ML17212B151
| ML17212B151 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 07/31/2017 |
| From: | Shadis R New England Coalition |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-271-LT-2, License Transfer, RAS 53940 | |
| Download: ML17212B151 (16) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING OFFICER In the Matter of ENTERGY NUCLEAR VERMONT YANKEE, LLC AND ENTERGY Docket No. 50-271-LT-2 NUCLEAR OPERATIONS, INC; CONSIDERATION OF APPROVAL July31, 2017 OF TRANSFER OF LICENSE AND CONFORMING AMENDMENT (Vermont Yankee Nuclear Power Station)
NEW ENGLAND COALITIONS REPLY TO APPLICANTS ANSWER OPPOSING NEW ENGLAND COALITIONS REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE Raymond Shadis Pro se Representative New England Coalition Post Office Box 76 Edgecomb, Maine 04556 Shadis@prexar.com
NEC JULY 31, 2017 - 2 NEW ENGLAND COALITIONS REPLY TO APPLICANTS ANSWER OPPOSING NEW ENGLAND COALITIONS REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE I. INTRODUCTION Now comes petitioner, New England Coalition (NEC), to Reply to Entergy Nuclear Operations, Inc. ("ENO"), Entergy Nuclear Vermont Yankee, LLC ("ENVY") (to be known as "NorthStar Vermont Yankee, LLC" or "NorthStar VY"), and NorthStar Nuclear Decommissioning Company, LLC ("NorthStar NDC") ( taken together, the Applicant)
Answer Opposing New England Coalitions Request a Hearing and Petition for Leave to Intervene in the above captioned matter.
II. DISCUSSION OF NECS PROPOSED CONTENTIONS AND SUPPORTING ARGUMENTS AS ANSWERED BY THE APPLICANT The applicants answers are arranged as A through J below. Each of the applicants answers is prefixed with NECs summary reply, also in bold face, FAILS. FAILS indicates that the content of the answer does not adequately support its hypothesis, that the answer is simply incorrect, or does not rise to the level of requiring a finding by the presiding officer, and/or is either immaterial or irrelevant(or both). NECs brief explanation of how and why the answer fails, or citation to law or an administration decision supporting the fails conclusion follows each answer.
A. FAILS: Proposed Contention 1 is inadmissible because it fails to the meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii)-(vi) .
The applicant proposes standards of conformance to 10 C.F.R. § 2.309 that might be applicable to an attorney that is highly practiced at litigation before the NRC. NRC does not require the same high standards of conformance of pro se litigants such as NEC.
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NEC JULY 31, 2017 - 3 A review of NECs proposed contentions and supporting material will show that NEC has conformed with 10 C.F.R. § 2.309 in every meaningful material way. The proposed contentions are provided with basis and specificity sufficient to establish a dispute with the applicant and to place the applicant on notice as to what the issues are. The applicant mistakenly argues with the merits of the contentions. NRC reserves arguments on the merits for the hearing or at soonest the pre-hearing briefs.
Pro se intervenors are not held in NRC proceedings to a high degree of technical compliance with legal requirements and, accordingly, as long as parties are sufficiently put on notice as to what has to be defended against or opposed, specificity requirements will generally be considered satisfied.
However, that is not to suggest that a sound basis for each contention is not required to assure that the proposed issues are proper for adjudication.
Consolidated Edison Co. of N.Y. (Indian Point, Unit 2) and Power Authority of the State of N.Y. (Indian Point, Unit 3), LBP-83-5, 17 NRC 134, 136 (1983).
The purposes of the basis-for-contention requirement are: (1) to help assure that the hearing process is not improperly invoked, for example, to attack statutory requirements or regulations; (2) to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose; (3) to assure that the proposed issues are proper for adjudication in the particular proceeding - i.e.,
generalized views of what applicable policies ought to be are not proper for adjudication; (4) to assure that the contentions apply to the facility at bar; and (5) to assure that there has been sufficient foundation assigned for the contentions to warrant further explanation. General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 (1986), citing Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1),
ALAB-868, 25 NRC 912, 931-33 (1987); Sierra Club v. NRC, 862 F.2d 222, 227-28 (9th Cir. 1988).
