ML12030A268

Attachment 10 - Federal Respondents' Brief Dated July 14, 2004 Filed in Citizens Action Network V. United States First Circuit, Docket No. 04-1145 (Excerpt)

ML12030A268
Person / Time
Site:	Indian Point
Issue date:	01/30/2012
From:	Cole S, Cordes J, Crockett S, Cyr K, Goldman G, Larry Jones, Sansonetti T, Slaggie E NRC/OGC, US Dept of Justice, Environment & Natural Resources Div
To:
SECY RAS
Shared Package
ML12030A264	List: ML12030A265 ML12030A266 ML12030A267 ML12030A268 ML12030A269 ML12030A270 ML12030A271 ML12030A272 ML12030A273 ML12030A274 ML12030A275 ML12030A276 ML12030A277 ML12030A278
References
RAS 21824, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
Download: ML12030A268 (5)

Text

Attachment 10 Federal Respondents Brief dated July 14, 2004 filed in Citizens Action Network v. United States First Circuit, Docket No. 04-1145 (excerpt)

IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Nos. 04-1145 and 04-1359 (Consolidated)

CITIZENS AWARENESS NETWORK, et al.,

Petitioners, V.

U.S. NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF AMERICA, Respondents, ON PETITION TO REVIEW AN ORDER OF THE U.S. NUCLEAR REGULATORY COMMISSION BRIEF FOR THE FEDERAL RESPONDENTS THOMAS L. SANSONETTI KAREN D. CYR Assistant Attorney General General Counsel GREER S. GOLDMAN JOHN F. CORDES, JR.

LISA E. JONES Solicitor Attorneys Appellate Section E. LEO SLAGGIE Environment and Natural Deputy Solicitor Resources Division U.S. Department of Justice SHELLY D. COLE P.O. Box 23795 Attorney Washington, D.C. 20026-3795 (202) 514-0916 STEVEN F. CROCKETT Special Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (301) 415-2871 July 14, 2004

B. Subpart L requires mandatory disclosure of relevant documents.

Petitioners' claims, most notably NWC's extravagant claim that Part 2 "abolishes" discovery, NWC Brief 16, reveal, once again, an inattention to the APA and to the NRC rule itself. It is well-established that the APA does not require any discovery. Kelly and Prisk v. EPA, 203 F.3d 519, 523 (7th Cir.

2000); NLRB v. Valley Mold Co., 530 F.2d 693, 695 (6th Cir. 1975), cert.

denied, 429 U.S. 824, (1976); Frilette v. Kimberlin, 508 F.2d 205, 208 (3d Cir.

1974), cert. denied, 421 U.S. 980 (1975). But the new Part 2 actually provides significant discovery. First and foremost, Subpart L, and Subpart G also, mandate disclosure of an immense amount of material, precisely the sort of material subject in the past to rounds of document requests and interrogatories --

"documents relevant to the issues in the proceeding." 10 C.F.R. 2.336.16 "reasonable opportunity to interrogate witnesses." We have shown that Part 2 does in fact provide "reasonable opportunity to interrogate witnesses." This issue is being raised for the first time on appeal, and by the amici, who, moreover, did not participate in the rulemaking. The Court should therefore not even consider the issue. See U.S. v. Tucker Truck, 344 U.S. 33, 36-37 (1952);

Brighalm v. Sun Life of Canada, 317 F.3d 72, 82 (1st Cir. 2003); American Federationof Government Employees, Local 3936, AFL-CIO, v. FLRA, 239 F.3d 66, 69' n.1 (1st Cir. 2001).

16 Thus, even though the new Subpart L is labeled "informal," it actually provides more formality than the APA's "on-the-record" provisions require.

The "informal" misnomer reflects AEC and NRC terminology only, in which 48

Mandatory disclosure is the now decade-old practice in federal district courts, adopted to reduce the resources consumed in discovery. See generally Advisory Committee Notes on the 1993 amendments to FRCP 26. The Commission has simply tailored mandatory disclosure to the particular kinds of information that are likely to matter in NRC license proceedings. 69 FR 2194.

In the final rule, the Commission explained that mandatory disclosure "has the potential to significantly reduce the delays and resources expended by all parties in discovery." Id. 17 Furthermore, Part 2 leaves room for traditional discovery. Subpart G clearly says that discovery is to be had by the usual devices. 10 C.F.R. 2.704, 2.705. Subpart L says that discovery is not available except as Subpart C provides, 2.1203(d), but C provides the usual discovery devices as one possible sanction for failure to comply with mandatory disclosure. In fact, such discovery is the only sanction available when continuing adjudication of an issue, because Subpait G has always been called "formal" and Subpart L "informal."

'7The amici claim that mandatory disclosure would not cover enforcement documents. Brief 22. However, in a proceeding on enforcement, or in any other proceeding where enforcement documents might be relevant, enforcement documents would be disclosed, unless the documents were privileged or otherwise withholdable. Moreover, Subpart G procedures apply in enforcement proceedings, and Subpart G provides the usual range of discovery devices. 10 C.F.R.. 2.705.

49

CONCLUSION For the foregoing reasons, the petitions for review should be denied.

Respectfully submitted, THOMAS L. SANSONETTI KAREN D. CYR Assistant Attorney General General Counsel GREER S. GOLDMAN CORDES, Jk.

LISA E. JONES licitor Attorneys Appellate Section Environment and Natural Resources Division E. LEO SLAGGIE U.S. Department of Justice Deputy Solicitor P.O. Box 23795 Washington, D.C. 20026-3795 A r Shelly D. k Attorney STEVEN F. CROCKETT Special Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (301) 415-2871 Dated: July 14, 2004 64