ML20080S895

Georgia Power Company Motion for Summary Disposition of Intervenor Air Quality Statements Allegation.* Requests That Licensing Board Grant Util Motion,Per 10CFR2.749. W/Certificate of Svc & Svc List

ML20080S895
Person / Time
Site:	Vogtle
Issue date:	03/03/1995
From:	Joiner J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080S898	List: ML20080S895 ML20080S915 ML20080S930
References
CON-#195-16447 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9503130095
Download: ML20080S895 (28)

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DOCKETED 'd UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION 35 MR -6 P3 37 Before the Atomic Safety and Licensina Board 0FFR:t Of SECRETARY DOCKEil!O 6: LERyn:E g In.the Matter of Dock'et Nos. 50-424-OLhh ) 50-425-OLA-3' l GEORGIA POWER COMPANY, ) j et al. ) Re: License Amendment 1 ) (Transfer to Southern (Vogtle Electric Generating ) Nuclear) Plant, Units 1 and 2) ) ) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION FOR

SUMMARY

DISPOSITION OF INTERVENOR'S AIR OUALITY STATEMENTS ALLEGATION Pursuant to 10 C.F.R. 5 2.749, Georgia Power Company ("Geor-f gia Power") hereby moves the Atomic Safety and' Licensing Board for summary disposition in favor of Georgia Power regarding Intervenor's allegation of misrepresentations and omissions concerning diesel generator air quality statements in Georgia Power's April 9, 1990 letter to the Nuclear Regulatory Commission ("NRC"). Georgia Power submits that there is no genuine issue of material fact to be heard and that Georgia Power is entitled to a decision in its favor as a matter of law. Intervanor alleges that Georgia Power knowingly made materi-al false statements in, and omitted material information from, its April 9 letter to the NRC with respect to the air quality of the Plant Vogtle diesel generator's control or instrument air system. Other than Intervenor's bald suspicions, there is no direct evidence to support his allegation and he ignores substain-9503130095 950 PDR ADOCK O 4 0 PDR

g,. =, - - ~ '~- 7 mnJ> t ,~ i e t J'i F \\a (tial evidence placing.the' statements:in'the context of the l /V extensive communicationsibetween Georgia Power and the NRC at the 1 itime. Georgia Power. personnel, who consulted with the diesel -i mv ~ vendor representativec,^ reasonably concluded that there was an f; ' adequate basis for the air quality statements'in the. April 9-uu i z,c . letter. Moreover, they. shared all material information with NRC -l Staff. personnel'who also concluded that Georgia Power had a f ( p reasonable basis to conclude the'dieselfair quality was accept-j able' i ~ In support of this motion, Georgia Power relies upon the following documentsF: -{ Affidavit of C, Kenneth McCoy, dated' March 3, 1995 l ("McCoy Aff.") Affidavit of Milton D. Hunt, dated March 1,_1995 (" Hunt Aff."); Deposition of Kenneth S. Burr taken on May 24, 1994 (" Burr Dep."); Deposition of.Kenneth Holmes taken on July.7, 1994 i (" Holmes Dep."); Deposition of Paul Kochery taken on July 6, 1994 ("Koc- + hery Dep."); F Those documents that have not been previously provided to 'the Board are collected in a separate Appendix enclosed with this motion. Georgia Power has included in the Appendix the relevant pages only for the deposition testimony of Messrs. Burr, Holmes Kochery, and Stokes. Intervenor requested and took these deposi-tions. As the taking attorney, Intervenor is obligated to provide a complete copy of the transcript to the Board. 10 C.F.R. $ 2.740a(e). 2

g. yp'= v~ -~ -- -'c ^ ~~ JC u, s. .t a ~ yl o i 7c; Deposition.'of Allen /L._Mosbaugh takencon July l22, j w ! August 23-and August.24, 1994'("Mosbaugh Dep."); y t JDeposition.of Kenneth: Stokes takenion July 5, 1994 .~ (" Stokes-Dep.");. NRC Office ~of Investigation's November-4, 1993_ inter-l i 4" view of; Allen'Mosbaugh; 1 l NRC Office of Investigation's' July-18-19, 1990' inter. j 'l view of Allen Mosbaugh. ~ In addition, pursuant to 10 C.F.R. $ 2.749(a), Georgia Power l d has enclosed a document entitled, " Georgia Power Company's Statement of Material Facts as to Which There is No Genuine Issue oto be Heard Regarding Intervenor's Air Quality Statements Allega-tion." This document provides a short and concise statement of j ~ i the material facts as to which Georgia Power contends there is.no. ] genuine issue to be heard. j l t I. PROCEDURAL BACKGROUND i i By Memorandum and Order (Admitting a Party), dated February 1) i 18, 1993, the Licensing Board, among'other things, admitted. l Intervenor Allen L. Mosbaugh as a party to this case and a'dmitted the following reconstituted contention: l The license to operate the Vogtle Electric Generating Plant, Units 1 and 2, should'not be transferred to Southern Nuclear Operating 'l Company, Inc., because it lacks.the requisite character, competence, and integrity,.as well j as.the necessary' candor, truthfulness, and i willingness to abide by regulatory require-l ments. l ~ Georaia Power Connany (Vogtit Electric Generating Plant, Units 1 4 l .i e

n (V ' l 04' i and'2), LBP-93-5, 37'N.R.C. 96,c110 (1993).- The Board's' order. 'i cited Intervenor's Amendments to Petition to Intervene and j Request for Hearing,' dated December 9, 1992'(hereinafter " Amended! Petition") as the basis'for the admitted? contention. 37 N.R.C. 'i l at 104.

