ML20211E120
| ML20211E120 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 06/06/1986 |
| From: | Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-510 OL, NUDOCS 8606130230 | |
| Download: ML20211E120 (26) | |
Text
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June 6 1986 C
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1 UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION A co 6
E, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3*'
sf I'
.+
,s In the Matter of
)
l COMMONWEALTH EDISON COMPANY
)
Docket Nos. 50-456 /h )
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)
50-457 U Q (Braidwood Station, Units 1 and 2)
)
NRC STAFF RESPONSE TO MOTION TO ADMIT ADDITIONAL LATE-FILED IIARASSMENT AND INTIMIDATION CONTENTIONS I.
INTRODUCTION Hearing on the Ilarassment and Intimidation Contention submitted by Intervenors Rorem, et al. begin on May 6, 1986.
Following a two-week break in the hearing during which discovery on the admitted contention b o admit was completed, Intervenors on May 2i,1986 moved the Board t
additional late-filed contentions of harassment and intimation with respect to L.K.
Comstock Braidwood site employee Ms. Bonnie Parkhurst and former L.K. Comstock Braidwood Site QC Inspector Mr. R.D. Hunter.
In the alternative, with respect to Mr. Hunter, Intervenors move the Board to rule that his alleged retaliatory termination is within the scope of Intervenors' existing QC Inspector Harassment contention, which identified Mr. Hunter by name and which alleged continuing harassment.
Motion at 1.
For the reasons discussed below, the Staff opposes admission of the proposed Parkhurst contention for failure of the five
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" Motion To Admit Additional Late-Filed Harassment And Intimidation Contentions" dated May 27,1986 (hereafter " Motion").
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't factors of 10 C.F.R.
I 2.714(a) to weigh in favor of admission of the contention and does not oppose the Board ruling that Mr. Hunter's alleged retaliatory termination is within the scope of Intervenors' existing QA Inspector liarassment contention.
II.
DISCUSSION A.
NRC Standards Applicable To The Proffered Contentions In order for Intervenors' proffered contentions to be admitted as nntters in controversy in this proceeding, they must satisfy two stendards.
First, any proffered contention must satisfy the Commission's requ.'rement that the basis for the contention be set forth with reasonable specifhity.
10 C.F.R.
I 2.714(b).
Second, when it is a late-filed contention, under the Commission's decision in Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983), a balancing of the five factors of 10 C.F.R.
I 2.714(a) must favor admission of the contention.
Following is a brief discussion of the NRC standards which must be applied.
In order for a proposed contention to be found admissible, it must fall within the scope of the issues set forth in the Notice of IIearing initiating the Proceeding, and comply with the requirements of 10 C.F.R.
I 2."14(b) and applicable Commission case law.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units Nos.1
-2/
Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NBC 167, 170 (1976).
See
- also, Commonwealth Edison Company (Carroll County Site),
ALAB-601, 12 NRC 18, 24 (1980);
Portland General Electric Co.
(Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-200, n.6 (1979).
, and 2),
ALAB-107, 6
- 108, 194 (1973),
aff'd BPI v.
Atomic Energy Commission, 502 F.2d
- 424, 429 (D.C.
Cir.
1974);
Duquesne Light Co.
(Beaver Valley Power Station,
Unit No.
1),
ALAB-109, 6 AEC 242, 245 (1973).
Under 10 C. F. R. I 2.714(b) a petitioner for intervention in a Commission licensing proceeding must file a supplement to its petition:
... [w]hich must include a
list of the contentions which petitioner seeks to have litigated in the matter, and basis for each contention set forth with reasonable specificity.
The purpose of the basis requirements of 10 C.F.R. 5 2.714 are (1) to ast:ure that the contention in question raises a matter appropriate for litigation in a particular proceeding, 3_/ (2) to establish a sufficient foundation for the contention to warrant further inquiry into the subject natter addressed by the assertion and, (3) to put the other parties suffi-ciently on notice "... so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra at 20, 3/
A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; i
(b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a
generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (c) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
i i From the standpoint of basis, it is unnecessary for the petition to detail the evidence which will be offered in support of each contention.
Mississippi Power & Light Co.
(Grand Gulf Nuclear Station,
Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
Furthermore, in examining a proffered contention and the bases therefor, a licensing board should not reach the merits of the contention.
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548 (1980);
Duke Power Co.
(Amendment to Materials License SNM-1773 - Transportation of Spent Fuel From Oconee Nuclear Station for Storage at ficGuire Nuclear Station), ALAB-528, 9 NRC 146,151 (1979);
Peach Bottom, supra, at 20; Grand Gulf, supra at 426.
As the Appeal Board instructed in Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216-217 (1974), in assessing the acceptability of a contention as a basis for granting intervention:
[T]he intervention board's task is to determine, from a scrutiny of what appears within the four corners of the contention as stated, whether (1) the requisite specificity exists; (2) there has been an adequate delineation of the baFIs for the contention; and (3) the issue sought to be raised is cognizable in an individual licensing proceeding.
(Footnotes omitted)
This applies equally to a contention proffered by an intervenor as well as by a petitioner to intervene.
