ML20024D619

Response Opposing Governor Deukmejian & Joint Intervenors Proposed Contentions on Design Qa.Contentions Should Be Dismissed for Noncompliance W/Applicable Regulations & Case Law.Certificate of Svc Encl

ML20024D619
Person / Time
Site:	Diablo Canyon
Issue date:	08/01/1983
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8308050366
Download: ML20024D619 (12)

Text

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AUG 41983 > k ome. cm. s.e.

1 UNITED STATES OF AMERICA IN -

NUCLEAR REGULATORY COMMISSION A>

p 2

3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4

5 In the Matter of )

) Docke t Nos. 50-275 6

PACIFIC GAS AND ELECTRIC COMPANY ) 50-323

)

7 (Diablo Canyon Nuclear Power ) (Reopened Hearing -- Design Plant, Units No. 1 and 2) ) Quality Assurance) 8 I 9 RESPONSE OF LICENSEE PACIFIC GAS AND ELECTRIC COMPANY TO PROPOSED CONTENTIONS 10 ON DESIGN QUALITY ASSURANCE OF GOVERNOR DEUKMEJIAN AND JOINT INTERVENORS 11 12 Intr duction 13 G vern r Deukmejian has prof fered five broad and 14 unparticularized contentionsM for this Board to admit in the 15 reopened hearings on design quality assurance. Joint 16 Intervenors' have put forward unnumbered contentions which 17 consist of a narrative series of allegations to the ef fect that 18 design verification ef forts since November 19,1981 do not 19 provide assurance that the Licensee has met any " applicable 20 regulating standards." For the reasons discussed below, 21 Licensee Pacific Gas and Electric Company ("PG&E") respectfully 22 submits that neither the Governor nor Joint Intervenors have 23 24 1. The Governor is not a party to these proceedings, but rather, the representative of an interested State pursuant 25 to 10 C.F.R. S 2.715(c). As such the Governor has previously been required to file " subject matters on which he desires to 26 participate" as opposed to contentions.

8308050366 030801 DR ADOCK 05000 ll

1 submitted a single contention which is sufficiently 2 particularized to enable it to be litigated or which meets the 3 requirements of 10 C.F.R. S 2.714(b) of the Commission's Rules 4 of Practice. Accordingly, the contentions must be dismissed.

5 Legal Requirements for Contentions 6 The Commission's Rules of Practice are structured to 7 place the initial burden on a petitioner who comes forward with 8 allegations and requests that a hearing be held on those allega-9 ti ns. Under S 2.714(b), the petitioner must provide the " bases 10 for each contention set forth with reasonable specificity

• 11 before the contention can become an issue for litigation. Unlike 12 n tice pleading in the Federal judicial system, where a 13 plaintif f making allegations generally has the burden of proof 14 of these allegations, the burden of proof is upon the applicant 15 in an NRC hearing once a contention has been admitted. See, 16 Kansas Gas and Electric Co. (Wolf Creek Generating Station Unit 17 No. 1), ALAB-279, 1 N.R.C. 575, n. 32 (1975). Thus, it is not 18 unreasonable that a petitioner should assume some degree of 19 responsibility in demonstrating that his allegations are of 20 sufficient substance to warrant a hearing. That responsibility, 21 under the Commission's Rules of Practice, is the-bases

, 22 requirement in S 2.714(b), which has been judicially sustained.

23 Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519, 553-54 24 (1978); BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974).

25 When the Commission's Rules of Practice were 26 restructured in 197 2, the Commission specifically imposed

1 responsibilities on those seeking to have contentions litigated 2 at a licensing hearing. With respect to the intervention 3 requirements of 10 C.F.R. S 2.714, the Commission stated :

4 That opening up of the hearing process . . .

implies that intervenors should have correla-5 tive responsibilities to help define and substantiate the ma tters that they seek to put in issue after they have had an 6

opportunity to avail themselves of the information that would then be open to them.

7 Definition of the matters in controversy is widely recognized as the keystone to the 8

suf ficient progress of a contested proceeding. In order to put a matter in 9

issue, it will not be sufficient merely to make an unsupported allegation. 37 Fed. Reg.

10 15127, 15128 (July 28, 1972) (emphasis 11 supplied).

