ML20127F038
| ML20127F038 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 06/21/1985 |
| From: | Brenner L Atomic Safety and Licensing Board Panel |
| To: | COMMONWEALTH EDISON CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), ROREM, B. |
| References | |
| CON-#285-553 LBP-85-20, OL, NUDOCS 8506240758 | |
| Download: ML20127F038 (26) | |
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. 1 UNITED STATES OF AMERICA seC#ETEo NUCLEAR REGULATORY COMMISSION USNRc ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
kh56 Lawrence Brenner, Chairman Dr. A. Dixon Callihan yf'CH$k,y
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Dr. Richard F. Cole SERVED JUN 241986 In the Matter of Docket Nos. 50-4560L-
) 50-457 COMMONWEALTH EDISON COMPANY )
) LBP-85-20 (Braidwood Nuclear Power Station, )
Units 1 and 2) ) June 21, 1985
)
MEMORANDUM AND ORDER ADMITTING ROREM ET AL.
AMENDED QUALITY ASSURANCE CONTENTION INTRODUCTION By motion submitted to the Board on May 24,.1985, Intervenors Rorem et al. requested the admission of an amended quality assurance (QA) contention addressing various alleged QA deficiencies in the Braidwood Nuclear Power Station. This is the second time Intervenors have filed a QA contention in this proceeding. The initial QA contention was late t'
filed on March 7, 1985. In a Special Prehearing Conference Order (SPC0), the Board rejected the original proposed QA contention, 4
essentially for lack of bases and specificity. LBP-85-11, 21 NRC ,
slip op, at 24-44 (April 17, 1985).
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In an exercise of our discretion, we gave the Intervenors an opportunity to file an amended contention. In doing so, we set forth certain criteria against which we would measure the admissibility of any amended contention. SPC0, at 41-42. These criteria, which we discuss later in this order, were designed to make clear the requirements for the bases, specificity and significance of Intervenors' late-filed QA contention.
We now have before us the above-referenced Intervenors' Motion proposing its amended QA contention, and Applicant's and the NRC Staff's Responses in opposition to admission of the contention, both dated June 7, 1985. Also before us is Applicant's April 29, 1985 Objections (at 9-13) to the SPC0 ruling which permitted Intervenors to file an amended contention and the Staff's May 6,1985 Objections to the SPC0 which agree with Applicant's. We have considered the objections, and see no basis to reconsider and change our conclusion and reasoning set forth at length in the SPC0. We find that the amended QA contention, with the exception of part 2, substantially complies with the requirements set forth in the SPC0, raises potentially significant QA issues, and clearly meets the bases and specificity requirements of 10 C.F.R. 5 2.714. Therefore, we admit the amended contention as an issue in controversy in this hearing, with the exception of parts 2A and B, which we reject, and part 2C on which we defer a ruling.
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SPC0 RULING To the extent still pertinent to our ruling later in this Order admitting the amended QA contention, we discuss some of the objections 1 to the SPC0 in the context of that ruling. However, at the outset we note from the parties' objections that portions of the SPC0 appear to have led to some misapprehension of our ruling on the admissibility of the original QA contention. The SPC0 clearly rejected the Rorem QA contention as it was originally filed. We did, however, provide Intervenors with an opportunity to submit a separate, specific and well-based amended QA contention after deposing NRC Staff Region III Administrator James G. Keppler.1/
In response to the SPC0, both Staff and Applicant objected to the route the Board permitted Intervenors to pursue.SI The primary thrust of each party's objections was their characterization that our ruling II For reasons elaborated upon in the SPC0, the Board allowed Intervenors to depose Mr. Keppler prior to submitting their contention because Mr. Keppler's statements, in large part, formed a strong basis for our interest in and concern with the QA problems to which he had alluded. We also recognized that the NRC Staff might wish to have Mr.
Keppler accompanied by another NRC Staff member who was familiar with the specifics of the QA program at the Braidwood facility. Mr. Robert F. Warnick was deposed with Mr. Keppler on May 20, 1985. Mr. Warnick is a Reactor Projects Branch Chief in Region III, where Braidwood is located.
SI Staff's Objections, at 5-7; Applicant's Objections, at 9-13.
