ML061560374
| ML061560374 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 06/05/2006 |
| From: | Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 11713 | |
| Download: ML061560374 (10) | |
Text
1 The six organizations are: Nuclear Information and Resource Service (NIRS);
Jersey Shore Nuclear Watch, Inc.; Grandmothers, Mothers and More for Energy Safety; New Jersey Public Interest Research Group; New Jersey Sierra Club; and New Jersey Environmen-tal Federation.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 11713 DOCKETED 06/05/06 ATOMIC SAFETY AND LICENSING BOARD SERVED 06/05/06 Before Administrative Judges:
E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of AMERGEN ENERGY COMPANY, LLC (Oyster Creek Nuclear Generating Station)
Docket No. 50-0219-LR ASLBP No. 06-844-01-LR June 5, 2006 MEMORANDUM AND ORDER (Denying NIRSs Motion to Apply Subpart G Procedures)
I. INTRODUCTION On February 27, 2006, this Board granted a hearing request submitted by six organiza-tions1 - hereinafter referred to collectively as NIRS - opposing an application by AmerGen Energy Company, LLC (AmerGen) to renew its operating license for the Oyster Creek Nuclear Generating Station (Oyster Creek) for twenty years beyond the current expiration date of April 9, 2009. See LBP-06-07, 63 NRC 188 (2006). This Board admitted one contention for litiga-tion; namely, NIRSs challenge to AmerGens aging management program for measuring corro-sion in the sand bed region of Oyster Creeks drywell liner (LBP-06-07, 63 NRC at 217). Our Order stated that the proceeding shall be conducted in accordance with the informal adjudica-tory procedures prescribed in Subpart L of 10 C.F.R. Part 2 (id. at 228).
2 AmerGen and the NRC Staff filed Answers opposing NIRSs Motion. See AmerGen Answer Opposing [NIRSs] Motion to Apply Subpart G Procedures (May 16, 2006)
[hereinafter AmerGen Answer]; NRC Staff Response to Motion to Apply Subpart G Procedures (May 16, 2006) [hereinafter NRC Staff Answer].
On May 5, 2006, NIRS filed a motion requesting that the Board order this proceeding be conducted pursuant to the formal hearing requirements under 10 C.F.R. Part 2, Subpart G, in accordance with 10 C.F.R. § 2.310(d). See [NIRS] Motion to Apply Subpart G Procedures at 1 (May 5, 2006) [hereinafter NIRS Motion].2 For the reasons discussed below, we deny NIRSs Motion.
II. ANALYSIS A.
Regulatory Standard For Permitting A Subpart G Hearing In Licensing Proceedings In January 2004, the Commission amended its Rules of Practice for adjudicatory pro-ceedings to address its longstanding concern that the adjudicatory... process in 10 C.F.R.
part 2, subpart G, associated with licensing... actions, is not as effective as it could be (Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2182 (Jan. 14, 2004)). As part of its effort to make the NRCs hearing process more effective and efficient (ibid.), the Commission adopted 10 C.F.R. § 2.310(d), which revised 10 C.F.R. Part 2 to no longer require formal hear-ings under Subpart G for cases involving the grant, renewal, licensee-initiated amendment, or termination of licenses or permits for nuclear power reactors (10 C.F.R. § 2.310(d)). Such proceedings ordinarily will be conducted under the Subpart L informal hearing procedures, unless the presiding officer by order finds that (ibid.):
resolution of the contention or contested matter necessitates resolution of issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter.
3 Even if NIRSs motion could reasonably be construed as requesting a Subpart G hearing based on the second standard in section 2.310(d) - and we do not believe that it can -
we would still deny the request, because NIRS did not address, much less show, that the admit-ted contention implicates issues of motive or intent of the party or eyewitness material to the resolution of the contested matter (10 C.F.R. § 2.310(d); 69 Fed. Reg. at 2222).