If a contention meets these criteria, the contention provides a foundation for admission " irrespective of whether resort to extrinsic evidence might establish the contention to be i
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I
. insubstantial." b The question of the contention's substance is for later resolution - cither by way of 10 C,F.R. I 2.749 summary disposition prior to the evidentiary hearing or in the initial decision following the conclusion of such a hearing.
Farley, supra, 7 AEC at 217.
Thus, it is incumbent upon Rorem, et al. to set forth their proffered contentions and the bases therefore with sufficient detail and specificity to demonstrate that the issues they purport to raise are admissible.
On June 30, 1983 the Commission, reviewing ALAB-687,16 NRC 460 (1982), issued its decision in Duke Power Company, et al.
(Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041 (1983).
This decision considered the standards to be applied to contentions premised upon information contained in licensing-related documents not required to be prepared early enough so as to enable an intervenor to frame contentions in a timely manner in accord with the provisions of 10 C.F.R.
I 2.714(b).
In Catawba the Commission determined that it is reasonable to apply the late-filing criteria in 10 C.F.R. I 2.714(a)(1) and the Appeal Board's three-part test for good cause 5,/ to contentions that are filed late because they depend solely on information contained in institutionally
-4/
Farley, supra, at 217.
In addition, the proposed contention should refer to and address relevant documentation, available in the public domain, which is relevant to the Braidwood plant and the proffered l
contention.
- See, Cleveland Electric Illu.ninating Company, et al.
(Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 181-184 (1981).
5/
17 NRC 1045.
See also ALAD-687,16 NRC 460, 469 (1982).
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. unavailable licensing-related documents. 6_/
Id. at 1045.
Further, the Commission determined that the institutional unavailability of a
licensing-related document does not establish good cause. for filing a contention late if information was otherwise available early enough, to provide the basis for timely filing of that contention.1
- d., at 1048.
Although the findings by an Administrative Law Judge of the United States' Department of Labor is not a licensing-related document, the rationale of the Commission's decision and analysis applies here.
The factors which must be balanged in judging the admissibility of a late-filed contention are:
(i)
Good cause, if any for failure to file on time.
.(11)
The. availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a soun'd record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to - which the petitioner's participition will broaden the issues or delay the proceeding.
10 C.F.R. 5 2.714(a)(1).
6/
The Commission b,elieves that the five factors together are permitted by Section 189a of the Act and are reasonable procedural require-ments for determining whether to admit contentions that are filed late because they rely solely on information contained in licensing-related documents that were not required to be prepared or submitted early enough to provide a basis for the timely formulation of contentions.
Id. at 1045, 1050.
~
7/
The Commission set out in its decision the fundamental principles upon which it bases its conclusion that. Intervenors are required diligently to uncover and apply all publicly available information to the prompt formulation of contentions.
_Id. at 1048-1050.
. The Commission has emphasized that licensing boards are to apply the lateness requirements of 10 C.F.R.
I 2.714(a)(1) in determining whether a
late-filed contention should be admitted.
See Pacific Gas & Electric Co.
(Diablo Canyon, Units 1 and 2), CLI-81-5, 13 NRC 361, 364 (1981).
The burden is on the petitioner to demonstrate 1
that a balancing of these five factors is in its favor.
See eg, Boston Electric C_o. (Pilgrim Nuclear Power Station), ALAB-815, 22 NRC 461, 466 (1985).
The first factor in 10 C.F.R. 5 2.714(a)(1) is whether there is good cause for the filing delay.
The Appeal Board has articulated a three-part test for good cause for cases where a late-filed contention is based on the contents of a document that was not previously available.
Duke Power Co., et al.,
(Catawba Nuclear Station,
Units 1 and 2),
ALAB-687, 16NRC 460, 468 "O (1982).
This three-part test requires that the late-filed contention:
1.
be wholly dependent upon the contents of the document; 2.
could not have been advanced with any degree of specificity (if at all) in advance of the public availability of that document; and 3.
be tendered promptly once the document comes into existence and is available for public examination.
The Commission has approved this three-part good cause test.
The Commission has stated that the institutional unavailability of a licensing-related document does not establish good cause for filing a contention late if information was publicly available early enough to provide the basis fo'r the timely filing of that contention.
Id. at 1045.
Furthermore, an intervenor is required to
i 1 '
diligently uncover and apply all publicly available information necessary to formulate its contentions in a
timely fashion.
d.
at 1048; Long Island Lighting Co.
(Shoreham Nuclear Power Station,
Unit 1)
LBP-84-30, 20 NRC 426, 439 (1984).
With regard to the second factor (the availability of other means whereby a petitioner can protect its interest) and the fourth factor (the extent to which other parties will represent that interest), the Appeal Board has observed that these factors are accorded relatively less weight than the other three factors in 10 C.F.R 5 2.714(a)(1).
South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1767 (1982); Mississippi Power a Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725,1730-31 (1982).
In fact, the Appeal Board has stated that it is "most difficult to envisage a situation in which [these two factors] might serve to justify granting intervention to one who fails to make an affirmative showing on the other three factors."
