ML081700318

2008/06/09-Entergy Nuclear Vermont Yankee, Llc'S and Entergy Nuclear Operations, Inc.'S Unopposed Motion to Extend to June 23, 2008 the Time to File Motion in Limine with Respect to Rebuttal Testimony of Ulrich Witte

ML081700318
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	06/09/2008
From:	Travieso-Diaz M Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-87
Download: ML081700318 (7)

Text

DOCKETED USNRC June 9, 2008 (3:53pm) June 9, 2008 OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ))Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271 -LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)(Vermont Yankee Nuclear Power Station) )ENTERGY'S UNOPPOSED MOTION TO EXTEND TIME TO FILE MOTION IN LIMINE WITH RESPECT TO REBUTTAL TESTIMONY OF ULRICH WITTE Pursuant to 10 C.F.R. §2.323(a), Applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively "Entergy")

respectfully move the Atomic Safety and Licensing Board ("Board")

to extend to June 23, 2008 the time to file motions in limine with respect to the rebuttal testimony of Ulrich Witte, which intervenor New England Coalition ("NEC") served by mail on June 6, 2008.The relevant facts on this motion are as follows. Rebuttal testimony by the parties in this proceeding was due on June 2, 2008. On that date, Entergy, the NRC Staff, and NEC filed rebuttal testimony on the various contentions.

NEC did not include with its June 2, 2008 filing (which was served electronically and by mail on the Board and parties on that date) any testimony by Mr. Witte, who had submitted direct testimony on behalf of NEC on April 28, 2008.According to the corrected certificate of service (Exhibit 1 hereto) served electronically by NEC on the parties today, NEC filed by first class mail on June 6, 2008 a motion to submit a late-filed rebuttal testimony by Mr. Witte. Pursuant to 10 C.F.R. § 2.306 and the guidance in the Board's Order (Clarifying Filing Schedule) dated May 1, 2008, all responses to the NEC's June r0 6, 2008 motion are due on Monday, June 23, 2008. Entergy intends to file a response on that date opposing NEC's late filing of Mr. Witte's rebuttal testimony.

In accordance with paragraph 10.E of the Board's November 17, 2006 Initial Scheduling Order, motions in limine to exclude testimony in this proceeding are due not later than ten days after the deadline for filingrebuttal testimony.

Given that the rebuttal testimony was due to be filed on June 2, 2008, motions in limine are due on June 12, 2008.1 However, because of the late submittal by mail of Mr. Witte's announced rebuttal testimony, Entergy respectfully moves that any motion in limine to exclude parts or the entirety of Mr. Witte's rebuttal testimony be due on June 23, 2008, simultaneously with responses to the motion for late submittal of the testimony itself. In addition to providing adequate time for Entergy to review and potentially move to exclude Mr. Witte's rebuttal, such a schedule extension will allow any arguments as to the inadmissibility of the testimony on procedural or substantive grounds to be submitted and considered at the same time.2 As directed by 10 C.F.R. § 2.323(b), Entergy consulted with the other parties in connection with this motion. NEC, the Vermont Department of Public Service and the Commonwealth of Massachusetts do not oppose the motion. The NRC Staff advises that it supports the motion and wishes to join in it. We have received no response from the State of New Hampshire.

The Initial Scheduling Order could be interpreted to mean that motions in limine with respect to rebuttal testimony are due ten days (plus five days if served by first class mail) after service of the rebuttal testimony, whenever such testimony is filed. In that case, a motion in limine to exclude all or portions of Mr. Witte's rebuttal testimony would still be due on June 23, 2008. Entergy is filing the instant motion out of an abundance of caution, in case such an interpretation proves incorrect.

2 This motion does not address as premature the potential extension in the deadline for filing proposed questions for the Board to consider propounding to Mr. Witte in the event his rebuttal testimony is not excluded.

