ML20003H783
| ML20003H783 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 04/24/1981 |
| From: | Pollock M COMMITTEE TO BRIDGE THE GAP, POLLOCK, M. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8105070440 | |
| Download: ML20003H783 (8) | |
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NUCLEAR IAW CETIER g T h/
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Attorneys for Interv nor s
COMMITTEE TO 3RIIX2C THE CAP
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9 NUCLEAR REGUIATORY COMMISSION v/
s BEFORE THE ATOMIC SAFETrY AND LICENSING 3OARD In the Matter of Docket No. 50-142 TIE REGENTS & THE UNIVERSITY
& CALIFORNIA (Proposed Renewal of Facility License Number R-71)
(UCLA Research Reactor)
" MOTION TO STRIKE NRC STAFF NCTfl0N FOR SU'r9iARY DISPOSITION AS UhTIMELY, AND CONDITIONAL REQL'EST FOR EXTENSION & TINE TO ANSVER" I. THE MarICf!
Intervenor herehr moves the Atomic Sr_fety and Licensing Board for two related actions: 1) to strike as untimely NRC Staff's "Fotion for Summary Disposition on Contention XX" served April 13, 1981, and 2) concurrently, to grant an immediate extension of time to answe the Motion for Sunmary Disposition, conditional on the ruling of the Board on the Motion to Striker The extension requested would permit Intervenor, should the Motion to Strike
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be denied, to respond to the Motion for Summary Disposition within twenty days of service of the Board's ruling on the Motion to Strike, thus preserving Intervenor's right t.' response.
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2 II. LYrRODUCTION At the Special Pre-hearing Conference Felruary 4 and 5,1981, convened in Los Angeles, the Staff proposed a schedule for discovery and motions f:r summary disposition. Tr. 487.
Applicant agreed tc the proposed schedule at the hearing.
Intervenor agreed to the proposed schedule by phone after the hearing, confirmed thereafter by letter. On March 20, 1981, at page 15 and 16 of its order, the Board adoptai the proposed schedule and set specific dates for ths events covered by said schedule. The schedule as ordered by the Board is set forth below 3 card Order March 20, 1981 First Interrogatories April 20, 1981 (30 days)
Response (30 days)
May 20, 1981 Second Interrogatories June 10, 1981 (20 days)
(Follow up questions based on response)
Response (20 days)
June 30, 1981 Motions for Summan Disposition July 30, 581 (30 days)
The Board Order continued:
l As discussed in the prehearing conference, 10 CFR S2.749 was amended in October 1980 to permit the Staff to respond in support of a summary disposition motion htt the time of forty five t 55) days was not changed. TR. 488 If the Staff does not respond in support with additional information the 45 days would be appropriate.
If theStaffrespondswithadditional(nen)informationinitsaffidavits, then the Intervenors would have additional time to respond or a total of sixty five (65) days.
The schedule set forth above was adopted by the Board to control the f
l timing of discovery and motions for summary dit, position in this proceeding.
- attached as exhibit A
3 III. DISCUSSICtt The schedule, as propcsed by Staff and adopted by the Board, on its facecoversthetimingoffilingsummarydispositionmot5.ons.
It contemplates no summary disposition motiona until July 1981.
However, the subject motion for summary disposition was served by NRC staff on April 13,1981, some 105 days prior to the date set forth in the schedule.
Intervenor presumes that it is.. _.
not the intention of the Staff that the response to the subject motion be forthcoming in August of 1981. Therefore, Interrenor moves the Board to strike the NRC Staff's Motion for Summazv Disposition on Contention XX as untimely.
That the Staff Motion for Summary Disposition is in violation of Staff's own proposed schedule, stipulated to by the partien and adopted by the Board, is cler.r from the transcript (p. 487-488):
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JUD G 30 VERS:
What were your days on the summary dispositio:2?
M5. WCCDHEAD:
Thirty days after answers are submitted to the second round of questions.
l MR CCRMIER: Within thirty days after, or wait at least thirty days?
M5. WCCDHEAD:
Thirty days after the answers were served.
It gives a month to look at the answers and to writt, a modify your summary disposition.
1 MR. CCRMIER:
Is this all supposed to appear before t.he 252 conference?
ES WCCDHEAD:
Correct.
'Ihis is prior to the second prehearing conference.
If I could recapitulate? It would be thirty days first round questions; thirty days for responsest twenty days second round questions twenty. days for responses and then thirty days from that motions for summary dispositions.
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4 IV.
CCNCLISICN The Scard, exercising its legitimate authority, has ratified a stipulation between parties and set. forth a schedule for serving and responding to interrogatories and for serving and resonding to motions for summary disposition. The periods for service and response in the schedule are not the same as those provided for in the regulations and have significance and force independent of the regulatory periods.
If the action of the Staff in filing the subject motion prematurely is allowed to stend it will effectively render meaningless a stipulation agreed upon by all parties and ordered into effect by the Board.
The action by the Staff is in clear contravention of the Order and of the expectation of the parties in agreeing to the stipulation. This is the second time, in
[i D 's view, that a stipulation,the langus6e of which was proposed by Staff, has been abroga.ted unilaterally by Staff. Future stipulation with Staff is made most difficult by such actions. If an action so clearly outside the intentions of the parties can be countenanced under a stipulation and Board order. Intervenor will have no choice in the future but to assume that all agreements and all procedures must be painstakingly drafted with extreme detail in contemplation of every conceivable interpretation.
