ML20099C252

Response to Applicant 850226 Answer to Ohio Citizens for Responsible Energy 850211 Motion for Appointment of Gd Eley as Witness on Issue 16 Re Tdi Diesel Generator Reliability. Svc List Encl.Related Correspondence

ML20099C252
Person / Time
Site:	Perry
Issue date:	03/04/1985
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20099C238	List: ML20099C235 ML20099C252
References
OL, NUDOCS 8503110268
Download: ML20099C252 (7)

Text

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4 March 4,

1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Motter or

)

1

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THE CLEVELAND ELECTRIC

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Docket Nos. 50-440 OL ILLUMINATING CO. ET AL.

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50-441 OL

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(Perry Nuclear Power Plant,

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i Units i and 2)

)

2 OCRE RESPONSE TO APPLICANT 5' ANSWER TO OCRE MOTION FOR THE APPOINTMENT OF BOARD WITNE59 Intervenor Ohio Citizens for Responsible Energy ('OCRE')

s hereby responds to the new orguments and cases cited by Applicants in their Answer to OCPE's Motion seeking the oppointment of Mr.' George Dennis Eley as the Board's witness on Issue #16, on Tronsbmerico Delaval diesel 9enerator reliability.

Applicants cite Metropoliton Edison Co. (Three Mile Island Nuclear Storion, Unit 1), ALAB-772, 19 NRC 1193, 1247 (1984) os

. extending the APPeol Board's Summer decision, ALAB-663, to witnesses sought by on intervenor and not just to a licensing 9

board's suo sponte oPPointment of o witness.

This cose must be interpreted in the context or the situotion.

TMI at 1247 states that 'in TMIA's view, the Board should have OPPointed 4

independent experts to assist both TMIA and the Board in f.

presenting and understanding the evidence on Contention 5.'

The Appeal Board then stated that the Board woS prohibited from oppointing anyone to assist the intervenor, and the Board's 8503110268 850304 PDR ADOCK 05000440 0

PDR

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. oppointment of an expert to assist the Board was limited by Summer.

Although the TMI intervenor's exact request for assistance i

is not reveoled, it is apparent from the sentence quoted above and from the entire cose that THIA was seeking for more in the way of assistance than what OCRE seeks.

OCRE does not seek Mr.

-Eley's oppointment to assist OCRE in understanding the evidences.

OCRE merely wants to ensure that the record on Issue M16 is o complete reflection of all technical evoluotions of the TDI DGs.

It is oiso relevant to consider the issue with which TMIA sought help.

OCRE hos ottoched page 1283 of the TMI cose, which reveois TMIA's Contention 5.

This contention hardly compares with Issue

1. 16 in terms of technical complexity.

Thus, while it might be orgued'that the TMI intervenor was seeking impermissible interhenor funding, because of the wide-ranging ossistance sought on o non-technical issue, that claim clearly falls in OCRE's cose, where oil that is sought is o complete record on which to base o reosoned and fair decision on a complex technical issue.

Applicants argue that the record con be completed by having Stoff and/or Applicone witnesses address 'the Soord's concerns',

and presumobly. OCRE's.

This is simply preposterous.

Applicants will not odduce evidence that is contrary to its own interests.

And, unfortunately, the NRC Stoff oiso will not odduce evidence contrary to Appliconts' interest.

This is 4

demonstrated by the Storr's response in support or Applicants' motion for summary disposition or Issue M16.

This is further demonstrated by Exhibits 11 and 12 or OCRE's Response to Applicants' Motio'n for Summary Disposition or Issue M16, which 9

demonstrate the Starr's willingness to rescind its own requirements at the utilities

• request.

Applicants clair that the Licensing Board's technical

-expertise will

• bear upon a proper resolution or Issue No.

16.*

OCRE certainly recognizes that, unlike most Judicial tribunois, the Licensing Board does posses technical knowledge and training.

However, it is not apparent that any or the members or this Board have expertise in the design and operation or large-bore, medium speed diesel engines, especially TDI engines, Indeed, the Commission's rules or practice recognize that the members or.o porticular licensing board may not possess the ise!needed to address ony porticular issue which

/

technical.exper the Board may race.

10 CFR 2.722 permits the oppointment of technical interrogators and Special Mosters to assist the Board in matters beyond the Board's expertise.

However, such ossistants are to be oppointed from the ASLB Panel.

OCRE is not owore or any members or that Panel possessin9 Mr. Eley's expertise.

Applicants imply that cross-examination is surricient to ensure completeness of the record and to protece OCRE's interests.

While o valuable tool, cross-exominotion is no

l substitute for direct testimony.

An adversary witness connot be forced under cross-examination to perform complex and detailed Calculations e.g.,

on cronkshaft design, if the witness had never done so previously.

Applicants attempt to contrast the situations in the court cases cited by OCRE concerning due process with the circumstances of this proceeding.

While it is true that OCRE is a voluntary porticipont in this Proceedin9, its porticipotion is permitted because it ho5 interests adversely offected by this proceeding.

The cases cited establish that due process is o right, not a privilege.

OCRE is no less entitled to due process than ore American Indians racing ' resettlement and disruption or their community' or welfore recipients.

Applicants attempt to mischorocteri e Union Bog-Comp paper Corp.

v.

FTC, 233 F.Supp 660 (SDNY, 1964).

