ML20024D230
| ML20024D230 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/01/1983 |
| From: | Chandler L, Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8308030343 | |
| Download: ML20024D230 (15) | |
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e 8/01/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 OL
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50-323 OL (Diablo Canyon Nuclear Power Plant )
Units 1 and 2)
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NRC STAFF'S RESPONSE TO JOINT INTERVENORS' AND GOVERNOR DEUKMEJIAN'S CONTENTIONS REGARDING DESIGN QUALITY ASSURANCE I.
INTRODUCTION By Order dated July 6,1983, this Appeal Board ruled that the Joint Intervenors and Governor Deukmejian should " prepare their specifications of the precise matters they contest in the reopened proceeding (i.e.,
their " contentions") and serve them on all parties on July 19, 1983 at the hearing". Both the Joint Intervenors and the Governor filed their contentions on July 19, 1983, as specified by the Appeal Board. Pursuant to the schedule established by the Appeal Board at the hearing on July 22, 1983, the Staff sets forth below its position regarding the proposed contentions of the Joint Intervenors and Governor Deukmejian.
II. DISCUSSION A.
Legal Principles Governing Admissibility of Contentions Generally, contentions may be admitted in a Comission licensing proceeding if they fall within the scope of issues set forth in the Federal Register notice of opportunity for hearing (Portland General e309030343 E30001
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Electric Co.; (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979); Public Service Co. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-1 316, 3 NRC 167, 170-71 (1976)). See, also, Northern States Power Co. (Prairie Island, Unit Nos. I and 2), ALAB-197, 6 AEC 188, 194 (1973), affirmed, BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.1974); Duquesne Light Co. (Beaver Valley, Unit No. 1), ALAB-109, 6 AEC 243, 245 (1973); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974)). The scope of this proceeding with respect to admissibility of contentions however is not defined by a Federal Register notice but rather, as a reopened proceeding, by the scope of the issue (and findings thereon) decided below to the extent reopening has been granted.I/ In order to raise for the first time in a reopened proceeding an issue not previously decided, in addition tc satisfying the long-recognized standards for reopening, the standards for admission of late-filed contentions, viz. 10 C.F.R. 6 2.714(a)(1), must be satisfied Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 1 and 2), CLI-82-39, 16 NRC (December 23,1982) slip op. at 4.
In
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See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669,15 NRC 453, 465 (1982); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-551, 9 NRC 704, 707-709 (1979); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 20-21 o
(1978).
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this instance the relevant Licensing Board determination which has been reopened is that:E Based on the uncontroverted testimony of both Applicant and Staff the Board finds that the Diablo Canyon quality assurance program for... the Design... phase...
[has]beenand...[is]incompliancewiththerequire-ments cf 10 C.F.R. 50 Appendix B, and that the implementation
[of the program]... is acceptable to the Board.
Also pertinent to this question is the Comission's Order suspending the license authorizing fuel loading and the conduct of tests up to 5% of rated power at the Diablo Canyon Nuclear Power Plant Unit 1, CLI-01-30, 14 NRC 950 and the Appeal Board's Order of April 21, 1983.
Pursuant to 10 C.F.R. 5 2.714(b), petitioners are required to file "a list of contentions wnich petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." A petitioner who fails to file at least one contention which satisfies the requirements of 5 2.714(b) will not be permitted to participate as a party. A contention must be rejected where:
(1) It constitutes an attack on applicable statutory requirements; (2) It challenges the basic structures of the Commission's regulatory process or is an attaik on the regulations; (3) It is nothing more than a generalization regarding the Intervenor's view of what applicable policies ought to be; (4)
It seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). The purpose of the " basis" requirement of 10 C.F.R. 5 2.714(b) is (a) to assure that the matter sought to be put into question does not suffer from any of the infirmities set forth in Peach Bottom, supra, at 20-21, (b) to establish sufficient foundation to warrant further inquiry into the subject matter i
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Pacific Gas and Electric Co. (Diablo Canyon Nuclear Plants, Units 1 l
and 2), LBP-81-21, 14 NRC 107, 116 (1981).
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and (c) to put the other parties sufficiently on notice "so that they will know at least generally whet they will have to defend against or oppose." Peach Botto_m, supra at 20.