There can be no question that the Governor and the 12 Joint Inten.venors have had available to them, for a long period 13 14 of time, enormous numbers of documents bearing on the issues they seek to raise. Since the proposed contentions do not 15 16 specify how the quality assurance program has failed to meet the 17 criteria in Appendices A and B, or otherwise document the bases for these allegations, the Governor and the Joint Intervenors 18 19 have failed to meet the specific and unequivocal Commission 20 requirement to do more than "make an unsupported allegation."

21 Id -

A f urther purpose of the bases requirement in S 22 23 2.714(b) is to assure that the other parties are afforded suf ficient notice to enable them to know what they will have to 24 defend against or oppose. Philadelphia Electric Company ( Peach 25 Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C.

26 1 13, 20 (1974). The notice aspect of the requirement is a 2 natural outgrowth of fundamental notions of fairness applied to 3

the party with the burden of proof. The Appeal Board has held tha t:

4 5

The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and 6

precision, what arguments are being advanced 7

and what relief is being asked. . . .

8 Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 N.R.C. 559, 576 (1975 (emphasis supplied; 9

10 footnote omitted).

11 An additional purpose of the bases requirement, 12 particularly apt in view of the virtually boundless scope of the 13 contentions prof fered by the Governor and Joint Intervenors, is 14 t narrow and focus the issues to be litigated, and reduce the hearing to a manageable level. As we note below, the Governor 15 16 and Joint Intervenors are proposing that compliance with each l 17 and every applicable criteria and regulatory standard be 18 litigated, a task which is clearly not contemplated by the Commission's Rules of Practice and f ar beyond the purview and l 19 20 capability of the hearing process.

Governor's Proposed Contention I 21 Proposed contention I is a single sentence containing 22 23 approximately 8 5 words and a number of code citations covering l

three paragraphs. In essence the " contention" is four open-24 25 ended contentions , i.e., both (1) the past and (2) the present 26 design quality assurance (DQA) programs fail to comply with any O

1 applicable Appendix B criteria and both the past (3) and the 2 present (4) DQA programs do not give reasonable assurances that 3 the Diablo Canyon plant meets any of its " license commitments."

4 Once a contention is admitted the Licensee has the 5 initial burden of proof regarding any such contention. Because 6 of this burden the proponent of a contention must focus on not 7 only the contention, but must also provide the bases for the 8 contention with " reasonable specificity." Here, the Governor 9 of fers no bases, let alone a basis with " reasonable specificity 10 for the proposed contention." What is the basis for the 11 Governor's allegation that the Licensee's present DQA program 12 does not meet even a single applicable Appendix B criteria or a 13 single " license commitment"? Does the Governor of California 14 really believe such accusations, or is Governor's counsel simply 15 prof fering a contention which would require the Licensee, all 16 other parties, and this Board to waste valuable time and l

17 resources preparing to litigate the non-litigable? The Governor 18 does not even give a single indication as to how a single 19 criterion is not being met or even mention one specific license 20 commitment which is not being met. Under any notion of law or 21 equity it is impossible for the Licensee to prepare for such 22 OPen-ended litigation. Similarly, the broad accusation as 23 respects the past DQA program is not li t igable . A contention l 24 which alleges simply that the past DQA program did not comply 1

25 with any criteria of Appendix B and did not provide assurance 26 that the plant was designed in conformance with any license 1 canmitme nts is far wide of the mark required by S 2.714(b) and 2 applicable cases.

3 The Governor's proposed contention I gives absolutely 4 no clue as to how all applicable criteria of Appendix B have 5 been, and continue to be , unmet. The proposed contention gives 6 n clue whatsoever as to which license commitments have not been 7 met. Is it really the Governor's position that every single 8 licensing commitment for every single structure, system, and 9 component remains unme t? What is the possible basis for such an 10 accusation?

11 It is respectf ully submitted that the Governor's 12 proposed contention emphatically fails any reasonable test for 13 admissibili ty . It provides neither the Board nor the other 14 parties an opportunity to prepare for hearings. It must be 15 s ummarily rejected .

