ML20078G069
| ML20078G069 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/06/1983 |
| From: | Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8310110322 | |
| Download: ML20078G069 (49) | |
Text
_
4 4
' October 6, 1983 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Odi-7 59:38 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD:ECF35cp-~y-i:0Z Tv 4ld
.D' In the Matter of
)
)
Docket Nos. 50-445 and TEXAS UTILITIES GENERATING
)
50-446 COMPANY, et al.
)
~~ ~~
)
( Application for (Comanche Peak Steam Electric
)
Operating Licenses)
Station, Units 1 and 2)
)
APPLICANTS' MOTION FOR RECONSIDERATION OF MEMORANDUM AND ORDER (EMERGENCY PLANNING, SPECIFIC QUALITY ASSURANCE ISSUES AND BOARD ISSUES)
By Memorandum and Order, dated September 23, 1963, the Atomic Safety and Licensing Board in the captioned proceeding affirmed its declaration of the intervenor's default of Contention 22 (emergency planning) and portions of Contention 5 (Quality Assurance / Quality Control), made interim factual findings on the defaulted quality assurance allegations, retained emergency planning as a matter for future consideration and disposed of Board issues.
Memorandum and order (Emergency Planning, Specific Quality Assurance Issues and Board Issues)
(" Memorandum and Order").
Therein, the Board af forded the parties an opportunity to file motions for reconsideration regarding clear errors of fact or law.
Accordingly, Texas Utilities Generating Co.,
et al.
(" Applicants") file this motion 8310110322 831006 PDR ADOCK 05000445 O
--$5--
?
e for reconsideration of the Board's Memorandum and Order.
As requested by the Board, we address each clear error of fact or law separately, below.
I.
APPLICANTS' MOTION FOR RECONSIDERATION A.
Ef fect of Default 1.
Continued Board involvement in defaulted issues Applicants submit that the Board made several errors of law in reaching its decision that it may continue to hold open and pose more " questions" regarding issues as to which it found the intervenor in default.
Memorandum and Order at 2.
A careful reading of the arguments and legal precedent relied on by the Board to reach its conclusion reveals that further consideration of these matters is not consistent with that case law.
Nor is such consideration consistent with the Rules of Practice or Commission Policy..
For the reasons set forth below, Applicants move the Board to reconsider its conclusion that it may continue l
to pursue unilaterally these abandoned allegations.
The first error of law as to which Applicants seek reconsideration is the Board's conclusion that even though it has found the intervenor to be in default on several issues raised in the context of its quality assurance / quality control ("QA/OC")
contention, the Board will continue to pursue those issues "in order to have a satisfactory understanding of the quality 1
The Board also states that it intends to allow the intervenor to assist it in compiling a complete record even as to these abandoned allegations.
Memorandum and Order at 11.
Applicants believe this conclusion also is premised on clear errors of law.
We address these errors below.
See Section I.A.2.
assurance contention."
Memorandum and Order at 2.
In reaching this conclusion the Board cites no supporting regulatiors or Commission, Appeal Board or Licensing Board decision. Rather, the Board simply states that the " Staff persuaded us" that CASE's failure to file proposed findings (and resultant default) on these issues does not preclude the Board from this course.2 Memorandum and Order at 2.
The Staf f material on which the Board relies is no more than a simple statement of position.
The Staff provides go citation to any material supporting its statement and thus, obviously, no legal analysis that would lend any weight to its position.
In fact, the Staf f's Objections focus exclusively (except for the footnote cited in note 2, supra) on the Board's disposition of the emergency planning contention.
Accordingly, Applicants are at a loss to understand how the Board could be " persuaded" by, let alone rely on, such a simplistic statement of position in the face of the clear case law and Rules of Practice that compel a contrary conclusion.
Applicants on the other hand presented a thorough analysis of the Board's proper role in an operating license proceeding.3 2
Although the Board does not provide any citation to the Sta ff material which it deemed persuasive, it does cite on the following page in its " Summary of Objections" a statement (at 3,
n.
- 2) in the Staff's Objections to Proposed Initial Decision (August 29, 1983)
(" Staff's Objections").
We thus assume this is the principal argument to which the Board refers as having " persuaded" it.
Our independent check of the Staff's Objections revealed no other discussion to which the Board may have referred.
3 Applicants' Objections to Proposed Initial Decision (August 27, 1983)
(" Applicants' Objections") at 5-15.
. s In particular, Applicants argued that where there is no longer a contested issue in view of the intervenor's default, the Board may continue to pursue those issues only upon making an express determination that it is exercising its sua sponte authority.
The Board has declined to make such a determination (Memorandum and Order at 2, n.3).
In fact, the Board apparently has chosen not to address any of Applicants' arg uments in this regard.4 Applicants submit that the Board's attempt to justify its continued pursuit of these abandoned issues as necessary in order for the Board "to have a satisfactory understanding of the quality assurance contention"
( Memorandum and Order, at 2) is error.
The Board's rationale would permit it to pursue any aspect of QA/QC, whether or not raised and litigated by the parties.
This approach violates Applicants' rights by ignoring the Rules of Practice (10 C.F.R.
$ 2.7 60 a), pertinent case law (Texas Utilities Generating Co. ( Comanche Peak Steam Electric i
Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1114 (1981)) and NRC Policy.5 Accordingly, we submit that the Board's conclusions to the contrary not only are unfounded but constitute a clear l
l error of law which the Board should remedy by dismissing those issues that were abandoned by the intervenor.
l i
4 The Board does address Applicants' arguments regarding the effect of default on the continued participational rights of the intervenor (Memorandum and Order at 10-11), but not with i
respect to the Board's role on defaulted issue.
i 5
Memorandum For:
Alan S.
Rosenthal, Chairman, AS LAP ;
B.
Paul Cotter, Jr.,
Chairman, ASLBP; Leonard Bickwit, Jr.,
General l
Counsel, from Samuel J.
Chilk, Secretary:
" Raising of Issues
[
Sua Sponte in Adjudicatory Proceedings," June 30, 1981.
l l
L.
2.
Participational rights of intervenor following default In Section III of its Memorandum and Order (at 10-11), the Board concludes that it should not deny the intervenor further participational rights with respect to the matters on which it l
de fa ulted.
In fact, the Board believes it should " accept any assistance" (emphasis added) that may be of fered by the intervenor in addressing even the matters on which it defaulted.
In reaching these conclusions the Board attempts to distinguish two cases cited by Applicants in support of the proporition that further participational rights should not be afforded on these abandoned issues.6 As shown below, the Board's analysis of these cases is in error.
Accordingly, Applicants move the Board to reconsider its decision on this matter.
In its analysis, the Board first quotes a passage from Prairie Island, ALAB-244, supra, as follows :
[I]n placing certain specified issues into controversy himself, an intervenor should not be taken as waiving the right to insist that all other issues c'oming before the Board be decided in conformity with the evidence of record and applicable principles of law -- no matter what the genesis of those issues or the source of the evidence.
[ Prairie Island, ALAB-244, supra, 8 AEC 863.]
The Board does not explain exactly what it contends that passage demonstrates, but it certainly does not support the Board's l
position.
Apparently, the Board is suggesting (erroneously in i
6 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857 (1974); Consumers Power Co. (Midland Plant, Units 1 and 2 ),
ALAB-123, 6 AEC 331 l
(1973).
l
Applicants' view) that the issues in this proceeding which were abandoned by the intervenor are now in the same posture (vis-a-vis the intervenor) as the issues properly raised in Prairie Island (but not by the intervenor there).
The statement cited by the Board concerns the Appeal Board's discussion of the question of whether an intervenor may file proposed findings on issues which it did not raise in the proceeding.
Prairie Island, ALAB-244, supra, 8 AEC at 864.
This matter obviously has no bearing on the question (at issue here) of the effect of an intervenor's default for failure to file such findings.
In addition, to conclude that the Intervenor may continue to participate with respect to abandoned issues renders its finding of default meaningless in that the Board would have imposed no sanction on the intervenor for its default.
