ML20133J233
| ML20133J233 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/15/1985 |
| From: | Mizuno G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-790 OL, NUDOCS 8510180341 | |
| Download: ML20133J233 (12) | |
Text
_ _ _
o 0 .
OCCy*ED October 15, 1985
.Y3 CI % ,07 :72 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
[.9fo e, A mte .
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of TEXAS UTILITIES ELECTRIC Docket Nos. 50-445 COMPANY, et al. ) 50-446 (Comanche Peak Steam Electric Station, Units 1 and 2) )
NRC STAFF RESPONSE TO CASE'S MOTION FOR RECONSIDERATION AND/0R PROTECTIVE ORDER I. Introduction On September 30, 1985 the NRC Staff received " CASE's Motion for Reconsideration of Board's 8/29/85 Memorandum and Order (Proposal for Governance of this Case and/or Motion for Protective Order) (September 25, 1985) (" CASE's Motion"). CASE's Motion contains multiple requests, some of which are in the alternative, mostly regarding Applicants' and CASE's summary disposition motions on pipe support design and design quality assurance ("QA"), and the representations made by Applicants in their
" Applicants' Plan to Respond to Memorandum and Order (Quality Assurance for Design" (February 3,1984) and " Supplement to Applicants' Plan to Respond to Memorandum and Order (Quality Assurance for Design)"
(March 13, 1984) (collectively, " Applicants' Plan"). CASE also asks that the Board " confirm CASE's right to discovery" on pipe supports and components which are removed or modified (CASE's Motion, pp. 19-20,26),
and asks the Board to reconsider its decision on " CASE's Motion for Immediate Board Order for Applicants to Preserve Evidence" (August 14,
~
8510180341 851015 F hDR ADOCK O 5 SO7
i
- , 1985) (CASE's Motion, pp. 19-22,26). The NRC Staff herein responds to s
CASE'sMotion.II i II. BACKGROUND On April 26, 1985, Applicants filed a " Proposed Case Management Plan" which outlined a proposed procedure and schedule for defining i the scope of issues reauiring resolution in the two CPSES dockets. The i Board subsequently directed the Applicants to file a "further elabora-tion" of the Applicants' Proposed Case Management Plan, listing five matters that Applicants' filing should address. " Memorandum and Order (Case Management Plan") (May 24,1985). On June 28, 1985, Applicants responded to the Board's request by filing " Applicants' Current Manage-ment Views and Management Plan for Resolution of All Issues" ("Appli-l cants' Management Plan"). Following the submission of responsive briefs by the Staff and Intervenor Case, the Board issued its " Memorandum and Order (Proposal for Governance of this Case)" (August 29, 1985) (" Board's Governance Order").
,i Thereafter, on September 25, 1985 Applicants filed a " Motion for Modification with Respect to the Board's Memorandum of August 29, 1985 l
, (Proposal for Governance of this CASE)" (" Applicants' Motion"), together with the " Applicants' Memorandum in Support of Motion for Modification with Respect to the Board's Memorandum of August 29, 1985 (Proposal for
-1/ The Staff does not intend to respond to CASE's request that the Board " confirm" CASE's right to discovery on modified or removed components at CPSES (CASE's Motion, pp. 19-20,26), since this request concerns discovery between CASE and Applicants, t
=
j ,
i Governance of this CASE)" (" Applicants' Memorandum"). Applicants' Motion requested the Board to modify the Board's Governance Order with respect to six matters. Applicants' Memorandum stated that Applicants "unequivo-cally withdraw" their summary disposition motions which have not yet been resolved by the Board. Applicants' Pemorandum, p. 10. CASE filed its Motion simultaneously with Applicants' Motion.
On October 2, 1985, the Board issued a " Memorandum and Order (Applicants' Motion for Modification)" (" Board's Modification Order").