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. i was tantamount to a conditional admission of a contention, such as was prohibited by the Appeal Board decision in the Catawba operating license )
l proceeding. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), )
i ALAB-687, 16 NRC 460, 466-67 (1982). We disagree with the parties' l
. l characterization. i Our ruling on the QA contention should not be misconstrued as an effort to effect a conditional admission. The contention was rejected.
Had Rorem not refiled a contention substantially complying with the stringent requirements we set forth in the SPC0, no Rorem QA contentions would be admitted for litigation in the Braidwood operating license proceeding. Our SPC0 explained that the Board would review a QA contention and judge it anew on the admissibility criteria of basis, specificity and significance of the issues, and our further requirements for organization of the contention in order to meaningfully apply these criteria. SPC0, slip op, at 41-43. Our ruling did not require Intervenors to repiead their case under the factors governing late contentions. 10 C.F.R. s 2.714(a)(1)(i-v). The Board had analyzed these factors in the SPC0. As part of that analysis, we had indicated that our views on some of these factors depended on the quality of the amended contention. SPC0, slip op. at 29, 32, and 35. Accordingly, we withheld making the final balancing among the factors until we were provided with a new QA' contention against which the final balancing governing late contentions could be applied. A primary reason undergirding the Board's earlier decision not to draw the final balance
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among the factors was our belief that if the newly submitted contention was of inferior quality, it would provide the Board with prima facie evidence compelling us to review our expectation that the QA issues were apparently significant and that Intervenors would meaningfully contribute to building the Braidwood record. As discussed below, we have not found the amended QA contention to be materially deficient.
At bottom, Applicant and Staff wish we had not followed our ruling to reject the original QA contention with the conclusion in the SPC0 to grant Intervenors an opportunity to attempt to file an amended QA contention which meets the requirements for admission as an issue in controversy. It may well have been within our discretion to forever bar the Intervenors at that point. Apparently Applicant and the Staff have little desire to permit Intervenors an opportunity to put the apparent QA problems at Braidwood under the lens of a contested litigation.
However, our decision to exercise our discretion as we did manifestly does not tear asunder the fabric of NRC jurisprudence, as one might conclude from Applicant's and Staff's complaints. Indeed, apparently overlooked by the Applicant and Staff is the Express recognition in Section 2.714(a)(3) of the Board's discretion to permit the amendment of a petition to intervene at any time, provided the amended contention is acceptable under a balancing of the factors governing late filings as well as the bases and specificity requirements applicable to all contentions. See also 10 C.F.R. 6 2.714(b). Even in the absence of this specific regulation, inherent in a trial board's duty to conduct a
fair hearing and regulate the course of such a hearing, there must lie the power to exercise the discretion to permit amendments to defective initial pleadings when the ends of justice, or, as in this case, the integrity of the hearing process and reasonable assurance of the health and safety of the public would be better served by doing so. See, e.g.,
10 C.F.R. 5 2.718.
It is the Board's conclusion, having reviewed the arguments in both Applicant's and Staff's Objections, that the QA contention rulings, explained at great length in the SPC0, were manifestly within the Board's judicial discretion. We continue to adhere to the propriety of our SPC0 rulings, as we are unpersuaded by the allegations that the QA rulings contravened the precepts set out in Catawba. We see no reason to refer our SPC0 ruling to the Appeal Board pursuant to 10 C.F.R. @
2.730(f), contrary to the passing suggestion in Applicant's Objections (at 13) that we do so.
THE AMENDED QA CONTENTION As noted above, on May 24, 1985, Intervenors took the opportunity afforded by the Board's SPC0 to submit a new QA contention. " Motion to Admit Amended Quality Assurance Contention," hereafter "Rorem Motion" or "QA contention." Rorem's Motion includes a lengthy explanation of the alleged breakdown of quality assurance at Braidwood (Rorem Motion, at 1-8), the corrective action programs currently pending at the plant
4 (Id. at 8-12), and other assorted points, some relating to the Board's
- suggestion that Intervenors designate the potential witnesses who will offer testimony to establish the elements of their claim. I_d. at 12-15.
