Text

Brief in Support of Exceptions to Partial Initial Decision Re QA Issue.Certificate of Svc Encl
	ML20087L194
Person / Time
Site:	Perry
Issue date:	03/20/1984
From:	Lodge T; SUNFLOWER ALLIANCE
To:	; NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
	CON-DSB-107 OL, NUDOCS 8403270075
	Download: ML20087L194 (21)
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'84 ER 23 R0:32 UNITED STATES OF AMERICK.i O' ii-lS. -

NUCLEARREGULATORYC04EEiSEdt$},jef' Before the Atonic Safety and Licensing Appedl Board In the Matter of

)

CLEVELAND ELECTRIC ILLLMINATING

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Docket Nos.

50-440 (OL)

CO W ANY, et. al.40-441 (OL)

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(Perry Nuclear Power Plant, Marr.h 20, 1984 Uhits 1 and 2)

)

SUNFIDWER ALLIANCE'S BRIEF IN SUPPORT OF EXCEPTIONS TO ' PARTIAL INITIAL DECISION' TERRY JONA1HAN 14DGE, Esq.

618 N. Michigan St., Suite 105 Toledo, Ohio 43624 (419) 255-7552 Counsel for Simfloter Alliance e

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TABLE OF COmWIS -

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I.. Backgru nd e

eb-II. Artyment

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Exception Na, lh*Mie Licersing Board'averzealously tjand prejudicially ccnducted and

' " intervened in the; adjudication of e

.,the cmtention. "

i 2

ExceptiXI No. 2iu'Ihe hearing panel, grred in'its

. e deterinirrtion that; Sunflower Alliance 1,.

was rot deIprived of a, fair hcaring by c'

'/

a,.

the' witMrawal of its leacL counsel C

on trie eve of the hearing.

4 r,

Excepticn No. 3:. SunGower was prejudiciaHy and inpttperly deprived of the opporttnity

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to.clu;s-examine a Staff "phantcm

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inmect6r" whosefidentity was concealed and who had known, strugly dissenting views ar.to GA/QC practicesfat Perry.

5 Exception Ib. 4: 'Ibe Licensing Boarti irx:orrec';,1y -

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mfused to reopne the OA/QC record for adjudication in its Nodenter 10 and Decenter 2,1983 decisicns..

10 Excepticn No. 5: 'Ihe Licensup Boardincohrt$2tly inter-preted the standards' of< GFR Part 50, Appen, dix B, Critericro XVI.

10

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Excepticn No. 6:, 'Ihe Licensing Board erred in finding that the Applicant and/or L.K. Comstock timely took corrective acticns ccncerning 11 ARs and CARS.

v 7-Excepticn No. 7: The Licensiry Boarxl ermd in holding that Applicant evidenced satisfactory oversight of LJK. Ccmstock.'

12 Excepticn t6. 8: 'Ihe Licensing Board wrugfully restricted adjudicatoryi testinony to deficiencies in the electrical area only.

13 Excepticn No. 9: "Ihe Licerr.ing'Eoartl Erred in its finding that Arplicant timely identified and correctsd ncnconfonnire conditions in the electrical area.

14 Exception Ib.10: 'Ihe Licensing Boarti erred in holding 7

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T that the deficiercies noted'in Report 81-19 were not serious.

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' No. 11: " Partial Initial Decision" is against the manifest weight of the evidence, arbitrary and contrary to law.

14 Excepticn No.12: '!he Licensing Board erred in failing

.to adopt the prqxxied " Partial Ir.itial Decision" of Sunflower.

14 Prayer for relief 14 Certificate of Service 15 9

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l TABLE OF ALTINORITIES NRC Pmcedent Page(s) Cited Carolina Power & Light Co. (Shercn Harris Nuclear Power Plant, Units 1-4) 7 IEC 53, 85 (1978) 4 Duke Power Co. (Catawba Nuclear Power Station; tilite 1 and 2) 4 fBC 397, 412 (1976) 6, 8 Ccmstaners Power Co. (Midland Plant, thits 1 and 2)

ALAB-691, 16 NRC 897, 912-13 (1982), rev. declined, CLI-83-2,17 NRC 69 (1983) 6 Illinois Power Co. (Clintcn Power Staticn, Units 1 and

2) 4 NRC 27, 31 (1976) 6 I

Ei.npolitan Edison Conpany (Three Mile Island Nuclear Power Staticn, thit No.1) 17 NRC 102 ('.983) 6 Northem Istiima Putrlic Service Co. (Bailly Generating Station,IOclear-1) 8 AEC 980 (1974).

