ML20024E322
| ML20024E322 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/05/1983 |
| From: | Glasspiegel H CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 8308100241 | |
| Download: ML20024E322 (37) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .
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BEFORE THE ATOM,IC SAFETY AND LICENSING BOARD o, ca In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441
)
(Perry Nuclear Power. Plant, )
Units 1 and 2) )
APPLICANTS' REPLY TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW F-I L E D B Y T H E O T H E R P A R T I E S (Issue #3)
Pursuant to 10 C.F.R. 5 2.754(a)(3), Applicants reply herein to the proposed findings of fact and conclusions of law of the other parties.1/ For consistency the reply follows the L1/' The NRC Staff's proposed findings and conclusions are in all material respects consistent with Applicants' proposed findings and conclusions. 'Accordingly, Applicants have no re-sponse to present to the Staff's proposed findings. Instead we have directed this reply to the findings and conclusions sub-(Continued Next Page) r308100241 830905 DRADOCK05000ggg -
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same subject matter format as that prescribed by the Atomic Safety and Licensing Board (the Board) for proposed findings of fact and conclusions of law.2/
Applicants do not attempt in this reply to respond to each proposed finding and conclusion of intervenors with which Ap-plicants disagree. Nor is the Board required to address ex-pressly each and every individual finding proposed by every party. See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33, 41 (1977), and cases cited therein. Where disagreements are plain, and the positions are accompanied by accurate citations to the record, for example, we have not repeated our positions, but rely on Applicants' previously submitted proposed findings and conclu-sions.3/
(Continued) mitted by Sunflower Alliance Inc. et al. (Sunflower) and Ohio Citizens for Responsible Energy (OCRE), with which we have substantial disagreements as detailed in our reply.
2/ Memorandum and Order (Concerning Scheduling), September 16, 1982, at 3; Tr. 1868-72 (Board).
3/ For purposes of this reply, Applicants adopt the abbrevi-ated titles for testimony used in Applicants' Proposed Findirc; of Fact and Conclusions of Law.
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I.
SUMMARY
The Board has given careful consideration to the proposed findings of fact and conclusions of law filed by the parties.4/
As is reflected in our discussion and resolution of the material issues of fact and law relating to Issue #3, set forth herein, we have decided to follow in this partial initial deci-sion the findings of fact and conclusions of law proposed by Applicants. The NRC Staff's proposed findings and conclusions are consistent in all material respects with those of Appli-cants; however Applicants' submission was the more detailed and complete and we have adopted it as the basis for our decision.
In contrast to Applicants' and Staff's proposed findings and conclusions, the findings submitted by Sunflower and OCRE do not completely or accurately reflect the record as a whole.
Rather than confine their proposed findings "to the material issues of fact presented on the record, with exact citations to the transcript of record and exhibits in support of each 4/ See Applicants' Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision, July 1, 1983 (Applicants PFC); Applicants' Reply to Proposed Findings of Fact and Conclusions of Law Filed by the Other Parties (Issue
- 3), August 5, 1983 (Applicants' Reply); OCRE's Proposed Find-ings of Fact and Conclusions of Law, July 11, 1983 (OCRE PFC);
Sunflower Alliance's Proposed Findings of Fact and Conclusions of Law, July 15, 1983 (Sunflower PFC); and NRC Staff's Proposed Findings of Fact and Conclusions of Law on Issue #3, July 22, 1983 (Staff PFC).
4 g
- e proposed finding," as required by 10 C.F.R. 5 2.754(c), the intervenors have chosen to rest their case largely on procedur-al grounds. The intervenors' findings contain comparatively little discussion of the extensive substantive record compiled on-Issue #3. Moreover, their findings make rather extensive reference to alleged partiality on the part of the Board and the NRC Staff witnesses which, the intervenors assert, require us to reopen the record on Issue #3.5/ For the reasons discussed in detail herein, the Board finds the intervenors' assertions of bias and an incomplete record to be misplaced.
'5/
s See, e.g. Sunflower PFC at 4 (the Board "may have appeared to serve as a foil for the Staff"); Sunflower PFC at 9 ("The Staff's testimony is not completely credible. Its analysis is superficial and at times, pointless."); Sunflower PFC at 16-17 (the Board interfered with intervenors' cross-examination,
" led" Applicants' witnesses to "self-serving conclusions,"
" seized upon a technical proceduralism," "short-circuit [ed]
cross-examination," and generally failed to conduct an impartial hearing); OCRE PFC at 3 (referencing " Staff's conclusory testimony, which went to great lengths to be protec-tive of Applicants," and calling for additional testimony from "less biased witnesses"); OCRE PFC at 19 ("most" of the Staff's testimony was protective of Applicants, reflecting an attitude that was " unnecessary," " counterproductive," and " improper.").
II. OVERVIEW OF ISSUE #3 Sunflower asserts in its proposed findings that in the Board's interpretation and application of the "promptly identi-fied and corrected" language in 10 C.F.R. Part 50, Appendix B, Criterion XVI, the Board should " rely upon the commonality of experience that 'promptly' means as quickly as humanly pos-sible.'" Sunflower PFC at 5. Sunflower argues, without cita-tion to authority, that "[t]his is the only interpretation that reasonably attaches to the phrase, in light of the focus of this regulation upon all-important safety-related equipment.
It is also the only sensible reading from a dollars-and-cents perspective." Id. at 5.
We of course are obliged to disregard the " dollars-and-cents" considerations (e.g. minimizing costs, reducing long-term outages and expensive accidents, and " staying within one's means," id. at 6) urged upon us by Sunflower; such factors are extraneous to this Board's health and safety ju-risdiction. See 10 C.F.R. S 50.57. We also reject the "as quickly as humanly possible" interpretation of Criterion XVI advanced by Sunflower. The phrase implies to us that even in-consequential nonconformances would have to be addressed imme-diately, regardless of the necessity to do so from a safety standpoint. We think the better approach is to apply the rea-sonableness test we have adopted for Criterion XVI, which 7 4- --- -y ,- , w--' vTp~yr 9i+--, _
assures that the necessary and proper safety considerations are applied in judging timeliness. See Applicants PFC at 13, 42-43.