The QA contention itself is organized to track most of the 10 C.F.R. Part 50, Appendix B criteria, setting forth a group of alleged violations of each specified criterion.EI We find that as a general proposition Rorem has substantially j complied with the directives we set out in the SPC0. As discussed herein, we reject only paragraphs A & B and defer a ruling on paragraph
, C of group 2, addressed to harassment, intimidation and retaliatory
- action against Braidwood site employees. The items we do not admit are not intertwined with the remainder of the contention; we have no difficulty separating these portions from our admission of the rest.
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On June 7, 1985, Applicant and Staff responded in opposition to j
Rorem's motion to admit its amended QA contention.S/ These parties I
SI~ We view the actual contention itself to be the preamble at page 16 through the second line of page 17, the last two lines of page 18, and ,
- pages 19-47. The limits.of the contention are controlled by the
! - specific alleged occurrences of deficiencies set forth in the lettered paragraphs, despite broad language in the preamble and the numbered paragraph which introduces each of the 14 Appendix B criteria groupings of alleged violations.
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SI Applicant's Response in Opposition to Intervenors' Motion to Admit i Amended Quality Assurance Contention; NRC Staff Response to Bridget Little Rorem, et al. Motion to Admit Quality Assurance Contention.
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i expressed similar concerns about the form and content of the QA )
contention. They requested that the Board deny the contention's admission into the proceeding because, they claim, the contention lacks the necessary basis and specificity, there is no pattern to be construed from the list of deficiencies, the corrective action programs should not be included in the litigation of quality assurance issues, and Intervenors did not readdress the arguments on why they should prevail under the five criteria of 10 C.F.R. 9 2.714(a)(1) applicable to admission of late-filed contentions. The SPC0 set out what our method of evaluating the Intervenors' amended QA contention would be if they chose to file ore by the deadline we set. SPC0, slip op. at 41. The Board adheres to our obligation pursuant to Section 2.714(b) to determine whether the QA contention meets the basis and specificity requirements, as well as applying our own more demanding standard that Intervenors "must submit a highly detailed petition tailoring their allegations and the underlying data so we may adjudicate a carefully focused, well reasoned contention." SPC0, slip op. at 32.
Bases and Specificity of the QA Contention The basis and specificity requirements are long-standing in NRC practice. Intervenors must set forth the basis for the asserted contention, 10 C.F.R. 5 2.714(b), although the evidence on which the assertion is grounded is not necessary at the pleading stage.
Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2),
LBP-80-30, 12 NRC 683, 688 (1980), quoting Mississippi Power & Light Co.
(Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 426 (1973). At the very least, Intervenors can provide sufficient basis by a reference to a source and an assertion drawn from that reference.
Houston Lighting & Power Co. (Allens Creek Generating Station, Unit 1),
ALAB-590, 11 NRC 542, 548-49 (1980). See also Commonwealth Edison Co.
(Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 687 (1980), and cases collected therein. However, because of the inherently broad nature of a QA contention, the basis (and specificity) requirement must be rigorously applied in these circumstances. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-83-39,18 NRC 67, 89 (1983).
Here, Rorem asserts that Applicant's QA program is deficient to the extent that there is significant doubt that the safety-related components, structures and systems will perform satisfactorily in service. Rorem Motion, at 16. Intervenors provide, as the bases for their claim, statements made by Mr. James Keppler when he testified in the Byron operating license proceeding and during his more recent deposition (Rorem Motion, at 17), as well as extracts frcm various NRC Staff inspection reports. Rorem Motion, at 19-47. Particular items are highlighted by Intervenors as the foundation predicate to their overall thesis that Braidwood's QA program has been inadequate. Rorem's contention does not run afoul of the Licensing Board's ruling in the Browns Ferry proceeding that a contention may not incorporate massive
documents by reference in an effort to supply a basis for an intervenor's proposition; the contention clearly identifies and summarizes the incidents being relied upon, and identifies and appends the specific portions of documents (mostly NRC inspection reports) in support of its position. Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 & 2), LBP-76-10, 3 NRC 200, 216 (1976). In any case, it is not appropriate for the Board to judge the valioity of Rorem's specific, well-based assertions at this point in the proceeding.
A licensing board is not to judge the merits of the contention, which is exactly what Applicant and Staff would have us do if we were to evaluate now the facts surrounding the incidents Intervenors claim combine to comprise an overall QA failure. Grand Gulf, supra, 6 AEC at 426.
