ML063450097
| ML063450097 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 12/08/2006 |
| From: | Barkman M NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Giitter R | |
| References | |
| 50-293-LR, ASLBP 06-848-02, RAS 12658 | |
| Download: ML063450097 (9) | |
Text
1 See Entergys Brief on the Deadline for a Party to Request the Use of Subpart G Hearing Procedures, December 1, 2006 (Entergy Brief).
December 8, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR GENERATION
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Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR
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OPERATIONS, INC.
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(Pilgrim Nuclear Power Station)
)
NRC STAFFS RESPONSE TO ENTERGYS BRIEF ON THE USE OF SUBPART G HEARING PROCEDURES INTRODUCTION On November 29, 2006, the Atomic Safety and Licensing Board (Board) issued an Order (Regarding Scheduling for Proceeding and Related Matters) (Scheduling Order). The Scheduling Order, among other matters, set a deadline of November 12, 2007, for parties to request the use of Subpart G procedures with regard to later-identified witnesses. During the November 20, 2006 pre-hearing conference call that is the basis for the Scheduling Order, counsel for Entergy Nuclear Operations, Inc. (Entergy) requested leave to file motions regarding that deadline, and the Board directed counsel for Entergy to submit a brief addressing Entergys position on possible requests to use Subpart G procedures with regard to later-identified witnesses and directed the other parties to file their responses to the Brief by December 8, 2006. Tr. 533-36. Entergy filed its brief on December 1. 2006.1 In accordance with the Scheduling Order, the NRC staff (Staff) hereby files its response to Entergys Brief.
For the reasons discussed below, the Staff agrees that, pursuant to 10 C.F.R. § 2.309(g), the 2 See Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch) (Order) LBP-06-23, 64 NRC (Oct. 16, 2006) slip op. at 113.
deadline for requesting the use of Subpart G procedures in this proceeding has expired and that the Board should reconsider and delete that proposed provision of the Scheduling Order.
DISCUSSION In its Brief, Entergy asserts that the Boards proposed schedule, which would allow a party to request Subpart G hearing procedures until November 12, 2007, thirteen (13) days after parties submit their final witness lists, is inconsistent with the NRC adjudicatory process regulations. Entergy Brief at 1. During the scheduling teleconference, Judge Young indicated that the deadline for Subpart G motions would be for requests for procedures regarding later-identified witnesses. Tr. 523-24. Subpart G procedures would include full formal discovery such as interrogatories and depositions, as well as cross-examination by the parties.
See, e.g., 10 C.F.R. § 2.705-2.709. Because Entergy addressed cross-examination as well as other discovery methods in its brief, the Staff will discuss each herein.
The Boards October 16, 2006 Order granting intervention established that the hearing procedures under Subpart L of 10 C.F.R. Part 2 would be used in this matter.2 Entergy asserts, and the Staff agrees, that pursuant to 10 C.F.R. § 2.309(g), if a party wishes to employ Subpart G procedures, it must address the selection in its intervention petition. Entergy Brief at 2. Pilgrim Watch did not address hearing procedures in its petition, nor did it appeal the Boards ruling selecting Subpart L for this proceeding under 10 C.F.R. § 2.311(d) within ten days of the Order. See, Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006); Pilgrim Watch Brief on Appeal of LBP-06-23 (Oct. 31, 2006). Thus, Pilgrim Watch may not request the use of Subpart G hearing procedures after the parties final identification of hearing witnesses. Entergy requested that the Board delete the proposed provision of its scheduling order that would set a deadline for a party to request Subpart G hearing procedures, to wit:
Requests under 2.310(d) to address part of hearing under subpart G based on disclosure of eyewitness and issues of motive or intent - 11/12/07 Scheduling Order, Appendix-Tentative Schedule for Proceeding, at 5. Entergy requested that it be replaced with the following provision:
November 12, 2007. Deadline for requests pursuant to 10 C.F.R. § 2.1204 for cross-examination by the parties, or for any other procedural modification relating to the presentation of testimony or evidence.
Entergy Brief at 7. In addition, Entergy requested that the Board make it clear that any request for additional procedures must be made within 10 days of the occurrence giving rise to the request, as required by 10 C.F.R. § 2.323(a). Id.
