ML061880213

Entergy'S Answer to New England Coalition'S Notice and Motion to Adopt Contentions

ML061880213
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	06/20/2006
From:	Doris Lewis Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-271-LR, ASLBP 06-849-03-LR, RAS 11934
Download: ML061880213 (6)

Text

W45 1193 ý4 June 20, 2006 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC June 20, 2006 (4:39pm)

Before the Atomic Safety and Licensing Board OFFICE OF SECRETARY RULEMAKINGS AND In the Matter of ) ADJUDICATIONS STAFF

)

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 ANSWER TO NEW ENGLAND COALITION'S NOTICE AND MOTION TO ADOPT CONTENTIONS Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

(hereinafter collectively referred to as "Entergy") hereby answer and oppose "New England Coalition's Notice of Adoption of Contentions, or in the Alternative, Motion to Adopt Contentions," dated June 5, 2006 (the "Motion"). NEC's Motion, which seeks to adopt the contentions of the Department of Public Service ("DPS"), should be denied as unsupported by any showing of compliance with the late-filing criteria in 10 C.F.R. §§ 2.309(c)(1)(i)-(viii) and 10 C.F.R. § 2.309(b) and the Notice of Opportunity for Hearing (71 Fed. Reg. 15,220 (Mar. 27, 2006)) in this proceeding require that a petitioner file its list of contentions within 60 days of the Notice. 10 C.F.R. § 2.309(c) provides that any non-timely contentions will not be entertained absent a determination by the presiding officer that the request should be admitted based on a balancing of eight factors. In addition, 10 C.F.R. § 2.309(f) provides that new contentions may only be added after the initial filing based on a showing that (i) The information upon which the amended or new contention is based was not previously available; 4004108810v ernpla'e=--SecV-1o,

(ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of subsequent information.

NRC case law establishes that these factors apply in cases where one intervenor seeks to adopt the contentions of another after the initial filing date. Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-779, 21 N.R.C. 360, 381-82 (1985).

NEC states that 10 C.F.R. § 2.3 09(0(3) appears to allow a party seeking to adopt a contention to do so simply upon agreement with the sponsoring party. Motion at 1 n.1.

However, that section merely requires designation of a lead representative when a party "seeks" to adopt another's contention. It does not allow such adoption. Indeed, by referring to a requestor/petitioner "who seeks to adopt the contentions" of another, section 2.309(f)(3) clearly contemplates a request for leave of the presiding officer.

Nor does section 2.309(0(3) waive compliance with the criteria in sections 2.309(c)(1)(i)-(viii) and (f)(2)(i)-(iii) governing whether such leave should be granted. If a petitioner could adopt another party's contentions without any showing of compliance with the late-filing standards, a petitioner could totally ignore its initial obligation to plead specific,]

supported contentions and yet remain in the proceeding simply by subsequently adopting all the The NRC Staff Answer to New England Coalition Notice of Adoption of Contentions or Alternative Motion to Adopt Contentions" (June 15, 2006) ("Staff Answer") states that use of terms such as "adoption of "another...

requester/petitioner" implies that a contention adoption request would be timely if made prior to any rulings on contentions. Staff Answer at 3. Section 2.309(0(3) says nothing about timeliness, says nothing about the standards by which a request to adopt contentions should be judged, and indeed, does not waive the standards for adding contentions after the initial filing. If the Staff's interpretation were correct, there would be no need for a petitioner to "seek" to adopt contentions (see 10 C.F.R. § 2.309), because there would be no standards to apply to the request.

The Staff Answer also quotes Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 N.R.C. 619, 627 (2004), as stating: "petitioners seeking intervention as a party under section 2.309 may chose to participate on other petitioners contentions by adopting them." Staff Answer at 3. However, this statement does not state what showing a petitioner must make to adopt such contentions. Further, because the quoted decision did not involve a request to adopt contentions, it is dicta.

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contentions of any other petitioners. This would be bad policy and clearly cannot be what the Commission intended. Rather, before a licensing board grants a request by a petitioner to adopt another person's proposed contentions, it should ensure that there is good cause for the request, that the petitioner has something to contribute, and that adoption is appropriate because of the unavailability of other means to protect the petitioner's interest. The criteria in sections 2.309(c)(l)(i)-(viii) and (f)(2)(i)-(iii) ensure such factors are appropriately considered.

