ML19329D446

Motion to Strike Issues & Testimony.Certificate of Svc Encl

ML19329D446
Person / Time
Site:	Davis Besse
Issue date:	07/13/1973
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:
Shared Package
ML19329D442	List: ML19329D441 ML19329D444 ML19329D445 ML19329D446
References
NUDOCS 8003061066
Download: ML19329D446 (8)

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                                                                -July 13 , 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board           l In the Matter of                     )          -
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THE TOLEDO EDISON COMPANY ) and THE CLEVELAND ELECTRIC ) Docket No. 50-346 ILLUMINATING COMPANY )

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(Davis-Besse Nuclear Power ) Station) ) APPLICANTS' MOTION TO STRIKE ISSUES AND TESTIMONY

1. Applicants hereby move to strike Intervenor's written testimony with respect to Issues 6 and 7 and to strike Issues 4, 5, 6 and 7.

I MOTION TO STRIKE TESTIMONY

2. On July 11, 1973, Intervenor submitted written 4

testimony with respect to several but not all, of the issues in this proceeding. Applicants move to strike the written testimony with respect to Issues 6 and 7 on the ground that it is irrelevant and immaterial to those issues.

3. Issue 6, as set forth in the Licensing Board's Special Prehearing Conference Order dated May 31, 1973, alleges ~ that the AEC Regulatory Staff's environmental review is inadequate in that no consider-ation has been given to the fact

, that operating experiences at

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   .    .                    s nuclear plants show that radio-active. releases go up with aging
                             .of the reactor.

Intervenor has submitted testimony by Dr. Ernest J. Stern-glass in support of Inte rvenor's position on this issue. The testimony has nothing to do with an increase in radio-active releases with aging of reactors ~.

4. Under AEC's Rules of Practice "[o]nly relevant, material and reliable evidence which is not unduly repetitious will be admitted ..." 10 CFR S 2. 74 3 (c) (emphasis added) . Dr. Sternglass' testimony does not meet these criteria and should therefore be stricken. The testimony deals with radioactive releases from two reactors, the Plum Brook Reactor Facility of the National Aeronautics and Space Administration and the Shippingport Power Station. The testimony does not, however, even purport to show that releases from these facilities have increased with the aging i of the reactor. The testimony only claims to show either that monitoring techniques at Plum Brook and Shippingport are inadequate (or release information is being f alsified) , or that the dose calculation methods are in error. (Testimony, None o'f these claims is relevant to an issue which p.7) deals with an increase in radioactive releases as a reactor ages. This testimony therefore has no bearing on Issue 6 and should be stricken.

5. Issue 7 alleges 'that the Staff's environmental review  !

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is inadequate in that population growth in this area has not been properly assessed inasmuch as the placing of this plant in this largely agricultural area will probably stimulate the growth of industry and population. In supocrt o' its position on this issue, Intervenor sub-mitted testimony by Dr. Sternglass. This testimony has nothing whatever to do with the stimulation of population , or industrial growth by locating the Davis-Besse facility in an agricultural area. Instead, it presents Dr. Stern-glass' arguments that radioactive releases from the Plum Brook, Shippingport and other reactors have caused increased mortality and disease. The testimony is therefore irrelevant and immaterial to Issue 7 and should be stricken. MOTION TO STRIKE CONTENTIONS

6. In Consumers Power Co. (Midland Plant, Units 1 and 2) , ALAB-123, RAI-73-5, at 345 (May 18, 1973), the Appeal Board ruled that, although an applicant has the ultimate burden of proof, an intervenor has the burden of going forward with evidence on a contention which he has raised.

The ultimate burden of proof on the question of whether the permit or license should be issued is , of course, upon the applicant. But where, as here, one of the other parties contends that, for a speci fic reason (in this instance alleged synergism) the permit or license should be denied, that party has the burden of going for-ward with evidence to buttress that contention. Once he has introduced sufficient evidence to establish a prima facie case, the burden then shif ts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the content-ion as a basis for denial of the permit or license. (original emphasis)

7. In the present proceeding, eight issues were identified as matters in controversy based upon Intervenor's 1

petition and amended petition to intervene. Special Pre-hearing Conference Order, May 31, 1973. In this Order, p.2, the Licensing Board stated that it " expects the Intervenor to support, through direct testimony, the contentions made at the [Special Prehearing] Conference". Issue 3 was sub-sequently stricken as a chailenge to AEC regulations without the showing required by 10 CFR S2.758. Prehearing Confer-ence Order, July 10, 1973. On July 11, 1973, Intervenor submitted testLc7ny on Issues 1, 2, 6, 7 and 8. No testi-many was submitted on Issues 4 or 5. Having failed to submit any evidence on Issues 4 and 5, Intervenor has failed to meet its burden of going forward with evidence. Based on the Midland ruling, these issues should therefore be dis-missed.

