ML20070J553

Nuclear Regulatory Commission Issuances for May 1994.Pages 249-284

ML20070J553
Person / Time
Issue date:	07/31/1994
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V39-N05, NUREG-750, NUREG-750-V39-N5, NUDOCS 9407250180
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f; NUREG-0750 Vol. 39, No. 5 Pages 249-284 4

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NUCLEAR REGULATORY

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Mail Stop SSOP Washington, D.C. 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication are available from National Technical Information Service Springfield, VA 22161 l

Errors in this publication may be reported to the j

Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC :'0555-0001 (301/415-6844)

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NUREG-0750 Vol. 39, No. 5 Pages 249-284 NUCLEAR REGULATORY COMMISSION ISSUANCES May 1994 1

i This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844) 4

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COMMISSIONERS ivan Selin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gail de Planque

8. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Licensing Board Panel

CONTENTS Issuances of the Atomic Safety and Licensing Iloards CAMEO DIAGNOSTIC CENTRE, INC.

Docket 30-29567-CivP (ASLBP No. 94-686-01-CivP)

(Byproduct Material License No. 20-27908-01) (EA 93-005) l MEMORANDUM AND ORDER, LBP-9413, May 4,1994 249 l

GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units I and 2)

Dockets 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

MEMORANDUM AND ORDER, LDP-94-14, May 20,1994.,

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GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units I and 2)

Dockets 50-424-OLA 3,50-425-OLA-3 (ASLUP No. 93-671-Ol-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

MEMORANDUM AND ORDER, LBP-9415, May 23,1994 254 i

GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units I and 2)

Dockets 50-424 OLA 3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nucicar)

MEMORANDUM AND ORDER, LBP-94-16, May 25,1994 257 Issuances of Directors' Decisions ARIZONA PUBLIC SERVICE COMPANY, et al.

(Palo Verde Nuclear Generating Station, Units I,2, and 3)

Dockets STN 50-528, STN 50-529, STN 50-530 j

DIRECTOR'S DECISION UNDER 10 C.F.R. (2.206, DD-94-4, May 16,1994.,,

. 269 NORTilEAST UTILITIES (Millstone Nuclear Power Station)

Dockets 50-245,50 336 DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-94-5, May 20,1994.

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i Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge O

Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) 3-Frederick J. Shon,* Deputy Chief Administrative Judge (Technical)

O Members 1

O Dr George C. Anderson James P Gleason*

Dr. Kenneth A. McCollom Charles Bechhoefer*

Dr. David L Hetnck Marshall E. Miller Peter B. Bloch*

Emest E. Hill Thomas S. Moore

• G Paul Boltwerk lil*

Dr Frank E Hooper Dr Peter A. Moms

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Glenn O. Bright Elizabeth B. Johnson Thomas D. Murphy

• Dr A. Dixon Callihan Dr Watter H. Jordan Dr Richard R Parizek Dr James H. Carpenter Dr Charles N Kelber*

Dr Harry Resn

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Dr Richard E Cole

• Dr Jerry H. Khne*

Lester S. Rubenstein Dr Thomas E. Elteman Dr Peter S. Lam

• Dr. David R. Schink d

Q Dr George A. Ferguson Dr James C. Lamb lit Ivan W. Smrth*

Dr Harry Foreman Dr Emmeth A. Luebke Dr George E Tdey Dr Richard E Foster Morton B Margulies*

Sheldon J. Wolfe J

• Permanent panel members ne.essw.*

Cite as 39 NRC 249 (1994)

LBP-94-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Charles N. Kelber in the Matter of Docket No. 30-29567-CivP (ASLBP No. 94-686-01-CivP)

(Byproduct Material License No. 20-27908-01)

(EA 93-005)

CAMEO DIAGNOSTIC CENTRE,INC.

May 4,1994 MEMORANDUM AND ORDER (Appointing Settlement Judge)

The Licensee and the NRC Staff have agreed that a settlement judge should be appointed in this proceeding.' Considering the nature of the issues, the Board believes that negotiations between the parties under the direction of a settlement judge may facilitate a fair and reasonable settlement of particular issues or the entire proceeding.

'Therefore, having consulted with the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, and consistent with the provisions of 10 C.F.R. 6 2.722, the Board appoints Administrative Judge Peter B. Bloch to serve as a special assistant to the Board and to act as a settlement judge in this I Mr Paul J Rosenbaunt President of Carneo Diagnostic Centa, orally moved that the Board appoint a settlenwnt judge during de prehcanng conference of April 26.1994 Tr 44-45, The NRC Staff rnponded Apnl 29,1994, agneing to the notion l

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proceeding. The Board and Judge Bloch have agreed that statements made by the parties in settlement negotiations will not be revealed to the Board.

Any settlement agreement or stipulation reached in negotiations before Judge Bloch will be presented to the Board to determine whether the proposed disposition is in the public interest in accordance with the provisions of 10 C.F.R. 5 2.703.

The discovery schedule is suspended until further order of the Board.

FOR Tile ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland May 4,1994 250

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Cite as 39 NRC 251 (1994)

LBP-94-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

May 20,1994 Applicant, two of whose employees were scheduled to be deposed in this case, requested a postponement because these same employees are subject to an NRC demand for information, which accompanied a Notice of Violation recently issued to Applicant. De Licensing Board determined that scheduled depositions should go forward.

RULES OF PRACTICE: DISCOVERY EFFECT OF NRC DENIAND FOR INFORNIATION Although a Demand for Information issued by the NRC is an important event that may affect an individual's career, the pendency of such a demand is not i

I a reason to postpone a scheduled deposition. The individuals involved have known about the basic facts of this case for years. Further preparation is not necessary for them to tell the truth.

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MEMORANDUM AND ORDER (Effect of Enforcement Demand on Depositions)

This afternoon, Intervenors and Licensee called Judge 131och to discuss the effect on scheduled depositions of the demand for information recently made by the Nuclear Regulatory Commission (NRC) on individuals employed by Georgia Power.' The individuals involved in the scheduled depositions are Mr.

Frederick, Mr. Majors, and Mr. Ilurr. Mr. Ilurr is not subject to a demand for information. Mr. Frederick and Mi. Majors are. At the outset, Judge Illoch determined that counsel did not know any precedent that would govern the lloarJ's determination.2 Counsel for Georgia Power, with the agreement of counsel for Mr. Mosbaugh, asserted that Mr. Frederick has employed new private counsel last Thursday.

Mr. Majars has had private counsel for some time. Private counsel were not, however, participating in the telephone conversation among the parties and Judge Illoch.3 I.icensee argued that the pending demand for information could have very serious consequences for Mr. Frederick and Mr. Majors and that it would be appropriate to recognize their interests and to delay their depositions in order to be fair to them. It was argued that since Mr. Frederick had new private counsel it might take some time for his attorney to master the volume of materials involved. Georgia Power also argued that the nature of the review of evidence, particularly of audio tapes,' has now changed for these individuals. They now need to hear many tapes that did not seem so important before.

Staff, which developed a position in the course of this conference call, argued that there was no need to rush ahead with these depositions at this time It did not think that whether or not a delay occurred would affect the ability to discern the truth at the depositions. In response to Judge Bloch's questions, it stated that 3 The "Noine of Violanon and Propowd imposition of Civil Penalties - $2(XUXo, and Demands for Information.

was transnuited to Georgue Power Company m a letter of May 9.1991 (thxket No 50-424. tacense No NPF48.

!!A 9MO4 Present during the call were John tamberski Ernest Blake, and David Lewis for Georgia Power; Michael Kohn and steptrn Kohn for Mr Mabaugh. and Charles Barth and Joe Rutherg for the NRC The NRC was added as I

a party to the conversation at the request of Judge Uk3ch 2 1here was none argunrnt about the relevance of prior Board ruhngs about defernng deposnions so that Georgia Power witnesses could first review Mr Meshaugh's surrepuuouuy recor&d tapes Judge Bloch determined, without objecuon. that there was no direct relevance of this pnor ruhng in tius instance j

%e relatmnship between counwl for Georgia Power and the private coumel for these individuals is not clear.

