E-mail from Administrative Judge Young to Parties Responding to Request for Time on 05/14/04 to Make Oral Motion| ML041810256 |
| Person / Time |
|---|
| Site: |
Catawba  |
|---|
| Issue date: |
05/13/2004 |
|---|
| From: |
Austin Young
Atomic Safety and Licensing Board Panel |
|---|
| To: |
Anthony Baratta, Bupp M, Byrd H, Cottingham A, Curran D, Elleman T, Fernandez A, Olson M, Repka D, Uttal S, Vaughn L
Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Atomic Safety and Licensing Board Panel, NRC/OCAA, NRC/OGC, NRC/SECY/RAS, Nuclear Information & Resource Service (NIRS), Winston & Strawn, LLP |
|---|
| SECY RAS |
| References |
|---|
| 50-413-OLA, 50-414-OLA, ASLBP 03-815-03-OLA, RAS 7766 |
| Download: ML041810256 (3) |
|
|
|---|
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2006-01-12
[Table view] |
Text
DOCKETED USNRC May 13, 2004 (3:44PM)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Docket Nos. 50-413/414-OLA RAS 7766 From: Ann Young To: Anthony Baratta; Antonio Fernandez; Cottingham, Anne; Diane Curran; Helen Byrd; Lisa F. Vaughn; Margaret Bupp; Mary Olson; Office of HearingDocket; Repka, David; Susan Uttal; Thomas S. Elleman Date: Thu, May 13, 2004 2:53 PM
Subject:
RE: Request for time on 5/14/04 to make oral motion The Licensing Board will take up these matters tomorrow, and asks all to have your calendars, along with those of any necessary witnesses, available so that we can discuss potential dates for any rescheduling.
Administrative Judge Young
>>> "Repka, David" <DRepka@winston.com> 05/13/04 02:31PM >>>
I have received the e-mail this morning from Ms. Curran. I have no objection to discussing this matter at the conference on Friday, and for planning purposes would appreciate confirmation that this issue will or will not be on the agenda. In the meantime, a brief response to the issues raised by Ms. Curran is warranted.
At the outset, Duke and its counsel are deeply sympathetic to the situation involving Dr. Lyman, and our best wishes are with him.
As reflected in Ms. Curran's e-mail to the Board, counsel for Duke and counsel for BREDL have discussed various possibilities regarding scheduling in light of the present, unfortunate circumstances. However, we think it important to be clear that Duke has not agreed to any specific proposal regarding the schedule on the non-security contentions.
Duke remains committed to resolving the issues in this case at the earliest possible date. As we have stated before, schedule is critical for the MOX fuel lead assembly program. Duke cannot accept the entire burden and the entire risk that results from these unfortunate circumstances. Timely resolution of this case simply cannot be subject to the schedule of one individual. We recognize that extreme and unavoidable circumstances can necessitate some
small schedule accommodations and, accordingly, Duke can take reasonable measures to accommodate Dr. Lyman and BREDL. However, as sympathetic as we are for Dr. Lyman, Duke and DOE should not alone suffer the consequences of circumstances that are not of their making.
Duke has raised the issue of settlement with BREDL several times since this proceeding began, and is encouraged regarding the representations this week from BREDL regarding Contention II. Duke is eager to engage in further settlement discussions with BREDL on Contention II, but emphasizes the importance of a prompt conclusion in this regard. (We are willing to do that as early as tomorrow, after the scheduled conference.) A prompt settlement of Contention II may provide a means to accommodate BREDL's request for a delay on Contention I.
If a settlement can be reached promptly on Contention II, and there is an available date for a shorter hearing in early July, a deferral of the hearing on Contention I is one possible resolution to the problem -- as represented by Ms. Curran. However, there are conditions to any approach involving a deferral that must be discussed and resolved with the Licensing Board.
First, to justify any delay, there needs to be assurance of a successful outcome regarding settlement of Contention II. Further, there needs to be an available hearing date to timely address Contention I. Duke understands from past conferences that July presents scheduling difficulties for the Board. However, this approach may be possible since the hearing might be reduced to one day. Duke does not believe that it should be forced to accept a delay into August.
