ML20065M658

Reply to New Matters Raised by Applicant & NRC in Response to Alliance Motion to Reconsider Summary Disposition of Contention 1 Re QA & Qc.Disposition Should Be Denied Since Issues of Matl Fact Exist.Certificate of Svc Encl

ML20065M658
Person / Time
Site:	Byron
Issue date:	10/18/1982
From:	Cassel D DEKALB AREA ALLIANCE FOR RESPONSIBLE ENERGY, SINNISSIPPI ALLIANCE FOR THE ENVIRONMENT (SAFE)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20065M655	List: ML20065M648 ML20065M658
References
NUDOCS 8210210347
Download: ML20065M658 (5)

Text

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, UNITED STATES OF AMERICA I

NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING EQARD In the Matter of )

)

COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454

) 50-455 (Byron Station, Units 1 and 2) )

DAARE/ SAFE REPLY TO NEW MATTERS RAISED BY APPLICANT AND NRC STAFF RESPONSES TO DAARE/ SAFE MOTION TO RECONSIDER DAAP.E/ SAFE, by its undersigned counsel, hereby replies to two new matters raised by Commonwealth Edison and the NRC Staff in their responses to DAARE/ SAFE's Motion To Reconsider Summary Disposition of Contention 1 With Respect To Quality Assurance and Quality Control. DAARE/ SAFE has -not previously addressed either matter.

1. Timeliness DAARE/ SAFE's motion to reconsider is timely because the evidence on which it primarily relies - three September, 1982 affidavits and the NRC inspection report first provided to DAARE/ SAFE in mid-August, 1982_- was not reasonably available to DAARE/ SAFE at an earlier date. Considerable and lengthy investigative effort by DAARE/ SAFE was required in order to locate and secure testimony from the three affiants - two of whom are physically out-of-state full-time or most of the time.

The issues raised by their affida~vits are too important to exclude merely because DAARE/ SAFE's investigation-did not bear fruit sooner. Nor can DAARE/ SAFE be penalized for the failure 8210210347 821018 i PDR ADOCK 05000454 G PDR ]'

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of the NRC staff and Edison to apprise DAARE/ SAFE of the existence of the NRC inspection report, until long after DAARE/ SAFE's response to the motions for summary disposition was filed.

Even if DAARE/ SAFE's motion were untimely - and it is not -

there would be no prejudice to Edison or the NRC from granting the motion to reconsider. The briefing schedule on the motions for summary disposition filed in June was set before Edison announced its most recent postponement of the Byron fuel loading date until August, 1983. A new discovery and briefing schedule has now been set, and DAARE/ SAFE intends to comply with that schedule. / This absence of prejudice was in effect acknowledged by Edison at the August 18 prehearing conference when it stated that it "is prepared to, and will" litigate such issues (Transcript at 50); Edison cannot now be heard to claim prej udice . On the contrary, it is the public health and safety that will be prejudiced if these important issues and signi-ficant DAARE/ SAFE evidence are not heard.

2. The NRC Special Inspection The NRC Staff Response (p. 7) states that NRC Region III plans a special inspection into the allegations by DAARE/ SAFE's affiants, and expects the results by December 1, 1982.

-*/ The pendency of the League's contentions on QA/QC argues for, not against, granting DAARE/ SAFE's motion for reconsideration.

If maintained, those League contentions will place the issue of QA/QC before the Board in any event, and DAARE/ SAFE should be permitted to offer its witnesses, whose testimony is unique and relevant.

__y_._

l l Incredibly, the staff suggests that this inspection is a reason to deny, rather than to grant, DAARE/ SAFE's motion: "[I]f the present allegations are substantiated on inspection and otherwise prove of safety significance, DAARE/ SAFE can seek their evidentiary consideration at that time" (id.).

If accepted by the Board, this staff proposal would turn summary disposition practice on its head. Summary disposition is granted only if there are no genuine issues of material fact.

Where, as here, a party submits factually relevant and competent affidavits raising issues of material fact, summary disposition must be denied unless the opposing party demonstrates that the affidavits are baseless or immaterial. The NRC Staff here has not and cannot make any such showing.

In other words, the shoe belongs on the other foot: If the NRC inspection fails to " substantiate" DAARE/ SAFE's allegations, then the NRC Staff can renew its motion for summary disposition.

Short of that, summary disposition is inappropriate and the Board should grant DAARE/ SAFE's motion to reconsider summary disposition of Contention 1 with respect to quality assurance and quality control.

DATED: October 18, 1982 Respectfully submitted, Douglass W. Cassel, Jr.

Jane M. Whicher by: ,

N* '

Douglass W. Cassel, Jr. Douglab W. Cassel, Jr.

Jane M. Whicher 109 North

Dearborn,

1. 1300 Attorneys for DAARE/ SAFE Chicago, IL 60602 on matters relating to Quality Assurance / Quality Control

,.l. .

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

)

COMMONWEALTH EDISON COMPANY ) Do:ket Nos. 50-454

) 50-455 (Byron Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that I have served copies of DAARE/ SAFE Motion For Leave To File Attached Reply and DAARE/ SAFE Reply To New Matters Raised By Applicant And NRC Staff Responses To DAARE/ SAFE Motion To Reconsider on each of the persons listed on the attached service list by causing them to be deposited in the U.S. mail, firs t class postage prepaid, or, in the cases of Administrative Judges Margulies, Callahan and Cole, by Federal Express mail, this 18th day of October, 1982.

DATED: October 18, 1982 Douglass W. Cassel, Jr.

Jane M. Whicher l

by: bh Douglass W. Cassel, Jr. Douglass W. Cassel, Jr. hh2*'

Jane M. Whicher 109 North Dearborn Attorneys for DAARE/ SAFE Suite 1300 on matters relating to Chicago, IL 60602 Quality. Assurance / Quality Control l (312) 641-5570 l

l

& J

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,., o .

SERVICE LIST

! Morton B. Margulies, Chairman Steven C. Goldberg, Esq.

Administrative Judge Office of the General Counsel Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callahan Office of the Secretary of Administrative Judge the Commission Union Carbide Corporation ATTN: Docketing & Service P.O. Box Y Section Oak Ridge, Tennessee 38730 U.S. Nuclear Regulatory Commis sion Washington, D.C. 20555 Dr. Richard F. Cole Myron M. Cherry Administrative Judge Cherry & Flynn Atomic Safety and Licensing Board Three First National Plaza U.S. Nuclear Regulatory Commission Room 3700 Washington, D. C. 20555 Chicago, IL 60602 Alan P. Bielawski, Esq. Joseph Gallo, Esq.

Isham Lincoln & Beale Isham Lincoln & Beale One First National Plaza 1120 Connecticut Avenue, N.W.

Sist Floor Room 325 Chicago, IL 60603 Washington, D.C. 20036 i

.