ML18081A817

Opposition to Public Advocate of State of Nj 791106 Request to Reopen Intervenors Coleman Contention 9.Appeal Is Proper Procedure If Intervenors Dissatisfied W/Aslb Initial Decision.Certificate of Svc Encl

ML18081A817
Person / Time
Site:	Salem
Issue date:	12/18/1979
From:	Wetterhahn M CONNER, MOORE & CORBER, Public Service Enterprise Group
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8001020075
Download: ML18081A817 (9)

Text

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I UNITED STATES OF AMERJ:CA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

PUBLIC SERVICE ELEcTRIC AND GAS . ) Docket No. 50-272 COMPANY, et al. ) (Proposed Issuance of*

) Amendment to Faci.lity (Sa.lem Nuclear Generating ) Operatinq License Station, Onit l) ) No. DPR-70)

LICENSEE'S RESPONSE TO "MOTION FOR RECONSIDERATION OF DISMJ:SSAL OF COLEMANS' CONTENTION NO. 9" On November 6, l979, the Public Advocate of the State of New Jersey, counsel for Mr. and Mrs. Alfred E. Coleman, Jr., intervenors in the captioned proceeding, moved to reopen reconsideration of their Contention 9 which had previously been dismissed by the Atomic Safety and Licensing Board as a result of a motion for summary disposition filed by the Licensee, Public Service Electric and Gas Company, et 1/

a l . - In the instant motion, the Public Advocate asserts that "it is patently evident that inadequate consideration has been given the storage of spent fuel at Salem No *. l at the*pools of other reactors." The Public Advocate asks that this motion be viewed in conjunction with the pending motion filed by the Colemans seeking to reopen Contention See the Atomic Safety and Licensing Board's' Order dated April 30, 1979.

' 't

- -* 13. As e e discussed below, Licens.ee opposes the motion for 2/

reconsideration of Contention 9.-

Two points should be made by way of introduction.

Counsel for the Col.emans has now filed .a number of motions over the past severa.l months which cover essentia.l.ly the same ground, chall.enginq the Atomic Sa£ety and Licensing Board's ruling on the contentions to be considered during the evidentia:ry phase of this proceeding. That order was issued some eight months ago. These pleadings are, in reality, merely argument appropriate, if at a.ll, for pro-posed findings of fact and conclusions of law. The litiga-tion before this Board should quickly be brought to an end and the procedures required by 10 C~F.R. §2.754 initiated.

I£ the Colemans, as represented by the Public Advocate, are sti.ll dissatisfied with the Board's Initial Decision in this matter, then appropriate appellate avenues exist. As a general matter, the arguments raised by the Public Advocate appear to arise from matters already adequately ventilated

_:y on the record.

_y To avoid undue repetition, Licensee incorporates by reference nLicensee's Response to Motion.for Recon-

.sideration of Colemans' Contention No. Thirteen,"

dated August 31, 1979; "Licensee's Response to Motion to Reopen Coleman's Contentions Two and Six for Receipt of Newly Discovered Evidence," dated Auqust 31, 1979; and nLicensee's Response to 'Supplemental Argument in Support of Motion for Reconsideration of Dismissal of Colemans' Contention Number Thirteen,'" dated Noveinber 13, 1979.

It is also.surprising that at this stage of the proceed-ing that the Public Advocate would seek to gloss over the distinction between the work product of the NRC (Ft. _jJ cont. on next page)

- .J -

The Atomic.afety and Licensing Appe. Boaz"d has re-*

peatedly stressed the- obligation of attorneys appearing before the Nuclear Regulatory Commiss.ion to be completely candid. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, U and 2B), ALAB-409, 5 NRC 1391, 1395-6 (1977); Public Service Company of Oklahoma (Black Fox Station, Units l and 2), ALAB-508, 8 NRC 559, 552. (l.978.) *.

§!!. also Louisiana Eower & Light Company* . (Waterford Steam Electric Station, Unit 3), ALAB-121, 6 AEC319, 320 (1973).

