STATE OF VERMONT PUBLIC SERVICE BOARD
Docket No. 7862
Amended Petition of Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc., for amendment of their Certificate of Public Good and other approvals required under 30 V.SA. § 231(a) for authority to continue after March 21, 2012, operation of the Vermont Yankee Nuclear Power Station, including the storage of spent nuclear fuel
) ) ) ) ) ) ) ) Docket No. 7964
Petition of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. pursuant to 30 V.S.A. § 248(j), for a certificate of public good to install a diesel-driven station blackout electric generator for the Vermont Yankee Nuclear Power Station
) ) ) ) ) ) Order entered: 3/22/2013
ORDER RE MOTION TO CONSOLIDATE HEARINGS
On February 1, 2013, New England Coalition, Inc. ("NEC") filed a motion with the Public Service Board ("Board"), pursuant to Board Rule 2.211 and Rule 42(a) of the Vermont Rules of Civil Procedure ("V.R.C.P."), to partially consolidate the proceedings in Docket 7862 and Docket 7964 for the purpose of jointly hearing and considering certain issues. Vermont1 Public Research Interest Group ("VPIRG") filed a response on February 14, 2013, in which it advocated for a consolidation of the proceedings in the two dockets. The Vermont Department
1. Docket 7862 concerns an amended petition for a certificate of public good ("CPG") and other approvals required under 30 V.S.A. § 231 for authority to operate Vermont Yankee Nuclear Power Station ("VY Station"). Docket 7964 involves a petition pursuant to 30 V.S.A. § 248(j) for a CPG to install a diesel generator at the VY Station to meet NRC requirements related to station blackouts. The petitioners in the two dockets are the same.
of Public Service ("Department") filed an opposition to NEC's motion on February 15, 2013. No other party in either docket filed a response to NEC's motion. In this Order, the Board denies NEC's motion for consolidation, as discussed below.
In its motion, NEC proposes a joint hearing in the two dockets related to the following matters: the impact on decommissioning costs of the project proposed in Docket 7964;
preemption issues; the "non-compliance with prior Board Orders" by Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy VY"); and whether Entergy VY is "entitled to consideration of [its] petitions based upon [its] past misrepresentations to the Board." 2
In support of its motion, NEC focuses most of its argument on the purported need to join the preemption issues in the two dockets to ensure that "there is a consistent treatment of
Entergy's preemption claims, and a decision that can be efficiently appealed" if Entergy VY takes a particular position on preemption issues. It also argues that partial consolidation will allow3 for a comprehensive consideration of "whether Entergy's conduct precludes it from receiving a CPG [in Docket 7862] or permission to build a diesel generator." At the core of NEC's4 arguments for a joint hearing of certain issues seems to be NEC's claims that Entergy VY is "duplicitously positioning itself" on federal preemption issues, is "habitually disingenuous" and has a "history of misrepresentations to the Board." NEC further contends that the proposed5 diesel generator project in Docket 7964 would increase the decommissioning costs for the VY Station, that this increase would also need to be addressed in Docket 7862, and, therefore, that "the issue of increased decommissioning costs, and how such costs will be paid, should be heard and decided in consolidated hearings." 6
2. NEC's M otion to Consolidate of 2/1/13 at 1. 3. NEC's M otion to Consolidate of 2/1/13 at 3. 4. NEC's M otion to Consolidate of 2/1/13 at 7. 5. NEC's M otion to Consolidate of 2/1/13 at 5 and 7. 6. NEC's M otion to Consolidate of 2/1/13 at 2.
VPIRG takes the position that the two proceedings should be consolidated. It notes that7 the diesel generator project involves new facilities and is "a necessary component" for future operation of the VY Station. VPIRG asserts that separate consideration of the two petitions8 would be similar to allowing a single project to be segmented into separate pieces for 'piecemeal' review in order to avoid a review of the cumulative impact of the separate pieces. Because the proposed diesel generator project "clearly triggers" Section 248, VPIRG argues that the criteria of Section 248 "must be applied not just to the diesel generator and its structure but to the project of which it is a component" and that the review of the two petitions should be combined in the same proceeding. In VPIRG's view, "the purposes of § 248 cannot be adequately implemented in9 these proceedings" without consolidation. 10
In turn, the Department observes that the scope of the Docket 7964 proceeding is limited and relates to a discrete project that, it asserts, is related to NRC regulations that require the VY Station "to have a redundant source of onsite emergency AC power sufficient to recover from a station blackout." The Department notes that the two proceedings are at different stages and11 "moving forward at different speeds" and argues that consolidating the two dockets "would not promote judicial economy." The Department claims that timing and scheduling considerations,12 especially as they relate to the diesel generator project, would make "[a]ny attempt to coordinate the activity in the two dockets . . . nearly impossible." The Department further argues that13 consolidation would confuse and conflate the distinct issues presented in the two proceedings.14
When pending proceedings involve a common question of law or fact, the Board has discretion under Board Rule 2.211 and V.R.C.P. 42(a) to order a joint hearing of matters in issue
7. After noting that V.R.C.P. 42(a) would require the consent of all parties for a consolidation of the two proceedings, VPIRG recommends, if such consent is not obtained, that the Board dismiss the Docket 7964 proceeding and hear and rule on the proposed diesel generator project as part of the proceeding in Docket 7862. VPIRG's Response of 2/14/13 to NEC's M otion to Intervene ("VPIRG's Response") at 1.
