ML20154M530
| ML20154M530 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon, 05000000 |
| Issue date: | 01/25/1985 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20151K691 | List:
|
| References | |
| FOIA-85-409, TASK-AINV, TASK-SE ALAB-775, ALAB-775A, SECY-85-026, SECY-85-26, NUDOCS 8603140315 | |
| Download: ML20154M530 (60) | |
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ADJUDICATORY ISSUE Otation Vote)
January 25, 1985 33cy_s5-2s s
For:
The Commissioners From:
Martin G. Malsch Deputy General Counsel
Subject:
REVIEW OF ALAB-775 AND ALAB-775A (IN THE MATTER OF PACIFIC GAS AND
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ELECTRIC COMPANY) a Facility:
Diablo Canyon Nuclear Power Plant, (Unit 1 & 2) l I
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Recommendation:
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Martin G. Malsch Deputy General Counsel Attachments:
1.
ALAB-775 2.
ALAB-775A 3.
Petition.for Review 4.
PG&E Answer 5.
NFC Staff Answer Commissione~rs' comments or consent should be p'y,vided directly ro to the Office of the Secretary by c.o.b'.
Frida February 8,-
s 1985.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, February 1, 1985, with an information copy to the Office of the Secretary.
If th'e paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commission.ers OGC OPE SECY 6
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j CCCJfEJ39 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING APPEAL BOARL' 29 g,9 :p Administrative Judges:
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Thomas S. Moore, Chairman June 28, 1984
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Dr. John H. Buck (ALAB.775)
Dr. W. Reed Johnson i
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In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
) Docket Nos. 50-275 OL
)
50,323 OL (Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
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Joel R. Reynolds, John R.
Phillips and Eric Havian, Los Angeles, California, and David S. FleTschaker,
~~~~T.---
Oklahoma City, Oklahoma, for the San Luis Obispo Mothers for Peace, et al., joint intervenors.
- ~ ~ ~
__ Robert Ohlback, Philip A. Crane, Jr., Richard F. Locke.
and Dan G. Lubbock, San Francisco, California, and Arthur C. Gehr, Bruce Norton and Thomas A.- Scarduzio, Jr.
Phoenix, Arizona, for Pacific Gas and Electric Comp,any, applicant.
Joseph Rutberg, Henry J. McGurren and Lawrence J.
Chandler, for the Nuclear Regulatory Commission g
staff.
l MEMORANDUM AND ORDER y
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1.
On March 20, 1984, we issued ALAB-763 containing
~ ~our findings of fact and conclusions of law with respect to the adequacy of the applicant's current design quality assurance program and the sufficiency of its design verification efforts to establish the efficacy of the design r
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2 of the Diablo Canyon facility.1 The operating license J
proceeding had been reopened on the motion of th'a joint intervenors,2 and the trial of the issues involved consumed fifteen hearing days. In ALAB-763, we concluded that
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(t]he applicant's verification efforts provide I-
adequate confidence that the Unit 1 safety-related c'-
structures, systems and components are designed to perform satisfactorily in service and that any significant design deficiencies in that facility resulting from defects in the applicant's design quality assurance program have been remedied.
Accordingly, we conclude that there is reasonable assurance that the facility can be operated without endangering the health and safety of the public.
As a result, the license authorization 3
previously granted.
. remains in effect.
Previously in ALAB-756, issued December 19, 1983, we detailed the reasons underlying our earlier order denying, after four days of hearing, the joint intervenors' motion to reopen the record on the issue of the asserted inadequacy of the applicant's construction quality assurance program.5 In denying that motion, we found that the joint intervenors had 1 19 NRC 2 In addition, the Governor of California filed a motion to reopen the record on the issue of the adequacy of the applicant's design quality assurance program and that motion was also granted.
3 19 NRC at (slip opinion at 101).
- 18 NRC 1340.
5 See Order of Oc'tober 24, 1983 (unpublished).
i
3 failed to present new evidence of a significant safety issue.6
~ t-: ~
We now have before us two additional motions of the i
joint intervenors to reopen the record in the Diablo Canyon
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operating license proceeding.
