ML20199K860
| ML20199K860 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 07/01/1986 |
| From: | Gallo J, Thornton P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20199K865 | List: |
| References | |
| CON-#386-870 OL, NUDOCS 8607090265 | |
| Download: ML20199K860 (10) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD y
In the Matter of:
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i COMMONWEALTH EDISON COMPANY
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5' h ~7 P2:22
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Docket Nos. 50-456 j
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CFf59-A52[V"M i
(Braidwood Station,
)
CCCE$7($
Units 1 and 2)
)
L.
i APPLICANT'S RESPONSE IN OPPOSITION TO INTERVENORS' MOTION TO ADMIT LATE-FILED CONTENTION On June 23, 1986, Intervenors Bridget Little Rorem, et a]., moved the Atomic Safety and Licensing Board to admit a late-filed contention alleging overstress of structural columns at Braidwood Station.
Intervenors' motion should be denied because the proposed late-filed contention lacks the basis and specificity required by 10 CFR S 2.714 (b) for the admission of a contention.
In addition, Intervenors have failed to make an adequate showing on the five factors set forth in 10 CFR S 2. 714 (a) governing the admission of late-filed contentions.
ARGUMENT I.
Bases For Intervenors' Proposed Late-Filed Contention Have Not Been Set Forth With Reasonable Specificity.
Intervenors must provide bases for their contentions which are reasonably specific in order that concrete issues for adjudication can be defined.
See Gulf States Utilities Company 8607090265 860701
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PDR ADOCK 05000456 G
PDR (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 769 (1977).
Therefore, the bases must be stated with sufficient specificity to put the Applicant and the Staff on notice as to what evidentiary presentations are needed to respond to the contention.
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 1 and 2), ALAB-216, 8 AEC 13, 20 (1974); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1481 (1982); Illinois Power Company (Clinton Power Station, Unit 1), LBP-81-61, 14 NRC 1735, 1737 (1981).
Intervenors proposed late-filed contention fails to meet this requirement.
Intervenors' assertion is so vague that if the contention were to be admitted, Applicant would have no reasonable notice what evidentiary presentation would be necessary to meet its burden of proof, short of addressing the entire question of the adequacy of the design of the structural steel at Breidwood Station.
The proposed contention is deficient in articulating its asserted concern with specificity.
The contention is premised entirely on an anonymous letter sent to Intervenors' counsel and incorporated by reference in the contention.
The contention as framed by Intervenors states that "many" of the structural columns at Braidwood are overstressed.
The incorporated letter, however, contains an ambiguous reference suggesting that beams (horizontal members) as well as columns (vertical members) are meant to be put in issue.
Neither the contention nor the letter contains any suggestion as to where these "many" columns and/or beams may be located.
The contention is framed as a safety concern, so the members in question are presumably located in Category I buildings.
t There are, however, hundreds of columns and thousands of beams located in the Unit 1 containment, the auxiliary building and the Unit 2 containment.
It is ludicrous to suggest that all of these members are overstressed, but that is apparently one issue that Applicant would be forced to litigate if the contention were admitted.
The letter asserts that the alleged overstress has oc-curred because the initial design of the plant did not take into account additional loads placed on structural members by modifica-tions made during the course of construction.
Despite vague sug-gestions in the letter, however, there is no reasonable specifi-cation of what modifications or what additional loads are being put in question.
Moreover, the letter states, as the basis for the anony-mous alleger's concern, that no program has been implemented to analyze the additional loads on structural members and reinforce them as needed.
Applicant can easily demonstrate that this is totally false.
Perhaps foreseeing this, however, Intervenors have expanded this concern in framing their contention.
They seek to put in issue the adequacy of any such program the Applicant may have.
(Motion, p. 3).
This stroke of the pen is the only basis offered by Intervenors to support the notion that the Applicant's program is inadequate.
