ML20062L525
| ML20062L525 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/16/1982 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20062L529 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8208190139 | |
| Download: ML20062L525 (25) | |
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- t 1 UNITED STATES OF AMERICA .. ,
NUCLEAR REGUIATORY COMMISSION 2
3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 In the Matter of )
) Docke t Nos. 50-275 O.L.
5 PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.
)
6 ( Diablo Canyon Nuclear Power ) (Full Powe r Proceeding)
Plant, Unit Nos. 1 and 2) )
7 8
RESPONSE OF PACIFIC GAS AND ELECTRIC COMPANY 9 TO GOVERNOR BROWN'S MOTION TO REOPEN THE RECORD 10 MALCOLM H. FURBUSH 11 PHILIP A. CRANE, JR.
RICHARD F. LOCKE 12 Pacific Gas and Electric Company P. O. Box 7442 13 San Francisco, California 94120 (415)781-4211 14 ARTHUR C. GEHR 15 Snell & Wilmer-3100 Valley Center 16 Phoenix, Arizona 85073 (602)257-7288 17 BRUCE NORTON 18 Norton, Burke, Berry & French, P.C.
3216 N. Third Street 19 Suite 300 Phoe n ix , Arizona 85012 20 (602)264-0033 21 22 Attorneys for Pacific Gas and Electric Company 23 24 25 DATED: August 16, 1982 26 8208190139 820816 PDR ADOCK 05000275 bb O PDR n
O 6
1 RESPONSE OF PACIFIC GAS AND ELECTRIC COMPANY TO GOVERNOR BROWN'S MOTION TO REOPEN 2 THE PROCEEDING TO TAKE EVIDENCE ON QUALITY ASSURANCE 3
4 On August 2, 1982, attorneys for Governor Brown, 5 representative of an interested state pursuant to 10 CFR 6 2.715(c), filed a motion requesting the Atomic Safe ty and 7 Licensing Board to reopen the record in the full power Diablo 8 Canyon licensing proceeding to take evidence on Pacific Gas and 9 Electric Company's (PGandE) quality assurance programs for 10 design and construction of the Diablo Canyon facility,1/ and 11 to perfo rm a design review and physical inspection of 12 structurec, systems and components impor tant to safety. PGandE 13 respectfully requests that this Board deny Governor Brown's 14 motion in all respects for the reasons set forth in the 15 following Memorandum of Points and Authorities and the 16 supporting material which is incorporated herein by reference.
17 MEMORANDUM OF POINTS AND AUTHORITIES 18 I 19 Introduction and Status of the Proceeding 20 On January 26, 1982, the hearing record of the Diablo 21 Canyon full power licensing proceedings was closed subject to 22 the filing of the usual closing pleadings. On February 24, 23 24 1/A similar motion was filed with the Appe al Board by Joint Intervenors in the low power proceeding. The Appeal 25 Board has certified certain questions to the Commission con-cerning the issue of whether the Appeal Board has jurisdiction 26 to rule on the motion. (ALAB-681, July 16, 1982.)
4 1 19 82, PGandE notified the Board and the parties that, as a 2 result of the Independent Design Verification Program ( I DVP ) ,
3 PGandE might have to perform additional analsyes of the power 4 operated relief valves and their associated block valves to 5 confirm their seismic qualification, and that, if necessary, 6 modifications would be made to maintain their qualification.
7 This war confirmed by the Staff in Board Notification PNO-5 8 09. On March 18, 1982, Governor Brown filed a motion requesting [
9 the Board to defer its decision pending evaluation of PGandE's 10 letter and the Board notification. On April 2, 1982 the Board 11 ruled that:
12 "No final j udgment will be taken in this ma tte r until such time as a thorough 13 evaluation can be made of any newly discovered , relevant in forma tion . "
14 15 On May 13, 1982, Governor Brown filed yet another motion 16 concerning the status of PGandE's investigation into the matters 17 covered in Board Notification PNO-5-8 2-09. On June 14, 1982 18 this . Board denied Governor Brown's latest motion for the reasons 19 set forth in its order.
20 On September 28, 1981, PGandE notified the Regional 1 21 Administrator of the NRC's Region V Office of Inspection and 22 Enforcement of a potential problem in the analysis of piping 23 systems contained in the annulus area of the containment 24 building. In response, the Staff issued Board Notification No.
25 81-27 and scheduled the first of a series of meetings with 26 PGandE to discuss the problem. On November 19, 1981, the
4 1 Commission issued its order suspending License No. DPR-76 (CLI-2 81-30). The Commission stated in its order that, contra ry to 3 PGandE's license application, errors in design and violations of 4 10 CFR Part 50, Appendix B, had occurred. On that basis, the 5 Commission suspended the low power license and promulgated a two 6 phase program to reinstate the low power license and to ascend 7 to full power operation.
