ML19346A197

Response in Support of NRC Motion for Reconsideration of ASLB 810430 Order.Nrc 810413 Motion for Summary Disposition Was Timely.Aslb Should Reverse 810430 Order & Clarify Procedure Re Summary Disposition.W/Proof of Svc

ML19346A197
Person / Time
Site:	05000142
Issue date:	05/27/1981
From:	Cormier W CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106050379
Download: ML19346A197 (8)

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UNITED STATES OF AMERICA 2!!

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NUCLEAR REGULATORY COMMISSION >

ii BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i'

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} Docket No. 50-142 Sf : THE REGENTS OF THE UNIVERSITY) (Proposed Renewal of Facility 6 OF CALIFORNIA ) License Number R-71)

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(UCLA Research Reactor) 7 ) May 27, 1981 i

s APPLICANT'S MEMORANDUM IN SUPPORT OF NRC STAFF MOTION FOR RECONSIDERATION f

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l 3 I. STATEMENT IN SUPPORT I@~

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'M / , g c.s Applicant, THE REGENTS OF THE' UNIVERSITY OF CALIFORNI 14 supports fully the "NRC Staff Motion for Reconsideration" 'kNfch i

15 seeks reconsideration by.the Atomic Safety and Licensing Board of j 16 its Order of April 30, 1981 and 'a determ' i riation by the Board 17 that the,NRC Staff Motion for Summary Disposition (dated April 13, 18 1981) was submitted in a timely manner. The Applicant urges 19 the Board to issue the clarifying order requested by the NRC Staff.

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21 II. DISCUSSION 22 i I

23 A. The Staff's Motion for Summary Disposition was Timely 24  !

25p Staff, in its motion for reconsideration, has explained 26 lI!what Staff intended when it proposed its discovery schedule at i

27 lthe end of February 4-5, 1981 special prehearing conference.

1 28 ' Staff has also explained the substance and meaning of the exchange

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1 that occurred between Applicant's counsel and Staff counsel at 2

that time. Applicant concurs completely in the explanations 3;. provided by Staff. Applicant understood the discovery precisely ,

4, as it has been described by Staff and does not understand how ,

i 5[,itcouldbeinterpretedotherwisebyIntervenorandtheBoard. {

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!l l The exchange that took place between Applicant's ,

7ld i 8 g counsel and Staff counsel actually confirms the intended effect il I 9j of the schedule as explained by Staff. Any contrary 10l. interpretation of this exchange, particularly that offered by 11  ! Intervenor, can be seen to be illogicial and mistaken.

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13 In the exchange, Applicant's counsel. asked whether all .

I 14 summary disposition motions were to be filed by the July 30 date 15 or whether instea'd Applicant was to file its motions beginning*

. I 16 no earlier than July 30 and for some indefinite period beyond 17 that dat'e (but, of course, forty-five days prior to the hearing

18 date). Staff counsel's response was ". . .(yes, by) thirty days ,

i 19 after. . .", the phrase Applicant's counsel had used. Staff 20 counsel specifically did not use, and tihereby clearly rejected, 21 Applicant counsel's phrase ". . . wait at~1 east thirty days."

22 Staff counsel then continued by explaining that the July 30 date ,

l 23 gives Applicant (and Staff) sufficient tiIde to examine answers to 24 interrogatories in considering its summary disposition motions 25 q and hence there was. no need to extend the period beyond the 26 July 30 date. I 27 i!

28i Applicant has recognized the Commission's rules of n  !

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1 practics which requira that cummary disposition motions ba filcd ,

2f at least forty-five days prior to the start of the hearing.

3 i However, since a hearing date has not been established and could ,

4; not have been established at the time of the special prehearing H

5 i conference in Febraary, Applicant is faced with the fact that t

6ll without guidance from the Board it is forced to proceed under e

i 7 h the severe disadvantage of not knowing ' the last date acceptable i n

8 for the filing of summary disposition motions. Staff counsel's 9 proposal to establish this last date was completely reasonable 10 and perfectly clear to the Applicant. Applicant certainly 11 would not agree and was not agreeing .to any schedule that would i

12 l require all summary disposition motions to be filed on a single l 13 day. Such a severe conctraint would,'as Applicant understands ,

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14 it, violate both Commission policy and Commission procedure on i

15 the conduct of' licensing-proceedings.

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Intervenor's strained interpretation of Staff counsel's ;

18 proposal would have the effect of prohibiting summar'y disposition l

19 motions until after discovery was schedule,d to conclude. This i 20 result would seriously undermine the purpose of the summary 21 disposition rule and would run counter to the general federal l legal practice and the clear and often expressed Commission 22  ;

I 23- policy of encouraging the use of the rule to expedite proceedings.:

24 Once an Applicant is made to bear the annoyance, inconvenience 25 and expense of full discovery on a particular issue much of the 26 incentive for moving for summary disposition of that issue is 27 lost. An examination of the Commission rule and the analogous 28 l federal rule -(Rule 56) shows clearly that this is not the intent. i I

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B. Intervenor has No Cause to Complain.

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30' Intervenor suffers no harm if the Board agrees to 1 l

4 reconsider its April 30, 1981 Order, declares that Staff's i l

5 summary disposition motion is timely and gives Intervenor twenty i 6 (20) days in which to answer the motion.

