ML20037A484
| ML20037A484 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 10/23/1973 |
| From: | Davis F US ATOMIC ENERGY COMMISSION (AEC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8003050707 | |
| Download: ML20037A484 (8) | |
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Ut!!TED STATES OF A:tERICA ATO:11C EiERGY C0FJilSSIO(
10/23/73 Cefore tna Atenic Safety and Licensino Anne,1 Board e
In the : tatter of
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THE TOLEU0 EDIS0!! CC' IPA'Y and
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Tl!E CLEVELA:0 ELECTRIC ILLU:1!!!ATIiG
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Doci;ct flo. 50-346 CO?,PA*iY
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(Davis-Besse fluclear Power Station)
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AEC REGULATO:tY STAFF'S DRIEF I:1 OPPOSITIO:1 TO APPLICA::TS' EY.CEPTIO:IS TO THE IllITIAL 4
DECISIO:: ISSUED SEPTE:'.3ER 13.1973
,I!;TRODUCTIO:!
On September 13, 1973, the Atcmic Safety and Licensing Ceard (Licensing Board) which had been established in the captiened proceeding issued an Initial-Decision which authorized the Director of Regulation to centinue in effect
- Ccnstructica Permit ilo. CPPR-80, and to anend that permit in accord;nce with the contents of the Initial Dccision.
On Septceber 20, 1973, tha Toledo Edisen Ccmpany and the Cleveland Electric Illuminating Ccapany (Applicants) filed two numbered exceptions to that Initial Decision with the Atcmic Safety and Licensing Appeal Scard (Acpeal Board), pursuant to 10 CFR S 2.762(a).
There were no other excepticas to the Initial Decision. On Octeber 1,1973, the Apnlice.nts submitted a brief to the Appeal Board in support of the first '
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numbered exception.
Pursuant to 10 CFR 52.762(b), the AEC regu-latory staff (staff) herewith submits its brief in opposition to the remaining exception.
Exception flumber One reads:
"The Licensing Board'*; ruling [Tr. 3398, Initial Decision paragraph 13], denying Applicants' July 13, 1973 motion to strike Issues 4, 5, 6 and 7 on the ground that the Coali-tion for Safe Electric Power (the Coalition), intervenor in this procacding, had failed to meet its burden of going for-ward on these issues.and had failed to make a prin'a facie t
case, is erroneous as a matter of law."
DISCUSSIO:!
Althcugh Applicants' brief describes its motion and the ruling thereon, it does not indicate the sequence of actions which bear upon that motion.
On July 11, 1973, the Coalition filed written proposed testimony on a number of contentions, including testimony on Issues 6 1/On September 20, 1973, the Applicants also filed a " Motion for Partial Reconsideration of Initial Decision" with the Licensing Board which dealt with the same matter that was addressed in their second numbered exception.
By a Memorandum and Order dated Septem-ber 21, the Licensing Board denied that Motion.
In their Octoaer 1, 1973 brief, the Applicants witndrew their second numbered exception to the Initial Decision after " consideration of the Septem er 21 Memorandum and Order".
This brief, therefore, does not address that exception.
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. and 7; however, it submitted no such testimony addressed to Issues 4 3 rid 5.
On July 13 and 16, the Applicant filed a series of r.otions including:
(a) a cotien to strike t:sticony on Issues 6, 7 and 8; (b) a cotion to ttrike Issues 4, 5, 6, 7 and 8; and (c) a cotion for su:. mary disposition-as to Issues 2,-4, 6 and 7.
At the evid:ntiary scssion on July 24, the Licensing Board granted the motion for su=ary dispssitica of Issues 4 and 7 (Tr. 235). On July 25, the Coard granted Applicants' toticr. tc strike the propose,d testicrny as it related to Issuas 6 and 7 (Tr. 339-S).
i!ith rascact to Issues 4 and 7, the Applicants' exceptions to the denial of their l'otion to Strike is not well taken.
The Liccasing Board cranted the Applicants' Motion for Su=aary Disposition in their favor in regard to Issues 4 and 7, and thus removed them frca the area of contest in the administrative proceeding.
[Tr. 235, 339-B and 340]. Therefore, since these issues ucre no 1cngar in centention, the !!otion to Strike these contentiens was then moot.
'4ith respect to Issue 5 (uhich dealt with possible ct=alative effects on Lake Eric of effluents frcr.1 other nucicar reactors), the Coard considered the Coalition's failure to offer direct testicony as crdinarily sufficient grounds to grant the motion to strike (Tr. 339-B); hcuever, the
4-Licensing Doard detemined that with re: pact to this issue it would permit y the Coaliticn to make its carc en the basis of cross-cxamination, but proviced tha.t it uas required to " advice the Board of th: intended purposei of the crc:2-examination and tihat srecifically t':e Intervenor will u.:cu bj it."
(Tr. 339-B tnrcugd 340.)
Tha' Beard imposed a similar re:;uirc ant:
uith respect to Issue G-(uMch dealt with alleged increases in_ radiocctive.
effluents as nuclear pccar plants ace) as to unich the Botrd had strichan the Coalition's' propated. testi=r:: cs irralevant (Tr. '340).
Although di: mis:al of c:nt=ti ns ray b2 prr.per uaerc an intervence fail: toc =: fon crd with dir.:ct. niidence to support his 2/
challenge to regulatory recuirannts.
cr uhore he raices certainc
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affirmative assertiens,~ such is not the case-here.
