ML20134L809
| ML20134L809 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/30/1985 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#385-381 OL, NUDOCS 8509030424 | |
| Download: ML20134L809 (18) | |
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{IED UNITED STATES OF AMERICA '03 hg _og R0.57 NUCLEAR REGULATORY COMMISSION ,
before the : ,
d ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-445 TEXAS UTILITIES ELECTRIC ) 50-446 COMPANY, et al. )
) (Application for Operating (Comanche Peak Steam ) License)
Electric Station, )
Units 1 and 2) )
)
)
APPLICANTS' RESPONSE TO CASE'S (1) MOTION FOR BOARD TO ORDER APPLICANTS TO SUPPLY DOCUMENTS TO BOARD; (2) MOTION FOR IMMEDIATE BOARD ORDER FOR APPLICANTS TO PRESERVE EVIDENCE AND OFFER OF PROOF IN SUPPORT THEREOF; (3) CASE'S OFFER OF PROOF OF LACK OF INDEPENDENCE OF APPLICANIS' LATEST PLAN (CPRT PLAN); AND (4) CASE'S PROPOSAL REG.TRDING DESIGN / DESIGN QA ISSUES IN RESPONSE TO APPLICANTS' 6/28/85 CURRENT MANAGEMENT VIEWS AND MANAGEMENT PLAN FOR RESOLUTION OF ALL ISSUES Under the dates of August 14, 15 and 19, 1985, CASE served upon the Applicants five documents, two denominated
" motions", two denominated " offers of proof" that, in reality, are not offers of proof but briefs and arguments as to various items, and one denominated a " proposal". Each of 90gh h p ) b G
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the documents evidences a total misapprehension of the purpose and scope of an NRC operating licensing proceeding.
In addition, each document is premised on a total misunderstanding of the proper roles assigned in such a proceeding to the Board, the Staff, the applicants and the intervenors. As a result the applicants herein reply to all of the documents in a single filing which is divided into two parts. Part I sets forth certain of the principles that govern the conduct of an operating license adjudicatory proceeding. Part II shows that straightforward application of these principles dictates denial of the two motions and
! rejection of the arguments made in the " offers of proof" and l " proposal".
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l PART I A. The Purpose and Scope of NRC Operating License Hearings Adjudicatory hearings on operating license applications are not mandatory. They are the result of a request for a hearing by an interested party that has contentions with respect to the facility which that party desiren to have resolved. Absent extraordinary findings by the Licensing Board conducting the hearing, the scope of the hearing is confined to those issues raised by the parties requesting the hearing. 10 CFR $ 2.760a. Indeed, discovery in NRC practice is strictly limited to those matters relevant to the admitted contentions. 10 CFR $ 2.740(b)(1).
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In an operating license proceeding of the nature here involved which is confined to questions of radiological safety (as opposed to antitrust or environmental issue), the bench marks by which safety is defined are the rules and regulations of~che Commission. Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1009-10 (1973), aff'd sub. nom., Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291 (D.C. Cir. 1975); see also 10 CFR 9 2.758. This is critical, for the words
" safety" and " safe" are " plastic" in nature. The question:
"Is it safe?," must always be properly answered " Compared to what?" Congress has mandated that a " safe" reactor is one which complies with the rules and regulations, and one which complies with the rules and regulations receives an operating license. Thus, the words " safe" and " licensable" are, in the world of nuclear power, synonymous; to attain "licensability" is to attain the requisite " safety".
It is not the business of the NRC adjudicatory hearing process to decide abstract or moot questions. See Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-419, 6 NRC 3, 6 (1977); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-557, 10 NRC 153 (1979). When an issue no longer is " live", it, and all matters relevant to it, cease to be a concern of the proceeding. Furthermore, the proceeding is not a "one shot" proposition where the
!4 alternatives are either to license the plant presented by l the applicants or forever deny it the right to run. Just as l in an uncontested case where the staff decides when the license should issue, the job of the tribunal is to see that defects found are corrected before authority to run is conferred; it is not its function to simply say "you lose" l to the applicant and shut the project down forever. See Commonwealth Edison Co. (Byran Nuclear Power Station, Units 1
1 and 2), ALAB-770, 19 NRC 1163, 1169 (1984).
