ML20080D447
| ML20080D447 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 02/06/1984 |
| From: | Burkley D METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20080D438 | List: |
| References | |
| 83-491-04-OLA, 83-491-4-OLA, ISSUANCES-OLA, NUDOCS 8402090129 | |
| Download: ML20080D447 (29) | |
Text
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b February 6, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
Before the Atomic Safety and Licensing Board In the Matter of )
)
METROPOLITAN EDISON COMPANY, ET AL.) Dccket No. 50-289-OLA
) ASLBP 83-491-04-OLA (Three Mile Island Nuclear ) (Steam Generator Repair) .
Station, Unit No. 1) )
LICENSEE'S MOTION FOR PROTECTIVE ORDER AND ANSWER TO TMIA'S MOTION FOR ORDER COMPELLING DISCOVERY Licensee respectfully moves the Board for an order pro-tecting Licensee's confidential proprietary information from disclosure to the public by intervenor TMIA, and providing that Licensee need not respond to TMIA's Document Request 22. Li-censee also opposes TMIA's request for an order compelling dis-closure of proprietary information without restriction on dis-closure to the public. In support of its motion and its opposition to TMIA's motion, Licensee states as follows:
I. INTRODUCTION AND STATEMENT OF RELEVANT PROCEEDINGS On January 13, 1984 Licensee responded to TMIA's First Set of Interrogatories and Request for Production of Documents to 8402090129 840206 DR ADOCK 0500028
o Licensee. Licensee's answer to the interrogatories included reference to a number of documents, all of which were provided l'
to TMIA, save those containing proprietary information.1/ As is the practice in licensing proceedings, and in accordance with its contractual obligations to the Babcock & Wilcox
("B&W"), the manufacturer of the steam generator tubes, Licen-see agreed to provide the proprietary information to TMIA, sub-ject to an appropriate protective agreement and protective order.
Accompanying TMIA's interrogatories was a broad request for production of documents. Many of the requests were so sweeping and non-specific as to be impermissible under the Com-mission's rules governing discovery. However, rather than ob-ject at that time, Licensee, in the spirit of cooperation and in the interest of expeditious completion of these proceedings, agreed to make available to TMIA for inspection virtually all of its files pertaining to the repair program. Again, Licensee agreed to disclose all proprietary information encompassed within these files, subject to a proprietary agreement and order.
1/ Of the 67 documents referenced in Licensee's answer (TR-008 and 66 other specified documents), 35 contain propri-etary information. Of these, 19 have been provided to TMIA with the proprietary information excised. The remaining 16 proprietary documents did not lend themselves to such excision and were not turned over-to TMIA.
9 Notwithstanding Licensee's offers of disclosure, TMIA has steadfastly refused to sign the proffered protective agreement.
Instead, on January 25, 1984, TMIA filed a motion for an order to compel production of documents containing proprietary infor-mation without any restriction on the documents' public disclo-sure. The motion seeks public disclosure of (1) "all documents or portions thereof which have been withheld from all parties, or from the intervenors, on the basis of the ' proprietary' or
' trade or commercial secret' information claimed to have been within the documents" (Document Request 22); and (2) 35 specif-ic documents or portions of documents identified by Licensee in its response to interrogatories, but not produced on the ground that they contain proprietary information. -
As we discuss in detail below, Document Request 22 on its face is so vague and overbroad that it is objectionable quite apart from the fact that it seeks proprietary documents.2/ For this reason, Licensee requests an order directing that no dis-covery be had in response to Document Request 22.
j Licensee, however, does not object to turning over to TMIA i
j the 35 specific propr2etary cincuments. To the contrary, Li-f censee has always been and continues to be quite willing to l
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[ 2/ Licensee, which had retained its right to object to this request in its January 13 response to TMIA's production re-quest, filed a timely objection to Document Request 22 on January 27, 1984.
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. turn.these over -- so long as TMIA is subject to a suitable protective agreement and order. Because TMIA has refused to sign an agreement, Licensee has no choice but request the Board to enter a protective order on its behalf. As Licensee demon-strates below, the imposition of such an order is warranted be-cause each of the specific proprietary documents (or portions of documents) requested by TMIA satisfies the criteria in the NRC regulations and case law for protection by the Board.
The relevant legal criteria also require that resolution of the issue of the proprietary status of these documents not delay timely completion of the amendment proceeding. Accord-ingly, Licensee additionally requests that the Board immediate-ly. issue a protective order, pending the ultimate resolution of
'the documents' proprietary status.
II. LICENSEE IS ENTITLED TO PROTECTION FROM HAVING TO RESPOND TO DOCUMENT REQUEST 22 Section 2.740(c) of 10 C.F.R. provides that "for good cause shown", the presiding judge may direct that " discovery
.not be had" in appropriate circumstances. Of particular sig-nificance.here, such an order is appropriate if the discovery request fails to satisfy the threshold requirement of being relevant to the admitted contentions. See In the Matter of Florida Power and Light Company (St. Lucie Plant, Unit No. 2),
9 NRC 164, 169 (1979); 10 CFR 5 2.740(b)(1) (discovery must be related.to subject matter of the proceeding). An order denying
. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . . _ _ _ _ _ . _ _ _ _ _ ]
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p discovery may also be entered if the burden involved in ccm-plying with the request is " undue". Although some burden is attendant to-the discovery process, the burden will be deemed
'" undue" if it'is "beyond_that normally necessary to identify the details of a party's' case and the sources of information upon which it intends to rely". In the matter of Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc., 10 NRC 597, 600 (1979).
There is ample basis to enter an order directing that dis-covery not be had with respect to Document Request 22, even putting.to one' side the documents' proprietary nature. As
-noted, Document Request 22 broadly seeks all documents which contain proprietary information. No attempt was made to iden-tify the' documents or their subject matter, or to relate the
-documents to any contention. To the contrary, TMIA has embarked on precisely the type of fishing expedition that 10 C.F.R.'$ 2.740(b)(1) is designed to prevent; it concomitantly has failed!to satisfy its threshold obligation of showing that the request is relevant. Licensee is therefore entitled to protection from having to respond to the request. See St.
Lucie Plant, Unit No. 2, supra.
The fact that proprietary documents are involved renders TMIA's broad and.non-specific request all the more objection-able. Because TMIA has not identified the documents or their su'bject matter, Licensee is hard-pressed to present arguments
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to counter this intervenor's concerns; the Board will be equal-ly impeded from making-a determination of the documents' pro-prietary status. It is precisely because of such difficulties that motions for disclosure of additional documents are re-
~
quired to identify the proprietary information in dispute, and to advance reasons why the information should be publicly dis-closed. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-600, 12 NRC 3, 10-11 (1980).3/ TMIA has failed to fulfill this threshold obligation as well. .
TMIA may argue that Licensee could protect the proprietary information sought in Document Request 22 by moving to protect every document conceivably subject to the request. But clear-ly, it would be unreasonable to require Licenstie to undertake the burden and expense of establishing through affidavits that all such documents are entitled to proprietary protection.
This is especially so given the ease with which TMIA could have obtained these documents -- merely by signing an agreement to maintain their confidentiality -- as well as the fact the
- documents may not even be relevant.4/
3/ TMIA may argue that this approach undermines the require-ment that Licensee explain why there is good cause for a pro-tective order to issue. This is simply not correct. Once Li-censee is aware of what documents are in issue (and assuming they are relevant), Licensee is of course obliged to explain why there is good cause to protect the documents; the point is simply that TMIA has failed to fulfill its limited threshold burden. See Diablo Canyon Nuclear Power Plant, Units 1 and 2, supra.
4/ The burden is also undue because TMIA's unfocused and all-encompassing request is beyond what is necessary to identi-(Continued Next Page)
TMIA's suggestion that it cannot fulfill its threshold identification obligations because it has "no idea" how many documents are being withheld and what the documents relate to (Motion to Compel at 3), is also untenable. If TMIA has no idea as to the number or contents of documents, it is because it has made no attempt to uncover this information. Ms.
Doroshow has never been to the discovery room. Ms. Bradford has been there only once. All documents potentially responsive to TMIA's far-reaching request, including proprietary ones, were in the discovery room at that time, and their contents would have been generally described to Ms. Bradford if she had so inquired.5/ She did not. Indeed, Ms. Bradford made no ef-fort to ascertain any information whatsoever as to any of these proprietary documents, and left the document room in less than an hour. No further attempts to examine documents have been made. In these circumstances, TMIA's claim of being unable to identify the documents should be rejected out of hand, and the (Continued) fy the details of Licensee's case or the sources of information upon which it relies. See In the Matter of Pennsylvania Power and Light Company, suora.
5/ In addition, Ms. Bradford was given an index to all docu-ments--both proprietary and non-proprietary--which were being produccd in response to the " specific" document requests (i.e.,
other than number 22). The index assigned each document a num-ber, and indicated the specific request to which it related, thus enabling her to select categories of proprietary documents she might wish to have identified with greater specificity.
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Board chould issue an order protecting Licensee from having to respond to Document Request 22.
III. THE 35 SPECIFIC DOCUMENTS REQUESTED BY TMIA ARE ENTITLED TO PROTECTION FROM PUBLIC DISCLOSURE A. The Information is Proprietary It is well established that commercial, financial and pro-prietary information is entitled to protection from public dis-closure in NRC licensing proceedings. Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit No. 1),
ALAB-327, 3 NRC 408, 416-18 (1976). Such protection is to be accorded proprietary information not only out of fairness to licensees, who, like Licensee here, are often contractually bound to maintain the information's confidentiality, but out of the jurisprudential concern that " unrestricted release of such private commercial information would tend to adversely affect the Government's own ability to gain access to similar informa-tion in the future. Ultimately, such release could seriously affect the thoroughness of (NRC) review of license applications and have an adverse effect on public health and safety."
