ML20070Q404

Brief Opposing Applicant Motion for Reconsideration.Nexus Between Feb 1978 Stop Work Order & Current QA Problems Established.Burden of Bldg Plant That Complies w/10CFR50 Does Not Shift to Sunflower.Proof of Svc Encl

ML20070Q404
Person / Time
Site:	Perry
Issue date:	01/21/1983
From:	Wilt D SUNFLOWER ALLIANCE, WILT, D.D.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8301260467
Download: ML20070Q404 (4)

Text

.

j. a -

Tp UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '63 Jfy a g ATOMIC SAFETY AND LICENSING BOARD ~

$Cb'li- ' . 5 '-l.: 1, . -

?.;.n

- k ^uia SEFvif:

In the Matter of Docket Nos. 50-440-05 50-441-OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, Units 1 and 2)

SUNFLOWER BRIEF IN OPPOSITION TO APPLICANT'S MOTION FOR RECONS 11ERATION The essential argument raised by Applicant is that this Board lacks the authority to define the issues of tnIs proceeding. That simply is not true. This Board has the power under 10 CF3 2.721(b) to perform all acts

,specified b'y 10 CFR 2.718. Thus, this Board has the power to conduct a fair and impartial hearing. It has the power to regulate the course of the h aring. Further, this Board is required by 10 CFR 50.40 to determine .that the facility and equipment will comply with all of the regulations of-the

~

NRC. 10 CFR 50.50 further requires that the-Beard determine that all e

standards of the A'tomic Energy. Act and these regulations have:been met.

j _

Appendix B, Part 50, 10 CFR imposes on-the Applicant certain quality.

assurance criteria. Thus, before a license can be granted under 10 CFR 50.40 and 10 CFR 50.50, the quality assurance criteria of Appendix B om must be mat. It is the duty of this Board to determine whether or not

• TQ 9!o - these standards hav been met.

00 c)O 03g In fulfilling its responsibilities under the Atomic Energy Act and b

$$ the Regulations issued purso. ant thereto, this Board is more than a mere OO ca 9l< referee. "The Licensing Board exists for the very purpose of compiling a om

$$o factual record in a particular proceeding, analyzing the record and {})[$((h

~_ _ _ _ _ _ .

(

,I

• making a determination based on the record". In the Matter of Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3&S), CCH Nuclear Regulation Reporter 30170 (1977). The Appeal Beard has stated:

...This argument is based on a misconception of a licensing board's role in the hearing process.

Its function as the arbiter of important safety and environmental questions 'does not permit it to act as an umpire blandly calling balls and l strikes for adversaries appearing before itd;...

If it believes that circumstances warrant a re-opening of the record for.the receipt'of additional evidence, it has discretion to take that course of action...That the reason for doing so here stemmed from the Licensing Board's reading of a document.which had not theretofore been introduced did not vitiate its authority to take that step...'In the Matter of Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant. Units .

I and 2), ALAB-443, CCH Nuclear. Regulation Reporter .

3024o (1977).

Finally, the Appeal Board.has clearly stated that a licensing board has i

the authority to define issues for trial. In the Matter of Pacific Gas _,_

6 Electric Co. (Diablo Canyon Nuclear Power Plant. Units 1 & 2),

ALAB-234 CCH Nuclear Regulation . Reporter-30082 (1976) .

Sunflower asserted in its Answer to Staff's Motion for Summary Disposition f acts backed up, not by af fidavits, but by of ficial NRC-documents.- The .

Board, in a Motion for Summary Disposition, must consider the-filings.that

have been made in the proceeding as well as the other items . set forth in 10 CFR 2.749. Se'e 10 CFR 2.749(d) . The NRC documents attached to Sunflower's -

Answer are-evidence. See 10 CFR 2.743 (h). The Board is clearly authorized to consider these documents. Sunflower clearly cited the facts backed up by the documents in its Answer. Clearly, as the Board implicitly found, Sunflower complied with 10 CFR 2.749, t

E 3

Applicant forgets that a movant for summary disposition has the burden to show that he is entitled to judgment as a matter of law. It is not up to the respondent in a motion for summary disposition to disprove anything.

In the Matter of Cleveland Electric Illucinating Co. (Perry Nuclear Power Plant. Units 1 & 2), ALAB-443, CCH Nuclear Regulation Reporter 30246 (1977).

Staff simply failed to carry its burden.

Issue Three has from the beginning been couched in terms of the February,1978 Stop Work Order. Sunflower demonstrated that the Stop Work Order and the proceedings that followed created the entire quality assurance program now bein allegedly followed by Applicant. Thus, Sunflower has established the nexus between the Stop Work OPder and current ' quality assurance problems at Perry.:This is what. Sunflower has been required to do by this Board. Quality assurance is an important . consideration that must be reviewed before this Board may recommend the granting of a license .to -

operate. Sunflower only has to restate the conclusion reached by Region III of the NRC:

...However, it was and still is our opinion that the multitude of problems identified in the electrical area could be systemic warranting an assessment of other contractor activities. We believe you also recognized this potential when you. outlined your corrective action program for the problems in the electrical area and included a reassessment of management controls over other contractors. We believe the words '... management control systems were not totally effective...' put our concerns in the right perspectives... Letter dated July 13,.1982 from James G. Keppler.

Under the regulations and the law, Applicant must build a plaat ' hat complies with Appendix B, Part 50, 10 CFL. That burden does not shift

~

to Sunflower. This Licensing Board recognizes this essential responsbility of Applicant. Therefore, Applicant's Motion must be denied.

Respectfully submitted, ffAAs r_ .. I Darfiel D. Wilt, KSq.

Attorney for Sunflower Alliance Inc.

P.O. Box 08159 Cleveland, Ohio 44108 (216) 249-8777 PROOF OF SERVICE The undersigned certifies that a copy of this Brief has been sent to all persons on the Service List on this 21st day of January, 1983.

$N' h)--

Dapiel D. Wiltg Esq. " ' ,

AptorneyforSunflowerAllianceInc.

.