8 Meanwhile, PGa nd E had begun an independen t design 9 verification program, retaining Robert L. Cloud Associates, Inc.
10 (RLCA) and, subsequently, submitted a program for Phase I (pre-11 fuel load) to the NRC Staff for its approval pursuant to 12 Commission order. The Staff also expressed opinions on the i
a 13 various contractors involved and recommended that contractor 14 such as Teledyne Engineering Se rvice s , Inc. (TES) be given 15 responsibility for the performance of the Phase I program. At a 16 meeting on March 4, 1982, the Commission approved S ECY-8 2-8 9 17 with certain revisions. On March 12, 1982, PGandE formally 18 nominated TES as the contractor for the IDVP and on March 19, 19 1982, pursuant to Commission direction, the Staff approved this 20 selection. RLCA and R. F. Reedy Inc. (RFR), a firm retained to l
i 21 investigate the design quality assurance programs of PGandE and i
22 its principal design consultants, act as subcontractors and l
23 report to TES under the IDVP.
24 Phase I of the IDVP was formally approved by the NRC 25 Staf f in a letter dated April 27, 1982. Phase II of the IDVP i
j 26 was submitted to the Staff for its approval on June 18, 1982.
1 Another design verification program is being conducted 2 internally by the PGandE/Becthel Project Organization (Project) .
3 This program was also approved by the Staff's letter dated April 4 27, 1982. Pursuant to the Commission's Order dated November 19, 5 1981, the Project, TES, RLCA, and RPR have filed bi-monthly 6 reports covering the work completed during the previously 7 specified period. These reports have been distributed by the 8 Staff to the NRC Commissioners, the parties and others by means 9 of various Board notifications.
10 II 11 Facts 12 The Brown motion incorporates the Joint Inte rvenor 's 13 Motion to Reopen filed with the Appeal Board on June 8, 1982 and 14 the Hubbard af fidavit attached thereto as the prima ry factual 15 Predicate for their instant motion. The response of Pacific Gas 16 and Electric Company to the Joint Intervenor's Motion dated July 17 2, 1982, and the attachments thereto, are incorporated herein as 18 though set forth in f ull. As shown in our response be fore the 19 Appeal Board (at pages 6-19), the allegations made in the l 20 Hubbard affidavit and previously filed motions consist in large 21 part of mischaracterizations, misstatements of fact and 22 conclusions and are, overall, seriously misleading.
23 In Governor Brown's most recent pleading, 24 mischaracterization and misstatement of fact are once again the 25 mechanism of persuasion . While ignoring the distinctions 26 between the defined scope of Phase I an? Phase II of the I DVP l
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1 and totally ignoring the Project's internal technical program, 2 Brown refers to the IDVP as " narrowly limited" and as addressing 3 " narrowly confined areas". He then compares the IDVP to the 4 Brookhaven Re por t which he cites as " compelling evidence" 5 leading to a need for evaluations of " implementation of design 6 and construction OA" and "an evaluation of the actual quality of 7 the as-built plant" . The Brown motion also chooses to ignore 8 the PGandE/Bechtel corrective action program which emanates from 9 the IDVP and is subject to verification by the IDVP. Details of 10 that program are set forth in the affidavit of Howard B. Friend 11 which is attached hereto.
12 Governor Brown continues to mislead this Board by 13 never discussing the overall requirements of the Commission 14 order, CLI-81-30, and the November 16, 1981 letter of Harold 15 Denton which establish what is required to be accomplished by 16 the IDVP. It is clear that when the Order and letter are taken 17 together, the total IDVP program (Phases I and II) is intended 18 to cover seismic and non-seismic design aspect of safety-related 19 structures, systems and components, whether the design work was 20 done by PGandE or by service-related contractors. This is 21 hardly a program which is " narrowly limited" to " narrowly 22 confined areas".
23 Perhaps the best example of Governor Brown's assail-24 ment of the facts can be seen in his continued reference to 25 " generic" QA breakdowns. To cite the Brookhaven Report, which 26 looked only at the annulus area, as au thori ty for this t
1 proposition is simply fatuous. As set forth in the affidavits 2 of Bain and Raymond , et al. , which accompanied PG&ndE's July 2 3 response, site QA/QC activities were, except where deficiencies 4 were noted and corrected, in compliance with Appendix B at all 5 times material hereto. Contrary to Gove rnor Brown's bald 6 assertions, there is no indication whatsoever that " breakdowns" 7 occurred in site QA/QC activities at Diablo Canyon.
