ML19029A873
| ML19029A873 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 04/12/1979 |
| From: | Valore C Valore, McAllister, Aron & Westmoreland |
| To: | Rosenthal A Atomic Safety and Licensing Board Panel |
| References | |
| Download: ML19029A873 (12) | |
Text
c.::.-._*4 CARL VALORE, JR. SUBURBAN OFFICE ROSElU" N. MCAll.ISTfR MAINLAND PROFESSIONAL PLAZA HARR.IS AR.ON
- 535 TILTON ROAD ATLANTIC CITY OFF11:E MEMBER N. J.* fl.A. I D. C. J.U. CUARANTEE TRUST BUILDINC P. 0. BOX 175 R.. C. WESTMOllfLAND AfLANTIC CITY, N. J. 08401 NOR.THFIELD, N. J. 08225 THOMAS J. VESPER. (609) 344-6539 (809) 645*1111 MEMUP. N. J. i D. C. J.U. COUNTY OFFICE PASQ11ALE J. CAR.DONE ' 319 CAPE MAY AVENUE MAR.it C. SCHWARTZ MAYS LANDINC, N. J.
MEMBER N. J. I PA. MR (609) 625 *9106 STEPHEN A. WH!Tf IN REPLY REFER. TO MEMBER Of N, J. a D. C. VJl North f j e] d OFFICE April 12, 1979 78/385 FILE NO.
Alan Rosenthal, Chairman Atomic Licensing Appeals Board Nuclear Rgulatory Commission Washington, D.C., 20555 In the Matter of Public Service Electric & Gas Co. - Salem Nuclear Generating Station - Unit #1 Docket No. 50-272
Dear Chairman Rosenthal:
Enclosed is the Township of Lower Alloways Creek Application for a Stay.
Since we must comply with the Pretrial Order on or before April 25, 1979, some urgency is required in the Atomic Licensing Appeals Board rendering a decision before that date.
~~espectfully yo~s, CC: See attached service list CV/sgp
UNITED STATES OF AMERIC~
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING APPEAL *BOARD Docket No. 50-272 In the Matter of Proposed Issuance of PUBLIC SERVICE ELECTRIC Amendment to Facility
& GAS COMPANY Operating License No. DPR-70 (Salem Nuclear Generating Station, Unit 1)
TOWNSHIP OF LOWER ALLOWAYS CREEK APPLICATION FOR A STAY OF PRETRIAL ORDER
( 2 CFR 2 . 7 8 8) 1.
This application is to Stay enforcement of that portion of the Prehearing Con~erence Order dated March 29, 1979 (Exhibit A) which provides that parties wishing to conduct cross-examination shall file an outline in detail of the points to be pursued, together with an estimate of the required time on April 25, 1979.
The Pretrial Order dated ~arch 29, 1979, provides:
"On April 25, 1979, each party or participating State wishing to conduct cross-examination shall file an outline in detail of the points to be pursued, together with an estimate of the required time."
On March 15~ 1979, at the time of the Prehearing Conference, the Attorney for the Intervenor, the Township of Lower Alloways Creek, made a proper objection to the foregoing procedure. The transcript at page 156, et seq.
. e provides:
"Mr. Valore: I have a question Mr. Chairman. I m~y not h~ve understood clearly wh~t you said~
You said seven days before the hearing each party seeking to cross-examine shall file an outline of the cross-examination.
Now, I assume that means we're to serve that also on the Licensee and the other parties to the proceedings?
Mr, Milhollin: Of course. Everyone on the service list.
Mr. Valore: Mr. Chairman, I don't profess to know every single rule in the Code of Federal Regulations.
Is there a rule on that subject permitting the Chairman to do that, or is that within your broad powers of the way you conduct your hearings?
Mr. Milhollin: That's within the broad powers of the way we conduct the hearing.
Mr. Valore: I would like to make a strenuous objection to the procedure it seems to me to vitiate and undermine the entire concept of cross-examination, if I have to tell my adversary what my cross-examination is going to be. Secondly, it certainly could preclude a spontaneity to be developed in the course of cross-examination. where other matters may be pursued."
From the foregoing it appears that the procedure outlined by the Chairman requires: 1) disclosure of cross-examination in detail and 2) there will be limits placed on pursuing matters outside the outline of cross-examination at the time of the evidentiary hearing.
. 2.
The powers of a presiding officer and the authority of a presiding officer of a proceedings appear to be covered by CFR 2.718 and 2.757. Those Rules provide as follows:
2.718(e) "regulate the course of the hearings and the conduct of the participants 2.718(f) "dispose of procedural requests or similar matters" 2.757(c) "take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination."
