In the Matter of James Chaisson (Enforcement Action); Notice of Hearing and Initial Scheduling Order, 54748-54752 [2014-21827]
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In the Matter of James Chaisson
(Enforcement Action); Notice of
Hearing and Initial Scheduling Order
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Dated: September 4, 2014.
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[FR Doc. 2014–21756 Filed 9–11–14; 8:45 am]
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September 8, 2014.
Atomic Safety and Licensing Board
Before Administrative Judges: Alex S. Karlin,
Chairman, Michael M. Gibson and Dr. Gary
S. Arnold
This proceeding concerns a July 11,
2014 enforcement order issued by
Patricia K. Holahan, Acting Director,
Office of Enforcement of the U.S.
Nuclear Regulatory Commission
(Director) against Mr. James P.
Chaisson.1 The Director alleges that Mr.
Chaisson failed to comply with certain
provisions of a confirmatory order that
the Director issued to him in 2012 (2012
Order). Id. at 42,058. Mr. Chaisson
requested an ‘‘expedited hearing’’ 2 and
filed an answer denying certain aspects
of the 2014 Order.3 The Director filed an
answer to Mr. Chaisson’s answer.4 The
Director does not oppose Mr. Chaisson’s
request for a hearing. Id.
Pursuant to 10 CFR 2.329(a), on
August 26, 2014, this Board conducted
the initial scheduling conference in this
matter.5 Our purpose was to discuss the
development of an initial scheduling
order (ISO) that would help achieve the
just resolution of this dispute as
efficiently and expeditiously as
possible. The conference was conducted
telephonically. The Director was
represented in the conference by the
NRC’s Office of General Counsel. Mr.
1 In the Matter of James Chaisson, 79 FR 42,057
(July 18, 2014) (2014 Order).
2 Email from James Chaisson to NRC Hearing
Docket (July 18, 2014).
3 Request for Hearing Submitted by James
Chaisson (Aug. 4, 2014) (Hearing Request).
4 NRC Staff Answer to Request for Hearing (Aug.
15, 2014) (Director’s Answer).
5 See Order (Scheduling Initial Prehearing
Conference) (Aug. 14, 2014) (unpublished).
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1.1
1.1
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Chaisson participated without
representation.6
During the initial scheduling
conference, Mr. Chaisson withdrew his
request that the hearing be expedited.
Tr. at 27, 65–66. Mr. Chaisson’s request
for expedition was based on his concern
that he would not be able to continue
working if the 2014 Order went into
effect before the hearing.7 However on
August 14, 2014, the Director informed
Mr. Chaisson that the 2014 Order ‘‘is not
effective until the Atomic Safety and
Licensing Board rules on your hearing.’’
Director’s Answer at 1 n.3. During the
conference call, counsel for the Director
confirmed that Mr. Chaisson’s current
responsibilities in his current job are not
prohibited by the 2014 Order (because
it is not in effect) or by the 2012 Order.
Tr. at 25. On that basis, Mr. Chaisson
withdrew his request to expedite the
hearing. Tr. at 27, 65–66.
In addition, during the initial
scheduling conference, the parties
acknowledged that 10 CFR part 2,
Subpart G (the regulations applicable to
enforcement proceedings) govern this
adjudication.8 Accordingly, this ISO is
based, in part, on the Subpart G
regulations.
6 Given that Mr. Chaisson is unrepresented, the
Board will carefully scrutinize any agreement or
consent by him purporting to waive or abandon any
of his substantive or procedural rights. See Order
(Scheduling Initial Prehearing Conference) (Aug.
14, 2014) (unpublished) at 4 n.5. We will look to
see if any such consent or waiver is fully informed.
Director’s counsel should be especially scrupulous
in informing Mr. Chaisson of the nature and extent
of the rights that they might suggest that he waive
or abandon. We also reminded counsel that their
ethical duty of candor (e.g., their duty to disclose
to this tribunal any relevant information and/or
legal authority that is adverse to the Director’s
position) is especially important in cases such as
this one, where the target of the government’s
enforcement action is not represented by counsel.
See Model Rules of Professional Conduct R.
3.3(a)(3); 10 CFR 2.323(d) and 2.314.
7 Emails from James Chaisson to NRC Hearing
Docket (Aug 4, 2014, 17:14 EDT; Aug. 6, 2014).
8 Tr. at 38. See 10 CFR 2.310(b) (‘‘Proceedings on
enforcement matters must be conducted under the
procedures of subpart G of this part, unless all
parties agree [otherwise].’’)
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II. Notice of Hearing
The Board grants Mr. Chaisson’s
request for a hearing and, pursuant to 10
CFR 2.312, issues this notice of hearing.
Indeed, Mr. Chaisson, who is the target
of the Director’s enforcement order, has
the right to demand and receive, not
merely request, a hearing. See 10 CFR
2.202(a)(3). The Board intends to
conduct the hearing in Salt Lake City,
Utah, at a time and place to be
determined later. The hearing and this
adjudication will be conducted under
10 CFR part 2, Subpart G.
III. Identification of Disputed Issues
NRC regulations require that this ISO
set forth ‘‘the issues or matters in
controversy to be determined in the
proceeding.’’ 10 CFR 2.329(e). This is
important because the scope and
content of this adjudication, and the
evidentiary hearing herein, are defined
by the issues and matters that are
disputed by the parties. For example,
the scope of the mandatory disclosures
that the parties must make under
Subpart G is defined by the ‘‘disputed
issues alleged with particularity in the
pleadings.’’ 10 CFR 2.704(a)(2),
2.709(a)(6). Likewise, the scope of
discovery under Subpart G covers any
matter ‘‘that is relevant to the subject
matter involved in the proceeding,
whether it relates to the claim or
defense of any other party.’’ 10 CFR
2.705(b)(1).
Based on the written pleadings and
the discussion during the initial
prehearing conference, the issues and
matters in controversy, as we see them
now, are defined by the allegations in
the Director’s 2014 Order and the
responses contained in Mr. Chaisson’s
emails, answer and statements during
the conference.
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A. The Director’s Allegations Include
the Following
1. Mr. Chaisson was employed from
April 2009 through April 2010 as an
area supervisor and lead radiographer
for the Wyoming operations of Texas
Gamma Ray, LLC (TGR), which, at that
time, held a license issued by the NRC
pursuant to 10 CFR part 34. The license
authorized TGR to conduct certain
radiographic operations. 79 FR at
42,057.
2. On May 15, 2012, the NRC issued
an order to Mr. Chaisson prohibiting
him from engaging in NRC-licensed
activities for a 3-year period. Id.
3. The May 15, 2012 order was based
on NRC’s claim that Mr. Chaisson
‘‘engaged in deliberate misconduct in
violation of 10 CFR 30.10(a)(1).
Specifically, the NRC concluded that
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Mr. Chaisson chose to store a
radiographic exposure device at a
facility he knew did not comply with
applicable NRC security requirements
and was not an authorized storage
location under TGR’s license.’’ Id.
