ML20207H721

Response Opposing Rorem Et Al Motion for Subpoena & late- Filed Contention.Issues Raised by Subpoena Irrelevant & Contention Fails to Satisfy five-factor Balancing Test

ML20207H721
Person / Time
Site:	Braidwood
Issue date:	07/21/1986
From:	Gallo J, Thornton P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-093, CON-#386-93 OL, NUDOCS 8607250069
Download: ML20207H721 (12)

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) i-July 21, 1986 0

00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSI B CFFICE 0r :::^?ET* '

OCCKEithc . L - .

In the Matter of: )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456

)

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50-457 )s (Braidwood Station, )

Units 1 and 2) )

APPLICANT'S RESPONSE IN OPPOSITION TO INTERVENORS MOTION FOR SUBPOENA AND OTHER ALTERNATIVE RELIEF Applicant, Commonwealth Edison Company, hereby responds in opposition to the Motion for Subpoena and for Ruling on New Evidence or, in the Alternative, on a New Contention filed by Intervenors Rorem, et al. Applicant submits that the Motion for Subpoena should be denied because it raises issues that are not within the scope of the admitted harassment contention; moreover, these issues are not timely raised. The alternative motion for admission of a late-filed contention should be denied because Intervenors have not satisfied the five-factor test of 10 CFR S 2. 714 (a) .

ARGUMENT

1. Intervenors Request for a Subpoena Is Not Timely.

The Motion is the latest in a series of pleadings filed by the Intervenors during the course of the hearings in this pro-ceeding seeking to expand the issues admitted for litigation.

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s On May 27, 1986, Intervenors filed a " Motion to Admit Additional Late-Filed Harassment and Intimidation Contentions," proposing two new contentions. One of these was admitted without objection and the other was denied by the Licensing Board. On June 23, 1986, Intervenors filed a " Motion to Admit Late-Filed Contention on Over-stress of Structural Columns." This motion is still pending.

Intervenors now seek a subpoena requiring Mr. Thomas Corcoran, a former Comstock QC manager, to testify in these hearings. In the alternative, they request a subpoena allowing them to depose Mr. Corcoran. Intervenors allege that in 1983 Mr. Corcoran reported to the NRC that QC records and inspection reports were being falsified, that he had been threatened with being fired if he did not keep quiet, and that soon after this he was fired because Comstock management viewed him as too committed to quality as opposed to production. Intervenors' request for a subpoena, either to have Mr. Corcoran testify or to depose him, is untimely and will prejudice the Applicant.

Intervenors concede that Mr. DeWald testified that "he was advised that the reasons for [Mr. Corcoran's] firing had to do with Mr. Corcoran's quality orientation." (Motion,

p. 4.) The DeWald testimony relied upon by Intervenors was elicited by Intervenors during cross-examination, and it was based on testimony taken by Intervenors at Mr. DeWald's deposi-l tion on April 4, 1986. (Tr. 1226-27.) Thus, Intervenors had an understanding that Mr. Corcoran had been terminated because l

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of his quality orientation long before Mr. DeWald took the stand. Intervenors made no attempt to depose Mr. Corcoran based on this belief.

Intervenors assume that their request for a subpoena is timely because they recently became privy to a Staff memorandum indicating that in 1983 Mr. Corcoran alleged to the NRC that records had been falsified and that he had been threatened with termination if he did not keep quiet about it. But this is not material new information for purposes of seeking a subpoena for Mr. Corcoran.

Intervenors argue that this corroborates the notion that Mr.

Corcoran was fired because he was too quality-oriented. But be that as it may, the existence of this potential issue was known to Intervenors in early April, 1986. If they wished to compel Mr. Corcoran's testimony, it was incumbent on them at that time to add him to the list of witnesses that they had furnished to the Board and the parties on February 28, 1986.

If they wished to take his deposition, it was incumbent on them to seek a subpoena allowing them to depose him at that time.

Instead, they waited over three months and now seek to expand the scope of their contention in the middle of the hearing process.

The Commission has recently emphasized that if intervenors wish to litigate an issue they must do so in timely fashion. Commonwealth Edison Company (Braidwood Station, Units 1 and 2), CL1-86-08, NRC ___, Slip op at 3-4 (April 24, 1986).

Furthermore, Intervenors' lack of diligence will pre-judice the Applicant if their untimely request for a subpoena is

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-4 granted and the Corcoran issues are litigated. Intervenors waited to file their request until 30 hearing days on harassment issues had elapsed and Applicant was on the verge of completing its direct case. These hearings have already taken far longer than originally contemplated, and the Intervenors and the Staff have yet to present their direct cases, which will be followed by the Applicant's rebuttal case. Applicant would have to present ad-ditional rebuttal testimony on these issues. Moreovar, Staff would also likely wish to address these issues. Since the NBC Office of Investigations is conducting an investigation of this matter, it would likely present the Staff position, and OI will not have a position to present until its investigation, now on-going for some three years, is complete. Applicant's established date for loading fuel in Braidwood Unit 1 is September 30, 1986.

