ML20102A769
| ML20102A769 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/06/1985 |
| From: | Oneill J CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-478 OL, NUDOCS 8502080562 | |
| Download: ML20102A769 (18) | |
Text
.s February 6, 1985 UEF,T,ED UNITED STATES OF AMERICA L
NUCLEAR REGULATORY COMMISSION
]
'R RO:17 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
and NORTH CAROLINA EASTERN
)
Docket No. 50-400 OL MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant)
)
APPLICANTS' RESPONSE TO CCNC'S REQUEST FOR ADMISSION F NEW CONTENTION WB-3-(DRUG USE DURING CONSTRUCTION)
I.
Introduction i
On January 18, 1985, intervenor Conservation Council of North Carolina ("CCNC") filed with the Board a pleading enti-
.tled " Request'for Admission of a new Contention WB-3-(Drug Abuse During Construction)'."
CCNC proposes the admission of a new' contention, conceded to be untimely, which asserts as fol-
. lows:
.WB-3 Drug and alcohol use at-the Harris Plant is widespread (see-the attached newspa-per article for details and basis).
Con-struction workers under the influence of drugs are less able to follow proper proce-dures and tech specs for the installation of electrical systems, pipefitting, and other~
safety-related work.
Applicants' management 8502080062 850206 PDR ADOCK 05000400 g
PDR u
has failed to control drug use during the construction and further, has failed to reinspect all safety-related work done by known drug. abusers.
CCNC addresses the five factors to be considered in weighing the admission of late-filed contentions (see 10 C.F.R. 5 2.714(a)(1)), and attaches, as basis for the new proposed contention, a newspaper article from the January 11, 1985 edi-tion of the Raleigh News & Observer.
Applicants herein submit their response in opposition to the admission of late-filed CCNC Contention WB-3.
As set forth below, Applicants submit that CCNC has not pleaded an issue cognizable in this proceeding, that the contention in substan-
-tial part is lacking in basis and specificity, that CCNC may not reasonably be exoected to contribute to a sound record on this~ issue, and that admission of the contention would substan-tially broaden the issues and delay the proceeding.
II.
Standards Governing Late-Filed Contentions The Commission's Rules of Practice, at 10 C.F.R.-5 2.714, require that-a petitioner set forth the-basis for each'conten-tion'with reasonable specificity.
This standard requires.that a contention state,a cognizable issue with particularity, YAlabama-Power Company'(Joseph M.
Farley Nuclear Plant, Units 1 and-2), ALAB-182, 7 A.E.C. 210,_216-17 (1974), and that a peti-Ltioner provide a'" reason" for its concern.
Houston Lighting
i and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C.
542, 548 (1980).
As a general proposition, a Licensing Board should not address the merits of a contention in determining admissibili-ty.
Id.
However, a contention and its basis may be scruti-nized to determine if a litigable issue has been pleaded.
Two purposes of the basis with specificity requirement are "to help assure at the pleading stage that the hearing process is not improperly invoked," and "to assure that the proposed issues are proper for adjudication in that particular proceeding."
Philadelphia Electric Company (Peach Bottom Atomic Power Sta-tion, Units 2 and 3), ALAB-216, 8 A.E.C.
13, 20-21 (1974).
In this regard, a contention must be material to those findings which precede licensing, as set forth in 10 C.F.R. S 50.57.
See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C.
1649, 1654-55 (1982).
With respect to the issues raised by CCNC in proposed Conten-tion WB-3, we note that error-free construction is not a precondition for an operating license under either the Atomic Energy Act or the Commission's regulations.
What is required instead is a finding of reasonable assurance that the plant, as built, can and will be operated without endangering the public health and safety. :42 U.S.C.
$$ 2133(d), 2232(a); 10 C.F.R.
S 50.57(a)(3)(1); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 N.R.C.
1340, L
1345 (1983), aff'd, Deukmejian v. NRC, No. 81-2034, slip op. at 56-63 (D.C. Cir., Dec. 31, 1984); Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C.
343, 346 (1983),
reconsideration denied, ALAB-750, 18 N.R.C.
1205 (1983), as modified, ALAB-750A, 18 N.R.C. 1218 (1983).
Accordingly, a contention in an operating license proceeding about the adequa-cy of construction is not litigable unless it would cast doubt on this finding.
In addition to the normal pleading requirements, 10 C.F.R. 9 2.714 sets out five factors that must be balanced in admit-ting a late-filed contention, and a contention is untimely if it is filed later than fifteen days prior to the 10 C.F.R. 5 2.715a special prehearing conference.
10 C.F.R. 5 2.714(b);
Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
CLI-83-19, 17 N.R.C.
1041, 1043 n.2 (1983).
The five factors are:
(i)
Good cause, if any, for failure to file on time.
-(ii).The availability of other means whereby the petitioner's interest will be pro-tected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing pr.rtie s. ~
..e
^
-(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceedings.
10 C.F.R. 9 2.714(a)(1)(i)-(v).
III.
Application of the Standards A.
The Proposed Contention Fails to State a Litigable Issue with the Requisite Basis and Specificity.
LApplicants first address the standards required for
- timely-filed contentions, since the application of those stan-r dards to CCNC's proposed Contention WB-3 clearly warrants re-jection of the contention, and, thus, obviates the need for a careful analysis and balancing of the five factors which govern
~
the-consideration of good cause for the untimely filing.
,. First,- CCNC inconsistently.comingles allegations of drug
'and' alcohol abuse. -The first sentence of the contention refers =
Lto both; drugs and alcohol, while the second.and third sentences refer;only tol drugs.
Aside,from the. fact that CCNC asserts no:
consequenceLoffthe alleged alcohol use, the~ attached. newspaper.
article ~ -'- the sole asserted basis. for the ' contention ~-- uses
--the" word " alcohol" only twice:
once in'. reference to a CP&L pol' icy.f'orbidding use of.alcoholLor illegalifdrugs_on~ plant-cproperty;-and onceLin reference to the newspaper: reporter'slin -
terviews withfa dozen construction workers, several~of:whom.in-c
- !dicatedithey would turn in theirsco-workers if:they noticed t.:f s
e Y
~s-
+
Jthem using alcohol, drugs or similar stimulants.
Consequently, on'its face the CCNC pleading fails to assert a basis for the allegation'that alcohol use at the Harris Plant is widespread.
Turning to the gravamen of the contention -- drug use at the. site -.the contention appears to make three points:
(1) drug use at the plant.is widespread; (2) construction workers under the. influence of drugs are less able to perform their work properly; and (3) CP&L has failed to control drug use and
-to' reinspect safety-related work done by known drug abusers.
Applicants address each of these points in turn.
As-to drug use at the plant, the facts as described in the i newspaper article, and which. Applicants do not dispute, are
~
- -thatLa two-month investigation by two undercover police agents-
- on the Harris site l'd to warrants for.the arrest of eight e
employees who sold.to the agents drugs with a total' street
?value of $3,000.
The article also-recites a. statement by Major Lanier'of the Wake County Sheriff's Department that drug use:at
~
the= plant was " widespread," and that'he-conservatively estimat-
'ed 100 of the 6,000 workers at.the plant used drugs on the site.
While the' arrests involved drug sales on.the site, not
'use,'for pleading. purposes Applicants assume here that11n some.
quantity. drugs'have been used.on site by'100-workers.1/. Drug Applicants are in fact. aware of:possible drug ~ involvement.
"1/f
.by;others than1the eight recently arrested.. Over time,5CP&L'
- (Continued Next.Page)-
. 4 A
_, I,
L P'
U;
abuse whether on or off the job is a serious concern to Carolina Power & Light Company, and we should not be read as dismissing the emphasis placed by the Company, through its policies and programs, on preventing the use, possession or sale of controlled substances by employees or contractor employees while on CP&L business or on CP&L property.
Never-theless, this CCNC contention must be assessed in the context of the use of drugs within the American society at large.
One hundred workers represent one and two-thirds percent of the 6,000 workers on site.2/
If true, this use of drugs by con-struction workers at Harris is not " widespread," but, to the contrary, is substantially below the level of drug use within the population as a whole.3/
(Continued) has identified other employees suspected of drug involvement and has taken appropriate personnel action as well as steps to ensure-the integrity of the construction work.
2/.
The actual number of construction workers at the Harris Plant site is 6,600.
3/
"More than 20 million Americans use marijuana at least once a month.
One out of 18 high school seniors use marijuana daily.
Over four million people, half'of whom are between the ages of 18 and 25, are current users of cocaine.
Approximately.
- one-half million Americans are heroin addicts."
Drug Abuse Policy Office, Office of Policy Development, The White House, "1984 National Strategy for Prevention of. Drug Abuse and Drug Trafficking" (September 1984) at 3.
The trend in cocaine use is on the rise.
The National: Institute on Drug Abuse estimates that, in 1982, 18.8 percent of the population in the 18-25 age-group used cocaine at least once in the past year and 6.8 per-cent used it once in-the past month.
NIDA Capsules (September 1984). t
CCNC next asserts that workers under the influence of drugs may not perform properly.
Applicants are willing to con-cede as much.
However, construction workers do not perform in isolation.
They are observed by security personnel entering and leaving the work place,4/ they work most frequently in the company of others who have the opportunity to observe their work, and they have supervisors who oversee their perfor-mance.5/ More significantly, CP&L has in place a construction quality assurance program, approved by the NRC when the con-struction permit was issued, which provides for the independent inspection of safety-related work at various stages of its com-pletion.
In addition, the inspections by Quality Control and Construction Inspection personnel are subject to QA surveil-lances and audits,'as well as the oversight of NRC Inspection and Enforcement personnel.
Finally, safety systems are subject to a vigorous series of preoperational tests to confirm quality construction and the safety of plant operation.
4/
Routine checks of lunch box contents are made almost daily by security personnel.
In addition contractor. superintendents monitor. individuals as they enter.the gates.
If anyone presents himself obviously under the influence of drugs or al-cohol, that_ person will be pulled aside.
5/
Fellow workers also observe their performance.
The news-paper article cited by CCNC indicates workers would be willing Lto. turn in a fellow worker who used drugs on the job.
This-could be done anonymously through the~QA Quality Check _ Program.
<i. <
These diverse and redundant means to confirm quality should be well known to CCNC and are amply described in public-ly available documentation, including the evidentiary record of this proceeding.
Yet, CCNC has advanced no factual assertions, or even a theory, upon which to base a concern that any sub-
-standard performance by a construction worker under the influ-ence of drugs could have led to a safety-significant construction deficiency which has been undetected and will re-main so prior to plant operation.
The NRC has no specific regulation governing the use of drugs at nuclear facilities, Tr. 2901 (Kelley), but the agency is not indifferent to the potential adverse effect on the pub-lic healtP
.nd safety attributable to drug use on site by workers at nuclear facilities.
See South Carolina Electric &
Gas Company, et al. (Virgil C.
Summer Nuclear Station, Unit 1),
ALAB-710, 17 N.R.C.
25, 27 (1983).
The Commission has pending_
a rulemaking to consider requirements for operating licensees with respect to the fitness for duty of personnel with
-unescorted access to protected areas.
4'7 Fed. Reg. 33980 (1982).
In addition,. allegations of widespread drug abuse and improper security practices at. operating plants have been in-vestigated by the Office of Inspection and Enforcement. ~See Ccmmonwealth Edison Company (Dresden Nuclear-Power Station; Zicn Nuclear Plant), DD-83-8, 17 N.R.C. 1183 (1983).
With re-spect to a plant under construction, however, the NRC's concern
_g_
with the public health and safety goes to the sound con-struction of the plant.
Absent a contention, specific and with 1
basis, that the quality program is inadequate to ferret out safety-significant construction deficiencies resulting from drug use, CCNC has failed to plead a cognizable issue for the Board to decide.
The third point asserted by CCNC in proposed contention WB-3 is that CP&L management has failed to control drug use during construction and further, has failed to reinspect all safety-related work done by known drug abusers.
The newspaper article filed as basis for the contention, however, flatly con-tradicts this assertion.
The article states that:
(1) CP&L has a policy which forbids the use of illegal drugs on plant property; (2) CP&L periodically conducted searches of employees' property if there was probable cause to believe drug activity was occurring; (3) under CP&L policy employees have been-asked to take urine tests-if probable cause existed to.
suspect that drugs were being used; (4) CP&L contacted the Wake County Sheriff's Department late in 1984 because CP&L had uncovered evidence-upon which to suspect drug activity; (5)
_CP&L cooperated in a subsequent investigation on site by police
. authorities.which led to the arrests cited by CCNC..In stark contrast to CCNC's assertion, these facts establish that CP&L is actively implementing appropriate. controls to. detect drug sales and use, and took the initiative to involve legal authorities when potentially illegal-activity was suspected..-
As to reinspection of safety-related work, CCNC offers no basis for its assertion that reinspections are necessary.
In fact, however, CP&L is applying its existing site Procedure CQA-7, " Evaluation of Program Effectiveness" to determine what, if any, reinspections are appropriate for the work of suspected drug sellers and/or users, including the seven electricians and one pipefitter who were the subjects of the recent arrest war-rants.p/ This procedure is designed to provide methods for the evaluation of the effectiveness of, among other things, the
-performance of individual craftsmen.
B.
The Five Lateness Factors
'l.
Good Cause for Failure to File on Time Applicants do not contest the fact that CCNC did not have
. previous access to the specific public information described in the newspaper article, and that CCNC promptly filed its conten-tion after'the information became available.2/
~
s/
The review for these eight employees showed that they_
worked _in crews and that the majority of their work'was not safety-related.
The safety-related work performed by these workers either has been or will be subject to QC or CI inspec-tions.
2/
That is not to say that the newspaper. article cited by CCNC as basis for proposed CCNC WB-3 is the first publicly available evidence of drug use by a construction worker at the Harris' Plant site.
Indeed,~ Joint Intervenors' Exhibit-17 in-this proceeding (part of Applicants' response'to Joint Interve-(Continued Next Page)'
O a
2.
Availability of other Means Whereby CCNC's Interest Will Be Protected This factor would weigh in favor of the contention, although it is to be given less weight than the others.
3.
Extent to Which CCNC's Participation May Reasonably be Expected to Assist in Devel-oping a Sound Record CCNC has not been a party to the adjudication of the two contentions'to date, Eddleman 41 and 65, which have addressed quality of construction at the Harris site.
The fact that the contention. pleaded does not even address the programs in place to_ detect'and to correct faulty construction work bespeaks a lack'of~ familiarity with the.icsues on the part of CCNC, and'
_(Continued).
nors' interrogatories) notes that a worker was terminated be-cause of evidence of use of cocaine.
A series of articles in the: Western Wake Herald in 1980 (March 20, March 27 and April
- 10) discussed, among other items, allegations of drug use at
-the Harris Plant site.
However, CP&L.has in the past dealt with. suspected drug use by individuals on a case by case' basis and without attendant publicity.
Applicants are willing to concede that there has been_little publicly available informa--
tion on drug use at the Harris Plant site.
CP&L's willingness to cooperate with local law enforcement. agencies to ferret out drug dealing and provide a more effective deterrent to.those who might consider drug use in the future gives rise to the information now publicly available.
It would be unsound public policy to send a message to the nuclear utility industry that cooperating with law enforcement officials regarding' evidence aof criminal activity on a nuclear construction site is to.in-vite litigation of the impact of such activity _on construction of the nuclear plant.~ r
calls into question that intervenor's ability to contribute to the record on this issue.
Further evidence of CCNC's confusion and inability to con-tribute to the record is reflected in the CCNC statements ad-dressing this factor.
While CCNC asserts that the issue is not overly complicated and technical because it addresses Appli-cants' ability to safely build nuclear power plants -- a naive proposition in itself -- CCNC proceeds to express hope that the Sheriff's Department will cooperate with details of their in-vestigation.
Leaving aside the public policy implications of injecting criminal proceeding matters into an NRC licensing hearing, the Sheriff's personnel cannot conceivably contribute to the Board's assessment of whether the plant is being built in a safe manner.
CCNC implies here that the Board would hear facts as to individual drug cases -- an inquiry which is not the' function of the NRC and which would not assist in resolving any of the ultimate issues in this operating license proceed-ing..Thus, CCNC's ability to contribute to the record here is at best problematic when CCNC cannot even clearly focus upon the potential issue.
Finally, CCNC is~ involved in the ongoing emergency pre-(
-paredness phase of the proceeding as the sole sponsor of two I
contentions, CCNC 2 and 8,.and as the lead intervenor for the joint contentions EPJ-1 and EPJ-3. - _ _ _ _ _ _ _ _ - _ _ - _ _ _ _ _
4.
Extent to Which CCNC's Interest Will be Represented by. Existing Parties Like factor (ii), this factor weighs in favor of the con-tention, but is to be given less weight than the others.
5.
Extent to Which CCNC's Participation Will Broaden the Issues or Delay the Proceedings CCNC concedes that admission of its proposed contention WB-3 necessarily would broaden the issues.
While CCNC is not precise about the course the litigation might follow, CCNC ap-pears alternatively to call into question the entire con-struction effort -- an issue of unique breadth -- or the inves-tigation of work performed by each and every worker suspected of drug involvement -- a likewise time-consuming and broad in-lquiry which could entail disputes over which workers should be included in.the inquiry and complications resulting from per-sonnel rights to privacy, the potential for libel, and inter-ference with criminal law enforcement activities.
On the question of delay, CCNC concludes that " litigating this contention-will not unduely [ sic] delay the plant's opera-ti on.' " - CCNC here-misses the mark of the standard for a late-fil'ed contention.
Any delay in plant operation is to be
' avoided, consistent with a. fair hearing and a sound record.
Admission.of this contention. undoubtedly would delay the pro-(ceeding..Except for-the recently admitted Eddleman 41-G,_which' ~
the. Board has placed on an expedited schedule, all safety con-tenti~ons have been tried and briefed.
CCNC Contention WB-3 could not easily be heard on the schedule set for the emergency planning issues, and -- contrary to CCNC's repeated predictions
-- there is no "whistleblower hearing" on the horizon.
IV.
Conclusion
)
Factors (iii) and (v) of the lateness factors weigh heavi-3
'ly.against CCNC and, in view of the lesser weight given to fac-tors (ii) and (iv), warrant rejection of the contention.
In any event, Applicants submit that the Board may dispose of the proposed contention because CCNC has not asserted a cognizable issue with basis and specificity.
Proposed contention WB-3 should not be admi,tted.
E Respectfully submitted,
~
~
.jQ ~
Thom4s A. Baxter, P.C.
ohn H. O'Neill, Jr., P.C I AW PITTMAN, POTTS & TR WBRIDGE 18 M Street,-N.W.
Washington, D.C.
20036:
(202)822-1000 1
Richard E.. Jones, Esquire-CAROLINR POWER & LIGHT COMPANY 411 Vaystteville Street Mall Raleigh, North Carolina 27602 (919)836-6517 1
Dated: -February '6,11487, _
t" Febrncry 6, 1985 nNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CAROLINA POWER & LIGHT COMPANY
)
Docket No. 50-400 OL and NORTH CAROLINA EASTERN
)
MUNICIPAL POWER AGENCY
)
)
(Shearon Harris Nuclear Power
)
Plant)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Apoli-cants' Response to CCNC's Reouest for Admission of New Conten-
~
tion.WB-3 (Druc Use During Construction)" were served by depos-it_in the United States mail, first class, postace orepaid, this 6th day of February, 1985, to all'those on the attached Service List.
l'
\\
(
)
} John H.
O'Neill, Jr. '
L o.
UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
' CAROLINA POWER & LIGHT COMPANY
)
DocPet No. 50-400 OL and' NORTH CAROLINA EASTERN
)
MUNICIPAL POWER AGENCY
)
)
(Shearon' Harris Nuclear Power
)
Plant)-
)
4..
SERVICE LIST James L. Kelley, Escuire Jonn D.
Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of U.S. Nuclear Reculatory Commission North Carolina
- Washington, D.C.
20555 307 Granville Road Chapel Hill, North Carolina 27514 Mr.-Glenn O. Brichtl M.
Travis Payne, Escuire Atomic Safety and Licensing Board Edelstein and-Payne
-U.S.
Nuclear Regulatory Commission P.O. Box-12607 Washington,JD.C. -20555 Raleich, North Carolina 27605 Dr.fJames H. Carpenter Dr. Richard D.. Wilson
-Atomic = Safety and Licensing Board 729 Hunter-Street U.S.. Nuclear. Regulatory Commission Apex, North Carolina. 27502-
.Washinoton, D.C.
20555 Charles l\\.1 Ba'rth, Escuire Mr. Wells Eddleman
.Janice E. Moore, Escuire 718-A Iredell Street.
LOffice of Executive Lecal/ Director
'Durham, North Carolina-27705.
LU.S.< Nuclear,Reculatory Commission Washington, D.C.
20555
. Docketing and Service Section Richard E.. Jones,-Esauire-g"
~ Office'of the' Secretary-Vice President.and Senior Counsel:
LU.S. Nuclear: Regulatory-Commission
. Carolina ~ Power & LightJCompany l Washington, : D.C.
20555.
P.O.. Box 1551-Raleigh,-North Carolina '27602'
,Mr.1 Daniel 1F.' Read, President
-DrL Linda W..Little cCHANGE Governor's1 Waste Management: Board
?
P.O.
Box'2151
-513'Albemarle' Building Raleigh,< North Carolina-27602 325. North Salisbury Streeti Raleigh, North Carolina: _27611-m
.) s
-e 9-Bradley W. Jones, Escuire
- U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303
-Steven F. Crockett, Esquire
" Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission
- Washington, D.C.
20555 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991' Raleich, North Carolina 27602 Administrative Judge Harry Foreman Box 395 Mayo
-. University of Minnesota ~
Minneapolis,-Minnesota 55455 t
4 f
m 99 y
n m s
+