ML20035B542
| ML20035B542 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/22/1993 |
| From: | Marco C, Marian Zobler NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#293-13772 CPA, NUDOCS 9304020131 | |
| Download: ML20035B542 (36) | |
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l UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION i
'93 tir? 22 P4 :08 i
BEFORE THE COMMISSION 1
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In the Matter of
)
Docket No. 50-446-CPA i
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TEXAS UTILITIES ELECTRIC
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Construction Permit Amendment l
COMPANY
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(Comanche Peak Steam Electric
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i Station, Unit 2)
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NRC STAFF'S REPLY TO PETITIONERS' MOTION TO STAY ISSUANCE OF FULL POWER LICENSE r
i i
Catherine L. Marco i
Counsel for NRC Staff Marian L. Zobler Counsel for NRC Staff f
r March 22,1993 i
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UNITED STATES OF AMERICA' L,-
NUCLEAR REGULATORY COMMISSION
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BEFORE THE COMMISSION c
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.ns In the Matter of
)
Docket No. 50-446-CPA
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amendment COMPANY
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
NRC STAFF'S REPLY TO PETITIONERS' MOTION TO STAY ISSUANCE OF FULL POWER LICENSE r
Catherine L. Marco Counsel for NRC Staff Marian L. Zobler Counsel for NRC Staff
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March 22,1993 i
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9304020131 930322 J50 f PDR ADOCK 05000446 O
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'I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
(
In the Matter of
)
Docket No. 50-446-CPA 3
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amendment COMPANY
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
NRC STAFF'S REPLY TO PETITIONERS' MOTION TO STAY ISSUANCE OF FULL POWER LICENSE i
Catherine L. Marco Counsel for NRC Staff -
l Marian L. Zobler Counsel for NRC Staff March 22,1993 i
i I
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-i-TABLE OF CONTENTS EsRC TABLE OF AUTHORITIES ii INTRODUCTION....................................... 1 P
BACKGROUND....................................... 2 1
DIS CU S SI ON......................................... 3 A.
The Petitioners, as Non-Parties, Cannot
. Avail Themselves of 10 C.F.R. f 2.788.....................
3 B.
The Petitioners' Characterization of Their Request As Falling Under 10 C.F.R. 6 2.788 I s I n correct........................................ 3 i
i C.
The Petitioners Fail to Satisfy the Four Stay Factors of 10 C.F.R. f 2.788.........................
4-1.
The Petitioners Fail to Demonstrate Irreparable Harm................................ 5 2.
The Petitioners Fail to Demonstrate That They Are Likely to Prevail on the Merits of Their Appeal........................... 9 CONCLUSION
....................................16 i
P O
'I i
-ii-j TABLE OF AUTTIORITIES i
Page CASES l
Brooks v. Atomic Energy Commission,476 F.2d 924 (D.C. Cir.1973) 6 BP1 v. Atomic Energy Commission,502 F.2d 424 (D.C.
Cir.1974) 7 F'orida Wildhfe Federation v. Goldschmidt,611 F.2d 347 (5th Cir.1980).................................... 8 Friends of the Eanh v. Bergland, 576 F.2d 1377 (9th Ci r. 19 7 8).........................................
8 Sholly v. U.S. Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir.1980), vacated and remanded, 459 U.S.1194 vacated and remanded as moot, 706 F.2d 1229 (D.C. Cir. 1983)............................... 6 Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir.1958) 9 ADMINIDTR ATIVE DECISIONS j
f_or.. mission:
Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27.14 NRC 795 (1981)...............
5, 9, 11 Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units I and 2), CLI-86-8,23 NRC 241 6 986) 8 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-85-14,22 NRC 177 (1985)
....................................15 Public Service Co. ofNew Hampshire (Seabrook Station, Units I and 2), CLI-90-3,31 NRC 219 (1990)
..................................5,16
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TABLE OF AUTIIORITIES lhc Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CL1-93-02,37 NRC slip op. (February 3,1993)............................... passim Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12,36 NRC 62 (1992)
.................................. passim Appeal:
Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-395,5 NRC 772 (1977) 5 i
General Public Utilities Nuclear Corp., (Three Mile Island Nuclear Station, Unit 2), ALAB-914,29 NRC 5
357 (1989)
Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239 (1980)
. 11 Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), ALAB-928,31 NRC 263 (1990) 9,10 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616 (1985),
citing, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630 (1984)................ 8,15 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-814,22 NRC 191 (1985), citing, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801 (19 84).................................... 9 j
Licensinc:
Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23,19 NRC 1412 (1984).................
6 4
]
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TABLE OF AUTHORITTFS Page Philadelphia Electric Co., (Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273 (1986)...................
6 Texas Utilities Electric. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37,36 NRC slip op. at 31-32 (December 15, 1992).......................... 2 Director's Decisions:
TU Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), DD-92-06 (1992).......................... 13, 14 STATUTES 7
42 U.S.C.f 2239 REGULATIONS 3
10 C.F.R. 5 2.206 4
10 C.F.R. 5 2.1263
+
10 C.F.R. 5 2.714 7-10 C.F.R. S 2.7142
...................................2,6 i
10 C. F. R. [ 2.717(b)..................................... 6 10 C.F.R. f 2.788
.................................. passim 10 C.F.R. E 2.788(b)(3)..................................
11 10 C.F. R. f 2.78 8(e)....................................
15 '
MISCELLANEOUS i
...................................2,6
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March 22,1993 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
Docket No.
50-446-CP TEXAS UTILITIES ELECTRIC
)
COMPANY
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
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NRC STAFF'S REPLY TO PETITIONERS' MOTION TO STAY ISSUANCE OF FULL POWER LICENSE
-l INTRODUCTION On March 15, 1993, B. Irene Orr and D. I. Orr (Petitioners) filed " Petitioners' Motion I
i to Stay Issuance of Full Power License" (Motion) in the Comanche Peak Steam Electric Station (CPSES) Unit 2 construction permit amendment proceeding. For the reasons set forth below, the Staff of the Nuclear Regulatory Commission (Staff), submits that the Petitioners' Motion should be denied.'
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Due to the fact that the Petitioners' Motion raises several complicated and confusing _
issues, and incorporates by reference their March 12,1993 response to the Commission's Order, the Staff has exceeded the ten page limit set forth in 10 C.F.R. { 2.788(d). The Staff requests l
the Commission to relax the ten page limit under these circumstances.
f l BACKGROUND On December 15, 1992, the Atomic Safety and Licensing Board (Licensing Board) designated in the above captioned proceeding issued its decision denying inten'ention in the CPA proceeding to Petitioners. Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, l
Unit 2), LBP-92-37,36 NRC
, slip op. at 31-32 (December 15, 1992). On December 30, l
i 1992, the Petitioners filed their " Appeal of Atomic Safety and Licensing Board Memorandum i
i and Order." The Petitioners filed their brief in support of their appeal on January 8,1993.
On February 2,1993 the Staffissued a low power operating license for Comanche Peak, s
Unit 2 authorizing fuel loading and operation up to 5 percent of rated power. Comanche Peak i
Steam Electric Station, Unit 2: Texas Utilities Electric Co. Issuance of Facility Operating i
I License, 58 Fed. Reg. 7822 (February 9,1993). Also on February 2,1993, the Petitioners filed i
't an ' Emergency Motion to Stay Issuance of Low-Power Operating License." On February 3, f
1993, the Commission denied the emergency stay request. Texas Utilities Elec. Co. (Comanche.
t Peak Steam Electric Station, Unit 2), CLI-93-02,37 NRC
, slip op. (February 3,1993).
