ML20056B198
| ML20056B198 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 08/02/1990 |
| From: | Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#390-10704 OLA-4, NUDOCS 9008150184 | |
| Download: ML20056B198 (14) | |
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UNITED STATES OF A51 ERICA
'90 AUG -7 A8 :21 ',
1 NUCLEAR REGULATORY COhlh11SSION (F F ICE Of SECRt1ARY v0CK(ling 1, SliiVICf before the ftRANCH ATOhtlC SAFETY AND LICENSING BOARD i
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In the Matter of
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Docket No. 50-271-OLA-4 VERMONT YANK 2E NUCLEAR )
(Construction Period POWER CORPORATION
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Recapture)
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(Vermont Yankee Nuclear
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Power Station)
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)
MOTION TO COhlPEL ANSWERS TO INTERROGATORIES (VYNPC Set No. 4)
Pursuant to 10 C.F.R. I 2.740(f), the Licensee, Vermont Yankee Nuclear Power Corporation (" Vermont Yankee"), moves that the Doard enter an order compelling the intervenor State of Vermont ("SOV") to give proper answers to those of its " Interrogatories Propounded by Vermont Yankee Nuclear Power Corporation to the State of Vermont (Set No. 4)" as are set forth herein. The interrosatories were served by mail on June 19,1990; the answers were served by mail on July 18, 1990.
I.
Introduction - Applicable Legal Principles i
The Licensee relles upon and respectfully refers the Board to he dis-cussion of applicable legal principles contained in its three prior Motions to Compel filed under dates of April 24,1990 May 7,1990, and June 1,1990, and its " Reply to SOV's Answer in Opposition to [ Licensee's First) Motion to
. Compel,* filed under date of May 17, 1990, in addition, Licensee specifically relies upon this Board's holdit.g that "where the State... acknowledges that its answer reflects the incomplete status of case preparation on the point in question " then SOV is required to supplement its answer in accordance with a schedule which the Board will establish, or else find its case limited to its prior response.1 Pursuant to that
'Afemorandum and Order (bfotion to Compel Answers to interrogate' es.
Set No. 2) at 4,11, and 35 (July 20,1990).
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ruling, Licensee has omitted from this motion specific requests regarding most of the interrogatories where SOY recites that " Vermont's development of case material in this area is incomplete. Vermont provides the following response to the extent that its case is developed in this area." However, lest there be any ambiguity that supplementation of those answers wili be required, Vermont Yankee hereby moves that supplementation of SOV's responses to interrogatories 3, 4,10(b),11,12,15,16,19, 25 and 29 be required pursuant to the schedule to be established by the Board.
- 11. Specific Interrogatory Answers e
Interrogatory No, I interrogatory:
Please list every
- policy, procedure, guidelines, method, practice or standard which accomplishes, controls, or relates to ' maintenance' as it is defined in NRC Policy Statement on Maintenance of Nuclear Power Plants (53 FR 9430)"
for VYNPS that SOY contends is not adequate for the extended term. For each item so listed, please:
a.
State each and every fact on which your assertion of inadequacy is
- based, b.
Describe all the evidence possessed by or known to SOV which you contend establishes each such fact; and r
c.
For each assertion, either provide the technical qualifications (edu-cation, employment history, licenses and certificates, experience, or other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the assertion cr state that SOY does not rely upon the expertise of any person for the assertion.
Rest'onse:
Vermont objects to this interrogatory on the basis that it is substan-tially the same as Vermont Yankee Interrogatory (Set No.1) No.14 and Vermont Yankee Interrogatory (Set No. 2) No. 6. Such repetitive reitera-tion of interrogatories constitutes harassment, represents unduly burdensome discovery, and thus is improper, r
Argument:
SOV's assertion that this interrogatory is "substantially the same" as
(
VYNPC (Set No.1) Interrogatory 14 and YYNPC (Set No. 2) Interrogatory 6 is simply wrong. In both of those prior interrogatories, Vermont Yankee essentially asked what changes should be made to its maintenance and 2
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surveillance programs.8 SOV responded to both interrogatories by saying that it did not know what changes should be made, and further that it had no obligation to suggest changes even if it hac thought of some. The Board agreed with SOY, denying Licensee's motions to compel with respect to both interrogatories.'
in the present interrogatory, however, Vermont Yankee takes a very different tack. Rather than asking SOY what changes should t;e made.
Licensee asks SOY to identify every part of the present program that it deems 1
to be inadequate, and to state the reasons and evidence for each claim of inadequacy. The question, moreover, is framed in terms of SOV's own definition of the maintenance program, which definition SOY did not provide until it gave its answers to VYNPC (Set No. 2) Interrogatory 1.