l Finally, an NRC operating license adjudicatory hearing is not a forum for exploring "past follies" of utilities, real or imagined; it is not a resurrection of the stocks and i
whipping posts so common in 17th Century New England which provided the general populace a place and time to heap abuse upon those guilty of past sins of omission or commission, real or imagined.
r B. The Roles of The Participants
- 1. The Licensing Board ;
Any NRC Licensing Board has only that power and jurisdiction which the Commission delegates to it. E.g.,
Public Service Company of Indiana (Marble Hill Nuclear l
Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976). In an operating license proceeding, that ;
I jurisdiction is confined to deciding contentions raised by the parties or raised by the Board by appropriate "sua 1
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sponte" procedures. 10 CFR 5 2.760a. The Board does not i supervise the Staff. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), CLI-80-12, 11 NRC '
514, 516 (1980). "It does not . . . have general jurisdiction over the already authorized ongoing r construction of the plant . . . and it cannot suspend such a previously issued permit." Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101, 1103 (1982).
All such supervisory authority and power is vested in the Staff.
- 2. The Applicants c
The applicants have the burden of proof throughout an operating license proceeding on every contention admitted therein. 10 CFR 5 2.732. However, how they meet that burden is up to them. An applicant in an NRC adjudicatory proceeding, like any litigant, has the right, within the ,
rules of procedure and evidence and the constraints of the canons of ethics to make its case in whatever manner it !
chooses. It has the right to employ what experts it ;
chooses; to set the terms of their contracts and to instruct I
them how they will accomplish the tasks. !
"The fact that a witness is employed by a party, or paid by a party, does not disqualify the witness from testifying or render the testimony l valueless . . . . It should come as no !
surprise that most expert witnesses do !
receive compensation from the parties on ,
whose behalf they testify. But their i compensation is for their time and {
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e expertise, not for their testimony as such. There is nothing wrong or inherently suspect about that. To be sure . . . the opposing party can elicit the fact that a witness has been paid for his or her appearance, or is employed by a party. But that line of attack goes only to the persuasiveness or weight that should be accorded the expert's testimony, not its admissibility." Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983).
The applicant is not a technical resource for the intervenor and, whether under the guise of discovery or otherwise, an applicant is under no obligation to conduct research or analyses at an intervenor's request. See Pennsylvania Power & Light Co. (Susquehana Steam Electric
! Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980).
In short, for better or worse, NRC operating license proceedings are adversary adjudicatory proceedings. Each l
l adversary has the right to make its case its own way and is not obligated (other than complying with proper discovery i i requests to the extent required) to make its adversary's case for it.
- 3. The Staff I
l As noted earlier it is the Staff that has general !
supervision of ongoing construction of CPSES at this
! juncture. The Commission has stated:
"To be sure, the staff is party to the proceedings before us. But it is also an arm of the Commission and is the primary instrumentality through which we carry out our statutory o
O responsibilities. It would be contrary to the facts of the administrative process to pretend that the staff is always merely a party whose submissions are to be given no more weight than those of any other party. On some questions, such as interpretation of statutes or judicial decisions, the staff submissions have no more weight than'those of any other party. But in other cases that would not be so."
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-16-17, 4 NRC 451, 462 (1976).
- 4. The Intervenor Of relevance to the matters at bar is not so much what duties or obligations an intervenor has in NRC proceedings, but rather what duties it does not have. It is not its function to tell the Board how to run the case or what the Board needs to decide a question. It is not an intervenor's function to dictate to the applicant how to run its case.
And an intervenor has no right to a trial and decision on an issue that is moot or irrelevant.
PART II A. The Motion for Board to order Applicants to Supply Documents to Board Should Be Denied CASE's Motion for Board to Order Applicants to Supply Documents to Board transgresses at least two of the principles discussed above. It constitutes a transgression of the rule that an applicant has the right to run its own case as it sees fit (and accept the consequences, if any, of mistaken efforts). And it also transgresses the principle
that the Board, not the intervenor runs the hearing. What CASE is demanding, in reality, is that the Board be given, at once, the materials that CASE believes the Board has to read before it can decide certain questions which CASE claims the appficant has asked the Board to rule on.