l The' Amended Petition contained no allegation that there were l

l , misrepresentations and omissions concerning statements about diesel generator instrument air quality in Georgia Power's April f ~ i 9, 1990 letter to NRC. This, however, was one of the issues i i which was addressed in the NRC Office of Investigations' ("OI")' i report in Case No. 2-90-020R, dated December 17, 1993 (hereinaf-i ter "OI Report"). Thereafter, this same air quality issue was l the subject of a violation included in the NRC's May 9, 1994. j ' Notice of Violation and Proposed Imposition of Civil Penalties i ("NOV").F In a Nay 23, 1994 letter from J. Lamberski to the Licensing l Board, Georgia Power sought to exclude, inter alia, the air l I quality issue from the scope of scheduled depositions, on the-l grounds that tile Board's prior rulings had limited the scope of f the proceeding to the matters which Intervenor had specifically discussed in his Amended Petition. The Licensing Board ruled that it was necessary to include in the scope of the proceeding all the matters raised in the NOV. F The NOV cover letter, at 3-4, states that Georgia Power 1 failed to include complete information regarding diesel generator starting air quality in its April 9, 1990 letter to NRC. The NOV was based upon a report prepared by the Vogtle Coordinating Group, dated February 9,1994 (the "Vogtle Coordinating Group Analysis"). _

~ ' ' ~ ~ ~ ~^ ~ ~ .l .YO _,uq u se on 1 1 a;;, - j .The.NOV was based on an extensive 1 investigation con - ducted by-(OI).s..3 The.. matters. contained in the NOV: .also wore considered by the-Vogtle coordinating' Group,. ,j !which.was comprised of NRC Staff-members selected forc j their expertise in evaluating these charges....;We are' hearing:an-allegation that:[ Southern Nuclear]' lacks ~the -character and competence to run a-nuclear. power-plant. We'do'not know, at this1 time, whether-1the allegations 1 in'thelNOV are valid. However, we have. examined exten-l sive documentation-that: suggests.that they,have been J carefully considered. Hence, the allegations are H relevant and important to-the pending contention.. To 3 exclude any of those allegations-would be to'have an = inadequate record; compiled with. blinders that would" i ~ keep us-from, examining a-portion of the relevant facts. 1 This we shell not do. I1 Georaia Power Connany (Vogtle Electric Generating Plant, Units.:L and 2), LBP-94-15, 39 N.R.C. 254, 255-56 (1994).F The OI Report and the NOV addressed the accuracy and com-iy plateness of~the following statement which was included in -Georgia Power's April 9, 1990 letter:. f -Georgia Power.has reviewed air quality of the D/G air i system including dew. point _ control'and has concluded that aj.r quality is satisfactory. ' Initial reports of 1 higher-than' expected dew points were later-attributed

j to faulty instrumentation..

1 The NOV stated that this statement was' incomplete in that it j . failed to state that-actual high dow points had occurred and that .1 the causes of those high dew points included failure to use. air dryers for extended periods of time and repressurization-of the s:l F In a related ruling, the Licensing Board held that Interve-nor could question witnesses about whether Georgia Power told the NRC the whole truth about the safety of the Vogtle diesel genera-tors in connection'with the restart of the reactor following the March 20,1990 site area emergency. Memorandum and' Order (Scope.of Discovery), dated June.2, 1994, at 2-3. However, the Board ruled that Intervenor "may not now-raise new issues about 'any.Mosbaugh allegations' that are not related to the diesel generators." Ist at 3..=

.l V j V' p.. l diesel s'ir receivers following. maintenance. NOV.'at 3-4. ~ Georgia Power provided.a reply to the NOV.on July-31,:1994' infwhich it. denied-the; violation.concerning. incompleteness of air. g quality infornation'in the-April 9 letter. The. Company's! reply. k ' explained that the April 9 letter's reference to " initial re- =i

ports" was meant to address-dew point readings which were taken following the March 20 site area emergency and that NRC personnel H

at Plant Vogtle had been provided extensive.information concern-ing air quality. Following a review of Georgia Power's' reply, the NRC withdrew the violation of incomplete air quality informa-tion on the basis that the air. quality statements'in Georgia-Power's April 9 letter "were sufficient in scope and Georgia l Power had an adequate technical basis to support a finding that air quality was acceptable." Modified Notice of Violation and Proposed Imposition of Civil Penalties, dated February 13, 1995, Appendix at 2. L Written discovery on Intervenor's allegations of false. statements related to the Vogtle diesel generators is completed i and consisted of sixteen requests for production of documents, j fifteen sets of interrogatories, and six sets of requests for. admissions. Forty depositionsi' have been completed to date and additional depositions of current or former NRC Staff personnel are scheduled for March 15-37, 1995. 1 l' Thirty-five of these depositions were taken by Intervenor. To date, Intervenor has elected to have only fourteen of these depositions transcribed (Messrs. Aufdenkampe, Beasley, Burr, Cash,

Farley, Frederick,

Holmes, Horten,

Kochery, Shipman,

Stokes, Stringfellow, Webb, and J. Williams).