Porter Co. Chapter of the Izaak Walton League of America, Inc.
- v. AEC, 380 F. Supp. 630, 634 (N.D. Ind. 1974).
The need to protect proprietary information from public disclosure except in very limited circumstances is incorporated into the Atomic Energy Act ("Act") itself. Section 103 of the Act provides that "All such [ technical and commercial]
-information may be used by the Commission only for the purposes
.of the common defense and security and to protect the health and safety of the public." 42 U.S.C. I 2133. This provision
. embodies "the longstanding congressional pol. icy which disfavors disclosure of proprietary information." Westinghouse Electric Corporation v. NRC, SS5 F.2d 82, 92.(3d Cir. 1977).
Thia congressional policy disfavoring disclosure in turn has been incorporated in the NRC regulations. Thus, 10 C.F.R.
I 2.740(c) provides that the presiding officer may enter a pro-tective order directing that " subject to the provisions of
$$ 2.744 and 2.790, a trade secret'or other confidential re-search development or commercial information not be disclosed or be disclosed only in a designated way." Section 2.790 sets forth five criteria for determinations whether information sought to be protected is a trade secret, or confidential or financial information:
(1) Whether the information has been held in confidence by its owner; (2) Whether the information is of a type customarily held in confidence by its owner and whether there is'a rational basis therefor; (3) Whether the information was trans-mitted to_and received by the Commission in con-fidence; (4) Whether the information is available in public sources; (5) Whether public disclosure of the in-
' formation sought to be withheld is likely to cause substantial harm to the competitive posi-tion of the owner of the information, taking
into account the value of the information to the owner; the amount of effort or money, if any, expended by the owner in developing the informa-tion; and the ease or difficulty with which the information could be properly acquired or dupli-cated by others.
Id. at $ 2.790(b)(4).p/
Submitted herewith for the Board's in camera examination are the 35 subject documents, along with affidavits from B&W attesting to the proprietary nature of the information.7/ A review of these documents and the accompanying affidavits will demonstrate beyond peradventure that the criteria of 6 2.790 are satisfied here.
Initially, it should be noted that in making the determi-nation to designate information as proprietary, Licensee has painstakenly reviewed each line of every document to ensure that the smallest possible amount of material is subject to re-stricted disclosure. Thus, of the 35 documents containing s/ Section 2.744 of the rules, which is also referenced in
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6 2.740(c), concerns requests directed to the NRC Executive Di-rector for Operations for NRC records or documents, and is hence inapplicable here.
The Wolf Creek case cited supra held that 10 C.F.R.
$ 2.790 is not applicable to allegedly confidential documents that have not been filed with the Commission. However, the es-sential criteria set forth in Wolf Creek for determining wheth-er such documents are proprietary were, subsequent to that de-cision, incorporated in 6 2.790 itself. See 3 NRC at 416-417 and n.11.
7/ Licensee has bracketed the proprietary information to highlight its location.
4 proprietary information, 17 have had removed no more than a few words or phrases which are peripheral to the issues here; two more documents are essentially intact. TMIA has been provided non-proprietary versions of all these documents. Only 16 docu-ments have been completely withheld. This was necessary due to the fact that the documents are either wholly proprietary or contain proprietary information which cannot reasonably be se-vered from the non-proprietary information.
The information for which protection is sought falls into two main categories: (1) information related to the cleaning and/or kinetic expansion repair process including materials, processes and design; and (2) test data which could disclose information related to the cleaning and/or kinetic expansion repair process. With respect to each word, phrase or test re-sult designated as proprietary on these bases, B&W has, in the related affidavit, verified that the information has been held in confidence, that it is of a type traditionally held in con-fidence by its owner and that there is a rational basis there-for (e.g., that the information reveals cost or price informa-tion, or consists of test data concerning a process which results in a competitive advantage to the owner), that the doc-uments were transmitted to and received by the NRC and/or the Board in confidence, and that public disclosure of the informa-tion is likely to cause substantial harm to the competitive po-sition of the owner. These averments by the supplier of the information are entitled to considerable weight. In the Matter of Northern States Power Company (Monticello Nuclear Generating o
Plant, Unit 1), ALAB-lO, 4 AEC 390, 398 (1978). But we are confident that if this deference were not owed B&W's averments, an item-by-item comparison by the Board would corroborate these conclusions.
TMIA's suggestion (Motion to Compel at 3) that the infor-mation sought to be protected is not of " clear financial impor-tance" and that "a commercial market (for the information) is hard to imagine" are at best naive. Although the circumstances surrounding the cracking of the TMI-1 tubes were not typical, the phenomena of IGA and IGSAC are not new or unique to TMI-1; kinetic expansion, moreover, has been used for years in the
. tube manufacturing process, and is recognized to be of great value.
The conclusion that this information is proprietary is supported by the Board's decision in In the Matter of Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2),
15 NRC 1307 (1982). There, the Board found that the disclosure of information relating to the Westinghouse sleeving process for the repair of steam generator tubes, and test data which could disclose such information, would subject Westinghouse to substantial competitive harm. 15 NRC at 1329-30. The Board accordingly protected the company from the release of the in-formation. For the reasons discussed above, the same result should obtain here.
B. TMIA Has Failed to Demonstrate that the Need for Public Disclosure Outweighs the Harm It I
Would Cause to Licensee and B&W Under relevant precedent, if the Board determines that the information in issue is proprietary, the information must be kept confidential "unless the Board further finds there to be counterveiling considerations militating in favor of public disclosure.which clearly outweigh the potential harm...which might inure from such disclosure." Wolf Creek, supra, 3 NRC at 418 (emphasis added). Accord, Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), 15 NRC 48, 51 (1982) (even if "there would be very little harm" to the owner if the information were released, it should not be released be-cause "its value to [the owner) exceeded its value to the pub-lic."); 10 C.F.R. $ 2.790(b)(5).
The sole counterveiling considerations proferred by TMIA are that restrictions on access to proprietary information "would hinder TMIA's ability to do research, eften conducted by relatively uninvolved TMIA members who at various times, with little or no notice, can offer research assistance. . . [and]
would create an entirely and extremely intimidating condition for TMIA members." These contentions ought not to even be cog-nizable, much less be considered to clearly outweigh the poten-tial harm to Licensee and B&W.
As the Coramission has repeatedly stressed, We start with the basic principle that a person who invokes the right to participate in an NRC proceeding also voluntarily ac-cepts the obligations attendant upon such participation...[I]t is reasonable to ex-pect intervenors to shoulder the same bur-den carried by any other party to a Commis-sion proceeding.
Duke Power Comoany (Catawba Nuclear Stations, Units 1 and 2),
17 NRC 1041, 1046-47 (1983). Accord, NRC Statement of Policy on Conduct of Licensing Proceedings, 13 NRC 452, 454 (1981).
It is patently the responsibility of every party to con-trol dissemination of information given to it in trust during the discovery process; indeed, in the vast majority of cases this responsibility is voluntarily assumed in order that the party can have access to all relevant information. TMIA should not be permitted to rest on assertions that it cannot shoulder this most basic of responsibilities. If it cannot assume the responsibility of protecting the documents, it should make do with the non-proprietary versions, which as we have noted, pro-vide virtually all the information sought by TMIA in any case.
4 Moreover, any dampening effect on research which may occur because TMIA relies on individual members who happen to wander in the office is solely attributable to its own inaction. TMIA should be able to ascertain in advance, through minimal effort, which members are willing to provide assistance so that they can be subject to the order.8/ Nor should " average citizens" 8/ It should also be noted that if Ms. Doroshow and Ms.
Bradford had signed the protective agreement proposed by Li-(Continued Next Page)
'be intimidated by an order that simply directs them not to dis-close information if, as TMIA' suggests, "none of.[them) would have any motive whatsoever to use such information outside this hearing context." (Motion to Compel at 2.)9/
IV. THE' PROTECTIVE ORDER SHOULD ISSUE, AND PROCEEDINGS SHOULD CONTINUE, PENDING DETERMINATION WHETHER THE PROPRIETARY INFORMATION SHOULD BE PUBLICLY DISCLOSED Although Licensee is confident that the Board will ulti-mately agree that the above-discussed documents are propri-etary, Licensee recognizes that it can be an arduous and time-consuming task to rule on the status of the disputed information. For this reason, Licensee is requesting that a protective order be issued pending resolution of whether the documents should be publicly disclosed. This will accord TMIA
.the access it asserts is "necessary for proper. resolution of
-[its)= contentions" (Motion to Compel at 3), while at the same
.(Continued) censee, other TMIA members could have had access to the docu-
.ments simply by signing the agreement. Ms. Doroshow was re-peatedly informed of this fact, contrary to her assertion that
" advance approval" was required under the proferred agreement (Motion to Compel at 2).
9/ TMIA's additional suggestion (Motion to Compel at 1) that Licensee is somehow unreasonable in seeking in camera hearings if proprietary information is to be introduced is equally
-untenable. .NRC regulations expressly provide that: "In camera
. sessions of hearings may be held when the information sought to be withheld is produced or. offered into evidence." 10 C.F.R. 6.2.790(b)(6)(iii).
. . _ _ - - - _ - . - - _ _ - - - - - _ _ - . - - _ - . . - - - - - - - - )
time protecting Licensee's proprietary interests. Equally as important, it will permit the proceedings to continue without yet another delav in the schedule.
