ML070530295

2007/02/15-Entergy's Answer to New England Coalition'S Second Motion to Compel

ML070530295
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	02/15/2007
From:	Travieso-Diaz M Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS 13087
Download: ML070530295 (5)

Text

~As /309,7 February 15, 2006 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC February 15, 2007 (4:16pm)

Before the Atomic Safety and Licensing Board OFFICE OF SECRETARY In the Matter of ) IULCIVI-M\INI3 AINPU 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 SECOND MOTION TO COMPEL Pursuant to 10 C.F.R. §2.323(e), Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (hereinafter collectively referred to as "Entergy") hereby answers and opposes New England Coalition's ("NEC") "Second Motion to Compel" dated February 12, 2007 ("Motion"). The Motion asks the Atomic Safety and Licensing Board ("Board") to compel production of three categories of privileged documents listed in Entergy's Third Supplemental Disclosure privilege logs. Entergy provided those logs to NEC on February 1, 2007.

NEC's Motion should be denied because NEC failed to comply with the consultation requirements of 10 C.F.R. § 2.323(b). In the late afternoon of Friday, February 9, 2007, counsel for NEC sent the following e-mail message to Entergy's counsel with respect to item No. 3 of its Motion: "Please confirm that the privilege logs you served with Entergy's Third Supplemental Disclosure are duplicates of logs served with Entergy's Second Supplemental Disclosure, with the exception of the log listing only one document: e-mail from R. Buckley to L. DeWald (11/3/05)." The following Monday, February 12, 2007, at 12:53 PM, counsel for NEC sent the following e-mail message to Entergy's counsel: "For the same reasons stated in NEC's prior motion to compel, NEC will file a motion to compel production of documents newly identified Je/>2t6# SCe 4/ se-c,

as privileged in Entergy's third supplemental privilege logs." NEC did not provide reasonable time for Entergy to respond to its inquiry (given the intervening weekend) and did not attempt to consult with Entergy before filing the Motion but merely informed Entergy of its intention to do so. NEC also never inquired, or sought to consult with Entergy, with respect to the first two items whose production NEC seeks. Since NEC failed to comply with the consultation requirements of 10 C.F.R. § 2.323(b), its Motion should be denied.'

In addition, all the privileged documents listed in NEC's Motion pertain to NEC Contention 1, whose admission in this proceeding is currently under sua sponte review by the Commission. The Board has stayed an earlier NEC Motion to Compel production of privileged documents relating to this contention pending the outcome of the Commission's review. Order (Granting Entergy Motion to Stay Further Proceedings Related to NEC Motion to Compel) dated January 27, 2006 ("Order"). As directed in the Order:

The Board grants Entergy's motion to stay further proceedings related to NEC's motion to compel, with the following provisions. As specified in the motion, the parties will continue to make all disclosures, including those related to NEC Contention 1. If the Commission ultimately upholds the admission of NEC Contention 1, then the parties shall submit answers to NEC's motion to compel no more than ten (10) days after the date of the Commission's order. If the Commission reverses the admission of NEC Contention 1, then NEC's motion to compel is moot and no further proceedings related to it are require& If the Commission remands the matter to the Board, then we will provide the parties with further instruction at that time.

Order at 2. Therefore, the documents sought in the Motion are subject to the Board's Order and any disputes as to their privileged nature is stayed in accordance with the Order's provisions.

NEC's motion to compel discovery at this time is barred by the Board's Order.

Had NEC actually consulted with Entergy's counsel (e.g., by placing a phone call) it would have learned, with respect to Item 3, that the three-part privileged log provided with the Third Supplemental Disclosure had been updated to identify several additional documents at the end of the log. These additions were also readily identifiable by their numbering.

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

Dated: February 15, 2007 3

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) )

CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy's Response to New England Coalition's Second Motion To Compel" dated February 15, 2006, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, or with respect to Judge Elleman by overnight mail, and where indicated by an asterisk by electronic mail, this 15th day February, 2007.

• 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 C I 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 0-16 C1 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

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

• Steven C. Hamrick, Esq. Director of 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.hofinann@state.vt.us may@nrc.gov; schl@nrc.gov

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

National Legal Scholars Law Firm *Karen 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 Matias F. Travieso-Diaz 2