ML20091B234
| ML20091B234 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 05/25/1984 |
| From: | Nichols N, Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL, NUDOCS 8405300220 | |
| Download: ML20091B234 (20) | |
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C0CKETED UBRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION FT'j.g G 5t r-Before the Atomic Safety and Licens(i k BostdPV In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352 %
)
50-353 g (Limerick Generating Station,
)
Unita 1 and 2)
)
APPLICANT'S REPLY TO AWPP'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO CONTENTION VI-1 Introduction On May 22,
- 1984, Air and Water Pollution Patrol
("AWPP") filed its Proposed Findings of Fact and Conclusions of Law regarding Contention VI-1 pursuant to the Atomic Safety and Licensing Board's
(" Licensing Board" or " Board")
oral order of May 10, 1984.1/
Contention VI-1, as admitted by the Board, reads as follows:
Applicant has failed to control perfor-mance of welding and inspection thereof in accordance with quality control and quality assurance procedures and re-quirements, and has failed to take proper and effective corrective and preventive actions when improper welding has been discovered.
1/
Air and Water Pollution Patrol (Romano) Findings and
~
Conclusions Re Contention VI-1 (May 22,'
1984)
(" Proposed Findings").
The Board's Order is found at Tr. 11,051.
.- [
O!
y bso
i 2-i*
l In its order, the Board stated that AWPP was to point l
to any record evidence in its filing of proposed findings i
and conclusions of law that would indicate that Contention VI-1 has merit and that the Applicant had not carried its burden of proof on this issue.
Tr. 11,049-52.
This AWPP was unable to do.
Its assertions relate to procedural or extremely minor matters rather than substantive issues l
l concerning welding and welding inspection.
Its proposed l
findings failed to address any of the specific instances advanced in support of its contention and admitted by the Board or show how, in combination, they demonstrate that the contention has merit.
In short, AWPP has raised no points l
contradicting the cases put forth by the Applicant, l
Philadelphia Electric Company, or the NRC Staff.
l Inasmuch as AWPP's Proposed Findings and Conclusions of.
Law present no facts or arguments whatsoever by which it could be concluded that the Applicant has not overwhelmingly met its burden of proof on this contention, the Board should find that the Applicant has fully controlled performance of welding and inspection thereof in accordance with quality control and quality assurance procedures and requirements, and has taken proper and effective corrective and preventivo actions when improper welding has been discovered.
Accord-ingly, the Board should enter a decision confirming this conclusion.
Nevertheless, Applicant has addressed, below, the items raised by AWPP in its pleading l
l l
l l-
Discussion AWPP first asserted that it was prejudiced because it did not understand tha.t the documents the Applicant in-troductid as exhibits could be used for the truth of the matters contained therein and that it had intended to show that this material lacked credibility.2_/
Initially, those documents had been provided to AWPP months in advance of tho hearing as part of the discovery process.
The record indicaten that the Board specifically questioned Mr. Romano as to whether he had any objection to admitting thesa documents into evidence and further explained that, onco I
- admitted, they could then be used for the truth of the matters assorted.
Tr.
10,322.
Mr.
Romano nonetholoss stated that he not only had no objection to this proceduro, but that he expected to uno "the same documents as support-ing material."
Tr.
10,322.
This cortainly bolios Mr.
Romano's statement that he consonted to the admission of these documents only because of an alleged hearing problem.
Moreover, the Board further stated that while those docu-monts were properly admissible as evidence, it would assign no weight to arguments based on exhibits as to which thoro had boon no testimony adduced at hoaring.
Tr. 10,326-27.
Inasmuch as these exhibits woro used at hearing only to the
.oxtent that they were related to mattors not forth in the 2/
Proposed Findings at 1.
l
i documents originally submitted to the Board and parties as
[
part of AWPP's required March 6,
1984 specification of issues, AWPP could not possibly have been prejudiced by their admission, even had its consent to their admission not f
otherwise been fully and fairly granted.
Furthermore, AWPP does not point to any specific documents admitted into i
evidence as prejudicial to its case.
In the absence of even an allegation of specific prejudice, this argument has absolutely no merit.
Further, as to Mr. Romano's assertion that his diffi-i culty in hearing coupled with poor acoustics in the hearing room led to his mistakenly consenting to the admission of these documents into evidence, a representative before the Board has an affirmative obligation to ensure that it properly understands all matters to which it is consent-
[
ing.M To hold otherwise would lead to a
permanently unsettled record.
