ML20079P908

Response in Opposition to Rockford League of Women Voters & Dekalb Area Alliance for Responsible Energy/Safe Alternatives for Future Energy Motion to Allow Testimony of J Hughes on Qa/Qc.Certificate of Svc Encl

ML20079P908
Person / Time
Site:	Byron
Issue date:	05/09/1983
From:	Becker B COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8305110215
Download: ML20079P908 (13)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARDlO 71

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50 5' x\ ) 50-455 (Byron Stathn, Units 1 )

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RESPONSE TO MOTION TO ALLOW TESTIMONY OF JOHN HUGHES Intervenors Rockford League of Women Voters and DAARE/ SAFE have moved the Board to allow the testimony of John Hughes on the issue of Quality Assurance / Quality Control.

Applicant Commonwealth Edison Company responds to the Intervenors' motion as follows :

As noted by the Intervenors in their motion, the Board has stated that it intends to treat the motion as a motion to reopen a closed record. Although Intervenors contend that the record on QA/QC has not been closed, with regard to testimony such as that of Mr. Hughes the record effectively is closed, and the Board's approach to Intervenors' motion is appropriate.

The Board devoted almost ten full days of hearings to QA/QC, and heard the testimony of witnesses tendered by both the Applicant and Intervenors, as well as the testimony of the staff of the NRC. At the close of this testimony, on April 11, 1983, the only open matter concerned the 8305110215 830509 -"

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I testimony of Michael Zeise. Due to a conflict in the testimony of Intervenor witness Michael Smith and Applicant witness Malcolm Somsag regarding the out-of-court statements of Mr. Zeise, Intervenors were given leave by the Board to subpoena Mr. Zeise. Thus, as of April 11 the record on Quality Assurance / Quality Control was closed except for the possible appearance of Mr. Zeise, whose testimony would relate solely to allegations already placed before the Board by Mr. Smith.1[

The fact that the overall record in the operating license proceedings had not been closed at the time Inter-venors offered the testimony of Mr. Hughes is immaterial and the Board is correct in viewing Intervenors' motion as a motion to reopen a closed record. As noted by the Atomic Safety and Licensing Appeal Board in Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station) ,

ALAB-138, 6 AEC 520, 523 (n . 12) (1973), the issue in reopening a record is not when the motion is presented; rather, "the question in each case must center on whether the matter could have been raised earlier." The considerations which militate against opening a closed record, articulated in 1/ Counsel for Intervenors and counsel for Applicant have been negotiating a stipulation regarding the testimony of Mr. Zeise, which would obviate the need for his appear-ance as a witness. It is believed such a stipulation will be executed within a few days.

Duke Power Company (Catawba Nuclear Station, Units 1 and 2) ,

4 ALAB-359 4 NRC 619, 620-21 (1976), apply regardless of the point in the proceedings at which the motion is made. Re-opening a closed record, regardless of whether the record is closed on all issues or whether the record is still open on issues unrelated to the motion to reopen, undermines the administrative process by impairing the ability of an administrative tribunal to render a timely decision. The inability of a tribunal to render a decision severly pre-judices the parties which have come before it seeking timely direction, thereby raising doubts about the viability of the administrative process to fairly adjudicate disputed issues.

The potentially detrimental effect on administrative decision-making of reopening a closed record is readily apparent here. In view of the vagueness of the allegations raised by Mr. Hughes, Applicant is faced with the prospect of i

having to call a number of witnesses before the Board in order to ensure that it meets each of the broad allegations.

Thus, full hearing on Mr. Hughes' allegations will require I

a significant amount of hearing time and may significantly delay the Board's decision. Moreover, Intervenors' recently-filed Application for Issuance of Subpoenas to additional witnesses indicates the extent of hearings contemplated by the Intervenors on this new matter. In addition, should Intervenors' motion be granted, Applicant may well seek

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appropriate discovery, with further delays in the timely resolution of this matter.

For the reasons set forth above, NRC tribunals have placed a heavy burden on movants seeking to reopen a closed record. Duke Power Company, supra. As Intervenors acknowledge in their motion, at page 2, the movant must demonstrate that 1) its motion to reopen is timely, 2) the subject of the motion raises a significant safety issue, and

3) reopening the record will likely change the result reached by the tribunal.

Intervenors have failed to satisfy these require-ments. First, their motion decidedly is not timely.

I Intervenors attempt to brush this issue aside, noting only that Mr. Hughes did not inform Intervenors' counsel of his willingness to be a witness until Sunday evening , April 24.

Yet Intervenors knew of Mr. Hughes and his allegations months earlier, in February; in his sworn statement of April 25, 1983, which is appended to Intervenors' motion, Mr.

Hughes asserts that he talked with Betty Johnson (Rockford League of Women Voters) and Stanley Campbell (DAARE/ SAFE) on or about February 1, 1983. Mr. Hughes states that at that time he did not want to appear as a witness because he l

wanted to " stick with" the NRC staff's investigation into his allegations.

