ML20090H364

Reply to Util Objections to Joint Intervenors Proposed Exhibits.Objections Should Be Overruled.Certificate of Svc Encl

ML20090H364
Person / Time
Site:	Diablo Canyon
Issue date:	10/25/1983
From:	Havian E CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8310280097
Download: ML20090H364 (8)

Text

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l DOCKETED UNITED STATES OF AMERICA USNHC NUCLEAR REGULATORY COMMISSION 53 GH 27 Mi:2.8 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 0FF";d 0F SEC?fiAC 00Cr;Litn3 & SERYM '

) BRANCH In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

)

JOINT INTERVENORS' REPLY TO PGandE'S OBJECTIONS TO EXHIBITS Pursuant to the Appeal Board Order dated October 7, 1983, Joint Intervenors hereby reply to PGandE's objections to certain exhibits to be offered in evidence by the Joint Intervenors at the reopened proceeding.1/

PGandE objects to the Joint Intervenors' Proposed Exhibit 128 (" Case Study C") on the basis that this document is not relevant to the issues in the reopened hearings. PGandE argues (1) that because the case study addressed quality 1/ Although the NRC Staff did not formally object to the introduction of Joint Intervenors' Exhibits, it did send a letter to the Board noting a number of matters which "should be brought-to the Appeal Board's attention." Since no objections are interposed, Joint Intervenors do not reply to the Staff's letter.

8310280097 g31025 gDRADOCK 05000275 m@

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assurance deficiencies during the period prior to September 1981,2/ the document is beyond the scope of the Board's August 16, 1983 Order; and (2) that the statements in the report are not subject to cross-examination, presumably due to the lack of a named individual as a sponsoring witness. As will be demonstrated, both objections are without merit, as is evidenced by PGandE's own pre-filed Exhibits and Testimony.

While it is true that the adequacy of PGandE's

' pre-1981 quality assurance program is not an issue in this proceeding, since,all parties have conceded that the program did not in fact comply with Appendix B, the causes of the breakdown in quality assurance are unquestionably at issue. For example, one area of controversy in the reopened proceeding is whether the IDVP and the ITP can justify a lesser level of review for non-seismic, as opposed to seismic design. The explanation offered by PGandE and the IDVP has been that there were significant differences between seismic and non-seismic design work, all of which was done before September 1981, which warrant the lower level of verification for non-seismic. Case Study C contains an analysis of the basic causes for the design quality assurance breakdowns which allowed the design errors to remain undetected. If the conclusions of the Study are true, including the determination that poor management attitude was one of the 2/ In fact, the study is dated July 1983, and does indeed address post-1981 quality assurance issues, including the adequacy of the Diablo Canyon Project's Quality Assurance Program.

basic causes of these errors,2/ this would indicate that non-seismic errors should be as widespread as seismic errors, absent evidence to the contrary. While PGandE may assert that it can offer such contrary evidence, surely this cannot preclude the Joint Intervenors from submitting Case Study C as proof of basic causes that would apply equally to seismic and non-seismic design.

In fact, PGandE's objection to the Study is undermined by its own pre-filed Testimony. PGandE's Panel No. 1 Testimony discusses at length the pre-1981 differences between seismic and non-seismic design, as justification for the lesser level of scrutiny required for non-seismic. Id. at 20-21. PGandE never-theless seeks to preclude the Joint Intervenors from offering an Exhibit which addresses the same issue on the ground that it is irrelevant. PGandE's position is that it can offer evidence' that a lesser level of scrutiny for non-seismic design is justi-fied by pre-1981 events, but Joint Intervenors cannot offer evidence that the pre-1981 design problems apply eaually to seismic and non-seismic.

Moreover, Case Study C is directly related to Contention 7, regarding the IDVP and ITP's failure to identify the root causes for pre-1981 PGandE design quality assurance failures. Case Study C provides a summary of primary and secondary causes for such failures. PGandE's own pre-filed Testimony also discusses the causes of pre-1981 design quality assurance deficiencies, yet conspicuously omits several of those 2/ Case Study C, at 6.

=

a mentioned in Case Study C, including poor management attitude.

- PGandE Panel No. 5 Testimony, at 2-5, 8. Because Case Study C addresses issues contained in an admitted contention, its-relevance cannot credibly be disputed, particularly in light of

- PGandE's submittal of direct testimony regarding the matter.

'PGandE also attempts to preclude the introduction of Case Study C because its conclusions are not subject to cross-examination, stating that this " hearsay problem"'i.s exacerbated by the report's status as a " draft."S/ Again PGandE's own pre-filed evidence refutes its position. Rule 803 (8) of the Federal Rules of Evidence creates a hearsay exception for public records and reports.E/ 'Indeed, PGandE's Exhibit List includes four documents, with no sponsoring witnesses, whose admissi-bility is premised on this same rule. The Joint Intervenors' ability to cross-examine witnesses with respect to these PGandE exhibits depends solely on whether the Staff decides voluntarily to offer such witnesses, or, in the alternative, whether the Joint Intervenors can compel their attendance by subpoena.