Such an absence of meaningful enforcement of the Commission's Rules of Practice conflicts with Commission Policy.
See Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).
The second error committed by the Board with respect to its analysis of the Prairie Island decision is with regard to its conclusion that the Appeal Board did not hold that a default
" deprives a Board of the discretion to permit the intervenor to continue to participate to develop a complete record" ( Memorandwn and Order at 10).
The Appeal Board in fact declined to entertain the intervenor's exceptions in that case.
Prairie Island, ALAB-244, supra, 8 AEC at 864.
Its consideration of the issues on which the intervenor had defaulted was limited to its sua sponte
review which, contrary to what this Board implies ( Memorandum and Order at 10), is normal practice for the Appeal Board and would have occurred regardless of the default.
- See, e.g.,
South Carolina Electric & Gas Co. (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-114, 6 AEC 253 (1973).
It does not suggest participational rights should be afforded by the. Licensing Board with respect to issues in default.7 Applicants submit that the failure to file proposed findings, contrary to a Licensing Board's direction to do so and despite the Board's granting of an extension of time even beyond (by three weeks) that requested by the intervenor, is clear grounds for declining to afford the intervenor further participational rights on the defaulted issues.
To do otherwise would simply mean that even egregious violations of the Rules of Practice, including the flaunting of both a Licensing Board's clear direction to file findings and the intervenor's obligations as a party in an NRC adjudicatory proceeding, have no significance.
It is with a deep sense of frustration that we 7
The Board makes a similar error in its analysis of Midland.
Memorandum and Order at 10-11.
There the Appeal Board ' s consideration of the defaulted issues also was premised on the fact that it routinely would review all issues whether or not defaulted.
This Board ignored the crucial portion of the Appeal. Board's decision in Midland in quoting its conclusion.
The full quote is, as follows:
Since we are obliged to review the Board's initial decision in this proceeding whether or not exceptions are filed, we are not inclined to dismiss a party from further participation as a result of its failure to file proposed findings and conclusions.
[ Midland, supra, ALAB-123, 6 AEC at 333 (emphasis added to portion not quoted by Licensing Board).]
Y nl. l express our views on this point because we believe that it constitutes an abuse of discretion and an error of law by the Board that prejudices Applicants' right to a fair and impartial proceeding.
We thus object to the Board's practice, urge the Board to exercise judicial restraint by declining to litigate i
intervenor's call for it, and move for reconsideration of its decision on this matter.
A final point should be made, however.
Even if the Board felt compelled to af ford an additional opportunity for CASE to j
participate in the disposition of the defaulted issues at the time it issued its Memorandum and Order, it was error for the Board to allow even further participation by the intervenor after its failure to file meaningful objections on the Proposed Decision.
CASE was af forded the opportunity to file objections to the Proposed Decision, including affidavits, and replies to the other parties' objections.
However, as the Board acknowledges (Memorandum and Order at 12), CASE's objections included no a f fidavits, and its reply to Applicants' objections failed to address the factual arguments of Applicants.
It could I
be no clearer that CASE, having twice defaulted, has completely J
abandoned those issues.
Any further pursuit of these matters 1
clearly substitutes the Board for the intervenor. as a litigant in the case rather than as the objective trier of fact.
Accordingly, Applicants urge the Board to decline to afford any i
further participation by CASE in the disposition of defaulted issues, and to dismiss the issues, as discussed in more detail below.
B.
Emergency Planning The Board has erred as a matter of law in its disposition of the emergency planning contention.
Specifically, the Board erred in finding (Memorandum and Order at 7 ) that, even though there is no contested issue or sua sponte determination regarding emergency planning, the Board need make the finding set forth in 10 C.F.R. $ 50.47(a) (1).
Accord ingly, Applicants move the Board to reconsider its decision regarding emergency planning and to correct its errors.
i Applicants submit that the Board erroneously concluded that it must make findings pursuant to 10 C.F.R.
$ 50.47 ( a) (1) even though the emergency planning contention is dismissed.
In apparent support of this position, the Beard cites a portion of the Statement of Considerations accompanying a proposed rule concerning the issuance of low power licenses prior to the i
conduct of emergency planning exercises, as follows :
1 i
i There should be reasonable assurance prior to license issuance that there are no barriers to emergency planning implementation or to a satisfactory state of emergency preparedness that cannot feasibly be removed.
[46 Fed. Reg. 61135, as cited at 7 in Memorandum and Order.]
While this statement may be helpful in determining the standard t
by which emergency planning at the time of issuance of low-power license should be judged, it does not provide any support fo r
-r
--a
+,
an, wnm,-.<,.,
.,-.,e
---c-ne-
-.n
,,,.,v.
,,,,w
,,,-,ww-s---gr--
n,, - - --
concluding that a Licensing Board is to make emergency planning findings even where (as here) there is no contested or sua sponte emergency planning issue.
Applicants note that 10 C.F.R.
$50.47(a)(1) specifies that the "NRC" (not necessarily a Licensing Board) is to make the required finding of emergency preparedness.
The regulation does j
not specify which arm of the NRC is to do so.8 The Board need make findings on the state of emergency planning only if it is a contested issue or is properly raised as a sua sponte issue.
10 C.F.R. $2.760a.
Neither situation obtains here.
The Commission's statements in connection with the publication of the final emergency planning rule confirm that the findings of Sections 50.47 ( a) (1) and (2) are to be made by a Licensing Board only if emergency planning is an issue in contention.
In refuting a comment that the rule would eliminate emergency planning from consideration in licensing proceedings, the Commission stated as follows:
Whether an applicant sa'tisfies the requirements of 50.47 ( a) and 50.47(b) is still an issue that may be raised and litigated in those [ operating license]
hearings.
[47 Fed. Reg. 30232, 30233 (July 13, 1983).]
8 10 C.F.R. 50.47(a)(1) provides, as follows:
Except as provided in paragraph (d) of this section [concerning fuel loading and low power licenses], no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
(emphasis added).
a
. Thus, the need for a Board in an operating licensing
,aake findings regarding satisfaction of 10 C.F.R.
proceeding ue
$50.47(a) and (b) arises if and only if the issue is raised and litigated to conclusion in that proceeding.
Here, the issue has been abandoned.9 Satisfaction of those requirements is not left to the Board, therefore, but rather the NRC Staff as part of its nonnal licensing review process before it issues a license.
The Board has erroneously retained the responsibility to make those findings even though the emergency planning issue is dismissed.
Acco rd ing ly, Applicants move the Board to reconsider its conclusion in this regard and close the record on emergency planning once and for all.
If the Board declines to reconsider its decision to retain emergency planning as a matter for Board decision despite having dismissed the contention and not having made a determination to retain the issue pursuant to its sua sponte authority, we move that the Board refer the question to the Appeal Board.
Applicants submit that the Board's conclusions on this matter (both with respect to its decision-making responsibilities and its call for evidentiary submissions) directly conflict with j
9 The two decisions cited by the Board in support of its position that it needs make these findings both involve proceedings in which live emergency planning contentions existed, in contrast to the situation here.
See Louisiana Power & Light Company (Waterford Steam Electric Stations, l
Unit 3), 17 NRC (June 29, 1983) slip op. at 27; see also i
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-59, 14 NRC 1211, 1456 (1981).
- Thus, it is error for the Board to rely on those cases because the i
Licensing Boards there were required to make those findings, unlike the Board here.
i
~
- Commission regulations concerning NRC assessment of emergency preparedness (see discussion, supra) and Commission case law governing retention of abandoned contentions.
Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1114 (1981).
Referral is appropriate, inter alia, where the failure to address the issue would result in unusual delay or where the basic structure of the proceeding would be affected.
See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 99 (1981); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192-93 (1977).
In this case, failure to resolve this question at this time is likely to result in unusual delay in that the Board has requested filings by Applicants and Staff by November 30, 1983, with a reply by CASE 10 days thereafter, despite present estimates of fuel load of December 1983 and no earlier than December 1983, by Applicants and the Staff, respectively.10 In addition, the whole nature of the NRC process for assessing the adequacy of emergency plans would be undermined if the Board attempts to duplicate the ongoing NRC Staff review despite the absence of a valid contention or sua sponte issue.
