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| number = ML081710726
| number = ML081710726
| issue date = 06/19/2008
| issue date = 06/19/2008
| title = 2008/06/19-Vermont Yankee - NRC Staff'S Response to Nec'S Motion to Strike NRC Staff'S Rebuttal Testimony Concerning NEC Contention 4
| title = Vermont Yankee - NRC Staff'S Response to Nec'S Motion to Strike NRC Staff'S Rebuttal Testimony Concerning NEC Contention 4
| author name = Subin L B
| author name = Subin L
| author affiliation = NRC/OGC
| author affiliation = NRC/OGC
| addressee name =  
| addressee name =  
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=Text=
=Text=
{{#Wiki_filter:June 19, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
{{#Wiki_filter:June 19, 2008 UNITED STATES OF AMERICA 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)                    )
NRC STAFFS RESPONSE TO NECS MOTION TO STRIKE NRC STAFFS REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4 Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards (Board)
Initial Scheduling Order (Nov. 17, 2006) (unpublished) (November Order), the staff of the U.S.
Nuclear Regulatory Commission (Staff) hereby submits this response to New England Coalition, Incs (NEC) Motion To Strike the NRC Staff Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto, filed June 2, 2008 (Motion).1 For the reasons set forth below, the Staff requests that the Board deny NECs Motion.
BACKGROUND Pursuant to 10 C.F.R. § 2.332(a), on November 17, 2006, the Board issued its Initial Scheduling Order for the Vermont Yankee Nuclear Power Station (Vermont Yankee) proceeding setting forth limits for filing of motions and testimony and time frames for certain other activities in this proceeding. November Order at 1. In accordance with the November Order, NEC filed its initial statement of position, testimony, and exhibits on April 28, 2008 and 1
New England Coalition, Incs Motion to Strike NRC Staff Rebuttal Testimony Concerning NEC Contention 4 (June 12, 2008) (Motion).


In the Matter of )
the Staff2 and the Applicant3 filed their initial statements of position, testimony, and exhibits on May 13, 2008. Subsequently, on June 2, the Staff, Entergy and NEC each filed rebuttal testimony and exhibits. On June 12, 2008, NEC filed the instant Motion To Strike NRC Staff Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto.
  )
DISCUSSION NEC argues that the rebuttal testimony of Kaihwa R. Hsu should be excluded from the record because it includes information and argument that could have and should have been included in his direct testimony. Motion at 1. NEC argues that this interpretation of the Boards purpose for providing staggered filing, where NEC filed its initial statement of position and testimony two weeks prior to Entergy and the Staff, was to allow the Staff and Entergy to respond to NECs initial statement of position and testimony in its initial filings. Id. at 2. NEC further argues that Mr. Hsus rebuttal testimony is essentially a late-filed addendum to [the Staffs] direct testimony, id. at 2, and therefore is outside the proper scope of rebuttal testimony, id. at 3. The Staff disagrees with NECs narrow and mistaken interpretation of the November Order.
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) )  
The November Order is clear and unambiguous. Paragraph 10 of the November Order discusses the Evidentiary Hearing filings and the timing of said filings. Specifically, paragraph 10.B requires that [s]ixty (60) days after the Staffs Second Notice, each Intervenor shall file its initial written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). November Order 2
NRC Staff Initial Statement of Position on NEC contentions 2A, 2B, and 4, testimony, and exhibits (May 13, 2008) (Staff Initial Position).
3 Entergys Initial Statement of Position on New England Coalition Contentions, joint declarations, and exhibits (May 13, 2008).