5

Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2) 8 AEC 381, 388-89 (1974) 9 Southem Califomia Edison Co. (San Onofre Nuclear Genera-ting Staticn, Units 2 and 3) 7 AEC 986, 992-3 (1974) 4, 5 Ternessee Valley Authority (Hartsville Nuclear Plant, thits lA, 2A,1B, 2B) ALAB-367, 5 NRC 92 (1977) 6 Temessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A,1B,,2B) 7,NRC 341, 356 (1978) 4 Virginia Electric & Power Co. (North Arna Power Staticn, Units 1, 2, 3,_4) 1 NRC 10, 17 at n. 18 (1975) 12 Virginia Electric & Power Co. (North Ama Power Staticn, Units 1 and 2) CLI476-22, 4 NRC 480, 491 (1976) 6 Federal Cases Carter-Wallace, Inc. v. Gardner, 417 F. 2d 1086 (4th Cir.

8 1%9)

Calhotn v. 'Bailar, 626 F. 2d 145 (C.A. Cal.1980), cert.

den. 101 S. Ct. 3033 (1980) 8 Carter-Wallace v. Finch, 398 U.S. 938, 1970) 6, 8

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Page(s) Cited Consolidated Ediscn Co. v. NLRB, 305 U.S.197, 229-30 l'

(1938) 7 Golderg v. Kelly, 397 U.S. 254, 270 (1970) 8, 9 Glares v. Inmigration and Naturalization Service, 416 F.

2d 441 (C.A. Ga. 1969) 7 J W _tz v. U.S., 424 F. 2d 555 (1970) 7 Martir. :" Mcrza v. Inmigraticn and Naturalizati<n Service, 499 F. 2d 918, cert den. 419 U.S. 1113 (1974) 7, 8 York Ccmnittee for a Safe Envirtnnent v. NRC, 547 F. 2d 622, 628 (D.C. Cir. 1976) 9 Richardson v. Perales, 402 U.S. 389, 402 (1971) 8 Willapoint Oysters v. Ewing, 174 F. 2d 676, 690 (9th Cir.

1948), cert. den. 338 U.S. 860 (1949) 7 Federal Statutes 5 U.S.C.A. Sect. 556(d) 6

.5 U.S.C.A. Sect. 555(b) 4 Federal Regulations CFR Part 50, Appendix B. Criterion XVI 10 10 CFR Sect. 2.713 4

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I.

Background

'Ihis cause, Issue No. 3 in the operating license stage of these proceedings, came cn for adjtrlicaticn frun May 24-27, 1983.

'Ihe Special Prehearing Conference "Memorandan and Ortler"

-(LBP-81-24, 14 PRC 175), had set out the quality assurance issue as:

Applicant has an inadequate quality assurance program that has caused'or is ccntinuing to cause unsafe construction.

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'Ihe contenticn was' further clarified and narrowed by the

' Licensing Board's deterTrdnations cn sutmary disposition as follows:

'Ihe existence, cause, severity, duraticn i

and extent of an alleged instarce in which applicant's quality assurance program failed by not properly ccntrolling its electrical ccntractors.

Whether the alleged deficiencies in properly controlling electrical cmtractors extend to the proper control of other ccntractors.

Whether deficiencies in the control of con-tractor activities have resulted in unsafe conditions at Perry.

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Page 1.

Whether applicant has an adequate system for periodically reviewing its program for assuring the quality of contractor performance and ascertaining and correct-ing def*ciencies that have arisen, partic-ularly in systems essential to safe plant operation.

'Ihe Licensing Board believed at that point in the proceed-ing that the Applicant and the Nuclear Regulatory Ccrinission staff (hereinafter " Staff") failed to demonstrate the absence of genuine issues of material fact since the Staff's issuance of a letter and lengthy supporLing documentation of Septernber 27,1982 (hereinafter

" Report 81-19", a Board exhibit). Report 81-19 documented numerous exartples of the Applicant's failures to require even adequate perform-ance in assuring quality electrical constructicn methodology at Perry frcrn the ccntractor retained for that purpose, L. K. Ccmstock Cortpany (hereinafter "Cwsb;ck").