Beyond that, Applicants submit that a valid legal issue exists here (and with regard to other aspects of this case) regarding the Board's 10 Even should the NRC revise its estimated fuel load date as a result of a Caseload Forecast Panel evaluation conducted the last week of September, 1983, the prospect for delay of licensing remaine real, given the time for Licensing Board decision and Commission review.
D.
interpretation of its role to see issues litigated to closure even if they are dismissed and thus no longer contested by the partias.
This is a serious legal issue that obviously will recur in this case (given the Board's idiosyncratic conduct of the ca s e), yet will avoid meaningful review if Appeal Board scrutiny is withheld until the full case is upheld.
Accordingly, it is appropriate for the Board to refer this issue to the Appeal Board, and we move that it do so promptly if it denies our motion for reconsideration.
In any event, Applicants intend, pending the outcome of this Board's (and/or the Appeal Board's) decision, to prepare the requested report in evidentiary format to provide the Board with the requested reasonable assurance.
We will submit that report within the time requested by the Board, consistent, of course, with those decisions.
C.
Protective Coatings The Board has committed an error of fact in interpreting the record "as establishing a willingness of a supervisor to have quality assurance inspectors do a less thorough job of reporting deficiencies."
Memorandum and Order at 14.
The Board's finding rests entirely on an allegation by a former QC paint inspector supervisor that his supervisor held a meeting to tell inspectors to stop " nit-picking" and " pick up" production.ll The Board also erred in concluding that the " nit-picking remark had its intended e f fect. "
Memorandum and Order at 15.
11 CASE Exhibit 653 at 43.
- 14 _
Applicants previously argued in their objections that this meeting was an attempt by Applicants to manage the inspection process.
Applicants pointed to testimony by the interveno r ' s witness that he did not believe the supervisor intended to intimidate the inspectors by this meeting nor did he (and presumably the inspectors who the witness supervised) conduct himself (themselves) differently following the meeting.12 The Board erred in discounting the witness' testimony regarding 4
intimidation as being with respect to physical intimidation.
The Board admits that it is "not entirely sure" as to the meaning of the statement but " suspects" it was a denial of any attempt "to physically coerce" the inspector.
The Board's suspicion is not supported by any record citation.
It is an error of law for the Board to ignore the plain meaning of this testimony by intervenor's witness, then base its findings on implications the Board draws from that same testimony and suspicions the Board has as to motive.
The context of the testimony is clearly revealed in the record, viz., the question and answer were the heart of an examination of the meaning of the supervisor's comments, with no testimony or reference either directly or indirectly to l
physical threats or intimidation.
To conclude that physical intimidation was at the heart of the witness' statement does not square with the record or the context in which the testimony was l
l proferred.
I l
l i
l l
12 Applicants' Objections at 25-27.
O,
The Board also erred in concluding that other inspectors (besides the witness) did not perform their inspections with the same effectiveness following the meeting and that the " nit-picking" remark had its intended e f fect (Memorandum and Order at 15).
There simply is no evidence that any of the other inspectors performed their inspections differently after that meeting.
Further, the witness, those in spec to rs ' supervisor, testified he per formed his job no dif ferently.
Thus, if any implication could be drawn from the record, even assuming arguendo there were improper suggestions in the meeting, it would be that the meeting had no ef fect on the performance of the inspections for which Mr. Hamilton was responsible.
We submit that the Boa rd ' s find ing in this regard is thus clear error that should be corrected.
In any event, Applicants will submit written evidence on the coatings reinspection program results, as requested by the Boa rd.
That evidence will demonstrate conclusively for the Board that the protective coating program at Comanche Peak has been conducted in accord with Appendix B.
D.
Harassment of Quality Assurance Inspectors Applicants continue to maintain, and the evidence of record does not refute, that the incidents of so-called harassment alleged by CASE's witness were isolated pranks as to which no safety significance can be attached.13 However, we are mindful 13 Applicants' objections at 28-30.
. of the Board's request to limit this filing to clear errors of fact or law.
Thus, we limit our motion to two clear errors that warrant reconsideration of the Board's Memorandum and Order.
The first error the Board commits is with respect to the allegation concerning the " locking up" of two inspectors.
The Board errs in both its finding that this incident was a form of harassment and its suggestion that there was some physical confinement involved ( Memorandum and Order at 16 and 16.
- n. 32).
Ra the r, as the intervenor's witness' own testimony demonstrates, this action was at worst an ine f fectual attempt by the craf t to i
emphasize the need for more inspectors. (CASE Exhibit 653 at 37-38.)
That testimony further demonstrates that the " locking up" referred to was merely a way of saying "kept busy."
In other words, the inspectors would be kept occupied ("out") with inspections, while the craft called for more inspections.
(CASE Exhibit 653 at 37.)
We note that there was no suggestion that such action had any ef fect on the quality or conduct of necessary inspections.
Thus, to the extent the Board's concern regarding I
alleged harassment is founded on these actions, it is in error and should be corrected.
The second clear error of fact is the Board's statement that "it was only after [the NRC CAT] brought intimidation to management's attention that ' aggressive action' was taken."
I 1
(Memorandum and Order at 16).
We note that the Board did not
[
provide any record citation to support this conclusion.
- However, we refer the Board to the statements in the CAT Report regarding l-l
intimidation (NRC Exhibit 206 at VII-4), which contradict the Board's conclusion regarding the timing of this aggressive action.
The two statements in the CAT Report clearly reflect the fact that the aggressive action occurred prior to the CAT's investigation.
An inspector from a different inspection area reported previous threats, which resulted in the craft person making the threats being removed from the project.
Aside from the ongoing investigation, it was revealed that aggressive action was taken by management to prevent inspector intimidation.
[NRC Exhibit 206 at VII-4 (emphasis added).]
Thus, Applicants submit that the Board is in error on this matter and should revise its Memorandum and Order to reflect the facts as they exist.
E.
Dismissal of Mr. Hamilton The Board's conclusions regarding the dismissal of Mr.
Hamilton are riddled with errors of fact and law.
The Board has weaved a scenario by leaping to conclusions that are unsupported by the evidence of record.
For example, the Board reached its j
conclusion regardir the motives for that dismissal, while totally ignoring cruvial exculpatory evidence of record and findings of a sister Federal agency that contradict and demand
~
reversal of the Board's conclusion.
In fact, the Board raises for the first time (over a year after litigation of the matter) new issues which none of the parties or the Board (as then empanelled) considered present.
As a consequence of this novel interpretation of the evidence, the Board's conclusions regarding s
r-
-n.
.,.,n
,-,e, - -.. -.,
,,,~.,n
,,--.r--,~
the dismissal of Mr. Hamilton are not only factually and legally unsupported,_but are internally inconsistent.
Applicants address below each of the errors in the Board's analysis and move for reconsideration.
1.
Context of dismissal The Board states (Memorandum and Order at 17) that it disagrees with Applicants' characterization of the dispute over Mr. Hamilton's dismissal as being a matter of the occupational safety of performing a given inspection.
The Board has made clear errors of fact and law in this regard which it must correct.
Despite clear evidence to the contrary, the Board apparently would restructure the context in which Mr. Hamil to n' s dismissal was litigated to be an issue of dismissal under Section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. $ 5851 44)l4, rather than a matter (Memorandum and Order at 19, n.
concerning a disagreement over the occupa sional safety in the workplace.
By taking this course, the Board refashions the issues involved to the point' where they bear no resemblance to the questions the Board (as previously constituted) and parties litigated over a year ago.
Thus, the record on which the Board 14 Although the Board apparently claims to analyze the dismissal of Mr. Hamilton as a matter concerning the adequacy of Applicants' OA/OC program, it fails to specify the portion of the Commission's regulations governing the OA/OC program under which it has reviewed this matter.
Applicants submit that the analysis performed by the Board is principally one o f whether Mr. Hamilton was dismissed for engaging in a
" protected activity," a matter not addressed in this record, and in any event, that is governed by Section 210 of the Energy Reorganization Act and over which the Department of Labor is vested with sole jurisdiction, as the Board recognized.
