ML043650203
| ML043650203 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 12/27/2004 |
| From: | Karlin A Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271, ASLBP 04-832-02-OLA, LBP-04-33, RAS 9052 | |
| Download: ML043650203 (10) | |
Text
LBP-04-33 RAS 9052 DOCKETED 12/27/04 SERVED 12/27/04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Alex S. Karlin, Chairman Dr. Anthony J. Baratta Lester S. Rubenstein In the Matter of ENTERGY NUCLEAR VERMONT YANKEE L.L.C.
and ENTERGY NUCLEAR OPERATIONS, INC.
(Vermont Yankee Nuclear Power Station)
Docket No. 50-271 ASLBP No. 04-832-02-OLA December 27, 2004 MEMORANDUM AND ORDER (Denying Motion for Dismissal and Re-Notice of Hearing)
Before the Board is a motion by the New England Coalition (NEC), a petitioner herein, to dismiss this proceeding and to require that notice of opportunity for hearing in this matter be reissued only after a completed application is filed with the NRC. For the reasons set forth below, we deny NECs motion.
On July 1, 2004, the Commission published a notice of opportunity to request a hearing on an application by Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc., (collectively, Entergy) for an extended power uprate (EPU) to Facility Operating License No. DPR-28 for operation of the Vermont Yankee Nuclear Power Station in Windham County, Vermont. 69 Fed. Reg. 39,976 (July 1, 2004). NEC filed a timely request for 1 On November 22, 2004, this Board ruled that NEC had standing and that two of its contentions were admissible under 10 C.F.R. § 2.309(f). LBP-04-28, 60 NRC __ (slip op. at 1)
(Nov. 22, 2004). That decision also found that another petitioner, the Department of Public Services of the State of Vermont, had standing and had raised two admissible contentions.
2 [NECs] Motion to Dismiss Proceeding Due to Failure to Provide Proper Notice (Oct.
20, 2004) [hereinafter NEC Motion]; [NECs] Memorandum of Fact and Law Supporting Its Motion to Dismiss the Proceeding Due to Failure to Provide Proper Notice (Oct. 20, 2004)
[hereinafter NEC Memorandum]. NEC filed its motion electronically and then distributed paper copies of it to the participants and the Board at the outset of our October 21, 2004 prehearing conference in Brattleboro, Vermont. The State did not join or participate in the instant motion.
3 Entergys Answer to [NECs] Motion to Dismiss Proceeding Due to Failure to Provide Proper Notice (Nov. 1, 2004) [hereinafter Entergy Answer]; NRC Staff Answer to [NECs]
Motion to Dismiss Proceeding Due to Failure to Provide Proper Notice (Nov. 1, 2004)
[hereinafter Staff Answer].
hearing and seven proposed contentions.1 Then, on October 20, 2004, NEC filed this motion to dismiss and a supporting memorandum.2 Following a brief discussion of this motion at the October 21, 2004 prehearing conference, the Board declined to delay the proceeding. Tr. at 85-92. We indicated that we would rule on the matter only after Entergy and the NRC Staff had the opportunity to file their responses. Id. at 91. The responses were filed on November 1, 2004.3 I. ARGUMENT OF THE PARTIES NEC argues that dismissal and re-noticing of the hearing in this case is required because Entergys application was incomplete as of July 1, 2004, and thus the notice was fatally defective. NEC Memorandum at 2-3. NEC asserts that, as of October 19, Entergy had filed at least 20 supplements to the application, many of which were filed after July 1, 2004. Id.
at 2. NEC declares that these supplements resulted in a large transformation of Entergys original license amendment application, and that even now the application is still being completed. Id.
On this basis, NEC argues several legal points. First, NEC declares that the notice does not meet the requirements of due process because it fails to provide persons of average intelligence with reasonable notice of the subject matter of the license amendment at issue.
Id. at 3. Next, NEC asserts that the Boards authority and jurisdiction is limited to the matters set forth in the notice, and since the notice referred only to the portions of the application referenced in [it], the Board lacks jurisdiction and authority to consider the subsequent supplements. Id. Accordingly, NEC asks the Board to dismiss and re-notice this matter. Id. at 4.
Entergy and the Staff oppose the motion. First, both argue that the July 1, 2004 notice is adequate and that NEC has failed to identify any change to the nature or scope of the proceeding as a result of the supplements to Entergys license amendment application.
Entergy Answer at 4; Staff Answer at 4. In this regard, they note that 10 C.F.R. § 2.309(c) and (f) provide petitioners the opportunity to file new or amended contentions if material new information becomes available via these supplements. Entergy Answer at 6; Staff Answer at 4.
