ML19350B073
| ML19350B073 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/18/1981 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8103190484 | |
| Download: ML19350B073 (11) | |
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i UNITED STATES OF N1 ERICA NUCLEAR REGULATORY COMMISSION
[
BEFORE THE COMMISSION In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 NEW HAMPSHIRE, et al.
)
50-444
)
(Seabrook Station, Units 1 and 2)
)
RESPONSE OF THE NRC STAFF T0 flECNP'S " REQUEST FOR PERMISSION TO REPLY AND REPLY TO APPLICANT'S AflSWER CONCERNING DIRECTED CERTIFICATION"
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Roy P. Lessy Deputy Assistant Chief Hearing Counsel fiarch 18, 1981 8103190484
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TABLE OF CONTENTS Page
.I.
STATEMENT OF THE CASE..................
1
- 9 II.
DISCUSSION 2
A.
NECNP H3s Failed To Demonstrate Why Leave Of The Commission To File Its Reply Should Be Granted 2
B.
Even If Leave To File A " Reply".Is Granted, That
" Reply Does Not Suppor: NECNP's Argument That The L
- Extraordinary Involvement Of The Conmission Is c
Warranted At This Time, In This Proceeding 4
i III.
CONCLUSION 7
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UNITED STATES Of A'1 ERICA NUCLEAR REGULATORY C0r1 MISSION BEFORE THE COMMISSION In the liatter of_
)
PUBLIC SERVICE COMPANY OF Docket Nos. 50-443 NFW HAMPSHIRE, et al.
)
50-444 (Seabrook Station, Units 1 and 2)
RESPONSE OF THE NRC STAFF TO NECNP'S " REQUEST FOR PERMISSION TO REPLY AND REPLY TO APPLICANT'S ANSWER CONCERNING DIRECTED CERTIFICATION" I.
STATEliENT OF THE CASE On February 24, 1981, the New England Coalition on Nuclear Pollution (NECNP) moved the Commission to take the extraordinary action of intervening in this remanded seismic proceeding on the basis of a
. footnote.in the one discovery order that the presiding Appeal Board was required to issue.1/
Since the hearing has long been scheduled, to convene'on April 6, 1981, the Permittee filed its expedited response to NECNP's request on February 27, 1981.
On flarch 9,1981, the Staff.
. filed its expedited response to NECNP's request for directed certifi-cation and, inter alia, indicated that in the Staff's viw, NECNP's
. request for directed certification of a footnote in a discovery order was untimely l.(and therefore prejudicial to the rights of the other J/
-"l emorandum and Order,"' p. _7, n.10 (February 12,1981).
Pursuant
. to-the direction of the presiding Appeal Board, all other discovery matters.were resolved infonnally by the parties.
,2/
" Response Of The NRC Staff In Opposition To NECNP's Motion For Directed Certification And Reversal Of Appeal Board Order Of February _12, 1981,'l pp. 2-7.
E
r I' parties to the proceeding to an expeditious resolution of the issues),
unsupported by the authority relied upon by NECNP,U unnecessary,4/
based upon a misapplication of Dr. Chinnery's methodology _/ and 5
generally prohibited by the Commission's Rules of Practice.E NECNP was, in the Staff's view, requesting pemission to engage in even I
broader discovery against the Staff and the Pemittee than it had already engaged in,U and was utilizing this request as a basis to expand the scope of the April 6th hearing into new, and possibly pre.r.ature issues.
On March 4,1981, NECNP filed its " Request :or Pemission to D.eply ar.d Reply to Applicant's Answer Concerning Directed Certification."
For the reasons set forth belcu, the Staff opposes NECNP's request.
II.
DISCUSSION A.
NECNP Has Failed To Demonstrate Why leave Of The Comission To File Its Reply Should Be Granted.
'NECNP moves for pemission to. fi:e a reply to the Permittee's Answer to its motion on the basis of 10 C.F.R. 5 2.730(d) of the
' Commission's Rules of Practice.E That provision of the regulat. ions
'y Jd_., pp. 9-13.
-4/
Id., p. 6 n. 16, p. 12 n.?6.
5/
Jd.,pp.'8,11.
' 6f. Id., pp. 7-13.
d 7/
Id.
pp. 5-6. ' As regards the Staff, NECNP filed extensive interroga-tories and deposed all of the Staff's witnesses.
3f
' NECNP's L" Request For Pemission to Reply...," p.1.
merely provides that no oral argument will be pemitted on notions unless the presiding officer directs otherwise.
It also provides that a written brief may be filed in support of a notion.
It is, thus, clear that 10 C.F.R. 9 2.730(d) provides no basis for NECNP's instant request.
The relevant section of the Rules of Practice is 10 C.F.R.
Q 2.730(c).
That regulation provides:
"(c) Answers to motions. Within ten (10) days after service of a written motion, or such other period as the Secretary er the Assistant Sec etary or presiding officer may prescribe, a par:y may file an answer in support of or in opposition to the notion, accocnpanied by affidavits or other evidence.
However, the staff may file such an answer within fifteen (15) days after service of a written motion.
The m0ving party shall have no right to reply, except as pemitted by the presiding officer or the Secretary or the Assistant Secretary."
