ML20077N380
| ML20077N380 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/08/1983 |
| From: | Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8309130059 | |
| Download: ML20077N380 (14) | |
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September 8, 1983 R2:22 7
UNITED ST TES OF AMERICA NUCLEAR REJULATORY COMMISSION h[.,,$('E W3 'u.
REFORE.THE ATOMIC SAFETY.AND LICENSING BOARD';.,', { -
In the Matter.of
)
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Docket Nos. 50-445 and TEXAS UTILITIES GENERATING CO.,
)
50-446
_e _t a l.
)
)
(Comanche Peak Steam Electric
)
(Application for Station, Units 1 and 2)
)
Operating Licenses)
APPLICANTS' REPLY TO CASE'S OBJECTIONS TO PROPOSED INITIAL DECISION In accordance with the Board's order in its Proposed Initial Decision-(Concerning aspects of construction quality control, emergency planning and Board questions), July 29, 1983, Texas Utilities Generating Company (" Applicants") hereby file their reply to CASE's Objections to the Proposed Decision.
As set forth below, CASE presents no information that should alter the Board's disposition of issues in the Proposed Decision.
Accordingly, the Board should modify its Decision in accordance with.the Objections of Applicants and the NRC Staff, and issue a final decision.
I.
APPLICANTS' RE' PLY TO CASE'S OBJECTIONS A.
General CASE does not identify any evidence of record not already considered by the Board in renching its determinations in its Proposed Decision.
Neither does CASE point to evidence that could alter the Board's disposition of natters in that Decision, or present any arguments that could persuade the Board that Q
8309130059 830900 s
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conclusions. based on.the evidence warrant any revision of its Decision.
In face, CASE often agrees with the Board's conclusions regarding the disposition and determination of significance of particular matters, In addition, CASE generally raises only questions or concerns (without any citation to supporting evidence of record) that it suggests the Board should take into " consideration."
Obviously, CASE fails to sustain its burden of going forward by presenting only vague and unsupported
" questions" and " concerns."-
In addition, as discussed below, CASE does not contest the Board's finding that CASE was in default on issues as to which CASE did not file proposed findings.
In such a posture, the Board need not even consider
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CASE's unsupported assertions in finalizing its Proposed Decision.
In any event, even if CASE had not abandoned its allegations or the Board considers its objections despite its
. abandonment, CASE presents no information or arguments which warrant revision of the Proposed Decision.
B.
'The Board Properly Ruled CASE Abandoned its Contention CASE does not appear to contest that the Board properly ruled that CASE abandoned subs'tantial portions of its contention by failing to file proposed findings when directed to do so.
-Instead, CASE argues that it should be given the opportunity to present a closing argument regarding all controverted matters (includingLthose which it abandoned) or, in the alternative, the Board should accept as proposed findings CASE's October 18, 1982 pleading which was intended to identify a manageable group of
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exhibits from the hundreds of exhib.its CASE sought to have admitted before the Board ruled on~ admissibility.
For the reasons discussed below, the Board should deny both of CASE's alternative requests.
1.
Closing arguments CASE apparently would have the Board believe that the
. previous Board Chairman contemplated closing arguments could serve as a substitute for proposed findings.
CASE argues that such an opportunity was the reason CASE did not appeal the Board's denial of CASE's motion for a further extension of time to file proposed findings.
CASE now asks the Board to allow CASE, assuming the Board as presently constituted plans to hear closing arguments, to present argument on all issues including those which the Board has ruled CASE abandoned.
As demonstrated below, CASE is wrong as to the previous Board Chairman's intent regarding closing arguments.
Thus, CASE should not be permitted to present closing arguments (if they are heard by the Board) on l
matters which it has abandoned.
First, the Board was clear in directing the parties to file proposed findings.
See Reconsideration of December 2, 1983 Order (Decembar 21, 1982), at 1.
Thus, no party should escape the consequences of failure to file proposed findings.
This is particularly - so vihere, as here, the Board was clear that neither proposed findings nor closing arguments were a substitute for the i
i other, stating that " findings of fact are not meant to be
- argumentative nor to fulfill the function of a brief or closing l
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argument.": Id. at'2-3
(' emphasis added).
