ML19347E650
| ML19347E650 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 05/12/1981 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8105130179 | |
| Download: ML19347E650 (9) | |
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U lITED STATES OF A!1 ERICA 0i flVCLEAR REGl'LATORY C0llt4ISSIO:1
'N l 3 ISBN. g BEFORE THE ATOMIC SAFETY AllD LICEilSIllG BOARD
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In the Matter of
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Docket ilo. 50-142 THE REGEllTS OF THE UtilVERSITY OF
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(Proposed Reneaal of Facility CALIF 0RflIA
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(UCLA Research Reactor)
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l4RC STAFF 110TI0ft FOR REC 0flSIDERATI0i1 1.
THE MOTI0t1 The Staff hereby respectfully requests reconsideration by the Atomic Safety and Licensing Board of its Order of April 30, 1981 for the ev. sons discussed below.
II.
DISCUSSI0fl A.
The Board Should Reconsider The Order The Staff received on April 28, 1981, the two Intervenor actions which were the occasion for the instant Board Order.
Staff was preparing its response to the Intervenor actions when it received, on !1ay 4,1981, the Board's Order ruling on the Intervenor's notions.
It is unclear to 5taff why the Board ruled on Intervenor's motion without waiting for other parties' responses as provided in 10 CFR 5 2.730(c). Since the point at issue in the Intervenor's motions of April 25, 1981 is its interpretation of the discovery schedule proposed by Staff at the Febr ary 4-5, 1981 special prehearing conference, it seems to Staff that basic cecepts of fairness would dictate 8195130
-2 that the Board allos response by the Staff and consideration of the Staff responses before fornulating its ruling.
" Time [was] of the essence" in this situation only in the need to clarify when a response to the summary disposition notion was due. A ruling on the timeliness of the summary disposition notion itself could have been deferred until responses by the affected parties to Intervenor's motion were in hand.
The Board's interpretation of the exchange between Applicant's and Staff counsel at Tr. 487 is mistaken (Order, p.2).
Staff counsel was proposing only a final date for sunnary disposition motions, and had no idea at the time that it night be interpreted as the only date allowed for filing sumnary disposi-tion motions. Staff counsel answered the question of Applicant's counsel as f
to whether such actions could be filed "within" the thirty days. to make clear that the thirtieth day after the last respoases to discovery was intended to establish the final date allowed for filing the motions. This intent is evi-dent from the context of the exchanqe as well as from Staff counsel's reference to the schedule providing an opportunity for the modification of a summary disposition request (Tr. 437).
In short, the cited response was intended to clarify the final date being proposed for filing sumuary disposition motions, not to establish the only date or time period for their filing. Staff counsel regrets that it was not clear to the Board and the Intervenor that the only proposal intended by the Staff was a schedule for discovery with a termination date as that for filing motions for summary disposition. This explanation i
was provided to the Intervenor upon telephone inquiry shortly after Intervenor received Staff's motion,l/ ut in spite of the explanation given, the Intervenor b
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- r. John Bay telephoned Staff counsel on behalf of fir. Pollock.
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. filed the two motions of April 25, 1981, insisting on its own rather strained interpretation.
It should be obvious a_ priori that if Staff counsel had in-tended a prohibition of summary disposition motions prior to end of discovery, Staff counsel would not have filed the motion of April 13, 1981 for sunaary disposition. Although it is now obvious that the intent of the proposed schedule was not made clear, Intervenor's accusation of action by Staff counsel contrary to a prior agreement is a serious matter. In these circum-stances, the Board should have provided the Staff an opportunity to respond and should have considered the Staff response before rendering its ruling.
For these reasons, the Board should grant the Staff's request for recon-sideration and give full consideiation to the Staff's argument set out below as to the timeliness of the Staff's motion for Sunaery Disposition.
B.
The Staff's Motion for Suumary Disposition Was Timely Motions for summary disposition may be filed at any time by any party during the proceeding until forty-five days before the time set for hearing.
10 CFR s 2.749(a). This was noted by the Board (Order, p.2) and is apparent by the rule which states that such motions shall be filed "at least" forty-five days before start of hearing. The only " untimely" motions for summary disposition would be those filed less than forty-five days prior to hearing.
Since the Commission's rules of practice do not set a time limit for the dis-covery period, it is common practice for the parties to agree on a discovery schedule which accommodates the particular case at hand and the convenience of the parties, and to propose such a schedule to the Board. This practice was mentioned by the Board at the Special Prehearing Conference on February 5, l
. 1981(Tr.489-90). A final date for filing summary disposition motions is merely aimed at providing the Board and parties a definite schedule for completion of discovery and the appropriate time for scheduling the 10 CFR
@ 2.752 prehearing conference and approximate time of hearing.
Intervenor's assertion that the agreed schedule " contemplates no summary disposition motions until July 1981",U is entirely inaccurate.
Staff Counsel's stata-ment during the prehearing conference (at Tr. 486) attempted to make clear that:
I am simply suggesting a possible scheduling for discovery in the future actions which would begin af ter the Board's Order comes out.
Cour.sel was unaware that after this explanation any implication other than a schedule for discovery would be derived.
Intervenor's assertion that the schedule was an agreement not to file summary disposition motions before the end of discovery is mistaken.
As explained by the Staff's summary disposition motion, the purpose of summary disposition is to avoid useless litigation when there is no genuine issue to be heard.
Prohibiting summary disposition motions until just prior to start of litigaticr. would be contradictory to that purpose (See 10 CFR 9 2.749(a). Additionally, if it were the intent of the Staff counsel to urge some change, modification, or limitation in the applicability of any of the Commission's rules of practice in this proceeding, it should be obvious that U Intervenor's " Motion to Strike NRC Staff Motion for Summary Disposition as llntimely and Conditional P.equest for Extension of Tine tc Answer",
April 25, 198i, p.3.
