ML15260B278

Joint Motion on Mandatory Disclosures and Schedule

ML15260B278
Person / Time
Site:	Vermont Yankee
Issue date:	09/17/2015
From:	Bessette P M, Burdick S J, Amitava Ghosh, Kisicki A, Landis-Marinello K H, Mizuno B N, Raimo S H, Wachutka J L, Young M A Energy Services Group International, Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Morgan, Morgan, Lewis & Bockius, LLP, NRC/OGC, State of VT, State of VT, Dept of Public Service
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LA-3, ASLBP 15-940-03-LA-BD01, RAS 28297
Download: ML15260B278 (12)

Text

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) ) )

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Docket No. 50-271-LA-3

September 17, 2015 JOINT MOTION ON MANDATORY DISCLOSURES AND SCHEDULE In accordance with 10 C.F.R. § 2.323(a), the Atomic Safety and Licensing Board's (Board's) September 3, 2015 Order (Scheduli ng Conference Call and Establishing Hearing Procedures), and the September 10, 2015 conf erence call with the Board, the parties 1 provide the proposals outlined below regarding mandatory disclosures and schedules in this proceeding related to Contentions I and V.

Also, Entergy wishes to notify the Board that as a result of the Board's August 31, 2015 Memorandum and Order Granting Petition to Intervene and Hearing Request (LBP-15-24), Entergy has considered various options with regard to the challenged license amendment request (LAR), including amending or with drawing the LAR. Entergy has decided to withdraw the LAR and currently plans to make the necessary filings early next week.

Pending action on the withdrawal, the parties respectfu lly request that the Board issu e an Order on this Joint Motion, including deferral of initial mandatory disclosures until November 2, 2015, with the State

1 The parties are Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Entergy), the U.S. Nuclear Regulatory Commission Staff (NRC Staff), and the State of Vermont (State).

2 reserving all rights regarding the timing and scope of any disclosu res (and all other issues) based on the filings that Entergy intends to make regarding withdrawal of its LAR.

Latest Entergy Proposal NRC Staff Response State's Response 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. Agree. Agree. To the extent reasonably practicable, each party will

provide electronic copies of documents in a word-searchable, PDF format. Agree. Agree.

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. Agree. Agree. In connection with the NRC Staff's submittal of the hearing file, the NRC Staff will identify all documents available via the NRC's Agree. Agree.

3 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 be required to

identify or produce docketed

correspondence or other documents that the party has verified to be available via the NRC's website or via a search of Vermont Yankee Docket No. 50-271 in ADAMS.

The parties need not identify

or produce press clippings, including web clippings, unless they plan to rely on them at hearing. Agree. Agree.

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.

Entergy does not agree with adding "cost-free" to the

above provision because the

parties should not be required to purchase publicly-available documents for the other

parties. Agree. Agree, provided that "cost-free" is added to each instance where the phrase "publicly-available" appears.

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 Agree. Agree.

4 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. Initial disclosures by all

parties and the NRC Staff

prepared hearing file related to

both contentions are due November 2, 2015. Monthly

updates are due on the first business day of every month beginning December 1, 2015.

The parties have reviewed and generally agree with the

Board's proposed schedule set forth in the Board's September

3, 2015 Order. The parties, however, would like to clarify that the trigger for the hearing

schedule for Contention I

would be either the NRC Staff

issuance of the results of its environmental review or the

issuance of the initial decision

on Contention V, whichever is later. This is necessary because it is possible that the NRC Staff will issue its environmental review before the issuance of the initial Agree. Agree, provided that the Board adopts a mandatory disclosure deadline that is no later than November 2, 2015.

In the event that this deadline is tied to a future event, such

as the resolution of Contention

V as Entergy proposes, the

State opposes any delay of the

briefing of Contention V.

Also, the State understands that Entergy now intends to make filings early next week seeking to withdraw its LAR.

The State was amenable to an extension for initial disclosures until November 2, 2015 when it was assumed

that the proceeding was going

forward. The State continues to assent to November 2, 2015

on that basis, but reserves all rights regarding the timing

and scope of any disclosures (and all other issues) based on the filings that Entergy intends 5 decision on Contention V. Accordingly, the "ER" in

Table 2 should be "ER/ID"

and the "BD" in Table 3

should be "BD/ID." The parties request that the Board

modify Tables 2 and 3 of the Board's September 3, 2015 Order as indicated in Appendix A of this filing.

The parties also would like to modify the briefing schedule

for Contention V so that it

does not overlap with the

parties' briefing of any appeals

of LBP-15-24 under 10 C.F.R.

§ 2.311. Any such appeals currently must be filed by September 25, 2015, with answers opposing the appeal

due by October 20, 2015.

