ML15190A221
| ML15190A221 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 07/09/2015 |
| From: | Gary Arnold, Hirons T, Ronald Spritzer Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-255-LA-2, ASLBP 15-939-04-LA-BD01, RAS 28038 | |
| Download: ML15190A221 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ronald M. Spritzer, Chairman Dr. Gary S. Arnold Dr. Thomas J. Hirons In the Matter of: Docket No. 50-255-LA-2 ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 15-939-04-LA-BD01 (Palisades Nuclear Plant) July 9, 2015 ORDER (Denying Entergys Motion to Defer Initial Disclosures)
This Board granted a hearing request from Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future - Shoreline Chapter, and the Nuclear Energy Information Service (collectively Intervenors) on June 18, 2015.1 The regulatory deadline for initial mandatory disclosures is within 30 days of that decision.2 Entergy Nuclear Operations, Inc. (Entergy) requests deferral of the disclosure obligations on the admitted contention until 30 days after Commission action on the planned appeal, or three months from the date of the Boards ruling in LBP-15-20, whichever comes first.3 The company also asks for the same deferral for the Staffs production of the hearing file required by 10 C.F.R. § 2.1203.4 Entergy asserts that it would need to expend considerable resources to work with its contractors and internal personnel to identify and disclose its relevant 1 LBP-15-20, 81 NRC __, __ (slip op. at 42) (June 18, 2015).
2 10 C.F.R. § 2.336(a).
3 Entergys Motion to Defer Initial Disclosures at 2 (June 29, 2015).
4 Id. at 1.
documents by the 30-day deadline set forth in 10 C.F.R. § 2.336(a), and that Commission review may render these disclosures unnecessary.5 The NRC Staff does not oppose the motion.6 The Intervenors oppose the request because it would delay resolution of the proceedings.7 The Board concludes that, although Entergy has styled its request as a Motion to Defer Initial Disclosures, the substance of Entergys motion is a request for a stay pending appeal.
That is, Entergy is seeking a stay (i.e., deferral) of its disclosure obligations (and the Staffs obligations as well) based on its intent to file an appeal of the ruling granting the Intervenors request for a hearing. Under 10 C.F.R. § 2.342, a party seeking a stay of the effectiveness of a decision of a presiding officer must comply with various procedural requirements and identify the grounds for the stay, including the likelihood of irreparable injury if a stay is not granted.8 The requirements for seeking a stay would be rendered superfluous, however, if a party could avoid compliance simply by styling its request as a motion for a deferral of its obligations arising from the presiding officers decision, rather than as a motion for a stay pending appeal of that decision.
Therefore, the Board must determine whether Entergy has justified a stay pending appeal. We conclude that it has failed to do so. Commission precedent is clear that irreparable injury is the most important factor a Board must consider before granting a stay 5 Id. at 3.
6 Id. at 2 n.2.
7 Petitioners Position Statement on Mandatory Disclosures and Schedule (July 8, 2015).
8 10 C.F.R. § 2.342(b)(2), (e)(2).
pending appeal,9 and that the costs of reviewing documents or other ordinary litigation costs are not an irreparable injury.10 As the Commission has explained:
Interlocutory appeals or petitions to the Commission are not devices for delaying or halting licensing board proceedings. The stringent four-part standard set forth in section 2.788(e) makes it difficult for a party to obtain a stay of any aspect of a Licensing Board proceeding. Therefore, only in unusual cases should the normal discovery and other processes be delayed pending the outcome of an appeal or petition to the Commission.11 Because Entergy bases its motion entirely on ordinary litigation costs, it has not shown irreparable injury. Nor has the company made a showing of any other factor to support its request.12 And Entergy provides no explanation for its request that the Board defer the Staffs obligation to produce the hearing file. Entergy does not represent the Staff, and the Staffs compliance with its disclosure obligations would impose no burden on Entergy, much less one that would support a stay.
9 Sequoyah Fuels Corp. & Gen. Atomics (Gore, Okla. Site), CLI-94-9, 40 NRC 1, 7 (1994).
10 U.S. Dept of Energy (High Level Waste Repository), CLI-05-27, 62 NRC 715, 718 (2005)
(The Commission has held expressly and repeatedly that litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury. (quoting Metro. Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984))).
11 Gore, CLI-94-9, 40 NRC at 6. In 2004, the NRC moved the stringent four-part standard for a stay from 10 C.F.R. § 2.778(e) to 10 C.F.R. § 2.342(e) without substantive change. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2225 (Jan. 14, 2004).
12 The three Licensing Board orders cited by Entergy do not support its motion. In all three, the request to extend the 30-day deadline was unopposed.
Accordingly, the Board denies Entergys motion. The deadline for initial mandatory disclosures would ordinarily be July 20, 2015.13 The Board extends that deadline to July 31, 2015 to take account of the time required to resolve this motion.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Ronald M. Spritzer, Chairman ADMINISTRATIVE JUDGE
/RA/
Dr. Gary S. Arnold ADMINISTRATIVE JUDGE
/RA/
Dr. Thomas J. Hirons ADMINISTRATIVE JUDGE Rockville, Maryland July 9, 2015 13 10 C.F.R. §§ 2.306(a), 2.336(a).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-255-LA-2 (Entergy) )
)
(Palisades Nuclear Plant) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Entergys Motion to Defer Initial Disclosures) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-7H4 Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 ocaamail@nrc.gov Hearing Docket hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Anita Ghosh, Esq.
Ronald M. Spritzer, Chair Joseph Lindell, Esq.
Administrative Judge David Roth, Esq.
ronald.spritzer@nrc.gov Daniel Straus, Esq.
John Tibbetts, Paralegal Gary S. Arnold, Edward Williamson, Esq.
Administrative Judge anita.ghosh@nrc.gov gary.arnold@nrc.gov joseph.lindell@nrc.gov david.roth@nrc.gov Thomas J. Hirons daniel.straus@nrc.gov Administrative Judge john.tibbetts@nrc.gov thomas.hirons@nrc.gov edward.williamson@nrc.gov Sachin Desai, Law Clerk sachin.desai@nrc.gov Nicole Pepperl, Law Clerk nicole.pepperl@nrc.gov
Docket No. 50-255-LA-2 ORDER (Denying Entergys Motion to Defer Initial Disclosures)
Morgan, Lewis & Bockius LLP Beyond Nuclear, Dont Waste Michigan, Michigan 1111 Pennsylvania Avenue, NW Safe Energy Future - Shoreline Chapter, Nuclear Washington, DC 20004 Energy Information Service The Petitioners Raphael P. Kuyler, Esq. 316 N. Michigan St., Street, 520 Paul Bessette, Esq. Toledo, OH 43604-5627 Ryan Lighty, Esq. Terry Lodge, Counsel for the Petitioners rkuyler@morganlewis.com tjlodge50@yahoo.com pbessette@morganlewis.com rlighty@morganlewis.com Entergy William B. Glew, Jr., Esq.
Jeanne Cho, Esq.
440 Hamilton Avenue White Plains, NY 10601 wglew@entergy.com jcho1@entergy.com
[Original signed by Herald M. Speiser ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 9th day of July, 2015 2