8 III 9 The Commission's Action of November 19, 1981 Establishing the Procedure for the IDVP 10 Leaves This Board Without Jurisdiction to Accord Governor Brown's Requested Relief 11 12 In filing their motions to reopen before the Appeal 13 Board, both Joint Intervenors and Governor Brown aimed their 14 arguments at the suspended low power license and the low power 15 proceedings, our response was, there fore , based almost 16 exclusively on the facts surrounding the suspension of that 17 license and Phase I of the I DVP . Our argument that the 18 Commission had assumed exclusive jurisdiction of the low power 19 license was not however, as Governor Brown would have it, 20 mutually exclusive. The Commission has assumed jurisdiction of 21 any errors in design and violations of 10 CFR Part 50, Appendix 22 B. Governor Brown attempts to further distinguish the motion 23 before the Appeal Board from the instant motion by arguing that 24 a license had issued in the low power proceeding while the full 25 power license has not. What Governor Brown chooses to ignore 26 however, is that in both cases the record is closed gnd the
1 facts surrounding the Commission's actions and the IDVP are the 2 same. Indeed, in certifying the question to the Commission, the 3 Appeal Board foresaw the commonality between the low power and 4 full power proceedings and asked the Commission:
5 Did the Commission intend its November 19, 1981 order suspending the low-power license 6 for Diablo Canyon, Unit 1, and establishing and independent verification program to 7 deprive the appropriate adj udicatory boards of jurisdiction to consider a motion to 8 reopen the record based on the QA/QC questions regarding Diablo Canyon?
9 If not, does the Commission now wish to 10 relieve the adjudicatory boards of j uris-diction with regard to the QA/QC issues at 11 Diablo Canyon?
12 If the Commission has not divested, and does not intend to divest, the adjudicatory 13 boards of jurisdiction over the QA/QC issues at Diablo Canyon what, if any, instructions 14 does the Commission have with regard to timing or other matters raised by the motion 15 to reopen? (ALAB-681 at 7, emphasis added.)
16 As stated earlier, the Commission has assumed 17 jurisdicton over QA/QC violations and the design aspect of 18 safe ty-related structures, systems, and ccaponents at Diablo 19 Canyon. The Commission has ordered that it must be satisfied, 20 through detailed procedures of verification and review, tha t 21 Diablo Canyon is as stated in its application before it shall be 22 allowed to load f uel, conduct low power tests and ascend to full 23 power operation. That the Commission has the authority to do so 24 is manifest.
25 The Appeal Board and the Licensing Board derive their 26 jurisdiction and authority from the Commission. (See 10 CFR L
1 2.721 and 2.785.) The proposition that the adjudicatory boards
' 2 have limited authority and j urisdiction as dete rmined by the 3 Commission is well recognized. (42 U.S.C. 22.41; 10 CFR 2.721 ;
4 and 2.785; Pacific Gas and Electric Company ( Diablo Canyon 5 Nuclear Power Plant, Units 1 and 2), CLI-76-1, 3 NRC 73 (1976).)
6 In this particular instance, the Commission has exercised its 7 jurisdiction and authority by mandating a thorough and 8 independent verification program and by so doing has precluded this Board from granting the requested relief. Indeed, the 9
10 Commission has exercised discretion to withhold jurisdiction 11 from adjudicatory boards in other recent cases. In a very 12 recent case also involving violations of 10 CPR Part 50, 13 Appendix B, the Commission stated:
14 "The NRC has been investigating alleged quality assurance irregularities at Zimmer 15 since January 1981. The investigations are still ongoing . The investiga tions have 16 identif'ied.a number of quality assurance-related problems at the Zimmer site. An '
17 extensive review of the as-built plant is currently being performed. Before the plant 18 can be licensed, a comprehensive quality confirma tion program will have to be 19 conducted and identified problem areas resolved. By itself, without factoring in 20 any rework, the quality confirmation program will be both cos tly and time-consuming. The 21 effect of this on the construction schedule ;
of the plant remains to be determined.
22 "The basis for the e ight contentions 23 which the Board has accepted as Board issues is simply a repetition of some of the 24 problems revealed in the reports of the investigations which have already been 25 released to the public. The Miami Valley Power Project (MVPP), an Intervenor, which 26 filed an untimely request with the Board i
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1 that these issues be considered, suggested that it had new information on these 2 ma tte rs. MVPP did not in its motion to the Board or elsewhere suf ficiently identify any 3 new information, its source, or say when it became available. The NRC staff supported 4 the motion to reopen. However, the staff recognized and the Board ruled that the 5 legal standards for further hearings were not me t.
6 "As we have indicated above, the issues 7 raised in the eight contentions are being dealt with in the course of the ongoing 8 investigation and in the NRC staff's monitoring of the applicants' Quality 9 Confirmation Program.