Therefore, the parties request

that the briefing schedule for

Contention V begin following the appeal deadline if no appeal is filed, or submission

of any appeal answers if an

appeal is filed, but in no event later than October 20, 2015.

The parties request that the Board modify Table 1 of the Board's September 3, 2015 Order as indicated in Appendix A of this filing. to make regarding withdrawal of its LAR. Entergy's preferred alternative to the above

agreement on scheduling:

The Board concluded on page 2 of the September 3, 2015 Order that "[a]n initial decision on Contention V will

be issued before the Board

addresses Contention I."

Therefore, the disclosures on Contention I may be deferred The NRC Staff agrees with Entergy's preferred alternative of first conducting mandatory disclosures related to

Contention V and, only after

an initial decision on

Contention V that does not

obviate the need for a hearing

on Contention I, conducting mandatory disclosures related

to Contention I. This approach would be consistent Disagree. The Board granted the State a hearing for two of its contentions. In these instances, directly applicable

NRC regulations require that initial disclosures be made

"within thirty (30) days of the

issuance of the order granting

a request for hearing or petition to intervene and

without further order or request from any party." 10 6until after the issuance of the initial decision on Contention V. Specifically, initial disclosures by all parties and the NRC Staff prepared hearing file related to

Contention I are due 30 days after the issuance of the initial

decision on Contention V.

Monthly updates are due on

the first business day of every

month thereafter.

Entergy supports this proposal for the following reasons:

• The proposal is consistent with the Board's plan to bifurcate the resolution of

the two admitted

contentions. The Board

stated that "Contention V will be addressed first and

be decided based on legal briefs and oral argument.

An initial decision on

Contention V will be

issued before the Board

addresses Contention I."

See September 3, 2015 Order, at 2. It is logical to likewise bifurcate the disclosure requirements.

• The proposal also is consistent with the Board's statement that resolution of Contention V may resolve Contention

I. Specifically, the Board stated that it "recognizes that a decision on the

legal question presented in Contention V may

obviate the need for a

hearing on the closely related factual matters

raised in Contention I."

with the Board's September 3, 2015 Order and LBP-15-24

and would allow the parties to

devote their resources to the

potentially dispositive issue of

Contention V. The NRC Staff does not view this bifurcation of disclosures

along with the bifurcation of

the hearing to be a departure from the regulations or an exemption or a stay, but, rather, an appropriate exercise

of the Board's authority under the circumstances and pursuant to 10 C.F.R. § 2.319.

C.F.R. § 3.336(a). As noted during the September 10, 2015 conference call, the State

would prefer to keep that date.

Nevertheless, to accommodate

the other parties' requests, the State has agreed to significant concessions on the timing of both initial disclosures and

briefing. The State cannot, however, agree to a proposal that pushes the initial disclosure deadline to an

undefined date that will fall many months after disclosures

are due under the regulations. While the State accepts the Board's decision to postpone a hearing on Contention I until

Contention V has been

resolved, the Board did not exempt the parties from the regulatory requirement of

providing initial disclosures within 30 days of the granting

of a petition to intervene. 10

C.F.R. § 3.336(a). Such an exemption is inappropriate

given that these rules, including the deadline for initial disclosures, were revisited and affirmed in an extensive rulemaking process

just 3 years ago.

See 77 Fed. Reg. 46562 (Aug. 3, 2012). To move the date for initial disclosures beyond what the

State has agreed to-and thus over the State's objection

-would effectively exempt Entergy and NRC Staff from regulatory requirements, without any showing that, for instance, the criteria of 10 C.F.R. § 50.12 are met. It

would also in effect grant a 7 LBP-15-24, at 44-45. Requiring mandatory disclosures for a

contention that would be

obviated could result in significant unnecessary

effort and expense.

• The proposal also does not harm the parties. All

of the parties would receive the disclosures from the other parties with sufficient time to

prepare for any hearing on

Contention I.

• Contrary to the State's view, no exemption

would be needed to implement Entergy's

proposal. 10 C.F.R. §

2.336(a) specifically allows the Board to make

this change without an exemption under 10

C.F.R. § 50.12.

stay of Contention I altogether without the required showing for a stay. The Board should

not allow such a departure from the regulations, particularly when: (1) the State has already agreed to

provide the parties with more than twice the usual time for initial disclosures; (2) any burden is minimal because this matter concerns only two

contentions, and only one

contention that has a significant factual component; (3) all parties are represented

and have the resources to prepare these disclosures in a timely fashion; and (4) most importantly, any delay beyond November 2, 2015 would create significant delays in proceeding with Contention I.

On this last point, it bears emphasis that initial disclosures serve a number of important purposes, particularly in a Subpart L proceeding like this one where

no other discovery is allowed.

For instance, the State intends

to present several expert

witnesses at the hearing on

Contention I, and the State

would be prejudiced in its

preparation of those witnesses

by not having the other parties' initial disclosures.

