ML20077H725
| ML20077H725 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/04/1983 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8308110247 | |
| Download: ML20077H725 (14) | |
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UNITED STATES OF AMERICA ar"a$fcg* $.*,,,]/
2 NUCLEAR REGULATORY COMMISSION 9
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5
6 7
8 In the Matter of
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9
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Docket Nos. 50-275 PACIFIC GAS AND ELECTRIC COMPANY
)
50-323 10
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Diablo Canyon Nuclear Power Plant, )
.(Construction 11 Units No. 1 and 2
)
Quality Assurance)
)
12 13 14 POST-HEARING BRIEF OF LICENSEE PACIFIC GAS AND ELECTRIC COMPANY 15 REGARDING MOTIONS TO REOPEN THE RECORD ON CONSTRUCTION QUALITY ASSURANCE 16 17 18 19 20 21 INTRODUCTION l
22 On July 19-22, 1983, an evidentiary hearing was 23 held in San Luis Obispo, California to resolve " apparent 24 conflicts between the extensive affidavits and other 25 documentary materials in support of and in opposition to the 26 reopening. motions, and, in addition, to obtain answers to 8308110247 830s04 PDR ADOCK 05000275 l
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[ Board] questions concerning these materials.
" _1/ At 2
the close of the hearing the Board stated that it was 3
inviting, but not requiring, briefs from the parties 4 discussing "the Wolf Creek Standard for reopening [2f] and 5
how, if at all, any of the matters that have come forth in 6
this hearing support or do not support that standard.
7 Transcript of Hearing, p. 916. _3/
In accordance with the 8
Board's invitation, this brief will discuss the existing 9
motions in the context of the additional evidence presented 10 at the hearing as they impact on the standard set forth in 11 Wolf Creek.
12 DISCUSSION 13 As noted in our May 31, 1983 Response to Joint 14 Intervenors' and Governor Deukmejian's Motions to Reopen 15 (PP. 8, 80-81) movants have a heavy burden to meet in order 16 to sustain the reopening of a closed record for considera-17 tion of a late-filed contention.
As we noted at that time, 18
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20 21 1/
Appeal Board Order of June 28, 1983, pp. 1-2.
In that Order the Board also confined the hearing to the re-22 Opening motions on CQA filed by the Joint Intervenors l
and the Governor on May 10 and 17, 1983, respectively.
23 2f III the Matter of Kansas Gas and Electric Company (Wolf 24 Creek Generatin_g Station, Unit No. 1), ALAB-462 7 NRC l
320 (1978).
25 3f References to the July 19-22, 1983 hearing transcript 26 will be cited hereinafter as "TR.
l.-
1 "The Motion must be both timely pre-sented and addressed to a significant 2
safety or environmental issue.
Beyond that, it must be established that 3
'a different result would have been reached initially had
[the material 4
submitted in support of the motion] been considered.'"
[ Wolf
- Creek,
. supra 5
- p. 338.]
6 We argued then, and we state even more emphatical-7 ly now, that the " evidence" presented by the movants raises 8
neither a significant safety issue nor does it establish j
9 that the facts shown would have brought about a different 10 result if considered initially.
In the Matter of Northern 11 Indiana Public Service Co.
(Bailly Generating Station, 12 Nuclear - 1), ALAB-227 8 AEC 416, 418 (1974).
Indeed at the 13 hearing, as we will discuss below, it became apparent that 14 much if not all of the " facts" and " evidence" advanced in 15 support of the motions were based upon mere speculation and 16 unsupported opinions and conclusions.
17 Finally, it is also manifest that movants have not 18 satisfied the five requirements for late-filed contentions 19 found in 10 CFR 2.714(a).
This failure forms a separate and
~
20 independent basis for denying this motion to reopen.
M the 21 Matter of Duke Power Company, Et Al.,
(Catawba Nuclear 22
- Station, Units 1 and 2),
CLI-83-10, NRC 23 (June 30, 1983).
24 REOPENING THE RECORD IS NOT JUSTIFIED.
I 25 At the evidentiary hearing, the Board and the 26 other parties had an opportunity to cross-examine the
1 affiants and inquire into the basis for many of their 2
statements, opinions and conclusions.
The major arguments 3
relied upon by the Governor and Joint Intervenors in their 4
respective motions consisted of the following:
5 (1)
The existence of " deficiencies ~ in design 6
quality assurance ("DQA") allow the inference that 7
comparable-significant deficiencies exist in 8
construction quality assurance ("CQA").
9 (2)
The CQA review conducted by, the 10 Independent Design Verification Program (IDVP) was 11 unduly narrow but not withstanding that fact it 12 still uncovered some significant CQA deficiencies.