The first, filed. February 14,
-1984, again seeks to reopen on the issue of the adequacy of
=~:
'the applicant's design quality assurance program.7 The second, filed February 22, 1984, seeks to reopen on the issues of the adequacy of the applicant's construction
-~ quality assurance program and the applicant's character.and
-- *:. competence.
Both motions are acconpanied by-the affidavits
=._ __
6 ALAB-756, supra, 18 NRC at 1354-55.
7 The joint intervenors' motion is phrased in the alternative.
They first endeavor to augment the evidentiary hearing record of the reopened design quality assurance proceeding with the materials accompanying the motion.
5 Alternatively, they seek to reopen the record for further hearing.
The joint intervenors attempt to augment the hearing record bared on a colloquy between applicant's counsel and us at the end of the evidentiary hearing
- concerning the formal closing of the record.
S e e c T.r.
D-3246.
They have misapprehended the import of.those
~~~
remarks.
Our comment was intended to accommodate, as a matter of administrative convenience, such matters as a party's belated motion to admit an exhibit that had been marked for identification at trial but, through an oversight, had not been moved into evidence.
We did not (and could not properly) provide for the wholesale augmentation of the evidentiary record now sought by the joint intervenors.
Supplementing the. record with the materials proffered by the joint intervenors would require, at a minimum, the consent of all parties.
Accordingly, the motion to augment the record is denied and we shall traat the motion solely as one to reopen the record.
4 of several individuals currently working, or previously employed, at the Diablo Canyon facility.
Theca.ffidavits and supplementary documentary exhibits fill hundreds of pages and set forth, by the joint intervenors' count, some 200 charges of purported inadequacies in the design, t'
~ construction, or quality assurance practices at the plant.-
Further, the joint intervenors supplemented each reopening motion with additional material after the motions were filed.8 The applicant and the NRC staff filed lengthy responses
=
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~ opposing both reopening motions.'
The responses contain numerous detailed affidavits and voluminous documentary materials addressing the allegations in the joint intervenors' filings.
Thereafter, the joint intervenors 8 See Joint Intervenors' Supplement To February 14, ^
1984 Motion To Augment Or, In the Alternative, To Reopen The Record (March 1, 1984); Joint Intervenors' Supplement To i
February 22, 1984 Motion To Reopen The Record On The Issues Of Construction Quality Assurance And Licensee Character And.
Competence (March 3,1984).
I See Pacific Gas And Electric Company's Answer In Opposition To Joint Intervenors' Motion To Augment Or, In i
The Alternative, To Reopen The Record (March 6, 1984); NRC Staff's Answer To Joint Intervenors' Motion To Augment Or, In The Alternative, To Reopen The Record -(March 15, 1984);
Pacific Gas And Electric Company's Answer In Opposition To Joint Intervenors' Motion To Reopen The Record On The Issue of Construction Quality Assurance And Licensee Character And Competence (March 19, 1984); NRC Staff's Answer To Joint Intervenors' Motion To Reopen The Record On Construction Quality Assurance And Licensee Character And Competence ~
(April 11, 1984).
- - - - -.. - -.,. - _... - -.. _ _. ~. - - - - - _. -. - - _ _ - -. _,
5 filed a reply to the applicant's response to the motion concerning design quality assurance,10 and then filed a 11 second supplement to that motion to which both the.--
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applicant and the staff responded.12 By order of-May.23,
' -'1984,'we provided the joint intervenors with an opportunity
- 7to reply to the applicant's and the staff's final responses, _ _ _ ::-
to both motions.13 The order stated that any reply must.be accompanied by the affidavits of qualified individitals and
- clearly establish, for the matters raised by the joint
-- intervenors' filings, why the responses of the applicant and. -
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' ' ' 'the staff are insufficient.
It also indicated that the i
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joint intervenors must demonstrate the significance to plant safety of their assertions as well as identify each
-- n remaining issue of disputed material fact with regard to i
10 See Joint Intervenors' Reply To Answer Of Pacific Gas And Electric Company To Motion To Augment _Or, In The.
[
Alternative, To Reopen The Record (March 15, 1984)..
11 j
See Joint Intervenors' Supplement To Motion To
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Augment Or, In The Alternative, To Reopen The Record.(April-6, 1984).