On March 5,1993, the Commission issued an Order directing the parties to the construction permit amendment proceeding to answer questions relating to the issue of whether I
the proceeding and the pending appeals are moot. Order at 1. The Licensee and the Staff filed their responses on March 9,1993, and March 12, 1993, respectively, arguing that the I
construction permit amendment proceeding was moot. " Response of TU Electric to the l
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Commission's Order Dated March 5,1993" at 6; "NRC Staff Response to the Commission's j
Order to Show Cause Why Proceeding Should Not Be Dismissed as Moot" at 5. The Petitioners l
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in their response dated March 12,1993, argued, inter alia, that the proceeding was not moot.
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" Petitioners' Response to Commission's Order Dated March 5,1993" at 4.
The Petitioners, on March 15,1993, filed the instant Motion. On March 17,1993, the Commission directed the Staff to respond to the Motion by March 22, 1993. For the reasons set forth below, the Petitioners' Motion should be denied.
L DISCUSSION i
A.
The Petitioners. as Non-Parties. Cannot Avail Themselves of 10 C.F.R. 6 2.788 The Petitioners, in their instant Motion, seek a stay in "further construction, testing and the issuance of a full power license for CPSES Unit 2."
Motion at 1. The Petitioners, to the extent that they seek a stay of the issuance of the full power operating license, are, in effect, attempting to file a stay request in the operating license proceeding for CPSES Unit 2. As the I
Commission previously noted, the Petitioners are not parties to the operating license proceeding; nor have they attempted to address the Commission's regulations pertaining to late-filed i
intervention. See Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),
i CLI-93-02, slip op. at 3 (1993). Therefore, the Motion, as it relates to a stay of the operating license for Unit 2, should be denied.
B.
The Petitioners' Characterization of Their Request As Falling Under 10 C.F.R. l 2.788 Is Incorrect i
The Commission's regulations pertaining to stay requests,10 C.F.R. f 2.788, provide only for stays of a " decision or action of a presiding officer...." Texas Utilities Elec. Co.
(Comanche Peak Steam Electric Station, Unit 2), CL1-93-02, slip op. at 3 (1993). (Compare t
i e
h,
with Subpart L,10 C.F.R. f 2.1263, which allows stays of the actions of the NRC staff in issuing licenses). A stay request filed under 10 C.F.R. f 2.788 provides only for " stays of l
decisions or actions in the proceeding under review - in this case the CPA proceeding." Sec -
Texas Utilitics Elec. Co. (Comanche Peak Steam Electric Station, Unit 2) CLI-93-02, slip op.
at 3 (1993). Tle issuance of the operating license is not a " decision or action of a presiding I
officer," and, therefore, is not an appropriate subject for a stay request under 10 C.F.R. f 2.788. Similarly, the continued construction of Unit 2 was not a " decision or action of a presiding officer," but rather the result of the issuance of the construction permit amendment.. Thus, the Petitioners' Motion is beyond the scope of 10 C.F.R. Q 2.788, in that the Petitioners do not request a stay of a decision or action of the presiding officer in the construction permit amendment proceeding. Therefore, the Petitioners' Motion should not be r
entertained.
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C.
The Petitioners Fail to Satisfy the Four Stay Factors of 10 C.F.R. E 2.788 Nevenheless, even if the Petitioners are correct in characterizing their Motion as a stay request pursuant to 10 C.F.R. f 2.788, the Petitioners fail to satisfy the four factors set fonh in 10 C.F.R. f 2.788, which must be considered before an application for a stay can be granted.
s i
10 C.F.R. Q 2.788(b)(2). These factors are:
(1)
Whether the moving party has made a strong showing that it is likely to prevail on the merits:
(2)
Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and (4)
Where the public interest lies.
1
10 C.F.R. ( 2.788(e). The proponent of the stay motion has the burden of persuasion on the t
four factors of 10 C.F.R. 6 2.788(e). Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27,14 NRC 795 (1981); Consumers Power Co. (Midland Plant, Units
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1 and 2), ALAB-395,5 NRC 772,785 (1977).
1.
The Petitioners Fail to Demonstrate Irreparable Harm i
The second stay factor is the most crucial of the four; a movant's failure to demonstrate l
irreparable injury requires a strong showing with respect to the other factors. Public Service Co.
i ofNew Hampshire (Seabrook Station, Units 1 and 2), CLI-90-3,31 NRC 219,258,260 (1990).
)
With respect to the second factor, the Petitioners first provide a conclusory argument that they will be irreparably injured as a result of the Licensee's alleged suppression of safety information and failure to correct deficiencies. Motion at 8-9.
The Petitioners' bare assertion fails to demonstrate that they will incur injury, let alone injury that is "both great and certain." Genera!
t Public Utilities Nuclear Corp., (Three Mile Island Nuclear Station, Unit 2), ALAB-914, 29 hPC 357, 361 (1989).
The Petitioners' second argument that they will be irreparably injured concerns the perceived deprivation of their due process rights if the full power operating license is issued prior to the resolution of their appeal in the construction permit amendment proceeding. Motion l
i at 9. The Petitioners' central concern involves the mooting effect of the issuance of a full power i
license on the construction permit amendment proceeding.2 They perceive the issuance of the 2 On February 2,1993, the Staffissued a low power operating license for Comanche Peak, Unit 2. Comanche Peak Steam Electric Station, Unit 2: Texas Utilities Co.; Issuance ofFacility (continued...)
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' full power license as a deprivation of due process. Due process secures the opportunity for a hearing when an interest is at stake. The Atomic Energy Act of 1954 provides for due process-2(... continued)
Operaring License,58 Fed. Reg. 7822 (February 9,1993). On March 5,1993, the Commission issued an Order directing the panies to the construction permit amendment proceeding to answer questions relating to the issue of whether the proceeding and the pending appeals are moot.
t Order at 1. Although the Petitioners have avoided couching this argument in terms of mootness, the Petitioners claim that "[t]he assenion that the issuance of a low power beense negates i
l Petitioners' right to a hearing is completely misplaced." Motion at 2 n.l.
The Petitioners rely on the arguments made in their response to the Commission's order dated March 5,1993 (Response). Motion at 2. In their Response, the Petitioners claim that once they filed a request for a hearing, the Atomic Energy Act (AEA) prohibited the granting of the construction permit extension request until the Petitioners * "right. to a hearing is exhausted." Response at 5. To suppon their assenion, Petitioners rely on Brooks v. Atomic Energy Comm'n,476 F.2d 924 (D.C. Cir.1973). Petitioners' reliance on Brooks is misplaced.
The Brooks court only determined that a hearing had to be offered on a construction permit amendment request, not that one had to be held prior to the Staff's issuance of the amendment.
The Brooks court's statement that "[t]he continuing validity of the amendment to the construction permit is made subject to the outcome of a hearing..." indicates only that an extension granted prior to a hearing was ultimately subject to the outcome of that hearing, not that a hearing prior to granting the extension was mandated.
476 F.2d at 928 (emphasis added). See also 10 C.F.R. f 2.717(b)(An order issued by the Staffis subject to modification by the presiding of6cer as appropriate for the purpose of the proceeding).
To further support their position, the Petitioners rely on Sholly v. U.S. Nuclear Regulatory Comm'n, 651 F.2d 780 (D.C. Cir.1980), vacated and remanded, 459 U.S.1194, vacated and remanded as moot, 706 F.2d 1229 (D.C. Cir.1983). Response at 6 n.3, 7-8.
