ML19331A699
| ML19331A699 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/17/1974 |
| From: | Brown P BECHTEL GROUP, INC., CLARK, KLEIN, WINTER, PARSONS & PREWITT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SC, NUDOCS 8007210689 | |
| Download: ML19331A699 (11) | |
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UNITED STATES OF Ar! ERICA ATOMIC ENERGY C0!C4ISSION.
In the Matter of
)
CONSU!ERS PGiER COMPANY
)
Construction Permit Nos. 81 and 82 (Midland Plant, Units 1 and 2)
)
BECHTEL PGiER CORPORATION AND BECHTEL ASSOCIATES PROFESSICNAL CORPORATION'S RESPONSE TO SAGINAW-SIERRA'S COICEUIS IN CONNECTICN WITH ORAL ARG'dSiT Bechtel Power Corporation and Bechtel Associates Professional Cor-poration ("Bechtel") hereby respond to Saginaw-Sierra's " Comments...In Connection with Oral Argument" (" Comments").
I INTRODUCTION 1
Bechtel objects to Saginaw-Sierra's use of ALAB-235 as somehow supportative of the substance of any of Saginaw-Sierra's allegations in its
" Petition to Reopen the Record and/or for Reconsideration of Initial Decision"
(" Petition to Reopen") filed with this Licensing Board on September 30,197h.
Additionally, Bechtel objects to Saginaw-Sierra's attempted use of ALAB-235 to shift the burden of proof or to crown the Petition to Reopen with a " prima facie validity." In ALAB-235 the Appeal Board merely granted Saginaw-Sierra's
" Motion for Extension of Time" within which to file exceptions to the Initial Decision in this proceeding. The Appeal Board did not in any way either find 1
Memorandum and Order, RAI-74-10 p. 645 (October 17,1974).
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merit in the Petition to Reopen or reverse the traditional rules governing reopening of hearings, as set forth in ALAB-138.2 The parameters of ALAB 235 were specifically limited by the Appeal Board:
Saginaw's motion before us asks only that its time to file exceptions be extended until the Licensing Board resolves the petition to reconsider. That petition brought to the Licensing Board's attention fc r the first time the fact that applicant is suing Bachtel on allegations of deficient performance in constructing another nuclear facility. The adequacy of Bechtel's perfor=ance at the Midland facility was a matter at issue in the proceedings belcw. Whether applicant's new allegations abcut Bechtel's inadecuate performance at Palisades should ce ta.<en into account in evaluating the evidence of that organization's per-formance at Midland is a matter whica cannot be dis-missed out of hand as a dilatory tactic.
In the circumstances, Saginaw's motion to extend the time to except until the Licensing Board rules on its petition raising this new development is an appropriate request.3 In granting only an extension of time to except to the Initial De
- cision, ALAB-235 did not pass on the merits of Saginaw-Sierra's Petition to Reopen and there was no Indication that the Appeal Board considered the Petition to Reopen had " substance" as Saginaw-Sierra would have this Licensing Board believe. That this is so is made explicit by two facts: First, the Appeal Board did not direct the Licensing Board to reopen the record or to reconsider its Initial Decision. Second, the length of time granted by the extension clearly recognized the possibility that this Licensing Board might 2 In the Matter of Vermont Yankee Nuclear Power Corporation, RAI-73-7,
- p. 52Q 522 (July 25, 1973).
RAI-14-10, at pp. 648-649 (Emphasis supplied). j 1
e
- refuse to reopen the record or reconsider its Initial Decision. Thus, the Appeal Board left the Licensing Board free to handle the matter as it saw fit with the single provise that the allegations should not be "dismis.ed out of hand as a dilatory tactic." ALAB-235 did not require, as saginaw-Sierra contends, a " hearing inquiring into the underlying facts."
II The Oral Argument on Saginaw's Motion to Reopen was scheduled to address the question of whether or not a hearing inquiring into the under-lying facts of Consumers Power Company!s Palisades lawsuit should be held.