The Board acknowledged Applicants' withdrawal of their summary disposi-tion motions, and indicated it would not act on the motions. Board's Mcdification Order, p. 4. However, the Board noted that with their withdrawal, the record is still incomplete on addressing the Board's concerns on design and design OA which were discussed in the Board's
" Memorandum and Order (Quality Assurance for Design)". LBP-83-81,18 NRC j 1410 (1983). Board's Modification Order, p. 4, and note 3. In a separate " Notice", the Board indicated that nothing in the Board's Modification Order should be interpreted to deny CASE's Motion, and that i
i responses to that motion were in order.
III. Discussion i ;
A. Summary Disposition Motions on Pipe Support Design and Design OA CASE's multiple requests for Board action revolve largely around
- Applicants' and CASE's summary disposition motions addressing the :
i i adequacy of Applicants' pipe support designs and design QA for CPSES. ,
- As mentioned above, Applicants have withdrawn their summary disposition !
r 4
l
. motions which have not been acted upon by the Board. 2/ The Board has -
acknowledged the Applicants' withdrawal of those motions, and indicated that it will not act on those motions. 3/ Board's Modification Order, p. 4.
! Because of these actions, 'it is no longer necessary for the Board to act upon CASE's requests concerning Applicants' summary disposition motions.
Thus, the Board should deny CASE's requests that the Board: (1) find that Applicants are in default in answering CASE's responses to Appli-cants' summary disposition motions, and that there are " inadequate or erroneous" designs at CPSES (CASE's Motion, pp. 22, 25, request 10);
(2) " clarify" that Applicants' summary disposition motions do not address all of the Walsh/Doyle allegations identified in CASE's August 22, 1983
-2/ One of Applicants' summary disposition motions en pipe support design
(" Applicants' Motion for Summary Disposition of Certain CASE Allega-tions Regarding AWS and ASME Code Provisions Related to Welding Issues; Reouest for Expedited Response" (April 6,1984)) has been i
- resolved by the Board in Applicants' favor. " Memorandum and Order (Written-Filing Decisions, #1
- Some AWS/ASME Issues)" LBP-84-25, i
19 NRC 1589 (1984). The Staff trusts that Applicants will be
- reviewing the representations made in this sumary aisposition i
motion together with the corrective actions which are currently i being implemented by the CPRT, and that they will notify the Board
- and parties if there is any new information which may bear upon the correctness of the Board's decision on this matter. See Petition for Emergency and Remedial Relief, CLI-78-6, 7 NRC 400, 418 (1978),
Tennessee Valley Authority (Browns Ferry Nuclear Power Plant,
! Units 1, 2 and 3), ALAB-677, 15 NRC 1387 (1982); Consumers Power Co.
j (Midland Plant, Units 1 and ), ALAB-691, 16 NRC 897, 910 (1982);
see also Board's Modification Order, p. 4.
3/ The Staff knows of no legal theory barring the withdrawal of evidence by the party originally offering it into evidence, and is aware of at least one proceeding where a party voluntarily withdrew evidence it offered without any further Board coment. See Long
- Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-83-57, 18 NRC 445 (1983), at Finding F-5 (unpublished in NRC '
Reports).
i i, ,
Proposed Findings of Fact and Conclusions of Law (CASE's Motion,
- pp. 22-23, request 1); (3) " confirm" that the Board will rule upon Appli-cants' sumary disposition motions, and decide whether, " based upon the record at the time of the motions filed, a license would not have been issued" (CASE's Motion, p. 24, requests 5 and 6); (4) find that Appli-t j cants cannot " change" their affidavits submitted in support of their f
I sumary disposition motiors (CASE's Motion, p. 24, request 7); (5) rule against Applicants' summary disposition motions (CASE's Motion, p. 24, request 8); and (6) permit CASE to undertake discovery on Applicants' answer to CASE's response regarding Applicants' summary disposition j motions (CASE's Motion, p. 25, request 12). No purpose would be served j by the Board and parties continuing to pursue these sumary disposition i
1 motions, which have been withdrawn from the proceeding and have no evidentiary standing. Moreover, the Board has recognized that the CPRT has the potential to refocus the issues in this proceeding. Board's I Governance Order, pp. 3, 4-8. If the Applicants are able to successfully j show that the CpRT and related corrective actions comprehensively address and resolve all identified and potential deficiencies, evidence intended
[ to establish the actual nature of potential deficiencies becomes largely 1
i irrelevant. Thus, the Staff does not support any further efforts at this
( tirre at litigating currently-identified issues under the existing theory of the case.
