ML20137D704

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Order Denying Util 850107 Motion for Reconsideration of ASLB Memorandum (Reopening Discovery,Misleading Statement) & Intervenor Motion to Make Board Notification 85-077 Conclusions on Issue.Served on 851126
ML20137D704
Person / Time
Site: Comanche Peak  Luminant icon.png
Issue date: 11/25/1985
From: Bloch P
Atomic Safety and Licensing Board Panel
To:
TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
References
CON-#485-316 79-430-06-OL, 79-430-6-OL, OL, NUDOCS 8511270133
Download: ML20137D704 (13)


Text

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l' UNITED STATES OF AMERICA LBP-85-4bgh.

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ED NUCLEAR REGULATORY COMMISSION Before Administrative Judges: 00'/ 2 6

$0*27 Peter B. Bloch, Chairman y % .c _

Dr. Kenneth A. McCollom -

Dr. Walter H. Jordan y L 3 NOV2a19g5 In the Matter of ) Docket Nos. 50-445-OL

) 50-446-0L

)

TEXAS UTILITIES ELECTRIC COMPANY, et al.)

--- -- ) ASLBP No. 79-430-06 OL (Comanche Peak Steam Electric Station. )

Units 1 and 2) )

) November 25, 1985 MEMORANDUM AND ORDER MEMORANDUM (Reconsideration of Misrepresentation Memorandum)

The principal purpose of this memorandum is to act on TEXAS UTILI-TIES ELECTRIC COMPANY, et al.'s (Applicant's) " Motion for Reconsidera-tion of Licensing Board's Memorandum (Reopening Discovery; Misleading Statement)", January 7, 1985.I In response to the Applicants' motion we have decided to leave our initial order in effect but to clarify it somewhat.

We hold Applicants to a very high standard concerning the complete-ness and persuasiveness of proof. Litigation of technical issues can be difficult. Simplification is feasible if a party attains mastery of the I Applicants completed their filing with a supplementary statement on this motion on November 12, 1985. See Tr. (January 9, 1985) at 3-5.

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f Reconsideration: Misrepreser/1.ation: 2 technical issues and communicates them so clearly that the outcome becomes ev,ident.

In licensing cases, applicants are expected to master the technical issues affecting their plant. Their mastery flows from:

the availability of the sophisticated technical staff needed to build a sound nuclear plant and to defend it before the Nuclear Regulatory Commission (NRC), and the seriousness of their commitment to understand their plant in sufficient depth to be able to assure themselves, the public and their stockholders of the soundness and safety of their plant.

If an applicant masters technical issues, implements its knowledge during design and construction, and describes its knowledge in detail, the case can become simple. If mastery of technical issues is not attained or if the presentation is lacking in thoroughness or clarity, then the work of the Licensing Board becomes far more difficult and the i

outcome may be clouded by doubt.

Because Comanche Peak is built under a complex regulatory scheme, an applicant also must demonstrate the use of a reasoned approach to what is required by regulations, regulatory materials (reg. guides, etc.), codes and commitments (FSAR). A full, logical description of the resolution of a safety problem must include a clear discussion of the relationship between the problem and the regulatory context.

With respect to the clear presentation of technical issues, it is instructive to consider the following argument in Applicants' motion for reconsideration, at p. 16:

The Board . . . should recognize the inherent impracticality in Applicants being held to a standard that requires it to anticipate the inquiries of others and to provide every shred of evidence that

0 Reconsideration: Misrepres2ntation: 3 others may deem important, regardless of its significance, related to a particular subject.

Contrary to the thrust of this argument, we find that anticipating the inquiries of others is important. Although "providing every shred of evidence" is not required, effective communication requires anticipation of the inquiries of others. After all, the purpose of communication is to persuade someone of the truth of an assertion. Understanding the questions they may ask is essential to communicating in a way that persuades.

In addition, one must seek to understand the inferences others are likely to draw. Inferences that are intended to be evoked should be supportable. If a favorable inference is incorrectly evoked, then our integrity as communicators is placed squarely on the line and we have an obligation to revise our language so the incorrect inference will no longer be evoked.