If this Licensing Board arrives at the conclusion that there may be a connection concerning the performance of Bechtel in the area of Quality Assurance Program implementation at Palisades and at Midland, that decicion, in and of itself, does not, dispose or answer the questions of relevance cr materiality. Suppose this Board concludes that the allegations in Consu=ers' lawsuit merit examination. At that point, this Board must proceed to try any or all of those allegations since an allegation of liability is certainly not conclusive of liability. If this Board determines, after all the ' evidence is in, that Bechtel is liable to Consumers under one or more counts of the Complaint, it must then take a determination of whether the basis for that liability is relevant and material to the issues in this Show Cause proceeding.
If the Palisades liability is determined to be relevant to the issues in the 4
" Comments of Saginaw Intervenors in Connection with Show Cause Oral Argument," p. 2 (December 2,197h).
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F11dland Show Cause proceeding, then and only then would this Licensing Board be justified in reopening the record in this She-Cause proceeding.
There is persuasive legal authority t o che effect that circu=-
stances under which other comparable conduct occurs should be substantially similar to the circu= stances at issue before evidence of that conduct is admissible.
In Curns v Martin,193 IN 2d 21h (ND 1971) it was held:
... As a general rule, the co==ission of an act cannot be proved by shewing the co==ission of similar acts by the same person or his agents er e=ployees at other times and under other circumstances, unless the acts are con-nected in sc=e special way, indicating a relevancy beyond
=ere similarity as to come particulars. Generally, also,-
exclusion is required of all evidence of similar or com-parable facts, acts, or conduct which are incapable of raising any reasonable presumption or inference as to any principal and material fact or catter in dispute....
193 W 2d at 216.
It is Bechtel's contention that the circu= stances within which tne Palisades allegations arose are such as to make any comparison between those past al-legations of conduct at Palisades and present and future conduct at the Midland Plant meaningless.
III ARGUMENT RE RELEVANCY AND MATERIALITY OF THE PALISADES COMPLAINT TO THE ISSUES OF QUALITY ASEURANCE IMPLEMENTATICH AND REASONABLE ASSIGANCE OF FUTURE COMPLIANCE WITH QUALITY ASSURAIEE REGULATIONS AT MIDLAND The allegations against Bechtel in Ccnsumers Power Companys' Com-plaint are irrelevant and immaterial, per se, -to the issues properly before 5
See Bechtel's Objections to the First Set of Interrogatories Directed to Bechtel from Saginaw Sierra, pp. 9-21 and cases cited therein.
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this Licensing Board in this Show Cause proceeding.
(A) The issues which this Licensing Board must decide, and has already decided, concern present and future implementation of the Midland Quality Assurance Program. Extensive oral and written testimony has already been presented in this proceeding to the effect that a viable Quality Assurance Program does not mean that =istakes in the various phases of constructing a nuclear power plant will not occur.
The fact that mistakes or violations
=ay occur, and eventually be the subject matter of a lawsuit, does not mean that the Quality Assurance Progrc= at that particular plant is not working.
Censumers Pcwer Cc=pany has conceded that the Palisades lawsuit concerns only steam gamerator tubes, core internals vibration and condenser tubes.
With respect to steam generator tubes and core internals-vibration problems, the AEC has maintained surveillance over these problems and has not found it necessary.to issue quality assurance violations since the Palisades plant has not operated in violation of the technical specification requirements.
With respect to condenser tube problems, the condenser is not a Class I component and, hence, not within the parameters of AEC jurisdiction. Thus, the Palisades lawsuit appears to present a situation that grew out of a set of cecurrences which did not constitute er indicate a lack of quality assurance implementation.
Bechtel neither designed nor fabricated 6
For example,_ inter alia, Tr. pp. 202.
7 Oral Argument, Tr. p. 8.
8 Oral Argument, Tr. pp. 8-9 either the steam generator tubes or the condensor tubes. Thus, to the ex-tent that the-lawsuit concerns those items, Bechtel's involvement is, at this juncture, only marginal.9 Accordingly, the allegations in the Complaint are irrelevant since there is no showing that the occurrences from which they arose involved quality assurance implementation problems.