The Staff agrees with Entergy that the deadline for requesting Subpart G procedures has passed, and that any procedural matters can and must be resolved through Subpart L.
Pursuant to 10 C.F.R. § 2.309(g), the request for hearing/petition to intervene must address the question of the type of hearing procedures to be employed. The rule states that:
A request for hearing and/or petition for leave to intervene may also address the selection of hearing procedures, taking into account the provisions of § 2.310.
If a request/ petition relies upon § 2.310(d), the request/petition must demonstrate, by reference to the contention and the bases provided and the specific procedures in subpart G of this part, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures.
10 C.F.R. § 2.309(g). The Commission clarified the timing of hearing procedure selection in its final statement of considerations as follows:
Appropriate Hearing Procedures. Section 2.309(g) requires that the request for hearing/petition to intervene address the question of the type of hearing procedure...that should be used for the proceeding. This is not a requirement for admission as a party to the proceeding, but a requestor/petitioner who fails to address the hearing procedure issue would not later be heard to complain in any appeal of the hearing procedure selection ruling. In addition, the final rule requires that if the requestor/petitioner asks for a formal hearing on the basis of
§ 2.310(d), the request for hearing/petition to intervene must demonstrate, by reference to the contention and the bases provided and the specific procedures in Subpart G, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures.
Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004) (emphasis added). See also, id. at 2,202-2,203 (discussing the proposed rule). Thus it is clear that by using may in the final rule wording, the Commission meant simply that petitioners could address hearing procedure selection in their petitions if they so desire, but may also rely on the Board to make the decision without petitioners input. The Commission did not mean to leave open the option of addressing hearing procedure selection at a later date. As further indication that hearing procedures must be established at the outset of the proceeding, 10 C.F.R. § 2.310 instructs, [u]pon a determination that a request for hearing/petition to intervene should be granted and a hearing held, the...Board designated to rule on the request/petition will determine and identify the specific hearing procedures to be used for the proceeding....
In this proceeding, the Board properly chose the hearing procedures in its Order ruling on the standing and contentions of the petitioners. The Boards Order states that the hearing will be conducted under Subpart L, and that the ruling in this regard is based on the absence of any request or demonstration, pursuant to 10 C.F.R. § 2.309(g) and in reliance on the provisions of 10 C.F.R. § 2.310(d), that resolution of any admitted contention necessitates the utilization of the procedures set forth in Subpart G of 10 C.F.R. Part 2. LBP-06-23, 64 NRC ___, slip op. at 113. Pilgrim Watch did not raise the issue in its petition for leave to intervene, nor appeal that decision within 10 days of the Order pursuant to 10 C.F.R.
§ 2.311(d). Accordingly, the proceeding must be conducted pursuant to Subpart L.
3 The deadline for requests under 10 C.F.R. § 2.1204 is January 7, 2007. Scheduling Order at 6.
If the Board grants Entergys request, the Staff submits that this deadline would become superfluous.
4 The Commission stated in the Discussion of the Final Rule, [t]he presiding officer has the authority to allow cross-examination in informal proceedings upon request of a party, if the presiding officer determines that cross-examination is necessary to ensure the development of an adequate record for decision. See e.g., § 2.1204(b)... 69 Fed. Reg. at 2,196; See also, id. at 2,228.
The Scheduling Order contains deadlines for requests under 10 C.F.R. § 2.310(d) as well as requests for cross-examination under § 2.1204.3 Scheduling Order at 5-6. See also, Tr. at 523-24. The Staff submits that only motions for cross-examination under 10 C.F.R.
§ 2.1204 are appropriate, as the hearing is being conducted under Subpart L.4 That section provides ample opportunity for parties to cross-examine witnesses if the Board finds it necessary. The Board need not resort to conducting the hearing under Subpart G in order to assure the development of an adequate record for decision and provide a full and fair adjudication of the facts. CAN v. NRC, 391 F.3d 338, 351 (1st Cir. 2004). Indeed, the Board highlights in its Order the fact that in CAN v. NRC, the First Circuit upheld the NRCs new informal adjudicatory rules, Subpart L, noting that the opportunity for 10 C.F.R. § 2.1204(b)(3) cross-examination is equivalent to the opportunity for cross-examination under the APA § 556(d). Id.; LBP-06-23, 64 NRC ___, slip op. at 113 n. 477.