4. Mr. Chaisson requested alternative
dispute resolution (ADR) concerning the
May 15, 2012 order. Id. A mediation
session was conducted on July 26, 2012.
Id.
5. As a result of the ADR, Mr.
Chaisson signed an ‘‘Agreement in
Principal [sic] . . . in which he agreed
to terms and conditions to be
memorialized in a Confirmatory Order.’’
Id.
6. On September 10, 2012, NRC
issued a ‘‘Confirmatory Order based on
the Agreement in Principal [sic].’’ Id.
[This Confirmatory Order is referred to
herein as the ‘‘2012 Order.’’]
7. Among other things, the 2012 Order
prohibited Mr. Chaisson from engaging
in NRC-licensed activities for an 18month period, during which time he
was required:
a. To complete a 40-hour formal
training course designed for qualifying
radiation safety officers;
b. To complete a 40-hour formal
training course that meets or exceeds
the requirements of 10 CFR 34.43; and
c. To submit an article to NRC
‘‘articulating the importance of
compliance with NRC regulations and
providing full and accurate
information.’’ Id. at 42,057–58.
8. On March 28, 2014, Mr. Chaisson
contacted NRC to determine what kind
of training would be acceptable to meet
the requirements of the 2012 Order and
on March 31, 2014, he requested a 6month extension to fulfill the
requirements of the 2012 Order. Id. at
42,058.
9. Contrary to the requirements of the
2012 Order, Mr. Chaisson failed to
complete the two 40-hour training
courses, and failed to submit the article
to NRC within the 18-month period
specified in the 2012 Order. Id.
10. ‘‘Mr. Chaisson’s actions [specified
in the previous paragraph 9] constitute
a violation of NRC requirements.’’ Id.
11. ‘‘Based on the deliberate
misconduct on which the May 15, 2012,
Order was based, and Mr. Chaisson’s
violation of the September 10, 2012
Confirmatory Order, I [the Director] lack
the requisite reasonable assurance that
Mr. Chaisson can be relied upon, at this
time, to comply with the Commission’s
requirements and that the health and
safety of the public will be protected if
Mr. Chaisson were permitted at this
time to be involved in NRC-licensed
activities.’’ Id.
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12. On the foregoing basis, the
Director issued the 2014 Order.
B. Mr. Chaisson’s Allegations Include
the Following
1. He did not deliberately violate any
NRC requirements as alleged in the 2012
Order. Email from James Chaisson to
NRC Hearing Docket (Aug. 4, 2014,
12:02 EDT).
2. The 2012 Order does not accurately
represent what he agreed to in the 2012
mediation process. Tr. at 43.
3. He complied with the provision of
the 2012 Order that required him to
write and submit an article. Hearing
Request.
4. He attempted to comply with the
provisions of the 2012 Order that
required him to attend two 40-hour
training courses, but circumstances
beyond his control prevented him from
doing so. Hearing Request.
5. He requested that NRC grant him an
extension for complying with the
requirement of the 2012 Order that he
attend two 40-hour training courses. 79
FR at 42,058.
6. He did not deliberately violate the
2012 Order. Email from James Chaisson
to NRC Hearing Docket (Aug. 4, 2014,
12:02 EDT).
7. The sanctions proposed by the 2014
Order are inappropriate and excessive.
Tr. at 41.
8. The 2014 Order should not have
been issued and should not be
sustained.9
C. Board Specification of Issues or
Matters in Dispute
The Board concludes that the issues
listed in Sections III.A and III.B are the
‘‘issues or matters in controversy to be
determined in the proceeding.’’ 10 CFR
2.329(e). Thus, the scope of the
mandatory disclosures, discovery,
testimony, exhibits, and any other
filings herein will include the foregoing
issues and matters.
We note that during the initial
prehearing conference, the Director took
the position that the scope of the
adjudication ‘‘should be limited to
whether the 2014 Order was justified
and appropriate.’’ Tr. at 41. For
example, the Director argued that Mr.
Chaisson should not be allowed to
dispute whether the 2012 Order
accurately reflects the mediated
settlement because Mr. Chaisson signed
an agreement in principle that covered
these points. Tr. at 42. The Director also
argued that Mr. Chaisson should not be
allowed to dispute the original
9 See Hearing Request; Emails from James
Chaisson to NRC Hearing Docket (July 18, 2014;
Aug. 4, 2014, 12:02 EDT; Aug. 4, 2014, 17:14 EDT;
Aug. 6, 2014).
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violations that formed the basis of the
2012 Order, i.e., whether, in 2009–2010,
Mr. Chaisson deliberately violated NRC
regulations. Tr. at 47. The Director
argued that the current dispute should
be limited to whether Mr. Chaisson
violated the terms of the 2012 Order. Id.
We do not agree. First, Mr. Chaisson
asserts that the 2012 Order does not
accurately reflect what he agreed to in
2012. Tr. at 45. If Mr. Chaisson asserts
that he did not agree to undergo the two
40 hour training courses and to submit
an article to the NRC within 18 months,
then he may present evidence to that
effect. Likewise, if the Director (who has
the burden of proof herein) has a written
agreement in principle, signed by Mr.
Chaisson, specifying that he agreed to
those terms and conditions, then the
Director may present such evidence at
the hearing.10
Second, the 2014 Order explicitly
states that the Director’s findings and
the sanctions she seeks to impose on
Mr. Chaisson, are, in part, ‘‘[b]ased on
the deliberate misconduct on which the
May 15, 2012, Order was based.’’ 79 FR
at 42,058. Meanwhile, Mr. Chaisson
disputes that he ever engaged in such
deliberate misconduct. Tr. at 56–57.
This issue is clearly within the scope of
this proceeding. While this proceeding
will not litigate the validity of the 2012
Order (Mr. Chaisson did not challenge
that order in 2012),11 the scope of the
current proceeding definitely includes
the appropriateness of the sanctions
specified in the 2014 Order. The
appropriateness of the sanctions in the
2014 Order is based, in significant part,
on NRC’s allegation that he engaged in
deliberate misconduct in 2009–2010.
This is an issue or matter in dispute in
this case, and the Director and Mr.
Chaisson are entitled to present
evidence on it.
10 The issue—whether or not the 2012 Order
accurately reflects what Mr. Chaisson agreed to—
focuses on the final result of the mediation, not the
various communications made by the parties or the
mediator during the mediation process. Both parties
may present evidence whether the 2012 Order
accurately reflects the result of the mediation. But
neither party will be allowed to present evidence
concerning the back and forth communications that
the parties exchanged during the mediation process.
We are not going to rehash who said what to whom
during the mediation. Likewise, the mediator may
not be called as a witness in this proceeding. This
comports with Rule 408 of the Federal Rules of
Evidence, which states, in part: ‘‘Evidence of
conduct or statements made in compromise
negotiations is . . . not admissible.’’
