ML20029A313
| ML20029A313 | |
| Person / Time | |
|---|---|
| Site: | Farley  |
| Issue date: | 02/13/1991 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| CON-#191-11459 CIVP, NUDOCS 9102150182 | |
| Download: ML20029A313 (47) | |
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Nuclear regulatory canmission r;t}e.
MM M WyM14 Failure to Conply with Section 50-49 of the Ccmnission Rules Docket No.
50-348-cive ana 50-364-cive v
10CA110Nb Bilmingham, Mabama DATEi February 13, 1991 PAG 13: 1-4s i
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v q T ANN RILEY & ASSOCIATES, LTD.
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- BEFORE ' THE LUNITED-STATES NUCLEAR REGULATORY COMMISSION
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23; Ingthe-Matter of:
V-i ALABAMA POWER COMPANY
- -- Docket Nos. 50-348-CivP (5;
50-364-CivP lb
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Alleged failure to comply 7'
viith Section-50-49 of the-8
- Commission-rules M
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10-Prehearing Conference Ell -
February 13,.1991
~1'2 i Federal Courthouse'
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. Birmingham,: Alabama
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l The above entit.%d matter came on for
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-il7l EpNehear$ng' pursuant-to notice at 9:45.a.m.
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'BEFORE:
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5 52 0-JCHN H.
FRYE, III
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! 21;;m Administrative Judge-m f
325-JAMES CARPENTER h 'l, <
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Administrhtive Judge 3,
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124 PETER MORRIS i #
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' APPEARANCES:
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For Alabama Power:
4 5
JAMES J. MILLER, III 6
Balch & Bingham 7
P.O. Box 306
-8 Birmingham, AL 35201 9
and 10 DAVID A. REPKA 11 Winston & Strawn 12 1400 L Street, NW j : ' (lT 13 Washington, D.C.
20005-3502 f
14 15 For Nuclear Regulatory Commission:
16 i
l 17 EUGENE HOLLER l'
l 18 U.S. Nuclear Regulatory Commission l.
L 19 Office of Investigations 20 Washington, D.C.
20005 21 and
-22 ROBERT WEISMAN 1'
L 23 U.S.
Nuclear Regulatory Commission i
24 Office of Investigations tQ 25-Washington, D.C.
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~1 Also present:
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JAMES HANCOCK, Dalch & Bingham 4
BOB STEWART,-1.labama-Power Company 5
JAMES LUEHMAN, USNRC Staff 6
7-8 9
-10 11 12 13 14 l
15 l
16 17 l
18 19 20 21 22 23 24-25
4 1
P R O C E E D I N G S:
2 JUDGE FRYE:
Good morning.
This is a proceeding 3
before the Nuclear Regulatory Commission initiated at the 4
raquest of the Alabama Power Company as a result of the NRC 5
Staff's imposition ol' a $450,000 civil penalty for the 6
alleged failure of Alabama Power Company to comply with 7
Section 50-49 of the Commission's regulations.
This 8
particular section concerns the environmental qualification 9
of certain electrical equipment and is designed to insure that that equi.mont can function in the harsh environment of 10 t
11 a design basis accident.
12 The proceeding is being conducted by this Atomic
()
13 Safety and Licensing Board, which was appointed by the Chief 14 Judge of the Atomic Safety and Licensing Board panel.
The 15 Board consists of, on my left, James Carpenter, who holds 16 his doctorate in Chemistry and serves as an environmental 17 scientist on a full time basis with the Atomic Safety and 18 Licensing Board panel.
On my right is Doctor Peter Morris, 19 who is a physicist, formerly was a full time member of the 20 Atomic Safety and Licensing Board panel and now serves in a 21 part time capacity.
I am John H.
Frye.
I am a lawyer and 22 full time member of the Atomic Safety and Licensing Board 23 panel, and I serve as the Chair of this Board.
24 At this point I would like to ask the parties if O
25 they would introduce themselves for the record, please,
5 1
beginning with Staff.
t^
2' MR. WEISMAN:
Judge Frye, I'm Robert Weisman for 3
the Staff, and this is Eugene Holler.
4 JUDGE FRYE:
Alabama Power.
5 MR. MILLER:
Yes, I'm Jim Mille., here for Alabama 6
Power Company.
On my left is Dave Repka with the law firm 7
of Winston and Strawn, representing Alabara Power Company.
8 Jim Hancock is on his left. He is with Balch and Bingham, 9
and' Bob Stewart who is with Alabama Power Company is here as 10 a company representative.
I didn't say so, but I am with 11 the law firm of Balch and Bingham.
12 JUDGE FRYE:
Thank you.
We had in our order which l' T 13 was entored back in the first part of January, identified G'
14 six items for discussion at this prehearing conference 15 beginning with the identification of any legal issues which 16 the parties may feel can be decided in advance of the 17 hearing, the possible exploration of simplification and 18 clarification of issues, concerns about burden of proof and 19 burden of-going forward with regard to specific allegations, 20-the time frame within which the violations cited in the
'21 order are alleged to have occurred, and obviously we need to 22 set a schedule for discovery and a tentative time and place 23 for the hearing.
24 Do the parties -- I know you were conferring when 25 we came in.
Do you have a particular way in which you would
6 1
like to proceed with this particular prehearing conference
's 2
or shall we --
3 MR. MILLER:
We have no particular order.
I think 4
the Board will be pleased to learn that we have actua 3
5 talked about all of these issues.
We have resolved many of 6 ~
them, at least between ourselves.
We've got a discovery 7
schedule and we probably ought to go into more detail for 8
that, but just as an overview we have a discovery schedulo 9
and we are actually in the process -- we've exchanotS 10 document requests, exchange tentative witnres lists --
11 JUDGE FRYE:
Good.
Gcad.
12 MR. MILLER:
-- with the sense that both parties
(
13 want to convey-to the Board that neither side is being i
14 dilatory.
We are not foot-dragging.
We have a good 15' working relationship snd we anticipate proceeding as 16 smoothly as you can in the context of litigation and move 17 towards a late summer or early fall completion date of our 18 discovery.
We are at your back and call.
If you want us to 19 go over in detail what we've done, we'll be pleased to do 20 that.
21 JUDGE FRYE:
I think what we would like to do 22 initially, for our benefit, I think we'd like to hear-23-opening statements, essentially, which would give you all an 24 opportunity to summarize from the Staff's point of view what
- t'~
j 25 it is you are concerned about, put the alleged violations in i
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7 1
the context, and also have a response from Alabama Power as
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to how they view the overall thing.
I'm not talking about 3
detail, now.
I'm just talking about a broad outline.
Look 4
at the forest rather than the individual trees.
So why 5
don't we begin with that?
Mr. Weisman, do you want to go 6
firsthand?
7 MR. WEISMAN:
With your permission, Your Honor, 8
Mr. Holler and I have divided the issues, and I will let him 9
start off.
10 JUDGE FRYE:
That'd be fine.
11 MR. HOLLER:
Thank you, sir.
