ML15260B278

Joint Motion on Mandatory Disclosures and Schedule

ML15260B278
Person / Time
Site:	Vermont Yankee
Issue date:	09/17/2015
From:	Bessette P, Burdick S, Amitava Ghosh, Kisicki A, Landis-Marinello K, Mizuno B, Raimo S, Jeremy Wachutka, Matt Young 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: )

) Docket No. 50-271-LA-3 ENTERGY NUCLEAR VERMONT YANKEE, LLC )

AND ENTERGY NUCLEAR OPERATIONS, INC. )

) September 17, 2015 (Vermont Yankee Nuclear Power Station) )

)

JOINT MOTION ON MANDATORY DISCLOSURES AND SCHEDULE In accordance with 10 C.F.R. § 2.323(a), the Atomic Safety and Licensing Boards (Boards) September 3, 2015 Order (Scheduling Conference Call and Establishing Hearing Procedures), and the September 10, 2015 conference call with the Board, the parties1 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 Boards 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 withdrawing 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 respectfully request that the Board issue 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).

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

Latest Entergy Proposal NRC Staff Response States Response If the identical relevant e-mail, Agree. Agree.

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 senders 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.

To the extent reasonably Agree. Agree.

practicable, each party will provide electronic copies of documents in a word-searchable, PDF format.

A party need not identify or Agree. Agree.

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.

In connection with the NRC Agree. Agree.

Staffs submittal of the hearing file, the NRC Staff will identify all documents available via the NRCs 2

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 NRCs website or via a search of Vermont Yankee Docket No. 50-271 in ADAMS.

The parties need not identify Agree. Agree.

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

The parties need not produce Agree. Agree, provided that cost-publicly-available documents. free is added to each instance Each party, however, will where the phrase publicly-produce as part of its available appears.

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.

The parties have agreed to Agree. Agree.

waive portions of the requirements in 10 C.F.R. §§ 2.336(a)(3) and 2.336(b)(5) to 3

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 partys 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 Agree. Agree, provided that the parties and the NRC Staff Board adopts a mandatory prepared hearing file related to disclosure deadline that is no both contentions are due later than November 2, 2015.

November 2, 2015. Monthly In the event that this deadline updates are due on the first is tied to a future event, such business day of every month as the resolution of Contention beginning December 1, 2015. V as Entergy proposes, the State opposes any delay of the The parties have reviewed and briefing of Contention V.

generally agree with the Boards proposed schedule set Also, the State understands forth in the Boards September that Entergy now intends to 3, 2015 Order. The parties, make filings early next week however, would like to clarify seeking to withdraw its LAR.

that the trigger for the hearing The State was amenable to an schedule for Contention I extension for initial would be either the NRC Staff disclosures until November 2, issuance of the results of its 2015 when it was assumed environmental review or the that the proceeding was going issuance of the initial decision forward. The State continues on Contention V, whichever is to assent to November 2, 2015 later. This is necessary on that basis, but reserves all because it is possible that the rights regarding the timing NRC Staff will issue its and scope of any disclosures environmental review before (and all other issues) based on the issuance of the initial the filings that Entergy intends 4

decision on Contention V. to make regarding withdrawal Accordingly, the ER in of its LAR.

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 Boards 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 Boards September 3, 2015 Order as indicated in Appendix A of this filing.

Entergys preferred The NRC Staff agrees with Disagree. The Board granted alternative to the above Entergys preferred alternative the State a hearing for two of agreement on scheduling: of first conducting mandatory its contentions. In these The Board concluded on page disclosures related to instances, directly applicable Contention V and, only after NRC regulations require that 2 of the September 3, 2015 an initial decision on initial disclosures be made Order that [a]n initial decision on Contention V will Contention V that does not within thirty (30) days of the obviate the need for a hearing issuance of the order granting be issued before the Board on Contention I, conducting a request for hearing or addresses Contention I.

mandatory disclosures related petition to intervene and Therefore, the disclosures on to Contention I. This without further order or Contention I may be deferred approach would be consistent request from any party. 10 5

until after the issuance of the with the Boards September 3, C.F.R. § 3.336(a). As noted initial decision on Contention 2015 Order and LBP-15-24 during the September 10, 2015 V. Specifically, initial and would allow the parties to conference call, the State disclosures by all parties and devote their resources to the would prefer to keep that date.

the NRC Staff prepared potentially dispositive issue of Nevertheless, to accommodate hearing file related to Contention V. the other parties requests, the Contention I are due 30 days State has agreed to significant after the issuance of the initial The NRC Staff does not view concessions on the timing of decision on Contention V. this bifurcation of disclosures both initial disclosures and Monthly updates are due on along with the bifurcation of briefing. The State cannot, the first business day of every the hearing to be a departure however, agree to a proposal month thereafter. from the regulations or an that pushes the initial exemption or a stay, but, disclosure deadline to an Entergy supports this proposal rather, an appropriate exercise undefined date that will fall for the following reasons: of the Boards authority under many months after disclosures the circumstances and are due under the regulations.