11 While we will allow Mr. Chaisson to use this
adjudication to argue (and present evidence) that
the 2012 Order is inaccurate (that is that it does not
correctly reflect what he agreed to in 2012), we will
not allow him to use this adjudication to argue that
the 2012 Order is invalid or should be overturned.
If he had wanted to challenge the validity of the
2012 Order, he should have done so in 2012.
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D. Clarification or Simplification of the
Disputed Issues
The issues and matters in dispute that
are listed in sections III.A and III.B
above are subject to modification and
adjustment. For example, during the
prehearing conference, we encouraged
the Director and Mr. Chaisson to
communicate with each other to attempt
to settle, clarify, or simplify the issues
and matters in dispute. Tr. at 85–87.
Pursuant to that discussion, Section
IV.A of this order instructs the parties
to consult with each other by September
30, 2014, and for the Director to submit
a report to the Board concerning the
results of that consultation by October
10, 2014. That consultation and report
should include any jointly proposed
modifications or adjustments to the
matters listed in Sections III.A and III.B.
IV. Schedule
In addition to the general deadlines
and time frames applicable to
proceedings under 10 CFR Part 2, the
Board establishes the following initial
schedule for this matter.12
A. Initial Meeting of the Parties
NRC’s Subpart G regulations specify
that, as soon as practicable after the
issuance of the ISO, the parties shall
‘‘meet to discuss the nature and basis of
their claims and defenses and the
possibilities for a prompt settlement or
resolution of the proceeding or any
portion thereof, to make or arrange for
the disclosures required by § 2.704, and
to develop a proposed discovery plan.’’
10 CFR 2.705(f). In accordance with
these regulations, the parties shall
consult. In addition to the foregoing
topics, they shall discuss whether either
party claims that confidential or
protected information is involved in this
proceeding and whether a protective
order may be necessary. Specifically,
1. By September 30, 2014, the Director
and Mr. Chaisson shall consult (either
in person or telephonically) to discuss
the matters specified above; and
2. By October 10, 2014, the Director
or her representative shall file a brief
report with the Board reciting the
results of the consultation. This report
should
a. Identify any jointly proposed
amendments, clarifications or
simplifications to the issues and
disputed matters listed in Sections III.A
and III.B of this ISO;
12 In any conflict between this ISO and the
general rules of 10 CFR part 2 (including the model
milestones set forth in 10 CFR part 2, Appendix B),
the deadlines specified in the ISO shall govern.
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b. Include a proposed discovery plan
that comports with the schedule and
deadlines set forth in this ISO;
c. Specify if either party believes that
a protective order is necessary and, if so,
submit a proposed protective order; 13
and
d. Specify if the parties wish to
pursue settlement or to seek to have a
Settlement Judge appointed pursuant to
10 CFR 2.338(b).
3. By October 17, 2014, Mr. Chaisson
may file an answer to the report.
4. Settlement is encouraged, but the
parties should be aware that the fact that
they are negotiating a possible
settlement does not change any of the
deadlines set forth in this ISO. See 10
CFR 2.338(f).
B. Mandatory Disclosures
NRC’s Subpart G regulations specify
that, unless the Board mandates
otherwise, within 45 days of the ISO
each party must automatically disclose
to the other party certain information
and documents. For example, within 45
days the NRC Enforcement Director
must provide Mr. Chaisson with a copy
of all NRC Staff documents that are
‘‘relevant to disputed issues alleged
with particularity in the pleadings [i.e.,
listed in Sections III.A and III.B
herein].’’ 10 CFR 2.709(a)(6)(i)(A).
Likewise, within 45 days Mr. Chaisson
must provide certain information and
documents to the NRC Enforcement
Director. See 10 CFR 2.704(a). That 45day deadline, however, conflicts with
the timing of the consultation mandated
by 10 CFR 2.705(f) and discussed in
Section IV.A above. Accordingly,
1. In lieu of the 45-day deadline, Mr.
Chaisson and the Director shall make
their initial mandatory disclosures to
each other by November 4, 2014;
2. Mr. Chaisson and the Director shall
update their mandatory disclosures
monthly, on the second Wednesday of
each month; and
3. The monthly updates shall
continue until the Board issues its
decision after the hearing.
C. Discovery
NRC’s Subpart G regulations specify
that, in addition to the mandatory
disclosures specified above, and within
certain constraints, Mr. Chaisson may
pursue discovery against the Director.
See 10 CFR 2.709 (‘‘Discovery against
NRC staff’’). For example, Mr. Chaisson
(a) may serve written questions (referred
to as ‘‘interrogatories’’) on the Director,
(b) must show that the answers to the
13 See Pacific Gas and Electric Company (Diablo
Canyon Nuclear Power Plant, Units 1 and 2), LBP–
11–5, 73 NRC 131 (2011) for an example of a
protective order.
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interrogatories are necessary to a proper
decision in this proceeding, and (c) ask
the Board to direct the Director to
answer those interrogatories. See 10
CFR 2.709(a)(2). If the Board agrees, it
will instruct the Director to answer the
interrogatories. In addition, Mr.
Chaisson may require a member of the
NRC Enforcement Director’s staff to
attend a prehearing meeting where he
can require that staff member answer
questions orally under oath (this is
referred to as a ‘‘deposition’’). See 10
CFR 2.709(a)(1), (3) and (4). Likewise,
counsel for the Director may take the
deposition of Mr. Chaisson or any other
person, see 10 CFR 2.706(a); may file
written interrogatories that Mr. Chaisson
must answer, see 10 CFR 2.705(b); and
may require him to provide the Director
with a copy of any designated relevant
document that is within his possession,
custody or control, see 10 CFR 2.707(a).
Neither party is required to pursue such
discovery. However, any such discovery
shall proceed as follows:
1. Such discovery may not begin until
October 10, 2014—10 days after Mr.
Chaisson and the Director have held the
consultation mandated by 10 CFR
2.705(f); 14
2. Such discovery must be completed
by January 15, 2015.
D. Motions for Summary Disposition
Given the factual nature of the issues
and matters in dispute herein, the Board
concludes that motions for summary
disposition (and any other form of
dispositive motion) would be
unproductive and would divert Mr.
Chaisson and the Director from
preparing adequately for the evidentiary
hearing. Accordingly, no such motions
may be filed.
E. Second Prehearing Conference
The Board contemplates that the
prehearing filings that each party must
make before the evidentiary hearing can
occur will need to be filed by February
20, 2015, and that the evidentiary
hearing will occur in mid to late March
2015. At the moment, however, we are
not mandating those specific deadlines.
Instead, the Board will hold a second
prehearing conference before January
30, 2015. The purpose of the second
prehearing conference will be to set a
specific time, date, and location for the
evidentiary hearing and to establish firm
deadlines for the prehearing filings that
the parties must make.
V. Fifth Amendment Issues
The Fifth Amendment to the
Constitution of the United States
provides, in pertinent part, that no
person ‘‘shall be compelled in any
criminal case to be a witness against
himself.’’ The 2014 Order issued by the
Director, and this adjudicatory
proceeding, are administrative actions
and do not constitute a criminal case.