If the Board 12 pleases, on August 15, 1988, the Staff issued a Notice of
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13 Violation in which it alleged three violations with eight
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14 examples of failure to comply with the Commission's rules 15 regarding equipment qualifications, 10 CFR 50-49.
The 16 licensee responded to that Notice of Violation.
The Staff, 17 after having reviewed the response from the licensee,-
18 determined-that the violations should issue and the civil 19 penalty proposed for $450,000 should be imposed, and by 20 order dated August of this year did so impose that.
In 21 response to that the licensee has requested a hearing.
The 22 process now, I think is, is getting into the details of it.
23 That's more or less an overview of where we are.
It's the 24 Staff's position that in fact the violations did occur as O
25 stated in those violations and the order imposing civil
8 1
penalty is prepared to go forward with proving those alleged 2
violations.
3 JUDGE FRYE:
And the Staff views the alleged 4
violations as extensive?
5 MR. HOLLER:
That's correct, sir.
As explained in 6
our order imposing civil penalty were of a nature such to 7
result in the imposition of category C for $300,000 -- I'm 8
sorry, category A,
$300,000 civil penalty and the escalation 9
of $150,000 for a total oi $450,000 civil penalty.
10 JUDGE FRYE:
How many -- I know you've got it in 11 your papers, but just-briefly, how many pieces of equipment 12 are affected?
Do you know offhand?
f')Y 13 MR. HOLLER:
I'm not prepared-to give a total N.
14 number, no, sir.
I'd have to confer with technical staff 15 again to refresh ourselves on an absolute total number.
The
-16
. Board may recall that in response to the prehearing order wo 17 attempted to give examples of the types of equipment that T.3 were affected by the allegations, but we did not put a 19 bottom line number on it at that time.
20
-J1L1DGE FRYE:
Thank you, sir.
Mr. Miller?
I'm 21 sorry.
Is that the extent of it?
22 MR. HOLLER:
Yes, Your Honor.
23 JUDGE FRYE:
Okay.
24 MR. MILLER:
And I can be as brief in pointing'out I'
25.
a few things.
One of our principal areas cf concern, which
1 9
1 is in part reflected by the question that you asked, Judge
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Frye, is the pieces of equipment.
We contend that there is 3
no true safety significance, no actual safety significance.
4 Many of the violations, or I should have said alleged 5
violations, relate to document deficienciou and that if put 6
to the test the equipment would have performed its intended 7
function, but in a broader perspective our principal reason 8
for being here is to exercise our right to participate in 9
the-checks-and balances of the civil penalty scheme of 10 things.
We have not had the benefit of seeing the documents 11 and talking with the witnesses under oath about the way they 12 reached the conclusions that they. reached, which incidently,
'(
13 we disagree with, as you might expect.
14 By contrast, the Staff having exercised its full 15 rights to inspect us and receive all of our documents has a 16 pretty good feel for their position, and we are starting our 17 process of examining -- Now, of course, we've responded and
~181 we have a good feel for what we think -- from our 19 perspective and our view is, but we sensed and believed that 20 we are-being subjected-to an evolving standard over time 21 that the 50-49 application and interpretation-of that rulo 22 went through several permutations and innervations over time 23 and since we were one of the last to be inspected we did not 24 receive the benefit of fair treatment.
What happened to us 25 is we got inspected by 1987 standards against 1985 y
w e-
10 1
documentation and that gap in there caused us to be accused
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'2 of being one of the worst three utilities in the country.
3 One of our themes that we will play throughout the hearing 4
is that if you take what we did starting back in 1978 when 5
EQ was first actively being mentioned in that every time 6
something was said, we responded, and we have in our files 7
and we will put on evidence to show that the Staff made 8
numerous EQ base inspections of us and wrote us back saying 9
that we were in compliance.
We have one of December '84 10 that has this sentence in it, "You are in compliance with 11 50-49," and since they came in 1987 and said, "Not only are 12 you not in compliance,'but you are a category A violator and Ii 13 we're escalating ?150,000."
We soo this dislocation --
'x) 14 something has happened to us from November 30th to November 15 of 1987.
Part of the reason we are here is to soo if we can 16 satisfy ourselves about the adjustments of that.
17 It probably is premature to go into a great amount 18 of detail in the various categories and the -- but we can do 19 that, if you want.
Candidly, I think that wculd be a little 20 bit more than we need to do.
21 JUDGE FRYE:
No, the overview, not the detail.
22 One of the things that we thought the papers that 23 have-been filed presented were some legal issues, 24 principally raised by the power company some of which might 25 be amenable to a decision before we get to an evidentiary
11 1
hearing, and I wondered what the views of the parties are on 2
'that.
Do you want to proceed in that way or do you want to 3
save them for resolution at the end of the matter?
4 MR. HOLLER:
If I may,-Judge Frye, with regard to 5
the legal issues at this point. the NRC Staff has not 6
identified any.
It would seem that during discovery those 7
issues would become apparent and we would have appropriate 8
time prior to the evidentiary hearing but after discovery to 9
address those.
10 JUDGE FRYE:
Okay.
I had in mind specifically the 11 ones that were raised in the first part of the power 12 company's response which had to do with the -- Well, the V) 13 regulatory that contemplates varying levels of civil
'14 penalties must as the enforcement policy does consider 15 actual safety significance, which was one of your arguments.
16 Followed by, the modified policy does not give sufficient 17 consideration to safety significance.
Followed by, the 18 modified policy was not properly promulgated.
And followed 19 by the NOV fails to apply the modified policy properly and 20 the violation fails to establish in accordance with Section 21 2 of the modified policy that the power company clearly.
22 should have known of the-alleged violations.
23 Now, somelof those obviously, particularly the one 24 that has to do with backfit, are going to have to await the 25 completion of an evidentiary hearing, but some of them, it
i 12 1
seemed to me, might be amenable to resolution early on, but l
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2 I wanted to get the parties' view on that.
Also it seemed 3
to me they were pretty thoroughly briefed in the power 4
company's response and the Staff's imposition of the civil 5
penalty.
6 MR. MILLER:
I think that I can report that the 7
Staff and the Alabama Power Company are of one mind on the 8
legal issues and their resolution, and that is, we think it 9
would be appropriate to take some evidence, exchange some 10 paper and then come back to the Board, probably at a later 11 time, where we can sharply define them.
Fairness tells me 12 to say that we need to look at this opportunity as one for a 13 de novo presentation of our evidence.
We had an 14 opportunity starting in August of '88 when we were first 15 notified of the proposed imposition of cbril penalty for the 16 Staff and Alabama Power _ Company to exchange their views on 17 it, and now we see this hearing process as a mechanism for 18 us to take the things that we have told the Staff -- they, 19 incidently, wrote back to us their views of what we sent 20 them, evaluate the ones we think would be appropriate for 21 consideration to this Board and I can't say this for 22 certain, but it may turn out that the issues you see there 23 that we consider to be significant in November of 1988 may 24 resolve themselves over time so you don't have to be D
25 burdened with those kinds of facts.