8. The failure to submit testimony on these issues should also be grounds for striking them in view of Inter-venor's failure to respond to Applicants' interrogatories.

Af ter a full and complete opportunity for discovery, Inter-N_

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venor answered many of Applicants ' interrogatories relating to Issues 4'and 5 by stating: "This information will be provided in our testimony". See Intervenor's Answers to Applicants' Interrogatories and Request for Documents, dated July 9, 1973, p.3. Intervenor not only defaulted on its obligation to answer the interrogatories (even on the second attempt), it'even based this default on a promise to submit the answers in its testimony. With 'no testimony on these issues-forthcoming, the Board should properly dismiss these issues. See 10 CFR S2.707.

9. As set forth in paragraphs 2 - 5 above, the tes ti-mony submitted with respect to Issues 6 and 7 should be stricken. Having submitted no relevant or material testimony '

on these issues, Intervenor has not met its burden of going forward with evidence. As required by the Midland decision, Lthese issues-should therefore be dismissed. The propriety of striking Issues 6 and 7 is buttressed by Intervenor's f ailure to answer Applicants ' interrogatories asked with respect to them. The interrogatories inquired into several asoects'of the effects of reactor aging (Issue 6) and population and -industrial growth (Issue 7) . Intervenor's

           -answers, . submitted July' 9,1973, responded that "information will be provided in our testimony". .As set forth in para-graphs 2 - 5 above,,the testimony submitted with respect to these issues was completely silent on the effects of reactor aging and population and industrial growth.        Thus, Inter-venor not only failed to properly respond to the interrogat-ories, but also failed to provide the answers in its testi-mony despite its promise to do so.

10. For the reasons set forth above, Applicants respectfully request that the Licensing Board strike Inter-venor's testimony with respect to Issues 6 and 7 and strike Issues 4, 5, 6 and 7.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE

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BY /LC~l ( e'4 V1-{t p Gerald (Charnof f - Jay,E.iSilberg V Counsel for Applicants Dated: July 13, 1973

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July 13, 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

                                          )

THE TOLEDO EDISON COMPAUY ) and THE CLEVELAND ELECTRIC ) Docket No. 50-346 ILLUMINATING COMPANY )

                                          )

4 (Davis-Besse Nuclear Power ) Station) ) CERTIFICATE OF SERVICE I her6by certify that copies of " Applicants' Motion to Strike Issues and Testimony" were served according to

     <   the attached Service List this 13th day of July, 1973.

A / j '

                                                 .?ay E. Silberg gounsel for. Applicants

? SERVICE LIST By Hand Delivery By Deposit in U.S. Mail Mr. Frank W. Karas Dr. Cadet H. Hand, Jr. Chief, Public Proceedings Bodega Marine Laboratories Branch, University of California Office of the Secretary P.O. Box 247 U.S. Atomic Energy Commission Bodega Bay, California 94923 Washington, D.C. 20545 Dr. Harry Foreman Atomic Safety and Licensing Center for Population Studies Appeal Board University of Minnesota U.S. Atomic Energy Commission Minneapolis, Minnesota 55455 Washington, D.C. 20545 Atomic Safety and Licensing Board Panel U.S. Atomic E4 x ij Commission Washington, D.C. 20545 Francis X. Davis, Esq. Office of General, Counsel U.S. Atordic Energy Commission Washington, D.C. 20545 John B. Farmakides, Esq. Atomic Safety and Licensing - Board U.S. Atomic Energy Commission Washington, D.C. 20545 Mr. Frederick J. Shon Atomic Safety and Licensing Board U.S. Atomic Energy Commission Washington, D.C. 20545 Russell Z. Baron, Esq. Brannon, Ticktin, Baron & Mancini' 930 Keith Building Cleveland, Ohio 44115 Joseph F. Tubridy, Esq. 4100 Cathedral Avenue, N.W. Washington, D.C. 20016 , j 1 2 i l}}