ML14239A283
| ML14239A283 | |
| Person / Time | |
|---|---|
| Site: | Aerotest |
| Issue date: | 08/27/2014 |
| From: | Jeremy Wachutka NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-228-LT, ASLBP 14-931-01-LT-BD01, RAS 26407 | |
| Download: ML14239A283 (8) | |
Text
August 27, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING OFFICER ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
AEROTEST OPERATIONS, INC. ) Docket No. 50-228-LT
)
(Aerotest Radiography and )
Research Reactor) )
NRC STAFFS OBJECTION TO AEROTEST OPERATIONS, INC. AND NUCLEAR LABYRINTH, LLCS MOTION TO CORRECT TRANSCRIPT FROM AUGUST 12, 2014 HEARING INTRODUCTION Pursuant to 10 C.F.R. § 2.1325, the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) requests that the Presiding Officer deny the motion of Aerotest Operations, Inc.
(Aerotest) and Nuclear Labyrinth, LLC (Nuclear Labyrinth) (collectively the Companies) to substantively change the testimony of their witness, Mr. Michael S. Anderson.1 DISCUSSION An oral hearing was held in the above-captioned proceeding on August 12, 2014.2 Before being questioned, all of the witnesses, including Mr. Anderson, were placed under oath and swore or affirmed that the statements they would make in the hearing would be true and correct to the best of their knowledge and belief.3 Thus, the witnesses were placed on notice that the answers they were to provide should be based on their personal knowledge. The 1
Motion to Correct Transcript from August 12, 2014 Hearing (Aug. 22, 2014) (Motion).
2 See Transcript of Oral Hearing in the matter of Aerotest Operations, Inc. (Aerotest Radiography and Research Reactor) (Aug. 12, 2014) (Tr.).
3 Id. at 73.
Presiding Officer also explained that many of his questions would be framed as yes or no questions and that additional explanation by the witnesses should generally not be necessary.4 Consistent with this direction, the Presiding Officer asked Mr. Anderson a series of yes or no questions that were to be answered based on his personal knowledge. First, the Presiding Officer asked Mr. Anderson if it was correct that the Aerotest Radiography and Research Reactor (ARRR) was shutdown in the fall of 2010, to which Mr. Anderson responded in the affirmative.5 Next, the Presiding Officer asked Mr. Anderson if it was correct that, when the application for the indirect license transfer was submitted in 2012, the ARRR had been shutdown for about two years and it was uncertain when it would return to service, to which Mr. Anderson again responded in the affirmative.6 Next, the Presiding Officer asked Mr.
Anderson if it was correct that the application was denied in July of 2013, to which Mr. Anderson responded in the affirmative.7 Then the Presiding Officer asked Mr. Anderson the question at issue in the Companies motion, specifically, if it was correct that, at the time of the denial, it was still uncertain when the reactor could return to service, in part because of the damaged fuel.8 In response, Mr. Anderson stated, I believe thats correct.9 In their motion, the Companies are now requesting to substantively change this response to, I believe that is a correct statement of the Staffs position.10 To support this requested change, the Companies provided an affidavit of Mr. Anderson stating that he understood the question to be related to the Staffs position on the return to service date.11 4
Id. at 74.
5 Id. at 74-75.
6 Id. at 75.
7 Id.; see Joint Proposed Transcript Corrections (Aug. 22, 2014) (illustrating that the Staff and the Companies agree that the transcript text (No audible response) should read Correct.).
8 Tr. at 75.
9 Id.
10 Motion, at 2.
11 Motion, Attachment 1, Affidavit of Michael S. Anderson (Aug. 22, 2014).
Neither the Companies nor Mr. Anderson explained why it would have been reasonable for Mr.
Anderson to have interpreted this question in this manner based on the instructions provided by the Presiding Officer and the previous questions asked of Mr. Anderson.