10 "For these reasons, the Commission con-cludes that the Board has not set forth a 11 sufficient justification supporting its order reopening the hearing record to con-12 sider the eight contentions as Board issues.
Accordingly, the Board is directed to issue 13 an appropriate order dismissing the eigh t contentions from the proceeding. . . ."
14 (Cincinnati Gas and Electric Company (Wm. H.
Zimmer Nuclear Power Station, Unit No. 1),
15 CLI-82-20, NRC , July 30, 1982.) See also Metropofitan Edison Company (Three Mile 16 Island Nuclear Station, Unit No. 1), CLI 8, 10 NRC 141, 14 7 ( 197 9 ) .
I 17 16 The Commission's Order ensures that all necessary 19 actions to protect the public health and safety will be taken, l
20 obviating the necessity for a duplicative exercise of juris-21 diction by this Board. Compare (South Carolina Electric & Gas 22 Company, Virgil C. Summer Nuclear Station, Unit 1, Docket 50-23 395.)
24 In passing the Atomic Energy Act of 1954, Congress l
l 25 enacted "a regulatory scheme which is virtually unique in the l which broad responsibility is reposed in the l 26 degree to l
e
1 administering agency, free of close prescription in its charter 2 as to how it shall proceed in achieving the statutory 3 objectives." Siegel v. AEC,-130 U. S. App. D. C. 307, 319, 405 4 F.2d 778, 783 (1968). See also Public Service Co. of New .
5 Hampshire v. N.R.C., 582 F.2d 77, 82 (1st Cir.), cert. denied, 6 439 U.S. 1046, 99 S. Ct. 721, 58 L. Ed. 2d 705 (1978); North 7 Anna Environmental Coalition v. N.R.C., 174 U. S. App. D. C.
r 8 428, 431, 432, 533 F.2d 655, 658-69 (1976) . To further these 9 statutory objectives, Section 161(p) of the AEA, 42 U.S.C.
10 S2201(p) (1976), confers upon the NRC an unfettered mandate to 11 issue "such rules and regulations as may be necessary to carry 12 out the purposes of this Act." Section 103, 42 U.S.C. 2133 13 (1976), directs that commercial licenses shall be issued 14 " subject to such conditions as the Commission may by rule or 15 regulation establish to effe'ctuate the purposes and provisions 16 of this Chapter."
17 PGandE's position is that the NRC, which is invested 18 with extensive powers to ef fectuate its far-reaching mandate, 19 may utilize its inherent discretion in assuming complete .
20 jurisdiction of the suspension proceedings when sound regulatory 21 reasons exist for doing so. We believe this is consonant with 22 the Supreme Court's approach in Permian Basin Area Rate Cases, 23 390 U.S. 747, 88 S. Ct. 1344, 20 L. Ed . 2d 312 (1968). The 24 question there was whether the Federal Power Commission (FPC) 25 had authority to impose a two and one-half year moratorium upon 26 filings of rate schedules while it implemented a new. regional
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1 rate-making scheme. The Court noted that it "has repeatedly 2 held that the width of administrative authority must be measured 3 in part by the purposes for which it was conferred." 390 U.S.
4 a t 77 6,. 8 8 S. Ct. at 1364 citing S16 of the Natural Gas Act, 15 5 U.S.C. S7170 (1976) which is similar in breadth to S161(p) of 6 the AEA. The Court went on to say that "(s]urely the 7 Commission's broad responsibilities therefore demand a generous 8 construction of its statutory authority." 39 U.S. at 776, 88 S.
9 Ct. at 1365.
10 The AEA does not preclude the Commission from the 11 assumption of jurisdiction of QA/QC violations and the design f 12 aspects of Diablo Canyon nor does it require this Board to 13 reopen the record. The width and breadth of the Commission's 14 discretion is set forth in Power County Chapter v. Nuclear Reg.
15 Comm'n, 606 F.2d 1363,1369 ( D.C. Cir. 1979).
16 " Generally speaking, the law gives agencies wide discretion to determine the 17 means of administration of pertinent regul-atory standards, the techniques of inter-18 pretation, application, filling in of details and enforcement. As the Supreme 19 Court has recently emphasized with reference to agency choice of procedures: ' Absent 20 constitutional constraints or extremely compelling circumstances the administrative 21 agencies should be free to fashion their own rules of procedure and to pursue methods of 22 inquiry capable of permitting them to dis-charge their multitudinous duties. ' vermont 23 Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519, 543, 98 S. Ct. 1197, 1211, 55 L.