A
purports to base the conclusion that the grounds for the dismissal of Mr. Hamilton were pretextual affords no support for that finding.
This approach so perverts the adjudicatory process that it deprives the Applicants, the bearers of the burden of proof, of even their most basic right to a fair proceeding consistent with due process.
It is patently unfair and an error of law for the Board out of nowhere to conclude that the issue litigated by the parties (occupation safety) is not the real issue implicated by the evidence.
That approach substitutes the Board for the intervenor in framing and trying the issues, a role totally inconsistent with the objectivity this Board is supposed to retain.
To assure itself that it is error to try this issue as a matter other than occupational sa fety, the Board should examine the context of the testimony presented, cross-examination and Board questioning.
Doing so, the Board will first observe that Mr. Hamilton's concerns regarding his dismissal focus entirely on the question of whether the inspection could be performed safely (CASE Exhibi t 65 3 at 7-10).15 Mr. Hamilton specifically stated that whatever injustice he felt was done was founded on the risk 15 The closest Mr. Hamilton comes to suggesting any other basis for his dismissal is a claim that he felt like the inspection was an " excuse" to dismiss "three people who were doing their job."
He based this conclusion on the assertion that not everyone who would not perform the inspection was fired.
(CASE Exhibit 653 at 26.)
However, as shown below, the circumstances in those other instances not only are unclear but have little bearing on the question of Mr. Hamil to n' s dismissal.
Beyond that, two other inspectors who refused to perform the same inspection were also discharged.
(CASE Exhibit 6 53 at 10).
1
- i..
he felt he was being asked to take (CASE Exhibit 653 at 11),
clearly an issue of occupational sa fe ty.
In addition, the Board should cannot ignore that Mr. Hamilton pursued legal remedies through the Occupational Safety and Health Administration
( " OS HA") exclusively (CASE Exhibit 653 at 9), and admitted that j
when he spoke in his testimony of concerns for " safety" he was referring to occupational safety (Tr. 3497). -Further, all cross-examination concerning Mr. Hamilton's dismissal focused only on the occupational safety question (Tr. 3492-97), and the Board did not even pursue his dismissal in Board questioning (Tr.
3520-25).
Thus, the record clearly demonstrates that the issue raised and litigated concerning Mr. Hamilton's dismissal involved only occupational safety.
For the Board now to recast the issues in its own mold is a clear error of law that should be corrected.
Nevertheless, because Applicants strongly believe the Board has committed nanerous errors in its analysis, and wishing to address specifically the findings made by the Board, we address belcw e
each error of fact or law in the Board's analysis.
2.
anployment history The Board commits clear errors of fact and law in reaching i
conclusions regarding Mr. Hamilton's employment history.
(Memorandum and Order at 17).
The Board errs first in making any affirmative findings on the basis of the absence of contrary i
i evidence.
As described above, the issues as framed and litigated concerned the occupational safety of the inspection Mr. Hamilton i
was asked to perform.
Thus, the Board should not expect t
i
?
Y
21 -
extensive record evidence on Mr. Hamilton's employment history, and certainly should not draw negative references from its absence.
Further, because it was undisputed that failure to perform the inspection was grounds, without more, for dismissal
( CASE Exhibit 6 53 at 8 ), it would not be surprising (even if there had been evidence concerning the matter one way or the o ther) that Mr. Hamilton did not make a practice of refusing to perform such tasks.
Thus, the absence of evidence regarding that employment history is neither surprising nor an appropriate basis for the Board to draw contrary inferences.
The Board should correct this error by withdrawing its findings regarding Mr.
Hamilton's employment history.
3.
Resolution of inspection The Board commits an error of fact in concluding that
" applicant easily resolved its operatio.'al problem [the conduct of the inspection] by having workers from another shift inspect the area" (Memorandum and Order at 18).
The Board cites in support of this conclusion a statement by Mr. Hamilton that past inspections "probably most likely" were conducted by the night shift (CASE Exhibit 653 at 9).
Such obviously vague testimony regarding past practices is irrelevant and provides no basis for the Board to reach an affirmative conclusion as to feasibility or propriety of future practices.16 Accordingly, the Board should 16 If anything, the evidence of record suggests just the opposite conclusion as that drawn by the Board.. Mr. Hamilton testified that his supervisor intended to conduct the inspections with the day shift and that he knew for sure
~
scaf folding was not erected after his discharge (CASE Exhibit
( footnote continued)
. 6 correct this error by withdrawing its finding regarding the eventual method of inspection.
4.
Treatment of other inspectors The Board makes two egregious. errors of fact regarding Applicant s ' treatment of others who refused to perform this inspection.
First, the Board erroneously finds that two other workers who refused to conduct the same inspection were not discharged.
Second, the Board totally ignores the fact that two other inspectors besides Mr. Hamilton were fired for refusing to perform the inspection.
(Memorandum and Order at 18.)
first error is with respect to the Board's finding that The other workers who refused to inspect the same area were not i
discharged, citing Mr. Hamilton's testimony at page 26.
Mr.
Hamilton refers to two individuals as having refused to perform the inspection but who were not discharged.
However, his testimony regarding the first individual ("the man in the shop")
is contradictory and thus, untrustworthy.
Specifically, Mr.
Hamilton's previous testimony regarding that individual was, as follows:
Q.
He was not asked to walk the rail and do the inspection?
A.
No.
( footnote continued from previous page) 653 at 10; Tr. 3496-97).
In addition, the Boa rd fails to even address the fact that numerous people had performed various tasks (both painting and inspections) on the same rail without the scaffolding Mr. Hamilton thought should be erected.
See Applicants Objections at 31.
i
~ - - -
O.
He was not fired?
i A.
No.
[ CASE Exhibit 6 53 at 10. ]
Mr. Hamilton's testimony on this matter is, at best, therefore, inconsistent.
Such conflicting testimony certainly should not serve as the basis for the conclusion the Board reaches.
As for the other alleged incident of an inspector on the night shift refusing to perform the same inspection and not being fired, we note only that a bare assertion, without any evidence regarding the facts surrounding that particular incident, is insufficient as a matter of law for the Board to conclude, as it evidently has done, that Applicants' actions with respect to Mr. Hamilton (as to which there is considerable evidence) were unwarranted given the treatment of that other individual.
The most disturbing error coinmitted by the Board with respect to its findings concerning the treatment of other inspectors is its failure to recognize, let alone discuss, the 1
undisputed facts that (1) two other individuals who also refused to perform the inspection were also dismissed, and (2) all of those individuals recognized, before even communicating their refusal to perform the inspection to their supervisors, that they would be subject to termination.
(CASE Exhibit 653 at 8.)
It is clear and reversible error for the Board to fail to consider such uncontroverted evidence that fully rebuts the Board's conclusions regarding Applicants' treatment of similar incidents.
This m---g y,
n
-e,+
u
,-nw n
---3,-
-g.r-
.,y e-,.e m
p.,
,se v+e
-n-v
failure is particularly egregious because the evidence the Board relies on is vague, inconsistent and incomplete.
We submit the Board should recognize its error and correct the same by making a clear, affirmative finding that the weight of the evidence demonstrates that Applicants' policy regarding failure to perform assigned tasks was clear and known to their employees and was consistently applied.
To conclude otherwise would conflict directly with the evidence of record.
4.
Effect of OSHA determination Although ostensibly finding that it is bound by OSHA's determination that the area which Mr. Hamilton refused to inspect was safe ( Memorandum and Order at 18-19), the Board errs as a matter of law by imposing its own concepts of safety by concluding that Mr. Hamilton's fears were " legitimate" and thus should not have been treated by Applicants as grounds for termination.
The Board's error is founded on its assertion of authority over matters of occupational safety and its insertion j
of its own concepts of proper management into the proceeding.
l l
The Board clearly indicates that it considers the areas involved in the subject inspection to be unsafe.
