ML20052A454
| ML20052A454 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 04/22/1982 |
| From: | Doherty J DOHERTY, J.F. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20052A455 | List: |
| References | |
| ISSUANCES-CP, NUDOCS 8204280345 | |
| Download: ML20052A454 (12) | |
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UNITED STATES OF AM.lRICA NUCLEAR REGULATORY CO:GISSION
' April 22, 1982 BEFORE TEE ATO7IC SAFETY AND LICENSING BOARD
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In the Matter of:
HOUSTON LIGHTING & PO'.(ER CO.
Decket No. 50-466 CP (Allens Creek Nuclear Gener-ating Station, Unit 1)
INTERVENOR DOHERTY'S CONTENTION 58, AF?LICANT'S CONDUCT ON REPORTING VIOLATIONS AT STNP (MOTION)
Introduction This contention is in two parts.
Dcherty 58A is below, Doherty 58B begins at page 5, infra.
The conclusion and timeliness sections in this motion apply to both parts of this contention.
Doherty Contention 98A Intervenor contends Applicant has no demonstrated it is able to comply with NRC regulations, s ecifically 10 CPR 50.55(e) and hence should not be granted a construction per-mit for the the proposed ACNGS.
This contention is based on Aoplicant's failure to report under this regulation, defici-encies found by the Quadrex Corporation in its recort on design work by the Brown & Root Company at the South Texas Nuclear Pro, ject (STNP), of May, 1981.. The report was ordered released to this Intervenor, the Board and other parties, by November 20, 1981, in an Order dated N:venber 10, 1981. Failure or inability to comply with this regulati:n endangers the safety of this Intervenor because 10 CFR 50 55 deals'with effects on,
... safety of operations of the nuclear power plant."Nand de-ficienciec found in design and construction.
This regulation acclies to holders of construction pernits, such.as the Acoli-cant.
Intervenor asserts below that this inability shows the Apolicant lacks the technical competence to construct the ACNGS.
Suncortinc Material to Contention 58A The Quadrex Corp. Report on STNP (hereinafter: Cuadrex/STN?)
basis for this contention, at Page 3 9,
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Findings", and at Page 4-1, ranked its " Technical Discipline Adecuacy Assessments".
Both lists of rankings had an iden-tical highest ranking, "Most Serious Findings", defined as
"...those that pose a serious threat to plant licenseability because either,(a) the finding would prevent the obtaining of a license, or (b) the findine could produce a significant delay in getting a license, or (c) the finding addresses a matter of serious concern to the URC at this time." (emphasis added)
The recort then listed 120 2/ "most serious" items, without indicating which of the subparts (a) through (c) of its definition of most serious finding each item fit into.
The Applicant found three of the items reportable under 10 CPR 50 55(e) in May 1981, and a fourth was reported in 1982.
The regulation,10 CFR 50 55(e)(1) places reliance on Licensees and Applicant's to police themselves.
The rule states:
If the permit is for construction of a nuclear power plant, the holder of the permit shall no-tify the Commission of each deficiency found in design and construction, which were it to have remained uncorrected could have effected adversely the safety of operations of the nuclear power plant at any time throughout the expected life time of the plant...
This Board noted in its Crder of January 29, 1982, that the findinFs listed in Doherty Hotion A through 0 were "sce-cific safety related deficiencies", 2/ yet Applicant did not file any of the Quadrex/STUP Reoort generic findin5s to the HRC under 10 CFR 50.55(e).
All of the Dohergty Motion A through 0 items were from the generic findinEs of the report.
While this Intervenor believes this lack of filing on the Doherty A through 0 deficiencies shows the Applicant has not demon-strated compliance with a signficant Commission regulation, it should be pointed out that Applicant did not report but three of the c:her Quadrex/STNP "most serious" items. It seems very unlikely bhere were but three that Quadrex considered to 2/ ccording to, "An Assessment of the Findin.7s in the Quadrex A
Cor7 oration Recort", orepared by 3echtel Power Coro for Acoli-cant, in March 1982, in Table 3-3, at F.
