ML20072N450
| ML20072N450 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 07/12/1983 |
| From: | Devine T GOVERNMENT ACCOUNTABILITY PROJECT, MIAMI VALLEY POWER PROJECT |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20072N448 | List: |
| References | |
| NUDOCS 8307150324 | |
| Download: ML20072N450 (52) | |
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l_ 'O UNITED STATES OF AMERICA -i 83 > T-NUCLEAR REGULATORY COMMISSION -
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Before the Atomic Safety and Licensing Boar 'cr4 8 W -
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In the Matter of: )
)
CINCINNATI GAS AND ELECTRIC )
COMPANY, et al. ) Docket No. 50-358
)
(William H. Zimmer Nuclear )
Power Stations, Unit 1) )
)
REPLY BRIEF BY MIAMI VALLEY POWER PROJECT IN SUPPORT OF MOTION TO REOPEN THE RECORD FOR ADMISSION OF EIGHT CONTENTIONS ON QUALITY ASSURANCE AND CHARACTER AND COMPETENCE; AND MOTION TO COMPEL DISCOVERY ON THOSE CONTENTIONS.
I. INTRODUCTION i
On July 7, 1983 this Board granted the Miami Valley Power Proj ect 's
("MVPP") motion to file a reply brief, over the objec-tions of the applicant and Nuclear Regulatory Commission ("NRC")
staff. The express purpose of the request was (1) to present i
eight af fidavits withheld f rom MVPP's June 3, 1983 motion to reopen the record (" June 3 motion") pending guidance on whether public disclosure would obstruct ongoing staff investigations; (2) to present four additional af fidavits obtained since the June 3 motion; and (3) to rebut significant misstatements of law in the applicant J
8307150324 830712 PDR ADOCK 05000358 g PDR
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cnd otaffo' briefs.1 In addition to presenting the reply summarized above, pursuant to i
10 CFR 2.749 (c), MVPP moves this Board for discovery if necessary to f urther justify the existence of genuine unresolved issues on significant cafety considerations described in the eight proposed contentions.E!
Although MVPP believes it has made an overwhelming case to reopen the record under that controlling standard, discovery proceedings would resolve any doubts this Board may still entertain.
II.
ADDITIONAL EVIDENCE OBTAINED SINCE JUNE 3. 1983 TO SUPPORT MVPP CONTENTIONS. l i
l I
In light of the staff's failure to object, MVPP submits eight af f id a -
vits obtained since last August 20, 1982.E!
The substance of these affidavits was summarized in the June 3, 1983 motion. Those affidavits are attached and incorporated as Attachments 1-8.b!
In addition, MVPP presents four additional affidavits and supporting documentation, attached and incorporated as Attachments 9-12. MVPP contends that the evidence obtained since June 3 provides ample basis to require that the record be reopened for admission of its contentions.
b MVPP's Motion for Leave to File a Reply Brief (June 29, 1983).
3!
MVPP concedes that it exceeded the statute of petition to reconsider previous rulings on its May 18, limitations 1982 motion forfora licensing and hearings therefore on contentions withdraws covering the alternative the same basic subject matter, petition presented in the June 3 motion. to reconsider that was Additionally, filing motions with the Atomicas a protective measure, MVPP today is simultaneously Safety and Licensing Appeal Board ("ASLAB")
cnd the tions Commission proposed on Juneto 3.
reopen the record for admission of the eight conten-MVPP is also moving the Commission to tempor-orily defer its review of the Zimmer proceedings until the adj udic a tory boards below can rule on the MVPP motions to reopen. MVPP is filing these notions
.mo. longerin response to the applicant and staffs' position that this Board has jurisdiction.
cetion on the Zimmer license,Since the there has not yet been final agency logical outcome of their argument is that MVPP jurisdiction lies elsewhere in the NRC's system of adjudication.
however, contends strongly jurisdiction liesthat it lies within this Board. Unquestionably, prior to final agency action.somewhere within (Infra, at the agency for a motion filed 20-31).
2!
These statements already have been provided of Investigations ("0I"). to the NRC's Office
8 i
The additional cffidavito and docunanto are cunaarized below, by relevant contentions. In some instances, the new evidence pertains to i
significant additional quality assurance ("QA") violations. In other cases, the new evidence offers illustrative examples to rebut or demonstrate the inadequacy of applicant's responses 1 to the NRC's September 23, 1983 Demand for Information, issued pursuant to 10 CFR
- 50. 54 (f ) . b!
In combination, these 50 new allegations demonstrate that the staff and CG & E response are empirically wrong to say there are no new issues. The new evidence qualitatively changes the scope and nature of the QA violations covered by MVPP's eight general contentions, as presented last May 18.
Indeed, the new evidence changes the most fundamental conclusion about Zimmer. As David Jones, former assistant to the Kaiser quality assurance manager, explained: "[17n reality, this plant is not in a quality indeterminate state. It is in a quality condemnable state . . .
(Attachment 11, at 15.) The new factual allegations reply to the staff and applicants' conclusions that the status quo is adequately addressing and solving the Zimmer quality assurance breakdown.
Both conclusions are essential to grant an operating license.
Neither conclusion is correct.
A.
CG & E and its contractors have failed to maintain sufficient
_ quality assurance controls to ensure that the as-bu il t condtion of the plant reflects the final version of a design that complies with all opplicable
_e s requiredregulations by 10 CFR 50,andAppendices requirements A andfor public health and safety, B.
1.
In the CG & E Response, applicant misquoted the QA Manual of its constructor, the Henry J. Kaiser Company (" Kaiser"), to deny 4/
-B y a separate Motion for Protective Order, MVPP is simultaneous-ly requesting confidentiality protection for those witnesses who have ,
denied permission for their identity.to be released publicly. If the i Eotion is granted,'MVPP also will submit several hundred pages of documentation for the record on welder qualifications and the welder recertification program.
While this evidence strongly supports the proposed contentions, MVPP wishes to avoid unnecessary invasions of workers' privacy.
5 Letter to Richard and Enforcement, from E.A. De Young, Director, NRC Office of Inspection Borgmann, CG & E (Feb, 28, 1983)("CG6E Response)
of a design specification that simultaneously were in use. Although the QA Manual requires the specifications to be controlled, CG & E apparently decided to wa iv e that provision in order to deny MVPP's charges. ( At ta c hm e n t 11, at 3.) Most significant, applicant ignored the point of the rules when it chose to quibble over their coverage:
it is impossible to have confidence in the design when five dif f erent departments are working on the same item with five different sets of specifications. Even if applicant quoted the QA Manual properly, it would only demonstrate the flaws in the Manual.
2.
The violations of QA design requirements have been crude and willful. They are not a matter of inadvertant omissions due to loopholes in the QA Manual. To illustrate, in a November 7, 1980 m em o ra nd um , Kaiser QA engineer John Deerwester reported that he had approved certain material purchases for fabrication of structural steel in the suppression pool. He approved the materials on the direct orders of Kaiser QA manager Phil Gittings. Mr. Deerwester protested, however, that the approval was without review of the proper drawings, or a Design Document Change ("DDC") to permit the deficiencies.
He concluded, "The approval of this requisition with above known discrepancies is in violation of all procedures and good quality practice." (Attachment 12, Exhibit 4.)
3 In the CG &E Response, applicant failed to address the allegation that construction aide s have been misused. Applicant b! Misquoting the QA Manual and willful QAviolations are al so relevant allegations for MVPP's proposed contentions on character and competence. (Infra, a t 16 ) .
I l
l accused the alleger, Richard Reiter, of ignorance and restaced the obvious -
that construction aides have been and will continue to have a proper function.
That begs the question - the widespread practices of using the aides beyond their normal function, and there-fore helping to lose control of the design. (Attachment 10, at 8).
Applicant 's non-response suggest s that the abuse will continue.
4.
In the CG & E Response, applicant irrelevantly referred to procedural requirements to rebut eyewitness accounts where the design does not match the as-built conditions of Z imm er . The response is inadequate because the procedures had failed empirically. That was the point of the af fidavit s .
(Attachment 10, at 17-18). Applicant's non-response is illustrative of a generic deficiency in design QA at Zimmer: the procedures are not followed in the process that pro-duces the a s-bu ilt c o nd it io n s of the plant.
5.
The.effect of the br e a kd o wn in controls is a systematic br ea kd own in the accountability of design changes at Z imm e r . In his new af f idavit, Mr. Richard Reiter, a Zimmer employee assigned to retrieve DDC'g pointed out that DDC's could only be r el ia bl y located at all if the requestor had a control number. Once the DDC's were retrieved, he found they superceded or conflicted with each other; were not reflected in the a s-buil t condition; were replaced with inadequate substitutes such as calculations d rawn up in the field; or devoid of the d esign history necessary to trace evolution of the final design status. (Attachment 10, at 15-16).
6.
An illustrative example exposes the inadequacy of applicant's proposed response - systems walkdown - to a decade of uncontrolled,
qucationable design decisions.
Mr. Reiter pointed out that a systems walkdown could not possibly replace an adequate QA program, particu-larily for deviations that are not o bv io u s or involve inaccessible items.
He described the painstaking process that it required for him to identify a three inch weld on inaccessible piping that was not reflected in the construction aides or design drawings. (Attach-ment 10, at 12-13).
- 7. Applicant has responded to serious allegations with inaccu-rate attacks on the sources in an effort to distract from the substance of their safety concerns. One of applicant's most common .
tactics in the CG & E Response was to contend that the witnesses '
were in no position to make knowledgeable criticisms. For example, l
applicant contends that Mr. Reiter was not in a position to criticize {
design control procedures.
That is hard to understand: his j ob wa s to check whether piping drawings were accurate. Every drawing he checked was inaccurate to some degree. As he c onclud ed , "I know the piping records are a shambles . .
." ( At tac hmen t 10, a t 20-21).
Applicant's responses demonstrate the necessity f or public hearings -
to go beyond smokescreens and resolve these issues.
B. CG & F and its contractors have failed to maintain an adequate traceabilicy system to id en t it y and document the history of all
- material, 30, Ap p en parts, d ix B,components and welds, as r e qu ir ed by 10 CFR Part Griterion VIII.
