ML081850424

Vermont Yankee - NRC Staff'S Response to Vermont Department of Public Service'S Motion to Modify the Schedule

ML081850424
Person / Time
Site:	Vermont Yankee
Issue date:	07/02/2008
From:	Baty M NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-114
Download: ML081850424 (7)

Text

July 2, 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 VERMONT DEPARTMENT OF PUBLIC SERVICES MOTION TO MODIFY THE SCHEDULE Pursuant to 10 C.F.R. § 2.323 the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby submits this response to Vermont Department of Public Service [DPS] Motion for Modification of the Scheduling Order to Facilitate Full Compliance with 10 C.F.R. § 2.323(b)

(Motion). For the reasons set forth below DPSs Motion is unnecessary, unfounded, and DPSs proposed modification to the schedule would automatically extend the proceeding without Board approval, and should be denied.

DISCUSSION A. DPSS Motion is Unnecessary The evidentiary hearing in this proceeding is set to begin July 21, 2008. The parties have made their prehearing submissions and no further pre-hearing motions or submissions, other than those required by the Boards June 27, 2008 Order, are scheduled. See Initial Scheduling Order (Nov. 17, 2006) (unpublished) (November Order.) The deadlines for filing motions in the November Order (i.e. shorter than the 10 day time limit set by § 2.323(a)1 have all 1

In revising its rules of procedure, the Commission requested public comment on whether to (continued. . .)

passed. See id. In light of this, when DPS proposed filing the instant motion, the Staff joined with Entergy in requesting that DPS not file the motion so that parties may focus on preparing for hearing and respond to the Boards request for additional briefing. Moreover, as their Motion states, DPS has not suggested a lack of good faith consultation by any party. Motion at 3.

Furthermore, the parties should be well aware by virtue of footnote 11 of the Boards November Order, that parties are encouraged to formally request additional time to file a motion if they believe that a matter may be resolved amicably if the Board extended the time for filing. Thus, DPSs Motion is unnecessary and should be denied.

B. DPSS Concerns About Consultation Are Unfounded Not only is DPSs Motion unnecessary, DPSs concerns about the consultation thus far in this proceeding are unfounded. DPS expresses concern that there has been a failure by the parties to this proceeding to make a sincere effort to resolve issues2 prior to filing motions in limine because consultations occurred within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of filing deadlines and occurred by

(. . .continued) impose a 10 day time limit from the beginning of an action or a circumstance for the filing of a motion.

Changes to Adjudicatory Process, Final Rule, 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004). Based upon the comments received, the Commission decided that expeditious management of a hearing requires that motions be filed promptly after the circumstances engendering the motion occur and established a 10 day time limit. In this same rulemaking the Commission also added the consultation provision. See, e.g.,

10 C.F.R. § 2.730 Motions (2003). This implies that the Commission believed that sincere consultation efforts could be conducted within the 10-day motion filing deadline. If DPS feels that the established10-day time limit in the Commissions rule is too short to allow for the consultation allowed by § 2.232(b),

DPS should file a petition for rulemaking.

2 Pursuant to 10 C.F.R. § 2.323(b), a motion must be rejected if it does not include a certification by the moving party that it has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised by the motion, and that such efforts were not successful. However, DPS does not articulate what it believes constitutes a sincere effort. In the Vermont Yankee extended power uprate proceeding, the licensing board stated that what constitutes a sincere effort can only be determined from the objective reasonableness of the movants efforts, as shown by all the facts and circumstances. Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-5, 63 NRC 116, 128 (2006).

