ML20063P407
| ML20063P407 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 10/08/1982 |
| From: | Mark Miller COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8210130373 | |
| Download: ML20063P407 (13) | |
Text
Dated: October 8, 1982 00CKETED USHRC UNITED STATES OF AMERICA ..
NUCLEAR REGULATORY COMMISSION 12 M 12 Pl2:06 BEFORE THE ATOMIC SAFETY AND LICENSING BOAflLDCE OF SEClET/.? /
LUMLTit:3 & Sf.rr, .
Eit! D In The Matter of )
)
)
COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454 OL
) 50-455 OL
)
(Byron Nuclear Power Station, )
Units 1 & 2) )
COMMONWEALTH EDISON COMPANY'S OPPOSITION TO DAARE/ SAFE'S MOTION TO RECONSIDER
SUMMARY
DISPOSITION OF CONTENTION 1 WITH RESPECT TO QUALITY ASSURANCF AND QUALITY CONTROL On September 23, 1982, DAARE/ SAFE filed "DAARE/
SAFE's Motion To Reconsider Summary Disposition of Conten-tion 1 With Respect To Qua?.ity Assurance and Quality Control".
As is explained in detail below, Commonwealth Edison Company
(" Edison") submits that through its motion DAARE/ SAFE is improperly attempting to circumvent the summary disposition process established by the Commission's Rules of Practice.
Absent a showing of good cause for its untimely submittal, many of the matters presented in DAARE/ SAFE's motion were l required to be presented at an earlier stage in this proceeding to receive consideration by this Board. In addition, those presented in the motion which DAARE/ SAFE can legitimately claim arose following the decision of this Board granting summary disposition with respect to Contention 1 are insufficient
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to grant the relief sought. For these reasons, Edison respectfully. requests'that DAARE/ SAFE's motion be denied.
- ARGUMENT
'l . Background On May 9, 1980, DAARE/ SAFE filed its amended conten-tions in this proceeding. DAARE/ SAFE contention 1 alleged that Edison's " record of noncompliance with Nuclear Regula-tory Commission regulations ... demonstrates its inability, unwillingness, or lack of technical qualifications to operate the Byron Station ..." One of the bases for the contention was stated as follows:
The history at all of Applicant's plants (whether now operating) of its failure (and that of its architect-engineers and contractors) to observe on a continuing and adequate basis the applicable quality control and quality assurance criteria and plans adopted pursuant thereto.
On October 23, 1981 DAARE/ SAFE initiated discovery by way.of written interrogatories to Edison requesting certain informa-tion regarding quality assurance. DAARE/ SAFE saw fit not to inquire into any of the factual matters which are presented in support of its present motion for reconsideration.
I Edison initiated discovery requesting that DAARE/ SAFE identify any factual support for its contention. The matters -
raised in DAARE/ SAFE's present motion were not identified in its response to Edison's discovery request.
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3-s By Order dated September 9, 1981, this Board established a schedule for the conduct of prehearing matters.
The schedule required, inter alia, that summary dispositjon motions be filed by June 7, 1982 with responses due June 28, 1982. Edison's Motion for Summary Disposition of Contention 1 was filed in accordance with the Board's schedule. To accommodate DAARE/ SAFE, the Board extended the due date for its response to July 15, 1982.
Edison's Motion for Summary Disposition presented a detailed discussion of Edison's organizational structure as it relates to Edison's efforts to assure that its nuclear facilities are operated safely, and the specific measures which will be implemented at Byron to assure the safe opera-tion of that facility. Included as part of this presenta-tion was the affidavit of Walter Shewski, Edison's Corporate Manager of Quality Assurance. Mr. Shewski's affidavit described in detail the company's Quality Assurance Program as it will apply to the operation of the Byron Station.b[
The affidavit also stated that Edison is responsible for all phases of plant operations, including safety related ac-tivities carried out by Edison contractors. (Shewski Af-fidavit, p. 4; Cf. DAARE/ SAFE Motion, p. 8). Finally, Mr.