Under 10 C.F.R. § 2.309(f)(1)(vi) (formerly 2.714(b)(2)(iii)), if an application contains disputed information or omits required information, the petitioner normally must specify the portions of the application that are in dispute or are incomplete. However, a petitioner need not refer to a particular portion of the licensee's application when the licensee neither 3
NEC JULY 31, 2017 - 4 identified, nor was obligated to identify, the disputed issue in its application.
Georgia Power Co., et al. (Vogtle Electric Generating Plant, Units 1 and 2),
CLI-93-16, 38 NRC 25, 41 (1993). See Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 381 (2005).
When a broad contention (though apparently admissible) has been admitted at an early stage in the proceeding, intervenors should be required to provide greater specificity and to particularize bases for the contention when the information required to do so has been developed. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-84-28, 20 NRC 129, 131 (1984).
An intervenor can establish a sufficient basis for a contention by referring to a source and drawing an assertion from that reference.
Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732, 1740 (1985), rev'd and remanded on other grounds, CLI-86-8, 23 NRC 241 (1986), citing Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548-49 (1980). See Public Service Co. of New Hampshire B. FAILS: Proposed Contention 1 raises issues that are neither within the scope of this proceeding nor material to the NRC staffs required findings.
As the petitioners have pointed out, the Notice of an Opportunity for a Hearing, the License Transfer Application, and the PSDAR all state that the purpose of the proposed license transfer is to decommission Vermont Yankee. Indeed, discussion of decommissioning dominates the Federal Register Notice. Therefore safety and environmental concerns relative to the licensees exercise of its license fall within the scope of this proceeding.
The subject matter of all contentions is limited to the scope of the proceeding delineated by the Commission in its hearing notice [emphasis added]and referral order delegating to the Licensing Board the authority to conduct the proceeding. See, Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 151 (2001); PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07-10, 66 NRC 1, 23 (2007).
The issue sought to be raised by a contention must fall within the scope of the issues specified in the Notice of Opportunity for Hearing. [Emphasis added] Arizona Public Service Co. (Palo Verde Nuclear Generating Station, 4
NEC JULY 31, 2017 - 5 Units 1, 2 and 3), LBP-91-19, 33 NRC 397, 41 1-12 (1991), appeal denied on other grounds, CLI-91-12, 34 NRC 149 (1991); Northeast Nuclear Energy Co. (Millstone Nuclear Power Stations, Units 2 and 3), LBP-01-10, 53 NRC 273, 339 (2001).
NRC must find that issuing the license will conform to its mandate for adequate protection of public health and safety and the environment. Contentions raising relevant issues of public health and safety and the environment, such as those contentions proffered by NEC, are therefore material to a decision in every respect.
The fact that an application for an operating license is uncontested does not mean that an operating license automatically issues. An operating license may not issue unless and until the NRC Staff makes the findings specified in 10 C.F.R. 50.57, including the ultimate finding that such issuance will not be inimical to the health and safety of the public.[Emphasis Added]
Washington Public Power Supply System (WPPSS Nuclear Project 2), ALAB-722, 17 NRC 546, 553 n.8 (1983), citing South Carolina Electric & Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895-96 (1981).
Non-utility applicants for operating licenses are required by the NRC's financial qualifications rule to demonstrate adequate financial qualifications before operating a facility. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point, Units 1 and 2), CLI-01-19, 54 NRC 109, 129 (2001). A board is not authorized to grant exemptions from this rule or to acquiesce in arguments that would result in the rule's circumvention. Gulf States Utilities Co. (River Bend Station, Unit 1), LBP-95-10, 41 NRC 460, 473 (1995).
Safety considerations are the heart of the financial qualifications rule.
The Board reasoned in this regard that insufficient funding can cause licensees to cut corners on operating or maintenance expenses. Moreover, the Commission has recognized that a license in financially straitened circumstances would be under more pressure to commit safety violations or take safety "shortcuts" than one in good financial shape. Gulf States Utilities Co. (River Bend Station, Unit 1), LBP-95-10, 41 NRC 460, 473 (1995);
GPU Nuclear, Inc., et. al. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 202-03 (2000).