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II.. LEGAL STANDARDS

.The: Licensing. Board's~ Memorandum'and Order.'(Summary Disposi-i tion:.IllegalLLicenseLTransfer Allegation) (November' 8, 1994)J sets forth'the law.concerning summary._ disposition asLfollows: l n ~ (10 C.F.R. $'2'.~749) specifies that summary: disposition-S y" may'be granted only11f the filings in the proceeding,. i . including statements of the parties;and affidavits,- t demonstrate:both that thereLis no genuine 11ssue-as-to-any material fact and that the moving party :is entitled j to a decision as a matter of law. The party seeking summary judgment bears.the burden-of. l showing the absenceLof a genuine issue-as to any mate-E rial fact. In addition, the Board must view the record in the light most favorable to the party opposing such a motion. Thus, if the proponent of the motion fails . j to make the requisite showing,.the Board must deny the j motion -- even if the opposing party chooses not to l respond or its response is inadequate. However,.if:the novant makes-a proper showing'for l summary disposition, and if the party opposing the motion does not show thatia genuine issue of material 'l fact exists, the Board may1 summarily dispose of all arguments on the basis of pleadings. To preclude summary disposition, when the proponent has .i met its burden, the party opposing the motion may not ~ rest upon " mere allegations-or denials," but must' set - 1 forth specific-facts showing that there is a genuine- ] issue. Bare assertions'orLgeneral denials are'not-4 sufficient.. Although the-opposing party does not have .I to show that it would prevail'on the-' issues, it must at least demonstrate that there is a genuine factual' issue to'be tried. ~The-opposing party must controvert any-material fact properly set out in the. statement of j material facts which accompanies a summary disposition motion or that fact will be deemed admitted.. Moreover, when the novant has satisfied its initial burden and has supported its motion by affidavit, the opposing party must;either proffer. rebutting evidence or' submit an affidavit why it is impractical to do so. If the presiding officer. determines from affidavits filed by the opposing party that the opposing party cannot present by affidavit the facts essential to- -justify its opposition, the presiding officer may order a continuance to permit such affidavits to be obtained,, ,w, = <,. i,,- ,,ew, m , 3 ,,-w--3,e-w.-- 2mw-,. ,-or

m /h, 3 p or:take any other appropriate action. i Georcia Power comoany (Vogtle Electric Generating Plant, Units 1 ~ and 2), LBP-94-37, 40 N.R.C. slip op. at 7-8-(1994) (auntina Advanced Medical Systems. Inc., CLI-93-22, 38 N.R.C. 98, 102-03 i (1993) (citations omitted), reconsideration denied, CLI-93-24 (November 24,-1993). t III. STATEMENT OF FACTS i A. The Events Following tS March 20, 1990 Plant Vogtle Site Area Emergency. On March 20, 1990, a Plant Vogtle worker accidentally backed a truck into a switchyard support column causing a loss of off site power to Unit 1. Georgia Power personnel attempted to restore power to the plant.by starting the only available emer-gency diesel generator (1A). Twice the diesel started and ran for about one minute before tripping. On the third attempt, the diesel started and ran, restoring power to the plant 36 minutes after the initial loss of off site power. The IB diesel was out of service at the time for r maintenance overhaul. On March 23, 1990, the NRC issued a Confirmation of Action (" COA") letter to Georgia Power, which, among other things, provided that Georgia l Power was not to restart Vogtle Unit 1 without NRC approval. McCoy Aff. 11 3, 5. Following the March 20, 1990 Site Area Emergency at Plant Vogtle, an Incident Inspection Team ("IIT") was sent to the Plant ] Vogtle site, and included NRC's Mr. Rick Kendall as well as Mr. Al Chaffee, who was the team leader. Mr. Ken Brockman, while not < 1 +

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[p.Nl ,am %g.jN ,anLIIT member,ybecame the:NRC Region'II. Point _of Contact forSthe; d ~ IIT.-lNRC= Region II inspectors Milt Hunt"and Pete Taylor assisted .the IIT in' observation.of' diesel specialJtesting and final opera - l bility testing of the:1A and 1B diesels. McCoy Aff.:gg'4,.6, 7.. t Air-quality, including the' possibility of small. debris or l t g . moisture in'the diesel air' system, was discussed at an IIT k-L meeting on March 28, 1990. In response to a question'from the- { IIT, Georgia. Power committed to review-the'.last historic dew point on the 1A diesel prior to March 20, 1990, and, in addition,- ]'! take new dew point readings. Both the IIT and Georgia Power were. attempting to identify the cause of.the 1A diesel spurious trips on' March 20, 1990. McCoy Aff. 1 8. Between March 28 and April 3, as a follow up to the IIT-- request, Georgia Power tested the diesel air system for moisture and inspected the control air filters. Georgia Power. informed ll the'IIT that, based upon tests done, the air quality was satis-' } factory and was not considered to be the root cause of the 1A 'l diesel' trips on March. 20,'1990. McCoy Aff. 1.9. Mr. McCoy participated in an April 4, 1990 meeting on' diesel-j i testing with George Bockhold, Mike Horton, Skip' Kitchens-(the- -i i Vogtle Assistant General Manager of operations), and others. The-i -l meeting was tape recorded by Mr. Mosbaugh. During the meeting,- Messrs. Bockhold.and McCoy said that NRC's Ken Brockman would be briefing'the NRC Region II Administrator,on Friday--(April 6)' t about releasing Georgia Power from the Confirmation of Action j letter. Later that day, Messrs. Mosbaugh and Horton praised ] i : I

w ' m" + ~ l 1 1 96 'fh* I ngineeringfpersonnel for the' work they did on'the diesels'and. l E how well:'they" interfaced'with-the IIT..Mr.'Mosbaugh said.that:at.. 1 i gy - some' point he thought the:IIT would be satisfied ~on the diesel. issues sufficientlysto release the hold on startup..McCoy-Aff. -j i l'10. l i By. April 6, Georgia Power management and'the IIT'were in - ,l 1 formed of higher thaniexpected dew point measurements.

George, j

~! i Bockhold explained to.the IIT that on April'5 he had' learned that s . the dew point test results on March 29 were unsatisfactory for-the 1A diesel.F-He further stated that preliminary indications l i were that'the high readings were dueLto a bad dew point sensor i instrument. The basis for the General' Manager's belief that the j test instrumentation was suspect included additional recent." bad" la dew point readings.F Representatives of the diesel' generator l t - vendor (Cooper) had been contacted to verify Georgia Power's belief that any immediate problem associated with the controls of f i i the d esel d d not call into question the operability of the .l engines. A new dew point instrument or equivalent was being sought on the morning of April 6. McCoy Aff. 1 11. 3 F This high dew point reading was brought to Mr. Bockhold's attention by NRC inspector Hunt who discovered it during a review l of diesel generator maintenance work' orders. Hunt Aff. 1 26.. F These readings, which were among those taken with three j different instruments, indicated that. the dew points of eight j separate air systems were either out of specification high or had j . physically impossible values. As a result, engineering personnel i reasonably concluded that the readings were not accurate. Saa 1 ' Georgia Power Company's Response to Intervenor's Seventh Request for1 Interrogatories (August 8, 1994) at 4-5. The readings were i recorded by hand on a single sheet of paper, which was shared with j NRC inspector Hunt. Hunt Aff. 1 27, Exhibit 4. l