12 See Answer Of Pacific Gas And Electric Company To Joint Intervenors' Supplement To Motion To Pugment Or, In The Alternative, To Reopen The Record (April ?.3, 1984); NRC Staff Response To Joint Intervenors' Supplement To Motion to Augment, Or In The Alternative, To Reopen The Record (April 25, 1984).
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13 See Order of May 23, 1984 (unpublished).
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their charges.
The joint intervenors filed their reply on June 12.
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2.
Our earlier decision denying joint intervenors' motion to reopen the record on the issue of the adequacy of 5
the applicant's construction quality assurance program reiterated the three-pronged standard the proponent of a reopening motion must satisfy:
"[t]he motion must be both timely and addressed to a significant safety or environmental issue.
i Vermont Yankee Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973);
. Georgia Powar Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 409
-~
(1975).
Beyond that, it must be established that i
'a different result would have been reached initially had [the material submitted in support of the motion] been considered.'
Northern Indiana i
Public Service Co. (Bailly Generating Station (1974)."g4' Nuclear-1), ALAB-227, 2 AEC 416, 418 We previously have held that, for a reopening motion to be timely presented, the movant must show that the issue sought to be raised could not have been raised earlier.15 In ALAB-756, we highlighted what constitutes a "significant i
safety issue" for motions predicated on asserted f.
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deficiencies in a construction quality assurance program.
I We stated there that 14 ALAB-756, supra, 18 NRC at 1344.
15 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).
See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1764-65 (1982).
7 perfectio'n in plant construction and the facility quality assurance program is not a precondition for a license under either the Atomig Energy Act 1:
or the Commission's regulations.
What is required 7-instead is reasonable assurance that the plant, as.
s-l built, can and will be operated without endangering the public health and safety.
. In order for new evidence to raise a
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"significant safety issue" for purposes of 2.
reopening the record, it must establish either that uncorrected.
. errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimatedoubtastothep}gnt'scapabilityof being operated safely.
~" ~
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Although the focus of ALAB-756 was a motion to-roopen.on the issue of construction quality assurance, what we said.there.
is equally applicable to reopening motions directed to the issue of design quality assurance.
Further, the Commission has emphasized in this very proceeding that the proponent of a reopening motion must present "'significant new evidence.
. that materially
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g affects the decision,'" not " bare allegations or simple subnission of new contentions."17 At a minimum, therefore, r;
~ the new material in support of a motion to reopen must be.
set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 CFR.
- 2. 714 (b) for admissible contentions.
Such supporting i
16 ALAB-756, supra, 18 NRC at 1344 (citations omitte ).
17 CLI-81-5, 13 NRC 361, 362-63 9 81).
8 information must be more than mere allegations; it must be tantamount to evidence.
And, if such evidence'is to affect materially the previous decision (as required by the Commission), it must possess the attributes set forth in 10
' CFR 2.743 (c) defining admissible evidence for adjudicatory
~'
proceedings.
Specifically, the new evidence supporting the motion must be " relevant, material, and reliable."18 The joint intervenors' new motions to reopen on the issues of the adequacy of the applicant's design and construction quality assurance programs, like their earlier motion denied in ALAB-756, fail to meet these standards.
We h
i 18 In other words, only facts raising a significant safety issue, not conjecture or speculation, can support a reopening motion.
The facts must be relevant to the proposition they support, and probative of the safety issue presented.
General statements are of no value.
Similarly, l
although hearsay may be admissible in NRC proceedings, it-5 must be shown to be reliable if it is to be considered as j
support for the motion.
Also embodied in the reliability requirement of 10 CFR
- 2. 743 (c) is the notion that evidence presented in affidavit -
form must be given by competent individuals with knowledge of_,the facts or experts in the disciplines appropriate to the issues raised.
Because the competence (or even the existence) of unidentified individuals is impossible to determine, statements of anonymous persons -- so-called anonymous affidavits -- cannot be considered as evidence to support a motion.
For adjudicatory proceedings, in camera filings and requests for protective orders are avaIlable in l
appropriate circumstances to protect the legitimate l
interests of a party or other person.
