ML060410147

2006/02/03-Nuclear Management Company'S Answer to Petitioners' Motion to Strike, Stay Proceeding and Take Deposition

ML060410147
Person / Time
Site:	Palisades
Issue date:	02/03/2006
From:	Doris Lewis Nuclear Management Co, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-255-LR, ASLBP 05-842-03-LR, RAS 11160
Download: ML060410147 (6)

Text

'L A5 1116J0 February 3, 2006 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC 1 Before the Atomic 'Safety and Licensing Board February 3, 2006 (10:18am)In the Matter of OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF Nuclear Management Company, et al. ) Docket No. 50-255-LR ASLBP No. 05-842-03-LR (Palisades Nuclear Plant)NUCLEAR MANAGEMENT COMPANY'S ANSWER TO PETITIONERS' MOTION TO STRIKE, STAY PROCEEDING AND TAKE DEPOSITION Nuclear Management Company ("NMC") hereby answers and opposes Petitioners' Motion to Strike Staff and NMC Responses to Board Order on Expert Witness Matter, to Stay Proceedings and to Take Deposition of NRC Staff Counsel (Jan. 27, 2006) (hereinafter referred to as "Petitioners' Motion").

Petitioners' Motion is baseless and should be denied.Petitioners make unfounded assertions that NMC has "smeared" Petitioners (Petitioners' Motion at 2) and that NMC is arguing for a standard of conduct which has no basis in the NRC rules (id. at 3). To the contrary, NMC cited precedent requiring parties to an NRC proceeding to alert adjudicatory bodies to new information that is relevant and material to matters being adjudicated.

Nuclear Management Company's Reply to Petitioners' Response to Board December 21, 2005 Order Regarding Expert Opinion Allegedly Supporting Contention 1 -Palisades Reactor Embrittlement (Jan. 9, 2006) ("NMC Reply") at 2, citing Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 N.R.C. 1387, 1394 (1982). In light of this obligation, NMC stated that "it clearly would have been appropriate for Petitioners to have apprised the Board that Mr. Basdekas was no longer serving as their expert." Id. at 2-3. It is remarkable that Petitioners take offense at such a mild and reasonable admonishment.

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l f Rather than acknowledging this obligation, Petitioners attempt to deflect criticism of their inaction by wrongfully accusing NRC Staff counsel of violating an ethical rule preventing communication with a party represented by counsel (Petitioners' Motion at 5). Mr. Basdekas was not and is not a party to this proceeding.

Moreover, he does not appear to have ever been represented by Petitioners or their counsel as a client, so the restrictions on communicating with parties represented by counsel is not even applicable.

Further, Mr. Basdekas was not even Petitioners' expert. When Mr. Basdekas initiated the call to NRC Staff counsel, he informed NRC Staff counsel that he had declined to serve as Petitioners' expert. Consequently, NRC Staff counsel violated no ethical rule in receiving this call and properly communicated what she had learned to the Board and parties.Petitioners also fault the NRC Staff with procedural improprieties for not communicating this information in a motion. Petitioners' Motion at 3-4. Because the NRC Staff was not requesting the Board to take any action, a motion was unnecessary.

Finally, Petitioners suggest that the NRC Staff may have intimidated Mr. Basdekas by expressing concern at the Pre-hearing Conference (Lee Tr. at 29-30) that the provision of expert opinion of another former NRC employee, Dr. Landsman, would violate 18 U.S.C. § 207.Petitioners' Motion at 3. There is nothing inappropriate with the NRC Staff raising such an objection.

The NRC has a right to prevent ethical violations by its former employees.

Further, because this objection was not directed to Mr. Basdekas and not even raised until the prehearing conference

-more than 2 months after Mr. B asdekas had declined to serve as Petitioners' expert-there is no basis for Petitioners to characterize this objection as either a "threat" or an attempt to intimidate Mr. Basdekas.In light of these facts, Petitioners' attack on NRC Staff counsel is frivolous and provides no basis for their request to depose NRC Staff counsel. Petitioners have admitted that "[o]n August 22, 2005, Mr. Basdekas indicated that he could not serve further as Petitioners' expert on 2 I I embrittlement for personal reasons." Petitioners' Response to Board Order on Matter of Expert Opinion (Jan. 3, 2006) at 3.1 Therefore, there is no dispute concerning the accuracy of NRC Staff counsel's report, and certainly Petitioners are not precluded from speaking to Mr. Basdekqs if they want further information on his conversation with Staff counsel. In any event, discovery is generally limited to disclosure of relevant documents subsequent to the admission of contentions (1'0 C.F.R. § 2.337), and depositions of NRC employees are not permitted (10 C.F.R.§ 2.709(a)(1)).