NRC STAFF'S RESPONSE TO NEC'S MOTION TO STRIKE NRC STAFF'S REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4
at ¶10.B. Furthermore, paragraph 10.C requires that [n]o later than ten (10) days after service of the materials submitted under paragraph 10.B, the Applicant shall file its initial written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). Id. at ¶10.C.4 Finally, and to the point, paragraph 10.D is the controlling paragraph that addresses the submission of rebuttal testimony and it states that [n]o later than twenty (20) days after service of the materials submitted under paragraph 10.C, parties shall file their written responses, rebuttal testimony with supporting affidavits, and rebuttal exhibits, on a contention-by-contention basis pursuant to 10 C.F.R. § 2.1207(a)(2). Id. at ¶10.D (emphasis added). NECs interpretation would make the paragraph 10.D reference to 10.C meaningless.
While the pleadings are staggered, there is no indication that the Board intended the Applicant and the Staff to include rebuttal positions or rebuttal testimony to the intervenors initial statements in their initial filings.5 In fact, as noted above, the November Order specifically states that all parties will file rebuttal testimony twenty (20) days after service of the Applicants Initial Position. November Order at ¶10.D (emphasis added). The Applicant filed its Initial Position on May 13, 2008. Thus, all rebuttal testimony was due twenty (20) days thereafter, on June 2, 2008.6 In accordance with the November Order, the Staff filed its rebuttal testimony on June 2, 2008.
4 In paragraph 10.A of the November Order, the Staff was ordered to indicate which of the other partys positions it supported and to follow the submittal requirements imposed on that party by the November Order, or to follow the submittal requirements imposed on the applicant. November Order at 10.C.
5 Especially since the Staff was in support of the Applicants initial position 6
In Entergys Unopposed Motion to Extend Time to File Motion in Limine with Respect to Rebuttal Testimony of Ulrich Witte (Unopposed Motion), filed June 9, 2008, Entergy unequivocally states that [r]ebuttal testimony by the parties in this proceeding was due on June 2, 2008. Unopposed (continued. . .)


Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Board's ("Board")
CONCLUSION For the reasons discussed above, NECs Motion to strike the NRC Staffs Rebuttal Testimony should be denied.
Initial Scheduling Order (Nov. 17, 2006) (unpublished) ("November Order"), the staff of the U.S.
Respectfully submitted,
 
                                                      /RA/
Nuclear Regulatory Commission ("Staff") hereby submits this response to New England
Lloyd B. Subin Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of June, 2008
 
(. . .continued)
Coalition, Inc's ("NEC") Motion To Strike the NRC Staff Rebuttal Testimony of Kaihwa R. Hsu
 
Concerning NEC Contention 4 and Exhibits A-C thereto, filed June 2, 2008 ("Motion").
1  For the reasons set forth below, the Staff requests that the Board deny NEC's Motion.
BACKGROUND Pursuant to 10 C.F.R. § 2.332(a), on November 17, 2006, the Board issued its Initial
 
Scheduling Order for the Vermont Yankee Nuclear Power Station ("Vermont Yankee")
 
proceeding setting "forth limits for filing of motions and testimony and time frames for certain
 
other activities in this proceeding."  November Order at 1. In accordance with the November
 
Order, NEC filed its initial statement of position, testimony, and exhibits on April 28, 2008 and 1  New England Coalition, Inc's Motion to Stri ke NRC Staff Rebuttal Testimony Concerning NEC Contention 4 (June 12, 2008) ("Motion"). the Staff 2 and the Applicant 3 filed their initial statements of position, testimony, and exhibits on May 13, 2008. Subsequently, on June 2, the Staff, Entergy and NEC each filed rebuttal
 
testimony and exhibits. On June 12, 2008, NEC filed the instant Motion To Strike NRC Staff
 
Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto.
DISCUSSION NEC argues that the rebuttal testimony of Kaihwa R. Hsu should be excluded from the record because it includes information and argument "that could have and should have been
 
included in his direct testimony."  Motion at 1. NEC argues that this interpretation of the Board's
 
purpose for providing staggered filing, where NEC filed its initial statement of position and
 
testimony two weeks prior to Entergy and the Staff, was to allow the Staff and Entergy to
 
respond to NEC's initial statement of position and testimony in its initial filings.
Id. at 2. NEC further argues that Mr. Hsu's rebuttal testimony is essentially "a late-filed addendum to [the
 