- 8. In the CG & E Response, applicant attempted to rebut the generic deficiency of unreliable traceability f or small-bore piping by rewriting Mr. Reiter's original Surveillance Report ("SR") 2819 to make it narrow and sp ec if ic . It was neither. The SE explicitly ,
identified a systematic problem. Applicant also inaccurately asserted that Mr. Reiter received a response to his SR. Mr. Reiter points out this is simply inaccurate. As he observed overall, "CG & E's response to this section of the petition is so divergent from the truth that it is difficult to correlate with reality." (Attachment 10, at 26-27).
9.
In the CG & E Response, applicant sidestepped the allegation of nontraceability for NX hanger sleeves. Applicant's response said the requirement only applies to specific hanger sleeves. Mr. Reiter had charged that the defect applied to all NX hangers. (Attachment 10, at 28-29).
10.
In the CG & E Response, applicant answered allegations of untracable wdd rods with reassurances that they will be controlled in the future.
As Mr. Reiter points out, those r ea ssu ranc e s lack credibility in light of previous, repetitive violations. The answer also ignores the effects of unreliable control on weld rods for over a decade. ( At ta c hm ent 10, at 42).
11.
Widespread material traceability defects will persist, because the causes for the breakdown also persist. As Mr. David Jones, a former QA analyst at Zimmer stated in his af fidavit, the problems were partially because the construction and QA departments do not follow the same rules. Their procedures are inconsistent for traceability on the same item.
S im ila r to the chaos with design sp ec if ic a t ion s , this made deficiencies inevitable. Mr. Jones was rebuffed in his at t empt s-'to- in troduce unif orm procedures. (Attachment 11, at 5-6).
P C.
CG & E and Kaiser have failed to maintain an adequate quality assurance program for vendor purchases, as re qu ir ed by 10 CFR Part 50, Appendix B. Cr it er ion VII .
- 12. The Nolder Report of Kaiser corporate auditor Sherrill Nolder, which exposed a severe breakdown in vendor Q A, was only an introduction to the problem,according to a July 6, 1983 af fidavit from Ms. Nolder. It was only prepared as a brief outline to help Kaiser corporate ex e cu t iv e Dav e Howard make a presentation of the problem to Kaiser management. (Attachment 12, at 4). Unfortunately, neither Kaiser, CG & E nor the NRC staff have followed through to adequately resolve the issues Ms. Nolder raised in the report. There is a strong probability that her concerns will never be resolved --
absent confirmation through an accident -- without public hearings.
- 13. In the CG & E Response, applicant engaged in a " bold faced lie," ac c o r d ing to.Mr. Jone's af fidavit, by a sserting that Kaiser voluntar ily agreed to stop an audit of CG & E for possible inclu-sion in Kaiser's own Approved Vendors List. (" AVL"). In fact, CG & E had ordered Kaiser to terminate the audit. Mr. Jones is aware of the truthful sequence of evente,because he was an eyewitness to the termination order. (Attachment 11, at 8).
- 14. The Zimmer vendor QA loophole was used as a catch-all for other QA viola t ions that could not be resolved. To illu st ra t e, applicant " excused" lac 1. of traceability f t r certain flanges by theorizing that the flanges had been purchased from a vendor.
(Attachment 10, at 32-31). l I
D. CC & E and Kaiser have failed to maintain an adequate quality assur-ance program to identify and correct construction deficiencies, as required by 10 C.F.R. Part 50, Appendix B.
- 15. A September 1981 Kaiser corporate audit of special processes such as welding, Audit No. 67, illustrates the full scope of the Zimmer organizational QA breakdown. In her July 6 affidavit, audit team member Sherrill Nolder estimated that despite a new task fo'rce to rewrite the welding procedures, "the procedures used to build over 95% of the Zimmer plant were not qualified."
(Attachment 12, at 7). This flaw would doom the legitimacy of the entire weld-ing program. Even if the individual welders were qualified, their work would not pass legal muster if it were performed according to procedures whose relia-
! bility were not demonstrated as required by law.
i l 16. The response to Audit No. 67 supports MVPP's allegation of inadequate organizational freedom. Ms. Nolder's af fidavit reports "a tremendous amount of pressure on us to close the audit findings, "despite the lack of proper corrective q action. (Attachment 12, at 8, Exhibit 14).
- 17. The proposed corrective action to Audit 67 reveals the shakey nature of applicant's reassurances that MVPP's QA concerns are in general being solved through its " program." In July 1982 Kaiser officials attempted to satisfy the corporate auditors with a four inch thick stack of documents from Zimmer. As
- Ms.Nolderreports,however,"((eadauditoI7GilhoolyandIconsideredthisa
' whitewash' of Audit 67's findings because the stack of documents was insufficient to close any findings and did not even address many of the findings." (Attachment 12, at 8)(emphasis in original) . As Ms. Nolder wrote in an October 26, 1982 memorandum to Mr. Howard:
' I can not believe that you even consider the stack of papers sent from the jobsite two months ago as an attempt to address audit findings. As I pointed out this afternoon, nearly all of that material was irrelevant and the stack contained quin-tuplicate copies of a site-performed audit which has no bearing on the close out of Audit No. 67.
(Attachment 12, Exhibit 14). MVPP suggests that public hearings are necessary to secure a credible response to Audit No. 67. More fundamentally, they are essential to determine whether the rest of applicant's corrective program is as irrelevant, or unbelievable, as the proposed " solutions" to this audit.
- 18. The response to Audit No. 67 illustrates another feature of the Zimmer QA program--rewrite the results if they create significant burdens. On January 4, 1983, when it became clear that the Audit No. 67 findings required a major new effort, another corporate auditor rewrote the findings. On January 7, Ms. Nolder protested to Kaiser President Holman, "I believe the reason these events are occurring is because I have steadfastly refused to allow my findings to be closed out without the prior completion of all corrective action work at the jobsite." (Attachment 12, at 8-9, Exhibits 15a-b).
19.
Another generic Zimmer QA characteristic exhibited by Audit No. 67 is
$, delay--to simply postpone action for unreasonable periods. Even last October 26 Ms. Nolder observed in her memorandum to Mr. Howard, "I have never before in my career performed an audit which had open findings over a year later." (Attachment 12, Exhibit 14).
- 20. When Ms. Nolder was terminated in February 1983, she reports that none "of the audit findings were adequately addressed. Gladstone Laboratories still was not approved as a supplier even though most of the weld procedures and hundreds of welders were ' qualified' there." (Attachment 12, at 9) . Similar to j
her report on vendor QA, Ms. Nolder's findings on welding may never be addressed without public hearings.
- 21. The QA deficiencies of Audit No. 67 were not unique. A bacic lack of organizational freedom compromises the entire program. For example, Mr. Jones explains that the CG & E Response missed the point of his complaints about gag orders on auditors. Mr. Jones points out that the restrictions went well beyond l
l i
the format for audit findings. The auditors were told not to issue inter-office memoranda. (Attachment 11, at 11).
- 22. The absence of an effective training program was another basic cause of the QA breakdown. Even the best of applicant's training efforts, such as the program for the Nuclear Engineering Department ("NED"), were ineffective. Mr.
Reiter explained that none of the substantive course material was useful for his on-the-job assignments; the program was informal; attendance was voluntary; and the effort was considered mere " window dressing" by those who participated.
(Attachment 10, at 43-6).
23.
The inadequate scope and low standard for the quality control ("QC")
inspection effort discourages confidence in its conclusions. As Mr. Reiter explains the abstract description of the sampling program in the CG & E Response does not address the allegation that its scope is inadequate. He illustrated his point with a case where the design of the sample program would tolerate an 80%
rate of rejectable welds. (Attachment 10, at 49-50). The basis for applicant's highly questionable standards should be subjected to public scrutiny through hearings before this Board.
24 The overall result of the limited inspection effort has been limited identification of the QA violations at Zimmer. As Mr. Reiter estimated, the QA program allowed at least as many deficiencies as it identified. (Attachment 10, at 3).
25.
When the QC inspectors did identify violations, their findings were not honored even temporarily through stopping work on items with hold tags.
The CG & E Response attempted to rebut this allegation from Mr. Reiter by stating that he was not on-site during the entire period he described. As he l points out, however, he learned the ropes from the behavior and on-the-job j l l 1
assistance of his co-workers. Their approach indicated a tradition of ignoring l hold tags. (Attachment 10, at 55).
26.
The CG & E Response further supports MVPP's position that QC inspection findings are subject to inordinate delays. Mr. Jones points out that applicant's charge of premature conclusions in a Corrective Action Report (" CAR") are not persuasive, because the CAR had been open for two years when CG & E complained about rushing to judgement. (Attachment 11, at 10).
27.
The CG & E Response indicates that still another symptom of Zimmer's QA program persists--avoiding problems by relaxing the requirements, and then denying that the standards have been diluted. Mr. Jones charges that applicant's answer was " totally false" to claim that QA/QC standards were not reduced when the requirement for a high school degree was eliminated. (Attachment 11, at 10).
28.
Even when it has worked, the QA program has only solved examples of problems and ignored the full extent of similar violations. The CG & E Response indicates that this philosophy persists. In the Response, applicant took credit for addressing a specific example of outdated design specifications cited by Mr. Jones for fittings. But applicant ignored Mr. Jones' recommendation to go beyond correcting the specific example. To solve the problem, he had proposed--
- 1) a check for all similar defects on all fittings purchased since March 4,1976; and 2) revision of the inadequate procedures that created the problem, so that it would not happen again. (Attachment 11 at 3). Unfortunately, applicant's program (and its rebuttal in the CG & E Response) chose to address the example and ignore the problem. Public hearings are needed to address the latter.
E.
CG & E and Kaiser failed to maintain adequate controls to initiate, process and respond to internal Nonconformance Reports ("NR's") identifying violations of internal or government requirements.
- 29. The CG & E Response further weakened applicant's position that non-conformance reports (NR's) are not being replaced with inferior substitutes.