There is, therefore, the pombahty that private counsel might have differeld argunrnts that they would be entried to rane despite the Huard's ruhng on the argunents of the pames

• Mr Mosbaugh made many suncptinous tapes of conversanons Irld by lum with other empk)yees of Georgia 1%wer lhese tapes were subnutted to the office of Invesugauons as evidence in its mvestigation of the allegations that reantly resulted an the Muante of a Nonce of Violanon concerning representauona to the NRC about diesel generatore 252 i

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the Demand for Information could be met in 30 days from the time of issuance of the Notice of Violation (stamped May 9 on the copy sent to Judge Bloch).

Intervenor argued that it was important to it to conduct the depositions next week. It preferred for tactical reasons not to wait for the witnesses to extend their review of existing evidence before depositions are conducted.5 It argued that these individuals have been aware of the allegations for a long time and did not need further preparation to testify truthfully.

Judge Illoch concluded, for the Board, that the depositions should go forward.

lie urged the intervenors to attempt to complete the depositions within 2 days and he acknowledged that success in that endeavor could be affected by the nature of objections that are interposed by Georgia Power during the depositions. He therefore offered to be available to respond to objections. lie also agreed, after a suggestion by Mr. Lilake, to resolve on Monday (May 23) questions concerning the scope of the depositions.*

ORDER Ihr all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 20th day of May 1994, ORDERED that:

The noticed depositions of Mr. Burr, Mr. Frederick, and Mr. Majors, shall proceed. Georgia Power Company's request for a delay of these depositions is denied.

FOR TiiE ATOMIC SAFETY AND 1.lCENSING BOARD Peter IL Bloch, Chair ADMINISTRATIVE JUDGE liethesda, Maryland I Judge Dhwh asked whether intervenor thought it might be advantageous to it to want unut arter pnvate counsel had talked with the niinenses about their position in bght of the Demand ror information Counsel clearly staied has peference to proceed forthwith

'It was alsn understood, at Mr. Hhwh's urging, that quesuons concer ning the scope of the Subpoena Duces Tecum (the documents to be brought to the depousion) would be resolved arnong counsel This mcludes objections concerning docunwnts already in pouesmon of Mr Mmbaugh and other objectmns concerning the relevance or docunrnis.

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Cite as 39 NRC 254 (1994)

LBP 9415 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01 OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

May 23,1994

'The lloard determined that a Notice of Violation (NOV) issued to Applicant relates to matters that are related to the pending contention. Consequently, the Board ruled that questions related to that NOV were related to this proceeding and are necessary to the completion of an adequate record in this case. This rul-ing modified an earlier lloard ruling dividing the trial of the pending contention into two phases, the first of which would be limited only to the bases initially j

filed for the admitted contention.

RULES OF PRACTICE: SCOPE OF PROCEDURE; EFFECT OF NOTICE OF VIOI ATION All matters contained in a notice of violation related to a pending contention me found to be important matters and they must be adjudicated in order to ensure an adequate record.

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MEMORANDUM AND ORDER (Scope of Proceeding)

Today we received by facsimile transmission a letter from Georgia Power containing what we interpret to be a motion to limit the scope of scheduled depositions in accordance with prior rulings of this Board. We have decided to deny Georgia Power's motion without waiting for a response. Our ruling is relevant to depositions scheduled during the next 2 days and must, therefore, be made promptly.

The Georgia Power motion is based on a ruling of the Board that predated the issuance to Georgia Power of a Notice of Violation and Proposed Imposition of Civil Penalties on May 9,1994 (NOV).' The motion argues, primarily, that three aspects of the NOV were not mentioned in this proceeding and may not be raised as issues. The issues sought to be excluded from this case are: (1) the accuracy and completeness of a Georgia Power statement in June 29,1990 letter to the NRC concerning GPC's April 9 letter and April 19 LER; (2) the accuracy and completeness of a Georgia Power statement in an August 30,1990 letter to NRC concerning Georgia Power's April 9 letter to NRC; and (3) the issue of air quality (high dew point readings) that might affect the starting of I

the Vogtle diesel generators.

The NOV was based on an cuensive investigation conducted by the Office of investigations of the Nuclear Regulatory Commission.2 The matters contained in the NOV also were consiaered by the Vogtle Coordinating Group, which was comprised of NRC Staff members selected for their expertise in evaluating these charges.2 We note that our earlier order,4 which placed some limitations on the scope of this case, delineated the scope of Phase I of this proceeding. At the time, we were aware that it might later be appropriate to expand the scope into a Phase 11 proceeding. Without even considering whether the prior limitations did or j

did not pertain to the matters raised by Georgia Power, we have determined that it is necessary to include all the matters in the NOV in the scope of this proceeding. We are hearing an allegation that SONOPCO lacks the character and competence to run a nuclear power plant. We do not know, at this time, whether the allegations in the NOV are valid. flowever, we have examined extensive documentation that suggests that they have been carefully considered.

Ilence, the allegations of the NOV are relevant and important to the pending I lbcLet No 50-424. Licenw No. NPr48. EA 9M04 2 The investigation was cornpleied December 20.1991, and was relened to the pubhc simultaneously with iuuance of the NoV (Case No 2WO204).

3 1cbruary 9.1994. relcawJ unmitaneously with the Nov 4.HP 9V21,.18 NRC 14 L t199))

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1 contention. To exclude any of those allegations would be to have an inadequate record, compiled with blinders that would keep us from examining a portion of the relevant facts. This we shall not do.

All the allegations in the NOV are relevant to this case. IT IS SO OR-DERED.5 FOR TIIE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda Maryland I

'Mimms for reconuderanon rnay be hird witlun 10 days. Ilowever. Dus ruhng shan apply dunng the pending der onuuns 250

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Cite as 39 NRC 257 (1994)

LBP-94-16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMicSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

May 25,1994

%e lloard determined that deadlines for the conclusion of discovery must be kept unless good cause is shown for an extension of time. In the circumstances of this case, involving a special problem suffered by an attorney, there was good cause for 4 additional days of discovery, which would have been concluded already but for the attorney's problem. Hence, only discovery related to that special problem was permitted.

The Iloard also ruled that challenges to its orders must be made promptly, through a motion for reconsideration filed no later than 10 days after issuance of the order (or sooner if the order takes effect more quickly). An unchallenged order becomes the law of the case and cannot be challenged subsequently, in addition, the lloard reviewed several discovery disputes and overruled several objections made by Applicant to questions asked by Intervenor. In consequence, the Iloard ordered that the affected deposition should continue, and Applicant was cautioned not have any conferences with the affected deponents concerning the topics that were interrupted and are to be completed.

257

RULES OF PRACTICE: COMPLETION OF DISCOVERY; GOOD CAUSE FOR EXTENSION A party seeking to extend discovery beyond a deadline may obtain an extension on the discovery period only by showing that there are specific reasons why the deadline was not met. General arguments concerning the developmental nature of the discovery process are not persuasive.

RULES OF PRACTICE: MOTIONS FOR RECONSIDERATION; FINALITY OF llOARD ORDERS Motions to reconsider board orders must be made promptly, generally within 10 days of the date of issuance. In some cases, even shorter filing deadlines I

will be imposed. Once the opportunity to file motion for reconsideration has run, the board's rulings become the law of the case and may not subsequently be challenged successfully.

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RULi'S OF PRACTICE: OlljECTIONS DURING DEPOSITONS; SANITIZING WITNESSES When a lawyer has asked questions that are properly within the scope of the proceeding, objections to letting the witness answer are an obstruction to the discovery process. Such objections should not be made. A consequence of making such objections is that further discovery will be permitted and the witness will be barred from further discussions with company lawyers pending the continuation of the deposition.

MEMORANDUM AND ORDER (Good Cause for Illegal Transfer Discovery; Iloard Concerns)

There are pending before this lloard several motions by Mr. Allen Mosbaugh (Intervenor) to conduct further discovery on the Illegal Transfer issue. These motions will be discussed below. First, we snall review the procedural history that brought us to this pass.

L PROCEDURAL lilSTORY Following a prehearing conference held on January 27,1994, the Board issued an unpublished Prehearing Conference Order (February 1,1994) establishing a 258

schedule for completion of discovery on the illegal transfer issue. That Order is definitive. Challenges to orders of this Board must be made promptly, through a motion for reconsideration filed no later than 10 days after issuance of the order (or sooner if the order takes effect more quickly). An unchallenged order becomes the law of the case and cannot be challenged subsequently.

he February I order stated:

I 1.

Parties inay file requests for stipulations at any tirne.

4.