The Board, on a number of occasions, had testimony or statements repeated at Mr. Romano's request.
Moreover, AWPP did not object at any other time during the hearing to the use of any of these documents, a fact.which also belies its argument that a problem with Mr. Romano's hearing led to their admission.
AWPP then asserted that the Board made it feel as if it were not allowed to question the qualifications of the 3/
Id.
1
Applicant's witnesses.1 To the
- contrary, the record indicated that AWPP spent a portion of the first and second hearing day s questioning those witnesses as to their quali-fications regarding welding quality assurance.
The only statement which AWPP cites in support of its argument consists of a passage in which the Board informed Mr. Romano that the witnesses' written qualifications had been bound into the record and that there was therefore no need to reiterate the particular information contained therein.
In the words of the Board, "[t]he idea is to probe further beyond the material already in evidence. [and) not to just report what is already on the qualifications statement."
Tr.
10,344.
The Board in no way restricted AWPP's ex-amination into the professional qualifications of those witnesses.
- Indeed, as noted previously, AWPP questioned them extensively in this regard.
AWPP next asserted that its failure to properly present its case was exacerbated by the fact that Dr. Iversen was not permitted to testify on its behalf and that AWPP conse-quently had to change its plans during a fifteen minute break.5_/
Briefly, given the fact that AWPP had violated all of the Board's requirements regarding the identification of witnesses and advance filing of testimony, and that the 4/
Id. at 2.
5/
Id. at 6.
L
Board had previously issued a written order striking Dr.
Iversen's testimony in advance of the hearing,6/
gggpp should have anticipated that Dr.
Iversen might not be permitted to testify and planned its participation accord-ingly.
There was certainly no guarantee that Dr. Iverson would be permitted to testify.
The Board's written ruling and subsequent oral ruling in this regard was entirely correct.
Moreover, the Board's rejection of Dr. Iversen as a
witness should have in no way affected AWPP's cross-examination of the Staff and Applicant's witnesses, who were known to Mr. Romano and who had presented written testimony well in advance of the hearing, and for whom AWPP had been required to prepare cross-examination plans in advance of the hearing.
Certainly, he has not shown how these matters were related.
AWPP's claim that the required list of specifications it filed on March 6, 1984 was meant only as an example of the types of specifications it intended to rely upon at hearing and not as an exhaustive list of what it would present is disingenuous.1/
As early as October 28, 1983, the Board had informed AWPP that it was to " file a list of all instances of improprieties which
[would) form 6/
Memorandum" and Order Ruling on Pretrial Motions Regarding Testimony on Contention VI-1 (May 2, 1984).
7/
Proposed Findings at 5-6.
.. O its case on the merits of the contention."8_/
(Empha-sis Added).
This instruction was repeated time and again in various Board orders and discussions with the
- parties, including AWPP. -
AWPP's further claim that it felt it was unnecessary to comply with the Board's orders because of its
" layman inexperience" is also totally without merit.NI AWPP had previously participated in the litigation of another con-tention (AWPP Contention V-4) before this Board and was fully aware of its obligations as a party to specify issues and to fulfill the substantive and procedural obligations set forth by the Board.
Moreover, it should have been clear to any layman that he would not be allowed to rely on new examples at the last minute without good cause after the other parties had spent substantial time and effort prepar-ing their cases on the basis of numerous other previously submitted specifications.
See Tr. 10,432.
As to AWPP's next claim, there is simply no evidence that the Applicant's witnesses gave " elongated" answers in
?
8/
Memorandum and Order Confirming Rulings Made at
~
Prehearing Conference (October 28, 1983)
(slip op. at 5).
9/
- See, e.g., Memorandum and Order Confirming Rulings Made at Hearing (January 20, 1984)
(slip op, at 3);
Memorandum and Order Donying AWPP's Motion for Extension of Discovery Time and Appointment of Private Detective (February 28, 1984) (slip op. at 2).
M/
Proposed Findings at 5-6.
order to evade the questions asked by Mr. Romano.NI As noted by the Board during the course of the hearing, many of the questions posed by Mr. Romano were no general as to be incapable of a specific answer.
Tr.
10,510.
As further noted by the
- Board, even though many of Mr.
Romano's questions were improper because because of their compound or incomprehensible nature, the Board all but prohibited other counsel from objecting to them in an of fort to assist Mr.
Romano.
Tr. 10,878-79.
The Board also noted that if it thought for a moment that the witnesson woro filibustering in any way it would have stopped them, and that that was not the case with those witnesson.
