ML20042A365
| ML20042A365 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/22/1982 |
| From: | Goldberg J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203230363 | |
| Download: ML20042A365 (10) | |
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STAFF 3/22/82 ce UNITED STATES OF AMERICA
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D NUCLEAR REGULATORY COMMISSION V
&4 cCY,4' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD th a lhl, " k C r.9'Y In the Matter of 3,'
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'N METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 A
(Restart)
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(Three Mile Island, Unit 1)
NRC STAFF'S ANSWER TO AAMODTS' MOTION FOR RECONSIDERATION OF AAMODT MOTION FOR ADMISSIBILITY OF FINDINGS OF JANUARY 20, 1982 AND ADMISSIBILITY OF ADDITIONAL FINDINGS 1.
INTRODUCTION By Motion dated March 1,1982,1/ the Aamodts request the Special Master to reconsider his February 11, 1982 Memorandum and Order Denying Aamodts Motion for Admissibility of Findings. The Aamodts also request the Special Master to accept for consideration additional proposed find-ings and conclusions in the form of a document accompanying their motion which exceeds eighty pages in length and which is entitled " Supplement to Aamodt Proposed Findings of Fact and Conclusions of Law on Issues Raised in the Reopened TMI-1 Restart Proceeding Filed January 18, 1982."
The Aamodts further request that if the Special Master denies the Aamodts' motion, then the motion be certified to the Appeal Board. For the reasons set forth below, the Staff opposes the Aamodts' motions in their entirety.
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As the Aamodts' Certificate of Service shows, their motion was not served until March 5, 1982.
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' II. DISCUSSION A.
Aamodts' Motion For Reconsideration
===1.
Background===
All parties to this proceeding agreed to a schedule for the filing of proposed findings of fact and conclusions of law (Tr. 26,549-52) which was approved by the Special Master (Tr. 26,630). All parties complied with that schedule except for the Aamodts, who requested and received two extensions of time (until January 18,1982) for the submission of their proposed findings. Aamodts' request for a third extension of time to file proposed findings was denied by Chairman Smith during a conference call on January 18, 1982.
On January 20, 1982, the Aamodts filed a " Motion for Admissibility of Findings" in which they requested that attached additional proposed findings be accepted. That motion was denied by the Special Master in a Memerandum and Order dated February 11, 1982, which the Aamodts now request the Special Master to reconsider.
2.
Aamodts' Motion for Reconsideration At the outset, the Aamodts' motion for reconsideration should be deemed untimely. The Aamodts did not file their motion for reconsider-ation until March 5,1982, over three weeks after the February 11, 1982 denial of their Motion for Admissibility of Findings. The Aamodts offer no reason for their delay in seeking reconsideration, and no good cause for such delay'is apparent.
Secondly, no good cause has been shown by the Aamodts to support their request for reconsideration. None of the " circumstances" offered in Aamodts' motion to support their request warrant the Special Master's I
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reconsidering his earlier de'nia'i of.the Aamodts' request. For example, although the Aamodts cla m that eleven of'the eighteen transcripts of hearing were "not available,at public raading rooms until January 4, 1
1982," the Staff's infonnation is'that dive of the transcripts were sent to all five of the public 'd[cument roofns receiving TMI transcripts on November 23, 1981, five were sent on December 1,1981, three were sent on December 15, 1981, one was sent'on December 21, 1981, and the final four were sent on Opc' ember'28,1981, with all transcripts being placed in the Harrisbi5g, Pennsylvan4 pub}ic document room upon their receipt.
Thus, it appears that the bulk of the transcripts should have been available in the public documer.t rooms for use before the end of December and that,only four of those transcripts were not available untilJanuary4,iME.