Even then, Intervenor would be forced i.o approach any proposal for future stipulation i
with great reluctance and skepticism. Intervenor thus seeks remedy from the Scard by asking that it not countenance such actions and strike the Staff motion as untimately, j
Finally, Intervenor moves the Board to immediately and alternatively grant Intervenor s. period of at least twenty (20) days from the date of service of the Board's ruling on Intervenor's Motion to Strike, within which f
to answer the. Staff's Motion for Summary Disposition. Such an order would
5 become effective only upon a decision by the 3 card to deny the current motion to strike.
An immariinte postponement of response to the Summary Disposition Fotion until after the Boezd's ruling on the Motion to Strike will relieve Intervenor of the burden of prearing a substantive response to the Summary Disposition Motion now when none may be necessary. The conditional extention of time would preserve s right of response to the Su==mwy Disposition Motion should the Motion to Strike be denied. The Potion to Strike has been filed as quickly as possible by Intervenor (Staff's Motion for Summary Disposition received by Intervenor only on March 20) in order to resolve an important procedural issue. Such good faith challenges to the procedural correctness of the actions of other parties should not be burdened by the collaten1 preparation of substantive responses to that action when no such response my be necessary.
'In conclusion Intervenor requests the Board to strike as untimely Staff's Motion for Sumury Disposition and, alternatively, to grant an extension of time for response to that Motion should the Board rule it is i
j timely.
Respectfully submitted, l
Mark Pollock Attorney for Intervenors COMMI'ITEE TO 3 RIDGE THE CAP Dated at Los Angeles, California this 24th day of April, 1981
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We would pro c e that thirty days after f
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the Board order, the first round of questions in ja Ny 3
discovery should be submitted.
That is within thirty j
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twentv days after respnses the secorid rounQ of cuestions i
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would be submitted; and, of course, the second round l
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of questions would be limited to follow-up questions g
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based upon the response to the first round of questions; 2
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twenty days for answers to thir; thirty days later motions l
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for summary disposition; and then the rules of practice l
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as to time for responses for motion for summary dispositions.
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5 13 JUDGE BOWERS:
What were your days on the E
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MS. WOODEEAD:
Thirty davs after answers are r
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submitted to the second round of questions.
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t MR. CORMIER:
Within. thirty days after, or
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Thirty days after the answers i
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It cives a month to look at the answers l
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MR. CORMIER:
Is this all supposed to appear j
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22j MS. WCODHEAD:
Correct.
This is prior to the 23 i
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j second preheTring conference.
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2l If I could recapitulate?
It would be i
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3l thirty days first round c'teetions; *hirty days for responses;
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twenty days second round questions; twenty days for l
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JUDGE LUE3KE:
That adds up to about five
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months.
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JUDGE BOWERS:
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something that Staff may be well aware of, but was ic 3
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the 749 which deals with summary dispositions -- I j
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It was revised. last October.
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MS. WCODEEAD:
Correct.
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JUDGE BOWERS:
And it now permits the Staff 14 ;
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to file its support of a motion for summary disposition,
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but whoever -- with their wisdom -- in revising it left
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j that foitv>five days unchanged; and if the Staff files its 11
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support and they have got the information that's due i
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and it's different afterwards, then the Intervenors would j
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19 he entitled to respond and that really gets to be 1
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20 a challenge of the forty-five days.
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MS. WCODEIAD:
Well, I don't believe that 2I h(-
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forty-five days is absolute.
It says at the very l
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latest, forty-five days before a second prehearing i
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ALDERSON REPORTING COMPANY. INC.
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UNITED STATES & AMERICA NUCLEAR REGUIATORY COMMISSICN 3EFORE THE ATOMIC SAFETY AND LICENSING ECARD
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l In the Matter of Dodet No. 50-142 THE REGENTS OF THE UNIVERSITY
(
sd hd of Om Facility Ltcense)
(UCLA Research Reactor)
CERTIFICATE & SERVICE I hereby certify that copies of " NOTION TO STRIKE NRC STAFF MOTION FOR SUMFARY DISPOSITION AS UNTINELY, AND CONDITIONAL RE@EST FOR EXTENSION & TIEE TO ANSW3"' plus related "LliTITER & TRANSMITIAL" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 25th day of April, 1981:
Elizabeth S. 3owers, Esq., Chairman Docketing and Se:vice Section (3)
Atomic Safety and Licensing Board Office of t.he Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear aegulatory Commission Veshington, D.C. 20555 Washington, D.C. 20555 Dr. Emmoth A. Luebke, Judge Counsel for NRC Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 70555 Roger Holt, Esq.
Office of City Attorney l
Dr. Oscar H. Paris Judge 200 North Eain Street l
Atomic Safety and Licansing M 7
U.S. Nuclear Regulaty Commissicrt Ang e 90 12 Washington, D.C. 2055>
Congressman Anthony 3eilenson William H. Cormier, Esq.
U.S. House of Representatives Office of Ad.ministrative Vice Chancellor W=ahington, D.C. 20515 University of California 405 Hilgard Los Angeles, CA 90024 i
Christine Helwick, Esq.
Glenn R. Woods, Esq.
l Office of General Counsel l
2200 University Avenue 590 University Hall Berkeley, CA 94720 FARK POLLOCK l
Counsel for Intervenor COMFIITEE TO BRIDGE THE GAP
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