This situation shobid l
be contrasted to the staff's responsibilities outside the adjudicatory arena where even anonymous charges receive t
attention.
The staff has, in fact, investigated a vast l
number of such allegations with respect to Diablo Canyon.
t
y have carefully examined each of the joint intervenors' 4-charges with their supporting materials and the responses of L,e
- ithe applicant and the staff.
Our scrutiny of the mo.tions j
r' leads us to conclude that the joint intervenors have failed
~ ~ ~
lito present new evidence of any significant safety issue that could have an effect on the outcome of the licensing proceeding.18 Among other things, the movants have not
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presented evidence that establishes uncorrected design or construction errors that endanger safe plant operation.
Nor have they demonstrated that there has been a breakdown of l
the applicant's quality assurance program that raises legitimate doubt that the facility can operate safely.20 II The joint intervenors' reply to the applicant and staff responses filed pursuant to our May 23, 1984 order was
[-
accompanied by numerous supporting affidavits.
Despite our instruction that the reply address why the responses of the
.. __. applicant and staff are insufficient for "each matter raised
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[or] asserted," the joint intervenors' reply "do [es]
not individually address all of.
. the matters raised."
Reply at 5.
Further, in some instances, the. reply raises
-entirely new issues.
Although joint intervenors indicate
^
that they had insufficient time to comply with our order, no e
request for an extension of time was filed. :-In any event, -
the joint intervenors concede that "few [of the noted]_-
deficiencies will be demonstrably 'significant' if considered individually."
Reply at 6.
The movants are apparently content, therefore, to rely on the cumulative significance of the numerous purported deficiencies, none of which individually has been shown to be safety significant.
20 For example, a number of the allegations focus on deficiencies in the methodology, practices, and quality..
i assurance associated with the computer design of small bore (less than 2" diameter) pipe supports.
The staff also found (Footnote Continued)
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10 Moreover, our seerching review of the motions reveals nothing that causes us to question the continuing validity of the conclusions we reached in ALAB-756 and ALAB-763 --
conclusions that followed extensive evidentiary explorations of construction and design quality assurance at Diablo.
Canyon.
For these reasons, the motion to reopen on the issue of the applicant's design quality assurance program is denied and, with the reservation noted in the footnote below, the motion to reopen on the issue of the applicant's construction quality assurance prograr 's also denied.21 (Footnote Continued) the number of errors occurring in this type of calculation to be higher than expected (NRC Staff's Answer To Joint Intervenors' Motion To Augment Or In the Alternative, To l
Reopen The Record (March 15, 1984), Knight Affidavit at 14).
A staff imposed license condition required the applicant to redo all computer-based small bore pipe support calculations
-- including additional physical effects not addressed in the original analyses.
Transcript of May 9, 1984 Meeting i
between NRC staff and applicant at 15-23, 247.
We note that the result of this program, with the reanalysis of all but t
15 of 357 supports completed, shows that all of the supports meet design criteria, and no modifications are necessary.
Letter from J. Schuyler to D. Eisenhut (June 11,1984)
(DCL-84-223), attachment at 1-5.
Thus, errors in the small bore pipe support computer calculations, though numerous, have had no effect on the design adequacy of the supports.
21 We reserve ruling on one matter raised by the joint intervenors' reopening motion on the issue of construction quality assurance until we receive further information from the applicant.
In its February 22, 1984 motion at page 12, the joint intervenors charge that the applicant improperly used, as studs for the containment liner, A307 hardwara bolts with the heads removed.
According to an affidavit accompanying the applicant's response, the use of such bolts was permissible.
Pacific Gas And Electric Company's Answer (Footnote Continued)
L
11 As previously' indicated, the number of diverse
. allegations of purported deficiencies containe,d,in the joint d;r::-.... intervenors' motions is very large.
Even discounting the
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-substantial repetition in the two motions, the affidavits.
and other documentary materials proffered as.new evidence in support of the movants' charges are extensive..22.When the -
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(Footnote Continued)
In Opposition To Joint Intervenors' Motion To Reopen The Record on The Issue of Construction Quality Assurance And 1
Licensee Character And Competence, supra note.9,
':--- ~
' Attachment C at 12-13.