'Ihe Licensing Board's presurpticn at that point was that if deficient oversight by Applicant of Cwsb.ck were allowing ccnsiderable rmn.uformire electrical construction, then project-wide quality assurance (QA) deficiencies might be inputable a

to other contract work.

Follcaring hearing and subsequent ccnsideraticn of documen-tary and oral testhicny at adjudicaticn, the Licensing Board concluded that Amlicant established that quality ccostructicn nr?dnis pertain at Perry at the present. time, and that there was no subsequent need to re-examine the QA/QC issue, even in light of hitherto-undiscovered

~ data.

"Wrnorandan and Order (reticn to Reopen)," August 18, 1983; "Memoeandum and Order (Procedural Objections and Staff Witness Questicn,)" August 30,1983; "Menorandum and Order (Disnissing Addi-ticnal Quality Assurance issues and Closing the Quality Assurance Record),"

Novertber 10,1984; " Partial Initial Decision (Quality Assurance Ccnten-ticn)," Deceber 2,1983, LBP-83-77.

II.

Argrnent Exception No. 1: 'Ihe Licensing Board overrealously and and prejudicially ccrducted and intervened in the adjudication of the ccntenticn.

In its August 30,1983 "Merrorancun," the Licensing Board, by a 2-1 split decisicn, found that it "did not cause any substantial pre-judice to Sunflower's case by the way in which [it] ccnducted the pro-ceeding." Id. at 14.

Dr. Jerry Kline of the panel filed a " Separate View," holding that the QA/QC record should rot be reopened, but that P@ 2.

the Licensing Board did, indeed, exercise excessive activism at the hearings. See gmerally 'Memorandtzn," August 30, 1983, " Separate Views of Dr. Kline" at 1-7.

Sunflower Alliance believes that in light of the extert and nature of the Licensing Board intrusions, the mcord should, i.Aeed be reopened.

'1here are runerous exanples in the record where the Licensing Board interfertxi with the direction of crosswocaminatim, or elicited a conclusicn frun the experts who testified, or sinply protected Staff or Applicant frun relevant disclosures. See Tr.1066, whem a Licensing Board marber leads Applicant's witness Edelman to a sumnary conclusicn about Applicant's q2ality assurance manual. Sew Tr. 1069, 1074, where intervenor Chio ditizens for Responsible Energy ("OCRE") attenpted to link the persons behind a 1978 stop-work order to Applicant's over-view system and was blocked by the Board. See Tr. 1112-1117, where the Board refused to allow OCRE to adduce a quality engineer audit frur-the Perry Public Doctanents Rocyn into the record for purposes of cross-examinaticn because it was not identifiedin prefiling as a proposed exhibit (capare with the Board's receipt into the record of the May 18, 1983, Keppler menorandum ccncerning the phmtan witnesses).

See Tr.1130-1, where a Board menber leads Applicant's witness to a conclusicn. See Tr. 1145-52, 1156, where 'the Board seized upon a tech-nical proceduralism with the directive to OrRE to ask questicns cn doctanents not included on its prefiled list without puttmg the docu-ments into evidence, an arxrnaly of ro small nonent. See Tr. 1160, 1161 where the Board leads Applicant's witness to self-serving conclusicns (see also Tr.1161, tne Board's acknowledgement that it led the witness).

See Tr.1164-5, the Board's decisicn to short-circuit cross-exanination concerning Pullman Power where the Board concludes in the midst of hear-ing, prior to ccxtpleticn of the record. that it need rot follow the sequence of issues set forth in its sumnary disposition notion (see also Tr.1466, where the Board adnits it has set up a " harsh criteritn" by wanting to know that "there's a reason to go into further hearing on Cudwck" before allowmg it). -

See Tr.1477, where the Board l_/This determination is tnusually unfair in an ongoirg adjudication, when the standard for reopening a closed record is minimal: the new evidence to be presented need rot be so significant that it would alter the Board's findings or conclusicns; to excitxie otherwise conpetst l

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leads Applicant's expert to a self-serymg ccnclusion. See Tr. 1483, where the Board leads Applicant's expert to a self-servmg conclusion.

See Tr.1505, where the Board leads Applicant's expert to a self-serv-ing ccnclusicn. See Tr.1512, where the Board leads Applicant's expert to a self-serving conclusion. See Tr.1530, where the Boarti inccnsis-tently rules cn the time needed for preparation of cross ahtien by the parties.