OCRE's proposed findings would have the Board apply the Commission's General Statement of Policy and Procedure for En-forcement Actions, 47 Fed. Reg. 9987 (1982) (codified at 10 C.F.R. Part 2, Appendix C), as " suggestive interpretation on the question of whether corrective action must be prompt." See OCRE PFC at 6-8. However the issue under Criterion XVI of 10 C.F.R. Part 50, Appendix B, is not, as OCRE states it, "whether corrective action must be prompt," id. at 6 (emphasis added).
Criterion XVI plainly states that conditions adverse to quali-ty, and nonconformances, must be "promptly identified and corrected" (emphasis added). What the Board requested of the parties was any guidance as to the factors to be used in inter-preting and applying the promptness requirement. Tr.
1399-1400, 1594-99, 1869 (Board). OCRE's reliance on the Commission's enforcement policy fails to provide any guidance.
Moreover, although OCRE invokes language from 9 IV(B) of the NRC enforcement policy, suggesting that licensees should take " expeditious" and "immediate" action upon discovery of problems, the language is irrelevant since it only applies to a special category of serious violations that must be immediately reported to the NRC or for which civil penalties may be
imposed. OCRE PFC at 6-7; see 10 C.F.R. Part 2, Appendix C,
& IV(B). We are not dealing in this case with the NRC's en-
.I forcement policy, reportability problems, or civil penalties.
We reject OCRE's arguments that we interpret 10 C.F.R. Part 50, Appendix B using 10 C.F.R. Part 2, Appendix C as guidance.
OCRE's proposed findings cite Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 528-29 (1973), and Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-161, 6 A.E.C. 1003, 1010 (1973), for the proposition that " nuclear plant safety is conditional upon compliance with the Commission's i
regulations." OCRE PFC at 7. See 10 C.F.R. S 50.57(a)(3). In this context, OCRE asserts that 10 C.F.R. Part 50, Appendix B, "must have been complied with before a license can be granted."
Id. at 7-8. OCRE asserts elsewhere in its findings that Appli-cants failed to comply with 10 C.F.R. Part 50, Appendix B, Cri-l terion XVI, and that "[s]ince . . . plant safety is demon-strated by compliance with the Commission's regulations, we must conclude that Applicants have not met their burden of proof in demonstrating that unsafe conditions do not exist . . . ." OCRE PFC at 13.
Even if we were to find (which we do not) that Applicants had violated 10 C.F.R. Part 50, Appendix B, Criterion XVI, in the manner asserted by OCRE, this finding, without more, would
the manner asserted.by OCRE, this finding, without more, would not require us to find against Applicants on Issue #3. As we have stated, every nuclear plant experiences nonconformances found by utility QA programs and deficiencies noted in NRC I&E Reports; intervenors are obliged to do more in support of their QA contention than simply rehearse these findings. See Appli-cants PFC at 14 and n.29. The duty of the Board in this case is to examine the seriousness of the QA findings at Perry, and to determine from this examination whether Applicants' QA pro-gram has adequately controlled the electrical contractor. If OCRE is suggesting that there can be no noncompliances during the implementation of Applicants' QA program, as OCRE's pro-posed findings seem to be saying, we of course reject any such proposition. Neither do the cases which OCRE cites support that proposition.
In the Vermont Yankee case, after the licensee began low power operations, the Appeal Board became seriously concerned about an NRC Staff letter that it determined had been errone-ously excluded from the record by the licensing board. The i letter, included as an appendix in Vermont Yankee Nuclear Power i
Corporation (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358, 368-70 (1973), states that the applicant's written
! QA program contained substantial omissions, viz., the program lacked entire provisions addressing 13 of the 18 criteria of 10 l
l l
C.F.R. Part 50, Appendix B. The Appeal Board indicated it was
" deeply concerned over the fact that the facility operated under the temporary operating license for a protracted period i
without a satisfactory quality assurance program." Id. at 362.
However, after the applicant and the NRC Staff supplied through affidavits and documents information demonstrating that correc-tive action had been taken, the Appeal Board ruled that there was no basis to reopen the record on the quality assurance issue. ALAB-138, 6 A.E.C. at 527.p/
The facts of Vermont Yankee are in no measure similar to the facts contained on the record of this case. The former in-volved what appeared to be major omissions in the applicant's written QA program. The problems were not discussed during the licensing proceeding. The plant was constructed and in operation with no record of the status of the outstanding deficiencies. None of these factors exists in the instant case. Moreover, we note that after considering the applicant's corrective action, the Appeal Board in Vermont Yankee deter-mined without further hearings that the applicant's quality i
g/ The Maine Yankee decision cited by OCRE does not deal with quality assurance issues. The decision generally discusses the application of 10 C.F.R. S 50.57(a) to the radiological issues of that case, and is not helpful in resolving any of the material issues of fact or law presented on the record before us.
_g.
assurance program was adequate under the Commission's regulations. Thus, as we interpret Vermont Yankee, even when significant QA deficiencies are identified, an applicant can still demonstrate " compliance with the regulations" under 10 C.F.R. $ 50.57(a)(3) if it can be shown that appropriate cor-rective action has been taken. See Tr. 1625 (Williams).
Moreover, the Appeal Board has expressly ruled that all quality assurance deficiencies need not necessarily be satis-factorily resolved before operation can be authorized.
