ML20086T813
| ML20086T813 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 03/02/1984 |
| From: | Mcgarry J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8403070048 | |
| Download: ML20086T813 (14) | |
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000KETED USilRC UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION '84 MAR -2 P4:09
. ~BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g,. g , _ ,
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[In the Matter'of-
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DUKE POWER COMPANY, et al.-
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-) Docket Nos. 50-413
) 50-414 '
(Catawba # Nuclear Station, ) .
. Units l'and 2) )
F:
APPLICANTS' RESPONSE IN OPPOSITION TO "CESG's' OFFER OF PROOF RELATING TO-REACTOR VESSEL TECHNOLOGY:
-FATIGUE - AT HIGH TEMPERATURE; STRAIN GAUGE TECHNOLOGY; AND STRUCTURAL-INTEGRITY OF LIGHT WATER REACTOR COMPONENTS" I~. ~ Introduction ,
Pursuant to'lO C.F.R. $ 2 . 730 ( c) ', Applicants hereby respond
'-in' opposition'to Intervenor CESG's above-entitled motion which
'requestsi'" reopening of the evidentiary record of the safety. phase of:the hearing," or, in the alternative, that the Licensing Board
'" accept [CESG' al filing as an offer of proof." See "CESG's Offer o
r of Pro.of Relating to Reactor Vessel Technology" etc. , dated
< February'14, 1984, at 2 (hereinafter cited as "CESG Filing").
Forithe reasonsL given below, - the CESG Filing has not presented matters that merit reopening the record. Neither should the
- Licensing Boar'd accept CESG's Filing as an offer of proof in L1 1ght' of 'the . fact's that the CESG Filing goes beyond a mere offer
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-f of proof, fand that it :is untimely ~ now that the record on (Contention 18/44 has been closed for two months.
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II.'- Backg roand On. October 3, .1983, . Intervenor CESG submitted prefiled
~ testimony regarding: Contention 18/44, which concerns reactor
- vessel ~ embrittlement. See Affidavit of Jesse L. Riley, dated
. February 15. =1984, at 1 (attached to CESG Filing) (hereinafter
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citedias Riley Affidavit"). CESG's witness on Contention 18/44, LMr. Riley,-states that~he received a catalogue from a publisher
"[s]hortly after" filing his testimony, which listed the three books on which his affidavit is based and from which he now seeks
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to have portions either introduced as exhibits in this 1 proceeding,.or received as an offer of proof. See Riley
=Affadivit at 1. Mr '. Riley, deterred by the cost of the books and
. uncertain ofltheir potential usefulness, "immediately requested
.each of.these books on~ interlibrary loan at the Main Branch of
- the Charlotte Public. Library." d.
I_d As stated in the CESG LFiling, "[t]wol of the ' sources. [ attached in excerpted form as
[ 'At$achments B and C to the CESG Filing] became available to [Mr.
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.Riley]oinLthe several weeks before testifying." CESG Filing at 1.
Mr. Rileyf testified in this proceeding cut behalf of CESG on D December 12 -and '13, 1983. See Tr. 11,081-11,114, Riley 12/12/83; Tr. ll3138-11,215' . Riley 12/13/83. -Mr..Riley attempted to
' deliver a " redirect statement" which would address for the first tbne in these. hearings some of the matters. contained in these two
': books'.. Tr . 11,209-12, 12/13/83. The Board ruled that these matters'were1not~ appropriate to-'prosent in that manner,.for they
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-amounted to further direct testimony. Tr. 11,212-15, 12/13/83.
Counsel for'Intervenor Palmetto Alliance requested an offer of proof t:
IMR.' GUILD: I'd'like an offer of' proof on this subject, Mr.
-Chcirman; I'd like the witness to be able to address the points that he raised by way of.an offer of proof, sir.
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JUDGE KELLEY: In writing; fine. File it.
Tr.. 11,214,z12/13/83.