During the initial prehearing
conference, however, counsel for the
Director stated that there is a
‘‘potential’’ that a criminal case could
arise concerning Mr. Chaisson’s alleged
violations. Tr. at 91. Given that Mr.
Chaisson has no legal representation, it
is incumbent on NRC, and this Board,
to be alert to such issues and to inform
him of his right against selfincrimination in appropriate
circumstances. Accordingly, and as
ordered during the initial prehearing
conference:
A. On September 10, 2014 the
Director shall submit a brief to the
Board that specifies:
1. Whether there is any potential that
NRC will pursue criminal charges
against Mr. Chaisson;
2. Whether the NRC is aware that any
other federal entity, such as the U.S.
Department of Justice, is investigating
this matter and/or may pursue criminal
charges against Mr. Chaisson;
3. Whether the Director or anyone on
the NRC Staff has previously advised
Mr. Chaisson of his Fifth Amendment
right against self-incrimination, and if
so, when and how;
4. Whether the right against selfincrimination attaches or has attached
to Mr. Chaisson in this proceeding;
5. If so, when did it attach; and
6. If so, how we should handle this
issue and protect Mr. Chaisson’s
constitutional rights.
B. On September 17, 2014, Mr.
Chaisson may file an answer to the
Director’s report.
VI. Conclusion
This ISO is intended to promote the
just resolution of this dispute as
efficiently and expeditiously as
possible. The deadlines set forth herein
are firm, and will not be modified
unless a party (in advance of the
deadline) petitions this Board for a
change and demonstrates to us that
there is good cause for such a change.
See 10 CFR 2.334(b). Appendix A
provides a summary of the deadlines set
forth in this ISO. The parties should
note that settlement negotiations, while
encouraged, will not delay this schedule
unless the Board affirmatively grants
such a delay.
Objections to this ISO must be filed
by September 15, 2014. See 10 CFR
2.329(e).
It is so ordered.
Rockville, Maryland.
Dated: September 8, 2014.
The Atomic Safety and Licensing Board.
Alex S. Karlin,
Chairman, Administrative Judge;
Michael M. Gibson,
Administrative Judge;
Gary S. Arnold,
Administrative Judge.
APPENDIX A—IN THE MATTER OF JAMES CHAISSON: DEADLINES SPECIFIED IN INITIAL SCHEDULING ORDER
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Deadline
Action
9/10/14 ........................................................
9/15/14 ........................................................
9/17/14 ........................................................
9/30/14 ........................................................
10/10/14 ......................................................
10/10/14 ......................................................
10/17/14 ......................................................
11/4/14 ........................................................
1/15/15 ........................................................
Before 1/30/15 ............................................
Director files brief concerning 5th Amendment ............................................................
Either party may file objections to ISO .........................................................................
Chaisson may file response concerning 5th Amendment ............................................
Initial meeting or consultation of parties .......................................................................
Director files report of consultation ...............................................................................
Parties can commence discovery .................................................................................
Chaisson may file response to Director’s report ..........................................................
Parties make initial mandatory disclosures (to be updated monthly thereafter) ..........
End of discovery. Parties must complete discovery by this date .................................
Board conducts second prehearing conference with the parties to adjust and finalize
plans for the hearing.
Each party files its Prehearing Submittals. (These submittals consist of the party’s
(a) statement of position, (b) written testimony, and (c) exhibits).
2/20/15 * ......................................................
14 This is the same date on which the Director is
to submit her report concerning the results of the
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jointly proposed discovery plan.
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54752
Federal Register / Vol. 79, No. 177 / Friday, September 12, 2014 / Notices
APPENDIX A—IN THE MATTER OF JAMES CHAISSON: DEADLINES SPECIFIED IN INITIAL SCHEDULING ORDER—Continued
Deadline
Action
ISO section
Mid to late March 2015 * ............................
Evidentiary hearing .......................................................................................................
ISO IV.E
* These dates are subject to change and will be discussed during the second prehearing conference.
[FR Doc. 2014–21827 Filed 9–11–14; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[NRC–2011–0224]
Applications of Bioassay for
Radioiodine
Nuclear Regulatory
Commission.
ACTION: Regulatory guide; issuance.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is issuing Revision 2
to Regulatory Guide (RG) 8.20,
‘‘Applications of Bioassay for Iodine125 and Iodine-131.’’ The title of this
regulatory guide has been changed to
‘‘Applications of Bioassay for
Radioiodine.’’ It describes methods and
criteria acceptable to the NRC staff for
the development and implementation of
a bioassay program by licensees
handling or processing unsealed
materials containing Iodine-123 (I–123),
Iodine-124 (I–124), Iodine-125 (I–125),
Iodine-129 (I–129), and Iodine-131 (I–
131), or a combination of these
radionuclides.
SUMMARY:
Please refer to Docket ID
NRC–2011–0224 when contacting the
NRC about the availability of
information regarding this document.
You may obtain publicly-available
information related to this action by the
following methods:
• Federal Rulemaking Web site: Go to
https://www.regulations.gov and search
for Docket ID NRC–2011–0224. Address
questions about NRC dockets to Carol
Gallagher; telephone: 301–287–3422;
email: Carol.Gallagher@nrc.gov. For
technical questions, contact the
individual(s) listed in the FOR FURTHER
INFORMATION CONTACT section of this
document.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): You may obtain publiclyavailable documents online in the NRC
Library at https://www.nrc.gov/readingrm/adams.html. To begin the search,
select ‘‘ADAMS Public Documents’’ and
then select ‘‘Begin Web-based ADAMS
Search.’’ For problems with ADAMS,
please contact the NRC’s Public
Document Room (PDR) reference staff at
tkelley on DSK3SPTVN1PROD with NOTICES
ADDRESSES:
VerDate Mar<15>2010
17:58 Sep 11, 2014
Jkt 232001
1–800–397–4209, 301–415–4737, or by
email to pdr.resource@nrc.gov. Revision
2 of RG 8.20 is available in ADAMS
under Accession No. ML14064A060.
The regulatory analysis may be found in
ADAMS under Accession Number
ML14064A058.
• NRC’s PDR: You may examine and
purchase copies of public documents at
the NRC’s PDR, Room O1–F21, One
White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
Regulatory guides are not
copyrighted, and NRC approval is not
required to reproduce them.
FOR FURTHER INFORMATION CONTACT:
Casper Sun, telephone: 301–251–7912,
email: casper.sun@nrc.gov; or Harriet
Karagiannis, telephone: 301–251–7477,
email: harriet.karagiannis@nrc.gov.
Both are staff of the Office of Nuclear
Regulatory Research, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001.