"Whether licensing can be authorized in the light of existing deficiencies obviously depends on the significance of the deficiencies." Consolidated Edison Company of New York (Indian Point Station, Unit No. 2), ALAB-188, 7 A.E.C. 323, 333-34 (1974) (rejecting the intervenor's proposition in that case that under Vermont Yankee, ALAB-124, supra, and Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2),
ALAB-128, 6 A.E.C. 399 (1973), operation cannot be authorized until all deficiencies have been resolved). For these reasons, and in the absence of any showing by OCRE that serious QA deficiencies causing unsafe conditions have occurred, let alone that there are serious deficiencies remaining uncorrected, we reject OCRE's implicit suggestion that Vermont Yankee requires us to withhold a license on the record before us.
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III. RELATIONSHIP BETWEEN CEI AND COMSTOCK Sunflower's proposed findings assert that Applicants' tes-timony " established . . . a pernicious pattern of cause and effect," in which " Applicant's ccrrective actions were perpetu-ally effected only after NRC investigative activity had taken place." Sunflower PFC at 6-7. However, the portions of the record cited by Sunflower (and the record as a whole) show a far different picture. In fact, the very QA/QC actions which Sunflower cites in its proposed findings show an active and ef-fective QA program, and none of the actions cited bears any discernible relationship to "NRC pressure."
The only examples of NRC activity cited by Sunflower are an onsite meeting in March 1982 (the exit meeting for the Staff's 1981-82 investigation, Tr. 1534 (Leidich)),. and manage-ment meetings held between the NRC and CEI in June 1982 2/
Sunflower PFC at 7. Sunflower fails to explain how these meetings are part of any " pernicious pattern of cause and effect." The record, including those portions cited by Sun-flower, do not support the claim. Indeed, the evidence strongly demonstrated that CEI's QA program was identifying and correcting problems in Comstock's program before, during, and Z/ The June 1982 meetings were also related to the 1981-82 investigation. See board Ex. 3, letter, J. Keppler (NRC) to D.
Davidson (CEI) at 2; Konklin et al. Testimony at 14.
after the Staff's 1981-82 investigation. See Applicants' PFC at 30-40. Moreover, even with respect to the NRC's 1981-82 in-vestigation, the evidence indicated that CEI immediately initi-ated appropriate corrective action with respect to each finding communicated by the NRC, in many cases before the NRC inspectors left the site. Tr. 1587, 1592-93, 1779 (Williams).
Thus, we reject as unfounded Sunflower's proposed finding that Applicants have failed "to demonstrate for any length of time, a period of QA supervision which has not been provoked by NRC regulatory activity." Sunflower PFC at 7.
For similar reasons, we reject OCRE's suggestion that there may be "a pattern in which CEI takes effective corrective action only when faced with NRC enforcement action." OCRE PFC at 9. The only two examples cited by OCRE in this regard are Applicants' corrective action in connection with the NBC's February 1978 immediate action letter, and Applicants' correc-tive action in response to the Staff's 1981-82 investigation of the electrical contractor. Id. OCRE's finding acknowledges
" effective corrective action" by CEI in these two instances.
Id. We ourselvas have concluded that CEI met, and indeed exceeded, the NRC's requirements in these two situations. See, e.g., Applicants' PFC at 16, 54-56. We can find no evidence in the record of recalcitrance on CEI's part in either instance, and OCRE cites us to none.g/ Furthermore, we heard extensive g/ The record clearly demonstrates that Applicants have a consistent record of responsiveness with the NRC. See, e.g.,
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testimony from Applicants' and Staff's witnesses concerning the implementation of Applicants' QA program in the period between the February 1978 immediate action letter and the Staffs' 1981-82 investigation. The testimony did not furnish evidence, let alone "a pattern" of evidence, showing any reluctance by CEI to take effective corrective action absent the threat of enforcement action. See pp.11-12, supra.
OCRE's findings would have us conclude that the Staff's 1981-82 electrical investigation discovered many problems of which Applicants were unaware and which should have been de-tected by Applicants' QA program. OCRE PFC at 8. To the con-trary, we find herein, based on our review of Report No. 81-19 and the relevant testimony, that the noncompliances in Report No. 81-19 were not so numerous or serious as to raise a substantial question about the effectiveness of CEI's control of Comstock or the safety of the plant. See Applicants PFC at 47-56. Moreover, the issues identified during the 1981-82 in-spections were of a type that had been previously identified within CEI's QA program. Tr. 1585-88 (Williams, Konklin).
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! (Continued) i i Applicants PFC at 29 n.63, 55-56; Tr. 1674 (Gildner) ("CEI has l been rated high in corrective action and responsiveness in all of the SALP reports and that is higher than the average in Region III by far.").
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In what can only be described as a distortion of the record, OCRE asserts that "even though CEI became concerned about the Comstock QA/QC staffing level, in' relation to craft manpower, in October 1979 (Tr. 1504), the problem was not corrected until 1982 (Tr. 1532-37)." OCRE PFC at 8. The -
transcript portions cited do support this assertion. There was extensive testimony by Applicants desc.ibing corrective action taken by CEI pricr to 1982 to assure proper Comstock QA/QC man-ning levels and appropriate QA/QC surveillance. This included stepped-up field surveillance and audits by CEI's QA/QC organi- ,
zation. See, e.g., Applicants PFC at 34-37.
The record indi-cates that although CEI was requesting Comstock to hire QA/QC i personnel in anticipation of future work, the inspector / craft ratios were satisfactory from a safety standpoint until March 1982, at which time Comstock instituted a craft manpower freeze which lasted through May 1982. Applicants PFC at 35; Tr. 1504, 1534, 1536 (Leidich). Thus, the record shows that until March
- - 1982, there was no need for Applicants to "have slowed work to l
l -a level that could be covered by the available QA/QC staff."
i See OCRE PFC at 9. When QA/QC staffing coverage became a l
l problem in March 1982, the contractor's craft staffing level was frozen until adequate inspection ratios were reestablished.
Tr. 1534, 1536 (Leidich).