Petitioners claim that the amendments to the AEA, which were implemented in response to the Sholly decision, only permitted the Staff to issue amendments to operating licenses which involve a no signi6 cant hazards consideration without a prior hearing. Id. Therefore, according to the Petitioners, the Staff is not allowed to issue amendments to construction permits without a prior hearing. Id. The Petitioners provide no support for their assertion and in fact contradict themselves when they later assert that Sholly is controlling in the instant construction permit extension proceeding. See Response at 7.
The Petitioners further assert that even if the extension to the construction permit could be granted without a prior hearing, they would still be entitled to a hearing even if the proceeding becomes moot. Id. at 6 n.3. Petitioners rely on a holding in a licensing board decision, Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23,19 NRC 1412 (1984) However, that decision has been called into question by a subsequent licensing board decision (Philadelphia Elec. Co., (Limerick Generating Station, Unit 1), LBP-86-9,23 NRC 273,281-82 (1986)) and the Staff submits, for the reasons underlying the concept of mootness, that hearings should not be held on moot issues.
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' i when it provides that "the Commission shall grant a hearing upon the request of any person j
whose interest may be affected by the proceeding." 42 U.S.C. 6 2239. In order to be granted a hearing, potential intervenors must first request a hearing and comply with the Commission's regulations governing intervention. 10 C.F.R. f 2.714; see BPI v. Atomic Energy Comm'n,502 F.2d 424 (D.C. Cir.1974).8 This includes the establishment of standing, and the proposal of
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an admissible contention. 10 C.F.R. I 2.714.
7 The Petitioners availed themselves of an oppertunity to request a hearing when they requested a hearing and leave to intervene in the construction permit amendment proceeding.
- Petition To Intervene and Request For Hearing of B. Irene Orr, D.1. Orr, Joseph J. Macktal, Jr., and S.M. A. Hasan," (July,28,1992). What the Petitioners failed to do was to subsequently
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protect their interest against the occurrence of events that would lead to the mootness of their i
petition; that is, the Petitioners should have requested an the immediate suspension of construction months ago.'
The Petitioners did not avail themselves of the procedural I
8 The court in BPI determined that section 189 of the Atomic Energy Act does not preclude the Commission from establishing additional requirements, such as the contention requirement, which must be met in order for a petitioner to be granted a hearing. Sec 502 F.2d at 428.
I These requirements narrow those within the class of persons entitled to seek a hearing to those entitled to participate as intervenors and " assist the Commission in the resolution of the issues to be decided." Id. at 429.
Petitioners' argument concerning why they did not seek to pursue their request to stay issuance of the low power license is not relevant, since their obligation to protect their interest I
by attempting to have construction suspended arose when they filed their request for a hearing, rather than at the time of the issuance of the low power operating license. In addition, the argument is without merit. The Petitioners in the instant Motion allege that "the Commission i
i effectively counseled Petitioners against pursing (sic) their request for a stay by assuring Petitioners that the risk was minimal, together with the incorporation of explicit language in the i
license indicated that there would be no " prejudice" stemming from the issuance of the low power license." Motion at 2 n.l. The Commission observed that the risks of low power j
(continued...)
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l.
I f
! l mechanism for protecting their rights, and now aat the proceeding has become moot, the r
Petitioners cannot be heard to complain.5 See Commonwealth Edison Co. (Braidwood Nuclear j
Power Station, Units 1 and 2), CL1-86-8,23 NRC 241,245 (1986) (" Parties to Commission proceedings must live with the choices they make.").
It has been held that "the potential mooting of an appeal does not per se constitute l
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irreparable injury; it also must be established that the activity that will take place in the absence i
r of a stay will bring about concrete harm." Long Island Lighting Co. (Shoreham Nuclear Power
(
Station, Unit 1), ALAB-810,21 NRC 1616,1620 (1985), citing, Duke Power Co. (Catawba
)
Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630,1635 (1984). The potential l
mootness of an appeal cannot, in and of itself, constitute irreparable injury in as much as l
adjudicatory decisions must be able to take effect despite petitioners' quests to exhaust all i
appellate remedies. Id.
The Petitioners' Motion, therefore, should be denied in that a stay application which i
establishes no irTeparable injury will be denied absent a showing that success on the merits is l
1 I
'(... continued) operation, in general, are minimal. See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2) CLI-93-02, slip op. at 5 n.3.
At no place in its Order did the Commission direct or counsel the Petitioners to refrain from any course of action with respect to stay requests. Any such reliance on the Commission's generalized observation is misplaced.
Indeed, the Petitioners' intervention request was considered and denied by the Licensing 5
Board in the construction permit amendment proceeding. The instant proceeding was rendered i
moot when construction was completed, an event which has been held to be a valid reason for l
mooting a proceeding, especially where the litigants do not seek a stay of construction while i
pursuing their claims through the judicial process. See Florida Wildhfe Fed'n v. Goldschmidt, j
611 F.2d 547,548-549 (5th Cir.1980) (substantial construction of highway mooted appeal);
l Friends of the Eanh v. Bergland, 576 F.2d 1377,1378-79 (9th Cir.1978).
l I
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9 a " virtual certainty." Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility),
ALAB-928, 31 NRC 263, 269 (1990). With respect to the first factor, the Petitioners have failed even to demonstrate the likelihood of success on the merits, let alone show that success is a " virtual certainty."
2.
The Petitioners Fail to Demonstrate that They Are Likely to Prevail on the Merits of Their Appeal The Petitioners' argument vacillates between a discussion of the likelihood of success on the merits of the stay request and the likelihood of success on the merits of the appeal.6 Clearly, the likelihood of success on the merits of the Petitioners
- appeal is what is relevant.
See Virginia Petroleum Jobbers Ass'n v. Federal Pour Comm*n, 259 F.2d 921, 925 (D.C. Cir.1958). To that end, the Petitioners first state, without elaboration, that they are l
likely to obtain a hearing on the good cause for the Licensee's delay in construction. Motion i
at 2. A movant's mere expression of confidence in the likelihood of success on the merits of its appeal is insufficient. Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2),
i ALAB-814, 22 NRC 191,196 (1985), citing, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17,20 NRC 801, 804-805 (1984). The Petitioners offer as l
support "the briefs Petitioners have filed with the Commission,' including the Petitioners' most l
6 In their discussion of the likelihood of success on the merits, the Petitioners first argue that they are likely to succeed on the merits of their stay request by claiming that they are
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entitled to a stay "until such time as [the Commission] determines whether Petitioners were improperly denied a right to a hearing on the issue of " good cause" for the delay in construction." Motion at 2. The Petitioners next argue that it is " inherently unjust" for the Commission to allow CPSES, Unit 2 to operate before ruling on the Petitioners' right to a hearing. Neither argument is related to the likelihood of success on the merits of the Petitioners' appeal and, therefore, neither should be considered.
r k l recent filing of March 12, 1993.
Motion at 2.
The Commission's regulations at
^
10 C.F.R. { 2.788(b)(3), however, require that appropriate references be made to the record or to affidavits by knowledgeable persons. As the Commission noted, a generalized reference l
"provides no aid whatever in evaluating petitioners' motion and is simply insufficient for the i
purposes of issuing a stay...." Texas Utilities Elec. Co. (Comanche Peak Steam Electric l
t i
Station, Unit 2), CLI-93-02, slip op. at 4 (1993).
