ML20098G868
| ML20098G868 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 10/02/1984 |
| From: | Gallo J, Goldfein M, Thornton P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20098G869 | List: |
| References | |
| CON-#484-289 OL, NUDOCS 8410050630 | |
| Download: ML20098G868 (27) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h]"ETED 4
'04 n %S BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Aff ,.pg In the Matter of )
)
COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454 OL
) 50-455 OL (Byron Nuclear Power Station, )
Units 1 & 2) )
COMMONWEALTH EDISON COMPANY'S ANSWER TO INTERVENORS' MOTION TO REOPEN THE RECORD I. INTRODUCTION Intervenors seek to reopen the record to include aspects of the Byron Station design as an issue in this case. The alleged basis for their motion is the information contained in the Independent Design Review ( " ID R" ) conducted by Bechtel Power Corporation ("BPC"). The IDR, according to Intervenors, when read in light of the NBC's earlier Inte-grated Design Inspection ("IDI") , demonstrates serious design defects.
Intervenors have not clearly delineated the scope of the issue that they seek to litigate on a reopened record.
On-its face, their motion asks the Licensing Board to con-sider the overall adequacy of the Byron Station design.
Intervenors assert, without citing the record, that they have " explicitly reserved the Byron Station design as an issue in the reopened hearings." (Intervenors' Memorandum,
- p. 1.). This is clearly not the case, because Contention lA, t ' h0hgO QS@ ,
which forms the subject of the remanded hearings, addresses only the. issue of quality assurance. At most, therefore, Intervenors could only claim to have preserved the issue of design quality assurance, as opposed to overall design adequacy.
Moreover, Intervenors' Memorandum in support of their motion, fairly interpreted, makes it plain that the gravamen of their complaint is design quality assurance.
Intervenors suggest that several design deficiencies identi-
-fied in the IDR may be-safety-significant, and thus indivi-dually create ~a cause for concern. (Memorandum, pp. 5-6, 7-8.) The.real thrust of Intervenors' argument, however, is that a " consistent. picture" emerges from the IDR and the IDI, which shows that Sargent & Lundy's design judgments are poorly' documented. (Memorandum, p. 15.) The two reports thus, in Intervenors' opinion, " reveal enough questionable design-related practices" to cast doubt on the adequacy of
~the design control process for portions of the plant that have not been reviewed. (Id.) Intervenors may thus f airly be seen as alleging a pervasive breakdown in design quality assurance at Byron. Indeed, a challenge to the design quality assurance program would be a logical prerequisite to a challenge to the technical adequacy of the plant's design, even if the scope of the contention Intervenors seek to reopen did not exclude the latter.
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HII . REOPENING THE RECORD
'The criteria that a moticn to reopen the record must. satisfy have evolved into a well-established tripartite test:.
- 1. RIs the motion timely?
- 2. Does it address significant safety (or environ- ,
mental) issues?
- 3. Might a different result have been reached had the newly proferred material been considered initially?
Union Electric-Company (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1207 (1983), quoting Pacific Gas and Electric
-Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-598, 11 NRC 876, 879 (1980).
A. Timeliness
-Intervenors' request to reopen the record is premised on information disclosed in the IDR performed by BPC and~the IDI performed by the NRC's Office of Inspection.
and' Enforcement. The IDI report was based on an inspection that focused on the Byron auxiliary feedwater system and included examination of procedures, records, training and inspection of the system as installed at the plant. Emphasis was placed upon reviewing the adequacy of design details as a means of measuring how well the design process had func-tioned for the selected sample.
'The IDI report was sent by the NRC to Commonwealth Edison Company (" Applicant") on September 30, 1983. Although Intervenors were not served with the report on that date,
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they were served with it at the time of Board Notification 1
157 filed by the NRC Staff on October 17, 1983. / Fur-ther, a December 13, 1983 meeting with the NRC in Chicago to discuss how Applicant would respond to the IDI was attended by representatives of Intervenors and their counsel . It is clear that Intervenors had notice of the IDI report, the questions raised therein, and the opportunity to bring these matters to the Board's attention more than 10 months prior to filing their motion to reopen the record.
Intervenors do not attempt to argue that the timeliness prong of the tripartite test has been satisfied with respect to reopening the record based on the IDI.