We would anticipate i
l
13 l
1 that this' Board would make its decision based on the
(_/
2
_ evidence presented to it at the hearing without necessarily 3
relying on either what ce or the Staff said as we were 4
writing back and forth to each other.
5 JUDGE FRYE:
I understand.
6 MR. HOLLER:
I would just -- if I may, sir, I 7
would just say in response to that that it's the Staff's 8
position -- the Staff's understanding what counsel for 9
Alabama Power Company has just laid out for the Board and it 10 is Staff's intention to respond to those issues as they are 11 raised.
12 JUDGE FRYE:
Good.
While we have you here, and I
()
would say brised on that it would seem to me that we aren't 13 14 going to tal e very long with this prohoaring conference, 15 particularly given the fact that you seemed to have agreed 16 on discovery schedules and what not.
17 MR. MILLER:
We are still in the love fest part of
- 18 the --
19
( Laughter) 20 MR. MILLER:
-- when we start examining and cross 21 examining witnesses we made need the advice and wisdom of 22 the Board to see us through that.
You can believe, and it's 23 a fair characterization, that we have agreed on a nuts and 24 bolts journeyman, there are things that have to be done.
I O
E 25 have said to both Gene and Bob, "We don't lay traps and l
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pitfalls.
We're going to go out and get the work that has l'~(_-)
2 to be done, proceed in a reasonable, rational, expeditious 3
manner."
Both sides want a full record for this Board and 4
we are committed to doing that, and we think we've got a 5
schedule that will allow us to do that in a manner that is 6
' consistent with your schedule and what you would like to 7
see.
We, of course, can always benefit from your advice and 8
guidance, but we genuinely think we can proceed down that 9
path and come to some resolution and maybe still be speaking 10 to each other when it's all over with.
11 JUDGE FRYE:
Good.
One thing I would like to 12 raise with you -- I think we all three would like to raise (v~'T 13 with you while we have you here, and I'm not looking for any 14 definitive argument on the question right now, but it does 15 seem to us in looking over the papers that conceptually 16 there may be some difference between the thrust of the 17 modified policy, which Staff is enforcing and the thrust of l18.
the regulation, and by that I have in mind the fact that the 19 regulation seems to do two things, tx) first require the 20~
electrical equipment, certain electrical equipment, be t
21 environmentally qualified and second to require that a 22 record of that qualification be malatained.
Whereas, the R2 3 modified policy talks in terms of whether a utility should
(:
24' have know about the status of the electrical equipment, and i
1 25 there I think I perceive a basic difference perhaps between
1 l
15 i
i 1
the Staff and the power company in that the power company is saying the equipment was in fact quallflod so there was no 2
1 3
impact on safety.
The records may not have boon the best.-
4 Do you soo a conceptual difference there?
Are we 5
off on the wrong direction?
Could I ask Staff to address 6-that initially and then wo will come to the power company.
7 MR. REPKA:
Judge, I will take a shot at that from 8
the power company's --
9 JUDGE FRYE:
Let me got Staff first, if I may.
10 MR. WEISMAN:
Well, Your Honor, I think there are 11-a couple of conceptual differences betwoon the power company 12 and the Staff.
The first is, the power company says, "This 13 equipment would have functioned under this.
It would have
,C 14 performed its safety function under those conditions."
15 Well, the Staff does not see this proceeding as -- It 16 doesn't soo the issue in this proceeding as one of 17-operability but rather a satisfaction of 50-49.
18 JUDGE FRYE:
But-do you soo 50-49 as focusing on 19 operability or' focusing on the status of-records?
20 MR. WEISMAN:
50-49, it's kind of-a mixed 21
. question.
It's kind of a difficult issue because-it says 22 the equipment must-bo tested to show that it will function.
23 In other words, you have to have a test to give you 24 knowledge that it will function and you must have a record.
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You must have evidence of that knowledge.
25.
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16 1-The two parts in the regulation in the Staff's
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view are equally important.
The failure to do -- If you i
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fail to document your test, the Staff has no other basis to 4
know whether this test was actually done.
So, in that 5
sense, yes, the Staff views both the record and the testing i
6 part as equally important whereas the power company, I think 7
it's fair to say, is focusing on the operability in fact 8
- question, 9
JUDGE FRYE:
Let me follow up on that with you a 10 little bit.
As I understand it, Appendix C to part 2, the 11 enforcement policy applies to electrical qualification now.
12 MR. WEISMAN:
Yes, Your Honor.
[}
13 JUDGE FRYE:
And the modified policy was only 14 intended to apply to people in the status of Alabama Power 15 where you are looking back to November 30, '85 to see 16 whether on that date equipment was qualified and records 17 were kept.
18 MR. WEISMAN:
That's correct, Your Honor.
19 JUDGE FRYE:
Why is that?
20 MR. WEISMAN:
Why is that?
Before the 1985 21 deadline, the Staff or the commission issued a polic, 22 statement about how enforcement action would be taken after l
l 23 the November 30th deadline.
When the Staff went to apply 24 that policy we found that the -- a mass of the civil
, O 25 penalties were out of proportion to the normal enforcement
17 1
action.
Thus the Commission came back and issued a second
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2 policy statement relaxing how -- relaxing the civil penalty
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amounts compared to its initial policy.
I think the 4
Commission viewed environmental qualification as something 5
that deserved special attention becauce of the way the 6
industry had responded.
I don't remember exactly the day -
7
- and I apologize for that -- when the Commission first 8
decided that environmental qualification was an important 9
issue.
It was in rei nse to the UCS petition, which 10 involved both fire prcccction and environmental 11 qualification.
And I think that the Commission was somewhat
-12 frustrated at the industry's response and therefore they had
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)
13 set a deadlino of
'83.
The industry was unable to comply
-G 14 within that time frame between 1980 and 1983.
The 15 Commission then extended that deadline to November of
'85, 16 and the policy statement was intended to convey that there 17 would be no further extensions and that the Commission 18 expected the industry to comply with the regulation by 19
- November 30, 1985.
So there were special reasons to deviate 20 from the policy -- from the general policy statement in 21 Appendix C.
And as Appendix C says, in its opening
-22 paragraphs, under appropriate circumstances the Commission 23 can deviate from that policy statement.
24-JUDGE FRYE:
Yeah, I did want to get into that g-U 25 issue.
I was just curious as to why the Commission seemed l-i l
I 1
18 to-be promulgating two different sets of rules to deal with 1
k._
2 the same situation depending on when it occurred in time.
3 MR. WEISMAN:
I think that in regard to applying 4
Appendix C after the first initial round of inspections, I 5
think the Commission thought that it had made its point by 6
having this initial policy statement and then there was no 7
reasun to continue using that for subsequent environmental 8
qualification inspections that Appendix C would then be 9
appropriate for the continuing enforcement of 50-49.
