ML20141D789
| ML20141D789 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 04/03/1986 |
| From: | Gallo J, Thornton P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20141D793 | List: |
| References | |
| CON-#286-651 OL, NUDOCS 8604080273 | |
| Download: ML20141D789 (48) | |
Text
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E.(pl April 3, 1986
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- 00LMETED UNITED STATES OF AMERICA U RRC NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION AMI -3 PS :04 In the Matter of ) gfFKE o
) OCME':.y , ,
COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456 ""N'
) 50-457 (Braidwood Station, )
)
. Units 1 and 2) )
BRIEF OF COMMONWEALTH EDISON COMPANY ON THE FIVE LATE-FILED FACTORS In its Order of March 20, 1986, the Commission directed ;
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the parties to submit briefs addressing the question whether '
Intervenors' amended Quality Assurance contention meets the I five-part test for admission of a late-filed contention set forth l in 10 CFR S 2.714. The Commission directed that the briefs address whether the Licensing Board correctly applied the l five-part test in admitting the amended QA contention and whether, if the contention were to be rejected and resubmitted today, it would now satisfy the five-part test in light of the information which has developed in the course of the proceeding to date. Applicant, Commonwealth Edison Company, submits this brief in response to the Commission's order.
The five factors which a licensing board must weigh in considering whether to admit a late-filed contention under 10 CFR S 2.714 (a) (i) are:
(i) Good cause, if any, for failure to file on time.
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(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
In order to gain admission of a late-filed contention an intervenor must address these five factors and affirmatively demonstrate that, on balance, they favor admission of the contention.~1/ Because Intervenors' amended QA contention was submitted after the deadline for submitting contentions had passed, Intervenors were required to meet this burden.
A. The Licensing Board Erred In Finding That Intervenors' Amended QA Contention Satisfied The Five-part Test.
On March 7, 1985, Intervenors filed their original QA contention, which consists of one paragraph and is set forth in Exhibit A. That contention asserts that Commonwealth Edison Company has not " implemented, maintained and overseen an adequate quality assurance program for the construction of Braidwood."
Four bases for the contention were offered, only one of which was more recent than August, 1984.
-1/ Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 and n. 22 (1985); Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980).
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Intervenors made only a cursory attempt to address the five factors. The Licensing Board's Special Prehearing Conference Order, which " rejected" this contention, included a discussion of the five factors, but did not attempt to balance them.S On May 24, 1985, after deposing Mr. Keppler, Intervenors submitted their amended QA contention, which is 31 pages in length and was attached as an exhibit to Applicant's September 23, 1985 petitions to the Commission. The singular thrust of the amended quality assurance contention is Intervenors' claim that there was a " breakdown" in the Braidwood quality assurance program and that there has been a " pervasive failure" to carry out the required quality assurance program.3/ The preamble to the amended contention recites the civil penalty and items of noncompliance assessed by the NRC Staff in February, 1983, items of-noncompliance set forth~by the NRC Staff in an inspection report issued in May 1984 and public comments of James Keppler, Administrator of Region III made in August 1984 as substantiating the asserted quality assurance breakdown. The findings of inspection reports issued in 1983 and 1984 constitute the basis for the theory of the amended QA contention.
E Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609 (1985).
-3/ Motion to Admit Amended QA Contention, p. 16.
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In. presenting the Amended Contention, Intervenors made no attempt to address the five factors. The Licensing Board's order admitting the amended contention included a further discussion of two of the factors and a conclusion that the five factors, on balance, favored admission of the amended contention.1!
- 1. Factor (i).
The Licensing Board correctly determined that Inter-venors had not demonstrated good cause for the late filing of the QA contention. Well-settled NRC case law holds that a deter-mination whether there is good cause for late filing.should focus on whether the issue presented could have been raised earlier because the information asserted as basis for the contention was available.1I In filing their original contention in March 1985, Intervenors offered no reason for the tardiness of their sub-mission other than the general assertion that their contention was based on facts which had arisen since 1979, the deadline for the submission of contentions.
The Licensing Board recognized that this assertion was not sufficient to show good cause. Intervenors offered no I Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609 (1985).
1 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387 (1983); Detroit Edison Co.
(Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760 (1982).
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further analysis of the facts underlying the Amended Contention with respect to when they first became aware of them. Where information underlying a contention was publicly available as much as four to six months prior to the filing of the contention, Intervenors have an obligation to move promptly and good cause for the late filing does not exist.6/ The Licensing Board noted that Intervenors' own statements indicated their ongoing awareness of apparent difficulties in the Braidwood QA program.1/
It was these difficulties -- the 1983 civil penalty of $100,000 and the August 1984 criticisms by Mr. Keppler -- that formed the crux of the contention. After reviewing these and the other bases offered by Intervenors for the contention, the Licensing Board concluded that at the very latest Intervenors could have filed the contention immediately subsequent to August 1, 1984, when Mr. Keppler made the public statements about the Braidwood QA program on which Intervenors relied. The Board therefore found no good cause for late filing.8/ Although not advanced by the Intervenors as a part of their good cause showing, the
-6/ See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765 (1982); Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1172-73 (1983); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1) , LBP-84-30, 20 NRC 426, 437-39 (1984).
1! LBP-85-ll, 21 NRC at 628.
LBP-85-ll, 21 NRC at 629.
t L Licensing Board correctly considered and rejected the notion that the NRC Construction Appraisal Team (CAT) inspection report referenced in the contention, which was not produced until February 1985, could serve as new information excusing the late filing of the contention. The central focus of the contention was the information available in 1983 and 1984. The CAT inspection report findings cited by the Intervenors were merely ,
cumulative in nature and added nothing material to the basic thrust of the contention.
Intervenors made no further showing of good cause in submitting their greatly expanded amended QA contention in May 1985, and the Licensing Board correctly concluded that its prior i dete mination also applied to the amended contention.9/ Again, ,
the NRC inspection reports on which the contention alleging a QA breakdown at Braidwood was predicated were available to Intervenors in 1983 and 1984, before Mr. Keppler's statement on August 1, 1984. The CAT inspection report was again cited along ;
with a half dozen NRC inspection reports issued in March - May 1985. However, as was the case with the original contention, these reports added nothing material to the assertion of a Q.A.
breakdown that allegedly occurred in 1982 and 1983.10/ -
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E LBP-85-20, 21 NRC at 1749.
--10/ Intervenors' amended QA contention also contained for the first time an allegation of harassment and intimidation of QC (Footnote Continued)
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p 1 In fact, Intervenors not only had this earlier infor-mation available, but actually formulated a Oh contention and t announced their intention to file it in early 1984..
This announcement was repeated at intervals over a one-year period:
On March 27, 1984, Intervenors, through their counsel [
'3PI, who was representing them on QA matters only, announced that
. they would file revised contentions by April 26, 1984.11/ -
On April 26, Intervenors proposed ten contentions, including con- -
struction and design OA contentions, to counsel for the Applicant and the NRC Staff in an effort to ef fect a stipulation among counsel admitting the QA contention to the procedding. When counsel rejected the proposal, Intervenors made no attempt to introduce the contentions by filing a proper motion with the ;
Licensing Board.
