ML081710726

2008/06/19-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 B 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)

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 STAFF'S RESPONSE TO NEC'S MOTION TO STRIKE NRC STAFF'S REBUTTAL TESTIMONY CONCERNING NEC CONTENTION 4

Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Board's ("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Initial Scheduling Order (Nov. 17, 2006) (unpublished) ("November Order"), the staff of the U.S.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, 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.

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/ _____________________________

Lloyd B. Subin

Counsel for NRC Staff