Prescinding from the question of whether Applicants have asked for the ruling CASE claims they have,1 the basic rule is a party can ask a board for a ruling based on what it tenders in support thereof by way of argument, evidence, etc. The opposition is free to tender what it will in opposition. The Board can always request more information if it feels it is necessary. This is how the adversary system works. Indeed, both in NRC and Federal Court practice a discovery request for documents contemplates the l
l giving of the documents for inspection and copying to the party making the request. All documents produced are not copied and sent to the tribunal. Documents are tendered to l
l the tribunal, rather, only when a party deems them relevant 1
to a pending request for action.
1 CASE, in its motion, states the applicants "have asked the Board to rule favorably on an incomplete CPRT plan."
Applicants have not, at this juncture, requested any ruling on the CPRT plan as such. Applicants have asked for a favorable ruling on the proposed case management plan; this plan contemplates that there may be litigation (or agreement) leading to approval of the CPRT plan.
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} To put it bluntly, we think that at this juncture there i is neither need nor NRC precedent for the Board to review l
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the referenced documents in bulk; we assume, if the Board i feels otherwise it will ask for the records and they will, j of course, be furnished posthaste. CASE is always free to f
i tender to the Board and serve on the parties whatever it
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4 believes is relevant to the issue of the appropriateness of q the proposed CASE management plan. But CASE has no right to
! require us to do it for them especially where we deem the referenced records, at this juncture, irrelevant to the I
J issue.
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B. The Motion for Immediate Board '
order for Applicants to Preserve Evidence Should be Denied a Some six weeks after Applicants served, on June 28, 4 1985, its Current Management Views and Management Plan for ,
Resolution of all Issues, in which it was stated on Page 6
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! that " Applicants have already ordered the modification or I replacement of a number of pipe supports and expect that 1 t
} other modifications will be required," CASE has filed a l
l motion seeking an order from this Board enjoining the !
Applicants from engaging in such activity. Indeed, the motion, which is pressed as being an " urgent matter" as of
- - six weeks after the Applicants' course of action was plainly i
j revealed, was then expanded by an " offer of proof" filed in f
] support of the motion to include a request for an order ,
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forcing Applicants to keep in place not only all pipe supports, but also cable tray supports, conduit supports and anything else the CPRT may be looking at.
First of all CASE misapprehends what is and is not relevant evidence in an NRC licensing proceeding. A pipe or cable tray support which is being thrown away and not used may not be the matter least relevant to an operating license proceeding, but it is difficult to think of something less relevant. To the extent that original (but now superceded) designs are relevent to any live issue in the proceeding, they are retained in original design drawings.
CASE's suggestion that the action requested is needed so that these items can be used as evidence of past defalcations by the Applicants assumes, contrary to law, i
that the purpose of this proceeding is to castigate Applicant for past sins, real or imagined, rather than seeing to it that any defects are corrected.
In reality, CASE's motion, especially when the requested relief is considered along with the suggestion that the Board and not the Staff oversee a reinspection program, in ,
an engraved invitation for this Board to exceed its jurisdiction. It amounto to asking the Board to take over general regulatory supervinion of construction, an activity vented by the Comminnion in its Staff. Indood, if CASE truly wants what amounts to a stop-work order, it in in the wrong forum and invoking the wrong proceduro. Only tho 1
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Commission itself, see Cincinnati Gas & Electric Company (William H. Zimmer Nuclear Power Station), CLI-82-83, 16 NRC 1489 (1982), or the Staff, acting under 10 CFR $ 2.206 for the Commission, can grant that relief. The division of authority between the Staff and the Licensing Boards is clear and should not be transgressed. In point of fact this Board has c)nsistently recognized that its power to influence tie methods by which defects are corrected is l limited to the power of suggestion rather than command.
l Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 18 NRC 1410, 1454 ;
(1983).