According to Mr. Riley's affidavit, the third book, attached
-in' excerpted form as Attachment D to the Riley Affidavit, "was
.not'made known to [Mr. Riley] . until December 16, 1983, three-days-after. testimony on' Contention 18 was complete." Riley-Affidavit at' 3. On December 16, 1983, the Licensing Board closed the Record 'ori Contention 18/44. . Tr. 11,910, 12/16/83.
In the CESG Filing, the Intervenor requested that the Board creopen theErecord on Contention 18/44 to consider the matters raised in-the Riley Affidavit and.the excerpts from the three ia forementioned books,- Attachments B, C, and D. See CESG Filing at 1-2; Riley Affidavit at 1-3. In the alternative, the Intervenor requested the Board to accept the CESG Filing as an of fer~ of proof. CESG Filing at 2. As demonstrated by the following discussion, neither. course is appropriate in this instance.- CESG has not made a demonstration sufficient to sjustify reopening the record on Contention 18/44, nor is its offer of proof' timely,or a true offer of proof.
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III. : Argument-
- A. ' There is ' No Justification for Reopening the Record.
'It 'is notiaisufficient- reason to reopen the record simply
-yhecause,;.at]the time he filed-his prefiled testimony on
' Oontention 18/44, ' Mr.E Riley was not' aware of these three books
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which -he 'now ' seeks EU introduce in part 'as exhibit.s and which he
.uses toi support. additional-testimony contained in the Riley Affidavit. Regardless of when1Mr.. Riley became aware of these
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-books, it.is undisputed that they were published at some time in 1982.- 'See-Riley' Affidavit at 2,-3; Attachment A to Riley Affidavit atil', 2. 'Thus these books were presumably available oforlatnleast-ten months-(and potentially available for'as long as itwenty-two; months) prior to theidate Mr. Riley' filed his
.. testimony.[on behalf of- CESG on October- 3, 1983. In spite of the fact that1Mr. .Riley; received.a publisher's catalogue describing allithreelbooks "[s]hortly .after" October 3, 1983, and
?immediately requested ~all three: books through interlibrary loans, he .did' not . attempt to apprise the Board or the parties of their existence, let'aloneitheir possible relevance to his direct
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'_ testimony,f until _ his : attempt at--a " redirect statement" at the A
- close Lof. his : testimony on'; December .13, 1983. See Tr. 11,209-15, 12/13/83. LUnder the NRC case law, these - facts are insuf ficient
.to. merit reopening'the record-to admit' either Mr. Riley's
' '_ "affidavitLdiscussing' these books or- . excerpts from the books b> .themselves.
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_ _ :Under established NRC precedent,fa hearing is properly
- reopened:only When a'significant unresolved safety or
-environmental.issueLis present. Georgia Power Co. (Alvin W.
Vogtlel Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404, 414
^ '
(1975);LVermont Yankee Nuclear Power-Corp. (Vermont Yankee
. Nuclear Power'. Station), ALAB-138,'6LAEC 520,-523, reconsid.
denied, ALAB-l'41,_6 AEC 576 .(1973); ' Vermont Yankee Nuclear Power
~ Corp. (Vermont- Yankee Nuclear Power Station) , ALAB-124, 6 AEC 358,1365 n.101 (1973) . To reopen the record at a party's request, in a-proceeding in Which no initial decision has yet issued, the new .information :must be of such -a nature' that it might affect the joutcome of the proceeding. See, e.g.,.Public Service Co. of Oklahoma /(Black Fox-Station, Units l'& 2), ALAB-573, 10 NRC 775,
.804 (1979); Public Service Co. of New H&mpshire (Seabrook
" Station, Units lH& 2),.ALAB-422; 6 NRC 33, 64'n.35, 81-82-(1977),
a f f' d, CLI-78-1, ~ 7 NRC 1, a f f ' d s ub nom. New England. Coalition on
, Nuclear Pollution v. NRC,.582 F.2d 87_(1st_Cir. 1978).
Thus," consideration of-three factors is-appropriate for deciding ~ Whether to reopenithe record: (1) is the motion timely?
'(:2): does -it -address significant safety or-environmental issues?
