ML19326A889

Reply by Toledo Edison Co & Cleveland Electric Illuminating Co to Exceptions to 720519 Initial Decision Filed by Coalition for Safe Nuclear Power & Aec.Decision & Exceptions Should Be Denied.Certificate of Svc Encl

ML19326A889
Person / Time
Site:	Davis Besse
Issue date:	05/26/1972
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML19326A883	List: ML19326A882 ML19326A889
References
NUDOCS 8003050785
Download: ML19326A889 (6)

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(j UHITED STATES OF A:.: ERICA ATOMIC E::ERGY CO:CIISSIO?i Before Atomic Safety and Licensing Appeal Board In the Matter of THE TOLEDO EDISON COMPAUY and Docket I!o. 50-346 THE CLEVELAUD ELECTRIC ILLUMIIIATING COMPA 'Y (Davis-Besse Nuclear Po.:er Station)

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. - cC in f f' A. Exceptions by the Regulatory Staff

1. The Regulatory Staff's exceptions to the Initial Decision issued on May 19, 1972, are based upon the Licensing Board's ruling that no evidence v:ould be admitted concerning environmental effects of plant operation. The Staff was con-cerned that the record did not include such evidence because, "Should the full NEPA cost-benefit balance be cicse, it is possible that the renoval of one cost factor from the equation would indicate a different decision" AEC Regulatory Staff Brief in Support of Exceptions, p. 3 8008050 N I

4 The Staff's fears have already been set to rest by the Initia]

Decision and their exceptions shculd therefore be denied.

2. The Licensing Board in its Initial Decision has assumed that the cost-benefit balance might be close by assuming "every conceivable environmental finding," including those " unfavorable to plant operation." Initial Decision, para. 7 Hotwithstanding these assumptions, the Licensing Board found that the ecst of abandonment was already so sub-stantial "that a reasonable or prudent can would conclude that these irretrievable costs [the incremental costs of continuing construction during the UEFA review period) would not affect in any significant v.anner the cventual decisions ree.ched in the NEPA review. " Initial Decisicn, para. 66. In addition, the wide range of alternatives available to further reduce en-vironmental impacts, the Licensing Board found, assures that abandonment cannot be considered likely. Initial Decision, paras. 36-46.

3 Adoption by the Appeal Board of the three modifications suggested in Exceptions to Initial Decision Submitted by The Toledo Edison Ccmpany and The Cleveland Elec-tric Illuminating Company, filed May 2h, 1972, would furthe-quiet the concerns of the Reguls tory Staff. Permittees' offer to waive consideration of.the incremental investment resulting from construction during the UEFA review period in the cost-benefit evaluation to be developed in the full NEPA review,

the Davis-Besse facility's ability to meet the numerical dose limits of proposed Appendix I to 10 CFR Part 50 without any additional equipment, and the certification of the Ohio Water Pollution Control Board that there is reasonable assurance that the Davis-Besse facility will ccmply with applicable water quality standards, all add support to the conclusion that abandonment is an unlikely event.

4. One final point must be made. The Court of Appeals has expressed concern that events prior to the con-pletion of the final UEFA review should not affect the out-come of that review. The Staff's desire for "some preliminary estimate of the full liEPA cost-benefit balance," Brief, p . 4, if granted, could well affect the final outcome of the UEFA review more than would the additional investment to be made in the Davis-Besse plant during the UEPA review period.

B. Exceptions by Coalition for Safe Huclear Power 5 In a filing dated May 23, 1972, the Coalition for Safe Nuclear Power filed exceptions to the Initial De-cision. These exceptions raise basically four issues. Uone have any merit.

a) The foreclosure of inquiry into the alternative of plant abandonment by ex-cluding testimony relating to operational ,

effects (Exceptions 1, 3);

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4 b) Participation of the Regulatory Staff as a party to the suspension hearing (Ex-ceptions 2, 4(3));

c) The Licensing Board's alleged failure to allow the Coalition to cross-examine each witness on the completion of direct examination (Exception 4(1)); and d) The alleged denial "on numerous oc-casions" that Permittees' witnesses had prepared testimony which they had pre-viously sworn was theirs (Exception 4(2)).

6. Coalition's argument that ccnsideration of the likelihood of abandonment of the Davis-Eesse project was fore-closed by the Licensing Board's exclusion of evidence relating to plant operation is answered by Permittees' reply to the Regulatory Staff's exceptions. See paras, 1-4 above.

