ML081890188
| ML081890188 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 06/27/2008 |
| From: | Hofmann S State of VT, Dept of Public Service |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, RAS M-113 | |
| Download: ML081890188 (6) | |
Text
DOCKETED USNRC
- June 27, 2008 (1:47pm) June 27, 2008 OFFICE OF SECRETARY RULEMAKINGS AND UNITED STATES OF AMERICA ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT ) Docket No. 50-271-LR YANKEE LLC AND ENTERGY NUCLEAR ) ASLBP No. 06-849-03-LR OPERATIONS, INC. )
(Vermont Yankee Nuclear Power Station) )
VERMONT DEPARTMENT OF PUBLIC SERVICE MOTION FOR MODIFICATION OF THE SCHEDULING ORDER TO FACILITATE FULL COMPLIANCE WITH 10 C.F.R. § 2.323(b)
In its November 17, 2007 Scheduling Order the Board directed the parties to implement 10 C.F.R. § 2.323(b) by using the following procedures:
- 8. Consultation Prior to Motions. 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 or representative of the movant that, prior to filing the motion or request, he or she has made a "sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion" or request. Although in general the movant has only ten (10) days within which to file its motion under 10 C.F.R. § 2.323(a), the Board believes that in order to be sincere, the effort should not be initiated at the last minute and should be made sufficiently in advance to provide at least some reasonable time for the possible resolution of the matter or issues in question. 1 In the case of a motion for summary disposition, the Board suggests that the "sincere effort" should include informing the opposing party or parties, prior to filing the motion, of the material facts about which the movant believes there is no genuine dispute. Likewise, the opposing party must be prepared to respond very promptly, advising whether it agrees that there is no genuine dispute concerning those facts.
- 11. 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). If the initial consultation is
initiated at a reasonable time, and the parties believe that all or part of the matter may be resolved amicably if additional time for filing the motion were provided, the parties are encouraged to file a joint motion requesting an extension of time.
Initial Scheduling Order at 8-9. In recent weeks motions have been filed by all parties that have not adhered to either the letter or spirit of this directive. Often consultations have been sought within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of the time when the motion will be filed. The substance of the motion has not been provided in sufficient detail for a party "consulted" to adequately evaluate the merits of the motion. In many instances responses to the "consultation" have been limited to statements that there is no objection to the filing of the motion but the party reserves the right to challenge the merits of the motion once it is filed.
Vermont believes that some of the motions that have been filed mighthave been avoided, or at least substantially narrowed, if there had been a good faith consultation, particularly if the consultation had been by phone rather than by e-mail. For example, both summary judgment and in limine motions, while usually initially conceived as broad and all inclusive, often contain seeds of.objections that an opposing party might be willing to concede, if the proponent of the motion were to withhold filing the motion as to other more controversial issues. The chance for such a meeting of the minds is impossible where the form of the consultation is perfunctory and all parties assume that no opposing party will agree to anything.
In compliance with this Board's Scheduling Order and § 2.323(b), Vermont had a telephone discussion with the parties regarding this motion. A number of interesting points were raised by the parties and, in the end, both NRC Staff and Entergy requested that the motion not be filed. NEC did not object to the motion. Vermont believes this is 2
an issue the Board should address but has modified the motion in light of the comments made by all the other parties. In particular, the parties have emphasized that, while efforts to consult were more substantial in the past, during this compressed time period with numerous deadlines and motions pending, it was not feasible to do more than the limited consultation - really no more than a ,"heads up" - with regard to motions' Vermont agrees with this assessment and does not intend by this Motion to make any assertion regarding the good faith of any party. Rather, the problem appears to lie with the schedule itself which, while recognizing the short time available for filing a motion in light of the 10 day rule in § 2.3 23 (a), did not contemplate the impact of the schedule at this stage of the proceeding on the consultation obligation.
Pursuant to 10 C.F.R. §§ 2.3 19(g), (k) and (r) and 2.332(b) the Board possesses the inherent authority to make modifications to the Scheduling Order. Vermont proposes that the Board modify Paragraph 8 of the Scheduling Order by adding the following:
A "sincere effort" to resolve the issues to be raised in a motion must include at least providing an outline of the points to be made in the motion and the basis for them. If any party believes that a meaningful, consultation with other parties on a proposed motion cannot occur within the. time available under this Paragraph, that party shall file with the Board.
a statement. to that effect and the time to file the motion will automatically be extended by 5 days to allow for adequate consultation. 2Failure to file such a request by any party shall constitute a certification by all the parties that adequate time was available for meaningful consultation and that such meaningful consultation was attempted.