The foregoing was a by no means cortprehensive resume of Board errors causing changes of a substantive nature to the mcord in this case. A licensing boarti has the respcosibility of conducting an irrpartial hearing. While the Licensing Board also has broad discre-tion in inplanentmg that respcnsibility, use of that disemtion trust be supported by a record shcwing a consideraticn of discreticnary factors. Temessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, 2B) 7 !aC 341, 556 (1978). This the Board did not ade-quately do.

Exception No. 2: 'Ihe hearing panel erred in its deter-minaticn that Sunflcuer Allianc^ was not deprived of a fair hearing by the withdrawal of its lead counsel on the eve of the hearing.

Doubtless Daniel Wilt's resignaticn as lead cotnsel for Sun-flower Alliance the night before the QA/QC adjudication was devastating to StX1 flower's Case.

Indisputably, a party is entitled to appear by or with counsel in this v;ency proceeding.

5 J.S.C.A.' $555(b); 10 CFR 2.713.

In view of the sudden and utterly inexpected departure of Sunflcwer's lead attorney,.as well as the unavailability of' Sunflower's co-counsel until the last day of trial, the Boarti should have sua sponte ccntinued the adjudicaticn for several reascns. First, as a practical matter, them is shrply no hurry because of the length of tirre before Perry beccmes openable.

Seccnd, in view of the disparity of resources between Staff and Applicant cn the one hand, and Stuflower and OCRE cn the other with regard to the time available for review and case pmparaticn, it is a policy of this Ccmnissicn to be solicitous of intervenors' foreseeable needs for additional time for case preparaticn. Southern California evidence because the Boarti's ccnclusions may be unchanged would rot always satisfy the mquirenent that a record suitable for review be preserved. Carolina Power C, Light Co. (Sheral Harris Ibclear Power Plant, Units 1-4) 7 NRC 83, 85-(1976).

Ediscn Co. (San Orofre Nuclear Generating Staticn, Units 2 f, 3),

7 AEC 986, 992-3 (1974). While the Licensing Board may have occasion-ally dc=ws::,Lrated a solicitous demeanor to Sunflower as a result of its ali.unwy's resignaticn, it nevertheless ccmnitted to going ahead

- without contirmance of the oricinal adjudicaticn dates.

'Ihe Licxnsing Boarti inputed no fraudulent, frivolous, or suspect motivation to the attomey's withdrawal, but instead accepted his %n as an unfortunate, but bcria fide, step. Tr. 1001.

Based tpcn that withdrawa'1, it should have ccntinued this matter.

mere a licensing boarti holds to its hearing schedule despite a claim by an intervenor that he is usable to prepare for the cross-examination of witnesses because of scheduling problems, the proceeding will be reopened to allow the intervenor to cross-examine witnesses. Northern Indima Public Service Co. (Bailly Generating Station, Nuclear-1), 8 AEC 980 (1974). Here, the Boarti placed Sunflower in the position of having to inploieit, when its co-counsel did appear cn May 27, for the privilege of further cross-examinaticn through counsel.

Tr. 1710-15; 1718. '1his error may be rectified cnly by reopening the recorti.

Exception No. 3: Sunflower was prejudicially and inproperly deprived of the uppurLmity to cross-examine a Staff "phantcrn inspector" whose identity was concealed and who had known, strongly dissenting views as to QA/QC practices at Ferry.

'lhere are various and numerous refemnces in the recorti to a phantom inspector or inspectors in the NRC Region III office who had frequently expressed strt:ng dissent to the conclusions of the Regicn III hierarchy that Perry OA/QC deficiencies were cleaned up.

'1hese views alsa contradicted the Regicn III staff conclusions in pre-filed testimony for the QA/QC hearing. By a May 18, 1983 transmittal, Region III's Janes Keppler notified the Staff's Executive legal Director, Guy H. Cmninghara, that a " principal electrical inspector" and "investi-gator" behind Report 81-19 wem "ccncemed that the (Staff's prefiled]

testimony may not adequately ccnvey the Region III efforts that were required to secure effective cormctive action by the applicant".

Sunflower and OCRE objected strenously to the use of the method, by this Boarti and the parties, of attenpting to elicit these phantczn Staff's viewpoints, responses and criticisms from the IEC witnesses who appeared at hearing.

Tr. 1013, 1023, 1014, 1022, 1808, Page 5.

