ML073550732

2007/12/21-Separate Statement of Judge Ann Marshall Young (Regarding December 19 Order Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watch'S December 14 and 15 Motions)

ML073550732
Person / Time
Site:	Pilgrim
Issue date:	12/21/2007
From:	Austin Young Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
06-848-02-LR, 50-293-LR, RAS 14826
Download: ML073550732 (8)

Text

UNITED STATES OF AMERICA DOCKETED 12/21/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL SERVED 12/21/07 Before Administrative Judges:

Ann Marshall Young, Chair Dr. Paul B. Abramson Dr. Richard F. Cole In the Matter of: Docket No. 50-293-LR ENTERGY NUCLEAR GENERATION ASLBP No. 06-848-02-LR COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC. December 21, 2007 (Pilgrim Nuclear Power Station)

Separate Statement of Judge Ann Marshall Young (Regarding December 19 Order Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watchs December 14 and 15 Motions)

Although I agree with the general thrust of the Order recently issued by my colleagues insofar as it attempts to assist the parties in focusing on certain relevant issues in preparation for the upcoming hearing and allows some time for accomplishing this, I am not in accord with all aspects of the Order. First, I am concerned that some of the changes in the process for the remainder of this proceeding will cause delay that not only goes further than the time requested by the Intervenor in its recent motions but also is unnecessary from the standpoint of appropriate case management, an issue I address further below.

My second concern involves the majoritys ruling that ongoing monitoring is not within the scope of this proceeding,1 and that, unless and until the Applicant expressly advises this Board and the Agency that it intends to rely upon monitoring wells for making its determination that buried pipes and tanks are not leaking at such great rates that they cannot satisfy their 1

Order (Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watchs December 14 and 15 Motions) at 1 (Dec. 19, 2007) (unpublished) [hereinafter December 19 Order].

intended safety functions, information related to monitoring wells is irrelevant to the issues at hand before this Board.2 It should be noted that this proceeding at this point involves an admitted contention that reads as follows:

The Aging Management program proposed in the Pilgrim Application for license renewal is inadequate with regard to aging management of buried pipes and tanks that contain radioactively contaminated water, because it does not provide for monitoring wells that would detect leakage.3 The use of monitoring wells may or may not ultimately be found to be necessary in order to assure that the pipes and tanks in question will perform their intended functions and thereby protect public health and safety4 depending upon what information Entergy provides to show that its existing aging management programs, by themselves, ensure that such safety-function-challenging leaks will not occur.5 But to exclude any consideration of such wells at this point would seem to be inefficient at least, if the question indeed remains open whether Entergys existing AMPs do or do not ultimately in fact sufficiently on their own, without the aid of monitoring wells, ensure that such safety-function-challenging leaks will not occur and that the buried pipes and tanks at issue will therefore be able to perform their intended safety functions throughout the term of any extended license.

In light of the actual contention we admitted, and our further clarification in LBP-07-12, I find such exclusion to be inappropriate. Evidence relating to monitoring wells is relevant to the contention and our ultimate ruling on the issue(s) raised in it. For example, without prejudging 2

Id. at 1-2.

3 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 315 (2006); Pilgrim, LBP-07-12, 66 NRC __, __ (slip op. at 2) (Oct. 17, 2007).

4 Id. (slip op. at 16).

5 Id. (slip op. at 17).

the issue, it seems at least possible that there might not be bright-line determining factors whether particular AMPs will or will not ensure performance of intended safety functions, and that some comparison of the effectiveness of such AMPs and monitoring wells could appropriately arise. This could also bring into consideration such issues as the appropriate placement of wells in order that they, if used, would detect leakage, as stated in Contention 1.

Moreover, given the relevance of such issues, disclosure of them to Pilgrim Watch is also appropriate. While information discussed in settlement negotiations is not admissible, a party cannot thereby insulate from discovery (or, in an NRC proceeding such as this one, from disclosure under 10 C.F.R. § 2.336) relevant information or documents merely by clearly label[ing them] as confidential and provid[ing them] as part of settlement discussions.6 As argued by Intervenor, Rule 408 of the Federal Rules of Evidence supports its argument that documents relating to monitoring wells should be provided.7 The Federal District Court for the Southern District of Florida has summarized the issue as follows:

Rule 408 is not an absolute ban on all evidence regarding settlement negotiations. See, e.g., Bankcard Am., Inc. v. Universal Bancard Sys., Inc.,

203 F.3d 477, 484 (7th Cir.), cert. denied, 531 U.S. 877, 121 S.Ct. 186, 148 L.Ed.2d 128 (2000); see also Liautaud v. GenerationXcellent, Inc., No.