CASE's arguments to the contrary ar'e,'therefore!1 unfounded ~
In. addition, we note that.
1 CASE did-not raise in its February 24,-1983 motion for additional time to file' proposed findings, although it should have if it.
, intended to appeal (as it now claims) on those. grounds, the question of whether' closing arguments could substitute for proposed ~ findings.
Thus, not only is its position unfounded.but its p6st-hoc rationalization for-its actions should not be accepted'as justification for its position now.
Further, given the explicit directive of the Board to file 3 _
proposed findings, and the clearly established separate purpose
. of closing ~ arguments, _ CASE should not be permitted to resurrect
~in. closing: arguments matters as to which it was properly found to have abandoned by failing to file proposed' findings.
- Thus, assuming, arguendo, the Board will hear such arguments, it should
'not permit CASE iu) present argument on matters on which it has L
Ibeen foundito be.in default.
L 2.
Filing concerning documents not a substitute for proposed findings CASE's alternative request to have the Board accept as F
- proposed ' findings CASE's Octob'er 18, 1982 filing regarding exhibits is without merit.
CASE erroneously suggests that its
. filing on documents " constituted Proposed Findings".
CASE
. Objections at 4.
If CASE is suggesting that such was the purpose of its pleading in-the first' instance, the Board need only note that such a purpose was known only to CASE.
Neither Applicants nor the Staff -could not have envisioned such a role for that p"'-'M"
.9 79 p
--5 pleading because CASE specifically; stated therein that it was its intent to use theEe documents in its proposed findings.
See
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" CASE Response to-Board Directive Regarding CASE Exhibits, October 18, 1982, e.g.,
at 4, 6 and 45.
If on the other hand, CASE suggests that'the Board now consider that pleading as proposed findings, even though not initially intended as such, we submit that to do so would be patently unfair and inconsistent with the orderly conduct of the. proceeding.
CASE's request is simply untimely.
Such a request should have been made much earlier, certainly no later than at the time CASE filed its partial proposed findings.
CASE makes no effort to show why it could not have pursued this matter in a timely fashion, rather than wait until the Board has already issued a Proposed Decision.
In addition, the Board would be required to begin anew the decisior.-making process'by considering in detail this pleading, issue a new decision, afford the parties another opportunity to comment on the decision, and then-issue a final decision.
Obviously, substantial unwarranted delay in the proceeding would be imposed by this_ approach.
Further, that document is not written'with the purpose of having it serve as proposed findings.
It does not present any cohesive, meaningful argument from which it would even be possible to extract material on which to base an informed decision.
In sum, the Board should deny CASE's request l
that it consider its October 18, 1982 filing as Proposed Findings.
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.C.
Issues Addressed in Proposed Decision 1.'
R'ock OVErbreak Applicants believe the Board properly disposed of this issue in its Proposed Decis1on.
CASE does not identify any information from the evidence of record which the Board may have overlooked when it reached its decision.
Rather, CASE simply repeats portions of its Proposed Findings and asks the Board to reach a different decision.
No rationale is presented as to why the Board should change its conclusions.
'We must point out, however, two matters with respect to CASE's discussion.
First, CASE argues' weakly that Applicants somehow sought to mislead the NRC or this Board with respect to the. extent o'f the overbreak.
We note that Applicants reported this matter in accordance with 10 C.F.R.
$50.55(e), with both an initial letter and subsequent report to the, appropriate.NRC
. offices.
Extensive evaluation of the matter was conducted, including observation of the excavation by the NRC.
(See Applicants' Proposed Findings at 63-67; CASE Exhibits 4 and 6; Tr. 846-47.)
CASE wo'uld have the Board believe NRC offices in
. Washington, rather than region.al offices, should have been primarily responsible for evaluation.of the excavation.
This is a matter.of internal NRC management and allocation of responsibility which is not a matter for resciution by this Board.
In any event, there is no evidence that any of the over excavation was not thoroughly evaluated by Applicants'and the NRC and properly repaired.