The Applicant and Staff have seized upon the Board's reference to the language contained in the Callaway case which notes that in any construction project of the magnitude and complexity of a nuclear plant there are bound to be isolated instances of inadequate workmanship due to imperfect quality assurance supervision. Union Electric Co.
(Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983), cited at SPC0, slip op. at 42. Our purpose in citing Callaway was to put Intervenors on notice that we would not accept vague, frivolous and isolated claims of inadequate construction to support their general thesis. We did not, however, intend the Applicant or Staff to create a shield in those words, wielding the Callaway holding as a threshold
protection against reaching the merits of any of Intervenors' QA concerns, where the alleged instances of QA deficiencies are, as here, pleaded with specificity and bases and do not appear at this point to be frivolousintheaggregate.EI With regard to the parties' complaints that Rorem's contention does not meet the standards for specificity, we remind both Applicant and Staff that the specificity requirement "is for the purpose of framing issues which will be subject of subsequent discovery and proof in an evidentiary hearing." Comonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2), LBP-80-30, 12 NRC 683, 687 (1980). Neither party can reasonably allege that the contention is vague. Clearly, the parties are "sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose."
El Applicant (Response, at 10) does not dispute that NRC Staff inspection reports referenced by Intervenors found deficiencies in the implementation of QA programs by several Braidwood site contractors which required extensive corrective action programs (which are still in progress). Applicant adds:
It is the nature of an effective QA program, however, to remedy identified deficiencies and to right itself if it has begun to go off course. This is what happened at Braidwood.
Id. This may be correct. However, now that Intervenors have met the bases and specificity requirements and our additional SPC0 requirements (which we imposed both because this was a late contention and because of the nature of QA issues), they are entitled to try to prove on the merits that, contrary to Applicant's view, the QA program has not been
" righted" and adequate corrective action has not been taken.
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Philadelphia Electric Co. (Peach Bottom Atonic Power Station, Units 2 &
3), ALAB-216, 8 AEC 13, 20-21 (1974). Indeed, due to the requirements imposed by our SPC0, this contention puts the Board and parties on very specific notice of what will be litigated, with the exception of part2.5I Intervenors' second grouping of QA deficiencies alleges incidents of harassment, intimidation and retaliatory action against Braidwood site employees who expressed safety and quality concerns, in violation of 10 C.F.R. 9 50.7 and Criterion I of Appendix B. We agree, in part, with Applicant's objections (Response, at 21-22). Paragraphs A and B of part 2 of the contention (Motion, at 22-23) are too' vague in bases and specificity even for a timely contention. They are also fatally SI As mentioned above (page 7), Intervenors have organized their contention into 14 groups of violations, with each group alleging a violation of one of the criteria of 10 C.F.R. Part 50, Appendix B.
Intervenors claim that they list each violation under only a single criterion to avoid duplication. Rorem Motion, at 13. However, they state that "many of these deficiencies canstitute violations of multiple criteria and Intervenors hereby allege each such deficiency to be a violation of each and every applicable criteria." Id. at 18. This is contrary to the requirements for the amended contention we explicitly set forth in the SPCO. There the Board made plain its interest in holding Intervenors to a high standard of pleading, including the delineation of the exact basis for each allegation, a precise specification of each alleged deficiency, the underlying data in support of the deficiency, the patterns created when the deficiencies are aggregated and why each specified deficiency supports the overall unacceptable pattern. SPC0, slip op. at 41. In light of the foregoing, we do not approve of the Intervenors' approach and will not allow them to pursue a course of attempting to demonstrate patterns of inadequacies beyond the specific instances set forth under each alleged pattern in the contention as it now stands.
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O deficient in meeting our requirement that Intervenors set forth the specific instances which form the bases of each of their allegations of a pattern of QA deficiencies. Certainly at this late date, the bare allegations that site employees have contacted Intervenors in confidence to express concerns regarding quality and retaliation, and that Applicant has not taken effective action to address or correct such unspecified complaints, do not infonn the Board or the parties of the specifics which Intervenor would seek to litigate, or whether there is any basis to pursue such litigation.