All depositions concerning the contention on alleged illegal transfer of operating authority (the 2.206 inaster) will be completed by Friday. Apiil 29,1994.

5.

fly COFl.May 31,1994, the parties and the Ikiard shall receive proposed additions to stipulations based on the interview records. All requests for stipulations shall be filed by this tinr, Nothing in our order addressed the question of when interrogatories would need to be completed. The question of written discovery was not raised by any party at our prehearing conference, leaving us with the impression that the parties had all completed written discovery. Intervenor has stated that "[t]he Board agreed with Intervenor's counsel and determined that Intervenor would have no less than 30 days after the completion of depositions to file written discovery related to the illegal transfer of control issue"' (emphasis added).

In its assertion about written discovery, Intervenor is in error. Our ruling was that requests for stipulations might be filed until May 31. Nothing was said about other forms of written discovery. Moreover, in the prehearing-conference discussion about stipulations, Intervenor argued that it would need a month to examine the record before filing stipulations. Tr. 231-32. This led us to believe that the record would be completed on April 29 and that there would be no further discovery after that time. In that way, Intervenors would have a month to prepare requests for stipulations.

Our next prehearing conference was April 11. Intervenor correctly states that the preannounced purpose of the Conference was to reschedule the status conference 2 liowever, additional scheduling matters were considered at that conference, and Intervenor made no motion to limit the scope of the conference.

On April 12,1994, the Licensing Board issued an unpublished order stating the conclusions reached at the telephone confetence. The Board order summarizing that conference is particularly important, since there was no transcription record made of that conference, in our order, we stated:

i 3 Intervenor's Statenrnt of Good Cauw to hie Intermgatory Quesuons Concermng niegal Transrer of Control and to Convene Deponnions Concermng Illegal Transfer of Connut. May 6.1984 (received by facsimile transfer on May 6 and May 10)(hereinafter "linervenor's AMtion.d Discovery Manon"), at 2.

2 g,,,,,,,,.s AMuonal Ibcovery Monon at 2, 259 t

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1.

With the exception of matters covered by paragraph 2 of this order, all discovery Oncluding any additional depositions, interrogatones, and responses to pending requests for j

admissions) related to the alleged illegal transfer of authonry over Vogtle shall be completed 1

by April 29,1994. [ Emphasis added.]

2.

By April 29,1994, Mr. Mosbaugh shall fila a motion covering all disputed discovery 1

issues related to the testimony of Mr. [A,W] Dahlberg. This motion shall contain all interrogatories or requests for documents that Mr. Mosbaugh plans to make on these issues.

7.

Deadlines may be extended on motion for good cause shown.

i On April 22, we held another prehearing conference by telephone, In the j

course of that conference, Intervenor informed the Board, at Tr. 246, of his theory concerning discovery in the case:

Discovery is the type of thing where you cannot set out at da one and say, "I know I'm going to have to talk to X, Y, and Z, and then I'm going to have my entire case." Discovery I

is an ongoing process where you see what's out there, you see what you get, you see what j

the witnenes are saying, and then you figure out where you have to go from there.

We went to the f rst round and now we're looking at a second round. Based on what's I

happening, there is also a need for some written discovery to be filed as well. In the interim, that is what I see as necenary for the interverer to complete the discovery process with respect to the license transfer.

These views are, regretfully, in error, Because of the discovery deadlines in j

'I this case, it is not up to Intervenor to organize discovery in this fashion. Once the deadline has expired, discovery may continue only if good cause is shown.

I Consequently, when Intervenor filed interrogatories on May 3 it had no right to pursue further discovery that would exceed the deadline in the case. It was required to show good cause why that discovery deadline would be exceeded.

We have required Intervenor to show that good cause, However, before we decided to permit Intervenor to show good cause for further discovery, Mr.

Ilarth,8 at a May 3 Prehearing Conference, made the following illuminating

-comment on behalf of the Staff, at Tr. 344:

I'd like to tackle the good cause first, your lionor. Let me read you the first interrogatory.

• 1dentify all committees or other entities established within the Southern system to study the creation of SONOPCO."

This is a question that could have been asked January 11 [1993), when you and I were down in the rain in Augusta, when we had the first preheanng conference. This is not an interrogatory which arose out of the depositions that have taken place in Atlanta and Ihrmingham the last two weeks - the first two weeks of April.

3 Mr. Barth aho served im un tle complete transcnpt or the deposition or Mr. Dahlberg, and the floard has becone futuliar with that depomuon (which still has not been prewnted to the witness for signature pursuant to i

the rules) and is grateful for ttus insight into the discovery process.

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Beginning at Tr. 348, we then required Intervenor to file, so that it is received by all the parties by Friday, May 6, at the close of business: (1) all objections arising out of depositions, including Mr. Dahlberg's deposition; (2) good cause for each proposed interrogatory, "one by one." We characterized the interrogatories (with our discussion with Mr. Barth fresh in our memory) in this way:

wrne do seem to t>e very basic and very general And we want to know why there is good cause for filing at this time, given the specific problems that arow with respect to the deponents that you have already interviewed There has to somehow be sho3 a there is gomi cauw arising out of the ddTiculties in the depositions.

II.

LATENESS In the course of the telephone conference of April 22, Mr. Kohn, counsel for Intervenor, agreed to inform us on the Monday following the conference about the basis for his argument that he did not need to order a transcript for depositions that he had conducted. Tr. 275. We note that Mr. Kohn did not call on that Monday, as the Board had asked him to do. (See Tr. 331-34.) He eventually filed the requested information on May 2,1994.

We also note that the motion containing matters related to the Dahlberg deposition was not filed by May 3, as had been required. It is for these reasons that we admonished Mr. Kohn on the record, stating that he did not seem to have a systematic way of keeping track of his obligations to the Board. Tr. 334 (corrected herewith).

We then granted an extension of time for filing the Dahlberg Motion. The Board's Chair stated:

"I want to be very clear that if there are any other deadlines missed in this case, the consequence will be that you won't be able to make up the filing." Mr. Stephen Kohn then stated for the Intervenor: "[W]c think what happened last week was extraordinary and as a firm we are committed to making sure that cdl these deadlines are completelyfulfilled in thefuture Tr. 335 (emphasis added).

We note, as well, that we had some discussion earlier in the record that is relevant to the meaning of " completely fulfilled." In the course of discussing Intervenor's decision not to have transcripts made of some of the depositions it had conducted, we were informed that Intervenors had transcribed the Dahlberg deposition and that both the Staff and Georgia Power expected that subsequent transcripts would be made. Tr. 319. In recognition of that possible expectation, Mr. Kohn stated that he had asked the reporter for the depositions to notify the other parties that he was not ordering transcripts. Tr. 319. At that point, Judge Bloch stated, at Tr. 319:

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So you relied on the reporter and never followed up to make sure that it would happen? You could see that it was important. in terms of the schedule of the case?

We are concerned that, despite our warning that we would not accept late filings. Intervenor failed to send complete copics of its filings either to this Board or to Georgia Power. The consequence was that the Board was not able to prepare in a timely fashion for the scheduled prehearing conference last Thursday, resulting in a 1.wcek delay in that conference.

The nature of Intervenor's delinquency is that it transmitted some of the pages ofits filings to the Licensing Board on May 6 and completed its filing on May 10.

Apparently, the cause was a facsimile transmission problem. But Intervenor did not confirm timely receipt of its entire transmission. Both Applicant and Staff also reported difficulties resulting in their receiving a filing that was incomplete at the time it was due to be received.

Because the difficulty here appears to be mechanical and not willful, we are going to step back once more. In the future, even mechanical difficulties will result in a finding of delinquency in timely filing, and filings will not be received. We suggest that Intervenors file early enough to catch mechanical problems and utilize alternative means of filing, if necessary.

III. CONCLUSIONS A.

Pending Depositions We are persuaded by the merits of Intervenor's Motion to Compel Licensee to Produce A.W. Dahlberg (Motion to Compel *). We agree with Intervenor that it is well established that discovery is to be liberally granted so the parties can ascertain facts in complex litigation, refine the issues and prepare for a more expeditious hearing.'

At the deposition of Mr. Dahlberg, Intervenor asked questions concerning i

Georgia Power's nonnuclear budget. It had a basis for these questions. Mr.