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(Footnote Continued) !
inspectors as a further basis for their assertion of a !
quality assurance breakdown. However, this allegation was ,
also bottomed on old infor. cation, i.e.., an NRC inspection
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report issued in December 1984. This issue was further i particularized after submission of the amended QA contention i when Intervenors filed additional NRC Staff documents, an #
unexecuted affidavit of a QC inspector and certain assertions i regarding the termination of another QC inspector. Because of the Licensing Board's admission of the amended QA contention, Applicant subsequently agreed to stipulate to the ;
admissibility of the harassment and int-imidation issue '
without waiving any objection to the overall admissibility of the amended QA contention. Thus, this issue, which found its
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genesis in a 1984 NRC inspection report, is similarly barren t of any good cause excusing its late filing. ,
I 11/ See Letter dated March 30, 1964 from counsel for Applicant to
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the Licensing Board. ;
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"k On August 6, 1984, Intervenors reiterated their intent to file a QA contention,1E# No QA contention was filed in August or September 1984.
On October 17, 1984, Intervenors requested that a schedule be established for, among other things, an opportunity to file a QA Contention.11 No QA Contention was filed in October, November or December 1984, or January 1985.
On February 28, 1985, Intervenors announced they were
- preparing a OA Content. ion, and such a contention was finally filed on March 7, 1985. It was almost identical to the Con-tention submitted to counsel for Applicant and Staff in April 1984, attached as Exhibit B. This history graphically demonstrhtes that there was no reason why Intervenors could not have filed their contention at least a year earlier.
Finally, Intervenors' Response to Commission Questions, filed on December 19, 1985, confirms their lack of gocd cause for late filing. Intervonors stated that in 1984 they refrained fron filing a OA contention in the hope that the Braidwood Construc-tion Assessment Program ("BCAP") would resolve quality assurance concerns. They decided to file a contention in March 1985, they stated, after it became apparent to them that completion of BCAP 11 ,See August 6, 1984 lett9r from BP1 counsel to the Licensing Board.
Ab See October 17, 1984 letter from BPI counsel to ths Licensing Board.
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l would be delayed and would not' resolve all major QA problems at Braidwood .14
Accordingly, as the Commission recognized, "the decision to forego litigaticn of quality assurance was, according to intervenors, a deliberate choice, and the decision to file a QA contention reflected the fact that they had changed their minds.,15/
In sum, the Licensing Board's determination that Inter-venors had failed to shcw good cause for the late filing of their amended QA contention was clearly correct. Moreover, as the Licensing Board reccgnized, the Intervenors' failure to demon-strate good cause substantially increased their burden under the other factors of the five-part test.16/
- 2. Factors (ii) and (iv).
The Licensing Board found in Intervenors' favor on factors (ii) and (iv), concluding that there were no other means available by which Intervenors' interest would be protected and
--14/ Intervenors' Response to Commission Questions, pp. 15-16. A party cannot " sit back and watch the performance of another party . . . and then, if dissatisfied, be granted the right to . . . have late-filed contentions accepted." Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 586 (1982). &
15/ Order,. March 20, 1986, slip op, at 2.
--16/ Virginia Electric and Power Co. (North Anna Station, Units 1
& 2) , ALAB-289, 2 NRC 395, 398 (1975); Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 ERC
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383, 389 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977).
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- i that this interest would not be protected by existing parties in the licensing proceeding.17/ -
Applicant does not assert that the Licensing Board committed error in reaching this determination.
Applic. ant conceded at the time that these factors weighed in Intervenors' favor.
In any case, factors (ii) and (iv) are accorded rela-tively minor weight in the balancing test required under 10 CFR S 2.71.4.1S! The Licensing Board recognized this.bS'
- 3. factor (iii).
The third factor concerns the extent to which the Intervenors' participation may reasonably be expected to con-tribute to the development of a sound record. The Licensing-Eosrd erred in finding that this factor weighed in favor of Intervenors, Under well-settled NRC case law, the third factor is of great significance, and the primary way in which an intervenor can make its affirmative showing is by identifying the witnesses he intends to call and the proposed content of their testimony, 12/ LBP-85-11, 21 NRC at 629,
---18/ Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
ALAB-707, 16 NRC 1760, 1767 (1982); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 167 NRC 1725, 1730-31 (1982); South Carolina Electric and Gas C_o,
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(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 884-85 (1981).
LBP-85-11, 21 NRC at 629.
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In Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982), the Appeal Board stressed that because of the importance of the third factor, "[w) hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony." In Lena Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-7.43, 18 NRC 387, 399-400 (1983), the Appeal Board referred to its Grand Gulf holding as an obligation with which intervenors were to comply.20/
In its Special Prehearing Conferenca Order, which encouraged Intervenors to submit an amended QA contention, the Licensing Board suggested that Intervenors make such a showina in order to prevail on this factor.21/
Intervenors failed to take advantage of the offered opportunity. Instead, they opined that no Intervenor witnesses were necessary because the breakdown of S See also Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1175, 1181 (1983)
(Appeal Board vacated the Licensing Board's conclusion that factor three favored intervenors and remanded the case, directing that the intervenor comply with its Grand Gulf' obligation before the contention be readmitted). In North Carolina Power & Light Co. (Shearon Harris Nuclear Plant),
LBP-85-49, NRC (1985), the Licensing Board noted that the showing specified in Grand Gulf has generally been deemed a requirement by the Appeal Board. Slip op. at 12.
1 LBP-85-11, 21 NRC at 637.
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. the Braidwood QA' program which they all;ged was self-evident from their contention. They offered that if it should " appear helpful
.to the Board" they would present expert witnesses.SS Thus, in submitting their amended QA contention, nearly three months after the submission of their original QA conten-tion, Interveno'rs, offered nothing specific for the presentation of testimony related to even a portion of the proposed contention
'and provided no Indication of how they would litigate any QA
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issues. They did not even propose a discovery schedule. Despite this lack of any affirmative showing by Intervenors, the Licensing Board assumed that they would contribute to the development of a sound record. The Board attempted to support this assumption by asserting that the law firm representing Intervenors in this proceeding had helped develop a full record in the Byron preceeding, but the Board did not specify how they had done so.
Indeed, Applicant pointed out to the Licensing Board that Judge Smith, the Licensing Board Chairman in the Byron proceeding, had expressed less positive sentiments about the contribution of Intervenors' present counsel, BPI, based on his experience in that proceeding. Judge Smith complained that they had "rais[ed] every conceivable issue" and then failed to act affirmatively to litigate them, instead expecting the Licensing SEI Motion to Admit Amended QA Contention, p. 12, i
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Board to " untangle it."S$ The Licensing Board in this proceeding responded that it intended to manage the proceeding so that it would have a meaningful direction and purpose.S1!