13 (3)
The recent allegations of two former 14 contractor quality assurance
("QA") personnel j
15 revealed instances of significant CQA breakdowns; l
16 and; 17 (4)
The ongoing heavy construction activity 18 suggests that quality requirements are probably 19 not being met.
20
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23 24 25 26 --
1 Under close examination the main witness for Gov.
2 Deukmejian and the Joint Intervenors, Richard Hubbard 4f 3
made revealing admissions which seriously undermine whatever 4
credibility might have attached to his arguments in support 5
of the motions to reopen.
6 For example, the facts show that he had never read 7
the Diablo Canyon CQA manual or procedures (TR. 39) and he 8 did not know whether CQA and DQA activities were done by the 9
same personnel (TR. 40).
He did not know what Reedy's 10 opinion was on whether DQA findings applied to CQA.
(TR.
11 138).
Further, he had not reviewed any CQA audits of Diablo 12 Canyon (TR. 145).
13 The facts also show that Mr. Hubbard admitted that 14 the whole purpose of a QA program is to find errors (TR.
15 149).
He also admitted that PGandE found certain welding 16 problems and he agreed that the CQA program worked to 17 correct the particular deficiencies (TR. 150-152).
18
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20 4/
Notwithstanding the fact that on extensive voir dire 21 Mr. Hubbard admitted having virtually no experience in construction work and practices as well as on-site 22 construction quality assurance, the Board found Mr.
Hubbard "at least marginally qualified" to testify 23 subject to the usual caveat that his testimony, as with all witnesses, is subject to the Board determining what 24 weight it should be entitled to.
(TR. 74.)
The exami-nation of Mr. Hubbard at TR. 92-95 and 105-110 confirms 25 that Mr. Hubbard had no formal or practical experience in various construction disciplines and activities 26 including construction quality assurance. _
1 Mr. Hubbard, when pressed further, admitted that 2
the CQA attributes utilized by Stone and Webster Engineering 3
Company
("SWEC")
in its review of 2 of the major 4
construction contractors were consistent with Appendix B 5 criteria (Tr. 165).
He also admitted that the SWEC findings 6 regarding BMI welds involved only a small percentage of work 7
in a confined space and were unique to the rest of the 8 Wismer and Becker work.
(TR. 181).
9 Significantly, Mr. Hubbard agreed that the mere 10 issuance of a Notice of Violation by the NRC does not, ipso 11 facto, mean that a program is not in compliance with 12 Appendix B requirements (TR. 176) and further, that any 13 conclusion regarding a " breakdown" in QA is based upon 14 judgment and experience and an assessment of the i
15 appropriateness of corrective action (TR. 177).
Indeed, Mr.
16 Hubbard candidly admitted that in many areas of his opinions 17 he had to speculate (TR. 162).
18 He also grudgingly acknowledged that the reactor 19 coolant system ("RCS") pipe wall investigation results gave
~
20 added confidence that CQA records were available (TR. 167) 21 and that, assuming all radiographs were acceptable, it gave 22 further evidence confirming the adequacy of the CQA program 23 (TR. 170).
24 As to the other witness profferred by the Governor l
25 and relied on by the Joint Intervenors, Mr. Virgil Tennyson, 26 suffice it to say that one obtained a markedly different.
~., - -,
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1 view of CQA at Diablo Canyon from Mr. Tennyson under ques-2 tioning by the parties and the Board than was distilled by 3
the movants from his sworn statements to NRC investigators 4
and the attorneys for the Governor.
5 In contrast to negative implications that could be 6
drawn from Mr. Tennyson's sworn statements and the liberal 7
interpretation placed upon his statements by the Governor 8
and the Joint Intervenors in their motions, his testimony at 9
the hearing confirmed that while there was pressure to get 10 the job done this was not to be accomplished at the 11 sacrifice of quality.
(TR. 352).
Mr. Tennyson was never 12 told by his employer not to do his job, rather he was told 13 to do it in a more timely manner.
(TR. 350, 351.)
14 For example, Mr. Tennyson testified that he did 15 his job properly (TR. 308) and that, in all matters 16 mentioned in his sworn statements, nothing to his knowledge f
17 ever resulted in work being accepted that did not meet 18 requirements.
(TR. 341).
i 19 As for the " red tag" issue, his testimony revealed 20 that he had little, if any, knowledge about the precise 21 details of the issue.
(TR. 250, 254, 258, 270).
For 22 example, he did not know the location of the " pulled red 23 tags", whether the re-work had been accomplished, and, if 24 so, whether the work had been inspected and signed off 25 before the tags were pulled.
(TR. 258, 270).
Indeed, he 26 ffy.
1 admitted that he was wrong if it were shown that the red 2
tags had been worked-off.
