ML20024F347

Order Rejecting NRC 830902 Proposed Opinion,Findings of Fact & Conclusions of Law in CP Proceeding & Lg Hulman Supplemental Affidavit.Nrc Failed to Follow Correct Form for Proposed Findings.Motion Necessary to Admit Affidavit

ML20024F347
Person / Time
Site:	Clinch River
Issue date:	09/07/1983
From:	Mark Miller Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
ISSUANCES-CP, NUDOCS 8309090299
Download: ML20024F347 (3)

Text

0%c UNITED STATES OF AMERICA

.g3 fy -8 N0:37 NUCLEAR REGULATORY COMMISSION t

ATOMIC SAFETY AND LICENSING BOARD pr 4

0FF% [pHCHgI,,SE WJ O9g Before Administrative Judges Marshall E. Miller, Chairman Dr. Cadet H. Hand, Jr., Member Gustave A. Linenberger, Jr., Member SERVED SEP 81983

)

In the Matter of Docket No. 50-537-CP UNITED STATES DEPARTMENT OF ENERGY PROJECT MANAGEMENT CORPORATION

)

TENNESSEE VALLEY AUTHORITY

)

i

)

(Clinch River Breeder Reactor Plant)

)

September 7, 1983

)

ORDER REGARDING STAFF'S PROPOSED FINDINGS The Staff filed its proposed opinion, findings of fact and conclusions.of law in this construction permit proceeding on September 2, 1983.

The_ Staff also filed a " Supplemental Affidavit of Lewis G. Hulman", which purported to clarify and revise certain portions of the transcript where Mr. Hulman had previously testified as a witness (Tr. 8505-09).

For the reasons stated infra, neither document in its present form is acceptable to the Board.

At the latest phase of the evidentiary hearings held August 10, 1983, it was represented to the Board that the " Staff would_ file supplemental findings which address matters in addition to or in conflict with the findings filed by the Applicants" (Tr. ~8567).

However, it was not intended thereby.to relieve the Staf, of its 8309090299 030907

{DRADOCK 050000 50?

=.

- =-

- - - _ = -.

4,

i obligation to follow the Commission's Rules of Practice concerning the submission of proposed findings.

10 C.F.R. 6 2.754 provides for filing i

proposed findings of fact and conclusions of law, briefs "and a proposed form or order of decision...."

The proposed opinion and findings of fact as filed by the Staff do not comply with these regulations.

Instead, they consist largely of deletions from or additions to the Applicants' filing.

Some new paragraphs or footnotes are added without much explanation.

In short, the Staff's proposed findings could not be read or analyzed by the Board without taking the time to completely revamp the Applicants' filing and performing extensive editorial and clerical work upon two disparate documents.

Instead such work should be performed by 4

the Staff.

The additions to or revisions of the Applicants' proposed findings should appear in the context of those findings.

The Staff may use brackets, underlining, asterisks or other editorial devices to indicate its proposed changes, but the text must be set forth completely j

- so that the Staff's work product is independently viable and intelligible.

This does not preclude incorporation by reference if it is clearly described and its_ reproduction is not necessary for a clear understanding of the Staff's statements.

However, it is not acceptable for the Staff to require the Board to annotate, revis'e, delete from or modify another document.

It is-likewise beyond the scope of acceptable trial practice to permit a witness to revise, amend or alter his oral testimony as set

~

4 L

-..-s-

.-, +

-,-,,.-------,,,-n,.,-n,n,.,..,-,-

.,,,,--.n..,

,,-n,----.,e,-,,

a,--v

- ~.. -, -.,.., - -.- -, -

'h i forth in the transcript of evidence. Our trial-type adjudicatory proceedings are not so informal or casual as to allow witnesses to rewrite history.

If it is deemed necessary to clarify or change sworn testimony, an appropriate motion for leave to file an affidavit should be submitted to the Board, with copies to all parties on the service list.

Such motion should clearly set forth the need to revise or explain oral testimony and the compelling reasons for such a request, as well as attaching a copy of the proposed affidavit.

Such procedure is similar to a motion to reopen the record, inasmuch as the original i

opportunity for cross-examination of the witness on his oral testimony no longer exists in affidavit practice.

For the foregoing reasons, the Staff's proposed opinion and findings and the supplemental' affidavit of Lewis G. Hulman are rejected.

i FOR THE ATOMIC SAFETY AND LICENSING BOARD i.

l Marshall E. Miller, Chairman ADMINISTRATIVE JUDGE

~

~

(

Dated at Bethesda, Maryland i

h this 7th day of September, 1983.

l i

I r

L i

-~

_..,. _, _. _, _ _ _,, _ _ _ _ _ _ - _,. _ _, - _ _ - _