ML19332F491

Discusses NRC 891027 Ltr to B Brink Re Citizens for Fair Util Regulation 891016 Request for Stay.Nrc Must Be Consistent in Application of NRC Procedures Re Probing of Allegations.Improprietaries Should Be Sought from Case

ML19332F491
Person / Time
Site:	Comanche Peak
Issue date:	12/01/1989
From:	Garde B Citizens Association for Sound Energy, ROBINSON, ROBINSON, PETERSON, BERK, RUDOLPH, CROSS
To:	Lyons J Office of Nuclear Reactor Regulation
References
NUDOCS 8912150075
Download: ML19332F491 (5)

Text

h4 s Robinson, Robinson, Peterson. Berk, Rudolph. Cross & Garde Mary Lou Robinson Attorneys at Law .

Ntla Jean Robinsan los East College Avenue John C. Petcason Appleton, Wisconsin t4911 ;

Avrain D. Berk (4 43 7at.in:

bitchael Rudolph Green Bay 494-9600 Dan Cross Fax 7808841 Billie Pirner Garde December 1, 1989 James E. Lyons, Chairman Allegation Review Committee Comanche Peak Project Division U.S. Nuclear Regulatory Ccmmission Washington, D.C. 20555 '

RE: Allegation OSP-89-A-0089  ;

In the matter of Comanche Peak Steam Electric Station Docket No.: 50-445, 50-446

Dear Mr. Lyons,

On October 27, 1989, you wrote to Ms. Betty Brink of the Citizens for Fair Utility Regulation (CPUR) regarding a variety .

of charges made by CFUR to the Commission in an October 16, 1989, filing entitled Request for Stay. Your letter sets forth the position of the NRC Staff in regards to the Commission's October 19, 1989 Order denying CFUR's request for a stay, but directing l the Staff to " address CFUR's safety concerns prior to issuing the

• low power license."

The Commission did not direct or even suggest to the Staff that they hold an evidentiary hearing on CPUR's allegations, but rather directed the Staff determine if the allegations by CFUR regarding the settlement agreement between TU Electric and Citizens Association for Sound Energy (CASE) present any safety concerns about the Comanche Peak Steam Electric Station (CPSES)

"that the Staff has not previously considered." Order, at 3.

Additionally, the Staff was directed to determine if CFUR's assertions regarding certain specific technical issues present possible safety hazards associated with the low power operation of Comanche Peak. Order, at 2.

As to the technical issues raised by CFUR, the Commission directed that .the matters be handled in accordance with NRC Chapter Manual 0517 for processing allegations. No specific guidance was provided to the Staff on the procedure they should  !

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fo13ow for determining whether the assertions about the settlement pose potential safety concerns.

The Commission's Order presents a particularly troublesome procedural issue which CASE believes is at odds with the agency's past practices and procedures; and CASE respectfully requests that the Staff consider the comments in this letter in regards to their review of various charges raised by CPUR.

As a preliminary matter CASE believes that the pleading,

although entitled e Request for Stay, is properly considered as a request for action pursuant to 10 C.F.R. 2.206 to the extent that it raises new Issues for Staff consideration. This section of the Federal Regulations provides the NRC's Executive Director of Operations with the authority to take any actlon, up to and including modifying, withdrawing or withholding a license, on the basis of a request by any member of the public. Additionally, this procedure has regularly been followed when citizens' groups without standing in licensing hearings or admitted intervenors without admitted contentions on certain safety-related allegations raise those issues to the Staff, (i.e., Zimmer, Midland, Diablo Canyon, and Catawba, among others).

CFUR has no standing in front of the Commission under the current posture of the dispute between CPUR, the NRC, and TU Electric, other than as an appellant of the Commission's denial of its late intervention request. See, Texas Utilities Electric Co., (Comanche Peak Steam Elect ric ~StaElon), CLI 89-0E 29 NRC

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348 (1989), and see, Citizens for Fair Utility Reoulation v. NRC, ,

Case Nos.: 89-4124 and 89-4310, 5th Circuit filed February 16, 1989. In spite their lack of standing, CFUR has repeatedly and continuously utilized every available forum to criticize CASE, denigrate its activities, and cast aspersions on its motives in regards to the 1988 settlement. These criticisms of CASE have been based on the flimsiest of hearsay information. Handling the CFUR allegations pursuant to a criteria of 10 C.F.R. 2.206 l

and/or the manual chapter for a review of late filed allegations will eliminate unnecessary expenditure of resources on allegations which are little more than character attacks on CASE.

As CASE reads the stay request, CPUR has essentially raised two types of issues to the Commission: (1) Alleged technical / hardware concerns about the nuclear plant itself; and, (2) charges of impropriety by CASE, TU Electric and the NRC Staff l

whien by inference raise some sort of character and integrity concerns about the parties involved in the settlement.

l The Staff has characterized these issues in an attachment to its October 27, 1989, letter. Issues 1 through 4 raise alleged technical / safety concerns about the plant itself. Issues 5 and 6 raise alleged concerns about the NRC regulatory process and the opinions of NRC line inspectors about the performance of TU 2

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i Electric and their opinions on the condition of the plant. Issue 7 raises an alleged wrongdoing concern about the motivation of CASE in reaching a settlement of the operating license proceeding and that the settlement was not based on a resolution of safety issues.