In licensing cases, it is necessary to set forth technical findings persuasively. The filing should describe how the problem is resolved by the approach, including a description of the problem, the legal setting in which it arises, the reasoning applied to the problem and how the approach was implemer,ted. The reader must be informed of how the problem was logically and fully resolved. If new problems were encoun-tered during implementation or if the resolution is uncertain, the problems or uncertainties should be described. Disclosure of difficul-ties encountered during resolution of the problem can add to confidence that the problem was resolved in a thoughtful way and that the

O-Reconsideration: Misrepresentation: 4 presentation to the Licensing Board is an honest description of a real world process rather than just a presentation designed to persuade.

Within this general framework, there is substantial freedom. What is not permitted is a simplification of the process that creates an appearance or gives rise to honest inferences that are different from reality.

For example, it may be acceptable to determine --for certain purposes-- what the torque on U-Bolts was in Unit 1 by testing the torque on U-Bolts in Unit 2. However, acceptance of the appropriateness of that procedure requires acceptance of a number of assumptions con-cerning why Unit 2 is " representative" of Unit 1. Furthermore, for certain limited purposes, it may be acceptable for a person to wander around in the field choosing U-Bolts the person happens upon. Necessar-ily, this will exclude certain U-Bolts from the sample (such as hard-to-reach U-Bolts or ones that happen to be in a different part of the plant than where the person started selecting U-Bolts).

Selecting a " sample" in the imprecise manner just discussed may be appropriate for some purposes. However, describing the sample thus obtained as a " representative sample" or as a " randomly selected repre-sentative sample"2 without any discussion of the way the " sample" was in fact selected is to oveisimplify and mislead.

2 Memorandum (Reopening Discovery; Misleading Statement), LBP 84-56, (1984), 20 NRC 1696 at 1697.

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Reconsideration: Misrepresentation: 5 It was appropriate for Applicants to file a motion for reconsid-eration, c,.hallenging the Board's conclusion. Then, before we acted on the motion, the Applicants stated that they were changing their legal team and examining anew their position in the case. We were hopeful that Applicants would revisit what they had written, what the Board had said and what the Applicants had replied. However, Applicants have not withdrawn their motion for reconsideration and their new affidavits fail to resolve the concerns that led us to issue our Misrepresentation order.

The problem with Applicants' brief on the Motion for Reconsidera-tion is that Applicants argue that they do not need to use a random or representative sample. This may be true. Applicants have not been required to use a random or representative sample for what they did.

The problem with Applicants' brief was that they said they had used such a sample. They voluntarily stated, without compulsion, that they had done that. This suggested to us precisely what Applicants discuss on page 10 of their Motion for Reconsideration. We thought that when Applicants used the words " samples", " representative" and " random" that the words bore their natural reference to sampling theory, which governs how samples of voters, families, airplanes, etc. would be drawn. That Applicants also would refer to that kind of sample in their Motion for ,

Reconsideration, indicates to us that the misrepresentation that oc-curred may have grown from ignorance rather than intention. Otherwise, it would make little sense to make such a direct reference to samples that follow laws other than what Applicants followed.

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Reconsideration: Misrepresentation: 6 Our knowledge of sampling theory is derived from basic principles that are broadly accepted and widely known. Randomness requires some method of - assuring the operation of chance. Random samples are not drawn by someone voluntarily choosing from the universe based on person-al choice. Sometimes random number tables are used. Sometimes struc-tured samples may be appropriate, where a known decision rule is uti-lized to assure a structured, unbiased sample. What is never done is to permit a person to draw names (or U-Bolts) from a telephone book (or a nuclear plant) by personal choice, for there is no assurance that some personal factor will not bias the sample.

We know nothing of the knowledge or bias of the people who chose the bolts for Applicants' sample. We know nothing of the psychological process governing how particular U-Bolts or areas of the plant were selected for sampling, There might, for all we know, be some knowledge, belief, habit or superstition that caused certain areas or U-Bolts to be excluded or included in such a sample. Without an objective method of choosing the sample, those biases could result in an unrepresentative sample.

So we continue to conclude that we were misled. Did it matter in this particular case? Probably not. Although Applicants' entire technique for qualifying U-Bolts is still up in the air, the impact of this error on the technique that was used appears to be marginal.