- Summer, supra,13 NRC at 895.
The third factor, the extent to which petitioner can assist in developing a sound record, is accorded significant weight when balancing l
the factors in 10 C.F.R.
I 2.714(a)(1).
The Commission's case law indicates that the proponent of an untimely contention must affirmatively demonstrate that it has special expertise which could aid in developing a sound record.
See Shoreham, supra, ALAB-743, 18 NRC at 399-400; i
- Summer, supra, at 892-93; Cincinnati Gas a Electric Co.
(William H.
l Zimmer Nuclear Station), LB P-80-14, 11 NRC 570, 576 (1980).
The l
. petitioner is required to " set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses and summarize its proposed testimony.
Vague assertions regarding petitioner's ability... are insufficient."
Grand Gulf, supra, 16 NRC at 1730; see Washington Public Power Supply System (WPPSS Nuclear Project, No. 3), ALAB-747, 18 NRC 1167, 1177-78, 1181 (1983); 18 NRC at 1182-83 (concurring opinion of Judge Edles).
The fifth factor, the extent to which a petitioner's participation will broaden the issues or delay the proceeding, also is given significant weight in balancing the factors of 10 C.F.R. 5 2.714(a)(1).
The Commission's case law indicates that only the delay to the proceeding attributable directly to the tardiness of the petitioner is to be taken into account in applying this factor.
West Valley, supra, 1 NRC at 276; Long Island Lighting Co, (Jamesport, Units 1 and 2), ALAB-292, 2 NRC 631, 650 and n.25 (1975).
The Staff has applied the foregoing principles in responding to the Intervenors' Motion.
The Staff's analysis is set forth below.
Intervenors' Parkhurst Contention Should Not Be Admitted As A Late-Filed Contention Intervenors' late-filed contention with regard to alleged harassment and intimidation of Ms. Bonnie Parkhurst is based on findings by an Administrative Law Judge of the United States Department of Labor.
Motion at 1-2.
Ms. Parkhurst was a clerk typist employed by L.K.
Comstock Co., who was loaned to Sargent & Lundy, another subcontractor of Commonwealth Edison, where her duties involved control and filing of I
mylar prints of Sargent & Lundy engineering drawings and engineering
. change notices.
Intervenors assert Ms. Parkhurst complained to Edison's Quality First program about document control problems at Sargent &
Lundy and subsequently various actions were taken against her which the Administrative Law Judge of the United States Department of Labor found to be discriminatory.
Motion at 2.
Intervenors seeks to have the complete Decision and Order of the Administrative Law Judge incorporated into their contention as setting forth the relevant facts which provide the basis for their contention that there was "either an inadequacy in the Comstoch Braidwood site QA program, in failing to detect and correct the retaliatory actions or a lack of sufficient organizational independence to do so, as well as corresponding failures in Applicant's Braidwood Quality Assurance program."
Intervenors' Parkhurst Contention at 1-2 attached to motion.
Standards for Late-Filed Contention Recognizing that this is a late-filed contention, Intervenors have addressed the five factors of 10 C.F.R. I 2.714(a).
Motion at 4-9.
As discussed below, the Staff differs with Intervenors analysis of the factors.
(i)
Good Cause For Failure To File On Time Intervenors state as good cause for their late-filing of the Parkhurst contention that they "first learned of Ms. Parkhurst's allegations, and of the April 10, 1986 ruling by the Administrative Law Judge through a Board notification provided by Applicant under a cover letter dated April 28,1986." Motion at 4.
This is not correct.
. In response to Applicant's Request for Production of Documents directed to the Staff, on January 10, 1986, the Staff identified and made available 34 documents (documents 7 to 41 identified in index) relating to to Ms. Parkhurst allegations to the Department of Labor. 8_/
Thus, it appears that Rorem, et al knew or should have known in January 1986 of Ms. Parkhurst's allegations of harassment and intimidation and yet did nothing until more than four months later, after all discovery was completed and the hearing had commenced on the admitted issue of harassment and intimidation.
As noted by the Appeal Board in South Carolina Electric and Gas Company, et al (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 at 895 (1981), where a proponent of a contention remains on the sidelines and does not file its contention while the proceeding moved closer and closer to trial, the proponent of the contention voluntarily assumes the risk that its participation in the proceeding can no longer be sanctioned without destructive damage to both the rights of the other parties and the integrity of the adjudicatory process itself.
In this proceeding, as in Summer, supra, admission of the Parkhurst contention at this time would effectively deprive the parties of full discovery (some informal discovery could occur) and the possibility of summary disposition procedures.
See Summer, supra,13 NRC at 889.
t i
~8/
While the January 10, 1986 letter (copy attached) indicates the documents were available for inspection and copying at the offices of William F.
- Little, the Staff subsequently made copies of the documents which were provided to each of the other parties.
I l
, Intervenors' assertion that the Department of Labor Administrative Law Judge's ruling in favor of Ms. Parkhurst, dated April 7, 1986 and provided by Applicant to the Board and parties under a cover letter dated April 28, 1986, constitutes good cause for the late-filing is without merit.