00-C-6365, 2002 WL 230799, *2 (N.D.Ill. Feb. 15, 2002) (Fed.R.Evid. 408 does not permit a party to shield relevant evidence from admissibility merely because it was discussed in a settlement negotiation). Rather, an exception is explicitly stated for evidence that is otherwise discoverable, even though it was presented during compromise discussions. See Fed.R.Evid. 408 Adv. Committee Notes (A party should not be able to immunize from admissibility documents otherwise discoverable merely by offering them in a compromise negotiation.); Bankcard, 203 F.3d at 484 ([Rule 408] permits evidence that is otherwise discoverable).8 6

See Entergys Answer Opposing Pilgrim Watchs Multiple Motions to Reset and Extend the Hearing Schedule and Use Confidential Settlement Information at 10 (Dec. 17, 2007).

7 See Pilgrim Watchs Motion Regarding Admissability [sic] of Factual Evidence, at 2-3 (Dec. 15, 2007).

8 Agan v. Katzman & Korr, P.A., 328 F.Supp.2d 1363, 1370 (S.D.Fla. 2004).

Indeed, even an offer of settlement itself may in some circumstances be admissible evidence under Rule 408.9 And inappropriate limitation on the use of documents based on a claim that they are associated with settlement negotiations, when in fact they should not be excluded under Rule 408, can be grounds for reversal.10 Finally, not least among my concerns with my colleagues December 19 Order is that its general approach to the adjudicatory process, and the role of administrative judges and licensing boards in it, is shortsighted and inappropriate on several levels. While I will not herein discuss extensively or in depth the varying philosophical approaches to litigation and adjudication that underlie our disagreement, I would suggest that my fellow board members, in a manner similar to that used in their recent ruling on Entergys Motion for Summary Disposition of Contention 3, may have overstepped the appropriate role of judges in the adjudication process in this instance, particularly in the context of my discussion above.

Although there were changes in 2004 to the NRC adjudicatory process that, among other things, significantly limited the questioning of witnesses by parties and enlarged the role of judges in doing this, even under these new rules, as the Commission emphasized in its rule-making, the responsibility for developing an adequate record for decision is on the parties, not the presiding officer, and the parties are responsible for ensuring that there is sufficient evidence on-the-record [sic] to meet their respective burdens.11 The Commission also noted that under the new rules it is still the case that a party sponsoring a contention bears the burden of going forward with evidence sufficient to show that there is a material issue of fact or 9

See, e.g., Swierczynski v. Arnold Foods Co., Inc., 265 F.Supp.2d 802, 808 (E.D. Mich.

2003) (citing MCCORMICK ON EVIDENCE, 196 (4th Ed. 1992)).

10 See, e.g., Rodriguiz-Garcia v. Municipality of Caguas, 495 F.3d 1, 11-12 (1st Cir.

2007).

11 Changes to the Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2213 (Jan. 14, 2004).

law, such that the applicant/proponent must meet its burden of proof, and that the ultimate burden of proof (risk of non-persuasion) remains with the applicant.12 By their actions in the December 19 Order, my colleagues have inserted themselves into the process to an extent that tends to substitute the Board in place of the parties in fulfilling the proper roles of parties. By excluding relevant evidence, the majority has, perhaps unintentionally but nonetheless inappropriately, taken action that could well have the effect of handicapping Intervenors in meeting their burden. And by taking on a greater role for the Board in assur[ing the] development of a complete record13 than was intended by the Commission in its 2004 rule-making, they may have also acted in a manner that, however unintentionally, has the effect of inappropriately assisting the Applicant in meeting its ultimate burden of proving by a preponderance of the evidence that it is entitled under law to judgment in its favor.