Rather, they aver only that the motion is timely with respect to the IDR. The motion was brought within 15 work-ing days of Intervenors' receipt of the IDR. It is clear, however, that although the motion purports to be based on new information contained in the IDR, it is in fact based on I 1/ (Memorandum for the Atomic Safety and Licensing Board
[ and Parties for Byron from Thomas M. Novak re Byron
( Integrated Design Inspection (Board Notification 83-157)
I attaching September 30, 1983 Memorandum to Commonwealth Edison Company from Richard C. DeYoung re Integrated Design Inspection 50-454 183-32 and the IDI report.) As noted in the memorandum accompanying the IDI report, a copy was placed in the NRC Public Document Room 25 days after the September 30, 1983 date of the report. The document was thus available for public inspection more than eight months before the reopened hearings and over 10 months prior to Intervenors' motion to reopen the record. See Union Electric Company (Callaway Plant, Unit 1), ALAB- 75 0, 18 NRC 1205, 1208 (1983).
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the information~ contained in the IDI. For example, even in
'the section of their memorandum devoted to the IDR, Interve-nors question the IDR team's-conclusion that its observations were not safety significant because they think its review
" substantiated certain highly critical observations made in the earlier NRC IDI report." (Memorandum, p. 3. ) As discussed above, Intervenors had notice of these " highly critical
. observations" in October, 1983. Thu s , a motion to reopen the record to address the design quality assurance of the
- plant cculd have been brought at that time when questions relating to design quality assurance had arisen. The fact that-the IDR was subsequently, performed in no way obviated the requirement that the motion be brought when its alleged basis.first existed over 10 months earlier.
The rationale underlying the timeliness requirement for reopening the record has never been more evident than in the present case. As the affidavit of Mr. Tuetken demon-strates, Applicant will be ready to load fuel as of October 15, 1984. Any delay beyond that date which is brought about by reopening the record will cost the Applicant and 3
its ratepayers-approximately $1.3 million per day. / Inter-
-venors.could have brought this motion many months ago when reopening the record would not have entailed such prejudice.
2/ Affidavit of Richard P. Tuetken, attached to this Answer as Attachment 1.
3/ Affidavit of Ralph L. lieumann, attached to this Answer as Attachment 2.
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,For 'the above reasons, Intervenors' motion fails o
the timeliness requirement for reopening the record and, accordingly, should be denied.
'D. Safety Significance
- 1. The Legal Standard The requirement that a motion to reopen the record must address significant safety issues has been elucidated by the Atomic Safety and Licensing Appeal Board in several recent decisions. To warrant reopening the record "there must be indication in the 'new evidence' that the decision
.on theLexisting record would permit the use of unsafe equip-ment or create some other situation similarly fraught with danger to the public that merits immediate attention."
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 887 (1980).
The. burden on the proponent of such a motion is a heavy one.
Metropolitan Edison. Company (Three Mile Island Nuclear Sta-tion, Unit No. 1), ALAB-738, 18 NRC 177, 180 (1983); Kansas Gas 3, Electric Co. (Wolf Creek Generating Station, Unit No.
1), ALAB-462, 7 NRC 320, 338 (1978).
In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340 (1983), several parties sought to reopen the record alleging the discovery of significant new evidence of deficiencies irr the plant's construction quality assurance program. The Appeal Board's decision focused on whether the movants had
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1 raised a significant safety issue. In determining the appropriate standard to apply, the Appeal Board noted that although a program of construction quality assurance is de-signed to detect construction errors, it is unreasonable to expect it to detect all such errors because of the sheer size and complexity of a nuclear power plant. "In short, perfection in plant construction and the facility construc-tion quality assurance program is not a precondition for a license. . . .
18 NRC at 1344-45. The Board therefore rea-soned that for the new evidence to raise a quality assurance issue for purposes of reopening the record "it must estab-lish either that uncorrected construction errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to the plant's capability of being operated safely."
4/ The Board concluded that movants were 18 NRC at 1345.-
unable to meet this test.
4/ In Louisiana Power & Light Co. (Waterford Steam Elec-tric Station, Unit 3), ALAB 753, 18 NRC 1321 (1983),
Intervenors sought to reopen, claiming that the dis-covery of hairline cracks in the plant's foundation basemat raised fundamental questions about the integ-rity of the plant's design and the effect the cracks would have on safe operation. 18 NRC at 1324. On the basis of affidavits and an engineering report submitted by the applicant and the Staff, the Appeal Board con-cluded that the cracks "do not now present a signif-icant safety concern," and therefore denied the motion, recommending continued surveillance by the Staff.