24 Ed. 2d 460 (1978). The agency is not bound to launch full blown proceedings simply 25 because a violation of the statute is claimed. It may properly undertake pre-26 liminary inquiries in order to dete rmine h -
1 whether the claim is substantial enough under the statute to warrant full pro-2 ceedings. The appropriate agency has sub-stantial discretion to decline to initiate 3 proceedings based on this review, at least where, as here, he gives reasons for denying 4 or deferring a hearing." ,
5 It is the broad delegation of authori ty in the AEA 6 which allows the Commission to determine the conditions, rules 7 and regulations pursuant to which licenses shall be issued as 8 well as the scope and forma t of licensing proceedings, to 9 construe that statute's provisions as granting the Commission 10 the authority to exercise complete jurisdiction of suspension 11 and compliance proceedings and to refuse to reopen the record.
12 Westinghouse Elec. Corp. v. U.S. Etc., 598 F.2d 759 (3rd Cir.
10 1979).
14 A. The Motion Does Not Address A Significant Safety Issue In Light Of The Commission's Ordered Review Procedure.
15 16 PGandE has embarked upon an extensive independent 17 design verification program using independent reviewers as 18 mandated and approved by the NRC. This program is designed to 19 meet the requirements specified in the Commission's order and i
20 Staff letter, both dated November 19, 1981. The program 21 provides for ar.alysis of structures, systems and components of 22 the plant, to be expanded as necessary, a plan for identi-23 fication of any defects discovered and a program for correction 24 of any such defects. Thus, there is no need for the Board to ,
25 involve itself in this matter because the public health and 26 safety are assured through operation of the Commission mandated
1 IDVP, subject to final review and approval of the Commission and 2 NRC Staff. Thus, Board involvement could add nothing.
3 In this respect the situation is similar to the Summer 4 case (South Carolina Electric & Gas Company (Virgil C. Summer 5 Nuclear Station, Unit 1), Docket 50-395, Memorandum and Order 6 (April 28, 1982)). There, an intervenor proposed a new 7
contention after the close of the record, based upon a Staff 8 report critical of operating and emergency procedings at the 9 facility.2/ The Board noted that the contention was based on 10 new information brought to intervenor's attention only after the 11 close of the hearing, and that the proposed contention was filed 12 shortly thereafter. Even so, the Board held that intervenor had 13 failed to show the significance of the allegations within the 14 context of that particular proceeding at that late stage:
15 "To be sure, each of the alleged deficiencies with regard to Applicants' 16 Operating procedures contained in the [NRC Staff] report would have some significance 17 to the safety of the plant if it actually exists and were to go uncorrected. But 18 Intervenor has not alleged, nor do we see any support for such an allegation, that 19 there is any danger that the alleged deficiencies will go uncorrected. The 20 affidavits submitted by Staff and Applicants establish that the shortcomings to Applicants' operating procedures are being 21 routinely handled by Staff, and Applicants 22 have committed themselves to upgrade and 23 24 2/Preliminarily, the Licensing Board ruled that the intervenor must satisfy the " stringent standards" for reopening 25 a case in addition to the five-factor test set out in 10 CFR 26 2.714(a)(1) for late contentions. (Slip. op, at 2-3.)
1 correct the operating procedures in accor-dance with Staff's suggestions. In the face 2 of this established procedure for identi-fying the deficiencies and correcting them, 3 their mere existence loses its significance in the context of this operating license 4 proceeding. Were the Board to take this issue and determine that the alleged 5 deficiencies actually exist, we could do no more than order that they be corrected and 6 that the corrections be monitored by Staff
- a procedure that is already in effect 7 without Board intervention.
8 "If we were to reopen the record every 9 time that Staff discovered a safety defect and reported it to us, we could never bring 10 the proceeding to completion. See ICC V.
Jersey City, 332 U.S. 503, 514 (1944). We 11 see no correlative benefit for further delay here, since Board involvement is unnecessary 12 to assure the public health and safety."
(Slip. op, at 3-4, emphasis added.)
13 14 Here, the IDVP guarantees that any identified deficiencies will 15 be corrected if necessary, and this Board, even if it ordered 16 the proceedings reopened, could do no more than order what has 17 already been mandated by the Commission. Thus, the public 18 health and safety are protected through implementation of the 19 IDVP and no significant safety issues remain to be addressed.
20 Therefore, the standard prescribed by the Commission regarding 21 the need for a significant new safety issue to reopen closed 22 records has not been met. (CLI-81-5, supra.)
23 B. The Motion Is Not Timely.
24 Governor Brown's motion is addressed to the adequacy 25 of PGandE's quality assurance program. In his previously filed 26 a f f idavi t (page 98), Mr. Hubbard complained that he was not t
1 allowed to testify during the 1977 ASLB full power hearings and 2 that his previous efforts to introduce a QA contention had been 3 denied. Mr. Hubbard's statements, while technically correct, 4 are misleading if not placed in the proper context.