Applicant suggests, however, that the approximately 80 issues raised by the amended QA contention and Intervenors' failure to identify witnesses give an indication that Intervenors' counsel intend to pursue the same strategy here as they did in the Byron proceeding. Moreover, Applicant respectfully suggests that if Judge Smith found that this strategy made meaningful litigation difficult, the'present Licensing Board would experience similar difficulties.
The Board also noted that the failure to identify witn' esses and specify the subjects of their testimony did not absolutely preclude an intervenor from prevailing on this factor because he could contribute to the development of a sound record h'through cross-e amination by his counsel.25/ -
This statement, however, was merely speculative, because the Board did not attempt to draw any connection between the general principle and the likelihood of effective cross-examination by Intervenors' counsel in this proceeding. A relevant consideration in this regard is whether Intervenors will have expert assistance in SS May 30, 1984 Byron transcript at 8173-8180.
Sb! LBP-85-20, 21 NRC at 1747.
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,- _ 14 _ l their cross-examination.t'6/ Intervenors made no showing that they would have such expert assistance.
The error of the Board's assumption is further under-lined by the nature of the amended QA contention itself.
Intervenors did not raise any new issues and did not provide a plausible theory suggesting that the aggregation of inspection report findings they pointed to indicated the existence of significant quality problems at Braidwood. Indeed, with the exception of the harassment subcontention items which, although based on a 1984 NRC inspection report, was particularized by further alleged incidents of harassment and resulted in a joint stipulation, Intervenors' entire contention consists of extracts, generally verbatim, from NRC Staff inspection reports. A con-tention consisting of old information developed by the regulatory staff does not give any promise that Intervenors will contribute to the development of a sound record. Applicant rejects any notion that Intervenors, through cross-examination by their counsel, will explore the deficiencies identified by the Staff
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better than the Staff itself will do.
Thus the Licensing Board's assumption that Intervenors had prevailed on the third factor was erroneous because the Board refused to rely on accepted touchstones for an intervenor's
--26/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
LBP-84-24, 19 NRC 1418, 1586 n. (1984).
ability to contribute to the development _of a sound record -- the-identification of witnesses and the specification of the subjects of their testimony, or at least an indication from the contention itself that Intervenors had identified new issues to bring to the Commission's attention. Ignoring these, the Board erroneously relied on the unsupported assumption that Intervenors' counsel had made a significant contribution in a prior proceeding.
- 4. Factor (v) .
The fifth factor concerns the extent to which Inter-venors' participation would broaden the issues or delay the proceeding. The Licensing Board also erred in finding that this factor weighed in Intervenors' favor. Intervenors made no affirmative showing on this factor. The Intervenors' amended QA contention is 31 pages long and alleges approximately 80 viola-tions of 12 of the Commission's 18 quality assurance criteria.
In light of this, it defies credulity that admission of the contention would not have caused.a substantial broadening of the issues and delay in the proceeding. This was especially so because as of May 1985, the remaining issues, which were scheduled to be litigated beginning October 1, were few in number and were not complex.
Despite these obvious facts, the Licensing Board managed to find in Intervenors' favor on the fifth factor by concluding that it could mitigate any delay by announcing its intention to maintain the preestablished schedule for the start of hearings.
The Board, however, engaged in no analysis to determine whether
in fact it was possible to maintain that schedule. It should have been clear that the time necessary for discovery on the 80-odd issues raised by the contention would be many times that provided for in the schedule. Moreover, even assuming that hearings could have begun on October 1, 1985, the Board did'not consider whether the time necessary to conclude litigation of the greatly expanded list of issues would be substantially increased.
Thus the Board made no reasoned conclusion as to whether admission of the contention was likely to delay the proceeding.
The Licensing Board also reasoned that to the extent litigation of the QA contention would delay the established hearing schedule, the delay would be attributable to certain corrective action programs relevant to the contention, which Applicant stated could not be completed by the October 1, 1985 hearing date. The Board concluded that any such delay would be Applicant's fault and could not be imputed to Intervenors' tardy filing. Applicant has argued that this conclusion was incorrect.1'7/ Regardless of whose fault this particular source of delay might be, however, the Board's reasoning was faulty.
The Board had the obligation to determine the delay to the proceeding caused by the filing of Intervenors late filed contention, and then determine whether that delay exceeded any 2'7/ Applicant's Answers to Questions Posed by the Commission, pp.
30-33.
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9 delay attributable to other causes. This the Board did not do.
Instead it assumed without basis that the completion of all pertinent corrective action programs would be the limiting factor in any delay. Thus, the Board's analysis of the fifth factor was incomplete, because it never reached in its analysis the ultimate question of whether in the circumstances of this case, the submission of the late-filed contention caused a delay to the proceeding. The Board's finding in favor of Intervenors on the fifth factor cannot be permitted to stand in light of this flawed analysis.
Finally, the Licensing Board erroneously balanced the expansion of issues and delay to the proceeding that admission of the QA contention would cause against the potential significance t
of the issue that the contention raised.28/-
On the basis of Mr.
Keppler's statements the Board concluded that any expansion and delay was outweighed by the potential significance of the issue.
This was erroneous, because 10 CFR S 2.714 (a) (1) does not permit a licensing board to discount the expansion of issues and delay to the proceeding that the contention will cause by concluding that the contention may raise significant issues. There is no warrant in the regulation for introducing a second ba' lancing test, internal to the fifth factor, in addition to the overall balancing of the five factors required by the regulation and the 28/ LBP-85-20, 21 NRC at 1747.
-O case law. The significance of an issue may well be grounds for a licensing board's admission of the issue sua sponte, assuming that the Commission's stringent requirements for such an action are met. It is not, however, grounds for disregarding the delay to the proceeding that the licensing board is required to balance against the other factors.'9/ The Licensing Board's disregard of the fifth factor was simply another example of a pattern of conduct pointed out by the Applicant, by which the Board violated l 10 CFR S 2.714 in order to gain admission of a contention because l
the Board itself felt some concern about the issues raised.
In sum, the Licensing Board's conclusion that the fifth factor weighed in Intervenors' favor was clearly erroneous. The Board improperly disregarded the obvious expansion of issues and delay to the_ proceeding that admission of the amended QA contention would entail by concluding that the issues it raised
--29/ See Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 383-85 (1985) (Appeal Board affirms Licensing Board's denial of late-filed contention based on the five-part test. In view of the potential significance of the issues, however, Appeal Board remands for consideration whether Licensing Board should admit issues sua sponte); Cincinnati Gas & Electric Co. (Zimmer Nuclear Power Station, Unit 1), LBP-82-54, 16 NRC 210, 213-14 (1982)
(admission of QA contentions denied for failure to meet five-part test but Licensing Board admits issues sua sponte because of their significance; sua sponte admission reversed in CLI-82-20, 16 NRC 109 (1983). Contra, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) ,
LBP-83-30, 17 NRC 1132, 1143-44 (1983). The latter decision, like the decision of which Applicant complains, was authored by Judge Brenner, and Applicant submits it is equally erroneous, and contrary to Zimmer and South Texas, supra.