Staff's] direct testimony", id. at 2, and therefore is "outside the proper scope of rebuttal testimony", id. at 3. The Staff disagrees with NEC's narrow and mistaken interpretation of the November Order.
The November Order is clear and unambiguous. Paragraph 10 of the November Order discusses the Evidentiary Hearing filings and the timing of said filings. Specifically, paragraph 10.B requires that "[s]ixty (60) days after the St aff's Second Notice, each Intervenor shall file its initial written statements of position, written te stimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1)."  November Order 2  "NRC Staff Initial Statement of Position on NEC contentions 2A, 2B, and 4," testimony, and exhibits (May 13, 2008) ("Staff Initial Position").
3  "Entergy's Initial Statement of Positi on on New England Coalition Contentions," joint declarations, and exhibits (May 13, 2008). at ¶10.B. Furthermore, paragraph 10.C requires that "[n]o later than ten (10) days after service
 
of the materials submitted under paragraph 10.B, the Applicant shall file its initial written
 
statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1)."
Id. at ¶10.C.4  Finally, and to the point, paragraph 10.D is the controlling paragraph that addresses the submission of rebuttal testimony and it states that
"[n]o later than twenty (20) days after service of the materials submitted under paragraph 10.C , parties shall file their written responses, rebuttal testimony with supporting affidavits, and rebuttal exhibits, on a contention-by-contention basis pursuant to 10 C.F.R. § 2.1207(a)(2)."
Id. at ¶10.D (emphasis added). NEC's interpretation would make the paragraph 10.D reference to 10.C meaningless.
While the pleadings are staggered, there is no indication that the Board intended the Applicant and the Staff to include rebuttal positions or rebuttal testimony to the intervenors initial
 
statements in their initial filings.
5  In fact, as noted above, the November Order specifically states that all parties will file rebuttal testimony twenty (20) days after service of the Applicant's Initial Position. November Order at ¶10.D (emphasis added). The Applicant filed its Initial
 
Position on May 13, 2008. Thus, all rebuttal testimony was due twenty (20) days thereafter, on
 
June 2, 2008.
6  In accordance with the November Order, the Staff filed its rebuttal testimony on June 2, 2008.
4  In paragraph 10.A of the November Order, the St aff was ordered to indicate which of the other party's positions it supported and to follow the s ubmittal requirements imposed on that party by the November Order, or to follow the submittal requi rements imposed on the applicant. November Order at 10.C. 5 Especially since the Staff was in suppor t of the Applicant's initial position 6 In Entergy's Unopposed Motion to Extend Time to File Motion in Limine with Respect to Rebuttal Testimony of Ulrich Witte ("Unopposed Mo tion"), filed June 9, 2008, Entergy unequivocally states that "[r]ebuttal testimony by the parties in this proc eeding was due on June 2, 2008". Unopposed (continued. . .)  CONCLUSION For the reasons discussed above, NEC's Motion to strike the NRC Staff's Rebuttal  
 
Testimony should be denied.
Respectfully submitted,         /RA/           Lloyd B. Subin Counsel for NRC Staff  
 