(B) Palisades was constructed under the regulations, codes, stan-dards and criteria in existence between 1965 and 1970. Midland, on the other hand, is being constructed under the more elaborate regulations, codes, stan-dards and criteria in existence today.
Although 3cchtel's performance in the area of quality assurance at Palisades was a subject at the Palisades 11 provisional operating license ~ hearing, Saginaw-Sierra would have this Licensing Board believe that a violation cf quality assurance regulatiens at Palisades gives rise to a " prima facie assumptien" that Eechtel will be unable 12 to comply with the more ecmplex regulations at Midland.
What Saginaw-Sierra fails to comprehend is the fact that this Licensing Board determined that at the time of the Initial Decision in this Show Cause proceeding the Midland Quality Assurance Program was being implemented and that there was reasonable 13 assurance that it would continue to be implemented in the future.
9 Oral wgument Tr p. 9 10 Oral Argument Tr pp. 21-22.
11 Oral Argument Tr. p. 12.
12 Comments, p. 3 13 Initial Decision, p. 59.
m w
Even assu=ing arguendo past quality assurance progrEE i=ple-centation proble=s at Palisades, there is extensive evidence in the Midland record concerning the various changes cade by Consurers Power Cc=pany and by Bechtel to upgrade and i= prove their respective Quality Assurance programs since 1970.
Thus, the progrz:s currently in existence at Pldland bear little relationship to the Palisades quality Assurance Progra=.
It is in-conceivable, therefore, that the tere assu=ed fact of a Quality Assurance Program i=ple=entation proble= occurring someti=e between 19 5 and 1970 could A
prima facie give rise to an assumptien of Quality Assurance Progra imple-mentation proble=s in 197h and later. The changes which the various quality Assurance organizations and programs have undergone since 1970, and the cur-rent attitude a=cng Censumers' senior =anage=ent personnel tcward Quality Assurance have created a situatien wherein, still assu=ing arzuende past Quality Assurance Progra implementatien prcblems at Falisades, this I,1 censing Board properly concluded that the Midland Quality Assurance Program was being implemented in accordance with AEC regulations and that there was reasonable assurance that said i=plementation would continue throughout the construction process.
(C) Since the Co: plaint contains no allegation of continuing in-adequate perfor=ance on the part of 3echtel, there is no connecting factor between the alleged events of 1965 to 1970 at Palisades which are the subject of Consumers' lawsuit and the current and future perfer=ance of Bechtel at Midland.
14 ' Initial Decision, pp. 23-25, 38-58.
15 Cral Argument, Tr. pp. 13-14 (D) In additiors to the more elaborate regulations, criteria, stan-dards and codes which have cc=e into existence since 1970, and in addition to the pro =ulgation of Appendix B, and in addition to the various changes in the respective Quality Assurance programs and organi:ations of Consu=ers Pcwer Cc=pany and Ecchtel since 1970 and in additien to the changed attitude of Consumers' senior canagement personnel toward quality assurance, the follcwing facts also concern the relevance and cateriality of the Palisades Cc= plaint to this Midland Show Cause proceeding:
1.
The basic issues are different.
Falisades appears to involve construction, design.and/cr procure =ent activities. This proceeding concerns Quality Assurance Program i=ple=entation.
2.
There has been no carry over of Quality Assurance per-16 sonnel frc= Palisades to Midland.
3 Consumers has consulted outside experts with respect to the adequacy of its Midland Quality Assurance Progra= and has i=ple=ented most of the experts' recc==endations.17 The use of these experts was initiated after 1970.
4 Extensive indoctrination and training programs in the area of Quality Assurance have been i=ple=ented at Midland through formaliced programs which were not in, existence at 18 Palisades.
16 Oral Argument, Tr. p. 22.
17 Initial Decision, pp. 39 h3 18 Initial Decision, pp. 44-46.
5.
The subcentractors of the ec=ponents which are pre-sently the subject of the Ptlisades lawsuit are not in all instances the subcentractors at Midland.
6.
This Midland Show Cause hearing has specifically excluded questions concerning the oceratien of a nuclear 20 power plant.