4-8.
2/ At p. 6
_3_
be "... finding (s) adressing a matter of serious concern to the NRC at this time."
This Intervenor would point out that the threshold for a reportable finding under the regulation is low.
The re-quirement is only that the deficiency "could" affect adversely a nuclear power plant.
This certainly means the Commission wants to get the reports even if some prove later deficiency over-estimation.
Aoplicant has done this on at least two occaisions as is shownby the enclosed Attach =ents 1 and 2.
These reveal two instances where Apolicant had filed 10 CFR 50.55(e) reports but at the 50 day written repcrt deadline (specified in 10 CFR 50 55(e)(2)) advised the NRC they had determined the condition was not reportable. Put simply, the Commission, through the regulation,wants to know what the Licensees are deciding is not worth telling the Com-mission about:, through 10-CFR 50 55 As late as March 9, 1982, the Commission stated a pur-pose of the NRC's enforcement program was." obtaining prompt correction of non-ompliance". (47 Fed. Reg., at 9999) "Could" as used in 10 CFR 50 55(e) plainly means a report should be made at the apoearance of a deficiency and it is undesirable to have a licensee decide whether in fact the deficiency would have an adverse effect on safety before recorting it to the agency.
This Intervenor urges that these regulations applied more strongly to Applicant at the time of the Quadrex/$TNP Report, than to other licensees, because of the history of EL&P's nerformance at the STNP and resultant special concern that nuclear project has been to the Commission.
This con-cern is shown by Doherty Exhibit 4 & 5 in this proceeding; a Show Cause Crder from the Commission to the Applicant for violations which later resulted in the maximum permissible fine (CLI 80-32), and the findings of the Syste=atic Assess-ment of Licensee Performance Review Group, which rated the SZIP "below average".
Of the n2 projects under construction at-the' time of the review, only seven were "below average".
_4_
In addition, the NRC Director of Operations, William Dircks, stated in a Congressional Hearing:
Briefly the Quadrex Report found that Brown &
Root apparently failed to properly implement a Quality Assurance program in the design area but also failed to properly implement an overall design process consistent with the needs of a nuc-lear power plant....Though we were aware 6f Qdal-ity Assurance' broblems 'at South Texas and had cited the licensee for a breakdown in their Quality Assurance program in April 1980, the magnitude of potential problems was not fully appreciated until we first reviewed the report in August, 1981.
(Testimony of William J. Dircks, Executive Director for Operations, NRC, before the Subcommittee on Energy and the Environment of the House Interior Committee, November 19, 1981)
This testimony, while later than May of 1981, shows what Auplicant had the ooportunity to know in May, namely that there were serious problems.
The order to Show Cause of April, 1980, and the Quadrex/
STNP report placed Applicant on notice that the NRC was esoec-
~ ially concerned about Quality Assurance at the STNP. But, in May, 1981, when the Quadrex/STNP report was received by the Applicant, and desoite the fact its " Generic Findings" listed items that were part of the Quality Assurance effort (Tr. 21,852, 21,861, 21,867, 21,872) and desuite the low thre-shold for 10 CFR 50 55(e) renorts as exclained above, the Applicant did not recort any Quadrex/STNP " Generic Findings" under 10 CFR 50 55(e).
This Intervenor is not saying that he knows as a fact that the Quadrex/STNP report Save problems which would have resulted in an adverse effect on safe operation of the STNP, but rather, that among the many generic and technical disci-oline adequacy assessments, the Apolicant found so little re-portable material that its competence to comply with the intent of this important safety related regulation is called into question.
In the case of Quality Assurance items, the evidence that items related to it should have been reported is streng-thened by the clear previous NRC involvement, and the fact that Mr. Gerald Goldberg of Applicant testified that Cuality Assurance was involved in at least four of the Generic Items
7 from the Quadrex/3 TUP report which this Intervenor placed in controversy in the "Doherty A through 0 issues" which were the primary subject of our April 12 - 14, 1982 hearings.
