ML20137J280

Answer in Opposition to Joint Intervenors 850809 Petition for Commission Review of Aslab 850711 Decision ALAB-812, Which Denied Joint Intervenors 841108 Motion to Reopen Record.Kw Cook 850821 Affidavit Encl

ML20137J280
Person / Time
Site:	Waterford
Issue date:	08/26/1985
From:	Churchill B LOUISIANA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
Shared Package
ML20137J285	List: ML20137J280 ML20137J294
References
CON-#385-361 ALAB-812, CLI-85-03, CLI-85-3, OL, NUDOCS 8508300208
Download: ML20137J280 (8)

Text

. i :%l I ts August 26, 1985 UNITED STATES OF AMERICA I0LbKETED V

NUCLEAR REGULATORY COMMISSION Before the Commission 15 Am 29 A11:45 0FFICE OF SECETA? '

00CKETING & SEPVlf i.

^ "

In the Matter of )

) Docket No. 50-382-OL' LOUISIANA POWER & LIGHT COMPANY )

)

(Waterford Steam Electric )

Station, Unit 3) )

LICENSEE'S ANSWER IN OPPOSITION TO JOINT INTERVERNORS' PETITION FOR REVIEW A license authorizing full power operation of the Wa-terford Steam Electric Station, Unit 3, was issued on March 16, 1985, pursuant to Memorandum and Order of the Commission, CLI-85-3, 21 NRC 471, March 15, 1985. On July 11, 1985, the Atomic Safety and Licensing Appeal Board issued ALAB-812, 22 NRC __, which denied, in major part, a lengthy and many-faceted motion to reopen the record in this proceeding filed by Joint Intervenors on November 8, 1984. All aspects of the motion, except one, were rejected by the Appeal Board. That aspect, involving on-going investigations by the commission's Office of Investigations (OI), was referred to the Commission for resolu-tion. ALAB-812, slip op. at 3, 72-73, 95. On August 9, 1985, Joint Intervenors filed a Petition for Review (" Petition") in which they seek Commission review of ALAB-812.A!

1/ Joint Intervenors received an extension of time to August 9 in which to file their petition. On August 16, after 8508300208 850826 PDR (Continued next page)

ADOCK 05000382 Q pop l)503

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i The sole grounds advanced by Joint Intervenors for seeking j l

review of the Appeal Board's decision are allegations that (1) the Appeal Board's referral of the OI matter to the Commission for resolution, rather than ruling on that matter itself in ALAB-812, deprived Joint Intervenors of "their right to have a hearing on and to have decided all material safety issues prior to Waterford's licensing," and (2) the Appeal Board's reliance on Licensee Louisiana Power & Light Company's " reinspection and record review efforts" is " unwarranted" because of subsequent

" equipment failures." Petition at 1-2. Joint Intervenors have alleged no error by the Appeal Board in the consideration of, and rulings on, the matters before it. Accordingly, Joint In-tervenors have raised no matters warranting Commission review of ALAB-812 pursuant to 10 C.F.R. S 2.786, and the petition should be denied.

(Continued) consulting with counsel for Joint Intervenors and counsel for the NRC staff, and no objection having been expressed, Applicant was orally granted an extension of time by the Office of the Secretary to file this response on August 26, 1985.

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I. JOINT INTERVENORS' OBJECTION TO THE APPEAL BOARD'S REFERRAL OF THE OI INVESTIGATIONS TO THE COMMISSION DOES

-NOT MEET THE COMMISSION'S STANDARDS FOR REVIEW One of the many; allegations put forth by Joint Intervenors in support of their motion involved the general observation that OI was investigating charges of alleged document falsifi-cation and harassment of QA personnel. The Appeal Board re-quested information from OI concerning the investigations, but found that its attempts to obtain such information were not ,

" fully productive." ALAB-812 at 70-71. Based on the informa-tion obtained from their attempts, together with the unusual step of reviewing OI investigative documents in the NRC re-gional offices where they were located, the Appeal Board noted that "[n]othing we have seen gives us cause for significant concern about the integrity of LP&L's management," but conclud-ed nevertheless that the Commission, which has full access to the information, would be in a better position to rule on that aspect of the motion. Id. at 71-73.

Joint Intervenors' allegation that the Appeal Board's re-ferral of the OI matter to the commission deprived them of their right to a hearing prior to the licensing of Waterford 3 is impossible to sustain. The plant had already been licensed I for full power operation in March 1985, well before the issu-ance of ALAB-812. Therefore, whether or not the Appeal Board had ruled on the OI matter in ALAB-812, and no matter how it might have ruled, the Appeal Board's treatment of that matter l l

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could not possibly be said to have deprived Joint Intervenors of a hearing prior to the issuance of the operating license.

In fact, the Appeal Board's referral of the OI matter did not deprive Joint Intervenors of hearing rights in any way whatsoever.2/ The matter is still pending; it has merely beers referred to the Commission for its determination of whether t1e matter. warrants a reopening of the record. Joint Intervenors have certainly not suggested that they will be prejudiced by having the Commission, rather than the Appeal Board, determine the matter. To the contrary, Joint Intervenors maintain that the " final. decision on (their] motion" cannot be made before the OI investigations have been completed (Petition at 6), and that the decision should be made "with complete and accurate information" (Petition at 5). That is precisely why the Appeal Board referred the matter to the Commission. ALAB-812, slip op. at 72-73.