Demonstrating the adequacy of its program for all structural members in Category I buildings is a substanstial evidentiary undertaking that should not be imposed by the Board given the total lack of basis for its admission as a contention.
.. In short, Intervenors' proposed contention is lacking in the spec-ificity required to admit an issue for litigation under the Com-mission's regulations.
The contention is equally lacking in the requisite basis.
Intervenors' proposed contention does not purport to assert a concern that Intervenors themselves are raising, premised on some credible basis, such as an Applicant or Staff document.
On the contrary, Intervenors' sole basis is an anony-mous letter which states a vague concern.
Intervenors freely admit they have no basis for believing that the anonymous al-allegation may be true. (Motion, p. 3).
An anonymous tip is not in itself an adequate basis for an admissible contention.
Houston Lighting and Power Company (South Texas Project, Units 1 and 2), LBP-86-8, NRC slip op. March 28, 1986 (anony-mous phone call to intervenors' representative does not supply basis required by 10 CFR S 2.714(b)); cf. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-775, 19 NRC 1361, 1367n. (1984) (anonymous statements un-reliable under 10 CFR S 2.743 (c) because competence or even existence of unidentified individuals is impossible to determine).
Moreover, the anonymous letter itself offers no reasonable basis for its expressed safety concern.
In particular, the letter offers no basis for believing that any structural members at Braid-wood are overstressed or that Applicant has no program to evaluate the stresses on structural members as construction progresses.
Simply in an effort to underline this point, Applicant is
-attaching the Affidavit of Kenneth T.
Kostal.
As Mr. Kostal explains, the init';.1 design of the plant assumes uniform loads applied to structural members.
As construction progresses, the Architect-Engineer, as a part of the normal design process, has a program to assure that structural members can accommodate any additional as-built loads.
All stresses caused by actual loads are evaluated in the Architect-Engineer's Final Load Check.
This Final Load Check program has been ongoing at Braidwood.
Similarly, the contention offers no basis for believing that this program may be inadequate.
Indeed, it could hardly do so, since the letter on which it is premised asserts that no such program exists.
In short, Intervenors' contention offers no basis for the assertion of a safety concern that could be ad-mitted to litigation under the Commission's regulations.
Apparently recognizing the lack of basis and specificity in their proposed contention, Intervenors make an alternative re-quest of the Licensing Board.
They ask that the Board delay ruling on the admission of their proposed contention until the NRC Staff has investigated the anonymous allegation and determined whether Applicant has an adequate program for evaluating stresses in structural members.
ihere is no warrant for such a request in the Commission's regulations and it should not be entertained.
It may well be appropriate for the Staff, in its oversight function, to investigate anonymous allegations to determine whether they have any validity.
The Staff's responsibilities, however, are unrelated to the Commission's regulations govern-ing the admissibility of contentions.
In particular, there is no threshold showing necessary to initiate a Staff inquiry.
Such an inquiry may be initiated even in the absence of bases i
and specific details.
The Board should not hold its ruling in abeyance pending completion of any Staff inquiry.
1 1
II.
Intervenors' Proposed Late-Filed Contention Does Not Meet The Standard For Admission Of Late-Filed Contentions.
The Licensing Board is required to balance the five factors of 10 CFR S 2.714 (a) in determining whether to admit a i
late-filed contention.
Commonwealth Edison Company (Braidwood a
Station, Units 1 and 2), CLI-86-08, NRC slip op. at 12 (April 24, 1986).
A proper balancing of the five factors in this case weighs against the admission of Intervenors' proposed late-filed contention.
Factor (i)
Applicant agrees that there appears to be good cause for the extreme late filing of Intervenors' proposed contention, since it is solely based on an anonymous letter represented to be received by Intervenors' counsel on June 23, 1986.
(Motion,
- p. 2.)
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Factors (ii) and (iv)
Applicant likewise agrees that there are no other means by which Intervenors' interest will be protected, and that this interest will not be represented by existing parties.