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d 1809, 1813, 1852-3, 1855;- At the time, it was the Licensing Board's positicn that the dissenting Staff cpinicos enbodied in the May 18, 1983, transnittal were distinctims of tone, rather than of substance.

E Tr. 1799,:1807,'1811. Stmflower my that the Board inpigmrly chaeacterized-the 9===xi dissenters' claims as being in tone as

---M to conteni, - that is, to say, if the dissenter's ocarlusicms

. were mere ocmclusory opinion, then m were those of the Staff witnesses b

who did testify.

1*>reciver,' the use of attributicn of statements to anonymous perscms idio might add substantively to the record of this contention did, indeed, conprise inachissible " hearsay within hearsay".

'Ihe Achinistrative Procechare Act to require any finding made by the Licensing Board to be based upon " reliable, probative and sub-stantial evidence".. 5 U.S.C.A. %556(d). Hearsay of certain types has historically been achissible in achinistrative pmceec'ings. Carter-

- Wallace v. Finch, 396 U.S. 938 (1970). 'Ihis rule has specifically been extended to 150 licensing proceedings. Duke Power Co. (Catawba c

Nuclear Station, Uhits 1 and 2), 4 NR3 397, 412 (1976) (testimony by utility officer an puth power alternative held rot to be hearsay);

Illinois Power Co. (Clinton Power Station, Units 1 and 2) 4 NRC 27, 31

- (1976) (successful NRC staff objecticn to testimcny by 5.itness based fi upon references to periodical articles as hearsay reversed).

-It ir also axicmatic that a genuine scientific disagreement

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on a central decisiormJ issue is the type of matter' that should ordin-arily be raised for adversarial-exploration and eventual resolution in the adjudicatory context. Metropolitan Ediscn Conpany ('lhree Mile Island Nuclear Power Staticn, ik11t No.1),.17 NRC 102 (1983). See also Virginia Electric and Power Cenpany (North Anna Power Staticn, i

Units 1 and 2), CLI-76-22, 4 NRC 480,-491'(1976), aff'd sub nom.

h Virginia Electric and Power Conpany v. NRC, 571 F. 2d 1289 (4th Cir.

1978; Consuners Power Cenpany (Midland Plant, Units 1 and 2), ALAB-691, 16 150'897, 912-13-(1982), review declined, CLI-83-2, 17 NRC 69 (1983).

'Ihere is one PRC licensing precedent which seems to control j:

' here.

In Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A,' 2A, 1B,' 2B, ALAB-367,SNRC 92 (1977), the appeal board concluded

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i that a statement by an anonynous expert witness to a ncn-expert witness

.411ch the latter proffered as substantive evidence was unreliable and, therefore,, inachissible. In that case, the lay witness offered the L

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expert's statement in a self-serving way.

In the instant matter,

.' Staff. witnesses,.with some co @izable expertise, characterized the hearsay of phantczn witnesses who frun the circJmstances differed from the Staff's interest in a material way. In this adjtzlication, Staff L witrama= were questicned at length about unknown persons whczn they supervised, and who may have had closer " hands-on" awareness of the basis and inplications of Heport 81-19 than the witnesses testifying on behalf of Staff. 'Itus Staff witnesses had the luxury, or license, of being able to characterize their inferiors' statenEnts, in

.cuatmai, as.well as intensity or inplication, without fearing any lack-

~

ing un duuration, because the identities of the witnesses could not be disclosed by ruling of this Boarti. 'Ihe NRC should remain mindful of how the strident warnings of an inspector raned Janes Creswell, frun the same office at Region III, were icpored, and how the accident at

'Ihree Mile Island resulted.

'Ibe great weight of federal court caselaw lerds weight to this conclusicn, Mr. Chief Justice Hughes stated epite a while ago that

"[m]ere incorroborated hearsay or rutor does not constitute substantial evidence". Consolidated Edison Co. v. NLRB, 305 U.S.197, 229-30 (1938).

- the Chief Justice also held that reliance tpon uncorrriaorated hearsay or rumor nms counter to evidence having " rational probative forx:e".

'Id. at 230.

'!he " corroboration" requirement, that hearsay may becuic acknissible in administrative proceedings when buttressed cirt:umstantially, is clearly applicable to the issue at hand. Moreover, the Licensing Boarti could not allow its findings with respect to the " phantom inspec-tors" to rest tpon hearsay alone, nor tpon hearsay corroborated merely by scintilla. Willapoint Oysters v. Ewing,174 F. 2d 676, 690 (9th Cir.