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~ 10 CFR 52.750 (c) provides that. encent under the circucstances tharcin describ:d, "any rule er rt;ulatica of tha Cc aission...inud in its progrc for the li cencir,a cad rayuintion...:.bli not be Lutject to attack by 'eny of-discovery, e cof, accum:::, or c:har
- er.ns in enV. adjudir.tcry orc ceding in ;civinn initial.' lice.31nn....'
SL ::ctica (c) preeIUs t%t, unicss the C2titienine p.tre/ nits mda a crFa Pcio sncsint en ti.e natter as previud :asrain. "no evid:mcc c. :
.. rc. nvad on t M natter no discovery crc:s-cr. ncatien, cr crn>nant directed to tc.a rattar s'ill oc p raitted, cnd the crariding efficer may r;ot further c:nsider the matter."
3/S.e. c.g. C;.scrers Pc. ar Cc~nany '(:iidland Plent, Units 1 cnd 2), ALAP-123, PAI-73-5, 331 b:cy. Ic, dil).
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In the particular circe?. stances of this case, for Issues 5 and 6 uhich challence the adaquacy of clements.of the Applicants' ~ direct case, we believe that the Licensing Board's requirement that the Coalition make a proffer of evidence.to be adduced by cross-exmaination which :ould esise an issae of fact germane _to the proceeding, was properly within the Coard's discretion and appropriately censiders the burden of going 4/
forward addressed in both the ALAS-123 and ALAS-137.-
Chethar,ir, fact,. the proffer uss sufficient to defcat the motions ~ for 'sunnary I
cisposition and the notion to strike, was not raised by_ Applicants' brief on its exception, and that point is-tharefore not addressed herain.
COMCLUSICM Because the Applicants een their motion to have Issues 4 and 7 dismissed from the proceeding, and because the Coalition was required to proffer
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evidence to the satisfaction of the Licensing Board that its cross-examination would disclose the existence of a material fact germane to the proceeding, the regulatory staff feels that exception number 1 of the Applicants is not well founded.
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!!isconsin Electric Pn er Caintnv (Point 3each Muclear Power Plant, Unit 2), 6L o-iN
.wd,3 ~, G I (July 17,1973).
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For the foregoing reasons, the staff belicycs that the-Applicants' 4
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Respectfully submitted,
.m p'.n <.<. 3 '-
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Francis' X. Davis'
. Counsel for AEC Regulatory Staff-1
- Dated at Bethesda,-l!aryland this 23rdLday of 0 teber, 1973.
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- I UNITED STATES OF' AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Appeal Board' In the Matter of
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TOLEDO EDISON COMPANY AND THE.
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CLEVELAND ELECTRIC ILLUMINATING
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Docket No. 50-346 COMPANY
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(Davis-Besse Nuclear Power Station)
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CERTIFIC/,TE OF SERVICE I hereby certify that copin of "A.E.C. Regulatory Staff's Proposed Transcript.-
. Corrections," dated August 28,;;?73, in the captioned raatter,1have been served on the following by deposit in the United States mail, first class or air mail, this 28th day of August,1973:
John B. Farmakides, Esq., Chairman Dr. Ilarry Foreman.;Diiector Atomic Safety and-Licensing Center for Population Studies Board Panel University of Minnes(.,ta U.S. Atomic Energy Commission
' Minneapolis, Minnesota ' 55455 Washington, D.C.
20545 Ms. Evelyn Stebbins', Chairman 1 Dr. Cadet H.- Hand, Jr., Director Coalition for Safe Electric Power Bodega Marine Laboratory 705 Elmwood Road--
University of California Rocky River, Ohio ~44116 e
P.O. Box 247 Bodega Bay, California 94923 Gerald Charuoff, Esq.
l Shaw, Pittman, Potts & Trowbridge Mr. Frederick J. Shon 91017th Street, N.W.
Atomic Safety and Licensing Washington, D.C.
20006' Board Panel U.S. Atomic Energy Commission Atomic Safety and Licensing Washington, D.C.
20545 Appea! Board U.S. Atomic Energy Commission Joseph F. Tubridy, Esq.
Washington, D.C.
20545 4100 Cathedral Avenue, N.W 2 Washington, D.C. 20016 Atomic Safety and Licensing
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Board Panel-U.S. Atomic Enc.cgy_Commissien -
Washington,_ D.'C. ' 20545 :
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Alan S. Rosenthal, Esq., Cheirman.
Mr. Frank-W. Karas -
Atomic Safety and Licensing -
' Chief, Public Proceedings Staff appeal Board Office of the Secretary cf the U.S. Atomic Energy Commission:-
Commission-J Washington, D.C. - 20545'
' U.S. Atomic Energy Commission Washington, D.C.
20545-Dr. John H. Buck
' Atomic Safety and Licensing..
Russell Z. Baron Esq.
Appeal Board:
Brannon, Ticktin, Baron & Mr.ncini.
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.U.S. Atomic Energy Commission 930 h.,th Building Washington, D.C.
20545-Cleveland, Ohio. 4411a.
anence R. duamls '
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Donald H. Hauser, Esq.
RSD 4' Corporate Solicitor.
~ Box 174 The Cleveland Electric Charlottesville, Virginia 22901~
llluminat:.ng Company
- P.O. Box 5000 '
- l Cleveland, Ohio 44101 O.
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5'rancis X. Davis Counsel for' AEC Regulatory Staff Y
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