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NEC JULY 31, 2017 - 6 Commission regulations recognize that underfunding can affect plant safety. Under 10 C.F.R. § 50.33(f)(2), applicants -- with the exception of electric utilities -- seeking to operate a facility must demonstrate that they possess or have reasonable assurance of obtaining the funds necessary to cover estimated operation costs for the period of the license. Behind the financial qualifications rule is a safety rationale. Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 48 (1994).
The NRCs regulations [at 10 C.F.R. 72.22(e)] require the license applicant to provide reasonable assurance that it can cover the estimated costs of operating and decommissioning the facility. This regulation requires that costs be estimated. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-27, 61 NRC 145, 155 (2004).
C. FAILS: The generic determinations codified in 10 C.F.R. §§ 2.1315 and 51.22(c)(21) clearly apply to the proposed license transfers and conforming license amendment.
The license application exceeds the bounds and circumstances considered in codifying the generic determinations of 10 C.F.R. §§ 2.1315 and 51.22(c)(21) by way of extraordinary departures from the norm as described in D-J below. Nothing prevents the NRC from casting a more appropriate determination at this point.
Section 189.a of the AEA requires that the NRC offer an opportunity for hearing on a license transfer. However, 10 C.F.R. §§ S 2.13 15 provides that [a]ny challenge to the administrative license amendment is limited to the question of whether the license amendment accurately reflects [Emphasis added]the approved transfer. NEC Contentions 1 and 2 clearly demonstrate that license amendment does not accurately reflect the reality of the proposed transfer with its ultimate effects on health, safety, and the environment.
D. FAILS: Contrary to NECs claim, the proposed action is not extraordinary so as to warrant different treatment under applicable NRC regulations.
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NEC JULY 31, 2017 - 7 The would-be licensee, NorthStar, is a first-time NRC license applicant and has no operating experience. It was founded in November 2016, had no reported revenue in 2016 and has no substantial tangible assets. It is a limited liability company.
Unlike Energy (Zion) Solutions in the Zion license transfer, NorthStar has no experience in decommissioning full-scale commercial nuclear reactors. The Applicant states that the purpose of its ownership and license would be to decommission Vermont Yankee using a novel proprietary approach that would complete a rapid decommissioning at a cost within the constraints of the current decommissioning trust fund.
Having no operating licensee experience excludes NorthStar and creates an exception from NRCs determination that decommissioning activities generally require no hearing opportunities because they mirror activities already performed and approved during the licensees operating history.
NorthStar has no licensee operating history on which to draw and has in fact never decommissioned a commercial nuclear power plant.
The NRC Staff has expressed concern that the use of holding company structures can lead to a diminution of the assets necessary for the safe operation and decommissioning of a licensees nuclear power plant.i In fact, as early as March 1993 the NRC Staff expressed concern that:
Current and potential organizational structures of many power reactor licensees and their corporate affiliates are complex and evolving. The staff believes that the public health and safety implications of such structures warrant further examination. A licensee subsidiary without assets other than the licensed reactor could renege on its decommissioning obligations if forced to shut down prematurely. Given that corporate law generally limits the liability of stockholders, the NRC may not have recourse to the assets of a parent company if its subsidiary defaults absent legally enforceable commitments by owners.
Case law with respect to bankruptcy proceedings is also ambiguous. Although bankruptcy courts have generally directed bankruptcy trustees to make justifiable, legally required expenditures to protect public health and safety, it is not clear that these expenditures will always have a high priority relative to other claims. The staff believes that it should evaluate possible ways to increase 7
NEC JULY 31, 2017 - 8 assurance of decommissioning funds availability. An increased degree of confidence may be appropriate to assure that the problems that the Office of Nuclear Material Safety and Safeguards has had with some of its licensees abandoning materials sites prior to cleanup will not be experienced for power reactor licensees. 1 Both the State of Vermont and NEC have in their respective petitions expressed concern that adequate assurance has not been provided that Vermont will not be left with a partially decommissioned and potentially orphaned site; without funds to see that decommissioning is completed in a manner that protects the public health and safety and the environment.