9 ~ 4 a t at-s -. l 'OnfApril 6, 1990, Georgia Power performed an inspection of' q E the:1A diesel air' receiver?which..was witnessed by NRC. inspector-j d 91, Hunt. :The inspection revealed some rust on the. tank welds and a. I light oil film on the tank walls...Neither the rust nor the oil l j film'was unusual or of concern._' Hunt'Aff. 1 28. ' Plant Vogtle j i -personnel'had also inspected the control air filters in March;in l the presence of NRC inspector Hunt; Georgia Power and Mr.' Hunt' l concluded that the filters looked new, and Georgia Power person-' l nel advised the NRC that the filters did not-appear to have been~ subjected to " dirty" air. McCoy Aff. 1 12; Hunt Aff. 1.29. Between April 6 and April 9, Georgia Power had performed additional dew point readings. On_ April'9,_NRC representatives f were informed of the dew point readings obtained by new instru-t mentation. One dew point reading of 60.9 *F.on the diesel 2A f i -receiver, was attributed-to the associated air dryer being turned-l t off on Friday (April 6). The IIT team leader indicated to' Plant-Vogtle personnel that Unit 2 diesel-ralated air quality history l was not of substantial interest. McCoy Aff. 1 12. I Also, on April 9,. based'upon a review of historic preven-j tative maintenance ("PM") documentation, the NRC was informed of- .i ~PM results from prior to mid-1989 which showed unacceptable dew l t points. The NRC requested a table of historic measurements and,' j early on April 10, dew point measurements on the'1A diesel were l t sent by facsimile to the NRC. McCoy Aff. 11 13-14. l On April 10, 1990, Mr. Mosbaugh provided a note to George l ? Bockhold which stated, on the basis of an April 10 memorandum i i I t j l i

71 ~ { E ifT sa i -fron'GeorgiaLPower engineer Tim Steele, that,.the-diesels'Edow;po : int control and! air. quality have n21.always been satisfactory. Tim:steele's memorandum,.for the most part, discussed the'mainte - l-; ' nance history (prior to mid-1989) of diesel air dryers. The memorandum also noted~that on March 9,-1990 and March 31,-1990,F dew point measurements were high for both air dryers of the Unit -1A diesel, but that it was strange that both' dryers would be.high at the same time because they were in separate systems. Because of this, Mr. Steele suggested that the method of dew point maa-l surement was. suspect and might need investigation. A table of dew point measurements for the Unit 1A diesel was attached to Mr. f Steele's memorandum. McCoy Aff. 1 15. 3 During an internal meeting of Plant Vogtle personnel on'the morning of April 11, which was taped by Mr. Mosbaugh, the Vogtle General Manager questioned a number of engineers on his staff, j i including Ken Stokes, Paul Kochery, Paul Burwinkel, and Tim j Steele about the accuracy of the air quality-statement in the. April 9 letter. The General Manager confirmed that the reference-to " initial reports" in the April'9 letter:specifically referred-j i to the work order associated with instruments later determined to .q be faulty. He explained that the NRC had been told about the air' receiver inspection, that air filte s were clean, that air i F The " March 31" readings were the same readings which Mr. i Bockhold told the NRC about on April 6. Although Mr. Steele's ' memorandum stated the readings were taken on March 31, the readings were actually taken on March 29. McCoy Aff. 1 15 n.3..Both the March 9 and " March 31" readings were included in the facsimile sent j to the NRC early on April 10 (aga McCoy Aff. 1 14, Exhibit 9). ] ! i i i ,y., p._ .r ,--.b

1 c.4 u -n j . receiver blowdownsfshowed no significant. water' discharge, and .that the Cooper' representatives' opinion was thatiairJquality-atf zVogtle was not' a problem.: He specifically asked whether the period of May 1988 to May 1989, when one.orfmore dryers may have f been out of service, would affect the air quality statement in g the April 911etter. There was a consensus that the dew point. l acceptance criteria of 50 *F-had not always been met in the past, =but that based on their engineering judgment the air quality was. l acceptable. This conclusion considered the factors discussed'. .t I above as well as the expected thirty-degree dew point depression i resulting from the change.in system pressure from about 250 psi j to 60 psi. McCoy Aff. 1 16. During a discussion with the IIT on April 11, Plant Vogtle. f personnel informed the NRC that they could not obtain good,- consistent data earlier than the data they had transmitted to the f NRC. Georgia Power told the IIT that they believed the current l air quality of the diesel was satisfactory although, during 1988, one of the air dryers.was out of service for maintenance. Georgia Power also explained that daily blowdown of air receivers helped assure freedom from moisture'in the control system air and. j that inspection of the control air filters at each overhaul i period' indicated no rust or corrosion products. NRC personnel were further informed that the April 6 inspection of one air receiver showed slight corrosion around welds and a minor oil { film on the bottom of the receiver, none of which, in Georgia i f '! i -.-....-.I

ffh) ~ /- l /u l Power's opinion, affected the' control: air, quality. McCoy Aff.' l t .17. i 11: ,i The IIT: completed"their report of the. March 120,'1990' site j '. i area emergencycin June 1990. 333 Loss of Vital'AC Power-and'the: j ~ l ^ Residual Heat Removal System during Mid-loop operations at Vogtle' j Unit 1 on March-20, 1990 ("NUREG-1410").. The report, at'$3.2.2h describes'the starting and control air system design and opera- ] q tion'and states, at p.;3-10:' The dew point has generally been kept at close to 40 'F. .The-dryers on occasion have been out of service for short periods; however, no evidence.has been found of significant moisture or'its effects in the'instru-ment air lines or sensors. The 5-micron ~ filter has l always been clean when replaced; no significant amount of contaminants have been found in the instrument air-system. Thus, air quality does not appear to have been a factor in.the emergency diesel generator response during the incident. McCoy Aff. 1 18. 1 On April 12, _1990, NRCERegion II released. Georgia Power to l restart Unit 1. McCoy Aff. 1 19. 'l 3. The April 9, 1990 Georgia Power Letter to NRC and NRC's Approval to Restart Unit-1. ) Parallel to the preparation for the April 9, 1990 meeting j