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OCRE's proposed findings also ask us to take official notice for purposes of this decision of a recently issued NRC inspection report. OCRE PFC at 9. The portion of the inspec-tion report cited by OCRE indicates that as of March 1-3, 1983 (the dates of the inspection), there was a concern among some of Comstock's personnel about what appeared to be a significant electrical inspection backlog. The NRC found no noncompliances or deviations in connection with this item, but treated it as an open item in the inspection report pending assessment and comment by CEI. OCRE PFC, Attachment (NRC Inspection Report No. 50-440/83-08 (DE); 50-441/83-07 (DE)) at 12-13.
There is no need for us to take official notice of the portion of the inspection report cited by OCRE for purposes of our disposition of Issue #3. Applicants' witnesses testified in May 1983, subsequent to the NRC's March 1-3, 1983 inspection and the May 16, 1983 inspection report, that there was an in-spection backlog problem and that it was "the most significant current QA issue." Edelman/Leidich Testimony at 33. However the Board is satisfied based on Applicants' uncontradicted testimony that Applicants are taking the necessary corrective action. Id.; Applicants PFC at 44.
OCRE also suggests that Applicants' testimony on the back-log issue is not credible, citing Tr. 1540. OCRE PFC at 9.
Applicants' witness testified that in October 1982, Comstock 1
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"was making good progress on closing nonconformance reports and reducing the inspection backlog." Tr. 1540 (Leidich). This is a far cry from OCRE's characterization of the same testimony (i.e. that " Applicants claimed it [the inspection backlog] had been corrected," OCRE PFC at 9). Moreover, OCRE totally ig-nores Applicants' other testimony on the backlog issue, to which we have just adverted. We find no support for OCRE's suggestion that Applicants' testimony lacked credibility.
IV. TIMELINESS OF CORRECTIVE ACTION Sunflower has urged, without further discussion, that the Board adopt OCRE's proposed findings and conclusions relating to the timeliness of Applicants' corrective action. Sunflower PFC at 7. Although extensive testimony was presented at the hearing with respect to the timeliness question (see e.g., Ap-plicants' PFC at 40-47 and testimony cited therein), OCRE's proposed findings cite to only a single page of the transcript on this issue. OCRE PFC at 12 (citing Tr. 1164).9/ Mr.
9/ OCRE is of course free to cite to those portions of the record which OCRE believes bear on material issues of fact and law. See 10 C.F.R. 6 2.754(c). However, where contrary evi-dence is presented which is reasonable on its face and spon-sored by well-qualified witnesses, as in this case, OCRE must discuss this evidence and explain why it should not be accept-ed. Public Service Company of New Hampshire, ALAB-422, supra, 6 N.R.C. at 41. OCRE's falls far short of the mark by this standard.
J Edelman, CEI's senior project official, testified at Tr. 1164 that there were 12 nonconformances open almost four years on the project and that Applicants were working to close these out. Elsewhere Applicants testified that over 18,000 NRs have been issued in safety-related construction areas, 2000 of which have been issued in the electrical ares. Edelman/Leidich Tes-timony at 20. There is no basis to find that the 12 long-standing NRs are, from a safety standpoint, either excessive or i
serious. It is clear that CEI's management, indeed its senior management, is closely tracking these items. Tr. 1164 does not alter our conclusion, based on the complete record, that CEI's overall corrective action has been timely. See Applicants PFC at-40-47.
OCRE's proposed findings also cite an array of statistics contained in CEI's QA quarterly reports,10/ which document the number of open NRs, ARs, and CARS during various periods of the project. OCRE PFC at 10-12. The statistics are not limited to the electrical area and are therefore irrelevant to Issue
- 3.11/ In any case, the statistics cited by OCRE merely 10/ Licensing Board Ex. 2. See Applicants PFC at 22.
11/ In admitting CEI's QA quarterly reports as a Board Exhibit in this case, we expressly stated that we were not ruling that i
everything in the reports was directly relevant to Issue #3.
Tr. 1258-59 (Board). We ruled elsewhere that we would not consider QA deficiencies outside the electrical area unless the admitted evidence on Comstock suggested that such further in-(Continued Next Page)
confirm that CEI's QA program was closely tracking ope,n items.
This is the purpose of a QA program and we will not penalize Applicants for carefully tracking opor inspection items in their own QA documents. See Applicants PFC at 14. We agree with OCRE that "[t]he significance of these numbers alone is difficult to determine . . . ." OCRE PFC at 11. See Appli-cants PFC at 14, 46. Moreover, none of the portions of CEI's QA quarterly report suggests the existence of unsafe conditions. For these reasons, our review of the quarterly report statistics does not cause us to modify our determination that CEI's corrective action system has properly identified and corrected deficiencies in the electrical area. Applicants PFC at 40-47.
V. Significance of Report No. 81-19 Findings In its discussion of Report No. 81-19, Sunflower concedes that Applicants took appropriate corrective actions on NRC-identified items. Sunflower PFC at 8. We agree. See pp.
(Continued) quiry was justified. Tr. 1465 (Board); see Applicants PFC at
- 8. In light of the findings'herein that CEI exercised proper QA control of Comstock, and absent contrary indications in the quarterly reports, we conclude that the portions of the QA quarterly reports dealing with other contractors, as cited by OCRE, are irrelevant in connection with Issue #3. See S V, infra.
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11-12, supra. However Sunflower's only substantive argument relating to Report No. 81-19 is that it " identified theretofore unknown quality assurance difficulties." Sunflower PFC at 8.