It is well established Nuclear Regulatory Commission Law that an Intervenor may build its case defensively on the basis of cross-examination. Wisconsin Electric Power Co.
(Point Beach Nuclear Plant, Unit 2), ALAB-137, 6AEC491, 50 4-0 5 ( 19 7 3) ; Accord, Commonwea 1th Edison Co. (Zion Station Units 1 and 2), ALAB-226, 8AEC381, 389 (1974); See Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station) ,
ALAB-161, 6AEC1003, 1018-19(1973); In the Matter of Tennesee Valley Authority (Hartsville Nuclear Plant) ALAB-463.
The Federal Administrative Procedure Act gives every party the right to conduct cross-examination as may be required for a full and true disclosure of the facts in all adjudication - type hearings. SUSC §1006 (c).
From the foregoing, it is submitted that the Township of Lower Alloways Creek:
a' should preva*i1 on the. application; b) will irreparably be injured unless the 1Atomic Licensing Appeal Board grants a Stay as to the filing of an outline of cross-examination since the filing in and of itself will cause irreparably injury; c) the granting of a Stay will not harm other parties, and d) the granting of the Stay is in the public interest.
3.
The appears to be no facutal dispute and therefore no Affidavits would appear necessary under CFR 2.788.
CONCLUSION The Atomic Safety Licensing Appeals Board. should restrain the Atomic Safety and Licensing Board from requiring the filing of detailed cross-examination by the parties on or before April 25, 1979.
Respectfully submitted, CARL VALORE, JR., Spec Nuclear Counsel for the Intervenor the Township of Lower Alloways Creek April 12, 1979
l)()Cll:ITTD USHIC UNITED STA1ES OF ,AMER.IC.A NUCLEAR REGurA'IORY, CCM1ISSION Before the Atanic Safety and Licensfug Board In the Matter of .) ; **
- Docket No. 50-272
)
PUBLIC SERVICE ELECTRIC & GAS CXl1PANY ) Proposed Issuance of
.Aln:ndrnent to Facility (Salem Nuclear Generating Station, ~) Operating License
- Unit 1) No. DPR-70 ORDER FOI.l.GT.ING PREHEARING CONFERENCE On March 15, 1979, this Board conducted a Prehearing Conference in the above-captioned matter pursuant to 10 CFR § 2.752. The proce~ding is one in which the Public Service Electric &Gas Canpany, the Licensee, has applied for permission to amend its operating license as to increase the capacity.of the spent fuel storage pool at its Salem Nuclear Generat-ing Station (Unit 1) in Salem County, New Jersey. The capacity would be increased. fran 264 to 1170 spent fuel assenblies. The application was filed on November 18, 1977, and has been amended since by several supplemmts.
The following parties participated in the Conference:
The Ll.censee.;
the Regulatory Staff of the Nuclear Regulatory Carmission; the State of Delaware; the Township of Lower Alloways Creek, Salem County, New Jersey; Alfred C. and Eleanor G. Colemin, Jr. , of Pennsville, New Jersey; the State of New Jersey.
EXHIBIT A
2 The States of Delaware and New Jersey, the Township of LcMer Alloways Creek and the Colemans were acinitted to the proceeding by previous Orders of the Board. The purpose of this Conference, as set forth in 10 CFR § 2.752, was to s~lify and clarify issues, consider amendments to the pleadings, arrange for stipulations to avoid unnecessary*proof, identify witnesses, and set a hearing schedule. In connection with the Conference, the Board visited the spent fuel storage area at Salen Unit 1. The visit took place between 11:30 a.m. *and 1:30 p.m. on March 16, 1979. All par-:-
ticipants in the hearing were invited to attend. This Order recites the actions taken at the c.on.ference.
The.first action taken was an agreement am:mg relevant parties that Contention 1 of Lower Alloways Creek T~ship and Contention 9 of the Colemans should be consolidated for the hearing. Both contentions refer to alternatives to expansion of on-site storage. It is understood that each party ram.ins free to develop its own app:roach to the evidence rele-
- vant to these contentions (Tr. 166 - 167) .
The second action taken was for the Board to suggest a possible ground
- ~ *;:~
of settlemmt for Contention 3 of Lower Alloways Creek Township. The Board suggested that the Licensee agree with the Township that the Licensee will request a hearing on any application to store spent fuel at a site other .than one where the spent fuel was generated (Tr. 173) . Under present rules, no hearing is required on such an application, unless the Staff
~
~
e 3 conclu:ies that the actions may involve a significant hazards considera- .,*'
tion. See 10 ~ §§ 2.105, 2.714.
