ML20141N879

Motion for Leave to File Response to Intervenor 860218 Answer Opposing Applicant 851220 Motion for Summary Disposition.Certificate of Svc Encl

ML20141N879
Person / Time
Site:	Braidwood
Issue date:	03/11/1986
From:	Mark Miller COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-411 OL, NUDOCS 8603180235
Download: ML20141N879 (9)

Text

. March 11, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4 BEFORE THE ATOMIC SAFETY AND LICENSING BOAR _D g 90 g$ 1 497 3 s-In the Matter of: )

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COMMONWEALTH EDISON COMPANY ) <)

) Docket Nos. 50-45 g (Braidwood Station, Units 1 ) 50-457 and 2) )

MOTION FOR LEAVE TO FILE RESPONSE TO INTERVENORS' ANSWER OPPOSING

SUMMARY

DISPOSITION On December 20, 1985, Commonwealth Edison Company

(" Applicant") filed a Motion for Summary Disposition as to.

Certain Subcontentions. This motion, accompanied by supporting affidavits and statements of material facts as to which there is no dispute, as required by 10.CFR S 2.749, sought summary dis-position of certain portions of the Quality Assurance contention of Intervenors Rorem, et al. On February 18, 1986, Intervenors filed an Answer opposing Applicant's Motion for Summary Dis-position. On the same date the NRC Staff filed a response which generally supported Applicant's Motion, including supplemental affidavits from Staff personnel who are responsible for the evaluation and closure of the items of noncompliance which com-prise the individual subcontention items on which Applicant sought summary disposition. On March 5, 1986, pursuant to 10 CFR S 2.749(a), Intervenors filed a response to the Staff.

8603180235 PDR 860311ADOCK PDR 05000456 C

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0 Under the Commission's Rules of Practice, Applicant does not have the right to reply to Intervenors' Answer or its response to the Staff. Applicant does not intend to reply to Intervenors' pleading on an item-by-item basis, explaining why Intervenors' purported reasons for denying summary disposi-tion as to each subcontention are unavailing. Applicant believes that its moving papers and the NRC Staff's response in support thereof speak for themselves. Nonetheless, Applicant believes that the Licensing Board should grant it leave to file this response which addresses two fundamental points raised by Inter-venors. First, the Intervenors have made a very serious mis-representation conce.ning the content of Applicant's motion for summary disposition. Much of Intervenors' argument depends on this misrepresentation. Second, many of Intervenors' arguments are based on an erroneous application of federal court precedents to the admissibility of evidence in Commission proceedings.

Were the Licensing Board to accept Intervenors' position, not only would summary disposition be essentially vitiated as a workable and functional procedural tool, but Apolicant and Staff would be put to an overwhelming and unprecedented evidentiary burden at trial.

1. Intervenors assert that Applicant's Motion for Summary Disposition is ill-founded because "[i]n seeking to summarily dispose of contention sub-items each founded upon a specific historic NRC Staff finding of quality assurance failure l 1

at Braidwood, Applicant seems to ask this Board to erase each i

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.h' such historic flaw from the Braidwood quality assurance rccord

'with no subsequent opportunity for Intervenors to use them to demonstrate patterns of inadequacies.'" (citing Applicant's motion, p. 11). Intervenors assert that this approach is de-fective because the Braidwood quality assurance record should be evaluated for implications that unidentified and uncorrected deficiencies remain, and they suggest that summary disposition is

" inherently inappropriate" for resolution of these issues.

Intervenors' Answer, pp. 2-3.

The plain language of Applicant's motion demonstrates that Intervenors have engaged in a serious misrepresentation of Applicant's position. In the portion of the motion quoted by Intervenors, Applicant asserted that with respect to contention items 5.A, 5.B and 5.C, which challenge design quality assurance, the Board should grant summary disposition with no subsequent opportunity for Intervenors to use the noncompliances to demon-strate patterns of inadequacies. This assertion was based both on NRC case law holding that there is no direct connection between design quality assurance and construction quality assurance and because the motion for summary disposition dealt with all aspects of that subcontention (Motion, p. 11). Applicant went on to observe that as to other contention items subject to summary disposition, it still bore the burden of proof in the evidentiary hearing to demonstrate that each of the subcontention items do not i

represent a pattern of quality assurance deficiencies as

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. alleged.in the contention, even if summary disposition was to be granted. Applicant's Motion, p. 11.

This misrepresentation infects much of Intervenors' Answer. A's to each of the separate issues on which Applicant has moved for summary disposition, Applicant has demonstrated that effective corrective action, acceptable to the NRC Staff, has taken place. The Staff affidavits have confirmed these facts. In general, Intervenors do not seriously challenge the effective-ness of Applicant's corrective actions. Rather, they rely on the assertion of counsel that there are unanswered questions about whether more widespread problems might exist and use such questions as a basis for gratuitously asserting that any noncompliance, no matter how minor, must be symptomatic of such wide-ranging, undiscovered problems. However, they do not bring forward any specific facts that would demonstrate the existence of such problems, as required by 10 CFR S 2.749 to defeat a motion for summary disposition. Moreover, since Applicant has acknowledged its burden to demonstrate that the quality assurance deficiencies set forth in the contention do not represent a pattern of deficiencies that would call Applicant's quality assurance program in question, Intervenors' arguments are simply irrelevant.

2. Intervenors' other major argument opposing summary disposition is that in many cases Applicant and Staff witnesses are not competent to testify to the matters contained in their affidavits because they do not speak from personal knowledge, l'

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rely on hearsay and express opinions. Intervenors also complain that Applicant did not attach to-its filing' sworn or certified copies of all documents referred to in the affidavits. . Inter-

'venors' arguments are ill-founded because they ignore the Com-mission's Rules of Practice and the decisions interpreting them.