At the ea.ly stages of a proceeding initial contentions need only identify the reasons (bases) for each contention. See, Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590,11NRC542,548(1980).
In addition, the basis stated for each contention need not " detail the evidence which will be offered in support of each contention." Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1and2),ALAB-130,6AEC423,426(1973). Accordingly, in examining contentions and the basis therefor, a board may not reach the merits of contentions.
Id., Peach Bottom, supra, at 20. Nevertheless, the basis for a contention must be sufficiently detailed and specific (a) to demonstrate that the issues raised are admissible and that further inquiry into the matter is warranted and (b) to put the parties on notice as to what they will have to defend against or oppose.
In addition, a board is not authorized "to admit conditionally for jLny reason, a contention that falls short of meeting the specificity requirements." Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687,16NRC460,467(1982), vacated in part on other grounds, CLI-83-19, 18 NRC (July 1, 1983). The NRC's Rules of Practice do not permit "the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff."
Id., at 468.
Finally, a board has no duty to recast contentions offered by a petitioner to remedy the infirmities of the type described in
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Peach Bottom, supr'a, for which they'ma'y,be rejected, in order to make
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s inadmissible contentions meet the requirements pf 10 C.F.R. 5 2.714. ~
s Commonwealth Edison Co. JZion Station Units 1 and 2), ALAB-226, 8AEC381,406(1974). Should a board nevertheless elect to rewrite a 1
petitioner's inadmissible c'ontentions so as to eliminate the 'in'fiilnities which render'the contentions inadmissib'ie, the scope of the reworded contentions mey be made no brhacier'than the bases that were previously provided by the petitioner for the inadmissible contentions.
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(Clevelar.d Electric Illuminating Co. (Perry huclear Power P1 ant, Units 1 and2),ALAB-675,15NRC1105,1114-16(1982).
B.
Joint Intervenors' Proposed Contentions s
Contention (a):
s Pacific Gas and Electric Company ("PGandE") and its major subcontractors have failed to develop and implement in a timely fashion a Quality Assurance / Quality Control ("QA/QC") program for the design and redesign of structures, systems,'and components ("SS&Cs") important to safety at Diablo Canyon, which QA/QC program:
(a) meets the requirements of General Design Criterion
("GDC") 1 of Appendix A to 10 C.F.R. Part 50.
NRC Staff Response This contention, aside from failing to state any basis and, therefore, being insufficient to satisfy the " basis" requirements of 10 C.F.R. 5 2.714, also does not fall within the scope of this reopened proceeding. As discussed above, the finding of the Licensing Board below which has been reopened by the Appeal Board in its April 21, 1983 Order is confined to compliance with the requirements of 10 C.F.R. Part 50, Appendix B.
Consequently, this contention must be viewed as a wholly new, late-filed
contention. The Joint Intervencrs have failed to demonstrate that the Wolf Creek standardsd/ and the standards for a late-filed contention have been independently satisfied to warrant consideration of an issue new and distinct from any matter decided by the Licensing Board. Diablo Canyon, CLI-82-39, supra. Furthermore, to the extent that Joint Intervenors have relied upon the Commission's Order suspending the low power operating license, supra, in their motion to reopen, Attachment 1 to the Commission's Order makes clear that the Commission's concern is whether or not structures, systems and components identified as " safety related" meet the criteria of Appendix B to 10 C.F.R. Part 50. See "NRC Staff's Response to Joint Intervenors'... Motions to Reopen the Record on Construction Quality Assurance", dated June 6, 1983 at 14-15.
Contention (b):
Pacific Gas and Electric Company ("PGandE") and its major subcontractors have failed to develop and implement in a timely fashion a Quality Assurance / Quality Control ("QA/QC") program for the design and redesign of structures, systems, and components ("SS&Cs") important to safety at Diablo Canyon, which QA/QC program:
l (b) meets the following 10 C.F.R. Part 50 Appendix B criteria:
NRC Staff Response This contention is nothing more than a broad assertion of failure to l
comply with some of the criteria of Appendix B to Part 50. There is
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Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),
ALAB-462, 7 NRC 320, 338 (1978).