Dated at Rockville, Maryland
 
this 19 th day of June, 2008  
 
(. . .continued)
Motion at 1. NEC has not objected to this Motion.
Motion at 1. NEC has not objected to this Motion.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, 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 the "NRC STAFF'S RESPONSE TO NEC'S MOTION TO STRIKE NRC STAFF'S REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4" 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 an asterisk, by electronic mail, with
copies by U.S. mail, first class, this 19 th day of June, 2008.
Alex S. Karlin, Chair
Administrative Judge
Atomic Safety and Licensing Board 
U.S. Nuclear Regulatory Commission
Washington, DC  20555-0001
E-mail: ask2@nrc.gov Office of the Secretary Attn: Rulemakings and Adjudications Staff
Mail Stop: O-16G4
U.S. Nuclear Regulatory Commission
Washington, DC  20555-0001
E-mail: hearingdocket@nrc.gov William H. Reed*
Administrative Judge
Atomic Safety and Licensing Board 
1819 Edgewood Lane
Charlottesville, VA 22902
E-mail: whrcville@embarqmail.com Marcia Carpentier, Law Clerk Atomic Safety and Licensing Board 
Mail Stop: T-3F23
U.S. Nuclear Regulatory Commission
Washington, DC  20555-0001 E-mail: mxc7@nrc.gov Richard E. Wardwell
Administrative Judge
Atomic Safety and Licensing Board 
U.S. Nuclear Regulatory Commission
Washington, DC  20555-0001
E-mail: rew@nrc.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
E-mail: lauren.bregman@nrc.gov Office of Commission Appellate
Adjudication
Mail Stop: O-16G4
U.S. Nuclear Regulatory Commission
Washington, DC  20555-0001
E-mail: OCAAmail@nrc.gov Peter C.L. Roth, Esq.*
Office of the Attorney General
33 Capitol Street
Concord, NH  3301
E-mail: peter.roth@doj.nh.gov Ronald A. Shems, Esq.*
Karen Tyler, Esq.
Shems Dunkiel Kassel & Saunders, PLLC
91 College Street
Burlington, VT  05401 E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com Anthony Z. Roisman, Esq.*  National Legal Scholars Law Firm 
84 East Thetford Rd.
Lyme, NH  03768
E-mail: aroisman@nationallegalscholars.com David R. Lewis, Esq.*
Matias F. Travieso-Diaz, Esq.
Elina Teplinsky, Esq.
Blake J. Nelson, Esq.
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street, NW
Washington, DC  20037-1128
E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com
b lake.nelson@pillsburylaw.com 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 Diane Curran*
Harmon, Curran, Spielberg, & Eisenberg, LLP
1726 M Street N.W., Suite 600
Washington, D.C. 20036
E-mail:  dcurran@harmoncurran.com Matthew Brock*
Assistant Attorney General, Chief
Environmental Protection Division
Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108
E-mail:  matthew.brock@state.ma.us


        /RA/ _____________________________
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                    )
Lloyd B. Subin
                                                    )
ENTERGY NUCLEAR VERMONT YANKEE,                    )            Docket No. 50-271-LR LLC, 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 the NRC STAFFS RESPONSE TO NECS MOTION TO STRIKE NRC STAFFS REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4 in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 19th day of June, 2008.
Alex S. Karlin, Chair                                Office of the Secretary Administrative Judge                                  Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board                    Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission                    U.S. Nuclear Regulatory Commission Washington, DC 20555-0001                            Washington, DC 20555-0001 E-mail: ask2@nrc.gov                                  E-mail: hearingdocket@nrc.gov William H. Reed*                                      Marcia Carpentier, Law Clerk Administrative Judge                                  Atomic Safety and Licensing Board Atomic Safety and Licensing Board                    Mail Stop: T-3F23 1819 Edgewood Lane                                    U.S. Nuclear Regulatory Commission Charlottesville, VA 22902                            Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com                      E-mail: mxc7@nrc.gov Richard E. Wardwell                                  Lauren Bregman, Law Clerk Administrative Judge                                  Atomic Safety and Licensing Board Atomic Safety and Licensing Board                    U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission                    Mail Stop: T-3 F23 Washington, DC 20555-0001                            Washington, D.C. 20555-0001 E-mail: rew@nrc.gov                                  E-mail: lauren.bregman@nrc.gov Office of Commission Appellate                        Peter C.L. Roth, Esq.*
Adjudication                                      Office of the Attorney General Mail Stop: O-16G4                                    33 Capitol Street U.S. Nuclear Regulatory Commission                    Concord, NH 3301 Washington, DC 20555-0001                            E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov