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i 8} Had the parties at the prehearing conference been j 9 ailent about summary disposition motions, Staff's summary 10 disposition' motion would clearly have been timely and Intervenor's 11l time within which to respond would have expired by now under the i l'

12L general rule of 10 C.F.R. 52.749 (a). .As it is,'Intervenor will i

13 have gained at least an extra. month to frame it's response even if 14 '

Staff's request for a clarifying order is granted forthwith.

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10 The sole basis for Intervenor's motion to strike is 17 its mistaken assertion that the parties had " stipulated" to the 18 July 30 date as the sole or first date for summary disposition i

19 motions. The Board has expressly relied on this " stipulation" as the basis for its ruling. Staff and Applicant have shown that 21

. such an interpretation is illogical, mistaken and counter to 22  !

. expressed Commission policy. But, in any case, the statements  ;

23 i dof Staff counsel and Applicant's counsel, whose conversation it 24 1 i; j is that Intervenor purports to rely upon, are decisive on the l 25f jquestionwhethertherewassucha" stipulation"alongthelines 26h q suggested by the Intervenor. Clearly, there was not. Neither -

27] the Staff nor the Applicant would ever agree to such a stipulation 28 jfor the obvious reasons discussed above.

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4 1 If, bcenuco of a misintorpretation mEds in good faith i

2; by Intervenor, the parties did not in fact agree upon a last 3I date for .the filing of summary disposition motions then that part n

4. of the stipulat'ed schedule should be voided and the parties lef t li SM with the general Commission rules according to which Staff's  !

!l 6!! motion would clearly be regarded as timely. .

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Stipulating a date for summery disposition motions  !

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operates as a constraint only on the Applicant and the Staff.  !

l 10 Its only purpose is administrative convenience. As a matter of l

• 1 11] law and Commission practice Intervenor is not entitled to any {

constraint on the summary disposition process except as appears 12l .

i 13 in the rules of the Commission. The. Staff and Applicant only 14 have been inconvenienced by the instant action since each has t

15 had to delay the filing of summary disposition motions while ,

16 the Board considers the issuance of a clarifying order. "

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18 III. CONCLUSION -

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i 20 For the geasons above and, in particular, for the 21 reasons contained in the "NRC Staff Motion for Reconsideration" 22l with which Applicant concurs completely, the Applicant urges

. 23 the Board to reverse its April 30, 1981 Order and to issue a f 24j clarifying order stating that summary disposition motions may 1

25; be filed at any time up to and including July 30, 1981 or, in i:

26'- at any time permitted by 10 C.F.R. 52.749 (a).

27l In theview'of alternative, the inconvenience and disadvantage to Staff and 28i. ,

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i 1 h': Applicant caused by the instant proceeding, Applicant urges 1 2li further that the Board's clarifying order issue as soon as is 3 possible. 3 4 ii ,

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Dated: May 27, 1981.  ;

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i 7 DONALD L. REIDHAAR >

GLENN R. WOODS J 8 l CHRISTINE HELWICK 9

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,3y i lI William H. Cormier i UCLA Representative for THE REGENTS OF THE UNIVERSITY 13 -

OF CALIFORNIA 14 ,

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. * ~ l i i i 1 (DECLARATION OF SERVICE BY MAIL (CODE CIV. PROC. SS1013a & 2015.5) 2 I, the undersigned, say: I am a citi en of the United States,  :

1 i 3 over 18 years of age, employed in Los Anceles County, California, in !

, 4 which county the within-mentioned mailing occurred, and not a party 5

to the subject cause. My business address is 2214 Murphy Hall, 6

405 Hilgard Avenue, Los Angeles, California 90'024. ,

I served 7 the attached: AppticAn?as urMoRAnnuM TN st9PonT OF 8 nuc s?Arv MnPron enn evenw TnenamTnn 9 . .

10 11 by pi. acing a copy thereof in a separate envelope for each addressee ,

12 named hereafter, addressed to each such iddressee' respectively 13 as follows:

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SEE ATTACHED SERVICE LIST -

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• 17 18 Each enevlope was then sealed amd with the postage thereon 19 fully prepaid deposited in the United States mail by me at .

Los Angeles, California, on MAY 27, 1981 .

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21 There is delivery service by U.S. mail at each place so  ;

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. addressed or regular communication by U.S. $ tail between the place 23 of mailing and each place so addressed.

l 24 I declare under penalty of perjury that the foregoing is true 25 and correct.

Executed on MAY 27, 1981 at Los Angeles, California 26 g

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ij NRC Dockot No. 50-142 l l

, l**, li (UCLA Raconrch Racctor) i 1" Elizabeth Bowers, Esq.

i U.S. Nuclear Regulatory Commission 2 Atomic Safety & Licensing Board Washington, DC 20555 3 .

Dr. Emmeth A. Luebke 4 U.S. Nuclear Regulatory Commission Atomic Safety & Licen' sing Board 5 Washington, DC 20555 6 Dr. Oscar E. Paris U.S. Nuclear Regulatory Commission 7 Atomic Safety & Licensing Board Washington, DC 20555 .

Counsel for NRC Staff 9 Of fice of the Executive Legal Director U.S. Nuclear Regulatory Commission 10 Washington, D.C. 20555 11 Daniel Hirsch Committee to. Bridge the Gap '

12 1637 Butler Avenue, #230 Los Angeles, CA 90025 - -

Mr. P. ark Pollock 14 Mr. John Bay 1633 Franklin Street .

15 Santa Monica, CA 90404 . . .

16 Chief, Docketing and Service Secti'on Office of the Secretary 17 U.S. Nuc: lear Regulatory Commission 20555 Washington, DC ,

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