ML061670204

2006/06/15-NRC Staff Answer to New England Coalition Notice of Adoption of Contentions or Alternative Motion to Adopt Contentions

ML061670204
Person / Time
Site:	Vermont Yankee
Issue date:	06/15/2006
From:	Matt Young NRC/OGC
To:	Atomic Safety and Licensing Board Panel
M Young, NRC/OGC, 310-415-1523
References
50-271-LR, ASLBP 06-849-03-LR, RAS 11791
Download: ML061670204 (6)

Text

1 NEC does not certify that it tried to contact other participants in the proceeding, namely theNRC Staff or the Licensee, as required by 10 C.F.R. § 2.323(b). A motion is to be rejected if it does notinclude a certification that the movant's attorney or representative made a sincere effort to contact theother parties in the proceeding to resolve issues raised in the motion, and that those efforts wereunsuccessful. 10 C.F.R. § 2.323(b).June 15, 2006UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)ENTERGY NUCLEAR OPERATIONS, INC)Docket No. 50-271-LR)(Vermont Yankee Nuclear Power Station))NRC STAFF ANSWER TO NEW ENGLAND COALITION NOTICE OF ADOPTION OF CONTENTIONS OR ALTERNATIVE MOTION TO ADOPT CONTENTIONS INTRODUCTIONPursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission("NRC" or "Commission") hereby answers the "New England Coalition's Notice of Adoption ofContentions, or in the Alternative, Motion to Adopt Contentions," dated June 5, 2006 ("Motion"). Although the motion does not satisfy the requirements of 10 C.F.R. § 2.323(b), 1 the Staff hasno objection to the proposed adoption provided that New England Coalition (NEC) is admitted as a party to this proceeding (based on its initial petition) and, if the initial contention sponsor is not admitted as a party to (or subsequently departs from) this proceeding, NEC then demonstrates an independent ability to litigate any adopted contentions.BACKGROUNDBy letter dated January 26, 2006, as supplemented March 15, 2006, Entergy VermontYankee, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy" or "Applicant")

submitted an application, under 10 C.F.R. Part 54, to renew Operating License No. DPR-28 for 2 See Letter from William F. Maguire, Entergy, to U.S. NRC, dated January 25, 2006(Agencywide Documents Access and Management System ("ADAMS") Accession Nos. ML060300082,ML060300085, ML060300086).

3 On June 8, 2006, this Atomic Safety and Licensing Board was established to preside over theproceeding. See "Establishment of Atomic Safety and Licensing Board," dated June 6, 2006. 71 Fed.Reg. 34397 (June 14, 2006).the Vermont Yankee Nuclear Power Station ("VYNPS").

2 The proposed renewal wouldauthorize the Applicant to operate VYNPS for an additional 20 years beyond the current expiration date of March 21, 2012.

See "Entergy Nuclear Operations, Inc.; [VYNPS]: Notice ofAcceptance of Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. DPR-28 for an Additional 20-Year Period," 71 Fed.Reg. 15220 (Mar. 27, 2006). In response to the notice of acceptance for docketing and opportunity for hearing published in the Federal Register , id., the New England Coalition (NEC),the Massachusetts Attorney General, the Town of Marlboro, Vermont Select Board, and the Vermont Department of Public Service timely filed intervention petitions See [NEC] Petition forLeave to Intervene Request for Hearing and Contentions, dated May 26, 2006; Massachusetts Attorney General's Request for a Hearing and Petition for Leave to Intervene With Respect To Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operation and Petition for Backfit Order Requiring New Design Features to Protect Against Spent Fuel Accidents, dated May 26, 2006; Vermont Department of Public ServiceNotice of Intention to Participate and Petition to Intervene, dated May 26, 2006; Letter from Town of Marlboro Selectboard and Emergency Management Director, dated April 27, 2006.

3In a filing dated June 5, 2006, NEC provided notice that it was adopting contentions filedby the State of Vermont and the Commonwealth of Massachusetts, pursuant to 10 C.F.R.