Second, in response to NECs claim that the supplements fall outside the Licensing Boards jurisdiction, both Entergy and the Staff take the position that because the September 22, 2004 notice establishing the Licensing Board encompasses the entire proceeding, the claim is without merit. Entergy Answer at 4 n. 8; Staff Answer at 5. Third, both assert that NEC has neglected to offer any legal authority for the proposition that supplements to an application require the issuance of a new notice, or that the Board possesses the authority to reissue the notice or to order the Staff to do so. Entergy Answer at 4; Staff Answer at 5 n. 8.
In addition, Entergy also claims that NECs motion was not timely. It notes that 10 C.F.R. § 2.323(a) requires that a motion be made within 10 days of the occurrence or circumstance from which it arises. Entergy asserts that since the motion complains about the inadequacy of the July 1, 2004 notice, NECs failure to submit its motion within ten days of that date requires its rejection. Entergy Answer at 2-3.
II. ANALYSIS A.
Due Process NRC regulations require that the NRC publish a notice of proposed action in the Federal Register in the event that an application for an amendment to an operating license for a facility is filed. 10 C.F.R. § 2.105(a). Among other things, the notice must set forth the nature of the proposed action and indicate, to persons whose interests may be affected by the proceeding, the existence of an opportunity to file a request for hearing or a petition for leave to intervene.
10 C.F.R. § 2.105(b) and (d). Due process requires that such notice be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950). The purpose of the notice is to apprise the affected individual of, and permit adequate preparation for, an impending hearing. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 14 (1978). The operative test is that the notice as published must reasonably apprise any interested person of the issues involved in the proceeding. North Alabama Express, Inc. v. United States, 585 F.2d 783, 787 (5th Cir. 1978)
(quoting Buckner Trucking, Inc. v. United States, 354 F.Supp. 1210, 1219 (S.D. Tex. 1973)).
The notice published on July 1, 2004 stated that the proposed action is to change Entergys operating license to increase the maximum authorized power level... to 1912 MWt and to alter the VYNPS technical specifications to provide for implementing uprated power operation. 69 Fed. Reg. at 39,976. In addition, the notice reflected that seven supplements to the Entergy application had been filed as of July 1, 2004. Id. at 39,977. Subsequent to that date and prior to the date of NECs motion, thirteen additional supplements were filed.
4 This is not to say that the subject matter of an RAI cannot be adjudicated. Rather, if a party believes that the RAI or the applicants response to the RAI raises a legitimate issue related to the adequacy of the application, the petitioner may submit that issue in the form of a new or amended contention. Id. at 350.
Upon examination of the thirteen supplements filed after July 1, 2004, we do not see how the application has sustained a large transformation. Nine of the supplements were submitted in response to various requests for additional information (RAIs) by the Staff. The remaining four were to update, correct, or clarify previously-filed materials. These types of RAIs, responses, and updating/clarification submissions are a standard and ongoing part of NRC licensing reviews. Baltimore Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 349 (1998).4 NEC has not pointed to any change in the basic nature or the scope of the proceeding that has occurred as a result of the filing of the supplemental information.
Nor do post-docketing RAIs necessarily indicate that an application was too incomplete to launch this proceeding or that it must be dismissed. An application may be sufficiently complete for purposes of docketing, and for starting the adjudicatory process even though the Staff subsequently asks for additional information from the applicant. Baltimore Gas & Electric Company, CLI-98-25, 48 NRC at 350. Further, allowing an application to be modified or improved as the Commissions review moves forward is consistent with the dynamic licensing process followed in Commission licensing proceedings. The Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 395 (1995).
In this instance, because the supplements have not changed the nature of the proceeding from that which was noticed on July 1, we believe that NECs right to due process has not been violated. The notice explicitly states that the proceeding relates to the license amendment sought by Entergy to increase the maximum power level of the plant to 1912 MWt 5 We find somewhat analogous the logical outgrowth test used in the context of administrative rulemaking. Where a final regulation is a logical outgrowth of the proposed rule originally noticed in the Federal Register, the notice provisions of the Administrative Procedures Act are satisfied, and challenges related to the adequacy of the notice must fail. Shell Oil Company v. EPA, 950 F.2d 741, 759 (D.C. Cir. 1992). In the situation before us today, the supplements to the Entergy application are essentially clarifications and responses to Staff questions that do not change the nature or scope of the proceeding and are, at most, simply a logical outgrowth of the application noticed on July 1, 2004.