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Dahlberg had testified that the nuclear budget would have been consolidated with the other Georgia Power budgeting matters and then reviewed by Georgia Power's Management Council before it was presented to the Southern Company Management Council. Dahlberg, Tr. 27-28 Since the budget process for nuclear -

and nonnuclear were said to have been consolidated, there is reason to ask about the two trains of budgeting and to test the consistency of answers given. We are d intervenor's Mien to Compel txemce to hm!uce A w. Dahlberg Reconvene the ikposition of George limnton and Schedule the tvpomuun of Thomas Beckham. May 6.1994 6ncompletely transnutted on thal date.

completed Me 101 8 Motion to Compel at 2 262 l

concerned that by objecting to this line of questions, Georgia Power mitigated the value of cross-examination. For this reason, even at this late date, we grant Intervenor's request (in footnote 3 of its brief) to prohibit any discussions between Mr, Dahlberg and his Georgia Power counsel about budgeting questions before his next deposition.

We also caution Georgia Power'r counsel not to require Intervenor to make explanations of esidentiary objections in front of Georgia Power's witness. On proper request by Intervenor's counsel, necessary explanations can be given on the record by permitting the witness to leave. However, even these requests should be kept at a minimum because there is no indication that Mr. Kohn has been asking irrelevant questions and his flow of examination should not be broken without important reasons.

With respect to questions asked of Mr. Dahlberg for the purpose of eliciting 1

the extent of his knowledge about nuclear questions, Georgia Power has not stipulated to his lack of expertise in nuclear questions. Ilence, these questions were appropriate and attempts to interfere with this line of questions were not appropriate.

i The most disturbing difficulty in the Dahlberg deposition relates to questions about Board politics. Intervenor is alleging that the reality of governance of Georsa Power and SONOPCO is that SONOPCO assumed improper authority over the nuclear operations of Georgia Power. This allegation may well rise and fall on realities that are separate from the written documents. The politics of Southern company may well affect our decision about what really was going on in the SONOPCO company. We regret that this point was not apparent to counsel for Georgia Power, causing the disruption of an important line of examination. We therefore also caution counsel for Georgia Power to have no discussion with Mr. Dahlberg about these issues before his next deposition.

We also consider questions about Mr. Ilobby, about Georgia Power's response to tape-recording activity of Mr. Mosbaugh. and about Mr. Mosbaugh's motives to be sufficiently related to the control issue to have been allowed. These are j

management areas in which actual performance has been visible to Intervenor.

Ile should have latitude to engage in discovery that attempts to show (or to lead to evidence), directly or indirectly, that SONOPCO may have exercised improper influence in these matters. We likewise caution counsel for Georgia Power not to discuss these matters with Mr Dahlberg.

IV. INTERROGATORIES 1

in the scheduling conversations in this case, no party sought to file interroga-tories until April 22. Our Order of April 12 set an April 29 deadline for filing interrogatories. No one had requested such a deadline. We specified that date 263

solely for the purpose of clarifying that all discovery would be completed on that date. We did not anticipate that fresh interrogatories would be filed just before the deadline expired. Such a filing is inconsistent with our prior determination that discovery would be completed on April 29.6 Now Intervenor has filed a set of interrogatories, comprehensive in scope and considered by us to involve matters that could have been investigated at the very beginning of Intervenor's case. At the May 3 conference, in language discussed above, we specified that we would permit those interrogatories only if good cause could be shown for them one at a time. We stated that we wanted to know not only why the interrogatories were late but why they had not been filed far earlier and what specific difhculties in depositions had made them necessary.

Intervenor attempts to show that its interrogatories are necessitated by its difficulty in completing the deposition of Mr. Dahlberg.7 These arguments are now mooted by our determination to permit that deposition to go forward.

Ilowever, Intervenor also argued that it "was not in a position +.o fashion interrogatories about budgeting-related matters until after the depositions of GPC's executives. We find this a strange argument. These interrogatories were drafted even though no budgeting-related questions were answered. We, therefore, conclude that the questions could have been asked at any time and that intervenor's argument does not support further written discovery. Our examination of the interrogatories at our last prehearing conference convinced us that these were very basic questions that could have been asked at any time, and Intervenor has not even argued that we were incorrect in this impression.

V.

ADDITIONAL DEPOSITIONS On April 20, Intervenor notified Georgia Power that it planned to conduct eleven depositions beginning on April 27 and concluding on May 3.8 At the same time, there was a pending request to conduct a continuing deposition for Mr. George Hairston and a deposition of Mr. Thomas Beckham. We have determined that Intervenor has not shown good cause for extending the deadline of April 29 for the purpose of conducting any of these depositions. Each of its explanations is general and is not related to specific difficulties that could not have been anticipated prior to conducting the depositions.'

'We rnie that the staff of tir Nuclear Regulatory Comnuuson has not completed its discovery it states that at has not done sa becauw of the unavailainhty of transcrye of Intervenor's depoutmns. Tr 28L we have not deadcJ whrifer staff han good cauw for catenwon of discovery That driernunanon awaits a coming of good cauw by t!r Staff I liurrvenor's statenent of Good Cauw, htay ft (W4. at 6-7 8 Id at it "Src kl na 911 264 l

4

On the other hand, we have concluded that Intervenor should be permitted to complete whatever depositions it could have completed by April 29. It correctly interpreted our ac' ion at the April 15 scheduling conference as deferring all contested scheduling matters, for special reasons, until May 3.

Hence, Intervenors should not lose the 3-day period from April 27 to April 29 in which it could have held depositions. Consequently, we shall permit Intervenor to conduct 3 full days of depositions of people (including Mr. Hairston and Mr.

Beckham) it has named for possible depositions on the illegal transfer issue. We expect that these depositions will not be unfairly obstructed. We also expect that Intervenor will schedule only those depositions it can reasonably expect to complete.'"

VI.

ADEQUATE RECORD In reviewing the record to this date, the Board has determined that there are several issues that should be addressed in order for us to have an adequate record on the illegal transfer issue. We expect the parties to introduce appropriate documentation and testimony at the hearing to ensure that these issues are adequately addressed, and we expect witnesses that are called to be prepared to answer our relevant questions on these issues.

He issues we have determined to be necessary for an adequate record are:

1.

Nonnuclear Responsibilities of SONOPCO. What nonnuclear re-sponsibihties, if any, were assigned to SONOPCO? For any responsibilities that could affect safety at the Vogtle plant, directly or indirectly, how were those responsibilities defined?

2.

Oversight of SONOPCO. What organizational units or executive personnel of Georgia Power had any form of oversight activity (including management control, audits, investigation, personnel, quality assurance or control, or root-cause assessments) with respect to SONOPCO? What were those activities for each unit or executive person? What is the approximate total time spent on these activities by each unit or person?

3.

Personnel Decisions. Did SONOPCO as an entity, or any of its personnel that were not employed by Georgia Power, ever make decisions or recommendations concerning personnel actions to be made by Georgia Power? Please detail.

4.

Operating Responsibilities. Did any non-Georgia Power personnel of SONOPCO ever have operating responsibilities at Vogtle? What were those responsibilities? For each such exercise of responsibility, was there N We espect the partwa to make reasonable wronunodauons if one of the naned muirues is not availahic during the line scheduled for completing the illegal trafer depouuont j

i 265

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I

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always a Georgia Power person supervising the performance of the oper-J ating responsibility? What is the source of information for the answers to this question.

5.

Site Area Emergency. Who first called Mr. Dahlberg about the site 1

area emergency? What SONOPCO non-Georgia Power personnel called Mr. Dahlberg at any time concerning the site area emergency. What was discussed? How were the people who called Mr. Dahlberg supervised?

6.

Internal Studies. What, if anything, has Georgia Power done to assure itself that SONOPCO has not exercised safety functions for which Georgia Power is responsible? Similarly, what, if anything, has Georgia Power done to assure itself that SONOPCO has not improperly pressured Georgia Power personnel in the performance of their safety responsibilities.

Please document whatever studies, inquiries, or reports, of any kind, were done by way of assurance.

VII, ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 25th day of May 1994, ORDERED that:

1.

Mr. Allen Mosbaugh (Intervenor) may continue the deposition of Mr.

A.W. Dahlberg, subject to the conditions imposed on Georgia Power Company above.

2.

Mr. Mosbaugh may, in addition, conduct 3 full days of depositions on the illegal transfer issue pursuant to a schedule to be adopted by the Atomic Safety and Licensing Board at its May 26 prehearing conference.

3.