However, given the finding of OSHA, the cognizable Federal agency, to the contrary, the Board's conclusion is error as a matter of law.
l Specifically, the Board not only characterizes Mr. Hamil ton' s j
fears as " legitimate, but premises its astonishing conclusion that the grounds for Mr. Hamilton's dismissal were "pretextual" in part on the " physical description of the area."
(Memorandum
_,,-y-p.-
y-
.o-
,r-.,.
.,-<v..
,-e
,-.7,-
. and Order at 19.)
The Board thus effectively ignores the finding of OSHA regarding the safety of the inspection area, discarding it as a mere " legal conclusion."
1 This Board has itself previously found that it is bound by 4
the decision of the Department of Labor in the Atchison matter.
I In fact, the Board admits it is bound by the decision of OSHA here.
However, the ef fect given the two decisions is far from equal.
While the Board has not refrained from using the DOL decision (even though under appeal) against Applicants at every opportunity, the OSHA decision (which was never appealed) is simply brushed aside as a legal nicety.
Such disparate treatment of agency decisions is improper as a matter of law.
The Board should afford full force and ef fect to that OSHA determination, which is supported by Mr. Hamilton's own testimony as to the determination by Applicants' Safety Department on the safety of the subject inspection area (CASE Exhibit 653 at 8, 9).
l In addition, that the Board itself might be afraid to conduct the inspection, or believes Mr. Hamilton's fear was justified, is simply irrelevant.
The Board errs as a matter of law in asserting that Applicants have no right to require personnel to perform tasks within their scope of employment.
Indeed, Applicants twice evaluated the area for sa fety in response to Mr. Hamilton's concerns and twice determined it to be safe (CASE Exhibit 653 at 8, 9).
The OSHA determination confirms i
the correctness of those determinations.
Nevertheless, the Board would still have Applicants overlook this refusal of three f
,v, - -.,
-,,--,,_s,
.-_,-,.-,.p,
.__-,.mm
--,m-
,,.,-r,,-.-.,-.ren..w-.
,we-.---e,-,
--.-r-.
-,v--.
m-.,--
yr,,.-
. inspectors to perform an inspection in an area properly and correctly deemed safe, an act the inspectors acknowledged was grounds for dismissal.
The Board's conclusion to the contrary is unsupported by fact or law, and should be stricken frou the Memorandum and Order.
5.
Pretextual determination The Board has committed serious errors of law and fact in finding that the reasons for Mr. Hamilton's dismissal were "pratextual"
( Memorandum and Order at 19).
While Applicants consider this an issue that was never raised and should not even be considered by the Board, we address each of the errors below.
We believe that upon closer examination of the record and its own analysis, the Board will reconsider its finding and determine that Mr. Hamilton's dismissal was proper.
Each of the " findings" relied upon by the Board to which Applicants object is addressed below.
a.
safety of inspection area The Board identifies as a primary reason for its "pretextual" finding, the " physical description of the area" that was to be inspected (Memorandum and Order at 19).
Ne have already addressed in the previous section the errors made by the Board regarding the sa fety of the inspection area.
Suffice it to say that the Board erred both with respect to the overall conclusions regarding safety (both by even making such a determination and with the determination itself) and the right of Applicants to dismiss employees for their re fusal to per fo rm (as I
1
" un sa fe" ) tasks which were determined to be safe by Applicants and OSHA.
Accordingly, this premise for the Board's "pretextual" finding is in error and should be stricken.
b.
" matters of courage" The Board states that another basis for its conclusion that the reasons for Mr. Hamilton's dismissal were "pretextual" is the
" previous record concerning matters of courage" ( Memorandum and Order at 19).
Although not specifying what these matters were, the Board apparently refers to Mr. Hamilton's testimony that he did not alter the manner in which he performed inspections as a result of the alleged " nit-picking" remark by a supervisor, which the Board found "smounts to a statement that he has the courage to withstand management suggestions even when pressured."
(Memorandum and Order at 14. )
Such gratuitous compliments serve little purpose in determining as a matter of law whether Applicants properly dismissed Mr. Hamilton.
As we have previously discussed, Applicants had valid reasons for discharging Mr. Hamilton which the Board failed to consider properly.
In addition, the Board simply fails to identify any facts which indicate there was a nexus between that incident and Mr.
Hamilton's dismissal.
In fact, the Board admits that it is "not sure what the true motivation for dismissal was" but " consider ( s) it likely that it was related to the ' nit-picking' meeting" (Memorandum and Order at 19).
Such speculation is totally unsupported by the evidence and is legally insufficient to
establish either an independent motive for the dismissal or to overcome the undisputed testimony of Mr. Hamilton himself as to
.the reasons for his termination.
Further, the Board should note that the evidence of record is that the " nit-picking" incident occurred at least 5-6 months prior to Mr. Hamilton's dismissal, in that the individual who called that meeting left Comanche Peak in October, 1981, and thus could not have been involved in the dismissal.17 Thus, to consider such a remote event to have any bearing on the dismissal is a clear error of law.
In addition, Mr. Hamilton repeatedly testified that the supervisor who held the " nit-picking" meeting never instructed that inspectors who were identifying problems should be fired (CASE Exhibit 653 at 46).
Thus, the evidence of record actually contradicts the Board's unsupported speculation that management would have inspectors dismissed for identifying deficiencies.
In sum, both of the Board's primary reasons for its "pretextual" conclusion are unsupported and, in fact, contradicted by the weight of evidence of record.
Thus, the Board erred as a matter of law in reaching that conclusion.
17 The record is clear that Mr. Hawkins, the individual who called the meeting (CASE Exhibit 653 at 43), left Comanche Peak in October 1981, 5-6 months prior to Mr. Hamilton's discharge (Tr. 1824).
u 29 -
i c.
postulated motivation The Board errs as matters of law and fact in postulating Applicants' motivations for dismissing Mr. Hamilton.
(Memorandum and Order at 19.)
We have already demonstrated that it is legally insufficient for the Board to reach the conclusion it does when the Board admittedly "is not sure what the true motivation for dismissal waa" and can only speculate as to what it considers to be the "likely" motivations, particularly in the face of uncontroverted evidence which contradicts the Board's conclusion.
It is simply improper for the Board to draw the inferences it does in the face of direct, positive testimony to the contrary unless that testimony is internally contradictory or inherently improbable.
NLRB v.
Cutting, Inc., 701 F.2d 659, 665 (7 th Cir. 1983).
In addition, we have already discussed the factual errors in the Board's determination that the " nit-picking" incident was a factor in Mr. Hamilton's dismissal.
Accordingly, we are left with only one other alleged " motivating" factor, viz., Mr. Hamilton's penchant for discharging
" insufficiently productive quality assurance inspectors."
As discussed below, this finding simply provides no logical support for a finding that Mr. Hamilton was dismissed for improper motives.
The Board apparently suggests that Mr. Hamilton's dismissal was related to his firing of unproductive workers.
However, such a conclusion makes no sense for two reasons.
First, if Mr.
Hamilton's supervisors sought to urge inspectors to become more
I efficient in their inspections, then Mr. Hamilton's discharge of insuf ficiently productive personnel obviously would be favored by Applicants.
On the other hand, if the Board's rationale obtains, and the intent of Mr. Hamilton's supervisors was to discourage inspectors from identifying deficiencies, then the discharges by Mr. Hamilton also would be favored because those reductions in force would further that intent.
In addition, the Board has failed to consider Mr. Hamilton's own testimony regarding the manpower situation, which is that his supervisors, in fact, believed that the paint inspection day shift was overstaffed (CASE Exhibit 653 at 46).
Thus, it is inconsistent to conclude, as the Board does, that Applicants would dismiss Mr. Hamilton for reducing his staff.
Further, as previously noted, Mr. Hamilton repeatedly testified that he was never instructed to fire people for identifying de ficiencies (CASE Exhibit 653 at 46).
Thus, the evidence of record is that Mr. Hamilton's personnel practices did not concern the inspectors' identification of deficiencies.
In short, the Board's rationale for concluding that there was a relationship between Mr. Hamilton's dismissal and his own discharge of unproductive workers does not square with the facts.