Did the statement matter? Yes. Assuredly it did. The only way the Board can trust the Applicants is if their filings communicate

Reconsideration: Misrepresentation: 7 clearly and are trustworthy.3 That requires care. Otherwise, each word or phrase.must be parsed and distrusted. We would be driven to examine closely how we might be misled if we accepted the obvious meaning of the words Applicants used. Unless Applicants' language is careful, precise and trustworthy, we would need to approach their filings'with suspicion.

We expect Applicants to be forthright about what they do, the problems that remain, the regulatory context, the areas of uncertainty.

3 As to Mr. Reedy's testimony, we note that he stated that the ASME code does not provide a formula for every situation but refers to good engineering practice or standard practice. Tr. 6915. He also said that "the whole industry . . does it the same way" (Tr.

6917) and that a " consensus of the field of engineering in the United States helps establish good engineering practice" Tr. 6920.

The implication that Mr. Reedy was apparently seeking to convey was that Comanche Peak was complying, in its methods of analysis, with methods used elsewhere.

He was then challenged by Mr. Walsh, who stated that at a previous hearing Mr. Reedy said he had not seen anywhere else a particular pipe support configuration used at Comanche Peak. To that, Mr. Reedy responded that he had now seen the type of config-uration (Tr. 6921) but that he had no knowledge of whether the particular kind of analysis suggested by Mr. Doyle would be done elsewhere in the industry. Tr. 6922. Until this point in the cross-examination, Mr. Reedy created the impression with the Board that it was not industry practice to do the kind of analysis suggested. After the question by Mr. Walsh, we concluded that Mr.

Reedy's testimony rested on general philosophical analysis but that he had no specific basis for applying that analysis to the partic-ular configuration used by NPSI at Comanche Peak.

The Board felt misled by Mr. Reedy's testimony. Upon reread-ing the pertinent transcript passages, however, it now appears that Mr. Reedy was not intentionally misleading the Board. On the other hand, the situation serves as an example of the Board's concern that testimony be adequate to specify the relationship between the arguments being made and the specific problems being addressed.

Applicants have not persuaded us to revise any of our other findings in the challenged Order.

Reconsideration: Misrepresentation: 8 By living up to that ideal, Applicants will facilitate timely Board action. If that ideal remains elusive, we will have to be suspicious and action on car part will be delayed or will be upfavorable.

Licensing cases before the NRC are not ordinary litigations. They are not games of persuasion. Facile, simplified arguments do not show an awareness of the seriousness required for building and running a safe plant. Clear, careful arguments (and admissions of error when error is pointed out or detected) inspire trust and confi6nce. In this proceed-ing, where time means money and carefulness protects lives, we urge Applicants to consider the importance of assuring that we can place trust in their filings. Careful filings are the key to the efficient conduct of this hearing from this time on.

I. Applicants' Supplementary Filing The Affidavits of Robert C. Iotti and John C. Finneran, Jr., filed on November 12, 1985, did not persuade us to reconsider our earlier order. Indeed, this new filing leaves us with some preliminary concerns that we will discuss for the purpose of informing the parties.

Although we are pleased at the candor involved in revising the i earlier summary disposition motions, the imprecise use of language in the earlier filings is apparent from a careful examination of this new filing. Furthermore, the discussion of the U-Bolt tests and analyses remains confusing. On Page 2 of the U-Bolt filing, the affidavit states:

Reconsideration: Misrepresentation: 9

[A]pplicants' program of tests and analyses assured that results of both [ emphasis added] the tests and finite element analyses . . .

may b,e applied to supports in the fieid.

Then, on Page 3, Applicants appear to use the following language to disclaim the direct applicability of the tests that were performed:

It is important to understand that Applicants' approach in utiliz-ing U-bolt tests was not a simple empirical one of performing selected tests and employing the test results directly for evaluat-ing field conditions. Rather, the tests were utilized for the purpose of deriving, then confirming, a general theoretical model .

This confusion relates to an important point. If Applicants conducted a test program, then they are required by 10 CFR Part 50, Appendix B to " include suitable qualifications testing of a prototype unit under the most adverse design conditions." Unless we accept Applicants' argument that the tests were utilized solely for the purpose of deriving, then confirming, a general theoretical model, then the tests were used for verifying the adequacy of a specific design feature and were covered by Appendix B requirements.