5 The original notice of hearing in this proceeding was 6 publisheu in the Federal Register on October 19, 1973. Joint 7 Intervenors advanced a total of 47 proposed contentions (with 8 some duplication), some of which were accepted for litigation 9 purposes, and by March 11, 1974 the time to advance contentions 10 expired, in accordance with the NRC's (then AEC) regulations.
11 (10 CFR 2.714(b).)2/ None of these proposed contentions 12 concerned QA/QC. In pleadings dated March 3, 1977, Joint 13 Intervenors sought to add, among others, a generalized and broad 14 contention on QA. The motions were supported by affidavits of 15 Mr. Hubbard dated March 10 and April 27, 1977. In an order 16 dated May 25, 1977, the ASLB denied the contention 17 . . . on the basis of timeliness, not required by law or regulation, lack of 18 specificity and unconscionable delay in the proceeding." (Order at 2. )
19 20 The order provided further as follows:
21 "CLPI [ attorneys for Joint Inte rveno rs]
requested at the prehearing conference that, 22 23 2/10 CFR 2.714(b) provides that a petitioner "must" 24 file his contentions and the bases for each contention " set forth with reasonable specificity" not later than ". . . fifteen 25 (15) days prior to the holding of the special prehearing conference pursuant to 52.751a . . . . The first day of that 26 prehearing conference in this proceeding was March 26, 1974.
I
1 if the 'new' contentions were denied, those aspects of the contentions which relate to 2 seismic design could be raised within the context of the previously accepted seismic 3 contentions. The Board believes that applicable, specific aspects of any required 4 backfitting or of Quality Assurance pro-cedures or implementation would be 5 appropriate for hearing insofar as seismic design of the plant is concerned. The Board 6 will carefully consider any applicable, specific aspect of the seismic design that 7 may be raised by CLPI. (Emphasis added.)
8 "The Board, on its own motion, hereby directs PGandE and the Staff to present 9 evidence on the Quality Assurance program at Diablo Canyon by having available witnesses 10 who are knowledgeable on this matter at the scheduled hearing."
11 12 As requested by the ASLB in its order, PGandE and the 13 Staff presented testimony on the Diablo Canyon Quality Assurance 14 Program at the so-called "non-seismic safe ty hearings" October 15 18 and 19, 1977. Joint Intervenors did not choose to cross-16 examine the witnesses despite being specifically offered a 17 chance to do so (Tr. 3609, 3618) and their proposed findings of 18 fact on the subject were, at best, perfunctory. More impor tan t ,
19 despite the Board's invitation to do so, Joint In te rve nors made 20 no subsequent attempt whatsoever to litigate " Quality Assurance 21 procedures or implementation . . . insofar as seismic design of 22 the plant is concernned."
23 Several years later, Joint Intervenors attempted to 24 once again raise a generalized QA contention in the low power 25 proceedings, but such a contention was denied by the ASLB in its 26 order dated February 13, 1981 on the following grounds:
4
1 " Joint Intervenors did not take advantage of an opportunity to be heard on quality 2 assurance matters in hearings raised by the Board on October 18-19, 1977. They have not 3 demonstrated in their filings or oral argument a specific relationship between 4 this contention and the additional require-ments for fuel loading and low power testing 5 arising from the accident at TMI as specified by the Commission in NUREG-0737.
6 (Tr. 178). For these reasons and in accordance with the Commission Revised 7 Statement of Policy of December 18, 1980 (at page 8) contention 3 is denied." (Order at 8 18.)
9 Joint Intervenors later voluntarily abandoned their identical QA 10 contention in the post-TMI full power proceedings.S/
11 In addition, much of the material referenced in and 12 attached to the Hubbard af fidavit has been available in the 13 various public document rooms literally for years -- some of it 14 dates as far back as the 1960's. While the items being found 15 under the IDVP and PGandE Technical Program are "new", many of 16 the deficiencies in implementation of design QA were, as pointed 17 out in the Hubbard affidavit and attachments, noted historically 18 and available to parties in this proceeding. In any event, any 19 party should have advanced its QA contentions years be fore the 20 filing of the instant motion.
21 . . .
22 . . .
23 S/ On March 24, 1981, Joint Intervenors filed a 24 motion to reopen the f ull power proceedings. Contention 1 in that motion involved QA. On June 30, 1981, at the prehearing 25 conference for the full power proceedings, Joint Inte rveno rs filed a Statement of Clarified Contentions which withdrew 26 Contention 1 of the March 24, 1981 motion.