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In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, NRC ,
CCH Nuclear Regulation Reports t 30,864 (1984), the Appeal Board stated that the standard applied in Diablo Canyon (ALAB-756) with respect to the issue of construction quality assurance is equally applicable to reopening motions directed to the issue of design quality assurance. The Appeal Board denied a motion to reopen on this ground, finding that Intervenors had not presented evidence establishing uncor-rected design or construction errors that endangered safe plant operation, nor demonstrated that there had been a breakdown in the applicant's quality assurance program that raised legitimate doubts that the facility could operate safely.
In this case, Inte rvenors ' motion to reopen the record on the quality assurance contention on the basis of new evidence allegedly raising questions about the adequacy of design quality assurance at Byron should be denied be-cause it does not satisfy the criterion of safety signifi-cance as interpreted by the Appeal Board. Intervenors have not demonstrated, nor even alleged, that uncorrected design errors endanger safe plant operation. Indeed, Applicant's affidavits, accompanying this response, show that the design deficiencies identified in the IDR and the IDI were not safety-significant. Furthermore, all these nonsafety-significant design deficiencies have been corrected. Simi-larly, Intervenors have not demonstrated a breakdown in the
- design quality : assurance program suf ficient to raise a legitimate doubt that the facility can operate safely.
Indeed, Applicant's affidavits s'how that the IDR and the IDI afford no basis for such a conclusion. Intervenors' motion merely alleges'that the IDR identified "potentially safety-significant design problems," and questions the " cumulative impact" of potential design deficiencies that have not been identified. (Memorandum, pp. 1, 4.) These are mere allega-tions of counsel, unsupported by any affidavit of an expert capable of_ evaluating either the IDR or IDI. In light of the Applicant's opposing affidavits from cognizant experts which explain the lack of safety significance of the IDI and IDR findings, Intervenors' unsupported allegations are insufficient as a matter of law to serve as grounds for reopening the' record.5/
- 2. The IDR Conclusion In view of the questions raised by the IDI, the NRC's Office of Inspection and Enforcement requested that the Applicant respond to the specific findings of the IDI and also consider the necessity of conducting audits of other areas or systems to determine whether similar items 5/ In Diablo Canyon (ALAB-756), one party argued that a motion to reopen must be granted if it presented new evidence addressed to a significant safety issue and the moving papers were strong enough, in light of opposing filings, to survive a motion for summary disposition. The Appeal Board rejected this argument, noting that this would "for all practical purposes, relieve movants of the heavy burden imposed by Wolf Creek. . . ." 18 NRC at 1345n. Also see Diablo Canyon (ALAB-775), CCII Nuclear Regulation Reports t 30,864 at
- p. 31,267.
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. E existed and, if so, whether corrective action was necessary.
(Affidavit of' Brent R. Shelton, t 5.)b! Applicant responded v tostheJspecific findings and stated the basis for its con-clusiot.'that further audits were unnecessary. (Id., t 6.)
Nonetheless, in order to resolve the Staff's concern, Appli-
. cant. proposed that the Bechtel Corporation do an independent design review of three plant systems. (Id., 1 8.) The
- three. systems. selected for evaluation covered a broad sample of work in the key areas of design engineering for Byron and permitted comprehensive sampling of design areas in order to address the NRC concern and to provide further confidence in
! the design of the Byron station. (Affidavit of Charles W.
Dick and Edward M. Hughes, 11 1 and 2.)
The affidavit of Messrs Dick and Hughes explains that based on its review, the IDR team concluded that the design of the systemstselected for review was adequate.
This' conclusion was based on the team's comprehensive sampl-ing of Sargent & Lundy design work and the fact that the
- . results consistently indicated that the design was adequate.
- The deficiencies identified were minor and well below the threshhold of significant technical. concern for overall design adequacy, and they lacked safety significance.
(Affidavit of Messrs. Dick and Hughes, t 9.)
6/ The Af fidavit of Brent R. Shelton is attached to this Answer as Attachment 3.
7/ . The referenced affidavit of Messrs Dick and Hughes con-sists of their affidavits and joint statements which are attached to this Answer as Attachments 4, 5 and 6, respectively.