- _- - - _ = - _ ______
Applicant belittled Mr. Reiter's claim of being trained to use In-Process Inspec-tion Deficiency Reports ("llDR's") instead of NR's for weld repairs. CG & E answered that the training session at issue was brief. That both misses Mr.
a Reiter's point and increases its significance. Despite audit findings that IIDR's were improper for weld repairs, applicant established its priorities in the limit-ed training program it offered. Employees were explicitly told that IIDR's would be used to reduce the number of nonconformance reports without reducing the number of nonconforming conditions. (Attachment 10, at 46-7).
- 30. In the CG & E Response, applicant inaccurately denied that CAR's have not been used to substitute for nonconformance reports. As Mr. Jones explained in his affidavit, both CG & E and Kaiser QA Manuals rebut this fake assertion by applicant. (Attachment 11, at 11).
. 31.
At Zimmer the management was even too threatened to let the system operate for inferior substitutes. Similarly to NR's, CAR's were voided and expunged from the system when managers wanted to avoid controversy. The approach is illustrated by a " typical" memorandum Ms. Nolder found during her investigation of vendor QA. The memcrandum returned a CAR to its author, Mr.
John Deerwester, with the following explanation: "Ibelievethis/Jefiencywith a General Electric alignment pin if7 a special case... I don't believe a CAR is necessary. It would unnecessarily stir the pot." (Attachment 12, Exhibit 4)
(emphasis supplied). Public hearings are necessary to identify and resolve the other QA findings that were censored for being too controversial.
- 32. Even when the nonconformance system was permitted to operate, the limited scope of inspections prevented the NR's form solving all the deficiencies even for individual items. As one construction supervisor noted in his affidavit, the NR's on overfilled cable trays missed the generic problem of sulfate corrosion for cable tray supports and grounding in specified locations. These cables could I
be necessary to supply power for the water used to cool the reactor during an accident. (Attachment 9, at 2).
F.
CG & E and Kaiser have engaged in illegal retaliation against QA/QC personnel who attempt diligently to perform their duties or who disclose QA
_ deficiencies outside the chain of command, Part 50, Appendix B, Criterion I. in violation of 10 C.F.R. Part 19 and 33.
In the CG & E Response, applicant was empirically wrong to assert that a memorandum written by Mr. Jones to Mr. Baker about gag orders and retaliation never existed.
Mr. Jones states in his affidavit that he retained a copy of the memorandum. (Attachment 11, at 13).
34 In the CG & E Response, applicant also inaccurately denied that Norm Vitale, Kaiser's Manager of Quality Engineering, had ordered an inspector to stop writing memoranda.
Mr. Jones was an eyewitness when the inspector informed both the NRC and the FBI of the incident. (Attachment 11, at 13).
35.
In his affidavit, Mr. Jones provides another example to support his position that at Zimmer "it takes an act of courage to do your job." Mr. Jones was present when Kaiser Deputy QA Manager John Watkins threatened to " fire the son-of-a-bitch" (Mr. Deerwester) unless certain material purchases were approved and released. Soon after, Mr. Deerwester was transferred. (Attachment 11, at 14).
36.
In the CG & E response, applicant missed the point and failed to rebut Mr. Jones' contention that he was a victim of retaliation. (No inference could be drawn from a complaint withdrawn by Mr. Jones due to his dissatisfaction with the cursory level of investigation by the Department of Labor, its refusal to accept evidence and its inability to offer confidentiality to witnesses who offered ,
to support Mr. Jones on that basis.) I 37.
The retaliatien 'ss continued in 1983. On January 7 Ms. Nolder reported to Kaiser President Holman that her warnings of the need for major corrective action at Zimmer only led to increasing harassment and intimidation, such as being
l branded a " spy" and denied access to documents. (Attachment 12, Exhibit ISB).
i
{ 38. Appeals to corporate leadership for an end to reprisals, and con-
, structive offers to help confront Zimmer's problems may have exacerbated the retaliation against Ms. Nolder. In her March 7 letter, Ms. Nolder stated that she " alerted your predecessor to problems at Zimmer but was ignored. I am offering you my assistance on Zimmer. . . ." (Attachment 12, Exhibit ISB).
Apparently Mr. Holman did not find the offer attractive. Five weeks later K aiser terminated Ms. Nolder. (Attachment 12, at 8-9). She since has filed suit with the Department of Labor charging that the dismissal represented illegal retaliation under 42 USC 5851, the whistleblower protection statute contained in amendments to the Energy Reorganization Act.
G.
Reforms imposed by the April 8, 1981 Immediate Action letter ("IAL"),
such as the Quality Confirmation Program ("QCP"), have been inherently and empirically failed to adequately mitigate or solve the serious consequences of the QA breakdown at Zimmer.
- 39. The Quality Confirmation Program's ("QCP") patchwork approach to
] reinspection is inherently flawed. Comprehensive reinspections are necessary because there is inadequate basis for confidence in the qualifications of personnel during the first 97% of construction. (Attachment 10, at 48). The rule that all welds must be reinspected if the welder's qualification cannot be verified should be extended to all safety-related work at Zimmer.
- 40. The QCP misses previous violations that occurred in-process. For instance, the QCP inspectors do not review potential safety hazards such as electrical cables that exceeded the manufacturer's maximum recommended tension 50% into the cable pull during initial installation. (Attachment 9, at 2).
41, QCP inspectors miss potentially serious hazards that still could be identified because the limits to the inspections are carefully prescribed.
, , - _ _ , __ __ , ____-..._,__-_m..m~ _ .
i For example, QCP inspectors only check cable trays to see if they are so over-filled that the cables are visible over the top. As a result, the inspectors failed to notice heat buildup so excessive that the plastic began to melt after an hour, even though the plant had not yet begun operation. These overpacked cables could represent a fire hazard once Zimmer goes on-line. (Attachment 9, at 2).
42.
On balance, the QCP and other reforms associated with an April 8,1981 NRC Immediate Action Letter ("IAL") have failed empirically. All 50 new allegations in this brief refer to current policies or incidents that occurred since the IAL was initiated.
H.
CG & E lacks the necessary character and competence to operate a nuclear power plant. 7/
- 43. Even if CG & E had been operating in good faith within a sound QA program, the competence of its personnel is an unre-s olv ed licensing is su e .
Ms. Nolder's October 26 memorandum to Mr. Howard warned, It is impossible to anticipate problems encountered at the site, but it is obvious that lethargy and ignorance rank fairly high. I made a trip to the site in March, 1982 to assess the procurement and warehouse records available and outlined procedures that could be taken regarding discovery of materials (including welding mat erials) which were upgraded l at the site and that report wasn't even issued from your office until June and I do not know if it is even being used.
I discovered that -che woman you told me was performing the work for CG & E had quit two months prior to our discussion so I have no idea what, if anything, is being accomplished, much less what their problems are.
( At t ac hm ent 12, Exhibit 14).
U proposedThis contention by MVPP. is by far the most significant of the eight It explains the organizational cause for the effects described in the other contentions.
I
- 44. The new evidence demonstrates that the abdication of.
corporate leadership extends to the Kaiser Corporate Presidents.
In addition to her January 7, 1983 warnings to President Holman, Ms. Nolder had raised the same issues to Kaiser leadership six months earlier.
I repeatedly tried to warn Kaiser's top manage-ment that there were gross noncompliances with the requirements of 10 CFR 50, Appendix B, Ka is er 's o wn QA program and the ASME Code, at the Zimmer nuclear site.
In June, 1982, I personally informed Jim McCloud, Kaiser's President, Don Iselin and Frank Kast, Kaiser V.P.'s, that nothing had been done to rectify the upgrading problems, that the Audit 67 f ind ing s were not being adequately addressed, that my trip report of April 22, 1982 had not been released to the site from Howard's office, that falsified Charpy data was used to qualify weld procedures and that radiographic reader sheets were altered from "rej ect" to " accept."
(Attachment 12, at 9).
- 45. Despite Ms. Nolder's enclosure, Mr. Iselin cynically testified in Congress just three months later that
[A7 his fZimmer/ reverification program is one of the most thorough, searching scrutinies of quality control records and recordkeeping prac-tices to which any nuclear plant has ever been subj ec t ed . We a t Kaiser are fully cooperating in such examination. We appreciate the need for construction work of the highest quality but equally important for public confidence that our nuclear power plan bu il t as safely as humanly possible.gy are In light of Ms. Nolder's affidavit, MVPP suggests that Mr. I s el in knew better.
-8/Quality Assurance at the Zimmer Nuclear Station: Oversight Hearing bef ore- the Subcommittee on Energy and the Environment of the Committee on Interior Affairs, 97th Cong. 2d Sess. 15 C' Sept ember 14 Udall hearings").
_=- - _ - .
l
- 46. MVPP's ongoing review of QA documentation before this Board reveals another instance where Mr. Iselin provided false or misleading testimony at the September 14, 1982 hearings. Mr. Iselin conceded " errors" with respect to Charpy test data on four out of twenty welding procedures surveyed in a Kaiser survey of Gladstone Laboratories, which qualified the procedures. But under congres-sional pressure he insisted, "We found everything in order except those Sharpy / sic 7 tests . . . /W7e know it all related to a period of t im e when the Sharpy test mach.ine was out. The rest of their tests were OK, and this was just one of the tests required on that one."E In fact, the January 19, 1982 Gladstone survey found " deviations" with respect to documentation and records on 19 out of 20 Gladstone-qualified welding pr o c ed ur e s surveyed, in clud in g five procedures that specified problems with test figures or reports.bS!
- 47. The new af fidavits rebut applicant's attempts to ration-alize MVPP's allegations of deliberate falsification. For example, the CG & E Response attempts to refute Mr. Reiter's charge that a nonexistent heat number -- BV-7 -- was stamped onto a 2 " flange by stating that flanges with that marking were purchased in 1978.
Mr. Reiter retorts that this excuse contradicts the reason given at the time to " accept as is" the NR written on the same item: the flanges had been fabricated already and supplied as part of Kellogg piping spools. Mr. Reiter adds, 9/ eptember
-S 14 Udall hearings, at 23, 25. '
- 0/
MVPP Petition to Suspend Construction of the Zimmer Station, '
Attachment 121 (August 20, 1982). i l
.)
, . . , -- - - - - -n. , . . . - - - -
n.
Prior to this falsification QA Inspector John Harrison had written on the flange in the location where the 'original heat number had been forged in.
