ML20079N361

Brief in Reply to Applicant & NRC Answers to Palmetto Motion for Directed Certification of ASLB Denial of Discovery.Fair Hearing Should Be Held on Newly Admitted Contentions

ML20079N361
Person / Time
Site:	Catawba
Issue date:	01/25/1984
From:	Clewett J CLEWETT, J., PALMETTO ALLIANCE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20079N356	List: ML20079N354 ML20079N361 ML20079N370
References
NUDOCS 8401300194
Download: ML20079N361 (8)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COIMISSION BEFORE THE ATOMIC FF.FETY AND LICENSING APPEAL BOARD i

In the Matter of J 3

DUKE POWER COMPANY. et al. ] Docket No. 50-413 J 50-414 (Catawba N"< iear Station, 1 Units 1 .,d 2) )

__ J PALMETTO BRIEF IN REPLY TO APPLICANTS' AND NRC STAFF'S ANSWERS TO PALMETTO'S MOTION FOR DIRECTED CERTIFICATION OF LICENSING BOARD'S DENIAL OF DISCOVERY BY PALMETTO ON NEWLY-ADMITTED ISSUES.

In response to serious mischaracterizations of fact in the Applicants' and lE Staff's briefs opposing discovery by Palmetto Alliance on the newly-admitted quality-assurance issues in the above-captioned proceeding. Palmetto Alliance hereby submits its brief in reply to the Applicants' and Staff's filings.

One of the most serious misrepresentations in the Applicants' and Staff's briefs is that Palmetto Alliance has withheld evidence that is directly relevant to quality-assurance at Catawba, and that the names of the witnesses who came forward as a result of the Licensing Board's invitation to testify 1_n, ncamera

should have been providea oy Palmetto Alliance to the other parties as early l

as August 3. 1983. For example, on page 2 of the Applicants' January 3,1984

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brief in opposition to Palmetto's motion, the Applicants say that Palmetto

" refused to provide the informJtion" on August 3,1983.

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2-In fact, however, neither Palmetto Alliance nor its counsel d had an contact whatsoever with any of the witnesses who eventually use h camera, until October 3,1983, one day before the hear Sam Hunn, Jr. (who has now withdrawn his request for when Duke welder Nor confidentiality) took the initiative to contact Palmetto ht Alliance.

er did the Government Accountability Project (GAP) have any contac See attached EXHIBIT 1.

with any of these witnesses prior to October 3,1983.

Similarly, former welding QC inspector an affidavit from H $. Nunn, Jr. i Board Harry Langley first became known to Palmetto, GAP and the Lice itself when he stepped forward during the evidentiary hearings.

Far from withrolding evidence or impeding its h introduction Licensing Board, Palmetto has relentlessly struggled to fully a By contrast, the Applicants and the quality-assurance issues at Catawba. td Staff have consistertly resisted the production of evidence For example, in early 1983 the upon the quality of the Catawba plant. less than Licensing Board chastised the Applicant and the Staff for being forthcoming in disc 1csing the safety concerns of the more than 30 we k

QC inspectors w% hai raised issues of pervasive safety Power Company and to the NRC.

that Thus, it is simply wrong to say, as the Applicants and Staff f information it Palmetto has made any attempt to impede thef prompt the plant. release In o had access to that addressed the Question of the quality and h Applicants o fact Palmetto Alliance beiteves, and asserts, that it is t e Catawba that chills the the Staff that are responsible for the atmosphere at 4

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3 d at Catawba.

merkers from freely voicing safety problems they have discovere ticn By contrast. Palmetto and GAP have greatly facilitated the flo It was Palmetto's motion from plant workers about the safety of the plant.

for a protective order that led the Licensing Board to adopt the jn But the Licensing Board seems to be hearing procedure, which was a good start. ilcant's more interested in closing off the hearing process before i f the App fuel load date than in exploring the full significance of the test mo the in, camera _ whistleblowers:

Mr. Chairmcn I guess my understanding of ... the MR. GUILD:

Commission's policy was what I would describe as a rush to licensing done so that the unit is available for commercial operation. ...

The Commission ... Said to this board. "try to JUDGE KELLEY:

finish this procceding, except for offsite emergency p the time they load fuel.really, as far as these proceedings go about.

TR. 2391-92 (Detober it. 1983).

' briefs A second serious misrepresentation in the Applicants' l nt and S is the assertion that Palmetto has had a fair ld confirm the chanc evidence from Duke Power company documents and workers that co For example, the NRC Staff said testimony of the in camera whistleblowers. king "Further on page 13 of its January 5.1984 filing that Palmetto was see

• Formal Discovery."

t the In fact, there has been no formal discovery at all on th i ble issues four witnesses raised and that the Licensing Board accepted e

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8, 1983 through December 13, 1983, the same day in its rulings of December Palmetto made its initial request for discovery on the new issues Board had admitted into controversy.

A brief review of the evidence obtained to date by Palmetto will s h

how false is the assertion that Palmetto has had any adequate disc I

Not only was no formal discovery al.

newly-admitted issues in this proceeding.

lowed, but the Applicants and Staff refused on the record to allow on an informal basis. TR,11.457 (December 13, 1983). And whe the request was refused on the record for specifically-identified document" by the Applicants, and denied by the Licensing Board.

It was only after Palmetto filed its motion with the Appeal Board i

hearings had adjourned for the Christums holidays, a pected new sessio h

was scheduled for the end of January, less than a week after t e ex i

release of Staff technical positions on most issues, that the Licens ng Board expressly urged the Applicants and Staff to allow Palmetto to in informal discovery.

Even then, the Applicants and Staff only provided discovery Applicants provided very small proportion of the newly-admitted issues. ff only provided materials on only two of the five admitted issues, and the Sta

' Given the fact that the Applicants and materials on one of the five issues.