1/ It should not be surprising that many of Mr. Shewski's statements are in the future tense. (See DAARE/ SAFE Motion, p. 8). Mr. Shewski's affidavit describes what will be the quality assurance department's role in assuring safe operation of Byron in response to DAARE/
SAFE's contention that Edison does not have the requisite technical qualifications to operate Byron safely. Since Byron is not now operating, Mr. Shewski's statements could obviously not have been stated in the present tense.
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Shewski stated his conclusion, and the basis therefore, that Edison's Quality Assurance Program will be satisfactorily implemented at the Byron Station during operations. (Shewski Affidavit at p. 7).
DAARE/ SAFE responded to Edison's Motion. The response contained a discussion which purported to contro-vert certain material facts as to which Edison asserted there existed no genuine issues to be heard based upon the affidavits of "Gogol", which was not submitted by DAARE/ SAFE, and Michael D. Molander which relied upon various " exhibits" which also were not provided by DAARE/ SAFE. !
In its ruling on Edison's Motion, the Board quite appropriately determined that DAARE/ SAFE's " unsubstantiated general allegation that at all of Applicant's plants Common-wealth Edison Company failed to observe on a continuing and satisfactory basis applicable quality control and quality assurance requirements" was entitled to no weight. (Order, at 6). It also found that in light of the presentations made by Edison and the Staff, which were not refuted by DAARE/ SAFE, DAARE/ SAFE's assertion that Edison was unable, unwilling and unqualified to operate the Byron Station in accordance with NRC regulations was not supportable. (Order, at 7). Consequently, the Board granted Edison's motion.
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We note that in its present motion, DAARE/ SAFE has provided Mr. Gogol's affidavit, the substance of which will be discussed infra, but still has not provided the
" exhibits" relied upon by Mr. Mollander.
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'Apparently dissatisfied with the Board's ruling, DAARE/ SAFE now attempts to marshall a 'further factual pre-sentation. This presentation consists of: (1) three affidavits in which the affiants rely on alleged facts, the existencelof which significantly predates the date on which DAARE/ SAFE's re-sponse to Edison's Motion for Summary Disposition was due; (2) a report on QA/QC at Byron prepared by the NRC Office of Inspection and Enforcement dated June 24, 1982; and (3) an affidavit submitted by Edward Gogol raising matters primarily concerning Edison's LaSalle Station. The I&E report was apparently not made available to DAARE/ SAFE until August, 1982. While the recent date on which the report was received by DAARE/ SAFE could possibly justify its tardiness in relying on that document in opposition to the motion for summary disposition, it is obvious from the face of the document that the information contained therein predates-DAARE/ SAFE's response to the summary disposition motion and is insufficient to warrant a reversal of the grant of the motion for summary disposition. In addition, the matters raised by Mr. Gogol are simply not probative of the question whether the Board's decision to summarily dispose-of Conten-tion 1 should stand.
- 2. Discussion A. Alleged Facts Which Existed Prior to the Board's Summary Disposition Ruling.
The affidavits of Messrs. Gallagher, Stomfrey-
- Stitz and Smith each recites alleged deficiencies in certain l
l
l construction practices at Byron during the period 1977-1980.
Irrespective of the merits of_the claims presented in the affidavits, and the relationship, if any, which these claims might have with respect to the safe operation of Byron, ! it is clear that the allegations contained therein relate to matters which predate the time by which DAARE/ SAFE was required to present evidence which it believed gave rise to contested factual issues related to Contention 1. We do not know, nor is it apparent from DAARE/ SAFE's motion, whether DAARE/ SAFE was aware of these matters at the time it filed its response to Edison's motion. We do know, however, that as a party to this proceeding, DAARE/ SAFE was responsible for gathering evidence it deemed relevant to the presenta-tion of its case, and if it wanted such evidence considered, was responsible for presenting it.to the Board in a timely manner. It is also clear that DAARE/ SAFE failed to meet its responsibility, and seeks to avoid the consequences of this failure through its motion to reconsider.