He wrote, There are no heat numbers on this flange -
John Harrison.' At the time the flanges were accep-ted the Kaiser warehouse specifically and repet-itively assured us that there was no material on-site with the heat number BV-7, especially no 2h" flanges.
(Attachment 10, at 33-34). This allegation illustrates the value of public hearings to clear up this unresolved factual dispute on whether a c r iminal violation occurred. The relevant records could be sub-poenaed to determine which of the two conflicting " official" responses -- the NR disposition or applicant's new excuse -- was false, if not both.
- 48. The su p p r e s s io n of the Nolder Report on vendor QA is relevant for this contention.
Ms. Nolder's af f id av it reveals that after the first week of her investigation, Mr. Howard stated that " based on what I had found that he was going to report to Kaiser management, the need to make a ' 5 0. 5 5 ( e) ' report to the NRC . . ." (Attachment 12, at 3).
Reports of significant QA deficiencies must be reported under 10 CFR 50.55(e) as a condition of the construction permit.
49.
Zimmer QA officials also have passively concealed the scope of sig nif ic an t QA issues from the NRC staff. Mr. Jones' affidavit reveals that CG & E ordered Mr. Deerwester to provide a complete file of highly critical memoranda he had issued to change suspect QA practices.
Kaiser's Deputy QA manager informed Mr. Jones that the NRC would receive a copy "if they requested them." (Attachment 11, at 14). In other words, Zimmer management chose not to id entif y the issues raised by Mr. Deerwester unless the agency requested his personal file.
I 1
- 50. The extensive record in the CG & E Response of assertions contradicted by applicant's own QA rules, f actual denials rebutt ed i
by numer ous witnesses, and answers that evade the issues suggest that the Response was not submitted in good faith. The result is a l
massive " credibility gap" f or the applicant 's defense of Zimmer. As Mr. Reiter's af fidavit put in perspective:
Public confidence in the quality of construc-tion and design at Zimmer must be restored prior to licensing and operating the plant. In the case of Zimmer, public licensing hearings are (
r e quir ed to resolve the public's concerns be- j cause there is no longer any reason to believe in the good faith of CG & E and Kaiser.
(Attachment 10, at 57-58).
III. LEGAL ANALYSIS i
A. Jurisdiction.
The applicant and the staff, in opposing MVPP's motion, argue !
that the Licensing Board does not have jurisdiction to grant the i motion. However, the Commission's Rules, and NRC precedent, contra-d ic t this argument.
First of all, the Commission's Rules clearly state when the Licensing Board's jurisdiction will terminate:
The presiding of f ic er's jurisdic tion in each proceeding I will terminate upon the expiration of the period within which the Commission may direct that the record be certified to it for final decision, or when the Commission renders a final decision, . . . whichever is earliest.11/
This section establishes that a Licensing Board continues to have jurisdiction over a case until agency action has become final.
As the Appeal Board explained in the South Texas case:
11/ !
10 C.F.R. 52.717(a). Although section 2.717(a) is in terms of a
" presiding of fic er," the Rules clarify that[phraseda_/n atonic safety and licensing board shall have the duties and may exercise the powers of a presiding officer as granted . . . in this part."
10 C.F.S. 2.721(d).
E
Underlying Section 2.717(a) is a recognition of the obvious fact that there must be an end to litigation sometime. The section reflects the Commission's policy judgment that the terminal point is appropriately reached when a final decision has been rendered in the proceeding.12/ --
In the case at hand, the Licensing Board retains jurisdiction over the case, because finality has not attached to the case (nor indeed to any part of it). Finality has not attached because the Atomic Safety and Licensing Appeal Board reviewed the case onappealhb!
and the time f or Commission review of the case had not yet expired when the June 3 motion was filed.bbI Although only certain issues were specifically appealed to the Appeal Board, it acted sua sponte to review the entire record.bb! Therefore, finality has not yet attached to this case, nor to any issue therein.
Similarly, courts do not consider an initial decision by an adjudicatory board to be final action when, as here, the matter is still pending before the head of the agency.bb In short, until finality attaches a Licensing Board has the necessary jurisdictional power to reopen the record.
b!
Houston Light and Power (South Texas Nuclear Plant),ALAB-381, 5 NRC 582, 591 (197 7 ) (empha s is added),
bb!
Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Station Unit 1), ALAB-727, 17 NRC (May 2, 1983).
bb!By order dated June 13, 1983, the Commission extended until July case.
13, 1983 the time in which it could decide whether to review the bb! ALAB-727, supra, slip op, at 28 n.
- 23. S im il a rl y , the Commis-sion itself "will ordinarily consider the whole record on review ."
10 C.F.R. 2.770(a). . .
bbI E.g., Uniroyal, Inc. v. Marshall, 579 F.2d 1060 (7th Cir. 1978).
l I
1
Extending this analysis much further, in Point Beach the Licensing Board was asked to reopen the record on the same radio-logical issues for which it had already issued an Initial Decision.
The Initial Decision was not yet final. The applicant argued that the Licensing Board, having issued an Initial Decision on the radiological issues, was without jurisdiction to reopen the record.
The Licensing Board rej ec t ed that argument and was upheld on appeal.17/ -
The Appeal Board said that although the Licensing Board's decision was subj ec t to review by the Appeal Board and the Commission, that fact alone did not deprive the Licensing Board of the power to reopen the record on those issues, because " insofar as judicial review is concerned, fjhe decision _7 was not final to the extent that it related to full-power operation, which had not yet been authorized."1 I The same boundaries apply to the Atomic Safety and Lic ens ing Appeal Board.
For example, in WPPSS the Appeal Board declared that its j urisdic tion had ended, because the "t im e in which the Commission might have elected to review [this_7 decision" had expired.12!
Consistent with this reasoning, in Marble Hill the Appeal Board said:
f1_7ntervenor Save the Valley moves to reopen the safety hearings in this proceeding. We are without authority to grant that relief. More than six months have elapsed since our final decision affirming the issuance of construction permits . . . In the interim, the Commission elected not to r eview our decision. It consequently represents the 's final action and our authority over the cause is ended. agency 29 /'
~
17/
-- Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-86, 5 AEC 376 (1972).
b Id., at 387.(emphasis added).
19/
- . Washington Public Power Supply Station System, et. al (WPSS Nuclear Proj ec t Nos. 3 and 5) ALAB-501, 8NRC 381, 382 (1978).
S!P ublic Service Company of Indiana (Ma rble Hill Nuclear Gen-erating Station, Units 1 and 2), ALAB-530, 9 NRC 261, 262 (1979).
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This principle that the adjudicatory boards have jurisdiction until a case is final has even been extended to cases on appeal to th( .ederal courts:
We are constrained to dismiss the motion for lack of jurisdiction to grant the relief sought therein /Jf reopening the record to further consider an issue._7 The financial qualif ic at ion s issue was determined favorably to the applicants in the Licensing Board's 1976 initial decision
. . . On the appeal . . . we affirmed . . . Our decision was in turn affirmed first by the Commission and then by the Court of Appeals for the First Circuit. No petition for certiorari having been filed in the Supreme Court within the prescribed period for doing so, finality has now attached to the resolution of the question in this proceeding.
Ac c o r d in g ly , we have no authority to reopen it. 21/
Consistent with these principles, the Atomic Safety and Licensing Board in the case at hand was requested to reopen the record to admit certain new contentions af ter it had rendered an Initfal Decision on all outstanding issues. The Board noted that a hearing board has the inherent right and duty to determine its own jurisdiction in the first instance -- 22/,
and correctly concluded that it had the j ur isd ic t ion to consider the admissibility of the contentions in question.23/ -
The Board distinguished the Metropolitan Ed iso n case 24/ cited by applicants by noting that unlike the factual circumstances in Metropolitan Edison, the contentions then before it d id no t appear to relate to any matter pending an appeal, and hence there was no need to refer the matter to the Appeal Board. b bb!P ublic Service Company of New Hampshire, et al (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978) (emphasis added).
SS Citing Duke Power Co. (Perkins Nuclear Station, Units 1, 2 l and 3), ALAB-591, 11 NRC 741, 742 n. 3 (1980).
I 23/
! -- Z imm er , Memorandum and Order, slip op. at 2 (March 10, 1983).
24/ Metroplitan Edison Station, Unit 1), ALAB-699, 16 NRC Co., et al. (Three Mile Island Nuclear i (October 27, 1982).
25
--/Zimmer, Memorandum and Order o suaran slig oa, at 2. l 1
Even if the law required that issues presented to the Board be unrelated to issues of appeal, MVPP's motion would meet that standard.
The issues in question are not related to any issues being appealed, and hence this Licensing Board has the jurisdiction to reopen the record for admission of these contentions.
Applicant's brief attempts to muddle the clear language of 10 CFR 2.717(a) through irrelevant analysis taken out of context, and through inapposite cases. To illustrate, applicant quotes Board's statement last year that its Initial Decision "normally would have concluded this Board 's consid era tion of the license application."Sb While true, this is irrelevant to t e question of jurisdiction, which the Board retains pending a final decision.
Applicant then claims that the "j u r isd ic t io n of the Lic en s ing Board . . .
is limited to issues in controversy among the parties," 27/ --
citing the Commission's Rules.S$ However, the section cited deals not with jurisdic tion, but with writing an initial opinion. Even in that context, the regulation specifically states that matters "not put into controversy by the parties" can be examined and decided if they involve " serious safety, environmental, or common defense and security" issues.SS! It is hard to imagine how the applicants could 3
have further distorted the applicability of this provision.
i Applicant also cites a series of inapposite cases to conclude l
$b!
Z imm e r , LBP-82-54, 16 NRC 210, 213 (1982).
27/
-- Applicants' Answer to MVPP's Motion To Reopen the Record for Admission of Eight Contentions on Quality Assurance.
SS 1
_I_d .
I l
erroneously that once a Board has decided all the inital issues before it, it cannot reopen the record on those or any other issues without a remand from a reviewing panel. Thus, the applicant cites the Seabrook case SSI for that p-r o p o s i t ion . In fact, however, the Appeal Board in that case refused to reopen the record on an issue that had previously been decided and which was final because it had been affirmed by the Commission.$1!
t S im ila rly , the applicant and staff cite St. Lucie.32/ -
This case is also inapposite, because prior to the motion to reopen the record the Commission had decided not to review the case, thereby making it final, except for specific limited issues before the Appeal Board.
