ML20212M714
| ML20212M714 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 08/22/1986 |
| From: | Berry G, Chan E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-478 OL, NUDOCS 8608270087 | |
| Download: ML20212M714 (7) | |
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08/22h)hcU UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
'86 ale 26 P3 :49 BEFORE THE ATOMIC SAFETY AND LICENSING BQ4 BRANCH In the Matter of
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COMMONWEALTH EDISON COMPANY
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Docket Nos. 50-456 50-457 O {
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(Braidwood Station, Units 1 and 2)
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NRC STAFF MOTION FOR AN ORDER IN LIMINE INTRODUCTION The Staff moves for an Order in limine to bar all parties, their counsel and their witnesses, from submitting evidence regarding the Staff's internal administration of its duties.
The need for the Staff to file this motion was demonstrated by Intervenors Rorem, et al.'s attempt on August 13, 1986 to introduce Intervenor Exhibit 90 into evidence. The Staff (and Applicant) opposed the admission of the exhibit and argued that it was related to a generalized attack on the way in which the Staff conducts its affairs and was not relevant to the issues in contention.
Tr.10663-667. II The exhibit purported to describe the dissatisfaction of an NRC employee and a disagreement with his supervisor regarding an internal personnel decision and similar matters wholly collateral to the contention in this proceeding.
The Staff has reason to suspect that Intervenors intend to proffer additional documents or seek to elicit l
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The Staff also noted the problem of authentication of the document through the Staff witnesses who were testifying at the time the document was offered into evidence.
Tr. 10668-69.
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testimony of similar tone and effect which also would not be relevant to the issues in' controversy. 2,/
DISCUSSION The Staff fully supports the development of a complete record on the issue in contention in this proceeding.
That issue relates to whether Applicant's electrical contractor, Comstock (specifically its QA/QC management), conducted "[s]ystematic and widespread harassment, intimi-dation, retaliation and other discrimination against Comstock QC inspectors who express safety and quality concerns and whether such misconduct, if it occurred discourages the identi-fication and correction of deficiencies in safety related components and systems at the Braidwood Station."
The contention sets out allegations made by Comstock QC personnel which, in Intervenors' view, support their assertion.
The Staff does not question here the Board's need to receive all probative evidence relevant to the harassment and intimidation allegations of Comstock QC inspectors.
The Staff is proffering witnesses whese
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inspections provide the basis for the Staff position in this case.
The i
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In his opening statement, counsel for Intervenors indicated he will seek to elicit testimony and offer evidence on the Staff's internal administration of its duties.
Specifically, he identified the following as areas he seeks to explore:
The determination by Region III management not to fellow Messrs. Schulz and McGregor's recommendation in their first memorandum dated March 29, 1985 (contained in Intervenors' Group Exhibit 42) for Region III head-quarters 1) to immediately send inspectors, and 2) to issue an immediate stop work order for electrical work (Tr. 7937-39);
Messrs. Schulz and McGregor's changes from their position as resident ir.spectors at the Braidwood Station (Tr. 7939-40).
witnesses being proffered by the Staff are those Staff members who conducted the inspecilons following up on the allegations of harassment
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cnd intimidation received by the Staff.
The validity of the allegations and whether such misconduct, if it
- occurred, discouraged the identification and correction of deficiencies of work in the electrical area are the matters in controversy in the proceeding.
No objection is made by the Staff into inquiry as to the inspection done by the Staff inspectors.
Inquiry is certainly proper into areas such as the methodology of the inspection, the findings of the inspectors, and whether the conclusions reached by the inspectors are reasonably based on their findings.
Such inquiry would be proper so that a record can be made upon which the Board can reach a determination as to the weight to be given to the Staff's evidence.
However, the Staff is concerned that unrestricted questioning of future witnesses, either Staff witnesses or remaining witnesses subpoenaed by Intervenors, could result in litigating internal Staff personnel matters or the adequacy of Region III's Staff work or the appropriateness of the actions Region III managers took in response to the receipt of the allegations.