10
.7UDGE FRYE:
So if I understand what you say 11 correctly, it was a perception that the fines being imposed 12 are considered for imposition were disproportion you felt in I~)
13 the sense that they were too high and the thought was -- if
'O 14 I read this correctly, and correct me if I'm wrong -- that 15 you would look to see whether Appendix C was met but you 16 would add a gloss on that to see whether on November 30, '85 17 a utility should have known that Appendix C wasn't being met 18 or that 50-49 wasn't being met.
Whereas, now, you wouldn't 19 give them the benefit of the should have known test?
Am 1 20 correct in that?
21 MR. WEISMAN:
I think there is perhaps one element 22 missing from that analysis and that is in August of 1985 23 there was a -- the Commission did issue a policy statement 24 for assessing daily civil penalties which is consistent with 7-s 25 Appendix C.
Appendix C says if the Commission determines l
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-a 19 1-that a. licensee c1carly should have known of the violation O
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2 that's one circumstance where daily civil penalties are 3
appropriate and the Commission issued a policy statement 4
- saying that that's what it was going to do.
After the fact, 5
in reconsidering that, using that policy would have resulted 6
in excessive fines.
Does that answer your question?
7 JUDGE'FRYE:
Well, I think it helps.
It was 8
something we were curious about.
We were also curious about 9
the fact that the policy statement was not issued by -- the 10-modified policy statement was not issued by the Commission 11 but by the Staff.
Does that in your view give it a 12 different status from the status of Appendix C?
It was
()
13 signed by Frank Miraglia.
14 MR. WEISMAN:
It's true that Mr. Miraglia signed 15 the letter transmitting the policy statement.
I will -- If 16 you will give me just a moment, Your Honor, to consult with 17 the staff.
It was my understanding that that policy 18 statement had been transmitted to the Commission for 19 approval, but perhaps I'm in error.
20 JUDGE FRYE:
That-may well be.
I'm not suggesting 21 that it wasn't, but I'd like to know -- I'd be curious to 22 know what its exact status was within the hierarchy.
It was 23
- not signed by Chilk for the Commission.
24 MR. WEISMAN:
That's correct, Your Honor.
O 25 JUDGE FRYE:
It was signed by the Staff.
It
. ~
20 1
wasn't even signed by the EDO for that matter.
It dropped
'(s_s 2
down a little bit more than that.
We would be interested in 3
knowing what your view is as to the precise status of it as 4
a document.
Is this like, for instance, a regulatory guide 5
issued by the Staff, which of courso doesn't bind us.
6 MR. WEISMAN:
Yes, Your Honor.
Let me inquire of 7
Mr. Luchman, and if he doesn't know the answer to that we 8
will find out and let you know just as soon as we return to 9
I am not certain, although it's my 10 understanding that that policy statement had been approved 11 by.the commission and that Mr. Miraglia was transmitting it 12 in a generic letter for the industry's information, but I 13 will --
14 JUDGE FRYE:
But there was no comment sought on it 15 before it was promulgated?
16 MR. WEISMAN:
That is correct.
17-JUDGE'FRYE:
Okay.
.Thanks.
18 MR. REpKA:
Just to address briefly some of the 11 9 questions raised by the Board on the modified policy, I 20 think from the power company's perspective there are, 21 broadly speaking, several issues we would like to explore in 22 this proceeding regarding the policy.
I have no intention 23 to frame those issue precisely right now, but I think it's 24 fair to say that one of the issues we will explore in this O
25 hearing is exactly that, the question you were just
21 1
discussing, the status of the modified policy.
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)
2 JUDGE FRYE:
Well, you've raised that issue in s-3 your response.
4 MR. REPKA:
And it clearly is not a document 5
signed and promulgated by the Commission.
Whether or not 6
there it an issue out there, whether or not it has been in 7
some way put to thn Commission and approved, whether that is 8
analogous to issuance of Appendix C, I think that's an issue 9
that will be addressed in this hearing.
10 Beyond that, getting back to some of the earlier 11 discussions, I think from the power company's position some 12 of the concerns we have about the modified policy fall n
l
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13 generally into two categories.
First, the modified policy x>
14 relates to violations that existed as of the deadline.
15 Whatever f rustrations the Staf f may have felt about the 16 relaxation of the EQ deadline, I would just say as a 17 threshold matter is irrelevant to this enforcement action.
18 We had the deadline that we had and took overy effort to 19 meet that deadline, but beyond that the modified policy 20 establishes a clearly inculd have known finding as 21 prerequisite to issuance of an EQ violation, and as Mr.
22 Miller alluded to earlier, one of our very deeply felt 23 concerns, is that EQ was an evolving area.
It was an area 24 that in 1987 much more was known about equipment 7-)
25 qualification as a technical discipline.
In addition there
22 1-was also some in the regulatory expectations, there had been
\\
2 some evolution.
In 1989, 1990, that evolution continued.
3 So we have to continually focus ourselves back on 1985 and 4
what a prudent licensee not only should have known in-1985, 5
but clearly should have known in 1985.
So that's -- That is 6
a theme I think we will be coming back to time and time 7
again in this hearing.
8 Secondly, even accepting the modified policy as in 9
some way binding, and I don't mean to concede that right 10
.now, but even accepting it,_there is a concern that under 11 50-49 there are -- I think you recognize it too -- two 3
12 different requirements.
One is the requirement that the
()
13 equipment be capable of fulfilling its function under 14 accident conditions and number two that there be adequate 15 documentation reflecting that ability.
There are.two 16 separate requirements.
They appear in different paragraphs 17 of-the regulation.
18 The modified policy as I think we understand the 19 way-it's been applied in the case of Alabama Power Company 20l equates those two, and if you have a qualification 21 documentation deficiency that's -- the assumption is made 22 that that equipment could not have functioned under accident 23 conditions.
24 JUDGE FRYE:
It seems.
cs they are saying more g-25 than that.
It seems to me that -- and maybe I'm reading
23 11 this wrong, but the way I read what they are saying is, they 2
are saying it doesn't matter whether it would have 3
functioned for purposes of 50-49.
What matters is whether 4
you knew.
5 MR. REPKA:
That's how I believe I -- I believe 6
that's how they are interpreting it also.
Not orely -- not 7
only does it not -- It's not that you needed to know that it 8
wouldn't have functioned -- I think that's something they 9
are not saying.
I think they are saying, if it's not 10 qualified, meaning the pedigree paper treil is not there, 11 then we are going to assume it would not function.
So --
12 JUDGE FRYE:
Clearly they seem to me to be --
4( )
13 maybe I'm mistaken, but they clearly to me seem to be 14 focusing on the knowledge of the power company here, not the 15
- status of the equipment itself, but the knowledge of the 16 power company and they are saying what they are concerned 17 about and what prompted the penalty was the inability, or 18 the alleged inability, of the power company to demonstrate 19
-the particular pieces of equipment that were qualified.
20 MR. REPKA:
That sounds like a fair reading of the 21 Staff's position.