Factor (iii)
There is, however, no reason to believe that requiring the parties to litigate the concern raised by the anonymous alleger would contribute to the development of a sound record in this pro-ceeding.
The vague nature of the expressed concern and its lack of any reasonable articulated basis give no confidence that any contribution would be made to the record.
Nor does the fact that the anonymous alleger claims to be an engineer at Braidwood give additional confidence.
The parties, including the Intervenors, of course cannot evaluate this claim.
Moreover, the failure of the writer to articulate the expressed concern with any precision, coupled with the writer's obvious unfamiliarity with the basic facts relating to the concern, cast doubt on the writer's claim to be an engineer at Braidwood.
As the Appeal Board observed in Diablo Canyon, supra, even the existence of an anonymous alleger is impossible to determine.
Indeed, by recognizing that the allegation may be groundless, and by requesting that the Board delay ruling on the admissibility of the contention, Intervenors effectively concede that at this point in time they cannot assert that admission of their contentions will contribute to the develop-ment of a sound record.
The Commission has emphasized the im-portance of the third factor in the evaluation of late-filed
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contention and the need for an intervenor to make a strong positive showing on it.
Commonwealth Edison Company (Braidwood Station, Units 1 and 2), CLI-86-08, NRC slip op. at 5-7 (April 24, 1986).
Factor (v)
Furthermore, as Intervenors concede, admission of the late-filed contention would clearly broaden the issues and delay the proceeding.
At this very late stage in the proceeding, when discovery is long since closed and the parties are in the midst of the hearing process, this factor must weigh very heavily in the Board's determination.
See Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552, 10 NRC 1, 5 (1979); Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759, 761-622 (1978); Virginia Electric and Power Company (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 400 (1975).
It is true that if the issue Intervenors seek to litigate is simply whether a program to evaluate stresses 4
on structural members exists at Braidwood, the issue could quickly be disposed of.
Indeed, if the contention were otherwise ad-missible, the Board could summarily dispose of it on the basis of Mr. Kostal's affidavit attached hereto.
Even that process, however, would involve some broadening and delay, and at this stage of the proceeding no delay is warranted for a vague and baseless allegation.
Moreover, Intervenors suggest that the issue they really seek to litigate is the adequacy of Applicant's program.
(Motion, pp. 3-4.)
Litigation of this issue could entail significant discovery and would require preparation of detailed expert testimony, even for purposes of summary disposition.
The time needed to litigate these matters effectively in the midst of the ongoing hearings would at this late stage cause significant delay to the proceeding.
Balancing the Five Factors On balance, the five factors clearly weigh against admission of the Intervenors' proposed late-filed contention.
It is well established that factors two and four are of little weight in such a determination.
See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426, 439-40 (1984); Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878 (1984).
At this stage of the proceeding, the presence of good cause for late filing cannot serve to overcome the obstacles posed by the obvious lack of any showing that admission of the late-filed contention would contribute to the development of a sound record coupled with the potential for significant delay to the proceeding that admission of the late-filed contention would pose.
CONCLUSION For the reasons stated, the Licensing Board should deny Intervenors' motion to admit their proposed late-filed contention.
The contention lacks the basis and specificity required by 10 CFR S 2. 714 (b) and it fails the balancing
. O test imposed by 10 CFR S 2. 714 (a).
It is therefore in-admissible under the Commission's regulations.
The Licensing Board should also deny Intervenors' alternative request that it delay ruling on the contention until the NRC Staff determines whether the Applicant has an adequate program to evaluate stresses to structural members.
Respectfully submitted,
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Two of the Attorneys for Commonwealth Edison Company Joseph Gallo ISHAM, LINCOLN & BEALE Suite 1100 1150 Connecticut Avenue, N.W.
Washington, D.C.
20036 (202) 833-9730 Peter Thornton ISHAM, LINCOLN & BEALE Suite 5000 Three First National Plaza Chicago, IL 60602 (312) 558-7500 Dated: July 1, 1986