Previously, in this proceeding, counsel for the Colemans has been c:riti.cized by a member of the Boazd for taking material

' _y out of context. Even more recently, the Staff has noted "gross factual inaccuracies" in the azguments of counsel for the Colemans

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...1/ cont.

Staff and the decisional record before* this Licensing Board... On p. 2 of its motion, the Public Advocate states that "the NRC Staff evaluation of alternatives was essen-tially completed on or before January 15, 1979, when it

. issued its Safety Evaluation/Environmental Impact Ap-praisal* * * * * "and that "[o]bviously, no consideration whatsoever can have been given by the Staff to events

. which transpired after issuance of its January report. 11 Such an assertion is factually incorrect. Substantial testimony regar~ing alte::natives has been given by the Staff during the course Of the hearing. Moreover, in the

• • final analysis, it is the Board's review of the issues be-fore it, rather than the contents of any Staff document, which is of importance. ~'e.g., 10 C.F.R. §51.52(1) (3).

-1J Order dated April 30, 1979, Separate Opinion of Lester Kornblith, Jr., at 35 *

...2./ NRC Staff Response to Intervenor Colemans' Supplemental Argument in Support of Motion-for Reconsideration of Dis-missal of Colemans' Contention Number 13 dated November 19, 1979 at 6. See also "Licensee's Response -.to Supplemental Argument in Support of Motion for Reconsideration of Dis-

. missal of.colemans' Contention No. 13," dated November 13,

• 1979 at.3.

In the instant pleadinq, at the footnote on paqe l, the implication is left that the Licensee, as well as the Staff, made an express solicitation of a further submission by the Colemans regardinq additional argument in s~pport of the Colemans 1 motion regardinq Contention 13. In support of

• this. proposition, counsel for the Colemans cites p. 4, line 8 of Licensee's Response to Motion for Reconsideration of Colemans' Contention 13. Reference to the cited paqe and line shows that the only~ po.ssible submission

• suqqested relates to the affidavit of Robert Douqlas which was beinq submitted.tC the Board for incorporation in the record.

Thus, contJ:ary to the assertion of counsel for the Colemans, the Licensee is utilizinq no "disenqenuous [sic] argumentative tactic."

In his argument in support of his motion at paqe 5, counsel cites Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978),

as standinq. for the proposition that "[t]he motion should be granted as it is both timely and addressed to a significant safety and environmental issue." Reference to the cited Appeal Board decision indicates that the third element necessary for the granting of a motion to reopen the record, discussed in the same paragraph in the Wolf Creek decision, has been omitted by counsel. With reqard to the third test, the Appeal Board stated:

[. .*

Beyond that, it must be established that "a different result would have been reached initially had [the material submitted in support of the motion]. been considered.n Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-l),

ALAB-2.27 I 8 AEC 416 I 418 ( 1.97 4)

• Failure of the Colemans to even acknowledge this element falls far short of the candor required of attorneys. before the Nuclear Regulatory Commission. See 10 C.F.R. §2.713.

In any event, nothi.I?-g has been presented in the latest motion which would requir~ further.consideration of alter-*

natives. As already discussed in Licensee's Response to Motion for Reconsideration of Colemans' Contention No.

Thirteen dated August 31, 1.979, sufficient time was availa-ble during discovery to eXplore all the factors which the Public Advocate now seeks to raise. Moreover, contrary to the erroneous impression which is sought to be left by counsel for the Colemans, at the July 10-ll, 1979 evidentiary session, the parties were permitted to examine Licensee's witnesses with regard to reduction in the number of fuel elements to be discharged and other developments relevant to

_y the proceeding.