Intervenor may not conduct any further discovery without good cause shown. Discovery denied in this Order shall not be refiled unless new reasons arise.

4.

'The parties should become aware of the issues that the Licensing Board considers to be necessary with respect to an adequate record of this case. They shall assure that appropriate documentation and testimony are presented at the Hearing, should one be held.

266 i

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5. - Scheduling of depositions shall be coasidered at the prehearing confer-ence of May 26, in Bethesda, Maryland.

I TiiE ATOMIC SAIElY i

AND LICENSING BOARD James II. Carpenter (by PBB)

ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland i

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267 4

--I

Directors' Decisions Under 10 CFR 2.206 1

• W

%O

l Cite as 39 NRC 269 (1994)

DD-94-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION William T. Russell, D rector j

i in the Matter of Docket Nos. STN 50-528 STN 50-529 STN 50-530 l

ARIZONA PUBLIC SERVICE COMPANY, et al.

(Palo Verde Nuclear Generating Station, Units 1,2, and 3)

May 16,1994 The Director, Office of Nuclear Reactor Regulation, denies a Petition filed by Themas J. Saporito, Jr., pursuant to 10 C.F.R. Q 2.206. The Petition requested that the NRC order the immediate shutdown of the Palo Verde Nuclear Generation Station, Units 1, 2, and 3, institute a show-cause proceeding to modify, suspend, or revoke the operating licenses of the three units, take appropriate enforcement action against the Licensee, and deny the Licensee's November 13,1990 license amendment request to revise the setpoint tolerances for safety valves. As the basis for these requests, Petitioner alleged that neither the Licensee nor the NRC can be sure whether the 72 main steam and pressurizer safety valves will operate within their design 'iases and setpoint tolerances to mitigate an overpressurization event.

DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 1.

INTRODUCTION On October 23, 1992. Timmas J. Saporito, Jr., filed a Petition pursuant to section 2.206 of Title 10 of the Code of federal Regulations requesting that the Nuclear Regulatory Commission (NRC) order the immediate shutdown of 269

the Palo Verde Nuclear Generating Station, Units 1,2, and 3 (Palo Verde), and institute a show-cause proceeding to modify, suspend, or revoke the operating licenses of the three Palo Verde units. The requests were based on alleged problems with the main steam and pressurizer safety valves at Palo Verde and other matters raised in the Petition. By letter dated December 29, 1992, Petitioner's request for the immediate shutdown of the Palo Verde units was denied, and receipt of the Petition was ackno,vledged.

In a supplement to the Petition dated January 4, 1993, Petitioner also requested that NRC take appropriate enforcement action against Arizona Public Service Company (APS or Licensee) and deny the November 13,1990 license amendment application for an increased setpomt tolerance for the safety valves.

II. IIACKGROUND As a basis for his request, Petitioner stated that the Arizona Public Service Company and the NRC cannot be sure whether the seventy-two safety valves will operate within their design bases and setpoint tolerances to rnitigate an overpressurization event in any of the Palo Verde units. In support of this as-sertion, Petitioner presented seven concerns which are summarized as follows:

(1) The November 13,1990 request of APS to amend the Technical Specifica-tions of its operating licenses for Palo Verde Units I,2, and 3 to increase the allowable setpoint tolerances for the main steam and pressurizer safety valves was signed by a person who is not technically qualified to make safety com-mitments for this or any license amendment request; additionally,56 persons in engineering positions at Palo Verde hold those positions without having a bachelor of science degree in engineering. (2) In a March 22,1991 interof6ce memorandum, the Licensee responded to an employee who stated a concern that the amenJment request to increase the allowable setpoint tolerance for the safety valves indicates that the peak analyzed pressure for th,: loss of condenser vacuum transient is 2740.9 pounds per square inch, absolute (psia), leaving only a 9.1-psia margin to the safety limit of 2750 psia. (3) In a December 4,1991 interoffice memorandum, NRC Staff stated that it was not prudent to entertain the Licensee's request to amend its Technical Specifications at this time. (4) A June 1992 Conditi "m / Disposition Request of APS (CRDR No. 1-2-0139) listed numeroue 4

.es in the safety valves. (5) One of the authors of 1

CRDR No. I

& en ed to NRC officials that the Licensee falsified doc-uments relate n 41

.see's request to amend its Technical Specifications.

(6) A person i st > ; i r that two NRC Office of Investigations investigators told that person ma,..y had documents demonstrating that Licensee officials falsified documents related to the Licensee's request to amend its Technical

)

Specifications. (7) On October 8,1991, an engineer employed by the Licensee 270 l

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i willfully violated a safety-related procedure by intentionally adjusting pressur-irer safety valve PSV-574 contrary to the requirements of the procedure.

Mr. Saporito supplemented his Petition by a letter dated January 4,1993,

)

which reiterated his concerns, and also repeated his requests for an immediate shutdown of Palo Verde and a show-cause proceeding to modify, suspend, or revoke the operating licenses of Palo Verde Units 1, 2, and 3. In addition, Petitioner requested that the NRC take appropriate enforcement action against the Licensee and that the NRC deny the Licensee's November 13,1990 license amendment request to revise the setpoint tolerances for the safety valves.2 Ill, DISCUSSION A.

Personnel Qualifications Petitioner states that the November 13,1990 request of APS to amend the Technical Specifications of its operating licenses for Palo Verde Units 1, 2, and 3 to increase the allowable setpoint tolerances for the main steam and pressurizer safety valves was signed by a person who is not technically qualified to make safety commitments for this or any other license amendment request.

Additionally, the Petitioner asserts that fifty-six persons at Palo Verde who hold engineering positions have no bachelor of science degree in engineering.

NRC regulations require that all applications and amendments to applications be signed by the applicant or duly authorized officer thereof under oath or affirmation pursuant to 10 C.F.R. 55 50.30(b) and 50.90.

The NRC does not require that an applicant or duly authorized officer have any par 6ular edacational achievements in order to sign a license or license ameridment application. The November 13,1990 amendment application meets applicable NRC requirements for signature. Accordingly, Petitioner has neither stated a violation of NRC requirements nor raised a substantial safety concern.

Petitioner is correct that some personnel in engineering positions do not have engineering degrees. Tliis was a deviation from the commitment stated in the Updated Final Safety Analysis Report (UFSAR), for which the Licensee was issued a formal Notice of Deviation in NRC Inspection Report 50-528/92-43, dated February 26,1993. The deviation occurred after the Licensee revised the UFSAR, committing to qualification requirements as specified in job position descriptions (JPDs), which exceeded the requirements of ANSI 3.1-1978.

'On May 9,1991. e peutmn for lease to mtervene and a request for heanng riled by linda Mitchell. et af, was grarited lap 91 19, M NRC 397 0991) Pecuoncri challenged the Ucensce's Novemtier 13,1990 heenw anendnrns request for mcicated allowable serpmnt loirrance, but later wtahdrew that challenge. and the proceedmg was termmaird LDP 9137A. 34 NRC 199 (1991) 271

__ ~

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i ne NRC regional staff has reviewed qualifications of personnel hired into engineering positions since the issuance of the Notice of Deviation, and con.

firmed that one of the four engineering personnel hired did not have a bachelor of science (BS) degree in engineering as required by the applicable JPD. The Licensee identified this condition and initiated Condition Report / Disposition Re-quest 9-3-0205 to evaluate the circumstances. The Licensee determined that the individual's qualifications were certified by an acting supervisor who did not have authority to deal with personnel matters, and that this fact was not detected through other reviews in the hiring process. The NRC inspector reviewed the individual's resums and determined that he had a BS degree in mathematics and adequate experience, and had worked as a contractor in the same job func-tion for which he was hired. The inspector concluded that the individual had I

demonstrated, to Licensee management, his competence in the skills required for his job position. Additionahy, the individual meets the requirements of ANSI 3.1 1978, which does not require a degree for the job position.

The NRC Region V staff also reviewed the qualifications of seventeen of the Licensee's ASME Section XI testing personnel. Several discrepancies between JPD requirements and actual qualifications were identified. Three Consulting Engineers / Senior Consulting Engineers lacked Professional Engineer (PE) certifications required by the JPDs. Eight people lacked BS degrees in engineering required by the JPDs. Ilowever, the Licensee was aware of all these discrepancies. He NRC identified one discrepancy of which the Licensee was unaware. He Licensee had mistaken a BS degree in Engineering Mathematics for a degree in Engineering. In all cases, however, the personnel met the requirements of ANSI 3.1-1978.