While CASE suggests that it has been prejudiced by Applicarts' failure to respond to CASE's responses regarding Applicants' sumary I .
disposition motions and CASE's own sumary disposition motions (see,
]
n , pp. 4-8, 10-12), the Staff disagrees. CASE essentially questions 1
4
whether Applicants can continue to have the opportunity to present new evidence, rely upon new legal theories until the Board rules in Appli-cants' favor. U The answer to that question is in the affirmative, b as the Applicants have argued. See Applicants' Management Plan, pp. 29-35. It is perhaps unfair from a procedural standpoint that an intervenor such as CASE may be required to repeatedly "make its case" against an applicant and that an applicant will be afforded numerous opporturities to correct any deficiencies at the plant and offer evidence on those corrective action at a hearing. However, where an applicant has
-4/ CASE also appears to contend that the Board's decision in its
" Order (Granting Summary Disposition of Contentions 2 and 7)"
(March 5, 1982) ("CFUR Contention Order") stands for the proposi-tion that Applicants may not request postponement of action on their summary disposition motions. See CASE's Motion, pp. 5-8.
The Staff points out that with Applicants' withdrawal of their sumary disposition motions, this CASE argument is essentially irrelevant. In any event, the Staff disagrees with LASE's under-standing of the CFUR Contention Order. At the time of the CFUR '
Contention Order, CFUR had withdrawn from the proceeding, as well as all of its contentions, including Contentions 2 and 7. CFUR Contention Order, p. 2. However, prior to CFUR's notice of with- l
- drawal, Applicants had filed a motion for sumary disposition on '
Contentions 2 and 7. The Staff submitted an answer supporting the .
Applicants' motion. CFUR never filed an answer challenging the substantive or legal arguments presented by Applicants and the Staff. ,
Id. Thus, at that time the Board was faced with contentions without !
Tsponsoring intervenor, as well as uncontroverted evidence showing ,
that the contentions were unsubstantiated. It was in that procedural posture that the Board granted summary disposition of CFUR Centen- l tions 2 and 7 Accordingly, the Staff regards the CFUR Contention i Order to be inapposite and without relevance to the issue raised by CASE in its Motion. ;
5/ An exception is where the Licensing Board finds that an applicant !
- is incapable or unwilling to demonstrate, either factually or as a i
matter of law, that the nuclear power plant is properly designed and constructed, and can be operated without endangering the health and .
safety of the public. Cf. Comonwealth Edison Company (Bryon Nuclear !
Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163, 1169 (1984). !
t l
t i
I i
)
] ,
I l committed to instituting corrective actions to address identified and
' r
- potential deficiencies, as have the Applicants in this proceeding, and 1
there is a likelihood of substantial information on the corrective actions being generated and offered into evidence, as Applicants have
- offered in their Management Plan, it would not be " logical or proper to I i i close down a multi-billion-dollar nuclear plant because of a deficiency I
- '
of proof." " Memorandum and Order (Reconsideration Concerning Quality l
Assurance for Design)" LBP-84-10, 19 NRC 509, 530 (1984); Comonwealth l
l Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770, 19 NRC 1163,1168-70(1984). If Applicants are able to demonstrate that
- deficiencies at CPSES have been addressed and corrected and there is l assurance that the plant can be operated safely, there simply is no i
{ logical reason for not granting an operating license. See Atomic Energy i
j Act of 1955, Section 185, 42 U.S.C. 9 2235. In sum, the Staff finds ,
I
{
that CASE is not preiudiced by the Applicants' actions.
The Board should deny CASE's requests (CASE's Motion, pp. 22, 25, j requests 10 and 11) that the Board find that Applicants have defaulted j in answering CASE's First, Second, Third and Fourth Sumary Disposition 3 Motions. The Board has suspended all litigation on currently-pending issues. See January 30, 1985 Letter from Robert Wo Idridge to Peter 1
j Bloch; March 21, 1985 Letter from Robert Wooldridge to Peter Bloch, j item 9. Therefore, Applicants are net in default of any obligation to l respond to CASE's responses or summary dispositions motions.