Indeed, if the Board were to grant Entergy's requested

delay of initial disclosures, the

entire schedule for Contention I-and maybe Contention V as well-would no longer work. For instance, the

schedule for Contention I calls 8for summary disposition motions within 30 days of the

initial decision on Contention V. That is the exact same

deadline Entergy proposes for initial disclosures. Thus, parties would be expected to file for summary disposition

without having ever seen the other parties' initial disclosures.

Entergy's proposed delay of initial disclosures also improperly denies the State of any disclosures that may be

relevant to Contention V.

Although the State agrees with

the Board that Contention V is a legal issue, there may still be potentially relevant documents

within Entergy's possession

that should be disclosed

before the briefing on Contention V is completed. In summary, although the State would prefer that all initial disclosures and briefing

go forward as rapidly as possible and on the normal

schedule called for under the

regulations, the State is willing to accommodate the majority of the significant

schedule changes proposed by

Entergy. But delaying initial disclosures beyond November

2 is unacceptable, and the State respectfully requests that

the Board reject that proposal.

9APPENDIX A TABLE 1: Briefing Sche dule for Contention V 2 CAB Completion of any 10 C.

F.R. § 2.311 Appeal Briefing for LBP-15-24 (CAB), which shall 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. CAB+25 All parties submit initial briefs on Contention V CAB+50 All parties submit re buttal briefs on Contention V CAB+95 Board Decision (BD) on Contention V (if oral argument is not required) BD Board Decision on Contention V TABLE 2: Hearing Schedule for Contention I If no new or amended contentions are filed ER/ID NRC Staff issues the results of its Environmental Review (E R) or issuance of the initial decision on Contenti on V (ID), whichever is later ER/ID+30 Deadline for summary disposition motions ER/ID+70 Vermont's direct testimony, statements of posit ion, and exhibits ER/ID+115 Entergy's and NRC Staff's rebuttal testimony, statements of position, and exhibits ER/ID+160 Vermont's rebuttal testimony and exhibits ER/ID+190 Evidentiary Hearing (Hrg) Hrg+90 Initial Decision TABLE 3: Schedule for New and 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) BD/ID Board Decision on new or amended contentions or issuance of the initial decision on Contention V (ID

), whichever is later BD/ID +30 Deadline for summary disposition motions BD/ID +70 Vermont's direct testimony, statements of posit ion, and exhibits BD/ID +115 Entergy's and NRC Staff's rebuttal testimony, statemen ts of position, and exhibits BD/ID +160 Vermont's rebuttal testimony and exhibits BD/ID +190 Evidentiary Hearing (Hrg) Hrg+90 Initial Decision

2 The parties recognize that Vermont's agreement to this schedule is contingent on the Board not agreeing to defer disclosures for Contention I until resolution of Contention V, as proposed by Entergy and the NRC Staff.

10 CONCLUSION For the reasons discussed a bove, the parties request that the Board consider the above proposals for mandatory disclosu res and hearing schedules.

11 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Susan H. Raimo Entergy Services, Inc.

101 Constitution Avenue, N.W.

Washington, D.C. 20001

Phone: (202) 530-7330

Fax: (202) 530-7350 E-mail: sraimo@entergy.com Paul M. Bessette Stephen J. Burdick

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Phone: (202) 739-5796

Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com E-mail: sburdick@morganlewis.com

Counsel for Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

Executed in Accord with 10 C.F.R. § 2.304(d)

Aaron Kisicki Vermont Department of Public Service

112 State Street - Drawer 20

Montpelier, VT 05620

(802) 828-3785 E-mail: aaron.kisicki@vermont.gov Kyle H. Landis-Marinello Assistant Attorney General Vermont Attorney General's Office

109 State Street

Montpelier, VT 05609

(802) 828-1361 E-mail: kyle.landis-marinello@vermont.gov

Counsel for the State of Vermont Executed in Accord with 10 C.F.R. § 2.304(d)

Beth Mizuno Anita Ghosh

Mitzi A. Young Jeremy L. Wachutka

U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop O-15-D21

Washington, DC 20555

(301) 415-3122 E-mail: Beth.Mizuno@nrc.gov E-mail: Anita.Ghosh@nrc.gov E-mail: Mitzi.Young@nrc.gov E-mail: Jeremy.Wachutka@nrc.gov

Counsel for NRC Staff Dated in Washington, D.C.

this 17th day of September 2015 DB1/ 84577165 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) ) )

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Docket No. 50-271-LA-3

September 17, 2015 CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of the "Joint Motion on Mandatory Disclosures and Schedule" was filed through the Nuclear Regulatory Commission's E-Filing system.

Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

Phone: 202-739-5059 E-mail: sburdick@morganlewis.com

Counsel for Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.