I think from our position, however, the 22 knowledge of -- We, I think, can put-forward a case on many 23 of the specific items of equipment involved that they would 24 have functioned -- they would have fulfilled their safety O
~25 function and regardless of the knowledge, regardless of the 1
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-1 lack of documentation, and even the documentation issue is N-(~sl 2
subject to dispute, there is an element missing of safety 3
significance.
You know, a number of minor filed 4
deficiencies, documentation deficiencies, does that add up 5
to a $450,000 civil penalty.
In our minds it does not.
In 6
our minds it does not adequately reflect the safety 7
significance that the commission has said many times in its 8
general statement of policy and in its case law that civil 9
penalties _should be geared toward the significance of a 10 particular violation.
11 So it's been at that nexus, that relationship,.
12 think that we'll be probing in this hearing.
I 13 JUDGE FRYE:
It seems to me that there may be here
(
14 a basic difference of position, which may have an 15 evidentiary -- some rather profound evidentiary 16 ramifications, and if we accept the Staff's view of it, 17 that's going to cut out a lot of evidence that you are 18 probably going to want to offer.
19 MR. REPKA:
I think that may be fair to say.
It's 20 hard for me to really know exactly what evidence we are 21 going to put forward on each particular item of equipment, 22 and I think the case will be different on each piece of Ea equipment because the story is really different.
In some 24 cases we may have felt we had adequate documentation.
We O
25 had adequate knowledge.
We had everything in 1985 and it's i
{-
25 1
simply a difference of opinion between reasonable engineers 2
as to what was adequate documentation.
In other cases we 3
may feel that no, we didn't have documentation, but we were 4
abic to subsequently show that thorn was no safety 5
significance to that.
The impacts and the ramifications of 6
different showings on different issues will lead to 7
different conclusions.
8 MR. MILLER:
Just picking up on one thing that you 9
mention, Judge Prye, that I think is going to end up being 10 an important issue and that is, as we describe it, the level 11 of documentation required.
Staff appears to be concerned 12 about the state of knowledge of Alabama Power Company.
Does 13 it know that its equipment will perform their intended
(
14 function, but what Staff then does, it
.ays, "I'm going to 15 make my conclusion about the state of Alabama Power 16 Company's knowledge by looking at this piece of paper, and 17 if this piece of paper doesn't say it, I'll reject anything 18 that Alabama Power Company says as proving their knowledge."
19.
Our position -- and the Board can expect some pretty good 20 testimony on that point.-- is that we will have people with 21 requisite qualifications, experience, background, training 22 and ability to say, "I can look at this file and I can tell 23 you that it's qualified."
Whereas, and again, I'm not 24 speaking for them, but we anticipate them saying, "Oh, no. I O
25 look at this piece of paper and I say it's not."
And that's i
7 26 1
hence our overview or level of documentation.
Just what 10
\\msb
'2 kinds of pieces of paper do you have to have to demonstrate 3
to the auditor that you have knowledge, which incidently, we 4
knew we had all along.
That's tying it in to what I said 5
earlier about there's no safety cign'.ficance.
If the 6
request is knowledge, we knew we had the knowledge, but if 7
the request is knowledge on paper then that brings with it 8
witness after witness and line of testimony after line of 9'
testimony that says, "I say it is," and they_say, "Oh, no, 10 it's not, " and that is the guidance that we need from the 11 Board.
The modified enforcement policy has other little 12 pieces in it that will become important to us later and
-()
13 would probably be just more detailed than we can all stand 14' to go into it item by item, but you can see how that's 15 developing.
16 The state of knowledge is going to be an issue.
17 We say We'have it.
They say we didn't.
The way you resolvo 18 it is to put on the evidence and take your decision.
19 JUDGE FRYE:
Surely.
Surely.
Do you see --
20 Coming back to my original questions of the Staff -- do you 21-see a conceptual problem with 50-49 focusing on the status 22 of hardware as opposed to the status of-knowledge or not?
23 MR. MILLER:
Well, fairness compels me to say I 24 see a lot of conceptual problems with the modified O
They have built an unusual enforcement
27 1
vehicle and you will hear us talking in later terms about
[
2 how difficult it is to make this enforcement vehicle squaro 3
with the root part of what you described here today as one 4
of the thirgs we'll talk about and others are how they've 5
enforced.
5 rough the process of inr,eections.
It seems to 6
expand and contract as they go from plant to plant and we 7
anticipate that we will have an opportunity to discuss, but 8
to be fair we have not had the full evaluation and 9
cxamination of their internal documents that we think will 10 be helpful to us in-that regard, and if it turns out that 11 they're not, then you don't have to be burdened with that 12 issue.
That's what I meant when I said we see this as a
()
13 trial de novo that things that have gone on in the past may 14 not necessarily frame precisely what we will ask this Board 15 to do.
16 JUDGE FRYE:
I see.
Mr. Repka?
17 MR. REPKA:
One other aspect of that issue, and I 18 just returned to this point, but if the Staff's concern is 19 our knowledge of whether the equipment would operate in 20 1985, that really goes to the issue of whether or nou there 21 was a violation.
However, undcr the modified policy, even 22 assuming a violation in that sense existed, in order for an 23 enforcement action to be justified under the n odified 24 policy, it still needs to be something that we clearly a
25 should have known of and that goes -- that's important to
28 1
separate out what knowledge of the ability
.o perform safety 2
fuactions versus equipment qualifications, what we clearly 3
should have known of, and this is what Mr. Hiller in 4
referring to about the contracting and expansions.
It's 5
really one of evolving knowledge.
In 1985, for examplo, 6
licensees did not look inside equipment and look at picco 7
parts.
It was typically not dono, but by 1987, by 1989, by 8
1990, it is done, and wo are just afraid that that type of 9
ovolving practico is being held against us, and that's where 10 the " clearly snould have known" comes in.
11 JUDGE FRYE Let me direct this to Staff.
In 12 there any -- and I take it that there isn't from what I've
()
13 read, but that there was no difference of opinion betwoon 14 the parties with regard to the fact that we are looking an 15 things as they existed on November 30,
'85, not things as 16 they might exist in some point in the future?
17 MR. WEISMAN:
- Well, 18 JUDGE FRYE I realize that you are obviously 19 going to have differences of opinion about how that should 20 be interpreted and about what in fact you're doing, but just 21 as a general proposition you are looking back to November 22 30, '85 and saying, "This ic what they should have known on 23 that date."
24 MR. WEISMAN:
That is correct, Your Honor.
~
25 JUDGE FRYE And trying to limit that to that date
29 1
and not lot it bo influenced by things that might havo 2
occurred subsequent to that.
3 hR. WEISMAN:
Oh, yes, Your Honor.
You know, no 4
to whether or not pcrticular components woro being broken 5
down then, I would have to leave that to the Staff's 6
witnesses to establish for you.
7 JUDGE TRYE Suro.
8 MR. WEISMAN:
One point I would liko to emphnoizo g
9 is that if the Staff had thought that those components woro 10 in fact inoperable, if the Staff had boon convinced of that, 11 the Staff would have taken a different action -- would 12 probably have taken some immediato action do not think s
()
13 that 50-49 requiron operability.
