ML101800093

2010/06/28-NRC Staff'S Opposition to Pilgrim Watch'S Motion Requesting Leave to File Response to Judge Paul B. Abramson Decision on Recusal Motion (June 10, 2010)

ML101800093
Person / Time
Site:	Pilgrim
Issue date:	06/28/2010
From:	Harris B NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-293-LR, ASLB-06-848-02-LR, RAS J-251
Download: ML101800093 (7)

Text

June 28,2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) 1 ENTERGY NUCLEAR GENERATION ) COMPANY AND ENTERGY NlJCLEAR OPERATIONS, INC.

1 ) (Pilgrim Nuclear Power Station) ) ) Docket No. 50-293-LR NRC STAFF'S OPPOSI-l7ON TO PILGRIM WATCH'S MOTION REQUESTING LEAVE TO FILE RESPONSE TO JUDGE PAUL B. ABRAMSON DECISION ON RECUSAL MOTION (JUNE 10,2010) INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), the NRC staff ("Staff') hereby responds to Pilgrim Watch's ("PW") extra-regulatory filing entitled "Motion Requesting Leave to File Response to Judge Paul B. Abramson Decision on Recusal Motion (June 10,2010)" ("PW's Motion"), and its exhibit to the motion entitled "Pilgrim Watch Response to Judge Paul B. Abramson Decision on Recusal Motion" ("PW's Response"). The Commission should deny PW's Motion because it would require the recusal of qualified technical judges based on their farniliarity with issues in which they had no direct involvement, including modeling physical phenomena, writing and designing computer codes, and validating and certifying results. If PW's assertion were taken as correct, NRC could have difficulty appointing technical judges from the small community of professionals with sufficient expertise in nuclear power regulation and licensing to adjudicate hearings involving complex technical areas. Thus, PW's Motion should be denied. Moreover, PW's Motion is an extra-regulatory filing that is neither authorized nor precluded by the existing regulations. Thus, the Commission may, in its discretion, dismiss PW's Motion as unnecessary or solicit additional briefs from all the parties to aid in its review of the issue.

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pJeog 6u!sua:,!-1 pue /(laps :,!luolv aq) '0 102 'P Aew uo CINfIOkl3Y3V9 lWfla330kld information regarding the credentials of a party's proffered expert was in keeping with the Judge's role and does not support PW's assertion of bias.' Finally, PW filed with the Commission its Motion and Response to Judge Abramson's denial decision and attached copies of its replies to Entergy's Response and the Staff's Response.

DISCUSSION I. Acceptance of PW's Broad Basis For Disqualifvinq a Technical Judge Could Hamper NRC Efforts to Appoint Qualified Judqes to Its Atomic Safety And Licensing Ap~eal Boards In previous pleadings, PW has asserted that Judge Abramson's familiarity with other reactor accident codes, modeling of physical phenomena in general, and creating and working with unrelated computer codes should disqualify him from serving on the B~ard.~ These assertions ignore the Commission's precedent denying disqualification of technical judges based on their familiarity with the issues raised in any proceeding. The community of technical professionals with sufficient expertise to perform their duties as a technical judge Board member is small. Any individual with the expertise to serve as a technical judge would likely be familiar with risk analysis methodology including modeling physical phenomena, computer codes, and validating and certifying particular models and codes. Under PW's overly expansive disqualification standards, a technical judge's basic qualification to serve as member of the Board would also work to disqualify them in the first instance. As Judge Abramson has correctly determined in his denial decision, disqualification cannot be based on the Board member's broad professional experience in the nuclear field or his general familiarity with issues similar to 7 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Decision (Denying Motion on Behalf of Pilgrim Watch for My Self-Disqualification from the Remand Proceedings and Referring Motion to the Commission), slip op. at 15-1 6 (June 10, 2010). ' Id. At 17-19. 9 PW's Response at 9-1 1 the issues before the Board. Instead, disqualification must be directly related to their work on the specific issue to be determined by the Board. The Commission, when faced with substantially the same issue, stated: No realist would expect those vested with decisional responsibility to approach their tasks with minds untouched by experience and reflection so as to be obliged to treat every event as unprecedented. The Commission fails to see the basis for the [intervenor's] presumed conclusion that a Licensing Board's members' broad professional experience in industrial and academic nuclear programs would itself necessarily result in the members being unable, in any proceeding, to reach an impartial decision based on the adjudicatory record and applicable law." Here, as in Shoreham, PW is concerned with Judge Abramson's general familiarity with modeling reactor accidents, computer codes, validation and certification of codes that are not at issue before the Board. Thus, PW's Motion should be denied.