However, this Intervenor maintains it may be inferred that Applicant could not comply with regulations and requi're-ments in 10 CFR 50 55(c) for reasons which will be extant for the ACNGS as'well as the STNP, because at both STNP and ACNGS, the licensee will be the same entity with very likely the same policy for both units, and the same exec-utive leadership for both units. (See Applicant's Exhibit 30)
This failure to refort is not a matter merely of his-torical significance at the STNP.
Mr. Goldberg Vice-Pres-ident for Nuclear Engineering and Construction,(Applicant's l
Exhibit 32) testified in this proceeding that he was per-sonally involved in making the decision on what to report pursuant to 10 CFR 50 55(e), Tr. 21,570.
He further tes-cified that he was involved because the findings were of a technical nature recuiring his involvement, Tr. 21,838.
Presumably, if a similar situation arose at ACNGS, Mr.
Goldber5's involvement would once again be required to decide whether reports should issue to the NRC.
If Mr.
Gcidberg is not technically competent to recognize recort-able deficiencies, then his technical qualifications to perform a significant role in the construction of the ACNGS is called into question.
Given the general and soecific obligations set forth above, the failure of Applicant to report more than three of the findings Dromptly demonstrates at a minimum, an insbility on the cart of Applicant to recognize significant safety-related deficiencies and to comply with obligations to report such deficiencies to the NP.C.
Doherty Contention 58B.
By recorting.but three findings from the Quadrex Report under 10 CFR 50.55(e) by May 12, 1981 2!, the Applicant de-liberately orevented the NRC, and the. Board and parties in 2/ Staff Resnonse to Intervenor Doggett's First Zet of Inter-rogatories, Item #5, March 24, 1982, n.
4.
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this oroceeding from learning the true significance of the Quadrex/STNP Reoort's findings, and their implications for judging the Applicant!s. technical competence, and whether the Applicant can be held to an~ '.' extraordinary responsiblity for safety".1!
Suonortine Material to Contention SSB This part of the contention is based on first, the attached, " Chronology Related to the Quadrex Report on South Texas", dated December 15, 1981, a Memorandum to then Commissioner Bradford, from '..'illiam J. Dircks, NRC Executt ve Director for Operations, (Attachment 3), which was Doherty Marked for Exhibit 8 in this proceeding.2/The Attachment 3 was denied admissibility in these proceedings as it was deemed to exceed the scope of the issues then in controversy, Tr. 21,725 When it is compared to the " Chronology" atta-ched to this Intervenor's March 29, 1982, "Intervenor Doherty's Motion for the Board to Call as a Witness, Donald E. Sells l
(NRC) for TexPIRG Additional Contention 31 and Quadrex Re-lated Matters", differences are insignificant in terms of the question when the NRC first received a cocy of the Quad-F rex /STNP report for full review.
In fact, this Intervenor is aware that William Dircks, of the NRC, also sent a memo-randum to the Commission on January 11, 1982, in which he concurs with this Intervenor's assertion the two chronologies are insignificantly different.
This Intervenor does not have a copy of this memorandum to attach, since it is not yet in the public document room in Washington D. C.
How-ever, this Intervenor fully expects the Staff will provide the January 11, 1932 memorandum on discovery if this conten-tion is admitted.
2! n the Matter of Atlantic Research Corcoration, CLI 80-7, I
March 14, 1980; CCH 30,459, at 29,302.
2! roduced by Staff in its March 24, 1982, Reply to Inter-P venor Doggett's First Set of Interrogatories and Request for Documents.
L
7-Next, the contention part is supported by the conclusion of Mr. Dircks in Attachment 3 at aid-page, where he states,
"...the notential significance of the findings was not made known in a timely fashion." Mr. Dircks,was plainly speaking of the NRC not Setting the information in a timely fashion.
From these two Chronologies, the appearance of a deliberate attempt to prevent the NRC, and this Board and parties from learning the true significance of the Quadrex/STNP Report energes.