Text speco requiro 14 operability.
50-49 requiron something beyond operability.
15 It requires documentoo knowledge, and I think that wo just 16 have a different -- the power company and the Staff have a 17 different opinion of what the regulation means.
18 JUDGE FRYE But doesn't it also require 19 operability?
It may require knowledge too.
I'm not 20 quarroling with you on that,. but it acomo to me --
21 Mk. WEISMAN>
It requires tonting to show that the 22 systems will function in a harsh environment.
23 JUDGE PRYE:
It says, "Each item of electrical 24 equipment important to safety must be qualified."
O 25 MR. WEISMAN:
Must be qualified.
What is
20 1
qualification?
Qualification is testing or --
2 JUDGE FRYEt It specifies the ways in which it is 3
qualified.
l 4
MR. WEISMAN And then specifies what 5
qualification is.
But qualification, it's under controlled 6
conditions showing that the equipment is going to work under 7
those conditions.
And there is a difference betwoon that 8
and text spec operability.
Technical specification 9
operability requires that a cocponent perform its intendsd 10 safety function.
It may not necessarily meet its rated --
l 11
-itu nameplate performance specifications, but it may still 12 be able to satisfy the safety functions set forth in the 13 FSAR for that particular ploco of equipment.
Qualification 14 says you must have documctatation that shows that the 15 component will perform at a particular level under specified 16 conditions if -- and a power company might be able to show a 17 component operable after the fact whereas it can not show a la qualification after the fact.
I think that's the Staff's 19 position.
20 JUDGE FRYE:
As of that date they had to be able 21 to show qualification.
22 MR. WEISMAN That's correct.
If I can, maybe I 23 can answer some of the questions about the policy statement.
24 I'm informed that the Staff recommended to the Commission O.
25 that the policy statements be issued with a generic letter
31 1
for two reasons, the first reason being it was the temporary
. (^)
(/
2 modification to the general enforcement policy.
It would 3
only be offective for one round of inspections, therefore, I
4 modifying Appendix C was unnecessary because Appendix C l
1 5
would have to be changed back.
The second reason was, in 6
order to inform the industry of the policy expeditiously and 7
that the Commission approved the policy and then authorized B
the Staff to send it out using the generic letter.
The 9
Offico of Nuclear Reactor Regulation is the office that
-10 sends out the generic letters, generic bulletins, so Mr.
11.
Miraglia signed a lotter transmitting the policy.
12 JUDGE FRYEt Dut it was comothing that was
()
13 specifically approved by the Commission?
14 MR. WEISMAN Yes, sir.
15 MR. MORRIS:
I'd like to observo that we hro 16 pleased with the attitudo of the parties to proceed without 17 dilatoriness.
As a non-lawyer, however, I don't know what's 18 involved in this particular caso in the discovery and I just 19 wonder if you could quickly tell me why you think it will 20 take six or eight months.
21 MR. WEISMAN:
In the Staff's view there aro 22 numerous technical issues and there are going to be very 23 many documents for both the power company and the Staff to 24 review.
We want to croato a complete record for the Board 25 to laako a decision on and in order to depose the witnessos, l
u... m
32 1
it will take on tho order of wooks.
We have to preparo for 2
those depositions by reviewing the documents, and after the 3
depositions we may find that wo nood an extra deposition.
4 We nood an extra document to fill in a hole hero or a holo 5
thoro no that tho Board has a completo record.
According 6
schedules, those things are tino consuming.
It's liko 7
setting up --
D JUDGE FRYE llow n.any witnessos do you anticipato 9
deposing?
10 MR. WEISMAN:
Wo have a list of witnonses.
It Il sooms to no Staff witnessos --
12 MR. MILLER:
I can help.
We have already
(~')
13 cxchanged witnoon lists, tentativo.
We havo 12 on ouro and V
14 they havo 9 on theirs, and I might just add a very pragmatic 15 reason is that we've got a plant to run and we have an 16 outago coming un.
We just got out of an outago in the fall 17 and wo have another one coming up this opring.
It just-10 presents a practical problem when the same people that you 19 nood to como give their testimony are also involved in the 20 outago.
It might help the Board to know that wo sat down --
21 I guess it was about the first wook in January and overybody 22 got:out their calendars and we sort of thought through -- my 23 description is, the nuts and batta of things that have to bo 24 done.
We exchange paper, review the paper, identify the 7-s U
25 witnessos, and we came up with a time table that we aro just l
i
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rioceeding down.
We've got some milestones we've got to 4
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moet and would anticipato at some point giving the Board a 3
progress report of how we are, what we've dono and what wo 4
think we're going to accomplish betwoon the next parlod and, 5
Judge Morris, I'll toll you that I've boon a lawyer for 14 6
years and things always scom to tako longer than they are 7
supposed to and we really are committed to do the best we 8
can, but this represents the best judgment of the people who 9
know the issue about as well as it can be known, and wo aro 10 not being dilatory, it's just going to tako some timo.
11 MR. MORRIS:
Thank you.
With respect to 12 consideration of safoty significance, is there a differenco
()
13 in viewing this in the context of 50-49 as opposed to how 14 largo a civil penalty should bo?
15 MR. WEISMAN:
Well, lot no -- Lot no give an 16 answer.
50-49 only applies to equipment that is important 17 to safety by definition.
It is equipment that is 18 identified by a power company as being important to safety.
19 I think then, as the Commission said in the policy 20-statomont, safety significance is almost built-in to the 21 regulation.
I'm not sure that I'm addressing your question.
22 MR. MORRIS:
Well, I was looking at the other and
. 23 of the question.
Mostly I was more curious as to what 24 extent the safety significance affects the amount of the O
25 fino?
_. ~. - _ _ _ _. _. _-
34 1
MR. WEISMAN:
Well, that's something that I think 2
the Commission tried to explain in the policy statomont, the 3
idea being that with only a few components involved there is 4
only a potential for affecting a few, a small number of 5
systems.
So in the event of -- In case there were an event 6
it's likely that many other systems would function in that 7
onvironmont and thoro would be lessor safety significance.
8 Now, with a larger number of components, that probability 9
begins to drop a little bit and with still larger numbers of 10 components, thoro is a probability that -- thoro remains the 11 possibility that one of those systems may not function in 12 that harsh environment and thero could bo some affect on 13 public health and safety..
I think -- So, safoty 14 significance then is factored in that way, by saying, "What 15 is the probability?
Is it going to be more likely with 16 greator numbers of components, all of which aren't by 17 definition important to safety."
18 MR. MORRIS:
Well, lot no take it one stop further 19 and ask, is safety significanco considered in the decision 20 as whether to escalate or mitigato the civil penalty?
21 MR. WEISMAN Your Honor, in this caso the factors 22 are -- Let's soo -- identification and proper reporting, 23 best offorts to satisfy those -- satisfy the regulations in 24 the deadlino, correctivo actions and the duration.
O 25 Escalation and mitigation is usually not -- Escalation and
35 1
mitigation does not take into account safety significanco 2
por so.