Entergy states in its brief that there could be special circumstances where a party may seek the Boards leave to cross-examine or depose a witness, but asserts that either event may be handled within the framework of Subpart L, with motions pursuant to 10 C.F.R. §§ 2.1204(b) and 2.336(a). Entergy Brief at 6-7. Section 2.336 sets out general discovery guidelines for informal proceedings, which, according to Entergy, gives the Board discretion to order depositions. Id. The Staff submits that this provision gives the Board discretion only with regard to issues relating to the initial disclosures and hearing file, such as timing and scope of disclosures. The discovery required by § 2.336 constitutes the totality of the discovery that 5 See, CAN v. NRC, 391 F.3d at 351; LBP-06-23, 64 NRC, slip op. at 113; Tr. at 523-24, 533-35.
may be obtained in informal proceedings. 69 Fed. Reg. at 2,225. The only means by which depositions may take place in a Subpart L proceeding is through Board sanctions, pursuant to 10 C.F.R. § 2.336(e)(1), or by order of the Commission, pursuant to 10 C.F.R. § 2.336(f).
CONCLUSION For the foregoing reasons, the Staff supports Entergys request that the Board reconsider and delete the proposed provision of the Scheduling Order which sets a deadline for a party to request the use of Subpart G procedures after the parties final hearing witness lists are submitted. See Entergy Brief at 7. The Staff agrees that the November 12, 2007 deadline should be for requests for cross-examination pursuant to 10 C.F.R. § 2.1204 and/or for any other procedural modifications within the confines of Subpart L. In addition, the Staff requests that the provision in the Scheduling Order setting January 7, 2008 as the deadline for motions under 10 C.F.R. § 2.1204 be deleted. This change would be consistent with the Boards Order, statements made during the scheduling conference call, and the Commissions regulations.5 Respectfully submitted,
/RA/
Molly L. Barkman Counsel for the NRC Staff Dated at Rockville, Maryland this 8th day of December, 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR GENERATION
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Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR
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OPERATIONS, INC.
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(Pilgrim Nuclear Power Station)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.314(b), the following information is provided:
Name:
Molly L. Barkman Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O 15D21 Washington, D.C. 20555-0001 Telephone Number:
(301) 415-1117 Fax Number:
(301) 415-3725 E-mail Address:
mlb9@nrc.gov Admissions:
State of Pennsylvania Name of Party:
NRC Staff Respectfully submitted,
/RA/
Molly L. Barkman Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of December, 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR GENERATION
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Docket No. 50-293-LR COMPANY AND ENTERGY NUCLEAR
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OPERATIONS, INC.
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(Pilgrim Nuclear Power Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS RESPONSE TO ENTERGYS BRIEF ON THE DEADLINE FOR A PARTY TO REQUEST THE USE OF SUBPART G HEARING PROCEDURES and NOTICE OF APPEARANCE for Molly L. Barkman in the above-captioned proceeding have been served on the following by electronic mail and deposit in the U.S. Mail Service or by deposit in the U.S. Nuclear Regulatory Commissions internal mail system as indicated by a single asterisk(*), or by deposit in the U.S. mail system, as indicated by a double asterisk (**) this 8th day of December, 2006.
Administrative Judge*
Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rfc1@nrc.gov Administrative Judge*
Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: amy@nrc.gov Sheila Slocum Hollis**
Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Administrative Judge*
Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pba@nrc.gov Office of Commission Appellate
- Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov Office of the Secretary*
Attn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board*
Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Molly H. Bartlett, Esq.**
52 Crooked Lane Duxbury, MA 02332 E-mail: mollyhbartlett@hotmail.com Chief Kevin M. Nord**
Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street P.O. Box 2824 Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Fax: 781-934-6530 Terence A. Burke, Esq.**
Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 David R. Lewis, Esq.**
Paul A. Gaukler, Esq.
Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Town Manager**
Town of Plymouth 11 Lincoln St.
Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us
/RA/
Molly L. Barkman Counsel for the NRC Staff