'dhether in fact such an atteant was made can only be determined through discovery, testimony, and cross-examin-ation of witnesses.
Conclusion Intervenor therefore preys that his Contention 58, con-sisting of parts A and 3 be admitted into this proceeding based on the information provided.
There is substantive evidence the Applicant cannot comply with 10 CFR 50.55(e) because it lacked the ability to perceive in the Quadrex/
STNP Report what it had to do with regard to regulaticns or, in the alternative Applicant recognized the signifi-cance of the report, but failed to inform the NRC in any way, causing it not to investigate or obtain a copy of the report until a much later time.
This delay or failure to report Quadrex/STNP Report findings hampered two Licensin6 Board efforts to judge its comee:ence, and this Intervenor was seriously hampered in exercising his rights with retard to TexPIRG Additional Contention 31, and the nost recent issues we've had in hearing, the so called "Doherty A through 0 issues".
Timeliness Recuirement for this Filine after the Record is Closed A. There is good cause for the lateness in filing this addi-tional contention for Board consideration.
By granting this Intervenor's Renewed Motion for Addi-tional Evidence on TexPIRG Additional Contention 31, (Aopli-cant's Technical ;ualifications), the Board recognized that
_c-issues related to the Quadrex/3 TUP Report were considered legitimately excluded from timeliness bars because the recort did not become available until very late in this proceeding.
The Board's Order of January 28, 1982, re-ooening this proceeding indicated the Board itself was concerned with whether EL&P informed the Board in a timely fashion of the recort, (p. 3,6).
The Board Order of April 8, 1982, indi-cated the issue of disclosure was at least marginally relevant and denied without prejudice this Intervenor's motion to subpoena an NRC witness on this matter.
From the Board's two Orders cited above, this Inter-venor exoected to be able to explore both issues set forth in this motion during the hearing convened on April 12, 1982.
This exoectation is demonstrated by interrogatories to Apoli-cant of both the 10 CFR 50.55(e) issue and disclosure in general. These Interrogatories included: in Set #1, items 8, 9, 10, 11, 14, and 17; in Set #2, items 33, 34, and 35; in Set #6, item 2; and in Set #7, item 6, 20, and 32.
The discovery process for the April 12 hearing resulted in Attachment 3 coming into the possession of this Intervenor for the first time on aporoximately March 27, 1982, as part of the Staff's response to item 7 of Doggett's Interrogatory Set 1.
At the April 12-14, 1982 hearings, the Board restricted cuestions on these issues to narrow areas of fact, Tr. 21,688 line 7 et sec.; 21,696, line 23, et seo.; and 21, 834 line 19 et sec.
The Board soecifically denied this Intervenor the opportunity to cross examine regarding Attachment 3, Tr.21,727.
Similarly, the Board denied this Intervenor the ooportunity to cross examine regarding an apparent IIRC investigation on L
whether Apnlicant deliberately witheld the Quadrex/STNP Reoort from the NRC.
Only by actually attemoting to cross examiae on these issues relevant to Doherty Contention 58 as set forth above, could this Intervenor know whether the Board's Orders of January 28, 1982 and April 8, 1982 would permit such issues to be raised and fully litigated.
Now that the Board's po-l sition on them is clear, this =otion is being filed eight days i
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from the date of the close of the hearings at a time when'this Intervenor is in the midst of findings of fact on that hearin6-For the above reasons, there is good cause for the lateness in filing this additional' Contention for Board consideration.
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B. Assuming good cause for lateness is established, the bal-ancing of the five factors in 10 CFR 2 714(a) (1-v) determines whether the issues should be admitted for hearing.
According to previous rulings of the Commission, late filed issues are first examined to see if there is good reason for lateness and then a balancing test is c:nducted of the five factors in 10 CFE 2.714(a)(i-v) to determine if the issues i
should be admitted, Facific Gas and Electric Comnanv (Diablo 2
Canyon Nuclear Power Plant, Units 1 and 2), CLI 81-5,13 URC 361, 364 (1981).
