ML15264A886

Initial Scheduling Order

ML15264A886
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	09/21/2015
From:	William Froehlich Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-271-LA-3, ASLBP 15-940-03-LA-BD01, RAS 28303
Download: ML15264A886 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

William J. Froehlich, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR VERMONT YANKEE, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.

(Vermont Yankee Nuclear Power Station)

Docket No. 50-271-LA-3

ASLBP No. 15-940-03-LA-BD01

September 21, 2015 INITIAL SCHEDULING ORDER On August 31, 2015, the Board granted the State of Vermont's hearing request to challenge a license amendment request ("LAR") filed by Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (together "Entergy") that would remove several license conditions related to Vermont Yankee Nuclear Power Station's decommissioning trust fund.

1 The Board admitted two contentions. Contention I concerns the necessity of a 30-day notice prior to use of the decommissioning trust fund for expenses other than ordinary administrative costs to operate the fund.

2 Contention V deals with the legal issue of whether the LAR is "in accordance with the provisions of paragraph (h) of [10 C.F.R. § 50.75]" when the licensee is already exempt from two provisions of 10 C.F.R. § 50.75(h)(1)(iv).

3 On September 10, 2015, this Board convened a prehearing conference call to discuss case management and scheduling. The parties agreed with the Board's proposal to address 1 LBP-15-24, 82 NRC __, __ (slip op. at 1) (Aug. 31, 2015).

2 Id. at __ (slip op. at 11, 27-30).

3 Id. at __ (slip op. at 44-45). Contention V before addressing Contention I, but did not agree on timing and the scope of the mandatory disclosures.

4 Entergy and the NRC Staff requested the Board bifurcate the mandatory disclosures (i.e., provide disclosures for Contention V first and for Contention I later, only if necessary) and delay briefing on Contention V until after briefing for the appeal of LBP-15-24 is complete.

5 Vermont is opposed to bifurcating the mandatory disclosures and requests briefing on Contention V begin immediately.

6 At the close of the teleconference, the Board directed the parties to submit a motion reflecting their areas of agreement and disagreement regarding mandatory disclosures.

7 The parties submitted a joint motion on September 17.

8 Based on the input received from the parties, the NRC Staff's projected schedule, our analysis of the regulations, and the nature and circumstances of this case, the Board issues this initial scheduling order. This order sets specific deadlines for the parties, in addition to the general deadlines and time frames applicable to Subpart L proceedings under 10 C.F.R. Part 2, which the Board has already determined will apply to Contention I and any subsequently filed proposed contentions.

9 A. Hearing Procedures The Board will resolve the two admitted contentions in a bifurcated manner. Contention V will be addressed first and will be decided based on legal briefs and oral argument. An initial decision on Contention V will be issued before the Board addresses Contention I.

4 Tr. at 86, 89-92.

5 Tr. at 95-96.

6 Tr. at 97-98.

7 Tr. at 100, 105.

8 Joint Motion on Mandatory Disclosures and Schedule (Sept. 17, 2015) [hereinafter "Joint Proposal"].

9 See Licensing Board Order Scheduling Conference Call and Establishing Hearing Procedures (Sept. 3, 2015) (unpublished). B. Mandatory Disclosures Under 10 C.F.R. § 2.336, the parties and the NRC Staff are required to make and continually update certain mandatory disclosures.

10 Additionally, the NRC Staff is required to produce and update a hearing file.

11 To expedite the disclosure process and ensure that parties have time to prepare for an evidentiary hearing, the Board declines to bifurcate the disclosures. Initial disclosures on all contentions by all parties and the NRC Staff would normally be due on September 30, 2015, 12 but in light of the briefing schedule for Contention V set forth in this order, the Board extends the deadline to Monday, November 2, 2015. Monthly updates are due on the first business day of every month beginning December 1, 2015. As suggested by the parties, 13 the Board adopts the following provisions regarding the scope of the mandatory disclosures: 1. If the identical relevant e-mail, including sender recipients and blind carbon-copy (bcc) recipients, exists in multiple locations, each party may produce only one copy of that e-mail. If the e-mail exists in both sender and recipient e-mail folders, the party may produce the sender's copy of the e-mail. If a chain or string of e-mails exists, the party need only produce the last e-mail in the chain or string, provided that it includes all of the previous e-mails and recipients (including all known bcc recipients) of the chain or string.