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The IDR team identified 35 valid observations in
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_the course of ' ?ir review of Sargent & Lundy's design work.
Based on further information, 12 of these observations were
- determined not to constitute deficiencies. Twenty-one items were_ resolved by correcting or agreeing to correct incon-
'sistencies in documents, confirming adequacy of design features arrived at by judgment and modifying procedures.
The two remaining items required design changes. Regardless of the corrective action taken, however, none of the obse rva-tions constituted a safety-significant condition. (Id., 5 5.)
The IDR team defined " safety significant condition" as "a loss of safety function to the extent that there is a major reduction'in the degree of protection provided to public health and safety."- (Id., 5 4.) Intervenors question the appropriateness of this definition. (Memorandum, pp. 3-4.)
In fact, however, the standard used in applying this defini-tion was whether there was a loss of safety function such that a safety-related system would have been unable to per-form-its intended safety function.E! Thus, the IDR team did ,.
not identify any safety-related system which was not able to perform _its intended safety function. (Affidavit of Messrs.
Dick and Hughes, t 4.)
8/ Intervenors state that no such definition is used for NRC regulatory purposes. (Memorandum, p. 4.) In fact, this is the definition of a " substantial safety hazard" provided in 10 C.F.R. Part 21.
9/ This formulation is incorporated in the definition of sin-
- gle. failure criterion in Appendix A to 10 C.F.R. Part 50.
Intervenors allege that the IDR team made the determination whether an observation was safety-significant only after any necessary design changes were initiated.
(Memorandum, p. 6.) This is incorrect. As Messrs. Dick and Hughes point out, the IDR team made its judgment as to whether a " safety-significant condition" existed based on the existing design conditions and not on any future imple-mentation of design changes. (Affidavit of Messrs. Dick and Ilughes, t 5.) Thus, none of the design deficiencies observed by the IDI team was safety-significant. In addition, despite this lack of safety significance, all deficiencies have been or will be corrected.
Furthermore, the absence of safety significance of the items examined in the IDR is confirmatory of the absence of safety significance of the items examined in the IDI. A cor.'arison of the IDR results with the IDI is appropriate because the reviews were parallel. Moreover, the IDR team was aware of the IDI findings and was therefore sensitive to similar occurrences in the syster's they reviewed.
The team concluded that although the observations they identified were similar to those discovered by the IDI, none of the observations suggested the need for fu:ther review of systems designed by Sargent & Lundy. The design processes reviewed were common to the unreviewed systems, and these processes were found adequate. Although some deficiencies were found, they were minor and did not impair the safety
function of the systems reviewed or represent significant safety conditions. These deficiencies failed to indicate that other systems, not reviewed, would be unable to perform required safety functions satisfactorily. (Id., t 9.)
- 3. CCW System Overpressure Intervenors highlight one of the two IDR observa-tions that resulted in a design change and complain that the logic by which the IDR team concluded that this observa-tion was not safety-significant "is not readily apparent."
(Memorandum, p. 6.) In reviewing the component cooling water (CCW) system, the IDR team noted that Sargent & Lundy had specified a piping design pressure of 150 psig for a portion of the system. A Sargent & Lundy calculation showed that a highly improbable scenario resulting in primary coolant inleakage to the CCW system could potentially produce a pres-sure in the system greater than the established Code design pressure of 150 psig. Informatior, from Sargent & Lundy indi-cated that this scenario did not represent normal operating conditions. Code design pressure was selected on the basis of the Westinghouse system criteria. The IDR team concluded that the design pressure selected by Sargent & Lundy was adequate. (Affidavit of Messrs. Dick and Hughes, t 6.)
However, in the process of response coordination between Westinghouse and Sargent & Lundy, Westinghouse appar-ently concluded that it had not adequately addressed the primary coolant inleakage condition in its design of the CCW system. Because Westinghouse apparently intended that
the design comply with the specified design pressure of 150 psig even in the event of primary coolant inleakage, it reported the potential overpressure condition to the NRC, citing Byron as an affected plant. (Id.)
The IDR team nonetheless concluded that the poten-tial pressure increase was not safety-significant. This potential increase was easily detectable, the leakage was isolable and sufficient redundancy of safety systems existed in the Byron ' design to assure safe plant shutdown in the event of the postulated inleakage of primary coolant. The team therefore judged that the CCW system design was ade-quate to perform its required safety function. Despite this conclusion, Commonwealth Edison implemented a design change to eliminate the potential occurrence of the over-pressure condition. Because no similar design was employed in other safety-related systems by Westinghouse or Sargent
& Lundy at Byron, there is no reason to expect that this situation is cause for significant concern elsewhere at Byron. (Id.)