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with the NRC, Georgia Power prepared a " Status of Corrective ] 1 Action" write-up which addressed the Site Area Emergency. By 'I April 5, early in the morning, a draft had been prepared by site personnel which included the following-language: The.following actions are being implemented to ensure a high state of diesel reliability....

5. Since March 20, 1990, GPC has performed numerous sensor calibra-tions (including jacket water temperatures), extensive -_

n. se s; _ 4 y oy r i ~ f riogic testing,'specialjpneumatic leak. testing:and. air i io' fquality? reverification, and multiple engine starts and i u ' runs'under various~. conditions.... s.s Ik ' On April 5th'and 6th, Georgia Power telefaxed copies of..this' 9 documentito Ken Brockman (Region II, Atlanta)'and. David'Matthews

(NRR, Wash.HD.C.),.respectively.

Also, on' April 5, this~ document was routed for review to' Plant'Vogtle personnel,. including Mr.- v Mosbaugh,'and the NRC Resident Inspector.- McCoy Aff. 1: 2 0. ' a l By early April 7, 1990, the draft letter was revised and i y ^ ' included the air quality statement which appears lin the final-signed letter: lj Georgia Power has reviewed air quality of the D/G air l system including dew point control and has concluded that air quality is satisfactory. Initial reports of l higher than expected de'w points-were later attributed l to faulty instrumentation. This'was confirmed by .l internal inspection ~of one air receiver on April 6,. { 1990, periodic replacement of the control air. filters i which showed no indication of corrosion and daily air j receiver blowdowns with no significant water discharge. I This statement discussed only the current st&tus of the diesels' instrument air quality; it was not intended to describe all past ] 1 maintenance issues. The letter conveyed Georgia Power's judgment on April 9, 1990, that the diesel control air quality relative to j i moisture or " humidity" was satisfactory at that time.--Although higher than expected dew points had, in fact, been recorded during the Plant's recovery from the March 20 Site Area Emergency (i.e., the " initial reports"), these post-event measurements'were j i erroneous, due to faulty instrumentation. McCoy Aff. 11 21-22. Prior to releasing Georgia Power from the hold int start-up of Vogtle Unit 1, the NRC Region II staff independently verified l i i ) l i N

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through inspectioniand;oversightLthe effectivenessLofEthe Vogtle; .j diesel (generator: activities undertaken'by Georgia Power!followingi the. March 20, 1990; Site Area Emergency.. Egg NRC-Staff Supplemen-- o tal Response to-Intervonor's First Set ofLInterrogatories,1 dated 4 ' September 15, 1993, at'4. - The NRC, Staff's-decision to allow s restart of'Vogtle Unit-1 on' April 12, 1990 was' based on'an ^ analysis of the root cause.of the diesel generator. failures:and; upon the licensee's corrective actions in-response to such-failures. Idz at 9. Mr. Stewart Ebneter, the NRC Regional Administrator, relied heavily on Milt Hunt's assessment of diesel operability in-order to make a decision on the restart.of Vogtle Unit 1. Hunt Aff.. 11 6, 13, 37. Mr. Hunt's inspection method while at the. plant site was.to personally witness every. test or activity that required his approval'or would form the basis for proving the diesel generators operable. Id.at 1 17. As of. April 9,

1990, Milt Hunt was fully convinced that the diesel control air quality was acceptable and he was completely satisfied that~the Vogtle diesel generators were operable and reliable.

Idz at $1 30-31. 2 C. NRC staff Review of the April 9 Air Quality statement. During the August 1990 NRC Operational Safety Inspection ("OSI"), the NRC inspectors reviewed documentation associated with the Unit i diesel starting air system.1' They noted that a l' The OSI was conducted, in part, as the result of allegations submitted to the NRC by Mr. Mosbaugh, which included an allegation that the April 9 air quality statement was false. McCoy Aff. 1 23... v -des-+*+m ,v----. - - ,mm-T -tta 5'r+t'

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majority'of'thefdow point.' measurements taken were withinLspecifi - -i cations ^and;that'the reasons:for1outfof' specification-readings 11 inclu'ed problems with measurement' instruments, air dryers being

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l out:offserviceLfor; extended. periods of time,-.and:repressurization ofLthe:airgsystem.following. maintenance.

The inspectors reviewed-1 s - records associated with the inspection of the air: receiver, 3 inspection and replacement of an air filter, and replacement:of-l the dew point measurement instrument. The inspectors spoke with' - system engineers who said there was no evidence'of. internal ) - moisture or corrosion in the control air sensing lines when disconnected for maintenance troubleshooting. The inspection-1 team concluded-that Georgia Power did have an adequate basis to-assess the quality-of the. diesel starting air system,Lwhich was' !y primarily the visual inspection of the system components for t degradation. Thus, contrary to Intervenor's allegation, they did-not find that Georgia Power misrepresented the diesel air qualit'y 1 in the April 9 letter. McCoy Aff. 1'23. i The.NRC Staff performed another inspection of the Vogtle diesel starting' air system in 1994.. NRC inspectors reviewed diese?. maintenance history records to determine if out-of-toler-ance dew point conditions resulted in detectabic water formation or adverse operation of the control air system. They specifical-ly reviewed maintenance work orders related to the March 20, 1990 f 1A diesel failure. They. concluded that the maintenance documan-tation provided no indication that water had been detected in the ] control and protection portion of the system at any time. This .f f 3 i