1 j The Staff acknowledges CASE's observation (CASE's Motion, pp.18, l t ,
j 25, request 14) that Applicants' 1985 request for a suspension of l hearings and litigation in this proceeding has contributed to a delay in i
I ,
l
j ] -
l' the proceeding. However, the Staff does not see the nc.ed or legal basis i
l for a ruling by the Board to this effect. The Board has also stated i
{
several times, in various contexts, that CASE will not be prejudiced by ,
4 Applicants' requests for suspensions or deferrals. See, e.g., "Memoran-1 dum and Order (Case Management Plan)" (May 24 1985); " Memorandum (Reopening Discovery; Misleading Statement" (December 18,1984). For ,
i these reasons, the Board should deny CASE's request that the Board find l that the " delay caused by AppHeants' failure to fulfill their 1984 i
j Plan" is attributable to Applicants.
c CASE's request that the Board find that Applicants have " defaulted" 1 on their 1984 Plan (CASE's Motion, p. 9, request 9) should also be denied.
1 Applicants' CPRT is presently considering the pipe support design and j design QA concerns that were to be addressed by Applicants' Plan (CPRT Program Plan, Revision 2 (June 28, 1985), Appendix B; Appendix C, l
l Item IX), and Applicants intend to offer into evidence the CPRT's evalua-tien and conclusions on these issues. Applicants' Management Plan, '
j pp. 59-60. In light of these representations by Applicants, as well as i
- their withdrawal of their summary disposition motions on these issues, it is a fair conclusion (although not explicitly stated by Applicants) j that Applicants have withdrawn their 1984 Plan. However, it would be
! inaccurate for the Board to characterize the Applicants' action in this
{ matter as a " default."
l Finally, the Board should deny CASE's request that the Board find that the CPRT Plan does not address all of the piping and pipe support
,i design and design QA issues identified by Messrs. Walsh and Doyle. It
! is premature for the Board to make such a finding, when the CPRT Program i i 4
4 i . !
Plan is not yet in evidence, and the detailed information regarding the
! actual scope of issues to be assessed by the CPRT has yet to be fully developed. Moreover, CASE's assertion in this regard is without any basis -- CASE does not indicate what issues identified by Messrs. Walsh ,
and Doyle will not be addressed by the CPRT. Indeed, such a showing 1 probably would be impossible at this time, since it is the Staff's under- i standing that the CPRT has not yet completed compiling a comprehensive 1 list of piping and pipe support design and design OA issues which it intendstoreview.5# In sum, there is no basis for a Board finding I
at this stage in the proceeding that the CPRT will not be addressing all currently-identified Walsh/Doyle issues. I l
B. Preservation of Evidence CASEaskstheBoardtoreconsideritsdecision2 denying CASE's ;
earlier request for a Board order directing Applicants nct to remove
! or modify pipe supports or other plant components, 8_/ by granting an
" amended request" by CASE for a Board order directing Applicants to j " retain in retrievable condition, in some retrievable-location, with j fully retrievable documentation," all removed pipe and cable tray l 1 e i l
-6/ The Staff expresses its hope that CASE will continue to participate i in the CPRT process by transmitting its comments on the CPRT Program !
Plan to the Staff in a timely manner, consistent with the past '
i; practice of CASE. See, e.g., Board Notification 85-975 (August 16, 1985) and the Board's Governance Order, p. 3, n.3.
Z/ Board's Governance Order, p. 6, n.4 i 8/
" CASE's Motion for Immediate Board Order for Applicants to Preserve ,
- Evidence"(August 14,1985). l l
! L t
i 4
l l . ,
1 l
. l supports. CASE's Motion, pp. 20-21, 26. The Staff opposes this request. Contrary to CASE's representation, its " amended" request does '
not differ in substance from its original request for preservation of 1
j evidence, and CASE presents no new arguments explaining why the Board's t
4 decision on this matter is incorrect. The Staff submits that the points raised by the Staff in opposition to CASE's original motion El are
- just as compelling in counseling the denial of CASE's latest request.