Tr. 10,879.
In the particular exchange pointed to by AWPP as an example of the Applicant's "clongation" tactics,NI Mr.
Romano asked the Applicant's witnces, Mr. Corcoran, whethor there were writton proceduros to ensure the propor selection of weld samples.
Mr.
Corcoran answorod that thoro are indood proceduros which instruct auditors how to prepara i
for, scopo and conduct an audit.
Tr. 10,468.
Given the broad nature of this question, Mr. Corcoran's answer was entirely appropriato and not inordinatoly long.
AWPP's assertion that Mr. Manley's testimony concerning the commercial availability of welding aids was contradicted 11/
Id. at 7.
12/
Id.
9 by Dr. Fisher's testimony is incorrect.13/
Although Jr.
Fisher originally stated that he thought welding extensions could be purchased commercially, he subsequently testified i
that he had merely assumed that this was true, and that upon discussing this matter with other welding engineers realized that his earlier statement was probably incorrect and that the extensions he' had previously viewed were probably hand manufactured on location from availablo materials.
Tr.
10,946.
In any event, AWPP f ailed to demonstrate how any such alleged inconsistency is probative of its contention.
Also contrary to AWPP's assortions, it was not in-structed that there was no need for it to submit Findings of Fact and Conclusionc of Law, nor was there any implication that the Board has aircady rondorod a decision against AWPP.0/
The Doard informed AWPP at the conclusion of the hearing that, while in its opinion AWPP had not prononted any evidence contradicting or opposing the Applicant's evidence, it was giving )WPP an opportunity to file Proposed Findaugs and Conclusions of Law dota'. ling any record evi-dance contradicting this view.
Tr. 11,046-53.
And indood, it was in romponse to this discussion that AWPP filed the instant document.
13/
Id. at 8.
14/
Id. at 2, 8.
AWPP's statement that Mr. Coyle admitted that he had inspected welds without proper training or experience is incorrect.EI The supporting transcript
- citation, Tr.
10,365, reveals only Mr. Coyle's statement that if he "gets to the point where I have to actually inspect or see a wold which is questionable in my mind, I call for assistance Tr.
10,365-66 (Coyle).
Ile then stated in thie respect that "I audit but I do not make the acceptability datormination.
That is done by a QC inspector."
Tr. 10,366 (Coyle).
Thus, AWPP's assertion is erroneous.
Nor is there any basis for AWPP's statomonts that Mr.
Corcoran and other members of the Limerick quality assurance program have minimal experience and capability.EI The transcript pages cited by AWPP, Tr. 10,361-62, certainly do not support this proposition.
Likewise, thoro is no evi-donce that Mr. Coyle, to whom AWPP specifically refers, is unqualified for his position.
AWPP's statomont that Mr.
Coyle had only a one week course in load auditing is taken out of context.
Mr. Coyle made this statomont in response to Mr. Romano's question concerning how much of his audit training was provided by llochtel Power Corporation, to which he replied "orio wook."
flon Tr.
10,365 (Coyle).
This statement in no way purported to be an oxhaustivo rendition 15/
Id. at 3.
M/
E
of Mr. Coyle's training as a quality assurance auditor.
As Mr. Coyle testified at hearing, his education as an engineer and further specific training in quality assurance methods and procedures all contributed to his ultimate qualifica-tions as a quality assurance auditor.
See Tr. 10,365-79.
AWPP then stated that its allegations concerning IE Inspection Report 76-06-01 were still unresolved because the NRC Staff inspector who had originally reported this defi-ciency, Mr. Toth, was not presented at hearing as a wit-ness.
/
Preliminarily, AWPP at no point, either prior to 17 or.during the hearing, made a request to the Board that Mr.
Toth be put on the stand.
More importantly, Mr. Toth's presence as a witness was not reg'uired inasmuch as the Applicant and Staff's witnesses fully explained what took place concerning the incident in question and the details surrounding its resolution.
AWPP has failed to allege with specificity any evidence to. the contrary.
Any further evidence would have only been~ cumulative in any event and would have had no additional probative value.
l' AWPP's assertions..concerning allegedly deficient thermometers and methods of weld rod oven calibrat' ion are totally misplaced.18/
The Board correctly ruled at hearing that this matter was not-specified by Mr. Romano in his 17/
Id. at 8-9.
18/
Id. at 10.
~....
March 6,
1984 list of specifications.