That's already built into the level of the 3
violation.
And that's also similar to the general 4
onforcement policy where identification and proper 5
reporting, corrective action, prior notico of a potential 6
problem, the duration of the violation and multiple 7
occurrences.
Those are the factors that the Staff uses to 8
ovaluato escalation and mitigation while safety significance 9
is more in the severity level.
That's where safety 10 significanco is taken 1;.to account.
11 So, all right, in that safety significance --
12 safety significance affects the amount of the penalty by
()
13 being factored into what category is this violation in and 14 then escalation and mitigation -- and that gives you a base, 15 and then escalation and mitigation are other factors.
16 MR. MORRIS Thank you.
Would the power company 17 care to address this?
18 MR. REPKA:
Yes, I would just say at the start, I 19 don't think we have any issue over the regulation itself.
20 We recognize the importance to safety of compliance with 50-21 49.
I think that can be taken as a given.
I think whero 22 the issue of safety significance comes in is in application 23 of the modified enforcement policy and it's -- the 24 comparison of that policy to the end result of $450,000, 25 where we fool that safety significance hac not boon
l L
36 1
adequatoly added up to a $450,000 civil penalty.
2 Now, I do not disagroo with what Mr. Weisman said.
4 -
3 As I understand the policy significanco as to be considered 4-in the severity levol or the severity category determination 5
and it's not included in the escalation and mitigation 6
factors.
Where wo find an issue is in the severity 7
category.
In determining the severity category, the Staff 8
has mado a generic dotormination of safety significanco 9
based upon an equation of unqualified equipment.
By lo defining qualification to include, " operability plus 11 documentation", that assumption in addition to the 12 assumption of the number of componentu if that didn't mean j )
13 safety significance.
Those kinds of generic dotorminations 14 load to the result where wo think safety significance has IS not been adequately considorod when you compero that to what I
16 really happened in those individual casos.
17 In addition there is ar. aspect of the modified 18 onforcement policy that would allow, wo think, the Staff to 19 more appropriately consider safety significance and that's -
20
- in Section 3 of the modified policy there is a provision 21 name for those violations that are not significant enough to 22 warrant escalating an enforcement action, and I believo that L
23 betwoon the' power company and the Staff, we have a 24 difference of opinion on how that safety significanco O-25 exception has boon applied in our case.
We fool that l
l 1
1.-
. _ _ _ ~ - -, _ _ _. _., _.., _, _.,. _ _ _,
T 37 1
exception in many of the cases.
Many of the items of 2
equipment involved hero could have buon applied to noro 3
fairly consider safety significanco.
4 MR. MORRIS:
Thank you.
5 JUDGE FRYEt I think that probably completos the 6
general points we wanted to discuss with you.
I would tako 7
it from what you have said that really -- I think we'd like 8
to know what your discovery schedulo looks like at this 9
point in some detail and we can talk about a tentative timo 10 and place for hearing, or another prohoaring if necessary.
11 But I don't tako it that it's-necessary to discuss the other 12 points at this point.
They may be premature is what I'm
()
13 getting at.
14 MR. MILLER:
It might be prematuro.
Dave and Gono 15 have worked out some datos and it might be the right thing 16 to do to lot them discuss it with you.
17 JUDGE FRYEt Sure.
s 18 MR. MILLER:
Thoro may be some event that noods 4
19 changing.
20 MR. HOLLER:
Thank you, Judge Fryo.
With regard 21 to the discovery schedulo, I think what wo would like to 22 propose to the Board that wo-would completo discovery 23 approximately on August 15th.
That would coincide with 24 providing the Board with a final report on the progross of 25 discovery.
During the process, approximately April 15th and i
38 1
June 17th, we would provide the Board with a progress report O
2 and discussions with council for licenseos.
Wo datormined 3
those particular timos would coincide with significant 4
ovents occurring in the discovery schedulo so wo would have 5
something meaningful to report to the Board.
6 JUDGE FRYE:
Betwoon now and the 15th of August, 7
it's essentially depositions and document production, I 8
gather.
9 MR. HOLLER:
Yes, sir, it would consist of both 10-parties, as we mentioned earlier, have exchanged tentativo 11 witness lists.
We've also exchanged our first round of 12 document requests.
Our responses to those are due a wook
()
13 from thir Friday, which wo will provide those.
It providos 14 for supplemental, a request for discovery and response to 15 those and for that first round of depositions and then 16 subsequent depositions if necessary and it also provides 17 time to account for vacations, employees who would not be 18 available in order to depose them and complete that by, wo 19 hopo -- within an optimistic schedule by August 15, 20 recognizing the various pitfalls.
21 JUDGE FRYE:
Do I recall correctly that the Staff 22 had 9 witnessos identified at this point?
23 MR. HOLLER:
In our initial list we have indicated 24 9 potential witnesses.
-s V
25 JUDGE FRYE:
And power company 12 at this point.
39 1
MR. HOLLER:
If I may point out, Judge Fryo, wo 2
have both indicated that may change as we got into the 3
discovery schedule with either a dolotion or addition.
4 JUDGE FRYE:
Aro they largely located in the aron 5
or are they spread out?
6 MR. HOLLER:
I will speak for the Staff's 7
witnesses.
A number of the witnesses are located at 8
headquarters.
We have one potential witness that is a 9
resident inspector at the Brunswick Plant and we have 10 another potential witness that has been transferred to 11 another region, who is currently in Region 4.
12 JUDGE FRYE:
So generally they are-not here.
()
13 MR. HOLLER:
Region 2 is, of courso, where the 14 resident inspector -- We have a number of inspectors.
This 15 inspection had -- was began and issued the results of the 16 inspection.
It was --
17 JUDGE FRYE:
Sure.
So you will have a number from 18 Region 2 and headquarters and one or two elsewhere, I 19 gather?
20 MR. HOLLER:
That's correct.
I can give you a 21 precise breakdown --
22 JUDGE FRYE:
That's all right.
I was just trying 23 to get a feel for it.
I'm leading up to where --
24 MR. REPKA:
Our witnesses are fairly far flung.
t 25 We had some from Dothan.
Some from Birmingham.
We also
l l
40 I
have contractors and consultants in Washington, Boston, San
/
')
xI 2
Francisco.
So our witnesses are fairly far flung.
3 Just to add to what you've already said about the 4
discovery schedule.
We have set amongst ourselves a fairly 5
specific schedule with certain weeks designated for 6
depositions.
We haven't proposed submitting thoso dates to 7
you simply because we wanted to retain the flexibility and 8
not have to cother you every time we needed to change or 9
enter a date, but of course, we would report on our progress 10 through approximately overy two months status reports.
11 JUDGE FRYE Good.
Do you anticipate at this 12 point that these witnesses will be presented singly or in 7.s 13 panels?
14 MR. IlOLLER:
Speaking for Staff, we had 15 anticipated panels which in the prepared teatimony -- that 16 would be prepared and the panel would be available for cross 17 examination.
