ML19029A877

04/07/1979 Legal Correspondence Township of Lower Alloways Creek Objections to Prehearing Order and Requests for Revision of Order or Recertification

ML19029A877
Person / Time
Site:	Salem
Issue date:	04/07/1979
From:	Valore C Lower Alloways Creek Township, NJ, Valore, McAllister, Aron & Westmoreland
To:	Atomic Safety and Licensing Board Panel
References
Download: ML19029A877 (7)

Text

e UNITED STATES OF AMERICA e NUCLEAR REGULATORY COMMISSION Before the Atomic Safety anq Licensing Board In the Matter of Docket No. 50-272 PUBLIC SERVICE ELECTRIC & Proposed Issuance of GAS COMPANY Amendment to Facility Oper?ting License (Salem Nuclear Generating No. DPR-70 Station, Unit 1)

TOWNSHIP OF LOWER ALLOWAYS CREEK OBJECTIONS TO PREHEARING ORDER AND REQUESTS FOR REVISION OF ORDER OR CERTIFICATION The Township of Lower Alloways Creek as an Intervenor objects to that portion of the Order following the Prehearing Conference dated March 29, 1979 and docketed March 29 1 1979 and received by the Intervenor on April 2, 1979 ,which deals with the requirements that on April 25, 1979 ,each party wishing to conduct cross-examination shall file an outline in detail of the points to be pursued ,together with an estimate of the required time.

I. OBJECTION TO RULING (CFR 2.752(c)

A. The pretrial order dated March 29, 1979, provides:

"On April 25, 1979, each party or participating State wishing to conduct cross-examination shall file an outline in detail of the points to be pursued, together with an

• estimate of the required time."

B. On March 15, 1979, at the time of the prehearing conference, the Attorney for the Intervenor the Township of Lower Alloways Creek, made a p~orer objection to the foregoing procedure. The transcript at page 156, et seq.

~ ..

provides:

"Mr. Valon:~: I have a question, Mr. Chairman. I may not have understood clearly what you said.

You said seven days before the hearing each party seeking to cross-examine shall file an outline of the cross-examination.

Now, I assume that means we're to serve that also on the Licensee and the other paxties to the proceedings?

Mr. Milh.bllin: Of course. Everyone on the service list.

Mr. Va lore: Mr. Chairman, I don't profess to know every single rule in the Code of Federal Regulations.

Is there a rule on that subject permitting the Chairman to do that, or is that within your broad powers of the way you conduct your hearings?

Mr. Milhollin: That's within the broad powers of the way we conduct the hearing.

Mr. Valore: I would like to make a strenuous objection to the procedure. . it seems to me to vitiate and undermine the entire concept of cross-examination, if I ha~e to tell my adversary what my cross-examination is going to be.

Secondly, it certainly could preclude a spontaneity to be developed in the course of cross-examination where other mu.ttcrs muy be pursued."

c. From the foregoing it appears that the procedure outlined by the Ch airman requires: 1) disclosure of cross-examination in detail and 2) there will be limits placed on pursuing matters outside the outline of cross-examination at the time of the evidentiary hearing.

D. The powers of a presiding officer and the authority of a presiding officer of a proceedings appear to be covered by CFR 2.718 and 2.757. Those Rules provide as follows:

2.718(e) "regulate the course of the hearings and the conduct of the participants 2.718(f) "dispose of procedural requests or similar matters" 2.757(c) "take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination."

E. It is well established Nuclear Regulatory Commission Law that an Intervenor may build its case defensively on the basis of cross-examination. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2),

ALAB-137, 6AEC491, 504-05(1973); Accord, Commonwealth Edison Co. (Zion Station Units 1 and 2), ALAB-226, 8AEC381, 389 (1974);

See Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6AEC1003, 1018-19 (1973); In the Matter of Tennessee Valley Authority (Hartsville Nuclear Plant)

ALAB-463.

F. The Federal Administrative Procedure ~ct gives every party the right to conduct cross-examination as may be required for a full and true disclosure of the facts in a11~adjudication - type hearings. 5 use, §1006 (c).