It is not entirely clear to what extent these tests were used to verify a design feature, bat the tests were used at least in part for that purpose. In Applicants' Motion for Summary Disposition of CASE's Allegations Regarding Cinching Down of U-Bolts (June 29, 1984), page 44 states:

[T]o unequivocally answer the Board's concern with pipe stresses and how they are influenced by cinching the U-bolt and related stresses, a mix of information derived from test and analyses is required Lemphasis addedj. . . . LTJhere are concerns which can only be answered by test. Examples of these concerns are the relaxation characteristics of the assembly under long term vibra-tion, thermal cycling, and preload. The thermal cycling, creep and i

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o Reconsideration: Misrepresentation: 10 accelerated vibration tests have provided answers to these con-cerns. No analytical tool could have done it.

To th'e extent that tests were used to verify a design feature, the tests had to cover the most adverse design conditions. However, they did not. Generally speaking, the test value for U-bolt parameters was near the middle of the range of variables for lever arm, pipe thickness, U-Bolt diameter, cross-piece width and cross-piece thickness. There was no effort made to pick adverse design conditions.4 To the extent that the tests were used to confirm "a general theoretical model," the filings are confusing as to what that model is (the model itself does not seem to have been presented), the extent to which it has been confirmed, the range of values over which it may be valid, and its precision (standard error).5 It is not clear whether the general model was applied, at the time of the initial filing, to the range of parameters present in the plant. Additionally, there is the legal question of where this " general theoretical model" is contemplated in the scheme of regulation and of the ASME Code.

4 Iotti-Finneran U-Bolt Affidavit at Attachment B (last page of filing).

5 For example, there are other conclusions on page 14 of the June 29 Iotti-Finneran affidavit that might be affected by the parameters set forth in Appendix B of the November 12 memorandum; and there are other tests, such as the friction test discussed on page 15 of that affidavit, that could be affected by those same parameters.

We note also that the finite element analyses reported by Westinghouse were analyses of the precise U-bolt assemblies that were sent to them and did not include variations in parameters (Footnote Continued)

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Reconsideration: Misrepresentation: 11 In conclusion, we do not see any reason for the supplementary filing to , influence our order concerning the scope of discovery.

II. Discovery Implications of the Misrepresentation Order Applicants have sought to withdraw the filings- by v:hich they initially implemented their Plan to respond to our order of December 1983. The Board has expressed its interest in examining the extent to which those filings represent a failure on the part of management to understand the design problems confronting the plant. Under the circum-stances, discovery about the validity of any of these motions and of Applicants' knowledge about the validity of these motions is in order.

Applicants therefore should respond promptly to the outstanding inter-rogatories related to their first Plan and its filings under that Plan.

In addition, we are not persuaded to revise any portion of our Memorandum of December 18, 1984. Consequently, the Order issued that day remains in effect. The discovery period shall run for 50 days from the issuance of this Memorandum. Discovery may of course cover the supplementary filing. Applicants answers may, where appropriate, reference appropriate sections of the supplementary filing.

Given the status of this issue, we deny CASE's motion to rike BN 85-077's conclusions about " material false statement" a separate issue (Footnote Continued) present at the plant. Comanche Peak Steam Electric Station U-Bolt Finite Element Analysis, Westinghouse Electric Corp. (June 12, 1984) at 10 (Attachment 3 to the June 29 affidavit).

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s Reconsideration: Misrepresentation: 12 in this case at this time. We have already announced our conclusions concerning this particular false statement and see no point to further proceedings about it. We will consider the implications of our finding when it can be placed in the context of the larger picture of this vast project.

III. Applicants' Motion for Clarification of August 28, 1985 This motion is now moot, in light of the Board's determination of Applicants' earlier motion for reconsideration.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 25th day of November 1985 ORDERED:

1. Texas Utilities Electric Company, et al.'s Motion for Reconsid-eration of Licensing Board's Memorandum (Reopening Discovery; Misleading Statement), January 7, 1985, is denied.
2. Applicants' Motion for Clarification of August 28, 1985, is moot.
3. The discovery period shall run for 50 days from the issuance of this Memorandum. Interrogatories previously served shall be responded

Reconsideration: Misrepresentation: 13 to promptly.

,4 . We deny CASE's motion to make BN 85-077's conclusions an issue in th.is case.

FOR THE ATOM SAFETY AND LICENSING BOARD

/

L Peter B. Bloch; Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland

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