ML20196F761

Discusses Impact of ALAB-903 on Exercise Litigation. Applicant Offered No Interpretation of ALAB-903 But Instead File Addl Written Response to Contentions.Reiterates Listed Points

ML20196F761
Person / Time
Site:	Seabrook
Issue date:	12/02/1988
From:	Traficonte J MASSACHUSETTS, COMMONWEALTH OF
To:	Harbour J, Linenberger G, Smith I Atomic Safety and Licensing Board Panel
Shared Package
ML20196F767	List: ML20196F761 ML20196F785 ML20196F795 ML20196F801 ML20196F812 ML20196F817
References
CON-#488-7617 ALAB-903, OL, NUDOCS 8812140114
Download: ML20196F761 (3)

Text

._ . _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - --

i ,Yk7 ,no o. s. um. rAc. ..m -

7 D THE COMMONWEALTH OF MACCACHUCETTO -

U DEPARTMENT OF THE ATTORNEY GENERAL ; :!ei *EO 4 -Wr W

JOHN W. McCoMM ACK STATE oFrict SuiLDING ONE ASHSURToN PLACE.f' DSToN o21oS.1698

'_# '88 CEC -5 All :46 Jauts M. sHaNNoN woe.,o oe em .i- -

i. n m3 aN .

December 2, 1988 FAX i

Ivan W. Smith. Esq., Chairman ,

Dr. Jerry Harbour  :

Dr. Gustave Linenberger, Jr.

l U.S. Nuclear Regulatory Commission East West Towers Building  ;

4350 East West Highway  :

Bethesda, MD 20814  !

RE: Ijnpa c.t o f ALAB - 9 03_ __ o n Ext ltisis e L i t i g ation  !

l

Dear Administrative Law Judges:

[

t Knowing that counsel for the Applicants is now en route to  !

the Magic Kingdom, a locale whose environs he will find, judging by his recent communications to this Board, more than a  !

little hospitable and even familiar, I tske this opportunity to I have the last words en the above-referenc1d subject. ,

No doubt appellate tribunals pronounce changes in substantive law that are then immediately applied by lower i tribunals to cases already filed and properly before them. For example, it is a commonplace that precedential pronouncements  !

by higher courts in the field of securities regulation ,

reverberate downward through the district courts !n the form of motions to dismiss certain portions or all of complaints that were constructed on the basis that the conduct alleged in the  ;

complaint was actionable. That conduct now having betn determined by a higher court to provide no adequate predicate ,

i f7r a cognizable claim, the result often is dismissal of those  !

l claims resting on that conduct. Of course, before dismissing a L l claim in these circumstances, the complaintant is given an opportunity to defend his claim, by arguing, for example, that ,

the claim rests on more than the now-immunized conduct and r l t et LAB-903 is underst ood by analogy to the l

above example, I reiterate the following points: j r

[

l

j gi$ck b 0

b3o3

1) The Mass AG understood this Board's November 14 Memorandum to be an invitation to comment on the meaning and significance of ALAB-903. This understanding, far from being a "tactical" maneuver to achieve additional delay, simply reflected what the Board's order actually said. The Mass AG argued, inter alia, that ALAB-903 standing alone is not much help with regard to the admissibility of exercise contentions, and that its two-part test of "essential element" and "significant revision" should be interpreted as simply a set of coordinates for locating a "fundamental (law". As such, the Mass AG does not believe that ALAB-903, if properly interpreted, should have any impact on his already filed exercise contentions.

2) The Applicants (and the Staff) offered no interpretation of ALA9-903 but instead simply took the opportunity to file un additional written response to the contentions arguing for the most p_att that ALAB-903 sets forth new pleading requirements and that the Mass AG's contentions should now be dismissed. It is this aspect of the Applicants' response that prompted my concern that the Mass AG be given an opportunity to "conform" his e ?rcise contentions to new pleading requirements that the Applicants urge this Board to adopt.

3) Among the many themes that counsel for the Applicants has weaved so marvelously into his November 30 letter, none is quito so striking as the following claim:

As we pointed out .i'

'ious places in our earlier respor. r this Board's Memorandun of Novemt 4, 1988 (citation to pages 9, ., 15, 17 of the Applicants' November 22 Memorandum] the deficiency under ALAB-903 of a number of the Mass AG's contentions is that the facts alleged, even if established, would not qualify the contention under the standards set out in ALAB-903. By repleading the contentions, Mass AG cannot chtage the facts or create new ones. November 30 letter at 2.

This statement reflects the established notion discussed above that changes in substantlye law on occasion do result in the dismissal of certain claims. Howeve:, "

reasonable as the Applicants procedural posture now se: 9 t i be , a glance at what the Applicants actually argued to thes Fuird on November 22 reveals a less coherent postion. '. b> 3 tcants argued that the Mass AG had failed to plead in act. ance with ALAB-903's two-part test. This argument is made in response to HAG-EX 1, 2, 3, 5, 9, 11, 12, 13, 15, 17, 18, 19, and 20. It is this pleading defect, if indeed it is one, that the Mass AG would seek an opportunity to correct.

l

/p t

I do not deny for a moment that I share the wonder of my adversary counsel for dho Framed Reaer Rabbit (WFRR). But, not surprisingly, we have taken away froia this film different lessons. No doubt blinded by the "Monroesque" proportions of Jessica Rabbit, Mr. Dignan is enamored of the nasty, although effective, Toon-destroying process of "dipping." I, for my part, have not lost sight of the Ellm's major theme, captured by its very title, Roger Rabbit got framed.

Very truly yours, Vi

. gy;_ r rbe:,,e e-h f' John Traficon.e Assistant Attornsy General

. Department of the Attorney General "ifelear.hfety Unit L a Ashbur!.on Place Baston, Ma 02308 (617) 727-2200 i

J JCT:jr l

1 cc: Sercive List i

f t

+

l 4

1 I r I s J

4

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

_ - - _ ,