The Petitioners next restate their argument that the Licensee entered into money-for-l l
silence agreements to conceal safety-significant information from the Commission. Motion at 3.
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The Petitioners also restate their argument that the Licensee entered into restrictive settlement I
agreements with its former co-owners. Id. at 3-4. The Petitioners support their assertions with i
three prior exhibits, one of which is a legal pleading. The Petitioners do not demonstrate the f
likelihood of success on the merits of their appeal, and there is nothing in the Petitioners' f
i arguments which tends to show that they will receive more favorable consideration on their l
appeal than they did on their initial petition.7 The mere listing ofissues "is clearly insufficient to establish any level of probability of success on the merits." See Kerr-McGee Chemical Corp.,
(West Chicago Rare Earths Facility), ALAB-928,31 NRC 263,270 (1990). In order to sati.fy 7
The Petitioners reassert that they are " entitled to an adverse inference that the documentation TUEC intentionally and illegally secreted from the ASLB includes information demonstrating that TUEC is aware of the existence of uncorrected safety problems....and an adverse inference that the withheld documentation constitutes sufficient support to admit the underlying contention Petitioners seek admission in the mstant matter." Motion at 4-5 n.4. The i
Petitioners offer no legal support whatsoever in asserting that such an adverse inference exists.
To the contrary, as the Licensing Board stated in its " Memorandum and Order (Ruling on Intervention Petitions and Terminating Proceeding)", the allegation that the nondisclosure l
agreements resulted in delay of construction was unsupported. Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, slip op. at 21 (1992).
l I
i asm as the first factor, the movant must do more than merely establish possible grounds for appeal. Id.;
see also Alabama Power Co., (Joseph M. Farley Nuclear Plant Units 1 and 2), CLI-81-27,14 NRC 795,797 (1981). Absent a showing that the Petitioners are likely to prevail on the merits, their application for a stay should be denied.
The Petitioners' counsel also claims to have uncovered information indicating that the Licensee's alleged practice of paying " hush money" for the secretion of material information which "almost resulted in a catastrophic accident at the CPSES in 1992.*' Motion at 5. The Petitioners offer the allegation of Mr. Ronald J. Jones, an electrical inspector employed at CPSES from 1983-1984, that Mr. Jones identified over 300 non-conforming conditions at Unit 1
- that were never corrected by TUEC and, to this day, present a significant risk to the public's health and safety." Id. at 6. Nothing in Mr. Jones' statement indicates that he has personal-knowledge of events that took place in 1992, and, therefore, to the extent that he theorizes about matters subsequent to his employment or regarding Unit 2, the statement should be stricken.
The Commission's regulations at 10 C.F.R. f 2.788(b)(3) provide that an application for a stay, to the extent that it relies upon facts subject to dispute, must contain " affidavits by knowledgeable persons.* 10 C.F.R. Q 2.788(b)(3).
8 This information is outside of the scope of a discussion of the likelihood of success on the merits of the Petitioners' appeal in that the information was not contained in the appeal. There is no indication in Petitioners' Motion that they could not have contacted Mr. Jones at the time they filed their initial intervention petition, inasmuch as the existence of Mr. Jones and many of his concerns were matters of public record. See, e.g., Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12,36 NRC 62 (1992). The Staff notes that the information provided by Mr. Jones appears to be an attempt by the Petitioners to bolster and amend their appeal, and, as such, is clearly an impermissible use of a stay motion. See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 (1980) (no right to supplement factual content of intervention petition on appeal).
i i The Petitioners claim that "none of Mr. Jones' allegations, to this date, have been raised l
I before the NRC." Id. at 8. The Petitioners allege that Mr. Jones gave his non-conformance h
reports and safety-related information to Ms. Billie P. Garde, who was counsel for him and other whistleblowers. Id. at 5-8. Mr. Jones claims that although Ms. Garde assured him that i
the information would be presented to the Licensing Board, the information has not been raised be' ore the NRC. Id. at 8. The Petitioners claim that the Licensee managed to conceal this l
information through the payment of " hush money" to Ms. Garde's clients. Id. at 5-8.
i Mr. Jones has long been involved with the Comanche Peak proceedings and provided a statement and suppon to Mr. R. Micky Dow in his filings before the Commission in 1992. See
" Motion to Reopen the Record" (February 21,1992) at 2-3 and Exhibit B. In the February 21,
?
1992 pleading, Mr. Jones is alleged to have identified numerous wiring violations at Comanche Peak. Mr. Jones' statement indicates that he is willing to testify on his concerns. Id. The l
l Commission considered Mr. Jones' information in mling on Mr. Dow's intervention request and motion to reopen the record. See Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Units 1 and 2) CL1-92-12,36 NRC 62,70-72 (1992).
Additionally, the Staff at Region IV has reviewed Mr. Jones' concerns. letter from f
Russell Wise to R. Micky Dow, (September 10,1992) attached hereto as Exhibit 1. The Staff l
documented its findings with respect to those concerns for which Mr. Jones and Mr. Dow could I
I provide sufficient information ir, several NRC Inspection Reports after conducting interviews, o
document reviews, and direct inspections.' Id. In addition, the Staff reviewed a tape of a
' With respect to those concerns which were not adequately described, ;he Staff requested j
that Mr. Jones provide additional information. Letter from Russell Wise to R. Micky Dow (continued...)
l I
- conversation between Mr. Jones and Mr. R. Micky Dow. Exhibit 2. The Staff requested i
Mr. Jones to provide more information concerning his allegations. Therefore, Mr. Jones did come to the NRC with his concerns, and his concerns were evaluated after extensive investigation.
The Petitioners specifier.11y rely on Mr. Jones' allegation in which he claims to have identified an electrical wiring defect associated with the coo! ant control valve to Unit I which, in 1992, failed to operate, thereby requiring the Licensee to pump w:uct containing an unknown amount of boron from a source within Unit 2. Motion at 6-7. The Petitioners claim that during this incident the reactor rods did not receive coolant, thereby creating a dangerous condition at the CPSES. Id.
i The Petitioners' concerns with respect to the above described incident were the subject of a Director's Decision issued on November 19,1992, responding to a petition filed pursuant j
b to 10 C.F.R. f 2.206 by R. Micky Dow and Sandra Long Dow dba Disposable Workers of Comanche Peak Steam Electric Station. TU Elec. Co. (Comanche Peak Steam Electric Station, i
Units 1 and 2), DD-92-06, slip op. at 15-18 (1992). A review of this Director's Decision, as i
well as the inspection reports concerning this event, demonstrates that Mr. Jones' and Petitioners' description of the event, which involved the spent fuel pool and not the reactor, and I
its cause are inaccurate. The NRC and the Licensee carefully evaluated the incident and determined that the spent fuel pool was without cooling because the component cooling water f
I i
system was misaligned.
Id. at 15.
See also Letter from James L. Milboan, RegionalL i
'(... continued) i dated June 12, 1992, attached hereto as Exhibit 2. As of this date, the Staff has not received a reply.
j l
l a
i l
J f
14 -
Administrator, to W. F. Cahill, Group Vice President (July 23,1993) at I attached hereto as j
~
Exhibit 3. The pool was never in danger of overheating throughout the incident. TU Elec.
Company (Comanche Peak Steam Electric Station, Units I and 2), DD-92-06, slip op at 15-18 (1992), the incident did not threaten plant safety or public health and safety. See Milhoan Letter e
at 1.