Even assuming the motion did not violate traditional l
Staff-Board relationships, it is without merit as a matter of logic even if one puts the question of relevancy to live t
contentions aside. A review of the CASE motion indicates f
that what CASE wants is an acknowledgment that it was right and Applicants were wrong and that certain supports were '
bad. To the extent that such an acknowledgment has any place in this proceeding, CASE in free to argue that the acts of pulling out and replacing the supports is sufficient basis for the making of such a finding. At a minimum the t j replacement of a support is an admission that it was cheaper ,
f j to replace than to validate. However, we repeat, the !'
t i relevancy of such findings when the support is no longer in l the plant wholly escapon us. I i !
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l Allowance of the motion would accomplish no legitimate objective of CASE and contrary to CASE's assertions at Page 3 of its motion that such action "would not harm any '
party" allowance of the motion would do severe harm to the ongoing effort to rectify the problems with the licensability of this facility. CASE's motion should be denied.
C. The Independence Arguments Set Out in the " Offer of Proof" Should be Rejected i l As noted earlier one of the " Offers of Proof" was
! clearly denominated as being in support of one of the l
motions viz. the motion to preserve evidence. The i
l August 19, 1985, package also included an " Offer of Proof of Lack of Independence of Applicants Latest Plan (CPRT)". The I l arguments contained in this document are stated as being further support for CASE's request for a stop-work order in [
l the form of an order to preserve evidence, Indep. Off. of ;
Proof at 12, and its suggestion that the Board supervise and, indeed be contractually responsible for any :
i l reinspection effort, id, at 22. Thus to complete a response '
l to the Motion to Preserve Evidence we address the
" independence" arguments contained in that " offer of proof".
Stripped to its essentials the offer of proof advances two reasons why the CPRT allegedly lacks the independence I necessary and that therefore its effort is flawed and to be i
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discarded before it is even finished. First, it is argued that the SRT and CPRT personnel are employees (in one case) or subcontractors or contractors of TUGCO. This alone is argued as grounds for disregarding their efforts. As discussed in P:rt I, experts in this field have to be paid.
It is their personal integrity that is relied upon by their sponsor and the Licensing Board to the extent it accepts their work. If it be so that the fact that a third party has a contract with a utility disqualifies his or her conclusions from belief by virtue of that fact, no nuclear power plant should have a license. Second, a good deal of time is devoted to establishing the proposition that the contracts involved speak in terms of obtaining a license rather than setting forth " safety" as one of the criteria.
As explained in Part I above, licensability and safety are synonymous in the world of nuclear power. It would be a brave lawyer indeed who would permit a client to sign a contract binding him or her to make a product " safe,"
without defining " safe" by some objective criteria such as compliance with a regulation or other written standard.
CASE is right about one thing. The major goal of CPRT is to get the plant licensed. We would be surprised if CASE thought we had any other purpose. CASE has its goals too.
Indeed, at Page 17 of its " offer of proof" on lack of independence it reveals its rationale for why the CPRT can now never satisfy CASE. However, it is not CASE that has to
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be satisfied. It is this Board.2 And we suggest that while the CPRT program is, like all products of human endeavor potentially imperfect, it goes a long way toward rectifying an admittedly unhappy state of affairs. Constructive criticism of the effort, such as that already offered by the l
Staff, will hopefully advance the effort towards perfection.
Simply clutching at phrases taken in vacuo from a contract t to assemble an argument as to why the effort should be l
l discarded at the outset may be a good exercise in advocacy l for a party dedicated to killing the project, but it will do l
l nothing to enhance the safety of the plant or lessen the l
l eventual cost to the ratepayer.
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! Finally, CASE is also correct in saying the Applicants l
do not claim " independence" as CASE defines it for CPRT. It l
l does not need to; no rule, regulation or order of the Commission requires it.3 Similarly, no rule, regulation, statute or order of the Commission requires (or even a At least as to matters relevant to Contention 5, CPRT was designed to transcend the dividing line between issues admitted in the licensing proceeding (as to which the Board is the arbiter) and other licensing issues (as to which the Staff is the arbiter). It is likely, therefore, that less than the entirety of the CPRT scope will be a subject of litigation in the adjudicatory proceeding.