As relevant here, the language in the 2004 amendments and the Commissions State-ment of Consideration accompanying them make clear that 10 C.F.R. § 2.310(d) only requires a Subpart G hearing in two circumstances (69 Fed. Reg. at 2222): (1) the contention involves an issue of material fact concerning the occurrence of a past activity, and the credibility of an eyewitness may reasonably be expected to be at issue; or (2) the contention involves an issue where the motive or intent of a party or eyewitness is material to the resolution of the contested matter. See also Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), LBP-04-31, 60 NRC 686, 694 (2004).
These two regulatory standards for permitting Subpart G hearings are consistent with judicial case law, which recognizes that a formal evidentiary hearing - which includes the right to cross-examine witnesses - is best used to resolve issues where motive, intent, or credibility are at issue, or if there is a dispute over the occurrence of a past event (69 Fed. Reg at 2205)
(quoting Union Pac. Fuels v. FERC, 129 F.3d 157, 164 (D.C. Cir. 1997)).
In the instant case, NIRS grounds its request for a Subpart G hearing exclusively on the first standard in section 2.310(d). See NIRS Motion at 1-2. Because NIRS has not argued that a Subpart G hearing is warranted pursuant to the second standard in section 2.310(d), we need not consider that issue.3 B.
NIRS Fails To Satisfy The Standard For A Subpart G Hearing NIRS asserts that this Board should conduct a Subpart G hearing in this proceeding because AmerGen is not trustworthy (NIRS Motion at 1-2). In support of its assertion, NIRS recounts the following two categories of alleged misbehavior that, according to NIRS, impugn the credibility of AmerGen: (1) alleged misconduct by AmerGens parent company, Exelon (NIRS Motion at 2-4), and (2) alleged misconduct by AmerGen (id. at 4-7).
As we now show, NIRSs reliance on the above events to support its Subpart G hearing request is not tenable.
1.
The Alleged Misconduct By Exelon Does Not Justify A Subpart G Hearing NIRS asserts that a Subpart G hearing is warranted in light of misconduct by Exelon employees at the Braidwood and Quad Cities nuclear facilities in Illinois. Regarding the Braidwood facility, NIRS avers that Exelon allowed its power plant to repeatedly [and unlaw-fully] leak radioactive wastewater contaminated with tritium [into the groundwater] (NIRS Motion at 2-3). Regarding the Quad Cities facility, NIRS avers that two Exelon technicians recently falsified inspection documentation while calibrating local instrumentation (id. at 3).
The above allegations, however, plainly fail to satisfy the regulatory standards for a Subpart G hearing, because: (1) NIRS fails to show that the putative misconduct by Exelon employees at the Braidwood and Quad Cities facilities is related to the resolution of issues of material fact relating to the occurrence of a past activity that has been placed in dispute by the contention in this case (10 C.F.R. § 2.310(d)); and (2) NIRS fails to show that any of the individuals involved in the alleged events at the Braidwood and Quad Cities facilities will likely be an eyewitness [whose credibility] may reasonably be expected to be at issue in this case (ibid.). Each of these failures, standing alone, is fatal to NIRSs request for a Subpart G hearing. See Vermont Yankee, LBP-04-31, 60 NRC at 703.
NIRS argues that, because it does not know the witnesses AmerGen may call in this proceeding, this Board should consider the historical misconduct of Exelon employees as evidence of AmerGens lack of credibility (NIRS Motion at 8). The short answer to this argu-ment is that AmerGen and Exelon are separate corporate entities, and in the absence of evidence to the contrary (and none has been presented here), the credibility of employees of different corporate entities will not be assumed across organizations (AmerGen Answer at 7 n.12; cf. Vermont Yankee, LBP-04-31, 60 NRC at 702 (unless the allegations concern an individual who continues to work for [the licensee] and is identified as an eyewitness here, we cannot conclude that 10 C.F.R. § 2.310(d) has been satisfied).
2.
The Alleged Misconduct by AmerGen Does Not Justify A Subpart G Hearing NIRS also asserts that a Subpart G hearing is warranted because AmerGen has been untruthful on [four] occasions in the statements it has made regarding Oyster Creek (NIRS Motion at 4). First, NIRS alleges that AmerGen made a misleading statement in its Answer to NIRSs Petition to Intervene regarding corrosion in the upper region of the drywell liner (ibid.).
