ML080800493
| ML080800493 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 03/20/2008 |
| From: | James Adler NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR | |
| Download: ML080800493 (6) | |
Text
March 20, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Generation Co. and )
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR
)
) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station) )
NRC STAFF RESPONSE IN OPPOSITION TO PILGRIM WATCH REQUEST TO CONDUCT CROSS-EXAMINATION INTRODUCTION Pursuant to the Atomic Safety and Licensing Boards (Board) Order of December 19, 2007, 1 the staff of the Nuclear Regulatory Commission (Staff) hereby opposes Pilgrim Watchs Motion requesting to conduct cross-examination in accordance with 10 C.F.R. § 2.1204(b). 2 Pilgrim Watchs Motion does not set forth sufficient grounds for the relief being sought, as is required by 10 C.F.R. §§ 2.1204(a) and 2.323(b).
DISCUSSION Pilgrim Watchs Motion claims that cross-examination is needed so that the Board will not be overly influenced by a disparity in the magnitude of witness testimony put forward by each party. Yet, the mere fact that one party offers up less testimony than other parties does 1
Order (Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watchs December 14 and 15 Motions) (Dec. 19, 2007) (unpublished) at 3-4 (December 19 Order).
2 Pilgrim Watch Request to Conduct Cross-Examination in Accordance with 10 C.F.R. 2.104(b)
(Mar. 17, 2008) (Motion). Note that Pilgrim Watch incorrectly refers to 10 C.F.R. § 2.104(b) of the Commission regulations, instead of 10 C.F.R. § 2.1204(b). The latter is the correct citation to the regulation governing cross-examination in Subpart L proceedings.
not demonstrate that cross-examination is warranted under Commission regulations. As the Board has itself already noted in its December 19 Order, 3 and as Pilgrim Watchs Motion states, 4 a Board may permit cross-examination only if it finds that doing so would be necessary to ensure the development of an adequate record for decision. 10 C.F.R. § 2.1204(b)(3). The NRC has further clarified, during litigation before the U.S. Court of Appeals for the First Circuit, that § 2.1204(b)(3) allows cross-examination where required for a full and true disclosure of the facts. See Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Commission, 391 F.3d 338, 351 (1st Cir. 2004). A Boards decision to permit cross-examination, therefore, must be based upon consideration of the particular facts needing development at the hearing. See Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2196 (Jan. 14, 2004) ([i]t is the nature of the disputed issues themselves that most significantly bears on whether the techniques of formal hearings such as cross-examination are appropriate.). Simply comparing the relative magnitudes of witness testimony offered up by each party cannot suffice, because it does not bear on the nature of the disputed issues. Id.
The Staff recognizes that Pilgrim Watch conceivably could have included in its Cross Examination Plan additional reasoning to support of its request to conduct cross-examination.
Consistent with § 2.1204(b)(2), this Cross Examination Plan has not been served upon the Staff, and so the Staff does not know its contents. As noted above, however, 10 C.F.R. §§ 2.1204(a) and 2.323(b) require that motions include a partys grounds for requesting the relief 3
December 19 Order at 4.
4 Motion at 1.
being sought. Pilgrim Watchs request to conduct cross-examination, therefore, cannot rely upon grounds that are completely absent from its Motion. 5 Moreover, the Staff sees no potential basis at the present time for permitting cross-examination. This proceeding involves a single, narrowly defined contention being adjudicated before an experienced panel of judges with a mix of engineering and legal backgrounds.
Further, Pilgrim Watch has already availed itself of opportunities to communicate to the Board:
(1) its witnesses views, 6 (2) its disagreements with the views put forth by other parties witnesses, 7 and (3) the proposed written questions it believes the Board should ask witnesses at the hearing. 8 The Board, therefore, can readily pursue at hearing any lines of questioning that Pilgrim Watch has deemed valuable and that the Board itself believes will facilitate its resolution of this case. Allowing Pilgrim Watch to question witnesses as well, then, could hardly qualify as necessary to ensure the development of an adequate record for decision. Pilgrim Watch, therefore, cannot satisfy the necessary standard under § 2.1204(b)(3).
5 Indeed, permitting Pilgrim Watch to rely upon grounds contained in filings submitted to the Board, but not to the parties, would undermine the Boards order granting parties an opportunity to respond to any 10 C.F.R. § 2.1204(b) cross-examination requests filed by other parties. See December 19 Order at 3-4.
6 See Pilgrim Watch Present Statements of Position, Direct Testimony and Exhibits Under 10 CFR 2.1207 (Jan. 29, 2008) (re-filed, with additional citations and exhibits, on Mar. 3, 2008) (PW Statement); Exhibit 1 to PW Statement (Declaration of Arnold Gundersen Supporting Pilgrim Watchs Petition for Contention 1); Exhibit 2 to PW Statement (Declaration of David P. Ahlfeld, PhD, PE Regarding Groundwater Monitoring Requirements for PNPS).
7 See Pilgrim Watchs Rebuttal Directed to Entergys Initial Statement of Position on Pilgrim Watch Contention 1, January 8, 2008 and NRC Staff Initial Statement of Position - Contention 1, January 29, 2008 (Mar. 6, 2008); Testimony of Arnold Gundersen Supporting Pilgrim Watchs Contention 1 (Mar.
6, 2008).
8 See Pilgrim Watchs Proposed Questions for Evidentiary Hearing (Mar. 17, 2008).
CONCLUSION For the reasons discussed above, the Staff respectfully requests that the Board deny Pilgrim Watchs Motion.
Respectfully Submitted,
/RA/
James E. Adler Counsel for the NRC Staff Dated at Rockville, Maryland this 20th day of March, 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Generation Co. and )
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE IN OPPOSITION TO PILGRIM WATCH REQUEST TO CONDUCT CROSS-EXAMINATION in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S.
Nuclear Regulatory Commissions internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 20th day of March, 2008.
Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov
Sheila Slocum Hollis* Terence A. Burke, Esq.*
Duane Morris LLP Entergy Nuclear 1667 K Street, NW, Suite 700 1340 Echelon Parkway Washington, DC 20006 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 Mary Lampert* David R. Lewis, Esq*.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord* Town Manager*
Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.
668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: msylvia@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us
/RA/
James E. Adler Counsel for the NRC Staff