At this late stage in the protracted hearing process, further delays hold the likelihood of imperiling this date. In view of this prejudice to the Applicant, the Licensing Board should not countenance the issuance of a subpoena to expand the scope of the contention which is untimely because of Intervenors' lack of diligence.

2. The Issues Intervenors Seek to Raise Through The Issuance of a Subpoena Are Not Generally Relevant I

To And Within the Scope of The Admitted Contention.

Even if the Licensing Board does not agree that Inter-venors' request for a subpoena is untimely, Intervenors have not I shown that issuance of the subpoena would be proper under the I

Commission's regulations. As grounds for issuance of the sub-poena, Intervenors seek a ruling from the Licensing Board that the Corcoran issues are generally relevant to and fall within the

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scope of the existing harassment contention. Intervenors rely on two bases to support this view, namely, the preamble and paragraph 1 of the contention. Neither of these elements of the contention establishes the general relevance required by 10 CFR S 2.720 for the grant of a subpoena.

The prefatory portion of the admitted contention, which states the framework for Intervenors' specific allegations set forth in paragraphs 1 and 2, provides that:

Commonwealth Edison Company and its electrical contractor, L.K. Comstock Engineering Company have failed to provide sufficient authority and organizational freedom and independence from cost and schedule as opposed to safety considera-tions to permit the effective identification of and correction of quality and safety significant deficiencies. Systematic and widespread harass-ment, intimidation, retaliation and other dis-crimination has been directed against Comstock QC inspectors and other employees who express safety and quality concerns by Comstock manage-ment.

Intervenors argue that the Corcoran issues fall within the rubric of this language. However, this portion of the contention is merely prefatory language introducing the specific issues to be litigated.

The Licensing Board's ruling during the course of the prehearing conference makes this clear. (Tr. 254-55.) The Ap-plicant and the Staff attempted to limit the reach of the con-contention to the specific instances in paragraphs 1. and 2. by eliminating the words "at least" from the introductory phrase to these paragraphs. Intervenors persuaded the Licensing Board that the flexibility to add new instances resulting from dis-l

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covery should be maintained. Thus a mechanism for expanding the contention had been established. No mention was made that the prefatory paragraph was other than a preamble setting the perspective of what was to come, similar to the format used by the NRC Staff in the drafting of inspection reports. The case has gone forward on this premise. At this late date, Intervenors should not be free to use the prefatory general language as an excuse to amend the contention.

The following portion of Intervenors' harassment contention provides:

Instances of harassment and intimidation include at least the following:

1. At various times since at least August 1984, including in March 1985, more than twenty-five (25)

Comstock QC inspectors have complained to the NRC about harassment and intimidation by Comstock supervisors. Such harassment and intimidation has-been carried out or participated in by QC Manager-Irv DeWald, Assistant QC Manager Larry Seese, QA Manager Bob Seltman and QC Supervisor R.M. Saklak.

Intervenors quote very selectively from this portion of the contention in an effort to'show that the Corcoran issues come within its scope. They quote: "At various times since at least August 1984...Comstock QC inspectors have complained about harass-ment....", and then argue that the term "QC inspectors" in its generic sense is broad enough to include an inspector at the site managerial level, like Mr. Corcoran. (Motion p. 4.) But as the full text of the paragraph make clear, this portion of j the contention refers to alleged instances of harassment of QC 5

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s inspectors mentioned by the 25 Comstock inspectors who complained to the NRC in March 1985, and which have formed the bulk of the litigation on this contention. It is ludicrous to suggest that an allegation regarding a QC Manager about events in 1983 falls within the fair intendment of this portion of the contention.

Thus, Intervenors have failed to demonstrate that the issues they seek to raise are generally relevant to and within the scope of the admitted harassment contention. Neither the prefatory language of the contention nor the first paragraph listing specific incidents offers a basis for including the Corcoran issues within the admitted contention. Intervenors have thus failed to establish the general relevance required by 10 CFR S 2.720 for the grant of a subpoena.

3. Intervenors' Alternative Request for the Admission of a New Contention Should Be Denied.

Intervenors request in the alternative that the Licensing Board admit the Corcoran issues as an additional late-filed con-tention. Applicant submits that such a late-filed contention could not satisfy the five-factor balancing test for the admission of late-filed contentions set forth at 10 CFR S 2. 714 (a) .