Second, NIRS alleges that AmerGen made inconsistent[] represent[ations] to NIRS regarding the proprietary nature of a 1996 inspection of the drywell liner (ibid.). Third, NIRS alleges that the drywell measurements AmerGen submitted to the NRC Staff show a systematic bias in AmerGens favor that AmerGen failed to correct (id. at 5). Finally, NIRS asserts that AmerGen made false statements regarding the radiological consequences of an airplane crash into the Oyster Creek reactor building (id. at 5-7).
None of the above incidents - whether viewed individually or collectively - satisfies the standard for a Subpart G hearing.
The first two incidents - the misleading statement AmerGen allegedly made in its Answer to NIRSs Petition to Intervene regarding corrosion in the upper region of the drywell liner (NIRS Motion at 4), and the inconsistent[] represent[ations] AmerGen allegedly made to NIRS regarding the proprietary nature of a 1996 inspection of the drywell liner (ibid.) - arguably pertain to the adjudication of issues in this proceeding. However, the standard in 10 C.F.R. § 2.310(d) for a Subpart G hearing is not satisfied simply because a party has made a misstate-4 In light of this Boards authority to enforce a partys obligation to comply with discovery requirements, NIRS need not harbor concerns about its ability to build a case while relying on paper discovery from an untrustworthy source (NIRS Motion at 9). We note, moreover, that AmerGen has submitted a proposed Protective Order and Nondisclosure Affidavit that, once executed by NIRSs representative, will afford NIRS access to relevant (continued...)
ment or a misrepresentation regarding an incident that has some general nexus to issues in the proceeding. Rather, section 2.310(d) requires NIRS to show that the alleged incident concerns an issue[] of material fact [in the contention] relating to the occurrence of a past activity (10 C.F.R. § 2.310(d)). NIRS has not made such a showing.
Even if NIRS had made that showing, however, the two incidents would not justify a Subpart G hearing, because NIRS has not alleged that anyone involved in the incidents will likely testify as an eyewitness, much less as an eyewitness whose credibility... may reason-ably be expected to be at issue (10 C.F.R. § 2.310(d)). The first incident - which involved an allegedly misleading statement in a pleading submitted by AmerGens counsel - does not seriously impugn counsels credibility. Although we require truthfulness from all parties in all aspects of our proceedings[,]... the fact that a partys [counsel]... emphasizes those facts supporting its position and minimizes the relevance of opposing facts, does not shock us, nor does it require a Subpart G hearing under either criterion of 10 C.F.R. § 2.310(d) (Vermont Yankee, LBP-04-31, 60 NRC at 700). Nor does the second incident - which involved an apparent discovery dispute - raise a serious question regarding counsels credibility. Our mandatory disclosure process requires parties to disclose all documents and data compilations
... that are relevant to the contentions (10 C.F.R. § 2.336(a)(2)(i)). If a party fails, without excuse, to comply with its disclosure obligations, this Board will impose appropriate sanctions (see 10 C.F.R. § 2.336(e); Vermont Yankee, LBP-04-31, 60 NRC at 698). But our regulations do not contemplate that a single alleged discovery dispute will give rise to the imposition of a Subpart G hearing procedure as a sanction.4 4(...continued) proprietary information. See AmerGen Answer at 9.
5 Although we reasonably may expect battles over the opinions of the opposing experts... unless they are also testifying as fact eyewitnesses with first-hand knowledge of a material and disputed past activity, Subpart G procedures are not dictated under 10 C.F.R. § 2.310(d) (Vermont Yankee, LBP-04-31, 60 NRC at 700) (quoting 69 Fed. Reg. at 2222).
