ML20081G777

Answer Opposing Citizens Assoc for Sound Energy (Case) 831024 Motions to Add New Contention & for Discovery Re Hot Functional Test Results.Case Should Have Begun to Pursue Subj Matter by 830513

ML20081G777
Person / Time
Site:	Comanche Peak
Issue date:	11/03/1983
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20081G781	List: ML20081G777 ML20081G798
References
NUDOCS 8311070181
Download: ML20081G777 (34)

Text

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• November 3, lj83 00CKETED USNRC UNITED STATES OF AMERICA ..

NUCLEAR REGULATORY COMMISSION '83 h _4 Q g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD hff[7fg3 zff{py 3

ERANCn In the Matter of )

) Docket Nos. 50-445 and TEXAS UTILITIES GENERATING ) 50-446 -

COMPANY, et al.

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)

) (Application for (Comanche Peak Steam Electric ) Operating Licenses)

Station, Units 1 and 2) )

l APPLICANTS' ANSWER TO CASE'S MOTIONS (1) TO ADD A NEW CONTENTION AND (2) FOR DISCOVERY Pursuant to 10 C.F.R. $$2.714(c) and 2.730(c), Texas l

Utilities Generating Company, et al. (" Applicants") hereby file I

their answer to the motions of citizens Association for Sound Energy (" CASE"), an intervenor in this proceeding, to add a new contention and for discovery with respect to that contention

( " Motion") . During the October 17-18, 1983 hearing session, the Atomic Safety and Licensing Board (" Board") in the captioned proceeding treated the motions as having been filed on October 24, 1983. For the reasons set forth below, Applicants oppose each motion and urge that they be denied in their entirety.

8311070181 831103 PDR ADDCK 05000445 """

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I. BACKGROUND A. History and Status of Proceeding By Memorandum and Order dated June 27, 19791, the Board admitted CASE as an intervenor in this operating license proceeding. In the ensuing four years extensive discovery has taken place, with Applicants producing over 30,000 pages of documents and responding to 15 sets of interrogatories. Broad issues concerning Applicants' quality assurance / quality control program, the design of pipe supports, emergency planning and Board questions have been litigated. At the time CASE filed its Motion, over 8600 pages of transcript had been generated in six separate hearing sessions. Well over 1000 exhibits had been introduced, with CASE alone introducing over 800 exhibits. Since CASE's motion was filed, another hearing session was held, adding another 300 pages of transcript to the already voluminous record.

The Board has already issued. three decisions disposing of numerous quality assurance issues, emergency planning and Board questions.2 The Board also recently issued a Memorandum establishing the procedures it envisages for completing the hearings on the remaining' issues in the Comanche Peak 1 Texas Utilities Generating Company (Comanche Peak Steam i Electric Station, Units 1 and 2), ISP-79-18,.9 NRC 728 (1979).

2 Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), Proposed Initial Decision (concerning aspects of construction quality control, emergency planning and Board questions) (July 29, 1983);

Memorandum and Order (Emergency Planning, . Specific. Quality Assurance Issues and Board Issues) (September 23, 1983);-

Memorandum and Order (Reconsideration of Order of September-

. 2 3, 1983 (October 25, 1983).

proceeding.3 Thus, this proceeding is approaching completion, with the issues left to be addressed having been identified and procedures set in motion for their resolution.

Now, at this extremely late stage of the proceeding, CASE seeks to raise a new contention. CASE claims that the contention is based on new information, thereby providing good cause for the lateness of the hour in raising the issue. However, as shown below, CASE knew of and could have obtained additional information regarding this matter months ago. Thus, CASE has not shown good cause for waiting until the proceeding is drawing to a close before submitting its Motion. Further, CASE has not demonstrated that any of the factors governing the admission of late-filed contentions weigh in favor of admitting the i

contention. Nor does CASE even address the factors which may be considered by the Board for admitting the contention as an exercise of its discretion. Accordingly, the Board is compelled as a matter of law to deny CASE's Motion in its entirety.

B. CASE's Attacks on Applicants and Staff Throughout its Motion, CASE makes unfounded attacks on the integrity and motivations of Applicants and the NRC Staff. These attacks are wholly baseless and taint virtually all of CASE's arguments on the merits of its Motion. Applicants consider such attacks to serve simply as a smokescreen for the shortcomings of CASE's Motion and to reflect not on the character of Applicants 3 Texas Utilities Generating Companv (Comanche Peak Steam Electric Station, Units 1 and 2), U:LB Memorandum (Procedure concerning Quality Assurance), October 25, 1983.

o or the Staff, but of CASE. Applicants could not and would not normally allow such baseless arguments to remain unchallenged.

However, mindful of the Board's recent a&nonition that the parties not resort to such ad, hominem attacks and scurrilous tactics, we will not dwell on them. Giving the benefit'of the doubt to CASE, it appears that CASE filed the instant motions (which include the ad hominem attacks) before the Board admonished all parties to cease such practices. In these circumstances, we briefly address these matters below. W'e will not repeat this discussion when addressing the merits of CASE's Motion, so as not to distract the Board from the issues at hand.

We ask, however, that in reviewing CASE's Motion, the Board be mindful of this discussion.

3. CASE's efforts to obtain material in rate hearings for use in licensing proceeding CASE argues that it was deterred by Applicants from obtaining information (on which it now bases its new contention) through discovery in rate hearings (Motion at 5-8). The purpose of this claim apparently is to attempt to elevate the significance of the material it raises by arguing that if Applicants object to the production of information it must, per-force, be significant. This claim is obviously unfounded.4 4 Dallas Power & Light, one of the Applicants in this proceeding, objected to the production of certain information sought by CASE.in the rate hearing on the grounds of relevancy to that proceeding. CASE's discovery requests (filed August 12, 1983) in that proceeding were obviously directed at obtaining information for use in this NRC proceeding, including information specifically concerning Hot Functional Testing. In fact, CASE admits as much in its (footnote continuedi l

However, in the course of this argument CASE makes several patently false and malicious statements which must be answered.

