ML20215K659
| ML20215K659 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 10/23/1986 |
| From: | Churchill B GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#486-1263 OL, NUDOCS 8610280247 | |
| Download: ML20215K659 (12) | |
Text
$
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DOCHETED l
USNRC l
October 23, 1986 16 BCT 27 A10:35 CFF;"'"r ~
UNITED STATES OF AMERICA ngc;J m,'
,s NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
GEORGIA POWER COMPANY, - - ~ ~et al.
)
Docket Nos. 50-424 (OL)
)
50-425 (OL)
(Vogtle Electric Generating Plant, )
Units 1 and 2)
)
APPLICANTS' MOTION TO STRIKE THE " APPEAL, BRIEF AND PROPOSED FINDINGS CONCERNING LICENSING BOARD DECISIONS" FILED BY HOWARD DEUTSCH AND MOTION TO DISMISS APPEAL OF GEORGIANS AGAINST NUCLEAR ENERGY I.
INTRODUCTION Georgia Power Company, et al.
(" Applicants") move the Atomic Safety and Licensing Appeal Board to strike the " Appeal, Brief and Proposed Findings Concerning Licensing Board Decision" filed by Howard Deutsch purportedly on behalf of Georgians Against b! is improperly filed, Nuclear Energy ("GANE"). This submittai 1/
Applicants presume that the " Appeal, Brief and Proposed Findings Concerning Licensing Board Decisions" submitted by lioward Deutsch is intended to be an appellate brief, and Appli-cants will hereinafter refer to it as "the brief."
To the extent 4
it is intended to be anything else, it is unauthorized under the Commission's Rules of Practice.
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untimely, does not conform to requisite standards, and is scan-dalous.
Since a proper, timely brief has not been filed, Appli-cants further move the Appeal Board to dismiss the appeal of GANE.
II.
Howard Deutsch's Submittal Is Improper Only a party to a proceeding may file an appeal to the Ap-peal Board.
10 C.F.R. S 2.762(a).
Howard Deutsch purports to submit the brief on behalf of GANE.
Howard Deutsch, however, has never filed a notice of appearance in this proceeding, as is re-quired by 10 C.F.R. 5 2.713(b).
There is no indication that he is a " duly authorized" representative of GANE.
See 10 C.F.R. S 2.713(b).
To the best of Applicants' knowledge, he is not an officer of GANE (although he is on the Board of Directors of Campaign for a Prosperous Georgia, the intervenor who withdrew from this proceeding).2/
2/
Howard Deutsch was a witness for GANE in the hearing and may be a member of GANE.
After the hearing, he submitted a proposed finding addressing the contention on which he had testified.
The Licensing Board subsequently informed GANE that the record indi-cated that Dr. Deutsch was not a duly authorized representative of GANE.
The Board also inforraed GANE that if GANE wanted the Board to accept Dr. Deutsch's filing, GANE should either estab-lish that Dr. Deutsch was a duly authorized representative of GANE, or adopt Dr. Deutsch's filing as its own.
Letter from M.
l Margulies to D.
Teper (May 22, 1986).
GANE chose to adopt the filing.
Letter from D. Teper to ASLB (May 30, 1986).
n Under these circumstances, the brief should be considered a submission of a non party.
Such a submission is improper and should be stricken.
Cf. Tennessee Vr' ley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-409, 5 N.R.C.
1391, 1396-97 (1977); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-294, 2 N.R.C.
663, 664 (1975).
III.
Howard Deutsch's Submittal is Untimely Assuming arguendo that Howard Deutsch is a duly authorized representative of GANE, the brief is nevertheless untimely.
Un-timeliness, too, may constitute grounds to strike a brief.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, IB, and 2B), ALAB-409, 5 N.R.C.
1391, 1396-97 (1977); Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1),
ALAB-424, 6 N.R.C.
122, 125 (1977).
GANE's Notice of Appeal was filed on September 8, 1986.
10 C.F.R.
S 2.762(b) therefore required that GANE's appellate brief be filed no later than October 8, 1986.
The brief filed by Howard Deutsch apparently was not filed by this date.
The Appeal Board's Memorandum and Order of October 16, 1986, indicates that the brief (which was filed with a similar brief by Campaign for a Prosperous Georgia) was postmarked October 9.
ALAB-851, slip op.
at 2 n.2 (Oct. 16, 1986).
The copies served on Applicants were -
n postmarked October 10.1!
The certificate of service accompanying the brief, on the other hand, indicates that the brief was served on October 8.