G. The right of cross-examination in Administrative Proceedings is a right of fundamental importance as a requirement of due process of law and which is protected by the United States Constitution. Green v. McElroy, 360 US 474, 3 Led 2d 1377, 79 set 1400.

II. CERTIFICATION TO THE COMMISSION OR TO THE ATOMIC LICENSING APPEALS BOARD CFR 2.718 (i)

A. The Chairman has the power under the foregoing regulation i.e. CFR 2.718(i) to certify the objection raised by the Intervenor as to the limitations put in the Pretrial Order on cross-examinations ..

B. The Chairman should rule on the Intervenor's objection on or before April 20, 1979, in order to give the Intervenor adequate time to take appropriate action in respect to the requirement of filing an outline of cross-examination: on or before April 25, 1979. Alternatively, the question should be certified to the Commission or to the Atomic Licensing Appeals Board in which event it may be necessary to reschedule the ~videntiary hearing which has been scheduled pursuant to the Pretrial Order on May 2, 1979.

CONCLUSION

1. It would seem that CFR 2. 757 (c) gives adequate powers to the presiding officer to control cross-examination and that the filing of an outline is outside the scope of the regulations and contra to law. Accordingly, the Chairman should revise the Pret~ial Order entered on March 29, 1979, and relieve the parties of the obligation of filing an outline of-cross~examination on or before April 25, 1979.

2. Alternatively, the objection raised by the Intervenor should be certified to the Commission or the Atomic Licensing Appeals Board.

RESPECTFULLY SUBMITTED

. ARON &

Nuclear Counsel for the Intervenor The Township of Lower Alloways Creek April 7, 19 79

e..

e UNITED STJ\'l'ES OF /\MEIUCJ\ e NUCLEAR REGULATORY COMMISSION Before the Atomic Safety nnd Licensinsr Board In The Matter of DOCKET NO. STN-50-272 PUBLIC SERVICE ELECTRIC

& GAS CO.

(Salem Generating Station Unit 81)

CERTIFICATE OF SERVICE I hereby certify that copies of Intervenor's TOLAC's Objections to Prehearing Order and Requests for P.evision or Order or Certif icc.tion in the above captioned matter have been served upon at the Post this 7th A!,O , pee al Lega Couns TOWNSHIP OF ALLOWAYS CREEK Dated: April 7, 1979

Gary L. Milhollin, Esq. Richard Fryling, Jr., Esq.

Chairman, Atomic Safety Assistant General Solicitor

& Licensing Board Public Service Electric &

1815 Jefferson Street Gas Company Madison, Wisconsin, 53711 80 Park Place Newark, N.J., 07101 Glen O. Bright Member, Atomic Safety Keith Ansdorff, Esq~

& Licensing Board Assistant Deputy Public Advocate U.S. Nuclear Regulatory Commission Department of the Public Advocate Washington, D.C, 20555 Division of Public Interest Advocacy Dr. James C. Lamb, III P.O. Box 141 Member, Atomic Safety & Trenton, N.J., 08601 Licensing Board Panel 313 Woodhaven Road Sandra T. Ayres, Esq.

Chapel Hill, N.C. 27514 Department of the Public Advocate 520 East State Street Chairman, Atomic Safety and Trenton, N.J., 08625 Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Mr. Alfred C. Coleman, Jr.

Washington, D.C., 20555 Mrs. Eleanor G. Coleman 35 "K" Drive Chairman, Atomic Safety & Pennsville, N.J., 08070 Licensing Board Panel U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D.C., 20555 Docketing and Service Section U.S. Nuclear Regulatory Commissio:

Barry Smith, Esq. Washington, D.C., 20555 Office of the Executive Legal Direcbor U.S. Nuclear Regulatory Commission June D. MacArtor, Esq.

Washington, D.C., 20555 Deputy Attorney General Tatnall Building, P.O. Box 1401 Mark L. First, Esq. Dover, Delaware, 19901 Deputy Attorney General Department o~ Law & Public Safety Environmental Protection Section 36 West State Street Trenton, N.J., 08625 Mark J. Wetterhahn, Esq.

for Troy B. Conner, Jr., Esq.

1747 Pennsylvania Avenue, N.W.

Suite 1050 Washington, D.C., 20006