This is not a new argument. We have previously concluded that the Report No. 81-19 findings do not call into serious question
! the adequacy of CEI's preexisting QA program in the electrical area. See e.g., p. 13 cupra; Applicants PFC at 53-54.12/
Sunflower also raises two essentially irrelevant points in this section of its findings. First, Sunflower asserts that we should be " disturbed" by the Staff's decision not to evaluate the Perry electrical area in its 1982 SALP Report. The Staff's 12/ Sunflower incorrectly asserts in its findings that "(a]
central Staff conclusion in prefiled testimony was that the Ap-plicant had failed historically to act promptly, but that when Applicant did respond promptly it was effective," citing page 20 of the Staff's prefiled testimony. Sunflower PFC at 9. In fact the testimony states:
In summary, the licensee has generally taken comprehensive corrective action to resolve problems identified by either the licensee, the contractor or NRC. While NRC has concluded in -
several instances that the licensee's action was not as prompt as it could or should have been, when it-has been implemented it has been effec-tive.
Konklin, et al. Testimony at 20 (emphasis added). The Staff's prefiled testimony also includes a detailed discussion of CEI's corrective action in the electrical area (see Konklin et al.
Testimony at 14-20), which Sunflower fails to cite in its pro-posed findings on Report No. 81-19. We therefore reject Sun-flower's characterizations.
{
rationale was fully explained at the hearing and we find nothing " disturbing" about it. See Applicant's PFC at 28-29 n.62. In any case the fact bears little on Issue #3. Sunflow-er's second point relates to the tabular summary of inspection findings set forth in the Konklin et al. Testimony at 7-8. Al-though we take issue with Sunflower's description of the Staff's testimony concerning the table,13/ we have not relied on the table in our disposition of Issue #3; thus, we view Sun-flower's point to be immaterial.
Sunflower spends considerable time discussing the May 18, 1983 NRC Staff memorandum (Keppler memorandum) which was distributed by Staff counsel at the commencement of the hear-ing. See Tr. 1011-24 (Board and parties). As pointed out by Sunflower, the memorandum disclosed that a " principal NRC inspector" and " investigator" fron the NRC's 1981-82 investiga-tion had suggested modifications to the Staff's prefiled testi-mony. The memorandum stated that the inspector and investiga-tor agreed that the testimony accurately reflected the record and Region III's position, but that they had disagreements with 13/ Sunflower's findings state, inter alia, that "[t]he Staff ultimately admitted that the table probably could not validly depict a trend of any sort, Tr. 1825." Sunflower PFC at 9 (emphasis added). At Tr. 1825, Witness Konklin noted that al-though the table was not the result of a statistical analysis, it was of general use in showing a five-year trend.
the tone of the testimony and whether it adequately conveyed their efforts to secure effective corrective action by Appli-cants. Id. After discussing the matter at the Region III offices, the Staff witnesses at the hearing made some of the proposed modifications and made some additional changes of their own. See Tr. 1565-66 (Staff panel); Konklin et al. Tes-timony at 12, 13, 24 and 25. Although this satisfied the in-vestigator, the inspector still did not believe that his views, which were reflected in the Keppler memorandum and attachments, were fully conveyed by the Staff's prefiled testimony. See Tr.
1013-24, 1797-98 (Board, parties). There was no suggestion that the inspector had knowledge of any material facts not known to the Staff witnesses. See Tr. 1013-15, 1018 (Cutchin).
Prior to any cross-examination, the Board stated to the intervenors that "[i]n the course of talking to the Staff's panel you should fully explore both the substantive matters mentioned; that is, whatever problems there were in getting Ap-plicants' cooperation, and also, the possibility that views of these individuals go beyond the changes in the document." Tr.
1022 (Board). We also requested Staff counsel to review the transcript of the proceeding with the inspector " ' hat if he feels personally that the testimony is not fully reflective of his views he can communicate independently with us." Tr. 1024 (Board).
o,':'.
There was extensive examination of the Staff panel by the Board and intervenors concerning the differing views of the inspector. See, e.g. Tr. 1588-91, 1691-95, 1797-1819, 1832-35 (Williams, Board, parties). The Staff's testimony made clear r
that the primary differences between the inspector and the panel related to tone and not substance.14/ The Board deter-mined through examination of the Staff panel that there is an
, established NRC procedure encouraging employees to register I'
differing professional opinions, as well as a separate Region III policy encouraging documentation of differing views with supervisors. The latter is what led to the Keppler memorandum.
I As to the former, the inspector has not filed a differing professional opinion on the matters before us. Tr. 1803-04 (Board, Williams). Moreover, the inspector did not request the opportunity to testify, and in fact indicated that he would rather not appear. Tr. 1014, 1024 (Cutchin). The cross-examination established that Mr. Williams of the Staff
! panel was extensively involved in the 1981-82 electrical inves-tigation, that he was familiar with the inspector's views, and 14/ See, e.g., Tr. 1693-94, 1801-02 (the witness's testimony that the differences were of " nuance rather than substance,"
such as choosing between words like " specific" and " isolated");
Tr. 1800 (choosing between the characterizations "several" and "most"); Tr. 1801 (using terminology that would emphasize the L completeness of the inspector's investigation). See Tr.
1799-1800 (Board).
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_ . . . . . _ _ _ . .- . . . - - _ . _ _ . = _ _ . _ _ = - . _ _ _ - . . - _ _ - ._ _-
'. 'c'.
that he was in fact a principal reviewer of Report No. 81-19.
4 See e.g., Tr. 1576-78, 1608-10, 1692-94, 1855 (Williams, 3
Konklin); Applicants PFC at 10-11. In short, there was no tes-l timony suggesting that the inspector could in any way supplement the facts presented in the Staff's voluminous inves-tigation report and during cross-examination. See Tr. 1716-17, 1752-53, 1814-15 (Board, Williams).
j .Since the time of hearing, the Board has received a copy 4
of a July 6, 1983 letter from Staff counsel, copies of which were served on all the parties. The letter transmitted a copy of a memorandum to the Board, dated June 29, 1983, from K.R.