NRC has not defined a clear and effective path to dealing with bankruptcy during decommissioning, especially when the licensee is an LLC.; especially in this cased where the LLC has virtually no tangible assets even approaching in worth potential liabilities.
Based on the record, in Gulf States, the Board concluded that the question of whether bankruptcy courts will adequately fund nuclear facilities to ensure safety constitutes a disputed factual question for which summary disposition is inappropriate. Gulf States Utilities Co. (River Bend Station, Unit 1), LBP 10, 41 NRC 460, 471 (1995).
If a licensee files for bankruptcy, the Commission may step in to secure, to the maximum extent possible, assets to be used eventually to remediate a contaminated site, including intervening in bankruptcy proceedings and entering into settlement. Moab Mill Reclamation Trust (Atlas Mill Site), CLI-00-7, 51 NRC 216, 224 (2000).
The Commissions regulations regarding decommissioning funding are intended to minimize administrative effort and provide reasonable assurance that funds will be available to carry out decommissioning in a manner that protects public health and safety. Consolidated Edison Co., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Operations, Inc. (Indian Point, Units 1 & 2), CLI-01-19, 54 NRC 109, 143 (2001), (citing Final Rule: General Requirements for Decommissioning Nuclear Facilities, 53 Fed. Reg. 24,018, 24,030 (June 27, 1988)).
1 Issuance of An Advance Notice of Proposed Rulemaking on the Potential Impact on Safety of Power Reactor Licensee Ownership Arrangements, SECY-93-075, March 24, 1993, at page 1 8
NEC JULY 31, 2017 - 9 E. FAILS: NRC regulations do not deprive NEC of a meaningful hearing opportunity, particularly with respect to the proposed action.
NECs petition does not challenge NRC regulations; does not claim that regulations deprive NEC of a meaningful hearing opportunity. NEC does claim that, under NRCs Decommissioning Rule, it will not get another meaningful hearing opportunity until the Vermont Yankee License Termination Plan is accepted for review by NRC. By that time, as late as two years before license termination, if environmental, public health and safety damage is to be done it will likely have been done, rendering NECs issues moot and its participation in the hearing process pointless.
As it happens, the License Transfer application voids NRCs rationale for deferring a hearing opportunity until near the end of decommissioning. NRC has been depending on license experience in the various NRC-regulated plant activities that reoccur in decommissioning; NorthStar has never been a NRC licensee; does not have that experience.
While NEC is not challenging NRC regulation or policy, NEC hopes to direct NRCs attention and broad discretion to what is actually going on; the License Transfer Application proposes that NRC unleash a novice licensee without a relevant hearing and without proof of financial or applicable technical competence in a major federal action on a site with known but unanalyzed radiological contamination issues.
An agency cannot skirt NEPA or other statutory commands by essentially exempting a licensee from regulatory compliance, and then simply labelling its decision "mere oversight" rather than a major federal action. To do so is manifestly arbitrary and capricious. Citizens Awareness Network v. NRC, 59 F.3d 284, 293 (1st Cir. 1995).
F. FAILS: Proposed Contention 1 lacks adequate support and fails to raise a genuine dispute with the application on a material issue of fact or law.
Contention 1(excerpted): License Transfer Application (LTA) is incomplete because: (1) It does not include an environmental report (ER) that addresses the nature and extent of known radiological contamination at Vermont Yankee. (2) The proposed license transfers and accompanying 9
NEC JULY 31, 2017 - 10 administrative amendments should not be exempt from environmental review pursuant to the categorical exclusion codified in 10 C.F.R. § 51.22(c)(21), (3) proposed prompt decommissioning under new ownership is tantamount to a license amendment that involves environmental considerations, and, (4) NRC approval of the LTA would constitute a de facto unconditional approval of an untested method of managing decommissioning under new and unanalyzed circumstances.
The applicant supports the categorical exclusion in 10 C.F.R. § 51.22(c)(21), NEC does not, but rather cites good reasons why the categorical exclusion should not apply in this case. That is but one of many disputes on material issues of law. (see the foregoing discussion for additional obvious material disputes of fact and law.)