A transcript correction does not extend to substantively changing something accurately transcribed under oath.12 In this case, the effect of the Companies motion is to substantively change Mr. Andersons testimony from a statement of his own personal knowledge to a speculative statement regarding the personal knowledge of the Staff. Thus, instead of requesting to correct the accuracy of the transcript, the Companies are essentially requesting to supplement the evidentiary record with new testimony. However, since the Companies do not satisfy the relevant standards to supplement the evidentiary record in this manner, their motion should be denied.
First, in order to supplement the evidentiary record after an evidentiary hearing, the proponent party must, if the record is closed, satisfy the reopening criteria at 10 C.F.R. § 2.326.13 These criteria are:
(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; 12 See Memorandum and Order (Denying in Part and Granting in Part GANEs Motion for Clarification and/or Partial Reconsideration of LBP-03-14), at 5-6 (Oct. 29, 2003) (unpublished) (ADAMS Accession No. ML033100507) (holding that an expert witness fee may include time spent reviewing a transcript but that it would not be appropriate for an expert to spend time substantively changing something accurately transcribed under oath). Transcripts of depositions may be subject to limited substantive changes. For instance, according to 10 C.F.R. § 2.706(a)(5), when a deposition is fully transcribed, it must be submitted to the deponent for examination and signature. Similarly, according to Rule 30 of the Federal Rules of Civil Procedure, a deponent must be allowed to review the [deposition]
transcript . . . [and] if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. However, with respect to hearing transcripts, as opposed to deposition transcripts, there is no analogous permission for a witness to make substantive changes. In fact, Title 28 of the United States Code, which governs the federal judicial system, states that [e]ach session of the court . . . shall be recorded verbatim . . . after which this record is promptly file[d] . . . with the clerk . . . .
28 U.S.C. § 753(b). Unlike depositions, this leaves no room for witnesses to later substantively change their testimony. Thus, there is no indication, and the Companies argue none, that the transcript of an Atomic Safety and Licensing Board hearing can later be substantively changed when it is otherwise accurately transcribed.
13 See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012) (where the Board already has closed the evidentiary record, intervenors . . . must move to reopen the evidentiary record).
(2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially[14]
At the oral hearing in this matter, counsel for both parties responded in the negative to the Presiding Officers question [d]id counsel have anything else before we close the record, subject to transcript corrections?15 Therefore, the evidentiary record in this proceeding is closed and the Companies motion to supplement it with new testimony can only be granted if the motion satisfies the reopening criteria. However, the motion does not address these criteria.
Thus, the motion should be denied.16 Second, even assuming arguendo that the record were still open, the Companies have not shown good cause in support of the motion and thus, again, it should be denied. To enforce its scheduling order, a Board will generally not allow the filing of new testimony after the close of the evidentiary hearing unless the proponent of the new testimony demonstrates good cause for this.17 In making such a good cause determination, the presiding officer should take into account the following factors, among other things:
(1) Whether the requesting party has exercised due diligence to adhere to the schedule; (2) Whether the requested change is the result of unavoidable circumstances; and (3) Whether the other parties have agreed to the change and the overall effect of the change on the schedule of the case.18 14 10 C.F.R. § 2.326(a).
15 Tr. at 222.
16 See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 3-4 (1986) (The burden of satisfying the reopening requirements is a heavy one and [i]t is not the duty of the adjudicatory boards to search for evidence that might fill in gaps in the moving partys submissions.).
17 See 10 C.F.R. § 2.334(b) (A hearing schedule may not be modified except upon a finding of good cause by the presiding officer or the Commission.).
18 10 C.F.R. § 2.334(b).
The Companies have not demonstrated that their requested substantive change to the hearing record is based on good cause. Instead, the Companies and Mr. Anderson only state that Mr. Anderson provided an incorrect answer to the question because he misunderstood the question.19 Specifically, the motion states that, Mr. Anderson understood the question to be related to the Staff position on the return to service date.20 However, this explanation does not demonstrate good cause for two reasons.