The event was caused by human errors, particularly with respect to personnel performance, assessment of the impact of activities, and procedures. See Milhoan Letter at 2.
None of the violations related to 'he event involved the failure of an electrical component. See
't Milhoan Letter at 2 (no mechanical failures listed). The resident inspector discovered the ll problem by finding a discrepancy in the alignment of the valves on the control board, and the operators corrected the problem by aligning the Unit 2 cooling water to the heat exchanger. TU Elec. Company (Comanche Peak Steam Electric Station, Units I and 2) DD-92-06, slip op. at i
15-18 (1992). The use of Unit 2 cooling water was in violation of the Unit 1 operating license, and the NRC assessed the Licensee a civil penalty because the managers did not exercise proper s
control oflicensed activities. Id. As a result of the incident, the NRC identified minor training l
deficiencies and procedural changes. The Licensee took corrective actions that included more effective methods ofinforming operators of design changes, and providing operators with a list of systems that could be crosstied. Id.
i In addition, the Petitioners fail to address how their concerns regarding Mr. Jones' other I
allegations, which date back to 1984, have been affected by the extensive corrective actions and i
inspections that have taken place at CPSES since that time. See Texas Utilitics Elec. Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12, 36 NRC 62,74 (1992),
- -l citing, Tc. ras Utilities Elec. Co. (Comanche Peak Steam Electric Station, Units 1 and 2),
{
o CLI-88-12, 28 NRC 605, 611 (1988). Petitioners have also failed to demonstrate that the j
existence of these allegations shows a lack of good cause for the delay in construction of CPSES f
Unit 2.
Therefore, they have not shown that this information in any way supports their i
allegation that 11 ty are likely to succeed on the merits of their appeal in the construction permit l
amendment proceeding.
l The Petitioners' failure to sustain their burden of proof with respect to the first two factors under 10 C.F.R. 6 2.788(e), makes it unnecessary for the Commission to consider at
[
I length the remaining two factors. Long Island Lighting Co., (Shoreham Nuclear Power Stanon, Unit 1), ALAB-810, 21 NRC 1616,1620 (1985). Nevenheless, the remaining two factors overwhelmingly suppon a denial of the appiication for a stay and, therefore, merit discussion.
I With respect to the third factor, the harm to other parties, the Petitioners claim that "[t]he 1
granting of a stay request does not constitute a cognizable harm to TUEC." Motion at 9. The j
i Petitioners' assenion neglects to consider the potential for the economic harm that the Licensee would incur with respect to a delay of issuance of the full power operating license. The i
economic harm to an applicant caused by the issuance of a stay is relevant in determining l
whether the granting of a stay would harm other parties. See Pac #ic Gas & Elec. Co. (Diablo l
Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14,22 NRC 177,180 (1985).
i As to the founh factor, where the public interest lies, the Petitioners state, and the Staff agrees, that the public interest lies in assuring that Comanche Peak is safe. Prior to the l
Licensee's settlement of the law suits with the minority owners and the settlement of the pending proceedings before the NRC, the Licensee proposed and commenced implementation of a j
i i
I l
f
o t
, massive corrective action program which no one alleges to be defective. The Staff has also I
conducted extensive evaluations of Licensee's corrective action plan and its implementation, and has conducted numerous inspections of the Comanche Peak facility, to assure that the public health and safety will not be endangered. As a result, the public interest lies in the denial of the Petitioners' stay request. See Public Service Co. ofNew Hampshire (Seabrook Station, Units 1 l
r and 2), CLI-90-3,31 NRC 219,260 (1990).
CONCLUSION For the reasons set forth above, the Commission should deny the Petitioners' Motion for a stay of further construction, testing and issuance of the full power operating license for Comanche Peak Unit 2.
Respectfully submitted, f
& un C Cf Catherine L. Marco Counsel for NRC Staff
~
- /*
Marian L. Zobl Counsel for NRC Staff i
Dated at Rockville, Maryland this 22nd day of March,1993
03-17-1953 c4:17Pt1 FROM UStRC910 TO B3035c43725.P.a7 Exhibit 1 -- Page 1 of 4 l
R. Micky Dow i
Sandra Long Dow 322 Mall Blvd, #147 Monroeville, PA 15146
Dear Mr. & Mrs. Dow:
i
Reference:
Allegation No. RIV-92-A-0057 We have completed our inspections and reviews of your remaining concerns as documen;ed in my June 6 and June 12, 1992, letters. Our findings are i
documented in the enclosed NRC Inspection Reports: 50-445/92-10 dated May 8, i
1992; 50-445/92-12, dated May 26, 1992; 50-445/92-14 dated July 7, 1992; 50-445/92-20' dated June 9, 1992; Enforcement Conference Summary dated June 29, 1992; and Notice of Violation and Proposed Imposition of Civil Penalty -
$125,000 dated July 23, 1992.
Your concerns have been summaritei in an Attachment to this letter, and referenced to a section in the applicable NRC -
Inspection Report.
i With regard to the violations of requirements identified during these inspections. TU Electric is required to inform us in writing of the corrective actions they have taken, or plan to take.
Our inspectors will evaluate such I
actions to ensure proper resolution and full compliance with regulatory requirements.
You will find that the NRC was not able to fully substantiate your concerns, this-does not necessarily mean that we find the facts as you stated them to be i
untrue.
It means only that we were unable to obtain objective evidence to corroborate your statements through interviews, document reviews, and/or direct observation.
Unless NRC receives additional information that suggests our cenclusions should be altered, Region IV plans no fur-ther action on this l
matter.
Sincerely, ORIGINAL SIGNED BY Rufbb Mss i
Allegations Coorcinator
Enclosures:
As stated t
Attachment:
As stated cc w/ enclosures and attachment:
Allegation file i
i
c.;> 2,
m.,
ATTACHMENT Exhibit 1 -- Page 2 of 4
Reference:
Allegation No. RIV-92-A-0057 concern that spent fuel cooling was inadequate and that an Your
}.
' unlicensed /uninspected system" was used during the event was discussed during your conversation with Mr. Yandell on May 20, 1992.
Our review of this matter._is documented in paracraoh 3.1.3, and Section I
4 of NRC Inspection Report 50-445/92-20 dated June 9. 1992.
This event resulted in an enforcement conference as documented in the Enforcement Conference Sum.marv (E A 92-107) dated June 29, 1992.
Additionally, an escalated enforcemen_ action was taken as documented in Notice of Violation and Proposed Itcosition of Civil Penalty - 5125,000 dated July 23, 1992.
2.
You allege that a fuel rod was inserted upside down, an event that occurred on May 18, 1992, while the control rooq was under the supervision of a Mr. Tom Daskam.
Your sources advited you that Mr.
Daskam, *was totally out of it that day," and you are concerned about pctential substance abuse by the control room supervisor.
The reactor was operatino at full power on May 18, 1992. when the spent fuel coolina event occurred.
It was irDossib_le to insert a fuel rod into tne reactor while the reactor is operatino because the reactor vessel head was bolted in place on Mav 18. 1992.
Additionally. fuel asse-blies are designed in $Uch a way to prevent an insertion into the l
core incorrectiv.
You will note from your reading of inspection report 92-20. that the control room supervisor was removed from shift.
You want to reassert all of the concerns addressed in SER, Supplement i
3.
10, relative to welds and plug welds.
According to Dobie Hatley, Texas Utilities was aware that the repairs that were made were faulty.