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were potentially significant. The Board also concluded that it could maintain the established hearing schedule, which had contemplated only the litigation of far less complex issues, by fiat. Reasoned analysis would have shown this to be impractical.
Finally, the Board concluded that to the extent litigation of certain corrective actions might delay the schedule, the fault was the Applicant's. Thus the Board failed to come to grips with the delay to the proceeding that admission of the amended contention itself would occasion.
- 5. Balancing The Five Factors.
The Licensing Board also committed error in balancing the five factors. The Board recognized that because Intervenors had failed to demonstrate good cause for late filing, they bore a substantially heavier burden on the other factors. Indeed, in the absence of good cause, NRC case law holds that the party must make a " compelling showing" on the other four factors.30/-
The Board also recognized that factors (ii) and (iv), concerning the protection of Intervenors' interest by other means or parties, were of minor importance. The Board's finding in Intervenors' favor on these factors, therefore, should have done little to
--30/ Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
ALAB-707, 16 NRC 1760, 1765 (1982); Mississippi Power and Light Co. (Grand Gulf Nuclear Stations, Units 1 and 2),
ALAB-704, 17 NRC 1725, 1730 (1982); South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1) ,
ALAB-642, 13 NRC 881, 886 (1981).
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overcome their inexcusable tardiness. The Board found that Intervenors' showing on their ability to contribute to the proceeding was not as strong as it might have been, because they had not identified any witnesses or summarized their planned testimony.31/
Nonetheless, the Board found in Intervenors' favor on this factor on grounds which Applicant has argued were inadequate. Likewise, the Board found that the. question of delay tilted in Intervenors' favor, on grounds which Applicant has argued were erroneous.
In striking the balance in favor of admitting the
' contention, the only rationale offered by the Licensing Board was that the factors weighed four to one in favor of Intervenors and that the issues raised were potentially significant. Applicant has argued that the latter ground was erroneous. As to the former, the Board's reliance on a four to one mathematical formulation was insufficient. Favorable findings on all the other factors need not outweigh the effect of inexcusable tardiness.32/
Given the heavy burden imposed on an intervenor who fails to show good cause, the intervenor should be required to make a very strong (indeed a " compelling") showing on factors three and five in order to prevail. This the Intervenors failed 4
11! LBP-85-20, 21 NRC at 1749.
d! Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant) ,
CLI-75-4, 1 NRC 273, 275 (1975).
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to do and the Licensing Board erred in failing to weigh Intervenors arguments against this stringent' standard.
B. If Intervenors' Contention Were Rejected And Resubmitted Today, It Would Not Satisfy The Five-part Test.
If Intervenors' contention were rejected and resubmitted at this stage in the proceeding, it is even clearer that it could not satisfy the five-part test for admission of a late-filed contention. As the Commission's Order of March 20, 1986 indi-cates, application of the five-part test is ordinarily prospec-tive. Although this fact does not affect factors (i), (ii) or (iv), it requires a licensing board to make judgments, regarding factors (iii) and (v), about the probable contribution that an intervenor may nake to the proceeding and the extent to which admission of the contention will broaden or delay the proceeding.
In this case, however, the record of the proceeding as it has developed in the nine months since the Licensing Board admitted the contention offers the most probative evidence on these points. Applicant submits that this record confirms the error of the Licensing Board's admission of the contention and demon-strates that on any resubmission of the contention the five-part test would even more clearly require its rejection.
- 1. Factor (1) .
Because the Licensing Board's finding that there was no good cause for the late filing of Intervenors' contention in May 1985 was clearly correct, as shown above, Intervenors could not hope to show good cause for the resubmitted contention. Their
allegations of a pervasive breakdown in the Brcidwood QA program and of QC inspector harassment would still be premised essentially on deficiencies and events identified by the NRC Staff in 1982, 1983 and 1984, and documented in inspection reports issued in June 1983 and May and December 1984, as well as on the August 1, 1984 statement of Mr. Keppler that the NRC Staff had serious questions about quality assurance at Braidwcod. The lack of~ good cause for submitting a contention based on these findings and concerns would be at least as patent as it was in May 1984.
The list of inspection report findings included as illustrations of the alleged QA breakdown in the amended contention would still include findings from the February 1985 CAT inspection report and from several other 1985 inspection reports. Presumably, it would also include the further particularization of the harassment subcontention items based, in part, on events which took place in 1985. Inclusion of these more recent events, however, would again fail to justify Intervenors' delay in filing. The findings do not provide information that is material to the thrust of the amended QA contention, which is based on matters reported by the NRC Staff in 1983 and 1984. A party may not show good cause for the late filing of a generalized contention by pointing to recently
available documents, when the basic elements of its contention were available long before.21
- 2. Factors (ii) and (iv).
Even though it conceded before the Licensing Board that Intervenors prevailed on this factor, Applicant now submits that on any refiling of the amended QA contention, Intervenors would not prevail on factor (ii). The only interest that Intervenors have demonstrated in this proceeding would be adequately protected by the enforcement activities of the NRC Staff in resolving the items of noncompliance incorporated in Intervenors' contention. Well-settled NRC case law holds that "the availability of staff review outside the hearing process generally does not constitute adequate protection of a private 11 See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
CLI-83-19, 17 NRC 1041, 1048-49 (1983) (unavailability of licensing-related document, such as SER, does not establish good cause for late filing where information was availeble, such as in FSAR, early enough to provide basis for timely filing); Illinois Power Co. (Clinton Power Station, Unit No.
- 1) , LBP-82-103, 16 NRC 1603, 1614-15 (1982) (no good cause for late filing of QA contention based on Staf f's SER where prior Staff inspection reports disclosed quality deficiencies) ; Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-85-9, NFC (1985), slip op. at 2-3 (no good cause for late filing of generalized soils contention based in part on a recent 10 CFR 550.55 (e) report where existence of soils problems wac identified earlier in the FSAR and a Staf f inspection report); see also Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 657-58 (1983).
i I
l
)
1
. l party's rights when considering factor two."31/ Correct application of the second factor, however, requires analysis of the nature of the intervenor's interest. If this were not so,
. the second factor would always weigh in the intervenor's favor, and its inclusion in 10 CFR S 2.714 would be pointless.
When an intervenor raises a potential safety concern on its own, it has clearly demonstrated an individual interest that deserves resolution through the hearing process, and the NRC Staff's general oversight and enforcement responsibility may not adequately vindicate that interest. The case is otherwise, however, in the present proceeding. Intervenors' only interest here, as demonstrated by their contention, is in being assured that the Braidwood facility is constructed in accordance with the criteria set forth in Appendix B to 10 CFR Part 50. The only thing that Intervenors know to the contrary, again as reflected in their contention, is that the Staff has from time to time identified certain noncompliances with these criteria at Braidwood and investigated various allegations concerning harassment of QC inspectors. However, for these instances, which 21! Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 384 n. (1985) (emphasic supplied). See also Philadelphia Electric Co. (Limerick Generating Station, Unita 1 and 2), ALAB-806, 21 NRC 1183, 1191 (1985); Washington Public Power Supply Gystem (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1174-76 (1983); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-85-9,21 NRC 524, 522-28 (1985).