• • As previously mentioned, at most, this brief presents argument appropriate to a party's proposed findings of fact and conclusions of law; nothing has been presented which would require an additional evidentiary session or the admission of a new contention at this time. The Colemans

__§/ See, e.g., Tr *. 1107-14.

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have simply not met their burden of proof wi.th regard to the instant motion. 10 C.F.R. §2.732~

As a final matter, the Colemans' argument appearing on pp. 4-5 of the,ir motion is a ~ sequitur. On p. 4 it is stated that "[o]nJ.y the Colemans.have endeavored to fully explore. the feasibility of reliance upon the combined capacity of the Salem One and Two spent fuel pools to satisfy the storage needs of this utility II In the next sentence they argue that their "advocacy of this point is severely hampered if not rendered wholly illusory * *

• by the Board's April 1979 dismissal of its Contention dealing with use of other reactors' spent fuel pools." If they have been permitted to pursue this issue during the course of the proceeding, as they apparently concede and as the record will reflect they were, i t is not possible for them to claim their advocacy is "rendered wholly illusory." In any event, it was this Board's unanimous ruling that the Colemans had failed to present a material issue of fact to be heard in .

reply to the Licensee's motion for summary disposition. The Colemans had adequate opportunity for discovery and to respond to that motion. They were assisted by counsel and employed the services of technical consultants and still*

were unable to prevent dismissal of Contention 9.

For the above stated reasons, the instant motion for reconsideration should be denied.

Respect£ully submitted, CONNER, MOORE & CORBER Mark J. Wetterhahn Counsel for the Licensee December 18, 1979

~ITED. STATES OF AMERICA ,

NUCLEAR REGtnATORY COMMISSION e

~ __.,.--- .

Before the Atomic Safety and Licensing Board In the Matter of )

}

PUBLIC SERVICE ELECTRIC AND GAS ) Docket No. 50-272 COMPANY, et al. ) (Proposed Issuanc::e of

) Amendment to Facility (Salem Nuclear GeneJ:ating ) Operating License Station, Unit l} * )* No

• DPR-7 0)

CERTIFICATE OF SERVICE I hereby certify that copies of "Licensee's Response to 'Motion for Reconsideration of Dismissal of Colemans' contention No. 9,'" dated December 18, 1~79 in the Cc_Lpt~oned matter, have been served upon the following by deposit in the United States mail this 18th day of December, 1979:

Gary L. Milhollin, Esq. Chairman, Atomic Safety and Chairman, *Atomic Safety Licensing Board Panel and Licensing Board U.S. Nuclear Regulatory

.1815 Jefferson Street Commission

.Madison, Wisconsin 53711 Washington, D.C. 20555 MI:. Frederick J. Shon Janice :~roore, Esq.

Member, Atomic Safety and Office of the Executive Licensing Board Panel Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Collliili,ssion Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. James C. Lamb, III Richard Hluchan, Esq.

Member, Atomic Safety and Deputy Attorney General Licensing Board Panel Department of Law and

• 313 Woodhaven Road Public Safety Chapel Hill, N.C. 27514 Environmental Protection Section Chairman, Atomic Safety and 36 West State Street Licensing Appeal Board Panel Trenton, N.J. 08625 u.s. Nuclear Regulatory Commission Washington, o.c. 20555

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.Richard Fryling, Jr., Esq. Carl Valore, Jr., Esq.

Assistant General Solicitor Valore, McAllister, Aron Public Service Electric & Westmoreland

& Gas Company Mainland Professional Plaza 80 Park Place P. O. Box 175 Newark, N. J. 07101 Northfield, N. J. 08225 Keith Onsdorff, Esq. Office of the Secretary Assistant Deputy Public Advocate Docketing and Service Section Department of the Public Advocate U.S. Nuclear Regulatory Division. of Public Interest Commission Advocacy. Washington, D. c. 20555 Post Office Box 141 Trenton, N. J. 08601 June o. MacArtor, Esq.

Deputy Attorney General Sandra T. Ayres, Esq. Tatnall Building, P. o. Box 1401 Department of the Public.,Advocate Dover, Delaware 19901 520 East State Street Trenton, N. J. 08625 Mr. AJ.fJ:ed c. Coleman, Jr.

Mrs. Eleanor G. Coleman 35 "K" Drive Pennsville, New Jersey 08070

• Wetterhahn