ML19340A306

Supports Exceptions to 730913 Initial Decision.Certificate of Svc Encl

ML19340A306
Person / Time
Site:	Davis Besse
Issue date:	10/01/1973
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003050712
Download: ML19340A306 (6)

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October 1, .73

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o UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board 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' BRIEF IN SUPPORT OF EXCEPTIONS TO THE INITIAL DECISION ISSUED SEPTEMBER 13, 1973 Pursuant to 10 CFR S2.762 (a) , The Toledo Edison Company and The Cleveland Electric Illuminating Company (Applicants) herein submit a brief in support of Exception No.1 filed by Applicants on September 20, 1973, to the September 13, 1973 Initial Decision of the Atomj c Safety and Licensing Board 1/

(Licensing Board) .--

Exception No.1: The Licensing Board's ruling [Tr.

339B, Initial Decision 513], denying Applicants ' July 13, 1973 motion to strike Issues 4, 5, 6 and 7 on the ground that the' 'oalition for Safe Electric Power (the Coalition),

intervenor in this proceeding, had failed to meet its burden of going forward on these issues and had failed to make a prima facie case, is erroneous as a matter of law.

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1/ On consideration of the Memorandum and Order issued September 21, 1973 by the Atomic Safety and Licensing Board, which dealt with the subject matter of Applicants' Exception No.2, Applicants hereby withdr aw that Exception.

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Applicants ' July 13, 1973 motion to strike Issues 4, 5, 6 and 7 was based primarily on the fact that the Inter-venor, Coalition ~for Safe Electric Power, had presented no testimony on Issues 4 and 5 and that the testimony it had presented on ' Issues 6 and 7 had been -stricken as irrelevant.

Relying heavily on the decision of. the Atomic Safety and Licensing Appeal Board (Appeal Board) in Consumers Power Company .(Midland Plant, Units 1 and 2) , ALAB-123, RAI-73-6, 331 (May 18, 19 73) , Applicants argued that the Coalition had failed to meet its burden of going forward with evidence on these issues and had failed to make out a prima facie case.

In that decision, the Appeal Board held that while 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 specific reason (in this instance' alleged synergism) the permit or-license should be denied, that party has the burden of going forward with evidence to buttress that contention.

Once he has introduced sufficient evidence to esti.blish a prima facie case, the burdea then shif ts to the applicant who,'as part'of his overall burden of proof, must provide a sufficient rdbuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license. (original emphasis) RAI-73-5 at 345.

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LThe Staff. responded on July'20, 1973 in opposition to Applicants' motion, citing an~Appeai Board decision issued.

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subsequent to Applicants' motion, Wisconsin Electric Power Company, et al., (Point Beach Nuclear Plant, -Unit 2) , ALAB-137, 4

RAI-73-7, 4 91 (July 17, 19 73) . _

In that decision, the Appeal

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Board, - responding to the Licensing Board's " thoughts by way of dicta" on the contentions. requirement-(RAI-73-7.at 504), noted that the Atomic Energy Commission 's rules did not preclude an

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intervenor from building its. case defensively, on the basis of cross-examination. RAI-73-7 at 504-505. The purpose of Applican ts ' exception here is to seek clarification from the

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Appeal Board of these aspects of its Midland and Point Beach decisions.

The Licensing Board, having granted summary disposition

as to Issues 4 and 7 (Tr. 235) ,. denied the motion to strike A

r Issues 5 and 6 "in its desire to develop an adequate record".

Tr. 339-B; Initial Decision, para. 13. The Licensing Board

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did, however, require the Coalition to -identify the purpose cf 'its intended cross-examination on Issues . 5 and 6 and what the Coalition would show by that cross-examination. Tr. 340, 707-709, 742-743.

Applicants.are not convinced that.the showing required of the' Coalition by the Licensing Board was an adequate 1

substitute for the Coalition's burden.of' going forward. Having J

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had a fulliand complete opportunity for' discovery, the Coalition should have had no' difficulty in providing, by sworn statement i

Ti2/l The! Coalition filed no written _ response to the motion.

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or otherwise, -mi evidentiary basis for the contentions. The Licensing Board did not require the Coalition to come forward with any showing of substance to the Coalition's claims before permitting cross-examination. Nor did the Licensing Board require any showing prior to denying Applicants' motion to strike. In sum, the Licensing Board did not impose on the Coalition the burden of going forward.

Applicants respectfully request that the Appeal Board clarify its Midland and Point Beach rulings and more precisely spell out the nature of an intervenor's burden of going forward.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By A - v dQ Ger d Charnoff JayE/Siiberg Co elfprApplicants Dated: October 1, 1973

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October 1, 1973 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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THE TOLEDO EDISON COMPANY )

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and THE CLEVELAND ELECTRIC ) Docket .No . 50-3 4 6 ILLUMINATING COMPANY )

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(Davis-Besse Nuclear Power )

Station) .

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CERTIFICATE OF SERVICE.

I hereby certify that copies of " Applicants ' Brief in Support of Exceptions to the Initial Decision Issued September 13, 1973" were served according to the attached Service List, this 1st day of. October, 1973.

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Jai t. Silberg Co sel 5cr Applicants #

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SERVICE LIST By Hand Delivery ~ .By Deposit in U.S. Mail Mr. Frank W. Karas Russell Z. Baron, Esq.

Chief, Public Proceedings Brannon, Ticktin, Baron &

Branch Mancini Office of the Secretary 930 Keith Building U.S. Atomic Energy Commission Cleveland, Ohio 44115 Washington, D.C. 20545 Dr. Cadet H. Hand, Jr.

Atomic Safety and Licensing Bodega Marine Laboratory Appeal Board University of California U.S. Atomic Energy Commission P.O. Box 247 Washington, D.C. 20545 Bodega Bay, California 94923.

Atomic Safety and Licensing Dr. Harry Foreman Board Panel Center for Population Studies U.S. Atomic Energy Commission University of Minnesota Washington, D.C. 20545 Minneapolis , Minnesota 55455 Francis X. Davis, Esq. Joseph F. Tubridy, Esq.

Office of General Counsel 4100 Cathedral Avenue, N.W.

U.S. Atomic Energy Commission Washington, D.C. 20016 Washington, D.C. 20545 Dr. Lawrence R. Quarrels John B. Farmakides, Esq. RSD 4 Atomic Safety and Licensing Box 174 Board Charlottesville, Virginia 22901 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 Mr. A. S. Rosenthal Atomic Safety and Licensing Appeal Board

.U.S. Atomic Energy Commission Washington, D.C. 20545 Dr. Ck)1ui H. Buck Atomic Safety'and Licensing Appeal l Board U.S. Atomic Energy Commission Washington, D.C. 20545 s

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