The principal assertion made by CASE to which Applicants object is that we attempted to withhold from the NRC the information on which CASE now bases its new contention (Motion at 7-8). CASE argues that Applicants' actions are "perhaps even illegal" ( Motion at 8) . Such assertions are absurd, and are founded on a twisting of the facts on this matter. At no time have Applicants ever attempted to prevent disclosure of any information to the NRC. All information relating to Comanche Peak, including the results of Hot Functional Testing, has always been fully and freely available to the NRC. Applicants' objections to the production to CASE of material in the rate hearings do not at all involve an attempt to withhold information

( footnote continued from previous page)

Motion ( Motion at 6 ) . Applicants firmly believe that it is abusive of the process and patently unfair for CASE to circumvent the procedures established for discovery in NRC proceedings by seeking discovery in another, unrelated proceeding. If CASE believed that additional discovery was warranted in this proceeding regarding any matter, it should have pursued that course, as contemplated by the Commission's Rules of Practice. Instead, CASE never sought to obtain formal discovery, or even further information informally, on this matter in the context of the licensing proceeding. This is not the first time CASE has attempted to circumvent the Commiss ion' s Rules of Practice to obtain discovery without adhering to established procedures. See Texas Utilities Genersting Company (Comanche Peak Steam Electric Station, Units 1 and 2), DD-83-ll, 18 NRC , (August 19, 1983),

slip op at 3-4. In fact, the Director of Inspection and Enforcement informed CASE on March 31, 1983 of the proper

, forum for taking discovery in NRC proceedings. Id., slip op.

at 3, n.5. This instruction apparently did not leave a lasting impression.

l from the NRC.5 Applicants sought to limit CASE's use of  ;

materials produced in discovery in the rate hearing to that proceeding. The reasons therefore were proper (see notes 4 and 5, supra) and obviously well-founded. CASE has had every right and opportunity to seek discovery in this proceeding in accordance with the Rules of Practice. CASE failed to do so.

In sum, CASE's argument that Applicants attempted to prevent disclosure of any information to the NRC is patently ridiculous.

The Board should strike each of CASE's claims on this matter.

2. Applicants' respect for administrative process Another related, patently false claim by CASE is that Applicants have exhibited " total contempt for the Board and these proceedings" ( Motion at 8) . Applicants are frankly appalled that CASE would stoop so low. Applicants have demonstrated throughout this proceeding the utmost respect for the Board and the adminis-trative process. We have scrupulously adhered to the requirements of the Rules of Practice and Commission precedent and policy. We have urged only that they be administered fairly.

CASE confuses the objections by Applicants to the conduct of this proceeding in any manner other than in accordance with procedures established for the fair administration of the hearing process i

5 These objections are fairly summarized in the Examiner's ruling on DP&L's Objections, attached to CASE's Motion.

Therein, the examiner overruled DP&L's objections, in part on the presumption "that CASE is not merely gathering information at this Commission for use at the NRC," ruling that in any event the information requested was relevant to "the general issue of prudency of expenditures at the plant."

The hearing examiner subsequently denied a motion for a protective order that would have limited the use of the materials by CASE only to the rate hearing.

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with something less than full respect for the Board and the process. CASE is flatly wrong. The Board knows full well from Applicants conduct before it that Applicants have afforded due respect and deference to the Board at all stages. The Board should ignore CASE's arguments as meaningless, unfounded rhetoric intended to divert the Board's eyes from the true issues raised in CASE's Motion. We also ask the Board to remind CASE again of the Board's admonitions against personal attacks in its pleadings.

We turn below to the merits of CASE's Mption. As demonstrated in the following discussions, CASE totally fails to sustain its burden to demonstrate that admission of its new contention is warranted at this late stage of the process and, thus, its Motion should be denied.

II. APPLICANTS' ANSWER TO CASE'S MOTION TO ADD A NEW CONTENTION A. CASE's Late-Filed Contention The basic premise of CASE's late-filed contention is that the results of the hot functional tests ("HFT")6 performed at Comanche Peak, Unit 1 from February 24 to May 27, 1983 demonstrate " problems" in construction and/or design which CASE contends warrant admission of a new contention. The only NRC regulation which CASE argues will not be satisfied in view of 6 CASE also refers to other tests (" containment tests, leak rate tests, and other tests," see Motion at 2) as providing further evidence supporting CASE's position that there are

" problems," which in turn CASE argues support admission of its late-filed contention. CASE does not, however, discuss any of those other tests in detail. Accordingly, the results of such other. tests afford no support for CASE's Motion.

i these tests is the general " findings" provision (10 C.F.R. 950.57(a)).7 Further, CASE does not argue that any of the items identified during the tests as necessitating some form of

corrective action cannot or will not be properly addressed by j Applicants and confirmed by the NRC Staff. Rather, CASE disagrees with the manner in which the tests were performed, questions the timing of corrective action and contends that additional tests following such corrective action muet be '

performed. In short, CASE does not establish any basis for 1

concluding that NRC regulations will not be satisfied upon completion of the overall testing program, including corrective action. - -

Further, CASE has completely failed lo demonstrate satisfaction of the five criteria governing admission of late-filed contentions, set forth in 10 C.F.R. $2.714(a). As shown j below, (see Section II.B), a proper assessment and balancing of these factors in accordance with the principles established in applicable NRC case law demonstrates that none of the factors weighs in CASE's favor and that its motion for a new contention f should be denied.

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7 CASE also cites as applicable' (but does not claim they i support its position) the general provisions governing the presentation of evidence in NRC adjudicatory proceedings, 10 i C.F.R. $2.743 ( Motion at 4) . However, these provisions are not even applicable because they apply to litigation of admitted contentions.