Accordingly, we do not admit paragraphs A and B. We defer our ruling on paragraph 2C (Motion, at 23-24), which relates to alleged harassment by supervisors of site quality control inspectors employed by the electrical contractor, the L. K. Comstock Company. The August 17, 1984 letter by one of the inspectors (Intervenors' Exhibit 15) does provide specific allegations of intimidation and harassment, contrary to the summary in NRC Inspection Report 50-456/84-34, at 4. Intervenors' Exhibit 16. We will also permit Intervenors to include the other alleged examples of harassment of and retaliation against L. K. Comstock inspectors which are only vaguely alluded to in paragraph 2C of the contention and in the referenced inspection report and deposition of Mr.
Warnick (at 177-78). All other such instances to be included must be set forth by Intervenors, with bases and specificity, by a received date of July 12, 1985.
u In addition, unlike our general finding below that it is not essential for admission of the QA contention for Intervenors to provide witnesses, we find they must do so with respect to paragraph 2C. The nature of the allegation of harassment of L. K. Comstock inspectors requires Intervenors to prepare testimony and present witnesses who can support the allegation with factual testimony. Otherwise, there will be no contribution to a sound record and no hope of Intervenors' prevailing on the merits of this part of the contention. Accordingly, also by a received date of July 12, Intervenors must specify the witnesses they will present and the subject of each witness' testimony to support each particular specified instance of alleged harassment of L. K. Ccmstock inspectors. Applicant and Staff shall respond to any such filing by a received date of July 19, 1985. We will defer ruling on paragraph 2C of the contention until we can consider any such further filings.
The second major objection articulated by the parties in opposition to Rorem's QA contention is that each of the groupings of individual incidents do not create a cognizable pattern of deficiencies to support the claim of a pervasive QA breakdown. The Board itself harbors some concern that Intervenors have not expressly elucidated the way in which each occurrence fits with all the others in the grouping to formulate a pattern of similar violations of the cited Appendix B criterion.
However, there is substantial compliance with the SPC0 in that now the alleged instances are set forth quite specifically under a rational approach by Intervenors to grouping them, viz.: under an Appendix B
criterion alleged to be applicable and violated. Moreover, we can see the possibility that the cumulative effect of the alleged deficiencies, if proven to exist without adequate corrective action, could lead us to reasonably conclude that the Braidwood QA program was not functioning effectively during the plant's construction. We do not intend to stymy Intervenors from their attempt to prove circumstances they believe will help us in determining whether the Braidwood plant was built so as not to compromise their health and safety. To the extent Intervenors are proven incorrect in their allegations that each aggregation collects deficiencies which are sufficiently similar to form a pattern of essentially the same recurrent problem, Applicant will have an easier time of succeeding on the merits of the contention. Also, through discovery, Applicant _can learn more particularly why Intervenors believe all the deficiencies in the same grouping are sufficiently similar so as
. to represent a recurrent problem.
As a third proposition Staff, and to a degree Applicant, urge us to accept their view that the corrective action programs currently underway at Braidwood are not to be part of the record in this proceeding. Staff Response, at 10. The Board questions how thoroughly the parties have considered their opposition to consideration of these programs, as we expect they will want to present evidence on these programs to buttress their cases; i.e., even if Braidwood did experience the QA deficiencies alleged, effective corrective and remedial action has been taken.
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Late-Filed Contention Criteria As we recognized in the SPC0, two of the 10 C.F.R. 5 2.714(a)(1)(1-v) factors were somewhat incompletely discussed, and we did not draw a final conclusion based on the overall balancing of the five factors. Now that the amended contention has been filed, we weigh the contention in the context of the factors relating to ability of ,
Intervenors to contribute to the record (factor 111), and the significance of the issue balanced against possible broadening or delay of the proceeding (factor v).
Both Applicant and Staff argue in their responses to the amended QA contention that Intervenors have not demonstrated (in either of the QA contention pleadings) their ability to assist in developing a sound record. Applicant Response, at 39-41; Staff Response, at 7-11. Our initial discussion in the SPC0 of this factor noted the somewhat speculative nature of determining the extent to which an intervenor may
" reasonably be expected to assist in developing a sound record."
Section 2.714(a)(1)(iii). To enable us to better mske such a determination, the Board suggested to Intervenors that they identify their witnesses and the subjects which would be addressed in their testimony. SPC0, slip op. at 42. Intervenors have not done so.
Instead, they offer to name witnesses by the time of the July 23, 1985 prehearing conference. Rorem Motion, at 13.