G.FAILS: Proposed Contention 2 is inadmissible because it fails to the meet the requirements of 10 C.F.R. § 2.309(f)(1)(v) and (vi)
Please see NECs Reply under A regarding Contention 1. The same defenses apply to Contention 2.
H. FAILS: NECs Claim That Applicants Have Relied Inappropriately on the 2014 Site Assessment Study to Estimate Decommission Costs Lacks Factual Support and Fails to Raise a Genuine Material Dispute.
To the contrary, NEC relied on the statement of NorthStar CEO, Scott State. The applicant says in a dismissive manner that the statement was made in a different venue for a different purpose as if no weight should be given to it in this proceeding. NEC presumes that the statement was truthful then and that it is truthful now.
The 2014 Site Assessment Study focused on plant records which were far from complete and did not reflect the nature and extent of contamination referred to by the States witnesses whose declarations were referenced by NEC. It is doubtful that a Site Assessment Study like the VY study would have discovered hidden contamination that boosted the cost of decommissioning Connecticut Yankee by more than $200 million.
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NEC JULY 31, 2017 - 11 The applicant claims that the 2014 Site Assessment Study provides adequate assurance of no insurmountable remediation costs due to surprise contamination. NEC disputes this in the supporting material for its contention. If NRC must make findings relative to the safety and environmental implications of the proposed new licensee actions, then the dispute is material.
I. FAILS: NECs Statements Regarding Fire-Related Radiological Emergencies Lack Factual Support and Fail to Raise a Genuine Material Dispute.
NEC provided factual support for the proposition that fire-related radiological releases could create unanticipated contamination and therefore unanticipated health and environmental costs in the form of a professional study the Vermont Yankee experience of contaminating a warehouse building by means of incinerating contaminated materials thus condemning the building in its entirety to relatively expensive disposal as mixed waste, all of which the applicant does not dispute. As a matter of public health and safety and environment protection, if NRC finds that fire-related contamination is plausible, it must also make findings regarding its potential effects on decommissioning. Therefore, NECs concerns are Material. The applicant does not believe NECs concerns are justified; NEC does. Thus NEC has raised a genuine material dispute.
J. FAILS: NECs Claims Regarding Expected Groundwater Contamination Lack Factual Support and Fail to Raise a Genuine Material Dispute.
NEC referenced the declarations of three State experts from the Vermont Agency for Natural Resources and the Vermont Department of Health; laying a factual basis for its claims that additional groundwater contamination discoveries could reasonably be expected and that they could reasonably be expected to boost site remediation costs to anticipated heights. Where there is a potential to negatively impact health, safety, and the environment, NRC must make findings.
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NEC JULY 31, 2017 - 12 Thus NECs claims are material. Where the applicant disagrees, NECs claims raise a genuine dispute.
III. WHETHER NEC HAS OR HAS NOT DEMONSTRATED STANDING TO INTERVENE AS A MATTER OF RIGHT OR AS A MATTER OF DISCRETION The Applicant claims that NEC has failed to demonstrate standing, primarily through failure to article a real, tangible, immediate and particularized harm, NECs declarants are accused of proposing vague and speculative harms.
However, all of NECs claims refer to a near future decommissioning that has not begun in earnest. Thus the claims of harm are by necessity not immediate and somewhat speculative. In the last 10 years or so, the applicants attorneys have opposed NEC in three Vermont Yankee proceedings and one Seabrook proceeding and so they have witnessed NRC granting standing to NEC based on declarations nearly identical to those NEC has offer in this proceeding. They have failed to point out why NRCs findings should be any different in this case.
Under certain circumstances, even if a current proceeding is separate from an earlier proceeding, the Commission may refuse to apply its rules of procedure in an overly formalistic manner by requiring that petitioners participating in the earlier proceeding must again identify their interests to participate in the current proceeding. Georgia Institute of Technology (Georgia Tech Research Reactor),
LBP-95-14, 42 NRC 5, 7 (1995) (citing Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2) LBP-91-33, 34 NRC 138 (1991).
Where the Licensing Board rests its finding of standing on a combination of (a) the petitioners proximity to the licensed facility, (b) petitioners everyday use of the area near the reactor, and (c) the decommissioning effects described in the Commissions 1988 GEIS, the Commission determined that it was reasonable for the Board to find that some, even if minor, public exposures can be anticipated and will be visited on petitioners members. Yankee Atomic Electric Co.