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1 B. CASE Has Failed to Demonstrate Satisfaction of the Five Factors _ Governing Admission of New Contentions

1. Factors govgrning late-filed contentions CASE acknowledges that admission of its new contention hinges on a balancing of the five factors set forth in 10 C.F.R.

%2.714(a)(1), by which late-filed petitions to intervene are judged ( Motion at 3-4) . Section 2.714(a)(1) of the Commission's Rules of Practice provides that a Licensing Board is not to entertain an untimely filing 8 under this section unless an affirmative determination that the request should be granted is made, based a balancing of the following factors:

(1) Good cause, if any, for failure to file on time, (2) The availability of other means whereby the -

petitioner's interest will be protected, (3) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record, (4) The extent to Which the petitioner's interest will be represented by existing parties, and (5) The extent to Which the petitioner's participation will broaden the issues or delay the proceeding.

As shown below, CASE has failed to demonstrate that any of those factors weigh in favor of granting its Motion.

8 Although the text of 10 C.F.R. $2 714(a)(1) expressly applies only to late-filed. petitions to intervene or requests for hearing, the commission has stated that these same factors also apply to untimely requests to add or snend contentions after the party seeking to do so has already been admitted to the proceeding. . 43 Fed. Reg. 17798, 17799 (April 26, 1978);

(see, e.g., Florida Power & Light Company (Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-79-21, 10'NRC-183, 190~(1979)).

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2. Good cause for untimeliness (factor one)

A satisfactory demonstration of good cause for the late filing is particularly important in the overall consideration of the five factors set forth in 10 C.F.R. $2.714(a)(1). As the Appeal Board has noted, "[w]hile we recognize that ' good cause,'

or its absence, is but one of five factors to be considered and not necessarily decisive, it nevertheless is one of the dominant criteria."9 In particular, "where no good excuse is tendered for the tardiness, the petitioner's demonstration on the other factors must be particularly strong,"10 a " compelling showing."ll In order to demonstrate that " good cause" exists for the late filing, a party should show that "the issue it now seeks to raise could not have been raised earlier".12 As shown below, CASE has 9 The Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765 (1982).

10 Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977). The converse has also been found to be true, viz. "a strong excuse for lateness will attenuate the showing necessary on the other four factors." Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-523, 9 NRC 58, 63 (1979). However, as discussed below, CASE has failed to demonstrate good cause for its tardiness and, thus, it must make a " compelling showing" with respect to the other four factors.

! 11 South Carolina Electric and Gas Company (Virgil C. Summer  ;

Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 886 (1981), j a f f' d mem . sub nom. Fairfield United Action v. NRC, 679 F.2d 261 (D.C. Cir. 1957).

l 12 Fermi, ALAB-707, 16 NRC at 1765 (emphasis in original).

Although the Fermi decision involved a late-filed petition in a proceeding in which the record had been closed, the objective standard for judging good cause established therein, and the Appeal Board's rationale for imposing the standard, are equally applicable and as important at any (footnote continued) l

failed to demonstrate good cause for its tardiness in seeking to raise this new contention. CASE's failure to do so requires it to have made a " compelling showing" on the other four factors which, as discussed later, it also failed to do.

a. CASE should have begun to pursue diligently the subject matter of its contention no later than May 13, 1983 In attempting to establish good cause for its late filing, CASE argues that it did not have " access" to the information it relied on " prior to this time" and claims that some of the information "did not exist previously" (Motion at 5). In this regard, CASE apparently intends to say that because it received certain portions of the information on which it relies for its motion through discovery in rate proceedings involving one of the Applicants, and the information produced in discovery was not received until September 1983, CASE did not have " access" to it until that time. However, good cause is not demonstrated by a claim of a party that it did not have " access" to the information on which it premises its motion. Such an argument is tantamount to a claim that it did not have knowledge or was not aware of the (footnote continued from previous page) stage of a proceeding. As the Appeal Board noted, to follow a subjective test, such as when the party became " aware" of new information (as CASE argues here) would provide no incentive for a party to remain informed and creates the prospect of collateral factual contests aimed at ascertaining the state of mind of the intervenor. Fermi, ALAB-707, 16 NRC at 1764-65. In addition, to apply such an objective standard i furthers the underlying policy consideration in considering l tardy efforts to raise new contentions, viz., fairness in the timely and orderly conduct of administrative proceedings. I See Nuclear Fuel Services, Inc. (West Valley Reprocessing i Plant), CLI-75-4, 1 NRC 273, 275 (1975).

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information until it was received through discovery in the rate proceeding. As noted previously, fundamental fairness and the need for the timely and orderly conduct of administrative proceedings compels a more stringent demonstration of good cause than a simple claim of not being aware of information until a particular time. To permit otherwise would encourage a party to sit by, waiting for information to come to it, rather than fulfilling its duty and obligation to remain informed of matters that may affect the proceeding.13 In any event, as discussed below, CASE was actually aware of the matters it now seeks to raise no later than May 13, 1983. To wait five months, until October 13, to file its Motion is unconscionable, particularly in view of the late stage of this proceeding, and wholly negates CASE's argument that good cause exists for its tardiness.

CASE became aware of the results of and possible

" problems"14 with the HFT no later than on May 13, 1983, when it received a copy of I&E Report 83-08, dated April 29, 1983 (CASE Exhibit 828; Tr. 7000) . After a discussion of the history and tested systems in the HFT, I&E Report 83-08 states, as follows:

13 See Fermi, ALAB-707, 16 NRC at 1764-65.

14 A fundamental flaw in CASE's arguments is its claim that the results of the HFT did, in fact, indicate serious defects in design or construction. (See discussion infra,Section II.C.) Although Applicants believe the results do not indicate such defects, we assume for the sake of responding to CASE's claims that there were defects. This will facilitate the testing of CASE's theories on their own ground. However, the Board should not assume by our discussion of " problems" or " defects" that Applicants agree with CASE's characterization of the HFT results.

