ML19211A132
| ML19211A132 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 11/13/1979 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912170072 | |
| Download: ML19211A132 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 11/13/79 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4
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In the Matter of
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SACRAMENTO MUNICIPAL UTILITY
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Docket No. 50-312 A
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RESPONSE OF NRC STAFF TO CEC'S " MOTION FOR RECONSIDERATION OF THE SCHEDULE FOR DISCOVERY AND HEARINGS" INTRODUCTION On October 24, 1979 the California Energy Commission (CEC) filed a " Motion for Reconsideration of the Schedule for Discovery and Hearings." The NRC Staff filed on November 8, 1979 on behalf of all parties to this proceed-ing a " Joint Response" to the portion of CEC's motion which dealt with scheduling concerns. As part of its motion CEC had also requested the Licensing Board to:
(1) " set forth the procedures which it wishes the Applicant and the NRC staff to follow in going forward on each of the Board's and CEC's issues" (p. 2),
(2) " establish procedures pursuant to which t6e Applicant and the NRC Staff shall carry the burden of going for-ward on the Board's and CEC's issues" (p. 3); and (3) render "any other guidance which the Board may consider appropriate for participants in this proceeding" (p. 2).
This pleading is filed in response to these requests.
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, DISCUSSIO!1 It is unclear to us why CEC has requested the Board to establish who will have the burden of going forward on CEC's issues, since the Board has already ruled on that question.
In its August 3, 1979 "Prehearing Conference Order" (p. 2) the Board (c) ordered that the burden of proof cn all contentions will be placed upon the licensee and the burden of going forward on contentions shall be placed upon the party making the contention.
Although the Board used the term " contentions" and the CEC (as an interested state under 10 C.F.R. 92.715(c)) has raised " issues," it is clear from the discussion at the prehearing conference that the Board intended its ruling 1
to apply to CEC, as well as to the 10 C.F.R. 62.714 intervenors.
Tr. 48-49. /
We believe the Board's allocation of the burden of going forward is appro-priate and fair. Certainly were CEC participating in this proceeding under
@2.714 there would be no question that it assumed the burden of going for-ward, either by direct evidence or cross-examination, as to its contentions.
Philadelohia Electric Co. (Limerick) ALAB-226, 8 AEC 381, 388-89 (1974);
1_/ Any question as to the reach of the Board's ruling is resolved by its discussion of the burden auestion at pp. 4-6 of its October 5, 1979
" Order Ruling on Scope and Contentions."
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. Maine Yankee Atomic Power Co. (Maine Yankee), ALAB-161, 6 AEC 1003, 1008, reconsid. den., ALAB-166, 6 AEC 1148 (1973), remanded on other grounds, CLI-74-2, 7 AEC 2, affirmed, ALAB-175, 7 AEC 62 (1974); Consumers Power Co.
(Midland), ALAB-123, 6 AEC 331, 345 (1973). Although Commission case law has not addressed the precise question of whether a 52.715(c) interested state has the burden of going forward with respect to issues it has raised, it has been established that an interested state "must observe the procedural requirements applicable to other participants."
Gulf States Utilities Co.
(River Bend), ALAB-444, 6 NRC 760, 768 (1977). See also Public Service Co.
of New Hampshire (Seabrook), CLI-77-25, 6 NRC 535, 537 n.1 (1977) and Project Management Corp. (Clinch River), ALAB-354, 4 NRC 383, 393 n. 14 (1976).
Thus, in order to raise independent issues of its own, an interested state must plead those issues with the same degree of detail and precision as would be required of a petitioner under 52.714. River Bend, suora and Clinch River, suora.
It logically follows, we believe, that an interested state has the burden of going forward on its issues.
The Board has not specifically addressed the question of the allocation of the burden of going forward with respect to Board questions. These questions arose as a result of the Board's reframing of certain issues which were raised by CEC, but inadequately so in the Board's view. Order Ruling on Scoce and Contentions, October 5, 1979, at 6.
Having assumed these issues as its own, it appears that the Board has relieved CEC of any unique burden of going forward with respect to them. Rather, the Board undoubtedly 1596 157
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expects the Licensee,- the Staff, and any other party having something to contribute on these questions to file testimony co them.
CONCLUSION For the reasons set forth above we conclude that:
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The Licensing Board correctly determined that CEC has the burden of going forward with respect to its issues.
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CEC does not have the unique burden of going forward with respect to the Board issues.
As to point 1, above, CEC's motion should be denied. As to point 2, we believe that clarification of the Board's order, along the lines we have argued, would be appropriate.
Respectfully submitted, N. M Stephe H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this 13th day of November, 1979.
-2/ This would also be consistent with the Board's ruling that the Licensee retains the ultimate burden of proof.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0rFISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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SACRAMENTO MUNICIPAL DTILITY
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Docket No. 50-312 DISTRICT
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Rancho Seco Nuclear Generating
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Station
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CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO CEC'S "M0 TION FOR RECONSIDERATION OF THE SCHEDULE FOR DISCOVERY AND HEARINGS," in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of November, 1979:
Michael L. Glaser, Esq., Chairman Gary Hursh, Esc.
1150 17th Street, N.W.
520 Capitol Mall Washington, D.C.
20036 Suite 700 Sacramento, California 95814
- Dr. Richard F. Cole Atomic Safety and Licensing Board Panel Mr. Richard D. Castro U.S. Nuclear Regulatory Comission 2231 K Street Washington, D.C.
20555 Sacramento, California 95816
- Mr. Frederick J. Shen James S. Reed, Esq.
Atomic Safety and Licensing Board Panel Michael H. Remy, Esq.
U.S. Nuclear Regulatory Commission Reed, Samuel & Remy Washington, D.C.
20555 717 K Street, Suite 4C5 Sacramento, California 95814 David S. Kaplan, Esq.
General Counsel Christopher Ellison, Esq.
Sacramento Municipal Utility District Dian Grueneich, Esq.
P. G.
Box 15530 California Energy Commissicn Sacramento, California 95813 1111 Howe Avenue Sacramento, California 95825 Timothy V. A. Dillon, Esq.
Suite 380 1850 K Street, N.U.
Washington, D.C.
200C6 1596 159
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- Atomic Safety and Licensing Mr. Michael R. Eaton Board Panel Energy Issues Coordinator U.S. Nuclear Regulatory Commission Sierra Club Legislative Office Washington, D.C.
20555 1107 9 Street, Room 1020 Sacramento, California 95814
- Atomic Safety and Licensing Appeal Board Panel Thomas A. Baxter, Esq.
U.S. Nuclear Regulatory Comission Shaw, Pittman, Potts & Trowbridge Washington, D.C.
20555 1800 M Street, N.W.
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Herbert H. Brown, Esq.
Lawrence Coe Lanpher, Esq.
Hill, Christopher and Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 L'l b:gY a
Stephfn H. Lewis Counsel for NRC Staff 1596 160