ML20210E233

Answer Urging ASLB to Deny Applicant 860311 Motion for Leave to File Response to Intervenor Answer Opposing Summary Disposition.Certificate of Svc Encl

ML20210E233
Person / Time
Site:	Braidwood
Issue date:	03/22/1986
From:	Guild R GUILD, R., ROREM, B.
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-543 OL, NUDOCS 8603270286
Download: ML20210E233 (8)

Text

(

March 22, 1986 DOCHETED USN90 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

,86 MAR 26 N0:24 Before the Atomic Safety and Licensing Board GFFICE CT 00CHEilNui ,g In the Matter of ) BEAN 2H

)

COMMONWEALTH EDISON COMPANY ) No. 50-456

) 50-457 (Braidwood Nuclear Station, )

Units 1 and 2 )

INTERVENORS' ANSWER TO APPLICANT'S MOTION FOR LEAVE TO FILE RESPONSE REGARDING

SUMMARY

DISPOSITION Intervenors Bridget Little Rorem, et al., have no objection to the filing and consideration of Applicant's March 11, 1986, Motion for Leave to File Response to Intervenors' Answer Opposing Summary Disposition, notwithstanding the provisions of CFR $ 2.749(a) that such response shall not be entertained.

We trust that the Board will readily conclude from a review of the principal moving papers themselves that the points argued in Applicant's March 11 Response are unfounded, and that no further answer by Intervenors is warranted.

Suffice it to say, here, only the following with respect to Edison's two fundamental points:

1. (T)he Intervenors have made a very serious misrepresentation concerning the content of Applicant's motion for summary disposition.

Motion at 2.

Applicant's acknowledgement of "its burden to demonstrate 8603270286 860322 ADOCK 05000

)}g h

~

[DR 6

~

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,"

i March ll. Motion at p.4, sheds little additional light on the remedy sought by its summary disposition motion. Applicant originally argued that "only the. cumulative effect of uncorrected (its emphasis) quality assurance deficiencies can form the basis" for Intervenors' claim of Braidwood quality assurance breakdown, Motion for Summary Dispositon at 11. This 3

argument prompted us to question the fundamental foundation for Applicant's summary-disposition motion. Intervenors' Answer of

' February 18, 1986, pp. 2-3. We believe, as the-Board itself advised Applicant and Staff, that " effective corrective and remedial i action" must be programmatic in scope, extending beyond the j mere correction of the individual deficiencies targetted by summary disposition to corrective-action which targets their

" cumulative effect." Memorandum and Order Admitting Rorem, et al. Amended Quality Assurance Contention, LBP-85-20, 21 NRC 1732, 1744 (June 21, 1985).

4 The height of Applicant's hyperbole should not obscure.its -

continued failure to heed the-Board's advice that proof of ,

effective programmatic corrective actions are essential to l Applicant's case "i.e., even if Braidwood did experience the QA deficiencies alleged, effective corrective and remedial action has been taken." Id

2. (M)any of'Intervenors' arguments are based on an erroneous application of federal court precedents to the admissibil-

ity of evidence in Commission proceedings.

i

]

i t

_ _ _ _ _ _ _ _ _ _ . _ _ _ - _ _ _ . _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . _ . _ . _ _ _ . _ _ _ _ . _ _ . _ _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . . . _ _ _ _ _ _ _ _ . . _ . _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ . _ ._.___m

The Appeal Board has not-hesitated to apply to NRC practices the federal case law and interpretations. of summary judgement practice under Rule 56, Federal Rules of Civil Procedure, where in'(t)he same considerations call for similar treatment of Motions for summary disposition under our own Rules of Practice."

Cleveland Electric Illuminating Company, et al (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6-NRC 741-754 (1877).

Applicant disingenuottsly argues that " portions of Rule 56 which were omitted by the Commission in promulgating the rule may not be read back into it". Applicant cites to no case to support this proposition. That is so, because there is no case law that supports Applicant's disingenuous attempt to rewrite NRC law. 1/ Moreover, it is well settled in NRC law that resort may be made to the federal counterpart to Section 2.749 in considering the propriety of certain evidence submitted in NRC proceeding. id.

-1/ Interestingly,a rcading of the case Edison most of ten cites, Virginia Electric And Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451 (1980),makes it clear that resort may be made to the Federal rule in that the  ;

opinion itself, cites Federal case law.  !

l l

'l

Applicant, for the.first time, intimates that the affiants of the affidavits are experts. Applicants Reponse to Intervenors'-

Answer, p. 6.

-Applicant is too~ late, as Section 2.746(b) indicates:

Affidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein (emphasis added).

Applicant cannot magically repair its deficient affidavits by now asserting that these affiants are exp'erts when applicant did not comply with Rule 2.749(b) in the'first instance.

-intervenors do challenge the competence of Applicants affiants A brief perusal o'f "Intervenors Answer Opposing Summary Disposition shows numerous instances where Intervenors do challenge failure to meet the requirement that on the face of the affidavit competence is affirmatively demonstrated.

