ML20010C978

Memorandum of Law in Response to Applicants' 810727 Ltr.All Parties in Proceeding Have Right to Present Rebuttal Evidence.Related Correspondence

ML20010C978
Person / Time
Site:	Susquehanna
Issue date:	08/10/1981
From:	Adler R PENNSYLVANIA, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20010C971	List: ML20010C970 ML20010C978 ML20010C981
References
NUDOCS 8108210326
Download: ML20010C978 (3)

Text

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PA 8/10/81

. EEMTED COBUEspoSDENCE co UNITED STATES OF NERICA y 0 NUCLEAR REGULATORY WbMISSION c

+1 BEFORE 11E A10fiIC SAFETf AND LICEbSING BOARE hs In the Fhtter of 5 0!%,

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ALLEGHU ELEC1RIC COOPERATIVE, Decket tbs. 50-387 J IUC. (Susquehanra Steam Electric . 50-383 Station, Units 1 and 2)  :

COM10! MEAL'IH OF PENNSYLVANIA'S FRYXW4DLM OF 1AW IN RESPONSE TO AFPLICAN15' IEITER OF JULY 27,1981 (REBUITAL 1ESTIMM)

During the July 23, 1981 Prehearing Confemice, counsel for the Applicants cited an Appeal Board ruling in the joint radon proceeding for tv.o propositions: (1) only the Applicant is entitled to rebuttal in NRC proceedings; and (2) rebuttal testinony nee'd not be submitted in advance in writing. Tr. 868-69 (Silberg). The Applicant followed up on this statement in its letter of July 27, 1981, citing Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), AIAB-566, 10 NRC 527 (1979).

1he Connumealth reads the Philadelphia Electric decision somewhat diffet ently from the Applicants, and feels compelled to respond. The Coimunwealth is aware that it is unusual for a Board to rule on evidentiary uutters in advance of a specific dispute. However, consideration of this issue is in the interest of both expedition and tairness to the parties. The intervenors Inve a right to know in advance whether their rebuttal testinuny will be considered, particularly in Light of their lhnited resources. The Applicants have a right to know in advance whether rebuttal testimony nust be prepared prior to the hearing.

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In the ioint radon case, a schedule was proposed for the filing of written testinony in three phases: (1) Applicants' testinony; (2) Intervemrs' testimony (approxinutely one nonth later); and (3) Applicants' rebuttal testinony. 10 NRC at 529. Obviously, if this I

schedule were edopted, there would be no need for separate intervenor rebuttal testintny, since the intervenors wuld have the benefit of the Applicants' testinony while preparing their direct testimony. Id. In the instant proceeding, all parties will file direct testimony simultaneously.

'1he intervenors in the radon case nevertheless rejected the three-phase schedule on the basis that the Applicants wuld have tw opportunities to present testimony. In this context, the Board explained that the l

l Applicants have a right to rebuttal t;ps,timony:

What sceningly had been overlooked was tilat ,

the applicants possess the ultimte burden of persuasion on the radon release issue . . .

Under familiar adjudicatory principles, parties saddled with that burden ty3ically

, proceed first and then have the rig 1t to rebut j the case presented by their adversaries.

t Id. (anphasis added). 'Ibe Board sinply noted that the Applicants lmd a i

I l right to rebuttal testimony; nowhere did they rule that only Applicants i

have such a right. Such a ruling would expressly contradict both the tRC Rules of Practice and the Administrative Procedure Act.* 'Ibe IR C Rules provide that: "Every party to a proceeding shall have the right to present such oral or documentary evidence and rebuttal evidence as l

l ruy be required for full and true disclosure of the facts." 10 C.F.R.

c It is clanentary, of course, that IEC Proceedings are governed by the provisions of the A.P.A. 42 U.S.C. 52231; Siegel v. Atomic Energy ConmissLou, 400 F.2d 778 (1968) .

at ~O S?.743(a) (o:phasis added). 'ihe A.P. A. provides that: "A party is entitled to present his case or defense.by oral or documentary evidence, to subnit rebuttal evidence, and to conduct such cross-examination as nny be required for a full and true disclosure of the facts." 5 U.S.C.

5556(d) (anphasis added). '1hus, all parties to this proceeding have a right to present rebuttal evidence.

With respect to the issue of notice, the Applicants indicated that they would do their best to serve written rebuttal testimony prior to the hearing. Tr. 872-74 (Silberg). 'Ihe Board indicated that it would ensure that all witnesses and parties have sufficient time to prepare for the hearing of rebuttal testinony. Tr. 872-73 (Chairnnn Gleason).

'lhe Coimonucalth agrees with this approach. It should be noted in this regard, however, that the Appeal Board in the radon case established a s

clear preference for the filing of rebuttal testimony prior to the hearing.

In particular, the Board wrote: "it appeared manifest to us that the intervenors would be unteriallyassisted in their trial preparation if the substance of the applicants and the staff rejoinder to their evidence becione l<nown to them well before the hearing comnenced (instead of, for the first time, after the intervenors' witnesses had concluded their oral testimony) ." 10 NRC at 529. The Board later repeated that "we think it virtually axionntic that any party to an adjudicatory proceeding (as well as the expeditious process of the hearing itrelf) will be advantaged if as nuch as possible of its adversaries' evidence is di.sclosed in advance." Id. at 529-30. 'Ihis hearing should be governed by the above-quoted principles.

Respectfully cubmitted,

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ROBERT W. ADER /

Assistant Counsel Cotmonwealth of Pennsylvania