Several problem areas have been encountered. The maior areas are:

a. Erratic behavior of RCP seal flows

b. Thermal expansion

c. Letdown orifice size These items are presently being evaluated by the Licensee.

[I&E Report 83-08, Appendix B at 6 (emphasis added).]

4 Thus, at this point in time CASE knew that " problem areas" (using i

the NRC language) had arisen during HFT and that Applicants were analyzing these areas. Such language certa'aly serves notice to CASE that aspects of the HFT gave rise to " problem areas." CASE should have, therefore, fully pursued this issue from that time forward.

b. CASE failed to pursue diligently the HFT results At a minimum, a party to a proceeding is obligated to have pursued factors on which it relies to try an issue out of time with diligence and to demonstrate that it could not, with due diligence, have known or discovered those facts at an earlier time.15 However, although on notice regarding the results of the HFT, CASE asked only a single question in the May hearings with respect to the I&E Report, concerning the relationship of the

, report to issues CASE already raised in the proceeding (see discussion infra n. 16). The Board also asked-several questions j regarding the meaning of the term " thermal expansion" -in the I&E j

15 -See Consumers Power Company (Midland Plant, Units 1 and 2),

LBP-75-6, 1 NRC 227,.231 (1975). We note that.this decision i concerned a motion'to reopen the record. However,fthe obligation tus -pursue information with due diligence arises during the proceeding and thus exists regardless. of 'the i

context and timing of the case (i.e., whether before or after ,

the record is closed) in which it is applied. '

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Report in the context of CASE's pipe support design allegations.

(Tr. 7001-04.)l6 To Applicants' knowledge, CASE did not pursue this matter further either during the hearing or, as would have been more appropriate, following the hearing. Such a lax effort to obtain information and keep informed hardly constitutes due diligence. Thus, CASE does not demonstrate that there is good cause for its attempt to inject this issue into the proceeding, five months after CASE first became aware of the issue.

c. CASE was not excused from its obligation to pursue the issue diligently Apparently anticipating that it needed to justify its failure to pursue enis matter when it first became aware of

" problem areas" in the HFT, CASE argues that the reason it did not pursue the matter with more diligence was that the testimony of the Staff and the content of I&E Reports concerning the HFT did not indicate what CASE characterizes as "the magnitude of the problems encountered." (Motion at 10-14.) CASE apparently would have the Board believe that CASE was lulled into a false sense of security regarding the results of the HFT and was, therefore, justified in not pursuing the matter at all until just recently.

As discussed below, such a claim is unfounded and belies the fact 16 CASE initially asked a general question regarding the meaning of and the particular " problems" mentioned in the report.

However, the Board asked that it first be established whether any of the witnesses were familiar with the Report. After an answer to that question was elicited, CASE did not follow up on its initial question. (Tr. 7001). Having not received an answer to its question, CASE should have pursued the matter then, or soon thereafter, if it was truly interested in the topic.

that CASE knew of the results of the hFT and had indicated an interest in the subject in May, but simply failed to exercise any diligence in pursuing the matter in this proceeding.

None of CASE's arguments that it was given a false impression of the results of the HFT have merit. CASE first cites to the testimony of Mr. Robert Taylor (the NRC Senior Resident Inspector (" SRI") - Construction, for Comanche Peak) that none of the areas brought to light during the HFT concerned the issues CASE had previously raised in this proceeding (Tr.

7004). CASE argues that the results of the HFT do in fact, relate to its pipe support design and pipe Whip restraint allegations, as well as its general concerns regarding Applicants' OA Program and NRC Staff oversight of construction.

( Motion at 9-10. ) However, there are several rearons why Mr.

Taylor's testimony (with Which Applicants agree) does not support CASE's argument of good cause for the untimely filing of its Motion.

First, Mr. Taylor's testimony concerned (even assuming a broad reading) the relationship of the HFT to previously raised issues. It has no bearing on the matters CASE now seeks to raise regarding the existence or nonexistence of significant " problems" brought to light by the HFT. Thus, the testimony does not support CASE's claim of good cause for the late filing of its new contention on HFT. In addition, as we have already noted, the question CASE needed an answer to in order to support its present argument, viz., what were the nature and significance of the l

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" problems" mentioned in I&E Report 83-08, was not answered (Tr.

7001). Having not received an answer to that question, and having not pursued the matter further until now, CASE can hardly claim to have been mislead by any Staff testimony. Finally, we note that Mr. Taylor testified that he could speak only "very generally" regarding the I&E Report because the inspection was conducted by the Inspector for Operations (Tr. 7001) . Thus, regardless of what Mr. Taylor had said regarding the report, CASE could not have reasonably assumed then that his testimony af forded a basis for any conclusive determination regarding the results of the HFT. In sum, that testimony affords no support for CASE's good cause argument.

CASE also argues that a finding in I&E Report 83-08 of "[n]o violations or deviations" contributed to its supposed mis-conception regarding the HFT results and thus its failure to pursue the HFT matter when it first became aware of it (Motion at 10). However, that finding concerned only the " status of TUGCO manning levels for operations and plant testing activities" (I&E Report 8 3-08, Appendix B at 8 (CASE Exhibit 828) ) . This finding is, thurefore, immaterial to any conclusion regarding the HFT results themselves. Thus, it provides no support for CASE's good cause argument.17 17 CASE also makes an unsupported claim in connection with this discussion that some of the " problems" which arose during the HFT "should undoubtedly have been reported under 10 C.F.R.

$50.55(e)" (Motion at 10). CASE identified no particular aspect of the HFT that it believes should have been reported under 10 C.F.R. 50.55 ( e) . Thus, this simple assertion also affords no support for its good cause argument.

