ML20137P833
| ML20137P833 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/16/1985 |
| From: | Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#385-538 OL, NUDOCS 8509190809 | |
| Download: ML20137P833 (6) | |
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v 80CKETED USMC UNITtiD STATES OF AMERICA NUCLEAR REGULATORY COMMISSI% gp 19 A9:19 BEFORETHEATOMICSAFETYANDLICENSUfG80ARDEcggy' u.
In the Matter of
)
)
GEORGIA POWER COMPANY
)
Docket Nos, 50-424-
--et al.
)
50-425
)
(0L)
(Vegtle Electric Generating Plant, )
Units 1 and 2)
)
NRC STAFF RESPONSE TO APPLICANTS' MOTION TO STRIKE OP REPLY TO INTERVEN0R'S RESPONSE TO APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION / (GROUNDWATER)
On July 15, 1985, Applicants filed a mot' ion for summary disposition of Contention 7 concerning the groundwater in the vicinity of the Vogtle facility. On August 9, 1985, Joint intervenors filed a response to the
' motion; they filed an amended response on August 21st. On August 26th, Applicants tiled a motion requesting the Board to strike Intervenors' response or, in the alternative, te permit the Applicants to file a substantive reply to Intervenors' response. The Staff herein responds to Applicants' motion.
I.
THE MOTION TO S1RIKE Applicants move'to strike Intervenors' response to the motion for summary disposition of Contention 7 based on two related grounds.
- First, Applicants point out that the " analysis" of William Lawless upon which Intervenors' response is based does not comport with the requirements of hhf24 DOC PDR
l '
10 CFR 92.749 (which requires that factual responses to motions for
{
summary. disposition be supported by aft 1 davits or discovery documents).
Second, Applicants charge that even if Intervenors submitted a proper affidavit, Mr. Lawless is unqualified to support such an affidavit.
[
The analysis provided by Mr. Lawless falls short of the requirements i
for an affidavit in two respects: it is not a sworn statement and it does not "show affirmatively that the affiant is competent to testify to the matters stated therein" (see 10 CFR @2.749(b)). The lack of a sworn statement is easily remediable. The Staff assumes that Intervenors would j
i i
not have submitted Mr. Lawless' analysis to the Board if Mr. Lawless were i
unwilling to aver to the matters contained therein; a signed sworn f
i statement by Mr. Lawless to that effect would settle the matter. Of l
course, if Mr. Lawless were unwilling to sign'such a statement, his analysis should not be considered by the Board. Under the circumstances, I
i the Staff believes Intervenors should be provided the opportunity to j
i provide the Board with a sworn statement from Mr. Lawless.
i As to the issue of Mr. Lawless' qualifications to testify to the i
matters contained in his analysis, the Staff believes no additional
~
papers arc necessary. Althcugh a demonstration of his qualitications t
should have been provided with his analysis, it is worth noting (as j
Applicants point out in their motion) that Mr. Lawless' qualifications
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are touched upon in Intervenors' Response to Applicants' 3rd Set of
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~
Interrogatories and were examined in detail during Applicants' deposition i
of Mr. Lawless on March 26, 1985 (see Deposition Tr. 8-62).
It is clear i
from those documents that Mr. Lawless does not have professional training as a hydrologist or geologist; it is equally clear that Mr. Lawless does 7
i
have a background in engineering and at least some familiarity with the issues involved in Contention 7.
Particularly since a good deal of his analysis is devoted to metr odology and uncertainties, the Staff does not believe Mr. Lawless' analysis should be struck for lack of qualifications. While the Staff therefore does not support the motion to strike Mr. Lawless' analysis, it does believe that the Board should consider Mr. Lawless' qualifications in assessing the credibility to be i
accordedhisanalysis.1/
1 II. THE MOTION FOR LEAVE TO REPLY Applicants have argued in the alternative that the Board allow the Applicants leave to rep;y to arguments contained in Mr. Lawless' analysis that are alleged to be either distortions of 'the record or arguments that should have been (but were not) provided to Applicants during discovery.