As discussed above, Intervenors knew or should have known in January 1986 of Ms. Parkhurst' allegations.
At that time, Intervenors had sufficient facts to form the basis for a contention.
The choice they made of standing on the sidelines and waiting on the outcome of another proceeding before submitting their contention was at their risk.
The Commission in this proceeding has observed that parties to Commission proceedings must live with the choices they make; and that an untimely filing is not made acceptable by the fact that the party refrained from burdening the adjudicatory process during the months of delay.
CLI-86-08, 23 NRC (April 24,1986) slip op. at 4.
In sum, Intervenors knew or should have known of the Parkhurst allegations in January 1980 and chose not to file a contention at that time.
Commission case law is clear that they made this choice at their risk.
Summer, supra, Braidwood, supra.
The Board should find that there is no good cause for Intervenors' more than four-month delay in submitting the Parkhurst contention, especially in the circumstances of this proceeding where such delay has resulted in the filing of a contention after the hearing has begun.
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, (ii) and (iv)
Availability of Other Means to Protect Intervenors' Interest and Extent To Which Other Parties Will Represent Intervenors' Interest These factors are accorded less weight, under established Commis-sion precedent, than factors (i), (iii) and (v).
Summer, supra,13 NRC at 895.
The Commission has ruled in this proceeding that they weigh in Intervenors' favor.
CLI-86-08, 23 NRC (April 24, 1986) slip op.
at 4.
Accordingly, these factors weigh in favor of admitting the Parkhurst contention.
(iii) Developing A Sound Record At the outset, the Staff notes that while Intervenors refer to
" evidence on the Parkhurst contention" (Motion at 6-7) they indicate only that they will seek to have the Board give collateral estoppel to the findings of the Department of Labor Administrative Law Judge.
There is l
no offer to call Ms. Parkhurst herself as a witness or to provide testimony of any other person showing the nexus and relevance of Pls. Parkhurst's allegations to the currently admitted contention, namely i
l the alleged harassment and intimidation of Comstock's QC inspectors.
l l
Such relevance and nexus is not apparent.
Ms. Parkhurst never worked for Comstock as a QC inspector, rather she was a clerk / typist employed by Comstock (but not in its QC Department) who was loaned to Sargent &
- Lundy, fis. Parkhurst's safety concerns related exclusively to Sargent &
Lundy's mylar room, not to any actions by Ccmstock's QC inspectors.
The alleged discrimination against Ms. Parkhurst is claimed to have been performed by Comstoqk's Project Manager and Project Engineer, neither of whom are alleged to be part of Comstock's OC department.
, In sum, Intervenors have failed to make a persuasive showing (1) that they have any evidence to offer on the Parkhurst contention (other than to seek collateral estoppel which is not available as discussed below) or (2) how this proposed contention has any relevance to harassment or intimidation of Comstock QC inspectors.
This factor weighs against admission of the proposed Parkhurst contention.
(v)
Broadening and Delay Of The Proceeding Intervonors assert that admission of the Parkhurst contention would not significantly broaden or delay the hearings on the existing QC Inspector Ilarassment contention.
In support of this assertion,
Intervenors state that under the legal doctrines of collateral estoppel and res judicata, the findings of the Administrative Law Judge can simply be admitted into the record in this case. Motion at 6.
It is true that in past FRC proceedings, the doctrine of collateral estoppel has been applied to administrative proceedings, such as the labor department proceeding.
Alabama Power Co. (Joseph M.
Farley Nuclear Plant, Units 1 and 2) ALAB-182, 7 AEC 210, 212 (1974); Texas Utilities Generating Company et al (Comanche Peak Steam Electric Station, Units 1 and 2) LBP-83-34, 18 NRC 3G (1983).
Collateral estoppel applies if the l
following four criteria are met: (1) the issue for which preclusion is sought is the same as was involved in the prior action; (2) the issue was actually litigated, (3) the issue was determined by a valid final judgment; and (4) the determination of the issue was essential to the prior judgment.
Id.
In this proceeding, criteria -3 clearly is not met; the determination of the Department of Labor was by the Administrative Law
. Judge, and the Staff understands that the determination is being appealed i
to the Secretary of Labor.
It is the Secretary's decision which will be the final judgment.
Intervenors assert that in the event the Parkhurst allegations are relitigated, the time required for such relitigation would be quite limited.
Motion at 9.
The Staff disagrees. Litigation of this issue would require, at a minimum testimony from Ms. Parkhurst, one witness from Sargent a Lundy and one witness from Comstock, with a high likelihood of additional witnesses being called.
In the Staff's view, admitting the Parkhurst contention would clearly broaden the issues since Ms. Parkhurst's allegations have no apparent connection to the existing QC inspector harassment issue and would cause delay in completing the proceeding while the issue is htigated.
This factor weighs against admitting the Parkhurst contention.
Balancing The Five Factors On balancing the five factors required to be considered under 4
10 C.F.R.
I 2.714(a)(1), the Staff concludes that the weight of the factors favors denial of the proposed Parkhurst contention.