The Appeal Board specifically predicated its refusal to reopen the record on the fact that "the appellate process was
. . . completed"$1! except for the limited issues still before the Appeal Board. l The applicant and staff also rely on North Anna3 4/ -
to support their erroneous conclusion that jurisdiction of the Licensing Board is lim it ed to the specific issues the Appeal Board has remanded to it.
But although that case does hold that the Board (the Appeal Board in that case) could not rule on issues it had already decided, and which had not been remanded to it, that decision, like the others, 30/
Units -- 1 Public and 2),Service Company ALAB-513, 8 NRCof694 New Hampshire (Seabrook Station, (1978).
$b!_I_d .
Unit No. Florida 2), ALAB-579, Power and Light223 11 NRC Company (1980). (St. Lucie Nuclear Power Plant, SSI Id., at 225.
$b Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704 (1979).
e was nxpressly prod ien ted on tho fcet that finnlity hed cttcchod to tho icoueo in question. As the Appeal Board stated:
By virtue of ALAB-491 (and the lack of any further review of it by- Commission or court) the finality curtain has dropped on most of the issues which were raised in the proceeding.22/
Thus, this case, like the others, is consistent with the principles of finality as summarized by MVPP in this brief. The inconsistent dicta from North Anna quoted by applicants is just that, dicta, to which no precedential weight should be attached.
Applicant, and staff, place great emphasis on Metropolitan Edison.bb! That case interpreted three sections of the Commission's Rules $1! and inferred that a licensing board can reopen a proceeding "no later than either the filing of exceptions or the expiration of the period during which the Commission or an appeal board can exercise its right to review the record."$$!
As noted above, this Licensing Board has previously pointed out the distinguishing factor:
the party in TMI sought to reopen the record to litigate a matter already pending before an appeal board.39/ -
In addition to that, however, the three sections of the Commis sion's Rules on which the Appeal Board based its conclusion do not in fact support that conclusion.
The crucial section is 10 CFR 2.760(a), which provides:
After hearing, the presiding officer will render an initial decision which will constitute the final action of the Comm i s s io n forty-five (4 3) days after its date when it authorizes the issuance or amendment of a license or 35/ Id.,
at 708 (emphasis added).
$b!Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit. No. 1), ALAB-699, 16 NRC (1982).
37/
-- 10 CFR 2.717(a), 2 . 718 (j ) and 2.760(a).
'8/
TMI, supra, slip op, at 4-5.
39/
-- This factor also distinguishes another case cited by applicant Units 1, and staff, Duke Power Co. (Perkins Nuclear Station, 2 and 3), ALAB-597, 11 NRC 870 (1980).
y -r--
limited work authorization for a facility, or thirty (30) days after its date in any other case, unless !
exceptions are taken in accordance with section 2.762 or
_the it for Commission directs that the record be certified to final decision.hM/
This section follows the accepted rule as to finality, as explained above.
That is, it specifies that the initial decision will not become final if either of two events occur which prevent it from achieving that status: the filing of exceptions or the exercise of review by the Commission. By contrast, however, TMI reverses the normal cycle to create finality by filing exceptions and cut off Licensing Board jurisdiction instead of postponing final agency action as specified in the Rules. This interpretation appears to be contrary to the clear meaning of 10 CFR 2.717(a),
and the accepted judicial understanding of finality.bb!
Another argument which could affect j uridd ic tion of the Board to reopen the record is the applicant and staff's assertion that MVPP's motion to reopen should be treated as an untimely motion for reconsideratiog and theref ore dismissed . This assertion is, however, without merit.
MVPP's motion is not a motion to reconsider, because'it is based upon new facts, not, as with a motion to reconsider, upon 41/
If, however, that decision were correct, the proper action for the Licensing Board would be to refer the matter to the Appeal Board for decision, since j urisdiction clearly exist s somewhere to reopen a non-final case to take evidence on a highly significant unresolved issue of public health and safety. There-fore, if the Licensing Board should decide it does not have juris-diction to reopen the record, MVPP respectfully requests that it refer the matter to the Appeal Board. Alternatively, MVPP requests that this Board certify the proposed contentions to the l Appeal Board . pursuant. to 10 CFR 2.730(f) to avoid "a collision course" with Commission and Appeal Board policy. Cf. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC (August 19, 1982); Public Service Electric and Gas Company (Salem i
Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 537
- n. 10 (1980); Northern States Power Co. (Prairie Island Nuclear Generating Plant), ALAB-252, 8 AEC 1175, 1180 (1975).
l i
legal or factual errors in the decision which is sought to be reconsidered. This distinction can be seen in the two cases that the staff and applicant cite to support their claim that the MVPP motion is actually a petition f or consideration.
The first of these is Allens Creek.42/ --
In that case, intervenor moved for the admission of a contention, which previously had been judged inadmissible. Because support for the subsequent motion was based on the same facts as before (the "Quadrex Report"), the Licensing Board properly considered the motion as a petition for reconsideration. By contrast, in the instant case, there are a great number of additional material facts which have become available to MVPP since the prior motion, and which independently support a motion to reopen the record. This is thus a far different case than Allens Creek.
S im il a r ly , staff and applicant cite Bailly.43/
This case is inapposite because the previous denial of the motion was due to filing in the wrong forum.
The Board held the contentions to be legally beyond the scope of the construction permit extension proceeding.
The second motion was equally flawed from a legal p e r sp e c t iv e because the proposed contentions were still legally irrelevant to the proceeding in which they were offered.
Thus, both of the cases cited by staff and applicant are irrelevant to the matter at hand, where there are significant b2[ Houston Lighting and Power Co.1(Allens Creek Nuclear Gen-erating Station, (July 15, 1982).
Unit 1), Dkt. 50-466-CP, " Memorandum and Order" (Although the staff brief offers no citation for the Allens Creek case, MVPP assumes that they are referring to th6 same case cited by the applicants.)
43/
l Station,--Nuclear Northern1), Indiana L B P -51Public
- 6, 13Service Co. (Bailly Generating NRG Z33 (1981).
\
l - - . .
material facts that have arisen since the Licensing Board's Initial Decision, which justify the reopening of the record.
The ctaff is wrong in its assertion that matters " alleged to have occurred or to have been discovered after the Licensing Board's Order of July 15, 1982 are not relevant to the matters now before this Licensing Board."bb! This is akin to the assertion r ej ec t ed in Diablo Canyon bb! where the applicant had argued that a motion to reopen must show that "the newly discovered evidence
. must have been in existence at the time of trial." The Appeal Board noted that the " settled law on reopening administra-tive records" is contrary to that position.46/ --
The proper analysis to use in the instant case is the same analysis which allows a Licensing Board to reopen a record, even on an issue that it has already decided, up unt il the time when the case becomes final. Thus, in Point Beach4 7/ - , the Appeal Board ruled that it was proper (and indeed mandatory, under :he circum-stances) for the Licensing Board to reopen the record on issues as to which it had already issued an Initial Decision, because of the fact that finality had not yet attached to the case.
In general, the discovery of new material facts can justify reopening the record at any time prior to the time at which finality attaches to the case. It is irrelevant whether the case has been reopened several times before, or whether the Board has previously refused to reopen the record because the facts of which it was bb! NRC Staff Brief In Opposition to Miami Valley Power Projec*
Petition to Admit Eight Contentions on Quality Assurance, pp. 8-9 (June 20, 1983). l l
45/
-- P acific Cas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 n. 6 (1980).
bb!Id. Accord. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Station), ALAB-126, 6 AEC 358, 364-65 (1973).
47/
Wisconsin Electric Power Company, supra.
aware at the time of the prior motion to reopen did not justify reopening. In either event, the discovery of significant new i
facts can justify reopening the record to receive them. This is i particularly true when the evidence came into existence after the hearing closed.48/ -
Nor does a Commission initiative to require third-party review of certain safety-related aspects of plant construction deprive the Licensing Board of jurisdiction to reopen the hearings on those same issues. A hearing is very different from a staff-supervised investigation of important safety issues. For one thing, the taking of evidence is public. For another, intervenors have the right to participate, and the right to cross-examine wit-nesses. For yet another, the ultimat e d ecision mu st be based upon a public record, and is subject to appeal. To assert that a staff investigation will adequately represent the interests of the intervenors is simply not true.
In like fashion, the Commis sio n held that the suspension of the low-power license for Diablo Canyon and the establishment of an
" Independent Design Verification Program" ("IDVP") for that plant "d id not . . .
deprive the adjudicatory boards of jurisdiction" to consider motions to reopen the record on the same quality assurance issues which the IDVP is addressing.49/ -
The current situation is exactly parallel, with the exception that it is the construction permit which has been suspended in the Zimmer case. In each case, the Commission ordered an independent 48/
-- Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 at n. 6 (1980).
49/
-- Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, " Memorandum and Order", slip op.
at 4 (December 23, 1982) (emphasis in original).
u-l l
review of quality assurance, under staff supervision. In neither case does this review act as a substitute for a hearing, for the reasons cited above. Thus, in this case as in Diablo Canyon, the adjudicatory boards still have jurisdiction.
As can be seen, staff and applicants have produced a great deal of smoke, bu t very little fire, in an attempt to improperly strip this Board of its authority to reopen the record if, as here, the facts merit it.
But as this Board recognized in an earlier motion to reopen the record, it has the jurisdiction to resolve these issues.5S!
As noted above, the Board has jurisdiction to reopen the record until the case has become final. The Commission not yet having acted to review this case when the motion was filed on June 3, or to decline to review it, finality has not yet attached, and the Board there-fore has the jurisdic tion to consider this motion on its merits.
B. Governing Standard.
Although applicant and the NRC staff quibble endlessly over the criteria to reopen hearings, the governing standard is cicar and not in dispute.
Neither opposing party denied that hearings are required by the Atomic Energy Act for general disputes about material facts, unresolved significant safety issues, or a change in facts material to resolve the dispute.bb! In this regard, the standard is analogous to the degree of genuine disputes of fact 50/
-- See text accompanying notes 22 and 23, supra.
