ML20056E802

NRC Staff Opposition to San Luis Obispo Mothers for Peace Leave to Conduct Discovery on NRC Inquiry Into Allegations Re Pressure to Falsify Fire Watch Logs Motion for Postponement of Hearing....* W/Certificate of Svc

ML20056E802
Person / Time
Site:	Diablo Canyon
Issue date:	08/12/1993
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#393-14211 OLA-2, NUDOCS 9308250185
Download: ML20056E802 (7)

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. Mz t l August 12,1993 I ~

UNITED STATES OF AMERICA NUCLEAR REGULATORY COhD4ISSION

'93 IG 16 T. '/ 2 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket Nos. 50-275 OLA-2 PACIFIC GAS & ELECTRIC CO. ) 50-323 OLA-2

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(Diablo Canyon Nuclear Power Plant, ) (Construction Period Recovery)

Units 1 & 2) ) -

NRC STAFF'S OPPOSITION TO SAN LUIS OBISPO MOTHERS FOR PEACE LEAVE TO CONDUCT DISCOVERY ON NRC INQUIRY INTO ALLEGATIONS REGARDING PRESSURE TO FALSIFY FIRE WATCH LOGS, MOTION FOR POSTPONEMENT OF HEARING ON THERMO-LAG CONTENTION PENDING COh&LETION OF SAID DISCOVERY. AND REOUEST FOR EXPEDITED CONSIDERATION On August 11, 1993, San Luis Obispo Mothers for Peace (SLOMFP), filed the above Motion for " Leave to Conduct Discovery on NRC Inquiry Into Allegations" and for a postponement of the hearing on the Thermo-Lag contention until that discovery is completed.' The Staff opposes this Motion.

DISCUSSION The NRC Staff opposes the Motion principally on the ground that SLOMFP is seeking to change this proceeding, which involves whether the periods spent in construction should be recaptured into the operating license terms, into an investigation 2 Notice of the allegation and the Staff's inquiry into this matter was given to the Licensing Board and the SLOMFP on July 15, 1993. SLOMFP waited until August 11, l 1993, on the eve of the August 17,1993, hearing to file this motion, and gives no reason l why it did not take this action in July. The fact that SLOMFP's attorney did not learn of this matter until she returned from vacation is no excuse for this delay.

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V of how the Staff conducted an inquiry into an anonymous allegation that pressure was put on an engineer to falsify fire watch records.' The contention for which postponement of the hearing is sought challenges the adequacy of the licensee's interim measures, principally fire watches, to compensate for Thermo-12g fire protection features declared inoperable. LBP-93-1, 37 NRC 5,26-28 (1993).

The licensee has offered as its witnesses on this contention David K. Cosgrove, whom it identifies as the Supervisor of the Safety and Fire Protection Group at Diablo Canyon, and Robert P. Powers, who was Manager of the Support Services Department at Diablo Canyon. The prefiled testimony of these witnesses explicates how fire watch activities at Diablo Canyon are documented:

The reving watch carries a portable electronic "bar code" reader wand I

(similar to those in use at retail markets) which scans bar codes installed in the fire areas along the tour route. At the end of the shift, the hand 1 wand (about the size of a personal calculator) is down-loaded to a personal computer and a printout of the watch activities is generated that documents the watchstander's name, badge number, the location of each area and the time the watch was in the area. The program also utihzes a results code, )

so that any special conditions identified during the hourly inspection can also be documented. The log of the watch activities is maintained on a computer disk and in hardcopy form for one year by the Fire Protection Specialist.

The continuous firewatch records are maintained by hand and consist of a logsheet that describes the location of the continuous watch to record the watchstander's name and time once each hour.

2 The allegation indicates that the engineer refused to falsify the record, and does not state that the records were falsified. For a discussion of the Staff's duty to evaluate the allegations before notifying a Board, see " Statement of Policy: Handling of Late Allegations," 50 Fed. Reg. I1,030,11,032 (July 19,1985), quoted in n.5 below.

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l V j j Testimony of Pacific Gas & Electric Company Contention V: Thermo-Lag j I

l l i Compensatory Measures (filed August 2,1993), at 11. SLOMFP can fully inquire into l

any question of whether these electronically recorded bar code fire watch logs are accurate, whether any were falsified, and the ease or difficulty of falsifying them, by i

l directly examining those responsible for the fire watches and the fire watch records. To l l

l maintain that discovery should be had into how the Staff conducted an inquiry into the anonymous allegation would misdirect the hearing from examining the question of whether fire watches were properly conducted into the non-germane issue of whether the l Staffs inquiry into the anonymous allegation was sufficient.'

Although SLOMFP states that it "is entitled to a hearing on all matters that are j material to the license recapture," Motion at 4, there is no showing that the adequacy of l l

the Staff's inquiry is material to that issue, or that the material issue of the adequacy of l

fire watches cannot be examined in hearing.'

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SLOMFP's attempt to redirect this proceeding to an investigation of the Staff is highlighted at 5-6 of Motion, where SLOMFP indicates it is mainly interested in how the i Staff conducted its inquiry rather than the accuracy of the records. Substantial questions l exist of whether SLOMFP may have discovery of the Staff on the conduct ofits inquiry.