NEC has not addressed the late-filing criteria. Longstanding NRC practice obliges a petitioner to show that untimely contentions satisfy the late filing requirements, and where a petitioner fails to do so, the Board may properly dismiss the late request without further consideration. Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 N.R.C. 325, 347 (1998) ("[T]he Commission itself has summarily dismissed petitioners who failed to address the five factors for a late-filed petition.")(footnote omitted);

Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 N.R.C. 461,465-66 (1985)

("[G]iven its failure to even address the.., lateness factors, [a late] intervention petition [is]

correctly denied because it [is] untimely." Its failure to do so is grounds by itself to deny the Motion. Because NEC has not discharged its burden ofjustifying its late filing, its Motion must be denied.2 Even if NEC had addressed the lateness criteria, its motion to adopt DPS' contentions would fail. NEC has no good cause for not having proffered such contentions itself, other than perhaps not having thought of them. If the information was available to the DPS to formulate its contentions, it should also have been available to NEC. Further, NEC has asserted no expertise or relevant experience regarding those issues, has provided no indication of how its participation 2 Entergy will address the admissibility of DPS' contentions when it files its answer to DPS' hearing request.

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would assist in developing the record on any of DPS' contentions, and has made no showing why the DPS' sponsorship of its contentions is insufficient to protect NEC's interest. In short, there is no merit to NEC's request.

For all of the foregoing reasons, NEC's Motion should be denied.

Respectfully Submitted, David R. Lewis.

Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037-1128 Tel. (202) 663-8474 David.Lewis@Pillsburylaw.com Counsel for Entergy Dated: June 20, 2006 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licehsiiig 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) )

.CERTIFICATE OF SERVICE I hereby certify that copies of"Entergy's Answer to New England Coalition's Notice and Motion to Adopt Contentions" dated June 20, 2006, 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 20th day of June, 2006.

• Administrative Judge **Administrative Judge Alex S. Karlin, Esq., Chairman Dr. Richard E. Wardwell Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 ask2@nrc.gov rew@nrc.gov

• Administrative Judge *Secretary Dr. Thomas S. Elleman Att'n: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop 0-16 Cl 5207 Creedmoor Road, #101, U.S. Nuclear Regulatory Commission Raleigh, NC 27612. Washington, D.C. 20555-0001 tse@nrc.gov; elleman@eos.ncsu.edu; secy@nrc.gov; hearingdocket@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Mail Stop"O-16 Cl Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 5

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• Mitzi A. Young, Esq. *Sarah Hofmann, Esq.

• Steven C. Hamrick, Esq. Diri6citbi bf Public Advocacy Office of the General Counsel Department of Public Service Mail Stop 0-15 D21 112 State Street - Drawer 20 U.S. Nuclear Regulatory Commission Montpelier, VT 05620-2601 Washington, D.C. 20555-0001 Sarah.hofmiann@state.vt.us may@nrc.gov; schl@nrc.gov

• Anthony Z. Roisman, Esq. *Ronald A. Shems, Esq National Legal Scholars Law Finn *Kareb Tyler, Esq.

84 East Thetford Road Shems, Dunkiel, Kassel & Saunders, PLLC Lyme, NH 03768 9 College Street aroisman@nationallegalscholars.com Burlington, VT 05401 rshems@sdkslaw.com ktyler@sdkslaw.com

• Diane Curran, Esq. *Matthew Brock, Esq.

Harmon, Curran, Spielberg &Eisenberg, LLP Assistant Attorney General 1726 M Street, N.W., Suite 600 Environmental Protection Division Washington, D.C. 20036 Office of the Attorney General dcurran@harmoncurran.com One Ashburton Place Boston, MA 02108 Matthew.brock@ago.state.ma.us

• Mr. Dan MacArthur *Callie B. Newton, Chair Director, Emergency Management Gail MacArthur P.O. Box 30 Lucy Gratwick Marlboro, VY 50344 Town of Marlboro dmacarthur@igc.org Selectboard P.O. Box 518 Marlboro, VT 05344 marcialynn@evl.net; cbnewton@sover.net David R. Lewis 6

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