51/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
DD-81-1, 13 NRC 45, 46 (1981); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-79-10, 10 NRC 675, 676 (1979).
l l
l _ _ ~-
necessary to survive a motion for~ summary judgment.52/ --
Similar to the Federal Rules of Civil Procedures, the Commission's regula-tions in 10 CFR 2.749(c) prov id e --
Should it appear from the af fidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to ju=tify his opposition, the presid ing officer may refuse the application f or summary decision or may order a continuance to permit affidavits to be obtained or make such other order as is appropriate and a determination to that effect shall be made a matter of record.
This regulation has been applied specifically as an option for intervenors seeking to reopen licensing hearings.53/ -
The same principle applies to justif y sua sponte action by a Board.
Indeed, the Board is re qu ir ed to take such action when it becomes aware of a significant, unresolved safety issue.5b!
Applicant's and staff's silence on the legal standards is matched by their failure to dispute the fact that nearly all of MVPP's charges underlying the proposed contentions either are in bitter dispute, or unresolved due to applicant's refusal to directly address the allegations despite an order pursuant to 10 CFR 50.54 (f) to anwer the charges.
This is in distinct contrast to the motion presented May 18, 1982 before the NRC staff ordered CG & E to make some form of response to the sp ec if ic issues raised by MVPP. If nothing else, applicant and MVPP have directly opposite positions on the adequacy of design; the acceptability of the welding program; the effectiveness of applicant's corrective action programs; the
- p2/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear
-Power Station), ALAB-138, 6 AEC 520, 523 (1973). Cf: Byron, Memo-randum and Order, slip op. at 506 (May 12, 1983) b2!
Vermont Yankee, supra; Tennessee Valley Authority (Harts-ville 352 (1978). Plant, Units lA, 2A, 1B and 2A), ALAB-463, 7 NRC 341, Nuclear 54/
-- Vermont Yankee, _ supra.
existence of retaliation against QA/AC personnel and/or whistle-blowers; the success or failure of the QCP; and applicant's corporeal character and competence to ope. ate Zimmer.
Applicant and the staff's double default on the facts and controlling law is decisive f or MVPP's mot ion. But if this Board somehow feels that the factual disputes do not yet reach the required level, MVPP moves pursuant to 10 CFR 2.749(c) for discovery before hearings are denied.
Discovery through depositions of key CG & E/ Kaiser decision-makers, interrogatories and subpoenas for relevant records would neutralize the two significant factors which have obstructed a more full debate on the multitude of issues in MVPP's proposed conten-tions -- (1) applicants persistent refusal to answer any MVPP charges except by dismis sing them as "nothing new" or going through the motions with irrelevant answers; and (2) applicant's excuse that MVPP's allegations are too vague or general to answer.
With respect to the former, MVPP has been frustrated by applicant's consistent refusal to speak with active Zimmer critic s.
The latter excuse is particularly lame and inherently could be cured through discovery to sharpen generalized allegations. In many instances it is unreasonable to require that witnesses recall the specifics without an opportunity to review relevant records. As Mr. Reiter explains, These statements' lack of specific detail does not affect their validity, it only reflects on the fact these statements were given by conscientious workers who were trying to do their jobs at Zimmer. Bu ild ing files of evidence backing allegations one might someday make is certainly not in anyone's j ob description.
1 j
l
-3 4 -
(Attachment 10, at 2-3). The conceptual validity of the whistle-blowers' charges has been proven repeatedly. If this Board feels their statements and the evidence already on the record are too vague or incomplete, discovery could test the depth and credibility of the MVPP allegations.bb C. Standards for Admission of New Contentions.
The conceptual absurdity of applicant's jurisdictional argu-ment is clear. By denying the possibility of jurisdiction beyond the imm ed ia t e aftermath of an initial decision -- applicant infers that there is no legal basis for 10 CFR 2.712(a0, the criteria to admit late contentions. O bv io u sl y , the law permits late contentions under the proper circumstances.
As will be seen from a careful review of the cases cited by the staff and applicant, the circum-stances exist in this case.
Before examining the five criteria for section 2.712(a),
however, it is necessary to neutralize the staff's attempt to distort the framework of MVPP's notion. Despite the staff's refusal to accept the obvious, this litigation indeed involves a notion to reopen the record.
Staff counsel refers to the Commission's February 18, 1983 Order permitting MVPP to " seek reconsideration or further relief from the Licensing Board . . ." and then permits an argument premised on the nonexistence of the second option.bb!
Essentially the staff has rasponded to MVPP's motion to reopen the record by pretending it does not exist.
l 55/ l 1983). -- Cf: Byron, Memorandum and Order, slip op. at 18 (June 21, l bb! NRC staff brief, at 9.
1
i Second, the staff asserts that MVPP is merely rearguing the same issues and evidence that were before this Board last July 15.
It is difficult to take this argument seriously. NRC staff counsel fails to perceive that hundreds of new allegations and exhibits and over 3,000 pages of documentary evidence have been filed with the Board since last July 15. The new evidence and allegations were sufficiently genuine and significant that on September 24, 1982 the NRC ordered applicant to respond in writing pursuant to 10 CFR 50.54(f). It took applicant over 7,000 professional staff-hours to respond to the new information that staff counsel apparently did not notice, b1!
MVPP concedes that the new contentions are similar to the old in that they have identical titles. But the staff has missed the point.
The titles of the contentions are merely a means to organize the issues in an across-the-board QA breakdown. MVPP organized the inf ormation by dividing it into eight contentions.
The information could have been organized as one contention --
CFR Part 50, Appendix B -- or as 18 contentions, according to the specific criteria in Appendix B. In short, the general su bj ec t titles of the contentions are merely of cosmetic significance.
MVPP also concedes that the new contentions included the examples that could be identified amd alleged last year. That is unavoidable, because the problems have not been solved. The distinction is that the new evidence gathered since last May 18, and the new instances of illegality during the last year, 55!L etter to Richard De Young, Director, NRC Office of Inspection and Enforcement, from E.A. Borgmann, CG &E (February 28, 1983) ("CG & E Response").
qualitatively change the scope and nature of the QA abuses MVPP is challenging, as well as the fundamental conclusions: instead of being quality indeterminate, Zimmer is quality condemnable. (Supra, at 3). MVPP was not even familiar last year vith many of the specific concerns now covered by the contentions. Many of the abuses MVPP seeks to challenge had not yet occurred.
a To analogize, a newborn baby is not " identical" to the same person as an adult, even though the genes and last names are the same. In short, this year's 8 contentions sprang from the same
" family" as those proposed last year. But they are different generations, not twins. The staff's inability to recognize this distinction leaves its analysis largely irrelevant.5$/
- 1. Good cause. Applicant and the staf f f ailed to take into account several key factors that define this criteria. First, while the criterion is important, it is not decisive if the issues in the proposed contention are sufficiently significant. As the Licensing Board explained on May 12, 1983 in the Byron case, "A motion to reopen should, of course, be t im ely , but even an untimely motion would prevail if the matter is of sufficient gravity."50 The staff and applicant have been wrong to accuse MVPP of tardiness at any point in the effort to litigate the QA conten-5$
Even if the two sets of contentions were identical, the staff's analysis is too incomplete to support its conclusion. The staff failed to take into account the significance of new evidence not previously available. (Supra at 29-30.)
5E!Byron, supra (May 12, 1983), slip op. at 3 (citations added). See also Vermont Yankee Nuclear-Power Corp. (Vermont Yankee Station), ALAB-138, 6 AEC 520, 523 (1973); Public Service Company of Oklahoma (Black Fox, Units 1 and 2), ALAB-573, 10 NRC 775, 804 (1979).
s- - -
tions. MVPP first received reports in March 1982 that the NRC staff had failed to inform the public of the most significant QA problems at Z imm e r , or of their cause -- CG & E. MVPP obtained af f id avit s in March and April 1982, but statements alone are an insufficient basis to reopen hearings.60/ -
MVPP received the first documents from the site in May 1982 and promptly filed contentions on May 18, 1982. In response to this initiative, MVPP then received the bulk of its eventual evidence. The topics were complex and new for a citizen intervenor, but MVPP organized, assimilated and presented the data to the Commission in August 1982.
Since that t im e , MVPP has presented its investigative findings steadily to the NRC Office of Investigations and in support of its attempt to reopen public hearings, the latter submissions always over applicant's shrill obj ect ions . In short, last year MVPP exposed through five months of hard work the QA debacle that applicant and the staff had created and systematically covered up for over a decade and that the staff was only beginning to disclose publicly in seveiely-censored reports. Surely that performance was not so tardy as to sacrifice its rights. To put the effort in perspective, MVPP and its two-person legal staff provided the public with a more accurate, comprehensive disclosure on Zimmer in five months than Region III had offered in 11 months during its investigation.
With respect to the current motion, the staff asserts that i
I 60/
ALAB-687, Duke Power 16 NRC Company (Catawba Nuclear Station, Units 1 and 2),
(August 19, 1982).
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participation in the Commission's third-party program without pre-judging it as a failure is irrelevant to establish good cause for delay in presenting contentions.bb! The staff's inability to find authority f or this claim is understandable, in light of the public policy implications of its position. NRC adjudicatory boards would be overwhelmed with cases if the law required intervenors to be
" litigation-happy," at the risk of losing their rights. It is unreasonable and self-defeating to demand that intervenors attack Commission initiatives before g iving them a chance to work.
Most significant, the staff ignored the second half of the prof erred justification f or good cause: MVPP did not learn until May 26 that the third party, Torrey Pines, would only investigate four of the many issues in MVPP's eight contentions; and that it would propose solutions without first identifying the causes in an effort to avoid "fingerpointing." After the May 26 public meeting when this limited effort was announced, MVPP lost faith in the third party program and worked nonstop to prepare the June 3 mot ion.
The staff and applicant's failure to defend the third party program in effcet concedes good cause for seeking a forum before this Board when the inadequate Torrey Pines methodology was finally revealed to the public.
