ML20199B448
| ML20199B448 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/10/1986 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#286-592 OL, NUDOCS 8606170152 | |
| Download: ML20199B448 (10) | |
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Dated:
June 10, 1986 UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION before the l
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ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2) )
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APPLICANTS' BRIEF IN RESPONSE TO SAPL'S MOTION FOR DIRECTED CERTIFICATION Introduction Under date of May 28, 1986, Seacoast Anti-Pollution League (SAPL) has filed a Motion for Directed Certification (the Motion).
The Motion, as framed, seeks directed certification, pursuant to 10 CFR S 2.718(i) of this question:
"Whether the ASLB has acted arbitrarily and capriciously in refusing to correct the official transcript of the pre-hearing conference, as sought by SAPL in a Motion dated April 10, 1986?"
Motion at 1.
The April 10th motion referred to had sought to have corrections made in the transcript of March 25, 1986.
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review of that motion reveals that it was grounded upon recited differences between the reported transcript of that day's proceedings and what is represented as a transcription of a radio station's tape of the same day's proceedings.
If one assumes the accuracy of the tape transcript it reveals (a) that the reporter left out certain items which likely were missed because counsel and the chairperson were talking at once (compare Tr. 2098 Lines 9-11 with Tape Tr. p. 2 1st A.; compare Tr. 2098 Line 21 - Tr. 2099 Line 5 with Tape Tr.,
- p. 2 4th A.-5th Q.); (b) obvious typographical errors (compare Tr. p.
2098 Line 14 with Tape Tr. p.
2 2d A.); (c) differences of nonsubstantive significance (compare, e.g.,
Tr. 2098 Line 17-18 with Tape Tr. p. 2 3rd A.); and (d) the omission of matters of possible significance, viz. a ruling that an argument was waived if not made (Tape Tr.,
p.
2 3rd Q.), a direction to the reporter from counsel (id. 6th A.),
and a direction of the chairperson to the reporter to strike the direction of counsel from the record (id. 6th Q.)
What is also apparent is that all of this coloquy took place during an argument on the admissibility of SAPL proposed Contention No. 13.
See Tr. 2096.
SAPL proposed Contention No. 13 was excluded by the Board in a written order of April 1, 1986, for reasons set out at Pages 90-91 of a Memorandum and Order issued April 29, 1986.
It is in the foregoing posture that this matter comes before the Appeal Board.
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ARGUMENT I.
THE MATTER AT BAR DOES NOT SATISFY THE TESTS FOR DIRECTED CERTIFICATION Some nine years ago the Appeal Board in Public Service Company of Indiana (Marble Hill Nuclear Generating Station),
ALAB-405, 5 NRC 1190, 1192 (1977), stated that as a general rule directed certification will lie:
only 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 alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."
SAPL's entire effort to satisfy the first of the two independent tests articulated in ALAB-405 is the following:
"However, SAPL believes that directed certification is appropriate in this circumstance because there is no practical way to assure this error can be corrected on appeal since this transcript, as presently uncorrected, will provide the basis for any appeal.
Indeed, the issue here appears to go to the very right to preserve exceptions on appeal."
SAPL Motion at 3.
To begin with it is not clear what "this error" refers to.
Presumably it is the error of denying the motion to correct.
Assuming "this error" is one that cannot be corrected on a later appeal, an issue not free from doubt, SAPL makes no demonstration that the ruling caused or causes SAPL "immediate and serious irreparable impact" (emphasis added) as required by ALAB-405.
I.
The worst thing that happened to SAPL here is that its counsel was not permitted to (a) have transcribed certain remarks on the Board's already-made ruling as to waiver and (b) have recorded his attempted instruction to a court reporter and (c) have recorded a direction from the chairperson to the reporter not to record counsel's instruction.
This simply is not serious impact even assuming it to be irreparable.
Further, it is just as capable of being " alleviated by later appeal" as it is now.
It must be kept in mind that the only thing which SAPL had "on the line" of substance was its proposed Contention No. 13.
That proposed contention was excluded for reasons articulated in writing and SAPL can later appeal that exclusion if it desires.
If SAPL is arguing that it should have available to it on such an appeal a record which shows counsel was not permitted fair argument below, the official transcript shows where and on what basis he was cut off.1 Thus, even accepting arguendo that SAPL suffered some adverse and even irreparable impact, it is clear the impact is in no legal sense " serious" and is no more or less capable of alleviation now then on later final appeal.
1 Indeed, the official transcript is a better basis for such argument than the tape transcript because the tape transcript, if accurate, indicates that the remarks cut off were to be directed at the " waiver" ruling, not the admissibility of SAPL 13.
I.
As with its effort on the first ALAB-405 test, SAPL's effort on the second is also, to say the least, succinct:
"Moreover, an accurate transcript does lie at the heart of a fair adjudicatory hearing, and thus does ' affect the basic structure of the proceedings in a pervasive or unusual manner.'
