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UNITED STATES OF AMERICA
NUCLEAR REGULATORY COMMISSION

COMMISSIONERS

Dale E. Klein, Chairman
Gregory B. Jaczko
Peter B. Lyons
Kristine L. Svinicki

CLI-08-22

MEMORANDUM AND ORDER

          The United States Department of Energy (DOE) appeals¹ from the Pre-License Application Presiding Officer (PAPO) Board’s denial² of DOE’s Motion to Strike the State of Nevada’s (Nevada’s) certification of the availability of its documentary material on the Licensing Support Network (LSN).  Nevada opposes DOE’s appeal.³

           Nye County filed a motion for leave⁴ to file an amicus curiae brief, together with its amicus brief,⁵ in support of DOE’s appeal.  Nevada opposed Nye County’s amicus motion.⁶

           We affirm the PAPO Board’s decision to deny DOE’s motion to strike.  We also deny Nye County’s motion for leave to file an amicus curiae brief.

I.          DOE’S MOTION TO STRIKE NEVADA’S CERTIFICATION

           Subject to certain exclusions, our regulation, at 10 C.F.R. § 2.1003, requires other (that is, non-NRC Staff⁷) potential parties, interested governmental participants and parties to “make available no later than ninety days after the DOE certification of compliance . . . all documentary material (including circulated drafts but excluding preliminary drafts) generated by, or at the direction of, or acquired by, a potential party, interested governmental participant or party.”⁸ Our regulations, at 10 C.F.R. § 2.1009, further require potential parties, interested governmental participants, and parties to certify that they have established procedures for implementing the requirements of § 2.1003, that they have trained their personnel to comply with these procedures, and that the documentary material specified in § 2.1003 has been made available.⁹  Nevada’s certification pursuant to these regulations is the subject of DOE’s motion to strike.

           The PAPO Board¹⁰ denied DOE’s motion to strike Nevada’s LSN certification.  The Board gave two reasons.  First, the Board found that DOE failed to satisfy its burden to show that Nevada had in fact withheld documents it should have provided.  The Board found that instead of factual support, DOE provided “rank speculation and conjecture,” that the three documents DOE specifically identified as missing from the LSN were in fact not missing, and that in any event, Nevada “satisfactorily rebutted” DOE’s circumstantial presentation (through a declaration by the Administrator of Technical Programs in Nevada’s Agency for Nuclear Projects).¹¹ Second, the Board found, based upon its interpretation of our regulations (specifically, the three-category definition of documentary material), that “Nevada is not legally obligated to produce reliance material, including supporting and non-supporting [documentary material], until it has a ‘position in the proceeding’ by filing contentions.”¹² This has been referred to as the “no-position” premise.

           On appeal, DOE argues that the Board misinterpreted our regulations, and that its decision should be reversed.  According to DOE, Nevada improperly withheld reliance material when it certified its LSN document collection because it assertedly relied on a “legally incorrect” conclusion that it could not provide “reliance” material until it knows what its position on the issues will be — that is, until after it has filed proposed contentions.  Nevada counters that it has provided its documentary material, certifying its document collection as required, and denies that it excluded documentary material based on a “no-position” premise.  Nevada argues that DOE has the burden, on appeal, of showing that the Board made “clearly erroneous” factual findings, that its failure to do so is “dispositive,” and that the Commission “need not reach any legal issue.”¹³ 

           For the reasons the Board gave, we agree with the Board that DOE has not met its burden of showing that, in making its LSN certification, Nevada withheld documents it should have provided.  We affirm on that basis.  We need not consider the Board’s second reason (the “no-position” premise), and today’s ruling neither endorses nor rejects the Board’s interpretation on that point.

           The LSN functions as a mechanism for early collection of all extant documents that normally would be collected later through traditional discovery, and we remind potential parties that we expect full compliance with our LSN requirements as set out in Part 2, Subpart J, of our regulations.  The LSN is intended to “provide potential participants with the opportunity to frame focused and meaningful contentions and to avoid the delay potentially associated with document discovery, by requiring parties and potential parties to the proceeding to make all of their Subpart J-defined documentary material available through the LSN prior to the submission of the DOE application.”¹⁴ “[We expect] all participantsto make a good faith effort to have made available all . . .documentary material by the date specified for initial compliance in section 2.1003(a) of the Commission’s regulations.”¹⁵ If the NRC Staff dockets DOE’s license application and a hearing ensues, we expect the presiding officer to impose appropriate sanctions for any failure to fully comply with our LSN requirements.¹⁶

II.         NYE COUNTY’S AMICUS FILINGS

           We decline to grant Nye County’s motion to file an amicus curiae brief.  Subpart J does not provide for the filing of amicus curiae briefs.  Our general rule on amicus briefs, 10 C.F.R. § 2.315(d), as a formal matter applies only to petitions for review filed under 10 C.F.R. § 2.341 or to matters taken up by the Commission sua sponte, not to appeals filed, as here, under 10 C.F.R. § 2.1015.  Where 10 C.F.R. § 2.315(d) does apply, an amicus brief must be filed by the same deadline as the brief of the party whose side the amicus brief supports, unless the Commission provides otherwise.  Permission to file an amicus brief under 10 C.F.R. § 2.315(d) is at the discretion of the Commission.  All motions, including a motion for leave to file an amicus brief, are required to include a certification that the sponsor of the motion has made a sincere effort to contact the other parties and to resolve the issues raised in the motion (10 C.F.R. § 2.323).

III.        CONCLUSION

           For all of these reasons, we affirm the PAPO Board’s decision (in LBP-08-5) denying DOE’s motion to strike Nevada’s initial LSN certification.  We deny Nye County’s motion for leave to file an amicus curiae brief.

           IT IS SO ORDERED.

Dated at Rockville, Maryland,
this 8^th day of September, 2008.

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Tuesday, September 09, 2008