( 8 The applicants do plan to address the question of j independence as defined by the Staff in its SSER of L August 9, 1985.
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a permits) Licensing Boards to contract, and be responsible, for reinspection efforts.
D. CASE's Proposal Regarding Design QA Issues Should Be Rejected CASE's August 15, 1985, proposal regarding design QA issues also transgresses certain of the principles set forth in Part I. In the first instance, CASE has confused the proper order of decisionmaking. CASE in essence argues that the proceeding may not go forward with respect to the resolution of design issues until certain pleadings (Applicants' and CASE's motions for summary disposition) are l ruled on by the Board. CASE contends that such action is required to determine the " status of the record" and only then will it be " appropriate to consider the next step" in I the proceeding. CASE has reversed the proper course of events.* As discussed in Part 1, CASE has no right to l
- CASE further argues that it must await receipt of discovery to set forth a " proposed schedule" regarding the remainder of the proceeding. CASE also suggested that such discovery is necessary to respond substantively to Applicants' Management Plan. Discovery on the CPRT Program Plan is not a prerequisite to addressing the Management Plan. Applicants acknowledge that additional information may need to be provided to address the CPTR Plan itself. However, detailed ir. formation regarding that Plan (beyond that already provided) is not required to address the Management
. Plan. Indeed, part of that Management Plan concerns the l conduct and role of discovery regarding the CPRT Plan.
l Insistence that such discovery is a necessary prerequisite to responding to the Management Plan is illogical.
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a expect, and the Board has no duty to reach, a decision on matters which have been mooted by intervening events. The issue now before the Board is whether those matters have been mooted, as argued in Applicants' Management Plan. That determination may be made without ruling on the various motions which are the subject of CASE's proposal. If the Board disagrees with Applicants' arguments regarding mootness, then it may be appropriate to consider the disposition of those pleadings.
CONCLUSION For all of the foregoing reasons the CASE motions at bar should be denied; and the CASE proposal and offers of proof should be rejected.
Respectfully submitted, Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK, PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS
& WOOLDRIDGE 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 (214) 748-9365 Thomas G. Dignan, Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 FM /.
By~CrML-Ar/f Thomas,C# Dignan, Jr.
Counsef'for Applicants s
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- ha CERTIFICATE OF SERVICE 65 Aug 30 ABuS8 I
I, Thomas G. Dignan, Jr., one of the attorneysb c(the Jp
' 3 Rat &
Applicants herein, hereby certify that on August 28, 1985, I made service of the within document by mailing copies thereof, postage prepaid, to:
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- Peter B. Bloch, Esquire
- Herbert Grossman Chairman Alternate Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission
! Commission Washington, D.C. 20555 Washington, D.C. 20555 4
- Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 2
- Stuart A. Treby, Esquire *Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street j U.S. Nuclear Regulatory Dallas, Texas 75224 Commission l
7735 Old Georgetown Road Room 10117 Bethesda, Maryland 20814 i
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Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O.. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555
- Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W., Suite 611 Suite 83.0 Washington, D.C. 20036 Washington, D.C. 20036
- Dr. Kenneth A. McCollom Mr. Lanny A. Sinkin Administrative Judge 3022 Porter Street, N.W., #304 Dean, Division of Engineering, Washington, D.C. 20008 Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74078
- Ms. Billie Pirner Garde Mr. Robert D. Martin Citizens Clinic Director Regional Administrator, 1555 Connecticut Avenue, N.W. Region IV Suite 202 U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Suite 1000 Arlington, Texas 76011 Elizabeth B. Johnson *Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, 3uilding 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Nancy Williams Mr. James E. Cummins Cygna Energy Services, Inc. Resident Inspector 101 California Street Comanche Peak S.E.S.
Suite 1000 c/o U.S. Nuclear Regulatory San Francisco, California 94111 Commission P.O. Box 38 Glen Rose, Texas 76043
- a. -Whb&y Thomas G. Dipnan, Jr.
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