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When we previously requested Intervenors to identify witnesses, we did not have the advantage of having the amended contention before us.
Our review of the amended contention has not altered our original inclination to view the contribution to the record factor as weighing in Intervenors' favor. SPC0, slip op. at 29. While it certainly would have been prudent for Intervenors to have more conscientiously assisted us in making this determination, the Board does not view the identification of Intervenors' witnesses prior to now as essential in the circumstances of this case. It was proposed as a tool for us to better evaluate factor iii. We are in full accord with Appeal Board 7
Judge Edles_/ who captures with clarity our position that despite NRC precedent extolling the value of identifying witnesses and outlining 8
their proposed testimony _/, it is not an absolute. requirement which, if not met, will in all circumstances preclude a Board from finding for an intervenor on factor iii. If Intervenors went so far as to sponsor no witnesses at all, they could still enter the proceedings, as parties are entitled to attempt to make their case solely based on the evidence U Washington Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747, 18 NRC 1167, 1182-83 (concurring opinio.: of Judge Edles)
(1983).
U Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-743, 18 NRC 387, 399-400 (1983); see also Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704,16 NRC 1725, 1730 (1982); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 894 (1981); Detroit Edison Co.
(Greenwood Energy Center, Units 2 & 3), ALAB-476, 7 NRC 759, 764 (1978).
adduced by cross examination of their opponent's witnesses. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 18, and 2B),
ALAB-463, 7 NRC 341, 356 (1978). Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, 504-05 (1973); accord Commonwcalth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381,389(1974). The precept that " cross-examination can be an especially valuable tool in the development of a full record" has been more recently emphasized. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-372,17 NRC 1076,1096n.30 (1983).
Furthermore, in the SPC0 we drew attention to the WPPSS decision for its precedential value and its potential relevance to the case at hand. SPC0, slip op. at 42-43. But, while the issue of the weight to be given certain facts in evaluating an intervenor's contribution to the record is similar in both cases, the specific facts upon which the Appeal Board relied to vacate the Licensing Board's decision and remand the case for further inquiry are clearly distinguishable. The intervenor in WPPSS claimed their participation would advance that proceeding because they had previously participated in other NRC proceedings, and because they had contacted other intervenors to identify expert witnesses in subject areas of concern in the WPPSS proceeding. WPPSS, supra, 18 NRC at 1177. The Appeal Board found these representations " manifestly inadequate" to demonstrate intervenor's ability to contribute to the record. Based on a slightly earlier decision in the Shoreham case, (supra, 18 NRC at 400-401), the Appeal
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Board determined that there was no indication that the WPPSS intervenor's previous participation in other NRC proceedings had made a substantial contribution to the development of a sound record, nor did the issues which the WPPSS intervenor earlier litigated bear any relationship to those in the WPPSS proceeding. WPPSS, supra, 18 NRC at 1178.
As we noted in the SPC0 (slip op at 29), the Braidwood facts are precisely opposite. Rorem's representatives, BPI, were counsel to intervenors in the Byron operating license proceeding where the litigation focused on quality assurance issues closely aligned to those
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currently proposed for adjudication in Braidwood. The Applicant, Commonwealth Edison Company, is the same in both the Byron and Braidwood cases, and both these nuclear plants are very similar " replicates."
Thus, there is a distinct relationship between the concerns earlier litigated by BPI in Byron and those at issue here. Also, as noted in the SPC0 (slip op. at 29), and below in this Order, this Board knows that the same law firm had contributed materially to the develc? ment of a sound record on the QA issues in the Byron proceeding.
We do not find Intervenors' inaction in response to our suggestion to be fatal to their showing on factor fii (except for paragraph 2C of the contention as discussed above). However, to avoid any delay caused by the lateness of the contention, it is necessary that Rorem name their
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QA contention witnesses, if they choose to present any, and outline the gw- -
a ,w e-%- , * ---- ,-.v w. v - * ,---w,-- , y .wr+ - ----e t- wA
subjects of the testimony of each, by a received date of July 12, 1985.
For obvious reasons related to conducting discovery and the possible submission of summary disposition motions, we now require this information by that date. And, except for extremely good cause shown, ,
the Board will not permit any witnesses to testify for Rorem other than those named by this deadline, nor do we expect to grant a motion for an extension of time for Intervenors to complete this specification of i witnesses.