That case clearly stores 'in order rbr plaintiff to prevail in this argument u

[ denial of due process], it must be shown that by reason of the Commission's action, plaineirr was denied the right to present its evidence and summon the witnesses of its choice,'

033 F.

p at 666.

Union Bog is thus applicable here and supports OCRE's position, Applicants' Verbiose notWithstonding.

Applicants cite Carolino power & Light (Sheoron Harris Nuclear Plant, Units 1 ond 2), LBP-84-7, 19 NRC 432 (1994), os

' inapposite.'

OCRE did not cite this case because it was not clear whether the intervenor sought the oppointment of the

i-j

- S-i witness.

However, Applicants' explanation of this case demonstrates that it supports OCRE's position.

The Harris i

licensing boord interpreted o Commission decision as requirsng on opponent of summary disposition of a radiation health effects i

issue to provide new ond substantial evidence challenging the BEIR report.

Using Applicones' reasoning, the board should have simply granted summary disposition if the intervenor did not present the necessory evidence.

Colling a witness suo sponte (without the intervenor's reques t) i to supply the necessory proof to deny, summary disposition would seem to be exactly what Appliconts so vehemently oppose -

indirect assistance to intervenors.

If the Horris licensing boord found it necessary to call its own witness to ensure that the record did not by default demand summary disposition, then P

this Board should also see that the record on Issue #16 is complete so that"Appliconts ao not gain the decision by defoult.

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Respectfully submitted, W uf 4

Susan L.

Hiatt OCRE Representative 8275 Munson Rd.

Mentor, OH 44060 4

(216) 255-3158 i

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te or plant management that must b stely; e

9. The adequacy of Licensee's plans for im ufficient in house technical capability

f Unit I and clean-up Unit 2. If Me, i

ing of such examinations. operator licenses, including the need fo

chnical resources, the Board should trcpohtan Edison has made with its

10. The adequacy of the administration of NRC tic ministration and grad-necessary technical expertise personnel, includmg proctoring, grading and s fensing exammations for TM hi finaricial resources necess;ary to of Licensee's Category T examinations; and up Unit 2;'and ns televant to the resolution of the t e administration for retesting operators and monitoring its NRC of the Stafrs plan the NRC examinations, because of theadherence to ssure that the purposes of defeated by cheating, the use of crib sheels u dnature of the questions, de vices.

3 n ue coaching or other evasise

11. The potentialimpact of NRC exammation

12. The sufficiency of management criteria and pterm on cheating (Licensing Board l operations.

981 (unpublished), supra, at at r license candidates t the NRC with respect to the integrity ofrocedures fo dates and the suffic4ency of the procedures with such cande-such candidates respect to the competence of icense candidates on the NRC ony other Licensee-or NRC-C i limited to the followmg:

the APPENDIX C he mp n e ATTS m er extmmations as the Special enh L b M Gnal b, Ham W41W v 1 include any other Licensee-NRLo 479):

i 3admmistered exam since the f

a, 14 11 is contended that Licensee has pursued a cour s'RC response to, the cheating l

of 10 CFR 50 57,10 CFR 50 40,10 CFR 50 36 10 CFR $0se of con NRC examinations renda B, thereby demonstr.iting that Licensee is not " technic ll11 a kensee's response.

operate TMI Unit 1 "without endangering the health to, cheat.

n Issue I above ay. qualified to" course of conduct inc!udes:

and safety of the pubhc This I

a. deferring safety related maintenance and repair b Af encourrgement of, negli.

by its own procedures (see, e g. A P 1407h eyond the po ni estabbshed

\\ ng m the above mentioned ti

, b. disregarding the importance of safstpretated mamtenance ruclear p? ant in that it' ff' ; }f invohement in cheating as se to the Board's Order of

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l. Ide!eted) y operating a

2. proposed a drastic cut in the ma nienance budget,

3. Ideleted)

onstrants on the NRC in,

4. fads to keep accurate and complete m n the NRC April 1981

items,

.nr tenance records related to safety

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6. extensisel> vses overisme in performing safet5 the incident in July 1979 related to mamtenance, g one of the two operators 981 extmina tions.

y related maintenance.

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CERTIFICATE OF SERVICE l*

. -l This is to certi'fy that copies of the foregoing were served by deposit in the U.S. Mail, first class, postage prepaid, this W d day of

/// der #'

1986 to those on the service list b,elow.

r.,

6 Susan L.

Hiatt e

SERVICE LIST l

~

\\l JAMES P. GLERSON, CHRIRMAN Terry Lodge, Esq.

lRToMIC 5AFETY & LICENSING 80RRD 618 N. Michigan St.

l513 GILMouRE DR.

5ILUER SPRING, MD 20901 Suite 105 1

.,, Toledo, OH 43624

~

Dr. Jerry R. Kline Atomic Safety,& Licensing Board.

U.S, Nuclear. Regulatory Commission i

Washington,- D.C.

20555 Mr.. Glenit.Oj/.lBright Atomic Safdty & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Colleen P. Woodhead, Esq.

Office of the' Executive Legal Director U.S. Nuclear Regulatory Commission c

Washington, D.C.

20555 r

Jay.Silberg, Esq.

Shaw, Pittman, Potts, & Trowbridge 1800 M Street, NW

. Washington, D.C.

20036 q

Docke'.-ing & Service Branch i

. Office of'the Secretary U.S.. Nuclear Regulatory. Commission Washington, D.C.

20555 Atomic. Safety.& Licensing. Appeal Bo'ard Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 e

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