ML20046D109

San Luis Obispo Mothers for Peace Request for Leave to Conduct Discovery on NRC Inquiry Into Allegations Re Pressure to Falsify Fire Watch Logs,Motion for Postponement of Hearing on thermo-lag Contention.*

ML20046D109
Person / Time
Site:	Diablo Canyon
Issue date:	08/11/1993
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., SAN LUIS OBISPO MOTHERS FOR PEACE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20046D102	List: ML20046D101 ML20046D109
References
NUDOCS 9308160145
Download: ML20046D109 (11)

Text

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AUG 11 '93 11:17AM P.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) '93 E 11 o nc. .:4.

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) Dockets No. 50-275, Pacific Gas & Electric CO. ) 50-323 (construction.

(Diablo Canyon Nuclear Power Plant, ) permit recapture)

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Units 1 and 2) .)

SAN LUIS OBISPO MOTHERS FOR PEACE'S REQUEST FOR LEAVE TO CONDUCT DISCOVERY ON NRC INQUIRY IFf0 ATTFRATIONS REGARDING PRESSURE TO FALSIFY FIRE WATCH LOGS, MOTION FOR POSTPONEMENT OF HEARING ON THERMO-LAG CONTENTION PENDING COMPLETION OF SAID DISCOVERY, AND REQUEST FOR EXPEDITED CONSIDERATION Introduction According to Board Notification 93-18 (July 15, 1993), the Nuclear Regulatory Commission ("NRC") received an anonymous let-tor, dated May 25, 1993, which alleged that a high ranking Pacif-ic Gas & Electric ("PG&E") officer pressured a PG&E licensing engineer to alter fire watch logs relied on by PG&E an com-A pensatory measures for inadequato Thermo-Lag fire barriers.

copy of the Board Notification is attached. This allegation boars directly on San Luis Obispo Mothers for Peace's

("SLOMFP's") Contention V, which challenges the adequacy of PG&E's fire watches to compensate for Thermo-Lag fire barriers.

The NRC failed to follow the Commission's established policy that l l

it must provide immediato notification of the allegation to the Board and parties as soon as it was received. Instead, it waited until only weeks before the hearing begins to disclose it to the parties, thereby depriving SLOMFP of its rightful opportunity to 9308160145 930911 PDR ADOCK 05000275 G PDR l i

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conduct discovery on this material evidence and prepare adequate-ly for the hearing. Accordingly, in order to permit SLOMFP to make a meaningful evaluation of this new evidence in preparation for the hearing on Contention V, SLOMFP requests that the Doard provide for discovery regarding the matters described in the Board Notification, and postpone the hearing on Contontion V un-til that discovery han been completed.  :

Because the hearing is scheduled to begin before the time for responding to this motion expires, SLOMFP requests that the In making Board give expedited consideration to this motion.

this request, SLCMFP notes that counsel for SLOMFP filed an ap-pearance for SLOMFP in this case on July 28, 1993, was out of town the following week, and did not receive the Board Notifica-tion from SLOMFP until returning to the office on August 9, 1993.

Counsel has made every effort to bring this matter before the Licensing Board as soon as ponsible after receiving the Board No-tification.

Statement of Facts ,

By order dated January 21, 1993, the Licensing Board ad- ,

mitted SLOMFP's Contention V to this construction permit recap-ture proceeding. As admitted, the contention was limited to the adequacy of interim fire protection measuros, including fire watches, to compensate for Thermo-Lag fire barricrc, which have been found to be defectivo. Id. at 38.

On July 15, 1993, the NRC issued Board Notification 93-18, which notified the parties of "new, relevant, and material in- 1

/d if '91 n uewn F.m 4

formation" regarding this procccding. Memorandum for Atomic Safety and Licensing Board Panel and All Parties from Theodore R.