In addition, CASE cites another I&E Report, I&E Report 83-26 (dated June 15, 1983) and a file memorandum (dated September 23, 1983( from David Rohrer (NRC Staff witness regarding emergency planning) concerning a conversation with the Board Chairman as providing further justification for its tardiness (Motion at 11) .

In the first instance, both of these items involve only summary statements concerning the HFT, without any detail regarding test results. There is no indication that they were intended to provide such detail and thus CASE certainly was not mislead in any respect regarding the HFT results. Further, it is illogical to conclude that a document (I&E Report. 83-26) written over a month after CASE was first on notice regarding the HFT (May 13, 1983) had any bearing on CASE's failure to pursue the matter promptly or that a memorandum (the Rohrer memorandum) written four months after CASE was on notice is even relevant to CASE's argument. CASE's claims with respect to these two docunents are not meritorious, therefore, and do not provide a reasoned basis for drawing the conclusions it claims to have reached regarding the HFT results.

CASE next argues that " indications" of " extensive problems"18 with the HFT did not begin to appear until "recently" (Motion at 11). In support of this claim it refers to I&E Report 83-34/83-18, dated September 12, 1983, which discusses an investigation into an allegation ( found to be without merit) with 18 Again, Applicants emphasize that the Board should reject CASE's attempt to overstate the gravity of the HFT (see ,

discussion, infra,Section II.C.). l

respect to the HFT and describes a condition observed during the HFT regarding inadequate ventilation capacity in certain identified areas within containment (I&E Report 83-34/83-18, Appendix at 4-5). CASE does not mention, however, that the I&E Report also refers to Applicants' identification to the NRC pursuant to 10 C.F.R. $50.55(e) of a potentially reportable deficiency with respect to this matter. As noted in the attached af fidavit of Mr. Merritt, that deficiency was first discussed  ;

l with the NRC Senior Resident Inspector-Operations in early April, 1983, shortly after its identification by Applicants. The final report regarding the reportable deficiency was submitted to the NRC in September. (Merritt Affidavit at 6.) With any reasonable diligence, CASE would have been able to obtain that information months prior to issuance of the I&E Report. CASE cannot claim, therefore, that any information on this matter was withheld or hidden from it. Accordingly, CASE's arguments with respect to I&E Report 83-34/83-18 provide no support for CASE's good cause arg ument .

CASE next quotes extensively from I&E Report 83-36 (September 27, 1983) concerning a walkdown by the NRC SRI-Operations of two systems at Comanche Peak (component cooling water and containment spray) ( Motion at 12-14) . CASE does not, however, indicate how the results of this inspection (identifying certain items on those systems which remained to be completed) support its good cause argument. In particular, CASE does not

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indicate how the results even relate to its proposed contention or the HFT. As discussed in the attached affidavit, the conditions observed by the NRC inspector had no relation to the HFT ( Merritt Affidavit at 8) . Thus, I&E Report 83-36 also lends no support to CASE's position regarding good cause.

Finally, we turn to CASE's smmnary of its good cause argument (Motion at 14-15). CASE presents no information in that summary which demonstrates good cause for its untimely filing.

We have already directly addressed points (1) and (3) of CASE's summary, concerning the timing of when CASE had " access" to and received the "new information" on Which it premises its  ;

conclusions. We have shown that the standard to be applied is not the time of " access" or " receipt" or " knowledge," but rather t

when the matter could have been raised, using due diligence expected of all parties in an adjudicatory proceeding. In this regard we demonstrated CASE should have commenced pursuit of this i

issue, with due diligence, no later than May 13, 1983.

With respect to item (2), CASE does not specify which items

, "did not exist previously" or have to do "with items which were l not known until after the last hearing (s)." In any event, as

! demonstrated above, CASE was obligated to. pursue any information regarding HFT beginning no later than May 13, 1983. With respect to item (4), regarding how CASE obtained the information, that

. question simply is irrelevant to the determinative issue, viz.,

when could CASE have pursued this issue earlier.

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Items (5) and (6) are, as discussed above, false charges by CASE that are designed to distract the Board from the fact that CASE knew there were "several problem areas" with the HFT on May 13, 1983, and yet failed to pursue the matter at all in this proceeding until exactly five months later. Further, CASE claims in item (7) that it worked diligently to prepare its motion since its receipt of some of the information. However, this argument addresses only the two week period from the time CASE received that information and the date on which it filed its motion. This assertion is irrelevant to the question of whether CASE had good cause to wait from May until recently to pursue this matter.

In sum, none of the information CASE cites in support of its good cause argument excuses its extreme tardiness in pursuing this matter. Rather, CASE knew and was under a duty to pursue diligently the question of the HFT no later than May 13, 1983.

Instead, CASE failed to pursue at all, let alone pursue diligently, the information in I&E Report 83-08 concerning the HFT, despite the fact that the report gave a clear indication of the HFT results that CASE now seeks to raise as part of its new contention. Having so failed to fulfill this fundamental obligation, CASE should not be heard to claim five months later that it now wishes to pursue the matter and should be permitted to do so.

Having thus failed to demonstrate that there was good cause for its late filing, CASE must make a " compelling showing" on the l remaining four factors to justify admitting a new contention at

this late stage of the proceeding.19 As demonstrated'below, CASE fails to make any showing with respect to two of the actors and its arguments with respect to remaining two factors fall far short of a " compelling showing." In short, none of the remaining four factors weigh in favor of CASE.

3. Other means to protect its, interest-(factor two)

The second factor which CASE must demonstrate to favor the granting of its motion is set forth ,in 10,C.F.R.

$2.714(a)(1)(ii), as follows:

The availability of _ other means whereby the petitioner's interest will be protec'ted.