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absolutely no basis stated in support of this contention. Accordingly, the parties put on notice as to what they would to have to defend against or oppose and there is no infomation upon which to judge whether further inquiry into the matter is warranted. Peach Bottom, supra at 20. See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC
, (May 18, 1983) slip op.'at 38,
- n. 73.
Contention (c):
Pacific Gas and Electric Company ("PGandE") and its major subcontractors have failed to develop and imp (lement in a timely fashion a Quality Assurance / Quality Control "QA/QC") program for the design and redesign of structures, systems, and components ("SS&Cs") important to safety and Diablo Canyon, which QA/QC program:
(c) assures that PGandE has met the license commitments set forth in its Final Safety Analysis Report
("FSAR") for Diablo Canyon as required by 10 C.F.R.
Part 50.57(a) and 10 C.F.R. 50.34(b).
NRC Staff Response This contention is nothing more than a broad stateaent of the ultimate finding that this Board would make as a result of the instant proceeding.
It does not state a discrete litigable issue.
- Further, there is absolutely no basis stated in support of this contention.
Other Contentions:
l.
1.
Further, neither the Independent Design Verification Program ("IDVP")auditofseismicandnonseismicQA/QCat Diablo Canyon nor PGandE's Internal Technical Program
("ITP") has provided reasonable assurance of compliance i
with all applicable regulatory standards.
2.
Finally, PGandE failed to systematically review and verify the validity of all results of tests previously conducted with respect to any Diablo Canyon SS&C which have been affected by the redesign conducted since September 1981.
PGandE failed to identify and perform (in accordance with written test procedures as prescribed by Criterion II of 10 C.F.R. Part 50) the additional testing required to demonstrate that as redesigned and modified all Diablo Canyon SS&Cs will perform satisfactorily in service.
NRC Staff Response 1.
At the outset, it must be noted that the requirement for and scope of the IDVP were outlined in the Comission's November 19, 1981, Order, supra, and in the letter from H. R. Denton, to Malcolm Furbush also of that date. The objective of the IDVP, contrary to the Joint Intervenors' assertion, is not, in and of itself, to provide the l
" reasonable assurance" required by the Comission's regulations but rather is to provide an independent mechanism to assure and confirm that all " safety related" design quality assurance deficiencies are in fact detected and resolved by PG&E.
It is incumbent on PG&E, through its own programs, which, of course, may utilize the IDVP efforts, to demonstrate reasonable assurance that all applicable requirements have been complied with. Thus, for purposes of establishing regulatory compliance, it is the PG&E's Diablo Canyon Project activities and the quality assurance program being applied in conjunction thereto, to which one must turn.
And in this regard, the Joint Intervenors are essentially silent.
In any event, although enumerating alleged deficiencies in the IDVP efforts, the Joint Intevenors have wholly failed to provide the requisite specificity and basis.
In sum, none of the bases stated by the Joint Intervenors establishes sufficient foundation to warrant further inquiry into the subject matter and put the other parties sufficiently on notice
"so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra, at 20.
2.
This contention lacks the necessary specificity.
It is not clear what Joint Intervenors mean by " systematically review and verify."
Nor is it clear what results of " tests previously conducted" they believe should be validated nor is it clear what specific structure systems and components they believe should be included in this contention. This contention is so broad that the parties do not know what they will have to defend against or oppose. Peach Bottom, supra, at 20.
C.
Governor Deukmejian's Proposed Contentions on Design Quality Assurance Contention I.A.:
Pacific Gas and Electric Company ("PGandE") and its major l
subcontractors for Diablo Canyon Units 1 and 2 ("Diablo l
Canyon") failed to timely develop and implement a systematic quality assurance / quality control ("QA/QC")
program for the design of safety related structures, systems and components ("SS&Cs"), including the recent new design work, which:
Complies with the quality assurance requirements of l
criteria 1, 2, 3. 4, 5, 6, 7, 10, 16, 17 and 18 of Appendix B to 10 C.F.R. Part 50 (" Appendix B"); and which...
NRC Staff Response This contention is completely unsupported by any basis.
Accordingly, it does not satisfy the requirements of 10 C.F.R.