It is axiomatic under our legal and administrative systems that a party cannot hoard evidence until such time l as it most pleases the party to offer it, nor can a party 3/ Of course, the allegations will not be ignored. We note that the allegations reflect an incomplete understanding of Edison's quality assurance program. This is hardly surprising given the subordinate positions and correspondingly limited knowledge of the affiants concerning the overall quality assurance program. As we explain below, the claims presented will be investigated by both Edison and the NRC Staff.
O-reasonably expect a tribunal to consider untimely submitted evidence without justifying its tardiness. Requests for reconsideration are particularly inapprcpriate vehicles by which to attempt to accomplish such a result. As the Commission has recently reiterated, " motions to reconsider should be associated with requests for re-evaluation of an order in light of an elaboration upon, or refinement of, arguments previously advanced." Central Electric Power Corporation, Inc. (Virgil C. Summer Nuclear Station, Unit No. 1), CLI-81-26, 14 NRC 787 at 790 (1982). Such a motion is "an appropriate means of alterting a tribunal ti facts which that tribunal may have either overlooked or failed to appreciate fully." P.A.S.N.Y. and Niagra Mohawk Power Corporation (James A. Fitzpatrick Nuclear Power Plant, Unit
- 1) , ALAB-169, 6 AEC 1157,1158 (1973).
DAARE/ SAFE's motion, insofar as it relies upon the Affidavits of Messrs. Gallagher, Smith and Stomfrey-Stitz, does not point to facts or factors that the Board purportedly overlooked in its initial summary disposition ruling. Nor is DAARE/ SAFE presenting an argument that this board misunder-stood the meaning or the impact of evidence previously submitted. Instead, DAARE/ SAFE is using its motion as a vehicle for a second complete attempt at convincing this Board that material factua) issues are raised by Contention
- 1. It is urging this Board to ignore its failure to submit evidence in a timely manner, with no justification there-
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y fore,'in effect to allow it a second opportunity to accom-plish what it could not the first time.
Under these circum-stances, DAARE/ SAFE's attempt to use the reconsideration pro-cess is manifestly inappropriate. The affidavits in question should t erefore be stricken.
Quite obviously, a denial by this Board of DAARE/
SAFE's request in no way implies that the matters brought f forward in the affidavits will be ignored. Both Edison and the NRC Staff are responsible for investigating allegations ithich might raise safety concerns, to assure that the public d 71th and safety is protected. The Commission recently made this very point in the course of ruling against permitting eight late-filed contentions to be litigated in a licensing i
proceeding.- Cincinnati Gas and Electric Company (William H.
Zimmer Nuclear Power Station, Unit No. 1), CLI-82-20, 2 CCH Nucl. Reg. Rptr. 130,691 (July 30,1982) . The Commission em-1 phasized that the matters raised by the eight contentions were being dealt with in the course of an ongoing investigation and in the NRC staff's monitoring of the applicant's Quality Confir-
- mation Program. Clearly, the NRC staff is monitoring the Byron program with at least equal diligence, and any serious questions raised by the affidsvits will be given thorough
' scrutiny.
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- 2. Alleged Facts Which Arose Following The Board's Summary Disposition Order Certain information presented by DAARE/ SAFE can, at least arguably, be deemed "new facts" which arose follow-ing the Board's ruling. This information consists of Mr.
Gogol's affidavit pertaining to alleged deficiencies at Edison's LaSalle Station and the NRC Inspection Report which-DAARE/ SAFE asserts was not provided to it until August, ,
1982. Obviously, when information which is relevant to an 1
E earlier order was simply not available for presentation to a tribunal during its deliberations, despite a party's best efforts to marshall all available evidence in support of its case, different standards govern requests for reconsidera-tion. However, because of the interest in ' achieving a final resolution of disputes, a party seeking to reopen decided issues must do more than simply present new information which may have been relevant. "After a decision has been rendered, a dissatisfied litigant who seeks to persuade us -
or any tribunal for that matter - to reopen a record and reconsider 'because some new circumstance has arisen, some new trend has been observed or some new fact discovered,'
has a difficult burden to bear." Duke Power _Co. (Catawba Nuclear Station, Units 1 and 2) , ALAB-359, 4 NRC 619 at 620 (1976). In an earlier decision, the Appeal Board described that burden:
... in administrative proceedings, as in court
- litigation, there is no occasion to remand a cause for further proceedings on the basis of newly discovered evidence' which does not show that a different result would have been reached initially had it been considered."