Similarly, neither the staff nor applicant deny that it was reasonable to spend three months reviewing the CG & E Response to the Demand for Information. The staf f merely replies that the
$1! Staff brief at 7
CG & E Response is irrelevant to the record last July 15.62/ That -
misses the point for a new motion presented on June 3, and therefore in effect concedes another basis to establish good cause.
Further, both parties forgot to rebut the essential -
significance of the CG & E Response: For the first time, CG & E actually denied on the record MVPP's charges and therefore mandated hearings. This development distinguishes the 1983 motion from last year's, and provided good cause for MVPP to file again.
The staff finally asserts that there was no legal right to wait for issuance of the NET Report in order to file again.63/ -
Rather, MVPP claimed that it was only fair to wait for the results of the staff's program before attacking its inadequacy as further ju stif ication f or hearing s. MVPP does not claim a right to wait.
But certainly an intervenor's rights should not be sacrificed as punishment for being f air and avoiding a knee-j erk reaction of condemning the NRC before the facts have a rriv ed .
Further, both parties again ignore the substantive basis the NET Report provided for " good cause" on contention eight -- character and competence -- if nothing else. The NET Report contrad ic t ed applicant's evasions and unqualified denials of MVPP allegations.
But the staff still refused to retreat from its policy for applicant to control the QA program despite the totally opposite conclusions of the two parties on such basic issues as the design.
p2/
_I_d .
$5!_I_d .
g .
t Applicant 's brief severely distorts the law on this issue.
To illustrate, applicant c it ed the Catawba case to rej ect the motion due to failure by MVPP to adequately scrutinize the public record sufficiently to propose contentions.bb! Applicant failed to complete the Appeal Board 's reasoning, however:
2 A_7 petitioner can scarcely be expected to forecast the content of documents that it has not examined and cannot examine because they have not yet surfaced . . .
Where, ho wev e r , the nonexistence or public unavailability of relevant documents made it impossible for sufficiently sp ec if ic contention to have been asserted at an earlier date, that factor must be deemed controlling; it is not amenable to its being ov e rr id d en by other factors such as that related to broadening of the issues. As scarcely r e qu ir e s further extended discussion, this would countenance pla c ing the petitioner in a classic " catch-22" situation
-- which, once again, the statute forbids and our regula-tions cannot be thought to have authorized. DE/
That is precisely the reason MVPP could not have raised its conten-tion earlier, despite having some affidavits.
Applicant introduces without authority the proposition that generating more recent documents does not pr ov id e " good cause" for late filing. bbl This assertion flatly contradicts the case law.
(Supra, at 29-30.)
Applicant scolds MVPP for waiting to file until the staff's bad f aith manif ested itself: "f A_'7 party may not sit on the side-lines in the hopes that the NRC Staff will adequately protect an interest which would otherwise justify an intervention."b1 That summary of the cases cited for support is highly inaccurate. For bbI Applicant's brief at 25.
bb/Catawba, ALAB-687, supra, at 13, 17-18.
$$/ Id., at 27.
$1I Applic ant 's brief , at 30.
i example, the Perkins case did not mention misplaced trust in the NRC staff.
The motion was denied because the applicant for inter-vention failed to acquire status as a party; d id not argue the factors in 10 CFR 2.714(a) to accept late petitions; and attempted to raise issues already covered by contentions in the proceeding.68/ -
The Indian Point case cited by applicant also was irrelevant to support its conclusion.
The decision did not attempt to evaluate the NRC staff's performance. The point was that the intervenor could not rely on a different licensing proceeding and then file an untimely contention due to dissatisf action with the results.69/ -
Applicant's citation to the Skagit case directly rebuts the applicant's position.
In that case an Indian tribe attempted to intervene three and one-half years late. The Appeal Board described the relevant standard to excuse the tardiness:
What the tribes must additionally establish is that, whether because of inadequate investigation on the part of the Federal agency or for some other reason, they were furnished erroneous information on matters of basic fact and that it was reliance upon that information which prompted their own inaction prior to June 1978.
- We find that, to this point at least, no such showing
_has been attempted.. More specifically, the tribes have not endeavored to ;%pJain the respect (s) in which the NRC staff, InteCio4, er other Federal agencies misrepre-sented any fait (t nn known or ascertainable) which had a possible Se.s ir- apon the Skagit facility and the likely effects of 'sa cut truction and operation upon tribal interests.
sor have we been pointed to any known or ascertainable material fact not disclosed by the agency which, had it been disclosed, might have induced the tribec to seek intervention at an earlier time.19/
68/
-- Applicant's brief, at 30.
69/
-- Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352-53 (1980).
70/
Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2),
moot, CLI-80-34, 12 NRC 407 (19801.10 NRC 1, 9 (1979) vacated as AL AB -5 5 2
The Appeal Board's analysis offers a precise formula for both the NRC staff's performance at Zimmer and the effect on MVPP.
l Applicant says that explanations such as MVPP's desire to avoid f rivolous allegations until it had evidence; its failure to submit evidence until counsel met the witnesses who p rovid ed it; its desire not to obstruct NRC staff investigations; and its failure to routinely investigate the NRC are "so patently incredible as to be disingenuous" and unable to " withstand serious scrutiny."71/ -
MVPP believes the same characterization would apply to a legal system that required citizens to be clairvoyant, to engage in litigation based on hunches and mere suspicion, or to routinely investigate
'the government, all in order to avoid waiving their rights. MVPP questions the good faith of applicant's arguments on " good cause."
2.
Other means available to protect petitioners' interest.
The non-responses offered by the staff and applicant to MVPP's detailed analysis of this criterion are tantamount to a concession.
Neither party answers the specific structural deficiencies of the Z immer Ac t ion Plan, including the third party management review.
Since the Zimmer Action Plan is the corrective action program for MVPP's August 20, 1982 Section 2206 petition, they both essentially have conceded that these vehicles are ineffective in protecting MVPP's interests.
Both parties assume that the public will be adequately protected because the NRC has said that would be the case.72/ -
In light of the staff's track record of f ailing to publicly reveal the 71/
-- Applicant /s brief at 30-31.
1! Staff's brief at 11-13; Applicant's brief at 32-34
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quality assurance violations at the most poorly-constructed nuclear plant in the country for the first 97% of construction, those reassurances ring hollow. Neither party addressed the 12 instances of specific misconduct and poor judgment detailed by MVPP in the June 3 motion; the hundreds of pages of documentation obtained under the Freedom of Information act and presented last August 20 and October 11 to demonstrate severe censorship of NRC inve s t iga t iv e reports, obstruction of criminal investigations, and Region III management policies that perpetuated the QA breakdown; or the condemnations of NRC staff performance from NRC Commissioners, the Chairman of the House Committee on Interior Affairs, a federal judge, or the staff's failure to identify ten cases of serious hadrware defects due to its aloofness. In fact, the applicant claimed these failures are irrelevant.73/ At least CG & E has chutzpah, although it lacks a nuclear power plant that meets minimum legal QA requirements.
Both parties suggest that licensing hearings could not accomplish more than the staff has already.1b! MhPhas too much f aith in this Board to accept that depressing conclusion. Hearings could significantly improve the chances that the findings of conscientious NRC investigators are not suppressed from the public;
" inaccessible" items are covered by a comprehensive quality verifica-tion program; the full scope of unqualified welders and welding 73/
.-- Applicant's brief, at 34 Eb!A pplicant's brief, at 33; Staff's brief, at 12-13.
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procedures are retested under conditions that foster confidence in the integrity of the program; CG & E is removed from control of the QA program or even management of the Zimmer station; and most significant, an operating license is denied until Zimmer is in compliance with the law.
Applicant quotes the Licensing Board in Summer as saying that it --
could do no more than order that /jlleged deficiencies /
be corrected and that the corrections be monitored by Staff --a procedure that is already in effect without Board intervention.ll/
Unfortunately, by selective qu o t a t io n the applicant obscured the key point of the Summer case, which further distinguishes it from the instant case and is clearly stated three sentences before the passage applicant chose to quote. That crucial sentence states --
Intervenor has not alleged, nor do we see any support for such an allegation, that there is any danger that the alleged deficiencies will go uncorrected.LE/
In significant contrast to the Summer case, MVPP has alleged, and has the documents to prove, that there is a very great danger that the deficiencies at Zimmer will not be r emed ied by the actions of the applicant and the staff.
Thus it is fatuous to suggest that MVPP should be content with the very staff program which it can d emon s t ra t e is failing to protect the public health and safety.
This is sim ila r to the Skagit case 79/ which applicants misrepresent as standing for the proposition that "a party may not sit on the sidelines in the hope or expectation that the NRC staff
.11! South Carolina Gas and Electric Co. (Summer. Nuclear '
- Station, at Unit28, 4 (April 1), Dkt. 50-395-OL, " Memorandum and Order", slip op.
1982).
78/ Id.,
at 3-4 (emphasis added).
79/
Puget Sound Light and Power Co. (Skagit Nuclear Power Plant Proj ect, Units 1 and 2), ALAB-552, 10 NRC 1 (1979).
l will adequately protect an interest which would otherwise justify l intervention." 80/ --
In fact, the Skagit case was predicated on the fact that the movants had not alleged that they were furnished " erroneous information on matters of basic fact." 81/ The Board stressed that the movant had not " endeavored to explain the respect (s) in which the NRC staff . . . misrepresented any fact . . .
which had a possible bearing upon the . .
. facility and the likely effects of it s construction and operation upon /Kovant's7 interests." !
In direct contrast to this, the Motion of MVPP demonstrates that the NRC staff has acted in a fashion contrary to the interests of MVPP and of the public at large. Therefore it is appropriate for the Board to exercise its jurisdiction to protect the public by holding hearings on the quality assurance program at Zimmer, and on the staff review of that program.
Indeed, it is especially important for the Board to exercise its authority in this matter to affirm the staff's duty to alert the Board to matters that affect the resolution of matters before the Board.
As established by _ Browns Ferry, all parties have a duty to directly inform the Board regarding (1) new information that is relevant and material, (2) modifications and rescissions of evidence, and (3) errors. 83/
80/
admissionApplicants' Answer to MVPP's Motion to Reopen the Record for of Light Contentions on Quality Assurance, p. 20 (June 20, 1983).
81/
-- S ka g it , supra, at 9.