1 C. A Different Result Would Not Have Been Reached If The New Information Had Been Considered By The Board.
2 3 The Commission has emphasized that to reopen closed 4 records requires that the significant new evidence would have 5 caused a different result had it been considered originally.
6 (CLI-81-5, supra.) This test must include all of the new 7 evidence, and not just the facts f avoring one side. In addition 8 to the fact that there have been open items, deviations and 9 errors in the design effort and deficiencies in the area of 10 quality assurance, the fact is undisputed that the Commission 11 has mandated the IDVP. Further, that program, as established, 12 will discover and correct any deficiencies. If this information 13 were known to the Licensing Board when 'it issued any of its past 14 or future decisions, the result would not be different.
15 Certainly, the above-referenced facts would be cited but, again, 16 the end result would be the same.
17 V 18 Governor Brown Does Not Meet The Tests Which Must Be Satisfied To Admit Late-Filed Contentions 19 20 As noted earlier, the time to file contentionsE/ in 21 this proceeding expired in 1974. The requirements for late 22 contentions are set forth in 10 CFR 2.714(a)(1) and (d). Each 23 24 E/PGandE notes that Governor Brown has not tech-nically submitted a specific contention. Thus, to the usual 25 objections directed to lack of specificity as a defect in a contention in violation of 10 CFR 2.714(b), PGandE would also 26 here add lack of substance.
1 is considered briefly below, and each is subject to the general 2 observation that Governor Brown (and Joint Intervenors in their 3 motion before the Appeal Board) has made no attempt to comply 4 with any of them. This is fatal to the motion (CLI-81-5, 13 NRC 5 361, 364).
6 A. No Gog4 Cause For Failure To File On Time Has Been Shown.E' 7
8 As indicated earlier, much of the material on which 9 the motion is based is not new but has, in fact, been available 10 to all parties for a number of years. During the period it was 11 timely to propose contentions, Governor Brown or Joint 12 Intervenors should have advanced one on QA but they did not do 13 so. They have made no showing justifying a delay of almost 14 eight years. A Licensing Board has already ruled that such a 15 contention was late in 1977. (ASLB order May 25, 1977.)
16 B. Other Means Exist Whereby Governor Brown's Interest Will Be Protected.
17 18 It is clear that the Commission and Staff can 19 adequately protect Governor Brown's interest. The order and 20 letter of November 19, 1981 require final Commission and Staff 21 approval of the IDVP and resultant modifications to assure that 22 Diablo Canyon Nuclear Power Plant is in compliance with the 23 License Application. Governor Brown can add nothing to this.
24 25 5/The cases imposing this requirement are legion.
(See, for example, Duke Power Company (Perkins Nuclear Station, 26 Units 1, 2 and 3) 12 NRC 350 (1980).)
1 C. Governor Brown's Participation Will Not Assist In Developing A Sound Record.
2 3 The complete answer to Governor Brown's Motion is 4 contained in the IDVP, the Project internal technical program, 5 and the results thereof. With provision made for final Staff 6 and Commission approvals, there is no need to develop any 7
dditional hearing record.
g D. Governor Brown's Participation Will Broaden The Issues And Delay The Proceedings.
9 10 Governor Brown's Motion broadly requests that ". . .
the record be reopened so that the Board can consider critical 11 12 data relevant to . . ." QA programs for " design and con-struction" and to require a design review and physica) 13 14 inspection of structures, systems and components. For the 15 reasons outlined in the Summer and Zimmer cases discussed previously, a reopened hearing would actually have nothing new 16 to consider since the IDVP and the Project internal technical 17 program have been developed and are being implemented. Thus, a 18 19 reopened hearing could needlessly broaden the issues and prolong 20 the proceeding since any evidence presented would only confirm 21 arrangements presently in place.
V 22 23 Conclusion Governor Brown's motion should be denied , or, in the 24 alternative, certified to the Commission for consideration by 25 26 1
1 that body in conjunction with the previously certified questions 2 by the Appeal Board.
3 Respectfully submitted, 4 MALCOLM H. FURBUSH PHILIP A. CRANE, JR.
5 RICHA RD F . LOCKE Pacific Gas and Electric Company 6 P. O. Box 7442 San Francisco, California 94129 7 (415)781-4211 8 ARTHUR C. GEHR Snell & Wilmer 9 3100 Valley Center Phoenix, Arizona 85073 10 (602)257-7288 11 BRUCE NORTON Norton, Burke, Berry & French, P.C.
12 3236 N. Third Street Suite 300 13 Phoenix, Arizona 85012 (602)264-0033 14 Attorneys for 15 Pacific Gas and Electric Company By J ua,4.3L 17 Bruce N6rton 18 DATED: August 16, 1982.