More importantly, with respect to the thermometers received by an = allegedly non-qualified inspector, the testimony indicated that this matter had nothing whatsoever to do with welding.
The inspector in question was only a receipt inspector responsi-ble for inspecting incoming shipments for identification, size, configuration, and particularly shipping damage.
His work in no way involved welding inspections.
Tr. 10,R83-84 (Corcoran).
Even if the individual identified in NRC Inspection Report 80-12 had served as the receipt inspector for the thermometers in question, it would have made no difference in any event.
The testimony indicated that another quality control engineer or inspector would have been resconsible for verifying that the weld rod ovens were actually maintained at the proper temperatures.
Tr. 10,886 (Corcoran).
AWPP repeatedly asserted that it was hampered in the presentation of its case by the lack of counsel and that the Board should have appointed an attorney to represent it, or have at least informed the parties that they should retain counsel.19/
Preliminarily, the parties have been free to retain counsel at any point during the proceeding.
The Board additionally advised Mr. Romano that he should have r
sought non-legal assistance both from other members of AWPP 19/
Id. at 1, 6, 11.
b.
and persons outside that organization.
As to AWPP's as-sertion that the Board should have appointed counsel to represent it, the Commission's regulations do not provide for such action which fact has been repeatedly explained to Mr. Romano.
In connection with its argument that it was prejudiced in the presentation of its case by the absence of legal counsel, AWPP also asserted that it was hampered by the Board's restrictive application of highly technical and formalized courtroom rules and procedures. b This argument simply has no merit.
The Board was patient and tolerant of AWPP even beyond what was reasonably required for.a party not represented by counsel.
For example, in the cited instance, Tr.
10,451, the Board was merely attempting to determine, as a mechanistic matter, which portion of the many cross-examination plans submitted by AWPP was being used at that particular time.
- Further, Mr.
Romano was correctly not permitted to conduct voir dire examination of the Staf f's witnesses at that particular time because the Applicant's, and not the Staff's, witnesses were on the stand.
The Staff's witnesses subsequently took the stand in accordance with normal procedure and AWPP questioned them at i
l length as to, inter alia, their qualifications.
i 20/
Id. at 5, 6.
l
e.'
The Board's requirements for participation in this proceeding, including that by AWPP, have been minimal and have been imposed only to the extent necessary to ensure that the proceeding was conducted in an orderly fashion.
Mr.
Romano's lack of preparations and unwillingness to adhere'to the minimal requirements imposed by the Board are the only factors that may have prejudiced its case.
AWPP then claimed that confidence is not warranted in the Applicant's welding quality assurance program because Mr. Corcoran stated that, when appropriate, as a rule of thumb he would, in the first instance, select 10% of a class of welds for auditing and then, in one instance, selected a sample of 52 instead of 42 from a class of 423 welds.21/
This assertion is utterly preposterous.
In the first place, as noted by AWPP, the selection of an 10% sample is only a rule of thumb and is not based on any requirement.
- Also, obviously, as was described to Mr. Romano at hearing, a sample of 52 rather than 42 is actually larger than 10% of I
the subject population and thus ensures the greater re-l liability of the sample.
Tr. 10,781-86 (Corcoran).
Contrary to AWPP's assertion, the Applicant and Staff counsel's understanding of statistics is irrelevant to this l
l contention.22/
Also, as discussed previously, DJ.
Iversen i
i l
l 21/
Id. at 2.
1 22/
Id. at 5.
l
o..
was not permitted to testify as a witness on behalf of AWPP because of its failure to meet the Board's requirements concerning, inter alia, prefiled testimony.
Most important-ly, Dr.
Iversen's testimony, even it it were otherwise proven that he was qualified to testify, would have added nothing to the record on the Board's understanding of the issues at hand.
AWPP was given the opportunity to make a proffer as to Dr. Iversen's testimony and was given adequate opportunity to argue for its admission.
The reasons for the Board's rejection are clearly contained on the record.
See Tr. 10,428-35.
More importantly, the Applicant's witnesses testified at hearing that all safety-related welds at Limerick are inspected, thus effectively eliminating the need for statistically based sampling program.
- Moreover, those welds that are further re-examined are selected on the basis of past experience or a demonstrated problem, which ever is more appropriate, thus again decrying the need for statistical sampling.
Tr. 10,462-63.
Finally, contrary to AWPP's further assertion, Mr. Corcoran in no way admitted that the Applicant had a weak weld sampling program.
/
23 l
This cited transcript pages, e.g.,
Tr.