The third action taken was for the Board to indicate that it wishes to examine the proprietacy f:bcumnt entitled "Fuel Storage Racks Corrosion Program, Baral-Stainless Steel" (Tr. 192). The Board also asks the parties to propose a suitable hearing procedure in the event this doci.mmt should be introduced as evidence (Tr. 190)~
The fourth action was to inquire about the nature of the proof each party planned to present at the hearing. The States of Delaware and New Jersey iildicated that neither planned to present direct testim:my.
Each reserves the right to cross-examine, however. All of the other par- -*/
ticipants intend to present cl4'ect test:lloony.
The fifth action was to deny a m::>tion by the Colsnans that the Pre-hearing Conference and the Special Prehearing Conference for limited appearances be consolidated "for the sole purpose of inclusion of significant matters raised at said special conference sessions within the Prehearing Order. The Board rejected this motion as urmecessary.
The Board already has the power to order the Licensee and the Staff to pursue questions raised by limited appearance. The Board may do so in this Order, or independently of this Order.
4
- The finat action taken at the Conference was to set a schedule for .,j
~- ,..,
the proceeding. The licensee filed a t!Dtion for sunnary disposition on February 27, 1979, which is now before the Board. The Board granted an e.ictension of time to March 30, 1979, to respond to this t!Dtion. The hearing. if a hearing is to be held, was ann0tmced to begin at 9:00 a.m.
on Wednesday. May 2, 1979, in Salen, New Jersey. Written testim:Jny for Ucensee and Staff shall be filed by April 2, 1979. Parties filing*
written testim:my shall also state the order of proof, describe all exhibits, list all docunents, specifying those which the parties wish to have officially noticed, and make all requests for stipulations ~on ceming admissibility. lower Alloways Creek Township ai1d the Colanans shall file their direct testimony by April 10, 1979. Objections to testim:my, the order of proof, e.""<hi.bits, or documents filed on April 2, 1979 1 shall be filed on April 16, 1979; objections to the filings on . *. I April 10, 1979, by Lower Alloways Creek Township and the Colanans shall be filed on April 23, 1979. On April 25, 1979, each party or partici-pating State wishing to conduct cross-e.~ation shall file an outline in detail of the points to be pursued, together with an est:Lllate of the required tlim. The "WOrd "filed" as stated here means deposited appro-
.. \'
priately in the mail by the date stated. : ~:
,*f
5 I '~t, IT IS SJ ORDERED.
FOR 'IHE AT01IC SAFETY AND LICENSING EOARD Dated at Madison, Wisconsin, this 29th day of MBrch, 1979.
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In The Matter of DOCKET NO. STN-50-272 PUBLIC SERVICE ELECTRIC
& GAS CO.
(Salem Generating Station Unit #1)
CERTIFICATE OF SERVICE I hereby certify that copies of Application for a Stay of Pretrail Order to the ALAB in the above captioned matter have been served upon the attached list by deposit in the United States mail at the post office, Northfield, N.J., 08225 this 12th day of April , 19 79 Dated: April 12, 1979
~
Gary L. Milhollin, Esq. Richard Fryling, Jr., Esq.
Chairman, Atomic Safety Assistant General Solicitor
& Licensing Board Public Service Electric &
1815 Jefferson Street Gas Company Madison, Wisconsin, 53711 80 Park Place Newark, N.J., 07101 Glen O. Bright Member, Atomic Safety Keith Ansdorff ,_ Esq~
& Licensing Board Assistant Deputy Public Advocate U.S. Nuclear Regulatory Commission Department of the Public Advocate Washington, D.C, 20555 Division of Public Interest Advocacy Dr. James C. Lamb, III P.O. Box 141 Member, Atomic Safety & Trenton, N.J., 08601 Licensing Board Panel 313 Woodhaven Road Sandra T. Ayres, Esq.
Chapel Hill, N.C. 27514 Department of the Public Advocate 520 East State Street Chairman, Atomic Safety and Trenton, N.J., 08625 Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Mr. Alfred C. Coleman, Jr.
Washington, D.C., 20555 Mrs. Eleanor G. Coleman 35 "K" Drive Chairman, Atomic Safety & Pennsville, N.J., 08070 Licensing Board Panel U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D.C., 20555 Docketing and Service Section U.S. Nuclear Regulatory Comrnissio~
Barry Smith, Esq. Washington, D.C., 20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission June D. MacArtor, Esq.
Washington, D.C., 20555 Deputy Attorney General Tatnall Building, P.O. Box 1401 Mark L. First, Esq. Dover, Delaware, 19901 Deputy Attorney General Department of Law & Public Safety Environmental Protection Section 36 West State Street Trenton, N.J., 08625 Mark J. Wetterhahn, Esq.
for-Troy B. Conner, Jr., Esq.
1747 Pennsylvania Avenue, N.W.
Suite 1050 Washington, D.C., 20006