8. VPIRG's Response at 3. 9. VPIRG's Response at 2-3. 10. VPIRG's Response at 1.
11. Department's Response of 2/15/13 to NEC's M otion to Intervene ("Department's Response") at 3. 12. Department's Response at 2.
13. Department's Response at 2. 14. Department's Response at 3-4.
or, with the consent of the parties, to consolidate the proceedings. Upon review of the motion15 and the responses, the Board denies NEC's motion for partial consolidation of the two dockets and joint hearings on certain issues. The reasons advanced by NEC for joint hearings do not provide a sufficient basis for granting its motion as they appear largely unrelated to objectives that would normally underlie a joint hearing or consolidation order under V.R.C.P. 42(a). Joint hearings or a consolidation of the two dockets at this time would neither be desirable or practical. Far from avoiding unnecessary costs and delay, joint hearings or the consolidation of the two dockets appear more likely to have the opposite effect and are not likely to otherwise promote judicial economy or efficiency. In addition to the concerns raised by the Department in its response, most of the issues for which NEC proposes a joint hearing are more likely to be addressed in both dockets through briefs rather than in hearings.
In recommending that the two proceedings be consolidated to better achieve the purposes of Section 248, VPIRG does not take into account that Docket 7862 is not a Section 248
proceeding, but rather involves a petition for a certificate of public good under Section 231. Although the Board's determination of whether the operation of the VY Station by Entergy VY will promote the general good of the state under Section 231 will involve the consideration of Section 248 criteria, the proceeding in Docket 7862 presents a far greater array of issues than are presented in the Section 248(j) petition in Docket 7964 for authority to install a diesel generator at the site. Thus, the consolidation of the two proceedings would unduly complicate the
resolution of the Docket 7694 proceeding, which should be heard and considered as a separate and distinct matter apart from the Docket 7862 proceeding, even if some of the issues of law and fact in the two proceedings are intertwined.
15. V.R.C.P. 42(a) provides as follows:
(a) Consolidation. W hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may, with the consent of the parties, order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
Related Matter
Entergy VY submitted a letter to the Board on March 1, 2013, in which it referenced and sought clarification of a comment made by the Chairman during the technical hearings in Docket 7862. Entergy VY requests that "the Board clarify that the Chairman did not intend to order16 the alignment of the schedules" in the two dockets. In its Order of December 27, 2012, in17 Docket 7964, the Board left the determination of a schedule in that docket to the hearing officer, but stated that the hearing officer may adopt a schedule that tracks with the schedule in Docket 7862. The Chairman's comments during the technical hearings in Docket 7862 were not18 intended to alter or otherwise affect the hearing officer's scheduling authority in Docket 7964.
Conclusion
For the reasons discussed above, we deny NEC's motion to consolidate hearings on certain issues in the two dockets.
SO ORDERED.
16. Docket 7862, tr. 2/25/13 at 283. W ith respect to a question asked of a witness at the technical hearings in Docket 7862 about the possibility that Entergy VY would do site preparation for the diesel generator installation before the receipt of a CPG in Docket 7964, Chairman Volz commented:
I would note that the Board has issued a schedule in that other Docket that would permit that Docket to work together with the schedule in this Docket so we will have an actual decision in time in both Dockets, so we are not even going to face this issue.
17. See Entergy VY's letter of 3/1/13 at 2. 18. Docket 7964, Order of 12/27/12 at 4.
Dated at Montpelier, Vermont, this 22 day of March , 2013.nd
s/James Volz )
) PUBLIC SERVICE
)
s/David C. Coen ) BOARD )
) OF VERMONT s/John D. Burke )
OFFICE OF THE CLERK
FILED: March 22, 2013
ATTEST: s/Susan M. Hudson Clerk of the Board
NO TIC E TO READ ERS: This decision is subject to revision of technical errors. Readers are requested to notify the Clerk of the Board (by e-mail, telephone, or in writing) of any apparent errors, in order that any necessary corrections may be made. (E-mail address: [email protected])