The five factors are:
(1) Good cause, if any, for failure to file on time.
(2) The availability of other means whereby petitioner's interests will be protected.
(3) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound rec-ord.
(4) The extent to which the petitioner's interest will be represented by existing parties.
(5) The extent to which the petitioner's participation will broaden the issues or delay the proceedings.
1.
The new issues are filed for consideration on time.
The events creating the basis for raising these issues in a separate motion occurred the week of April 12, 1332, in which the Board ruled 'regarding the scoce of the hearing convened that week.
This motion is filed as auickly^as possible aftertthe close of that hearing.
2.
Only admission of the additional contention can pro-tect this Intervenor's interests.
The only available forum for determining whether Applicant should receive a construction permit for the ACNGS is this pro-ceeding.
This Intervenor filed for and received permission to intervene in this croceeding in order to contest the granting
. of this construction nermit.
Only by granting the instant motion can the Board assure this Intervenor an occortunity to litigate the contention raised in the context of the ACNGS.
- 3. Absent the admission of this ney contention, the record of this proceeding will be seriously flawed.
Both the failure to recort pursuant to 10 CFR 50 55(e) and the possible deliberate failure to disclose raise very serious questions relevant to whether the Applicant should be granted a permit to build the ACNGS. Much of the faith of the NRC in A7elicant's improved perforr.ance rests on the credentials and exnertise of Jerome Goldberg, Tr. 22010, line 12.
The central figure in the failure to report pursuant to 10 CFR 50.55(e) and the possible deliberate non-disclosure is the same Mr. Goldberg.
As Vice President for Nuclear Engineering and Construction, Mr. Goldberg is obvicusly a central figure in the Anplicant's effort at ACNGS.
The fact that the events forming a basis for the new centention took place at another nuclear olant is irrelevant since the same personnel are involved as in this proceeding and the events took place while this nroceeding was under way.
Aside from the oeople involved, Contention 58 raises a cuestion re5arding the technical competence of Applicant which is already in issue in this proceeding, TexPIRG Addi-tional Contention 31.
Getting to the facts on this issue would stren-then the i
record.
4 The issue of this Intervenor's interests being ren-resented by existing carties is noot.
This Intervenor is alreadr recognized as representing an independant viewooint.
Factor four, is unicuely applicable to a netition for leave to intervene.
In addition no other party has assumed as much of the ourden in the Technical Qualification Issue as this one.
- 11
- 5. The issue of technical qualifications, part of Conten-tion 53 is among issues currently before the Board as within TexPIRG Additional Contention 31. The issue in Contention 58B is of much importance to the ultimate decision which must be reached by this Board on the qualifications of the Applicant.
klhile admission of this contention will lengthen the construc-tion permit proceeding, the primary resposibility for delay rests with the Applicant.
As argued above, a failure to recognize and report a de-ficiency recortable pursuant to 10 CFR 50.55(e) demonstrates a serious lack of technical competence.
Contention SSB raises a very serious question about Appli-cant's willingness to conform with both the spirit and the letter of the NRC's self-policing regulatory process.
The issue goes even further in suggesting Applicant might deliberately obstruct the NRC in the conduct of a full regulatory review.
Issues of such importance are clearly relevant to this Board's determin-ation on whether Apulicant has the qualifications to receive a construction permit for the ACNGS.
Obviously to admit these issues would lengthen the con-truction oermit proceedings, but this Intervenor maintains that these issues exist because the Applicant delayed in communica-ting the significance of the findings in the Quadrex/STNP report to the NRC.
The Applicant's delay should not form a basis for denying an Intervenor's motion for a new Contention.
Conclusion on timeliness While the fourth relevant factor weighs against admission, there are mitigating circumstances.
The other three factors succort admission of this Contention.