I The question is thus not only very different from those cited by SOV; it also is of critical importance. Vermont Yankee is entitled to know what parts of its maintenance program SOY alleges are defective, and why. Unless _
.l Vermont Yankee enn get a full and responsive answer to that question, it is unfair for Licensee to be asked to defend against SOV's allegations. The Board should reject SOV's continued attempts to engage in trial by ambush, and compel SOY to answer the question, laterrogatory No. 2 Interrogatory:
Please list every ' policy, procedure, guideline, method, practice or standard which accomphshes, controls, or relates to surveillance" for VYNPS that SOY i
contends is not adequate for the extended term. Please also, for each item so listed, please:
a.
State each and every fact on which your assertion of inadequacy is based.
b.
Describe all the evidence possessed by or known to SOY which you contend established each such fact; and c.
For each assertion, either provide the technical qualifications (edu-cation, employment history, licenses and certificates, experience, or 1nterrogatory 14 focused on changes alleged needed to prevent certain 8
occurrences documented in specific LERs, while Interrogatory 6 expanded the scope to encompass all the objections raised by SOY in its Contention Vll.
- See Atemorandum and Order (hfolion to Ccmpel Answers to Inter-rogatories, Set No. I) at 17-18 (May 24,1990), and Memorandum and Order (hiotion to Compel Answers to interrogatorie.t. Set No. D at 9 (July 20, l990).
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4 other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the assertion or state that SOY does not rely upon the expertise of any person for the assertion.
Response
Vermont objects to this interrogatory on the basis that it is substan-tially the same as Vermont Yankee Interrogatory (Set No. 1) No.14 and Vermont Yankee Interrogatory (Set No. 2) No. 6. Such repetitive reitera-tion of interrogatories constitutes harassment, represents unduly burdensome discovery, and thus is improper.
Argument:
This interrogatory is similar to the preceding one, this time taking SOV's definition of the surveillance program and asking what parts SOY alleges are flawed, and why. SOV's objection, which is the same as it made with respect to interrogatory 1, should be rejected for the same reasons as Licensee discussed concerning that interrogatory.
Interrogatory No. 43 Interrogatory:
Please describe in detail all of the
- future inadequacies in the maintenance program" that SOY asserts, in sub-paragraph "1" of its Contention 7, would exist at YYNPS during the extended period, assuming any change in the maintenance program that SOV contends should be made. Please describe in detail each and every reason that SOY asserts that each " future inadequacy" will exist, and, for each such reason, please:
Please describe each change in the maintenance program assumed for a.
purpose of this interrogatory.
b.
State each and every fact on which your reason is based.
c.
Describe all the evidence in SOV's possession or of which SON has knowledge thtt SOY contends establishes each such fact.
d.
For each reason, either provide the technical qualification (education, employment history, licenses and certificates, experience, or other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the reason or state that SOY does not rely upon the expertise of any person for the reason.
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Response
Vermont objects to this interrogatory to the extent there is an implication that Yermont bears the burden of identifying changes which could (were it i
possible) provide the reasonable assurance of maintenance program effec-tiveness upon which the licensee relies in the extended period. See sup.
piemental response to Vermont Yankee Interrogatory (Set No.1) No. 6.
Notwithstanding and without waiving this objection, Vermont states that the Answer to this interrogatory is the same as for No. Il above.
Argument:
SOV's objection is ill-founded, for the simple reason that it already has identified certain changes which it contends should be made. For example, SOY has argued that Vermont Yankee's maintenance program needs more
" procedural formality"; SOY has alleged that the program is inadequate because it supposedly does not incorporate various " industry initiatives";
elsewhere in this very set of answers (l.c.. in response to Interrogatory 3),
SOY
.s contended that Vermont Yankee should adopt a " checklist" approach t~
.naintenance testing, slaving urged these changes, SOY cannot now refuse to take a position as to whether they would resolve the inadequacies which it has alleged. The Iloard and the parties are entitled to know whether SOY believes that its proposed changes are enough. Otherwise, after exhaustively litigating the relative merits of those changes versus Licensee's present practice, the Board, Staff, and Licensee may find themselves sand-bagged by SOY assertions that neither alternative is adequate. The Board should compel SOY r;ow to state clearly its position.
Interrogatory No,14:
Interrogatory:
Please describe in detail what SOY asserts, in its answer to Licensee's (Set No. 2) Interrogatory No.141, to be the " current licensing bases" of the VYNPS containment. Please also identify every fact and document that SOY contends supports your answer.
Response
Vermont's development of case material in this area is incomplete.