Naidu, Reactor Inspector, Region III, in response to the l Board's invitation at Tr. 1024. (The memorandum makes clear i that Mr. Naidu is the-inspector involved in the Keppler memo- 7 randum.). Mr. Naidu states in the memorandum that his views were adequately conveyed in the Keppler memorandum. Based on his review of the Staff's oral testimony, the only clarifica-l tion Mr. Naidu wished to communicate to the Board concerned his reason for suggesting the insertion of "significant" before i " breakdown" at pp. 13 and 15 of the Staff's prefiled testimony.
j He stated that this was to conform with the statement in the Staff's cover _ letter to Report No. 81-19 containing the sama
. language.15/ In any case, at the hearing the Staff removed the i
C
- 15/ See Board Ex. 3.
4 1
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reference to " breakdown" that was contained in its prefiled l testimony, and substituted " loss of control." See Konklin et al. Testimony at 13, 25; Tr. 1565-67 (Staff panel, Cutchin).
In this situation, we are bound by the Commissions regula-tion set forth in 10 C.F.R. 5 2.720(h)(2)(i), which states:
In a proceeding in which the NRC is a party, the NRC staff will make available one or more witnesses designated by the Ex-ecutive Director for Operations for oral examination at the hearing or en deposition regarding any matter, not privileged, which is relevant to the issues in the proceed-ing. The attendance and testimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be required by the presiding officer, by sub-poena or otherwise: Provided, That the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made avail-able by the Executive Director for Operations require the attendance and tes-timony of named NRC personnel.
In light of the circumstances just described, there is no basis for us to find that there were " exceptional circumstances" suf-ficient to require the attendance and testimony of Mr. Naidu on matters relating to Issue #3. There is, by the testimony of the Staff panel and Mr. Naidu's memorandum to the Doard, nothing to indicate that Mr. Naidu "has direct personal knewledge of a material fact not known to the witnesses." Id.
(emphasis added). See Tr. 1814 (Board).
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And contrary to Sunflower's somewhat confusing arguments concerning whether the witnesses' testimony was " hearsay alone" or " hearsay corroborated merely by scintilla," Sunflower PFC at 11-12, we have no basis to question the reliability of Staff's witnesses or to exclude their testimony as hearsay.16/ The Staff's witnesses testified about matters directly within their areas of responsibility, and their testimony concerning Mr.
Naidu's views has been corroborated in all material respects by the Keppler memorandum and attachments, and by Mr. Naidu him-self through his memorandum to the Board.
Finally, Sunflower suggests in its proposed findings that "we reverse ourselves and direct the reopening of the QA con-tention for consideration of the testimony of the phantom witnesses." Sunflower PFC at 14. For the reasons just stated, 16/ Sunflower correctly observes that hearsay is generally ad-missible in administrative proceedings, including NRC proceed-ings. See Sunflower PFC at 10 (and cases cited therein). We have found the Staff's testimony to be " relevant, material, and reliable" and have therefore admitted it. See 10 C.F.R. 5 2.743(c). In Tennessee Valley Authority (Hartsville Nuclear Plant Units lA, 2A, 1B, and 23), ALAB-367, 5 N.R.C. 92 (1977),
cited by Sunflower, the Licensing Board found unreliable the testimony of a non-expert that an anonymous expert on swimming had told him that the intake pipes on a nuclear plant posed a J l potential risk to scuba divers. Id. at 120-21. Given the ear- !
marks of unrellability in that case, and facts totally dissimilar to our own, we find it inapposite. Moreover, Sun-flower has confused the question of the admissibility of hear-say evidence in administrative proceedings with the requirement that a decision be supported by reliable, probative, and substantial evidence. See 10 C.F.R. $ 2.760(c).
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we can conceive of no possible grounds for reopening.
Sunflower's "(g]eneralized assertions to the effect that 'more evidence is needed' are simply not enough to support a reopen-ing of the record." Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C.
43, 63 (1981). Although we generally have discretion under 10 C.F.R. 5 2.718(j) to "(r]eopen a proceeding for the reception of further evidence at any time prior to initial decision," we would abuse that discretion by requiring the testimony of addi-tional NRC staff witnesses absent " exceptional circumstances" (10 C.F.R. 5 2.720(h)(2)(1)), and would in any case abuse our discretion if we reopened to admit testimony that was " unduly repetitious" and " immaterial" (10 C.F.R. 5 2.743(c)), as the inspector's testimony would undoubtedly be in this case. We are now thoroughly familiar with the inspector's views, as a result of the Keppler memorandum, the inspector's own memoran-dum, the detailed testimony of his supervisors, and through our review of Report No. 81-19. Further testimony by Mr. Naidu would not aid our resolution of Issue #3. A fortiori, it would not in any likelihood cause us to reach a different result than the one we reach in this decision. Cf. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 N.R.C. 903, 995 (1981); Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1),
ALAB-462, 7 N.R.C. 320, 338 (1978).
'.'4 .
OCRE's proposed findings on the Report No. 81-19 issues begin with a series of collateral attacks on the NRC Staff which we view to be unjustified and, again, largely irrelevant.
OCRE asserts that the findings documented in the report "were not discovered through the NRC's routine inspection program."
OCRE PFC at 13. The fact is that, as OCRE concedes, most of the noncompliances were unrelated to the allegations which prompted the original investigation. The Staff identified the noncompliances as part of a wide-ranging inspection of the electrical area, which covered electrical construction and QA activities "normally covered by the routine NRC inspection pro-gram." Konklin et al. Testimony at 12; Tr. 1584 (Williams).
See Applicants PFC at 47-48. The Staff's actions as detailed in Report No. 81-19 and in testimony demonstrate that the Staff was aggressive and thorough, not complacent, as OCRE suggests.
In any case, we view " investigations" to be a vital part of the Staff's function, as does the Staff. See Konklin et al. Testi-mony at 5-6; Tr. 1582-83 (Williams). The information cited by OCRE relating to NRC inspection coverage (OCRE PFC at 14) tells us nothing about how well Applicants were controlling Comstock prior to the 1981-82 inspections. See Tr. 1219-22 (Board, Hiatt, Silberg). Moreover, OCRE's cross-examination led no-where on this point. See Tr. 1753-65 (Konklin, Board, parties).