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was'confi'rmed:byEdiscussions;with craftland engineering personnel y

y ~ y involved 'inLthe.1990' troubleshooting activities. .The inspectors ^ further concluded that water formation in the' air system was: i unlikely because of the' decrease in dew point associated with'the; ? Lpressure reduction in the system from' 250 psi to 60 psi.: They; found that even.with the highest dew point conditions ever mea-- ~ i

sured, -the probability of condensation within the 60 psi: system j

air-was not significant. McCoy Aff. 1 24. On May 9, 7.9 9 4, the NRC cited Georgia Power for violation'of l u 10 C.F.R. S 50.9,. finding that Georgia Power had provided incom-plate information about the diesel air quality in its April 9,- ~ 1990 letter to NRC.2' Georgia Power submitted a Reply to the NOV' on~ July 31, 1994.' Following a review of Georgia Power's. Reply,- [ the NRC withdrew the' violation of incomplete air quality'informa-- j tion on-the basis that the air quality statements in Georgia-Power's April 9 letter "were sufficient in scope and Georgia' i Power had an' adequate technical. basis to support a finding that l air quality was acceptable." McCoy'Aff. 1 25. v Y. MGUMENT P During the discovery process in.thf ceeding, Georgia l f Power has learned that Intervenor assert e air quality state-l ment in Georgia Power's April 9 letter was inaccurate or incom-i 4 2/ The NOV stated that the Company failed to state that actual high dew points _had occurred and that the causes of those high dew points included failure to use air dryers for extended periods of l time and repressurization of the diesel air receivers following j maintenance. McCoy Aff. 1 25 n.7. i ! f i ~.. - - - -

r I MIyg ..f c .K Nk plate because (1)ihigh~dowl point measurements.were recorded. ilmne'diately; preceding April 9'which.were not the' result of faulty i instrumentation,-(2) historically, air dryers lhad been:left out-l of. service, e.nd;(3) good data-was unavailable for the. period- [ preceding mid-1989. Intervenor cites as. support for his asserti. ons his April.10,.1990 memorandum to the.Vogtle General. Manager (aga-McCoy Aff.,. Exhibit 11).. 333 Mosbaugh Dep. at 392-418; 'OI's November 4, 1993' interview of Mr. Mosbaugh, Tr. 163-77; OI's July , 19,'1990 interview of'Mr. Mosbaugh, Tr. 204-16; Intervenor's Response to the First Set of Interrogatories of Georgia Power Company-(June 2, 1993) at 18. Intervenor claims that George Bockhold definitely knew, and that Mr. McCoy should have known, the air quality statements in the April 9 letter were false. However, Intervenor did not attribute the alleged false statement.to any evil-motive-on the. j part of.either Mr. Bockhold or Mr. McCoy. Mosbaugh Dep. at 402. ] With respect to Georgia Power's statement that faulty:instrumen-tation was the cause of high dew point' readings, Intervenor said only.that whoever originated that statement knew orLshould have known it'was false. Ida at 405. As described below, there is no genuine issue of material l fact to be heard. Other than the mere suspicions of Intervenor, ) l which are insufficient to overcome a motion for summary disposi-i tion,B' the record cont'ains. no evidence to ' establish that Geor-8' It has been held that a party opposing a motion for summary disposition may not rest upon mere allegations or denials. "The -asserted facts (in opposition to a motion for summary disposition] - - -

?. > ~ r a;: y %gG &, :, > ,J + .:c Q s s giaPowerpersonnel~ knowingly}proOided.; inaccurate'orincompletah Linfornation'~concerning:airfquality to?the NRC.in' connection with J fits.' April.9-letter.l rFirst,'the' evidence shows that.the GeorgiaL

Power.diesellexperts,-as well'as the diesel; vendor representa-

..tives, agreed with'the April 9 statementi that'the:dieselLair x quality was acceptable.. Second, the evidence.is~ clear that the ) .i . NRC' Staff was fully aware'of the dew point. data taken"after.the - j 1 Site Area Emergency, as well as certain historic dew point. data. Third, the NRC concluded that Georgia PowerLhad a reasonable basis to conclude the diesel air quality was acceptable. Intervenor's assertion that'high dow point measurements were. recorded immediately' prior to April 9, apparently refers to.the measurements taken.between April 6 and April 9 when one. measure-ment on the 2A diesel was recorded out of specification at 60.9 i i

• F.

First, this was not one of.the " initial reports" readings. j -f - which Georgia Power referred to in the April 9 letter-as being a >i inaccuratie due to faulty ' instrumentation. Compare'McCoy.Aff. l 1 11 with 1 12.- Second, the.NRC Staff was-aware of this' reading. 3 t and that the cause of the out of specification dew point was that the associated air dryer had been left'off following maintenance. 'l McCoy Aff. 1 14. Third, while Georgia Power acknowledges that j the 60.9 *F reading was an accurate, out of specification read-I must be material and of a substantial nature, not fanciful or - l merely suspicious. A party cannot go to trial on the vague supposition that 'something may turn up,' or on the mere hope that on cross-examination the novant's evidence will somehow be dis-credited." Texas Utilities Generatina ConDany (Comanche Peak Steam i Electric Station, Units 1 and 2), LBP-82-17, 15 N.R.C. 593, 595-96 i (1982). q I

p *> y ~ - ~ ~ + _ Q >jth ~-D 1 I'~ : a 3 f' 1' y' si a ,ing,Tshort intervals offout;of specification dow! points are not; \\ f

'significant,.as the NRC:has acknowledged.