16 Governor's Proposed Contention II 17 Proposed contention II is an allegation that the 18 Independent Design Verification Program (IDVP) does not provide 19 assurance that license commitments have been met. It is the 1

20 only proposed contention of Governor Deukmejian which is 21 followed by something other than a rewording of the contention 22 or the next contention. It is every bit as broad as any other 23 contention but differs in that it is followed by wholly 24 unsupported, unreferenced, and, in many cases, patently untrue 25 f actual allegations. Unfortunately, the Governor's proposed 26 contention II shows a singular lack of understanding of what

1 this hearing process is about. As stated supra, the Licensee 2 must convince this Board that the design of Diablo Canyon meets 3 its license conmitments. If the Governor is not convinced that 4 it does, he must come forward with reasonable specificity and 5 propose a contention which, if correct, would prove or tend to 6

pr ve therwise. As respects the IDVP, about which proposed 7

contention II is solely concerned , there is absolutely nothing 8 contained in any law, regulation, regulatory guide, standard or 9

elsewhere of concern to this Board that requires the IDVP to do, 10 or not to do, anything. The IDVP is a unique creation of the 11 Commission to assist it in its deliberations regarding 12 restoration of the Licensee's low-power license.

13 Whether the plant meets its design commitments -- not 14 the adequacy of the IDVP -- is the ultimate issue before this 15 Board. If the intervenors feel that design commitments have not 16 been met, they must make specific allegations before the Appeal 17 B ard , along with specific bases. If certain activities of the 18 IDVP are relevant to the specific allegation, then certainly 19 those activities could be properly considered by the Appeal i 20 Board. But if, as is the situation in this case, the 21 intervenors have made no specific allegations of design 22 deficiencies in the plant, whether the IDVP did or did not do 23 some thing is simply not the basis for a contention, let alone a 24 contention in and of itself.

25 ' * * .

26 * *

• 1 Governor's Proposed Contention III 2 As with proposed contention II, contention III is an 3 allega tion that the Licensee's Internal Technical Program 4 ("ITP"), as opposed to the IDVP, provides no assurance that the 5 Licensee has and will meet all license commitments for seismic 6 design. Again, no specific bases are set forth nor are any 7 i nd ividual license conmitments identified .

g As is the case with the I DVP , there is no requirement 9 to be found in the regulations requires an ITP. Whether the ITP 10 (or some other entity) did or did not do something can only have 11 meaning , as evidence, in connection with a specific allegation 12 of a deficiency in the seismic-design of Diablo Canyon.

13 Governor's Proposed Contentions IV and V 14 Proposed contentions IV and V suffer the same 15 deficiency as their predecessors. They totally fail to satisfy l 16 the requirements for an admissible contention by reason of their 17 lack of specific bases. In essence, the contentions allege that lg the Licensee (contention IV) and the I DVP (contention V) cannot 19 assure compliance with General Design Criterion-1 of Appendix A 20 to 10 C.F.R. Par t 5 0. They never refer to even a single 21 s tr u c t ur e , system, or component that is "important to safety" 22 but for which no adequate "QA/QC" program exists as a supporting 23 basis for either allegation and, as with contention II, fail to 24 grasp the role of the IDVP as defined by the Commission.

25 Co ntentions IV a nd V , like proposed contentions I, II and III 26 must be dismissed.

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1 Joint Intervenors' Proposed " Contentions" .

2 Joint Intervenors' Fropose'o conten'tioncsmuit.be -

(w 3 rejected for the same reasons as those set forth above.. '

While

,,,- , -t 5 4 the contentions are interlacedJwith conclusloen cy allegations,

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's 5 no specific f actual-bases are provided. The' or'iy additional 6

" contention" offeredl by[doint Intervenors dedls with a non-

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7 design activity, pre-operati9nal testing , wh'ich'fis clearly

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outside the scope of these hsarings in addition g to being as non- ' {

8 9 specific as all other prof fered contentions. ,

s 10 Cchclusion * 'c 11 Both the Governor's and Joint ,Intervenocht putative .

12 contentionsshouldbe'summarilyrejectydas(notcomplyingwith y' ,

s w- ,t 13 applicable regulations 'and case law. . .In addition, both the ,,.,

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14 Governor and Joint Intervenors should be distriissed from the 15 reopened hearings on design qualitydssur ance for their 16 continued refusal to submit parti ~ularized c contbotions capable

_. s 17 of being litigated. This~ Board has given bo}h ample warning and lg time to the parties to come forward with admissible contentions.