(TR. 272). Sj 3
Turning to the question of quality control 4
inspectors, he admitted that he was responsible for training 5
inspectors up to 2 years before his dismissal and that they 6
were adequately trained (TR. 288)..
Further, as far as he 7
knows all welders at all times -were properly certified.
8 (TR. 309).
The main problem he was confronted with was to 9
find and employ sufficient. quality control inspectors to 10 timely inspect all the work: being accomplished in -the 11 December 1982 to March 1983 timeframe without unduly slowing.
12 up the job.
(TR. 311).
This problem was alleviated when 13 Foley hired Cataract -- an action.that_ he admitted showed 14 that Foley was interested in the quality of work (TR. 311, 15 312).
16 In summary Mr. Tennyson presented testimony that 17 pressure existed to get the job done but not at the 18 sacrifice of quality.
Further, he felt that PGandE was 19 committed to assuring a quality job (TR. 223, 352).
20
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23 24 5/
In point of fact, Mr. Etzler testified that the red 25 tags were removed only after the inspection had deter-mined that the work had been completed in accordance 26 with.the disposition (TR. 652)..
_-_--_-_--_____-____-__A
l 1
The foregoing discussion and analysis of Messrs.
2 Hubbard's and Tennyson's testimony supports several 3 conclusions.
First, neither has presented any substantial 4 evidence other than conjecture, speculation, or unsupported 5 conclusion that any significant safety issue concerning 6
construction quality assurance existed or exists at Diablo 7
Canyon.
Indeed, their testimony in many respects supports 1
8 the opposite conclusion - that quality procedures were in 9
effect and enforced.
Further, whenever discrepancies or 10 deviations from quality requirements were noted, appropriate 11 corrective action was instituted.
12 PGandE's conclusions in this regard are borne out 13 by the testimony of the Nuclear Regulatory Commission 14 witnesses.
They agreed that the construction quality 15 program was average to better than average (TR. 807, 808, 16 823).
Also, they stated that the number and type of 17 discrepancies detected in construction activities over the 18 lifetime of the project were not unusual or unexpected.
19 (TR. 807-808.)
Additionally, for the December 1982 to March 20 1983 timeframe they testified that given the type and amount 21 of work being performed, the deficiencies noted were not 22 unexpected nor were they of any safety significance (TR.
23 806, 908).
The Staff also expressed the opinion through Mr.
l l
24 Knight that the probability of the existence of an i
25 undetected significant deviation in construction at Diablo 26 Canyon was very low.
(TR. 860.)
r l
1 Finally, the testimony of the IDVP panel regarding 2 the CQA audit of two of the main construction contractors by 3
the IDVP confirmed the adequacy of the construction of the 4 work reviewed.
(TR. 701-703.)
Indeed, the manager of the 5 IDVP offered his opinion that the review gave him reasonable 6 assurance that an appropriate construction quality assurance 7
program was in effect at Diabl.o Canyon.
(TR. 720-724, 8 740e.)
9 The evidence in the record produced by the 10 Governor and Joint Intervenors presents a classic case of 11 speculation, innuendo, and unsupported conclusions.
Such 12 " evidence" is not of the type needed to reopen a closed 13 record.
Pacific Gas and Electric Company (Diablo Canyon 14 Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, s
l 15 363 (1981).
This abject failure stands in stark contrast to 16 the objective evidence presented.by PGandE, the NRC and the 17 IDVP that construction activities at Diablo Canyon have met 18 and continue to meet, applicable quality requirements.
19 Indeed, it seems clear that none of the "new evidence",
20 relied upon by the Governor and Joint Intervenors in their l
21 motions constitutes information of major -significance 22 impacting on plant safety nor would this information change 23 the initial result.
It does not reflect a pattern of 24 discrepancies or deficiencies constituting a widespread 25 breakdown in CQA.
Rather, it shows isolated and relatively 26 minor problems which have been detected and remedied.by i-.
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appropriate corrective action.
Hence, they have failed to i
2 satisfy the litmus test for reopening a closed record..
3 Wolf Creek, s_upra at 338; In the Matter g Vermont Yankee j
4 Nuclear Power Corporation (Vermont Yankee Nuclear Power 5 Station), ALAB-138, 6 AEC 520, 523 (1973).
6 REQUIREMENTS OF 10 C.F.R. 6 2.714(a)(1) 7 PGandE has discussed the five requirements for 8 late-filed contentions in its July 2, 1982 and May 31, 1983 9
Responses and will not repeat them here.
Suffice it to say 10 that the extreme prejudice PGandE would suffer if 11 construction quality assurance were reopened when reviewed 12 against the flimsy " evidence" presented by the Governor and 13 Joint Intervenors mitigates strongly against such a 14 reopening.