7 The Coalition's claim that it was denied due process by the participation of the Regulatory Staff in the hearing is ludicrous. Initially, the Coalition's failure to cite anything more specific than the Fifth Amendment should be noted. The Commission's Rules of Practice suggest that such legal contentions should at least be supported by a brief. 10 CFR 92.762. The separation of functions require-ments for adjudicatory hearings are carefully spelled out in

the Administrative Procedure Act, 5 U.S.C. 6554(d). Clearly, participation by the Regulatory Staff as a party to the hear-ing is in accord with these rules.

8. The contention that the Coalition was denied a fair hearing because it allegedly could not cross-examine each witness as his direct testimony was completed is also frivolous.

An administrative hearing is not an 18th Century common law maze designed to bury substance under form or to trap the anwary in a web of procedural snares. Instead, it should be a forum for eliciting a record of reliable, probative and substantial evi-dence. The Coalition was given full and adequate opportunity to cross-examine all of the Permittees' and all of the Regula-tory Staff's uitnesses. There has been no showing that it was denied a fair hearing and the exception fails to "[ include]

the citation of authorities in support thereof," 10 CFR $2 762(a).

9 The Coalition's final allegation, that Pe rmittees '

witnesses on " numerous occasions" denied that they had prepared ,

testimony uhich they had previously sworn was theirs, is equally frivolous. The Coalition, it should be noted, neglected to supply any references to these " numerous occasions," despite the requirement of 10 CFR @2 762(a) that excepticns "shall precisely specify the portions of the record relied upon."

Permittees' prepared testimony was sponsored into evidence by four witnesses who stated which of its sections they were

primarily responsible for. Tr. 52-53 one of these witnesses relied on information supplied to them by others. This ob-jection in and of itself would be merely groundless. It be-comes preposterous in view of the fact that these other per-sons were present in the hearing room, were identified, and were available for cross-examination. See e.g. Tr. 60, 210, 224. The testimony was obviously a composite document. Wit-nesses were present to testify to every statement it contained.

The Coalition obviously suffered no prejudice.

Respectfully submitted,

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By L ' ^- k i . i :.' . U : F no v.n s e x o rn n ~ . ,

JaIy b[ d555'e$k~ 'l Counsel for The Toledo Edison Company and The Cleveland Electric Illuminating Company Dated: May 26, 1972

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I hereby certify that copies of the Reply b;. The Toledo Edison Company and The Clevelsnd Electric Illuminating Company to Exceptions to Initial Decisicn Filed by Coalition for Safe Euclear Pcwer end by the R3;ulatcry Staff ':ere served on the following, by deposit in the United States mail, this 26th day of May, 1972:

Algie A . Wells, Esq., Chairman Secretary (20)

Atomic Safety and Licensing Appeal U. S. Atomic Energy Commission Board Washington, D. C. 205h5 U. S. Atomic Energ:. Ccesission Attn: Chief, Public Proceedings Washington, D. C. 205h5 Branch Dr. John H. Buck, Vice Chairmen Jerome Garfinkel, Esq., Chairman Atomic Safety and Licensing Appeal Atcmic Safety and Licensing Board Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission Washington, D. C. 20545 Washington, D. C. 20545 Dr. John R. Lyman Dr. Laurence -Qu9 rles Department of Environmental Dean of the St.nool of Engineering Sc iences and Applied Science The University of Horth Carolina The University of Virginia Chapel Hill, north Carolina 2751h Charlottesville, Virginia Dr. Emmeth A . Luebke Nathaniel H. Goodrich, Esq. 610 Foxen Drive Chairman Santa Earbara, California 93105 Atomic Safety & Licensing Board Panel Atomic Safety and Licensing U. S. Atomic Energy Cc mission Board Panel Washington, D. C. 205h5 . .

U. S. Atomic Enerzy -Commission Washington, D. C. 20545

Martin Malsch, Esq. (c) Jerome S. Kalur, Esq.

Office of General' Counsel Jamison, Ulrich, Burkhalter U. S. Atomic Energy Cornission & Hesser Washington, D. C. 20545 1425 ::stional city Bank Building Cleveland, Ohio 4411h SHAW, PITTMAN, POTTS & TROWBRIDGE I,

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