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19 Further delay is both inexcusable and extret.yly , prejudicial to ,

. j the process and the Licensee. D' [

20 \ *"

21 Respectf ully ' submitted , -3, j 22 ROBERT OHLBACH s ,

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PHILIP A. CP AN E , JR. c ' ,,

RICHAPD F4 $UCKE '"' ' '

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Pacifi9 Gas and Elect!ric Comp'any ,

24 P. o. Box 7442 SaniFrancisco, California 94120 25 ('415 ) 781-4212 m

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1 ARTHUR C. GEHR Snell & Wilmer 2 3100 Valley Center Phoenix, Arizona 85073 3 (602) 257-7288 .

s 4 BRUCE NORTON

, Norton, Burke, Berry & French, P.C.

' 5 P. O. Box 10569

, Phoenix, Ar izona 85064 Z 6 (602) 955-2446

,' Attorneys

' '7 Pacific Gas and Electric Company

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-- By

., 10 Bruce Norton 7 t' ,{ ll DATED: August 1, 1983.

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UNITED STATES OF AMERICA NUCLBAR REGULATORY COMMISSION In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docke t No. 50-27 5

) Docke t No. 50-323 Diablo Canyon Nuclear Power Plant, ) .

Units 1 and 2 )

)

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:

Judge John F. Wolf Mr. Frederick Eissler Chairman Scenic Shoceline Preservation Atomic Safety and Licensing Board Conference, Inc.

US Nuclear Regulatory Commission 4623 More Mesa Drive Washington , D.C. 20555 Santa Barbara CA 93105 Judge Glenn O. Br igh t Mrs. Sandra A. Silver Atomic Safety and Licensing Board 1760 Alisal Street US Nuclear Regulatory Commission San Luis Obispo CA 93401 Washing ton , D.C. 20555 Mr. Gordon Silver Judge Jerry R. Kline 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Washington, D.C. 20555 John Phillips, Esq.

Joel Reynolds, Esq.

Mrs. Elizabeth Apfelberg Center for Law in the Public Interest c/o Betsy Umhoffer 10951 W. Pico Blvd. - Suite 300 1493 Southwood Los Angeles CA 90064 Sa n Luis Obis po , C A 9340 1 l David F. Fleischaker, Esq.

Janice E. Kerr, Esq. P. O. Box 1178 l Public Utilities Commission Oklahoma City OK 73101 l State of California 5246 State Building Ar thur C. Gehr , Esq.

l 3 50 McAllister Street Snell & Wilmer San Francisco, CA 94102 3100 Valley Bank Center Phoenix AZ 85073

! Mrs. Raye Fleming l 1920 Mattie Road Philip A. Crane, Jr.

I Shell Beach, CA 93449 Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94120 i

i l , . __ - ._ - - . _ - .__. - _ _ _ _ . _ _ _ , . . - _ _ - _ .

Chairman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 US Nuclear Regulatory Commission Washington, D.C. 20555 Chairman .

Atomic Safety and Licensing Judge W. Reed Johnson Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 US Nuclear Regulatory Commission Washington, D.C. 20555 Secretary US Nuclear Regulatory Commission Judge John H. Buck Washington , D.C. 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Servicing US Nuclear Regulatory Commission Section Washing ton, D.C. 20555 Lawrence J. Chandler , Esq. Maurice Axelrad , Esq.

Jack R. Goldberg , Esq. Lowenstein, Newman, Reis US Nuclear Regulatory Commission and Exelrad, P.C.

Of fice of Executive Legal Director 1025 Connecticut Ave., N.W.

Washington, D.C. 20555 Washing ton , D.C. 20036 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose, CA 95125 Mr. Carl Neiberger Telegram Tribune P. O. Box 112 San Luis Obispo, CA 93402 Michael J. Strumwasser Counsel to the Attorney General 3580 Wilshire Blvd., Suite 800 Los Angeles, CA 90010 Pacific Gas and Electric Company Date: August 1, 1983