25 -
are all that Intervenors allege, their interest is protected by the continuing oversight exercised by the Staff in assuring that any deficiencies identified are resolved before issuance of an operating license.
Intervenors' interest cannot be in assuring that the Staff's performance of its regulatory responsibilities is ade-quate. Their contention gives no indication that they have such a concern. Moreover, if it did, such an issue could not be admitted for litigation. In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), the Appeal Board held that "in an operating license proceeding . . . the applicant's license application is in issue, not the adequacy of the staff's review of the application. An intervenor . . . may not proceed on the basis of allegations that the staff has somehow failed in its performance."$E Conse-quently, Intervenors have failed to identify an interest in this proceeding that would not be adequately protected by the Staff's resolution of the violations incorporated in their amended QA contention.
Applicant agrees that on a resubmission of the conten-tion, Intervenors would prevail on the four*.h factor. Unless db! See also Louisiana Power & Light Co. (Waterford Steam 5~1ectric Station, Unit 3), ALAB-812, 22 NRC 5, 55-57 (1985)
(adequacy of Staf f's regulatory oversight not a litigable issue).
o their contention were admitted, their interest in the resolution of the QA issues they raise would not be protected by any exist-ing party to the proceeding, because QA issues would not be litigated at all. This, however, is the least important of the five factors.16/ Favoring Intervenors on the fourth factor is required by well-settled NRC case law. However, this rubric ignores the reality that the NRC Staff would continue to represent Intervenors' interest by reviewing the QA issues they raised pursuant to its non-adjudicatory regulatory responsibilities.
- 3. Factor (iii)
On any resubmission of their contention, the exact nature of Intervenors' arguments on their likelihood of contributing to the development of a sound record is unknown since on the present record they have not been called upon to make such a showing. Intervenors' position will not be known until their April 3 filing is in hand. However, Applicant can assess the likelihood of a meaningful contribution being made by Intervenors by evaluating their performance in response to Licensing Board orders requiring witness identification and in response to interrogatories posed by Applicant. Measured against
$5 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
ALAB-707, 16 NRC 1760, 1767 (1982).
, 4 this standard, Intervenors would clearly not prevail under the third factor.
In the face of Applicant discovery requests propounded on August 12, 1985 and reiterated on January 9, 1986, Intervenors failed to meaningfully identify their witnesses and state the substance of their expected testimony.11 Intervenors have failed to do this despite_the fact that their Motion to Admit the amended QA contention in May 1985 stated that they had been in contact with several QA experts whom they expected to call 18/ and despite the fact that on February 28, 1986, in response to a Board order, they finally identified the witnesses they intend to call at the hearing.SE This latter pleading did not provide, as required by Applicant's interrogatories, any information concerning the substance of the facts and opinions to which each witness is expected to testify. Indeed on March 13, 1986, Applicant for the third time requested this information.SSI Intervenors have not responded to this request.
$1 See page 22 of Intervenors' January 23, 1986 response to Applicant's January 9 interrogatories.
SE Motion to Admit QA Contention, p. 13.
dE Intervenors' Identification of QA Witnesses, February 28, 1986.
AS See March 13, 1986 letter from Applicant's counsel to Intervenors' counsel.
D i*
~
i.
i With respect to all but two of the 81 issues raised by I
the contention, Intervenors merely announced their intention to call as witnesses the cognizant employees of the NRC Staff and r
the Applicant who, in many cases, identified and resolved the
- violations that form the subject of Intervenors' contention and whom, in many cases, the Staff and the Applicant have identified
, as witnesses. It is clear that these individuals would be l adverse witnesses. Intervenors have announced their intention to subpoena those who are not already testifying for the Staff or l
the Applicant. As explained above, the record gives no indication that.Intervenors intend to elicit prefiled testimony j from these witnesses. Nor does the record show how Intervenors would attempt to prove their direct case by calling these adverse witnesses. Neither the content of the testimony Intervenors would seek to elicit nor the theory of the case that examination l
of the witnesses would advance appears in the record to date.
i Intervenors have merely indicated the subparts of their contention on which they would purportedly call these witnesses f to testify. Indeed, Intervenors acknowledge that with respect to l
l the issues so identified the extent of their proposed witnesses'
! knowledge is unknown to them. If Intervenors to date, on the eve of trial, have not been able to make these showings in response i
to their discovery obligations, there is no reason to think they would be able to do so in support of the resubmitted contention.
It is particularly telling that Intervenors have now had the benefit of intensive discovery directed at Applicant and Staff
29 -
and remain unable or unwilling tx) describe the testimony they seek to elicit. If a contention were to be resubmitted without benefit of this discovery, it is apparent that they would make no persuasive showing on this factor.
Calling these individuals as adverse witnesses would afford Intervenors greater latitude in questioning than if they i
merely cross-examined them on their testimony filed on behalf of l the Staff or the Applicant. Other than that, Intervenors have not demonstrated that calling these adverse witnesses would accomplish substantially more than mere cross-examination would.
Although the ability to conduct effective cross-examination may assist in developing a record, "it is ability to contribute sound evidence -- rather than asserted legal skills -- that is of significance in considering a late-filed petition to inter-vene."All Calling as witnesses the very individuals employed by the Staff and the Applicant who, in many cases, identified and resolved the deficiencies in question and who, in many cases, are presenting the direct case of the Staff and the Applicant, does not create confidence that Intervenors will materially contribute to the development of a sound record.12/ It thus seems clear Al Houston Lighting and Power Co. (Allens Creek Nuclear Gen-erating Stations, Unit 1), ALAB-671, 15 NRC 508, 513 n.
(1982); Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), LBP-84-17, 19 NRC 878, 888 (1984).
12/ In rejecting a quality assurance contention, Judge Brenner, (Footnote Continued)
that if the amended QA contention were rejected and resubmitted today, Intervenors could not satisfy their Grand Gulf obligation.
(See supra, p. 11.)
The single exception to these statements occurs with respect to two of the 81 issues raised by Intervenors' con-tention. With regard to the issues alleging harassment and intimidation of the quality control inspectors of one of the Braidwood contractors, Intervenors have indicated that they will call as witnesses the inspectors who have alleged that they were harassed. Intervenors have not suggested they will provide prefiled testimony from these witnesses nor indicated the (Footnote Continued) as Chairman of the licensing board, commented:
the mere recitation of unrelated adverse findings in reports of inspections and audits performed by the Staff and Applicant does not supply information on what specifically would be litigated. It suggests a broad, unfocused, item by item cross-examination of the very Staff and Applicant inspectors who reported the problems and approved their resolution.
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 89 (1983).
In South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 894 n.