This course of action is amply supported--indeed, mandated
--by the directives of the Commission. The Commission's Statement of Policy On Conduct of Licensing Proceedings ex-pressly states that delays in completion of licensing proceed-ings should be avoided "whenever measures are available that do not compromise the Commission's fundamental commitment to a fair and thorough hearing process." 13 NRC at 453. The issu-ance of a protective order pending final resolution whether the information alleged to be proprietary should be publicly dis-closed is plainly such a measure. In fact, the NRO regulations themselves " contemplate a resolution of proprietary information disputes after the merits are resolved in order to avoid delays in proceedings." In the matter of Wisconsin El-setric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1261, (1982).10/ Accord, In the Matter of Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), supra, 4 AEC at 390 (Board should proceed with in camera hearing without resolution of propr'etary status of data); In 10/ 10 C.F.R. $ 2.790(b)(6) provides that information claimed to be privileged may "be subject to inspection... under protec-tive order, by parties to a proceeding, pending decision by the Commission on the matter of whether the information should be withheld should be made publicly available."
9 the Matter of Wisconsin Electric Power Company (Point Beach Nu-clear Plant,. Unit 2), 6 AEC 152, 155 (1973) (Board declined to rule cn proprietary status prior to hearing because it "would necessarily involve the review of many documents and much data that might never be introduced in evidence and which would also delay the [ hearing).")
The regulations should be adhered to here. As we dis-cussed supra, TMIA's arguments as to why a protective order will impede its ability to defend its positions verge on the frivolous. Moreover, by merely agreeing to a course of conduct customarily agreed to by intervenors in other proceedings which would.not have waived its right to ultimately challenge the proprietary nature of the information, TMIA could have already been in possession of the proprietary information. A protec-tive order thus will not compromise the fairness of the hearing process. See Point Beach Nuclear Plant, Unit 2, supra, 6 AEC at 154, 164 (issuance of protective order without release of documents does not violate procedural due process, especially
- where an intervenor has declined to sign a protective agree-ment, review disputed documents, or raise specific objecticns to the Board.) It will, however, protect Licensee's legitimate interests in avoiding delays and the costs attendant thereto.
A protective order should therefore be issued.11/
11/ In order to assist the Board in the prompt entry of such an order, Licensee is submitting a proposed protective order (Continued Next Page)
s V. CONCLUSION JTMIA's motion for an order compelling discovery should be denied. / Licensee respectfully reques'ts that the Board immedi-
- ately issue the. attached order (1) directing that discovery not be had with respect to Document Request No. 22, and (2) pro-tecting.the 35 specific' documents from disclosure pending reso-lution of'whether these documents could be publicly disclosed.
The Boarc thereafter should' determine whether the 35 (Continued) herewith. That order lists the specific documents or portions of documents to be disclosed, and directs the manner in which the documents are to be protected. It also lists the specific individuals subject to the order. At this point, only Ms.
Doroshow and Ms. Bradford are listed, although Licensee of course has no objection to listing additional TMIA members or consultants. Licensee is otrongly of the view, however, that each person who is to be r.ccorded access should be listed by name (or sign an affidavit agreeing to be personally bound by the-order), in order that access be properly limited. This is
- especially warranted given TMIA's suggestion that it may be un-able-to maintain the confidentiality of the documents sought to be. protected. Finally, the order provides that no discovery
- shall be had in response to Document Request 22.
documents or portions of documents are entitled to protection.
-For the reasons discussed above, the Board should conclude that they are so entitled.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE George F. Trowbridge, b d .C.
Bruce W. Churchill, P. .
Diane E. Burkley Wilbert Washington, II Counsel for Licensee 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Dated: February 6, 1984.
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
METROPOLITAN EDISON COMPANY, ET AL.) Docket No. 50-289-OLA
) ASLBP 83-491-04-OLA (Three Mile Island Nuclear ) (Steam Generator Repair)
Station, Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Protective Order and Answer to TMIA's Motion for Order Compel-ling Discovery" were served this 6th day of February, 1984, Federal Express, hand delivery or by deposit in the U.S. mail, first class, postage prepaid, as noted on the attached Service List.
ul4 M Diane E. Burkley
l .
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
METROPOLITAN EDISON COMPANY, ET AL. ) Docket No. 50-289-OLA
) ASLBP 83-491-04-OLA (Three Mile Island Nuclear i (Steam Generator Repair)
Station, Unit No. 1) )
SERVICE LIST Sheldon J. Wolfe
- Atomic Safety and Licensing Administrative Judge Board Panel Chairman, Atomic Safety and U.S. Nuclear Regulatory Commission Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Docketing and Service Section (3)
Washington, D.C. 20555 office of the Secretary U.S. Nuclear Regulatory Commission Dr. David L. Hetrick ** Washington, D.C. 20555 Administrative Judge Atomic Safety and Licensing Board Joanne Doroshow, Esq.**
Professor of Nuclear Engineering Louise Bradford University of Arizona Three Mile Island Alert, Inc.
Tucson, Arizona 85271 315.Peffer Street Harrisburg, Pennsylvania 17102 Dr. James C. Lamb, III **
Administrative Judge Jane Lee Atomic Safety and Licensing Board 183 Valley Road 313 Woodhaven Road Etters, Pennsylvania 17319 '
Chapel Hill, North Carolina 27514 Norman Aamodt Richard J. Rawson, Esq. R. D. 5, Box 428 Mary E. Wagner, Esq. Coatesville, Pennsylvania 19320 office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal .
Board Panel U.S. Nuclear Regulatory Comission Washington, D.C. 20555
-* Hand delivery on February 7, 1984.
- Sent by Federal Express on February 6, 1984 1
o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~ Before the' Atomic Safety and Licensing Board
~In the Matter of )
)
METROPOLITAN EDISON COMPANY, ET AL.) Docket No. 50-289-OLA
) ASLBP 83-491-04-OLA (Three Mile Island Nuclear ) (Steam Generator Repair)
Station, Unit No. 1) )
PROTECTIVE ORDER It is hereby ORDERED that no discovery shall be had in re-sponse to intervenor TMIA's Document Request 22.
It is further ORDERED that for the duration of these pro-caedings Licensee shall disclose the proprietary information described below to Ms. Joanne Doroshow and Ms. Louise Bradford
(" Recipients"), . subject to the following conditions:
~1. The proprietary information to be disclosed to Recipients is contained in the documents listed in Appendix I to this order.
- 2. Recipients shall employ all reasonable ef-forts to maintain proprietary information disclosed to them secret and confidential.
- 3. Recipients shall not use the proprietary
.information for any purpose except as nec-essary for Recipients' participation in the above-captioned proceeding in connection
.with contentions, involving repair of steam
' generator tubes at Three Mile Island Nuclear Station Unit 1, admitted therein.
- 4. Recipients shall not transmit or further disclose proprietary information furniahed hereunder to any other person, including parent organizations of Recipient 7, sister organizations of Recipients, subsidiaries of Recipients, consultants of Recipients, or subcontractors of Recipients. Provided, however, that any member of TMIA or bona fide independent expert working with TMIA may obtain access to the information by submitting an affidavit to the Board stating that he or she agrees to be perron-ally subject to the jurisdiction of the Board as an agent of TMIA, and agrees to abide by the terms of this order.
- 5. Recipients shall not make any copy or in any way reproduce, excerpt, transcribe or disclose the proprietary information to be held in confidence hereunder except as nec-essary to provide members of the Board or other parties with copies of exhibits in-
-troduced into evidence in accordance with numbered paragraph 8 below.
1 I
-6. This order is not intended to infringe in
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any manner on the exclusive rights, title, and interest of Licensee and Babcock &
Wilcox in and to the proprietary informa-tion transmitted under this order. Nor does this order imply any rights under any
. Letters Patent to Recipients.
- 7. Nothing herein contained shall apply to any information:
- a. which is now generally known or avail-able on an unrestricted basis to the trade or public or which becomes so known or available on an unrestricted basis without the fault of Recipients;
- b. which is'already possessed by Recipi-ents in wniting without restriction to disclosure or.use prior to its receipt from B&W or Licensee;
- c. which is disclosed in any issued pat-ent, publication, or other source from and after the time it becomes general-ly available to the public; or
- d. which is acquired on an unrestricted basis from any third party, provided
.that Recipients do not know or have
reason to know and are not informed, subsequent to disclosure by such third party and prior to further unrestricted disclosure by Recipients, that such information was acquired under an obligation of confiden-tiality.
- 8. In the event that Recipients determine it is necessary to use, introduce, or present the proprietary information in evidentiary hearings in the above-captioned proceeding, the Recipients will provide reasonable no-tice of their intent to the Board and the Licensee. All papers filed in this pro-ceeding (including testimony) that contain any protected information shall be segre-gated and shall be:
- a. served only on members of the Board, a single representative of each party subject to this order (in the case of parties represented by counsel, on the lead counsel), and the appropriate representative of the NRC involved in this proceeding who is entitled to ac-cess to protected information; and
- . . __ ._ _ l
- b. served in a heavy, inner envelope bearing the name of addressee and the statement " PRIVATE, TO BE OPENED BY ADDRESSEE ONLY." Addressees shall take all necessary precautions to en-sure that they alone will open enve-lopes so marked. All hearing sessions during which proprietary information will be discussed or introduced shall be held in camera, and the transcript of such sessions shall be sealed.