SUPPLEMENTARY INFORMATION:
I. Introduction
The NRC is issuing a revision to an
existing guide in the NRC’s ‘‘Regulatory
Guide’’ series. This series was
developed to describe and make
available to the public information
methods that are acceptable to the NRC
staff for implementing specific parts of
the agency’s regulations, techniques that
the staff uses in evaluating specific
problems or postulated accidents, and
data that the staff needs in its review of
applications for permits and licenses.
Revision 2 of RG 8.20 was issued with
a temporary identification as draft
regulatory guide (DG), DG–8050,
entitled, ‘‘Applications for Bioassay for
Radioiodine.’’ This guide was revised to
achieve better alignment with: (1) Part
20 of Title 10 of the Code of Federal
Regulations (10 CFR); and (2) the
internal dose assessment methods
recommended by the International
Commission on Radiological Protection
Publication 30, ‘‘Limits for Intakes of
Radionuclides by Workers.’’ The
content of the guide was also simplified
by removing the appendixes of the
previous version and including
pertinent information in the main
sections of the guide. Also, the title was
changed because the guide now
includes three more radioiodines (I–123,
I–124, and I–129), in addition to the two
PO 00000
Frm 00076
Fmt 4703
Sfmt 4703
radioiodines (I–125 and I–131) that were
included in the previous version.
II. Additional Information
This DG–8050 was published in the
Federal Register on September 26, 2011,
(76 FRN 59448) for a 60-day public
comment period. The public comment
period closed on November 22, 2011.
Public comments on DG–8050 and the
NRC staff’s responses to the public
comments are available in ADAMS
under Accession No. ML14064A061.
III. Congressional Review Act
This RG is a rule as defined in the
Congressional Review Act (5 U.S.C.
801–808). However, the Office of
Management and Budget has not found
it to be a major rule as defined in the
Congressional Review Act.
IV. Backfitting and Issue Finality
This RG describes methods that the
staff of the NRC considers acceptable for
the development and implementation of
bioassay programs for adult workers and
for licensees handling or processing
unsealed materials containing I–123,
I–124, I–125, I–129, and I–131 or a
combination of these radionuclides.
Some of the applicants and licensees to
whom this regulatory guide applies are
protected by backfitting provisions in
certain parts of 10 CFR Chapter I and/
or the issue finality provisions in 10
CFR part 52.
Issuance of this RG does not
constitute backfitting under 10 CFR
50.109, 10 CFR 70.76, 10 CFR 72.62, or
10 CFR 76.76, and is not inconsistent
with any issue finality provisions in 10
CFR part 52. As discussed in the
‘‘Implementation’’ section of this
regulatory guide, the NRC has no
current intention to impose this
regulatory guide on any licensees,
including holders of licenses protected
by the backfitting and issue finality
provisions listed above. Applicants for
the licenses listed above are not
protected by any backfitting and issue
finality provisions. Backfitting and the
issue finality provisions—with certain
exclusions discussed below—are not
intended to apply to every NRC action
which substantially changes the
expectations of current and future
applicants. The exceptions to the
general principle are applicable
whenever an applicant references a part
E:\FR\FM\12SEN1.SGM
12SEN1
]]>Agencies
[Federal Register Volume 79, Number 177 (Friday, September 12, 2014)]
[Notices]
[Pages 54748-54752]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21827]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[Docket No. IA-14-025-EA; ASLBP No. 14-932-02-EA-BD01]
In the Matter of James Chaisson (Enforcement Action); Notice of
Hearing and Initial Scheduling Order
September 8, 2014.
Atomic Safety and Licensing Board
Before Administrative Judges: Alex S. Karlin, Chairman, Michael M.
Gibson and Dr. Gary S. Arnold
I. Introduction
This proceeding concerns a July 11, 2014 enforcement order issued
by Patricia K. Holahan, Acting Director, Office of Enforcement of the
U.S. Nuclear Regulatory Commission (Director) against Mr. James P.
Chaisson.\1\ The Director alleges that Mr. Chaisson failed to comply
with certain provisions of a confirmatory order that the Director
issued to him in 2012 (2012 Order). Id. at 42,058. Mr. Chaisson
requested an ``expedited hearing'' \2\ and filed an answer denying
certain aspects of the 2014 Order.\3\ The Director filed an answer to
Mr. Chaisson's answer.\4\ The Director does not oppose Mr. Chaisson's
request for a hearing. Id.
---------------------------------------------------------------------------
\1\ In the Matter of James Chaisson, 79 FR 42,057 (July 18,
2014) (2014 Order).
\2\ Email from James Chaisson to NRC Hearing Docket (July 18,
2014).
\3\ Request for Hearing Submitted by James Chaisson (Aug. 4,
2014) (Hearing Request).
\4\ NRC Staff Answer to Request for Hearing (Aug. 15, 2014)
(Director's Answer).
---------------------------------------------------------------------------
Pursuant to 10 CFR 2.329(a), on August 26, 2014, this Board
conducted the initial scheduling conference in this matter.\5\ Our
purpose was to discuss the development of an initial scheduling order
(ISO) that would help achieve the just resolution of this dispute as
efficiently and expeditiously as possible. The conference was conducted
telephonically. The Director was represented in the conference by the
NRC's Office of General Counsel. Mr. Chaisson participated without
representation.\6\
---------------------------------------------------------------------------
\5\ See Order (Scheduling Initial Prehearing Conference) (Aug.
14, 2014) (unpublished).
\6\ Given that Mr. Chaisson is unrepresented, the Board will
carefully scrutinize any agreement or consent by him purporting to
waive or abandon any of his substantive or procedural rights. See
Order (Scheduling Initial Prehearing Conference) (Aug. 14, 2014)
(unpublished) at 4 n.5. We will look to see if any such consent or
waiver is fully informed. Director's counsel should be especially
scrupulous in informing Mr. Chaisson of the nature and extent of the
rights that they might suggest that he waive or abandon. We also
reminded counsel that their ethical duty of candor (e.g., their duty
to disclose to this tribunal any relevant information and/or legal
authority that is adverse to the Director's position) is especially
important in cases such as this one, where the target of the
government's enforcement action is not represented by counsel. See
Model Rules of Professional Conduct R. 3.3(a)(3); 10 CFR 2.323(d)
and 2.314.
---------------------------------------------------------------------------
During the initial scheduling conference, Mr. Chaisson withdrew his
request that the hearing be expedited. Tr. at 27, 65-66. Mr. Chaisson's
request for expedition was based on his concern that he would not be
able to continue working if the 2014 Order went into effect before the
hearing.\7\ However on August 14, 2014, the Director informed Mr.
Chaisson that the 2014 Order ``is not effective until the Atomic Safety
and Licensing Board rules on your hearing.'' Director's Answer at 1
n.3. During the conference call, counsel for the Director confirmed
that Mr. Chaisson's current responsibilities in his current job are not
prohibited by the 2014 Order (because it is not in effect) or by the
2012 Order. Tr. at 25. On that basis, Mr. Chaisson withdrew his request
to expedite the hearing. Tr. at 27, 65-66.
