ML20155G806

Response Supporting Applicant 860415 Motion to Require Intervenors to File Offers of Proof.Offers Should Describe Facts & Conclusions Expected to Be Introduced as Part of Affirmative Case.Certificate of Svc Encl

ML20155G806
Person / Time
Site:	Braidwood
Issue date:	05/02/1986
From:	Berry G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-038, CON-#286-38 OL, NUDOCS 8605070140
Download: ML20155G806 (6)

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MA Y 2,1986 Ul!!TED STATES OF AMERICA NUCLEAR.REGULATOPY COMMISSIO!! O y BEFORE TIIE ATOltilC SAFETY A!!D LICEt1 SING BOARD In the Matter of ) . _

COMPOMWEALTil EDISON COMPA?!Y ) Docket No d-4561 -

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SWf 4 Q y h Yy (Braidwood Station, Units 1 and 2) )

NRC STAFF RESPONSE TO APPLICAMT'S MOTION TO REQUIP.E INTERVENORS TO FILE OFFERS O,F PROOF I. IMTRODUCTION -

On April 15, 1986, Applicant filed a " Motion To Require Intervenors To File Offers of Proof." In that motion, Applicant requests the Doard to direct Intervenors to identify in writing all evidence they hope to introduce as part of their affirmative case which does not originate from an Intervenor sponsored witness or from permissible cross-examination of adverse witnesses. Prompting Applicant's notion is the fact that at least forty-seven (47) of the fifty (50) witnesses identified by Intervonors are past or current members of the MP.C Staff; past or current employees or agents of Applicant; or neither directly sponsored by Intervenors nor subject to their control. The Staff supports Applicant's motion.

II. DISCUSSION As Applicant points out, Intervenors must assume certain obligations if they intend to put on an affirmative case in this proceeding. The most important of thost obligations is to provide opposing parties notice of the nature of its direct case to alert them to the evidence that they should be 8605070140 860502 6 PDR ADOCK 0500 N 07

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prepared to address. Ordinarily, this burden is discharged by the filing of written testimony pursuant to 10 C.F.R. 5 2.743(b). Other than their three experts, however, Intervenors have not indicated that they plan to submit written testimony for any of the other 47 persons identified as witnesses on whose testimony Intervenors plan to rely in support of their direct case.

Some of these 47 persons are witnesses proposed to be called by the Staff or Applicant. To the extent Intervenors' examination of these witnesses is expected to go beyond the scope of the witnesses' direct testimony on behalf of the Staff or Applicant, the Staff and Applicant are-left to guess as to the particular facts or conclusions Intervenors hope to elicit from these witnesses. Other persons on Intervenors' list have not been proposed as witness by the Staff or Applicant. Again, with respect to these persons, the Staff and Applicant are left to guess the scope of Intervenors' intended evidence. In these circumstances, a written offer i

of proof describing the evidence to be elicited from these witnesses by ,

Intervenors is essential to enable Applicant and the Staff to interpose objection or prepare to meet the proffered evidence, and to prevent Intervenors' examination from degenerating into a fishing expedition. See Louisiana Power and Light Co. (Waterford Stcom Electric Station, Unit 3),

ALAB-732,17 NRC 1076,1096 (1983).

It is an Intervenor's prerogative to rest its entire case on testimony elicited during cross-examination of Applicant and Staff witnesses. E.g.

Tennessee Valley Authority (Itartsville Nuclear Power Plant , Units I A, 2A,1B, and 2E), AI.AB-463, 7 NRC 342, 356 (1978). If it does so, how-ever, it is limited to rebutting the direct testimony of those witnesses.

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_3-Id. Cross-examination beyond the scope of a witness' direct examination generally is not permitted. In fact , the Appeal Doord has recognized

- that before cross-examination beyond the scepe of direct examination is permitted, an Intervonor may be compelled to make an offer of proof or give some other advance indication of what in to be elicited from the witness. Waterford, aupra,17 MpC at 1096.

Intervenors have a choice with respect to the menner in which they may present their case. They can attempt to demonstrate that Applicant has not met its burden of proof by relying on their cross-examination of adverse witnesses, or they can present affirmative evidence to show that-the quality of construction at the Draidwood facility has been compromised due to the harassment and intimidation of L.K. Comstock ouality control inspectors. If - they choose the latter cou rse , fundamental fairness requires that they provide opposing parties netice of the nature of the evidence they intend to present either by the filing of written testimony or a written offer of proof.

III. CONCLUSION i

l For the reasons stated herein, the Board should direct Intervenors to submit written testimony or a written offer of proof describing the facts and conclusionn they expect to introduce as part of their affirmative 4

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case, or limit the scope of Intervenors' cross-examination of adverse

f. witnesses to such witnesses' direct testimony.

l R ctfully submitted,

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.Berr). /

, Couns4 for RC Staff (

! Dated at Bethesda, Marylend i

this 2nd day of May, .3086 L

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UNITED STATES OF Af1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CClVMONWEALTII EDISON COMPANY ) Docket Nos. 50-456

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

CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF RESPONSE TO APPLICANT'S MOTION TO REQUIRE INTERVENORS TO FILE OFFERS OF PROOF" in the above-captioned proceeding have been served on the following by deposit -

in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 2nd day of Niay,1986:

Herbert Grossman, Esq. , Chairman

• Commonwealth Edisen Company Administrative Judge ATTN: Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. NucIcar Regulatory Commission P.O. Box 767 Washington, 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 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, Psq.

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. Muclear I:egulatory Commission 109 North Des rborn Street Washington, DC 20555 Suite 1300 Chicago, IL 60602 Atomic Safety and Licensing Appeal Erie Jones, Director Hoard Panel

• Illinois. Emergency Services II.S. Nuclear Regulatory Commission and Disaster Agency Washington, DC 20555 110 East Adams Springfield, IL G2705 Docketing and Service Section*

Office of the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Route 1, Box 182 t'ashington, DC 20555 Manteno, IL 60050 Vs. Bridget Little Rorem II. Joseph Flynn, Esq. 117 Morth Linden Street Associate General Counsel Essex, IL C0935 FEMA 500 C Street, S.W. , Suite 480 George L. Edgar, Esq.

Washington, DC ?0472 Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Weshington, DC 2003G Y '

Grdkory lan 'erry F

Ccunsel r C Staff