ML20072N425

Answer Opposing Ohio Citizens for Responsible Energy 830630 Motion to Strike Portions of Applicant 830627 Answer in Support of NRC Motion for Summary Disposition of Issue 13. Motion Has No Basis.Certificate of Svc Encl

ML20072N425
Person / Time
Site:	Perry
Issue date:	07/12/1983
From:	Swiger M CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8307150316
Download: ML20072N425 (7)

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NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' ANSWER TO OCRE MOTION TO STRIKE PORTIONS OF APPLICANTS' ANSWER IN SUPPORT OF NRC STAFF MOTION FOR

SUMMARY

DISPOSITION OF ISSUE #13 By motion of June 30, 1983, Intervenor Ohio Citizens for Responsible Energy ("OCRE") requests the Licensing Board to strike portions of Applicants' Answer in Support of NRC Staff Motion for Summary Disposition of Issue No. 13, dated June 27, 1983 (" Applicants' Answer"). OCRE's Motion To Strike has no basis whatsoever and should be denied.

The essence of OCRE's argument is that the portions of Applicants' Answer which respond to arguments made by OCRE and Intervenor Sunflower Alliance Inc., et al.b! in opposition to 1/ OCRE's Motion to Strike is improper and should be denied on its face with respect to footnote 1 of Applicants' Answer, where Applicants address certain of Sunflower's arguments in opposition to the Staff's motion. OCRE does not explain why it is here_ entitled to speak for Sunflower, which has expressed no objection to Applicants' Answer.

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the NRC Staff's (" Staff's") motion for summary disposition

" constitute an impermissible reply brief" under the Commission's Rules of Practice. OCRE Motion To Strike at 1. However, OCRE cites no provision of the Rules which expressly prohibits a party supporting summary disposition from responding in its answer to arguments raised in an opposing party's earlier filed brief. What the Rules do prohibit is "further supporting statements or responses" following the opposing party's response to new facts and arguments presented in the supporting party's answer. 10 C.F.R. S 2.74 9 (a) .

Applicants have made no such additional filing; indeed, OCRE has not yet filed its response to Applicants' Answer. It simply does not follow from 10 C.F.R. S 2.749(a) that because a party may file only one statement in support of summary disposition, that state-ment must arbitrarily ignore the previously filed information submitted by other parties.

OCRE attempt 9 to support its interpretation of 10 C.F.R. 5 2.749(a) by citing cases which state that the burden of proof rests on the movant for summary disposition. OCRE Motion To Strike at 2. The issue of the ultimate burden of proof on summary disposition, however, is irrelevant to the question of

whether Applicants may in their Answer address arguments raised by Intervenors.2/

2/ If anything, it would be consistent with the fact that the burden of proof is on the movant for the movant to have the "last word."

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OCRE's assertion that until three years ago answers-in support of motions for summary disposition were not permitted by the Rules is also irrelevant. OCRE Motion To Strike at 2-3.

Such answers are now explicitly permitted.3/ Mereover, the Commission's Statement of Considerations accompanying the amendment of 10 C.F.R. S 2.749(a) to permit answers in support of motions for summary disposition contradicts OCRE's crabbed interpretation l of the Rules:

Since important legal and procedural consequences flow from a presiding officer's grant or denial of a motion for summary disposition, the Commission believes that the views of its regulatory staff, as well as the. views of other parties, should be con-sidered and may be of substantial assistance to the presiding officer. Therefore, the Commission is clarifying S 2.74 9 (a) to specifically permit responses from parties which support motions for summary disposition. The clarification will help ensure that the relevant issues are fully developed before the presiding officer rules on the motion and is consistent with the general policy of the 4

Commission's Rules of Practice to encourage parties 4 to express their views before adjudicatory tribunals.

45 Fed. Reg. 68919 (Oct. 17, 1980) (emphasis added). The rationale behind the provision that "[n]o further supporting statements or responses . . . shall be entertained" would seem to be that the i

3/ According to the Statement of Considerations accompanying the final rule which amended 10 C.F.R. S 2.74 9 (a) expressly to permit answers in support of motions for summary disposition, "it ha[d]

1 been a long-standing practice of the regulatory staff to file an

' answer to the motions of other parties for summary disposition -

in support or in opposition." 45 Fed. Reg. 68919 (Oct. 17, 1980)

, (emphasis added) . The Commission characterized the amendment as a " clarification" endorsing the Staff's long-standing practice. Id.

