ML20155G579

Response in Support of Applicant 860425 Motion to Dismiss Intervenor Contention 1(a) Re Offer of Proof Issues 3,4 & 6 & Contention 1(b).Intervenor Failed to File Proposed Findings.Certificate of Svc Encl

ML20155G579
Person / Time
Site:	Braidwood
Issue date:	04/29/1986
From:	Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-061, CON-#286-61 OL, NUDOCS 8605070021
Download: ML20155G579 (6)

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April 29, 1986 4 .

DOCKETED UNITED STATES OF AMERICA flSNRC NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICElbNbt2 AIM M6 Off!CE 0:

In the Matter of ) 00CKEiln;. ...- '

) BRANCH COMMONYlEALTil EDISON COMPANY ) Docket Nos. 50-456

) 50-457 (Braidwood Station, Units 1 and 2) )

NRC STAFF'S RESPONSE Ili SUPPORT OF APPLICANT'S MOTION TO DISMISS INTERVENOR'S CONTENTION 1(a)

OFFER OF PROOF ISSUEE 3. 4 AND 6 AND CONTENTION 1(b)

Introduction On April 25, 1986, Applicant filed a Motion to Dismiss Intervenor's Contention 1(a) Offer of Proof Issues 3, 4 and 6 and Contention 1(b).

In its Motion Applicant stated that it received Intervenor's Proposed Findings on Emergency Planning Issues on April 24, 1986 and those findings did not address Contention 1(a) Offer of Proof Issues 3, 4 and 6 and Contention 1(b); that Intervenor had been put on notice that failure to file Qndings would create a default under 10 C.F.R. I 2.754(b) and requested that the Board issue an Order immediately dismissing those issues for which no findings had been submitted to avoid any further ur.necessary expenditure of resources by the parties and the Board. The Staff supports Applicant's Motion.

8605070021 860429 6 PDR ADOCK 0500 g

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e Discussion The Commission's regulations provide that failure to file findings of facts and conclusions of law create a default. Specifically, 10 C.F.R.

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I 2.754(b) provides:

Failure to file proposed findings of fact , and conclusions of law or briefs when directed to do so may be deemed a default, and an order or initial decision may be cr.tered accordingly.

This regulation has been discussed in numerous decisions by the Commis-sion's adjudicatory boards. In Consumers Power Co. (!\lidland Plant ,

Units 1 and 2), ALAB-123, 6 AEC 331, 332-34 (1973), the Appeal Board emphasized the importance of the submission of proposed findings and put litigants on notice that a default in the performance of this obligation would be taken into acccunt in any challenges on appeal to the findings of the Licensing Board. In a subsequent case, the Appeal Board noted that where a Board directs all parties to file proposed findings and conclusions within a specified time period and where the record reflects not only the presence of intervenors' counsel when that order was given , but his understanding and acquiescence as well, interver. ors' failure to file proposed findings is a default under the Commission's Rules of Practice. Florida Power & LIFht Co. , (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3, 4 n.2 (1975). It should be noted that the Appeal Board has distinguished those cases where the Licensing Board has invited but not ordered the parties to file proposed findings of fact. In Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17, 21 (1983) the Appeal Board l

! stated :

The filing of proposed findings of fact is optional, unless the presiding officer directs otherwise.2 l

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e 6 The presiding officer is also empowered to take a party's failure to file proposed findings , when directed to do so, as a default . (citation omitted) .

Licensing Boards have ruled that when intervenors fall to file

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proposed findings of fact and conclusions of law, the Boards would deem that the intervencrs had abandoned those matters not filed upon and consider and decide only those contested matters upon which findings were filed. Kansas Gas a Electric Company, et al. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 61 n.3 (1984) (Where intervenors failed to file proposed findings of fact and conclusions of law with respcet to 161 cut of 216 contentions admitted as issues in controversy regarding emergency preparedness, the Board deemed that the intervenors had abandoned those matters not filed upon);

Cincinnati Cas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LB P-82-48, 15 NRC 1549, 1568 (1982) (The Board stated:

" Consistent with 10 CFR I 2.754(b), we treat those contentions for which [intervenor} has not submitted findings as having been abandoned.").