5 2.714. There is no indication how the Quality Assurance / Quality Control program for the design of safety related structures, sistems and components, including the recent new design work, fails to :atisfy the requirements of Appendix B to 10 C.F.R. Part 50. Absent such specificity
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parties could not possibly be on notice as to what they what to defend against or oppose. Peach Bottom, supra, at 20.
Contention I.B.:
Pacific Gas and Electric Company ("PGandE") and its major subcontractors for Diablo Canyon Units 1 and 2 ("Diablo Canyon") failed to timely develop and implement a systematic quality assurance / quality control ("QA/QC") program for the design of safety related structures, systems and components
("SS&Cs"), including the recent new design work, which:
Assures that PG&E has complied with the license commitments set forth in the Diablo Canyon Final Safety Analysis Report ("FSAR") as required by 10 C.F.R.
SS60.57(a)and50.34(b).
NRC Staff Response This contention must be rejected for failure to state basis with the requisite specificity to satisfy the requirements of 10 C.F.R. 5 2.714.
There is nc indication how PG&E has failed to comply with license commitments set forth in the FSAR. Absent such a showing the parties would not be on notice as to what they would have to defend against or oppose. Peach Bottom, supra, at 20.
Contention II.:
The Independent Design Verification Program ("IDVP") has failed to provide assurance, equivalent to that which would have been provided if PG&E and its major subcontractors for Diablo Canyon had timely developed and implemented a design QA/QC program which met the requirements of Appendix B, that PG&E has complied with the licoase commitments for the design of such SS&Cs set forth in the Diablo Canyon FSAR as required by 10 C.F.R. SS 50.57(a) and 50.34(b).
NRC Staff Response The thrust of this contention is that the IDVP is, in essence, the replacement for PG&E's QA program and accordingly, must meet the requirements of Appendix B.
This is not the case. As the licensee, it is PG&E's overall Diablo Canyon Project activities which will, in essence, be treated as the program upon which the NRC Staff will evaluate compliance with the requirements of Appendix 8 to 10 C.F.R. Part 50.
Thus, as discussed above in regard to the Joint Intervenors' contentions, the matters raised in the Governor's contention II are irrelevant to any decision which the Appeal Board will make and, consequently, do not state an appropriate contention. At most, these assertions may present challenges to the sufficiency of the evidence offered by any of the parties to the extent the IDVP is relied on in support of their position.
In any event, if viewed as a contention, contention II must be rejected > failing to provide the requisite basis and specificity.
In sum, the Governor has failed to state any relevant bases for Contention II that meets the specificity requirements of 10 C.F.R.
5 2.714. All the statements of bases are so broad that the parties cannot possibly know at least generally what they have to defend against or oppose. Peach Bottom, supra, at 20.
Contention III.:
PG&E's Internal Technical Program ("ITP") does not provide dssurance, equivalent to Appendix B compliance, that PG&E has and will meet its license commitments for the seismic design of SS&C's at Diablo Canyon.
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. 0 NRC Staff Response This contention is wholly unsupported. There is absolutely no basis stated-for the contention.
Furthermore it is overly broad and accordingly the parties would not be sufficiently on notice so that they would know what they would have to defend Lgainst or oppose.
Peach _ Bottom, supra, at 20.
Contention IV.:
PG&E and its major subcontractors failed to develop and implement in a timely fashion a QA/QC program for the design of important to safety but not safety related SS&Cs at Diablo Canyon which met the requirements of GDC-1 of Appendix A to 10 C.F.R. Part 50 (" Appendix A").
NRC Staff Response The Staff's response to the Joint Intervenors' similar assertion (regarding compliance with the requirements of 10 C.F.R. Part 50, Appendix A), set forth above, is fully applicable to the Governor's proposed contention and need not be restated here.
Contention V.:
The IDVP has not and will not provide any assurance, equivalent to Appendix A compliance, that the design of important to safety but not safety related SS&Cs at Diablo Canyon meets the regulatory requirements for the design of such equipment.
NRC Staff Response As discussed above, this contention should be rejected as beyond the scope of this proceeding.
