ML20203K126

Motion for Reconsideration of Admission of Issue Re Rd Hunter Termination.Issue Should Be Dismissed on Ground That Circumstances Show Issue Lacks Basis.W/Certificate of Svc

ML20203K126
Person / Time
Site:	Braidwood
Issue date:	07/30/1986
From:	Gallo J COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-209 OL, NUDOCS 8608060174
Download: ML20203K126 (6)

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UNITED STATES OF AMERICA h

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NUCLEAR REGULATORY COMMISSION ~4 P2 dg BEFORE THE ATOMIC SAFETY AND LICENSIN -[Rb~ Sr,, -, y,Rv

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In the Matter of: )

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COMMONWEALTH EDISON COMPANY ) Docket Mos. 50-456 l

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(Braidwood Station, Units 1 )

and 2) )

MOTION FOR RECONSIDERATION OF ADMISSION OF THE ISSUE OF R.D. HUNTER'S TERMINATION INTRODUCTION Applicant, Commonwealth Edison Company, moves the Licensing Board to reconsider its ruling admitting for litigation the issue whether Mr. R.D. Hunter was terminated in retaliation for making allegations to the NRC and for testifying on deposition in this proceeding. Applicant submits that Mr. Hunter's testimony in this proceeding demonstrates there is no basis for further litigation of this issue and that it should therefore be dismissed from this proceeding. Moreover, if the issue is not so dismissed, Applicant will be prejudiced by having to litigate it I

further.

ARGUMENT On May 27, 1986 Intervenors Rorem et al. filed a " Motion to Admit Additional Late-Filed Harassment and Intimidation Contentions."

This pleading raised a new issue with regard to Mr. R.D. Hunter, a former Comstock QC inspector. Intervenors alleged, on the basis of a letter written by Mr. Hunter to Applicant's Quality First program, that Mr.

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Hunter had been terminated in part because of his deposition testimony in this proceeding. Intervenors requested that this issue be admitted as a new late-filed contention or that the Licensing Board rule that the 8600060174 860730 u '

PDR ADOCK 05000456 G PDR l . . _ . _ , _ . _ _ _ . _ _ _ __ ._ _ _ _ __ _ _ _ _ _ _ _ , __

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l 2 i issue was within the scope of the admitted harassment contention.

Applicant did not contest the admission of the " Hunter contention" provided that the Board limit the issue to whether Mr. Hunter was discharged in retaliation for his deposition testimony in this case.

(Brief of Conunonwealth Edison Company in Opposition to the Admission of P .khurst Contention, pp. 11-13.) The NRC Staff took the position that Mr. Hunter's alleged retaliatory termination was within the scope of the existing contention. (NRC Staff Response to Motion to Admit Additional Late-Filed Harassment and Intimidation Contentions, p. 16.) The Licensing Board admitted the issue of Mr. Hunter's alleged retaliatory firing as a matter in controversy in this proceeding. (Tr. 3769.)

Applicant does not challenge the correctness of this ruling at the time it was made. The issue of Mr. Hunter's termination was raised by Intervenors and its admission was acceded to by the Applicant and Staff on the basis of Mr. Hunter's letter. At the time, that letter appeared to offer adequate basis for admission of the issue. Applicant submits, however, that the Licensing Board should now reconsider its ruling in light of changed circumstances. Mr. Hunter's subsequent i

testimony demonstrates that the reliance of the parties on the letter was misplaced and that in fact there is no basis for the allegation that Mr.

Hunter's discharge was retaliatory.

Mr. Hunter testified regarding the passage in his letter to Quality First that formed the basis for the admission of the issue regarding his termination: "Was this [Mr. Hunter's termination) not a way to get back at the people who had given a deposition to the Intervenors BPI and NRC people..." (Hunter Exhibit A to Intervenors' Motion.) Mr.

Hunter testified that he was not asserting that he had been discharged

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for talking to the NRC or for giving a deposition in this case. He was merely asking Quality First to investigate this question. He did not personally know whether it was true or not. (Tr. 9032-36, 9079, 4

9083-84.) He was informed by Quality First that their investigation had not substantiated the notion that he was discharged for this reason. He i

accepted this judgment and continues to accept it. (Tr. 9036-37.)

In light of this testimony it is plain that there is no basis for the continued status of the issue of Mr. Hunter's termination as a matter in controversy in this proceeding. The original basis for the admission of the issue was the passage from Mr. Hunter's letter to l .

Quality First quoted above. All parties understood this as an assertion by Mr. Hunter that he had been retaliatorily discharged. Mr. Hunter's testimony, however, makes it clear that his words were not intended as such an assertion, and that he had, and has, no basis for such an assertion. Thus, although there reasonably appeared to be basis for the r

issue at the time it was admitted, it is now clear that there is no such l basis. Applicant submits that this is a sufficient ground for the dismissal of the issue at this time.

Moreover, if the issue of Mr. Hunter's termination is not dismissed, Applicant will be prejudiced. Applicant bears the burden of proof on all issues in controversy. Therefore, even though Mr. Hunter disclaims any knowledge of whether he was retaliatorily discharged, Applicant will be obligated to present testimony on this issue to assure that it has met its burden. Applicant intends to call three or more witnesses on this issue, and it is likely that examination of these i witnesses will consume a week of hearing time. Such a delay would significantly prejudice Applicant at this stage of the proceedings.

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4 The hearing schedule has already been protracted far beyond the period originally anticipated and is threatening to impact Applicant's fuel load date. In these circumstances the Board should not allow Applicant's fuel load date to be further jeopardized by an issue that lacks basis.

CONCLUSION For the reasons given, the Licensing Board should reconsider its ruling admitting the alleged retaliatory discharge of Mr. R.D. Hunter as an issue in controversy and should dismiss the issue on the ground that changed circumstances have shown the issue lacks basis.

Respectfully submitted.

l mA b p f thi attorneys for Conmonwealth Edison Company ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 608.02 July 30, 1986 i

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CERTIFICATE OF SERVICE I, Joseph Gallo, do hereby certify that a copy of the foregoing MOTION FOR RECONSIDERATION OF ADMISSION OF THE ISSUE OF R.D.

HUNTER'S TERMINATION 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 30th day of July, 1986.

Jo Ga)/fo

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 1 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 Gregory A. Berry, Esq. Springfield, IL 62705 Office of the Executive Legal Director United States Nuclear Regulatory

• William Little, Director Commission Braidwood Project Washington, DC 20555 Region III United States Nuclear Regulatory Commission Atomic Safety and Licensing 799 Roosevelt Road Board Panel Glen Ellyn, IL 60137 United States Nuclear Regulatory Commission Washington, DC 20555 Janice A. Stevens (For Addressee Dnly)

! United States Nuclear Regulatory l Atomic Safety and Licensing Commission Appeal Board Panel 7920 Norfolk Avenue United States Nuclear Regulatory Phillips Building i

Commission Bethesda, MD 20014 l

l Washington, DC 20555 Ceorge L. Edgar, Esq.

Thomas A. Sc h tz, Esq.

• Hand Delivery Newman & Holtzinger, P.C.

j 1615 "L" Street, N.W.

Suite 1000 Washington, DC 20036

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