[Federal Register Volume 79, Number 177 (Friday, September 12, 2014)]
[Notices]
[Pages 54748-54752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21827]
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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.
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\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).
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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\
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\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14, 2014) (unpublished).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.
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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.
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\7\ Emails from James Chaisson to NRC Hearing Docket (Aug 4,
2014, 17:14 EDT; Aug. 6, 2014).
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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.
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\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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[[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\
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\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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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\
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\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.''
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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.
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\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\
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\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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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
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\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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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\
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\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.
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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
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Deadline Action ISO section
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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
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* 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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