OCRE's findings state that the Staff did not contact the individual making the original allegations before issuing Report No. 81-19. OCRE PFC at 14. However the transcript por-tions cited by OCRE indicate that the Staff did consult with the individual as the investigation progressed. Witness Williams testified that he would have to check to determine the number of times the individual was contacted. He also testified that Region III's standard policy is to check back with those making allegations to the Region. See Tr. 1569-71.
OCRE casts similar aspersions on the Staff and Applicants, in connection with the discharge of an electrical inspector at Perry during the period of the Staff's 1981-82 investigation.
See OCRE PFC at 14. The individual had claimed to the press that he had made allegations to the NRC. Applicants believed, without knowledge from the NRC and without actively seeking the information out (see Tr. 1209 (Edelman, Leidich)) that the individual may have been involved in the electrical area alle-gations. In order to be above suspicion, Applicants called Region III prior to terminating the individual, and fully dis-closed the circumstances of the individual's record falsifica-tion which was the basis for the termination. Tr. 1195-1211 (Edelman). The Staff properly considered the information and determined that a formal investigation was not required. Tr.
1839-47 (Gildner, Williams, Konklin). The individual did not
file an employment discrimination complaint with the Department of Labor. Id. In light of the complete record developed on this issue we conclude that Staff and Applicants acted appropriately.
OCRE's findings would also have us conclude that "[t]he variety of findings in a number of different areas of Comstock's activities is suggestive of a pervasive problem with that contractor." OCRE PFC at 15. We have previously discussed this point at length and have concluded otherwise.
See Applicants PFC at 47-56. The fact that the Staff chose to hold an enforcement conference with Applicants, as noted in OCRE PFC at 15-16, does not alter our view.17/ Necessarily, we also refuse to adopt the proposed finding that "the difficulties with Comstock are symptomatic of project-wide difficulties." OCRE PFC at 16.
OCRE argues that Applicants were not aware of the deficiencies uncovered in the Staff's 1981-82 investigation.
OCRE PFC at 16-17. OCRE's arguments are virtually the same as those which we have previously addressed. See, e.g., p. 13, supra.18/ For the reasons we have cited, we do not believe 17/ OCRE notes that an enforcement conference is "a prerequi-site to a possible escalated enforcement act. ton . . . . Id.
at 15. However, in this case the Staff concluded that escalated enforcement action was not necessary. See Tr. 1774 (Williams).
18/ OCRE refers to testimony by Mr. Williams that he asked Mr.
Edelman why CEI had not terminated Comstock, in light of elec-(Continued Next Page)
Report No. 81-19 reveals ignorance of significant programmatic problems, as OCRE asserts. Since we do not conclude that there were serious programmatic problems with CEI's QA control of A
Coms;cck, we r fuse to venture into other contractor areas in what would be little more than a fishing expedition. See Ap-plicants PFC at 8; n.11 supra. Moreover, even if we accepted OCRE's invitation to fish through those portions of Applicant's QA quarterly reports which OCRE cites (OCRE PFC at 17-18), we would not reopen this proceeding based on deficiencies identi-fied and tracked in those QA documents.19/
We also reject OCRE's suggestion that the Staff's witnesses were not sufficiently involved in the 1981-82 inves-tigation to provide competent testimony on matters relating to that investigation. OCRE PFC at 18. We have concluded other-wise. See pp. 22-23, supra.
(Continued) trical area problems. OCRE PFC at 17, citing Tr. 1624, 1775-76 (Williams). However, that testimony merely confirms that CEI's senior management was aware of the electrical area problems that were occurring. It does not suggest CEI was improperly controlling the problems. Neither is there any evidence that Mr. Williams or the NRC ever formally recommended termination.
19/ OCRE itself states that even after reviewing the reports it has'"no way of knowing whether CEI's management overview of QA was functioning with respect to other contractors." OCRE PFC at 18. This hardly constitutes a basis for reopening. See pp. 24-26 herein.
i
OCRE complains (wihout citation to the record) that most of the Staff's testimony was " protective of Applicants," and that "such an attitude" is " unnecessary," and " counter-productive." OCRE PFC at 19. OCRE also asserts that Staff's attitude was " improper (as the Staff should not support an ap-plication)," citing. Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LBP-79-19, 10 N.R.C. 37, modified ar.d affirmed, ALAB-577, 11 N.R.C. 18 (1980). We found the Stafi'a testimony to be objective and re-liable, and OCRE cites us to nothing in the record suggesting otherwise. Moreover, our reading of the Harris case does not change our view.20/
20/ In Harris, the licensing board became concerned subsequent to the hearing that Staff witnesses had " misled" the board by not fully disclosing the views of another inspector. The basis for this concern was a letter from the Staff to the Appeal Board, after the close of the record, advising that the inspector in question had significant disagreements with the Staff's testimony. See LBP-79-19, 10 N.R.C. at 39-40, 75-76; ALAB-577, 11 N.R.C. at 20-22; Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1,2,3 and 4),
ALAB-490, 8 N.R.C. 234, 242-44, reviewed by CLI-78-18, 8 N.R.C.
293, 294 (1978).
This case is completely distinguishable from Harris.
Here, the Staff fully disclosed the inspector's differing views prior to testimony; there was extensive examination concerning the differences of view (the Board even inquired into whether there were differing professional opinions, see CLI-78-18, 8 N.R.C. at 294); the differences in this case were matters of
" tone;" and, in any case, the inspector here reviewed the transcript and agreed that his views had been accurately presented. None of these factors existed in Harris. The Board is completely satisfied that it was not " misled" in any way by (Continued Next Page)
VI. WITHDRAWAL OF SUNFLOWER'S COUNSEL Both Sunflower and OCRE argue that Mr. Wilt's resignation as one of Sunflower's counsel warrants reopening of the hear-ing. We disagree. Both intervenors make essentially legal arguments that because of Mr. Wilt's withdrawal, the hearing must be reopened to permit additional cross-examination. How-ever, neither point to any specific areas of cross-examination which Sunflower was wrongly denied the opportunity to explore.