Accordingly. the pertinent regulation provides tnat the mo.ing party has no right to reply to answers to its motion, unless the presiding officer,
.the-Secretary, o'r Assistant Secretary pemits the reply. That rul'e has been enforced in Commission decisions.9/ Thus, the rule is that a reply to_ a motion is not pemitted unless: a notion for leave to reply is granted for good cause ~ shown.
When NECNP's instant request is evaluated under this standard, there is simply no basis for the Commission to grant 9_/
' See, Je.., The Detroit Edison Co. (Enrico Femi Atomic Plant, Unit 2), ALAS-419, 7 NRC 470, 471 (1978); Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435 441-(1976).
Enforcement of the rule serves a number of
. meritorious functions.
First, it pemits the parties opposing a motion to address the points raised by the moving party-in one pleading... Second, it prevents the moving party from filing an incomplete motion and then " misleading" those answering the motion by including new arguments in replies to answers. -Third, as.is
~
usually necessary, it cuts off endless answers and responses.
L..
NECNP's request, for NECNP has not even addressed the question, in light of applicable precedent, as to why it believes its request to file an additional pleading on the subject should be granted.
It is in consideration of the foregoing that the better practice is, that if a motion for leave
~
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Such reply only should to reply is filed, the reply should not be attached.
be filed by a party after permission to file has been granted pursuant to 10 C.F.R. 5 2.730(c).N Moreover, it has been held that with respect to motions generally, the moving party has the burden of proving that its notion should be granted.E 'NECNP has not met its burden because it hasn't addressed the question.
B.
Even If Leave To File A " Reply" Is GranteqThat "Reoly" Does Not Support NECNP's Argument That The Extraordinary Involvement Of The Commission Is Warranted At This Time, In This Proceeding.
Even when leave to reply is granted, the party filing a reply in support of its motion should be limited to a true reply or rebuttal to arguments made in answers to its notion.
NECNP's instant " reply" contains
.new arguments and characterizations of positions which the Permittee did not address in its answer.
For example, NECNP on page two of its " reply" attempts to relate its argument concerning the scope of discovery and the scope of the hearing to the complex question of burden of proof (and i
necessarily, burden of persuasion).
This is a new argument in the context
-p. See Black Fox, supra, note 9.
-11/ -See Consolidated Edison Co. of N.Y., Inc. (Indian Point Station,
-Units 1, 2 & 3), CL1-77-2, 5 NRC 13,14.1977; beacoast Anti-Pollution League v. Costle, 572 F.2d 872, SCO at n.16 (1st Cir.,
1978).
I-of the Appeal Board's Memorandum and Order of February 12, 1981, and is not a reply to the Permittee's February 27th response.
Secondly, NECNP states that the upcoming hearing pursuant to the issues delineated by the Appeal Board in its October 12, 1981 Order, "... ignores the state of the art of seismology..."E The Permittee in its answer did not o
address the question of " state of the art" of seismology; the Permittee is apparently and more appropriately deferring such substantive assertions until the April Sth hearing.
That hearing will address, among other things, the factual validity of Dr. Chinnery's methodology in accordance with the Comnission's Order of September 25,1980.E Uhether Dr. Chinnery's nethodology may be appropriately called " state of the art" in 1981 is a. highly controversial assertion that has little place in the context of the instant motion.
In_ addition, in its " reply" NECNP asserts that Conmission review of the Appeal Board's discovery ruling of February 12, 1981, is required because that ruling " threaten [s] substantial delay." E The Staff does not agree with HECNP's assertion.
As previously noted by the 1_2/ NECNP Request.' p. 4.-
g
" Order," CLI-80-33, 12-NRC 295 (September 25,1980).
At the hearing scheduled to commence on April 6, the parties 'are also scheduled to
' address the question ~of the consistency of the Staff's methodology for correlating vibratory ground motion with Appendix to 10 CFR Part 100,,as ordered by the~ Commission on September 25, 1980.
14/ NECNP Response,' p.: 5.
La
~ Staff in its March 9,1981 Response, the " delay" argument is a particularly T
inappropriate argunent for NECNP to offer as a basis for interlocutory Commission review, as NECNP waited until almost the eve of the hearing to claim that the April 6th hearing was not scoped according to its wishes.
NECNP had many prior opportunities to dis' cuss its view of the scope of the April 6th hearing, beginning with the Appeal Board's Order of September 29, 1980, which delineated the issues for hearing. Moreover, the approach NECNP now advocates must necessarily derail the scheduled April 6th hearing, as no party has filed :estimony on the issaes that NECNP states must be heard, i.e., the relative nerits of all " competing" methodologies to Dr. Chinnery's methodology in this proceeding.E
- Indeed, it can be argued that TECNP's demands, if adopted, would not only necessarily derail. the. upcoming April 6 hearing, but would cause the litigation of issues which may prove to be. unnecessary. E -
1.5f; NECNP's argument is necessarily posited upon two assumptions.
1 The first assumption is that Dr. Chinnery's methodo'ogy nas " factual validi ty. "
The second assumption is that the application of that
. methodology to the present seismic _ design of the Seabrook facility
- will necessitate a modification of that design.