Were Mr.Witte's rebuttal testimony timely filed, proposed questions directed at that testimony would be due on June 23, 2008. Initial Scheduling Order, para.101F; Order(Addressing Scheduling Issues for Evidentiary Hearing), December 13, 2007 at 2. However, a corresponding nine-day extension to July 2, 2008 in the time to file proposed questions to Mr. Witte would be appropriate should his rebuttal testimony not be excluded.2 For the above described reasons, Entergy's motion should be granted.Respectfully Submitted,/P.e'a David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy Dated: June 9, 2008 3 EXHIBIT I CORRECTED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)))))))Docket No. 50-271-LR ASLBP No. 06-849-03-LR CERTIFICATE OF SERVICE I, Christina Nielsen, hereby certify that copies of NEW ENGLAND COALITION, INC.'S MOTION TO LATE-FILE REBUTTAL TESTIMONY OF ULRICH WITTE in the above-captioned proceeding were served on the persons listed below, by U.S. Mail, first class, postage prepaid, on the 6th of June, 2008.Administrative Judge Alex S. Karlin, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.gov Administrative Judge William H. Reed 1819 Edgewood Lane Charlottesville, VA 22902 E-mail: whrcville(Zembarqmail.com Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmail@nre.gov Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Sarah Hofmann, Esq.Director of Public Advocacy Department of Public Service 112 State Street, Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us Lloyd B. Subin, Esq.Mary C. Baty, Esq.Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: lbs3(@nrc.gov; mcbl (@nrc.gov Anthony Z. Roisman, Esq.National Legal Scholars Law Firm 84 East Thetford Road Lyme, NH 03768 E-mail: aroisman@nationallegalscholars.com Marcia Carpentier, Esq.Lauren Bregman Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.gov Lauren.Bregman@nrc.gov Peter C. L. Roth, Esq.Office of the Attorney General 33 Capitol Street Concord, NH 03301 E-mail: Peter.roth@doi.nh.gov David R. Lewis, Esq.Matias F. Travieso-Diaz Pillsbury Winthrop Shaw Pittman LLP 2300 N Street NW Washington, DC 20037-1128 E-mail: david.lewisppillsburylaw.com matias.travieso-diaz(~pillsburvlaw.com Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.1726 M Street N.W., Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Jessica A. Bielecki U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O- 15-D21 Washington, D.C. 20555-0001 E-mail: iessica.bielecki(nrc.gov Matthew Brock Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 1 8 th Floor Boston, MA 02108 E-mail: Matthew.Brock(astate.ma.us by: 6ý Vý ýChristina Nielsen, Administrative Assistant Shems Dunkiel Kassel & Saunders, PLLC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)))))))Docket No. 50-271-LR ASLBP No. 06-849-03-LR CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy's Unopposed Motion to Extend Time to File Motion in Limine with Respect to Rebuttal Testimony by Ulrich Witte" 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 9 th day of June, 2008.*Administrative Judge Alex S. Karlin, Esq., Chairman Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ask2@nrc.gov

• Administrative Judge William H. Reed 1819 Edgewood Lane Charlottesville, VA 22902 whrcville(i1)embarQmail.com

• Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 rew@nrc.gov

• Secretary Att'n: Rulemakings and Adjudications Staff Mail Stop 0-16 C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 secy@nrc.gov, hearingdocket@,nrc.

gov Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

• Office of Commission Appellate Adjudication Mail Stop 0-16 C I U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 OCAArmail@nrc.gov

• Lloyd Subin, Esq.*Mary Baty, Esq.* Jessica A. Bielecki, Esq.*Susan L. Uttal, Esq.Office of the General Counsel Mail Stop O-15-D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 LBS3@~nrc.gov; mcb 1 @nrc.gov;iessica.bielecki(Onrc.gov; susan.uttal L?~nrc.gov

• Sarah Hofmann, Esq.Director of Public Advocacy Department of Public Service 112 State Street- Drawer 20 Montpelier, VT 05620-2601 Sarah.hofmannUOtstate.vt.us

• Anthony Z. Roisman, Esq.National Legal Scholars Law Firm 84 East Thetford Road Lyme, NH 03768 aroismrani(nationallegalscholars.com

• Peter L. Roth, Esq.Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301 Peter.rothP~doj.nh.gov

• Lauren Bregman, Law Clerk Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 Lauren.Bregrnan(onrc.

gov*Ronald A. Shems, Esq.*Karen Tyler, Esq.Shems, Dunkiel, Kassel & Saunders, PLLC 9 College Street Burlington, VT 05401 rsherns(asdkslaw.com ktyler@sdkslaw.com

• Marcia Carpenter, Esq.Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 mxc7(Onrc.gov

• Diane Curran, Esq.Harmon, Curran, Spielberg, & Eisenberg, L.L.P.1726 M Street N.W., Suite 600 Washington, D.C. 20036 dcurran64harmoncurran.

com* Matthew Brock Assistant Attorney General Office of the Attorney General One Ashburton Place, 181h Floor Boston, MA 02108 Matthew.Brock(2state.ma.us Matias F. Travieso-D7d 2