Vermont believes this modification will allow the parties to comply with the letter and the spirit of the Scheduling Order and § 2.323(b).
Stf expressed the view that its duty to consult was only with NEC despite the fact that the Board's scheduling order required "s'incere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion" and that accordingly Staff was only notifying Vermont of a motion not seeking to consult with it.
2 The additional five days would not make an otherwise untimely motion timely.
3
I Both Entergy and NRC Staff expressed their opposition to this motion because they believed there was little point to address the problem at. this late date. The Staff in particular felt that Vermont should move to amend the regulations and not seek to have this Board exercise its authority to grant the parties additional time to consult. While the Staff may be correct in its view that ultimately this issue needs to be addressed by a regulation amendment, obviously that course would provide no useful benefit to this
.proceeding. Vermont is most concerned about this proceeding and its orderly resolution.
Vermont believes there are serious and important issues raised in this proceeding by all parties, many of which have potential broad impacts on other proceedings. A judicious and good faith use of the consultation procedure could help to narrow the issues to those where genuine and significant controversy exists'and assist the Board in better focusing on the importantissues. Therefore, we ask that the Board modify the Scheduling Order as proposed above in the hopes that the remaining motions practice in this proceeding will be more efficient and more effective.
Respectfully submitted, Sarah Hof Director or ublic Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 Anthony Z. Roisman National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 Filed: June 27, 2008 4
June 27, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT ) Docket No. 50-271-LR YANKEE LLC AND ENTERGY NUCLEAR ) ASLBP No. 06-849-03-LR OPERATIONS, INC. )
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the Vermont Department of Public Service Motion for Modification of the Scheduling Order to Facilitate Full Compliance with 10 C.F.R. § 2.323(b),
were served on the persons listed below by deposit-in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 27 th day of June, 2008.
- Administrative Judge *Office of the Secretary Alex S. Karlin, Esq., Chairman Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: 0-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington D.C, 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc. gov ask2@nrc.gov secygnrc.gov
- Administrative Judge *Office of Commission Dr. Richard E. Wardwell Appellate Adjudication Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmailgnrc.gov rewgnrc.gov Atomic Safety and Licensing Board
- Administrative Judge Mail Stop T-3 F23 William H. Reed US Nuclear Regulatory Commission 1819 Edgewood Lane Washington, DC 20555-0001 Charlottesville, VA. 22902 whrcvillelcembarqmail.com
- Lloyd B. Subin, Esq. *David R. Lewis, Esq.
- Mary C. Baty, Esq. *Matias F. Travieso-Diaz
- Jessica A. Bielecki *Blake J. Nelson
- Susan Uttal Pillsbury, Winthrop, Shaw, Pittman, LLP.
Office of the General Counsel 2300 N Street, N.W.
Mail Stop 0- 15 D21 Washington, DC 20037-1128 U.S. Nuclear Regulatory Commission david.lewisgpillsburylaw.com Washington, DC 20555-0001 matias.travieso-diazgpillsburylaw.com lbs3@nrc.gov blake.nelsongpillsburylaw.com mcb I @nrc.gov jessica.bieleckignrc. gov *Marcia Carpenter, Esq.
susan.uttal(.nrc.gov Atomic Safety and Licensing Board Panel Mail Stop T-3 F23
- Anthony Z. Roisman, Esq. US Nuclear Regulatory Commission National Legal Scholars Law Firm Washington, DC 20555-0001 84 East Thetford Road mxc7@nrc.gov Lyme, NH 03768 aroisman(nationallegalscholars.com *.LaurenBregman, Law Clerk Atomic Safety and Licensing Board
- Ronald A. Shems, Esq. US Nuclear Regulatory Commission
- Karen Tyler, Esq. Mail Stop: T-3 F23
- Andy Raubvogel Washington, DC 20555-0001 Shems, Dunkiel, Kassel & Saunders, PLLC. Lauren.Bregmannrc. gov 91 College Street Burlington, VT 05401. *MatthewBrock rshemsgsdkslaw.com Assistant Attorney General ktylergsdkslaw.com Office of the Attorney General araubvogelgskdslaw.com One Ashburton Place - 1 8 th Floor Boston, MA 02108 Diane Curran Matthew.Brockgstate.ma.us Harmon, Curran, Spielberg & Eisenberg 1726 M. Street NW - Suite 600 *Peter L. Roth, Esq.
Washington, D.C.<20036 Office of the New Hampshire Attorney
- dcurran(d),harmoncurran. corn General 33 Capitol Street Concord, NH 03301 Peter.rothgdoj.nh.gov Respectfully submitted, Sarah Ho Vermont of Public Service