- 9. Upon final termination of the proceedings, Recipients shall immediately return to Li-censee all data regarded as proprietary, including all extracts, summaries, tran-scriptions and copies thereof.
FOR THE ATOMIC SAFETY AND l LICENSING BOARD I l Sheldon J. Wolfe, Chairman {
ADMINISTRATIVE JUDGE l
t Dated this day of February, 1984.
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l i I~
00Cgr'E0 UM UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION'84 RB -8 A10:03 Before Administrative Judges:.y , __ , .. y Peter B. Bloch, Chairman .lIi!c" Dr. Kenneth A. McCollom Dr. Walter H. Jordan SERVED FEB 8 tgg,j Docket Nos. 50-445 In the Matter of 50-446 TEXAS UTILITIES ELECTRIC COMPANY (Application for Operating License)
(Comanche Peak Steam Electric Station, Units 1 and 2) February 8,1984 MEMORANDUM AND ORDER (Reconsideration Concerning Quality Assurance for Design)
This Memorandum and Order considers the motions of the parties to reconsider our previous Memorandum and Order (Quality Assurance for Design).I I. Applicant's Reconsideration Motion Applicant requests that we revise our Design Decision so that we make it clear that the evidentiary record is presently not adequate to determine whether Applicant's pipe support design process satisfies Appendix B(aviewyhichApplicantshares)andthatfurtherevidencewillbe requi red. "
I We adopt the tems we defined in our previous decision, LBP-83-81, 18 NRC (December 28, 1983) (Design Decision). All three motions for reconsideration were filed on January 17, 1983 and shall be referred to as Applicant's Reconsideration, Staff's Reconsideration, and CASE's Reconsideration.
2 Applicant's Reconsideration at 2.
8402090121 840208 PDR ADOCK 05000445 G PDR Ty=;C Z-
Quality Assurance Reconsideration: 2 Applicant's concern arises because it feels that it did not have ade-quate notice that this matter was being litigated and because we incor-rectly interpreted Applicant's Findings. We disagree.
First, we note that our findings were explicitly related to the burden of proof as reflected in our record. We acknowledged our lack of confidence that our record reflected the real world; hence, we permitted Applicant to submit a plan to increase this Board's confidence in the plant's design. Thus, Applicant will have an opportunity to demonstrate its compliance with the requirements of Criterion XVI of Appendix B.3 However, Applicant had not given us any basis for hedging our findings further. Our knowledge is limited to the evidentiary record, which is the basis for our findings, and we are required to make findings based on that record.4 We have done so.
If Applicant did not have a fair opportunity to demonstrate the adequacy o.f its quality assurance program, then we might agree to hedge the language we use in finding a deficiency. However, Applicant had an 3
Although our language suggested that Applicant and Staff thought Appendix B did not apply to design, a more accurate statement of the position of these parties was that Criterion XVI of Appendix B, which requires the identification and prompt correction of deficiencies, did not apply to design. Our decision could have been clearer on this point, but we believe the discussion in the decision adequately stated our concerns.
4 See Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-84-2, 19 NRC (January 13, 1984)(operating license denied based on the existing record).
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Quality Assurance Reconsideration: 3 abundance of opportunities to present its case and did not avail itself of them.
A. Relevant Background Our Design Decision sets forth the history of the Walsh/Doyle contention, but pertinent parts need be repeated to place Applicant's current claim in perspective. Based on testimony from Walsh and Doyle, CASE has argued that there were deficiencies in several design docu-ments. CASE also argued that Applicant had not completed nonconformance reports related to design documents and that it had not filed 10 CFR 9 50.55(e) reports of significant design deficiencies.
Applicant answered that the de'ficiencies found by CASE were in preliminary design documents and were of no significance because they would be corrected before the plant was completed. It also argued that Appendix B did not require it to complete nonconformance reports for design deficiencies.
In another matter, which seemed unconnected to this question, Applicant has even argued that Appendix B does not require that reports s called "non-conformance reports" or "NCRs" need be completed for con-struction deficiencies. This argument apparently is correct with respect to all deficiencies (including construction and design) because Appendix B, Criterion XVI, provides substantive criteria for identifying and correcting deficiencies but does not mandate any particular label for the reports concerning those deficiencies.
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S Quality Assurance Reconsideration: 4 B. Applicant's Ir.itial Argument With these contextual matters in mind, let us now set out in full the portion of Applicant's Findings that it would now have us interpret as arguing only that Appendix B does not require that any particular label be attached to nonconformances:
- 6. Documentation of "Nonconformances" With respect to the allegation that Nonconformance Reports
("NCRs") should have been written against pipe support designs which were found to be inadequate, the NRC Staff testified, and the Board agrees, that 10 CFR Part 50, Appendix B does not address inadequate designs but rather addresses the conformance of in-stalled hardware and the inspection thereof to the design. With respect to 10 CFR Part 50, Appendix B, Criterion III, concerning design control, that provision establishes review procedures, and does not involve reporting of nonconformances. (Tr. 6707-10.)
Accordingly, we find there is no requirement for the identification of inadequate pipe support designs as nonconforming conditions.
The iterative design process for pipe supports (including the internal checks in that process) discussed heroin supra,Section II.C.1, assures that inadgquate designs or unstable supports are identified and corrected.
C. Analysis We do not find this language to be consistent with Applicant's regulatory obligation. We consider the following language in Appli-cant's Findings to be clear: "
. . . Appendix B does not address inadequate designs but rather addresses the conformance of installed hardware and the inspection thereof to the design." The meaning of this passage, that the prompt identification of design deficiencies is not 5
Applicant's Findings at 27-28.
Quality Assurance Reconsideration: 5 required by Appendix B, was echoed by a statement that ". . . there is no requirement for the identification of inadequate pipe support designs as nonconforming conditions." This language concerns require-ments, does not place "non-conforming" in quotes and is, simply, an unqualified statement that Criterion XVI is inapplicable.
Our conclusion that Applicant has not interpreted Appendix B, Criterion XVI, correctly in this proceeding also is related to the general conduct of the case. CASE has attempted to show deficiencies in particular design documents. Instead of demonstrating the existence of a system to identify and correct deficiencies, Applicant chose to show that:
the designs raised by [ CASE's] . . . witnesses were taken from the initial stages of a carefully designed and comprehensive iterative design process and thus do not (nor were they intended to) refgect the quality of the final pipe support designs at Comanche Peak.
We do not consider this to be isolated language. It represents Applicant's litigation approach, in which the Staff concurred. There has been no recognition that errors in design documents are an indepen-dent concern, regardless of whether they may be corrected before the plant is completed. Each design document must be a quality document.
Although errors may be made, significant errors --particularly errors of which Applicant has been made aware through employee concerns and 6
Applicant's Findings at 18.
Quality Assurance Reconsideration: 6 litigation-- should be promptly identified, " documented", and corrected with reasonable speed.
We understand that Applicant now contends that it has such a s
system. However, the- adequacy of this system for documenting and correcting design deficiencies (and construction deficiencies resulting from the' implementation of deficient designs 7). has not yet been demon- -
str'ated8 add CASE will have an opportunity to litigate both the adequacy of- the system and the a 'quacy of its implementation.9 7 See CASE's Answer to Motions for Reconsideration, February 1,1984 TCKSE's' Answer) at 12, arguing that Criterion XVI of Appendix B requires a system for reporting al? construction deficiencies, including those caused by faithful adherence to a deficient design.
O Criterion XVI requires that conditions acverse to quality be promptly identified and corrected. Compare Applicants' Recor. sideration at 19, "significant conditions adverse to quality
.are identifitd." [ Emphasis added.]
Although Criterion XVI restricts the requirements to identify the cause of a condition and to docurant that condition to significant aeficiencies, 'the requirement to identffy conditions is not restricted by un of the adjective, "significant." We anticipate receiving evidence concerning how Applicant's system actually handles sqecific deficiencies that have been detected.
See C/Sh's answer at 17-19. In this regard, we recognize the prodisious effort put in by CASE's unpaid volunteers, but we urge it to assist Ethe Board (and the other parties) in being able to determine which aspects of prior exhibits bear on any new arguments presented by Applicant In particular, we require CASE to make a good faith effort to see that new filings be susceptible of being understood without numerous cross-references. The cross-references
'are necessary to document what is in the record, but the Board and parties cannot readily undertake extensive tours through already-filed documents without an explanation in a filed pleading of what CASE believes those documents stand for.
(Footnote Continued)
Quality Assurance Reconsideration: 7 It also is not clear how Applicant's design program complies with the requirement of Criterion I that " persons performing quality assur- ,
ance functions [for design] . . . report to a management level such that this required authority and organizational freedom, including sufficient independence from cost and schedule when opposed to safety considera-tions, are provided."
It is difficult for us to sympathize with Applicant's surprise that its compliance with Appendix B was being litigated. The contention being litigated is a quality assurance contention and the Walsh/Doyle design concerns were admitted as a portion of that broad contention.
Furthermore, these specific concerns about quality assurance for design were covered by Chapter XXV in CASE's Findings and Applicant had an opportunity to respond to those findings.
During the May 1983 hearings, both the Board and CASE asked ques-tions concerning the SIT Team's conclusion that Applicant would correct deficiencies before the plant was completed. Furthermore, as the Design Decision states, questions concerning the reporting of nonconfonnances were addressed in September 1982. At that time, Applicant did not argue that things labeled "non-conformance reports" were not required for design. It argued that, "The item unt%r consideration during design (Footnote Continued)
We also note that the Board appears to be more ready to admit its nistakes than are the parties. We encourage others to be more ready to admit their mistakes and to concede points erroneously decided in their favor.