As an exhibit to their-June 12, 1984 reply, the joint intervenors have attached a 1hy 31, 1984
'2----
Pullman Power Products " Interoffice Correspondence"
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N-memorandum dealing with this issue.
That memorandum is addressed to " Distribution" from "H.
Karner" and concerns
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....the. subject of " Acceptable Stud Materials For Carbon Steel
._ Welding (Ref: DR 5891). "
The memorandum states, inter alia,' - ~- - " ~ ~
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that "(A-307 bolts with the heads removed ars NOT acceptable)," und is signed by Harold W. Karner, QA/QC
- Manager, The applicant shall inform us by July 6, 1984 why, in the words of the Pullman memorandum, A-307 bolts with the heads removed are not acceptable.
The applicant's s
explanation shall be accompanied by appropriate affidavits l
of qualified experts and shall address the movants' charge, 3
4 the applicant's prior response to that charge, and the recent Pullman memorandum.
f.---
22 Not only does some of the same material accompany u
both motions, there is substantial repetition within: the supporting materials accompanying each of the joint intervenors' motions.
Additionally, the material purportedly supporting each motion is lumped together in a
{
manner that lacks essential organization.
Further, some of this material consists of anonymous statements.
See note 18, supra.
The movants have also included in their filings considerable material that is irrelevant and immaterial to many of their claims.
Thus, che unorganized nature of the supporting material, combined with the massive amount of.
irrelevant Latter in movants' filings, has made our task of (Footnote Continued)
4 12 applicant and staff responses and supporting materials are added to the joint intervenors' filings, the papers run well over a thousand pages.
Individual treatment of each of the novants' varied charges -- matters that do not readily lend themselves to being grouped together -- would consume many pages but have no practical precedential value.
Such a decision would add little of consequence to the already expansive administrative record of this proceeding.
o 3.
The joint intervenors' second reopening motion (dated February 22, 1984) also seeks to reopen the record on the issue of the applicant's " demonstrated lack of corporate character and competence.
. to manage and operate the Diablo Canyon project."23 In support of this portion of their motion, the joint intervenors recite a number of i
instances of purported applicant misconduct dating from 1967 i
to mid-1983.
They claim that these historical examples (Footnote Continued) analyzing joint intervenors' claims extremely time-consuming and difficult.
Indeed, the very nature and manner of presentation of the joint intervenors' filings pr. ovide grounds for denying the motion.
Rather than follow that course, we have painstakingly plowed through all of movants' papers.
If we have missed some pertinent fact buried in the midst of their filings, the movants should not now be heard to complains the movants failed to separate the wheat'from the chaff and to present the material in an organized and persuasive manner.
Joint Intervenors' Motion To Reopen The' Record On The Issues Of Construction Quality Assurance And Licensee Character And Competence at 1.
13 1
demonstrate the app'licant's deficient character and lack of competence to design, construct, and operate the. facility.
i L--- - - :--.To these historical examples, the joint intervenors add- -.. _
'a' lengthy list of alleged deficiencies in the applicant's
- : c r
- design and construction quality assurance programs from -- ---
t their most recent motions to reopen the record.. They argue
.that these new charges and supporting materials, combined with their previously recited historical evidence, in effect, create a pattern and practice of deficient character 1: -
and incompetence on the part of the applicant that
' constitute significant new evidence to support reopening the.-.
J-record on this issue.
The joint intervenors' motion to reopen the record on.
the issue of the applicant's character and competence is
)
denied.
The movants' historical examples of alleged applicant misconduct are not timely presented.
- Moreover, s
the movants' new list of purported deficiencies fails to present evidence of a significant safety issue that could have an effect on the outcome of the proceeding.
The past incidents of alleged applicant misconduct relied upon by the joint intervenors occurred too long ago j
to be properly considered in a motion to reopen the record without a showing why this issue could not have been raised i
earlier.
No such showing has even been attempted by the movants.
Nor can the tardy presentation of these historical examples be saved by bootstrapping them to a series of more i
k
14 recent charges.