1948), cert. den., 338 U.S. 860 (1949). In view of the. strangely guaran-teed ancnymity of the phantom inspectors, it is hard to believe that the nature and intensity of their concerns was reflected by reliability beyond the scintilla level.

Hearsay bc,.uies acknissible as evidence at the point at which the corroborating evidence makes it reliable and substantial, with pro-

'bative value. Jacobowitz v. U.S., 424 F. 2d 555 (1970); Glaros v.

Imnigration and Naturalizaticn Service, 416 F. 2d 441 (C. A. Ga. 1%9) ;

Martin-Mc:raku.a v. Imnigraticn and Naturalizaticn Service, 499 F. 2d 918, Page 7.

7 -.

cert. den. 419 U.S. 1113 (1974). Moreover, it is not the nature of hear-say which is sicpiificat'in determining admissibility, but rather its probative value, reliability and the faimess of its use. Calham v.

Bailar, 626 F. 2d 145 (C.A. Cal. '1980), cert. den.101 S. Ct. 3033 (1980). :3m allowance of hearsay of the sort at issue was not fmda-i g

mentally fair. _ History, it has been said, is the art of making the dead dance for us. That is exactly what the Staff did with its phantom inspectors. (kily a ocupelling public policy could militate against disclosure of the identities of the phantcus - which was not present here.

l It is all too easy, in pr W of this type, to ignore L

the fact that dry, highly technical <+vunantary evidence fails to fore-shadow the all-too-human colorations which go'into so-called " objective" i

data ocapilation. The Staff waited mtil May 24, the first day of the adversarial trial cn this issue, to arMm the May 18, 1983, memorandum

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describing the intmia1 dissensicris for the first time.

Tr. 1011.

1 hat. lassitude, and the.mle of the Licensing Board protecting the i

ancriymity of the phantcms, had the effect of denying intervenors the i

opportmity to 9*-na them and to prove or disprove the credibility of the Staff's testimony through cross-examination. Golcberg v. Kelly, 397 U.S. 254,' 270 (1970). Written reports properly may be received as t

substantial evidence-in ackninistrative hearings 4mly where the adverse party has had the opportunity to call the.witneases to which the r @ its j

[

are attributed for probative cross-examinaticn. Richardscn v. Perales, 402_U.S. 389, 402 (1971), approved 'and followed in Duke-Power Co.,

_ stpra, _ at 412 fn. 47.

However, even docurnents underlying a written j

report nust be available for use in cross-examinaticn. Carter-Wallace,

)

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Irc. v. Gardner, 417 F. 2d 1086 (4th Cir.1%9), cert. den sub. ncm.

Carter-Wallace v. Finch, 398 U.S. 938 (1970), approved and followed j

-in Duke Power Co., supra. In the preset matter, intervenors were cut off frun ascertaining, via extended discovery, the facts, basis or founda-I tions of the Staff's in-house dissensions. As the Suprene Court noted I

in Gol< berg v.. Kelly:

[W]here governmental action seriously injures an individual, the reasonableness of-the action defa.h cn the findings, the evidence used to prove the GovernnenL's [ sic] case must be dis-

~ closed to tne irxilvlaual so v. nan ne ras an i

opportunity to siew that it is untrue.

Page 8.-

While this is inportant in the case of doctznentary evidence, it is even more inportant where the evidence consists i

of the testunony of individuals whose memory micfit be faulty or who, in fact,

[

might be perjurers or persons notivated 1

by malice, vindictiveness, intolerance, prejtriice, or jealousy.

397 U.S. 254, 270 (1970)

(errphasis supplied)

To the enphasized list of factors above, Sinflower would add the licensing panel's excessive belief in Staff infallibility and its trwillingness to believe vocal and militant staff subordinates.

It is disconcerting that the Staff acknowledged that Region III's Cordell Williams' esement ccnferences with one phantcm inspector nunt)ered " ten", occupying "the better part... [al... week and a half", (Tr 1855) yet at hearing the Staff remained finn in the posi-

'tien that no substantive evidence, but only opinicn, could come frczn the swom, personal appearance of the phantem(s).

Mr. Williams' self-serving assertion that he encourages his underlings to expmss opinions (Tr.1802) does nothing to dispel the suspect reliability of the Staff's testintny conceming the Applicant's QA/QC program modificaticns since Report 81-19.