Joint Intervenors have not really explained why they al-lege that the Appeal Board's referral of the OI matter has de-prived them of any hearing rights. They seem instead to be 2/ Joint Intervenors have already been afforded the statutory hearing they were entitled to under Section 189(a) of the Atomic Energy Act, 42 U.S.C. S 2239(a). See LBP-82-100, 16 NRC 1550 as modified, LBP-82-ll2, 16 NRC 1901 (1982)

(first partial initial decision); LBP-83-27, 17 NRC 979 (1983) (second partial initial decision). There is no support for the proposition that the Atomic Energy Act or the constitution requires any additional rights regarding motions to reopen, nor do Joint Intervenors cite any.

t using their Petition as a vehicle to quarrel with the Commis-sion's March 15, 1985 Memorandum and Order authorizing full' power operation of the plant-and to present arguments on the remaining portion of their motion to reopen which is now before the Commission. See generally Petition at 3-6. Neither of these aspects'is germane to Joint Intervenors asserted grounds for review of ALAB-812.

No reasons have been advanced by Joint Intervenors for al-leging that the referral to the Commission was erroneous.

There are no statutory, regulatory or procedural prohibitions against such a referral which, under the circumstances of this case, was an eminently reasonable and responsible course of ac-tion for_the Appeal Board to have taken. Thus, Joint Interve-nors have made no showing that ALAB-812 is " erroneous with re-spect to an important question of fact, law, or policy," the fundamental requirement for the filing of a petition for review before the Commission. 10 C.F.R. 2.786(b)(1).

II. . JOINT INTERVENORS' CONTENTION THAT THE APPEAL BOARD'S RELIANCE ON LP&L'S REINSPECTION AND RECORD REVIEW PROGRAM IS UNWARRANTED IN LIGHT OF SUBSEQUENT EVENTS IS WITHOUT MERIT Joint Intervenors also seek to challenge ALAB-812 on the grounds that subsequent events which have occurred during the power ascension phase at Waterford 3 allegedly demonstrate that the Appeal Board's reliance on Applicant's extensive

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reinspection and record review program was " unwarranted."$/

Petition at 7, 9.

The contention is groundless. New information proffered subsequent to the Appeal Board's decision cannot be used as support for a claim of error by the Appeal Board. Indeed, Joint Intervenors have alleged no error by the Appeal Board in ALAB-812 based upon its considerations of, and rulings on, the record before it.

In any event, Joint Intervenors are incorrect in alleging that subsequent events have undermined the Appeal Board's reli-ance on Licensee's reinspection and records review program.

Joint Intervenors do not even attempt to relate the subsequent events to either the subject matter of their November 8 motion or to the programs upon which the Appeal Board relied in its decision.d! Nor do they discuss the safety significance of the 3/ Joint Intervenors allege that they "had no opportunity to present this evidence to,the Appeal Board." Petition at

3. Three of the four cited events, however, were publicly reported in early May and June, prior to the issuance of ALAB-812 on July 11, 1985.

A/ In apparent recognition of the lack of a relationship be-tween the cited events and the subject matter of the Ap-peal Board's decision, Joint Intervenors have suggested, in a footnote, that their petition be construed as a mo-tion to reopen the record. Petition at 8 n.6. The Peti-tion, however, does not address either the Commission's criteria for reopening a closed record (admissible evi-dence, timely submitted, which addresses a significant safety or environmental issue and demonstrates that it would have resulted in a different result) or the require-(Continued next page)

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i subsequent events. As shown in the attached affidavit of Kenneth W. Cook (" Cook Affidavit"), the occurrences cited by-1 1 . Joint Intervenors.are of the type which would be expected to be i discovered during the Power Ascension Testing Program and  ;

ongoing plant inspections. They do not relate'to, and do not 1

i- in any way indicate a deficiency in, the reinspection or records review efforts relied upon by the Appeal Board. Cook

Affidavit at 2-7. Moreover, none of the occurrences involved

). ' the failure of a safety-related system to perform its intended I

I' safety function and none presented risk to the public health i and safety. Id. .

Section 2.786(b)(4)(ii) provides that the Commission will.

not grant a petition for review of matters of fact decided by j the Appeal Board unless they are " clearly erroneous." With no i error either alleged or indicated, and with no information 1

i. presented which is either of safety significance or suggestive j

of an incorrect ruling, Joint Intervenors' arguments based on ,

subsequent events do not warrant Commission review of ALAB-812.

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(Continued) t ments set out in 10 C.F.R. S 2.714(a)(1) for admitting late-filed contentions. See ALAB-812, slip op. at 4-5.

In any event, as shown in the attached Affidavit of 1 Kenneth W. Cook, no significant safety or environmental l issue has been presented which would warrant reopening the i record.

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.o tg III. CONCLUSION Joint Intervenors have alleged no cognizable error by the Appeal Board. They have neither alleged nor shown any errors of fact, law, or policy by the Appeal Board, let alone error involving an "important question of fact, law, or policy." Ac-cordingly, Joint Intervenors' petition for Commission review of ALAB-812 should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE I

By if WM. Churchfil, P.C.

Alan D. Wasserman Counsel for Louisiana Power &

Light Company -

1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: August 26, 1985