To allow late-filed contentions to be admitted 15 based upon speculation and surmise by witnesses with either 16 a bias or an admitted lack of construction quality assurance 17 expertise would subvert the administrative process and the 18 principle of administrative finality.
ICC v. New Jersey, 19 322 U.S. 503 514 (1944).
20
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23 24 25 26 _
1 CONCLUSION 2
For the reasons set forth above and in our 3
previous response to the Governor's and Joint Intervenors' 4 Motions to Reopen, PGandE believes that the requirements for 5 reopening the record with respect to construction quality 6
assurance have not been-met.
~Accordingly, the motions 7
should be denied in-their entirety.
8 9
Respectfully submitted, 10 ROBERT OHLBACH~
PHILIP A. CRANE, JR.
11 RICHARD F. LOCKE Pacific Gas and Electric Company 12 P.O. Box 7442 San Francisco, California 94120 13 (415)-781-4211 14 ARTHUR C. GEHR Snell & Wilmer 15 3100 Valley Center Phoenix, Arizona 85073 16 (602) 257-7288 17 BRUCE NORTON Norton, Burke, Berry & French, P.C.
18 P.O. Box 10569 Phoenix, Arizona 85064 19 (602) 955-2446 20 Attorneys for Pacific Gas and Electric Company 21 22 23 By Bruce Norton i
24 25 DATED:
August 4, 1983.
26.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION G
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In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY Docket No. 50-275
)
Docket No. 50-323 9:
AUG 81983 > If Diablo Canyon Nuclear Power Plant, )
's Doaarma a Units 1 and 2
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SERVICE BRANCH
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CERTIFICATE OF SERVICE The foregoing documents of Pacific Gas and Electric Company have been served today:
1.
Motion of Licensee Pacific Gas and Electric Company for Leave to File Additional Pleadings 2.
Post-Hearing Brief of Licensee Pacific Gas and Electric Company Regarding Motions to Reopen the Record on Construction Quality Assurance 3.
Reply of Licensee Pacific Gas and Electric Company to Response to Motion to Compel Answers to Interrogatories to Joint Intervenors 4.
Reply of Licensee Pacific Gas and Electric Company to the Answers of Governor Deukmejian to Motions to Compel Further Answers to Interrogatories and Production of Documents The above-mentioned documents have been served today on the following by deposit in the United States mail, properly stampcd and addressed:
Judge John F. Wolf Mrs. Sandra A.
Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo, CA 93401 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O.
Bright San Luis Obispo, CA 93401 Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission John Phillips, Esq.
Washington, D.C.
20555 Joel Reynolds, Esq.
Center for Law in the Public Interest Judge Jerry R.
Kline 10951 W. Pico Blvd., Suite 300 Atomic Safety and Licensing Board Los Angeles, CA 90064 U.S.
Nuclear Regulatory Commission Wachington, D.C.
20555 David F.
Fleischaker, Esq.
l P.
O.
Box 1178 j
Mrs. Elizabeth Apfelberg Oklahoma City, OK 73101 l
c/o Betsy Umhoffer Gehr, Esq.
1493 Southwood Arthur C.
San Luis Obispo, CA 93401 Snell & Wilmer 3100 Valley Bank Center Phoenix, AZ 85073
Uhnica.E. Karr, Ecq.-
Bruco Norton, Egq.
Public Utilities Commission Norton, Burke, Barry & French, P.C.
Stcte of California P. O. Box 10569 5246 State Building Phoenix, AZ 85064 350 McAllister Street San Francisco, CA 94102 Chairman Atomic Safety and Licensing Mrs. Raye Fleming Board Panel 1920 Mattie Road U.S. Nuclear Regulatory Commission Shell Beach, CA 93449 Washington, D.C.
20555 Chairman
- Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Secretary U.S. Nuclear Regulatory Commission
- Judge W. Reed Johnson Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Attn:
Docketing and Service U.S. Nuclear Regulatory Commission Section Washington, D.C.
20555
- Lawrence J.
Chandler, Esq.
- Judge John H. Buck Henry J. McGurren Atomic Safety and Licensing U.S.
Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Richard B. Hubbard Michael J.
Strumwasser, Esq.
MHB Technical Associates Susan L. Durbin, Esq.
1723 Hamilton Avenue, Suite K Peter H. Kaufman, Esq.
San Jose, CA 95125 3580.Wilshire Blvd., Suite 800 Los Angeles, CA 90010 Mr. Carl Neiberger Telegram Tribune Maurice Axelrad, Esq.
P.
O.
Box 112 Lowenstein, Newman, Reis, and San Luis Obispo, CA 93402
- Axelrad, P.C.
1025 Connecticut Avenue, N.W.
Mr. Frederick Eissler Washington, D.C.
20036 Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, CA 93105 Date: August 4, 1983 Pacific Gas and Electric Company
- Federal Express