• The proposal is consistent pursuant to 10 C.F.R. § 2.319.

with the Boards plan to While the State accepts the bifurcate the resolution of Boards decision to postpone a the two admitted hearing on Contention I until contentions. The Board Contention V has been stated that Contention V resolved, the Board did not will be addressed first and exempt the parties from the be decided based on legal regulatory requirement of briefs and oral argument.

providing initial disclosures An initial decision on within 30 days of the granting Contention V will be of a petition to intervene. 10 issued before the Board C.F.R. § 3.336(a). Such an addresses Contention I.

exemption is inappropriate See September 3, 2015 given that these rules, Order, at 2. It is logical to including the deadline for likewise bifurcate the initial disclosures, were disclosure requirements.

revisited and affirmed in an

• The proposal also is extensive rulemaking process consistent with the just 3 years ago. See 77 Fed.

Boards statement that Reg. 46562 (Aug. 3, 2012).

resolution of Contention To move the date for initial V may resolve Contention disclosures beyond what the I. Specifically, the Board State has agreed toand thus stated that it recognizes over the States objection that a decision on the would effectively exempt legal question presented Entergy and NRC Staff from in Contention V may regulatory requirements, obviate the need for a without any showing that, for hearing on the closely instance, the criteria of 10 related factual matters C.F.R. § 50.12 are met. It raised in Contention I.

would also in effect grant a 6

LBP-15-24, at 44-45. stay of Contention I altogether Requiring mandatory without the required showing disclosures for a for a stay. The Board should contention that would be not allow such a departure obviated could result in from the regulations, significant unnecessary particularly when: (1) the effort and expense. State has already agreed to provide the parties with more

• The proposal also does than twice the usual time for not harm the parties. All initial disclosures; (2) any of the parties would burden is minimal because receive the disclosures this matter concerns only two from the other parties contentions, and only one with sufficient time to contention that has a prepare for any hearing on significant factual component; Contention I. (3) all parties are represented and have the resources to

• Contrary to the States prepare these disclosures in a view, no exemption timely fashion; and (4) most would be needed to importantly, any delay beyond implement Entergys November 2, 2015 would proposal. 10 C.F.R. § create significant delays in 2.336(a) specifically proceeding with Contention I.

allows the Board to make this change without an On this last point, it bears exemption under 10 emphasis that initial C.F.R. § 50.12. 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 Entergys requested delay of initial disclosures, the entire schedule for Contention Iand maybe Contention V as wellwould no longer work. For instance, the schedule for Contention I calls 7

for 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.

Entergys 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 Entergys 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.

8

APPENDIX A TABLE 1: Briefing Schedule for Contention V2 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 rebuttal 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 (ER) or issuance of the initial decision on Contention V (ID), whichever is later ER/ID+30 Deadline for summary disposition motions ER/ID+70 Vermonts direct testimony, statements of position, and exhibits ER/ID+115 Entergys and NRC Staffs rebuttal testimony, statements of position, and exhibits ER/ID+160 Vermonts 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 Vermonts direct testimony, statements of position, and exhibits BD/ID +115 Entergys and NRC Staffs rebuttal testimony, statements of position, and exhibits BD/ID +160 Vermonts rebuttal testimony and exhibits BD/ID +190 Evidentiary Hearing (Hrg)

Hrg+90 Initial Decision 2

The parties recognize that Vermonts 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.

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CONCLUSION For the reasons discussed above, the parties request that the Board consider the above proposals for mandatory disclosures and hearing schedules.

10

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

Susan H. Raimo Paul M. Bessette Entergy Services, Inc. Stephen J. Burdick 101 Constitution Avenue, N.W. Morgan, Lewis & Bockius LLP Washington, D.C. 20001 1111 Pennsylvania Avenue, N.W.

Phone: (202) 530-7330 Washington, D.C. 20004 Fax: (202) 530-7350 Phone: (202) 739-5796 E-mail: sraimo@entergy.com 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 Kyle H. Landis-Marinello Vermont Department of Public Service Assistant Attorney General 112 State Street - Drawer 20 Vermont Attorney Generals Office Montpelier, VT 05620 109 State Street (802) 828-3785 Montpelier, VT 05609 E-mail: aaron.kisicki@vermont.gov (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 11

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of: )

) Docket No. 50-271-LA-3 ENTERGY NUCLEAR VERMONT YANKEE, LLC )

AND ENTERGY NUCLEAR OPERATIONS, INC. )

) September 17, 2015 (Vermont Yankee Nuclear Power Station) )

)

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 Commissions 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.

DB1/ 84577165