Instead, the Board should find that whatever disagreement occurred over Mr. Hamilton's hiring practices, had no bearing on his dismissal.
I
- 31 5.
Relevance to Atchison decision The Board erra as a matter of law in finding a parallel i
between Mr. Hamilton's dismissal 'and the Department of Labor l'
finding regarding Mr. Atchison's dismissal (Memorandum and Order at 19-20).
These matters are Wholly unrelated.
Mr. Hamil to n' s discharge concerns the refusal of an individual to do his job on occupational safety grounds that were determined by the Federal agency charged with the responsibility in this area to be un fo unded.
For the many reasons described above, that dismissal 1.
had no relationship to the question of identification of safety l
defects.
There is no connection between those events and the alleged improper dismissal of Mr. Atchison.
The Board should find that as a clear matter of law, it erred in finding any relevance between Mr. Hamilton's dismissal over an occupational safety question and the DOL determination regarding Mr.
Atchison's dismissal under Section 210 of the Energy Reorganization Act.
F.
Near White Blast The Board commits an error of fact in concluding that the I
evidence of record does not demonstrate that procedures were in effect at Comanche Peak which establish standards for near white j
blast.
The Board errs in finding there was an " inadequacy of the procedures [in this regard] during an extended period of time."
(Memorandum and Order at 20. )
An examination of the record reveals that Mr. Hamilton's allegation concerned only changes to l
procedures which occurred in " September or October of 1981."
l
.. ~
-~.
. (CASE Exhibit 653 at 18.)
In addition, to demonstrate that Mr.
Hamilton erred in claiming that "there are now" no procedures or standards concerning near white blast, Applicants provided the procedure in e f fect at the time Mr. Hamilton le ft Comanche Peak, which' clearly contains the standard which he claimed did not exist.18 Thus, the evidence of record clearly shows that Mr.
Hamilton was wrong in his representation under oath regarding the existence of the near white blast standard in procedures in effect at the time he left Comanche Peak.
The record also shows that whatever changes to procedures were of concern to Mr.
Hamilton were made only a few months before the procedure presented by Applicants went into effect.
Thus, the Board's finding that the record indicates there was an " extended period o f t ime" when these procedures did not exist is contrary to the evidence of record.
The Board's conclusion in this regard should, therefore, be revised.
Mindful of the Board's request that we limit our objections to clear errors of fact or law, we will not burden the Board with more evidence regarding these procedures.
However, we note that Applicants will provide, as requested by the Boa rd, an update regarding the results of the coatings reinspection program.
This update will demonstrate the adequacy of the protective coatings at Comanche Peak and resolve any concerns the Board may have which-arise from the allegations concerning near white blast standards.
18 See Applicants' Objections, Brandt Affidavit at 2.
G.
Maximum Roughness As requested by the Board, Applicants will provide a report on the results of the coatings reinspection program.
This report will denonstrate that whstever concerns the Board may have regarding allegations of inspections for dry film thickness are un found ed.
H.
Westinghouse Coatings The Board erred as a matter of law in finding that the vague and unsupported allegation of Mr. Hamilton that a Westinghouse coated item failed an adhesion test he conducted satisfies the intervenor's burden of going forward.
This finding is inconsistent with NRC case law, this Board's own standards for disposing of issues, and the evidence of record.
Accordingly, Applicants move the Board to reconsider its conclusions regarding the adequacy of Westinghouse coatings.
Just recently the Appeal Board reaffirmed the duty of intervenors to establish a prima facie case before an applicant need respond to its claims.
The Appeal Board stated as follows:
The ultimate burden of proof on the question of whether the permit or license should be issued is, of course, upon the applicant.
But where, as here, one of the other parties contends that, for a specific reason * *
- the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention.
Once he has intro-duced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license.
[ Louisiana Power & Light Co.
(Waterford Steam Electric Station, Unit 3),
ALAB-7 3 2, 17 NRC (June 29, 1983, slip op.
at 24), quoting Consumer's Power Co. ( Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973) ( footnote omitted). ]
The reaffirmation of these principles by the Appeal Board in Waterford is significant because it again upholds the " threshold test" established in Midland and its progeny Which requires that intervenors satisfy an evidentiary burden When raising an issue before the Board.19 The intervenor has introduced no evidence to support Mr.
Hamilton's naked assertion regarding the adhesion test.
He failed to provide any details regarding either the purported test or tested component.
Mr. Hamilton did not even identify (or claim to have written) an NCR on the item.20 Such a complete absence of evidence regarding this matter is legally insufficient to establish even a prima facie case.
In addition, we note that this Board has previously recognized that vague allegations, made by a lay witness and unsupported by any evidence of record, are 19
- See, e.g., Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1008, reconsideration denied, ALAB-166, 6 AEC 1148 (1973); remanded on other grounds, CLI-74-2, 7 AEC 2, reaffirmed, ALAB-175, 7 AEC 62 (1974), a f f' d sub nom. Citizens for Sa fe Power v. NRC, 524 F.2d 1291 ( D.C.
Cir. 1975); Commonwealth Edison Co. (Zion Station, Units 1 and 2 ),
ALAB-226, 8 AEC 381, 388-89 (1974);
Philadelphia Electric Co. (Limerick Generating Station (Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975)).
20 Applicants note that Mr. Hamilton's apparent failure to file an NCR regarding a known nonconforming condition violates Applicants' procedures.
In that Mr. Hamilton testified that he was not aware of any problems he considered to be important and significant to safety that still existed and that had not been corrected (Tr. 3520-21), the absence of detailed testimony on this allegation indicates the Board should accord little weight to the vague and unsupported allegation.
insufficient ta satisfy the burden of going for aard.
(See e.g.,
Proposed Decisien at 21).
Accordingly, the Bo ard should conclude that it has erred as a matter of law and that the intervenor, in fact, has not met its burden of going fo rwr. d. 21 The Board further erred as a matter of law in finding that there is a potential safety problrA to this complaint.
While intervenor did not sustain its '>urden of going forward on this allegation, Applicants neverthaless did demonstrate to the Board that a thorough and ef fective QA program is applied to the Westinghouse coe.ings ( Applicants' Objections at 40-42).
That evidence lies unrebutted by any contrary evidence except for the vague and unsupported claim of Mr. Hamilton.
21 We must briefly comment on another aspect of the Board's findings on Applicants' arguments regarding the failure of the intervenor to meet its burden of going forwa rd.
The Board comments that it is not enough to characterize a complaint as vague "or to demean the character" of the witness to satisfy the Board that there is no substance to the complaint.
As discussed above, Applicants maintain that it is an error of law to find this vague and unsupported allegation establishes a prima facie case.
However, we are also distressed by the Board's comment that Applicants have d emeaned the character of the witness.
Such offhand remarks (the Board identifies no part of the record in which Applicants demeaned the witness' character) serve only to demean the character of the Applicants by implying that Applicants would improperly comment on the character or credibility of a witness.
Applicants are unable to identify any instance in which they even commented on Mr. Hamilton' s character.
Applicants are particularly distressed because the Board has previously made similar injudicious remarks regarding Mr. Reedy (which it later withdrew and promised not to make in the future) and does so in at least two instances in this Memorandum and Order.
We can only urge the Board to exercise judicial restraint in offering such of fhand and unsupported remarks.
They are highly prejudicial to Applicants in the public's eye and are grossly unfair.
Any continuation of such a practice cannot help but create an appearance of bias and favoritism which we trust plays no role in this Board's decision-making process.
Applicants of course retain full responsibility for the effectiveness of their and their contractors' OA programs.
There is no reliable and probative evidence that suggests these programs have not been ef fective with respect to this matter.
In this instance, the allegation is simply legally and practically insufficient to trigger any reasonable concern for the adequacy o f those programs.
It would be an absolute travesty for this Board to trigger some major reanalysis of the adequacy of the entire Westinghouse QA program or any portion thereof solely on the basis of this witness' observation that paint on We stinghouse-supplied items looked different and his claim to have conducted a single, undocumented adhesion test.