Vermont provides the following response to the extent that its case is developed in this area.
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Interrogatory No.141 requested a definition of " adequacy of the containment" as the term is used in subpart i of Contention Vlli. Vermont responded that:
Adequacy of containment' refers to the ability of the contain-ment to meet all of its current licensing bases.'
Vermont does not know all of the current licensing bases for the Vermont Yankee containment, but acknowledges the licensee's response to Vermont's interrogatory (Set No.1) No. 6, which refers to the Engineering Design Basis Manual (which Vermont has copied). As of this date, the Engineering Design Basis Manual has not been reviewed to determine the containment design basis.
Vermont also acknowledges the licensee's response to Vermont's Interrogatories (Set No.2) Nos. 94 and 95. Vermont disagrees with this response. The current licensing basis for the drywell and torus is identified in General Electric specifications 22All82 Rev. 1 " Protective Coatings -
Special," and 21A5837, Rev. 3. Drywell and Suppression Chamber Con-tainment Vessels." The basis is a 7.5 mil thickness coatir,(1.5 mil primer,6 mil finish) to protect surfaces such as the inside of the drywell where it is subject to high level radioactivity, decontamination or continuous emersion in water. This represents the extent to date of Vermont's determination of the containment current licensing basis.
Argument:
SOY states that its ' development of case material in this area is incomplete." As discussed in Section I supra, Vermont Yankee has not individually moved to compel with respect to most such answers, relying instead on the Board's injunction in its Memorandum and Order of July 20, 1990 that SOY supplement its response by a date certain.
Nonetheless, Vermont Yankee respectfully submits that this case is different. SOY claims that it cannot answer further at this time because "[als of this date [i.e., July 18,1990), the Engineering Design Basis Manual has not been reviewed to determine the containment design basis." The fact, however, is that the EDBM was given to SOY on June 8,1990. In other words, SOY claims ignorance because it has not looked at a document which it has had in its possession for more than five weeks. The case law of this agency seems to suggest that this is a refusal to meet even minimal discovery l
obligations that should not be countenanced.' SOY should be compelled to I
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'See. e.g., Pennsyhania Power and Light Company and Allegheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Unit I and 2), ALAB-6: 3,12 NRC 317,334 and n.26 (1980). l i
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respond immediately and fully to this interrogatory, upon pain of having the relevant allegations struck from its contention.
Interrogatory No. 27 Interrogatory:
Please describe in detail what methodology SOV contends is to be used to I
determine "the measure of ' reasonable assurance,'" as that term is used by SOY in its Contention 7. Please also state each and every reason for your answer, and, for each such reason please also:
a.
State each and every fact on which your reason is based.
b, Describe all the evidence, and identify every document, in SOV's possession or of which SOY has knowledge that SOY contends establishes each such fact.
c.
For each reason, either provide the technical qualifications (education, employment history, licenses and certificates, experience, or other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOY relies for the reason or i
state that SOV does not rely upon the expertise of any person for the reason.
Response
Vermont is uncertain what information the licensee seeks through this interrogatory Vermont has stated the " measure or standard for reasonable assurance" in supplemental response to Vermont Yankee Interrogatory (Set No.1) No. 2. On the one hand, the ' methodology" to determine the men-sure of reasonable assurance is by the rules established in 10 C.F.R. Part 2.
On the other hand, the " methodology" is by evaluating past maintenance history as the only indicator of future maintenance performance. Licensee's requests for reasons, facts, evidence and expertise are not applicable.
Argument:
To date, the only regulatory standard that SOY has identified as imposing licensing requirements on a maintenance program is one measured in units of " reasonable assurance." This is a more difficult standard to deal with than something measure in more deterministic units, and SOY has thus far resisted all attempts to force it to divulge its contention on how such a subjective standard is implemented. If the Board believes this to be a legitimate inquiry, as we submit it should, then the question ought to be
- answered, t
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i Interrogatory No,28 i
interrogatory:
Does SOY agree that the proceduralization advocated in its Contention 7 would or could have the effect of suppressing the application of initiative, i
judgment, and discretion by Licensee's employees involved in maintenance and surveillance activities, and thereby have the' incremental tendency to render maintenance and surveillance less rather than more effective? If your 4
answer is anything other than an unqualified affirmative, then please state each and every reason for your answer, and, for each such reason, please also:
a.
State each and every fact on which your reason is based, b.
Describe all the evidence, and identify every document, in SOV's possession or of which SOY has knowledge that SOY contends estab-lishes each such fact.