- 4. liigh and Moderate Energy Line Break Protection Intervonors question the conclusion of the IDR team that none of its observations was safety-significant in light of the team's observation regarding the design adequacy of protection from high and moderate energy line breaks.
Intervonors believe this observation substantiated earlier
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IDI findings. .(Memorandum, pp. 7-8, 11.) The main criticism ofENRC's IDI team was that up to the time of their audit, fSargent & Lundy had not examined the effects of breaks in
. moderate energy ' lines. or the effects of jets from postulated breaks in high energy lines in the design of Byron. This criticism, however, is incorrect. Both effects had been considered early in the design process for Byron. (Affidavit b
of. Messrs. Dick and Hughes, 1 7; Affidavit of Messrs. Green
.and Hooks, 1 19.)
The ILA team, however, found with respect to the
' jet effects of postulated high energy line breaks (HELB),
that documentation was insufficient to establish that the early design work had addressed completely the effects of i
all potential jets within containment. They therefore recommended a comprehensive. review. (Affidavit of Messrs.
Dick and Hughes, 1 7.) Such a review has now been completed and has demonstrated that safe shutdown capability is re-tained following any postulated HELB and resulting jet impingement. The study further demonstrated that'no design changes are required. (Affidavit of Massrs. Green and Hooks, 1 22.')
10/ The referenced affidavit of Messes. Green and Hooks con-sists of their affidavits and joint statement, which are attached to this Answer as Attachments 7, 8 and 9 respectively.
- 5. Trends i
As Intervenors point out, the IDR team concluded that its analysis of its observations revealed several negative trends. The team used trending to extrapolate the results of its review in order to draw conclusions with regard to unreviewed designs. Four causes were identified as contributing most frequently to deficiencies: undocu-mented judgments, insufficient FSAR control, insufficient review of changes and noncompliance with code requirements.
(Affidavit of Messrs. Dick and Hughes, 5 8.) In regard to undocumented judgments, the IDR team did not discover any judgment that had failed to result in a technically adequate design. In all cases where Sargent & Lundy performed reanalysis or revised calculations, their original judgment was verified as adequate. Furthermore, the basic system designs were inherently conservative, generally possessing sufficient design margins to permit successful use of engi-neering judgment. (Id.)
In regard to control over the FSAR, although in some cases the FSAR did not accurately reflect the actual design or certain FSAR design statements were not fully incorporated into the design, there was no indication that these cases either affected plant safety or represented a pervasive situation at Byron. The detailed design criteria or requirements of a plant are contained in thousands of design documents which are not fully described in the PSAR.
At certain times in the design process, these criteria or
' requirements can change without having an impact on plant safety or design as reflected in the FSAR. This generally was the situation observed by the IDR team at Byron. Sar-gent &fLundy committed to make any FSAR changes required as the result of ' an observation. (Id.) With regard to review of changes,-the IDR review indicated that the Sargent &
Lundy design change process was controlled. The observa-tions showed that certain minor deficiencies may exist in the process but the IDR team concluded that the process was generally adequate. (Id. )
Finally', with respect to code noncompliances, the IDR team determined that some aspects of the design did not
-strictly comply with certain detailed code requirements. In all such cases, Sargent & Lundy verified that the design was-adequate to enable the system, structure or component in question to perform its intended safety function. Given the relatively minor nature of the deviations, the IDR team concluded that they did not constitute a significant safety concern. (Id.) Sargent & Lundy's view of the matter was more direct. They did not believe the three observations trended by BPC indicated any negative trend. (Affidavit of Messrs. Green and !!ooks, 1 30.)
Overall, the trend analyses and the IDR team's deter-mination that the collective significance of the observations for the systems reviewed was of relatively minor importance with regard to technical adequacy, indicated the likelihood that similar results would be found in the areas not covered c
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byEthe IDR. That is, the design conditions would be judged as
. technically adequate if a broader review in those areas were conducted. (Affidavit of Messrs. Dick and Hughes, St 8, 9.)