Another gauge for determining an intervenor's potential contribution to the record is its past performance in NRC hearings. We were willing to take into account Rorem's law firm's participation in the Byron proceeding when we reviewed factor iii initially (SPC0, slip op. at 29), but Applicant's response urges us to reconsider our position. Applicant directs our attention to a statement made by the i
Chairman of the Byron Licensing Board concerning BPI's presentation in that proceeding of long lists of issues for adjudication without focused litigation to follow up on the asserted claims. Applicant's Response, at 39. But, while Judge Smith may have articulated his frustration at the Byron intervenors' attorneys, we do not think that this negates the service they performed in pointing up what were ultimately found to be serious QA/QC deficiencies at Byron. This Board intends to manage this case so that the litigation will have a meaningful direction and purpose. The requirements we have imposed on the specification of the contention will limit the problem of unfocused litigation which arose in Byron.
The second factor which the SPC0 left for further examination was whether the Intervenors' participation will substantially delay the proceedings. 10 C.F.R. 5 2.714 (a)(1)(v). In the SPC0, the Board fcund that despite the fact that the QA issue had the potential to be a large and complex one, a counterbalancing was effected by the issue's significance in the context of our consideration of Braidwood's operating license. SPC0, slip op. at 35-37. The amended contention reinforces that view. Moreover, the Board has not changed its position that October 1, 1985 will not be abandoned as the approximate date for commencing the hearings as a result of the late filing of the QA contention. We note, however, that Applicant states that its corrective action programs currently underway will not be complete (and reviewed by the NRC Staff) in time to meet the October date for litigation. At least some of these programs, as Applicant acknowledges, are highly pertinent to parts of the QA contention. Such corrective programs likely will be a necessary part of Applicant's case in response to Rorem's allegations. But these programs were not initiated in response to the QA contention and Applicant cannot blame Rorem for the delay the completion of the programs will cause. Any such delay stems from Applicant's need to remedy past problems it acknowledges needed attention. Applicant's Response, at 10.
Applicant's submission of the affidavit of Mr. Michael J. Wallace, Project Manager for the Braidwcod plant, is an attempt to persuade the Board that Applicant should not be held responsible for any delay in the l
hearing caused by the progress of its corrective action programs.
Mr. Wallace tries to assign blame to the lateness of Intervenors' contention by asserting that if he had known as recently as six months ago (i.e., December 1984) that there would be a QA contention, he could and would have scheduled these corrective action programs for completion in time for an October 1, 1985 hearing. Affidavit, at 4-5. We view this bare assertion with skepticism. We have substantial difficulty in understanding why Applicant, if it really had flexibility to do so, would not in the first instance have scheduled the completion of the corrective action programs on the more expeditious schedule in light of the cumulative significance and scope of these programs, the need for NRC Staff review, and Applicant's goal of loading fuel in April 1986.
It strains credulity that Applicant would believe it could schedule these programs for completion as late as mid-February and March 1986 (Affidavit, at 3), and believe it could count on NRC Staff review and approval by April 1986.EI EI We note that Applicant, with commendable candor, is now less firm in its belief that Braidwood Unit 1 will be ready for fuel loading in April 1986. Wallace Affidavit, at 5-6. Although this is still the " planning purpose" date and Mr. Wallace believes "it is possible" that it can be achieved (if no QA contention had been admitted), it is clear that this is Applicant's most optimistic earliest possible schedule. A number of activities must be accelerated in order for Applicant to meet this date.
M. " Unforeseen events" (apparently unrelated to admission of the QA contention) "may lengthen the construction process and accordingly the fuel load date could be extended beyond April by several months." Id.
at 6. Our analysis in the SPC0 and this Order has focused on delay 7n the proceeding as mandated by 10 C.F.R. 5 2.714(a)(1)(v). If it were (Footnote Continued)
The Board also is skeptical of Mr. Wallace's assertion because it necessarily implies that Applicant was totally unaware as recently as six months ago that Intervenors might seek to litigate QA deficiencies at Braidwood. To the contrary, as Applicant itself has noted, one reason Intervenors could not demonstrate good cause for filing its
' contention as late as March 7, 1985, is because Intervenors Rorem and Neiner Farms, based on Mr. Keppler's August 1, 1984 testimony in the Byron hearing and other matters at that approximate time, had stated they would move to have a late-filed QA contention admitted as an issue in the case. Neiner Farms (Report on) Status of Contentions, at 2 (July 5, 1984); Letters to Board from Counsel for Rorem, Ms. Whicher (August 6,1984) and Mr. Cassel (October 17,1984). See Applicant's
" Answer to Intervenors' Motion for Leave to File Additional Contention,"
at 20n* (March 25,1985).