Indeed, all of the movants' examples are matters of public record and most of them have' been used previously by the novants to support earlier reopening
+
notions on other issues, or have been used already as evidence in the Diablo Canyon operating license proceeding.24 Moreover, taken in proper context, none of these historical examples, singularly or in combination, establishes that the applicant's character and competence are insufficient to design, construct and operate the Diablo Canyon facility.
Similarly, the joint intervenors' new
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charges of quality assurance program deficiencies do not 4
establish that the applicant lacks the requisite character and competence to operate the plant.
As we have already indicated, none of the new charges raises a significant safety issue.
s l
l l
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l 24 Two of the major h.tstorical examples relied upon by the joint l'.stervenors involve claims that the applicant failed to conduct adequate geological studies resulting in an impropurly located Diablo Canyon facility, and the l
applicant's poor management practices and policies led to the alle< fed inadequate redesign of the facility.
WY note, i
however, that these items have been thoroughly aired in these proceedings.
The early geologic studies are treated in LBP-19-26, 10 NRC 453 (1979) and ALAB-644, 13 NRC 903'-
(1981).
Similarly, management's involvement in the seismic redesign of the Diablo Canyon facility following the discovery of the Hosgr.1 fault is dealt with in ALAB-763, 19 NRC __ (March 20, 1984) (slip opinion at 87-89).
t i
15 For the foregoing reasons, the joint intervenors' motions to reopen the record, with one reservation,25 are denied.
It is so ORDERED.
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FOR THE APPEAL BOARD E.N-s% -. A
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C. JQn Shoemaker Secretary to the Appeal Board s
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D' 25 See note 21, supra.
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ATTACHMENT 2 1
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' UNITED STATES OF AMERICA Ocegf0 NUCLEAR REGULATORY COMMISSION U$h' ATOMIC SAFETY AND LICENSING APPEAL' BOARD Administrative Jud'ges:
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kN(st.8,,J~1 *-
984 Thomas S. Moore, Chairman
' I' ?h; OC Dr. John H. Buck
- "*E2 Dr. W. Reed Johnson AIAD-775-A y
In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 OL
)
50-323 OL (Diablo Canyon Nucl' ear Power
)
Plant, Units 1 and 2)
)
)
ORDER On June 28, 1984, we denied, with one exception, the
~
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joint intervenors' motion to reopen the record in the Diablo Canyon operating license proceeding on the issue of,g,he adequacy of the applicant's construction quality assurance
^
program.
See ALAB-775, NRC We reserved ruling on the joint intervenors' allegations that the applicant improperly used A307 hardware belts with the heads removed as studs for the containment liner and ordered the applicant to provide us with certain additional informatien on this matter.
We have now received that information.
Having reviewed the joint intervenors' motion and supporting material, the applicant's and NRC st.aff's answers, and the applicant's most recent filing 'in response to our order, we deny the reopening Lotion with respect to this matter as well.
The joint intervenors' allegation
2 concerning the studs used for the containment liner (singularly or in combination with the other charges raised in the reopening motion) does not present new evidence of a significant safety issue that could have an effect on the outcome of the licensing proceeding.
The motion is therefore denied.
It is so ORDERED.
FOR THE APPEAL BOARD 0.[----- 54. -AD C. Q n Shoemaker Secretary to the Appeal Board t
6 e
t UNITED STATRS OF AMERICA NDCLEAR REGULATORY COMMISSION In the Matter of
)
)
PACITIC GAS AND ELECTRIC COMPANY
)
Docket No.(s) 50-2750L
)
50-3230L
-(Diablo Canyon, Units 1 and 2)
)
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)
)
)
)
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing doctment(s)
";" -,aach 7 arson designated en the official service list compiled by the Office _
upon of'the -Sacratary of the Commission in this proceeding in accordance v1th the"'
' ' requirements of Section 2.712 of 10 CFR Part 2 - Rules of Practice, of the
~ Muclear Regulatory Commission's Rules and Regulations.
Dated at' Washington, D.C. this day of WL 198k
~
9 lpaq,.W Eunutc; Office' o'f /the Secretary of the Canzission~
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY OocketNo.(s) 50-2750L -
50-3230L (Diablo Canyon, Units 1 and 2)
SERVICE LIST 4
John F. Wolf, Esq.