It was anomalous for the hearing panel to requim the intervenors to prove the phantcms to have relevant substantive facts to

- add to the record before they could be conpelleci to appear and add that subia w.

It may be true that the intervenor had the burden of going forward, either by direct evidence or by cross-examinaticn, as to issues raised by their contentions. Philadelphia Electric Co. (Limerick Generating.Staticn, Units 1 and 2), 8 AEC 381, 388-89 (1974). However, the federal courts have questioned whether that requirement strictly holds when the informaticn is in the hands of the Staff or an applicant.

See, eg, York Comnittee for a Safe Environment v. NRC, 547 F. 2d 622, 628 (D.C. Cir.1976).

One footnote to this ccntroversy is in order. 'Ihe Licensing Board has made aware, through official notice, of a menorandum from Region III Reactor Inspector K. R. Naidu dated June 29, 1983 and directed to the Boarxi. Naidu assured the Board below that his vievs were " adequately expressed" in the May 18, 1983, Keppler menorandan concerning the phantom inspectors. Even if the Board presumed Naidu to be one of the phantoms, and would take as unsolicited Naidu's assurances, a one-page Page 9.

A letter ill satisfies the seart:h for truth here.

For all of these reasons, the Appeal Boarti should reverse the Licensing ~ Board and direct the reopening of the AQ/QC contenticn for consideration of the testimony of the phantcra witnesses.

Exception No. 4: The Licensing Boarti incorre.:0,1y refused to reopen the QA/QC record for adjudica-tion in its Novenber 10 and Der 2, 1983 decisions.

In s@ port of this exception, Sunflower urtjes the Appeal Boarti to weigh the evidence tpon which the licensing panel's Noveuber 10 and Decenber 2,1983 determinaticns were based, to reverse them as being based upcn an insufficient evidence, and to reopen the QA/QC recorti.

Exception No. 5: The Licensing Board incorrectly inter-preted the sta M. of CFR Part 50, Appendix B, Criterion XVI.

In its " Partial Initial Decisicn," the inferior panel took it upon itself to define the Criterien XVI requirement that adverse condi-tions and rua.odormances be "pronptly identified and corrected." 1he Licensing Boarti adopted a " reasonableness test" - that serious prdblens in QA/QC may require inmediate resolution, and less-serious matters conmensurately may take nore time.

Critericn XVI states:

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Measures shall be established to assure that canditicns adverse to quality, such as failures, malftnctions, deficiencies, deviations, defective material and equipnent, and nonconformances are prtmptly identified and corrected. In the case of sicylificant conditicos adverse to quality, the measures shall assure that the cause of the canditicn is detertnined and corrective acticn

'taken to preclude repetition. The identification of the sicylificant condition adverse to quality, the cause of the condition, and the corrective

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action taken shall be docunented and reported to appropriate levels of management.

(enphasis supplied)

The Appeal Boarti should rely upon the wmcelity of experience that "prutptly" means "as quickly as hurenly possible". This is the only interpretaticn that reasonably attaches to the phrase, in light of the focus of this regulaticn upon all-inportant safety-related equipment.

It is also the cnly sensible readino frun a dollars-and-cents perspective.

Costs can best be minimized by early and quick response to prt>blems identi-fied by quality assurance programs. Ixng-term plant outages, or expen-sive accidents can optimally be rechred by fast, early acticn. F1wpb ess

y is central to staying within cne's means, especially in the cunbersme ccuplexity of plant construction.

'Ihe Applicant is allocated the burden of proof by the federal Administrative Procedure Act. 5 U.S.C.A. 6556(d). Fbrther, this Board nust grotnd its findings upon " reliable, probative and substantial evidence".

Id. As the adjudication rt::orti rev*,

Applicant has not established a proven trhek recorti of "pruipt" identification and correc-ticn of quality assurance problems.

Excepticn No. 6: 'Ihe Licensing Board erred in finding that the Applicant and/or L. K. Cmstock timely took corrective actions concemmg ARs and CARS.

'Ihe Licensing Boarti requested Applicant to conduct a " play-by-play" description of Applicant's supervision of L. K. Comstock, Tr.1006, which narrative appears as direct e:: amination in the record.

Tr. 1483-1543.

'Ihe. blow-by-blow linear history raised as many questions as it answered. In April, 1979, Applicant noted "Comstock had inproved, substantially, the materials in the plant".