Accordingly, the Board should deny CASE's Motion for reconsideration of this matter.
{
i l IV. Conclusion k
j for the reasons set forth above, the Board should deny CASE's i Motion.
I j Respectfully submitted, l
l Geary S. izuno Counsel for NRC Staff k
i i
Dated at Bethesda, Marylard this 15th day of October,1985 i
i I 9/
~
"NRC Staff Response to CASE's Motion for Board Order Directing l Applicants to Preserve Evidence, and CASE's Offer of Proof in
! Support of this Motion" (August 27,1985),pp.3-7.
+
1
--~,e, . - ~ . - ,. ,,.,,w m-,--.-w_,-.~.r,.- ,,-,n..,,--mm.,,..,-,,,-- __-- ,,rw..,, ,w g , m m .w, -- w
.- - - --. - -. . . - _ = - _ -
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- In the Matter of TEXAS UTILITIES ELECTRIC Docket Nos. 50-445 COMPANY, et M . 50-446 (Comanche Peak Steam Electric Station, Units 1 and 2) )
( l I CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CASE'S MOTION FOR l
RECONSIDERATION AND/0R PROTECTIVE ORDER" in the above-captioned proceeding j have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 15th day of October, 1985:
Peter a. Bloch, Esq., Chairman
- Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street t
U.S. Nuclear Regulatory Comission Dallas, TX 75224
.; Washington, DC 20555 i
Renea Hicks, Esq.
, Dr. Kenneth A. McCollom Assistant Attorney General i Administrative Judge Environmental Protection Division i Dean, Division of Engineering P.O. Box 12548 Capital Station i Architecture and Technology Austin, TX 78711 j Oklahoma State University Stillwater, OK, 74078 Nicholas S. Reynolds Esq.
i William A. Horin, Esq.
I Elizabeth B. Johnson Bishop Liberman, Cook, i Administrative Judge Purcell & Reynolds Oak Ridge National Laboratory 1200 17th Street, N.W.
P.O. Box X, Building 3500 Washington, DC 20036 Oak Ridge, TN 37830 Billie Pirner Garde 3
Dr. Walter H. Jordan Citizens Clinic Director Administrative Judge Government Accountability Project <
t 881 W. Outer Drive 1901 Que Street, N.W.
{ Oak Ridge, TN 37830 Washington, DC 20009 i
)
1 i 1
. Herbert Grossman, Alternate Chairman
- Mr. W. G. Counsil Administrative Judge Executive Vice President Atomic Safety and Licensing Board Texas Utilities Generating Company U.S. Nuclear Regulatory Commission 400 North Olive Street, L.B. 81 Washington, DC 20555 Dallas, TX 75201 Ellen Ginsberg, Esq.* William L. Brown, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 Washington, DC 20555 Ar1ington, TX 76011 Robert A. Wooldridge, Esq. Lanny Alan Sinkin Worsham, Forsythe, Samples 3022 Porter Street, N.W., #304
& Wooldridge Washington, DC 20008 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 James T. McGaughy Southern Engineering Co. of Georgia Mr. James E. Cumins 1800 Peachtree Street, N.W.
Resident Inspector / Comanche Peak Atlanta, GA 30367-8301 Steam Electric Station c/o U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board P.O. Box 38 Panel
- Glen Rose, TX 76043 U.S. Nuclear Regulatory Comission Washington, DC 20555 William H. Burchette, Esq.
Mark D. Nozette, Esq. Atomic Safety and Licensing Appeal Heron, Burchette, Ruckert Board Panel *
& Rothwell U.S. Nuclear Regulatory *Comission Suite 700 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.
Washington, DC 20007 Docketing and Service Section*
Office of the Secretary Robert D. Martin U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Robert A. Jablon Esq.
Spiegel & McDiarmid 1350 New York Avenue, N.W.
Washington, DC 20005-4798 ron Ylft4 rman
&tMUL Deput ssistant Chief Hearing Counsel