Quay, Director, Project Directorate V, Division of Reactor Projecto III/IV/V, Office of Nuclear Regulation, re: Now In-formation Potentially Relevant and Material to the Licensing Board Proceedings in the Matter of Pacific Gas & Electric Company (Diablo Canyon Power Plant Units 1 and 2). The Board Notifica-tion provided a two-paragraph description of an inquiry by the NRC's Office of Investigations ("OI") regarding an anonymous let-ter, dated May 25, 1993, from individuals who identified them-selves as "two very concerned engineers." According to the Board Notification, the letter alleged the following:

[A] "high ranking" Pacific Gas & Electric [PG&E] em-playee put pressure on a PG&E licensing engineer to alter documents which will be introduced into evidence in the NRC Diablo Canyon construction period recapture proceeding. The allegation stated the PG&E employee with the " full knowledge and support of PG&E upper man-agement ... has directed [a named PG&E licensing engineer) to alter the fire watch logs with respect to problems identified with passive fire barriers that are taken credit for by PG&E as compensatory measures to mitigate the consequences of Thermo-Lag material." The letter further stated that, "The direction to alter theso logs was given at various meetings in a public forum. The cognizant engineer has repeatedly refused to be a part of this and because of this his career with PG&E is in jeopardy."

Td. The Board Notification gave only the following terse des-cription of OI's inquiry into the allegations:

The NRC Office of Investigations has conducted an in-quiry into this matter.

The named licensing engineer, being sworn, specifically denied that he was ever asked to alter the fire watch logs or any other documents by any employee, representative or agent of PG&E, or that any log was altered.

a)G n >93 11:ISVi r,e The Board Notification did not specifically state whethor ths in-quiry has been closed; however, Ann Hodgdon, counsel for the NRC Staff, has informed counsel for SLOMFP that the inquiry has e

ended.

ARGUMENT SLOMFP, as Intervenor in this proceeding, is entitled to a hearing on all matters that are material to tho license recapture Union of proceeding for the Diablo Canyon Nuclear Power Plant.

Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984),

c_e r t . denied, 469 U.S. 1132 (1985). In order to fulfill its statutory mandate to provide a full and fair hearing on material issues, the Staff is legally obligated to inform SLOMFP and the Board of significant new information bearing on those issues.

Vircinia Flectric_& Power co. (North Anna Power Station, Units 1

& 2), CLI-76-22, 4 NRC 480, 491 n. 11 (1976) . . Sgg also Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3),

ALAB-732, 17 NRC 1076, 1091 n. 18 (1983), citinn Consolidate _d

& 3), CLI-Edison Co. of N.Y. (Indian Point Station, Units 1, 2, 77-2, 5 NRC 13, 15 (1977). Moreover, significant new information or developments must be reported promptly: the Staff cannot delay the reporting until it has completed its own evaluation of the matter. Vircinia Power & Light Co._, supra, 4 NRC at 491 n.

11.

The pendency of an inquiry or investigation is no excuse for nondisclosure. Where the Staff or OI is concerned that dis-closure of information related to an investigation or inspection

r.1 AUG 11 93 11:1%N would prejudico its inquiry, NRC policy specifically provides for notification of the Board and parties and a determination as to Statement of Policy; whether in pamora review is appropriato.

Investigations, Inspections, and Adjudicatory Proceedings, 49 Fed. Reg. 36,032 (September 13, 1984).

In this case, the Licensing Doard admitted the adequacy of The NRC PG&E's compensatory fire watches as a material issue.

was obligated to promptly report any significant new information or developments bearing on the Board's resolution of this issue.

Yet, the Staff waited until mid-July to alert the Board of an al-legation, made in May, that a PG&E engineer had been pressured to falsify fire watch records. This information is directly relevant to the veracity and reliability of fire watch logs relied on by PG&E to establish the adequacy of its interim com-Even if the i

pensatory measures for Thermo-Lag fire barriers.

logs were not actually falsified, the pressuring of PG&E employ-ecs to falsify the logs, if established, would implicate the in-togrity of PG&E's fire watch program, and indeed its entire oper-ation. Thus, SLOMPF's interest in a full and fair haring on is-sues relevant to the adequacy of PG&E's intorim fire protection measures was prejudiced by NRC's delay in reporting the allega-1 tion.

Moreover, the Board Notification does not provide sufficient information to demonstrate that the allegation has been investi-gated adequately. For instance, the only information about'the inquiry provided by the Board notification is that the engineer l

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who was allegedly pressured to falsify fire watch logs was inter-viewed, and denied that he was ever asked to alter fire watch logs. Did the entire inquiry consist of interviewing this indi-vidual? SLOMFP believes that this would have been insufficient, in view of the fact that the allegation also stated that the in-and thus he may have-dividual's career with PG&E was in jeopardy, felt pressure to conceal information in order to protect his job.

including Was any attempt made to interview other PG&E employees, employees who were present at the meetings where the requests to falsify fire watch logs were allegedly made? Did OI examine original fire watch logs for evidence of falsification? What were the exact contents of the May 25 letter? None of this in- .

formation is provided in the Board Notification. .