(1981), the intervenor had identified various employees of the applicant who would be able to shed light on the issues raised by its late-filed contention, and the Licensing Board had directed that those employees be made available at the hearing for the intervenor's examination. In disagreeing with the Licensing Board's conclusion that the intervenor would likely make a substantial contribution to the proe ceeding, the Appeal Board did not deem these individuals to be intervenor witnesses and declined to speculate how fruitful intervenor's examination of them would be.
c substance of the testimony they are expected to offer. Indeed, the majority of these proposed witnesses have already been deposed and have uniformly stated that the alleged incidents of harassment did not affect the conscientious performance of their quality control responsibilities.d1/ It seems plain, therefore, that Intervenors will be required to call these individuals as, adverse witnesses if they intend to establish that the alleged incidents of harassment resulted in any faulty work at the plant.
Secondly, Intervenors have announced their intention to call three expert witnesses in regard to this issue. The witnesses' field of expertise is psychology, but Applicant and Staff are left to speculate as to what their testimony will be offered to prove.SSI SS See Deposition of Myra Sproul, January 29, 1986 at pp. 47-49; Deposition of Danny Holley, January 28, 1986 at pp. 86, 93; Deposition of Richard Snyder, January 29, 1986 at pp. 78, 83; Deposition of Larry Phillips, January 29, 1986 at pp. 31-33; Deposition of Dean L. Peterson, March 4, 1986 at p. 18; Deposition of Larry A. Perryman, March 3, 1986 at pp. 82-85; Deposition of Robert L. Wicks, March 4, 1986 at pp. 31-36; Deposition of Michael S. Mustered, March 5, 1986 at pp.
36-38; Deposition of Herschel W. Stout, Jr., February 24, 1986 at pp. 137-141; Deposition of John Seeders, November 5, 1985 at pp. 34-35; Deposition of Robert D. Hunter, February 25, 1986 at p. 156; Deposition of Worley Puckett, December 6, 1986 at p. 143; Deposition of Timothy Stewart, January 28, 1986 at p. 57; Deposition of Richard L. Martin, March 3, 1986 at p. 14.
AA The mere identification of witnesses does not necessarily meet an intervenor's burden under the third factor. In South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981), the (Footnote Continued)
-e In short, Intervenors, at this late date, have given no
~ indication that with respect to a resubmitted contention they could provide the primary touchstone by which their ability to contribute to the development of a sound record could be judged.
It seems plain that their strategy for litigating the contention will be the same one complained of by Judg.3 Smith in the Byron proceeding, supra. After raising a multitude of issues, they will leave the Licensing Board and the other parties to untangle them. On this ground alone, the third factor should be decided against Intervenors on any resubmission of the contention.
Furthermore, the regulatory developments that have occurred in regard to the adverse NRC Staff findings incorporated in Intervenors' QA contention makes it even plainer than it was in May 1985 that they will not contribute to the development of a sound record. Their contention, with the exception of the allegations of harassment referred to above, consists entirely of extracts from old Staff' inspection reports, or the letters transmitting those reports. These excerpts make up 79 of the 81 subparts of Intervenors' contention. Of these 79 extracts, 69 (Footnote Continued) intervenors had identified a number of witnesses and the Licensing Board had found that intervenors could be expected to make a substantial contribution to the record. The Appeal Board, however, disagreed, concluding that what the Licensing Board had been told about the qualifications and possible testimony of the witnesses was " plainly too sparse to permit an informed judgment regarding their likely contribution."
13 NRC at 894.
. O consist of extracts from NRC Staff Items of Violation or unresolved items. The remaining ten are extracts from either Mr.
Keppler's letter transmitting inspection report 83-09 or the executive summary which accompanied the 1984 CAT Report for Braidwood. These extracts are merely concerns articulated by Mr.
Keppler and the CAT that will evaporate once the underlying violations or unresolved items are resolved.
Of the 69 subparts of Intervenors' contention which are either NRC Staff examples of violation or unresolved items, 9 had been resolved prior to the Licensing Board's admission of the QA Contention in June 1985. Since that time over half of the 60 remaining contention items have been resolved to the satisfaction of the NRC Staff.
The following contention items were resolved by the NRC Staff prior to the admission of the QA Contention.
Inspection Inspection Contention Report Which Report Which Item Identified Item Date Closed Item Date 6.E. 84-31/84-29 12/05/84 06-007/85-007 04/04/85 6.F. 84-21/84-20 11/20/84 85-007/85-007 04/04/85 6.G. 84-17/84-17. 10/16/P4 84-42/84-38 03/18/85 6.I. 84-09/84-09 07/02/84 85-015/85-016 05/16/85 9.C. 84-13/84-13 08/07/84 85-005/85-005 03/12/85 9.D. 84-17/84-17 10/16/84 84-40/84-37 01/18/85 9.E. 84-08/84-08 05/22/84 84-40/84-37 01/18/85 11.B. 84-39/84-36 03/15/85 84-39/84-36 03/15/85 12.A. 82-05/62-05 02/02/83 85-017/85-018 06/03/85 The following contention items have been resolved to the satisfr.etion of the NRC Staff since the admission of the contention on June 21, 1985:
I Inspection Inspection
< Contention Report Which Report Which Item Identified Item Date Closed Item Date' 1.A. 82-05/82-05 02/02/03 85-052/85-050 12/i3/85 3.A.2. 83-09/83-09 05/07/84 85-050/85-048 12/27/85 3.A.3. 83-09/83-09 05/07/84 85-040/85-039 11/22/85 3.B. 85-015/85-016 05/16/85 85-052/85-050 12/05/85 4.A. 84-07/84-07 07/20/84 84-42/84-38 03/18/85 4.B. 84-07/84-07 07/20/84 85-058/85-054 02/10/86
'5.B. 85-015/85-016 05/16/85 85-052/85-050 12/05/85 5.C. 84-43/84-39 03/15/85 85-040/85-039 11/22/85 6.A. 82-05/82-05 02/02/83 86-009/86-008 03/07/86 6.B.2. 83-09/83-09 05/07/84 85-040/85-039 11/22/85 6.B.3. 83-09/83-09 05/07/84 85-052/85-050 12/05/85 6.B.4. 83-09/83-09 05/07/84 85-032/85-031 10/04/85 6.B.5. 83-09/83-09 05/07/84 85-051/85-049 11/20/85 6.C. 85-007/85-007 04/04/85 85-058/85-054 02/10/86 8.A. 82-05/82-05 02/02/83 86-009/86-008 03/07/86 9.A. 84-21/84-20 11/20/84 85-040/85-039 11/22/85 l 10.A. 82-05/82-05 02/02/83 86-009/86-008 03/07/86 l 10.B. 83-09/83-09 05/07/84 85-061/85-057 02/03/86
[ 10.r. 85-015/85-016 05/16/85 85-032/85-031 10/04/85 11.A. 82-05/82-05 02/02/83 86-009/86-008 03/07/86 l 11.C. 84-17/84-17 10/16/84 86-008/86-007 03/03/86 l 11.D. 84-07/84-07 07/20/84 85-032/85-031 10/04/85 12.B.2. 83-09/83-09 05/07/84 85-059/85-055 03/06/86 12.B.3. 83-09/83-09 05/07/04 85-059/85-055 03/06/86 12.H. 84-07/84-07 07/20/84 85-058/85-054 02/10/86 13.A. 82-05/82-05 02/02/83 86-009/86-008 03/07/86 13.B. 84-43/84-39 03/15/85 85-040/85-039 11/22/85 14.A. 82-05/82-05 02/02/83 86-009/86-008 03/07/86 i 14.B.1. 83-09/83-09 05/07/84 85-052/85-050 12/05/85
! 14.B.2. 83-09/83-09 05/07/84 85-051/85-049 11/20/85 14.B.3. 83-09/83-09 05/07/84 85-052/85-050 12/05/85 l Moreover, in exit meetings held on January 17, 1986 and i
March 27, 1986, the NRC Staff announced its intention to close in
! upcoming inspection reports the following items of violation l which are referenced in Intervenors' amended QA contention.