The Board is bound by the precept of law that an intervenor must sustain its burden of going forward before the burden shifts to the applicant.
The Board has committed legal error here in not finding that intervenor failed to meet its burden of going fo rward.
Accordingly, the Board should find that it erred as a matter of law in denying Applicants objection.
I.
Plug Welds The Board committed an error of fact in finding that the
" plug" welding which was the subject of these allegations is related to Section NF-4429 of the ASME Code.
As described below, that Section applies to a different welding process than that which is the subject of these allegations. Accordingly, the Board should correct its error and sustain Applicants' objections.
l.
The confusion here arises because of a confusion in terminology.
The welds that were questioned by intervenor were referred to by intervenor's witness as " plug welds."
In order to maintain a common point of reference in this contention, Applicants' testimony also re ferred to " plug welds."
- However, the Board should note that Applicants' testimony ( Applicants' Exhibit 141 at 35-36) placed the term " plug weld" in quotations, as we do in our objections when referring to the absence of a Code provision governing the type of welding in question
( Applicants' Objections at 48).
By doing so, Applicants were attempting to distinguish the cosmetic fillet welding involved in this allegation from the type of structural plug welding described in the Code.
The Code provision governing plug welding i
refers to welds of holes where full structural integrity and strength need be retained.
Specifically, such welds are used to transmit shear stresses in lap joints, to prevent buckling of lapped parts or to join component parts of built-up members (See ASME Code, Appendix XVII, Section 2453 and Figure XVII-3230-1, item 27 (slotweld.))
Thus, as Applicants' testified, and the intervenor has not disputed, the " plug welding" referred to by the intervenor's witnesses involves "the fillet welding of holes which are drilled in incorrect locations in structural shapes" (Applicants' Exhibit 141 at 36).
Accordingly, the Board's error is one of fact, which results in a legally deficient conclusion that should be revised.
i J
l
,,,--,-n
_v,
+,-..+-,,---c--
-en
When this issue was tried, two of the three Board members now sitting were not involved.
At the time it seemed clear to all in the hearing room that Applicants had established beyond any doubt that the welding in question was cosmetic fillet welding to fill (or " plug") holes in baseplates governed by the Code.
Certainly we were left with the impression that Judge McCollom fully understood the distinction.
We are frankly troubled by the fact that this matter, on which the Applicants presented uncontroverted expert testimony, should gave rise to I
any Board question (long after it was litigated to the apparent satisfaction of the Board members sitting at the time), let alone the leveling of wholly unwarranted criticism on Applicants' wittnesses.22 The Board should recognize its error and accept Applicant s ' objections as fully dispositive of this allegation.
22 Applicants also object strenuously to the Board's statements that Applicants' Objections " succeeded in muddying the waters further" and criticizing Applicants' experts for not knowing of the Code provision di'scussed by the Board.
At the outset, the Board should rest assured that Applicants' experts knew of the Code provision and would have discussed it had it been relevant to the issue.
However, Applicants are legitimately concerned not only by the Board's willingness to imply that Applicants failed to address a relevant portion of the ASME Code, but by the Board's refusal to acknowledge or accept the proper evidentiary weight to be afforded the undisputed testimony of Applicants' expert witnesses, particularly vis-a-vis the testimony of intervenor's lay and/or incredible witnesses testimony.
As a matter of law, Applicants testimony overcame whatever burden of going forward the intervenor satisfied and established by the clear preponderance of the evidence that the allegations were un fo und ed.
Applicants trust the Board will in future decisions more carefully assess and allocate weight to expert testimony.
We believe the Board's attempt here to apply the Code independently underscores the wisdom of long-established
( footnote continued)
J.
Downhill Welding The Board has committed an error of law in failing to sustain and adopt Applicants' objections to the Board's findings on downhill welding (Memorandum and Order at 26-28).
Specifically, the Board has failed to assign the proper weight to the respective testimonies of Messrs. Brandt and Stiner.
Accordingly, Applicant s ' move the Board to reconsider this por*. ion of its Memorandum and Order and to sustain Applicants' objection.
The Board properly concludes that Applicants' arguments concerning the credibility and motivations of the intervenor's witnesses have merit, although the Board declines to assign no weight (as urged by Applicants) to that testimony and instead finds that that testimony should be accorded "some weight" (Memorandum and Order at 27).
The Board goes on to find tha t Mr.
Brandt's testimony is "more credible than that of Mr. Stiner."
(Memorandum and Order at 28.)
Yet incredibly the Board declines to accept Mr. Brandt's undisputed sworn statement that he is aware of no evidence that improper downhill welding occurred at Comanche Peak.
In addition, the Board failed even to acknowledge Mr. Brandt's testimony ( again undisputed) that downhill welding described by Mr. Stiner was proscribed by procedure and a welder would have had to violate willfully those procedures (an act which is grounds for dismissal) to perform such welding.
( footnote continued from previous page) evidentiary principles affording greater weight to expert testimony than lay testimony on such technical issues.
~.
Applicants thus have presented a reasoned response to the Board's questions regarding this allegation, and the Board's finding to the contrary is simply unsupported by the record.
Given this testimony and the fact that as the Non-ASME QA/QC Supervisor Mr.
Brandt was obviously in a position to be aware of whether improper downhill welding practices had occurred at Comanche Peak, the L should find that as a matter of fact and law, the allegations of Mr.
ner concerning downhill welding raise no safety concern.23 23 Applicants object strenuously to the Board's implications regarding the credibility of Mr. Brandt.
The Board errs in asserting that as an employee of Applicants, and because he previously did not make the statement that he was not aware of any evidence of improper downhill welding, Mr. Brand t' s credibility is somehow undermined.
This finding is unfounded and the Board should retract its statements in this regard.
The Board's implication that employment by Applicants reduces the credibility of a witness is clearly without merit and improperly impugns the integrity of every employee of the Applicants.
Mr. Brandt has testified fully and truthfully under oath in this proceeding.
His expertise in the areas in which he testified is unquestioned.
His efforts to assist the Board in resolving a vague and unsupported allegation by supplementing his prior testimony to respond to this Board's questions (we note the Board sitting at the time this issue was tried appeared to be satisfied with the response to these allegations) have been disrespectfully swept aside simply because that testimony is new.
We are disheartened by the Boa rd' s stubborn refusal to accord Applicants' witnesses' testimony even a modicum of the deferrence given the intervenor's witnesses.
We are further disheartened because this instance of impugning Applicants' witne s se s' character is not the first time this has occurred.
See Memorandum and Order (July 6, 1983) at 8, n.
3.
The Board withdrew its remarks in that instance (see Memorandum and Order (Motion for Clarification on Thermal Stress in Pipe Support s) ( August 19, 1983)) and we urge it to do the same here.
~.
- 41 K.
Weld Rod Control The Board errs as a matter of fact and law in failing to sustain Applicants' objections to the Board's dispositon of these allegations.
Applicants address each of these errors below.
First, the Board errs in finding that there is " specific, available in fo rmation" regarding the alleged " practice" of inadequate weld rod control at Comanche Peak, as to which the Board would have Applicants pursue in some unspecified manner.
We note first that despite a careful analysis by Applicants of each aspect of the weld rol control allegation ( Applicants' Objections at 51-58) the Board does not provide a single citation to the record in support of its claim that " specific, available information" was presented.
Applicants submit that as a matter of law it is inadequate for the Board to brush aside Applicants' reasonable and specific arguments regarding this allegation without having even considered those arguments.
A careful review of those arguments will demonstrate that as a matter of fact and law the allegations should be found to be meritless or to already have been addressed by Applicants.
The Board further errs as a matter of law in determining that the Intervenor need not identify " specific instances" of inadequate weld rod control to sustain its burden of going forward to establish a " practice" of inadequate control (Memorandum and Order at 29-30).
As previously discussed, to satisfy its burden of going forward, the intervenor must put forward sufficient evidence to establish a prima facie case.
. That the allegation concerns a " practice" does not relieve the Intervenor (as the Board would do) of this obligation and, by definition, would certainly require evidence of more than a single incident.24 In sum, the evidence of record does not establish a prima facie case regarding a practice of inadequate weld rod control.