6 The Board also questions whether NEC has standing to raise a due process complaint in this situation. It is clear that NEC is aware of NRCs normal RAI process that triggers applicants to file supplementary information, and has actual knowledge of the publicly available contents of the supplements to the Entergy application. Thus, we are not aware of any injury in fact that NEC has suffered or will suffer based upon these additions to the application.
and to modify certain technical specifications of the license to support the requested power increase. 69 Fed. Reg. at 39,976. The fact that the notice reflects that seven supplements had already been filed, served to reasonably inform the public that further refinement or supplementation of the application might be expected. In addition, the notice indicates how an interested party can access and review documents and other materials related to the application, either at the NRCs public document room or via the ADAMS Public Electronic Reading Room on the Internet. Id. at 39,977. Certainly, the July 1 notice has served to apprise interested parties of the pendency of the proposed 20% uprate in the Vermont Yankee station license and has given all interested parties the opportunity to present their objections. Mullane, 339 U.S. at 314.5 Nor is there any showing that NEC, or any other person, may have been prejudiced in any way by the filing of supplements to Entergys application.6 As noted, a participant in a proceeding has the ability to file new, amended, or late-filed contentions when additional documentation becomes available. 10 C.F.R. §§ 2.309(c) and (f)(2). Newly available material information has long been held to provide good cause to file a new contention. Consumers Power Company (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 577 (1982). With these existing procedures available to all participants, we believe that NEC has adequate means by which to address all newly-docketed supplements to the Entergy application.
B.
Jurisdiction over Supplemental Material NEC also claims that these supplements to the application have expanded the scope of the proceeding beyond that which was noticed in the Federal Register, and thus has placed those issues outside the Boards jurisdiction. This Licensing Board was established to preside over the proceeding concerning Entergys request to change the operating license for the Vermont Yankee Nuclear Power Station to increase the maximum authorized power level from 1593 megawatts thermal (MWt) to 1912 MWt. 69 Fed. Reg. 56,797, 56,798 (Sept. 22, 2004).
Since the thirteen additional supplements are essentially clarifications and updates submitted in response to Staff questions, we see no large transformation of the application or the scope of this proceeding, and we conclude that they clearly fall within this Boards jurisdiction. This aspect of NECs challenge is without merit.
C.
Authority to Renotice Given that we have rejected NECs substantive arguments, we need not address the question of a Boards authority to reissue the notice, or to order the Staff to do so.
D.
Timeliness of the Motion We reject Entergys argument that NECs motion necessarily was untimely under 10 C.F.R. § 2.323(a) because it was not filed within 10 days of July 1, 2004. To the contrary, we conclude that the ten-day deadline is logically triggered not on the date of the notice, but on the date when the transforming supplement (which allegedly renders the original notice inadequate) becomes available to the public. Here, NEC claims that at least one supplement (Supplement 16) was first made available to the public on October 19, 2004, one day prior to 7 Copies of this memorandum and order were sent this date by Internet e-mail transmission to counsel for (1) licensees Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc.; (2) petitioners Vermont Department of Public Service and New England Coalition of Brattleboro, Vermont; and (3) the staff.
the filing of the NEC motion. Thus, whatever its other defects, the motion was not necessarily untimely.
III. CONCLUSION In light of that discussed above, we see no reason to dismiss or to renotice this proceeding. NECs motion seeking these actions is thus DENIED.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD7
/RA/
Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 27, 2004
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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ENTERGY NUCLEAR VERMONT YANKEE L.L.C. )
Docket No. 50-271-OLA and ENTERGY NUCLEAR OPERATIONS, INC.
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Vermont Yankee Nuclear Power Station)
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(Operating License Amendment)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING MOTION FOR DISMISSAL AND RE-NOTICE OF HEARING) (LBP-04-33) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Alex S. Karlin, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Lester S. Rubenstein Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Brooke D. Poole, Esq.
Robert M. Weisman, Esq.
Marisa C. Higgins, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Raymond Shadis New England Coalition P.O. Box 98 Edgecomb, ME 04556
2 Docket No. 50-271-OLA LB MEMORANDUM AND ORDER (DENYING MOTION FOR DISMISSAL AND RE-NOTICE OF HEARING)
John M. Fulton, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Sarah Hofmann, Esq.
Special Counsel Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 Anthony Z. Roisman, Esq.
National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 Jay E. Silberg, Esq.
Matias F. Travieso-Diaz, Esq.
Douglas J. Rosinski, Esq.
Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 Jonathan M. Block, Esq.
94 Main Street P.O. Box 566 Putney, VT 05346-0566
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 27th day of December 2004