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Quality Assurance Reconsideration: 8
-where you are going through an iterative process is not a nonconformance until you complete the design."10 Furthermore, immediately after this question on - nonconformances, Applicant elicited information from its witnesses concerning the use of CMCs, which it apparently considered to be a related question. At that time, Mr. Finneran's testimony about CMCs did not include the reporting of design -deficiencias as a purpose of that document.11 Although Applicant will be permitted to show that it has an ade-quate quality assurance system for design, we do not consider it appro-priate to modify any of our conclusions on this matter. Our conclusions fairly represent the state of the record.
D. Applicant's Argument About 550.55(e)
We found that the "need for prompt identification of deficiencies
[ pursuant to Appendix B, Criterion XVI] is consistent with 10 CFR Q 50.55(e)(1)" and that fulfillment of the l_ 50.55(e)(1) requirement to report significant deficiencies requires that the " ongoing quality assurance program for design . . . have the capacity to track and 10 Finneran agreed that "until design of the Reedy, Tr. 5185.
installation is complete, there is no nonconformance condition."
Tr. 5186. See also Taylor (Staff's Resident Inspector for Construction)Dr. T767: " Appendix B, in dealing with nonconforming conditions,- does not address nonconforming design. It only
- addresses the conformance of the installed hardware and the inspection thereof to the desfgn."
11 Tr. 5185-86.
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Quality Assurance Reconsideration: 9 resolve significant deficiencies on an ongoing basis."12 Applicant asks us to reconsider this position cnd to state that Q 50.55(e) "does not impose any requirements concerning the timing of activities under Appendix B."13 This we refuse to do. We have merely interpreted two sections of the regulations to be consonant with one another, a standard method of regulatory interpretation. The requirement for the " prompt" detection of deficiencies in Appendix B assures that significant defi-ciencies should be promptly detected and reported pursuant to 9 50.55(e). We fail to understand what other position Applicant would have us adopt.
E. New Arguments Applicant would have us rule that new arguments presented in Findings are to be disregarded. However, its basis for this argument rests on two flimsy legs: (1) that it is a basic characteristic of administrative procedure that a party have the opportunity to know and meet the argument of the other party,14 and (2) that Union Electric Company (Callaway Plant, Unit 1),18 NRC (September 14,1983), slip 12 See Applicants' Design Decision, slip op. at 5, 18 NRC at .
Reconsideration at 9.
13
_Id. at 9.
14 Applicant cites Davis, Administrative Law Treatise (1958) Q 7.01.
Applicant's Reconsideration at 17.
Ouality Assurance Reconsideration: 10 op. at 10, contains languagc suggesting the need to present "an analyti-cal disagreement" to an opposir.9 witness for his consideration.
The first leg of this argument presents a truism that is inapplica-ble in this proceeding. Applicant has had an opportunity to learn about CASE's allegations through discovery. It could have asked for a pre-hearing conference to discuss in advance the parties' positions. It could have asked for the advance filing of findings (as we have ordered for subsequent hearings) or a trial brief. It did have an opportunity ,
to file a reply to CASE's Findings. And if new arguments were made that required additional evidence, it could have moved to reopen the record for that purpose. We conclude that Applicant had an ample opportunity to know and respond to CASE's arguments.
As to the second leg of the argument, we find little factual support for the proposition that Applicant was prejudiced in any way by late-filed arguments and we do not interpret the Callaway case as barring new arguments in an intervenor's proposed findings.
Applicant has the following introductory remarks to make about its position that new arguments are barred:
The reason to foreclose new arguments is that Applicant was not afforded the opportunity to meet the new argument with responsive evidence or cross-examination. In addition, we have identified below three instances in which the B new arguments in reaching its conclusions.gdBecause clearly the relied on also Board relies on record material in deciding these questions, however, we 15
[ Footnote from Applicant's Findings:] See Memorandum and Order at 13, n. 35 (torsional moments in Richmond Inserts and shield wall thickness near the upper lateral restraint).
Quality Assurance Reconsideration: 11 do not ask the Board to reverse its conclusions but to revise them to reflect that a decision on these questions would be premature without affording Applicant an opportunity to respond.
In this passage, Applicant clarifies its position on new arguments. It does not claim prejudice from any arguments made by CASE in CASE's Findings. Its sole claim to prejudice is that it was not permitted to respond to arguments made by CASE in its reply to the affidavits filed by the Staff concerning open items left after our hearing session.
We note that both of the arguments to which Applicant alleges that it had no opportunity to respona were, as Applicant admits, based on record evidence. The arguments were clearly set forth by witnesses.
They related to open items that were addressed by Applicant in its Findings. Furthennore, Applicant was under a clear directive by this Board to address all (potentially significant) evidence, including adverse evidence, relevant to its proposed findings and conclusions.
Applicant had both the opportunity and the obligation to explain the relevance of the underlying evidence when it filed its findings. There was no lack of opportunity there.
In Applicant's Reconsideration, there was another opportunity to file arguments concerning these matters. With respect to axial torsion in the Richmond inserts, Applicant eschewed this opportunity to present any new arguments. It merely states that it has "obtained the indepen-dent opinions of outside experts on this point" and it asks the Board to I
Quality Assurance Reconsideration: 12 reconsider the record on this matter.16 With respect to the thickness of the wall near the upper lateral restraint, Applicant does not make any arguments at this time either. We find no prejudice to Applicant from this alleged lack of an opportunity to respond.
Nor do we find the citation of the Callaway case to be persuasive.
i In that case, the Appeal Board was considering an argument made in an intervenor's proposed findings, based on a citation to extra-record scientific material that could have been officially-noticed.I7 We applied the Callaway principle by refusing to rely on similar citations to scientific material in this case.18 The Appeal Board's language in Callaway related to a situation in which interyenors had presented no witnesses and had not even conducted cross examination. Callaway does not support Applicant's argument: that we must refuse to consider new arguments concerning evidence that is already in the record.
16 Applicant's Reconsideration at 41.
17 Callaway, slip op. at 10-11, 18 NRC at .
IO LBP 83-55, 18 NRC (September 1, 1983). We note that the Staff
" supports" Applicant's argument concerning Callaway but that its argument agrees with our interpretation of that case. NRC Staff Response to Applicants' Reconsideration, January 27, 1984 at 7. We note, additionally, that the Staff does not denonstrate prejudice to Applicant resulting from our 1:.terpretation. (See also Tennessee Valley Authority (Hartsville Nuclear PowerPlant),
ALAB-463, 7 NRC 341, 352 (1978), in which late-filed documents were considered by the Appeal Board because of their possible importance to public health.)
Quality Assurance Reconsideration: 13 We do not change our conclusion that, absent so;'ie procedural consideration not present in this case, proposed findings may make new arguments about record evidence.
F. Specific Factual Findings Applicant's Reconsideration requests changes in factual findings, based at t#:nes on entirely new arguments and evidence concerning matters that have been litigated. This is not proper in a Motion for Reconsid-eration, which is an extraordinary filing alleging error in a decision of the Board. A motion for reconsideration should not include new arguments or evidence unless a party demonstrates 6 that its new material relates to a Board concern that could not reasonably have been antici-pated.
Although we need not address in this decision any improper new arguments or evidence, we have chosen to address some of those arguments in order to communicate the Board's understanding of these matters and to facilitate the efficient progress of this case. There will be time to address these arguments more fully after new evidence is taken with respect to the Plan the Applicant is filing at the Board's request.
- 1. Mr. Michael A. Vivirito Applicant's request that-we revise our decision to be less critical of Mr. Michael Vivirito than we were in the Design Decision at 15, n.
- 37. After reading Applicant's comments and reviewing our decision, we conclude that some softening of our language is appropriate.
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Quality Assurance Reconsideration: 14
)
Mr. Vivirito was in many ways an impressive witness, with good control of technical matters and an ability to explain complex m,atters to us in a way that we could understand. His testimony concerning thermal expansion was particularly helpful to us.
Our concern with Mr. Vivirito's testimony is that he seemed at times to be too ready to dismiss matters as falling within his engineer-ing judgment, without providing the Board an adequate explanation. He also presentea to us some testimony that, while carefully described as "only background," nevertheless could have implied to Gibb's and Hill employees that Mr. Vivirito has some feeling that regulatory require-ments for seismic analysis are unnecessarily strict. Since we are aware of the importance of compliance with regulatory criteria and of the tendency of the industry to feel that it is over-regulated, we became uncomfortable with the statement Mr. Vivirito made to us. The statement l bore the possible meaning that Mr. Vivirito did not feel that rigorous compliance with seismic requirements was necessary to the safety of the plant and we were concerned that members of his organization could adopt this attitude, apparently held by a senior official of their company.
I Although we continue to be sensitive to this issue, we think we were overly critical of an isolated comment made in one portion of a lengthy regulatory proceeding. We do not have reason to believe that this single passage of testimony reflects an attitude that prevails at Gibbs & Hill. We expect that Mr. Vivirito's sincere efforts to 1isten to the Board's concerns and to assist us in our decision process is more
Quality Assurance Reconsideration: 15 reflective of Gibbs & Hill's attitudes toward regulation than was this one remark. We apologize for making too much of this one statement.
We are hopeful that this discussion will clarify the nature of our concerns. Accordingly, we will delete Footnote 37 from our publi shed decision.
