ML20023A836
| ML20023A836 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 10/13/1982 |
| From: | Miller D MILLER, D.S., SENSIBLE MAINE POWER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8210200065 | |
| Download: ML20023A836 (5) | |
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UNITED STATES OF AMERICA C7F;CE v --
MUCLEAR REGULATORY COMMISSION ICXUfj d k lA.
c uticn Before the ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No. 50-309-OLA
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MAINE YANKEE ATOMIC POWER STATION,
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(To Increase and Modify
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-(Maine Yankee Atomic Power Company), )
Spent Fuel Pool Storage
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Applicant. )
and Systems; Compaction)
SMP REPLY UPON STAFF AND APPLICANT OPPOSITION TO SMP MOTION FOR DISCLOSURE BY APPLICANT, AND REQUEST FOR LEAYE TO FILE THE SAME Pursuant to 10 CFR 82.730, Intervenor Sensible Maf.ne Power, ("SMP"),
here replies to oppositions from Staff and Applicant upon SMP's ear-i lier Motion for Disclosure from Applicant, and also requests leave to file the instant pleading.
SMP respectfully submits that certain arguments or assertions made by Staff and Applicant are at least somewhat misleading or inconsis-tent, sufficient to merit the Board's consideration of the further argument or rebuttal argument set forth below.
Both Staff and Applicant would argue, and indeed Applicant appears to rely totally upon, a general misconstruction that SMP's Motion is nothing more than premature discovery.
We urge the Board against such misconstruction.
While this point has already been argued in SMP's 8210200o05
]M
a.
Motion, (Id., at 7, second paragraph), it bears reiteration here, given the argument of Staff and Applicant, that we are not talking about discovery but about a basic element of Applicant's case-in-chief as to which functionally no specific disclosure has yet been made.
Second, and in corollary to the foregoing, the best, most effect-ive and most appropriate time for the disclosure of this basic in-formation is now, prior to discovery, when misassumptions on basic issues can most easily be avoided.
No argument advanced by either Staff or Applicant can disguise the nature of the information sought as other than basic and essential to the proper conduct of this pro-c e.) ding.
Indeed, if there be anything " curious" about this issue, SMP respectfully submits that the most curious aspect is how and why this proceeding finds itself -- now more than three years after the first application -- still uninformed upon the means and methods by which Applicant plans to pursue its proposed d/r/c scheme.
SMP submits that such delict or insufficiency should be cured now, prior to the commencement of discovery.
Third, argument is offered against SMP's Motion that because it does not cite any one particular NRC case or any one particular line of the NRC Rules of Practice, then it should not be entertained.
SMP respectfully submits that such artificially restricted view does not conform to either the scope and function of these proceedings, nor with the authority of this Board in conducting the samo, Insofar I
as SMP's Motion is essentially a request for more specific or for legally sufficient pleadings from Applicant, one need look no fur-ther than the power of a presiding officer, or more particularly 10 CFR 82.718(f), "(to) (d)ispose of procedural requests or similar j !
m matters."
SMP's Motion is such a " procedural request" - more spe-cifically, that we go no further with this proceeding unless and until Applicant files a legally sufficient pleading setting forth the noted basic elements of its-case, which same are now conspicu-ously absent.
Thus SMP respectfully submits that such efforts of Staff or Applicant tending to restrict the procedural rights of this Intervenor, or the authority of this Board, should not be entertained.
Fourth, Staff attempts to argue that sufficient information is available as to render the requested disclosure unnecessary.
Such assertion fails upon two points.
First, Staff's claim that two let-ters "contain sufficiant discriptions (sic) of the d/r/c scheme to put SKP on notice with respect to what the Applicant proposes by its license amendment", (Staff Response, at 3) -- is essentially wrong on the facts, as elsewhere implicitly recognized by Staff.
SMP stands upon its consistently maintained position that no such filings, whether individually or cumulatively, constitute the disclosure that must be made if these proceedings are to be conducted in a legally sufficient manner.
Second, Staff's claim of sufficient information cannot in law or logic stand in consistent company with its own SER, in which Staff acknowledges: "To allow flexibility in the modifica-tion plan, the licensee is not specific in'the manner in which the modification sequence will be performed."
(Id., at 18.)
SMP respect-fully. submits that this Board should not indulge Staff's effort to maintain at one place that Applicant has made such a disclosure, and i
to maintain at another place that Applicant has not.
Such begs not only reality, but also the basic fundamentals of pleading in good faith.
l i
I L.
Last upon the point of " sufficient available information" is Staff's argument that because SMP has had certain contentions ac-cepted, then this disclosure from Applicant is unnecessary.
Such argument not only fails upon logical examination, but also arguably shows more than a little' dis' regard for the seriousness of the issues with which this proceeding is concerned.
That SMP may have been fortunate enough, by more than a little speculation or otherwise, to gain acceptance of a few contentions, does not in any way diminish either the need for or the importance of the disclosure here in issue.
Rather we submit, that instead of the cart-before-horse inversion urged by Staff, we consider the legal sufficiency of Applicant's pleading and disclosure, without the confusing reference as to whe-ther or not SMP has been able to guess its way to an admissible con-tention.
Last, and upon the issue of attorney's fees, SMP respectfully directs the consideration of this Board to the well-recognized excep-tion to the American rule, that where the conduct of one uncoopera-tive or nondisclosing party requires special corrective effort by the party seeking cooperation or disclosure, then that corrective effort bears reasonable attorney's fees.
(Please see Annotation at 31 ALR Fed. 833, and cases cited tharein.)
Motions practice within the Federal court systen also recognizes this principle.
For the foregoing reasons, SMP urges the Board that neither Staff nor Applicant has presented sufficient cause to deny SMP's pending Motion, and that the same should be granted.
David Santee Miller Counsel for Sensible Maine Power Perkins Road BoothbayHarbor$ ME 04538 Telephone: (207 633-4102 x
s.
CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing " Reply" by mailing copies of the same to the following, first class regu-lar mail, postage prepaid, this 13th day of October, 1982:
Robert M. Lazo, Esquire Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. Cadet H. Hand, Jr.
Director, Bodega Marine Laboratory University of California P.
O.
B.
247 Bodega Bay, CA 94923 Peter A. Morris, Esquire Atomic Safety and Licensing Board U. S. Nuclear. Regulatory Commission Washington, D. C.
20555 Jay M. Gutierrez, Esquire Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Thomas G. Dignan, Esquire Ropes and Gray i
'225 Frunklin Street Boston, MA 02210 Rufus E. Brown, Esquire Dept. of the Atty. General State House Station 6 f
f Augusta, ME 04333 f
/
David Santee Miller Counsel for Sensible Maine Power k
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