The Aamoits also cite the."qua11ty and character" of the testimony and " disparities" in the testirt.ony as another " circumstance" supporting their request. All the othef paIties, however, were able to review and evaluate.ne testimony and submit proposed findings thereon in accordance with the schedule agreed upon by all parties, including the Aamodts. The Aamodt's have given no reason why the quality of the record was such that they, as opposed to all other parties, were unable to evaluate that record and prepare proposed findings in the time period established for the filing of findings.
Neither does the discovery of the steam generat'or problem at THI-1 warrant the Special Master's reconsidering his denia~1 of Aamodts' request to file additional findings. All parties, including the Aamodts, knowingly agreed to a schedule which gave all parties a fair opportunity 4
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to evaluate the record and submit proposed findings of fact and conclu-
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sions of lao The Aamodts offer no explanation as to how the discovery of the steam gererator problem adversely affected their ability to comply with the findings schedule to which they agreed. The Staff submits that there is no valf d Explanation, In sewnary, the Aamodts have not demonstrated good cause why the s
Special Master 'should reconsider his February 11, 1982 denial of Aamodts' ear. lier request to submit additional findings.2_/ The Aamodts were grantedtwcliIortextensionsoftimetofilefindings,havehadtheir
' arguments for an ' additional extension of time rejected, and have presented no new basis that would warrant recensideration.
In these
.circumstantes, there simply is no justification for granting the Aamodts' late motion for reconsideration.
s B.
Aamodts' Motion For Admissibility Of Additional Findings
- Attached to Aamodts' motion for reconsideration was a document of on 80 pages of additional proposed findings and conclusions which the is A madts request be accepted. The reasons advanced by Aamodts to support 5
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The Aamodts ignore the: fact that under 10 CFR l' 2.754(a)(2) and i
(3), the Staff and Licensae are given thG opportunity to file proposed findings which are responsive to the proposed findings of other parties. Such a practice was embodied in the proposed findings schedule adopted in the reopened hearing. Were the Aamodts' request for reconsideration granted and the Aamodts late-filed findings a cepted, the Staff and Licensee presumably would be entitled to ' file responses to the Aamodts' late-filed findings. This most certainly would result in some substantial
' delay in the issuance of the Special Master's report, now scheduled for the-end of March 1982, and of the Licensing Board's decision on operator cheating. Because of the potential for significant impact on the'sched11e for issuance of the Special Master's report and a Licensing Board decision, a clear demonstration of a valid basis for reconsideration is warranted.
6 the request are the same as those offered to support their motion for reconsideration.
For the reasons set forth above, the Staff does not believe that the Aamodts have establish good cause for submitting proposed findings almost seven weeks after the January 18, 1982 date on which Aamodts' findings were due. Moreover, the Licensing Board denied the Aamodts' request to file additional proposed findings when the Aamodts made such a request during their January 18, 1982 conference call to Judge Smith. Thus both the Special Master and the Licensing Board already have denied Aamodt requests to submit additional findings. No good cause has been shown by the Aamodts as to why their third such request should be decided differently.
C.
Aamodts' Request For Directed Certification The Aamodts also request that, if the Special Master declines to reconsider his previous ruling or fails to accept Aamodts' additional
, oposed findings, the Special Master " direct certification to the Appeal Board." Aamodt Motion at 3 (emphasis added). Section2.722(a)(2) of the Commission's Rules of Practice (10 CFR S 2.722(a)(2)), however, provides that appeals from rulings of a Special Master are to be taken to the Licensing Board in accordance with procedures established by the Licensing Board in its order appointing the Special Master. The Staff, therefore, submits that the Special Master does not have authority to bypass the Licensing Board and direct certification to the Appeal Board in this-case. Considering Aamodts' request for certification as a request for Licensing Board review of the Special Master's ruling,
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however, the Staff submits that the Aamodts have not satisfied the criteria for Licensing' Board review of the Special Master's ruling on Aamodts' Hotion for Admissibility of Findings.