Counsel for NRC Staff}}
Ronald A. Shems, Esq.*                        Anthony Z. Roisman, Esq.*
Karen Tyler, Esq.                              National Legal Scholars Law Firm Shems Dunkiel Kassel & Saunders, PLLC          84 East Thetford Rd.
91 College Street                              Lyme, NH 03768 Burlington, VT 05401                          E-mail: aroisman@nationallegalscholars.com E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com David R. Lewis, Esq.*                          Sarah Hofmann, Esq.*
Matias F. Travieso-Diaz, Esq.                  Director of Public Advocacy Elina Teplinsky, Esq.                          Department of Public Service Blake J. Nelson, Esq.                          112 State Street - Drawer 20 Pillsbury Winthrop Shaw Pittman LLP            Montpelier, VT 05620-2601 2300 N Street, NW                              E-mail: sarah.hofmann@state.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com blake.nelson@pillsburylaw.com Diane Curran*                                  Matthew Brock*
Harmon, Curran, Spielberg, & Eisenberg, LLP    Assistant Attorney General, Chief 1726 M Street N.W., Suite 600                  Environmental Protection Division Washington, D.C. 20036                        Office of the Attorney General E-mail: dcurran@harmoncurran.com              One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us
                                                  /RA/
Lloyd B. Subin Counsel for NRC Staff}}

Latest revision as of 01:48, 13 March 2020

Vermont Yankee - NRC Staff'S Response to Nec'S Motion to Strike NRC Staff'S Rebuttal Testimony Concerning NEC Contention 4
ML081710726
Person / Time
Site: Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date: 06/19/2008
From: Subin L
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-90
Download: ML081710726 (6)
v • d • e


Text

June 19, 2008 UNITED STATES OF AMERICA 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) )

NRC STAFFS RESPONSE TO NECS MOTION TO STRIKE NRC STAFFS REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4 Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards (Board)

Initial Scheduling Order (Nov. 17, 2006) (unpublished) (November Order), the staff of the U.S.

Nuclear Regulatory Commission (Staff) hereby submits this response to New England Coalition, Incs (NEC) Motion To Strike the NRC Staff Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto, filed June 2, 2008 (Motion).1 For the reasons set forth below, the Staff requests that the Board deny NECs Motion.

BACKGROUND Pursuant to 10 C.F.R. § 2.332(a), on November 17, 2006, the Board issued its Initial Scheduling Order for the Vermont Yankee Nuclear Power Station (Vermont Yankee) proceeding setting forth limits for filing of motions and testimony and time frames for certain other activities in this proceeding. November Order at 1. In accordance with the November Order, NEC filed its initial statement of position, testimony, and exhibits on April 28, 2008 and 1

New England Coalition, Incs Motion to Strike NRC Staff Rebuttal Testimony Concerning NEC Contention 4 (June 12, 2008) (Motion).

the Staff2 and the Applicant3 filed their initial statements of position, testimony, and exhibits on May 13, 2008. Subsequently, on June 2, the Staff, Entergy and NEC each filed rebuttal testimony and exhibits. On June 12, 2008, NEC filed the instant Motion To Strike NRC Staff Rebuttal Testimony of Kaihwa R. Hsu Concerning NEC Contention 4 and Exhibits A-C thereto.

DISCUSSION NEC argues that the rebuttal testimony of Kaihwa R. Hsu should be excluded from the record because it includes information and argument that could have and should have been included in his direct testimony. Motion at 1. NEC argues that this interpretation of the Boards purpose for providing staggered filing, where NEC filed its initial statement of position and testimony two weeks prior to Entergy and the Staff, was to allow the Staff and Entergy to respond to NECs initial statement of position and testimony in its initial filings. Id. at 2. NEC further argues that Mr. Hsus rebuttal testimony is essentially a late-filed addendum to [the Staffs] direct testimony, id. at 2, and therefore is outside the proper scope of rebuttal testimony, id. at 3. The Staff disagrees with NECs narrow and mistaken interpretation of the November Order.

The November Order is clear and unambiguous. Paragraph 10 of the November Order discusses the Evidentiary Hearing filings and the timing of said filings. Specifically, paragraph 10.B requires that [s]ixty (60) days after the Staffs Second Notice, each Intervenor shall file its initial written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). November Order 2

NRC Staff Initial Statement of Position on NEC contentions 2A, 2B, and 4, testimony, and exhibits (May 13, 2008) (Staff Initial Position).