Inspection Inspection Report Which Report Which Contention Item Identified Item Date Will Close Item 6.B.1. 83/09/83-09 05/07/84 86-006/86-005 6.D. 85-007/85-007 04/04/85 86-006/86-005 8.D. 85-008/85-008 04/18/85 86-007/86-006 8.E. 85-003/85-008 04/18/85 86-007/86-006 8.F. 85-008/85-008 04/18/85 86-007/86-006 12.c. 85-015/85-016 05/16/85 86-006/86-005 12.F. 85-006/85-006 03/08/85 86-003/86-003 Thus, the Staf f has already determined that for 47 of the 69 contention items based on adverse Staff findings Applicant's corrective actions have been acceptable and therefore the items can be closed. It is significant that the Staff has closed out the items of noncompliance which underlie the 1983 imposition of a Civil Penalty and which are the primary basis for the amended QA contention. In addition, two of the items of violation referenced by Intervenors have been withdrawn by the NRC Staff because the Staf f determined that they were not in fact viola-tions of the Appendix B criteria.SEI Moreover, the Staff has issued two comprehensive inspection reports regarding allegations of harassment of L, K. Comstock QC inspectors and has concluded that there was no safety significance to any of the allegations (Inspection Reports 85009 and 85021/85022).
--45/ The item of noncompliance referenced in contention item 12.E.
was withdrawn by the Staff in a letter dated June 27, 1985 from C.E. Norelius to C. Reed. Similarly, the item of (Footnote Continued)
Accordingly, only 20 of the 69 contention items which are based-on NRC Staff adverse findings remain to be resolved.
Thus, it is even more apparent than it was in MAy 1985 that Intervenors will not contribute to the development of a sound record. They would bring nothing to the-table with respect to 49 issues that result from old quality assurance violations identified by the NRC Staff, and for which the Staff has subsequently accepted Applicant's corrective actions. Moreover, with respect to the remaining 20 items, it seems obvious that in time they will be resolved in the same satisfactory manner as their 49 brothers. This assertion is buttressed by the most recent SALP report for the Braidwood Station dated February 20, 1986 which concludes that the Company's rating improved in such areas as Quality Programs and Administrative Controls Affecting Quality, Piping Systenc and Supports and Safety-Related Components.
Thus, on any resubmission of Intervenors' QA contention, the third factor should be decided against them. They have made only a token attempt to identify witnesses and have made no attempt to indicate how they would litigate the many issues raised by their contention, through the named adverse witnesses or otherwise. Moreover, their contention itself, consisting of a (Footnote Continued) noncompliance referenced in contention item 14.B.4. was withdrawn by the Staff in a letter dated February 13, 1986 from C.J. Paperiello to C. Reed.
D laundry list of noncompliances identified by the Staff, most of then now outdated, gives no confidence that they can contribute meaningfully to the development of a cound record. Indeed, it would undoubtedly be more productiv'e for the Commission to direct the Regional Staff (which is most familiar with the items of noncompliance underlying the contention) to document its review of the contention as submitted, rather than litigate this matter at the behest cf the Intervonors.
- 4. Factor (V).
Finally, Intervenors_certainly could not prevail on the i 1 fifth' factor, concerning the extent to which their participation I
would broaden the issues or delay the proceeding, if their contention were resubmitted. All but one of the other issues admitted in the proceeding have been resolved through summary i
L disposition or voluntary withdrawal. The remaining issue was i
litigated earlier this year, and the record on that issue was
(
closed on March 12, 1986.d5 But for the QA contention, therefore, there would remain nothing to litigate. There could be no clearer case where the admission of a contention materially l
expands the issues and delays the proceeding.
Furthermore, Applicant does not believe that if the
- contention were resubmitted, the Commission should ignore the fact that its admission would imperil Applicant's projected fuel 15 March 12, 1986, Tr. 1058.
i l
l
[
load date (assuming a favorable Initial Decision by the Licensing Board). It is truc that the pertinent consideration under the fifth factor is delay to the proceeding, not delay in the fuel load date. In the decided cases, however, this principle has been invoked against intervenorc, when admission of an issue would delay the proceeding but not the fuel load date. Clearly, when admission of a contention would delay the proceeding suffi-ciently to delay the loading of fuel, the problem Lecomes more, i
not less, serious. Ecr example, in Detroit Edison Co< (Enrico Fermi Atomic Power Plant) , LDP-82-96, 16 NRC 1408, 1434-35 (1982), aff'd, ALAE-707, 16 NFC 1760 (1982), intervenors argued that they should prevail on the fifth factor because admission of their contention would not delay the applicant's fuel load date.
The licensing board stated that delay to the fuel load date was not a relevant consideration. It is clear from the board's opinion, however, that the board meant that lack of delay tc the fuel load date was not relevant. In rejecting the late-filed contention, the board noted that in its opinion admission of the contention might well delay fuel loading.47/-
47/ Similarly, in Long Island Lighting Co. (shoreham Nuclear Power Station, Unit 1), LBP-83-30, T7 tikC 1132, 1146 (1983),
the Licensing Board, after stating that delay to the pro-ceeding was the pertinent consideration under factor (v),
emphasized that admission of the issue in question would delay issuance of a low-power license. See also Gene.ral Electric Co. (GETR Vallecitos) , LBP-84-54, 20 NRC 1637, 1644 (1984).
Applicant submits that at this stage of the proceeding, it would be necessary to recognize that admission of the resub-mitted QA contention would delay the proceeding to the point where Applicant's projected fuel load.date might well have to be extended. .As the affidavit of Thomas Maiman, attached as Exhibit C, explains, Applicant's projected fuel load date is September 30, 1986. Moreover, Mr. Maiman explains that in view of the integrated hot functional testing which is presently proceeding on schedule, this date for loading fuel is realistic.18/
Even assuming the Intervenors' resubmitted QA contention could properly be readmitted in time for hearings to commence on May 6, 1986, as presently scheduled, Applicant's fuel load date would be imperiled. Applicant estimates that a realistic estimate of the time required to close the record on quality assurance issues is 60 days, especially given the fact that the Licensing Board is not prepared to hold hearings during the week of May 19. After that, 10 CFR S 2.754 allows 55 days for the parties to file proposed findings of fact. Appendix A to 10 CFR Part 2 recommends that licensing boards render a decision within 45 days, although a , board is not obliged to do so. If this se'nedule is adhered to, the Licensing Board would render a
~
38/ Affidavit of Thomas J. Maiman, attached hereto as Exhibit B, it 3-7.
g decision on October 15, 1986, two weeks after the date on which Applicant would otherwise be able to load fuel. Such a delay would be costly and place the Applicant in the untenable position of being unable to operate an otherwise ready and operational facility.