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. such an extraordinary proposal would be made explicitly and affirmatively.
To suggest discovery schedules and a final date for summary disposition motions, however, in no way changes any part of the rules of practice. As the Board is aware, it is often more efficient for the parties to file sumnary
- disposition motions before scheduling of the second prehearing conference, thus allowing the Board sufficient time to rule on the motions prior to hearing.
It is also valuable to kocu the final date for filing summary disposition motions so that the Board can then schedule the 10 CFR S 2.752 prehearing conference and the hearing to accommodate the time for responses in 10 CFR $ 2.749.
To suggest a discovery schedule which terminates with motions for strmmary disposition is simply that -- a termination date for discovery and a final date for summary disposition motions, the latter being a date af ter which the Board will be able to schedule the second prehearing conference to discuss the hearing schedule.
The Commission's Statement of General Policy and Procedure contained in d
10 CFR Part 2, Appendix A states the Commission's intent that its proceedings be conducted expeditiously, and that its procedures maintain sufficient flexibility to accommodate that objective.
It further recognizes that fairness to all parties and the obligation of administrative agencies to conduct their functions with efficiency and economy, require that Commission adjudications be conducted without unnecessary delays.
Proposing a schedule for discovery, ending with a final date for filing summary disposition motions so that the proceeding may go forward toward hearing is an effectuation of this Commission policy.
Filing summary disposition motions fran time to time c
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. prior to the final date allowed by 10 CFR 9 2.749 is also a nethod of con-ducting the proceeding in an orderly nanner since it allows the Board opportunity to consider and time to rule on the parties' argunents and affidavits prior to time for scheduling hearing. This is common practice and a valuable aid in avoiding unnecessary delays.
Tne Appeal Board decisions in Allens Creek have emphasized the value of suranary disposition where admitted contentions are shown to have no factual issues requiring litigation.E The Staff was following this precept in its summary disposition motion according to 10 CFR 9 2.749 which contains no time limit for filing motions other than forty-five day; prior to hearing.
Since some summary disposition motioils need not wait for completion of discovery, it is eminently reasonable to file these actions ahead of or during discovery.
As discussed above, the filing of Staff's motion for suanary disposition on April 13, 1981 is not prohibitsd by 10 CFR 9 2.749, the Licensing Board's March 29,1981 Order, or any agreement of the parties.
The Board on recon-sideration should find that the notion was timely filed and that the Inter-venor's notion to strike the Staff's action should have been denied.
III.
CONCLUSION The Staff urges the Board to reverse its Order designating tL ",taff's summary disposition motion as " premature" and to issue a clarifying order E ouston Lighting and Power Co. (Allens Creek Nuclear Generating Station, H
Unit No.1) ALAB-629, slip oo. February 2,1981, p.2; ALAB-590,11 NRC, 542, 550 (1980).
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1 stating that suamary disposition actions may be filed at any time until July 30, 1981 which.is the final date for filing 'sumary disposition nations.
The Commission's rules of practice provide that a party nay serve an answer l
opposing.a notion for summary disposition within twenty (20) days after service of the notion.
10 CFR s 2.749(a).
In view of the uncertainty thtervenor's notions have caused, the Staff proposes that the tine to respond to-itsinotion for sumary disposition should run from the date of the Board's Order ruling on this motion for reconsideration.
Respectfully subnilted, y'
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- [g,q'fvIk,1i f' Colleen P. Woodhead Counsel for i4RC Staff Dated at Bethesda,11aryland this 12th day 'of May,1981 1.
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UNITEJ STATES OF AMERICA HUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter cf
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Docket No. 50-142 THE REGEdTS U? Tn-U,IVERSITY OF
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Proposed Renewal of Facility
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License)
(UCLA Research Reactor)
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CERTIFICATE OF SERVICE I hereby certify t' at copies of "NRC STAFF l10 TION FOR RECONSIDERATION" in n
the above-cdptioned proceeding have been served on the following by deposit in the United States uail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Cocaission's internal mail system, this 12th day of ildy,1931-Elizabetn S. Bowers, Esq., Chain,an*
Mr. John Bay Administrative Judge 1633 Franklin Street Atomic Safety and Licensing Board Santa Monica, CA 90404 U.S. Nuclear Regulatory Commission Washington, DC 20555 Christine Helwick, Esq.
Glenn R. Woods, Esq.
Dr. Emneth A. Luebke*
Office of General Counsel Administrative Juoge 2200 University Avenue Atomic Safety and Licensing Board 590 University Hall U.S. Nuclear Regulatory Commission Berkeley, CA 94720 Washington, DC 20555 Roger Holt, Esq.
Dr. Oscar H. Paris
- Office of City Attorney Adainistrative Judge 200 North Main Street Atomic Safety and Licensing Board City Hall East, Room 1700 U.S. Nuclear Regulatory Conmission Los Angeles, CA 90012 Washington, DC 20555 Mark Pollock, Esq.
Mr. Daniel Hirsch 1724 do. La Brea Avenue Conmittee to Bridge the Gap Hollywood, CA 90046 1637 Butler Avenue, #203 Los Angeles, CA 90025 Atomic Safety and Licensing Board Panel
- Uilliam H. Cormier, Esq.
U.S. Nuclear Regulatory Commission Office of Administrative Vice Washington, DC 20555 Chancellor University of California at Los Angeles 405 Hilgard Avenue Los Angeles, CA 90024 l
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