In respoase to the Notice of Deviation, the Licensee initiated an evaluation of JPDs, with the intent of revising them to require qualifications more appropriate to the job positions. The Licensee initiated a review of dual career path programs, which had resulted in some people not having PE certifications and engineering degrees currently required by the JPDs.

On April 29,1993, the Licensee changed the UFSAR pursuant to 10 C.F.R. 9 50.59. The change eliminated references to JPDs, reducing the qualification requirements to those specified in ANSI 3.1 1978. As a result of this change, the Licensee no longer deviates from the UFSAR commitments (NRC Inspection Report 50-528/93-26, dated July 30,1993). Based on the Licensee's action, the j

NRC Staff concluded that this deviation was eliminated. The allegation does not raise a substantial safety concern or warrant any action beyond that already taken by the NRC.

1 272

II. The Safety Margin Concern Petitioner states that in a March 22, 1991 interoffice memorandum, the Licensee responded to an employee's concern that the amendment request to increase the allowable setpoint tolerance for the safety valves indica es that the peak analyzed pressure for the loss of condenser vccuum (LOCV) transient is 2740.9 pounds per square inch, absolute (psia), leaving only a 9.1-psia margin to the safety limit of 2750 psia.

On November 13,1990, the Licensee applied for amendments to the operating licenses for ti,e Palo Verde units to, among other things, increasc the setpoint tolerances for main steam safety valves from 11% to 13% and pressurizer safety valves from ti% to +3% or -l%. In the NRC review of this matter, one of the NRC Staff questions to APS related to the potential overall reduction of conservatism in order to meet the required limits for system overpressurization and other acceptance criteria, especially for the LOCV event. On May 27,1992, the Licensee submitted the following information regarding the conservatism that exists in the analysis to demonstrate that the maximum allowable pressure would not be exceeded:

1.

Feedwater and steam flow actually ramp down to zero in about 18 seconds instead of the analyzed 0.1 second.

2.

Safety valves are assumed to open at the +3% setpoint tolerance, whereas some are actually expected to open at lower pressures.

3.

There is 30 psi of additional conservatism in the high pressur-izer/ pressure trip setpoint of 2540 psia. Also, sarveillance tests indicate that this trip response time is less than 0.3 second instead of the assumed 0.5 second.

4.

The analysis does not assume that the pressurizer spray valves open.

5.

The initial pressurizer level in the analysis is conservative compared to the level normally expected.

4 6.

Nonsafety systems, such as the Reactor Power Cutback System and the Steam Bypass Control System, are assumed to not operate in the analysis.

7.

He moderat,r temperature coefficient is assumed most positive in the analysis.

8.

Other conservative conditions regarding the reactor physics param-eters in the analysis are: the least negative fuel temperature coefficient is assumed, bounding generic Linetic parameters are used, and the most limiting control rod is assumed to be stuck full out The Licensee stated that, with the operating conditions experienced most of the time, the peak pressure for the LOCV would be only 2650.5 psia (as compared to the safety limit of 2750 psia). The Licensee also stated that the ASME Code provides assurance of large margin to failure and that 273

its analysis to support the changes is adequate. The Staff agrees that the ASME Code overpressure safety limit (110% of design pressure, 2750 psia) is conservative. The NRC Staff determined that if the Licensee's analysis demonstrated the adequacy of the system overpressure protection with acceptably conservative input parameters and analysis methodology, then no minimal margin beyond the acceptance criteria is required. The NRC Staff has reviewed the Licensee's analysis methodology and input assumptions and concluded that they are sufficiently conservative (License Amendment Nos. 75,61, and 47, dated May 16, 1994). Thus the Licensee has met the required limits for overpressurization and other acceptance criteria, and demonstrated that maximum allowable pressure would not be exceeded.

Petitioner has not raised a substantial safety concern about the proposed amendment to increase safety valve tolerances at Palo Verde.

C.

The NRC Memorandum Petitioner states that in a December 4,1991 NRC intereffice memorandum, an NRC Staff member stated that it was not prudent to entertain the Licensee's request to amend its Technical Specifications at this time.

This Staff recommendation contained in the interoffice memorandum was based primarily on the conclusion that APS had not established a need for the Technical Specification change and the fact that.APS was having trouble meeting the 11% tolerance on the safety valves, as evidenced by the number of 1,icensee Event Reports filed. The Licensee's stated need for an expanded safety valve tolerance was to reduce the number of Licensee Event Reports submitted that do not have safety significance. The Licensee's valve performance data demonstrated that, with the proposed setpoint changes, the number of required Licensee Event Reports would be reduced. Also, the purpose of the Technical Specification change was not merely to establish a tolerance that would be met, but to provide a reasonable tolerance that was bounded by a safety analysis.

The Licensee's safety analysis, submitted as part of the proposed change, dated November 13, 1990, was found acceptable in the Staff's safety evaluation.

Additionally, the Licensee has embarked on a special program to try to improve the repeatability of the setpoints on the safety valves. All valves in all units have been refurbished and setpoints were established by a uniform method in an attempt to have direc '" comparable deta. The Licensee is currently testing many more valves than required in an atteml>t to improve performance. The Licensee is currently resetting out of-tolerance ralues to the tighter 11% tolerance each time a valve is tested, and will continue this practice, in order to ensure that setpoint drift does not take valves outside the targeted 3% tolerances.

He December 4,1991 Staff memorandum also commented that the Licensee used an incorrect analytical model for the pressurizer safety valve (pSV) lift. In 274

the analysis proposed in the license amendment, the PSVs were assumed to fully open at their setpoints to immediately deliver full rated discharge flow. Whereas in the UFSAR analyses, the PSVs are modeled to open only to 70% open at the setpoint pressure. The Licensee based this new assumption on test resuits that show that the valves attain full lift in 002 second after starting to open. The Licensee stated that the maximum additional accumulation in pressure for this delay in lifting would be about 2 psi more than the analysis result.

The NRC Staff con':ludes that the modeling of the PSVs to open fully at their setpoints (with the +3% tolerance) is acceptable on the basis of PSV test data. The previous method used in modelirg the PSV performance involved opening the valve to only 70% open at the serpoint pressure. The proposed method is more nearly a best-estimate modeling technique (i.e., within 2 psi of actual expected performance, as discussed above). Although the previous method is more conservative than that being currently proposed, the NRC Staff concludes that the overall conservatism of the analysis assumptions taken together is adequate, and that the analytical model is acceptable.

In addition, the Staff memorandum of December 4,1991, noted that with the nominal settings of the MSSVs, the average setpoint of the MSSVs is 3.3%

above the design pressure of 1255 psig. The memorandum furthe comments that with all valve setpoints at 3% above the nominal setpoint values, which are the largest values still meeting the proposed T/S criterion, the resulting average setpoint is 1336 psig or 6.4% above the design pressure. The acceptability of the nominal MSSV setpoints is governed by the ASME Code which requires that at least one of the MSSVs be nominally set at or below the system design pressure.

The Code also requires that the MSSVs limit the maximum system pressure to 110% of the design pressure for the limiting design-basis transient. The acceptability of the tolerance range (i.e.,11% or 13%) is governed by the plant Technical Specification and must be supported by an analysis to demonstrate that the appropriate safety limits (i.e.,110% of design pressure) are not exceeded with the maximum allowable MSSV setpoints for the limiting design-basis transient.

The average value of the MSSV setpoints is not required to meet any specific limit m relation to the design pressure of the system. The nominal setpoints for the Palo Verde MSSVs are not proposed to be changed in this amendment request and, therefore, continue to meet the above ASME requirement that at least one of the MSSVs be nominally set at or below the system design pressure. Further, the Licensee has demonstrated by analysis that the maximum system pressure is limited to less than 110% of the system design pressure with the maximum allowable MSSV setpoints for the limiting design-basis transient. Therefore, the above stated comment in the December 4,1991 Staff memorandum does not provide a basis to deny the amendment reouest.

The NRC Staff has reviewed the license amendment application regarding increasing the setpoint tolerances for the safety valves, and determined that the 275

1 proposed amendment was acceptable in a Safety Evaluation (License Amend-ment Nos. 75,61, and 47, dated May 16, 1994).