Factor (i)

There is no good cause for the late filing of Inter-venors' proposed contention. As explained above, Intervenors were on notice of the existence of the potential issue they now a seek to raise over threj months before the filing of their pro-l posed contention. Where information is available to intervenors, i

they have the (bligation to move promptly; where they delay good

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, cause for late filing does not exist. Intervenors' receipt of the NRC Staff memorandum regarding Mr. Corcoran's allegations does not provide good cause for the late filing. As explained above, this new information did not materially change the issue of which Intervenors were already on notice. At most, it provided cumulative information. Intervenors' failure to demonstrate good cause substantially increases their burden under the other factors of the five-part test. Virginia Electric and Power Company (North Anna Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 (1975); Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 389 (1976); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977).

Factors (ii) and (iv)

Applicant 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)

Applicant assumes in this instance that Intervenors are likely to contribute to the development of a sound record if the new late-filed contention were admitted as an issue.

Factor (v)

It is obvious that admission of Intervenors' proposed contention would broaden the issues and delay the proceeding.

As Intervenors note, this delay would involve the testimony of Mr. Corcoran and perhaps that of an unknown number of other wit-

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nesses. In addition, Applicant might be required to put on re-buttal testimony on this issue. The NRC Staff might also want to present one or more witnesses. Since the NRC Office of In-vestigations is conducting an investigation of this matter, the Staff witnesses would most likely be OI personnel, and OI will not have a position on this matter until its investigation, which has been ongoing for some three years, is complete. In short, admission of the contention would cause an unquantifiable but certain, and potentially substantial, delay. Such delay should weigh more heavily in the Licensing Board's determination because of the advanced stage of the hearing process at which Intervenors' proposed contention was filed. It was filed shortly prior to the completion of Applicant's direct case, when 30 days had already been consumed in hearings on harassment issues. The direct cases of Intervenors and Staff have yet to be presented, and the Applicant's rebuttal case will follow. The Applicant's date for loading fuel in Braidwood Unit 1 is September 30, 1986, only a little over two months distant. In this posture of the case, any further delay is serious because it will not only delay the proceeding but will likely imperil the fuel load date.

Balancing the Five Factors On balance the factors weight against admission of Intervenors' proposed late-filed contention. Factors two and four are of little weight in such a determination. Here, the lack of good cause for late filing requires that the Inter-

! venors make a substantial showing on factors three and five in i

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order to prevail. This they cannot do. In the face of a delay at this late stage in the proceeding, which might have been avoided by Intervenors taking timely action, the fact that Intervenors may contribute to the development of a sound record is insufficient to tip the balance in favor of admitting the contention.

CONCLUSION For the reasons stated, the Lic3nsing Board should deny Intervenors' motion for the issuance of a subpoena for Mr. Corcoran. The Board should also deny Intervenors' alternative request for the admission of a new late-filed contention.

Respectfully submitted,

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&l)~-k Two of the Attorneys for Commonwealth Edison Company ISHAM, LINCOLN & BEALE Suite 1100 1150 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 833-9730 i

ISHAM, LINCOLN & BEALE Suite 5000 Three First National Plaza Chicago, Illinois 60602 (312) 558-7500 Dated: July 21, 1986

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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456

) 50-457 ,

(Braidwood Station, Units 1 )

and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S RESPONSE IN OPPOSITION TO INTERVENORS' MOTION FOR SUBPOENA AND OTHER ALTERNATIVE RELIEF were served by messenger on the persons identified below with a single asterisk, by Federal Express on the person identified with two askerisks and by deposit in the United States mail, first-class postage prepaid, on the remaining persons, this 21st day of July, 1986.

Herbert Grossman, Esquire

• Ms. Bridget Little Rorem Chairman 117 North Linden Street Administrative Law Judge P.O. Box 208 Atomic Safety and Licensing Essex, IL 60935 Board

• U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Dr. Richard F. Cole

• Commission Administrative Law Judge Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dr. A. Dixon Callihan** Washington, D.C. 20555 Administrative Law Judge 102 Oak Lane Oak Ridge, TN 37830

s Stuart Treby, Esquire

• William L. Clements Elaine I. Chan, Esquire

• Chief, Docketing and Services Office of the Executive .U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Office of the Secretary Commission Washington, D.C. 20555 Washington, D.C. 20555 William Little Robert Guild, Esquire ** Director, Braidwood Project Douglass W. Cassel, Jr., Esq.* Region III Timothy W. Wright III, Esquire

• U.S. Nuclear Regulatory BPI Commission 109 North Dearborn Street 799 Roosevelt Road Suite 1300 Glen Ellyn, IL 60137 Chicago, IL 60602 OmaI J g ph,6 allo We of the Attorneys for Commonwealth Edison Company i

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