- 6. The Byron IDI The Intervenors also cite numerous findings of the NRC Staff's Byron IDI report. These findings are all ad-
' dressed in the affidavits of Messrs. Green and Hooks and of 11 Messrs. Manz and Faires.- / The affidavits demonstrate that some of the IDI findings did not reveal deficiencies at all
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and that in any case none of the findings was safety-12/
significant.-- Intervenors assert that the importance of 11[ The referenced affidavit of Messrs. Manz and Faires consists of their affidavits and joint statement, which are attached to-this Answer as Attachments 10, 11 and 12, respectively.
12/ For example, in their Memorandum at page 11, Inte rvenors state that the "IDI team also.found a calculation concern-ing flow measuring orifices in the auxiliary feedwater recirculation line, that had been signed as reviewed and approved although the calculation had not been completed."
As discussed in the Affidavit of Messrs. Green and Hooks, the error was harmless since the calculation related to non-safety-related equipment. The IDI finding was prompted by an assumption that quality assurance procedures applied because the errant calculation was mistakenly placed in a repository for safety-related calculations. (Affidavit of Green and Hooks, it 4-6.)
Similarly, an example of a nonsafety-significant finding in the Affidavit of Messrs Manz and Faires relates to the finding on pages 11-12 of-Intervenors' Memorandum that the IDI concluded that the use of hand calculations, rather than computer reanalysis to evaluate the effects on the piping system of the relocation of a particular support, was not adequate for seismic qualification.
Although the method used to evaluate the effect of the support relocation is fully acceptable to verify the adequacy of the assessment, an SSE computer reanalysis was conducted. This analysis demonstrated that the estimated support load increases were conservative, and justified the simplified analysis used in the original evaluation. (Affidavit of Manz and Faires, it 21-23.)
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these findings 11ies not in any particular issue they raise
.but in the;overall, picture of-inadequate design control they suggest.- (Memorandum, ' p. 15. ) This assertion is without
.s basis'. . Questions raised by the IDI were answered not only
-in the' specific responses provided to the-Staff, but also by
' th~e performance of the.IDR, which gave further assurance thatEthe' design process at Byron is adequately controlled.
C. Likelihood Of A' Changed Result To: satisfy the third element of the tripartite test, the movant must show that a different result would have been
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reached initially had the new evidence been considered.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units-1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983).
The= Appeal' Board in Union Electric Co. (Callaway- Plant, UnitLl), ALAB-750, 18 NRC 1205'(1983), regarded this element of t the test'as the most important. In Callaway, Intervenors sought'to reopen the record on quality assurance issues on the basis of "new' evidence"-inLthe form of an Integrated Design Inspection ~ Program report prepared by the NRC Office of Inspection and Enforcement, summarizing the results of an inspection of the Callaway plant to measure quality assurance
' objectives.- The report' contained 29 negative findings,
-including the need for. improvement in control of the design
, process for HELB analyses and instances where specific FSAR commitments were not met. 18 NRC at 1211. The Appeal Board assumed without deciding that the motion met the second
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E element,of the' test for reopening. The Board denied the motion, however,.because it failed to show that a different
- result would have been reached. The Appeal Board interpreted this third element of the test in the same way that the Appeal Board in Diablo Canyon, supra, interpreted the second element. That is, the Board denied the motion because Intervenors had not demonstrated either that specific uncor-rected deficiencies compromised plant safety or that there was a pervasive pattern of quality assurance breakdown at the plant. 18 NRC at 1209.
Intervenors in this case fail to satisfy the third elementJof the test for the same reason. They have made n.either of the requisite showings and their motion should
'therefore be denied.
III. LATE-FILED CONTENTION In addition to their failure to satisfy the tri-partite test for reopening the record, Intervenors do not address an additional set of criteria that they must meet.
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These criteria are reflected in the five-part test for admitting late-filed contentions set forth in section 2.714 (a) of the Commission's regulations. By attempting at this late
. date to introduce the issue of the design quality assurance of the Byron plant, Intervenors are in actuality seeking to admit a new, late-filed contention. Accordingly, they are subject to this five-part' test.
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h .u Several Atomic Safety and Licensing Appeal Board L decisions have recognized that the issue of design quality assurance is wholly distinct from the issue of construction
-quality assurance. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1342-43, (1983); Union Electric Company (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1209-10 (1983).
Indeed,.the Appeal Board in the instant case pointed out that very distinction in its order of September 19, 1984.