-6 The Licensing Board has established the following standards for its review of rulings by the Special Master:
Parties may seek discretionary review by us of a signflicant evidentiary ruling by the Master under the guidelines applicable to requests for directed certification to an appeal board pursuant to 10 CFR 2.718(i). However, we establish the rule in this proceeding that it shall be a prerequisite to a request to us for directed certification that the Master has first been reqeuested to certify the question or refer the ruling to us pursuant to 10 CFR
- 2.718(i) or 2.730(f), and has had an opportunity either on the record or in writing to rule on the request.
Memorandum and Order, September 14,1981,at3-4(footnoteomitted).E The Aamodts have failed to meet their burden of establishing that the certification criteria are satisfied in this instance. The basis for Aamodts' request for certification is Aamodts' claim that the Special Master's denial of Aamodts' motion affects the basic structure of the proceeding in a pervasive and unusual manner. Aamodts' Motion at 3.
The Aamodts argue that this is so because of the " accelerated pace" of the proceeding and because the " quality and character of much of the testimony rendered the agreed upon schedule for findings hazardous with regards (sic) to 'getting to the truth', a requisite for a fair and meaningful decision." Aamodt Motion at 3.
The Staff disagrees that the i
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In its September 14th Memorandum and Order, the Licensing Board l
summarized the standards for directed certification as " exceptional l
circumstances" where the ruling below "either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviate _d by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner". Memorandum and Order at 4, n.3, citing South Carolina Electric and Gas Co. (Sunner, Unit 1), Appeal Board Memorandum (unpublished), August 27, 1981, l
at pages 3-4, and quoting Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-38?, 5 NRC 603, 606 (1977), and Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
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7-pace of the hearing, the nature of the testimony, or the " agreed upon" schedule will adversely affect a " fair and meaningful decision" in this proceeding. To the contrary, the record demonstrates that each party had a fair opportunity to present its case and cross-examine other parties' witnesses, sometimes repetitively by multiple representatives of the same party (the Aamodts). The schedule for the submission of proposed findings was agreed upon by all parties, including the Aamodts, on December 8, 1981 (Tr. 26,549-52), essentially at the end of almost four weeks of testimony, and approved by the Special Master on the next afternoon, December 9, 1981 (Tr. 26,630), the next to last day of hearing.
Thus the Aamodts had heard almost all the testimony before agreeing to the schedule and should not now be heard to argue that the pace of the hearing and the nature of the testimony prevented them from meeting the schedule to which they agreed and to which all other parties adhered.
The Aamodts do not show any manner in which a denial of their motion for acceptance of late-filed proposed findings would affect "the basic structure of the proceeding in a pervasive and unusual manner" nor do the Aamodts even claim that a denial of their motion threatens them "with immediate and serious irreparable impact which, as a practical matter,couldnotbealleviatedbyalaterappeal."U In short, the Aamodts have not demonstrated that the criteria for directed certification are met. Their request for directed certification should thus be denied'.
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Memorandum and Order, September 14, 1981, at 4, n. 3.
III. CONDITIONAL REQUEST FOR RELIEF Although the Staff is of the view that the Aamodts' motions for reconsideration, for the admission of additional findings, and for directed certification, should be denied, in the event that any of these notions are granted and any of the Aamodts' late-filed proposed findings of fact and conclusions of law are accepted by the Special Master or the Licensing Board, the Staff respectfully requests that it be granted the opportinity to file a reply to those late-filed findings.
IV. CONCLUSION For the reasons stated above, the Staff opposes in their entirety the Aamodts' notions for reconsideration, for admission of additional findings, and for directed certification.
In the event that any of the Aamodts' late-filed proposed findings of fact and conclusions of law are accepted by the Special Master or the Licensing Board, the Staff requests the opportunity to file a reply thereto.
Respectfully submitted, ck R. Goldberg
'ounsel for NRC Staff Dated at Bethesda, Maryland this 22nd day of March, 1982.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDIS0N COMPANY, ET AL.)