PGandE has the same recourse with respect to the author (s) of Case Study C.5/

A/ Obviously, the fact that the document is a draft goes to its_ weight, rather than its admissibility.

E/ Case Study C clearly qualifies as a public report under the definition set forth in the Rule.

5/ In fact, the Staff has stated in its letter to the Board dated October 21, 1983, that it will make witnesses available to testify with respect to Case Study C in the event that the Board overrules PGandE's objections PGandE's objection to Joint Intervenor's Exhibit 129 (the " Reedy Report") is essentially similar to its objection to Case Study C, except for the fact that no hearsay objection is made. The conclusions of the Reedy Report regarding the basic causes of'the design errors are similarly relevant to the issue of whether differences between seismic and non-seismic design warrant a lesser level of verification for non-seismic, and the issues raised by Contention 7.

CONCLUSION For the.above-stated reasons, PGandE's objections to Joint Intervenors' proposed Exhibits should be overruled.

DATED: October 25, 1983 Respectfully submitted, JOEL R. REYNOLDS, ESQ.

JOHN R. PHILLIPS, ESQ.

ERIC HAVIAN, ESQ.

Center for Law in the Public Interest 10951 W. Pico Boulevard Los Angeles, CA 90064 (213)470-3000 DAVID S. FLEISCHAKER, ESQ.

P. O. Box 1178 Oklahoma City, OK 73101 By

/.

7se--

ERIC HAVIAN Attorneys for Joint Intervenors  ;

SAN LUIS OBISPO MOTHERS FOR '

PEACE i SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APFELBERG JOHN J. FORSTER UNITED STA* 3 OF AMERICA NUCLEAR REGUTaTORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2)- )

)

)

~

CERTIFICATE OF SERVICE I hereby certify that on this 25th day of October, 1983, I have served copies of the foregoing JOINT INTERVENORS' REPLY TO PGandE's OBJECTIONS TO EXHIBITS, mailing them through the U.S.

mails, first class, postage prepaid.

• Thomas S. Moore, Chairman Atomic Safety & Licensing Appeal Board Mr. Fredrick Eissler  :

U.S. Nuclear Regulatory Scenic Shoreline Preservation Commission Conference, Inc.

Washington, D.C. 20555 4623 More Mesa Drive 1 Santa Barbara, CA 93105

• Dr. W. Reed Johnson Atomic Safety & Licensing *Malcolm H. Furbush, Esq.  !

Appeal Board Vice President & General. i U.S. Nuclear Regulatory Counsel I Commission Philip A. Crane, Esq.

Washington, D.C. 20555 Pacific Gas &-Electric Company 77 Beale Street, Room 3135 l

• Dr. John H. Buck San Francisco, CA 94106 l Atomic Safety & Licensing Appeal Board-U.S. Nuclear Regulatory j Commission  !

Washington, D.C. 20555 1

l l

l l

~~

~

Docket and Service Branch Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Lawrence Chandler, Esq.

Office of:the Executive Legal Director - BETH 042 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Janice E. Kerr, Esq.

Lawrence Q. Garcia, Esq.

J. Calvin Simpson, Esq.

California Public Utilities Commission ,

5246 McAllister Street

, San Francisco, CA 94102 John Van de Kamp, Attorney General Andrea Sheridan-Ordin, Chief Attorney General Michael J. Strumwasser, Special Counsel to the Attorney General State of California 3580 Wilshire Boulevard, Suite 800 Los Angeles, CA 90010 David S. Fleischaker, Esq.

Post Office Box 1178 Oklahoma City, OK 73101 Richard Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K' San Jose, CA 95725

, Arthur C. Gehr, Esq.

Snell & Wilmer 3100 Valley Center Phoenix, AZ 85073

• Bruce Norton, Esq.

Norton, Burke, Berry & French, P.C. l 3216 N. Third Street, Suite 202 Phoenix, AZ 85064  ;

Maurice Axelrad, Esq. l Lowenstein, Newman, Reis & Axelrad, P.C. I 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Virginia and Gordon Bruno Pecho Ranch Post Office Box 6289 Los Osos, CA 93402

. Sandra and Gordon Silver 1760 Alisal Street San:Luis Obispo, CA- 93401 Nancy Culver 192 Luneta San Luis Obispo, CA 93402 Carl Neiburger Telegram Tribune Post Office Box 112 San Luis Obispo, CA 93402 Betsy Umhoffer

• 1493 Southwood-San Luis Obispo, CA 93401 CHRISTINA CONCEPCION

• Delivered via Express Mail