Pacific Gas & Electric Company 3409 Shepherd Street ATTN:
Mr. M.H. Furbush Chevy Chase, Maryland 20015 V. Pres. & General Counsel 77 Beale Street, 31st Floor Mr. Glenn O. Bright San Francisco, California 94106 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Mr. L.M. Gustafson Washington, D.C.
20555 Federal Agency Relations Pacific Gas & Electric Company i
Dr. Jerry R. Kline 105017th Street, N.W., Suite 1180 Atomic Safety and Li-ansing Board Washington, D.C.
20036 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Philip A. Crane, Jr., Esq.
Pacific Gas & Electric Company Thomas S. Moore, Esq., Chaiman 77 Beale Street, Room 3127 i
Atomic Safety and Licensing Appeal Board San Francisco, California 94106 U.S. Nuclear Regulatory Comission s
Washington, D.C.
20555 Mrs. Elizabeth Apfelberg c/o Ms. Nancy Culver Dr. W. Reed Johnson 182 Luneta Drive Atomic Safety and Licensing Appeal Board San Luis Obispo, California 93401 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Janice Kerr, Esq.
California Public Utilities Commission Dr. John H. Buck 5246 State Building Atomic Safety and Licensing Appeal Board San Francisco, California 94102 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Mrs. Raye Fleming 1920 Mattie Road Counsel for NRC Staff Shell Beach, California 9 440 1
Office of the Executive Legal Otractor U.S. Nuclear Regulatory Comission Mr. Frederick Eissler Washington, D.C.
20555 Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 I
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Board and parties - continued 50-2750L, -3230L Mrs. Sandra A. Silver Lawrence Coe Lanpher, Esq.
l 1760 Alisal Street Kirkpatrick, Lockhart, Hill, I
San Luis Obispo, California. 93401 Christopher & Phillips 1900 M Street, N.W., 8th Floor Mr. Gordon A. Silver Washington, D.C.
20036 1760 Alisal Street San Luis Obispo, California, 93401 Dian Grueneich, Esq.
California Energy Comission Joel R. Reynolds Esq.
1516 Ninth Street Center for Law in the Public Interest Sacramento, California 95814 10951 West Pico Boulevard, 3rd Floor Los Angeles, California 90064 Michael J. Strum asser. Esq.
Susan L. Durbin, Esq.
David F. Fleischaker, Esq.
3580 Wilshire 86uleyard, Suite 800 P.O. Box 1178 Los Angeles. Califor61a 90010 Oklahoma City, Oklahoma 73101 Maurice Axelrad Esq.
Arthur C. Gehr, Esq.
Newman & Holtzinger, P.C.
Snell & Wilmer 1025 Connecticut Avenue, N.W.
3100 Valley Center Center Washington, D.C.
20036 Phoenix, Arizona 85073 Harry M. Willis, Esq.
Seymour & Willis 601 California Street, Suite 2100 San Francisco, California 94108 Bruce Norton, Esq.
Norton, Burke, Berry & French, PC P.O. Box 10569 Phoenix, Arizona 85016 Mr. Carl Neiburger San Luis Obispo Telegram-Tribune P.O. Box 112 San Luis Obispo, California 93406 O
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UNITED STATES OF AMERICA NCLEARREGULATORYCOMMISSIOid.{.h,{Y BEFORE THE COMMISSION i.
d J.". 20 K1 :15 In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275~0.I,.
)
50-323 0.L.
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-775 Pursuant to 10 C.F,R. S 2.786, the SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.,
ECOLOGY ACTION CLUB, SANDRA SILVER, GORDON SILVER, ELIZABETH APFELBERG, and JOHN FORSTER (" Joint Intervenors") hereby petition the Commission to review ALAB-775, issued by the Atomic Safety and Licensing Appeal Board
(" Appeal Board") in the above-entitled
, proceeding on June 28, 1984.
In that decision (attached as an exhibit hereto), the Appeal Board denied the following motions by the Joint Intervenors in this r' oceeding:
(1)
Motion to Augment or, in the Alcornative, to Reocen the Record on the Issue of Design Quality Assurance; and (2)
Motion to Reopen the Record on the Issues of Construction Quality Assurance and Licensee Character and
' Competence.
