ML20088A073

Motion to Dismiss Intervenor late-filed Contention Re Crankshaft Design of Transamerica Delaval Emergency Diesel Generators.Intervenors Cannot Be Expected to Make Any Sound Contribution.Certificate of Svc Encl

ML20088A073
Person / Time
Site:	Catawba
Issue date:	04/06/1984
From:	Mcgarry J BISHOP, COOK, PURCELL & REYNOLDS, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8404100505
Download: ML20088A073 (8)

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UNITED STATES OF AMERICA '84 APR -9 A9:52 1 NUCLEAR REGULATORY COMMISSION ,

BEFORE THE ATOMIC SAFETY AND LICENSING 1 BOARD" ' .

i In the Matter of )

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i DUKE POWER COMPANY, . et al. )

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Docket Nos. 50-413

) 50-414 (Catawba Nuclear Station, )

Units 1 and 2) )

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i APPLICANTS' MOTION TO DISMISS INTERVENORS' CONTENTION ON DIESEL GENERATORS i

During a telephone conference call on February 17, i

1984, the Atomic Safety and Licensing Board in this pro-ceeding admitted part of Intervenors' late-filed conten-tion dealing with tdue crankshaf t design of Applicants' TDI emergency diesel generators.1/ (Tr. 12,545). In balancing i the five factors governing admission of late contentions, the Board indicated its concern as to whether Intervenors i could satisfy $2.714(a)(1)(iii.) -- viz., the extent to j which Intervenors' participation on this issue could

" reasonably be expected to assist ' in developing a sound record." Because of the importance of this factor, - the Board ruled that Intervenors' contention on diesel

! generator crankshaft design was being admitted on the i

i 1/ The Board denied admission of the remaining 2 portions of Intervenors' proposed contention, which focused on TDI's QA program and the operating performance history of TDI generators.- (Tr. 12,549-51). The Board certified its ruling on these 2 issues'to the Atomic Safety and Licensing Appeal Board. (Tr. 12,550-51; Memorandum and Order of February 23, 1984). -

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condition that by April 2, 1984, Intervenors file with the Board and the parties (1) the names and the qualifications of the expert witness (es) Intervenors planned to call on the subject of diesel generators; and (2) a summary of these expert witnesses' proposed testimony.2/ (Tr.

12,548). The Board stated that if Intervenors' submission of information was determined to be: inadequate, "then, we

[the Board] at that point would dismiss.the contention."

(Tr. 12,548). Subsequently, during a March 14, 1984 telephone conference call, the Board reiterated to counsel for Palmetto Alliance: "You say you are looking for an expert, and I think you should be aware if you don' t find him by the 2nd of April, there isn't going to be any contention." (Tr. 12,610-11).

I To date, the Intervenors have not come forward with the names of any expert witnesses, nor have they submitted any outlines of proposed expert testimony on the subject of diesel generators. Moreover, in an April 2, 1984 telephone conference call,l/ counsel for Intervenor 2/ The basis for the Licensing Board's conditional admission of this contention was the decision in Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC (November 15, 1983), wherein the Appeal Board reiterated its earlier rulings that in addressing $2.714(a)(1)(iii), a petitioner should state "with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony." (slip op. at p. 18).

3/ This conference call was held between the Licensing 1

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a Palmetto Alliance stated (Tr. 49) that the filing required by this Board would not be made because "Intervenors have been unable to find an expert witness." Counsel for Palmetto Alliance acknowledged that due to this fact, Intervenors' diesel. generator crankshaft design contention "will no longer -- by automatic operation of Judge Kelley's order -- will no longer be:in the case" (Tr. 49).

