ML20065K402

Answer to State of VT Motion for Leave.* Unless State of VT Substantially Suppls,In Timely Manner,Prior Responses,Then Staff Citation to Stonewalling by Intervenors in Shoreham Proceeding Would Seem Well on Point.W/Certificate of Svc

ML20065K402
Person / Time
Site:	Vermont Yankee
Issue date:	10/29/1990
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-10999 OLA-4, NUDOCS 9011270193
Download: ML20065K402 (4)

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USNPC Filedt October 29,1990.

UNITED STATES OF AMERICA .

' 90 R)V -1 P 2 :30 NUCLEAR REGULATORY COMMISSION Orrn or SLCRUARY-before the 00LK[yiHG A 'i! RVIEl.

BRANCH ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) ' Dockai No. 50-271-OLA-4 VERMONT YANKEE NUCLEAR- ) (Construction Period POWER CORPORATION ) Recapture)

)

(Vermont Yankee Nuclear )

Power Station) )_

)

ANSWER OF YERMONT YANKEE NUCLEAR POWER CORPORATION TO STATE OF VERMONT'S MOTION FOR LEAVE Under date of October 18,1990, SOY filed a p;eading styled as " State of Vermont Motion for Leave to File Reply to NRC Staff's Response to Vermont Yankee's Motion to Compel" (hereinafter " MOTION FOR LEAVE").

The question raised therein, i.e., of whether the Board wishes to entertain further pleadings on the issues raised in Vermont Yankee's September 12, 1990 Motion to Compel is, of course, one addressed to the discretion of the Board. Vern ,a Yankee observes, however, that several of the rationales-proffeved by SO* ' in the MOTION FOR LEAVE are erroneous. .

I.

SOV complains that the Staff's response to Vermont Yankee's Motion to Compel" internally [was) also a reply to" SOV's response. Motion TO COMPEL at 1. This may be true, but it constitutes no ground for allowing SOY a further reply. It is clear from the structure of the Regulations that one purpose of allowing the NRC Staff more time than other parties to respond .

to motions and other filings is precisely so that the Staff may take into account the prior filings of those other parties.

II.

SOY then attacks the Staff's citations, claiming that they apply to contentions rather than bases. ' MOTION FOR LEAVE at 2. This argument by SOY is misleading at best. SOV does not therein deny the line of authority in NRC jurisprudence to the effect that, when a party submits a very general 9011a7o193 901op9

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contention for litigation supposedly supported by more specific bases (as SOY has here) then the issues open for litigation are limited by the specific  ;

allegations contained in the admitted basis or bases. Illinois Power Company ,

(Clinton Power Station, Unit 1), LBP-81-61,14 NRC 1735,1737 (1981):

I "Where a contention is made up of a general s'ilegation which,  !

standing alone, would not be admissible under 10_ C.F.R. _{

$ 2.714(b), plus one or more alleged bases for the contention set forth with reasonable specificity,- the scope of the matters in-  !'

controversy raised by such contention are limited by the specific alleged basis or bases set forth in the contention." i See also Philadelphia Electric Company'(Limerick Generating Station, Units f I and 2), CLI-85-15,22 NRC 184,185-86 (1985); Public Service Company -t of New Nampshire (Seabrook Station, Units ! and 2), ALAB-924,30 NRC j 331, 347 n. 43 (1989); l'ermont Yankee Nuclear Power Corporation (Vermont l Yankee Nuclear Power Station), LBP-88-26,28 NRC 440,446-47 (1988). '

The cases cited by the Staff are entirely in accord with this line of authority i

and thus are not, as SOV apparently seeks to imply, off point.1 III.

Finally, SOV argues that Vermont Yankee has not been denied its right j

"to effectively inquire above (SOV's] case . . . since [SOV) has already replied  ;

t.dequately to 262 interrogatories and document requests" MOTION FOR ,

LEAVE at 2. SOV's use of the word " adequately" in the above argurrent 4  ;

open to question, however, given that SOV; (1) has refused altogether to respond to 47 of Vermont Yankee's discovery requests, plus parts of others;

! (11) has declined to answer another 55 on the ground that it is still preparing >

lts case; and (iii) has responded to still another 34 requests by saying that it ,

did not know the answer. Unless SOV substantially supplements, in a timely. .

)

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2One might also observe that, wholly apart from prior decisions recogniz- '

ing the point, SOV's argument suffers a fatal logical flaw. If, as SOV apparently con; ends, the topical limits of " bases" are to be ignored once the contention is admitted, then it would be a meaningless act for a Board to 6ciare one or more of the " bases" excludable, as happened here. Likewise, were SOV correct in its implicit agument, that portion of a' general con-tention beyond the scope of an admitted basis would in effect be admitted' for litigation even though never supported by an admitted " basis." Rather, J l SOV apparently contends that one narrow " basis" may serve as the toehold by 3 I which a topically broader and different " contention" is admitted, a concept ,

that makes a mockery of the contention rules. l l

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manner, its prior responses, then the Staff's citation to the stonev/alling by- l the intervenors in the Shoreham proceeding would seem well on pointi j

,R6sp6ctfully submitted,  !

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. K. Gad tu - ."' -

Jeffrey P. Trout -

Ropes & Gray . ,

One International Place Boston, Massachusetts 02110 . l Telephone: 617-951-7520 Dated: October 29,1990.

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Certificate of ScalediHG A M PVICI:

BRAHC51 l I, R. K. Gad III, hereby certify that on October 29,1990, I made service . '

i of the within Answer of Vermont Yankee Nuclear Power Corporation to State of Vermont's Motion to Compel, by mailing copies thereof, first class mail, l postage prepaid, as follows: J Robert M. Lazo, Esquire Jerry R. Kline  !

Chairman Administrative Judge .

i 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. St n - Adjudicatory File ..

1 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. j Anthony Z. Rolsman, Esquire Ann P. Hodadon, Esquire .

Cohen, Milstein & Hausfeld - John T. Hull, Esquare Suite 600 U.S.N.R.C. t 1401 New York Avenue, N.W. Washington, D.C. 20555  ;

Washington, D.C. 20005 I James Volz, Esquire Vermont Department of Public Service -

120 State Street s '

Montpelier, Vermont 05602 '

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p 3 R. K. Gad III  !

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