-and (3) : might' a different result be ' reached had the newly proffered: material been' considered initially? E.g., Pacific Gas
&-Electric Co. (Diablo Canyon Nuclear Power Plant,1 Units 1 & 2),
.ALAB-728,517'NRC:777,c800 n.66 (1983); Pacific' Gas & Electric Co.;(Diablo Canyon Nuclear. Power Plant, Units 1 & 2), ALAB-598, ll'NRC 876,:879 (1980). Intapplying those standards to the facts
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4-of the situation at bar, it is evident that there is no justification ~for reopening the record on Contention 18/44. We address these factors-in order.
- 1. The Intervenor's Motion is Untimely. It is most
.significant that the'above-cited decisions on reopening the record speak in terms of "new" evidence being brought forward as the basis for reopening the. record. See, e.g., Diablo Canyon, ALAB-598, 11 NRC at 879 (evidence of earthquake that occurred threefweeks after issuance of partial initial decision). "[I]t is well-settled-that, in order to obtain a reopening of an evidentiary record, .a-party must establish, inter alia, the existence ~of-newly discovered evidence having a material bearing upon'the proper result of the proceeding." . Duke Power Co.
(William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 u
NRC 453, 465 (1982). Yet, as discussed supra, pp. 3-4, these
. publications which are the subject of the CESG Filing are "new" only with respect to Mr. Riley's subjective awareness. All three were published at some'thne in 1982. Mr. Riley was aware of all three books shortly after submitting his prefiled testimony on
' October 3, 1983. Being in the nature of further direct testimony, raising matters beyond the scope of Mr. Riley's prefiled testimony, Mr. Riley should have brought.the books to I the' attention of the-Board and the parties at that time, or, in any event, at some' time prior to testifying on December 13, 1983 if he hoped .to rely on them.
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_ 'In' sum, the-information submitted by CESG is neither new nor (submitted: in a. timely! manner.
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, :2.: The CESG Filing Does Not Raise a Significant Safety or LEnvironme'ntal Issue. .In Contention'18/44, the_Intervenors
? stated:
The. license-should not< issue because reactor degradation in the form _~of a'much more rapid increase'in~ reference
, temperature'than.had been anticipated has occurred at a
'-number of PWRs; including Applicants' Oconee Unit 1. Until and. unless the :NRC and the industry can avoid reactor embrittlement, Catawba should not be permitted to operate.
.ApplicantsLsubmit that, upon. examination, the Riley Affidavit
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! does not appear to? raise any'significant, new safety or
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environmental? issue,'~as required for reopening the record. See,
- e.'g . ,f Diablo Canyon,' ALAB-598, .11 NRC at. 879.
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!InLthe:-Riley1 Affidavit;and its Attachments, CESG is simply.
attempting toLbolster the-record in support of its case now that (Applican'ts' ' proposed [ findings of fact have -been available for
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.Intervenors' perusal since February 8. "The three books.
' identified in the ' Riley Affidavit, excerpted as Attachments B, C,
.and D,fpresent.no mattersfnew-to this record.1/ This situation Lisinoticomparable',~for example, to.the sudden availability of new Linformationiin.-Diablo~ Canyon, . supra, = ALAB-598, by- way of an
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[ earthquake Which occurredt'hree, weeks after the issuance of a 11 / LThe:first book, Fatigue at High Temperature, covers issues 5
'whichswere ' addressed by Mr. Riley's testimony.
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See, e.g.,
CESG Exh.'133,fRiley,fp. 5. The subject of the second book, Strain' Gauge Technology,,was covered in the hearing as well.
See,Je.g., Tr. 11,208,- Riley 12/13/83. The relevant portion lot the third book, Structural Integrity of Light Water-
- -Reactor' Components, Chapter 4, " Pressurized Thermal Shock of PWR Vessels,." was likewise'a topic of testimony at the
- hearings. 'See,'e.g., Lapps. Exh. 92, Mager and Meyer, p. 15.
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Lpartial' initial decision. Since the matters-raisd by the CESG
~ Filing.are ofLthe same nature as_the testimony already presented,
- their significance is limited.
'Despite' extensive cross-examination by Mr. Riley of Applicants' witnesses on Contention 18/44 during the hearings,
. the.Intervenor was unable to refute-their testimony. See Tr.