Tr. 1502.

In August, 1979, Cwm^wck was giving nuch attenticn to safety-related duct bank installa-ticn.

Tr. 1503.

In January, 1980, Applicant believed Comstock was

" making progress in the audit area".

Tr. 1506. An inprovement in Cwe'wck's QA/QC marning was seen by Applicant in March,1980.

Tr. 1507.

"Significant inprovenent" was noted in June,1980, with in-process inspec-tiens.

Tr. 1509-10. In October 1980,,in-process inspections by Comstock were inproving.

Tr.'1512.

In Novenber of.1980,.Cmstock was "tpgrading" training of craft personnel, and rars.ulormance report writing was up.

Tr.1514. Applicant noted " good staffing inprovenents" in SepteTber, 1981.

Tr. 1527.

February, 1982, saw issuance of a stop-work order by Applicant against Cwet.ock ccnceming welding and inspection techniques.

Tr. 1532.

In March, the NRC conducted a major cnsite meeting.

Tr. 1534. Cmstock's craft manpower was greatly increased, and other changes made.

Tr. 1533-4.

Additicnal NBC-Applicant meetings took place, with additional changes made.

Tr. 1537.

Miat Applicant established was a pemicious pattem of cause l

and effect.

t. hen NRC pressure was exerted, changes - in both AT icant and Ccrnstock QA perfornance - came rapidly. As one reviews Report 81-19, it is clear that Applicant's corrective actions were perpetually effected Page 11.

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'only after NRC investigative activity had taken place. This did not set tp the requisite hallmark of confidence and assurance which was needed in this case. The fact that re Ccrnstock witnesses were produced by Applicant at trial further underscores Applicant's aversion to sub-i 1

jecting the docmented history of QA problens to closer scrutiny.

Applicant always has the ultimate burden of proof.

10 CFR 2.732.

The burden of persuasion should depend upon the gravity of the matters in centroversy. Virginia Electric & Power Co. (North Anna Power Staticn, Units 1,2,3,4) 1 NRC 10,17 at n.18 (197S). Applicant has not had the vpportunity to demtnstratq for any length of time, a period of QA supervisicn which has not been provoked by NRC regulatory activity.

Exceptico No. 7: The Licensing Board erred in holding that Applicant evidenced satisfactory oversight of L. K. Comstock.

Report 81-19 is the product of a six-nonth investigation by Staff which was initiated when present and past workers at the plant ccriplained to Region III. The subsequent probe by Staff failed to sub-stantiate the initial allegations in any material way, but Staff identi-j fied theretofore tnknown quality assurance difficulties.

The sicylificance of Report 81-19 is evident on the face of its intricate details. The document is an extremely severe critique of contractor Cws: duck, and by inplication if not explicaticn, of Applicant.

It is therefore disturbing to the Board that the Staff chose not to update its 1982 SALP report by way of rating the Perry site in the electrical area because it " felt that they were still in a recovery stage frun the previous problems identified by Report 81-19".

Tr. 1588-9.

By transmittal letter dated February 10, 1983, Staff sent Applicant its most recent SALP, for the period 10/1/81 through 9/30/82. That SALP is the report ackrx:wledgirg that generally Applicant took " appropriate corrective action cn NRC identified items". SALP at 10.

Taken together, these two facts point.to the ccnclusion that t

insufficient Applicant oversight had passed over Perry's GA/QC riam.to ~

s p that the Applicant takes enough initiative in the QA oversight area.

See Report 81-19 at 95, that "CEI had failed to identify the findings of this investigation independent of the NRC".

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J SERVICE LIST Docketirg & Service Secticn Office of the Secretary U.S Nuclear Regulatory Ccmnissicn Washingtcn, D.C.

20555 Colleen P. Woodhead, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Ccmnissicn Washingtm, D.C.

20555 Jay Silberg, Esq.

Shaw, Fittman, Potts & Trowbridge 1800 M Street, N.W.

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Washington, D.C.

20036 Atanic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Ccmnission Washington, D.C.

20555-Susan L. Hiatt 8275 M.nson Road Mentor, Ohio 44060 Christine N. Kohl, Chainnan Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Ccmnission Washingtcn, D.C.

20555 Dr. W. Reed Johnscn Atanic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Ccmnissicn Washington, D.C.

20555 Gary J. Edles, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Ccmnissicn Washingtcn, D.C.

20555

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ML20087L194

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