It is not that intervenors seek to inappropriately " graft onto the Commission's administrative proceedings rules applicable-to eyewitnesses". However, when applicants' affiants testify to specific -

facts-such as what happ.ened, when, and where, there is a requirement that the affiant has personal knowledge of the facts to which he testified. F.R.E. 602.

~

Intervenors do not argue with the proposition that a duly qualified expert may testify based on information made known.to him by others. 'F.R.E. 703. Also, Intervenors do not quibble with whether an expert may give an, opinion on an ultimate issue at hearing.

Ilowever, in an affidavit seekkng summary disposition where the opposing

~

party has no opportunity to-challenge the underlying-foundation of

those opinions, it is quite inappropriate. F.R.E. 704 and tbtes.

Finally, Applicants cites Intervenors' acknowledgement that Section 2.749 has no express requirement that all documents referenced in a Summary Disposition affidavit be -provided with the affidavit. While this is true in the abstract, failure to serve a critical document imposes undue burdens upon intervenors.to controvert the document, or an affiant's analysis which is based on that document. For example, certain of Edison's affiants claim to rely on " comprehensive reviews" to support material facts, yet the comphrehensive reviews referred to have been neither appended to the affidavits nor completely disclosed to intervenors in discovery, so as to allow intervenors to either accept or reject the material facts which they support.

Intervenors urge that these " considerations" call for application. of the Federal Rule 56(e) requirements here in the important instances identified in our summary disposition answer.

Perry, Sapra. Curiously,in the very case cited by Edison to the contrary (North Anna, 11 NRC at 460, Motion, p. 7) the 61 page document describing proposed spent fuel pool modifications was supplied by applicant in support of summary disposition along with the affidavit by "the engineer responsible for the designs and installations of the new racks" who " averred that he was familiar with the content" of the document. Id,. 11 NRC at 453 Applicant's evidentiary submissions supporting summary disposition fail to measure up to even the standards cited in its own pleading.

/

..+

CONCLUSION Intervenors have no objection to the filing and conaideration of Applicant's March ll, 1986, Response.

For the reasons advanced in our February 18, 1986, Answer.

Intervenors urge the Board to' deny Applicant's Motion for Summary Dispositons.

1 Respectfully submitted, f

ki ')

RobhrtGuild Douglass W. Cassel, Jr.

Timothy W. Wright, II 109 North Dearborn Chicago, IL 60602 (312) 641-5570 Attorneys for Intervenors Rorem, et al.

4

=

.s,.

• L 00LMETED 4

USNHC

, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M E M NO @

i BEFORE THE ATOMIC SAFETY AND LICENSING BO_ARD' 4 vrrLt J ' -

3 00CKETihu 5 .g , vi..

BRANCH In the Matter of: )

)

! C0bBIONWEALTH EDISON COMPANY ) NRC Dockets 50-456

-) 50-457 (Braidwood Nuclear Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE 1

I hereby certify that I have served copies of Intervenors' l Answer To Applicant's Motion For Leave To File Response on all parties to this proceeding as listed on the attached Service List by having said copies -placed in envelopes, properly addressed and postaged, and deposited in the U.S. mail at 109 North

Dearborn,

Chicago, Illinois, 60602, on this 22nd day of March, 1986.

5 I  %

v.-

rs , e s

. BRAIDWOOD SERVICE LIST Herbert Grossman, Esq. Michael I. Miller, Esq.

Chairman and Administrative Judge Peter Thornton, Esq.

Atomic Safety and Licensing Board Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Three First National Plaza Washington D.C. 20555 Chicago, Illinois 60602 Richard F. Cole Docketing &: Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commidtion Commission Washington D.C. 20555 Washington D.C. . 20555 A. Dixon Callihan C. Allen Bock, Esq.

Administrative Judge P.O. Box 342 102 Oak Lane Urbana, Illinois 61801 Oak Ridge, Tennessee 37830 Bridget Little Rorem Stuart Treby, Esq.. 117 North Linden Street NRC Staff Counsel .Essex, Illinois 60935 U.S. Nuclear Pegulatory Commission 7335 Old Georgetown Road Thomas J..Gordon,~Esq.

Bethesda, Maryland 20014 Waller, Evans & Gordon 2503 South Neil Joseph Gallo, Esq. Champaign, Illinois 61820 Isham, Lincoln & Beale 1150 Connecticut Avenue N.W. Lorraine Creek Suite 1100 Poute 1, Box 182 Washington D.C. 20036 Manteno, Illinois 60950 Region III Office of Inspection &

Enforcement U.S. Nuclear Regulatory Commission 799 Roosevelt Road Glen Ellyn, Illinois 60137 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington D.C. 20555 Atomic Safety and Licensing ss#

Appeal Board U.S. Nuclear Regulatory Commission Washington D.C. 20555