III. CONCLUSION For the foregoing reasons the contentions proposed by both the Joint Intervenors and Governor Deukmejian fail to satisfy the requirements for admission of contentions and thus should be rejected.
Respectfully submitted.
'8 Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel
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':ou el for NRC Staff Dated in Bethesda, Maryland this 1st day of August,1983.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO JOINT INTERVEN0RS' AND GOVERNOR DEUKMEJIAN'S CONTENTIONS REGARDING DESIGN QUALITY ASSURANCE" the above-captioned proceeding has been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this 1st day of August 1983:
John F. Wolf, Esq. Chairman Richard E. Blankenburg Administrative Judge Co-publisher Atomic Safety and Licensing Board Wayne A. Soroyan, News Reporter U.S. Nuclear Regulatory Comission South County Publishing Company Washington, D.C.
20555
- P.O. Box 460 Arroyo Grande, CA 93420 Glenn 0. Bright, Esq.
Administrative Judge Mr. Thomas H. Harris, Energy Writer Atomic Safety and Licensing Board San Jose Mercury News U.S. Nuclear Regulatory Comission 750 Ridder Park Drive Washington, D.C.
20555
- San Jose, CA 95190 Dr. Jerry Kline Mr. Gordon Silver Administrative Judge Mrs. Sandra A. Silver Atomic Safety and Licensing Board 1760 Alisal Street U.S. Nuclear Regulatory Comission San Luis Obispo, CA 93401 Washington, D.C.
20555
- Arthur C. Gehr, Esq.
Elizabeth Apfelberg Snell & Wilmer 1415 Cozadero 3100 Valley Center San Luis Obispo, CA 93401 Phoenix, AR 85073 Philip A. Crane, Jr., Esq.
Paul C. Valentine, Esq.
Pacific Gas and Electric Company 321 Lytton Avenue P.O. Box 7442 Palo Alto, CA 94302 San Francisco, CA 94120
.. ~. - -...
Mr. Frederick Eissler Bruce Norton, Esq.
Scenic Shoreline Preservation Norton, Burke, Berry & French, P.C.
Conference, Inc.
2002 E. Osborn Road 4623 More Mesa Drive P. O. Box 10569 Santa Barbara, CA 93105 Phoenix, AZ 85064 Mrs. Raye Fleming Docketing and Service Section 1920 Mattie Road U.S. Nuclear Regulatory Commission Shell Beach, CA 93449 Washington, D.C.
20555
- Joel R. Reynolds, Esq.
Atomic Safety and Licensing John R. Phillips, Esq.
Board Panel Center for Law in th2 Public U.S. Nuclear Regulatory Commission Interest Washington, D.C.
20555
- 10951 West Pico Boulevard Third Floor Atomic Safety and Licensing Los Angeles, CA 90064 Appeal Panel U.S. Nuclear Regulatory Connission David S. Fleischaker, Esq.
Washington, D.C.
20555
- P. O. Box 1178 Oklahoma City, OK 73101 Mark Gottlieb California Energy Commission Richard B. Hubbard MS-18 MHB Technical Associates 1111 Howe Avenue 1723 Hamilton Avenue - Suite K Sacramento, CA 95825 San Jose, CA 95125 John Marrs, Managing Editor Maurice Axelrad, Esq.
San Luis Obispo County Lowenstein, Newman, Reis and Axelrad Telegram-Tribune 1025 Connecticut Avenue, N.W.
1321 Johnson Avenue Washington, D.C.
20036 P.O. Box 112 San Luis Obispo, CA 93406 Janice E. Kerr, Esq.
Harry M. Willis Lawrence Q. Carcia, Esq.
Seymour & Willis 350 McAllister Street 601 California St., Suite 2100 San Francisco, CA 94102 San Francisco, CA 94108 Michael J. Strumwasser, Esq.
Mr. James 0. Schuyler l
Susan L. Durbin, Esq.
Nuclear Projects Engineer Peter H. Kaufman, Esq.
Pacific Gas and Electric Company 3580 Wilshire Blvd., Suite 600 77 Beale Street Los Angeles, CA 90010 San Francisco, CA 94016
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-y H(nry U. cGurven CounseT for NRC Staff
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