As previously stated, the NRC will need _ specific details relative to these cencerns in order to _ pursue this matter. Other than cenerally statino that 1U was aware that reDairs were faulty.
Regarding your alleged May 18, 1992, event, you believe that the root 4.
cause of this event is the qualifications and experience of the licensed and that the Cahill letter of October 26, 1989, may operator staff, have overstated these qualifications, which were approved by NRC in the Chris Grimes letter of December 12, 1989.
As discussed in 1 above, our review of this eatter is docunented in paracraph 3.1.3.
and Section 4 of_ NRC Inspection Rep _ ort 50-445/92-20 dated June 9, 1992. This event resulted in an enforcement conference as Tocurented _in the Enforcement Conference _ Sum.ary (EA 92-107) dated June 29, 1992.
Additionally, an escalated enforcement action was taken as
_ documented in Notice of Violation and Proposed Imposition of Civil Penaltv - $125,000 dated July 23, 1992.
-6
03-1*?-1993 C4: 1BDM FROM US tRC RIU TO B3315043725 P.89 Exhibit 1 -- Page 3 of 4 5.
The reactor trip involving the nitrogen-16 detectors is related to the poorly trained and qualified reactor operators.
I Our review _of this matter is documented in paragraph 5.1 of NRC Inscection Report 50-445/92-14 dated July 7.1992.
5.
You question that as a result of the event involving the air conditioning system for the control room, whether the remaining safety systems related to control room operations will function correctly. You stated that Ron Jones, a former employee at CPSES, would be deposed by you regarding these concerns.
Additionally, you stated that you would provide a copy of the deposition tape by June 9, 1992, followed by a transcript at a later date.
Our review of this matter is documented in paracraphs 5.4 and 7.4 of NRC inspection Report 50-445/92-14 dated July 7.
1992.
If ' additional conc _ erns reoarding the "remainino safety systems" exist.
Specific details must be provided before NRC review will commence.
7.
Concerns were discussed relative to the TU handling of the Unusual Event on June 3,
1992, when a shutdown of the plant was initiated in accordance with Technical Specifications due to both trains of the Control Room
- Heating, Ventilation, and Air Conditioning being inoperable.
This issue is documented in caracraphs 5.4 and 7.4 of NRC Inspection Report 50-445/92-14 dated July 7. 1992.
8.
Wiring problems still exist and remain unaddressed in the Control Room and Cable Spreading Rooms.
Specific mention was made of sabotage, bad wiring, conduit wiring issues, and wiring separation problems.
As previously stated, seecific details relative to these concerns must be provided__before any NRC follow-up will commence.
t 9.
Mention was made relative to ISO unidentified new allegations which Mr.
Jones stated were provable, but were not discussed during the hearings because of his concern for his personal safety. Within this number, Mr.
Jones stated, 75 could lead to a major accident, and some could lead to a reltdown. Additionally, Mr. Jones believes that TU Electric could not have corrected all these deficiencies, and that conditions exist today that make CP5ES dangerous, if allowed to continue operation.
Of the 180 unidentified new allegations, does this group capture the issues identified in No. 2 above?
It is the opinion of Mr. Dow that this grouping contains a mixture of concerns identified during Mr.
Jones' employment, and other information supplied from former associates of Mr. Jones currently working at CPSES.
-}
I
~
W W
Exhibit 1 -- Page 4 of 4
, As previousiv stated, specific details relative to these concerns must be provided before any NRC follow-up will comence.
10.
Claims of drug use onsite that were brought to management's attention and not corrected.
As previously stated, specific details relative to these concerns must be provided before any NRC follow-up will comence.
11.
CPSES loaded fuel and operated the reactor to generate heat to perform hot functional tests in 1983.
NRC position remains anchanced, the low power license for Unit I was issued _on February 8, 1990.
CPSES comenced initial fuel, loadino on February 9.
1990. and comDleted fuel loadino on February 14. 1990.
Initial criticality was achieved on April 3.
- 1990, at 2:42 p.m.
However. should you have evidence to_ the contrary, please provide the information for our review.
12.
Claims by Mr. Jones that his settlement agreement with Brown and Root was misleading and unfair, and that CASE does not properly represent his concerns about CPSES.
Concerns about the settlement screement and whether or not CASE represents Mr. Jones' concerns preperly, are not within the jurisdiction of the NRC.
However, if Mr. Jones believes that the terms of the
~
settlement agreement may have restricted his comunication with the NRC, provide a copy of the settlement acreement for our_ _ review.
13.
You inquired about work that was performed by CPSES on the " wrong unit -
wrong valve."
Our inscection activities related to _the _ " wrong unit - wrona valve
- event is docu ented in paracraoh 5.4 of NRC Inscection Report 50-445192-10 cated May 8, 1992.
14 You reported that you had heard a rumor that individuals had been contaminated or overexposed in March 1992 as the result of work that was performed.
Our inspection activities related to the alleged " rad _iation exposure
- of personnel is documented in paragraph 7.6 of NRC Inspection Report 50-445/92-12 d'ted May 26, 1992.
ha O
e 4
e 4
e,
~ - -
Exhibit 2 -- Page 1 of 3 l
s.-
i R. Micky Dow i
Sandra Long Dow 322 Mall Blvd, #147 i
Monroeville, PA 15146
Dear Mr. & Mrs. Dow:
Reference:
Allegation No. RIV-92-A-0057 I
h This is to advise you that Region IV received a copy of a tape that-you sent-i to this office on June 3,1992.
Region IV has listened to-the conversation-between individuals identified as R. Micky Dow and Ron Jones.
Additionally, j
during our telephone conversation on June 11, 1992, you confirmed that Ron
=
Jan. s, identified on the tape, was the same individual identified in your 1
10 CFR 2.205 Petition, Petitioner's Exhibit A.
According to the information_-
you have provided us, Mr. Jones worked for Brown and Root at CPSES between February 1983 and May 1984.
We have categorized the information discussed on the - tape into six broad' These areas are -identified in an attachment to this letter.
Item 1 i
areas.
is currently under review, and you will be advised when our review has been cc:pleted.
i You need to provide additional specific information relative to Items 2, 3, and 4 before we can commence any review in these areas.
Item _5 i
remains closed, unless you have evidence that warrar.ts further consideration by this office.
Item 6 is a matter not within the jurisdiction of NRC, unless j
terms of Mr. Jones' settlement agreement restricted him from comunicating with NRC.
As discussed above, the attachment to this letter documents Mr._ Jones' j
concerns. as we understand them.
However, we need additional information as identified on the attachment before we can initiate actions to examine - the i
f acts and circumstances regarding Mr. Jones' concerns.
We re Jones provide-the specific details relative to his concerns. quest that Mr.
Mr. Jones may-call me collect at (817) 850-8245 to discuss a mutual.ly agreeable time to discuss these issues.
Please advise Mr. Jones that if I am not available, please leave a message and I will return his call.
I
~!
Sincerely, ORIGINAL SIGNED BY RhN s
Allegations Coordinator
Attachment:
Statement of Concerns t
cc w/ attachment:
Allegation File 1
?
1 I
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Exhibit 2 -- Page 2 of'3l ATTACHMENT l
STATEMENT 0E CONCERNS
Reference:
Allegation No. RIV-92-A-0057 3.