Since, to the extent that the comments in CPUR's petition are allegations, they are clearly in the category of " late-filed allegations" as defined by the OSP Office Procedure 0170,

" Management of Allegations," May 19, 1987, CASE believes that the Staff should follow the procedures for these types of allegations. Pursuant to the requirements the Staff must first determine in reviewing the allegation:

"Whether, if true, the allegations are material to the licensing decision in that they would require denial of the license sought, the imposition of additional conditions or license, or further analysis or investigation. Allegations which, even if true, are ,

not material to any licensing decision or whien on their face or after inquity are deternined to be t frivolous or too va_9ue_ or genera _l,in nature to provide sufficient information for tne Staft to investigate will receive no furtner consideration." ( Duphases added.)

According to the NRC's allegation mtnagement process, if the ,

allegations are material to the licensing ncision the NRC must then determine whetner the information is "new" 14e., raising a matter not previously concidered or tending to corroborate unresolved allegations. If the NRC Staff determines that the information is already available to the NRC, then the Staff may resolve the allegations without further inquiry.

Using the NRC's procedural requirements for handling late filed allegations, CASE believes that it is incumbent upon the Staff to determine first materiality, and then determine whether CFUR has any new information to support their allegations.

Because the information in many of the CPUR pleadings before the Commission is distorted, and in some cases untrue, CASE believes that the NRC must insist that CFUR provide any new information under conditions that provide the NRC Staff some degree of reliability and truthfulness, i.e., sworn depositions or transcribed interviews under oath or affirmation. Without requiring this type of testimony, at least as to issues and charges against CASE, the NRC Staff is improperly providing a forum for CPUR to simply attack CASE, the plant, and the NRC without any accountability for their words or the effect they may have.

In reviewing the seven allegations, CASE is of the view that Issues 1 through 4, and 7 are potentially material to the safe 3

3 operation of the plant, but questions whether or not CPUR has any new information which would dictate any further Staff inquiry.

In fact, it appears to CASE, that CPUR has provided no information not readily available from public sources such as newspapers or the NRC's own inspection reports.

Issue One -

(Generic Issue 82) is not new, and is already being considered by both ' the Staff and TU Electric in connection with NRC standard practice for review of industry identified technical problems.

Issues Two and Four - An APW check valve failure is not a new concern and has already been the subject of extensive inspection and review, and is presently being considered for escalated enforcement action. Thus, the information is not new and is under NRC review. ,

Issue Three - Counterfeit Bolts is not a new issue, and lihs been th'e subject of intensive scrutiny by 01 and TU Electric's own internal investigation. The results of ,

these probes is under consideration by the Staff at the present time.

Iscues Five and Six -

Interndl dissent about TU's handTI W o~1 the Service Water System (SWS) problems and  !

the SALP report l'as been, and is being, handled by the NRC's internal processes. Furthermore there is nothing to indicate that CPUR has any information on this matter beyond that reported in the media. CPUR points to no new information on these matters.

Issue Seven -

CASE settlement / worker settlements.

Contrary to CPUR's assertions, the issue of a potentially ill-motivated settlement was addressed by the ASLB at the July 13, 1988, prehearing conference on c the CASE /TU settlement. (See, transcript pages 25,194, 1 25,197-25,200, 25,210-25,211, 25,226, and 25,284-25,291 of July 13, 1988, transcript of proceedings.) No new ,

informati consider.gn has been presented by CPUR for the Staff to l

1 It is important to note that all of the "whistleblowers" who settled their civil law suits had already provided substantial information to the NRC throughout a variety of inspections, investigations, hearings, special inspections, and other actions. The 4

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A final allegation is made that the settlement was motivated by a significant but undefined economic interest in the settlement of the "whistleblower" claims, which were contingent on the dismissal of the licensing hearings. This allegation is an improper area of inquiry for the NRC inspection staff; however, the allegation is patently false and cannot be allowed to stand unrefuted.

CASE invites the NRC's Office of Investigations (OI) to conduct an inquiry into this issue and talk to the attorneys chat 9ed as well as CASE's President, Mrs. Juanita Ellis.

In conclusion, CASE believes that the Staff must hold CPUR to the same standards of accuracy and truthfulness that it imposes on all allegers and, where appropriate, to seek from CASE and/or its former/ current attorneys a response to any charges of impropriety. We also believe that the NRC must be consistent in application of NRC proceduren with regards to probing of allegations.

Respectfully,

%7%f Billie Pirner Garde 1

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DOL complainants who were offered settlements also had disclosed concerns to the NRC staff and/or the DOL dnd/or TU Electric. Those complainants who settled their labor disputes in July, 1988, were absolutely free to raise their concerns and that aspect of the settlement was disclosed at the July 13, 1988, hearing, see transcript pages 25,257-25,258, 25,264-25,265, and ,

25,268. Further, as the NRC is well aware, some of the  !

plaintiffs have continued to pursue their concerns well beyond the settlement with CASE's assistance.

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