Public Service Company of Indiana, Inc., 5 NRC 1170, 1191 (1972)."
SAPL Motion at 3-4.
However, SAPL ignores the fact that it is the " ruling below" now on interlocutory appeal that must " affect the basic structure of the proceeding in a pervasive or unusual manner."
The ruling appealed from is the denial of SAPL's motion to correct, and it hardly affects the basic structure of the proceeding.
One can accept that an " accurate transcript does lie at the heart of a fair adjudicatory hearing."
SAPL Motion at 3.
But the ruling on a motion to correct neither assures nor precludes an accurate record of the proceeding as a whole.
A review of the merits of the particular ruling at bar would at most reinstate nonsubstintive matters into the record that, for the reasons articulated earlier, preserve nothing of substance for an appeal or any other reason.
Such a review will not and could not have any effect upon the principle determinents of transcript accurracy (past or future), namely the reporter's ability to record and the participants' ability to speak clearly and one at a time.
I i
s II.
THE APPEAL, IF OF THE BOARD'S RULINGS ALLEGEDLY OMITTED, IS WITHOUT MERIT As noted earlier, we understand that the interlocutory appeal here taken is of the ruling on the motion to correct the transcript.
In Part I hereof we have set forth our view that such a ruling, even if erroneous, is not worthy of directed certification.
Here we assume that the Tape Transcript is accurate and address the three matters of
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possible significance omitted from the hearing transcript.
The omission from the transcript of the ruling that an argument not made is waived undermined no appeal right because the ruling had previously been made and recorded.
Tr. 2047 Line 21 - Tr. 2048 Line 3.
As a matter of substantive law the ruling is unassailable.
An argument never made is always waived.
The omission of counsel's direction to the reporter is correct.
Counsel do not have any right to direct reporters to do anything, see 10 CFR $ 2.750, and such directions should not even be recorded.
So no harm legal or otherwise flows from such an omission.
Finally, a direction from the Board to strike the directions of counsel to the reporter would be superfluous and its omission transgresses no right or privilege of SAPL.
No appellate right or remedy is lost by its omission.
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IV.
APPLICANTS ARE UNABLE TO RESPOND "ON THE MERITS" AS TO THE CORRECTIONS Counsel signing this response are well aware of the rule that a response to a petition for directed certification should address the merits of the issue as well the propriety of the grant of directed certification.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-741, 18 NRC 11, 14 n.4 (1983).
Ergever, we are unable to address the issue of whether the Tape Transcript or hearing Transcript is accurate.
We have not heard the tape and we have no way, even if we had, of vouching for the accuracy of the tape itself, never mind the transcript of it.
CONCLUSION The motion for directed certification should be denied.
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Thomas G.
Dignan, Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Counsel for Applicants r
CERTIFICATE OF SERVICE n
I, Thomas G.
- Dignan, Jr.,
one of the attorneys for the Applicants herein, hereby certify that on June 10, 1986, I made service of the within Applicant's Brief in Response to SAPL's Motion for Directed Certification by mailing copies thereof, postage prepaid, to:
Alan S.
Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Gary J. Edles Mr. Ed Thomas Atomic Safety and Licensing FEMA, Region I Appeal Panel 442 John W. McCormack Post U.S.
Nuclear Regulatory Office and Court House Commission Post Office Square Washington, DC 20555 Boston, MA 02109 Helen Hoyt, Chairperson Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 Washington, DC 20555 Dr. Emmeth A.
Luebke Diane Curran, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 2001 S Street, N.W.
U.S. Nuclear Regulatory Suite 430 Commission Washington, DC 20009 Washington, DC 20555 D^r. Jerry Harbour Stephen E. Merrill, Esquire Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee, Esquire U.S.
Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301-6397 Atomic Safety and Licensing Sherwin E. Turk, Esquire Board Panel Office of the Executive Legal U.S.
Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555
E, Atomic Safoty and Licensing Robert A. Backus, Esquire Appsal Board Penal Backun, Mayar & Solomon i
U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 Philip Ahrens, Esquire Mr. J.P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire Carol S.
Sneider, Esquire Matthew T.
Brock, Esquire Assistant Attorney General Shaines & McEachern Department of the Attorney General 25 Maplewood Avenue One Ashburton Place, 19th Floor P.O.
Box 360 Boston, MA 02108 Portsmouth, im 03801 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RED 1 - Box 1154 City Hall Kensington, NH 03827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S.
Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn:
Tom Burack)
Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Peter S. Matthews 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn:
Herb Boynton)
Newburyport, MA 01950 Mr. Thomas F. Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA~ 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Brentwood Board of Selectmen Office of General Counsel RFD Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 1
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Judith H. Miznar, Ecquire
_Silvargleto, Gartnar, Bakar Fine, Good & Mizner 88 Broad Street Boston, MA 02110
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