ML071070437
| ML071070437 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 04/17/2007 |
| From: | Hawkens E Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 13518 | |
| Download: ML071070437 (10) | |
Text
1 The six organizations are Nuclear Information and Resource Service, 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 Environmental Federation.
2 The Staff issued the FSER three months later than contemplated in its original schedule. See Letter from Jody C. Martin, Counsel for NRC Staff, to Administrative Judges (Nov. 9, 2006) (notifying Board that the FSER is scheduled to be issued by December 29, 2006).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 13518 DOCKETED 04/17/07 ATOMIC SAFETY AND LICENSING BOARD SERVED 04/17/07 Before Administrative Judges:
E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of AMERGEN ENERGY COMPANY, LLC (License Renewal for Oyster Creek Nuclear Generating Station)
Docket No. 50-0219-LR ASLBP No. 06-844-01-LR April 17, 2007 MEMORANDUM AND ORDER (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order)
In the above-captioned proceeding, this Licensing Board granted a hearing request by six organizations1 - hereinafter referred to collectively as Citizens - to challenge 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 expira-tion date of April 9, 2009. See LBP-06-07, 63 NRC 188 (2006). On April 2, 2007, the NRC Staff made the Final Safety Evaluation Report (FSER) available to the public on ADAMS,2 and we convened a telephonic pre-hearing conference call on April 11, 2007 to discuss the establishment of a final scheduling order. This Memorandum and Order summarizes significant aspects of that call, and it establishes a final scheduling order and procedural directives.
3 New Jersey presently is neither a party nor an interested state in this proceeding (10 C.F.R. § 2.315(c)). As discussed later in text, in response to the Boards inquiry whether New Jersey intended to participate as an interested state, it answered in the negative.
I.
SUMMARY
OF CONFERENCE CALL During the conference call of April 11, 2007 (which was transcribed), counsel for the parties (AmerGen, Citizens, and the NRC Staff) and New Jersey3 - addressed the topics listed in the Boards order of March 30, 2007. See Licensing Board Notice of Conference Call at 1-2 (Mar. 30, 2007) (unpublished). The following discussion summarizes significant aspects of that call.
1.
Mandatory Disclosure Counsel for Citizens expressed concern that AmerGen may be withholding documents that are relevant to the issues embodied in the admitted contention. See Transcript (Tr.) at 37-38 (Apr. 11, 2007). Counsel for AmerGen responded that it had released all relevant documents, and that - if Citizens seek the release of additional documents - their remedy is to file a Motion to Compel (id. at 39-41). The Board directed counsel for Citizens to provide AmerGen and the NRC Staff with a short memorandum explaining his concerns. The Board expressed its belief that the parties should be capable of working together to resolve this evidentiary dispute without the need for Board involvement (id. at 40-41).
2.
New Or Amended Contentions Counsel for Citizens stated that Citizens had no present plans to seek leave to file a new or amended contention based on the FSER. Counsel for Citizens reserved the right, however, to file such a motion on or before May 2, 2007. See Tr. at 42, 50-51.
3.
Summary Disposition AmerGen filed a motion for summary disposition on March 30, 2007. Pursuant to this Boards order - and consistent with the request of Citizens and the NRC Staff - the answers of Citizens and the NRC Staff are due on or before April 26. See Tr. at 42. Our establishment of a final schedule in this Memorandum and Order should not be construed as intimating the Boards views regarding the merits of AmerGens motion.
4.
Length Of Evidentiary Hearing The parties stated that any evidentiary hearing on the admitted contention would last no longer than two and one-half days. See Tr. at 42-43.
5.
Closed Hearing Not Necessary The parties do not anticipate that proprietary information will be relied upon at the hearing. To the extent a party determines that a document containing proprietary information is relevant, the parties will endeavor to redact the sensitive information to avoid having to close a portion of the hearing. See Tr. at 44-45.
6.
New Jersey Does Not Plan To Participate As An Interested State Counsel for New Jersey stated that New Jersey does not intend to participate in the hearing as an interested state (10 C.F.R. § 2.315(c)). If New Jersey decides, contrary to its current intent, to participate as an interested state, it will submit a written request by April 18, 2007. See Tr. at 46.
7.
Settlement The parties indicated that settlement - although conceivable - is unlikely. Counsel for the NRC Staff laudably stated that she regularly has encouraged AmerGen and Citizens to settle this matter. The Board advised that it stands ready to provide assistance if the parties wish to employ alternate dispute resolution to address the issues without the need for litigation (10 C.F.R. § 2.338). See Tr. at 47-48.
8.