e-mail. Motion at 2. DPSs concerns, however, are unfounded. DPS has settled its one admitted contention3 and thus is a party in this proceeding only by virtue of its adoption of NECs contentions.4 NEC, not DPS, is the designated representative for NECs contentions5 and DPS has not submitted statements of position, exhibits, or testimony.6 The motions to strike filed by the NEC, the Staff, and Entergy were directed to one anothers pleadings, testimony and exhibits. When the Staff proposed to strike portions of Ulrich Wittes initial testimony, Staff counsel called NEC counsel to discuss striking portions of Mr. Wittes testimony and sent an e-mail to inform the other parties of the Staffs plans.7 The Staff took this approach because only NEC, as the single representative of its contentions8 can withdraw, modify or correct NECs testimony.9 Subsequently, when the Staff stated that it intended to file a motion to strike all of Ulrich Wittes late-filed rebuttal testimony, NEC immediately responded that it would oppose the Staffs motion. Once a party has made its position clear, continuing consultation is not 3

See Order (Approving Settlement of DPS 1 Contention 1) May 31, 2007 (unpublished).

4 See Notice of [DPSs] Intent to Adopt Contentions and Motion for Leave to Allowed to Do So (June 5, 2006) (DPS Notice of Intent) at Certification of Counsel ¶1 (stating that NEC agreed to DPSs adoption of NECs contentions provided that NEC shall be the representative for its Contentions).

5 Id. at 3 (Certification of Counsel). If it had not adopted NECs contentions, Vermont could participate as an interested state pursuant to 10 C.F.R. § 3.15(c).

6 The instant Motion is DPSs first substantive filing since Joint Motion for Approval of Settlement Agreement and Dismissal of DPS Contention 1 filed May 4, 2007.

7 During that phone call, NEC informed the Staff of its plan to move to strike all of the Staffs rebuttal testimony.

8 See DPS Notice of Intent at Certification of Counsel.

9 As evidenced by DPSs Motion at footnote 1, DPS misunderstood the Staffs comment about its duties under § 2.323(b). The Staff was stating that because it was seeking to strike testimony submitted by NEC, the only party who could resolve the Staffs concern was NEC. Because neither DPS, Entergy, nor the interested states, were in a position to resolve the Staff concerns, the Staff informed them of their impending motion and requested their positions.

warranted.

Second, despite its claim that the parties failed to provide enough detail for the party consulted to adequately evaluate the merits of the motion, see Motion at 2, DPS has never requested additional information. Instead, DPS has consistently responded with the statement it now condemns the Department of Public does not object to the filing of any of the motions mentioned today, but reserves the right to comment on any of the substance of the motions after they have been filed. Entergys Motion in Limine to Exclude Rebuttal Testimony of Ulrich Witte (June 23, 2008) at 9. In fact, even after proposing the instant Motion to the parties, DPS took this same position on NECs Motion to File Corrections to Exhibits and Withdraw Certain Testimony of Ulrich Witte (June 27, 2008) at 3. For its part, the Staff requested additional information and decided not to oppose NECs motion. See id. Consequently, DPSs concerns are unfounded and no modification to the schedule is warranted.

C. DPSs Proposed Modification to the Schedule Could Automatically Delay the Proceeding To remedy its concerns about the sincerity of the consultations that can occur within the time allotted by the Commissions Regulations in § 2.323(a), DPS proposes to modify the November Order to provide for an automatic 5-day extension of time if a party believes that meaningful consultation cannot occur within the allotted time and that party files a statement with the Board to that effect. As stated above, this Board has encouraged the parties to file a joint motion requesting additional time to file a motion when they believe it would be helpful.

See November Order at n.11. It is the responsibility of the Board to manage this proceeding in a fair and expeditious manner.10 To allow the parties to extend the proceeding by 5-days 10 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-33, 62 NRC 828, 838 (2005).

without Board approval would undermine the Boards ability to manage the proceeding and would constituent an automatic waiver of the time limit established by the Commission. Thus, DPSs proposed modification should not be granted.

CONCLUSION For the reasons discussed above, the subject motion is unnecessary and should be denied.

Respectfully submitted,

/RA/

Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 2nd day of July, 2008

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 VERMONT DEPARTMENT OF PUBLIC SERVICES MOTION TO MODIFY THE SCHEDULE 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 2nd day of July, 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/

Mary C. Baty Counsel for NRC Staff