While it is possible that an envelope placed in a mailbox on October 8 (a Wednesday) could have remained there until the next day and therefore have been postmarked the 9th, it is unlikely that envelopes placed in the mailbox on the 8th would not have reached the post office and been postmarked until the 10th.
Applicants therefore believe the certificate of service to be in-accurate.A!
Applicants recognize that one or two days' lateness is gen-erally insufficiently prejudicial to warrant striking a brief.
See Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-424, 6 N.R.C.
122, 125 (1977).
If lateness were the only deficiency in the brief, Applicants would not have pursued the instant' motion.
Applicants submit, however, that in confluence with the other deficiencies in the brief and in the 3/
Applicants received two service copies -- one at the Atlanta law firm of Troutman Sanders Lockerman & Ashmore, and the other at the Washington, D.C.
law firm of Shaw Pittman Potts &
Trowbridge.
Both were postmarked October 10.
Applicants have preserved the envelopes.
4/
The certificate of service was signed by Howard Deutsch.
Since Deutsch is not an attorney and since the certificate of service was not in affidavit form, the certificate does not con-stitute the required proof of service.
10 C.F.R.
S 2.712(e). -
i absence of any justification for the belated submission,5/ the late filing of the brief is an additional factor militating to-ward striking the brief.
IV.
The Brief Does Not Conform To Requisite Standards A fundamental Commission requirement for briefs on appeal is that they must demonstrate how the licensing board supposedly erred.
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C.
775, 805 (1979).
In this respect, 10 C.F.R.
S 2.762(d)(1) provides: "An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal.
For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided."
The Appeal Board has explained the necessity of compliance with these standards:
[B]riefs are necessary to " flesh out" the bare bones of the exceptions, not only to give us sufficient information to evaluate the basis of objections to the decision below, but also to provide an opponent with a fair opportunity to come to grips with the appellant's 5/
A belatedly filed brief should be accompanied by a motion for leave to file out of time which satisfactorily explains not only the reason for the lateness but also why a motion for exten-sion of time could not have been seasonably submitted.
Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1),
ALAB-424, 6 N.R.C.
122, 125 (1977)..
i O
arguments and attempt to rebut them.
[N]ot disclosing the authorities and evidence on which the appellant's case rests
. virtually precludes an intelligent respcnse by ap-pellees.
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C.
43, 49-50 (1981).
For these reasons, claims of error that are without sub-stance or are inadequately briefed will not be considered on ap-peal.
Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 N.R.C. 453, 455, 481 (1982); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573, 10 N.R.C.
775, 786-87 (1979).
See also Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 N.R.C.
387, 395 (1983) (".
issues must be fully briefed to be considered on appeal."); Louisiana Power & Light Co.)
(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C.
1076, 1083 n.2 (1983)
(" Exceptions not fully briefed.
. are considered waived.").
In the same vein, when an entire brief is not in substantial compliance with the provisions of 10 C.F.R.
S 2.762, it may be stricken on motion of a party or by the Commission on its own initiative.
10 C.F.R. 5 2.762(g).
- See, e.g.,
Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 N.R.C.
769, 770 (1977).. - -
t 0
The brief filed by Howard Deutsch is not in substantial com-pliance with the requirements of 10 C.F.R.
S 2.762.
The brief does not " clearly identify error of fact or law."
There is no meaningful discussion of the Licensing Board's rulings and deci-sions -- no demonstration why some other result should have been reached.
Instead, for the most part, the brief simply makes conclusory aFsertions of error (often in pejorative terms).
Moreover, there is virtually no citation to "the precise portion of the record relied upon in support of the assertion of error."6/
In sum, the brief filed by Howard Deutsch is wholly defi-cient.
It does not provide information and discussion sufficient to provide Applicants with a fair notice of the issues, nor does it provide information and discussion sufficient to allow an in-telligent disposition of the arguments.
The brief should there-fore be stricken.
V.
The Brief Should Be Stricken as Scandalous i
Perhaps in an attempt to compensate for its lack of sub-stance, the brief is replete with disparaging and ad hominem at-tacks on the Licensing Board.
The attacks are unsupported and I
scurrilous.
i 6/
The brief also fails to contain a table of contents and table of authorities, and was not accompanied by a proper certif-i icate of service.
See 10 C.F.R.
S 2.762(d), (g).
{..
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For example, at page 7, the brief asserts that "[t]he Board incredibly misrepresents the qualifications of Intervenors' ex-pert, William Lawless," and at page 8 states that the Board's
" description totally (and one can only conclude intentionally) misrepresents Mr. Lawless's qualifications."