A balancing of the four relevant factors in 10 CFR 2.714(a)(i-v) favors the admission of Contention 58 and a reopening of this proceeding to litigate it.
l Respectfully, e
ohn F. Doherty Intervenor cro se i
CERTIFICATE OF SERVICE I certiff that copies of the attached, "INTERVENOR DOEERTY'S CJNTEUTION 53, APPLICANT'S CONDUCT ON REPORTING VIOLATIONS AT STNP (MOTIO!;)" were served on the parties below via First Class U. S. Postal Service, this JUkY8 of April, 1982, from Houston, Texas.
Sheldon J. *4olfe, Esq.
Administrative Judge Gustave A. Linenberger Admiaistrative Judge Dr. E. _.eonard Cheatum Administrative Jud6e Richard Black, Esq.
Staff Counsel J. Gregory Cuneland, Esq.
Applicant Counsel Jack R. Newman, Esq.
Applicant Counsel Docketing & Service U.S.N.R.C.
The Intervening Parties Atomic Safety Licensing and Appeal Board (ASLA3) l Respectfully, l
Jonn F.
Doherty l
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fluclear Regulatory Cor:.ission 611 Ryan Plaza Drive Suite 1000 Arlington, Texas 76102
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Dear Sir:
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Docket Nos. STff-498, STff-499 Lineal Ir.dication in the #4 Stem t
Generater Cold Leo l'ozzle - Unit di-On April 3,1980, -Ouston Lighting & Power Company notified your office of a potent al deficiency involving a lineal indication I
on the Unit 1, 84 stoca ;cnerator cold 109 no :le.
The determination has been cade that this event does not meet the criteria of 10 CFR 1
50.55(e) and therefore is not reportable.
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E. A. Turner Vice President Power Plant Construction
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J.R. fiocan (Lowanstein,Jg;t'an, Rois, Axelrod S Toll)
Director, Offico of InspecReca S Enforcement Nuclear Regulatory Cc= mission j,
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J. H. Goldberg September 14, 1981 J. G. Dewease ST-HL-AE-729 D. G. Barker SFN: Y-0530 C. G. Robertson Page 2 Howard Pyle R. L. Waldrop H. R. Dean D. R. Beeth J. D. Parsons l
J. W. Williams J. W. Briskin J. E. Geiger STP RMS H. S. Phillips (NRC)
J. O. Read (Read-Poland,Inc.)
M. D. Schwarz (Baker & Botts)
R. Gordota Gooch (Baker & Sotts)
J. R. w ean (Lowenstein, Newnan, Reis, A Axelrad)
Director, Office of Inspection & Enforcement Nuclear Regulatory Comission Washington, D. C. 20555 R. L. Range /G. W. Muench Charles Bechhoefer, Esquire Chairman, Atomic Safety a Licensing Board Central Power a Light Company U. $. Nuclear Regulatory Coureission l
P. O. Box 2121 Corpus Christi, Texas 78403 Washington, D. C.
20555 R. L. Hancock/G. Pokorny Dr. James C. Lamb, III i
City of Austin 313 Woodhaven Road P. O. Box 1t48 Chapel Hill, North Carolina 27514 Austin, Texas 78767 J. B. Poston/A. vonRosenberg Mr. Ernest E. Hill City Public Service Board Lawrence Livermore Laboratory P. O. Box 1771 University of California San Antonio, Texas 78296 P. O. Box 808, L-46 Livennore, California 94550 Brian E. Berwick, Esquire William S. Jordan, III l
Assistant Attorney for the State of Texas Hanson & Weiss P. O. Box 12548 1725 1 Street, W. W.
Capitol Station Suite 506 Austin, Texas 78711 Washington, D. C.
20006 Lanny Sinkin Citizens for Equitable Utilities, Inc.
Citizens Concerned About Nuclear Power c/o Ms. Peggy Buchorn 5106 Casa Oro Route 1, Eox 1684 San Antonio. Texas 78233 Brazoria, Texas 77422 l
Jay Gutierrez, Esquire i
Hearing Attorney l
Office of the Executive Legal Director O. S. Nuclear Regulatory Cormission Washington, D. C.
20555 Revision Date 7-28-81 r
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