2. To the extent reasonably practicable, each party will provide electronic copies of documents in a word-searchable, PDF format.

3. A party need not identify or produce any document that already has been served on the other parties to this proceeding, including e-mails sent by one party to the other parties in this proceeding regarding this proceeding.

4. In connection with the NRC Staff's submittal of the hearing file, the NRC Staff will identify all documents available via the NRC's website or the NRC Agencywide Documents Access and Management System (ADAMS), as required by 10 C.F.R. §§ 2.336(b) and 2.1203. The parties shall not otherwise 10 The term "mandatory disclosures" includes the witness lists and privilege logs required under 10 C.F.R. § 2.336.

11 See 10 C.F.R. § 2.1203.

12 10 C.F.R. § 2.336(a), (b).

13 Joint Proposal at 2-4. be required to identify or produce docketed correspondence or other documents that the NRC Staff has identified in the hearing file.

14 5. The parties need not identify or produce press clippings, including web clippings, unless they plan to rely on them at hearing.

6. The parties need not produce publicly-available documents. Each party, however, will produce as part of its disclosures a log identifying publicly-available documents upon which the party may rely at hearing and indicating the location of such documents, either through ADAMS Accession Number, web address, or other clearly-specified publicly-available location.

15

7. The parties have agreed to waive portions of the requirements in 10 C.F.R. §§ 2.336(a)(3) and 2.336(b)(5) to produce privilege logs to the extent that the parties agree not to include in their privilege logs any privileged documents or communications that include only that party's attorneys or directly relate to communications or comments on legal filings that are part of this proceeding.

The parties will still produce as part of their disclosures lists of any documents withheld as containing sensitive unclassified non-safeguards information ("SUNSI"), including, but not limited to, proprietary, confidential commercial, and security-related information.

C. New or Amended Contentions In the event a party seeks leave to file a new or amended contention, the party must file its motion for leave and the substance of the proposed contention simultaneously. The pleading must include a motion for leave to file a new or amended contention under 10 C.F.R.

§ 2.309(c)(1) or 2.309(f)(2), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Within twenty-five (25) days after service of the motion and proposed contention, any other party may file an answer responding to both the motion and the substance of the proposed contention. Within seven (7) days of service of the answer, the movant may file a reply responding to any answers.

16 14 The Board has modified this provision to clarify that documents identified by the NRC Staff in the hearing file do not need to be identified again. Any other publicly-available documents may be identified in accordance with the parties' provision 6.

15 Vermont raises the concern that "publicly-available" materials may cost money to obtain. Joint Proposal at 3. If a cost issue arises, any party may file a motion within 10 days explaining the situation to the Board and seeking appropriate relief. See 10 C.F.R. § 2.323(a)(2).

16 10 C.F.R. § 2.309(i). The deadline to file any new contention based on new information, including the completion of the NRC Staff's environmental review, shall be 30 days. D. Schedule At the September 10, 2015 teleconference the NRC Staff indicated that it expects to complete its environmental and safety review within the next 120 days (i.e., on or before January 8, 2016).

17 Based on this timing, Entergy raised the possibility that the NRC Staff could issue the results of its environmental review prior to the Board's decision on Contention V.

18 The Board recognizes that because the issuance of the NRC Staff review may overlap with briefing on Contention V, the dates for the hearing of Contention I should be keyed to the date (D) that the NRC Staff issues the outcome of its environmental review or the Board issues its decision on Contention V, whichever comes later. The deadline for summary disposition motions based on the interaction between resolution of Contention V and any other Contentions is 30 days after the Board's decision on

Contention V.

TABLE 1: Briefing Schedule for Contention V C Completion (C) of any 10 C.F.R. § 2.311 Appeal Briefing for LBP-15-24, which will be September 25, 2015, if no appeal is filed, or October 20, 2015, if an appeal is filed, but in no event later than October 20, 2015. C+25 All parties submit initial briefs on Contention V C+50 All parties submit rebuttal briefs on Contention V C+95 Board Decision (BD) on Contention V (if oral argument is not required) BD Board Decision on Contention V BD+30 Deadline for summary disposition motions based on the interaction between resolution of Contention V and any other Contentions 17 Tr. at 89.