As an initial matter, given the clear instructions provided by the Presiding Officer at the oral hearing, it would not have been reasonable for Mr. Anderson to believe that the particular question at issue was related to the Staffs position rather than his own position. As noted above, all of the Presiding Officers directions indicated that the witnesses were supposed to answer based on their own knowledge. Furthermore, common sense would dictate that, if the Presiding Officer had wanted to know the Staffs position on the issue, he would have asked this question of the Staff, which was also testifying, and would not have asked Mr. Anderson to speculate concerning the position of the Staff. Therefore, the Presiding Officer should not accept this explanation as good cause sufficient to justify granting the motion.
Secondly, every question preceding the question at issue concerned Mr. Andersons personal knowledge and not Mr. Andersons understanding of a Staff position. Specifically, Mr.
Anderson was asked whether the ARRR was shutdown in the fall of 2010 and not whether it was the Staffs position that the ARRR was shutdown in the fall of 2010; Mr. Anderson was asked whether the ARRR was shutdown for about two years when the application was submitted in 2012 and not whether it was the Staffs position that the ARRR was shutdown for about two years when the application was submitted in 2012; and Mr. Anderson was asked whether the application was denied in July of 2013 and not whether it was the Staffs position 19 Motion, at 1.
20 Id. at 1-2.
that the application was denied in July of 2013.21 Most tellingly, before the question at issue, Mr. Anderson was asked if, at the time of the submittal of the application in 2012, was it uncertain when [the ARRR] would return to service?22 Mr. Anderson answered this question in the affirmative.23 Notably, the Companies do not argue that Mr. Anderson misunderstood this question to be related to the Staffs position on the issue. However, this is exactly what the Companies argue when the very same question is put to Mr. Anderson, but the timeframe is changed from 2012 to July 2013. This inconsistency indicates that it would have been unreasonable for Mr. Anderson to believe that the latter question, and only the latter question, was asking for his opinion regarding the Staffs position and not for his personal knowledge.
Therefore, Mr. Anderson appeared to have answered all of these questions based on his personal knowledge. The Companies do not explain how there is good cause to now carve out one of these responses and state that only it was not based on personal knowledge. Thus, the Presiding Officer should deny the Companies unsupported attempt to substantively change the evidentiary record.
CONCLUSION In conclusion, the Companies motion is not an editorial correction intended to maintain the accuracy of the record, but, rather, a substantive change to the record that was otherwise accurately transcribed under oath. Therefore, in essence, the motion is a request to supplement the evidentiary record with additional testimony. When an evidentiary record is closed, as is the case in this proceeding, such a request must satisfy the reopening criteria of 10 C.F.R. § 2.326. The motion does not address these criteria; therefore, it should be denied.
Furthermore, even assuming arguendo that the record were open, the Companies do not demonstrate that there is good cause to supplement the evidentiary record. Rather, given 21 Tr. at 74-75.
22 Id. at 75.
23 Id.
the context in which the question was asked, it would have been unreasonable for Mr. Anderson to have believed that the Presiding Officer was asking for his opinion as to the Staffs position on the matter instead of his own personal knowledge on the matter. Therefore, without further explanation, the Companies cannot satisfy the good cause requirement and, again, their request should be denied.
Respectfully submitted,
/Signed (electronically) by/
Jeremy L. Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-1571 E-mail: Jeremy.Wachutka@nrc.gov Dated at Rockville, Maryland this 27th day of August, 2014
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING OFFICER ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
AEROTEST OPERATIONS, INC. ) Docket No. 50-228-LT
)
(Aerotest Radiography and Research )
Reactor) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS OBJECTION TO AEROTEST OPERATIONS, INC. AND NUCLEAR LABYRINTH, LLCS MOTION TO CORRECT TRANSCRIPT FROM AUGUST 12, 2014 HEARING, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 27th day of August, 2014.
/Signed (electronically) by/
Jeremy L. Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-1571 E-mail: Jeremy.Wachutka@nrc.gov Dated at Rockville, Maryland this 27th day of August, 2014