18 JUDGE FRYE:
And you are thinking about prepared 19 testimony.
Does the power company want prepared testimony?
20 MR. REPKA:
We are thinking of prepared pre-filed 21 direct testimony.
I don't think we've really given much 22 thought to the issue of panels versus singly because I think 23 we haven't given much thought to how we will proceed in the 24 hearing, whether it will be item of equipment by item of g3
~
25 equipment or whatever.
Just speculating, that seems like a c.
41 l
1 good approach and perhaps we put panels up framed by the t
(<-
2 different item of equipment because the stories, I bol',v t, 3
will be a little different for each component involved.
4 JUDGE PRYEt I do want to pick up one thing that I 5
identified in the order sotting up the prohoaring 6
conference.
Sono of the issues that the power company 7
raised in its responso in the Notico of Violation raised a 8
question in my mind as to whether the power company would 9
have the initial burden of going forward with ovidence on 10 those issues.
Have you all addressed that sort of thing or 11 have you not gotton into that level of detail yet?
12 MR. REPKA We've discussed amongst oursolves the 13 burden of proof.
I think it is fair to say that we haven't
(}
14 reached a complete mooting of the minds.
15 JUDGE FRYE:
Woll, just hold that issuo until you 16 got farther into it.
It may or may not becomo a problem.
17 In particular it struck me that maybe failuro of staff to 18 deal with -- or to comply with or allegod failure to comply 39 with the backfit rule might be such an issue and there are 20 other littlo ones that soom to be moshod in como of the 21' arguments with regard to specific pieces.of equipment, you 22 know, where the power company says, "Well, wo did have 23 this," and that sort of thing.
So, those I would suspect 24 would probably not be a great problem at all.
t\\/
25 okay. So from what you say about the location of
42 1
witnesses -- Well, lot me ask it in terms of a question.
IO V
2 Where do you think this hearing should be hold?
Should it 3
bo here?
Should it be in Washington?
What's your 4
proforencei 5
MR. MILLER:
We've always assumed it would be in 6
7 JUDGE TRYE In Washington.
Does Staff have a 8
fooling?
9 MR. HOLLER:
Staff has a fooling ~~ of courso, 10 Staff recognizes that direct guidance from the Commission 11 regarding this, but taking a look at the guidance the 12 Commission has provided, Appendix A part 2, with initial
')
13 licensing procondings in which the policy thoro stated that a
14 at least the initial evidentiary hearings would be contact 15 in the locale; however, the Commission also recognizes in 16 that statomont that duo consideration should be given to the 17 convenience of the parties.
18 With that in mind, the Staff views that this is an 19 enforcement matter and the hearing is a public hohring and 20 that taking place in a location that is moet accessible to 21 the public most concerned with this would scom to -- but we 22 would not be adverse, if the Board so chooses not to do.
23 JUDGE FRYE:
So you want to go to Dothan, I take 24 it.
(7,)
25 MR. HOLLER:
Perhaps I can suggest at the Board's
43 1
consideration, part of the hearing at least beginning there 2
and then taking place at other placon, adjourning and then 3
continuing in the Washington area.
4 JUDGE FRYEt flow many wooks do you think this 5
would likely go?
I realize it's too early to toll with any 6
degroo of --
7 MR. MILLER In Dothan or in Washington?
8 (Laughter) 9 MR. MILLER:
May I suggest -- Would it be g
10 appropriato, and I hope it is, that perhaps we could talk 11 some more on this issue.
12 JUDGE FRYEt Surely.
Surely.
13 MR. MILLER I don't think we have had a full 14 discussion of it amongst ourselves and wo may be able to at 15 least como up with a joint recommendation.
Of course, it's 16 not binding.
I'm going to take them down to Dothan July 17 15th and lot them walk around in the plant.
18 MR. !!OLLERt If the Board please, if I may, Judge 19 Fryo, my colleague, Mr. Weisman, reminds me that our l
20 regional public affairs officer has informed us, the 21 Regional Public Affairs Office in Region 2 that ho has 22 received one or two inquiros.
We haven't had time to 23 discuss with him the nature of those or the extent of them.
24 JUDGE FRYE From the press or from the general O
25 public?
44 1
HR. Il0LLER:
As I understand, they were from the N,s press.
We may got some, my information is they work with
^
3 the pross.
4 JUDGE FRYEt And do you have a fooling as to 5
whethor this is likely to go 2, 3,
4, 5 wooks?
6 MR. HOLLER:
I really don't know at this timo.
7 JUDGE FRYE Well, we would then, based on that, 8
be ready for another prohoaring if necessary, I would guess 9
in August or September, with the evidentiary hearing 10 beginning shortly thereafter unless you dotormine that there 11 are certain legal issues you want to submit in advanco of 12 the evidentiary hearing.
13 MR. IlOLLER:
Also, I think if you would allow a
(}
14 certain amount of timo for the preparation of the profiled 15 testimony --
16 MR. MILLER:
Wo have talked about it amongst 17 ourselves as we. would try to finish our discovery in August 18 and give the Board a final report that's dono, have a timo 19 period for motions and resolutions, legal issues, have a 20 timo period for preparation of filing of direct testimony, 21 set a hearing-and start our cross examination.
22 JUDGE FRYE t Which would be sometime in the fall?
23 MR. MILLER:
I would think under our most 24 optimistic, it will be late fall before we can realistically O
25 suggest to you that we could.
I
45 1
JUDGE TRYEt And since you want to preparo your 2
testimony in advance, I take it you don't soo any 3
credibility issues here.
4 MR. MILLER:
We still got to cross examine?
5 JUDGE FRYEt Oh, yes, sure.
You got to cross 6
oxamination.
7 MR. MILLERt If someone who is not qualified to 8
render an opinion does so --
9 JUDGE FRYEt Oh, yes, he would have an opportunity 10 to challengo qualifications of experts as well as their 11 conclusions.
12 Anything else we should take up?
)
(No response) 13 14 MR. HOLLER:
Quickly referring to the Board's 15 prehearing order, it would appear that we've covered the 16 matters that wo were to bring out.
17 JUDGE FRYE:
I think we've given you the 18 indication of como of the issues that we are concerned about 19 and we hope you will focus on as we move further into the 20 process.
21.
We thank you very much.
The prohoaring is 22 adjourned and we will look forward to your progress reports 23 on April 15 and June 15 with regard to discovery.
24 (Whereupon, the prehearitig was adjourned at 10:45 O
25 a.m.)
1
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REPORTER'S CERTIFICATE This is to certify that the attached proceed-ings before the United States Nuclear Regulatory Commission in the matter oft NAME OF PROCEEDINC: Alabann Itwr DOCKET NUMBER:
50-348-CivP PLACE OF PROCEEDINC: Birndujham, Alalunn were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission taken by me and thereafter reduced to typewriting by me or under the direction of the court report-ing company, and that the transcript is a true and accurate record of the foregoing proceedings.
h Official Reporter Ann Riley & Associates, Ltd.
'( LJ
_.,.,