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L Second, with, respect to CASE's' arguments regarding the
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adequacy o$ repai$s, we note CASE merely asks questions and does
. not point to any evidence that the repair was inadequate.
The Board thoroughly addressed the repair in its Proposed Decision at 8-9, and CASE identifies no evidence that demonstrates that any of the Board's conclusions were in error or that the testimony of Applicants' expert witnesses was incorrect regarding the adequacy of repair.
Accordingly, the Board should not alter any of its conclusions regarding this subject, nor should it find that any
" reanalysis" is necessary.
2.
Crack in cavity wall CASE's arguments'concerning'the a shrinkage crack in the reactor cavity wall (identified by Applicants' QC program) also raise only questions and concerns, without pointing to any evidence to support its claim that the Board should alter its determination on this matter.
However, two items in CASE's i
Objections warrant comment.
First, CASE refers to an I&E Report concerning floor slab concrete.
Simply stated, that matter is irrelevant to the issue here.
In any event, the NRC found that this cracking does not have any effect on the integrity of the structure.
(CASE Exhibit 253, Enclosure at 7.)
Thus, there is
. no reason for the Board to find any safety concern is presented here..Second, with respect to CASE's " comments" regarding the location, extent, stress and seismic capabilities, these are not 4
founded on any evidence of record and thus Applicants and the Staff's expert testimony on these matters in uncontradicted (See 4
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Applicants'+ Proposed., Findings at 69, Finding 125).
Accordingly,
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- there-is no'reaso5 the Boar'd should alter;the-conclusions reached i
,in its Proposed Decision, y
D.
Other-Allegations l.'
' Gates Allegations CASE challenges only one aspect of the Board's decision on these allegations, viz-worker morale.
CASE concedes that the Board'is correct in:findingithat morale does not, in.and of itself, affect the quality of construction.
CASE simply presents unsupported arguments that morale."could" reflect on the. quality ofxconstruction.- Such unsupported. assertions afford'no basis for
- altering the Board's conclusions regarding.these allegations.
I 2.
Miles' Allegations
. CASE again raises the morale issue but does not present1any
- additional information which would warrant any' change in-the Board's. conclusions on this' issue.
Another argument presented by l
CASE;with respect to these allegations concerns the status of the reinspection of the polar crane support bracket assemblies.
CASE
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~does not disagree.with~the Board that there is no~ defect O
' remaining which~ warrants further Board consideration.
Neither does CASE.present any evidence which suggests the inspection of these-items will'not be: completed as committed to by Applicants.
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- f DThus,'thereLis no reason for.the Board to alter its previous Edetermination.
. As for. CASE's: argument that this allegation craisesLanguestion as~to the circumvention of the QA/QC process,
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- we noteithat this' situation was identified prior to Applicants' p
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QC inspection hav,ing,been conducted-(Applicants' Proposed Findings at 104, finding 194).
Thus, CASE' presents no basis on which the Board should alter its Proposed Decision on this matter.
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3.-
Hamilton Allegations CASE raises.three matters regarding these allegations which
' bear comment.-
In no instance does CASE present information which would-warrant alteration of the Board's disposition of these matters.
First, with respect to the inspection reports which were lost, Applicants response to this matter is addressed in Applicants'. Proposed Findings at 119, Finding 218.
As demonstrated therein, there is no basis for concluding that any
. safety. concern is presented, and the Board correctly so fcund.
Second,. CASE's reference to other " concerns" regarding documentation are fully addressed in Applicants' Proposed Findings'at 5C (Findings 91-95) and at 120 (Finding 219).
CASE identifies no evidence of record which would require the Board to alter'its determinations as to these allegations.
Finally, with recpect to CASE's statements regarding instructions to use great'er care at a nuclear plant, we note that Mr. Hamilton was in
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fact given such instructions (See Applicants' Proposed Findings at 122, Finding 224).
In any event, we agree with the Board's determination that this matter poses no serious health or safety is s u e'.
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4.
Stiner Allegations'
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With r'espect7to CASE's'commen'ts regarding instructions ~to
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use greater care, we believe~the Board correctly: decided this-matter in determining it' presents no serious health or safety issue'.- CASE-identifies no evidence of record to' alter that decision'.