Has: NRC Staff Supple-! mental Response lto Intervenor's First Setiof Interrogatories, 4 . dated September'15, 199'3,1 at.11-12.1 l a Intervenorfapparently takes the position thatLthe' dew point 1 readings taken on'the 1A diesel on April 6, 1990, which were out' ~ -of specification on:all eight air dryers using three d'ifferent L instruments (133 Hunt Aff. Exhib'it 4), were not faulty readings. l OILInterview of1Mr..Mosbaugh (Nov. 4,'1994) at 175. Again,.other-i than Intervenor's allegations and suspicions, the record is void + i of any serious. suggestion that these readings were accurate. 3ased on_ questions asked of Georgia' Power witnesses during J their depositions, Intervenor will undoubtedly assert that 1 ' Georgia Power witnesses cannot recall any faulty instrumentation

l in~1990.

However,.those recollections are not probative consid-i ering the sworn' statements of Georgia Power personnel who had an } opportunity to research and reflect on the matter; they concluded- -that a former Georgia Power IEC Superintendent,.Mr. Mark Briney, f reached the conclusion, based on the data recorded (333 Hunt Aff. Exhibit 4), that the instrumentation was-faulty, 333 Georgia Power Company's Response to Intervenor's Seventh Request for-Interrogatories (August 8, 1994) at 4-5. Furthermore, as with l other air quality data, these readings were provided to NRC i . personnel. 333 Hunt.Aff. 1 27. To the extent that Intervenor also claims the readings taken on March 31, 1990 were not the result of faulty instrumentation, n ~ - -,, rr,-- m,,, -ww ~ s-,pe-,.e'

D 6.t f 6 ,a.: v =there isJno support'in.the record. Mr. Steele's April 10, 1990 i ' memorandum on which Intervenor relies, supports Georgia ~ Power's; o-conclusion that two simultaneous high L readings in separate e systems'suggest that the readings were not accurate. 'McCoy Aff. 1 17. .This conclusion.was. confirmed by the' consistently high readings ~caken on April'6, which are discussed above.

Again, this information was shared with the NRC orally and in writing.

McCoy '.ff. 1 12, Exhibit 9. Also, I&C documentation. indicates l that the instrument'in question was taken out of service on April 6, 1990 and was not used again at.Vogtle. HAR Georgia Power Company's Response to Intervenor's Seventh Request for Interroga-tories (August 8; 1994) at 6.- l'ntervenor's allegation that Georgia Power mislead the NRC because, historically, air dryers had been out of. service and i data was unavailable is immaterial. Georgia Power's April 9 letter only represented that, at the time, the control air quality of the diesels was satisfactory, primarily on the basis' of the visual inspections of the' air receiver and air filters. McCoy Aff. 11 17, 22. Intervenor admitted this was the case in his interview with OI in July 1990, discussed below. Ther3 fore, historic (prior to mid-1989) conditions of the system were not material to the letter's statement. Moreover, Georgia Power had ' informed the NRC of the poor historic maintenance and lack of available data (McCoy Aff. 1 19) and the NRC has agreed with Georgia Power's conclusion notwithstanding this history based on the visual inspection of the air system components which was 1

i performed. Egg NRC' Staff Supplemental Response to Intervanor's e i First Set of Interrogatories, dated September 15, 1993, at 12-13. Intervenor testified, in July 1990, that he believed the basis of the April 9 air quality statement was"the inspection of-the air receiver,. inspection of the air filters and input from the Cooper representative. He did not believe the statements were based on any historical review of the maintenance history. Intervenor admitted that it was his view air quality was satis-factory at the time of the inspection. Intervenor added that he had no doubt the inspection of the air filter indicated it was clean and the inspection of the air receiver showed that it was generally clean.W He admitted that the air receiver was a good central point in the system to inspect. However, Intervenor said those inspections did not prove that the dew point was' acceptable or that every other point in the system was clean. OI interview t of Mr. Mosbaugh on July 18-19, 1990, Tr. 212, 215-16. l ? By Intervenor's own admission, Georgia Power's statement was based on inspections and the opinion of the Cooper represen-tative, not on whether all past dew point readings were accept-able. Georgia Power's and Cooper's diesel experts concurred with ^ this conclusion. McCoy Aff. 1 18. NRC inspector Hunt witnessed W In a later deposition, Intervenor asserted that the April 9 letter is false because the inspection of the air receiver was being used as an indicator of good air quality when in fact the l inspection indicated internal rust and debris or residue. Mosbaugh i Dep. at 412. However, Intervenor admitted that the presence of j corrosion in the receiver in and of itself would not indicate a j sufficient problem to cause a malfunction in the control ' air system, although it would be an indicator of unsatisfactory dew points. Idz at 413. 1 l

g o [~ 'y p ik lthe Apri116 inspection of the air receiver and other_NRC; person-Lnel were' told lof the light rust and oil; film which were found..

1. w p y-This rust'and residue was not viewed by Georgia Power or NRC personnel as significant.

McCoy Aff. 1 19; Hunt Aff. 1 28. During discovery, Intervenor asked.whether Georgia Power-was-aware of water being discovered'in the diesel control air sensing l ~ or trip' lines or other parts-of the'contr'l or starting air. o b system.. Intervenor specifically asked whether anyone had heard. about-a jar of water collected from the trip lines.. Georgia l Power personnel were not aware of a jar of water or that anyone had observed water coming out of the control air sensing'or trip lines. Burr Dep. at 93, 105-06; Stokes Dep. at 98; Holmes Dep. at 50-51; Kochery Dep. at 38; 333 A11e Georgia Power Company's Responses to Intervenor's Fifth Interrogatory and Document j l Request (July 22, 1994) at 4; Georgia Power Company's Response to Intervenor's Seventh Request for Interrogatories (August 8, 1994)- i at 5. Paul Kochery, a Vogtle plant engineering supervisor, re-called that water was found in a two-inch air start line, which is distinct from the control air sensing lines, i.e.,.the diesel I " trip lines." Kochery Dep. at 38. In response to questions by l Intervenor's counsel during depositions, other Georgia Power personnel said that it was possible water was found somewhere al-though they did not recall it. Burr Dep. at 106;-Stokes Dep. at i 97-98. Mr. Stokes explained, as an example of why this might be possible, that water could possibly leak into the sensing lines during bubble testing, a special test performed during the days l

"Oh' vu "_$ l 4 A

u

~ t l& e-1 ll ffollowingithe siteLArea EmergencyLto determine whether there were j any airileaks in the1 sensing lines. Stokes'Dep. at198.