The brief remarks sarcastically, "the Board's ruling makes one wonder if the ruling was written by someone other than the Board, someone not present at the hearings."
Brief at 7.
In the same vein, in discussing the summary disposition of intervenors' quality assurance contention, the brief states, "This is the contention on which the Board most clearly demon-strates its arrogant disregard for the public health and safety."
Brief at 9.
It characterizes the Board's ruling as shocking.
Id. at 10.
See also id. at 13.
It further characterizes the Board as "nothing more than a rubber stamp for Applicants," al-ludes to "the Board's irresponsible actions and reckless disre-gard for the public health and safety," insinuates that
"[plerhaps they.
. are under pressures which have led to this pattern of irresponsibility," and concludes that "the Board's ac-tions were reckless and illegal."
Id. at 14.
i Elsewhere, the brief describes the dismissal of contentions as " improper and illegal," as " preposterous," and as "apparently tle result of a predetermination with no real consideration of Intervenors' information."
Id. at 2, 4.
The brief twice more l
l
~8-l
n a
repeats the defamatory allegation that the Board " misrepresents" the record or evidence.
Id. at 9.
Not one of these slanderous attacks has any basis or sub-stance.
There is not one whit of support for these allegations.
It is Howard Deutsch's brief, not the Board's rulings, that is shocking.
Given this vituperative, unwarranted, and totally unsupported attack on the dignity and integrity of the Commis-sion's tribunal, the brief should be stricken as scandalous.
Cf.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-409, 5 N.R.C.
1391, 1396-97 (1977)).
See also Ped.
R. Civ.
P.
12(f); Theriault v. Silber, 574 F.2d 197 (5th Cir. 1978), cert. denied, 440 U.S. 991 (1979); Skolnick v.
Hallett, 350 F.2d 861 (7th Cir. 1965). __
i 4
VI.
Conclusion For the reasons discussed above, the " Appeal, Brief and Pro-posed Findings Concerning Licensing Board Decisions," filed by Howard Deutsch, should be stricken, and the appeal of Georgians Against Nuclear Energy should be dismissed.
Respectfully submitted, s[{
J Bruce
'Y.
Chbrchill, P.C.
David R.
Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C.
20037 (202) 663-8000 James E. Joiner, P.C.
Charles W. Whitney Kevin C. Greene Hugh M. Davenport TROUTMAN, SANDERS, LOCKERMAN & ASHMORE 1400 Candler Building Atlanta, Georgia 30043 (404) 658-8000 Counsel for Applicants Dated:
October 23, 1986 :
n 00LKEILE USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~86 0CT 27 A10:35 BEFORE THE ATOMIC SAFETY AND LICENSING APPE C bNRD.
i I-nn, dCH In the Matter of
)
)
GEORGIA POWER COMPANY, et al.
)
Docket Nos. 50-424 (OL)
)
50-425 (OL)
(Vogtle Electric Generating Plant, )
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion to Strike the ' Appeal, Brief and Proposed Findings Concerning Li-censing Board Decisions' filed by Howard Deutsch and Motion to Disriss Appeal of Georgians Against Nuclear Energy," dated October 23, 1986, were served upon those persons on the attached Service List by deposit in the United States mail (postage pre-paid), or where indicated by an asterisk by hand delivery, this 23rd day of October, 1986.
P u
a David R.
Lewis Dated:
October 23, 1986
6 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
GEORGIA POWER COMPANY, et al.
)
Docket No. 50-424
)
50-425 (Vogtle Electric Generating Plant,
)
Units 1 and 2)
)
SERVICE LIST oGary J. Edles, Chairman
- Bernard M. Bordenick, Esquire Atomic Safety and Licensing Office of the Executive Appeal Board Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 o Christine N. Kohl Atomic Safety and Licensing Bradley Jones, Esquire Appeal Board Regional Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission 101 Marietta Street, Suite 3100 0 Howard A. Wilber Atlanta, GA 30303 Atomic Safety and Licensing Appeal Board
- Danny Feig U.S.' Nuclear Regulatory Commission 1130 Alta Avenue Washington, D.C.
20555 Atlanta, GA 30307 Morton B. Margulies, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Gustave A. Linenberger Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Oscar H.
Paris Docketing and Service Section l
Atomic Safety and Licensing Office of the Secretary i
Board U.S. Nuclear Regulatory l
U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C.
20555
- Carol Stangler 425 Euclid Terrace Atlanta, GA 30307
.