Callaway is particularly apposite to the instant motion.
There, Intervenors sought to reopen the record based upon an Integrated Design Inspection Program (IDIP) report prepared by the NRC Office of Inspection and Enforcement (I&E), which the'Intervenors characterized as new evidence regarding the adequacy of Union Electric Company's quality assurance pro-gram.1 / The Appeal Board, in concluding that the I&E report did not undermine the conclusion that applicant's construc-tion quality assurance program provided reasonable assurance of safety, observed the distinction between design quality assurance issues and construction quality assurance issues.
18 NRC at 1209-10.- The Board also stated:
13/ Although the motion filed was denominated as a petition for ' reconsideration, the Appeal Board found it in actu-ality to be more akin to a motion to reopen the record and treated it as such. 18 NRC at 1207.
Intervonors do not request that the record be reopened to consider design quality assurance issues. If they did, they would be required to satisfy both the criteria for reopening the record and the standards for admitting late-filed contentions.
Pacific Gas and Electric Ccmpany (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-82-39, 16 NRC 1712, 1714-15 (1982).
18 NRC at 1210 n. 10.bd!
Although the argument might be advanced that the issue of design quality assurance does not constitute a late-filed contention because it falls within the scope of the original Contention lA,- 15
/ any such argument must f ail 14/ Diablo' Canyon, ALAB-756, which hold that design quality assurance issues are distinct from construction quality assurance issues, did not discuss the fivo-part test for raising a new contention. In that caso, however, the issue was whether the new evidence on design impacted upon construction quality assurance matters, which were already before the Board, rather than whether the new ovidence on design impacted upon the design quality assurance program.
15/ Contention lA providos:
Intervonor contends that Edison doec not have the ability or the willingness to comply with 10 CFR Part 50, Appendix B, to maintain a quality assuranco and quality control program, and to observe on a con-tinuing and adequate basis the applicable quality control and quality assurance critoria and plans adopted pursuant thereto, as is evidenced uy Edison's and its architect-engincors' and its contractors' past history of noncomplianco at all Edison plants (whethor or not now oporating). In addi-tion, Applicant's quality assuranco program does not requiro sufficient indopondence of the quality assuranco functions from other functions within the Company.
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'for two-reasons. First, the cases mandating application of the five-part- test for a motion to reopen the record do not focus on the specific language of the contention under which reopening is sought, but rather on whether the motion to l
reopen " relates to a previously uncontested issue." Pacific ;
Gas and Electric Company (Diablo Canyon Nuclear Power-Plant,
-Units 1 and 2), CLI-82-39, 16 NRC 1712, 1714-15 (1982);
i= Callaway, supra, 18 NRC at 1209. Here, the issue of design l quality assurance was not meaningfully litigated previ-ously. Hence, the motion to reopen relates to a previ-ously uncontested issue and, accordingly, must satisfy the five-part test for raising a new contention.
Second, Contention lA has not been treated by Applicant, the Intervenors or the Licensing Board as encom-passing the issue of design quality assurance. Although, as
.noted above, findings were made in the initial decision with 16/ Intervenors' only evidence presented or findings proposed regarding design quality ' assurance concerned :
two allegations. Intervenors' witness, Mr. Stomf ay-Stitz, had alleged that when he reported a missing beam, Sargent & Lundy simply deleted the beam from '
design drawings. This allegation was concluded to be without foundation by extensive investigation by 'the NRC Staff. Further, the allegation was found to be irresponsibly made. (Initial Decision, 5 D-267.)
Intervenors also cited the testimony of Mr. Hayes of the NRC Region III Staff for the allegation that Sargent & Lundy changed specifications to accommodate failed sieve tests. .This allegation was also found to be without basis. (Id., 1 D 270.) It is clear that these two isolated allegations relating to Sargent &
Lundy's design of the plant in no way represented an attempt to litigate the design quality assurance of Byron. .
respect to two isolated matters relating to Sargent &
Lundy's design, Intervenors adduced no evidence through direct or cross examination, nor did they propose any findings on the issue of design quality assurance of the
, Byron plant. Thus, the history of the contention clearly reveals that Intervenors did not treat general design qual-ity assurance as part of Contention lA and, accordingly, have abandoned that as an issue in this case.