Of course, the technical expertise of technical members of boards, as originally intended in the creation of licensing boards with technical experts in various fields serving as judges, can provide invaluable service in clarifying technical issues, evaluating scientific evidence, and resolving complex technical matters. But in my view, to go further, and move toward a model of adjudication that is less adjudication than the sort of technical inquiry that already occurs in numerous other non-adjudicatory contexts, significantly undervalues the traditional model of adjudication as a process for resolution of disputes (including those between government and members of the public) that has the benefit of having been developed through the wisdom of centuries of fine-tuning, and is by its very nature capable of further appropriate development in the context of actual practice in actual cases.14 12 Id.

13 December 19 Order at 2.

14 I am aware that in the past going back to the adjudicatory proceedings on the first applications to build nuclear power plants there have been instances of very lengthy and

These matters of appropriate models of adjudication and case management can be subtle, complex, and at once much broader than and not easily summarized in the context in which we now find ourselves. They involve questions of how best and most efficiently to resolve disputes between parties in a manner that, as consistently as possible, leaves all parties satisfied that the process is both fair and productive of practical results that, as fully as possible, actually resolve all aspects of such disputes. In favor of the general approach taken by my colleagues is that it indeed assists the parties in focusing their attention on critical issues in a proceeding, and I support measures that accomplish this in a more appropriate manner. Unless they reconsider some of their previous rulings, however, their approach has the untoward effects discussed above, as well as the danger that aspects of the actual dispute between the parties, and their approach to the dispute, may be overlooked. Taken together, these may lead to perceptions (if not indeed realities) that run counter to the goal of litigation/adjudication serving as the last-resort method for resolving disputes that has the least drawbacks in the long run, and that can in individual proceedings, handled effectively, best both exemplify actual fairness and efficiency, and engender public trust in the processes of government and the law.

/RA/

_______________________________

Ann Marshall Young, Chair ADMINISTRATIVE JUDGE Rockville, Maryland December 21, 200715 unwieldy proceedings involving great delays and inefficiencies. I would suggest, however, that proper and flexible management of adjudication proceedings, based on the needs of actual cases rather than on either external considerations inflexibly applied or over-intrusion of boards into inappropriate roles, is the best corrective measure for overcoming this history.

15 Copies of this Statement were sent this date by Internet e-mail to all counsel and representatives for participants.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR GENERATION CO. )

AND )

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR

)

)

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing SEPARATE STATEMENT OF JUDGE ANN MARSHALL YOUNG (REGARDING DECEMBER 19 ORDER REVISING SCHEDULE FOR EVIDENTIARY HEARING AND RESPONDING TO PILGRIM WATCHS DECEMBER 14 AND 15 MOTIONS) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Ann Marshall Young, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 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-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Susan L. Uttal, Esq. David R. Lewis, Esq.

David Roth, Esq. Paul A. Gaukler, Esq.

Kimberly Sexton, Esq. Pillsbury, Winthrop, Shaw, Pittman, LLP Office of the General Counsel 2300 N. Street, N.W.

Mail Stop - O-15 D21 Washington, DC 20037-1128 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-293-LR SEPARATE STATEMENT OF JUDGE ANN MARSHALL YOUNG (REGARDING DECEMBER 19 ORDER REVISING SCHEDULE FOR EVIDENTIARY HEARING AND RESPONDING TO PILGRIM WATCHS DECEMBER 14 AND 15 MOTIONS)

Perry H. Buckberg, Project Manager Mary Lampert, Director Plant Licensing Branch I-I Pilgrim Watch Division of Operating Reactor Licensing 148 Washington Street Office of Nuclear Reactor Regulation Duxbury, MA 02332 U.S. Nuclear Regulatory Commission Mail Stop O11-F1 Washington, DC 20555-0001 Sheila Slocum Hollis, Esq. Mark D. Sylvia, Town Manager Town of Plymouth MA Town Managers Office Duane Morris, LLP 11 Lincoln Street 1667 K. Street, N.W. Plymouth, MA 02360 Suite 700 Washington, DC 20006 Terrence A. Burke, Esq Chief Kevin M. Nord Entergy Nuclear Fire Chief & Director Duxbury Emergency 1340 Echelon Parkway Management Agency Mail Stop: M-ECH-62 668 Tremont Street Jackson, MS 39213 Duxbury, MA 02332

[Original signed by R.L. Giitter]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 21st day of December 2007