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Northern Indiana Public Service Co. (Bailley Generating Station, Nuclear -1), ALAB-227, 8 AEC 416 (1974).
"r Neither Mr. Gogol's affidavit nor the I&E Report present new information sufficient to meet this heavy burden.
Mr. Gogol's affidavit contains various broad allegations, which are unsupportable in light of the Commission's decision authorizing operation of the LaSalle Station. Moreover, these allegations relate to a different facility, with different vendors and personnel and, as such, are simply not probative to the issues raised in Contention 1.
The NRC I&E report, while dated in June, 1982, is based un events which took place over a period of many years prior to that time. For example, the turnover of Quality Assurance superintendents at the Byron site, set forth at page 16 of the I&E report, refers to a situation which began in January,1976. Clearly, a properly framed interrogatory or request for documents from DAARE/ SAFE to Edison would
! have elicited that information. DAARE/ SAFE chose not to i
! engage in discovery on that subject. Accordingly, DAARE/ SAFE's assertion that it just became aware of the information contained in the I&E report is disingenuous.
Moreover, the report on its face demonstrates the relative insignificance of the information contained therein in terms of the safe operation of the Byron facility. . The i
letter states that Edison's QA/QC program " appeared good",
and while violations were identified, the. letter also states
the NRC Staff's conclusion that Edison's QA/QC program is adequate. The NRC letter simply shows that the NRC is performing its regulatory function, and falls far short of demonstrating that the motion for summary disposition would have been denied had the information contained therein been considered by the Board.
CONCLUSION WHEREFORE, for all of the foregoing reasons, Commonwealth Edison Company respectfully requests that DAARE/ SAFE's Motion for Reconsideration be denied.
Respectfully submitted, By -
,. ... ;i On'e~of the Attorneys for Commonwealth Edison Company DATED: October 8, 1982 Michael I. Miller Alan P. Bielawski ISHAM, LINCOLN & BEALE Three First National Plaza Chicago, Illinois 60602 l (312) 558-7500 1
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i CERTIFICATE OF SERVICE The undersigned, one of the attorneys for Commonwealth Edison Company, certifies that on this date he filed two copies (plus the original) of the attached pleading with the Secretary of the Nuclear Regulatory Commission and served a copy of the same on each of the persons at the addresses shown on the attached service list in the manner indicated.
October 10, 1982 .
i . 1 Michael I. Miller
N t SERVICE LIST COMMONWEALTH EDISON COMPANY -- Byron Station Docket Nos. 50-454 and 50-455 00 Morton B. Margulies, Esq.
- Atomic Safety and Licensing Administrative Judge and Chairman Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Secretary Attn: Chief, Docketing and 00 Dr. Richard F. Cole Service Section Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- Ms. Betty Johnson (200 Myron M. Cherry, Esq. 1907 Stratford Lane Rockford, Illinois 61107 Cherry & Flynn Three First National Plaza ** Ms. Diane Chavez Suite 3700 SAFE Chicago, Illinois 60602 326 North Avon Street Rockford, Illinois 61103
- Atomic Safety and Licensing Board Panel
- Dr. Bruce von Zellen U.S. Nuclear Regulatory Commission Department of Biological Sciences Washington, D.C. 20555 Northern Illinois University .
DeKalb, Illinois 60115
- Chief Hearing Counsel Office of the Executive
- Joseph Gallo, Esq.
Legal Director Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Suite 840 Washington, D.C. 20555 1120 Connecticut Ave., N.W.
Washington, D.C. 20036 0Dr. A Dixon Callihan Union Carbide Corporation
- Douglass W. Cassel, Jr.
P.O. Box Y Jane Whicher Oak Ridge, Tennessee 37830 BPI Suite 1300 oc Mr. Steven C. Goldberg 109 N. Dearborn i Ms. Mitzi A. Young Chicago, IL 60602 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
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