Concerns were discussed relative to the TU handling of the Unusual Event l
on June 3,1992, when a shutdown of the plant was initiated in accordance with Technical _ Specifications due to both trains of the i
Control Room Heating, Ventilation, and Air Conditioning being inoperable.
l NRC Recior, IV _is currently reviewino this matter and you will be i
advised throuch our normal orocess when our review of tois_ matter has been completed.
2.
Wiring problems still exist and remain unaddressed in the Control Room.
]
and Cable Spreading Rooms.
Specific mention was made of sabotage, bad i
wiring, conduit wiring issues, and wiring separation problems..
_pecific details relative to each concern are needed before any NRC S
followun can commence.
t I
3.
Mention was made relative to 180 unidentified new allegations which Mr.
Jones stated were provable, but were not discussed during the hearings f
because of his concern for his personal safety. Within this number, Mr.
Jones stated, 75 could lead to a major accident, and some could lead to a meltdown. Additionally, Mr. Jones believes that TU Electric could not have corrected all these deficiencies, and that conditions exist today l
t that make CPSES dangerous, if allowed to continue operation.
Of'the 180 unidentified rew allecations, does this orovo capture the r
issue _s identified in No. 2 above? It is the opinion of'Mr. Dow that I
this croupino centains_t mixture of concerns identified durino Mr.
Jones' emplovrent. and other information supplied from former associates of Mr. Jones currentiv workinc at CPSES.
_Smecific details relative to l
tbese concerns are needed before anv NRC followuo can commence.
l 4.
Claims of drug use onsite that were brought'to management's attention and not corrected.
Srecific_ details _ relative to this concern. i.e. acoroximate dates'of occurrence. to whom in tranacement was this concern identified and what j
~
group. orcanization etc. was involved. are needed before any NRC l
followuo can___ commence.
N 1
i i
4 9
C
-2 Exhibit 2 -- Page 3 of 3 5.
CP5ES loaded fuel and operated the reactor to generate heat to perform hot functional tests in 1983.
NRC oosition remains unchanced. the low cower license for Unit I was issued on February 8, 1990.
CPSES commenced initial fuel loadine on February 9.1990. and coroleted fuel loadino on February 14 1990.
lnitial criticality was achieved on_ April 3. _1990. at 2:42 n.m.
However. sho_uld_you _have evidence to the contrary. _ ole _a_se provide the information for our review.
6.
Claims by Mr. Jones that his settlement agreement with Brown and Root was misleading and unfair, and that CASE does not properly represent his concerns about CPSE.-
Concerns about the sett_1_eTent aareement and whether or not CASE reoresents Mr. Jones' concerns properly, are_ not within the iurisdiction of the NRC.
Hpwever, if Mr. Jones believes that the terms of the settla ent acre _em_ent_ ray have restricted his communication with the NRC.
crovide a _ copy of the settlement acreement for our review.
1 i
4 I
i r
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i Exhibit 3 -- Page 1 ofL5 UNITED STATES ja arc
[+f 7*g NUCLEAR REGULATORY COMMISSION i
f
^ +(
j REcloN iv 8
611 RY AN PLAZA DRIVE. SUITE 400 p
Y, ARUNoTON.T E XA$ 760119064 i
JL 231992 Docket Nos. 50-445 and 50-446 License No. NPF-87
[
Construction Permit No. CPPR-127 EA 92-107 l
TV Electric ATTN:
W. J. Cahill, Jr., Group Vice tresident Nuclear Engineering and Operations Skyway Tower 400 North Olive Street, L.B. 81 Dallas, Texas 75201 1
Gentlemen:
1
SUBJECT:
NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -. 5125,000 t
(NRC INSPECTION REPORT NO. 50-445/92-20;'50-446/92-20)
This is in reference to the May 15-29, 1992, inspection in response to the.
discovery on May 12, 1992, that the spent fuel pool at Unit 1 of the Comanche Peak Steam Electric Station (CPSES) had gone without cooling for approximately 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> due to a component cooling water system misalignment, Compounding-t the errors that led to this event was a decision to utilize an unauthorized-mechanism to restore spent fuel pool _ cooling, despite there being no urgency to do so. NRC's inspection findings were documented in a report-issued on-June 9, 1992, and were the subject of an enforcement conference with you and other TV Electric officials on June 22, 1992,'. in NRC's regional office in Arlington, Texas.
~
As NRC acknowledged both in.the inspection report and at the enforcement conference, the specific f act that the spent fuel pool went without cooling for some 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br />, and the subsequent decision to. restore cooling.using an i
unauthorized system lineup did not threaten plant safety or the public. health -
and safety. What is of significant concern to NRC, however, is the fact that violations of requirements were found to have occurred in virtually every 1
t to trol of I c e
t te The events that led to NRC's special inspection are described in det' ail in the inspection. report.
In brief, NRC's. senior resident inspector'at CPSES questioned plant operators on May'12,1992, about apparent discrepancies CERTIFIED Mall RETURN RECEIPT REOUESTED
/-(*f'i f
9207290070 920723 PDR ADOCK.05000445 O
PDR l
Exhibit 3 -- Page 2 of 5 TU Electric JUL rs agg As indicated in a letter dated July 7,1992 which transmitted Inspection Report 92-14, additional violations of procedural requirements were found which were unrelated to the spent fuel pool cooling event. While unrelated to the event, these violations also illustrate NRC's concern about attention to detail and compliance with procedures at CPSES. As indicated in that letter, NRC requests that TV Electric incorporate its response to those violations in its response to the enclosed Notice of Violation and Proposed Imposition of Civil Penalty.
NRC has reviewed the corrective actions that TV Electric outlined at the enforcement conference. TV Electric's correctis, actions in response to the i
events of May 11-12 were numerous and were summarized in your handout, which was enclosed with our June 29, 1992 letter documenting the conference. While your immediate corrective action of placing the Unit 2 component cooling water system in service was a continuation of the errors associated with this event, your long-term actions appear to be comprehensive and directed at resolving both your concerns and those of NRC. NRC notes, however, that many of the errors involved in this event occurred because plant operators appeared to lack a sense of the meticulous attention to detail expected and required in the operation of a nuclear power plant. During the enforcement conference you noted that your review of the event identified a misplaced sense of urgency among plant operators with regard to accomplishing assigned tasks. Changes in attitudes may be required to resolve these concerns.
In accordance with the " General Statement of Policy and Procedure for NRC Enforcement Actions," (Enforcement Policy) 10 CFR Part 2, Appendix C, the violations are classified in the aggregate as a Severity Level III problem.
To erphasize the importance of controlling licensed activities including procedural compliance and attention to detail in all aspects of operating 4
Comanche Peak, I have been authorized, after consultation with the Director, Office of Enforcement, and the Deputy Executive Director for Nuclear Reactor Regulatien, Regional Operations, and Research, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the amount of
$125,000 for the Severity Level III problem described above and in the Notice.
The base value of a civil penalty for a Severity Level III problem is $50,000.
In this case the civil penalty adjustment factors in the Enforcement Policy were considered as discussed below. The base civil penalty was escalated 50 percent based on NRC identification of the lack of spent fuel cooling. No adjustment to the base civil penalty was deemed appropriate for your corrective actions. While your long term corrective actions appear comprehensive, any mitigation based on those actions was offset by unsatisfactory immediate corrective actions such as the initial attempt to restore spent fuel pool cooling and the inadequate annunciator response t
procedure revision. The base civil penalty was escalated an additional 100 percent based on past licensee performance. Specifically, in addition to a 1
related escalated enforcement action last year, the most recent SALP report notes a declining trend in plant operations due primarily to a number of
Exhibit 3 -- Page 3 of 5 M
TU Electric,
between control panel indications and log entries with regard to component cooling water flow through a spent fuel pool heat exchanger.