NIRS also argues that a Subpart G hearing is warranted because the drywell measure-ments submitted by AmerGen to the NRC Staff show a systematic bias in AmerGens favor (NIRS Motion at 5). Although this assertion arguably implicates an issue[] of material fact relating to the occurrence of a past activity that is relevant to this proceeding (10 C.F.R. § 2.310(d)), the resolution of any such issue - i.e., the determination of the existence vel non of a systematic bias in drywell measurements - would not be resolved by eyewitness testimony (ibid.). Rather, such an issue is an example of a classic, technical disagreement that would be resolved through the use of expert witnesses. As explained in Vermont Yankee, LBP-04-31, 60 NRC at 700, expert witnesses may testify as to the validity of the various technical assump-tions and calculations, but they are not eyewitnesses whose testimony is based on first-hand knowledge of the past activity. Rather, expert witnesses simply provid[e] an opinion based upon the testimony of others (69 Fed. Reg. at 2222). To the extent that disagreements exist among competing expert witnesses, they are properly resolved via Subpart L procedures (10 C.F.R. § 2.310(a); accord 69 Fed. Reg. at 2222 (Subpart G hearing is not warranted for pro-ceedings involving testimony by expert witness[es] who have no first-hand knowledge).5 Finally, NIRSs request for a Subpart G hearing based on the allegedly false statements made by AmerGen regarding the radiological consequences of an airplane crash into the Oyster Creek reactor building is insubstantial, because NIRS fails to show how that event 6
NIRS asserts that where the credibility [of an AmerGen eyewitness] is at issue
.... a Subpart G hearing is required for the proceedings to meet the requirements of the
[Administrative Procedure Act (APA)] (NIRS Motion at 9). Even assuming the accuracy of that assertion (but cf. 69 Fed. Reg at 2205) (Commission observes that neither the [Atomic Energy Act] nor the APA require the use of the procedures provided in Subpart G), NIRS has failed to show that the APA requires a Subpart G hearing here, because NIRS has not shown that the credibility of an eyewitness may reasonably be expected to be at issue (10 C.F.R. § 2.310(d)).
7 Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) New Jersey; (3) NIRS; and (4) the NRC Staff.
relates to the present contention, nor does NIRS attempt to show that any person involved in that putative misconduct will likely be an eyewitness in this proceeding.6 III. CONCLUSION For the foregoing reasons, we deny NIRSs Motion to hold a Subpart G hearing in this proceeding.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD7
[Original Signed By]
E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE
[Original Signed By]
Dr. Paul B. Abramson ADMINISTRATIVE JUDGE
[Original Signed By]
Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland June 5, 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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AMERGEN ENERGY COMPANY, LLC
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Docket No. 50-219-LR
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(Oyster Creek Nuclear Generating Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING NIRSS MOTION TO APPLY SUBPART G PROCEDURES) 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 E. Roy Hawkens, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Paul B. Abramson 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 Steven C. Hamrick, Esq.
Mitzi A. Young, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Richard Webster, Esq.
Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695
2 Docket No. 50-219-LR LB MEMORANDUM AND ORDER (DENYING NIRSS MOTION TO APPLY SUBPART G PROCEDURES)
Paul Gunter, Director Reactor Watchdog Project Nuclear Information and Resource Service 1424 16th Street, NW, Suite 404 Washington, DC 20036 Donald J. Silverman, Esq.
Kathryn M. Sutton, Esq.
Alex S. Polonsky, Esq.
Morgan, Lewis, & Bockius LLP 1111 Pennsyvlania Ave., NW Washington, DC 20004 Bradley M. Campbell, Commissioner New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Jill Lipoti, Director New Jersey Department of Environmental Protection Division of Environmental Safety and Health P.O. Box 424 Trenton, NJ 08625-0424 Ron Zak New Jersey Department of Environmental Protection Nuclear Engineering P.O. Box 415 Trenton, NJ 08625-0415 J. Bradley Fewell, Esq.
Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 Suzanne Leta NJPIRG 11 N. Willow St.
Trenton, NJ 08608 John A. Covino, Esq.
Ellen Barney Balint, Esq.
Valerie Anne Gray, Esq.
Caroline Stahl, Esq.
Deputy Attorneys General New Jersey Office of the Attorney General Environmental Permitting &
Counseling Section Division of Law Hughes Justice Complex P.O. Box 093 Trenton, NJ 08625
[Original signed by Adria T. Byrdsong]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 5th day of June 2006