Accordingly, in order to remedy the NRC Staff's wrongful withholding of material information from the Board and parties, and to ensure that SLOMFP has a meaningful opportunity to evaluate and present material evidence regarding information ob-tained through the Ol's inquiry, SLOMFP seeks a postponament of the hearing on Contention V, and an opportunity to conduct dis-covery against the NRC pursuant to 10 C.F.R. S 2.720(h). SLOMPP also requests that the Board order that the originals of all PG&E l l

fire watch logs ror compensatory fire watches in Thermo-Lag areas  ;

SLOMFP requests bc produced by PGLE for inspection wy SLOMFP.

that discovery commence one week following the conclusion of the hearing on Contention I.

Any inconvenience caused by the extension of this proceeding 4 i

will be far outweighed by the public interest in correcting the

WD 4)G 11 '93 - 11:2CR1 NRC staff's violation of well-estabidshed agency policy and More-ensuring the full development of a record in this case.

over, the extension will not prejudice PG&E's ability to operate the Diablo Canyon nuclear power plant, as PG&E's construction permit rocapture application has been filed years in advance of '

the termination of its existing oporating license.

espectfully submitted, G-s, (-

ane curran Harmon, Curran, Gallagher &

Spielberg .~

c/o IEER 6935 Laurel Avenue, suite 204 Takoma Park, MD 20912 (301) 270-5518 (301) 270-3029 (FAX)

August 11, 1993 I

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' ' F TD AU(s 11,93 .11 EDAM 4'% URITED STATES

[ NUCLEAR REGULATORY COMMISSION g

wassmoron. o.c. 20socoi Ouiy 15. G93

ket Nos. 50-275 Board Notification 93-18 and 50-323 .

Atomic Safety and Licensing Board Panel and All Parties MEMORANDUM FOR:

FROM:

Theodore R. Quay, Director Project Directorate V Division of Reactor Projects.III/IV/V Office of Nuclear Reactor Regulation

SUBJECT:

NEW INFORMATION POTENTIALLY RELEVANT AND MATERIAL TO THE LICENSING BOARD PROCEEDINGS IN THE MATTER OF PACIFIC GAS ELECTRIC COMPANY (DIABLO CANYON POWER PLANT UNITS 1 AND 2)

In conformance with the Commission's policy on notification of the Licensing Board on new, relevant, and material information, this memorandum calls attention to the information presented below.

The NRC received an anonymous letter dated May 25, 1993, from "Two very concerned engineers," alleging that a "high ranking" Pacific Gas & Electric

[PG&E] employee put pressure on a PG&E licensing engineer to alter documents which will be introduced into evidence in the NRC Diablo Canyon construction period recapture proceeding. The allegation stated the PG&E employee with the

" full knowledge and support of. PGaE upper management ... has directed [a named PG&E licensing engineer) to alter the fire watch logs with respect to problems identified with passive fire barriers that are taken credit for oy PG&E as compensatory measures to mitigate the consequences of Thermo-Lag material."

The letter further stated that, "The direction to alter these logs was given at various meetings in a public forum. The cognizant engineer has repeatedly refused to be a part of this and because of this his career with PG&E is in jeopardy."

The NRC Office of Investigation has conducted an inquiry into this matter.

The named licensing engineer, being sworn, specifically denied that he was ever asked to alter the fire watch logs or any other documents by any employee, representative or agent of PG&E, or that any log was altered.

Contact:

Sheri Peterson. NRR 504-1325 9307190102

AiX, 11 ' "E 11:21RM P.11" 4

cc:

NRC Resident Inspector Mr. Steve Hsu Diablo Canyon Nuclear Power Plant Radiolog1c Health Branch c/o U.S. Nuclear Regulatory Commission State Department of Health Services P. O. Box 369 Post Office Box 942732 Avila Beach, California 93424 Sacramento, California 94234

• Dr. Richard Ferguson, Energy Chair Sierra Club California Regional Administrator, Region V 6715 Rocky Canyon U.S.. Nuclear Regulatory Commission Creston, California 93432 1450 Maria Lane, Suite 210 Walnut Creek, California 94596 Ms. Nancy Culver Mr. Peter H. Kaufman San Luis Obispo Deputy Attorney General ,