The Board now turns to the ultimate balancing of the five factors of 10 C.F,R. 9 2.714(a)(1). For the reasons given in the SPC0 (slip cp.
at 26-28), we adhere to our conclusion that good cause was not shown for Intervenors' tardiness in not submitting the QA contention until March 7 1985, and thus, this factor weighs against our admitting the contention (FootnoteContinued) necessary for us to predict now the date by which Applicant would have Unit 1 ready for fuel loading, we would not predict a date as early as Applicant's optimistic " planning purpose" date of April 1986, based on the affidavit.
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into the proceeding. We are also unchanged in our determination that there are no other means of protecting Rorem's interest (factor ii) and that the existing parties do not adequately represent Rorem's interest (factoriv). SPC0, slip op. at 28-29. Although factors 11 & iv are admittedly of lesser importance than the other factors (Id.), we find they weigh in Intervenors' favor.
As expressed earlier in this Order, infra at 16-20, we can surmise with relative confidence that Intervenors will conduct their case so as to affirmatively contribute to the development of a souni record. The organization, bases and specificity of the contention, as we have admitted it, support this forecast. However, Intervenors' showing on this factor was not as strong as it would have been had Intervenors listed their witnesses and summarized their planned testimony.
Nevertheless, as we explained above, the identification of Intervenors' witnesses, though potentially helpful to the Board, was not an essential requirement in the circumstances of this case. The circumstances concerning factor 111 persuade us to find this factor to be in Intervenors' favor.
With regard to factor v, any delay to the proceedings would not be the fault of Intervenors, based on Applicant's own representation that the corrective action programs will not be completed in time to meet the scheduled hearing date of approximately October 1, 1986. In addition, the overriding significance of the aggregated QA issues, pointed up by
b Intervenors' amended contention, also induces the Board to find the delay factor should not be resolved in Applicant's favor.
On balance, only the first factor of good cause for failure to file on time, found against Intervenors, is to be weighted against the other four determined to be in Intervenors' favor. Therefore, the Board concludes that the likelihood Intervenors will contribute materially to the record, coupled with our determination that responsibility for poss1hle delay in the proceeding is not borne by Intervenors, and the potential significance of the QA issues raised by the amended contention, dominantly favors Intervenors. We find the amended contention admissible under the criteria applicable to late-fiIed contentions.
DISCOVERY AND FURTHER SCHEDULING Discovery on the admitted QA contentions shall be completed by a received date of July 30, 1985. As before, " completed" means that all answers to interrogatories, and requests for admissions and documents, are received by that date by the requester, and that all depositions are completed. Requests for discovery therefore have to be made by a time and mode sufficient to assure that the due date for responses is no later than July 30, 1985. Also, as before, the parties are free to reach mutually agreeable minor accommodations of this schedule, with notice to the Board, but without the need for prior Board approval.
r o
O Informal, mutually cooperative discovery is strongly encouraged. As ordered above, Intervenors must identify their witnesses, and the subjects of their testimony, by a received date of July 12, 1985.
The parties shall confer and attempt to agree on the further prehearing and hearing schedule for the QA contention. The parties shall also begin attempts to settle or narrow parts of the contention and to find ways of making the litigation efficient, e.g., by c stipulations of fact. The Board will hear and rule upon the schedule proposals of the parties at the July 23, 1985 prehearing conference.
The Board is prepared to adhere to the schedule outlined in the SPC0 (slip op. at 43), which leads to commencement of the hearing on or about October 1, 1985, for those QA issues on which the Applicant and NRC Staff can be ready for hearing.
FOR THE ATOMIC SAFETY AND-LICENSING BOARD Lawrence Brenner, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland June 21, 1985
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