ML15260B278
| ML15260B278 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| 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.