For each reason, either provide the technical qualifications (education, c.
employment history, licenses and certificates, experience, or other information that SOY contends establishes the qualifications of the person), of any person on whose expertise SOV relies for the reason or state that SOY does not rely upon the expertise of any person, for the reason.
4 Response; i
Vermont ' objects to this interrogatory on the basis that it is substantially the same as Vermont Yankee Interrogatory (Set No.1) No. 7. Such repetitive reiteration-of interrogatories constitutes harassment, represents unduly burdensome discovery, and thus is improper.
Argument:
It is true that VYNPC (Set No.1) Interrogatory 7 did address the question of the costs of proceduralization. When Vermont Yankee moved to compel with respect to SOV's response to that question, however, the Board i
denied the motion, holding that "[t]he State appears to have answered the precise question asked.... The interrogatory did not ask whether SOY intends to contest this point (i.e., that proceduralization could be counter-productive), or what SOY intended to rely on to defend a purported balance, only whether it conceded that certain costs would result from proceduraliza-tion *S
- Memorandum and Order (Motion to Compel Answers to interrogatories.
Set No.1) at 14 (May 24,1990)(emphasis added)..
1 Licensee has now asked the questions which this Board has held it did not ask previously, and it is entitled to answers. Before the Board and parties spend further time litigating SOV's demand for more proceduralization, Vermont Yankee is entitled to know what evidence SOY possesses as to the disadvantages and costs of such a change.
Interrogatory No. 30 1
Interrogatory:
Does SOY contend that any document prepared by INPO contains any information that supports any of the assertions made by SOV in its admitted contention in this proceeding? If your answer is anything other than an unqualified negative, then please:
identify (by date, title and INPO publication number) each INPO a.
document that SOV contends contains information relevant to SOV's contention; b.
for each document identified, describe in detail each item of infor-mation contained therein that SOV contends suoports the assertions made in SOV's admitted contention; c.
for each such item, state the reasons why SOY contends that it sup-ports the assertions made in SOV's admitted contention; d.
for each such item that SOY contends represents a standard against which the VYNPS maintenance program should be measured, state whether SOY contends that the standard is the minimum requirement for NRC licensing, and, if so, all of the reasons why SOY so contends; and describe in detail SOV's basis for alleging that the information described e.
is in fact contained in the identified INPO document (s), if SOV's basis is review of the document or information provided by any person who claims to have reviewed the document, then in each such instance provide:
1.
Identify the person who reviewed the document; 11.
state the date on which the person obtained access to the document; iii.
state the capacity in which the person obtained thedocument; iv.
state the circumstances under which the person obtained the document; and describe alllimitations applicable to that person's use of the v.
document.
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Response
Yes.
a.
Vermont contends that all of the INPO documents requested in Vermont Document Production Request (Set No. 2), as well as those INPO documents referred to in the licensee's response to Vermont Inter-rogatories (Set No. 2) Nos. 49, 50, 51, 52, 53, 54 and $5, contain information relevant to Vermont's contention, b.
Vermont cannot answer this sub-part until after it has the opportunity to review the INPO documents. (See Motion to Compel Answers to Document Production Requests (Vermont Set No. 2).)
c.
Vermont contends each document supports Contention VII based either on its title or the description provided in the listed Interrogatory Responses, in addition Vermont so contends based on the experience with these documents of its technical consultant. (See Affidavit of }{.
Shannon Phillips dated July 2,1990, filed in conjunction with Motion to Compel Answers to Document Production Requests (Vermont Set No.
2).)
d.
The documents requested in Vermont Document Prode: tion Request (Set No. 2) are similar in nature to NUREGs, NRC Regulatory Guides and EPRI reports. As such, these INPO documents do not represent licensing minimum performance. They are rather, the most insightful thinking of the best informed people in the industry..(See Motion to Compel Answers to Document Production Requests (Vermont Set No,
- 2) at pages 16-17.) The document identified in response to Vermont Interrogatory (Set No. 2) No. 55 is not a licensing requirtment but is yet additional evidence of the licensee's maintenance program inade-quacies. The INPO documents referred to in responses to Vermont Interrogatories (Set No. 2) Nos. 49, 50, 51, $2, 53 and 54, do not I
represent licensing requirements.
i e.
See the response to sub-part b above.
Argument:
llaving admitted, in response to part "c" of the interrogatory, that its assertions are at least partially based on a review of the documents by its consultant, SOY should answer in full the queries posed in part "e.
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'Given that SOV seems determined to impose, as a condition of this license amendment, the observations contained in these documents, Licen-see needs this information in order to be able, inter alia, to cross examine SOV's witness as to his recall.