Such matters are not proper subjects for litigation in this proceeding. As the Appeal Board succinctly stated in Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 4, 56 (1985):
"[I]n an operating license proceeding the applicant's license application is in issue, not the adequacy of the staff's review of the cpplication.
An intervenor... may not proceed on the basis of allegations that the staff has somehow failed in its performance. "
Pacific Gas and Electric Co.
(Diablo Can. n ?Iuclear Power
- Plant, Units 1 and 2),
ALAB-728 17 NRC
This follows logice.'ly f:om the fact that it is the applicant that ultimately bears the burden of'
proving its entitlement to the pr.vilege of an operating license.
See Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101, 103 (1976).
Moreover, the NRC's adjudi-catory boards are not empowered to direct the staff in the conduct of its inspection and investigatory duties.
Carolina Power and Light Co. (Shearon Harris Nuclear Power Pleti Units 1, 2, 3, and 4),
CLI-80-12, 11 NRC
- Sis, 516-17 (1980).
Absent such authority, it would make little sense to litigate the adequacy of the staff's independent performance.
Inquiry into such matters would not assist the Board reach a deter-mination as to the weight to give the Staff's evidence.
Rather, it would be litigating how the Staff performed its duties.
The issue before the Board is not whether the Staff should have done things differently such as selecting other inspectors to do the inspections or performing inspec-tions in a different time frame.
Those determinations having been made by Staff managers, the only issue before the Board is what weight to give to the inspections done and testified to by Staff witnesses.
While the Staff acknowledges the need to develop a complete record, it submits the need to preserve the efficiency of the hearing process by not permitting extraneous and nonrelevant evidence is also important.
The Commission's rules direct a Licensing Board to use its powers to assure that the hearing is focused upon the matters in controversy and that the hearing process is conducted as expeditiously as possible,
consistent with the development of an adequate decisional record.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1152 (1984), citing,10 C.F.R. Part 2, Appendix A, i V.
I Given that the issues in controversy are the three alleged instances of harassment and intimidation of Comstock quality control inspectors, the
+ Board reasonably should require the parties and witnesses to pursue those matters and not extraneous matters such as internal Staff personnel matters.
Accordingly, the Staff moves that the Board issue an Order,in limine to bar all parties, their counsel and their witnesses, from submitting evidence regarding the Staff's internal administration of its duties.
Such an order would focus the hearing on the matters in controversy and only exclude extraneous matter dealing with the Staff's internal admini-stration of its duties which is not an appropriate subject for this proceeding.
Litigation of such extraneous matter will have the disadvantage of prolonging the proceeding without advancing the inquiry as to whether the Applicant has sustained its burden of proof in demon-strating that the electrical quality assurance program was not adversely affected by alleged harassment and intimidation of Comstock QC inspectors.
CONCLUSION For the reasons set forth above, the Board should issue an Order in i
limine as described herein.
Respectfully submitted, Elaine I. Chan Counsel for NRC Staff A['
4 L
Gregory] Alan Berry -
l Counsel for NRC Staff l
Dated in Bethesda, Maryland this 22nd day of August,1986 l
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00LKEILD USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W E E P3'M BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE Or metrapy 00CKETING & SEPVICF, BRANCH In the Matter of
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COMMONWEALTH 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 copies of "NRC STAFF MOTION FOR AN ORDER IN LIMINE" in the above-captioned proceeding have been served on the following by deposit in the Unitec: States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of August,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 l
Dr. Richard F. Cole Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 1100 l
U.S. Nuclear Regulatory Commission 1150 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Michael I. Miller, Esq.
l Elena Z. Kezelis, Esq.
Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 su e
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b g Douglass W. Cassel, Jr., Esq.
Atomic Safety and Licensing Board Timothy Wright, Esq.
Panel
- i Robert Guild, Esq.
U.S. Nuclear Regulatory Commission 109 North Dearborn Street Washington, DC 20555 i
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 Manteno, 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 George L. Edgar, Esq.
Washington, DC 20472 Newman & Holtzinger, P.C.
1615 L Street, N.W.
Suite 1000 Washington DC 20036 Mb n
Stuart A. Treby Deputy Assistant Gen al Counsel O