Stipulation Of Issues If the parties are unable to settle their dispute, the Board encouraged them - in the interest of promoting litigative efficiency - to work together and identify relevant, material issues of fact or law that they may jointly characterize as undisputed prior to an evidentiary hearing.
Counsel for Citizens indicated there were a number of issues the parties would be able to stipulate to in advance of the hearing. See Tr. at 49.
II. SCHEDULE AND DIRECTIVES The following schedule and directives will govern the remainder of this proceeding:
1.
The administrative directives in this Boards Memorandum and Order dated April 19, 2006 will continue to apply to this proceeding, to the extent they are not superseded by, or in conflict with, the directives in this Order.
2.
Counsel for the NRC Staff observed that the Commission has imposed on itself a goal of 30 months in which to issue a final decision in a contested license-renewal proceeding (Tr. at 75-76). This Board has crafted this scheduling order so that the Commission may achieve that goal, notwithstanding the Staffs delay of three months in issuing the FSER (supra note 2). In this regard, the Board is grateful to the parties for their cooperative acceptance of deadlines that provide less time than those described in the Model Milestones.
3.
If Citizens seek leave to file a new or amended contention based on the FSER, they shall do so on or before May 2, 2007. AmerGen and the NRC Staff may file an answer on or before May 21, and Citizens may file a reply on or before May 29. See Tr. at 51-52.
4.
The Board contemplates holding a limited appearance session (10 C.F.R. § 2.315(a)) at a location in the vicinity of the Oyster Creek facility on May 31, 2007. Notice of this session will be published in the Federal Register and provided to the parties. See Tr. at 51.
5.
All the parties shall file their [i]nitial written statements of positions and written testimony with supporting affidavits on the admitted contention[] (10 C.F.R. § 2.1207(a)(1)) on or before July 20, 2007. See Tr. at 52. The parties should be mindful that, because this is a Subpart L proceeding, their initial written submissions should be crafted with such a degree of clarity, breadth, and specificity that they might reasonably be viewed as constituting a complete, fully supported, and wholly sufficient discussion of their case-in-chief. Cf. infra note 5. The written statements should be in the nature of a trial brief that provides a precise road map of the partys case, setting out applicable legal standards and affirmative arguments, identifying witnesses and evidence, specifying the purpose of witnesses and evidence, and stating with particularity how the witness or evidence supports a factual or legal position. The affidavits should set out in detail sufficient for comprehension and confirmation by another expert the specific data and analyses supporting the authoring experts conclusions. The road map in the written statements should, in turn, refer in detail to the technical data and conclusions in the affidavits, guiding the Board through the partys case in such a way that the written statement closely parallels what the party contemplates ultimately submitting as proposed findings of fact and conclusions of law.
To the extent a party seeks to exclude any portion of another partys initial written sub-mission, it shall file a motion in limine to that effect on or before July 27, 2007. A party may file an answer to any such motion on or before August 1. See Tr. at 68-71. The Board looks with favor on the expectation expressed by counsel for the NRC Staff that the parties will have narrowed the issues that are... included in the direct testimony through stipulations and...
[therefore] probably should not be faced with testimony that will require the filing of motions in limine (Tr. at 70).
6.
All the parties shall file their [w]ritten responses and rebuttal testimony with supporting affidavits directed to the initial statements and testimony of other participants (10 C.F.R. § 2.1207(a)(2)) on or before August 17, 2007. See Tr. at 53. A written response should be in the nature of a response brief, providing a road map that identifies the legal and factual weaknesses in an opponents position, identifies rebuttal witnesses and evidence, and specifies the precise purpose of rebuttal witnesses and evidence. Affidavits in support of written responses, like those in support of initial written statements, should set out in detail sufficient for 4
If a party wishes to file proposed questions for the Board to consider asking the sponsors of sur-rebuttal testimony, such questions must be in the format described above and must be submitted no later than September 18, 2007. See Tr. at 59.
comprehension and confirmation by another expert the specific data and analyses underlying the authoring experts conclusions. Being in the nature of rebuttal, the response is not to advance any new affirmative claims or arguments that reasonably should have been, but were not, included in the partys previously-filed initial written statement.
To the extent a party seeks to exclude any portion of another partys responsive written submission, it shall file a motion in limine to that effect on or before August 27, 2007. A party may file an answer to any such motion on or before August 31. See Tr. at 74-75. As mentioned above, and as we emphasized during the teleconference (Tr. at 75), the Board looks with favor on the parties efforts to work together to resolve evidentiary disputes, thereby obviating the need for the filing of motions in limine.
7.