Staff have much better natural access toidence. the fact build its case. Applicant and Staff are effectively stonewalling the

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5-Even though the evidence available to Palmetto on'the newly-admitted issues has thus been very limited, and the time for Palmetto to review it has been very short, Palmetto has nonetheless found significant evidence that confirms the accuracy and serious safety significance of the testimony of the newly-discovered witnesses. Even the Staff's recent inspection report on the subject of the unrepaired laminar defects in containment plate and safety piping, as raised by witnesses Nunn and Langley, confirms that laminar discontinuities "are comon" in rolled plate s.aterial. But by reference to the recently-reinstated Duke Power Company construction procedure CP-88, one of the few documents given to Palmetto by Applicants, it is clear that no approved procedure was in effect or followed for either " mapping" the This extent of or repairing these voids in safety-grade steel at Catawba.

amply confirms the seriousness of the witnesses testimony, and raises even Other more questions about pervasive quality-assurance failure at Catawba.

examples could be cited as well, on the subjects of large undiscovered "honeycombing" in concrete, ineffective X-ray inspection of welds, the use of defective "TIG" welding .ods, and direction by craft foremen to perform faulty work.

These issues which Palmetto is being prevented from adequately examining as not trivial issues. Quality Assurance goes to the very heart of the question whether a nuclear power plant can be operated consistently with the Indeed, the Byron plant was recently denied an public health and safety.

operating license because of inadequate assurance that the quality of the plant met the legal minimum.

Even if the specific hardware problems raised by whistleblowers are shown to have been cured, there might still be inadequate assurance that a plant can be operated safely. In the words of an Atomic Safety and Licensing Appeals Board chaired by Judge Rosenthal:

Obviously, this inquiry necessitates careful consideration of whether all ascertained construction errors have been cured.

Even if this is established to be the case, however, there may remain a question whether there has been a heeakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components. A demonstration of a pervasive failure to carry out the quality assurance program might well stand in the way of the requisite safety finding.

Union Electric Co. (Callaway Plant Unit 1), _ NRC _, ALAB-74D (September 14,1983), slip op, at 2-3 (emphasis added). This decision was sent to all parties by the Licensing Board before the he'arings started, saying it would provide "some guidance in litigation of Contention 6."

In light of the severe restriction on discovery by Palmetto, however, Palmetto is unable to adequately address the Callaway standard of whether there has been a " pervasive failure to carry out the quality assurance program."

And even with that limited discovery, highly significant bits of evidence have been disccvered that suggest that there may be a " pervasive failure" of the QA program. The proper basis for interpreting this is offered by the recent case of Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), _ NRC _, LBP-83-81 (December 28,1983), slip op. at 31 (emphasis added):

To appreciate the significance of the deficiencies that this Board is about to note, it is important to realize that Mr.

Walsh and Mr. Doyle were only two people, with limited access to design documents even within their sphere of responsibility ... .

With this limited window on the design process, any problems that

7 they spotted and that applicant did not resolve may have impli-cations for the quality of design of the remainder of the plant.

-& Palmetto is faced with a Catch-22, in which it cannot discover whether the dozens of iceMrg-tips that it sees are connected to a genuine iceberg, because the Applicants, Staff and Licensing Board will not allow meaningful discovery.

The position of the Licensing Board is not mandated by the Commission's

" Statement of Policy on Conduct of Licensing Proceedings," 46 Fed. Reg. 28533.

Rather than requiring slavish adherence to the Applicants' announced schedule for loading fuel, the Policy Statement quite clearly shows that such goals must be subordinated to the public health and safety:

The Commission wishes to emphasize though that in expediting the hearings, the board should ensure that the hearings are fair, and produce a record which leads to high quality decisions that adequately protect the public health and safety and the environment.

In order to expedite a decision on its discovery rights, and thereby expedite the prompt and proper resolution of the hearings, Palmetto has moved now for its discovery rights rather than waiting until the record has already been closed. It is ironic that the Applicants and Staff, who profess to be concerned about speedy resolution of the hearings, would object to Palmetto's timing. The irony is heightened by the fact that the objections of the Applicants and Staff are not substantial. It is not enough to claim

%'that discovery matters are usually not subject to appeal. As stated by the

. Appeal Bcard in pennsylvania Power Co. (Susquehanna steam Electric Station.

Units 1 and 2), ALAB-613, 12 NRC 317, 321 (1980):

Questions about the proper scope of discovery are ... usually best conducted at the end of the case. The Coalition's petition, however, alleges matters more serious than run-of-the mill discovery disputes. Petitioner claims that the applicants and staff have

abused the dis:overy procedures in order to block its effective participation if not to drive it from the litigation. That charge is coupled with an allegation that the Licensing Board has abetted the scheme. The Coalition's allegations, if substantiated, would call into question the the integrity of Commission licensing pro-ceedings. These circumstances give us cause to look more fully into the situation. We do 50 in the exercise of our certification jurisdiction.

The hearing before the Licensing Board on the remaining technical issues raised by the newly-discovered witnesses is scheduled for Monday and Tuesday the 30 and 31 of January,1984, after which the record on these issues would close.

For the reasons stated above. Palmetto Alliance respectfully moves the Atomic Safety and Licensing Board to grant its motion of December 16. 1983, and grant an ooportunity for a fair hearing on the newly-admitted issues.

Respectfully submitted, q1 . -

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M J EWETT. ESQ.

236 Tenth Street. Southeast Wtshington, D.C. 20003 (202) 547-8323 ROBERT GUILD, ESQ.

2135 Devine Street Columbia. South Carolina 29205 Attorneys for Palmetto Alliance DATED: January 25, 1984

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