As.to'the claims by CASE that the Staff's
. investigation'into the.removalLof a partially installed Hilti bolt Was inadequate,-: CASE' presents no information-to alter the
' Beard's,conclus2on tha.t the Staff correctly found this~ matter not to raise a safety question.
Accordingly, there is no reason.for the' Board to alter-its conclusions regarding'the Stiner allegations on the basis of CASE's objections.
5.
~ At'chison Allegations CASE only addresses.the allegations of Mr. Atchison
'regarding low worker morale and instructions to'use special. care.
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- Again, CASE does-not provide'any information which would alter the Board's conclusions on these matters.
We would, however, refer the Board to Applicants' Exh'ibit 136, documenting Mr.
Atchison's completion of training-to instruct him in the standards.and quality requirements applicable to a nuclear plant.
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LIn any. event,'the Board should not alter its conclusions
.regarding any of Mr.;Atchison's' allegations on'the basis of CASE's objections.
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. 6.
Lobbin Report CASE notes that it' agrees with the Board that the findings in this report "are entitled to little weight in this proceeding."
Thus, the Board should not even consider CASE's discussion of this matter.
We note, however, that CASE's implication that any of the findings in that report suggest a breakdown in Applicants' QA program is contrary to the evidence of record.
We refer the Board to the discussion in Applicants' Proposed Findings at page 91, Finding 170.
Accordingly, there is no reason for the Board to alter its conclusions regarding the Lobbin Report.
CASE simply fails to identify any evidence which suggests that a contrary conclusion chould be reached.
II.
CONCLUSION As demonstrated above, CASE fails to identify any evidence of record not already considered by the Board in reaching its conclusions in the Proposed Decision.
Neither does CASE present any arguments which demonstrate the Board has incorrectly j
analyzed the evidence before it on these matters.
Accordingly, i
the Board should not alter its Proposed Decision on the basis of e
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o CASE's objections;theret'o.
Rather,; the Board sh$uld revise its decision in accordance with Applicants' and the NRC Staff's objections and promptly issue a final decision.
- Respec fu y submitted,
):
m Nicholg
.)Reynolds l William A. Horin' DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W. Washington, D.C. 20036 (202) 857-9817 Counsel for Applicants September 8, 1983 W e-O ,-n-
\\ 00LKETED 2x '83 SEP 12 Pi2:24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h* BEFORETHEATOMICSAFETYANDLICENSINGBhh_itG S BRANCH In the Matter of ) ) TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, et al. ) 50-446 l ) ~~ 1 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Reply to CASE's Objections to Proposed Initial Decision" in the above-captioned matter were served (or will be served) upon the following persons by deposit in the United States mail, first-class postage prepaid, express delivery (*) on the 8th of September, 1983, or hand delivery (**) on the 9th of September, 1983.
- Peter B.
Bloch, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Ccmmission Was~aington, D.C. 20555 Washington, D.C. 20555 Mr. Scott W. Stucky
- Dr. Walter H.
Jordan Docketing & Service Branch 881 W. Outer Drive U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555
- Dr. Kenneth A.
McCollom Dean, Division of Engineering. Architecture and Technology
- Stuart A.
Treby, Esq. Uklahoma State University Office of the Executive Stillwater, Oklahoma 74074 Legal Director U.S. Nuclear Regulatory Mr. John Collins Commission Regional Administrator, Washington, D.C. 20555 Region IV U.S. Nuclear Regulatory Chairman, Atomic Safety and Commission Licensing Board Panel 611 Ryan Plaza Drive U.S. Nuclear Regulatory Suite 1000 Commission Arlington, Texas 76011 Washington, D.C. 20555 IIN' a t
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- David J.
Preister, Esq.
- Mrs..Juanita Ellis Assistant Attorney General President, CASE Environmental. Protection 1426 South Polk Street Division Dallas, Texas 75224 P.O. Box 12548 Capitol Station Austin, Texas 78711
) ^] William A. Morin c c': Homer C. Schmidt Spencer C. Relyea, Esq. i F i., ~ l, l' i p L M#M -ff
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