In sum, the fifth factor should be decided against Intervenors if their contention is rejected and resubmitted. As the record presently stands, there could be no clearer case in which admission of a contention would substantially expand the
, issues and delay the proceeding. Moreover, this delay would imperil Applicant's projected fuel load date, with potentially costly consequences for the Applicant.
- 5. Balancing The Five Factors.
On balancing the five factors, the inescapable con-clusion is that Intervenors could not support admission of a refiled QA contention. Of the five factors required to be considered by the Licensing Board under 10 CFR S 2.714 (a) (1) ,
four favor dismissal of the contention. Only the fourth factor, whether Intervenors' interest would be represented by other parties to the proceeding, weighs in favor of admitting the contention. It is well established in Commission jurisprudence that this factor is of little weight (in(determining whether a 5
E
1-late-filed contention may be admitted.11/ The three controlling -
factors are the first, the third, and the fifth.5S The Inter- '
venors could not prevail on any of these with respect to a refiled contention. In particular, as the Licensing Board 7
~
already found, their delay in filing the contention would be inexcusable, making their burden on the other factors much heavier. Moreover, there could be no clearer case in which admission of a contention would expand the issues and delay the Il proceeding. The Licensing Board only found to the contrary by violating the regulation, and the case against Intervenors on refiling would be even heavier.
In sum, the refiled QA contention would have to be rejected under the Commission's regulations. Any decisien to the ~_
contrary by the Licensing Board would be an abuse of discretion --
even more egregious than that found by the Appeal Board in So'Ith Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981). There the Appeal Board reversed a licensing board's grant of an untimely intervention petition, reasoning that inexcusable lateness in filing coupled 49/ Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2)
ALAB-707, 16 NRC 1760, 1767 (1982); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730-31 (1982); South Carolina Electric and Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1) ALAB-641, 13 NRC 881, 884-85 (1982).
s_q/
1_g ,
-s- - -
late-filed contention may be admitted.SAI The three controlling factors are the first, the third, and the fifth.ESI The Inter-venors could not prevail on any of these with respect to a refiled contention. In particular, as the Licensing Board already found, their delay in filing the contention would be inexcusable, making their burden on the other factors much heavier. Moreover, there could be no clearer case in which admission of a contention would expand the issues and delay the proceeding. The Licensing Board only found to the contrary by violating the regulation, and the case against Intervenors on refiling would be even heavier.
In sum, the refiled QA contention would have to be rejected under the Commission's regulations. Any decision to the contrary by the Licensing Board would be an abuse of discretion even more egregious than that found by the Appeal Board in South Carolina Electric i Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981). There the Appeal Board reversed a licensing board's grant of an untimely intervention petition, reasoning that inexcusable lateness in filing coupled SE Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2)
ALAB-707, 16 NRC 1760, 1767 (1982); Mississippi Power i Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730-31 (1982); South Carolina Electric and Gas Co.
(Virgil C. Summer Nuclear Slation, Unit 1) ALAB-642, 13 NRC 881, 884-85 (1982).
EE# Id.
e
O with an expansion of the scope of the proceeding required denial of the late-filed petition, even though the petitioner had made some showing of an ability to contribute to the record. The Appeal Board held that the Licensing Board had abused its discretion under 10 CFR S 2.714 (a) (1) . 1 C. Conclusion.
In its Order of March 20, 1986, the Commission directed the parties to address two questions: whether the Licensing Board correctly applied the five-part test of 10 CFR S2.7.4 in admitting Intervenors' amended QA contention, and whether, if the contention were rejected and resubmitted today, it would now satisfy the five-part test. For the reasons given above, the Commission should decide both questions in the negative.
Applicant requests that the Commission reverse the Licensing Board's Order of June 21, 1985 admitting the contention and dismiss the contention, on the ground that the Board erred in its consideration of this five-part test. Applicant's request is without prejudice to the relief requested in Applicant's September 23, 1985 petitions to the Commission. Applicant also
--51/ See also Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-82-91, 16 NRC 1364, 1370 (1982); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-643, 13 NRC 898, 900 (1981).
requests that the Commission issue a declaratory ruling that if the same contention were to be resubmitted it would not be admissible'under the five-part test.
Respectfully submitted,
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O '
% fr>1 b Two of the Attorneff for Commonwealth Edison Company ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602
.(312) 558-7500 ISHAM, LINCOLN & BEALE 1150 Connecticut Avenue, N.W.
Suite 1100 Washington, D.C.- 20036
-(202) 833-9730 Dated: April 3, 1986
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y Exhibit A i
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Y Exhibit A 3/7/85 INTERVENORS' ROREM, ET AL. ADDITIONAL CONTENTION Quality Assurance Cor=onwealth Edison has not imple=ented, maintained and. overseen an adequate quality assurance program for the construction of Braidwood. Edison has not and does not adequately supervise the quality assurance programs of its construction contractors. This is illustrated by, e . g. .
the $100,000 fine imposed against Edison for.
the faulty QA program of the Philips-Getschow Corporation;
. the non-compliance history of Edison and its contractors at Braidwood;
. the NRC Regional Administrator's testimony in August, 1984, that there are " serious quality r assurance questions at Braidwood";
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. the February,1985 NRC CAT inspection report, which documented continuing quality assurance de ficiencies , as well as inadequacies in the Braidwood Construction Assessment Program
("3 CAP") .
Because without an adequate QA program, Edison cannot show reasonable assurance that Braidwood will safely operate, no operating license may issue.
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Exhibit B a
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. Exhibit B 1 Construction Quality Assurance Commonwealth Edison does not possess the willingness or capability to implement, maintain and oversee an adequate quality assurance program for the construction of Braidwood.
Specifically, Edison has not and does not adecuarely super-vise the quality assurance programs of its construction con-tractors. This is illustrated by, e.2 the $100,000 fine imposed against Edison for the faulty QA program of the Philips-Getschow Corporation by the non-compliance history of Edison and its contractors at Braidwood the fact that Edison's Byron plant was the first plant ever to be denied an operating license by the NRC, because of Edison's deficient QA over-site of its contractors the Adminis trator of Res; ion III has stated that QA problems at Braidwood are worse than those at Byron.
Because without an adequate construction QA, Edison cannot show reasonable assurance that Braldwoed will sa felv ooerate, no operatin.c license may issue. .
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e Exhibit C