Also, j

?some Georgia. Power witnessesirocalled,-during depositions ~not yet .l transcrib'd, that water was.found in.the. crankcase 1of the diesel. l e air system compressor, but this would not affect' the control air; ' quality, j Intervenor stated that the NRC may not have' realized the air-i - quality statement was false when they first read it if the only. j r high dew. point reading that they were aware of was the one that had been explained away as being inaccurate by faulty instrumen-- j l tation.- Mosbaugh Dep. at 408. ThisEstatement demonstrates the i l reasonableness of Georgia Power's statement considering that the l NRC was fully aware of all the same dew pointidata available'to Georgia Power personnel and agreed with' Georgia Power's conclu-i sion that the diesel air quality was acceptable. Hunt Aff. 1 30. i J The foregoing' demonstrates that there is no genuine issue of i material fact to be' heard. l l The regulations do not require merely the showing of a " material issue of fact" or an " issue of fact." They require s genuine issue of material fact. To be' genu-ine, we believe that the factual record, considered in its entirety, must be enough in doubt so that there'ils-l a reason.to hold a hearing to resolve-the issue. l Cleveland Electric Illuminatina comoany (Perry Nuclear Power f i Plant, Units 1 and 2), LBP-83-46, 18 N.R.C. 218, 223 (1983). The factual record regarding Intervenor's air quality statements { issue is not sufficiently in doubt to justify a hearing on that l 1 issue. ) i 25 - 1 i j i

~ gh 't 2 VI. CONCLUSION For the reasons. stated above, Georgia Power respectfully requests that, pursuant to 10.C.F.R. $ 2.749, the Licensing Board grant Georgia Power Company's Motion for Summary Disposition of Intervanor's Air Quality Statements Allegation. Respectfully submitted, ames E. Jbiner John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 (404) 885-3360 Ernest L. Blake David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE i 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8084 Counsel for Georgia. Power Company Dated: March 3, 1995 1..

3 -- T.; ' W 1 2 oj .,l-y . UNITED' STATES OFJAMERICA' + . DOCKETED - NUCLEAR REGULATORY' COMMISSION ..(JSNRC' L:i Before the Atomic' Safety and Licensina Board .- 95 t1AR.-6 P3 $7 T ) 50-k$ii 3 ' 50-W54,1C 1ECRETARY In the' Matter of ) Docket Nos. %& SERVICE- ) - GEORGIA POWER ~ COMPANY, ). _. o MNCH. et al'. - ) Re:. License'. Amendment: i + ) (Transfer;to Southern j '(Vogtle Electric-Generating' ) Nuclear) -Plant, Units ~1 and 2) -) 1 ) ASLBP No. 93-671-01-OLA-3 I CERTIFICATE OF SERVICE i . I hereby certify that copies of "G6sorgia Power Company's , Motion for Summary Disposition of Intervenor's Air Quality-3 Statements Allegation" dated March 3, 1995, was served by express a mail.upon the' persons listed on~the attached service list, this .l 3rd' day of March,.1995. 4 l l . Lam DeMakl~ i f a .j l i I .. i n o

g jgy , 97 2 - ' ~ " ~ (j s.,, t %F > t o ~, _p f'A9 j ?> e., + ' UNITED STATES'OF AMERICA l ~ Li NUCLEAR' REGULATORY: COMMISSION: 'BEFORE THE ATOMIC SAFETY AND. LICENSING BOARD 1 In"the Matter of 1 l . Docket'Nos.>.50-424-OLA-3 GEORGIA POWER. COMPANY,: ~

• at al..

,50-425-OLA-3 ~ I l j (Vogtle Electric. Re:~ License. Amendment + . Generating: Plant, (Transfer to Southern Nuclaar) -.l

Units 1 and 2) j ASLBP~No. 93-671-01-OLA-3 SERVICE LIST

'i ?; Administrative Judge Stewart.D. Ebneter l Peter B. Bloch,. Chairman ' Regional Administrator Atomic Safety and Licensing-USNRC, Region II Board 101JMarietta Street, NW. j U.S. Nuclear Regulatory Suite 2900 'l Commission Atlanta, Georgia 30303 l Two White Flint. North I 11545 Rockville' Pike Office of theLSecretary Rockville, MD -20852 U.S. Nuclear Regulatory j Commission Administrative Judge Washington, D.1C. 20555 James H. Carpenter ATTN: Docketing and =; . Atomic Safety and' Licensing Services Branch Board 5 933 Green Point Drive Charles Barth, Esq.. Oyster. Point Mitzi Young, Esq. .i Sunset Beach,'NC 28468 Office of General Counsel l One White Flint North ) Administrative Judge-Stop 15B18 Thomas D.-Murphy U.S.: Nuclear' Regulatory l Atomic Safety and Licensing Commission. ~ ~ 'l Board Washington, D. C. 20555' ] U.S. Nuclear Regulatory l Commission

Director, i

-Two White Flint North Environmental Protection 'i 11545'Rockville Pike' Division' Rockville, MD 20852 Department of Natural j Resources i Michael D. Kohn, Esq. 205 Butler Straat, S.E. Kohn, Kohn & Colapinto, P.C. Suite 1252 l 517 Florida Avenue, N.W. Atlanta,' Georgia 30334 i Washington, D.C. 20001 -j ' office of Commission Appellate Adjudication One White Flint North 11555 Rockville Pike i Rockville, MD 20852 l i .}}