ML20080C544

Motion to Limit Consideration of post-record Submissions in Applicant .Certificate of Svc Encl

ML20080C544
Person / Time
Site:	Byron
Issue date:	02/03/1984
From:	Whicher J LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL, WHICHER, J.M.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8402080131
Download: ML20080C544 (6)

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. p UNITED STATES OF AMERICA C0cMQE0 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY- AND LICENSING bPOA D CFqCE OF ;EUtiTA' '

In the. matter of ) DCCXElyggjjEFVD

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COMMON 1EALTH EDISON COMPANY ~) Docket No. 50-454

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

INTERVENORS' MOTION TO LIMIT CONSIDERATION OF POST-RECORD SUBMISSIONS Intervenors, by their undersigned counsel, move to limit this Board's consideration of the post-record submissions p ro ffered by Edison's letter of January 27, 1984. In support of this motion Intervenors state as follows:

1. Edison's January 27 letter transmitted two preliminary reports by Edison on the reinspection program it is now conducting a t By ron , a staff critique of one of those preliminary reports, and one of several staff Inspection and Enforcement (I&E) reports relating to the reinspection program.

2. Edison's selective submission of partial post-record evidence relating to an incomplete, unevaluated, un-cross-examined program cannot be considered on the merits of Edison's appeal, for several reasons.

3. First, even once the reinspection program has been completed and evaluated by the NRC staff, its post-record developments cannot be considered on the merits until their 8402000131 840203

{DRADOCK 05000454 PDR gSC)gg

. . T r , ' ~ evidentiary weight has been tested through opportunity for

' discovery, cross-examination and presentation of rebuttal evidence by Intervenors. */

4. Second, this fundamental rule is required not only by elementary due process but also by the facts of this case. The Licensing Board below was apprised of the nature of the reinspection program and yet its members concluded that "we have no confi'dence in the reinspection program." (Initial Decision at 5.) Until adversary, evidentiary proceedings are conducted, no conclusions on the merits can be drawn from post-record information relating to Edison's questionable reinspection p rogram.

5. Third, it is premature at this time to consider post-

. record aspects of the reinspection program. Edison expects to complete physical reinspection by February 10. Additional time will be required for Edison to submit its final report to the staff, and for the staff to review and evaluate Edison's submission. As recently as the public meeting on the reinspec-tion program on January 27 at NRC Region III offices, NRC staff officials voiced a number of substantial criticisms of the reinspection program. These criticisms reiterated some of

• / These are basic rights under the Constitution, federal law, and NRC regulations . E.g. , Ohio Bell Telephone Co . v. Public Utilities Comm'n, 301 U.S. 292, 300, 304-05 (1937) (constit-utional due process); 5 U.S.C. 5556 (d) (Administrative Procedure Act rights to present evidence, to cross-examine and to rebut); 10 C . F . R . SS2.740 and 2.743 (NRC regulations establishing rights to discovery, to present evidence and rebuttal evidence, and to cross-examine) .

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. 1 4those noted by the Licensing Board (Initial Decision at 300),

as well~ as concerns about. the' justification for the statistical

' sampling criteria .and the engineering evaluations. In short,

-thejtime-is not ripe for this Board ' to consider post-record submissions on the reinspection progra,m 'for any purpose, let alone on the merits.

6. . Fourth, even if' consideration of post-record evidence

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on the -reinspection program!were appropriate at this time for any purpose, no such consideration could be allowed on the basis of selective, partial submissions by Edison. Edison has chosen to transmit to this Board fewer than all of the post-

're~ cord documents relating to the reinspection program. At the same L time,7 Edison has~ failed to respond to Intervenors' p'rio'r, and continuing requests for its . audit of the progvcm.

1 (See Exhibit A hereto, a letter from Intervenors' counsel to Edison's counselldated February 1, 1984.)

y 7. In s um, Edison's selective post-record submissions relating to the incomplete, unevaluated reinspection program

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cannot properly be considered by the Board for any purpose I" at this time. In the future, once the reinspection report and the : s taff evaluation thereof are complete, post-record evidence relating. to the reinspection program may properly i

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be considered for the sole and limited purpose of determining whether it has sufficient weight to justify a remand for further evidentiary proceedings before the Licensing Board.

u DATED: February 3,1984 Respectfully submitted, Douglass W. Cassel, Jr.

Jane M. Whicher 109 North

Dearborn,

1. 1300 Chicago, IL 60602 Attorneys for Intervenors Rockford League of Women Voters and DAARE/ SAFE By: %AD .

/ /[/[ g JANE M. WHICHER For Service:

Douglass W. Cassel, Jr.

Jane M. Whicher 109 North

Dearborn,

1. 1300 Chicago, IL 60602 (312) 641-5570

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' % BPI DM 4 Business and Professional People for the Public Interest 109 North Dearbots Street. Suito 7 300

• Chicago. Hhnois 60602 . Telephone. (312) 641-5570 j

k, February 1, 1984 Bruce Becker 13 HAM, LINCOLN & BEALE Th ree Fi rs t Natior.nl Plaza -

52nd Floor Chicago, IL 60602

Dear Bruce:

On January 4, 1934, I reaiiested that you provide me with a copy of Commonwealth Edison's audit No. 6-83-124 of the reinspection . program, which is mentioned in I 6 E report 50-454/

83-39. I ':.we tM ce reminded you of that request and have yet to receive i cesponse'as to whether you vill provide me with that re-oort.

Accor' ding to Edison's January ~ 12 submi ttal to P.egion III,

'there have been "othe r audits and surveillances of the reinspection

. program in addit ion to the above audit and 6-83-66 which was h produced at the / ur,ust hearing, At.this time I rcquest all reinspection audit and surveillance reports from vou.

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~ uould a >preciate a pren pt responte.

Very truly yours, c.- c3L Q - i b '-.- .

Jane M. Whicher

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

)

COMMONWEALTH EDISON COMPANY ) Docket No. 50-454

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

CERTIFICATE OF SERVICE I hereby certify this 3rd of February, 1984, that copies of "INTERVENORS' MOTION TO LIMIT CONSIDERATION OF POST-RECORD SUBMISSICNS" in the above-captioned proceeding were served on the following by deposit in the United States Mail, first class postage prepaid, or, as indicated by asterisk, by Federal Exp ress .

• Alan S. Rosenthal, Chairman Ivan W. Smith, Chairman Administrative Judge Administrative Judge f Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Christine N. Kohl Dr. A. Dixon Callihan Administrative Judge Administrative Judge Atomic Safety and Licensing Union Carbide Corporation Appeal Board P.O. Box Y U.S. Nuclear Regulatory Oak Ridge, TN 37830 Commission Washington, D.C. 20555 Dr. Richard F. Cole Administrative Judge

• Dr. Reginald L. Gotchy Atomic Safety and Licensing Administrative Judge Board Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Alan P. Bielawski, Esq.

Commis sion Bruce Becker, Esq.

Washington, D.C. 20555 Isham Lincoln & Beale Three First National Plaza Chicago, IL 60603 (HAND DELIVERED)

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• Richard J. Rawson, Esq. Office of the Secretary liitzi A. Young, Esq. of the Commission Office of the General Counsel ATTENTION: Docketing and U.S. Nuclear Regulatory Service Section Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Joseph Gallo, Esq.

Isham, Lincoln & Beale 1120 Connecticut Ave., N.W.

Room 325 Washington, D.C. 20036

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JANEM.WHIQHER February 3, 1984 s