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L Interrogatory No. 31 interrogatory:
Doet SOY intend to rely upon any document prepared by INPO in support of its admitted contention in this proceeding? If your answer is anything other than an unqualified negative, then please:
identify (by date, title and INPO publication number) each INPO a.
document on which SOY intends to rely:
b.
for each document identified, describe in detail each item of infor-mation contained therein on which SOY intends to rely; for each'such item that SOY contends represents a standard against c.
which the VYNPS maintenance program should be measured, state whether SOY contends that the standard is the minimum requirement for NRC licensing, and,if so, all of the reason why SOV so contends; and d.
for each such document:
i, identify the person on who's review of the document SOV relies; 11.
state the date on which the person obtained access to the document; lii.
state the capacity in which the person obtained the document; iv, state the circumstances under which the person obtained the document; and describe all limitations applicable to that person's use of the v.
document.
Response
See the response to No. 30.
Argument:
For the same reasons as stated with respect to Interrogatory 30(e) supra, SOY should be compelled to respond to part "d" of this interrogatory.
Interrogatory No. 32 Interrogatory:
For each " weakness of applicant's maintenance program [that SOV contends}
continued to be present at the NRC inspection (IR 89-80), despite previous
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identification by applicant's management consultant, LRS Incorporated,"
please:
describe in as much detail as is available to SOY the nature of the l
a.
asserted " weakness b.
provide the page of IR 89-80 at which the " weakness" is identified; identify the LRS report and provida the page thereof at which the c.
" weakness" is identified; and d.
describe each and every other fact or document that SOY contends i
supports the assertions in sub-part "J." of Contention VII, Response.'
a,b c. The following are " weakness (es) of applicant's maintenance program
[that SOY contends) continued to be present at the NRC inspection (IR 8980),
despite previous identification by applicant's management consultant, LRS i
incorporated:"
1.
Vermont Yankee plant management should review industry practice.
(LRS Report w3-88, p.10; and IR 89-80. Appendix 3. Weakness 2) 2.
The backlog of maintenance requests (MR's) is large and there is no visible push to rectify the situation. (LRS Report 13-88, p. 7; and IR 89-80, Appendix 3. Weakness 3) 3.
Better computerization of the MR system would be beneficial. (LRS Report #3-88, p. 7; and IR 8980, Appendix 3, Weakness 6) 4.
The maintenance program lacks much of the formality found at many other plants. (LRS Report =1-89, p. 6; and IR 89-80, Appendix 3, Weakness 1) d.
The primary fact which co.,hrms the statement of sub-part j of Contention Vilis the NRC Maintenance Team Report. IR 89-80. Other facts h?ve not been assessed and organized in the form and manner requested a this stage of Vermont's case development.
A rgument.'
Apparently, SOY possesses some or all of the "[o]ther facts" called for in sub-part "d" of the interrogatory, and merely claims that they "have not been assessed and organized in the form and manner requested." This is simply not an adequate excuse for SOY to fail to disclose all the facts presently available to it. As the Appeal Board noted in Pennsylvania Power and Light Company and Allegheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units I and 2), ALAB-613,12 NRC 317,334 (1980),
a party is required to "revealinformation in its possession or control (although l-1' L
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SOY should be required to respond fully to interrogatory 32(d).
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y By its attorneys. -
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R. K. Gad til,'
Jeffrey P. Tro'ut l
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Ropes & Gray i
- H-One International Place Boston,' Massachusetts 02110 Telephone
- 617-951-7520 s'
Dated: August 2,1990, i
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10 t'iihb I k.h U5hkC g gg.7 AB '21 VYN lu ASLAB. MAIL RKGAB.VY inICE DF RCRClARY U0CKLMUASl"#I BRANCH Certificate of Senice I, R. K. Gad Ill, hereby certify that on August 2,1990, I made service of the within motion, by mailing copies thereof, first class mail, postage prepaid, as follows:
Robert M. Lazo, Esquire Jerry R. Kline Chairman Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S.N.R.C.
U.S.N.R.C.
Washington, D.C. 20555 Washington, D.C. 20555 Frederick J. Shon Adjudicatory File Administrative judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel U.S.N.R.C.
U.S.N.R.C.
Washington, D.C. 20555 Washington, D.C. 20555 Anthony ? Roisman, Esquire Ann P. Ilodgdon, Esquire
~ Cohen, Mustein & llausfeld Patricia A. Jehle, Esquire 7
Suite 600 U.S.N.R C.
1401 New York Avenue. N.W.
Washington, D.C. 20555 Washington, D.C. 20005 Kurt Janson, Esquire Vermont Department of Public Service 120 State Street Montpelier, Vermont 05602
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