ML20091P915

Memorandum on Proposed Std for Litigating Allegations of Intimidation.Applicant Bears Burden of Persuading ASLB That Util Complied W/Criterion in 10CFR50,App B.Certificate of Svc Encl

ML20091P915
Person / Time
Site:	Comanche Peak
Issue date:	06/11/1984
From:	Hicks R TEXAS, STATE OF
To:
References
ALAB-283, OL-2, NUDOCS 8406130220
Download: ML20091P915 (6)

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iw UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '84 g BEFORE THE ATOMIC SAFETY AND LICENSING'30ARD._.- .'

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' aM+: a l In the Matter of I TEXAS UTILITIES ELECTRIC $ DOCKET NOS. 50-445-2 COMPANY, et al. $ 50-446-2 5

(Comanche Peak Steam Electric $ (Application for l Station, Units 1 and 2) $ Operating License) ,

1 STATE OF TEXAS' MEMORANDUM ON PROPOSED STANDARD FOR LITIGATING ALLEGATIONS OF INTIMIDATION In determining what standard is to be applied in adjudicating what has come to be termed the intimidation issues in this pro-ceeding, the Board must keep one central legal point firmly in mind: the Applicant bears the burden of persuasion "of proving compliance with all applicable Commission regulations. ..

Consumers Power Co. -(Midland Plant, Units 1 and 2), ALAB-283, 6 AEC 331, 345 (1973) '(emphasis added). It necessarily follows that the Applicant bears the burden of persuading the ' Board that it has complied with the criteria set forth in 10 C.F.R.'Part:50, Appendix B.

In order to press the matter, however, the Intervenor must produce . evidence _which would make a prima facie case favorable to its. position on the intimidation issue. See Midland Plant, i d.

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The current concern of the Board about adjudicatory standards apparently derives from some uncertainty over what a prima facie I case is.

Given the purpose of Appendix B to have quality assurance programs operating which provide reasonable assurance that, as built, a nuclear facility will be operated without endang ering the public health or safety, it seems that the Intervenor's prima facie case need consist of the introduction of evidence which, if ultimately persuasive,1 would establish that: (1) some QC in-spectors (or those other employees whose actions have implications for quality) were made aware of statements, incidents, or acts carried out by management or those acting in its stead which a-reasonable person could interpret as discouraging the full perfor-mance of a QC inspector's duties; and (2) the duties of those QC inspectors, in terms of assuring the ultimate safety of the plant, were significant.

If the Intervenor produces evidence on each of these ele-ments, then the burden of persuasion ought to rest with the Appli-cant to demonstrate that: (1) the incidents or acts did not occur; or (2) even if the incidents or acts did occur, the QA/QC program overall still was conducted in such a way that there is " reason-able assurance" that the Comanche Peak plant can and will be oper-ated safely.

s, 1 At the prima facie stage, the question of whether introduced i

evidence is persuasive should not be addressed by the Board.

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In using the foregoing standard, the Board should reject the Applicant's proposal that the intent of the alleged intimidator to intimidate is a necessary precondition to establishing that an incident of intimidation has occurred. It is true that the actor's intent in such a situation is a meaningful fact for the Board's consideration, but it is meaningful for an issue at least partially separate from the quality assurance one.2 Focusing on the actor's intent would distract the Board from the essential quality assurance question and misdirect its attention to internal motivations and away from external actions. Furthermore, such a focus on the actor would tend to ignore the all important perceptions of those QC inspectors who directly or indirectly were made aware of what the actor did or said. The mosaic of the effet of those actions or statements, not the intent of any individual actor, is the crucial aspect of the intimidation issue.

In connection with how the Board should evaluate the question of whether, once the burden of persuasion has shifted to it, the Applicant has shown that the proven incidents of intimidation do not undermine its whole quality assurance program to such a degree that there is insufficient assurance that the public health and safety vill be protected, the Board should recall one.of its i

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! 2) It is. meaningful in the Board's consideration of .the issue of the Applicant's " character," which- is one of the " fundamental re-

[ quirements" for the Applicant to establish. Houston Lighting &

l ' Power Co. (South Texas Project, Units 1 and 2), Partial Initial Decision,-at'8 (March 14, 1984).

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i earlier approaches in these proceedings

. In its Memorandum and Order on Quality Assurance for Design, dated December 28, 1983, the Board pointed out at page 70 that unexplained problems -hat are in themselves relatively isolated raise " serious questions

• about the entire plant Respectfully submitted, JIM MATTOX Attorney General of the State of Texas DAVID R. RICHARDS Executive Assistant Attorney General JIM MATHEWS Assistant Attorney General Chief, Environmental Protection Division

,1 1 v0 EA HICKS Assistant Attorney General Environmental Protection Divisic:

P. O. Box 12548 Austin, Texas 78711-2548 512/475-1101 ATTORNEYS FOR '"HE STATE OF TEXAS Jo- 1 11, 1984-4 T-

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'84 JUN 12 R2:01 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

,Oh SilqEi'Sh.

In the Matter of { S;4 moi TEXAS UTILITIES ELECTRIC { DOCKET NOS. 50-445-2 COMPANY, et al. i 50-446-2 i

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(Comanche Peak Steam Electric { (Application for Station, Units 1 and 2) { Operating License)

STATE OF TEXAS' MEMORANDUM ON PROPOSED STANDARD FOR LITIGATING ALLEGATIONS OF INTIMIDATION CERTIFICATE-OF SERVICE I hereby certify that copies of the foregoing " State of Texar ' Memorandum on Proposed Standard for Litigating Allegations of Intimidation" in the above-captioned matter Were served this lith day.of June, 1984, upon the following persons by deposit in the United States mail, .first. class, postage prepaid, 'unless marked by

• in which case service was by Express ~ Mail, overnight-delivery:

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1 Peter B. Bloch, Esq.* John Collins Chairman, Atomic Safety and Regional Administrator, Reg. IV Licensing Board U. S. Nuclear Regulatory U..S. Nuclear Regulatory Commission Commission 611 Ryan Plaza Drive, Suite 1000 Washington, D. C. 20555 Arlington, Texas 76011 ,

. Dr . Wal t er H . Jordan Chairman, Atomic Safety and l 881 West Outer Drive Licensing Appeal Pan el j Oak Ridge, Tennessee 37830 U. S. Nuclear Regulatory Commission

. Herbert Grossman, Esq. Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Stuart A. Treby, Esq.

Washington, D. C. 20555 Office of the Executive .j Legal Director j Nicholas S. Reynol ds , Esq. U. S. Nuclear Regulatory '

Bishop, Liberman, Cook, Commission I

Purcell & Reynolds Washington, D. C. 20555 1200 17th St., N.W.

Washington,~D. C. 20036 Juanita Ellis Ell en Ginsberg, ~ Esq.

. President, CASE Atomic Safety and Licensing 1426 South Polk Street Board Panel -

Dallas, Texas 75224 U..S. Nu cl ear - Regulatory

- Commission Lanny A. Sinkin Washington, D. C. 20555 114 W.~7th St.

Suite 220 Anthony Z. Roisinan Austin, Texas 78701 . Trial' Lawyers for Public Justice'.

2000 P St., N.W., Suite 611 William L. - Clements* Washington, D. C. .20036

- Docketing & Services 3 ranch U.,S. Nuclear Regulato ;y Commission Washington, D. C. 20055:

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