Accordingly, Petitioner has failed to raise a substantial safety concern, and Petitioner's request that the amendment not be issued is denied.

D.

The Condition Report / Disposition Request Petitioner states that a June 1992 Condition Report / Disposition Request of APS (CRDR No. 1-2-0139) listed numerous inadequacies in the safety valves (i.e., blowdown rings out of position, a history of these valves having setpoint drift, and no preventive maintenance performed by the Licensee since 1984).

A Condition Report / Disposition Request (CRDR) is an internal APS report that formally documents a problem and attempts to determine the root cause in order to prevent the problem from recurring. In this case, the problem that was documented by the CRDR was the failure of fourteen out of twenty main steam safety valves and two out of four pressurizer safety valves to perform within the tolerance of 11%, as required by the Licensee's Technical Specifications. All of these valves were removed during the Unit I refueling outage and sent to Westinghouse Electric Corporation for testing. In addition, some blowdown rings were found to be incorrectly set. APS has since instituted a two-person verification system for confirming that the blowdown rings are correctly positioned, and has satisfied itself that the quality assurance (QA) program at the Westinghouse test facility fully meets the Licensee and NRC requirements with respect to QA.

The matters discussed in CRDR No. 1-2-0139 were reported to the NRC in a letter dated June 24,1992. which forwarded Licensee Event Report (LER) 92-(XM. The report was prepared because some of the safety valves were found to be outside the 11% tolerance called for in the Technical Specifications. However, this report also contained the results of a safcty analysis demonstrating that the safety limit on reactor coolant pressure of 2750 psia was still met with the as-found settings of the safety valves, some of which were outside the proposed tolerance of 13%.

He NRC does not have specific preventive maintenance requirements for these valves. Ilowever, the NRC does require out-of-tolerance conditions to be corrected when identified. De Licensee has performed this required corrective maintenance of resetting the valve setpoint when out-of-tolerance conditions existed.

Additionally, the safety valves are receiving a considerable amount of Li-censee attention in an effort to improve their performance. In each case when the safety valves were found to be outside the tolerance band, the Licensee conducted an analysis that demonstrated that overpressure safety limits were not exceeded with the "as-found" settings. In addition, all safety valves have been 276 l

disassembled, inspected, reworked as required, reassembled, and retested, and lift settings have been readjusted during the recent refueling outages on all of the units. Thus, the Licensee's current program meets NRC requirements for safety valve testing.

Although there have been numerous problems in the industry in getting these valves to lift within a 11% tolerance, this is not necessarily a safety concern.

Relaxation of the Technical Specification tolerance has been granted by the NRC to licensees who have demonstrated that safety limits can be met with the 13% tolerance. Additionally, thcre are industry efforts under way through the American Society of Mechanical Engineers (ASMii) to change the tolerance band to 13% in the ASME Code, in order to better reflect actual performance, acceptable from a safety perspective, of these valves.

Petitioner does not raise a substantial safety concern regarding inadequacies of the APS safety valves.

IL Falsified Documents Petitioner states that an individual testified to NRC officials that the Licensee falsified documents related to the Licensee's request to amend its Technical Specifications.

Whether falsified documents were submitted in support of the Licensee's license amendment application to change the allowable tolerances for the safety valves is a matter that the NRC resolved before completing action on the APS license amendment application. The Staff made a request for additional information to the Licensee on September 2,1993, that detailed apparent discrepancies in information submitted by the License - in letters dated May 27,1992, and May 13,1993, and requested the Licensee to provide the test data used to construct its data tables. The Licensee summari/ed its test data in a letter of November 12, 1993. Additionally, the Licensee discussed the discrepancies in data between the two previous submittals. The Licensee did not perform an independent check of its data, and thus performed an inadequate review of its licensing submittals. There is no persuasive evidence, however, that the Licensee falsified the information in order to support the license amendment application. The revised data (where as found setpoint settings were changed, e.g., from +3% to +2%) were not exclusvely in a single direction, as would be expected if data had been manipulated or falsified to improve results. The Staff reviewed the Licensee's November 12,1993 letter in conjunction with the license amendment proposal and found that the corrected data did not change the Staff's conclusion that the requested increase in setpoint tolerances is acceptable.

Accordingly, the NRC Staff concludes that the licensee did not falsify data in support of its license amendment request.

277

F.

The Office of Investigations Documents Petitioner states that a person told him that two Office of Investigations investigators told that person that they had documents demonstrating that I.icensee officials falsified documents related to the Licensee's request to amend the Technical Specifications.

'Ihe NRC's Office of Investigations in the region neither has in its possession any documents containing evidence that APS officials falsified documents related to the November 13, 1990 APS request to amend the Palo Verde Technical Specifications, nor has the named investigators informed anyone that such documents exist.

G.

Safety Valve Not Adjusted Correctly Petitioner states that on October 8,1991, an engineer employed by APS will-fully violated a safety-related procedure by intentionally adjusting a pressuriier safety valve (designated as PSV-574) contrary to the requirements of the proce-dure.

The matters raised in this allegation were examined in NRC regional Inspec-tion Report 92-43, dated February 26,1993. (PSV-574 is not a pressurizer safety valve; it is a main steam safety valve.) The NRC Staff concluded therein that the test procedure is not clear regarding the limitations on when adjustments to the valve can be made. Adjusting the lift setpoint after a single failure during the testing of this valve appeared to be technically satisfactory on October 8, 1991, based on a declining trend in test lift settings and with the knowledge that the trend would continue with additional tests. Statements in the procedure appeared to indicate the need for at least two test failures before adjusting the valve. Ilowever, another statement appeared to indicate that the two-failure cri-terion applied only to the first test if it was a failure. It was the conclusion of the inspection report that the procedure was unclear and not appropriate to the circumstances. Accordingly, the Licensee was cited in Inspection Report 92-43, for a Severity Level V violation of the quality assurance provisions in Criterion V, " Instructions, Procedures, and Drawings," of Appendix B to 10 C.F.R. Part

50. Petitioner's allegation was partially substantiated in that a violation of NRC requirements was identified. Ilowever, the reason for the violation was that the procedure was not clear, not a lax attitude on the part of any person conducting the test or any willful failure to conduct appropriate testing. The Licensee sub-sequently revised the procedure to clarify the matter. The allegation does not raise a substantial safety concern and does not warrant any action beyond that already taken by the NRC.

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III. CONCLUSION Petitioner requested that the NRC order the immediate shutdown of all three units at Palo Verde; institute a proceeding to show cause why the operating licenses should not be modified, suspended, or revoked; take appropriate enforcement action against APS; and deny the November 13, 1990 license amendment application. The institution of a proceeding in response to a request for action under 10 C.F.R. 9 2.206 is appropriate only when substantial health and safety issues have been raised. See Consolidated Edison Co. of New York (Indian Point, Units I, 2, and 3), CLI 75 8, 2 NRC 173,176 (1975), and Washingt<>n Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899,923 (1984). I have applied this standard to determine if any action is warranted in response to the matters raised by Petitioner. Each of the claims or allegations by Petitioner has been reviewed. The available information is sufficient to conclude that no substantial safety issue has been raised regarding the operation of Palo Verde. Other claims either could not be substantiated or the NRC has already taken appropriate enforcement action, as explained above.

Therefore, I conclude that, for the reasons discussed above, no adequate basis exists for granting Petitioner's requests for immediate shutdown of Palo Verde, for instituting a proceeding to show cause why the operating license should not be modified, suspended, or revoked, for taking any enforcement action against APS beyond that already taken by the NRC, or for denial of the license amendment request for an increase in safety valve tolerances.

A copy of this I>ecision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 6 2.206(c). As provided by this regulation, this Decision will constitute the final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the decision within that time.

FOR TifE NUCLEAR REGULATORY COMMISSION William T. Russell, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 16th day of May 1994.

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Cito as 39 NRC 280 (1994)

DD-94-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF ENFORCEMENT James Lieberman, Director in the Matter of Docket Nos. 50-245 50-336 NORTHEAST UTILITIES (Millstone Nuclear Power Station)

May 20,1994 The Director of the Office of Enforcement denies a petition filed by Donald W. DelCore, Sr., rcquesting action regarding Millstone Nuclear Power Station.