Nonetheless, Intervenors knew of Mr. Hughes' t

l allegations, and if they believed that the allegations were l

significant they could have subpoenaed Mr. Hughes to testify during the QA/AC portion of the hearings. Having chocen not to do so, Intervenors should not now be allowed to bring Mr.

Hughes forward to testify. A hearing record customarily is reopened in a situation where the movant proffers evidence which genuinely is newly-discovered; that manifestly is not the case with regard to Mr. Hughes, and therefore Intervenors' motion does not meet the timeliness requirement. See,

Vermont Yankee Nuclear Power Corporation, supra.

Intervenors also have failed to demonstrate that the testimony of Mr. Hughes has safety significance. Mr.

Hughes' allegations, as set forth in his sworn statement, are too vague and unspecific to indicate whether they reflect existing safety problems at the Byron site. For example,

, as set forth in the Affidavit of Richard P. Tuetken, appended to this Response as Exhibit A, the weld configurations and i

characteristics which Mr. Hughes believes represent de-ficiencies could actually be within design specifications, depending on the particular welds. Furthermore, as Intervenors' a acknowledge, at page 3 of their motion, the allegations made i

by Mr. Hughes presently are being investigated by the staff l

) of the NRC.S! Moreover, as set forth in the Tuetken Affidavit, S/ At least a portion of the investigation of allegations involving Hatfield Electric Company is being conducted by the NRC Region III Office of Investigations, and

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a reinspection program which encompasses Hatfield welding already is in progress at Byron. This program will discover and remedy problems with welds such as those discussed by Mr. Hughes. Therefore, Mr. Hughes' allegations do not

' provide the Board with sufficient information to determine whether he raises ongoing, significant safety issues which warrant reopening of the record.

Intervenors likewise have failed to meet their burden of demonstrating that the so-called newly-discovered evidence will likely change the result of the Board's decision on the QA/QC contention. Intervenors barely allude to this requirement in their motion--they comment ,

that this requirement of a motion to reopen the record is not pertinent because the Board has not yet reac' ~ 4 a decision. Intervenors then state that, if the r- ,uirement i

does exist in the present context, they must demonstrate only that the testimony potentially would affect the Board's i

decision. Intervenors then refer to their discussion of the I

[ FOOTNOTE 2 CONTINUED FROM PAGE 5]

t it is this office which presently is in possession of the f documents which Mr. Hughes turned over to the NRC. Counsel j

j for the Applicant inquired of the Office of Investigations whether the Applicant could obtain access to the documents provided by Mr. Hughes, but was informed that the documents were not available to either the Applicant or Intervenors.

l The unavailability of these documents presumably would impair the ability of the Board to fully investigate the allegations made by Mr. Hughes.

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a .. -- - 6 safety significance of Mr. Hughes' testimony and conclude, ipso facto, that they have demonstrated that the testimony potentially would affect the Board's decision on QA/QC.

Intervenor's Motion, page 4.

In order to justify reopening the record on l

Quality Assurance / Quality Control Intervenors cannot rely on unsupported assertions of counsel and must demonstrate to the Board that the testimony of Mr. Hughes will be likely to change the result of the Board's deliberations. Kansas City Gas and Electric Company (Wolf Creek Generating Station, Unit

1) , ALAB-462, 7 NRC 320, 338 (1978). Intervenors have failed to meet their burden in this regard. Intervenors provide the Board with absolutely no indication that the testimony would be likely to determine the outcome of the QA/QC issue. Mr. Hughes' suorn statement provides little specificity: it does not identify the documentation Mr.

J Hughes allegedly signed off on without having performed the inspection work; it does not identify the specific location of the allegedly improper welding of a brace to a pressure i

pipe or of the welding of a cable tray support while cable remained in the tray; and it does not identify the locations

' of any welds with uneven profiles or excessive undercuts.

While such vague allegations may be sufficient at the initial hearing stage, they are not sufficient to justify reopening a closed record.

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In sum, Mr. Hughes' sworn statement provides no indication that his testinony would significantly alter the state of the present record. The Board has heard the testimony I

of the three witnesses tendered by the Intervenors; judging by his sworn statement Mr. Hughes' testimony, in terms of its tone and substance, would merely be cumulative of testimony already in the record. Moreover, Mr. Hughes was at the Byron site from October 1, 1982, to January 7, 1983, only; his testimony would be based on a mere three months on the i

job. The other witnesses by contrast, were at the job site for appreciably longer perieds of time.

For these reasons, Intervenors have failed to meet their burden of demonstrating that the QA/QC record should be reopened for the purpose of adding the testimony of John Hughes. Applicant therefore requests that the Board deny Intervenors' motion to reopen the record.