---------------------------------------------------------------------------
\7\ Emails from James Chaisson to NRC Hearing Docket (Aug 4,
2014, 17:14 EDT; Aug. 6, 2014).
---------------------------------------------------------------------------
In addition, during the initial scheduling conference, the parties
acknowledged that 10 CFR part 2, Subpart G (the regulations applicable
to enforcement proceedings) govern this adjudication.\8\ Accordingly,
this ISO is based, in part, on the Subpart G regulations.
---------------------------------------------------------------------------
\8\ Tr. at 38. See 10 CFR 2.310(b) (``Proceedings on enforcement
matters must be conducted under the procedures of subpart G of this
part, unless all parties agree [otherwise].'')
---------------------------------------------------------------------------
[[Page 54749]]
II. Notice of Hearing
The Board grants Mr. Chaisson's request for a hearing and, pursuant
to 10 CFR 2.312, issues this notice of hearing. Indeed, Mr. Chaisson,
who is the target of the Director's enforcement order, has the right to
demand and receive, not merely request, a hearing. See 10 CFR
2.202(a)(3). The Board intends to conduct the hearing in Salt Lake
City, Utah, at a time and place to be determined later. The hearing and
this adjudication will be conducted under 10 CFR part 2, Subpart G.
III. Identification of Disputed Issues
NRC regulations require that this ISO set forth ``the issues or
matters in controversy to be determined in the proceeding.'' 10 CFR
2.329(e). This is important because the scope and content of this
adjudication, and the evidentiary hearing herein, are defined by the
issues and matters that are disputed by the parties. For example, the
scope of the mandatory disclosures that the parties must make under
Subpart G is defined by the ``disputed issues alleged with
particularity in the pleadings.'' 10 CFR 2.704(a)(2), 2.709(a)(6).
Likewise, the scope of discovery under Subpart G covers any matter
``that is relevant to the subject matter involved in the proceeding,
whether it relates to the claim or defense of any other party.'' 10 CFR
2.705(b)(1).
Based on the written pleadings and the discussion during the
initial prehearing conference, the issues and matters in controversy,
as we see them now, are defined by the allegations in the Director's
2014 Order and the responses contained in Mr. Chaisson's emails, answer
and statements during the conference.
A. The Director's Allegations Include the Following
1. Mr. Chaisson was employed from April 2009 through April 2010 as
an area supervisor and lead radiographer for the Wyoming operations of
Texas Gamma Ray, LLC (TGR), which, at that time, held a license issued
by the NRC pursuant to 10 CFR part 34. The license authorized TGR to
conduct certain radiographic operations. 79 FR at 42,057.
2. On May 15, 2012, the NRC issued an order to Mr. Chaisson
prohibiting him from engaging in NRC-licensed activities for a 3-year
period. Id.
3. The May 15, 2012 order was based on NRC's claim that Mr.
Chaisson ``engaged in deliberate misconduct in violation of 10 CFR
30.10(a)(1). Specifically, the NRC concluded that Mr. Chaisson chose to
store a radiographic exposure device at a facility he knew did not
comply with applicable NRC security requirements and was not an
authorized storage location under TGR's license.'' Id.
4. Mr. Chaisson requested alternative dispute resolution (ADR)
concerning the May 15, 2012 order. Id. A mediation session was
conducted on July 26, 2012. Id.
5. As a result of the ADR, Mr. Chaisson signed an ``Agreement in
Principal [sic] . . . in which he agreed to terms and conditions to be
memorialized in a Confirmatory Order.'' Id.
6. On September 10, 2012, NRC issued a ``Confirmatory Order based
on the Agreement in Principal [sic].'' Id. [This Confirmatory Order is
referred to herein as the ``2012 Order.'']
7. Among other things, the 2012 Order prohibited Mr. Chaisson from
engaging in NRC-licensed activities for an 18-month period, during
which time he was required:
a. To complete a 40-hour formal training course designed for
qualifying radiation safety officers;
b. To complete a 40-hour formal training course that meets or
exceeds the requirements of 10 CFR 34.43; and
c. To submit an article to NRC ``articulating the importance of
compliance with NRC regulations and providing full and accurate
information.'' Id. at 42,057-58.
8. On March 28, 2014, Mr. Chaisson contacted NRC to determine what
kind of training would be acceptable to meet the requirements of the
2012 Order and on March 31, 2014, he requested a 6-month extension to
fulfill the requirements of the 2012 Order. Id. at 42,058.
9. Contrary to the requirements of the 2012 Order, Mr. Chaisson
failed to complete the two 40-hour training courses, and failed to
submit the article to NRC within the 18-month period specified in the
2012 Order. Id.
10. ``Mr. Chaisson's actions [specified in the previous paragraph
9] constitute a violation of NRC requirements.'' Id.
11. ``Based on the deliberate misconduct on which the May 15, 2012,
Order was based, and Mr. Chaisson's violation of the September 10, 2012
Confirmatory Order, I [the Director] lack the requisite reasonable
assurance that Mr. Chaisson can be relied upon, at this time, to comply
with the Commission's requirements and that the health and safety of
the public will be protected if Mr. Chaisson were permitted at this
time to be involved in NRC-licensed activities.'' Id.
12. On the foregoing basis, the Director issued the 2014 Order.
B. Mr. Chaisson's Allegations Include the Following
1. He did not deliberately violate any NRC requirements as alleged
in the 2012 Order. Email from James Chaisson to NRC Hearing Docket
(Aug. 4, 2014, 12:02 EDT).
2. The 2012 Order does not accurately represent what he agreed to
in the 2012 mediation process. Tr. at 43.
3. He complied with the provision of the 2012 Order that required
him to write and submit an article. Hearing Request.
4. He attempted to comply with the provisions of the 2012 Order
that required him to attend two 40-hour training courses, but
circumstances beyond his control prevented him from doing so. Hearing
Request.
5. He requested that NRC grant him an extension for complying with
the requirement of the 2012 Order that he attend two 40-hour training
courses. 79 FR at 42,058.
6. He did not deliberately violate the 2012 Order. Email from James
Chaisson to NRC Hearing Docket (Aug. 4, 2014, 12:02 EDT).
7. The sanctions proposed by the 2014 Order are inappropriate and
excessive. Tr. at 41.
8. The 2014 Order should not have been issued and should not be
sustained.\9\
---------------------------------------------------------------------------
\9\ See Hearing Request; Emails from James Chaisson to NRC
Hearing Docket (July 18, 2014; Aug. 4, 2014, 12:02 EDT; Aug. 4,
2014, 17:14 EDT; Aug. 6, 2014).
---------------------------------------------------------------------------
C. Board Specification of Issues or Matters in Dispute
The Board concludes that the issues listed in Sections III.A and
III.B are the ``issues or matters in controversy to be determined in
the proceeding.'' 10 CFR 2.329(e). Thus, the scope of the mandatory
disclosures, discovery, testimony, exhibits, and any other filings
herein will include the foregoing issues and matters.