(Yankee Nuclear Power Station), CLI-96-7, 43 NRC 235, 248 (1996).
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NEC JULY 31, 2017 - 13 In a proceeding reviewing an extended power uprate application, an organization had representational standing where its representative members each lived within 15 miles of the plant. Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 553-54 (2004).
Moreover, persons who allege that they use an area whose recreational benefits may be diminished by a nuclear facility have been found to possess an adequate interest to allow intervention. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-73-10, 6 AEC 173 (1973).
Failure to produce an environmental impact statement in circumstances where one is required has been held to constitute injury - indeed, irreparable injury.
Palisades, supra, 10 NRC at 115-116. Persons residing within the close proximity to the locus of a proposed action constitute the very class which an impact statement is intended to benefit. Palisades, supra, 10 NRC at 116.
A petitioning organization has standing to request a hearing if any of the activities under the license may cause injury to its interests or to one of its members. Hydro Resources, Inc. (2929 Coors Rd., Suite 101, Albuquerque, NM 87120), LBP-98-9, 47 NRC 261 (1998); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 59-60 (2008).
IV. INTEMPERATE LANGUAGE The Applicant has accused NEC of several pejorative comments. NECs characterization of future hearing opportunities as worthless is one, says the applicant, also NEC accuses the Staff of taking a tunnel-vision approach to the LTA, plopping actions that are no longer bounded by [regulation] into the generically-excluded category, and lacking an inquiring attitude. Petition at 9, 10.
As the Commission has noted, the use of intemperate and disrespectful rhetoric . . . has no place in filings before the Commission or its Boards and will not be tolerated. Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), CLI-06-6, 63 NRC 161, 164 n. 18 (2006) (citations omitted). See also 10 C.F.R. § 2.314(a), (c).
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NEC JULY 31, 2017 - 14 NEC intended to be candid; not disrespectful. NEC apologizes for any confusion or discomfort to the NRC Staff and Commission that its choice of words may have caused.
NEC will earnest endeavor to keep needlessly rhetorical language out of future filings.
V. ADOPTING CONTENTIONS The Applicant correctly points out that contentions may only be adopted by a party to the proceeding; that is a petitioner who has had at least one contention accepted. Of course, NEC made its request to adopt the State of Vermonts Contention conditional on admission of one or more of its own contentions.
VI. DUTIES, POWERS AND DISCRETION The presiding officer has the duty to conduct a fair and impartial hearing, to maintain order and to take appropriate action to avoid delay.
Specific powers of the presiding officer are set forth in 10 C.F.R. § 2.319 (formerly § 2.718). While the Licensing Board has broad discretion as to the manner in which a hearing is conducted, any actions pursuant to that discretion must be supported by a record that indicates that such action was based on a consideration of discretionary factors. Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1 B and 2B),
ALAB-463, 7 NRC 341, 356 (1978).
A presiding officer has the authority to rule in the first instance on questions regarding the existence and scope of jurisdiction. Fansteel Inc. (Muskogee, Oklahoma Facility), LBP-03-13, 58 NRC 96, 100 (2003).
Exercising his or her general authority to simplify and clarify the issues, a presiding officer can recast what a petitioner sets out as two contentions into one. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8, 22 (1996). See also Louisiana Energy Services, L.P. (National Enrichment Facility), LBP-04-14, 60 NRC 40, 57 (2004).
VII. CONCLUSION All of the foregoing contentions fully meet the requirements of 10 C.F.R. § 2.309(f) and therefore should be admitted.
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NEC JULY 31, 2017 - 15 VIII. CERTIFICATION OF SERVICE The undersigned hereby certifies that all parties on the service list for the above captioned matter were provided service through the NRC (EIE) electronic filing system on July 31, 2017.
Respectfully submitted, Signed electronically, Raymond Shadis Pro Se for New England Coalition Post Office Box 76 Edgecomb, Maine 04556 207-380-5994 shadis@prexar.com 15
NEC JULY 31, 2017 - 16 16