=10,872-928, 10,945-57, _Mager'and Meyer 12/12/83. This was true Edespite the fact that CESG's' representative, Mr. Riley, already
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had had two of. the three books -in question for several weeks
!before he himself testified later that day. See CESG Filing at
- 1. His awareness of the contents of these two books was s
(similarlyinot employed to affect the testimony of the Staff's
- witness.. See-Tr. 10,970-11,052,- Elliot 12/12/83. The information co'ntained-in the third book, excerpts of which are appendedrto the Riley' Affidavit as Attachment D, similarly does not calliinto doubt .the conclusions of the witnesses presented by the-Applicants-and the Staff.- If the'information containca in this third book were _ suspected to .be of sufficient importance to.
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'n'ow merit reopening;the record, Mr. Riley could have, at a minimum, questioned-the witnesses as to their awareness of the linformation contained therein,1for Mr. Riley knew of the book's existence and had a; summary of. its contents. See, Riley AffidavitEat 1; Attachment A to Riley Affidavit at'2. In light of s thei foregoing, 'it is evident that the Riley Affidavit and-LAttachmento do not raise a-significant safety or environmental
- Tissue.
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- 3. -The CESG Filing Does Not Support the Board Reaching a Different Res ult. Assuming arguendo that the Board should find in Applicants' favor in its ruling on Contention 18/44, the material submitted by CESG is not sufficient to establish that it
- might affect the result had it been available initially.2/
'Since,Las stated in the previous section, the CESG Filing does not raine aLsignificant safety or environmental issue, it cannot be' presumed to lead the Board to reach a different result from that which it will draw'from the existing record. Rather, this is' simply a tardy attempt by Mr. Riley to bolster his already existing position on the closed record.
In view of the above, the Intervenor has failed to demonstrate that the information contained in the Riley Affidavit
. and its Attachments might af fect the result to be reached on Contention 18/44. A consideration of all three factors
- demonstrates that the CESG Filing does not merit reopening the record on Contention 18/44.
B.. The Belated CESG Filing Should Not Be Accepted as an Offer of Proof.
On December 13, 1983, the Licensing Board requested that any offer of proof as to the content of Mr. Riley's proposed
~ " redirect" testimony be filed in writing. Tr. 11,214, 12/13/83.
2/ Applicant's note once again that these three books were in fact-available initially, having been published in 1982. For
. the purpose of analyzing this third factor, ' the Applicants relegate this fact to the background, having addressed it elsewhere in this-motion. See Section III.A.l. of this motion.
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- The CESG Filing '(dated February 14, 1984) was submitted in part3 /
in response'to this invitation.' Because it does not satisfy the requirements of'an offer of proof, and is untimely, the
. Applicants oppose receiving the CESG Filing as an offer of proof.
An offer of proof, by definition, allows "the party s aggrieved by [an' evidentiary] ruling [to] indicate for the record
.- . . the answer which would have been given . . . ." Black's Law Dictionary.976 (rev. 5th ed. 1979). Yet Mr. Riley's affidavit contains numerous references to one of the booka which he. admittedly had~not yet obtained. See CESG Filing at 1; Riley Affidavit at 3-6; Attachment D to Riley Affidavit. With regard to the third book, Mr. Riley could not have been in a position to offer any substantive testimony on December 13, 1983, for by his own admission he had not yet obtained the book. These portions of the CESG Filing are clearly improper as an offer of proof, for they_go well'beyond an indication of the answers which would have been given had the ettempted " redirect" testimony of Mr. Riley been permitted. At best they indicate whr.t Mr. Riley would have testified about:had he conducted his research thoroughly.before
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filing his testimony.
The . remainder of the Riley Af fidavit and the other Attachments thereto,.are objectionable as an untimely offer of proof. The Licensing Board extended its invitation to file a written offer of proof on December.13, 1983. It was over two months 'later that . the CESG Filing was submitted to the Board.
- 3/ The CESG; Filing also asks for a reopening of the record, as described above. See CESG Filing at 1-2.