A contrary result has been reached where a Board did not direct the filing of proposed filings. Duouense Light Compan,v, et al. (Beaver Valley Power Station, Unit 170. 1), LDP-78-16, 7 NRC 811, 815 n.7 (1978).

In this proceeding, the Board did set a schedule for the filing of proposed filings while Intervenors' representative, Ms. Rorem, was present and notice was provided on the record that failure to file findings could result in a penalty. Tr. 1055. In short. Intervenors were on notice that failure to file proposed findings would create a default.

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Interverors failed to submit findings on their Contention 1(a) Offer of Proof Issues 3, 4 and 6 and Contention 1(b) at their peril and the Board should deem those matters abandoned and not consider and decide them.

Wolf Creek, supra; Zimmer, supra. The Board clearly has the discretion to take this action. In its Statement of Policy on Conduct of Licensing Proceedings , CLI-81-8, 13 MRC 452, 457 (1981), the Commission stated:

Parties should be expected to file proposed findings of fact and conclusions of law on issues which they have raised . The boards, in their discretion, may refuse to rule on an issue in their initial decision if the party raising the issue has not filed proposed findings of fact and conclusions of law.

In these circumstances, the other parties and the Board should not be required to continue to expend resources on these matters. The Board should issue an order immediately dismissing these issues.

Conclusion For the reasons set forth above, the Staff supports Applicant's Motion that the Board issue an Orde~r immediately dismissing Conten-tion 1(a) (Offer of Proof Issues 3, 4 and 6) and Contention 1(b).

Reepectft y submitted, kffreby Stuart A.

Assistant Chief licapg Counsel Dated at Bethesda, Maryland this 29th of April,1986 l

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

)

CCMMONilEALTil EDISCN COMPANY ) Docket Nos. 50-456

) 50-457 (Braidwood Station, Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF'S RESPONSE IN SUPPORT OF APPLICANT'S MOTION TO DISMISS INTERVENOR'S CONTENTION 1(a) OFFER OF PROOF ISSUES 3, 4 AND 6 AND CONTENTION 1(b)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or deposit in the Nuclear Regulatory Commission's internal mail system (*), or by express mail or overnight delivery (**), or by hand delivery (***), this 29th day of April,1986:

lierbert Grossman, Esq. , Chairman *** Commonwealth Edison Company Administrative Judge ATTN: Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuc! car Regulatory Commission P.O. Box 767 hashington, DC 20555 Chicago, IL 60690 Dr. A. Dixon Callihan** Region III Administrative Judge U.S. Nuclear Regulatory Commission 102 Oak Lane Office of Inspection & Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Glen Ellyn, IL 60137 Dr: Richard F. Cole *A* Joseph Gallo, Esq.

Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 1100 U.S. Nuclear Regulatory Commission 1150 Connecticut Avenue, N.W.

Washington, DC 20555 Washington, DC 20036 Michael I. Miller, Esq.

Elena Z. Kezelis, Esq.

Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 i

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> Douglass W. Cassel, Jr. , Esq. Atomic Safety and Licensing Board Timothy Wright, Esq. Panel

• Robert Guild, Esq. U.S. Nuclear Regulatory Commission 100 North

Dearborn Street Washington,

DC 20555 Suite 1300 Chicago, IL 60602 -

Atomic Safety and Licensing Appeal Eric Jones, Director Board Panel

• Illinois Emergency Services U.S. Nuclear Regulatory Commission and Disaster Agency Washington, DC 20555 110 East Adams Springfield, IL 62705 Docketing and Service Section*

Office cf the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Poute 1, Box 182 Washington, DC 20555 E'arteno, IL 60950 his. Bridget Little Rorem**

II. Joseph Flynn, Esq. 117 North Linden Street Associate General Counsel Essex, IL 60935 FEt *A 500 C Street, S.W. , Suite 480 George L. Edgar, Esq . ***

V'ashington, DC 20472 Newman a Holtzinger, P.C.

1615 L Street , N.W.

Suite 1000 Washington, DC 20036 M> bu /

ituart A. Treby Assistant Chief liear g Counsel