ML20129C173

Answer to Ocre 850710 Motion for Leave to Respond to Applicant 850701 Reply to Proposed Findings of Fact & Conclusions of Law Filed by Other Parties.Motion Should Be Denied.Certificate of Svc Encl

ML20129C173
Person / Time
Site:	Perry
Issue date:	07/24/1985
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
CON-#385-965 OL, NUDOCS 8507290367
Download: ML20129C173 (9)

Text

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.WJ BBCKETED July 24, 1985 UShsC

'85 Ji 26 N1 :30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFFICE 0r SECRETARV C0CKEI'NG & SEFV!i.I BRANCH Before the Atomic Safety and Licensing Board In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-4 4 00L ILLUMINATING COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' ANSWER TO OCRE MOTION FOR LEAVE TO RESPOND TO APPLICANTS' REPLY TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FILED BY THE OTHER PARTIES (HYDROGEN CONTROL)

In an intemperately worded motion dated July 10, 1985,1!

l Ohio Citizens for Responsible Energy ("OCRE") requests the Li- l censing Board's permission to file a reply to Applicants' Reply l 1

to Proposed Findings of Fact and Conclusions of Law Filed By the Other Parties (Hydrogen Control) (July 1, 1985) ("Appli- l l

cants' Reply Findings"). OCRE attached to its motion its Re-sponse to Applicants' Reply to Proposed Findings of Fact and Conclusions of Law Filed by the Other Parties (Hydrogen Con-trol) (July 10, 1985). OCRE claims that due process requires 1/ Motion for Leave to Respond to Applicants' Reply to Pro-posed Findings of Fact and Conclusions of Law Filed by the Other Parties (Hydrogen Control), dated July 10, 1985 (served July 11, 1985) (" Motion").

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O the Board to permit OCRE to address "new arguments" and "new cases" in Applicants' Reply Findings. Motion at 1. OCRE's mo-tion is contrary to the Commission's regulations and should be denied.2/

As OCRE acknowledges (Motion at 2), the applicable regula-tion governing proposed findings of fact and conclusions of law is 10 C.F.R. 5 2.754. That provision only grants "[a] party who has the burden of proof" the opportunity to file reply findings. 10 C.F.R. S 2.754(a)(3). The provision provides no such right to "other parties," i.e., parties other than the

" party who has the burden of proof." Id. OCRE's rights are covered under 10 C.F.R. S 2.754(a)(2), which states:

(2) Other parties may file proposed findings, conclusions of law and briefs

, within forty (40) days after the record is closed. However, the staff may file such proposed findings, conclusions of law and briefs within fifty (50) days after the record is closed.

The Board's Memorandum and Order (Proposed Findings and Conclu-l sions) (May 7, 1985), which governs proposed findings and con-clusions for Issue #8, is consistent with 10 C.F.R. S 2.754.S!

2/ Applicants do not reply herein to the substance of OCRE's Response. Applicants believe the Board can adequately evaluate Applicants' proposed findings and reply findings, and the proposed findings of OCRE and the Staff, in light of the existing record and without additional rounds of argument. For the reasons noted herein, it would be con-trary to the Commission's regulations, and the Board's own orders, for the Board to consider OCRE's proposed reply.

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3/ See also Memorandum and Order (Proposed Findings and Con-clusions) (April 18, 1985), which sets forth the schedule for proposed findings for Issues #1 and #16, and discusses the general format for proposed findings.

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9 OCRE has no right under the Board's Memorandum and Order to re-spond to Applicants' Reply Findings.

Since Applicants carry the burden of proof, they are given the last word. OCRE in its proposed findings had the opportu-nity to respond to Applicants' proposed findings. Granting OCRE's motion would therefore entitle Applicants to respond to OCRE's response. OCRE could then seek to respond to Applicants' response, and so on. The place to call a halt to this endless circle is where 10 C.F.R. 52.754 directs -- with the appli-cant's reply findings.

OCRE claims to find support for its motion in two previous decisions by the Board. OCRE first cites LBP-82-89, 16 N.R.C.

1355 (1982), for the proposition that "it is the policy of this Licensing Board to permit parties to respond to new information contained in the replies of their adversaries." See Motion at 1-2. That decision dealt with procedures for late-filed con-tentions. The issue was whether the Board would permit inter-venors, as the proponents of late-filed contentions, to reply to Applicants, who opposed admission of the contentions. The Board stated that its decision permitting intervenors to reply to Applicants' opposition was governed by Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 N.R.C. 521 (1979), from which the Board quoted:

Before any suggestion that a conten-tion should not be entertained can be acted upon favorably, the proponent of the con-tention must be given some chance to be heard in response.

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LBP-82-89, 16 N.R.C. at 1356, quoting ALAB-565, 10 N.R.C. at 525.

LBP-82-89 provides no basis for granting OCRE'S motion.

It did not deal with 10 C.F.R. 5 2.754(a) and the filing of proposed findings of fact or replies thereto. OCRE has already had its opportunity to address the evidentiary record and to reply to Applicants' proposed findings of fact. The Board in LBP-82-89 was addressing whether it might be helpful in some circumstances for the Board to have additional information at the very beginning of the hearing process, before deciding the admissibility of a contention. The Board's knowledge about a contention at that stage in the proceeding is obviously differ-ent than at the findings stage, after the contention has been admitted and the record is fully-developed and then closed.1/

Nor is this a situation, as in LBP-82-89, in which "the proponent" is seeking "some chance to be heard in response."