However, as Consumers Power Cc=pany conceded at the oral ar6u=ent, the operation of the Palisades plant
=ay be a critical issue in the defense of the varicus alle-gations in the Cc= plaint.
These facts require the conclusien that the events with which the Palisades lawsuit is concerned are, regardless of the veracity of any alle-gation centained in the Cc= plaint, irrelevant and i==aterial to any issue properly before this Licensing Scard.
IV CONCLU3ICT Allegations of inadequate performance prior to 1970 at another nuclear power plant on the part of Bechtel are irrelevant and i:mnaterial to the issues of current and future quality Assurance Program i=ple:nentation at 19 Oral Argument, Tr. pp. 22 23 O
Initial Decision, p. 9 21 Cral Argu=ent, Tr. p. 9 Midland. An allegation is not a fact, but even if the allegation was probative evidence, the various events which have occurred since completien of Palisades have rendered any co=parison between Palisades and Midland meaningless. That this is so is reinforced by this Licensing Board's findings and conclusions of law that the Midland Quality Assurance Program is beine implemented in ccepliance with Cc:=iscicn regulations and that there is rea-sonable assurance that such i=ple=entation will continue throughout the construction process.
Saginaw-Sierra has not been able to =ect its burden for reopening the record in this proceeding or fcr reconsidering the Initial Decision.
Accordingly, the time has come to put an end to this Show Cause r..ceeding.
"'he Suprese Court has recognized the fact that new circumstances may arise between the ti=e an ad=inistrative hearing is closed and the decision prc=ul-gated, but has not found it wise er expedient to grant rehearings as a catter e ?ight in such instances reasoning that 'there would be little hope that the administrative process could ever be consu= mated in an order that would not be subject to reopening, U.S. v. I.C.C., 396 Us 491, 520 (1970).
P sp ct' ally -f nitted, l
. Robert Brown Jr.
Individually and for the I4rd 1
Clark, Klein, Winter, Pars &:-:f & Prewitt 1600 First Federal Building Detroit, Michigan 48226 Attorneys for Bechtel Power Co=pany and Bechtel Associates Professional Corporation Dated:
December 17, 1974 e
UNITED STATES OF AMERICA ATOMIC ENERGY C0b24ISSION In the Matter of
)
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Construction Permit CONSUMERS POWER COMPANY
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Nos. 81 and 82
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(Midland Plant, Units 1 and 2) )
CERTIFICA2 OF SERVICE I hereby certify that copies of the attached Bechtel Power Corporaticn and Bechtel Associates Professional Corperatien's Response to Saginav-Sierra's Comments in connection with Oral Argument dated December 17, 1974 in the above captioned matter have been served on the follcving in persen er by deposit in the United States mail, first-class, or airmail, this 17th day of December, 197h.
Secretary (20)
J n i G. Gleeson, Esq.
U.S. Atemic Energy Commissien Legal Department Attn: Chief, Public Proceedings The Dov Chemical Ccmpany Branch 2030 Dev Center Washingten, DC 205h5 Midland, MI h86h0 James P. Murray, Jr.
Michael I. Miller, Esq.
Chief Rulemaking and R. Rex Renfrov III, Esq.
Enforcement Counsel Isham, Lincoln s Beale U.S. Atomic Energy Co= mission One First National Plaza h2nd Floor Washington, DC 205h5 Chicago, IL 60670 Michael Glaser, Esq.
Lester Kornblith, Jr.
1150 17th Street, NW U.S. Atomic Energy Commission Washington, DC 20036 Washington, DC 205h5 Dr. Emmeth A. Luebke Myron M. Cherry, Esq.
U.S. Atomic Energy Ccamission One IBM Plaza hrhington, DC 205h5 Suite h501 Chicago, IL 60611 Mr. Richard S. Salzman Mr. Michael C. Farrar U.S. Atomic Energy Commission U.S. Atomic Energy Commission Washington, DC 205h5 Washington, DC 205h5 Dr. Lawrence R. Quarles Mr. William J. Olmstead U.S. Atomic Energy Cc= mission Office of the General Counsel Washington, DC 205h5 Washingt n, DC 205h5 I
v y
( d h -fj g P. Robert Brern '
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