This~ offer of proof is particularly untimely when one considers theifact'that the first two of these books, which are the only two - properly part of -an of fer of proof, became available to Mr.
Riley "several weeks before testifying" on' December 13. CESG
. Filing at 1. Yet he made no attempt prior to December 13 to apprise.the Board of even their' existence despite the fact he
_ viewed.them as providing additional information not addressed by his prefiled testimony of October 3, 1983. -Although Applicants
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have in the'past raised no objection.to offers of proof, the untimeliness. of this submission requires Applicants to object in thisiinstance.' .Tae CESG Filing should be rejected even as an
- offer. of: proof for it' is not truely reflective of what Mr.
Riley's testimony would have covered 'and, being filed over two months after it-was first mentioned, untimely.
IV. ~ Conclusion.
The CESG Filing.does not. establish'an adequate basis for
_ reopening the record on Contention 18/44. Neither does the CESG filing-constitute an accurat'e;or' timely offer of proof on Mr.
' Riley's disallowed " redirect" testimony. Accordingly Applicants J, - _ . - . _ . . -
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l- urge that the . Licensing Board reject the Intervenor's documents 7
for either of these asserted purposes.
Respectfully submitted, J. Michael McGafry, ITA Mark S. Calvert BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Washington, DC 20036 (202)-857-9800 Albert V. Carr, Jr.
Ronald L. Gibson DUKE POWER COMPANY
-Post Office Box 33189 Charlotte, N.C. 28242 Attorney for Duke Power Company, et al.
. March 2, 1984-F
. A.
. Q-00CKETED USHnc UNITED STATES OF AMERICA '84 MR -2 r~4 :09 NUCLEAR REGULATORY COMMISSION UflCE DF Sk q BEFORE THE ATOMIC SAFETY AND LICENSING 3d gEfiY}o
.Ini the Matter of )
)
DUKE. POWER COMPANY, et al.
) Docket Nos. 50-413
) 50-414
( Catawba' Nuclear Station, )
. Units-1-and.2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response in Opposition to CESG's Offer Of Proof Relating to Reactor Vessel Technology: Fatigue At High Temperature; Strain Gauge Technology; And Structural Integrity of Light Water Reactor Components" in the above captioned matter has been served upon the following by deposit in the United States mail this 2nd day of March, 1984.
JamesfL. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Boar'd Panel Director U.S. Muclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington,1D.C. 20555 Washington, D.C. 20555 Dr.cPaul W.'Purdom Albert V. Carr, Jr., Esq.
1235 Columbia Drive Duke Power Company Decatur, Georgia 30030 P.O. Box 33189 Charlotte, North Carolina 28242 Dr. Richard F. Foster Richard P. Wilson, Esq.
P.O. Box 4263 Assistant Attorney General Sunriver, Oregon 97702 State of South Carolina P.O. Box 11549 Chairman- Columbia, South Carolina 29211 Atomic Safety and Licensing Boards Panel' Robert Guild, Esq.
U.S. Nuclear Regulatory Attorney-at-Law Commission P.O. Box 12097
. Washington, D.C. 20555 Charleston, South Carolina 29412 k '-
y,..
4 Chairman Palmetto Alliance Atomic Safety and Licensing 2135 1/2 Devine Street Appeal Board Columbia, South Carolina 29205 U.S. . Nuclear Regulatory Commission Washington, D.C. 20555 Jesse L. Riley
- Scott Stucky 854 Henley Place Docketing and Service Section Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Karen E. Long,- Esq. Washington, D.C. 20555 Assi'stant Attorney General N.C. Department of Justice Don R. Willard Post Office ~ Box 629 Mecklenburg County Raleigh, North Carolina 27602 Department of Environmental Health John Clewett, Esq. 1200 Blythe Boulevard 236 Tenth Street, S.E. Charlotte, North Carolina 28203
. Washington, D.C. 20003 Bradley Jones, Esq.
~ Regional Counsel,.
. Region II-
-U.S. . Nuclear Regulatory Commission Washington, D.C. 20555
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/ .
,. Michael McGar III[/ ~~
- Indicates hand delivery.
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