The proposed findings submitted by Sunflower and OCRE cite various NRC decisions, some of which held that schedule accom-modations should have been made to allow intervenors more time.21/ However, the decisions were based on the specifics of those cases. As stated by the Appeal Board in San Onofre a continuance was warranted "in the totality of the (Continued) the Staff's conduct in the case, and that any differing views were fully ventilated on the record.
21/ See, e.g., Nothern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-249, 8 A.E.C. 980 (1974);
Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 A.E.C. 986 (1974). OCRE also cites an NLRB decision, apparently the same one alluded to by OCRE at the hearing, Tr. 1725, in which the illness of respondent's counsel was held not to justify an ad-ditional continuance, where respondent failed to show how it had been handicapped by substitution of other counsel. Franks Flower Express, 219 NLRB No. 28, 37 Ad. L.2d 148 (1975).
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circumstances." ALAB-212, 7 A.E.C. at 987, 992. The " totality of the circumstances" in this proceeding have been set forth at length by Applicants, see Applicants PFC at 57-60, and totally ignored by intervenors.22/ Those circumstances do not warrant the relief sought by intervenors.
Cross-examination is not a right to be abstractly or abso-lutely applied. Sunflower was entitled only to such cross-examination as was neither argumentative, repetitious, nor cumulative. 10 C.F.R. 5 2.757(c). Sunflower's proposed findings have identified no lines of cross-examination that were excluded. It has, in short, failed to show any prejudice that it has suffered from the Board's ruling, despite opportunities at the hearing and on its proposed findings to make that showing. Such a showing is the prerequisite to the reopening sought by intervenors.23/
22/ Indeed, Sunflower (the only party allegedly prejudiced by the Board's ruling) acknowledged that "this Board demonstrated a solicitous demeanor to Sunflower as a result of Mr. Wilt's resignation . . . ." Sunflower PFC at 15.
23/ In Northern States Power Comoany (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 A.E.C. 857 (1974), the Appeal Board ruled that a licensing board had wrongfully limited an intervenor's right to cross-examination on contentions which were not his own. However, the Appeal Board declined to take remedial action, because the intervenor had failed "to identify the areas of the direct examination which he thought required.further probing, as well as to tell us the general direction that his own interrogation would have taken." See 8 A.E.C. at 868-69, 871.
The resignation of Mr. Wilt was an unfortunate development in this proceeding. However, Sunflower and OCRE have failed to show that Sunflower was actually prejudiced as a result or that the Board's handling of it was inappropriate.
VII. Miscellaneous Sunflower asserts in its proposed findings that "[t]here are numerouc examples in the record where the Board interfered with the direction of cross-examination, or elicited a conclu-sion from the experts who testified, or simply protected Staff or Applicants from relevant disclosures." Sunflower PFC at 16.
Sunflower asserts that these were " Board errors causing changes of a substantive nature to the record in this case." Id. at 17.
We have reviewed the portions of the record cited by Sunflower and do not find a basis for OCRE's claim.24/
At the hearing, the Board was obligated to keep the evi-dence and cross-examination within proper limits, as defined by Issue #3. See p. 33, supra. The Board's own examination, which was extensive, was for the purpose of asauring that all relevant and material evidence bearing on Issue #3 was fully developed. Our duty is no less.25/ See Cleveland Electric 24/ Sunflower does not tell us what " changes of a substantive nature to the record in this case" have occurred as a result of our rulings. Such a showing would of course be required to justify reopening the record. See pp. 24-26, supra.
25/ This is particularly so in this case, in light of the special circumstances of the Keppler memorandum and Mr. Wilt's withdrawal.
s ...'.
Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 N.R.C. 741, 751-52 (1977); South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 N.R.C. 1140, 1163 (1981).
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE M Ch
/
Jay E. 'lberg, P.C. I Harry H Glasspiegel Counse' for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 f Dated: August 5, 1983
. ., 9, August 5, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE 4
This is to certify that copies of the foregoing "Appli-cants' Reply to Proposed Findings of Fact and Conclusions of Law Filed by the Other Parties (Issue #3)" were served by deposit in the United States Mail, first class, postage pre-paid, this 5th day of August, 1983, to all those of the atta-ched Service List.
e rry . /au '
Harry H Cla'sspiegel DATED: August 5, 1983
\ *.' .1 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY ) 50-441
)
(Parry Nuclear Power Plant, )
Units 1 and 2) )
i SERVICE LIST Pater B. Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary i
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 .
Washington, D.C. 20555 Mr. Glenn O. Bright James M. Cutchin, IV, Esquire Atomic Safety and Licensing Board Office Of the Executive U.S. Nuclear Regulatcry Commission Legal cirector Washington, D.C. 20555 U.S. Nuclear Regulatory Commission sashington, D.C. 20555 Christine N. Kohl, Chairman Atomic Safety and Licensing Ms. Sue Hiatt Appeal Board OCRE Interim Representative U.S. Nuclear Regulatory Commission 8275 Munson Avenue Washington, D.C. '20555 Mentor, Ohio 44060 .
Dr. John H. Buck Terry J. Lodge, Esquire Atomic Safety and Licensing 824 National Bank Building Appeal Board Toledo, Ohio 43604 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Donald T. Ezzone, Esquire Assistant Prosecuting Attorney Gary J. Edles, Esquira Lake County Administration Center Atomic Safety and Licensing 105 Center Street Appeal Board Painesville, Ohio 44077 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John G. Cardinal, Esquire Prosecuting Attorney Atomic Safety and Licensing Ashtabula County Courthouse Board Panel Jefferson, Ohio 44047 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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