In response to this inquiry, TV Electric personnel discovered that there was no cooling water flow through the heat exchanger, that there had been none for about 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br />, and tisat the water in the spent fuel pool had heated up about 6 degrees during this period. Once plant operations personnel drew these conclusions, they took steps to cool the spent fuel pool by lining up the Unit 2 component cooling water system, opening normally locked valves in the process. While these actions did restore cooling, they were not permitted within the confines of the CPSES Unit 1 operating license without first conducting the necessary safety evaluations, which were not done.
The NRC's inspection found numerous violations related to this event.
In su. mary, these violations involved:
(1) a failure to incorporate component coling water design changes into procedures; (2) a failure to train licensed C
reactor operators and auxiliary operators in the same design changes; (3) l r:ultiple failures on the part of operations personnel to comp)y with system operating procedures and administrative procedures; (4) failures to mrintain adequate and accurate procedures; (5) failures to conduct safety evalaations of using a Unit 2 system to support Unit I activities and opening valves designated as locked closed valves; and (6) a failure to take prompt corrective action to repair safety-related equipment, i.e., a spent fuel pool cooling water pump.
In addition to the violations surrounding the spent fuel pool cooling event, the NRC is concerned about operator attentiveness to control board indications, the effectiveness of the shift turnover process, communications 1
within the operations organization, and the effectiveness of corrective actions for similar previous concerns (e.g., EA 91-189, which involved similar 1
weaknesses in personnel performance resulting in a misalignment of the residual heat removal system).
2 During the enforcement conference, TV Electric attributed this event and the violations surrounding the event to problems in three general areas:
personnel performance, assessment of the impact of activities, and procedures.
i NRC agrees that each of these played a role in causing the events of May 11-13 and also agrees with your position at the enforcement conference that effective management oversight is necessary to ensure, that in the future, proper control is exercised over licensed activities.
The violations and concerns identified during this inspection, all of which were related to or contributed to the spent fuel pool cooling event, suggest an inattention to detail that crossed many functional areas at CPSES and which is below NRC's expectations of the level of attention to detail required in the operation of a nuclear power plant. Collectively, NRC considers these violations an indication of a breakdown in the control of licensed activities and an indication of a significant lack of attention to licensed requirements that could, under different circumstances, have resulted in a more significant i
effect on the safety of the plant.
l
Exhibit 3 -- Page 4 of 5 TU Electric errors in system configuration control and personnel errors that have resulted in reactor trips. The remaining adjustment factors were considered and no i
further adjustment to the base civil penalty was found appropriate.
Therefore, the base civil penalty has been escalated by a total of 150 percent resulting in a proposed civil penalty of $125,000. Notwithstanding the application of the civil penalty adjustment factors, the NRC gave serious consideration to exercising its discretion and increasing the civil penalty further to emphasize the seriousness of the occurrence of so many violations during a single event. However, in recognition of your understanding of the programmatic implications of the numerous violations and your long te.m corrective actions, that discretion will not be exercised in this case.
i TU Electric is required to respond to this letter and should follow the i
instructions specified in the enclosed Notice when preparing your response.
l In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence.
In addition, as discussed i
above, please include in your response to the enclosed Notice your response to 1
the violations identified in Inspection Report 92-14 and included in a Notice
~
of Violation attached to that report. After reviewing your response to these Notices, including your proposed corrective actions and the results of future
}
inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.
~
a a
l In accordance with 10 CFR 2.790 of the NRC's ' Rules of Practice," a copy of f
this letter and its enclosure will be placed in the NRC Public Document Room.
l The responses directed by this letter and the enclosed Notice are not subject to the clearance procedures of the Office of Management and Budget as required 7
i by the Paperwork Reduction Act of 1980, Pub. L. No.96-511.
{
Sincerely, n L. 77WL~3 i
ames L. Milhoan s
,egional Administrator 1
Enclosure:
Notice of Violation and Proposed Imposition of Civil Penalty cc:
TU Electric ATTN; Roger D. Walker, Manager Nuclear Licensing i
Skyway Tower 400 North Olive Street, L.B. B1
{
Dallas, Texas 75201 4
l
Exhibit 5 -- Page 5 of 5
%J kic TV Electric Juanita Ellis President - CASE 1426 South Polk Street Dallas, Texas 75224 GDS Associates, Inc.
Suite 720 1850 Parkway Place Marietta, Georgia 30067-8237 TU Electric Bethesda Licensing 3 Metro' Center, Suite 610 Bethesda, Maryland 20814 Jorden, Schulte, and Burchette ATTN: William A. Burchette, Esq.
Counsel for Tex-La Electric Cooperative of Texas 1025 Thomas Jefferson St., N.W.
Washington, D.C.
20007 Newman & Holtzinger, P.C.
ATTN: Jack R. Newman, Esq.
1615 L. Street, N.W.
Suite 1000 Washington, D.C.
20036 Texas Department of Labor & Standards ATTN:
G. R. Bynog, Program Manager /
Chief Inspector Boiler Division P.O. Box 12157, Capitol Station Austin, Texas 78711 Honorable Dale McPherson County Judge P.O. Box 851 Glen Rose, Texas 76043 Texas Radiation Control Program Director 1100 West 49th Street Austin, Texas 78756 Owen L. Thero, President-Quality Technology Company Lakeview Mobile Home Park, Lot 35 4793 E. Loop 820 South Fort Worth, Texas 76119
UNITED STATES OF AMERICA y;(.
NUCLEAR REGULATORY COMMISSION
[
'93 "T? 22 P4 T'8 BEFORE THE COMMISSION F
r In the Matter of
)
Docket No. 50-446-CPA
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amendment COMPANY
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S REPLY TO PETITIONERS' MOTION TO STAY ISSUANCE OF FULL POWER LICENSE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class,' or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by a double asterisk by hand delivery, or as indicated by a triple asterisk by deposit in the United States mail, nrst class and facsimile, this 22nd day-of March 1993:
Morton B. Margulies, Chairman
- R. Micky Dow Administrative Law Judge Sandra Long Dow dba Disposable Atomic Safety and Licensing Board Workers of Comanche Peak Steam U.S. Nuclear Regulatory Commission Electric Station l
Washington, D.C. 20555 506 Mountain View Estates i
Granbury, TX 76048 James H. Carpenter
- Peter S. Lam" Administrative Judge
. Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 h
~
f,
George L. Edgar *"
Office of the Secretary (16)**
Steven P. Frantz U.S. Nuclear Regulatory Commission Nancy L. Ranek Washington, D.C. 20555 Newman & Holtzinger, P.C.
Attn: Docketing and Service Section Suite 1000 1615 L Street, N.W.
Atomic Safety and Licensing Board Washington, D.C. 20036 Panel (1)*
U.S. Nuclear Regulatory Commission Michael D. Kohn"*
Washington, D.C. 20555 Stephen M. Kohn Kohn, Kohn and Colapinto, P.C.
Office of Commission Appellate i
517 Florida Ave., N.W.
Adjudication (1)*
Washington, D.C. 20001 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Adjudicatory File (2)*
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Section a
t Cd)6 L. 7% cc' Catherine L. Marco Counsel for NRC Staff Dated Rockville, Maryland this 22nd day of March 1993 k
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