As SLOMFP recognizes, Motion at 6, discovery against the Staff is governed by i 2.720(h). Under that provision, discovery against the Staff may only be had when

'necessary for a proper decision in the proceeding." The issue herein is not the Staff's inquiry, but the adequacy of the licensee's fire watches. Thus, discovery on the adequacy of the Staff's inquiry could not be had.

' The issue of pressure on Diablo Canyon employees absent changes in the logs, Motion at 5, is not the subject of a contention, and is not germane.

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Y In sum, SLOMFP shows no reason to substitute discovery into how the Staff inquired into an anonymous allegation that an attempt was made to falsify records for a direct inquiry at hearing as to whether the records were falsified 5 5

SLOMFP claims that the Staff did not fulfill a duty to report the matter before the Staff " completed its evaluation" (Motion at 4), claims that inquiry into this matter is necessary "to remedy the NRC Staff's wrongful withholding of material information from the Board and the panies," (Motion at 6), and states that delay in completing this proceeding "will be far outweighed by the public interest in correcting the Staff's violation of well-established agency policy." Motion at 6-7. These statements are unsupported. Upon receipt of an anonymous and unsupported allegation that pressure was applied to change records, the Staff rightfully inquired into whether there was support for this statement before acquainting the Board and the parties (weeks in advance of hearing) with the fact that such an anonymous letter was received and upon inquiry was shown to be without basis. The Commission's " Statement of Policy: Handling of l2te Allegations," 50 Fed. Reg. 11,030,11,032 (March 19,1985), provides:

[I]n the future, staff board notifications of allegations will not be made until the staff has made at least an initial screening of the allegations.

Only those allegations which are found not to be frivolous, which are relevant and material to the decisionmaking process (as determined under existing board notification procedures) and which are determined to warrant further scrutiny will be submitted to the presiding tribunal. Board notifications should still be made promptly, consistent with the need and time required for screening.

Thus, although the Staff, perhaps, was not required by Commission policy to make the subject Board notification because it was not " determined to warrant further scrutiny,"

no harm was done by the Staff's notifying the Board and the panies that it looked into the matter to see if further scrutiny was required.

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l CONCLUSION i

For the above stated reasons, the subject Motion should be denied.  ;

Respectfully submitted,

&M Edwin J. 's Deputy Assistart General Counsel for Reactor Ucensing Dated at Rockville, Maryland i this 12th day of August 1993 i  !

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UNITED STATES OF AhERICA NUCLEAR REGULATORY COMMISSION .g g. g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -

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l In the Matter of )

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PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275 OLA-2

) 50-323 OLA-2  ;

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(Diablo Canyon Nuclear Power Plant, ) (Constructed Period Recovery) j Units 1 and 2) )  ;

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S OPPOSITION TO SAN LUIS OBISPO MOTHERS FOR PEACE LEAVE TO CONDUCT DISCOVERY ON NRC INQUIRY INTO ALLEG ATIONS 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" 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, by deposit in the Nuclear Regulatory Commission's internal mail system, this l 13th day of August 1993 and, also, as indicated by a double asterisk, by facsimile on the j 12th day of August 1993:

" Charles Bechhoefer* Frederick J. Shon* l Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board  ;

Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission  !

Washington, DC 20555 Washington, DC 20555 )

Jerry R. Kline* Office of Commission Appellate '

Administrative Judge Adjudication

• Atomic Safety and Licensing Board Mail Stop: 16-G-15 OWFN' Mail Stop: EW-439 U.S. Nuclear Regulatory Commission l U.S. Nuclear Regulatory Commission Washington, DC 20555 l Washington, DC 20555 l

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Adjudicatory File * (2) Office of the Secretary * (2) l Atomic Safety and Licensing Board Attn: Docketing and Service l Panel Mail Stop: 16-G-15 OWFN j Mail Stop: EW-439 U.S. Nuclear Regulatory Commission  ;

U.S. Nuclear Regulatory Commission Washington, DC 20555 'l Washington, DC 20555  !

• • Joseph B. Knotts, Jr., Esq. i Atomic Safety and Licensing Board ** David A. Repka, Esq.  !

Panel

• Kathryn M. Kalowsky, Esq.

Mail Stop: EW-439 Winston & Strawn U.S. Nuclear Regulatory Commission 1400 L Street, N.W. l Washington, DC 20555 Washington, DC 20005-3502 l 3

Nancy Culver, President Truman Burns l San Luis Obispo Mothers for Peace Robert Kinosian  !

l P.O. Box 164 California Public Utilities Commission l l Pismo Beach, CA 93448 505 Van Ness, Room 4103 [

San Francisco, CA 94102 l

" Christopher J. Warner i Richard F. Locke ** Diane Curran l Pacific Gas & Electric Co. IEER  !

77 Beale Street 6935 I2urel Avenue, Suite 204  :

l San Francisco, CA 94106 Takoma Park, MD 20912 l l  :

Greg Minor i MHB Technical Assoc.  !

1723 Hamilton Avenue, Suite K  !

San Jose, CA 95125 i i

't l Edwin . Reis l Dep Assistant General Counsel for Reactor Licensing l

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