ML20076K012
| ML20076K012 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 06/30/1983 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8307070225 | |
| Download: ML20076K012 (4) | |
Text
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NUCLEAR REGULATORY COMNISSION neeg Q
Q' t: a Before the Atomic Safety and L_ic_ensine drd JUL 61983 > 7'.
In the Matter of
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c, CLEVELAND ELECTRIC. ILLUMINATING
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Docket.Nos.
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'A COMPANY, Et Al.
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(Operating Lice a
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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MOTION TO STRIKE PORTIONS OF APPLICANTS
ANSWER IN SUPPORT OF NRC STAFF MOTION
.FOR
SUMMARY
DISPOSITION OF ISSUE #13 On June 27, 1983, Applicants filed an answer supporting the NRC Staff's motion for summary disposition of Issue #13, portions of which were devoted to argumentative replies to the responses to the Staff's motion filed by intervenors Ohio Citizens for Responsible Energy ( " OCRE " )
and Sunflower Alliance, et al.
OCRE requests the Licensing Board to strike those portions of Applicants' answer, as they constitute an impermissible reply brief to responses filed by parties opposing summary disposition.
The portions referred to consist of footnote 1, at pp. 2-3 of Applicants' answer, which replies to the brief filed by Sunflower Alliance, and the latter half of Applicants' an'swe r, from the second paragraph of.p. 5 through p. 10, which replies to the response filed by OCRE on June 23.
OCRE has no objection to the remainder
'l of Applicants'* brief, including the affidavits, as these portions of Applicants' filing are sanctioned by the t
Commission's regulations.
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10 CFR 2.749 (a) allows any party to file an answer supporting or opposing a motien for summary disposition.
A'n opposing party may respond to any new facts or arguments presented in any statement supporting summary disposition No further within 10 days of service of such a statement.
supporting statements or responses thereto are permitted.
10 CFR 2.749 does not give a party supporting summary disposition the right to reply to answers filed by opponents of summary disposition.
Rather, the regulation clearly states.that parties are to support or oppose the motion for summary disposition.
Only opposing parties are given "the last word."
Parties supporting summary disposition get only one chance to answer, and that answer is to support the motion, not to refute the filings of opponents.
These provicions are consistent with legal precedent placing the burden of proof upon the movant for summary disposition.
See Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741 (1977); see also the numerous cases in the courts, e.g.,
Adickes v. S.H. Kress & Co.,
398 US 144 (1970); Doff v.
Brunswick Corp., 372 F2d 801; Bloomgarden v. Coyer, 479 F2d 201.
It is the opponent of summary disposition, not its supporters, who is given the benefit of the doubt.
Up until 3 years ago, parties supporting summary disposition were not even permitted to file supporting answers under the Commission's rules of practice.
One Licensing Board refused to consider such a filing (see Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1),
LDP-79-14, 9 NRC 557 (1979)), made before 10 CFR 2.749 was amended to specifically permit supporting answers to motions for summary disposition (45 FR 66919, 1980).
Applicants have taken unfair advantage of the fact that OCRE and Sunflower have filed responses opposing I
summary disposition of Issue #13 earlier than was necessary.
This has prejudiced intervenors, in that Applicants have filed an impermissible, "last word" reply brief to their responses.
OCRE therefore urges the Board to strike.the portions of Applicants' answer which reply to intervenors' responses, and in the future strictly limit the scope of answers filed in support of a motion for summary disposition to f acts and argument supporting the motion..and not refuting 1/
replies made by opposing parties!-
Respectfully submitted, V
Y u
Susan L.
Hiatt OCRE Representative 8275 Munson Rd.
Mentor, OH 44060 (216) 255-3158 1/
As an alternative relief in this instance, the Board
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could allow the intervenors to file reply briefs refuting all facts and arguments presented by Applicants, regardless of whether they could be considered "new".
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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing kere e ved*D #' Dgo
!a by deposit in the U.S. Mail, postage prepaid, firs't c ss,g$v we this.S Y day of June, 1983, to those on the servic
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list below.
MW susan L.
Hiatt
. SERVICE LIST Peter B. Bloch, Chairman
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Atomic Safety & Licensing Board Terry Lodge, Esq.
U.S. Nuclsar Regulatory Comm'n 824 National Bank Bldg.
Washington, D.C.
20555-Toledo, OH 43604 Dr. Jerry R. Kline Atenic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Mr. Glenn O. Bright Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Docketing & Service Section Offic'e of the Secretary U.S. Nuclear Regulatory Comm'n Washington, D.C.
20555 James M. Cutchin IV Esq.
Office of the Exec,utiv,e Legal Director U.S. Nuclear Regulatory Comm'n Jay Silberg, Esq.
1800 M Street. N.W.
20036 Washington, D.C.:
4 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear hegulatory Commission Washington, D. C.
'405S5
.