L NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-90
Download: ML081710726 (6)

Text

June 19, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

NRC STAFFS RESPONSE TO NECS MOTION TO STRIKE NRC STAFFS REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4 Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards (Board)

Initial Scheduling Order (Nov. 17, 2006) (unpublished) (November Order), the staff of the U.S.

Nuclear Regulatory Commission (Staff) hereby submits this response to New England Coalition, Incs (NEC) Motion To Strike the NRC Staff Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto, filed June 2, 2008 (Motion).1 For the reasons set forth below, the Staff requests that the Board deny NECs Motion.

BACKGROUND Pursuant to 10 C.F.R. § 2.332(a), on November 17, 2006, the Board issued its Initial Scheduling Order for the Vermont Yankee Nuclear Power Station (Vermont Yankee) proceeding setting forth limits for filing of motions and testimony and time frames for certain other activities in this proceeding. November Order at 1. In accordance with the November Order, NEC filed its initial statement of position, testimony, and exhibits on April 28, 2008 and 1

New England Coalition, Incs Motion to Strike NRC Staff Rebuttal Testimony Concerning NEC Contention 4 (June 12, 2008) (Motion).

the Staff2 and the Applicant3 filed their initial statements of position, testimony, and exhibits on May 13, 2008. Subsequently, on June 2, the Staff, Entergy and NEC each filed rebuttal testimony and exhibits. On June 12, 2008, NEC filed the instant Motion To Strike NRC Staff Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto.

DISCUSSION NEC argues that the rebuttal testimony of Kaihwa R. Hsu should be excluded from the record because it includes information and argument that could have and should have been included in his direct testimony. Motion at 1. NEC argues that this interpretation of the Boards purpose for providing staggered filing, where NEC filed its initial statement of position and testimony two weeks prior to Entergy and the Staff, was to allow the Staff and Entergy to respond to NECs initial statement of position and testimony in its initial filings. Id. at 2. NEC further argues that Mr. Hsus rebuttal testimony is essentially a late-filed addendum to [the Staffs] direct testimony, id. at 2, and therefore is outside the proper scope of rebuttal testimony, id. at 3. The Staff disagrees with NECs narrow and mistaken interpretation of the November Order.

The November Order is clear and unambiguous. Paragraph 10 of the November Order discusses the Evidentiary Hearing filings and the timing of said filings. Specifically, paragraph 10.B requires that [s]ixty (60) days after the Staffs Second Notice, each Intervenor shall file its initial written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). November Order 2

NRC Staff Initial Statement of Position on NEC contentions 2A, 2B, and 4, testimony, and exhibits (May 13, 2008) (Staff Initial Position).

3 Entergys Initial Statement of Position on New England Coalition Contentions, joint declarations, and exhibits (May 13, 2008).

at ¶10.B. Furthermore, paragraph 10.C requires that [n]o later than ten (10) days after service of the materials submitted under paragraph 10.B, the Applicant shall file its initial written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). Id. at ¶10.C.4 Finally, and to the point, paragraph 10.D is the controlling paragraph that addresses the submission of rebuttal testimony and it states that [n]o later than twenty (20) days after service of the materials submitted under paragraph 10.C, parties shall file their written responses, rebuttal testimony with supporting affidavits, and rebuttal exhibits, on a contention-by-contention basis pursuant to 10 C.F.R. § 2.1207(a)(2). Id. at ¶10.D (emphasis added). NECs interpretation would make the paragraph 10.D reference to 10.C meaningless.

While the pleadings are staggered, there is no indication that the Board intended the Applicant and the Staff to include rebuttal positions or rebuttal testimony to the intervenors initial statements in their initial filings.5 In fact, as noted above, the November Order specifically states that all parties will file rebuttal testimony twenty (20) days after service of the Applicants Initial Position. November Order at ¶10.D (emphasis added). The Applicant filed its Initial Position on May 13, 2008. Thus, all rebuttal testimony was due twenty (20) days thereafter, on June 2, 2008.6 In accordance with the November Order, the Staff filed its rebuttal testimony on June 2, 2008.

4 In paragraph 10.A of the November Order, the Staff was ordered to indicate which of the other partys positions it supported and to follow the submittal requirements imposed on that party by the November Order, or to follow the submittal requirements imposed on the applicant. November Order at 10.C.

5 Especially since the Staff was in support of the Applicants initial position 6

In Entergys Unopposed Motion to Extend Time to File Motion in Limine with Respect to Rebuttal Testimony of Ulrich Witte (Unopposed Motion), filed June 9, 2008, Entergy unequivocally states that [r]ebuttal testimony by the parties in this proceeding was due on June 2, 2008. Unopposed (continued. . .)

CONCLUSION For the reasons discussed above, NECs Motion to strike the NRC Staffs Rebuttal Testimony should be denied.

Respectfully submitted,

/RA/

Lloyd B. Subin Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of June, 2008

(. . .continued)

Motion at 1. NEC has not objected to this Motion.

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-LR LLC, and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS RESPONSE TO NECS MOTION TO STRIKE NRC STAFFS REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4 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, this 19th day of June, 2008.

Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16G4 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: hearingdocket@nrc.gov William H. Reed* Marcia Carpentier, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com E-mail: mxc7@nrc.gov Richard E. Wardwell Lauren Bregman, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: rew@nrc.gov E-mail: lauren.bregman@nrc.gov Office of Commission Appellate Peter C.L. Roth, Esq.*

Adjudication Office of the Attorney General Mail Stop: O-16G4 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 3301 Washington, DC 20555-0001 E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov

Ronald A. Shems, Esq.* Anthony Z. Roisman, Esq.*

Karen Tyler, Esq. National Legal Scholars Law Firm Shems Dunkiel Kassel & Saunders, PLLC 84 East Thetford Rd.

91 College Street Lyme, NH 03768 Burlington, VT 05401 E-mail: aroisman@nationallegalscholars.com E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com David R. Lewis, Esq.* Sarah Hofmann, Esq.*

Matias F. Travieso-Diaz, Esq. Director of Public Advocacy Elina Teplinsky, Esq. Department of Public Service Blake J. Nelson, Esq. 112 State Street - Drawer 20 Pillsbury Winthrop Shaw Pittman LLP Montpelier, VT 05620-2601 2300 N Street, NW E-mail: sarah.hofmann@state.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com blake.nelson@pillsburylaw.com Diane Curran* Matthew Brock*

Harmon, Curran, Spielberg, & Eisenberg, LLP Assistant Attorney General, Chief 1726 M Street N.W., Suite 600 Environmental Protection Division Washington, D.C. 20036 Office of the Attorney General E-mail: dcurran@harmoncurran.com One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us

/RA/

Lloyd B. Subin Counsel for NRC Staff