With regard to the three controlling factors, the first, the third and the fifth, all weigh against admission of the proposed Parkhurst contention.
The proposed contention is more than four months late without good cause; the Intervenors have not made a persuasive showing that admission of the contention will help develop a sound record on the existing issue of harassment of Comstock QC inspectors or that they will offer any meaningful direct evidence on Ms. Parkhurst allegations; and finally, 4
. admission of the proposed late-filed contention will broaden the proceeding and delay its completion.
The proposed Parkhurst contention should be rejected as untimely-filed. U B.
The IIunter Contention Need Not Be Admitted, Rather The Board Should Rule That His Alleged Retaliatory Termination Is Within The Scope Of Intervenors' Existing QC Inspector Harassment Contention Intervenors seek to raise as a contention an allegation that Mr. R.D.
Hunter, a former Comstock QC inspector, was terminated in retaliation because he had alleged inadequacies in Comstock's QA/QC program to the NRC and in his deposition in this case on January 28 and February 25, 1986, and not on Applicant's asserted ground that he had allegedly inspected a weld or welds that hed been painted prior to inspection.
Motion at 2-3.
In the alternative, Intervenors move the board to rule that his alleged retaliatory termination is within the scope of Intervenors' existing QC Inspector liarassment contention, which identified Mr. Hunter by name. Motion at 3.
The Staff believes that any acts of retaliatory termination of Comstock QC inspectors named in the existing contention would be within the scope of the existing contention.
This view appears to be consistent with the view of the Board Chairman during a telephone conference call on May 15,1986, when the question came up during a deposition.
There
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The Parkhurst contention would meet the requirements of 10 C.F.R. 5 2.714(b) that the basis for the contention be set forth with reasonable specificity as to the alleged discriminatory actions taken against Ms. Parkhurst.
However, if Intervenors seeks to litigate Ms. Parkhurst's allegations concerning, Sargent and Lundy's document control (see Motion at 7, n.*) such a contention lacks the necessary specificity.
. the Board Chairman indicated it would be appropriate to explore the circumstances around Mr. Hunter's termination. Deposition dated 5/15/86, Tr. 13-14.
The Staff supports Intervenors' motion that the Board rule that Mr. Hunter's termination is within the scope of the admitted contention.
However, the Staff would not support admission of the proposed liunter contention.
Intervenors seeks to make as part of the proposed contention Mr. Hunter's letter to Quality First.
In that letter, f.!r. Hunter raises matters in addition to his termination.
For example, he raises questions regarding Training / Instruction at the Braidwood site,
and favoritism / buddy-buddy situations.
No specificity is provided with regard to these matters and the contention would not meet the require-ments of 10 C.F.R 5 2.714(b) or put the other parties sufficiently on notice "... so that they will know at least generally what they will have to defend against or oppose" as stated in Peach Bottom, supra, 8 AEC at 20.
Further, the proposed Hunter contention, with his letter to Quality First incorporated, falls to satisfy the requirements for late-filed contentions set forth in 10 C.F.R.
I 2.714.
Intervenors have not provided any good cause for the late-filing of these issues.
Mr. Hunter has been deposed twice (in January and February 1986) and Intervenors appear to have been in contact with him since September 1985 (Hunter Deposition Tr.10-12).
No reason has been provided why these issues l
l could not be received earlier.
Further, as to factor 111, developing a sound record, Intervenors have made no showing as to what direct testimony or evidence they would offer on these issues.
- Mnally, i
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, admission of such undefined issues likely would lead to significant broadening of the issues and delay in completion of the hearing. In sum, on balancing of the five factors, the Staff concludes that the weight of the factors is against admission of the Hunter contention which incorporates his letter to Quality First.
III.
CONCLUSION For the reasons discussed below, the Staff opposes admission of the proposed Parkhurst contention for failure of the five factors of 10 C.F.R.
I 2.714(a) to weigh in favor of admission of the contention and does not oppose the Board ruling that Mr. Ilunter's alleged retaliatory termination is within the scope of Intervenors' existing QA Inspector Harassment contention.
The Staff would oppose admission of the proposed Hunter contention if it incorporates Mr. Hunter's letter to Quality First.
Respect' submitted,
[
/.[' kf -
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Mtuart A. Tre y Assistant Chief IIearing Counsel Dated at Bethesda, Maryland this 6th day of June,1986
i e
/panewo, UNITED STATES
[\\
i NUCLEAR REGULATORY COMMISSION
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WASHINGTON, D. C. 20555 c.
a g-j January 10, 1986 Michael I. Miller, Esq.
Isham, Lincoln & Beale Three First National Plaza Chicago, IL 60602 Robert Guild, Esq.
Business and Professional People for the Public Interest 109 N. Dearborn Street Suite 1300 Chicago, IL 60602 In the Matter of Commonwealth Edison Company (Braidwced Station, Units 1 and 2)
Docket Nos. 50-456 and 50-457 PE:
NRC Staff Response To Applicants First Request For Production of Documents To The NRC Staff
Dear Messrs. Miller and Guild:
On December 12, 1985, Applicant filed with the Executive Director of Operations a Reouest for Production of Documents pursuant to 10 C.F.R 6 2.744 In its request, Applicant seeks documents relating to a conten-tion raised by Intervenors that " supervisors employed by Applicants' electrical contractor [L.K. Comstock Co.] allegedly harassed and intimidated their QC inspector and other employees." Letter from Elena Z. Kezelis, Esq. to William Dircks at 1 (December 12,1985).
