ML20134H383
| ML20134H383 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/23/1985 |
| From: | Bright G, Gleason J, Kline J Atomic Safety and Licensing Board Panel |
| To: | CONCERNED CITIZENS REACTOR EXPORT REVIEW BOARD |
| References | |
| CON-#385-341 81-457-04-OL, 81-457-4-OL, OL, NUDOCS 8508280393 | |
| Download: ML20134H383 (3) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED ATOMIC SAFETY AND LICENSING BOARD USNGC Before Administrative Judges:
85 AUG 26 P1:25 James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Glenn 0. Bright Omct 0; sicati;.,
00CHETING & SERVF.!
BRANCH
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Docket Nos. 50-440-0L In the Matter of
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50-441-0L
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CLEVELAND ELECTRIC ILLUMINATING
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COMPANY, et al.
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(Perry Nuclear Power Plant,
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Units 1 & 2)
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August 23, 1985
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SERVED AUG261995 MEMORANDUM AND ORDER (Motion to Respond to Reply to Proposed Findings of Fact and Conclusions of Law)
Intervenor, Ohio Citizens for Responsible Energy (0CRE), fi-led a motion for leave to respond to Applicants' Reply to the Findings of Fact and Conclusions of Law submitted by the other parties. The Applicants and Staff both oppose the motion which had attached to it a proposed resporse.
The Intervenor alleges that Applicants' reply to OCRE's proposed findings constitutes "a compendium of distortion, deception, insinuation and invective" and included new arguments and cited new cases, all of which was " extremely prejudicial." Stating that its response was aimed l
l at only the new arguments and cases found in Applicants' reply, OCRE based its present motion on an ostensible Board policy in the proceeding which allowed parties to respond to new information submitted by their adversaries.
In OCRE's judgment, that policy was embodied in a prior ruling wherein Intervenors were required to respond to Applicants' kB2gCK05000440 93 850823 O
PDR j
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> t arguments opposing the admission of late-filed contentions.
See LBP-82-89, 16 NRC 1355, 1982.
In that ruling, the Board relied, and correctly we believe, on an Appeal Board memorandum stating that proponents of contentions must be provided an opportunity to respond to opposing objections prior to a contention's rejection.
(Houston Lighting and Power Company; Allens Creek Nuclear Generating Station, l
Unit 1; ALAB-565, 10 NRC 521-525 (1979)). That ruling, however, has no j
relevance here. The Appeal Board pointed out in the Allens Creek case that the absence of any provision in the Commission's rules dealing with objections to contentions or arguments in support of contentions require L
licensing boards to provide a fair procedure to assure each side of the arguments an opportunity to be heard.
In the Appeal Board's review, which was supported and extended to late-filed contentions by this Board, this requires, as in federal practice dealing with motions to i
dismiss, some opportunity by the contention's advocate to respond.
The rules are not silent, however, in dealing with the requirement t
or opportunity of filing proposed findings and conclusions of law.
10 CFR $ 2.754(a)(3) provides only for parties carrying the burden of proof f
with an opportunity to reply to proposed findings of other litigants.
Under 2.732, it is manifest that Applicants carry the burden of proof in the proceeding. To attempt to engraft an opportunity to " reply to a reply" by reason that the rules do not specifically prohibit such a response--as OCRE suggests--would launch a successive series of such requests by other parties and make a nullity of what is basically a f.
sound procedure.
OCRE also cites as precedent for its request a Board i
4 0 ruling that permitted Applicants to respond to a prior Intervenor filing.
on a motion for summary disposition.
See LBP-83-46, 18 NRC at 224
- n. 22. The Board's coment here merely indicated, however, that since Applicants' filing was timeiy, it was not improper under the rules for a party to coment on a prior filing and have such comments considered.
In view of the foregoing considerations, the Board finds no basis for OCRE's motion and, accordingly, it is denied.
ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD C. GleasoW,'ChairmanRcL~ i 7
/ g, Jam A
ISTRATIVE JUDGE Y
Glenn O. Bright O
ADMINISTRATIVE JUDGE
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J gry R. fline 1 4**
ADMINISTRATIVE JUDGE Bethesda, Maryland s