Although this factor is of relatively minor knportance compared to the other factors in 10 C.F.R. $2.714(a)(1),20 the burden to affirmatively demonstrate that this factor weighs in favor of admitting its late-filed contention rests with CASE.21 CASE fails to sustain this burden, however, when it claims simply that this factor "obviously" weighs in its favor because."these operating license proceedings are the only forum available in this regard" ( Motion at 4) .

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k 19 Summer, ALAB-642, supra, l'3 NRC at 885. i["

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sg 20 Fermi, ALAB-707, supra, ,16 NRC at 1767.

21 Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352-53 (1980).

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a. availability of 10 C.F.R. {2.206 petition Contrary to CASE's assertion, there are other means Whereby CASE's interest may be protected. As the Appeal Board recognized in Fermi, in every case Where a person is unable to pursue an issue in a construction permit or operating license proceeding, but wishes.to raise health, safety or environmental concerns, that person may file a request with the Director of Nuclear Reactor Regulation under 10 C.F.R. 52.206 requesting that a proceeding be instituted to address those concerns.22 The Commission has . clearly explained that this remedy is a meaningful one, and that the invocation of this procedure requires analysis by the Staff of the technical, legal and factual basis for the request and that its disposition will be reviewed sua sponte by the'Cormission.23 Given the extreme lateness of the motion, it would be particularly unfair to require the Applicants to add yet another item to the long list of issues CASE has and wants litigated, particularly when the Board has already set in motion t

the procedure to resolve all remaining issues.24 Accordingly, 22 Fermi, ALAB-707, supra, 16 NRC at 1767.

23 Id., citing Washington Public Power Supply System-(WPPSS suclear Project Nos. 1& 2), CLI-82-29, 16 NRC 1221, 1228-29

1. (1982). CASE is well aware of the availability of 10 C.F.R. 32.206 as a means to raise safety concerns with'the NRC. it 3 sfiled a Section 2.206 petition on January 28, 1983, regarding the availability of pipe support design criteria on site.

That petition was denied by the Director of Inspection and Enforcement in a thoughtful legal analysis. See Texas Utilities Generating Company (Comanche Peak Steam Electric

t -Station, Units 1 & 2), DD-83-ll, 18 NRC. ( August 19,

~1983).

24 See October 25, 1983 Memorandum (Procedure Concerning Quality Assurance) .

the Section 2.206 procedure is an appropriate means to assure consideration of CASE's concerns.

Further, the nature of this issue is such that its litigation in this proceeding is likely to be impractical. The HFT is simply one set of tests to be performed prior to fuel loading. As discussed in the attached affidavit of Mr. John Merritt, resolution of some of the HFT results may not be possible until fuel loading or during power ascension testing.

Merritt Affidavit at 4-5. Thus, for any litigation of these items to be conclusive, it would necessarily continue well past the time a decision would be required. Accordingly, the Board should find that another, and in fact more viable, means for

, considering this proposed contention is available through a

/

petition pursuant to 10 C.F.R. $2.206.

Further, the Board should assume that the Staff will act to protect the interes s of CASE in this regard and may properly be considered to constitute another means for protecting CASE's ,

interest. The Board should note that the Appeal Board has recently emphasized that the Staff is vested with the role of "a protector of a broad public interest."25 In this case the Staff is particularly suited for assuring the satisfactory resolution of the issues raised. The Staff has and will continue to monitor the corrective measures taken by Applicants as a result of the

~

)',. HFT (Merritt Affidavit at 3-4). This is the normal course for 25 See Texas Utilities Generating Company (Comanche Peak Steam

,, Electric Station, Units 1 and 2), ALAB-714, 17 NRC 86, 99 (1983).

preoperati.nal testing at every power reactor in the country.

There is nothing unique to the process at Comanche Peak that suggests that this same process will not be followed.26 In view of the Staff's role in this regard, CASE has another means to protect its interest by working with the Staff informally during this process.

In sum, the Board should find that there are at least two viable means whereby CASE's interests will be protected if this new contention is not admitted. Thus, this factor does not weigh in favor of admitting the late contention and in fact weighs against admission in that the other means for assuring full and complete consideration of this matter are more appropriate than an adjudicatory proceeding.

i 26 This type of issue is not well-suited for resolution in an adjudicatory context, where there is a need to bring the proceeding to a close at a point Which allows the remainder of the licensing process to proceed to a timely conclusion.

Awaiting the completion of all corrective action and results of retests as CASE would have the Board do (Motion at 3, item

8) is, therefore, impractical. In fact, we believe the Staff's role in monitoring and assuring satisfactory completion of the HFT corrective actions could properly be viewed as analogous to their role in regard to the preoperational startup and operational tests Which the Commission delegates to the Staff and which are not appropriate for litigation in an adjudicatory hearing. See e.g., Notice of Proposed Rulemaking, Duergency Planning and Preparedness: Exercises, 46 Fed. Reg. 61134 (December 15, 1981).

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4. Extent to which CASE can be reasonably expected to assist in developing a sound record (factor 3)

For a Board to find that this factor weighs in favor of admitting a late-filed contention, the party seeking admission of the contention must demonstrate affirmatively that it has some special expertise and could make a significant contribution with respect to the pa ticular issues sought to be raised.27 Further, in addressing this factor the party seeking admission "should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and swnmarize

their proposed testimony. "28 As discussed below, the factor clearly weighs against admitting the late-filed contention.

In thG first instance, CASE does not even directly address this factor. This failure alone is sufficient to warrant finding this factor weighs against admitting the contention.29 CASE's failure to address this factor is particularly significant, and provides all the more reason to find the factor weighs against admission, because CASE recognized that this was one of the factors which govern admission of late-filed contentions (Motion at 3), and yet failed to address the factor.

27 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC (September 20, 1983);

Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982);

Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 244 (1980).