Although not required by the regulations, the Board has found that a thoughtful and concise written reply and sur-rebuttal testimony can benefit the Boards efficient analysis of issues. Accordingly, if any party wishes to file a written reply and sur-rebuttal testimony, they shall do so on or before September 14, 2007. See Tr. at 55. Any such reply shall not exceed ten pages.
8.
All the parties shall file their [p]roposed questions for the [Board] to consider for propounding to the persons sponsoring [initial and rebuttal] testimony (10 C.F.R. § 2.1207(a)(3)(i)) on or before August 24, 2007. See Tr. at 58-59. Each party should be mindful that the purpose of providing proposed questions is to assist in the development of an adequate record. Accordingly, each partys submission should contain a description of the issue or issues on which the proposed examination would be conducted, the objective of the proposed examination, and the proposed line of questioning (including specific questions) that may logically lead to achieving the objective.4 5
10 C.F.R. § 2.1207(b)(6) provides in relevant part:
Participants and witnesses will be questioned... only by the [Board]. The
[Board] will examine the participants and witnesses using questions prepared by the [Board], questions submitted by the participants at the discretion of the
[Board], or a combination of both. Questions may be addressed to individuals or to panels of participants or witnesses. No party may submit proposed questions to the [Board] at the hearing, except upon request by, and in the sole discretion of, the [Board].
The parties [p]roposed questions need not be filed with any other party (10 C.F.R. § 2.1207(a)(3)(i)), and they will be propounded at the discretion of the [Board]. All questions
[will] be kept by the [Board] in confidence until they are either propounded by the [Board], or until issuance of the initial decision on the issue being litigated. The [Board] shall then provide all proposed questions to the Commissions Secretary for inclusion in the official record of the proceeding. Id. § 2.1207(a)(3)(iii).5 9.
If a party wishes to conduct cross-examination, it shall file a motion seeking permission to do so on or before August 24, 2007. See Tr. at 58-59. Such motions shall be compliant with 10 C.F.R. § 2.1204(b). If a party wishes to oppose any such motion, it must file an opposition on or before August 31. See Tr. at 64. The Board will grant such motions only if
[it] determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision (10 C.F.R. § 2.1204(b)(3)).
10.
An evidentiary hearing shall commence on the morning of September 24, 2007.
The Board shall - consistent with the parties request to accommodate counsels religious activities - schedule the daily sessions of the hearing so that it ends no later than noon on September 26. The Board emphasizes that, in order to complete the evidentiary hearing by noon on September 26, it is incumbent on the parties to ensure that counsel and witnesses are readily available for extended hours throughout the two and one-half day period. See Tr. at 56-58.
6 Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) Citizens; (3) the NRC Staff; and (4) New Jersey.
11.
The parties shall file written post-hearing proposed findings of fact and conclu-sions of law (10 C.F.R. § 2.1209) on or before October 10, 2007.
12.
The parties have agreed that (Tr. at 79): (1) they will complete, with the filing of the May 2007 monthly update, their mandatory disclosure obligations; and (2) they will provide all documents by June 1, 2007. Thereafter, should relevant information come to light that warrants disclosure, the parties will notify the Board (Tr. at 80).
13.
The parties shall review their notices of appearance and ensure the information therein is current, complete, and correct. See Tr. at 78.
14.
Counsel for New Jersey stated that - notwithstanding New Jerseys decision not to participate as a party or an interested state - he would be grateful if the parties and the Board would, as a matter of courtesy, continue to copy counsel for New Jersey with pleadings and decisions. See Tr. at 81. The Board will continue to provide counsel for New Jersey with electronic copies of its issuances.
15.
The convening of future prehearing conferences will be addressed in subsequent orders.
16.
Any objection to this order must be filed within five days after service of this Memorandum and Order. See 10 C.F.R. § 2.329(e).
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD6
/RA/
E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland April 17, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
AMERGEN ENERGY COMPANY, LLC
)
Docket No. 50-219-LR
)
)
(Oyster Creek Nuclear Generating Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (PREHEARING CONFERENCE CALL
SUMMARY
, CASE MANAGEMENT DIRECTIVES, AND FINAL SCHEDULING ORDER) 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 Mitzi A. Young, Esq.
Mary C. Baty, 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 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
2 Docket No. 50-219-LR LB MEMORANDUM AND ORDER (PREHEARING CONFERENCE CALL
SUMMARY
, CASE MANAGEMENT DIRECTIVES, AND FINAL SCHEDULING ORDER)
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 4300 Warrenville Road Warrenville, IL 60555 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 Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 17th day of April 2007