16 N.R.C. at 1356. Applicants have the burden of proof to dem-onstrate that the hydrogen control system meets the Commis-sion's requirements, and neither Applicants nor OCRE has ever 4/ In LBP-82-89, the Board concluded that intervenors were entitled to comment on Applicants' objection that the information relied on by intervenors as good cause for late filing was available earlier. Id., 16 N.R.C. at 1356. There is no similar need in the instant case for the Board to consider additional information from OCRE.

The facts are in and the record is closed. OCRE only seeks an opportunity for another round of arguments -- to which it is not entitled under the Commission's regula-tions.

_4_

E-4 argued otherwise.EI See 10 C.F.R. 5 2.732; Part 2, Appendix A, S V(d)(1). It is because an applicant has the burden of proof in NRC initial licensing proceedings that it is given the last word. See 46 Fed. Reg. 30328, 30330 (1981) (discussing the considerations behind the Commission's decision to retain the applicant's right to file reply findings.)

OCRE also cites another decision by the Board, LBP-83-46, 18 N.R.C. 218 (1983), in support of its motion. Motion at 2.

OCRE implies that the Board in LBP-83-46 permitted Applicants to file "further supporting statements" in response to Staff's motion for summary disposition of Issue #13 (turbine missiles),

contrary to 10 C.F.R. 5 2.749(a).6/ The apparent logic of OCRE's argument is that (1) the Board in LBP-83-46 permitted Applicants to file "further supporting statements" where the regulation " expressly prohibited" such filing; and therefore

.(2) the Board should permit OCRE to file reply findings in this case, since the regulation "neither prohibits nor permits par-ties not having the burden of proof from filing responses."

Motion at 2.

5/ OCRE provides no support for the assertion, at page 2 of the Motion, that " Applicants' arguments can be distilled to the theory that OCRE, and not Applicants, bears the burden of proof in this proceeding." Applicants have not argued this, nor does OCRE contend that it has the burden of the proof.

6/ OCRE's implied assertion is essentially a rehash of OCRE's Motion to Strike Portions of Applicants' Answer in Support of NRC Staff Motion For Summary Disposition of Issue #13 (June 30, 1983), which the Board rejected in LBP-83-46.

OCRE's argument is illogical and incorrect. The Board in LBP-83-46, 18 N.R.C. at 224 n.22, discussed information contained in Applicants' answer in support of the Staff's mo-tion for summary disposition. The footnote makes clear that Applicants' answer "was proper and timely" in that case, and was not contrary to the Ccmmission's rules governing summary disposition. Thus, OCRE mischaracterizes LBP-83-46, which in any case is irrelevant to the issue of whether intervenors may file a response to an applicant's reply findings.

Finally, OCRE's motion makes the implicit assumption that Applicants have no right to raise "new arguments" in reply findings that were not raised in Applicants' proposed findings.

Motion at 1. OCRE's assumption is without any basis and is clearly in error. There would be no purpose to granting reply rights te Applicants if Applicants were constrained to make the same factual and legal points in their reply as those contained in their proposed findings and conclusions.

Thus, OCRE seeks to challenge the Commission's rules, and the Board's rulings, regarding the filing of proposed findings.

OCRE cites no precedent in which intervenors have been permit-ted to file a response to an applicant's reply findings, and Applicants are aware of no such precedent. Consideration of OCRE's proposed response by the Board would require the Board to permit Applicants, as the party with the burden of proof, to respond to OCRE's response, to which OCRE could then seek to file yet another response, ad infinitum. OCRE's tactic would

a delay a decision on the merits and unnecessarily interfere with the Commission's expectation "that decisions will be issued as soon as practicable after the submission of proposed findings of fact and conclusions of law."1!

For these reasons, Applicants respectfully request that the Licensing Board deny OCRE's motion and refuse to consider OCRE's proposed response to Applicants' Reply Findings.

Respectfully Submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE

\ _m G' Af Jaf /E. ilberg, P.C. ,/]

karry . Glasspiegel

+/

3 Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: July 24, 1985 7/ Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 458 (1981).

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July 24, 1985 DCMETED USMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION %S JUL 26 All:30 OFFICE 0F SECdt!A8 v Before the Atomic Safety and Licensing Board dh hjEFVICf.

In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-4400L.

ILLUMINATING COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Appli-cants Answer to OCRE Motion For Leave to Respond To Applicants' Reply To Proposed Findings Of Fact and Conclusions of Law Filed by the Other Parties (Hydrogen Control)" were served by deposit.

in the United States Mail, first class, postage prepaid, this 24th day of July,~1985, to those on the attached Service List.

Ja .

kS lberg .4 LC<r is DATED: . July 24, 1985

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

SERVICE LIST James P. Gleason, Chairman Atomic Safety and Licensing 513 Gilmoure Drive Appeal Board Panel Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Glenn O. Bright Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Christine N. Kohl, Chairman Atomic Safety and Licensing Terry Lodge, Esquire Appeal Board Suite 105 U.S. Nuclear Regulatory Commission 618 N. Michigan Street Washington, D.C. 20555 Toledo, Ohio 43624 Dr. W. Reed Johnson Donald T. Ezzone, Esquire Atomic Safety and Licensing Assistant Prosecuting Attorney Appeal Board Lake County Administration U.S. Nuclear Regulatory Commission Center Washington, D.C. 20555 105 Center Street Painesville, Ohio 44077 Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel

~U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Jchn G. Cardinal, Esquire Ms. Sue Hiatt Prosecuting Attorney 8275 Munson Avenue Achtabula County Courthouse Mentor, Ohio 44060 Jefferson, Ohio 44047

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