§ 2.309(f)(3), or alternatively, filing a motion, pursuant to 10 C.F.R. § 2.323, to adopt such contentions. Motion at 1. NEC further indicated that it had consulted with representatives forVermont and Massachusetts who agreed to the arrangement provided that each governmentalentity served as the representative for their respective contentions. Motion at 2. DISCUSSIONThe Staff does not object to NEC's request provided that NEC is admitted as a party tothis proceeding (based upon its initial petition) and, if the primary sponsor of the adopted contention is not admitted as a party or subsequently leaves this proceeding, NEC then demonstrates its independent ability to litigate any contentions adopted. See ConsolidatedEdison Co. of New York & Entergy Nuclear Indian Point 2 LLC and Entergy Nuclear Operations, Inc. (Indian Point, Units 1 and 2), CLI-01-19, 54 NRC 109, 131-33 (2001) (adoptionprovisionally permitted at an early stage of a proceeding so long as it does not circumvent pleading requirements and the proponent later demonstrates its independent ability to litigatethe issue upon the departure of the original sponsor). If NEC were allowed merely to adopt the contentions of another party without otherwise establishing standing and proffering its ownadmissible contention, there would be a circumvention of NRC pleading requirements. The Commission's regulations do not appear to specify how or when a request to adopta contention may be raised.

See 10 C.F.R. § 2.309(f)(3). The use of terms such as adoption ofcontentions of "another . . . requestor/ petitioner," however, implies that a contention adoptionrequest would be timely if made prior to any ruling on contentions. See id. See also LouisianaEnergy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 627 (2004)("petitioners seeking intervention as a party under section 2.309 may chose to participate on other petitioners' contentions by adopting them") (emphasis in original).CONCLUSIONFor the foregoing reasons, although the motion has procedural defects, the Staff has noobjection to NEC being allowed to provisionally adopt contentions proffered by Vermont and Massachusetts, provided NEC is admitted as a party to this proceeding based on its initialpetition and later demonstrates an independent ability to litigate any adopted contentions if theinitial sponsor is not admitted as a party to, or subsequently departs from, this proceeding.Respectfully submitted,/RA/Mitzi A. YoungCounsel for NRC StaffDated at Rockville, Marylandthis 15th day of June 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)ENTERGY NUCLEAR OPERATIONS, INC )Docket No. 50-271-LR

)(Vermont Yankee Nuclear Power Station )CERTIFICATE OF SERVICEI hereby certify that copies of the "NRC STAFF ANSWER TO NEW ENGLAND COALITIONNOTICE OF ADOPTION OF CONTENTIONS OR ALTERNATIVE MOTION TO ADOPT CONTENTIONS" in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRC's internal mail system or, as indicated by anasterisk, by electronic mail with copies by U.S. mail, first class, or, as indicated by a double asterisk, by electronic mail with copies by overnight express mail, this 15th day of June 2006.Administrative JudgeAlex S. Karlin, Chair Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.govAdministrative JudgeThomas S. Elleman**

Atomic Safety and Licensing Board Panel 5207 Creedmoor Road, #101 Raleigh, NC 27612 E-mail: elleman@eos.ncsu.eduOffice of Commission AppellateAdjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmail@nrc.govAdministrative JudgeRichard E. Wardwell Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.govOffice of the SecretaryAttn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.govSarah 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 Diane Curran, Esq.*Harmon, Curran, Spielberg

& Eisenberg, L.L.P.

1726 M Street, NW., Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.comRonald A. Shems, Esq.*Karen Tyler, Esq.

Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.comCallie B. Newton, ChairGail MacArthur Lucy Gratwick Marcia Hamilton Town of Marlboro Selectboard

P.O. Box 518 Marlboro, VT 05344 E-mail: cbnewton@sover.net marcialynn@ev1.netMarcia Carpentier, Esq.Jonathan M. Rund, Esq.

Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.govJmr3@nrc.govAnthony Z. Roisman, Esq.* National Legal Scholars Law Firm 84 East Thetford Rd.

Lyme, NH 03768 E-mail: aroisman@nationallegalscholars.comMatthew Brock, Esq.*Assistant Attorney General Office of the Massachusetts Attorney General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598 E-mail: matthew.brock@ago.state.ma.usDan MacArthur, DirectorTown of Marlboro Emergency Management

P.O. Box Box 30 Marlboro, VT 05344 E-mail: dmacarthur@igc.orgDavid R. Lewis, Esq.*Matias F. Travieso-Diaz Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com

/RA/ Mitzi A. YoungCounsel for NRC StaffDated at Rockville, Maryl and,this 15th day of June 2006