82/ Id.
83/
-- Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1-3), ALAB-677, 15 NRC 1387 (1982).
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-4 6-Finally, both the staff and applicant ignore the value of cross-examination, as well as the ability to subpoena witnesses and records. This is particularly significant with respect to an applicant whose history during construction routinely has been either to ignore the public, or to provide it with false information, and whose response to nearly every issue raised during the last three years has been to dismiss it as "nothing new." The sad truth is that applicant may be right. The scorn for quality assurance has become a tradition over the last decade.
- 3. Ability to assist the board in developing a sound record.
Applicant's response to this factor is to dismiss MVPP's contribution, because the intervenor has built its case "almost entirely upon information generated by Applicants, its constructor, the NRC Staff and other regulatory agencies." -- 84/
That statement is not accurate. MVPP also has presented i
28 affidavits from Zimmer whistleblowers to this Board over the last year. But even if accurate, the statement missed a key distinction: MVPP disclosed the evidence to this Board and the public. Applicant, and in some instances the staff, have
, withheld it.
Both applicants and staff have a legal duty to make full i
disclosure to this Board of all significant developments.85/ --
1 Significantly, this duty of disclosure applies to both clients and lawyers. 86/
As the Commission explained in 1976, around the birth 84/
-- Applicant's brief at 36.
I 5/ Tennessee Valley Authority (Browns Ferry Nuclear Plant,
- Units 1, 2 and 3), ALAB-677, 15 NRC 1387 (1982).
86/ Consumers Power Company (Midland N2 clear Plant Units 1 and 2), LBP-81-63, 14 NRC 1768 (1981).
of the proceeding for Zimmer's operating license:
We think rather that ' material false statement' may appropriately be read to insure that the Commission has access to true and full information so that it can perform its j ob. Nor is ' material false statement' such an unlikely choice of language for reaching acts of omission as well as commission The point of a statement is to express something.
Silence can be remarkably expressive, a fact recognized in literature, in the law of evidence, and in ordinary usage" (Id., at 489; emphasis in original; footnote omitted)I~l?/
It is the height of arrogance for applicant to denigrate MVPP for disclosing the QA problems which applicant has covered up.
Such a position insults the premises of legal accountability.
4.
Potential to broaden or delay the hearings. Although applicant points out that the MVPP's proposed contentions would broaden the proceedings, that obvious fact should not weigh against admission of new contentions. The issues are narrow now because applicant suppressed their disclosure f or so long. 88/ --
The same analysis applies to the delays that applicant protests so hystericallySfapplicant only has itself to blame.
If this litigation did take years, however, that would only be because of this Board felt the issues had to be pursued because of their potential safety significance. Under those circumstances, 87/
-- Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480 (1976).
88/
-- Cf:
Catawba, ALAB-687, supra, slip op, at 17, where the Appeal Board stated, "Where, however, the nonexistence or public unavailability of relevant documents made it impossible for a sufficiently sp e c if ic contention to have been asserted at an earlier date, that factor must be deemed controlling; it is not amenable to to being overriden broadening by other factors such as that relating to the of the issues." )
l 89/
l Applicant's brief, at 39.
W _ ___
delay would be a factor arguing in favor of admitting the conten-tions. Surely no party seeks a rush to an accident.
Ten years ago, in Vermont Yankee the Appeal Board faced an almost identical protest from the utility. The Appeal Board's message was clear:
The applicant has suggested that the effect of granting the motion to reopen would be to permit intervenors to seize upon, as a justification for reopening a hearing, every letter which the staff, in the exercise of its continuing regulatory'responsi-bility, sends to an applicant. Thus, according to the applicant, an intervenor would be able to prevent indefinitely the termination of the proceeding and the rendition of an initial decision authorizing the issuance of an operating license.
We cannot accept the applicant's unstated premise that the desirability of completing the hearing process out-weighs matters.
the need to resolve potentially serious safety In
,s'h ort, delay in the issuance of an operating license attributable to an intervenor's ability to present to a ;
licensing board legitimate contentions based on serious problems uncovered by the staff would establish not that the licensing system is being frustrated, but that it is working properly. Any delay in such a situation would be fairly attributable not to the intervenors but to the non-readiness of the facility for operation. Delay in the issuance of the license is ent ir el g indeed, in that circumstance. 9'ppropriate mandated --
D. Standards to Reopen the Record. i 1.
Timeliness. Although much of the above analysis applies here, it is significant to note t han timeline ss is even less decisive than with the good cause criterion to admit new contentions.
90/
-- Vermont Yankee, ALAB-124, supra at 365.
Tardiness is not controlling even if it is inexcusable. In TMI 2, the Appeal Board explained, We thus have ample cause to deny the motion to reopen on the ground that it was untimely filed without adequate justification . . .
Because, however, the motion to reopen is addressed to an important safety question, we have decided to pursue a coursewould normally othercommend than the to oneus.which its untimeliness If, in fact, there is warrant for exploring further the emergency planning issue along the lines which the motion suggests, the public interest dictates that we not brush that consideration aside merely because the intervenors were inexcusably tardy in putting the matter before us.91/
- 2. Significant safety or environmental issues. The trend in case law has been to define this standard as one where "the outcome of the proceeding might be affected . . ." (emphasis supplied) ES!
Applicant states that the Commission approved a more stringent test in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361,363 (1981).
Applicant failed to mention, however, that the Commission's direction was lim i t ed to reopening the record on TMI-related issues.93/ -
Applicant's citation to Summer, supra, is also inapposite to this proceeding. Although the case is presented as a failure to "show" any problems with the staff's handling of a safety issue, in reality the intervenor did not even allege any such deficien-cies.9$!
Eb!Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-474, 7 NRC 74 6,748 (1978).
^ES! B yron (May 12, 1983), slip op. at 4 See also Public Service 10 Company NRC 775, 802 n.of 122 Oklahoma ( Black Fox, Units 1 and 2), ALAB-573, (1979); Vermont Yankee, supra.
93/
-- Byron (May 12, 1983), supra, slip op. at 4.
' 94/
-- Summer, supra, at 4
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- 3. Public interest. Applicant predictably equates the public interest with its own, and attempts to use its acquiescence to the Commission's November 12 suspension of safety-related construction as a lever to avoid hearings.95/ Continuing another pattern, applicant again cites a case whose context is distinct from this proceeding. In Marble Hill 96/
the intervenors sought a hearing to increase the severity of the enforcement action, not to challenge the operating license. That case would be analogous to MVPP challenging the Commission's November 12 Order as too weak a sanction. Further, the hearing would have been meaningless since the law only permits challenge to the decision, not the penalty.
The policy considerations are distinct , because the enforce-ment penalty and the hearing would have been part of the same en f o r c e'm e n t proceeding. As a result, there is much less chance that an applicant will challenge a staff or Commission enforcement action in order to avoid the possibility of a later hearing by a Licensing Board.
In fact, applicant's argument is self-defeating, since the only way to challenge the enforcement action is through a hearing.
MVPP suggests that is precisely why applicant acquiesced to the November 12 Order -- to avoid a public hearing last November.
The staff's treatment of this issue is even more curious.
Last year both staff briefs emphasized the public interest in restoring public confidence in Zimmer as the primary reason to f ully air the issues in the ASLB public forum. This year neither 95/
-- Applicant's brief, at 45 n. 91 .
96/P ublic S erv ic e Company of Indiana (Marble Hill Nuclear t
Generating Station).
1 the terms "public interest" nor "public co nfid enc e" were mentioned by staff counsel. The staff counsel's priorities are also revealed by the comment in passing, "It should be realized that if, for any reason, the basic allegations of the MVPP Contentions were to be litigated in the Zimmer operating license proceeding, the Staff position would be to agree in general with the substance of the contentions."
Since the substance of the contentions clearly indicates that the QCP must be replaced with a comprehensive reinspection of .
all safety-related work and applicant 's removal from all QA responsi-bility, the staff's legal position on the merits of the contentions either is inconsistent with the staff's inspection program, too casual to notice the dif f erenc e, or both. The inconsistencies are even more curious, since Region III Administrator James Keppler continues to support public hearings. El In sum, the staff legal counsel's 1983 l ic e n s ing position should only receive minimal weight, due to its spotty coverage of the issues, apparent ignorance of factual developments, and internal inconsistencies between organizational departments.
Fortunately, the public has not lost interest in the potential safety threat from Zimmer. To illustrate, last year there was no formal participation in the licensing proceedings except from the parties.
This year nearly 40 church, labor, civic and environmental organizations, from Cincinnati, Dayton, Cleveland and Northern Ken-tucky, participated as amici to support the hearings. They hope that 97/J uly 7, 1983 telephone conversation between Billie Garde, GAP, and Thomas Rehm, NRC.
_, public confidence will be more relevant for the NRC's administrative judges than it is for the NRC's attorneys.
IV. CONCLUSION Mr. David Jones has experienced the reality of Zimmer from the inside as a high-level Kaiser site off.icial, and from the outside as an active citizen critic who chose to sacrifice his nuclear career, rather than his conscience. The conclusions in '
Mr. Jones' af f id avit summarize the need to replace corporate hide-and-seek with a full public airing and resolution of the QA breakdown at this troubled facility:
In conclusion, I would like to offer a statement of why the licensing process should be reopened. . . Not only has the construction of Zimmer been poorly managed leaving many areas of the plant quality indeterminate, but there is also serious disagreement among all the parties as to what happened at Zimmer,when and who is responsible.
It seems to me that the Atomic Safety and Licensing Board has a duty and an obligation to its own organization and the public to step in and sort out the mess at Moscow, Ohio. All other responsible parties have a bd ic a t ed their responsibilities in the critical issues at Zimmer and this licensing board appears to be the seat of the last opportunity to find the truth concerning this plant. We are currently at a point where many problems can be eliminated, but this same opportunity may not be ava ila ble at a later date.
Respectfully submitted, md IAN>
THOMAS DE7INE Counsel for Intervenor Miami Valley Power Proj ect Government Accountability Proj ect Of Counsel: John Clevett of the Institute of Policy Studies 1901 Que Street, N.W.
Washington, D.C. 20009 Da t ed: July 12, 1983. 202/234-9382 l
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