28 Shoreham, ALAB-743, supra, slip op. at 22; Grand Gulf, ALAB-704, supra, 16 NRC at 1730 (citations omitted).

29 See Perkins, ALAB-615, supra, 12 NRC at 353-54.  !

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l CASE merely argues that litigation of the " issues" raised in '

its contention is important to the development of a sound record in the proceeding and is "necessary for the Board to reach a reasoned decision." ( Motion at 4) . CASE's argument, however, misses the point of the third factor, viz., whether CASE itself, assuming the issue is admitted, will make a significant contribution in developing a sound record. CASE contends instead that the issue is important and that its litigation in general will contribute to developing a sound record. This argument not only begs the question presented by the third factor (and thus, that factor should not be found to weigh in CASE's favor) but ,

flies in tha face of the regulatory structure established by statute and the Commission's Rules of Practice for considering issues at the operating license stage. Specifically, CASE ignores the fact that at the operating license stage the Board is to consider only those issues which are properly admitted in the first instance (or as to which an appropriate sua sponte finding has been made), and that the record on which the Board will base its decision concerns only those properly raised is' sues.30 CASE, however, incorrectly suggests that the role of this Board is to consider any information which it deems to be significant (whether or not relevant to an issue in controvery), and that the adequacy of the decisional record depends on the inclusion of such information.

30 Section 189(a)(1) of the Atomic Energy Act of 1954 as amended, 42 U.S.C. 2239(a)(1); 10 C.F.R. $ $ 2.760 ( c) (1) and 2.760a.

Further, the proposed contention, and CASE's discussion of the issues it seeks to litigate, are wholly lacking in particularity. In fact, CASE appears to wish to litigate every aspect of the HFT, and seeks to demonstrate that the Board should direct reinspection of "everything." CASE does not identify any prospective witnesses (or, obviously, summarize their testimony).31 Such total failure to satisfy the criteria by i

which this factor is to be evaluted compels a finding that the factor weighs against admission of the contention, and the Board should so find.

5. Extent to which CASE's interest will be represented by existing parties (factor four)

Applicants believe that in the first instance, this factor is not applicable to a situation such as is presented here in which there are no other intervening parties in the proceeding.

At least two Licensing Boards have reached this same conclusion.32 In any event, a party seeking a favorable finding regarding this factor must make a greater showing than simply i

31 See e.g., Proposed contention, items 4, 5 and 8 (Motion at 2); see also Motion at 23-24 (of the 27 tests " CASE is attacEIng only five of them" and will discuss "just one of them as an exenple" (emphasis added)); Motion at 28-32 ("a more detailed summary of the test results is shown below" (emphasis added)).

32 South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), LBP-78-6, 7 NRC 209, 213 (1978);

Florida Power & Light Company (St. Lucie Plants, Units 1 and

2) (Turkey Point, Units 3 and 4), LBP-77-23, 5 NRC 789, 800 (1977); c.f. Consolidated Edison Company of New York (Indian Point, Unit No. 2), LBP-82-1, 15 NRC 37, 41, (1982) (weighs in favor only to extent there would be no proceeding regarding the issue if request denied, although must still demonstrate the Staff will not protect interest) .

stating the already obvious fact that there are no other I intervening parties to the proceeding. Where there is an unjustifiably late request a party seeking late admission must show that the Staff will not adequately protect the party's interests outside the adjudicatory context.33 We also note that this factor is to be accorded lesser weight than the other factors.34 In any event, even assuming the factor is applicable in the first instance, CASE fails to demonstrate that the factor should be found to weigh in favor of admitting the contention.

CASE's only argument regarding this factor is a simple claim that it is " obvious" that its interest will not be protected on this issue because it is the "only party taking an adversarial position in opposition to Applicants' operating license" (Motion at 4) . First, CASE's premise regarding the role of the Staff in these proceedings is false. The Staff is vested with the function of protecting the broad public interest,35 not supporting the application as CASE implies. Further, we have already shown that this issue is particularly well-suited for resolution by the Staff. The Staff has and will continue to monitor corrective actions called for by the HFT. CASE provides no evidence, however, that the Staff's efforts in this area are or will be deficient in any way. Thus, it is appropriate to, and the Board should, assume that CASE's interests will be adequately i

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l 33 Indian Point, LBP-82-1, supra, 15 NRC at 41 (1982). I l

34 Summer, ALAB-642, supra, 13 NRC at 895. '

35 Comanche Peak, ALAB-714, aupra, 17 NRC at 99.

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protected by the Staff.36 Accordingly, if this factor is to be considered at all, the Board should find that it does not weigh in CASE's favor.

6. Extent to which issues will be broadened and proceeding will be delayed (factor five)

The fifth factor to be weighed by the Board when considering CASE's motion is the extent to which admission of the late-filed contention "will broaden the issues or delay the proceeding." 10 C.F.R. $ 2.714 ( a) (1) ( v) . The delay factor is an especially weighty one37, founded on precepts of fairness to Applicants and the Staff that entitle them to assume, particularly at such a late stage of the proceeding, that the issues to be litigated have been established with finality.38 Further, where (as here) the admission of the contention would clearly broaden the issues and delay the proceeding, there must be some showing that "a public benefit will accrue" from litigation of the issue.39 CASE has satisfied none of the above standards. Thus, this factor weighs against admission of the new contention.

36 Indian Point, LBP-82-1, supra, 15 NRC at 41.

37 Puget Sound Power and Light Company, (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552, 10 NRC 1, 5 (1979), citing Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 394-95 (1976).