Inasmuch as the purpose of summary disposition is to resolve issues without the u3e of an evidentiary hearing where there are no genuine issues of factual dispute, the Staff would not oppose the grant of the motion for leave to reply for the limited purpose of 1dentifying distortions of the record or responding to arguments not provided during discovery, provided other parties are given the opportunity to respond to the Applicants' reply in a similarly limited tashion. The Staff does not
-1/
Although the Staff does not support the motion to strike Mr.
Lawless' analysis, the Staff does not waive any future objections it may have to Mr. Lawless' competence to proffer specific pieces of testimony in affidavits or otherwise.
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l iy i believe.the Board should entertain additional papers not limited in the fashion described above.
t III. CONCLUSION For the reasons presented above, the Staff submits that the Board i
should offer Intervenors the opportunity to submit a sworn statement from Mr. Lawless attesting to the truthfulness of his analysis.
If such a statement is provided, the Staff would oppose the motion to strike Intervenors' response to Applicants' motion for summary disposition. The Staff does not oppose the grant of Applicants' motion for leave to reply to Intervenors' response, provided the reply is limited to correcting record distortions and responding to new arguments not identitied by Intervenors during discovery and provided that the other parties are 1
given the right to tile similarly limited res'ponses to Applicants' reply.
l Respectfully submitted,-
t i
l-Robert G. Perlis Counsel for NRC Staff i
Dated at Bethesda, Maryland i
j this 16th day of September, 1985 4
.i I
4 UNITFD STATES OF AMERICA NUCLEAP REGULATORY COMMISSION a.
BEFORE THE ATOMIC SAFETY AND LICENSING BOAPD In the Matter of
)
GEORGIA POWER COMPANY, Docket Nos. 50-424
--et al.
)
50-425
)
(0L)
(Vcgtle Electric Generating Plant, )
Units 1 and 2)
)
CEPTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' MOTION TO STRIKE OR REPLY TO INTERVEN0RS' RESPONSE TO APPLICANTS' MOTION FOR SUMMAR) DISPOSITION OF CONTENTION 7 (GROUNDWATER)" in the above-captioned proceeding have been served on the following by deposit in the i
United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this I6th day of September,1985.
Morton B. Margulies, Esq., Chairman
- Mr. Gustave A. Linenberger, Jr.*
Administrative Judge Administrative Judge Atomic Safety.and Licensing Board Atomic Safety and Licensing Board l
Panel Panel
)
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Oscar H. Paris
- Bradley Jones, Esq.
Administrative Judge Region 1 Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Suite 3100 U.S. Nuclear Regulatory Commission 101 Marietta Street i
Washington, D.C.
20bb5 Atlanta, GA 30303 Bruce W. Churchill, Esq.
Douglas C. Teper David R. Lewis, Esq.
1253 Lenox Circle t
Shaw, Pittman, Potts & Trowbridge Atlanta, GA 30306 i
1800 M Street, N.W.
Washington, D.C.
20036 i
l I
L
, Atomic Safety and Licensing Laurie Fowler, Esq.
Soard Pane 1*
218 Flora Ave. NE U.S. Nuclear Reguistory Commission Atlanta, GA 30307 Washington,'D.C.
20555 I
Docketing and Service Section*
Atomic Safety and Licensing Office cf the Secretary Appeal Board Panel
- U.S. Nuclear Regulartory Commission U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 Washington, D.C.
20555 i
James E. Joiner, Esq.-
Ruble A. Thomas i
troutman, Sanders, Lockerman, Southern Company Services, Inc.
& Ashmore P.O. Box 2625
)
127 Peachtree Street, N.E.
Birmingham, AL 35202 Candler Building, Suite 1400 l
Atlanta, GA 30043 l
Tim Johnson Executive Director l
Campaign for a Prosperous Georgia 175 Trinity Avenue, S.W.
l Atlanta, GA 30303 Robert G. Perlis
(
Counsel for NRC Staff i
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