- 2. Mr. Kerlin Applicant relies on extra-record materials to rebut the Board's finding that Mr. Kerlin had some supervisory responsibility. Although Applicant has not yet presented evidence on this point, we are confident that it will do so in order to establish its point. Similarly, Appli-cant has pointed out to us that we mistakenly attributed an incident that occurred at the Fast Flux Test Facility to the Comanche Peak facility.19 These factual errors occurred in a portion of our decision where we were trying to ascertain the first date on which Applicant was aware of possible instability problems. The result of this change of facts is, however, inconsequential. Our current best information about the first date of Applicant's knowledge is some time in 1981.20 Since there are no data in our record concerning how Applicant dealt with this 19 Applicant's Reconsideration at 20-21.
20 Design Decision, 19 NRC at , slip op. at 23, fn. 57.
D-Quality Assurance Reconsideration: 16 deficiency,21 and since the burden of proof is on the Applicant, we have no basis for concluding that it was handled in a reasonably prompt manner. We will have to await further evidence to reach a conclusion on ,
the adequacy of Applicant's system for promptly resolving design defi-ciencies.
In deliberating about this point, however, the Board has become aware that the entire matter of instability has been handled in an incomplete manner in our record. There are abstract discussions of the nature of pipe support instability, including hard-to-understand de-scriptions of a model that is not in our record, discussions about a pen standing on end, language about instabilities that exist only when a pipe is " missing" and other abstract discussions. What is needed is a review of a detailed, worst-case sample of about 5 of the 30 cases of instability investigated by the Staff. Then the Board will become informed in detail of the relationship between the design process and the stability of pipe supports. Some of the relevant issues are: (1) whether the forces and moments indicated by the initial pipe run analy-sis were met by the pipe design groups at the node points to which these supports were attached, (2) whether all required static and dynamic 21 Testimony of a Staff witness that the problem was " identified during the nomal design review process" does not establish that the problem was identified and resolved with reasonable promptness, particularly in light of the Board's findings concerning the adequacy of cinching-up U-bolts to prevent rotation. See Applicant's Findings at 46.
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l forces were considered, (3) the nature of the instability, including the conditions under which it would exist and the likelihood of those conditions occurring, '(4) the extent to which Gibbs & Hill was provided with all the information about the performance of the support that they needed for the purpose of doing a revised pipe run analysis and a local pipe stress analysis, (5) the reason that these supports were unstable, (6) how Applicant identified these instabilities and the process by which it resolved (or is resolving) them, including the paper trail of that process, and (7) the potential safety significance of these defi-ciencies.
The Board acknowledges that its conclusions about the adequacy of Applicant's program to identify analogous problems or to promptly correct design deficiencies was a conclusion based on a record that may have been incomplete. The Design Decision should be interpreted to be consistent with this statement.22 22 Our sumary of our own conclusion was that Applicant has "not demonstrated the existence of a system that prorptly corrects design deficiencies . . . ." Design Decision at 1, 18 NRC at .
Our conclusions were based on the evidentiary record as it existed.
See also Design Decision at 71 (bottom), 18 NRC at (acknowledging that further proof and analysis could cure the Poard's difficulties).
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Quality Assurance Reconsideration: 18 i
- 3. Walsh and Doyle Applicant states that it never intended to impugn the veracity of Walsh and Doyle 23 and have asked that we clarify that fact for our record, which we gladly do. When the Board stated that Applicant had used the limited role of the STRUDL group to question the credibility of Mr. Walsh and Mr. Doyle we might have more correctly stated that they used the limited role of that group in the total design sequence as a way of arguing that the testimony was entitled to less weight.
We also accept Applicant's request for clarification concerning the breadth of knowledge of Mr. Walsh and Mr. Doyle. It accords with our understanding that Walsh and Doyle had a limited vertical view of the entire support design process, by virtue of the function of the group' they worked in[, butj they had a broad horizontal view from which to observe a large number of support designs in the 2[ombined year and one-half they were employed in the STRUDL group We do not think that Mr. Walsh or Mr. Doyle disagree with this charac-terization.25 23 Applicant's Findings at 23-24. Compare, however, CASE's Answer at Doyle Deposition, p. 3. (We are not aware of the issue of the Circuit Breaker to which CASE refers, but we are confident that it will be brought to our attention when intimidation matters are litigated.)
L 24 Applicant's Reconsideration at 26.
( 25 It would appear to be time for the Staff and Applicant to confer in l detail with Mr. Walsh and Mr. Doyle about all the deficiencies they allege. See CASE's Answer at Doyle Affidavit, p. 4 (there appear to be further problems that Mr. Doyle and Mr. Walsh have not yet broughtup).
Quality Assurance Reconsideration: 19 On the other hand, we continue to believe that there would be serious repercussions for our confidence in the design of other portions of Comanche Peak were we to continue to be uncertain as to whether there were serious deficiencies in the design process for pipe supports or in specific designs for pipe supports.
- 4. Specific Stability Questions Applicant urges that we reconsider our finding 26 in which we questioned whether the rate of unstable NPSI supports would be similar to the rate of unstable supports by the other two pipe support design groups. Applicant's request is based on the Affidavit of Mr. Finneran, dated June 3,1983, and apparently not relied on either in Applicant's Findings or Applicant's Reply. 'Our review of that document, which was submitted to the Board at its request and should be considered to be in evidence, persuades us that the design review had progressed further than we had thought.27 Consequently, if evidence persuades us of the adequacy .of that review, including the appropriateness of applicants' definition of instability (which has not been discussed) and the 20 Design Decision at 26, fn. 68. Note that the reference should be to Applicant's Reply rather than to Applicant's Findings.
27 We interpreted Applicant's citation of earlier testimony to have been a representation that the review had not progressed as far as it apparently has progressed. Applicant's Reply at 13, fn. 6, relied on earlier testimony and did not cite the Finneran Affidavit, which was filed three months previously.
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Quality Assurance Reconsideration: 20 thoroughness of its survey examination, we will at that time accept its conclusion that only 21 of 13681 supports, drawn from all design groups, were unstable.28 Such a finding would, of course, go a long way toward giving the Board confidence in the stability of supports.
However, we decline to accept Applicant's suggestion that we may have inadvertently relied on a SIT Report discussion regarding " piping systems" in drawing conclusions about piping supports. The full quote from page 28 of the SIT Report is [ emphasis added]:
It is not general industry practice to explicitly address the overall stability of piping systems together with their supports in design guidelines. Rather, it is standard industry cesign practice to address only the structural integrity of supports in design guidelines. The Applicant's practice corresponds to this industry practice. Thus, no explicit design guidelines address overall stability. Functional adequacy, including stability, of the overall piping system is typically a result of the normal iterative design and review process.
We relied on this passage for a finding that there were no design guidelines that address stability of pipe supports.29 We do not under-stand how the iterative design process would substitute for such guide-lines, although we may be persuaded of that through further proof.
Furthermore, as we explained, we rejected the SIT Team's conclusions, found in the unquoted remainder of the paragraph we have cited, that stability problems may be avoided by cinching up U-bolts around pipes.
28 Finneran Affidavit at 3-5.
29 Design Decision at 25-26, 18 NRC at .
' Quality Assurance Reconsideration: 21 We note that this discussion appears within a section of the SIT Report devoted to " Stability of Pipe Supports Designed for CPSES."30 Immediately following the paragraph we discussed above, there is a paragraph about the identification of unstable non-rigid supports in Applicant's design process. I This discussion does not, however, track Applicant's review process from the time Applicant became aware of instability problems, probably because the SIT Team was not concerned about the question of whether or not deficiencies were being cured promptly.
A consequence of the SIT Team's approach, as explained in our record, is that the Board was left without a reasonable explanation of:
(1) why design guidelines concerning stability were not necessary, and (2) whether design deficiencies are corrected promptly. Our conclusion is that this aspect of our decision is correct.
On another matter, we find that we properly construed the SIT Report's statement that " Design modifications under consideration
[ emphasis added] by the Applicant are intended to prevent rotation of the box frame around the axis of the supported piping."32 If the SIT Team meant to indicate that this problem had Laen resolved, the word
" consideration" was ill chosen. If the SIT Team would like to clarify 30 SIT Report at 27.
31 SIT Report at 28.
32 SIT Report at 28.
Quality Assurar.cc Reconsideration: 22 its testimony or the Applicant would like to document its resolution of this problem, this aspect of our record might then be resolved to Applicant's satisfaction, but we do not think the SIT Report bears the meaning Applicant urges.33
- 5. Friction on Pipes Attributable to U-Bolts We accept Applicant's clarification that it uses SA-36 steel in U-bolts, rather than the equivalent SA-307 steel we said it used.34 However, we decline to rule on Applicant's new argument concerning the interpretation of ASME Code Section XVII-2462,1.31. In particular, we do not know whether the quoted section applie's by analogy to the use of SA-36 steel to produce clamping forces that will restrain rotation of a pipe 35 and we have no evidence either about how great those clamping forces are or how great they need to be.
We do not consider it essential to our findings that Applicant may have initially designed its U-bolts to be cinched down. Although we consider the SIT Report, on rereading, to be somewhat ambiguous on this 33 Applicant's Reconsideration at 24.
34 However, the label attached to Applicant's Reconsideration at 28.
this steel does not seem to be significant since the different labels apparently refer to the same material applied to different uses. See CASES Answer at Doyle Affidavit, p. 4.
35 Although his statement is not yet in evidence, Mr. Doyle believes that ASME XVII-2462 applies and that Applicant is not in compliance with it. CASE's Answer at Doyle Affidavit, p.4. This matter may be litigated.
D Quality Assurance Reconsideration: 23
- point, our finding on this subject merely helped us to feel that we understood how this possible problem of improper use of U-bolts arose.