.Intervenors' arguments are founded instead on federal court decisions interpreting the Federal Rules of Civil Procedure.

10 CFR S 2.749 is not in all respects parallel to Fed. R. C.

P. ~5 <6 . Section 2.749 states, for example that "[alffidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively'that the affiant is competent to testify to.the matters stated therein." This provision was not con-tained in the Commission's proposed rulemaking. 37 Fed. Reg. 9339.- It was added to the fin si rule "in order to track more closely the Federal Rules of C.vil Procedure." 37 Fed. Reg. 15127. Yet the words " personal .nowledge", which appear in F.R.C.P.

56 (e) to describe the form of aff_ davits required to support a motion-for summary judgment do not appear in Section 2.749. Thus, while Section 2.749 is deliberately analogous to Rule 56, portions of Rule 56 which were omitted by the Commission in promulgating the rule may not be read back into it.

i Intervenors do not challenge the competence of Ap-plicant's affiants to testify to the matters contained in their affidavits in the usual sense of challenging Applicant's showing that the affiants are qualified by education or experience which gives them some special knowledge or skill germane to the matters discussed in the affidavits. See Florida Power and Light Co.

(Turkey Plant Nuclear Generating Plant, Units 3 and 4), LBP-85-29,

22 NRC 300, 303-04 (1986). Rather, they seek to graft onto the Commission's administrative proceedings rules applicable to eye-witnesses. Testimony in Commission proceedings is virtually all the testimony of experts and includes expert opinion and judgment.

This applies to summary disposition as much as to trial. See, e.g., Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456 (1980).

An expert witness, of course, may testify based on in-formation made known to him by others even though the information itself may not be admissible in evidence, if the information is of a type reasonably relied on by experts in the field. Eed. R.

Evid. 703. Mureover, hearsay evidence is generally admissible in the Commission's administrative proceedings. The admissibility of evidence is governed by 10 CFR S 2.743 (c), which provides that "[o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted." Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 477 (1983); cleveland Electric Illuminating Co._ (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 501 (1985);

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 411-12 (1976). Consistent with Rule 704 of the Federal Rules of Evidence, the opinion of an expert witness as to the ultimate conclusion on an issue is admissible on summary disposition.

See Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 460-61 (1980).

Finally, as Intervenors ackn'owledge, in Commission practice under-Section 2.749 there is no requirement that all documents referenced in a summary disposition affidavit be provided with the affidavit.

See, Virginia Electric and Power Co. (North Anna Nuclesr Power Station, Units 1 and 2), ALAB-584, 11 NRC 451,.460 (1980i.

Thus, Intervenors' arguments are premised on a micquided attempt to read inappropriate requirements into the Commission's Rules of Practice. Were Applicant and Staff required to supply-an eyewitness for every factual assertion necessary to respond to Intervenors' contention, the trial in this proceeding would be interminable. Evidence admissible at trial is equally ad-missible on summary disposition.

Respectfully submitted, One of the Attorneys for Applicant, COMMONWEALTH EDISON COMPANY ISHAM, LINCOLN & BEALE 3 First National Plaza 52nd floor Chicago, Illinois 60602 (312) 558-7500 Dated: March ((,,1986 f

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// g CERTIFICATE OF SERVICE I, Michael I. Miller, do hereby certify that a copy of the foregoing MOTION FOR LEAVE TO FILE RESPONSE TO INTERVENORS' ANSWER OPPOSING

SUMMARY

DISPOSITION was served on all persons on the attached service list by deposit in the United States mail, first class (or by expedited means, as shown) this // day of March, 1986.

s u ** {

Michael I. Mill 6r s

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e SERVICE LIST Herbert Grossman, Esq. Mr. William L. Clements Chairman Chief, Docketing and Services Administrative Law Judge United States Nuclear Regulatory Atomic Safety and Licensing Commission Board Office of the Secretary United States Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Ms. Bridget Little Rorem

• 117 North Linden Street Dr. Richard F. Cole P.O. Box 208 Administrative Law Judge Essex, IL 60935 Atomic Safety and Licensing Board United States Nuclear Regulatory *

• Robert Guild Commission Douglass W. Cassel, Jr.

Washington, DC 20555 Timothy W. Wright, III BPI 109 North Dearborn Street

• Dr. A. Dixon callihan Suite 1300 Administrative Law Judge Chicago, IL 60602 102 Oak Lane Oak Ridge, TN 37830 Charles Jones, Director Illinois Emergency Services

• Stuart Treby, Esq. and Disaster Agency Elaine I. Chan, Esq. . 110 East Adams Office of the Executive Legal Springfield, IL 62705 Director United States Nuclear Regulatory Commission William Little, Director Washington, DC 20555 Braidwood Project Region III United States Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel 799 Roosevelt Road United States Nuclear Regulatory Glen Ellyn, IL 60137 Commission Washington, DC 20555 Janice A. Stevens (For Addressee Only)

Atomic Safety and Licensing United States Nuclear Regulatory Appeal Board Panel Commission United States Nuclear Regulatory 7920 Norfolk Avenue Commission Phillips Building Washington, DC 20555 Bethesda, MD 20014 George L. Edgar, Esq.

Thomas A. Schmutz, Esq.

Neuman & Holtzinger, P.C.

I Federal Express 16.15 "L" Street, N.W.

Sulte 1000 Messenger Washington, DC 20036