3 Entergys Initial Statement of Position on New England Coalition Contentions, joint declarations, and exhibits (May 13, 2008).

at ¶10.B. Furthermore, paragraph 10.C requires that [n]o later than ten (10) days after service of the materials submitted under paragraph 10.B, the Applicant shall file its initial written statements of position, written testimony with supporting affidavits, and exhibits, on a contention-by-contention basis, pursuant to 10 C.F.R. § 2.1207(a)(1). Id. at ¶10.C.4 Finally, and to the point, paragraph 10.D is the controlling paragraph that addresses the submission of rebuttal testimony and it states that [n]o later than twenty (20) days after service of the materials submitted under paragraph 10.C, parties shall file their written responses, rebuttal testimony with supporting affidavits, and rebuttal exhibits, on a contention-by-contention basis pursuant to 10 C.F.R. § 2.1207(a)(2). Id. at ¶10.D (emphasis added). NECs interpretation would make the paragraph 10.D reference to 10.C meaningless.

While the pleadings are staggered, there is no indication that the Board intended the Applicant and the Staff to include rebuttal positions or rebuttal testimony to the intervenors initial statements in their initial filings.5 In fact, as noted above, the November Order specifically states that all parties will file rebuttal testimony twenty (20) days after service of the Applicants Initial Position. November Order at ¶10.D (emphasis added). The Applicant filed its Initial Position on May 13, 2008. Thus, all rebuttal testimony was due twenty (20) days thereafter, on June 2, 2008.6 In accordance with the November Order, the Staff filed its rebuttal testimony on June 2, 2008.

4 In paragraph 10.A of the November Order, the Staff was ordered to indicate which of the other partys positions it supported and to follow the submittal requirements imposed on that party by the November Order, or to follow the submittal requirements imposed on the applicant. November Order at 10.C.

5 Especially since the Staff was in support of the Applicants initial position 6

In Entergys Unopposed Motion to Extend Time to File Motion in Limine with Respect to Rebuttal Testimony of Ulrich Witte (Unopposed Motion), filed June 9, 2008, Entergy unequivocally states that [r]ebuttal testimony by the parties in this proceeding was due on June 2, 2008. Unopposed (continued. . .)

CONCLUSION For the reasons discussed above, NECs Motion to strike the NRC Staffs Rebuttal Testimony should be denied.

Respectfully submitted,

/RA/

Lloyd B. Subin Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of June, 2008

(. . .continued)

Motion at 1. NEC has not objected to this Motion.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, 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 the NRC STAFFS RESPONSE TO NECS MOTION TO STRIKE NRC STAFFS REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4 in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 19th day of June, 2008.

Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: hearingdocket@nrc.gov William H. Reed* Marcia Carpentier, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com E-mail: mxc7@nrc.gov Richard E. Wardwell Lauren Bregman, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: rew@nrc.gov E-mail: lauren.bregman@nrc.gov Office of Commission Appellate Peter C.L. Roth, Esq.*

Adjudication Office of the Attorney General Mail Stop: O-16G4 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 3301 Washington, DC 20555-0001 E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov

Ronald A. Shems, Esq.* Anthony Z. Roisman, Esq.*

Karen Tyler, Esq. National Legal Scholars Law Firm Shems Dunkiel Kassel & Saunders, PLLC 84 East Thetford Rd.

91 College Street Lyme, NH 03768 Burlington, VT 05401 E-mail: aroisman@nationallegalscholars.com E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com David R. Lewis, Esq.* Sarah Hofmann, Esq.*

Matias F. Travieso-Diaz, Esq. Director of Public Advocacy Elina Teplinsky, Esq. Department of Public Service Blake J. Nelson, Esq. 112 State Street - Drawer 20 Pillsbury Winthrop Shaw Pittman LLP Montpelier, VT 05620-2601 2300 N Street, NW E-mail: sarah.hofmann@state.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com blake.nelson@pillsburylaw.com Diane Curran* Matthew Brock*

Harmon, Curran, Spielberg, & Eisenberg, LLP Assistant Attorney General, Chief 1726 M Street N.W., Suite 600 Environmental Protection Division Washington, D.C. 20036 Office of the Attorney General E-mail: dcurran@harmoncurran.com One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us

/RA/

Lloyd B. Subin Counsel for NRC Staff

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