Docket No. 50-289 (ThreeMileIsland, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO AAMODTS' MOTION FOR RECONSIDERATION OF AAMODT MOTION FOR ADMTSSIBILITY OF FINDINGS OF JANUARY 20, 1982 AND ADMISSIBILITY OF ADDITIONAL FINDINGS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of March, 1982:
- Dr. John P. Buck Dr. Linda W. Little Atomic Safety & Licensing Appeal Administrative Judge Board Panel 5000 Hermitage Drive i
U.S. Nuclear Regulatory Comission Raleigh, North Carolina 27612 Washington, DC 20355 George F. Trowbridge, Esq.
- Christina N. Kohl Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Appe:1 1800 M Street, N.W.
Board Panel Washington, DC 20036 l
U.S. Nuclear Regulatory Comission Washington, DC 20555 Robert Adler, Esq.
505 Executive House
- Ivan W. Smith P. O. Box 2357 Administrative Judge Harrisburg, Pennsylvania 17120 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Honorable Mark Cohen Washington, DC 20555 512 D-3 Main Capital Building Harrisburg, PA 17120 Dr. Walter & Jordan Administrative Judge Ms. Harjorie Aamodt 881 W. Outer Drive R.D. #5 Coat'sville, PA 19320 Oak Ridge, Tennessee 37830 e
Gary L. Milhollin, Esq.
Mr. Thomas Gerusky 1815 Jefferson Street Bureau of Radiation Protection Madison, WI 53711 Dept. of Environmental Resources P. O. Box 2063 Harrisburg, PA 17120 l
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- Judge'Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, DC 20555 Mr. Marvin I. Lewis 6504 Bradford Terrace
- Atomic Safety and Licensing Appeal Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. C. W. Smyth, Supervisor
- Atomic Safety and Licensing Board Panel e
land Nuclear Station U.S. Nuclear Regulatory Commission P O Box 480 Washington, DC 20555 Middietown, Pennsylvania 17057 Ms. Jane Lee
- Secretary R.D. 3; Box 3521 U.S. Nuclear Regulatory Comission Etters, PA 17319 ATTN: Chief, Docketing & Service Br.
Washington, DC 20555 Walter W. Cohen, Consumer Advocate Department of Justice William S. Jordan, III, Esq.
Strawberry Square,14th Floor Harmon & Weiss l
Harrisburg, PA 17127 1725 I Street, N.W.
Suite 506 Thomas J. Geraine Washington, DC 20006 Deputy Attorney General Division of Law - Room 316 John Levin Esq.
1100 Raymond Boulevard Pennsylvania Public Utilities Comm.
Newark, New Jersey 07102 Box 3265 Harrisburg, PA 17120 Allen R. Carter, Chairman Joint Legislative Comittee on Energy Jordan D. Cunningham, Esq.
Post Office Box 142 Fox, Farr and Cunningham Suite 513 2320 North 2nd Street Senate Gressette Building Harrisburg, PA 17110 Columbia, South Carolina 29202 Louise Bradford Robert y. Pollard Three Mile Island Alert 609 Montpelier Street 1011 Green Street Baltimore, Maryland 21218 Harrisburg, PA 17102 l
Chauncey Kepford Ms. Ellyn R. Weiss Judith Johnsrud Harmon & Weiss Environmental Coalition on Nuclear Power 1725 I Street, N.W.
433 Orlando Avenue Suite 506 l
State College, ! A 16801 Washington, DC 20006 Ms. Frieda Berryhill, Chairman Mr. Steven C. Sholly i
Coalition for Nuclear Power Plant Union of Concerned Scientists Postponement 1346 Connecticut Avenue, NW 2610 Grendon Drive Dupont Circle Building, Suite 1101 Wilmington, Delaware' 19808 Washington, DC 20036 Gail Phelps ANGRY 245 W. Philadelphia Street
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York, Pennsylvania 17401
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- Judge Gary J. Edles, Chairman C
Idbe g Atomic Safety and Licensing
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Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555
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