10,436, do not support this statement.
l AWPP's statement that Mr. Corcoran "tried to cover up the absence of Mr.
Ferretti's initials on the weld 23/
Id.
l
o.
(discussed in IE Report 76-06-01]" is unsupported by the record evidence.24/
The record indicates only Mr.
Corcoran's statement that weld inspectors are required by inspection procedures to initial a weld once they have inspected it.
Mr. Corcoran fur'her stated that he could not recall looking for the subject inspector's initials on the weld in question at the time he and the NRC inspector examined it in 1976.
He further explained that inasmuch as those welds were replaced, they could not be subsequently checked for the inspector's initials.
The testimony did indicate, however, that the same inspector's initials have i
been identified on other welds at that elevation.
Tr.
10,614-17 (Corcoran).
Finally, AWPP appears to contend that the Board incor-rectly excluded its questions concerning NRC Inspection Report 75-21, relating to, inter
- alia, mandatory hold points.E Again, as the Board ruled during hearing, this report was not part of AWPP's required March 6, 1984 speci-(
fication and it was, therefore, properly excluded from l-consideration.
Tr. 10,847.
Conclusion For the reasons stated above, the Board should reject the Findings of Fact and Conclusions of Law proposed by AWPP i
l l
24/
Id. at 9.
25/- Id. at 10.
l l
- r..
and find that the Applicant has fully met its burden of proof with respect to proving that it has fully controlled the performance of welding and inspection thereof in accord-ance with quality control and quality assurance procedures and requirements, and has taken proper and effective correc-r tive and preventive actions when improper welding has been discovered.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
.M f
Mark J. Wetterhahn Nils N. Nichols Counsel for the Applicant May 25, 1984 l
I l
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o a
CCLKETEC USNRO UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFFL;LF H Wn -
00CHETING & SER.
In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
CE TIFICATE OF SERVICE I hereby certify that copies of " Applicant's Reply to AWPP's Proposed Findings of Fact and Conclusions of Law Relating to Contention VI-1,."
in the captioned matter have been served upon the following by deposit in the United States mail this 25st day of May, 1984:
- Lawrence Brenner, Esq. (2)
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section
- Dr. Richard F. Cole.
Office of the Secretary Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission L
Washington, D.C.
20555
- Ann P. Hodgdon, Esq.
Counsel for NRC Staff Office
- Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory l
U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 p:
(
l Hand Delivery on May 29, 1984
- Hand Delivery i
l
T '
, 4 Atomic Safety and Licensing Angus Love, Esq.
Board Panel 107 East Main Street U.S. Nuclear Regulatory Norristown, PA 19401 Commission Washington, D.C.
20555 Robert J. Sugarman, Esq.
Sugarman, Denworth &
Philadelphia Electric Company Hellegers ATTN:
Edward G. Bauer, Jr.
16th Floor, Center Plaza Vice President &
101 North Broad Street General Counsel Philadelphia, PA 19107 2301 Market Street Philadelphia, PA 19101 Director, Pennsylvania Emergency Management Agency
- *
- Mr. Frank R. Romano Basement, Transportation 61 Forest Avenue and Safety Building Ambler, Pennsylvania 19002 Harrisburg, PA 17120 Mr. Robert L. Anthony Martha W.
Bush, Esq.
Friends of the Earth of Kathryn S. Lewis, Esq.
the Delaware Valley City of Philadelphia 106 Vernon Lane, Box 186 Municipal Services Bldg.
Moylan, Pennsylvania 19065 15th and JFK Blvd.
Philadelphia, PA 19107 Limerick Ecology Action P.O. Box 761 762 Queen Street Spence W.
Perry, Esq.
Pottstown, PA 19464 Associate General Counsel Federal Emergency Charles W.-Elliott, Esq.
Management Agency Brose and Postwistilo 500 C Street, S.W., Rm. 840 1101 Building Washington, DC 20472 lith & Northampton Streets Easton, PA 18042 Thomas Gerusky, Director Bureau of Radiation Zori G. Ferkin, Esq.
Protection Assistant Counsel Department of Environmental Commonwealth of Pennsylvania Resources Governor's Energy Council 5th Floor, Fulton Bank Bldg.
1625 N. Front Street Third and Locust Streets Harrisburg, PA 17102 Harrisburg, PA 17120 l
- Jay M. Gutierrez, Esq.
U.S. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, PA 19406 i
l~
Federal Express E
F 1 4 James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380
\\.
Nils N. Nichols I
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