The Staff has undertaken a search for documents responsive to Appli-cant's request. That search has resulted in the identification of 124 responsive documents. An index of these documents is appended to this letter. Of the 124 documents, the Staff will make available to Applicant and Intervenor for inspection and copying 117 documents in their entirety. Seven documents (118-124) are being withheld in their entirety pursuant to 10 C.F.R. 6 2.790(a)(7). Documents 118-124 all relate to the Staff's ongoing investigation of Allegation No. RIII-85-A-0067. Disclosure of these documents at the present time could interfere with the Staff's investigatory efforts and hamper its regulatory I
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function. Consequently, Documents 118-124 are being withheld from disclo-sure in their entirety at this time pursuant to 10 C.F.R. Q 2.790(a)(7)(1) pending completion of the Staff's investigation of Allegation No.
RIII-85-A.0067. Documents 118-124, however, will be made available to the parties after the investigation of this matter is complete.
In its December 12, 1985 letter, Applicant states that it is "willing to agree that the documents we obtain from the NRC Staff and the information they contain will be treated in accordance with the terms of [the Protective Order entered by the Board on December 6, 1985]." Id. at 2.
Documents 1-117arebeingmadeavailableforinspectionandcopfingby Applicant and Intervenors based on the understanding by all the parties that these documents constitute confidential information within the meaning of the Dececmber 6, 1985 Protective Order.
The documents will be available for inspection and copying at the offices of William F. Little, Eraidwood Project Director, 799 Roosevelt Road, Glen Ellyn, Illinois 60137.
Please call Mr. Little at (312) 790-5578 to arrange an aareeable time to inspect and copy the responsive documents.
S cprely,
)%
i G-4 Gregory,an B ry Counsel f NR Staff
Enclosure:
As stated cc w/o encl.:
Service List I
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APPENDIX f
Documents Responsive To Allegation No. RIII-85-A-0005 1.
7 pag'es of Allegation Management System Forms
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March 14, 1985 Memorandum from P.R. Pelke to C.H. Weil 3.
January 16, 1985 Memorandum from C.H. Weil to C.E. Norelius d.
Allecation Data Form (ATS-RIII-85-A-005) (January 14,1985) 5.
Same as 3, supra 6
Same as 4, supra Documents Responsive To Allegation No. RIII-85-A-0032 7.
.4 pages of Allegation Panagement System Forms 8..
July 15, 1985 Pemorandum from C.H. Weil to C.E. Norelius 9.
July 12, 1985 Letter from D.P. New to W.G. Cheney
- 10. July 12, 1985 Letter from D.P. New to 8.J. Parkhurst
- 11. June 18, 19EE Letter frcm 8.J. Parkhurst to Department of Labor
- 12. Same as 9, supra
- 13. Same as 10, supra 14 Same as ll, supra
- 15. June 18, 1985 Memorandum from C.H. Weil to C.E. Norelius
- 16. Same as 15, supra
- 17. June 18, 1985 Letter from C.E. Weil to 8.J. Parkhurst
- 18. April 15,1985 Memorandum from C.H. Weil to C.E. Norelius
- 19. April 9,1985 Letter from R. Wzyguski, D0L Compliance Officer, to 8.J. Parkhurst
- 20. April 1,1985 Letter from F. Rolan, LKC Project Manager, to R.
Wyzguski
- 21. Sargent & Lundy Employee Performance Note fe: 8.J.
Parkhurst (February 1, 1985) b
i 4
1 l.
PP. Same as 19, supra P3. Same as 20, supra
- 24. Same as 21, supra
- 25. March 6, 1985 Memorandum from C.H. Weil to C.E. Norelius
- 26. March 4, 1985 Letter from D.P. New to T. Trumble
- 27. Redacted version of Document 31, infra
- 28. Redacted version of Document 35, infra
- 29. Same as 26, supra
- 30. March 4, 1985 Letter from D.P. New to B.J. Parkhurst
- 31. February 17, 1985 Letter from B.J. Parkhurst to Department of Labor
- 32. February 22,19E5 Letter from C.H. Weil to B. Parkhurst
- 33. February 22, 1985 Memorandum from C.H. k'eil to C.E. Norelius
- 34. Redacted version of Document 25, supra
- 35. February 17, 1985 Letter frem B.J. Parkhurst to C.H. Weil 36.
February P0, 1985 Letter from C.H. Weil to B.J. Parkhurst
- 37. February 20, 1985 Memorandum from C.H. Weil to C.E. Norelius
- 38. Allegation Data Form (ATS-PIII-85-A-0032) (February 15,1985)
- 39. San:e as 37, supra
- 40. Same as 38, supra
- 41. Alleger Identification Sheet t
Documents Responsive To Allegation No. RIII-85-A-0062
- 42. March 13, 1985 Memorandum to W. Forney from L. McGregor re:
Allegations with regard to qualification certification of L.K.