In addition to their admitted failure to comply with these Board-ordered conditions, Intervenors' default on their discovery obligations on this contention provides a separate basis for a Board finding that Intervenors will be unable to contribute to the development of a sound record on their contention. Applicants' interrogatories to Palmetto Alliance and CESG on this contention4 / were formulated specifically to determine Intervenors' ability to contribute to developing a record on the adequacy of the crankshaft design of the Catawba emergency diesel generators. Accordingly, the interrogatories were based on analyses of the original and modified Shoreham crank-shafts (materials which Intervenors already had in their (footnote continued from previous page)

Board convened to rule on the emergency planning contentions in this proceeding -- Judges Margulies, Hooper and Lazo -- and the parties. A copy of the relevant transcript pages are attached to this motion.

4/ " Applicants' Interrogatories and Requests to Produce Documents on Diesel Generator Contention to Carolina Environmental Study Group and Palmetto Alliance," i March 11, 1984.

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possession), as well as an analysis of the DSRV-16 crankshafts, similar to those at Catawba.1/ To answer Applicants' interrogatories, Intervenors were required to demonstrate an ability to understand and to critique these analyses. Intervenors' interrogatory responses relating to these analyses did not do so. On the contrary, these responses, in which Intervenors answered only one out of sixty specific interrogatories on their own contention, clearly demonstrate that they cannot reasonably be expected to assist in the development of a sound record on this issue -- if, indeed, they can be expected to make any contribution at all.

1/ Applicants did not know whether Intervenors had this analysis _in their posession. Accordingly, Applicants provided Intervenors with a report by Mississippi Power & Light Co. containing a summary and pertinent conclusions relating to this analysis.

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t In view of Intervenors' failure to make the showing

required by the Board, Applicants move pursuant to 10 C.F.R. {2.730(b) that Intervenors' diesel generator contention be dismissed.

Respectfully submitted, J. Michael McGarry', III Anne W. Cottingham BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9833 Albert V. Carr, Jr.

DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704) 373-8994 Attorneys for Duke Power Company, et al.

April 6, 1984 l

Excerpt from April 2, 1984 Conference Call 1 On the crankshaf t design issue, which is the 2 first diesel generator contention, in the absence of a 3 prefiled testimony of an expert witness due today, which will 4 not be forthcoming since Intervenors have been unable to 5 find an expert witness, that contention will no longer --

6 by automatic operation of Judge Kelley's order -- will no 7

longer be in the case.

8 So then we have the Board's testing contention 8 and the contentions that are before the Board on our proposal 10 for revision. Those matters -- the Applicants give us 11 absolutely nothing by extending discovery in this case and 12 the only remaining contention does not even have a 13 termination.

I4 Now as to the schedule itself, this is the first 15 time we've heard it advanced. It wasn't advanced in either 16 the sit-down meeting with the Applicants or the NRC Staff.

17 I can react only very generally to suggest that providing 18 half-days for trial of contentions sounds to me to be 19 unreasonable in the extreme. We don't have a day-by-day 20 counter.-propo sa l . We would suggest that once we have a 21 handle on the witnesses to be called by Applicants and 22 witnesses that we should expect from NRC Staff and from 23 the Intervenor.4, then it should be a fairly simple matter 24 of sitting do.: ind making at least an intelligent estimate E

of the amount  : time it would take for direct and cross

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M gg -9 A9 52 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD; R.c'L-gocndihG & SEE 6 BRANCH In 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' Motion to Dismiss Intervenors' Contention on Diesel Generators" in the above captioned matter has been served upon the following by deposit in the United States mail this 6th day of April, 1984.

James L. Kelley, Chairman George E. Johnson, Esq.

Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington. D.C. 20555 Dr. Paul W. Purdom Albert V. Carr, Jr., Esq.

235 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 Board Panel Robert Guild, Esq.

U.S. Nuclear Regulatory Attorney-at-Law Commission P.O. Box 12097 Washington, D.C. 20555 Charleston, South Carolina 29412 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

i Jesse L. Riley William Clements 854 Henley Place Docketing and Service Section Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Karen E. Long, Esq. Washington, D.C. 20555 Assistant' 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 e

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C Michael McGarry, III

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