ML19329D445

Motion to Strike Issue 8.Certificate of Svc Encl

ML19329D445
Person / Time
Site:	Davis Besse
Issue date:	07/16/1973
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:
Shared Package
ML19329D442	List: ML19329D441 ML19329D444 ML19329D445 ML19329D446
References
NUDOCS 8003061065
Download: ML19329D445 (5)

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I July 16, 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION .-

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Before the Atomic Safety and Licensing Board /

In the Matter of )

)

THE TOLEDO EDISON COMPANY )

and THE CLEVELAND ELECTRIC ) Docket No. 50-346 ILLUMINATING COMPANY )

)

(Davis-Besse Nuclear Power )

Station) )

MOTION TO STRIKE ISSUE 8

1. Applicants hereby move that the Licensing Board strike Issue 8 on the ground that the issue, a's defined by Intervenor in its testimony, has already been litigated by Intervenor with respect to the Davis-Besse f acility.

2. Issue 8 as framed in the Licensing Board's Special Prehearing Conference Order of May 31, 1973, alleged that the total effect of all effluents from the Davis-Besse facility (either alone or in combination with other pollutants) will endanger fish, wildlife, spawning grounds , aquatic biota, their habitat and supporting ecosystem, recreational aspects and water supplies. How-ever, the testimony submitted in support of this contention dealt basically with a purported reduction in fish populat-ion due to-radiation. Because Intervenor has the burden 800806106 5-

of going forward with evidence to support its contentions, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, RAI-73-5 at 345 (May 18, 19 73) , the failure to present testimony on aspects of Issue 8 other than radiation effects on fish, limits the issue to the allegation that radioactive effluents from the Davis-Besse facility will be harmful to fish.

3. Intervenor has already litigated the question of whether the radioactive releases during the operaticn of the Davis-Besse plant will be harmful to fish. At the hearings held during July 1972, with respect to the continuation of construction of the Davis-Besse facility pending completion of the AEC's NEPA review, Intervenor cross-examined Dr. James E. Martin of the Environmental Protection Agency and Dr. Morton I. Goldman of NUS Corporation on the effects which radioactive effluents would have on fish. See Testi-many of Dr. Martin (Tr. 2912, 2938) (Man is the species most sensitive to radiation; if levels of radiation are low enough to protect man, fish will also be protected) ; Testi-mony of Dr. Goldman (Tr. 2992-2999, 3016, 3021-23) (Man is the _pecies most sensitive to radiation; the levels of radiation to be discharged from the Davis-Besse facility will not harm fish) . Dr. Norman Frigerio of Argonne National Laboratory also testified that man is the most radiosensitive species and that no damage to any organisms would result from the radioactive discharges from the Davis-Besse facility.

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(Tr. 3086, 3141-42). Based upon this testimony the Licensing' Board concluded that' man is the biological entity most sensitive to radiation and therefore that an installation designed to operate without significant harm to man will operate also without harm to fish or migratory birds.

Initial Decision, para. 17 (July 9,1972) (emphasis added) .

4. On reviewing this Initial Decision, the Atomic

' Safety and Licensing Board found that uncontroverted expert testimony clearly supported the Licensing Board's conclusion. ALAB-59, WASH-1218 (Supp.1) , 455 at 457 (July 13, 1972).

5. Thus, Issue 8, as limited by Intervenor's evidence, has already "been litigated and decided in the prior proceed-ings involving the Davis-Besse facility". Memorandum and Order of the Atomic Safety and Licensing Board, p.5 (July 13,

-1973) (operating license phase) . It should therefore be stricken on the grounds of res judicata. Intervenor has had the opportunity to litigate the issue of harm to fish from the J radioactive' releases of the Davis-Besse facility. To assure that the administrative process is fair, orderly and efficient, Intervenor should not be permitted' another ' bite of the apple" .

Respectfully submitted, SHAW, PITTMAN, POTTS. & TROWBRIDGE (I k,l d r BY ('[NA

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41 Gprald/ Charnof f -

Jay / E.f Silberg Counsel for Applicants DATED: July _16, 1973 l

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July 16, 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION

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

)

-THE TOLEDO EDISON COMPANY )

and THE CLEVELAND ELECTRIC ) Docket No. 50-346 ILLUMINATIMG COMPANY )

)

'(Davis-Besse Nuclear Power )

Station) )

CERTIFICATE OF SERVICE -

I hereby certify that copies of " Applicants' Motion to Strike Testimony of Dr. Ernest Sternglass" and

- " Motion to Strike Issue 8" have been served according to the attached Service List this 16th day of July, 1973.

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/\U~1 A, 'EL N Jay E. Silberg /

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4I SERVICE LIST By Hand Delivery By Deposit in U.S. Mail Mr. Frank W. Karas , Dr. Cadet II. Hand, Jr.

,  ;' Chief,_Public Proceedings Bodega Marine Laboratories Branch, University of California Office of the' Secretary P.O.-Box'247 U.S. Atomic Energy Commission Bodega Bay, California 94923 Washington, D.C. 20545

.Dr. Harry Foreman Atomic Safety and Licensing Center for Population Studies Appeal Board University of Minnesota U.S.' Atomic Energy Commission Minneapolis, Minnesota 55455 Washington, D.C. 20545 Atomic Safety and Licensing Board Panel U.S. Atomic Energy Commission Washington, D.C. 20545 Francis X. Davis, Esq.

Office of General Counsel U.S. Atomic Energy Commission

~ Washington, D.C. 20545 John B. Farmakides, Esq.

Atomic Safety and Licensing -

Board

- U.S. Atomic Energy Commission Washington, D.C. 20545 Mr. Fredcrick J. Shon Atomic Safety and Licensing Board U.S. Atomic Energy Commission Washington,.D.C. 20545 Russell Z. Baron, Esq.

Brannon, Ticktin, Baron &

Mancini 930 Keith Building Cleveland, Ohio 44115 Joseph F. Tubridy, Esq.

Atomic Safety and Licensing

' Board

-U.S.. Atomic Encrgy ' Commission

. Washington, D.C. 20545 V W e