Comstock QC Personnel (5 pages)
- 43. March 19, 1985 Memorandum to C. Norelius from C.Weil re:
Allegation No. Rl!!-85-A-0062 (7 pages) 44 March 13, 1985 Allegation Data Input Form (1 page)
[
.. 45. November 1, 1985 Allegation Management 3ystem Forms /
Allegation No. RIII-85-A n062 (8 pages)
Documents Responsive To Allegation No. RIII-85-A-0068
- 46. March 29, 1985 Memorandum to R. Spessard from C. Weil re:
Allegation No. pIII-85-A-0068 (4 pages) 47 March 20, 1985 Allegation Data Input Fom (1 page)
- 48. November 1,1985 Allegation Management System Forms /
Allegetion No. RIII-85-A-0068 (8 pages)
- 49. April 4, 1985 Letters to Alleger from C. Weil (10 pages)
- 50. Undated Alleger Identification Sheet (1 page)
- 51. Undated, unsigned typewritten mer:orandum (2 pages)
- 52. November 8, 1985 Letter to Alleger from C. Weil (1 page)
- 53. November 8, 1995 Letter to Alleger from C. Weil (1 page)
Documents Responsive To Allegation No. RIII-85-A-0072
- 54. March 29, 1985 Handwritten notes of telephone conference taken by F. Lerch (1 page)
- 55. March 29, 1985 Femorandum to R. Warnick from L.McGregor re:
telephone conference ctil with Applicant (4 pages)
- 56. March 29,1985 AllegationDataInputForm(1page)
- 57. April 1,1985 Pl!!-Daily Report (1 page) 58.
April 4, 1985 RIII-Daily report (1 page)
- 59. April 5, 1985 Memorandum from W.J. Dircks to Commission re: " Daily Staff Notes - April 4, 1985" (1 page) 60 Neverter 1, 1985 Allegation Management Computer Form / Allegation ho. Rll!-85-A-0072 (8 pages)
- 61. November 7,1985 Memorandum to E. Pawlick from C. Weil re:
Allegation No. RIII-85-A-0072 (1 page)
- 62. March 29, 1985 Memorandum to R. Warnick from L. McGregtr re:
Quality control allegations from L.K. Comstock inspectors (8 pages) t
- 63. April 5, 1985 Memorandum to C. Norelius from C. Weil re: LKC quality assuranceprogramatBraidwood(18pages) i
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- 64. April 8, 19P5 Letters to Allegers from C. Weil (17)
- 65. April 10, 1985 Facsimile of Memorandum to C. Weil from L. McGregor (3 pa.ges) f6. April 17, 1985 Memorandum to C. Weil from P. Pelke re: Braidwcod Allegation Review Board meeting on April 12,1985(2pages)
- 67. November 8, 1985 Letter to Alleger from C. Weil (17 pages)
- 68. November 4, 1985 Inspection Report No. 50-456/85021; 50-457/85022 Documents Responsive To Alleoation No. RIII-85-A-0119
- 69. August 27, 1985 Memorandum from C.H. Weil to C.E. Norelius
- 70. Allegation Data Input Form (August 20,1984)
- 71. August 23, 1984 Memorandum from W.L. Forney to C.H. Weil
- 72. August 17, 1984 Letter from J.D. Seeders to I. DeWald 73.
Same as 70, supra 74 Same as 71, supra 75.
Same as 72, supra
- 76. Alleger Identity Sheet 77.
6 pages of Allegation 1 racking System Forms
- 76. January 25, 1085 Memorardum from C.T. Pawlik to C.li. Weil
- 79. Jar.ua ry 71. 1995 Letter from C.H. Well to J.D. Seeders 80 tugust 29, 1984 Letter from C.H. Well to J.D. Seeders
- 81. December 3J,1984 tetter frcm R. Warnick to C. Reed transmitting inspection Report No. 50-456!84-34; 50-457/64-32 000UMEN 3 FISP0hSIVE TO At. LEGATION No. RfII-A-0123 E2.
February 14, 1985 Memorandum to C.E. Norelius from C.H. Weil 83.
February 2ti,1985 Memorandum to C.E. Norelius from C.H. Weil
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fa, Canuary 23, 1985 Letter to C.H. Weil from 5. Goldstein (Dept.
of Labor) transmitting Order of Dismissal of DOL Proceeding
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- 85. July 26, 1985 NRC Memorandum from C.H. Weil to File
- 86. January 29, 1985 NRC Memorandum from C.H. Weil to C.E. Norelius
- 87. Undat'ed Copy of Report of DOL Investigator R. Wyzguski
- 88. Septer:bar 5,1985 Letter from Worley O. Puckett to DOL
- 89. September 13, 1985 Memorandum from C.H. Weil to C.E. Norelius
- 90. September 9 1985 Letter from DOL to C.H. Weil transmitting 84 exhibits from Dept. of I aber "Whistleblower file"
- 91. Anuary 17, 1985 Memorancum from C.H. Weil to C.E. Norelius transmitttng Order of Dismissal of DOL Proceeding
- 92. January 8,1985 Memorandum from C.H. Weil to J. A. Hind, C.E.