Should we be convinced that U-bolts were designed to be cinched down,36 we would still need to be convinced that they exert sufficient clamping force to prevent rotation. If they do not exert sufficient force, the argument about the initial concept of U-bolts will only deprive us of an explanation that helped us to understand. how this might have arisen.
Applicant's argument does not persuade us that the U-bolts will exert sufficient force to restrain rotation.
In concluding our discussion of this point, we would note that the systematic discussion of instability which we have asked for, above, could help us to understand the nature of the stability problem and relate it to this question of clamping force. There is nothing in our record that quantifies in any way the amount of clamping force necessary to avert instability.
- 6. Clamping Force The Board agrees with Applicant's statement that ASME Code Section XVII-2461.1-1 does not state that local stresses from SA-307 steel are too great, but we never gave that Section that interpretation. The only purpose of our mention of this Section in the context of local pipe 36 Mr. Doyle apparently will testify (and produce evidence) that the manufacturer did not intend these U-bolts to be cinched down.
CASE's Answer at Doyle Deposition, p. 5.
t Quality Assurance Reconsideration: 24 s stresses was to negate the possible inference from that section that SA-307 steel could not induce excess stresses. As we said, that section does not, however, exclude that possibility.37 With respect to clamping forces, we admit that.there is substantial persuasive force to Applicant's new argument that we have erroneously equated forces in pounds with stresses in psi.38 However, we are still without any explanation of the magnitude of the local stresses caused by the " soft" pipe clamps and we are confident that such an explanation should be easy to provide in the course of Applicant's forthcoming explanation of its treatment of local stresses from stiff pipe clamps.
At Applicant's request, we have also reexamined our discussion of the Staff's testimony about inspections of U-bolts.39 We fird no error.
The Staff relied on the inspection as a way of assuring that the U-bolts have not been overtensioned.40 However, "overtensioning" should be understood in the context of the combined load to be faced by the U-bolts, including subsequent thermal and seismic stresses that are not observed during the walkdown. We conclude that Staff was incorrect in placing any substantial reliance on .ialkdown inspecticns as a method for determining that the preloading stresses are acceptable.
37 Design Decision at 34. 18 NRC at .
38 Applicant's Reconsideration at 31.
39 Applicant's Reconsideration at 30.
40 SIT Report at 32.
Quality Assurance Reconsideration: 25 A further concern of Applicant is that we should have not stated that its engineers may have not been "sufficiently sensitive to plant safety."41 However, our statement came in the context of a discussion of whether localized stresses have been adequately considered with respect to stiff pipe supports. In that context, it is our understand-ing that the stresses exceed a reasonable margin of safety but that Comanche Peak's engineers did not attend to that problem, even though an analogous problem concerning " soft" supports had been called to their attention by CASE. If we should subsequently receive evidence that reasonable consideration was given to localized stresses from stiff pipe supports, we would then find it appropriate to rescind our characteriza-tion of the engineers.
With respect to whether or not Mr. Doyle presented " detailed calculations" of thermal stresses on U-bolts, we may have made a seman-tic error in so characterizing his testimony, but Mr. Doyle discussed test data that he used to extrapolate data he considered relevant to the U-bolt problem.42 CASE's Findings discuss the precise amount of thermal expansion that would be expected for a pipe /U-bolt assembly covered with 900 insulation and also calculates the portion of the U-bolt that would not be in contact with the pipe at all. Given Mr. Doyle's earlier 41 Applicant's Reconsideration at 32, citing Design Decision at 41, 18 NRC at .
42 CASE's Findings at IV-16.
Quality Assurance Reconsideration: 26 calculations of stresses from pretensioning, which equal or exceed the total allowable, these " calculations" or " extrapolations" from experi-mental results required that Applicant answer.43 Applicant also asks that we acknowledge that the responsibility for local pipe stress analysis has been assigned to Gibbs & Hill, however the evidentiary support offered for this statement is a weak reed.
Applicant points to a portion of the SIT Report dealing with Welded Stepped Connections.44 That section states that Gibbs & Hill analyzes
" local effects due to integral attachments." However, it does not discuss any responsibility to analyze local effects from non-welded attachments and it is our understanding of the iterative design process, based -on a portion of the record made subsequent to the filing of Walsh/Doyle Findings, that level of detail usually provided to Gibbs &
Hill is insufficient to make local stress analysis possible.45 We are also not aware of any local stress analysis performed on non-welded attachments or of any analysis that demonstrated that such an analysis was not necessary. With respect to " stiff" supports, at least, it appears to be necessary but not-to have been done.
3 This argument, which we consider to be largely semantic, does not seem sufficiently serious to have found its way into Applicant's motion.
44 SIT Report at 49.
45 Taylot, Tr. 8922-25.
r
Quality Assurance Reconsideration: 27 l
I
- 7. AWS Code In its request for us to reconsider our findings on the AWS Code, Applicant does not appear to have understood the basis for our conclu-sions, so we will attempt to state them in differert terms. Applicant claims to comply with the ASME Code by performing weld qualification tests. However, it has not described those tests to us so we do not know the extent to which compliance with those tests would satisfy other industry standards - found in the AWS Code. Applicant has admitted that some AWS Code standards are applied by reference despite the ASME Code standards. We want to have a basis for determining whether Applicant has correctly defined the standards that should be applied by reference and those that need not be applied because they are obviated by compli-ance with the ASME Code.
Applicant also has questioned our findings about when Mr. Doyle infonned them that AWS Code provisions should be applied to Comanche Peak. Applicant appears to be correct that the finding is based on a CASE Finding that was not supported by the record.46 However, this error is not relevant to our basic concern about whether AWS Code provisions are being applied to Comanche Peak. It is relevant to the question of whether Applicant has promptly corrected welding deficien-cies brought to its attention. In the instance of the Beta provisions, 46 Applicant's Reconsideration at 35.
E N S$D M Quality Assurance Reconsideration: 28 47 adopted on May 11, 1982 , it would be helpful if Applicant explains and documents how its quality assurance program for design handled this problem with respect to each of the design groups, including how the problem was detected and what was done to assure the acceptability of previously made welds.40 With respect to other AWS provisions, the operation of the quality assurance program need not be explained unless we first find that there were deficiencies in not applying those other AWS provisions.
With respect to the application of Korol and Mirza criteria to NPSI rear brackets 49 , we accept Applicant's clarification that it has not adopted those criteria. However, we still wish to know whether the particular rear brackets are adequately designed.
Concerning repair of welds by " capping," we disagree with Applicant that Mr. Doyle did not submit relevant testimony.50 CASE's Findings argue that complete fusion is needed for an adequate weld and it cites Mr. Doyle's testimony at Tr. 6262 in support of that proposition.
Applicant never answered this argument and has not shown a basis for believing that its repair procedures are properly qualified or are acceptable. We agree with Applicant that Mr. Compton supported its 47 CASE Exhibit 716, page 4 (page 3 of guidelines).
48 See CASE's Answer at Doyle Deposition, p. 7.
49 Design Decision at 44, 18 NRC at .
50 Applicant's Reconsideration at 36.
Quality Assurance Reconsideration: 29 position and not CASE's 1
, but we are unwilling to accept Mr. Compton's --
unexplained acceptance of cap welding as " customary" as assurance that the welding repair procedure is adequate.52
- 8. Generic Stiffness Values Applicant correctly perceives that our problem with generic stiff- .
ness values is not with the study submitted to justify those values but with Applicant's initial justification.53 In this instance, the SIT .
Team made an adverse finding and Applicant never explained why its design had the alleged deficiency. This apparently was part of the Applicant's and Staff's approach, which was to show that deficiencies
- had no consequence but not to address how deficiencies had arisen or whether they were adequately addressed by quality assurance.
We also agree that the one specific design problem mentioned on page 57 of the design decision was not related to the generic stiffness 51 Tr. 7957-58. }
52 It would have been helpful to us to have had Applicant's coment on _ . .
this point prior to reaching our decision. Inevitably, review of one party's Findings without the benefit of an adversary comment will lead to too-ready acceptance of that party's point of view. :
In this instance, we too-readily accepted CASE's characterization f of the Compton testimony. . . .
53 However, CASE intends to Applicant's Reconsideration at 37-38.
challenge the appropriateness of using the stiffness study to ..m generalize to other plant systems. This matter shot.ld be covered .'
by the Plan Applicant plans to submit. CASE's Answer at Doyle -
Affidavit, p. 8. ,
9_
O Quality Assurance Reconsideration: 30 problem. This might more properly have been discussed in a separate section of our decision, called " Potential Rotation of the Plate in One Support."
- 9. Differential Seismic Displacement Applicant's current explanation, which was not available to us prior to issuance of the Design Decision, persuades us that Applicant may be able to explain this problem to our satisfaction. However, our record is still devoid of evidence concerning how it came about that P5E violated its own design guidelines, how this event came to be reflected in the design quality assurance system, and whether this problem was resolved promptly, as required by 10 CFR Appendix B, Criterion XVI.
- 10. Testing of Richmond Inserts We fail to understand from Applicant's argument why the Board may have been incorrect in its Richmond insert findings. Although it is true that the Staff's findings, adopted by the Board,54 failed to mention shear cone analysis done by the Applicant,55 Aoplicant has not persuaded us that this omission is relevant to the Staff's findings 54 Design Decision at 60-62, 18 NRC at .