W Inlthis regard,'NECNP's argument that it is entitled to have its way because of.the disparity in resources between it and the other parties ignores the facts. The presiding Appeal Board has granted NECNP's motion to call' as.a Board witness Dr. liihailo Trifunac, who was previously.an NECNP consultant.
The expenses of Dr Trifunac's testimony are to.be borne by the NRC.
NECNP's complaint that
- because the deposition of Dr. :Trifunac occurred at Dr. Trifunac's offices. in Los Angeles, NECNP was " forced:to forego"~ participation is also questionable.
In. fact,.NECNP never requested that the location of that deposition be changed to a place more convesient to it.or tolits counsel.. Finally, when these latest.NECNP argunents are set oJt,- it-is Clear.. that lsuch;arguaents do not constitute-appropriate. matters for directed certification.-
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_ III.
CONCLU3 ION For.the reasons discussed above, the Staff believes that NECNP's request to file a reply to the Permittee's answer should be denied.
If, however, the Commission' grants NECNP's request to file a reply, the Staff believes that the Commission should deny NECNP's request that the Commis-sion direct certification of, and reverse the presiding Appeal Board's Order of February 12, 1981.
Respectfully submitted, Roy P. Lessy Deputy Assistant Chief Hearing Counsel Dated at Bethesda, liaryland,
- this 18th day of March. 1981.
O e
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1 UNITED STATES OF AMERICA NUCLEAR RESULATORY COTtISSI0tl BEFORE THE COMMISSI0tl In the Matter of
)
PUBLIC SERVICE COMPANY OF Docket Nos. 50-443 NEW HA!!PSHIRE, et al.
)
50-444
)
(Seabrook Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE
.: hereby certify that copies of " RESPONSE 0: THE NRC STAF: T0 tiECNP'S
' REQUEST FOR PE2!ISSION TO REPLY AtrJ RE?LY TO APPLICAllT'S ANSWEL CON-CER"IN3 DIRECTED CERTIFICATION'" in the above-captioned proceeding aava been served or. the followin; by deposit in the Unitec States ca'1, #1
-t class or, as indicated by ar,' asterisk, by deocsit in the Nuclear Regulato y Conmission internal nail system, this 18th ej of 'tarch,1981:
Alan S. Rosenthal, Esq., Chairaan*
Joseph F. Tubridy, Esq.
Atomic Safety and Licensing 4100 Cathedral Avenue, N.W.
- Appeal Board..
Washington, DC 20016 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Ernest O. Salc Professor of Fisheries Research Dr.' John H. Buck *.
Institute Atomic Safety and Licensing College of Fisheries
' Appeal Board University of Washington U.S. Nuclear Regulatory Commission Seattle, Washington 98195 Washington, DC.
20555 Dr. Kenneth A. McCollom
.Dr. W. Reed Johnson *.
Stillwater, Oklahoma 74074 1107' West.Knapp Street Atomic. Safety and Licensing
'e-
. Appeal-Board U.S.: Nuclear Regulatory Commission-Robert A. Backus, Esq.
Washington', DC 20555 0'Neill, Backus', Spielman, Little 116 Lowell Street Ivan'W. Saith,' Esq.*-
~ Manchester, NH 03101 Atomic Safety and Licensing Board. Panel '
Ellyn R. Weiss, Esq..
U.S. Nuclear Regulatory Commission
_Harnon & Weiss Weshington, DC' - 20555.
-1725-I Street, N.W.
-Suite 505 Washington,-DCl 20006 9
Y a
J
. - _ _ _ _ _ _ _ _ _. Thomas G. Dignan, Jr., Esq.
Ms. Elizabeth H. Weinhole John A. Ritsher, Esq.
? Godfrey Avenue Repes & Gray Hampton, NH 03842 225 Franklin Street Boston, MA 02110 D. Pierre G. Cameron, Jr., Esq.
General Counsel Norman Ross, Esq.
Public Service Company of 30 Francis Street New Hampshire Brookline, MA 02145 1000 Elm Street Manchester, NH 03105 E. Tupper Kinder, Esq.
Assistant Attorney General Francis S. Wright, Asst. Atty. Gen.
Office of Attorney General Laurie Burt, Esq., Asst. Atty. Gen.
State House Annex Connonwealth of Massachusetts Roon 208 Environmental Protection Division Concord, NH 03301 One Ashburton Place,19th Floor Boston, MA 02103 1lfiliam C. Tallnan Cntirman and Chief Executive Atomic Safety and Licensing Officer Board Panel
- Putslic Service Company of U.S. Nuclear Regulatory Commission New Hampshire Washington, DC 20555 1000. Elm Street
- Manchester, NH 03105 Atomic Safety and Licensing Appeal Board
- Docketing' and Service Section" U.S. Nuclear Regulatory Commission Office of the Secretary Washington, DC 20555 U.S. Nuclear Regulatory Coanission Washington, DC 20555 Samuel-J. Chil k*
Office-of the Secretary U.S. Nuclear Regulatory Commission Washington, DCL 20555 A
RoyP.Lessf Counsel for NRC Staff
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