Finally, the approach suggested by Ms. Curran, and as further clarified above, is not the only possible resolution of BREDL's problem. Although Duke has not discussed this with the parties, it is also possible that we go forward with hearings on Contention I in June as scheduled -- in light of the potential for narrowing of the issues to that contention. This approach would require accommodations from the Staff and Duke regarding outstanding discovery due from BREDL. However, the issues in Contention I have been discussed at recent ACRS meetings in which Dr. Lyman has participated. Seemingly, this would reduce the time required to prepare testimony and prepare for hearing.
We appreciate the Board's consideration of Duke's views on this matter. We will be prepared to discuss these issues tomorrow.
David A. Repka Winston & Strawn LLP 202-371-5726
Original Message-----
From: Diane Curran [1]
Sent: Thursday, May 13, 2004 9:08 AM To: Office of Secretary; Susan L. Uttal; Repka, David; Mary Olson; Janet and Lou Zeller; Ann Marshall Young; Lisa F. Vaughn; Antonio Fernandez; NRC Office of Appellate Adjudication; Anthony J. Baratta; Thomas S.
Elleman; Cottingham, Anne; Margaret J. Bupp Cc: Ed Lyman; Janet and Lou Zeller
Subject:
Request for time on 5/14/04 to make oral motion
Dear Judges Young,
Elleman, and Baratta, I am writing to request an opportunity to make an oral motion for a change in the schedule for litigation of Contentions I and II, at tomorrow's meeting. The reason for the motion is that Dr. Lyman's father is still in critical condition, and during the past week Dr.
Lyman has had to spend most of his time at the hospital with his family. Because of this, BREDL will not be able to meet today's deadline for filing discovery responses, nor will Dr. Lyman be prepared for his deposition on Tuesday May 18. These delays will also make it impossible to meet the deadline for filing testimony on May 25.
Dr. Lyman remains uncertain as to when he will be able to return to Washington and resume his work on this case, but he hopes to be back at work by the end of May or early June.
I have consulted with counsel for both Duke and the NRC Staff regarding this situation. Although I have not yet heard back from the NRC Staff, counsel for Duke and I have agreed on the following general principles regarding a schedule adjustment:
- 1. Complete discovery and file testimony as soon as possible, hopefully during the month of June;
- 2. Undertake settlement negotiations regarding Contention II, which both BREDL and Duke have agreed is capable of informal resolution (BREDL to make a written proposal to Duke when Dr. Lyman returns to Washington);
- 3. Hold a one or two day hearing in July or August. If Contention II is settled, one day should suffice.
I respectfully request an opportunity to present this request in the form of an oral motion at tomorrow's meeting.
Thank you for your consideration.
Sincerely, Diane Curran The contents of this message may be privileged and confidential. Therefore, if this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege.
Please do not disseminate this message without
the permission of the author.
CC: Ed Lyman; Janet and Lou Zeller Mail Envelope Properties (40A3C41C.3B0 : 6 : 37434)
Subject:
RE: Request for time on 5/14/04 to make oral motion Creation Date: Thu, May 13, 2004 2:53 PM From: Ann Young Created By: AMY@nrc.gov Recipients duke-energy.com lfVaughn (Lisa F. Vaughn) eos.ncsu.edu elleman (Thomas S. Elleman) harmoncurran.com dcurran (Diane Curran) main.nc.us nirs (Mary Olson) nrc.gov owf5_po.OWFN_DO AXF2 (Antonio Fernandez)
HearingDocket (Office of HearingDocket)
MJB5 (Margaret Bupp)
SLU (Susan Uttal) nrc.gov twf2_po.TWFN_DO AJB5 (Anthony Baratta) nrc.gov twf3_po.TWFN_DO HRB (Helen Byrd) skybest.com BREDL CC (Janet and Lou Zeller)
ucsusa.org elyman CC (Ed Lyman) winston.com ACottingham (Cottingham, Anne)
DRepka (Repka, David)
Post Office Route duke-energy.com eos.ncsu.edu harmoncurran.com main.nc.us owf5_po.OWFN_DO nrc.gov twf2_po.TWFN_DO nrc.gov twf3_po.TWFN_DO nrc.gov skybest.com ucsusa.org winston.com Files Size Date & Time MESSAGE 10108 Thursday, May 13, 2004 2:57 PM Options Expiration Date: None Priority: Standard Reply Requested: No Return Notification: None Concealed
Subject:
No Security: Standard