DATED: May 9, 1983 Respectfully submitted, l

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Bruce D. Becke'r

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One of the Attorneys for Commonwealth

) Edison Company Bruce D. Becker Isham, Lincoln & Beale Three First National Plaza Attorneys for Commonwealth Edison Company i Suite 5200 Chicago, Illinois 60602 (312) 558-7500

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AFFIDAVIT OF RICHARD P. TUETKEN I, Richard P. Tuetken, state on oath:

My name is Richard P. Tuetken. I am the Assistant Superintendent, Project Construction Department, at the Byron Station, and in that capacity I exercise supervision, both directly and through Commonwealth Edison Company engineers, of the contractors performing work at the station for Commonwealth Edison Company. Among the contractors that I supervise is Hatfield Electric Company.

i I am familiar with the allegations concerning welding made by John Hughes, as those allegations are set out in the handwritten statement submitted by Mr. Hughes to the Atomic Safety and Licensing Board on April 25, 1983.

The following paragraphs are in response to those allegations.

1. Because Mr. Hughes' assertions with regard to welding do not identify specific instances of the problems he raises, I can respond to them only in a general fashion.

With regard to Mr. Hughes' assertion concerning the welding of a brace ta a pressure pipe, such welding often is proper, for any number of reasons -- the configuration could be per design, the pipe could be temporary only, etc. If such a configuration were improper, subsequent inspections would identify the problem and resolve it.

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EXHIBIT A 4

2. Although Mr. Hughes asserts that he saw welds with uneven profile, excessive undercut, and " pinging of welds," the design specifications for such weld character-istics may be different than those Mr. Hughes found in his earlier employment. Without knowing the specific welds to which Mr. Hughes is referring, I cannot determine whether the characteristics discussed by Mr. Hughes are outside of design specifications.

3. In response to NRC Non-compliance Item 454/87-05-19, 455/82-04-19, which involves the certification of contractor quality control inspectors, Commonwealth Edison has undertaken to conduct a reinspection of the work performed by such inspectors of all Byron contractors, 1

l including Hatfield. It provides that for every fifth i

inspector each inspection performed by the inspector during his first three months on the job will be reinspected. If an inspector's work fails to meet the established accepta-1 bility level, the next three months of the inspector's work i

will be reinspected. If this work also fails to be accept-able, the original sample size of inspectors (20%) will be increased by 50%. This reinspection program includes review of Hatfield inspections, including inspections of welds. It now appears that an additional sampling of Hatfield inspec-tors' work might be required to be reinspected because of the possible failure of two Hatfield inspectors to meet i

acceptability criteria with regard to their inspection of welds. Any problems involving welds will be identified and appropriately resolved.

Richard P. Tuetken Subscribed and Sworn to before me this day of , 1983.

Notary Public i

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' ~ CERTIFICATE OF SERVICE The undersigned, one of the attorneys for Common-J wealth Edison Company, certifies that on this date he filed two copies (plus the original) of the attached pleading with i

the Secretary of the Nuclear Regulatory Commission and

served a copy of same on each of the persons at the addresses shown on the attached service list by United States mail, Express Mail, or Federal Express as appropriate, postage prepaid.

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Dated: . jE /fM I

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SERVICE LIST COMMONWEALTH EDISON COMPANY -- Byron Station

-Docket Nos. 50-454 and 50-455 TdTMr. Ivan W. Smith s Secretary I

l Administrative Judge and Chairman Attn: Chief, Docketing and l Atomic Safety and Licensing Service Section l Board Panel U.S. Nuclear Regulatory Commission i Room 428 Washington, D.C. 20555 East West / West Towers Bldg.

4350 East West Highway 4. Ms . Betty Johnson Bethesda, MD 20114 1907 Stratford Lane Rockford, Illinois 61107 4dp Dr. Richard F. Cole Atomic Safety and Licensing IP Ms . Diane Chavez Board Panel SAFE U.S. Nuclear Regulatory Commission 326 North Avon Street Washington, D.C. 20555 Rockford, Illinois 61103

+ Atomic Safety and Licensing S Dr. Bruce von Zellen i Board Panel Department of Biological Sciences U.S. Nuclear Regulatory Commission Northern Illinois University Washington, D.C. 20555 DeKalb, Illinois 60115 i 9tChief Hearing Counsel F Joseph Gallo, Esq.

Office of the Executive Isham, Lincoln & Beale Legal Director Suite 840 U.S. Nuclear Regulatory Commission 1120 Connecticut Ave., N.W.

Washington, D.C. 20555 Washington, D.C.

i 20036 4c Ihr. A Dixon Callihan 44x Douglass W. Cassel, Jr.

Union Carbide Corporation " '

Jane Whicher P.O. Box Y BPI Oak Ridge, Tennessee 37830 Suite 1300 i

109 N. Dearborn

, %M- Mr . Steven C. Goldberg Chicago, IL 60602 i Ms. Mitzi A. Young

,' Office of the Executive Legal fc Ms. Patricia Morrison Director 5568 Thunderidge Drive U.S. Nuclear Regulatory Commission Rockford, Illinois 61107

Washington, D.C. 20555 L?S Mr. David Thomas

+ Atomic Safety and Licensing 77 South Wacker Appeal Board Panel Chicago, IL 60621 U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 i

Via U.S. Mail Via Express Mail 0**

Via Messenger