Norelius, and J.F. Sheeter
- 93. November 8, 1984 Memorandum from C.H. Weil to C.E. Norelius
- 94. November 6, 1984 Letter from D.P. New (DOL) to T. Trumble (Comstock)
- 95. Undated pleading from G.O. Smith, Esq. and 15 exhibits to be offered in DOL Proceeding
- 96. November 7, 1984 pleading from L. Hornberger, Eso, and 41 exhibits tn be offered in DOL Proceeding
- 97. Copy of Transcript of December IP, 1984 D0L Proceeding
- 98. September 26, 1984 Letter from C.H. Weil to W.O. Puckett
- 99. September 17, 1984 Memorandum from C.H. Weil to C.E. Norelius 100. September 13, 1984 Letter from D.P. New (00L) to W.0. Puckett 101. Septenber 13, 1984 Letter from D.P. New (DOL) to T. Trumble 102. September 13, 1984 Letter ' rom D.P. New (DOL) to W.O. Puckett 103. September 13, 1984 Letter from D.P. New (DOL) to T. Trumble 104. September 6, 1984 Memorandum from C.H. Weil to C.E. Norelius and R.L. Spessard 105. August 28, 1984 Menorandum from L. McGregor to C.H. Weil 106. August 28, 1984 Allegation Data Input forni (RIII-84-0213)
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t o:. 107. September 6, 1984 Letter from C.H. Weil to Worley O. Puckett 108. August 28, 1984 Handwritten memo from L. McGregor to R. Warnick 109. Same'as 106, supra 110. Same as 105, supra 111. Alleger Identification Sheet 112. September 11, 1984 Transcript of Allegation Interview 113. October 26,1984 Memorandum from C.H. Weil to R.L. Spessard, 114. Undated Memorandum of Memorandum to File from C.H. Weil (10 enclosures) 115. December 4, 1985 Memorardum from C.H. Weil to W.O. Puckett 116. Allegation Management System Form (December 4, 1985) re:'A'llegation RIII-84-A-0123 117. Inspection Report No. 50-456/85009; 50-457/85009 Withheld Documents Responsive To Allecation No. RIII-85-A-0067 118. November 8, 1985 Letter to Alleger from C. Weil (1 page) 119. March 29, 1985 Memorandum to R. Spessard from C. Weil re: Allegation No. RIII-85-A-0067 (5 pages) 120. April 4, 1985 Letter to Alleger from C. Weil (6 pages) 121. Undated end unsigned typewritten memorandum (3 pages) 122. Undated A11eger Identification Sheet (1 page) 123. November 1, 1985 Allegation Management System Form / Allegation No. RIII-85-0067 (8 pages) 124. March 20, 1985 Allegation Data Input Form (1 page) e 0
e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CCMMONUEALTH EDISON COMPANY
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Docket Nos. 50-456
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50-457 (Braidwood Station Units 1 and 2
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CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF RESPONSE TO MOTION TO ADMIT ADDITIONAL LATE-FILED HARASSMENT AND INTIMIDATION CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of June,1986:
Herbert Grossman, Esq., Chairman
- Commonwealth Edison Company Administrative Judge ATTN:
Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuclear Regulatory Commission P.O. Box 767 Washington, DC 20555 Chicago, IL 60690 Dr. A. Dixon Callihan Region III Administrative Judge U.S. Nuclear Regulatory Commission 102 Oak Lane Office of Inspection & Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Glen Ellyn, IL 60137 Dr. Richard F. Colo Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 1100 U.S. Nuclear Regulatory Commission 1150 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Michael I. Miller, Esq.
Elena Z. Kere!!s, Esq.
Isham, Lincoln t Daale Three First National Plaza Suite $200 Chicago, IL 60002
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. Douglass W. Cassel, Jr., Esq.
Atomic Safety and Licensing Board Timothy Wright, Esq.
Panel
- Robert Guild, Esq.
U.S. Nuclear Regulatory Commission 109 North Dearborn Street Washington, DC 20555 Suite 1300 Chicago, IL 60602 Atomic Safety and Licensing Appeal Erie Jones, Director Board Panel
- Illinois Emergency Services U.S. Nuclear Regulatory Commission and Disaster Agency Washington, DC 20555 110 East Adams Springfield, IL 62705 Docketing and Service Section*
Office of the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Route 1, Box 182 Washington, DC 20555 f.fanteno, IL 60950 Ms. Bridget Little Rorem H. Joseph Flynn, Esq.
117 North Linden Street Associate General Counsel Essex, IL 60935 FEMA 500 C Street, S.W., Suite 480 Ucorge L. Edgar, Esq.
Washington, DC 20472 Newman & Holtzinger, P.C.
1015 L Street, N.W.
Suite 1000 Washington, DC 20030 kOE l
D(tuart A. Treby
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Assistant Chief Hearird Counsel
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