Likewise, there is no basis to strike the responses of NMC and the NRC Staff to the Board's December 2005 Order, or to stay this proceeding.

Petitioners offer no authority or justification supporting these requests and have certainly made no showing on the factors governing the issuance of stays. Seauovah Fuels Corporation and General Atomics (Gore, OK, Site), CLI-94-9, 40 NRC 1, 6 (1994) (stating "The stringent four-part standard set forth in [2 C.F.R. § 2.342(e)]

makes it difficult for a paity to obtain a stay of any aspect of a Licensing Board proceeding.") (emphasis added)2 Petitioners suggest that "the ASLB may be losing control of these proceedings by allowing procedural and ethical irregularities" (Petitioners' Motion at 2) and assert that "this license extension proceeding has been hijacked by what Petitioners submit is baseless consideration of an issue not properly before the Board" (id. at 8). Clearly, whether Petitioners' contention is supported by any expert opinion is a matter properly considered by the Board (see 10 C.F.R. § 2.309(f)(v)), and the only irregularity in this proceeding has been Petitioners' failure to inform the Board that Mr. Basdekas had declined to serve as Petitioners' expert. It is unfortunate that, rather than recognizing they should have informed the Board of this See also Declaration of Alice Hirt (Jan. 27,2006) at ¶5 ("[a]lthough Mr. Basdekas had long since resigned as an expert witness for the Petitioners-Intervenors by November 2005,...") (emphasis added).2 See also Dominion Nuclear Connecticut.

Inc. (Millstone Nuclear Power Station, Units 2 and 3) LBP-04-15, 60 N.R.C. 81, 87 n. l 5 (2004); Pacific Gas & Electric Co, (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation)

LBP-02-15, 56 N.R.C. 42,47-48 (2002).3 information, Petitioners instead make silly claims and requests that would only disrupt this proceeding further. Rather than brooking such disruption, the Board should deny Petitioners' Motion and, in the interest of maintaining a fair and orderly proceeding, proceed with the prompt issuance of its decision ruling on Petitioners' proposed contentions.

For all of the foregoing reasons, Petitioners' Motion should be denied.Respectfully Submitted, David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.Washington, DC 20037-1128 Tel. (202) 663-8474 Counsel for Nuclear Management Company Dated: February 3, 2006 4 I f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of) Docket No. 50-255-LR ASLBP No. 05-842-03-LR Nuclear Management Company, et al.(Palisades Nuclear Plant)CERTIFICATE OF SERVICE I hereby certify that copies of "Nuclear Management Company's Answer to Petitioners' Motion to Strike, Stay Proceeding, and Take Deposition," dated February 3, 2006, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 3fd day of February, 2006.*Administrative Judge Ann Marshall Young, Esq., Chair Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 AMYa~nrc.gov

• Administrative Judge Dr. Nicholas T. Trikouros Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 N.TRIKOUROS(a).att.net Office of Commission Appellate Adjudication Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

• Administrative Judge Dr. Anthony J. Baratta Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 AJB5(a)nrc.gov

• Secretary Att'n: Rulemakings and Adjudications Staff Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 hearinadocketadnrc.

gov Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 400312152vi

• Susan L. Uttal, Esq.Michael A. Spencer Office of the General Counsel Mail Stop 0-15 D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 slu(anrc.gov; mas8anrc.gov

• Kary Love, Esq.Executive Business Center 348 Waverly Road, Suite 2 Holland, MI 49423 karv love(d)vahoo.com

• Mr. Michael Keegan Don't Waste Michigan 2213 Riverside Drive, NE'Grand Rapids, MI 49505 mkeegani ().comcast.net

• Mr. Chuck Jordan Green Party of Van Buren County 50521 34 hAvenue Bangor, MI 49013 0ordancQbtc-bci .com*Terry Lodge, Esq.316 N. Michigan St., Suite 520 Toledo, OH 43624-1627 ti1odge50(ayahoo.com

• Mr. Paul Gunter Nuclear Information and Resource Service 1424 1 6 th Street, N.W.Suite 404 Washington, D.C. 20036 pmunter(mnirs.org

• Ms. Alice Hirt Western Michigan Environmental Action Council 1415 Wealthy St., SE Suite 280 Grand Rapids, MI 49506 alicehirtA.charter.net Mr. Maynard Kaufman Michigan Land Trustees 25485 County Road 681 Bangor, MI 49013 David R. Lewis 6 400312152v0