Mothers for Peace State of California P. O. Box 164 110 West A Street, Suite 700 Pismo Beach, California 93448 San Diego, California 92101 Ms. Jacquelyn C. Wheeler Mr. Mark Urban 3303 Barranca Court Deputy Attorney General San Luis Obispo, California 93401 State of California 1515 K Street Managing Editor Sacramento, California 95814 The County Telegram Tribune 1321 Johnson Avenue Christopher J. Warner P. O. Box 112 Richard F. Locke San Luis Obispo, California 93405 Pacific Gas & Electric Company 77 Beale Street San Francisco, California 94106 Chairman San Luis Obispo County Board of Mr. John Townsend Supervisors Vice President and Plant Manager Room 370 Diablo Canyon Power Plant County Government Center P. O. Box 56 San Luis Obispo, California 93408 Avila Beach, California 93424 Mr. Truman Burns Mr. Gregory M. Rueger Mr. Robert Kinosian Nuclear Power Generation, B14A pacific Gas and Electric Company California Public utilitics Commission 77 Beale Street, Room 1451 505 Van Ness, Rm. 4103 San Francisco, California 94102 P.O. Box 770000 San Francisco, California 94177 Jerry R. Kline Administrative Judge Charles Bechhoefer Atomic Safety and Licensing Board Administrative Judge Mail Stop: EW-439 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 .

Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Commission Appellate Adjudication Frederick J. Shon Mail Stop: 16G15 OWFN Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 Mail Stop: EW-439-Washington, D.C. 20555

Atr. 11 '93 11f21AM ' m.

Board Notification 93-18 dated Sul v 12 1993 cc:

J. Taylor, EDO J. Sniezek, DEDR H. Thompson, DEDS J. Mitchell, EDO T. Murley, NRR F. Miraglia, NRR J. Partlow, NRR W. Russell, NRR ,

T. Martin, RGN-I i S. Ebneter, RGN-II A. Davis, RGN-III >

J. Milhoan, RGN-IV '

B. Faulkenberry, RGN-V L. Chandler GCC (3)

C. Cater, SECY (3)

5. Burns, OCAA ASLBP Office of the General Counsel .

NRR Division Directors NRR Deputy Directors NRR Associate Directors i NRR Assistant Directors -i NRR Project Directors "

NRR Brancn Chiefs .;

ACRS (3) 1 i

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AUG'11 '93 ' 11: 21Ar1 ' r> Y3 CERTIFICATE OF SERVICE 1993, copics of SAN LUIS OBISPO I certify that on August 11, N NRC IN-  !

MOTHERS FOR PEACE'S REQUEST FOR LEAVE HTO LOGS, COND QUIRY INTO ALLEGATIONS REGARDING PRESSURE MOTION FOR POSTPONEMENT OF HEARING cN T COMPLETION OF SAID DISCOVERY, lie following parties by first-class mail and as o were served on wise indicatod:

Edward O'Neill

• Charles Bechoofer Peter Arth, Jr.

Adminictrative Judge Truman Burns U.S. Nuclear Regulatory Cosmicsion Robert Kinasian '

Washington, D.C. 20555 Peter G. Fairchild, Esq.

California Public Utilities

• Jorry Kline Comission Administrative Judge 505 Van Ness Avenue 94102 Atomic Safoty and Licensing Board San Francisco, CA U.S. Nuclear Regulatory Commission Washintgon, D.C. 20555

• Christopher Warnor, Esq.

• Fradorick J. Shon Richard Locke, Esq.

Administrative Judge Pacific Gas & Electric Co.

Atomic Safety and Licensing Board 77 Beale Street U.S. Nuclear Regulatory Commission San Francisco, CA 94106 Washington, D.C. 20555

• David Ropka, Esq.

Winaton & Strawn

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d 1400 L Street N.W. 20005 ==

Washington, D.C. E 7,

• Ann P. Hodgdon, Esq. 2:

OfficeNuclear of General Counsol Regulatory Commission U.S.

20555

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Washington, D.C.

k Adjudicatory Fi'.e U.S. Nuclear Regulatory Commission Washington, D.C. 205b5 .

• Secretary of the Commission ATTN: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert R. Wellington, Esq.

Diablo Canyon Independent Safety Committee 857 Cass Street, Suite D Monteroy, CA 93940-( 4_. L'- -

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Diane Curran

• Also by FAX

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