Finally, if design should be deemed to fall within the scope of Contention lA, it would clearly be an issue only to the extent it reflects upon the ability of Applicant "to maintain a quality assurance and quality control pro-gram." Intervenors, on the face of their motion, scok to reopen the record for the purpose of "includ[ing] the Byron station design as an issue." To the extent that Intervonors' motion is directed to the basic design adequacy of the plant itsel?, rather than to Applicant's quality assurance and 12/ Intervonors' abandonment of Contention lA as it relatos to design quality assurance by their ' allure to present evidence or findings on that issue in the hearings is distinguishable from the situation in Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAD-753, 18 NRC 1321, 1325 n. 3, where the Board noted that Intervenors did not abandon a broadly worded contention by failing to respond to Applicant's motion for summary judgment relating to the contention.
The failure to respond to a motion at the summary disposition stage, where the only question is whether there is a genuino issue of material fact, clearly falls into a different category than the failure to present any evidence at the hearing stage when the contention is actually being litigated or the failuro to proposo any findings at the stage following the hearings when the cortantion is being decided.
quality control program with respect to design, the motion prematurely seeks to introduce an issue that may only be heard af ter Intervenors have established a breakdown of design quali-ty assurance.
In short, Intervenors did not litigate the issue of Byron design quality assurance as part of Contention lA at the original hearing. Further, in its September 19, 1984 Order, the Appeal Board expressed " considerable doubt" that the motion came within the scope of the romand, noting that design quality hssurance issues aro
- separate and distinct" from construction quality assuranco issues. The chronology of events demonstrates that Intervonors are raising the issue of design quality assurance in any significant way for the first time in their motion to reopen the record. Accord-ingly, an attempt to litigato design quality assurance of Byron should be treated as socking admission of a new issuo and the five-part test for late-filed contentions should be applied.
As set forth in 10 C.F.R. 2.714 (a), the test for admission of late-filed contentions, all parts of which must be satisfied, 1st (1) Good causo, if any, for failure to file on timo.
(ii) The availability of other means whereby the petitionor's interest will bo protected.
(iii) The extent to which the petitionor's participation may reasonably be expected to assist in developing a sound record.
r (iv) The extent to which the petitionor's interest will be represented by existing partios.
(v) The extent to which the petitioner's participation will broaden the issues or delay :
the proceeding.
With respect to those five requirements: (i) As I
discussed earlier, there is absolutely no good cause for In*crvonors' failure to filo their contention in a timely fashion. Intervonors could havo filed their motion as early as Octobor, 1983, when the alleged basis, the IDI, for includ-ing design quality assuranco as an issue aroso. (ii) Do- j cause not ono item of safety significance has boon identified relating to the design of the Byron plant, Intervonors' in-torost is not in any way placed in jeopardy. (iii) Inter-venors in their motion havo filed no af fidavits of exports critical of design quality assurance of the Byron plant; their motion consists of a serios of allegations supported only by legal argument. Inasmuch as Intervonors have pro-sented no export support at this critical threshhold stago, thoro is no indication that Intervonors' participation in any subsequent hearings may reasonably be expected to assist i
in developing a sound record. (iv) As noted above, Inter-venors' intorest has not buon placed in jeopardy. (v) Intro-duction of design quality assuranco as an issuo at this point in the procooding will cauno substantial dolay. As discussed in the Affidavits of Mossrs. Iloumann and Tuotkon, -
such a dolay would novoroly prejudico Applicant. The failuro of Intervonors to recognizo and addrosn those fivo requiro-monts further demonstraton that their motion should be denied.
0 It should be emphasized that the Intervonors' motion should be denied by this Board based simply upon their failure to satisfy the tripartito test for reopening the record. The discussion with respect to mooting the five-part test for late-filed contentions illustratos only that in order for Intervonors' motion to be granted, they must natisfy those requirements as well as the critoria for rooponing the record.
IV . CONCLUSION For the reasons set forth above, Intervonors' Motion to Hoopen the Hocord should be Caniod.
Hospectfully submitted,
/A b Jo G 10
' t01-ux Potor Thornton II -
Michael it. Goldfeirf Throo of the Attorneys for Commonwealth Edison Company ISilAM, LINCOLN & BEALE 1120 Connecticut Avenuo, N.W.
Suito 040 Washington, D.C. 20036 ISilAM, LINCOLN & DEALE Throo Tirst National Plaza Suito $200 Chicago, 1111noin 60602 Dated: October 2, 1984