We note that during the initial prehearing conference, the Director
took the position that the scope of the adjudication ``should be
limited to whether the 2014 Order was justified and appropriate.'' Tr.
at 41. For example, the Director argued that Mr. Chaisson should not be
allowed to dispute whether the 2012 Order accurately reflects the
mediated settlement because Mr. Chaisson signed an agreement in
principle that covered these points. Tr. at 42. The Director also
argued that Mr. Chaisson should not be allowed to dispute the original
[[Page 54750]]
violations that formed the basis of the 2012 Order, i.e., whether, in
2009-2010, Mr. Chaisson deliberately violated NRC regulations. Tr. at
47. The Director argued that the current dispute should be limited to
whether Mr. Chaisson violated the terms of the 2012 Order. Id.
We do not agree. First, Mr. Chaisson asserts that the 2012 Order
does not accurately reflect what he agreed to in 2012. Tr. at 45. If
Mr. Chaisson asserts that he did not agree to undergo the two 40 hour
training courses and to submit an article to the NRC within 18 months,
then he may present evidence to that effect. Likewise, if the Director
(who has the burden of proof herein) has a written agreement in
principle, signed by Mr. Chaisson, specifying that he agreed to those
terms and conditions, then the Director may present such evidence at
the hearing.\10\
---------------------------------------------------------------------------
\10\ The issue--whether or not the 2012 Order accurately
reflects what Mr. Chaisson agreed to--focuses on the final result of
the mediation, not the various communications made by the parties or
the mediator during the mediation process. Both parties may present
evidence whether the 2012 Order accurately reflects the result of
the mediation. But neither party will be allowed to present evidence
concerning the back and forth communications that the parties
exchanged during the mediation process. We are not going to rehash
who said what to whom during the mediation. Likewise, the mediator
may not be called as a witness in this proceeding. This comports
with Rule 408 of the Federal Rules of Evidence, which states, in
part: ``Evidence of conduct or statements made in compromise
negotiations is . . . not admissible.''
---------------------------------------------------------------------------
Second, the 2014 Order explicitly states that the Director's
findings and the sanctions she seeks to impose on Mr. Chaisson, are, in
part, ``[b]ased on the deliberate misconduct on which the May 15, 2012,
Order was based.'' 79 FR at 42,058. Meanwhile, Mr. Chaisson disputes
that he ever engaged in such deliberate misconduct. Tr. at 56-57. This
issue is clearly within the scope of this proceeding. While this
proceeding will not litigate the validity of the 2012 Order (Mr.
Chaisson did not challenge that order in 2012),\11\ the scope of the
current proceeding definitely includes the appropriateness of the
sanctions specified in the 2014 Order. The appropriateness of the
sanctions in the 2014 Order is based, in significant part, on NRC's
allegation that he engaged in deliberate misconduct in 2009-2010. This
is an issue or matter in dispute in this case, and the Director and Mr.
Chaisson are entitled to present evidence on it.
---------------------------------------------------------------------------
\11\ While we will allow Mr. Chaisson to use this adjudication
to argue (and present evidence) that the 2012 Order is inaccurate
(that is that it does not correctly reflect what he agreed to in
2012), we will not allow him to use this adjudication to argue that
the 2012 Order is invalid or should be overturned. If he had wanted
to challenge the validity of the 2012 Order, he should have done so
in 2012.
---------------------------------------------------------------------------
D. Clarification or Simplification of the Disputed Issues
The issues and matters in dispute that are listed in sections III.A
and III.B above are subject to modification and adjustment. For
example, during the prehearing conference, we encouraged the Director
and Mr. Chaisson to communicate with each other to attempt to settle,
clarify, or simplify the issues and matters in dispute. Tr. at 85-87.
Pursuant to that discussion, Section IV.A of this order instructs the
parties to consult with each other by September 30, 2014, and for the
Director to submit a report to the Board concerning the results of that
consultation by October 10, 2014. That consultation and report should
include any jointly proposed modifications or adjustments to the
matters listed in Sections III.A and III.B.
IV. Schedule
In addition to the general deadlines and time frames applicable to
proceedings under 10 CFR Part 2, the Board establishes the following
initial schedule for this matter.\12\
---------------------------------------------------------------------------
\12\ In any conflict between this ISO and the general rules of
10 CFR part 2 (including the model milestones set forth in 10 CFR
part 2, Appendix B), the deadlines specified in the ISO shall
govern.
---------------------------------------------------------------------------
A. Initial Meeting of the Parties
NRC's Subpart G regulations specify that, as soon as practicable
after the issuance of the ISO, the parties shall ``meet to discuss the
nature and basis of their claims and defenses and the possibilities for
a prompt settlement or resolution of the proceeding or any portion
thereof, to make or arrange for the disclosures required by Sec.
2.704, and to develop a proposed discovery plan.'' 10 CFR 2.705(f). In
accordance with these regulations, the parties shall consult. In
addition to the foregoing topics, they shall discuss whether either
party claims that confidential or protected information is involved in
this proceeding and whether a protective order may be necessary.
Specifically,
1. By September 30, 2014, the Director and Mr. Chaisson shall
consult (either in person or telephonically) to discuss the matters
specified above; and
2. By October 10, 2014, the Director or her representative shall
file a brief report with the Board reciting the results of the
consultation. This report should
a. Identify any jointly proposed amendments, clarifications or
simplifications to the issues and disputed matters listed in Sections
III.A and III.B of this ISO;
b. Include a proposed discovery plan that comports with the
schedule and deadlines set forth in this ISO;
c. Specify if either party believes that a protective order is
necessary and, if so, submit a proposed protective order; \13\ and
---------------------------------------------------------------------------
\13\ See Pacific Gas and Electric Company (Diablo Canyon Nuclear
Power Plant, Units 1 and 2), LBP-11-5, 73 NRC 131 (2011) for an
example of a protective order.
---------------------------------------------------------------------------
d. Specify if the parties wish to pursue settlement or to seek to
have a Settlement Judge appointed pursuant to 10 CFR 2.338(b).
3. By October 17, 2014, Mr. Chaisson may file an answer to the
report.
4. Settlement is encouraged, but the parties should be aware that
the fact that they are negotiating a possible settlement does not
change any of the deadlines set forth in this ISO. See 10 CFR 2.338(f).
B. Mandatory Disclosures
NRC's Subpart G regulations specify that, unless the Board mandates
otherwise, within 45 days of the ISO each party must automatically
disclose to the other party certain information and documents. For
example, within 45 days the NRC Enforcement Director must provide Mr.
Chaisson with a copy of all NRC Staff documents that are ``relevant to
disputed issues alleged with particularity in the pleadings [i.e.,
listed in Sections III.A and III.B herein].'' 10 CFR 2.709(a)(6)(i)(A).
Likewise, within 45 days Mr. Chaisson must provide certain information
and documents to the NRC Enforcement Director. See 10 CFR 2.704(a).