Petitioner alleges that: his employment at the plant was terminated as a direct result of his engagement in protected activities, in violation of 10 C.F.R. 5 50.7; his termination warrants a Severity Level I violation because it was directed by a corporate officer, as well as enforcement action under 10 C.F.R. 5 50.5 for deliberate misconduct because two other corporate officers apparently provided input regarding his termination; a report of the Inspector General indicates a pattern of complaints of retaliation at the plant. demonstrating that repeated violations have occurred; and a " chilling effect" has been created at the plant as a result of the NRC's failure to take enforcement action.

DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 1.

INTRODUCTION On July 30,1993, Donald W. DelCore, Sr. (Petitioner), filed a request for enforcement action which is being treated as a Petition pursuant to 10 C.F.R. 5 2.206. The Petitioner requested that the Executive Director for Operations take accelerated enforcement action against Northeast Utilities (NU or Licensee) for willful violation of the employee protection provisions of 10 C.F.R. 5 50.7. As grounds for this request, the Petitioner asserted that: (1) his employment at the 280 i

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Millstone Nuclear Power Station was terminated, in violation of section 50.7, as a direct result of his engagement in protected activities; (2) his termination was directed by an NU corporate officer and therefore comprises a Severity Level I violation, and that two other corporate officers apparently provided input regarding his termination, affording a basis for enforcement of 10 C.F.R. 9 50.5 for apparent deliberate misconduct, and also for referral to the Department of Justice; (3) a report released by the Office of the Inspector Genera indicates that there was a pattern of complaints of retaliation at Millstone, demonstrating that repeated violations occurred; (4) a significant number of NU employees have contacted him, rather than the ARC or NU, claiming that they have been retaliated against for raising safety concerns, indicating that a " chilling effect" has been created at the Millstone Nuclear Station as a result of the NRC's failure to take enfa cement action.

II, IIACKGROUND On November 9.1991, Mr. DelCore was terminated from Millstone Nuclear Power Station. The Department of Labor (DOL) investigated a complaint filed by Mr. DelCore asserting that he was teminated for engaging in protected activity and, in January 1992, the DOL Area Director concluded that the termination constituted discrimination within the meaning of section 210 (now section 211) of the Energy Reorganization Act (ERA). The Licensee appealed that finding to the DOL Administrative Law Judge (ALJ), but before the ALJ ruled on the merits of the complaint, Mr. DelCore reached a settlement with Northeast Utilities on March 16, 1992. The ALJ subsequently issued a Recommended Decision and Order (RDO) on April 1,1992, recommending approval of the settlement. The ALJ's RDO was reviewed by the Secretary of Labor, was later consolidated with other cases concerning Millstone that were pending before the Secretary of Labor, and the Secretary issued a Final Order Approving Settlements on July 10,1992.

IIL DISCUSSION On November 13,1991, prior to comp!: tion of the DOL investigation, Region I sent a letter to NU, requesting, in part, that NU provide a response regarding the basis for the termination of Mr. DelCore. The request also asked what actions were being taken by NU ensure that the termination did not have a " chilling effect" on other emplop -

ho may have been discouraged from raising safety concerns because of the termination. A response from NU, dated December 27, 1991, stated that Mr. DelCore was not terminated for raising 281

safety concerns. The letter advised that he had been raising safety concerns for the previous 4 years and NU management had never contemplated or, in fact, taken any action in retaliation. The response explained that the breakdown between Mr. DelCore and NU management was the result of the antagonistic, contemptuous, and profane manner in which Mr. DelCore interacted with his peers and supervision, which was having a negative effect on co-workers' morale and their ability to concentrate on work assignments.

Subsequent to the NU response, the DOL compliance officer indicated in the narrative report, dated January 17, 1992, which formed the basis for the DOL Area Director's finding in favor of Mr. DelCore, that there was evidence that contradicted NU management's claim in its December 27, 1991 letter to the NRC. The compliance officer reported that it was quite clear that no warnings, suspensions, or performance improvement plans were used by NU for any alleged misconduct by Mr. DelCore. The compliance officer also stated that there was no documentation of the alleged poor behavior.

The Staff had requested, on February 18,1992, that 01 conduct an investi-gation into this matter, citing, among other reasons, the substantial difference between the finding of the DOL Area Director and the position stated by NU in its December 27,1991 response to the NRC. Notwithstanding the settlement noted above, the 01 investigation was continued in order to make a final de-termination as to whether discrimination hcd in fact occurred with regard to the termination of Mr. DelCore.

During the 01 investigation,01 determined that, although the DOL compli-ance officer did interview some of Mr. DelCore's co-workers and supervisors, there were nineteen co-workers and supervisors of Mr. DelCore (and another individual whose allegations were also being investigated) who were not in-terviewed. Therefore, an effort was made by 01 to interview Mr. DelCore's departmental co-workers to determiae whether, as claimed by NU, a disruptive work environment existed. In fact. 01 interviewed twice as many departmental co-workers and supervisors as did DOL. Based on the information obtained from these individuals and others interviewed,01 concluded that the termination was not the result of Mr. DelCore's engaging in protected activity.'

The Staff has reviewed the 01 report and agrees that there is insufficient evidence to conclude that discrimination in violation of section 50.7 occurred in this case. The factors that the Staff relied upon included a consideration of the fact that: (1) OI spoke with more day-to-day departmental co workers in the I&C department than did the DOL compliance officer, and the testimony of I Mr. IklCore had alw hied a complaint with the occupational Safety and Heahh Adnunistration (osha) aHeging that discrinunauon occurred as a result of his rais:ng concerns aswciated with asbestos issues. osha's investiganon included sntemews or personnel not questioned by ot, of reviewed the staternetas collected by OSHA investigators and deternuned that they did not prnide a thisis for changing the o! conclusion that no discnnunanon occurred in Mr ikiCure's ternunanon 282

these individuals was that Mr. DelCore was disruptive to the work force and was insubordinate; (2) O! considered testimony that DOL did not appear to consider, such as physical ihreats Mr. DelCore made to supervisors; and (3) Mr DelCore refused to be werviewed by 01.2 In the Staff's vi:w, the licensee's management did recognize that Mr.

DelCore had engag,-d in protected activity and, consequently, was being cautious in its use of discipline to avoid a charge of discrimination. However, the situation reached a point of friction between Mr. DelCore and both co-workers and supervisors such that, in the Staff's view, the Licensee's action was not an unreasonable resolution of the matter. Based on the above, there is insufficient evidence to support the Petitioner's claim that his termination was a result of his engaging in protected activity.

The Petitioner also referred to a report by the NRC Office of the Inspector General describing a pattern of complaints of retaliation at Millstone that allegedly demonstrates that repeated violations occurred, supposedly warranting accelerated enforcement action by the NRC.3 While the Commission would be concerned about any rattern of discrimination, the Petitioner's allegations of such a pattern do not establish that the Petitioner was the subject of discrimination in this case and do not have a bearing on the need for enforcement action for the Petitioner's termination.

The Petitioner also referred to a " chilling effect" at Millstone that resulted from NRC's failure to take enforcement action, as evidenced by the fact that "a significant number" of employees have contacted him, rather than the NRC or NU. Again, the Petitioner's vague allegations

• in this regard do not establish that the Petitioner was the subject of discrimination when NU terminated his employment and do not provide any basis for the NRC to take enforcement action for the Petitioner's termination.

IV. CONCLUSION As explained above, the Petitioner has not raised any issu,:s that would warrant the requested action. Therefore, for the reasons given above, the Petitioner's request for accelerated enforcement action is denied. As provided 2 The mierview was intended to provide Mr. DelCore with an oppottunity to respond to the company's charge that ne was disr.sptive and insubordinate. Mr. DelCore attempted to impose condiuons on the interview that were not acceptable to of and wre contrary to of procedures 3 The office of Investigauons is currently evaluating recent allegauons of discnminauon to deternune whether the complaints can be substanmited. Fullowing the complenon of ors work the NRC Starf will deternune whether further t nforcement action is waranted.

4 Subwcuon 2 206(a) requires that the Petiuoner wt forth the specific facts that consutute the basis for the requested action la these addmonal allegations about "chdhng effect." Penuoner ha faded to provide the specific facts required by 10 C F R. I 2 20Va) to support the requcsted accon.

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in 10 C.F.R. 5 2.206(c), a copy of this Decision will be filed with the Secretary for the Commission's review.

Joseph R. Gray, Acting Director Office of Enforcement Dated at Rockville, Maryland, this 20th day of May 1994.

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