18 Tr. at 87. TABLE 2: Hearing Schedule for Contention I If no new or amended contentions are filed D NRC Staff issues the results of its Environmental Review or the Board issues its decision on Contention V, whichever comes later D+30 Deadline for summary disposition motions on remaining contentions D+70 Vermont's direct testimony, statements of position, and exhibits D+115 Entergy's and NRC Staff's rebuttal testimony, statements of position, and exhibits D+160 Vermont's rebuttal testimony and exhibits D+190 Evidentiary Hearing (Hrg) Hrg+90 Initial Decision TABLE 3: Schedule for New or Amended Contentions ER NRC Staff issues the results of its Environmental Review (ER) ER+30 Deadline for new or amended contentions based on the ER ER+55 Answers to new or amended contentions ER+62 Replies to answers to new or amended contentions ER+107 Board Decision on admission of any new or amended contentions (if oral argument is not required)

D Board Decision on the new or amended contentions or Board Decision on Contention V, whichever comes later D+30 Deadline for summary disposition motions on remaining contentions D+70 Vermont's direct testimony, statements of position, and exhibits D+115 Entergy's and NRC Staff's rebuttal testimony, statements of position, and exhibits D+160 Vermont's rebuttal testimony and exhibits D+190 Evidentiary Hearing (Hrg)

Hrg+90 Initial Decision E. Status Updates The NRC Staff indicated it expects to complete the safety and environmental review within 120 days.

19 If the NRC Staff changes this date estimate, the NRC Staff shall submit an updated status report along with the next monthly update of the Staff's hearing file.

19 Tr. at 89.

F. Withdrawal of the LAR The Joint Proposal indicates that Entergy intends to make the necessary filings to withdraw the LAR.

20 Entergy may file such a motion with the Board.

21 Any other party may file a response to that motion within 10 days.

22 It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/ ________________________ William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland September 21, 2015 20 Joint Proposal at 1.

21 See 10 C.F.R. § 2.107(a); Licensing Board Notice of Hearing (Sept. 18, 2015) (unpublished).

22 See 10 C.F.R. § 2.323(a)(2).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) )

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LA-3 AND ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Vermont Yankee Nuclear Power Station) ) CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing INITIAL SCHEDULING ORDER have been served upon the following persons by the Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel

Mail Stop: T-3 F23 Washington, DC 20555-0001

William J. Froehlich, Chairman William.Froehlich@nrc.gov Dr. Michael F. Kennedy Michael.Kennedy@nrc.gov Dr. Richard E. Wardwell Richard.Wardwell@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop: O15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Beth Mizuno, Esq.

Mitzi Young, Esq.

Anita Ghosh, Esq.

Jeremy Wachutka, Esq.

Daniel Straus, Esq. Edward Williamson, Esq. John Tibbetts, Paralegal

beth.mizuno@nrc.gov mitzi.young@nrc.gov anita.ghosh@nrc.gov jeremy.wachutka@nrc.gov daniel.straus@nrc.gov edward.williamson@nrc.gov john.tibbetts@nrc.gov Nicole Pepperl, Law Clerk Nicole.Pepperl@nrc.gov Cooper Strickland, Law Clerk Cooper.Strickland@nrc.gov Vermont Department of Public Service 112 State Street - Drawer 20

Montpelier, VT 05620-2601 Aaron Kisicki, Esq.

Kyle Landis-Marinello, Esq.

aaron.kisicki@state.vt.us kyle.landis-marinello@vermont.gov U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-7H4M Washington, DC 20555-0001

ocaamail@nrc.gov

DOCKET NO. 50-271-LA-3 INITIAL SCHEDULING ORDER 2 U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16C1 Washington, DC 20555-0001

Hearing Docket

hearingdocket@nrc.gov Entergy Services, Inc. 101 Constitution Ave., NW Washington, DC 200012133

Susan Raimo, Esq.

sraimo@entergy.com Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue NW Washington, DC 20004 Paul M. Bessette, Esq.

Stephen Burdick, Esq.

Raphael Kuyler, Esq.

Ryan Lighty, Esq. pbessette@morganlewis.com sburdick@morganlewis.com rkuyler@morganlewis.com rlighty@morganlewis.com

[Original signed by Brian Newell ] Office of the Secretary of the Commission

Dated at Rockville, Maryland this 21 st day of September, 2015