That 45-day deadline, however, conflicts with the timing of the
consultation mandated by 10 CFR 2.705(f) and discussed in Section IV.A
above. Accordingly,
1. In lieu of the 45-day deadline, Mr. Chaisson and the Director
shall make their initial mandatory disclosures to each other by
November 4, 2014;
2. Mr. Chaisson and the Director shall update their mandatory
disclosures monthly, on the second Wednesday of each month; and
3. The monthly updates shall continue until the Board issues its
decision after the hearing.
C. Discovery
NRC's Subpart G regulations specify that, in addition to the
mandatory disclosures specified above, and within certain constraints,
Mr. Chaisson may pursue discovery against the Director. See 10 CFR
2.709 (``Discovery against NRC staff''). For example, Mr. Chaisson (a)
may serve written questions (referred to as ``interrogatories'') on the
Director, (b) must show that the answers to the
[[Page 54751]]
interrogatories are necessary to a proper decision in this proceeding,
and (c) ask the Board to direct the Director to answer those
interrogatories. See 10 CFR 2.709(a)(2). If the Board agrees, it will
instruct the Director to answer the interrogatories. In addition, Mr.
Chaisson may require a member of the NRC Enforcement Director's staff
to attend a prehearing meeting where he can require that staff member
answer questions orally under oath (this is referred to as a
``deposition''). See 10 CFR 2.709(a)(1), (3) and (4). Likewise, counsel
for the Director may take the deposition of Mr. Chaisson or any other
person, see 10 CFR 2.706(a); may file written interrogatories that Mr.
Chaisson must answer, see 10 CFR 2.705(b); and may require him to
provide the Director with a copy of any designated relevant document
that is within his possession, custody or control, see 10 CFR 2.707(a).
Neither party is required to pursue such discovery. However, any such
discovery shall proceed as follows:
1. Such discovery may not begin until October 10, 2014--10 days
after Mr. Chaisson and the Director have held the consultation mandated
by 10 CFR 2.705(f); \14\
---------------------------------------------------------------------------
\14\ This is the same date on which the Director is to submit
her report concerning the results of the consultation, including the
submission of any jointly proposed discovery plan.
---------------------------------------------------------------------------
2. Such discovery must be completed by January 15, 2015.
D. Motions for Summary Disposition
Given the factual nature of the issues and matters in dispute
herein, the Board concludes that motions for summary disposition (and
any other form of dispositive motion) would be unproductive and would
divert Mr. Chaisson and the Director from preparing adequately for the
evidentiary hearing. Accordingly, no such motions may be filed.
E. Second Prehearing Conference
The Board contemplates that the prehearing filings that each party
must make before the evidentiary hearing can occur will need to be
filed by February 20, 2015, and that the evidentiary hearing will occur
in mid to late March 2015. At the moment, however, we are not mandating
those specific deadlines. Instead, the Board will hold a second
prehearing conference before January 30, 2015. The purpose of the
second prehearing conference will be to set a specific time, date, and
location for the evidentiary hearing and to establish firm deadlines
for the prehearing filings that the parties must make.
V. Fifth Amendment Issues
The Fifth Amendment to the Constitution of the United States
provides, in pertinent part, that no person ``shall be compelled in any
criminal case to be a witness against himself.'' The 2014 Order issued
by the Director, and this adjudicatory proceeding, are administrative
actions and do not constitute a criminal case. During the initial
prehearing conference, however, counsel for the Director stated that
there is a ``potential'' that a criminal case could arise concerning
Mr. Chaisson's alleged violations. Tr. at 91. Given that Mr. Chaisson
has no legal representation, it is incumbent on NRC, and this Board, to
be alert to such issues and to inform him of his right against self-
incrimination in appropriate circumstances. Accordingly, and as ordered
during the initial prehearing conference:
A. On September 10, 2014 the Director shall submit a brief to the
Board that specifies:
1. Whether there is any potential that NRC will pursue criminal
charges against Mr. Chaisson;
2. Whether the NRC is aware that any other federal entity, such as
the U.S. Department of Justice, is investigating this matter and/or may
pursue criminal charges against Mr. Chaisson;
3. Whether the Director or anyone on the NRC Staff has previously
advised Mr. Chaisson of his Fifth Amendment right against self-
incrimination, and if so, when and how;
4. Whether the right against self-incrimination attaches or has
attached to Mr. Chaisson in this proceeding;
5. If so, when did it attach; and
6. If so, how we should handle this issue and protect Mr.
Chaisson's constitutional rights.
B. On September 17, 2014, Mr. Chaisson may file an answer to the
Director's report.
VI. Conclusion
This ISO is intended to promote the just resolution of this dispute
as efficiently and expeditiously as possible. The deadlines set forth
herein are firm, and will not be modified unless a party (in advance of
the deadline) petitions this Board for a change and demonstrates to us
that there is good cause for such a change. See 10 CFR 2.334(b).
Appendix A provides a summary of the deadlines set forth in this ISO.
The parties should note that settlement negotiations, while encouraged,
will not delay this schedule unless the Board affirmatively grants such
a delay.
Objections to this ISO must be filed by September 15, 2014. See 10
CFR 2.329(e).
It is so ordered.
Rockville, Maryland.
Dated: September 8, 2014.
The Atomic Safety and Licensing Board.
Alex S. Karlin,
Chairman, Administrative Judge;
Michael M. Gibson,
Administrative Judge;
Gary S. Arnold,
Administrative Judge.
Appendix A--In the Matter of James Chaisson: Deadlines Specified In
Initial Scheduling Order
------------------------------------------------------------------------
Deadline Action ISO section
------------------------------------------------------------------------
9/10/14....................... Director files brief ISO V.A
concerning 5th
Amendment.
9/15/14....................... Either party may file ISO VI
objections to ISO.
9/17/14....................... Chaisson may file ISO V.B
response concerning
5th Amendment.
9/30/14....................... Initial meeting or ISO IV.A.1
consultation of
parties.
10/10/14...................... Director files report ISO IV.A.2
of consultation.
10/10/14...................... Parties can commence ISO IV.C.1
discovery.
10/17/14...................... Chaisson may file ISO IV.A.3
response to
Director's report.
11/4/14....................... Parties make initial ISO IV.B1
mandatory
disclosures (to be
updated monthly
thereafter).
1/15/15....................... End of discovery. ISO IV.C.2
Parties must
complete discovery
by this date.
Before 1/30/15................ Board conducts second ISO IV.E
prehearing
conference with the
parties to adjust
and finalize plans
for the hearing.
2/20/15 *..................... Each party files its ISO IV.E
Prehearing
Submittals. (These
submittals consist
of the party's (a)
statement of
position, (b)
written testimony,
and (c) exhibits).
[[Page 54752]]
Mid to late March 2015 *...... Evidentiary hearing.. ISO IV.E
------------------------------------------------------------------------
* These dates are subject to change and will be discussed during the
second prehearing conference.
[FR Doc. 2014-21827 Filed 9-11-14; 8:45 am]
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