55 Applicant's Reconsideration at 39-40.
Quality Assurance Reconsideration: 31 concerning " allowable tension loads."56 The SIT Roport concluded that, "As a result of the Applicant's assumptions as to shear load capability
[in Applicant's calculation of allowable tension loads], the specified shear load allowables are 50 percent higher for the 1 1/2-inch insert than the value recommended by the manufacturer."57 The SIT Report found this to be a deficiency both because this was an inadequate safety hurgin, in the absence of further testing, and because " standard indus-try practice requires that testing be done to confirm the [ published allowable shear] values."58 Applicant correctly states that the ultimate question is whether "the plant, ,as built, can and will be operated without endangering the public health and safety".59 However, we wish to be assured that design ,
quality assurance for pipe supports (including Richmond inserts) has been adequate. If it has not been adequate, then we will examine other design issues before reaching a conclusion about the ultimate question of the safety of the plant.
0 Design Decision at 60, 18 NRC at . NRC Staff Response to Applicant's Reconsideration, January 27 1984 at 6-7.
57 SIT Report at 19.
58
_Id.
59
[ Emphasis added by Applicant at Applicant's Reconsideration, p.
40.] Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-756, 18 NRC (December 19,1983), slip op.
at 7.
\
l .
Quality Assurance Reconsideration: 32
- 11. Axial Torsion This is a part of our decision to which we addressed unusual attention. Our reasoning was set forth in the Design Decision from page 62 to 66. Of the two principal analyses set forth in our record, by Chen and Doyle, we prefer the view expressed by Mr. Doyle, and Applicant has not even attempted to explain why we have erred. The fact that
. Applicant has had " independent opinions of outside experts" corroborat-ing its view is certainly not even entitled to our attention.60 II. Staff's Reconsideration Motion The Staff requests us to rescind that portion of vir decision in which we state that the Staff argued that Appendix B did not apply to
- design. On one issue we consider that the Staff's point is valid, and an analogous point made by Applicant is also valid.
Obviously, both the Staff and Applicant have always believed that Appendix B, Criterion III, which addresses design of a plant explicitly, applies to the design of a nuclear power plant. To this extent, both have acknowledged the applicability of Appendix B. However, both Applicant and Staff have taken an approach to this litigation that seems inconsistent with the realization that Criterion XVI., " Corrective Action," applies to the de ,ign of a plant. That is what we think Mr.
60 Applicant's Reconsideration at 41. CASE correctly points out that these are " phantom" experts who, "Having struck . . . nove on without cross-examination or rebuttal." CASE's Answer at 25. ,
Quality Assurance Reconsideration: 33 Taylor meant when he said " Appendix B . . . does not address nonconform-ing design. It only addresses the conformance of the installed hardware and the inspection thereof to the design."61 Because Criterion XVI does not require reports called "non-conformanca reports" for construction or for design, we can think of no other appropriate interpretation of these remarks than that Criterion XVI does not apply to design.
We are pleased that both Applicant and Staff now agree that Appen-dix B is applicable to design. In particular, Applicant seems to agree that Criterion XVI is applicable to design. We infer that the Staff also agrees with that position. .
III. CASE's Reconsideration Motion In general, we do not interpret CASE's Reconsideration as a chal-lenge to our decision. It is more in the nature of anticipatory objec-
- tions to the Plan that Applicant will file in response to our decision.
To the extent that we suggested criteria for such a Plan, these were just suggestions, not binding on either party. It will be open to CASE to attack Cygna as an inappropriate design review organization, provid-ing that it has the evidence to do so.62 It will also be open to CASE 61 Taylor, Tr. 6707.
62 We will not determine the merits of the conflict-of-interest controversy at this time because the matter has not been fully litigated. However, the current state of the record tends to minimize the importance of the conflict-of-interest allegat,on.
(Footnote Continued)
r ,
/
Quality Assurance Reconsideration: 34
~
to attemhb' to qnNnish the credibility of the CYGNA report, should one be submitted, should .1,t be able to establish a legitimate conflict of interest ' concerning4 the relationship between Texas Utilities Electric CompanyandCYGNAI
- 4 IV. ; Reopening the Record Concerning Appendix B CASE argues, quite forcibly, that Applicant should not be permitted to subMt evidence concerning its compliance with Appendix B, Criterion XVI. T CASE believes that Applicant already had its opportunity to present the evidence and that it did not do so. We believe CASE's point is a serious one" and set forth the following extensive quotation from J -its filing:
. . . Applicant has had more than ample time and occasion to propose additional hearings if at any time they felt they were warranted. Applicant chose not to do this. Instead, Applicant has subjected the Licensing Board and parties to a constant barrage of pleadings and arguments to hurry up and close the record because
" delay" by the Board could adversely impact Applicant's phony fuel load date.
Applicant was arguing ac far back as September 16,1982, that "the reccrd as it stands right now is more than adequate for the Board to make findings on the allegations raised by Mr. Walsh and Mr. Doyle." .(Tr. 5416/11-14.) Applicant's constant haranguing to close the record has continued right up until the Board's 12/28/83 Order when Applicant finally perceived that it had had its chance and had blown it. . . .
Throughout their pleading, Applicant admits that the Board cannot find that Applicant's pipe support design process satisfies (Footnote Continued)
Applicant's Answer to Case's Motion for Reconsideration of Board's 12/28/83 Menorandum and Order (Quality Assurance for Design),
February 1,1984, Affidavit of David H. Wade (attached).
_ _ _ _ _ - - - - _ _ _ - - _ - - - - - - - - - - - - - - - - - - - - . - - - - - - - - - )
7 Quality Assurance Reconsideration: 35 the requirements of 10 CFR Part 50, Appendix B. It argues that the Board should not find it in violation of Appendix B but should instead, without any basis in the record, allow Applicant to basically go back and start over at this late date. CASE can just imagine the response of the Applicant and NRC Staff had CASE made such a suggestion! In fact, the Board has refused to allow CASE to supplement the record in some instances already. . The Board cannot use a double standard in these proceedings.63 Regrettably, we are unable to accept CASE's suggestion because we do not consider reopening by either party to be entirely symmetrical.64 We are permitting Applicant to reopen the record without a showing of good cause because it does not seem to us logical or proper to close down a multi-billion dollar nuclear plant because of a deficiency of proof. While there would be some " justice" to such a proposition, there would be no sense to it.
63 CASE's Answer at 5-6.
64 We have considered whether CASE's point about reopening the record is irrelevant because the Record has never been closed. However, there is no clear guidance concerning whether the Record should
. have been closed. We conclude that the close relationship between the questions of leaving the record open for inadequacy or closing the record and entertaining a motion for reconsideration requires the use of similar standards in these two situations.
In this case, there is a special reason to consider these two questions to be similar. Prior to our decision to leave the record open we had already given the parties a chance to file supplemental briefs, accompanied by affidavits, on two issues--the AWS Code and Pipe Clamp Stresses--that we still consider to be inadequately addressed in our record.
We conclude that it is appropriate to consider the posture of this case to be similar to the posture of a case in which applicant has i filed a motion to reopen the record. Consequently, we have chosen to address the applicability to this case of the previously enunciated standards for reopening the record.
.3 Quality Assurance Reconsideration: 36 Furthennore, we note that intervenors receive several procedural advantages in our proceedings that also are not fully symmetrical and that compensate for the application of different standards for reopening the ' record. First, the Board has the authority to raise important issues sua'sponte, thereby protecting public safety and the environment even when intervenors may not have raised the issu'es. Second, the Board has the responsibility to assure the adequacy of the record, thereby caus,ing it to pursue more fully matters of public safety that may not have 'been fully pursued by intervenors. (For example, the Board has considered certain- construction deficiency questions even though CASE failed to file findings on those issues.) Third, the burden of proof generally falls on applicants, who must therefore attempt to appreciate and rebut, by a preponderance of the evidence, all the implications of all issues raised by intervenors.
In one sense, the reopening of the record does not seem fair. CASE has been put to unnecessary expense because it will have to prove its case twice. In addition, -the need to continue disputing an already closed issue is an unnecessary tax on its volunteer resources. Because of the - burden imposed by our decision and the lack of precedent for
.failing to apply the standard for reopening the record to Applicant, we have extended to the parties, including CASE, an invitation to request that we refer the Design Decision fc.? review by the Appeal Board.65 65 Design Decision at 75, 18 NRC at .
Quality Assurance Reconsideration: 37 V. The Iterative Decision Process We are hopeful that the Board's response to the pending motions for reconsideration will serve two purposes. First, to correct errors that have been brought to our attention. Second, to help to clarify matters in our decision that the parties had difficulty interpreting or that they considered to be in error.
Our efforts to encourage the filing of motions to reconsider are, we realize, somewhat unusual. However, we consider the exercise to be a constructive way to refine issues and manage the remainder of the proceeding.
We anticipate that the next round of hearings should be the last.
At some point, prolongation of hearings would represent a denial of due process to one or more of the parties. We encourage the parties to present their evidence and to prepare their required Proposed Findings with care, being sure to present a reasoned basis for the decision sought from the Board.
ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 8th day of February 1984 ORDERED:
That Footnote 37 be struck from our Memorandum and Order (0uality Assurance for Design), LBP 83-81 prior to publication.
! a.
o Ouality Assurance Recensideration: 38 That LBP 83-81 shall in other respects be unmodified but that it shall be interpreted in light of the Memorandum accompanying this Order.
THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chainnan ADMINISTRATIVE JUDGE Walter H. Jorda a ADMINISTRATIVE GE 1
L-----w L _ x g.jsG igl, Kenneth A. McCollom A fer ADMINISTRATIVE JUDGE Bethesda, Maryland
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