38 Fermi, ALAB-707, supra, 16 NRC at 1766.

39 Indian Point, LBP-82-1, supra, 15 NRC at 41.

In the first instance, CASE recognizes that this contention presents issues that are not withf- the scope of issues already admitted (CASE Motion at 4).40 Thus, there is no dispute that admitting the contention will broaden the issues in the proceeding. Further, CASE acknowledges that additional hearings will be necessitated by admission of this contention ( Motion at 4). Given the Board's already stated intent to conduct additional hearings regarding several issues,41 and the fact that it intends not to await the conclusion of the investigations by the office of Investigations to conduct the hearings,42 it is apparent that hearings on this proposed new contention would likely delay the proceeding.43 Given the attendant need for extensive pre-trial preparation on these broad issues (including possible discovery and summary dispositien motions), as well as extensive hearings, proposed findings and Board decision, l

40 CASE also asserts (Motion at 4) that portions of its proposed contention could "probably" be litigated in the context of contention 5, the broad quality assurance contention. This assertion is not talevant, however, to the determination the Board must make. Jhe raising of a wholly new issue at this late date, whether by a new contention or by expansion of an existing contention, is governed by the same criteria. 43 Fed, Reg. 17798, 17799 (April 26, 1978). Thus, CASE must demonstrate that admission of this issue is proper regardless of the context in which it would be considered.

41 See Comanche Peak, ASLB Memorandum (October 25, 1983), supra.

42 Id. at 1.

43 The Board should note that the test is whether the proceeding will be delayed, not whether fuel load or licensing might be affected. The language of the regulation explicitly refers to " proceeding" in this regard. See Fermi, ALAB-707, supra, 16 NRC at 1766.

i admission of this new contention obviously would substantially delay the proceeding.44 Thus this factor weighs against granting CASE's motion, and the Board should so find.45 C. CASE's Offer of Proof CASE argues throughout its Motion that the results of the HFT are "significant," and constitute " major problem areas." In support of this assertion, CASE includes with its Motion an "Of fer of Proof" ( Motion at 15-50) . We note that there is no provision in the NRC Rules of Practice for offers of proof in this context, and in fact, the significance of the issue sought to be raised is not a factor to be considered in determining whether to admit a late-filed contention (see 10 C.F.R. 52.714(a)(1)). Nonetheless, Applicants believe we must address this part of CASE's Motion in order to assure that the Board has a full understanding of the purpose of the HFT and to correct certain misrepresentations made in the Motion. Accordingly, Applicants attach the affidavit of Mr. John T. Merritt, Jr., the Assistant Project Manager for Comanche Peak, for these purposes.

44 Although the Board has not yet set any particular dates for these hearings, the procedure for consideration of these issues has already been set in motion- The first stage involves the receipt and analysis by the parties of certain allegations of specific deficiencies CASE claims to have received. Following receipt and analysis of this information the Board plans to commence hearings, as necessary, on these issues and to consider other matters in further hearings.

October 25, 1983 Memorandum.

45 Fermi, ALAB-707, supra, 16 NRC at 1765-66; Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 511, 514 (1982).

Mr. Merritt's affidavit describes the HFT, its results, and the corrective action taken in response to those results, and responds to certain assertions made by CASE in its Motion.

As discussed in Mr. Merritt's affidavit, except for one condition observed during HFT, all of the test results were of the type expected to be identified during HFT, and necessary corrective actions are being routinely tracked and dispositioned.

(Merritt Affidavit at 4-6.) These results do not present a significant safety issue. The only test result which was significant (inadequate ventilation) has been documented as a reportable matter under 10 C.F.R. $50.55(e) and evaluated, and corrective action has already been completed. (Merritt Affidavit at 6.)

Further, none of the specific allegations made by CASE with respect to the HFT are correct. Although we will not address these items in detail in this Answer, they are discussed in Mr.

Merritt's affidavit. Accordingly, we ask the Board to refer to the affidavit, as follows:

(1) systems not complete during HFT (Motion at 1, 12-14, 34); see Merritt Af fidavit at 7.

(2) supports and restraints " missing" during HFT ( Motion at 26-33); see Merritt Affidavit at 7.

(3) HFT did not simulate accident conditions (Motion at 2 );

see Merritt Affidavit at 2.

(4) no retests are planned or retests are improperly scheduled for low power or power ascension testing

( Motion at 2); see Merritt Affidavit at 4-5.

(5) HFT not planned for Unit 2 (Motion at 3); see Merritt Affidavit at 9.

(6) system turnover occurred prior to completion of pipe support design verification (Motion at 19-21); see e Merritt Af fidavit at 8.

To the extent CASE may allude to other deficiencies in the HFT results, we believe those are, on their face, without merit, and in any event for purposes of the assessment the Board need make here, it is obvious that the issues CASE seeks to raise are not significant.

III. APPLICANTS' ANSWER TO CASE'S MOTION FOR DISCOVERY 46 CASE moves that the Board afford CASE the opportunity to conduct discovery for 90 days with respect to its proposed contention ( Motion at 54-55 ; items (3) and (5)). We presume CASE l

intends to ask for discovery if its motion for a new contention is granted, and not prior to a Board decision on that motion. In either case, Applicants oppose CASE's motion for discovery. CASE has already conducted extensive discovery in the rate hearings with respect to HFT, receiving thousands of pages of documents.

46 CASE also moves that the Board accept its instant-pleading as at least a partial response to a motion for summary disposition (assuming its contention is admitted) and to

" recognize" that Applicants have not kept the Board informed~

i of "significant matters" ( Motion at 5 4-5 5 ) . With respect to the first motion, it is untimely because no motion for summary disposition has been filed. As for the second motion, we have already addressed CASE's scurrilous _ attacks against Applicants (see discussion at supra,Section I.B.)

and will not respond further to such obviously false l accusations.

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. Having circumvented the NRC Rules of Practice with respect to this matter in the first instance, CASE should not be given the opportunity now to take advantage of them. Accordingly, the Board should deny CASE's motion for discovery.

Respectfully submitted, b

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Nichola{S. 'Reynolds

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i William A. Horin' Counsel for Applicants DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9817 November 3, 1983

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