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benefits of further argument are marginal compared to the costs 1

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of delay. Applicants have not caused any delays by addressing Intervenors' arguments in Applicants' Answer.

Finally, OCRE claims that " Applicants have taken unfair advantage" of the fact that Intervenors submitted their answers to the Staff's motion earlier than required under the Rules.

OCRE Motion To Strike at 3. There are several answers to this claim. First, OCRE should have anticipated when it filed its answer early that its arguments might be addressed by Applicants.

Applicants were not prohibited by the Rules from doing so.

Second, fairness would seem to require "that the relevant issues are fully. developed," not that OCRE's interests be protected at all costs. OCRE appears more concerned with insulating its own arguments from criticism than with any question of fairness.

4 Third, it is simply not true that the portions of Applicants' Answer addressing Intervenors' arguments constitute the "'last word'"

on summary disposition of the turbine missile issue. OCRE Motion To Strike at 3. As OCRE acknowledges, it is entitled under 10 C.F.R. S 2.74 9 (a) to respond to any new facts and arguments raised in Applicants' Answer. Given this right to respond, OCRE has not shown that Intervenors have been " prejudiced" in any

4 way by Applicants' Answer. Motion To Strike at 3.

i .

For all of the above reasons, Applicants respectfully request i

that OCRE's Motion To Strike be denied.

Respectfully submitted,

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SRAW, PITTMAN, POTTS & TROWBRIDGE By: iiAdid -

b JAY E. SILBERG, P.C.

MICHAEL A. SWIGER Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036

, (202) 822-1000 Dated: July 12, 1983 J

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4/ As an alternative to striking portions of Applicants' Answer, $

OCRE proposes that the Licensing Board allow Intervenors to respond 2

to all facts and arguments presented by Applicants, regardless of whether they are considered "new." Aside from the fact that the Licensing Board has no power to ignore explicit limitations in the

! Commission's Rules of Practice, OCRE has not shown how it is

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prejudiced by following the procedures established by the Rules.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Answer.to OCRE Motion To Strike Portions Of Applicants' Answer

! In Support Of NRC Staff Motion For Summary Disposition Of Issue #13" were served by deposit in the United States Mail, First Class, postage prepaid, this 12th day of July, 1983, to all those on the attached Service List.

a

( f g'c} h 0 . b I h k Michael A. Swiger i

DATED: July 12, 19R3 i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

Before the Atomic Safety and Licensing Boa'rd

)

In the Matter of )

) Docket Nos. 50-440 THE CLEVELAND ELECTRIC )

50-441 ILLUMINATING COMPANY

' )

(Perry Nuclear Power Plant, )

)

Units 1 and 2)

SERVICE LIST Atomic Safety and Licensing Peter B. Bloch, Chairman Appeal Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section Dr. Jerry R. Kline Office of the Secretary Atcmic Safety and Licensing Board U.S. Nuclear. Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James M. Cutchin, IV, Esquire Mr. Glenn O. Bright Office of the Executive Atomic Safety and Licensing Board Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washingren, D.C. 20555 Washington, D.C. 20555 Chriscine N. Kohl, Chairman Ms. Sue Hiatt Atcmic Safety and Licensing OCRE Interim Representative Appeal Board 8275 Munson Avenue U.S. Nuclear Regulatory Commission Mentor, Ohio 44060 Washington, D.C. 20555 Terry J. Lodge, Esquire Dr. John H. Buck 824 National Bank Building Atomic Safety and Licensing Toledo, Ohio 43604 Appeal Board U.S. Nuclear Regulatory Commission Donald T. Ezzone, Esquire Washington, D.C. 20555 Assistant Prosecuting Attorney Lake County Administration Center Gary J. Edles, Esquire 105 Center Street Atomic Safety and Licensing Painesville, Ohio 44077 Appeal Board U.S. Nuclear Regulatory Commission John G. Cardinal, Esquire Washington, D.C. 20555 Prosecuting Attorney Ashtabula County Courthouse Atomic Safety and Licensing Jefferson, Ohio 44047 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .