ML20102B763
| ML20102B763 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 02/25/1985 |
| From: | Sinkin L Citizens Concerned About Nuclear Power, INC. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-826 OL, NUDOCS 8503040355 | |
| Download: ML20102B763 (9) | |
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4 DOCKETES
- %RC UNITED STATES OF AMERICA 15 FE3 27 N024 NUCLEAR REGULATORY COMMISSION BEEDRE THE ATOMIC SAFETY AND LICENSING BOARD OfflCE C IECEIM'(
09CIETmG & 3ERviCf.
In the Matter ~ of
(
BRANCH
)
HOUSTON LIGHTING AND
(
Docket Nos. 50-498 OL POWER COMPANY, ET AL.
)
50-499 OL (South Texas Project,
(
Units 1 and 2)
(
CITIZENS CONCERNED ABOUT NUCLEAR POWER (CCANP)
COMMENTS ON STAFF AFFIDAVIT RE: ISSUE B AND MOTION FOR ASLB TO REQUIRE FILING OF PREFILED TESTIMONY ON ISSUE B IN PHASE II AND TO PROVIDE FOR DISCQVE6Y_QN_@ AID _66EEILED_IESIlMONY In their Partial Initial Decision (PID),
LBP-84-13, 19 NRC 659, the ASLB state their agreement with CCANP that there realry can be no decision on Issue B since there is no record of Bechtel's and Ebasco's performance.
PID at 54-57.
Responding to this
" deficiency in the record," the Board made its decision on Issue B only a " preliminary evaluation of the competence of HL&P,
- Bechtel, and Ebasco based on HL&P performance since the Show-Cause Order and Bechtel's and Ebasco's reputations." PID at 56.
~
Furthermore, to develop a record on which a final decision on Issue B could actually be reached, the ASLB ordered the Staff to produce a report "concerning the performance of HLLP, Bechtel, and Ebasco at STP since the close of the Phase I record." Id. The to' cover the "on-the-job performance of Bechtel and report was
- Ebasco, as well as up-to-date performance by HLLP." Id.
Furthermore, the ASLB ordered that the report "should include the Staff's evaluation of the adequacy of the Applicants' implementation of their OA/OC program for construction." PID at 56-7.
The NRC Staff report is presented as the Joint Affidavit of 8503040355 850225 PDR ADOCK 05000498
,T C
PDR 1
U
William A.
C'r o s s m a n,
Johns P.
Jaucon and Dan P.
Tomlinson.
CHereinaf ter71' Af fidavit"]
In its Fifth Prehearing Conference Order, the ASLB set forth a process whereby, after the Staff report was filed, the "other parties would file their own reports or comments on the Staff report" and that the ASLB would then " determine whether there existed any factual questions upon which an evidentiary hearing would-be appropriate."
Fifth Prehearing Conference Order (Consideration of Issues for Phase II),
November 16, 1984 at 3.
The ASLB stated that the responses of the parties "should define explicitly'*any issues which a party believes require further hearings. Ccite omitted3" Id.
CCANP contends that the process set forth by the Board is fundamentally flawed.
We should not look to an affidavit of the Staff to see if issues are raised requiring further hearings; Issue B is already at issue in this proceeding and specifically recognized in the PID as unresolved. PID at 54-57.
Furthermore, the burden of proof on Issue B is not on the J
Staff.
The burden is on HL&P. HLLP should be required to present affirmative evidence demonstrating that its remedial measures are adequate.
The Staf[ affidavit is clearly intended to go into evidence in Phase II'as a basis for reaching a judgment on Issue B.
The ASLB stated that this Staff report "is to be presented during the Phase II evidentiary hearings...." id.
Later in the
- PID, the Board refers to this report as "the implementation review whih we
. have directed under Issue B." PID at 57.From that perspective, we essentially have prefiled testimony by the Staff an Issue B
in 2
1 Phase II.
But there is no prefiled testimony for HL&P on Issue B in Phase II.
There should be.
HL&P should present testimony and evidence supporting the proposition that, with the changeover to Bechtel and Ebasco, HL&P has taken adequate remedial measures to overcome previous deficiencies and provide sufficient assurance of current and future competency.
This requirement is particularly called for since the ASLB 4
concluded that prior to these changes there was "a
serious deficiency in HL&P's competence, possibly sufficient to warrant the denial"of operating licenses," PID at 51.
See alsg PID a't 183, Finding 187.
CCANP's position is that the Board's requirement for the NRC Staff to file a
report is only part of what should be a
comprehensive treatement of Issue B similar to the Phase I
proceeding.
Certainly, Issue B in Phase I could not have been resolved based simply on the filing of affidavits by the Stafft HL&P had the burden of proof and put o, extensive evidence which they contended showed that their remedial measures both corrected past deficiencies and provided a measure'of confidence in their current and future performance.
But those measures almost all related to Brown and Root.
Then late in the hearings, Brown and Root left the project rendering much of the evidence on Issue B
presented by HL&P irrelevant.
It is precisely because Applicants kept Brown and Root on the job for so long that additional hearings are requiredt had Applicants moved earlier, Issue B could have been resolved in Phase I.
These circumstances foreclose any argument by the 0
i r
^
Applicants -that extensive hearings in Phase II would cause prejudicial talay.
While. the ASLB perceived the removal of Brown and Root as a major corrective
- action, PID at 40, this action is solely a
negative proof.
There should be positive proof of improved competence and performance. To rely solely on the Staff af fidavi t for proof of this positive improvement is short cutting the process actually required for litigating an Issue in this proceeding.
I n.
- addition, by requiring CCANP to identify the factual matters in~the Staff affidavit which require a hearing, the ASLB has shifted the burden to CCANP to further delineate an Issue already accepted for litigation
- and, in
- fact, partially litigated, in this proceeding.
At the same time, CCANP is required to identify the factual matters raised by the Staff affidavit without benefit of any l
discovery on the affidavit itself. CCANP contends that no part of the affidavit should be ruled out as a matter for litigation until such discovery takes place.
Based on all of the foregoing observations, CCANP respectfully suggests that the Board now require HL&P (and any other party Nishing to call witnesses) to prefile testimony relevant to the performance of HLLP,
- Bechtel, and Ebasco during and since the transition.
The Board should then provide a period for discovery on that prefiled testimony.
After completion of i
l l
that discovery process, the Phase II hearings can cnmmence.
While CCANP is convinced the process set forth above is the appropriate al.d. legally required approach to Issue B in the Phase 4
.II hearings, CCANP hereby responds further to the process as set
-forth by the_ Board.
~
The ASLB called upon the parties to respond to the Staff affidavit but stated that this opportunity was provided predicated on the parties having "the underlying documentation."
Fifth Prehearing Conference Order at 3.
1 On three different occasions, CCANP requested, through the NRC Staff, a complete set of the HL&P 50.55(e) reports and Staff responses since the close of the record in Phase I.
Each
- time, the NRC Staff responded that a set would be forthcoming. To date, CCANP has not received such a set.
These reports are clearly a measure of the competence and performance of HLLP,
- Becthel, and Ebasco.
In fact, it would appear that the Staff relies on one incident of 50.55(e) reporting, See Affidavit #34 at 15, to contend that "HL&P was aggressive and thorough in resolving problems or allegations with respect to quality assurance." Id. #32 at 14. Similarly, the ASLB relied upon HL&P's record of reporting 50.55(e) items in reaching an opinion in Phase I on HLLP's exercise of its responsibility.
PID Finding 121 at'158-9.
CCANP is entitled to these reports and the NRC responses prior to formulating its position on the factual matters to be litigated in Phase II.
Even though CCANP contends the procedure adopted by the ASLB is inappropriate and that all the documents underlying the Staff's affidavit have in fact not been provided, CCANP pro /tdes the following additional response to the Fifth Prehearing Conference Order.
The Staff Affidavit contains numcrous expressions of opinion 5
regarding HL&P performance.
Egg e gt Affidavit #19, 20, 22, 32, z
33, 34, 35 - and 38.
CCANP is entitled to test both the 3
~
credibility of the affiants and the basis for their opinions through cross-examination based on adequate discovery.
The Affidavit' contains numerous items related to remedial measures and the role of the NRC Staff in monitoring those measures.
Sgg g3gz Affidavit #8, 9,
10, 11,-
12, 15, 16. The creation of a complete record requires an examination of those remedial measures and the Staff evaluation of those measures.
The Affidavit includes a description of the Applicants " Safe Team" at STNP, but contains no detail as to who is on the
- team, what information the team received during its existence, how the team responded to any information received, or an NRC evaluation of the performance of the team to date.
Affidavit #20 at 9.
Such a
significant development in an area of central concern to this entire proceeding warrants comprehensive exploration in the Phase II hearings.
The Affidavit indicates that the NRC is relying on HL&P to investigate allegations with the NRC playing a monitoring role.
- 21 Cas corrected]'at 9-10.
These allegations are identi fi ed only as "OA/DC deficiencies, improper construction practice and in'timidation of DC inspectors." Id. The Board should explore this implicit change in normal investigating procedures, 4
particularly to determine whether this change impacts the credibility of the NRC investigative effort.
The Affidavit contains brief descriptions of allegations received by the NRC and the status of the investigation of those allegations.
Affidavit #15-19, 21. Many of these allegations are 6
similar to the types of problems previously encountered at this
- project, e.-9, QA/OC Deficiencies, Falsification of
- Records, Improper Construction
- Practice, and Intimidation of DC Inspectors.
Phase II should take a detailed look at these allegations, in particular the substance of the allegation, the personnel involved, and the resolution.
The Affidavit contains information related to a SALP report issued by the NRC since the close of the record in Phase I.
- 22 at 10.
The basis for the SALP ratings and the addition and deletion of categories to be rated are legitimate matters of-inquiry for Phase II.
I Some of the paragraphs in the affidavit provide no n. ore than the barest of detail while at the same time containing Staff opinion.
Sgg gtgt Affidavit
- 19, 35.
To be admissible as evidence, a much more complete record would be necessary.
The Staff affidavit overall is addressr* to the adequacy of HLLP's.
Bechtel's, and Ebasco's performance since the close of the record in Phase I.
The affidavit is clearly intended to be introduced into evidence in Phase 11 as a basis for reaching a
final decision on Issue B.
The entire affidavit is, therefore, Rgt 1g an issue to be litigated in Phase II.
This fact simply highlights the accuracy of the analysis provided by CCANP in the initial section of this filing.
Rather than limit Phase II hearings on Issue B to the details of one paragraph or another of the Staff affidavit and rather than limit the evidence to be considered to the Staff affidavit and the parties cross-examination of that affidavit, the proceeding on Issue B in Phase II should be a comprehensive examination of HLLP/Bechtel/Ebasco 7
rc performance since the close of the record in Phase I.
For the above and foregoing reasons, CCANP moves the ASLB to establish a
schedule for the filing of prefiled testimony on Issue B in Phase II and for the conducting of discovery related to that prefiled testimony prior to the commencement of any Phase II hearings.
Respectfully submitted,
- E4-
,ww-w Lanny sinkin Representative for Intervenor, Citizens Concerned About Nuclear Power, Inc.
0022 Porter St., N.W.
- 304 Washington, D.C.
20008 (202) 966-2141 Dated: February 25, 1985
+
- e i
8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS3 ION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
(
)
HOUSTON LIGHTING AND
(
Docket Nos. 50-498 OL POWER COMPANY, ET AL.
)
50-499 OL (South Texas Project,
(
Units 1 and 2)
(
GEBIIEICOIE DE SEB21CE I
hereby certify that copies of CITIZENS CONCERNED ABOUT NUCLEAR POWER, INC. (CCANP) COMMENTS ON STAFF AFFIDAVIT RE: ISSUE B
AND MOTION FOR ASLB TO REQUIRE FILING OF PREFILED TESTIMONY ON ISSUE B IN PHASE II AND TO PROVIDE FOR DISCOVERY ON SAID PREFILED TESTIMONY were served by hand delivery
(*)
or deposit in the U.S.
- Mail, first class postage paid to the following individuals and entities on the 25th day of February 1985.
- Charles Bechhoefer, Esquire Brian Berwick, Esquire Chairman Asst. Atty. Gen.
Atomic Safety and Licensing Board State of Texas U.S.
Nuclear Regulatory Commission Environmtl. Protection Washington, D.C.
20555 P.
O.
Box 12548, Capitol Sta.
Austin, Texas 78711 Dr. James C.
Lamb. III Administrative Judge
- Oreste Russ Pirfo, Esquire 313 Woodhaven Road Office of the Exec. Leg. Dir.
Chapel Hill, North Carolina 27514 U.S.
Nuclear Regulatory Comm.
Washington, D.C.
20555 Ernest E.
Hill Administrative Judge
- Jack R.
Newman, Esquire Hill Associates 1615 L Street, NW, Suite 1000 210 Montego Drive Washington, D.C.
20006 Danville, California 94526 Melbert Schwar, Esquire Baker and Botts Mrs, Peqqy Buchorn 300 One Shell Pla:a Executive Director, C.E.U.
Houston, Texas 77002 Route 1,
Box 1684 Brazoria, Texas 77422 Atomic Safety and Licensing Bd.
U.S.
Nuclear Regulatorv Comm.
William S.
Jordan, III, Esq.
Washincton, D.C.
20555 Ha.rmon, Weiss & Jordan 2001 S Street, N.W.,
Suite 400 Atomic Safety and Licensing Washington, D.C.
20909 Appeal Board U.S.
Nuclear Regulatory Comm.
Pat Coy Washington, D.C.
20555 5106 Casa Oro San Antonio, Texas 7823; Docketing and Service Section Office of the Secretary Ray Goldstein U.S.
Nuclear Regulatory Comm.
1001 Vaughn Bldg.
Washington, D.C.
20555 007 Bra:os Austin, Texas 78701 Lanny Sinkin
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