To the contrary, the record demonstrates that the isolated incidents ( the occurrence of which certainly would not be unexpected in view of the extensiveness of welding activities) of inadequate control have been properly identified and documented by QC.
The record also demonstrates that procedures were in place to assure the proper use and control of weld rods.
- Thus, the record shows that the practice at Comanche Peak was to control weld rods, and Where those rods were not adequately controlled, they were identified in the normal course of the OA/OC program.
This situation is no different from the allegations which were disposed of by the Board based upon evidence that the OA program detected and documented the d e fic ienc es.
See e.g.,
Proposed Initial Decision (Concerning aspects of construction quality control, emergency planning and 24 The Board also errs in concluding that testimony concerning these procedures does not rebut evidence of a contrary practice.
As Applicants discussed in their Objections, procedures were in place to control not only weld rod issuance, but weld rod usage.
Thus, (as already recognized by a former Board member) the intervenor also had the burden of going foward to establish (by a prima facie showing) that welders improperly used the uncontrolled rods.
The only evidence submitted on that matter involved an instance in which an NCR had been written, thereby demonstrating the effectiveness of the QA program.
. Board questions), at 46-47.
Accordingly, Applicants move the Board to reconsider its Memorandum and Order to correct the above-described errors of fact and law.
L.
Unstated Management Directive The Board commits errors of law and fact in reaching its decision on this matter.
The Board errs in concluding that Mr.
Atchison' s " impressions" were corroborated by the Department of Labor decision.
As Applicants discussed in their Objections, the basis for this " impression" was two meetings (one involving QA and the other the craft) at which schedule was discussed.
The Board totally ignores the testimony of Mr. Atchison himself that the QA meeting could simply have been an appropriate managerial meeting, and the craft meeting would not have resulted in any inadequate construction since it was subject to the QC process.
See Applicants' Objections at 76-77.
The only aspect of Mr.
Atchison's testimony regarding this impression which the Board does discuss is the question of whether the number of NCRs of each inspector was tracked, the answer to which was "no,"
thus discrediting Mr. Atchison's testimony that filing too many NCRs was not fa.vored.
The Board would turn this testimony around to indicate that by not formally tracking each inspector's output of NCRs Applicants had insulated themselves from criticism in this regard, yet could still monitor that information.
The obvious fallacy of the Board's analysis is that it places Applicants in a
" Catch-22" situation, viz., Applicants are wrong if they do track an inspector's output of NCRs and wrong if they do not.
- Thus,
. the Board's analysis of this matter is in error as a matter of law in that it fails to address clear and convincing evidence
( testimony by the same person making the allegation) contradicting the Board's conclusions, and the analysis it does perform is simply an unfair twisting of the facts to reach a wholly unsupported negative conclusion.
M.
Rock Overbreak The Board commits errors of fact and law in determining that the manner in which Applicants described in their FSAR the rock overbreak which occurred during excavation for the foundation at Comanche Peak constitutes a " material false statement."
We move the Board to reconsider its conclusions regarding the alleged material false statement.
In the first instance, Applicants' FSAR was not in evidence at the time (1975) the rock overbreak occurred.
This fact, without more, establishes the flat factual error in the Board' s finding that Applicants failed to amend the FSAR to include the rock overbreak matter.
Second, when the FSAR was submitted to the NRC in 1978, the rock overbreak matter was discussed, including photographs and figures describing the conditions. The FSAR is in the record ( Applicants' Exhibit 3) and thus the Board errs in stating that there is a void in the record.
In any event, the Board errs as a matter of law in concluding that Applicants failed to comply with the full disclosure principles governing applications for an operating license.
Specifically, the FSAR is not intended nor is it
required to contain all information regarding a given topic.
Ra ther, the FSAR need contain information describing with reasonable specificity each matter addressed therein.
It is appropriate for the FSAR to include by reference material which provides further detail and description.
In other words, the FSAR is not a self-contained document which must include within its four corners every piece of information regarding a given topic.
Thus, Applicant s ' description in the FSAR (see Sections 2.5.4.5 and 2.5.4.12) of the excavation and backfill for Comanche Peak, including the description of the rock fracture during excavation (and associated figures and photographs (see FSAR page 2.5-122, Figures 2.5.4-33 through 2.5.4-37) adequately describes the overbreak for the FSAR.
In addition, Applicants expressly state in the text of the FSAR that "all other fracture maps and photographs are part of the permanent construction records [at Comanche Peak] which are available for review from Texas Utilities Services Inc."
(FSAR p. 2.5-122)
Thus, Applicants description and full disclosure of the information available regarding the overbreak in no way constitute a material false statement under 10 C.F.R.
$50.100, contrary to the Board's finding.
Acco rd ingly, the Board should reconsider its Memorandum and order with respect to the issue of rock overbreak and withdraw its finding that Applicants' description of rock overbreak in the FSAR constitutes a material false statement.
. Applicants feel compelled to make one last point.
The Board stated that "[ f]ailure to amend the FSAR reflects adversely on the seriousness with which applicant takes its obligations as an applicant for a licensee."
Memorandum and Order at 38.
This is such an inaccurate and inappropriate statement that frankly it leads Applicants to seriously question the fairness and impartiality of this proceeeing.
Applicants have conducted themselves with high integrity and professionalism throughout the licensing and construction of Comanche Peak and throughout this operating license proceeding.
When the Board publishes such serious (yet un founded) charges against Applicants, the unfairness undermines the reputation of Applicants.
The Board should make no mistake that the damage done by such charges cannot be undone by a mere correction in a later issuance.
As we have advised the Board in the past, the favorable information in this proceeding has generally been ignored by the news media and the unfavorable information highlighted.
This is not the first time that this has happend in this case, but we implore the Board to make it the last.
By the mere stroke of the pen, the Board can seriously impail the respected reputation that these Applicants have earned over many years of reliable service and responsible conduct.
The Board must recognize the inherent power that it possesses and wield it carefully, so that such unfair and unfounded criticisms are avoided in the future.
47 -
II.
CONCLUSION For the foregoing reasons, Applicants move the Board to reconsider the findings and conclusions in its Memorandum and Order, and to revise those findings and conclusions consistent with the above motion.
Respectfully submitted, M
GMAO S/wM Nidholas S.
litt/ holds t
~
Jf st William A.
Horid DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.
W.
Washington, D.
C.
20036 (202) 857-9817 Counsel for Applicants October 6, 1983 s
,_.-,-._m,
-. ~,
--,.m,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION MfTED BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.
13 OCT ~7 A9:38 h[h'FSELti In the Matter of ANCH TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445 and COMPANY, et al.
)
50-446
)
(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' Motion For Reconsideration Of Memorandum And Order (Emergency Planning, Specific Quality Assurance Issues And Board Issues),"
in the above-captioned matter were served upon the following persons by deposit in the United States mail, first-class postage prepaid or express delivery (*) on the 6th dsy of October 1983, or hand delivery (**)
on the 7th day of October 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 Commission Washington, D.C.
20555 Washington, D.C.
20555 Chairman, Atomic Safety and Dr. Walter H. Jordan Licensing Board Panel 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, *
- Stuart A.
Treby, Esq.
Architecture and Technology Office of the Executive Legal Oklahoma State University Director Stillwater, Oklahoma 74074 U.S. Nuclear Regulatory Commission Mr. John Collins Washington, D.C.
20555 Regional Administrator, Region IV David J. Preister, Esq.
U.S. Nuclear Regulatory Assistant Attorney General Commission Environmental Protection 611 Ryan Plaza Drive Division Suite 1000 Post Office Box 12548 Arlington, Texas 76011 Capitol Station Austin, Texas 78711
i 2
- Mrs. Juanita Ellis Mr. Scott W. Stucky President, CASE Docketing & Service Branch 1426 South Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C.
20555
\\
I AY
}f William A.
Horirt '
s cc:
Homer C. Schmidt Spencer C.
Relyea, Esq.
4 i
i 4
e i
d v
-