19 20 21 22 23 24 25 i 26 00CYU.E0 geiL UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION pq G3
- )Q ; u e, ,,, g
- BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- CF
' E, P
' ', E lff In the Matter of ) -
) Docket Nos.' 50'-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L. ;
)
( Diablo Canyon Nuclear Power )
Plant, Units No. 1 and 2) )
CERTIFICATE OF SERVICE -
The foregoing document of Pacific Gas and Electric Company has been served today on the following by deposit in the United States mail, properly stamped and addressed:
Judge John F. Wolf, Chairman Gordon Silver Atomic Safety and Licensing Board 1760 Alisal Street Mail Drop East West 450 San Luis Obispo, CA 93401 U. S. Nuclear Regulatory Comm'n Washington, D.C. 20555 Sandra A. Silver 1760 Alisal Street Judge Glenn 7. Bright San Luis Obispo, CA 93401 Atomic Safety and Licensing Board Mail Drop Eas t Wes t 450 Philip A. Crane, Jr., Esq.
U. S. Nuclear Regulatory Comm'n Pacific Gas and Electric Co.
Washington, D.C. 20555 P. O. Box 7442 San Francisco, CA 94120 Judge Jerry R. Kline Atomic Safety and Licensing Board Chairman, Atomic Safety Mail Drop East West 450 and Licensing Board Panel U. S. Nuclear Regulatory Comm'n U.S. Nuclear Regulatory Comm'n Washington, D.C. 20555 Washington, D. C . 20555 Joel Reynolds, Esq.
Mrs. Elizabeth Apfelberg John R. Phillips, Esq.
c/o Nancy Culver Center for Law in the 192 Luneta Drive Public Interest San Luis Obispo, CA 93401 10951 West Pico Boulevard Third Floor Los Angeles, CA 90064 David F. Fleischaker, Esq. Mrs. Raye Fleming P. O. Box 1178 1920 Mattie Road ;
Oklahoma City, OK 73101 Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conf erence , Inc.
4623 More Mesa Drive Santa Barbara, CA 93105
Ch airma n, Atomic Safety and Judge Thomas S. Moore Licensing Appeal Panel Chairman U. S. Nuclear Regulatory Comm'n Atomic Safety and Licensing Washing ton , D.C. 20555 Appeal Board U. S. Nuclear Regulatory Janice E. Kerr Commission Public Utilities Commission Washington, D.C. 20555 of the State of California 5246 State Building Judge W. Reed Johnson 350 McAllister Street Atomic Safety and Licensing San Francisco, CA 93449 Appeal Board U. S. Nuclear Regulatory Arthur C. Gehr, Esq. Commission Snell & Wilmer Washington, D.C. 20555 3100 Valley Bank Center Phoenix, AZ 85073 Judge John H. Buck Atomic Safety and Licensing Secretary Appeal Board Docketing and Service Section U. S. Nuclear Regulatory U. S. Nuclear Regulatory Comm'n Commission Washington, D.C. 20555 Washington, D.C. 20555 Bradley W. Jones, Esq. Commissioner Nunzio J. Palladin@
of fice of Executive Legal Director Chairman BETH 04 2 U. S. Nuclear Regulatory U. S. Nuclear Regulatory Comm'n Commission Washington, D.C. 20555 1717 H Stree t N.W.
Washington, D.C. 20555 Mr. Richard B. Hubbard Commissioner John F. Ahearne MHB Technical Associates U. S. Nuclear Regulatory 1723 Hamilton Avenue, Suite.K Commission San Jose, CA 95125 1717 H Street N.W.
Washington, D.C. 20555 Mr. Carl Neiberger Telegram ~ Tribune Commissioner Victor Gilinsky P. O. Box 112 U. S. Nuclear Regulatory San Luis Obispo, CA 93402 Commission 1717 H Street N.W.
Herbert H. Brown, Esq. Washington, D.C. 20555 Lawrence Coe Lanpher, Esq.
Christopher B. Hanback, Esq. Commissioner James K. Asselstin(
Kirkpatrick, Lockhart, Hill, U. S. Nuclear Regulatory Christopher & Phillips Commission 1900 M Street N.W. 1717 H Stree t N.W.
Washington, D . C '. 20036 Washington, D.C. 20555 Byron S. Georgiou, Esq. Commissioner Thomas M. Roberts Legal Affairs Secretary U. S. Nuclear Regulatory Governor's Of fice Commission State Capitol 1717 H Street N.W.
Sacramento, CA 95814 Washington, D.C. 20555 l -
I
>_v A Attorney for Pacific Gas and Electric Company DATED: August 16, 1982 l
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