II. The Commission Will Direct When Additional Pleadings Are Needed Under 10 C.F.R. § 2.313(b), a party seeking to have a member of the Board disqualified may file a motion setting forth the alleged grounds for disqualification. The regulation states:

If a party believes that a presiding officer or a designated member of an Atomic Safety and Licensing Board should be disqualified, the party may move that the presiding officer of the Licensing Board member disqualify himself or herself. The motion must be supported by affidavits setting forth the alleged grounds for disqualification.

If the presiding officer or the Licensing Board member does not disqualify himself, the motion must be referred to the Commission. The Commission will determine the sufficiency of the grounds alleged.

10 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Decision (Denying Motion on Behalf of Pilgrim Watch for My Self-Disqualification from the Remand Proceedings and Referring Motion to the Commission), slip op. at 6-7 (June 10, 201 0); Entergy's Response at 6; Staff's Response at

6. 11 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit No. I), 4 A.E.C. 441, 443 (1 970).

The regulation does not specifically provide nor prohibit any party to file additional replies or motions in response to the Licensing Board member's decision or his referral to the Commission. The regulation contemplates that the Commission will review any decision denying a motion to disqualify, de novo. Quite simply, if the Commission deems that additional briefs will aid its review of the issues, it may order the parties to address any particular issue in supplemental briefs.

PW appears to apply the standard articulated in 10 C.F.R § 2.323(c) as authority in seeking leave to reply. However, under Section 2.323(c), a party rnaking a motion may seek to leave to reply only to another party's answer. This regulation is inapposite to whether a party has a right to respond to a Judge's referral to the Commission.

CONCLUSION PW's Motion and Response paints too broad a brush that would require the recusal of qualified technical judges based on their familiarity with modeling physical phenomena and computer codes not at issue before the Board. The Commission's procedural regulations do not require a technical judge to recuse him or herself merely because he or she has skills, knowledge or experience on matters that are before the Board. Thus, the Commission should deny PW's Motion. Res~ectfullv submitted, Brian G. Harris Susan Uttal Brian G. Harris Counsel for NRC Staff Dated at Rockville, Maryland This 28th day of June, 201 0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of 1 ) ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR ) 1 Docket No. 50-293-LR OPERATIONS, INC. 1 (Pilgrim Nuclear Generating Station) 1 ) CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S OPPOSITION TO PW'S MOTION REQUESTING LEAVE TO FILE [A] RESPONSE TO JUDGE PAUL B. ABRAMSON DECISION ON RECUSAL MOTION (JUNE 10,2010)" in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 28th day of June, 2010. 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-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.wv E-mail: Paul.Abramson@nrc.nov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop:

0-1 6G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.nov E-mail: Ann.Younn@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (VIA INTERNAL MAIL ONLY) Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearina.Docket@nrc.qov Sheila Slocum Hollis* Duane Morris LLP Suite 1000 505 9th Street, N.W.

Washington, DC 20004-2166 E-mail: sshollis@duanemorris.com Mary Lampert* 148 Washington Street Duxbury, MA 02332 E- mail: maty.lampert@comcast.net Chief Kevin M. Nord* Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbuty.ma.us Richard R. MacDonald* Town Manager 878 Tremont Street Duxbury, MA 02332 E-mail: macdonald@town.duxbuty.ma.us Terence A. Burke, Esq.* Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 3921 3 E-mail: tburke@entersv.com David R. Lewis, Esq*.

Paul A. Gaukler, Esq.

Jason B. Parker Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1 137 E-mail: david.lewis@pillsburvlaw.com paul.naukler@pillsbun/law.com Town Manager* Town of Plymouth 11 Lincoln St.

Plymouth, MA 02360 E-mail: marriqhi@townhall.plvmouth.ma.us Matthew Brock, Esq.* Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 021 08 E-mail: matthew.brock@.state.ma.us Counsel for the NRC Staff