Briefly stated, the Board concluded, without even attempting to address the specific evi'denc'e on which the motions were based,.
.,,-_~m~~
that the ' joint intervenors have failed to present new evidence of any significant safety issue that could have an effect on the outcome of the licensing proceedings."
ALAB-775,, at 9, 13.
In.so doing,, the Appeal Board has once again refused to acknowledge extensive evidence of a continuing quality assurance breakdown at Diablo Canyon, evidence documented through numerous
. sworn affidavits from plant workers and hundreds of pages of supporting documentation.
In order to remedy the Appeal Board's error -- as outline'd below -- the Joint Intervenors request the Commission to (1) grant review of ALAB-775 and (2) reverse the Appeal Board's denial of the subject motions to reopen the record.1/
I.
COMMISSION REVIEW SHOULD BE EXERCISED i
ALAB-775 is the most recent in a series of decisions by the Appeal Board in this proceeding misapplying the Commission's standards regarding the issue of quality assurance.
See also ALAB-756, ALAB-763, and Joint Intervenors' petitions for review of
\\
those decisions.
Once again, the Appeal Board has rejected' i
virtually without analysis, significant evidence of pervasive 1/
All matters of law and fact discussed herein were previously raised.
- See, e.o.,
7 A.
Motion to Augment (Design). (February 14, 1984)
(1)
March 1, 1984 Supplement (2)
March 15, 1984 Reply (3)
April 6, 1984 Supplement (4)
June 11, 1984 Reply B.
Motion to Reopen (Construction and Character and Competence) (February 22, 1984)
(1)
March 3, 1984 Supplement (2)
June 11, 1984 Reply
?
2-
programmatic quality assurance deficiencies, and it has done so simply by ignoring that evidence and adopting wholesale the contrary assurances by PGandE and the NRC Staffe,,Such.an approach makes a mockery of the well-established Vermont Yankee standards
-pr;-_
for. review of a motion to reopen, and it subverts the adjud!catory bear,ing process by substituting a standard that cannot be met even where,;as here, there is general acreement that the~ Commission's._
cuality assurance recuirements have not been. net..
i..
The Appeal Board's decision in ALAB-775 does not even purport to address the evidence submitted in support of the motions.
As such, it is erroneous with respect to important
.... qu$stions.of law and fact, and it necessitates commission review in order to preserve the Commission's own standards long enacted to protect the health and safety of the public.
II.
THE APPEAL BOARD'S DECISION IS ERRONEOUS A.
Standard of Review s
As it did in ALAB-756, the Appeal Board once again misapplied the NRC standards for review of a motion to reopen the
. record.
In Vermont Yankee Nuclear Power Corporation- (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523-525 (1973), the Appeal Board set forth the precise test to be applied to a timely motion to reopen raising a significant safety issue:
The Board must.
. consider whether one or more of the issues requires the receipt of further evidence for its resolution.
If not, there is obviously no need to reopen the record for an additional evidentiary hearing.
As is always the case, such a hearing need not be held unless there is a triable issue of fact..
I In other words, to iustify the crantino of a j
motion to reopen the movino papers must be strono enouch, in the light of any ocoosino filinos, to 4
avoid summary disposition.
Thus, even though a j
matter is timely raised and involves significant safety considerations, no reopening of the evidentiary' hearing will be required if the affidavits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, i.e.,
if the undisputed facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding.
(Footnotes omitted.) (Emphasis added.)
1tn ALAB-775, however, the Appeal Board disregarded the foregoing guidelines and simply easolved all factual issues against the Joint Intervenors and in favor of the NRC Staff and PGandE.
Both the design and construction motions were based on hundreds of allegations of deficient practices at Diablo Canyon, 4
allegations supported by sworn affidavits and, to some extent, by the NRC Staff's own investigative findings.
(See decision infra at 6-9.)
Nonetheless', without the opportunity for hearing required by Ve,rmont Yankee, the Board accepted the contrary.asser,-
l tions and analyses submitted by PGandE and the Staff in opposition to the motions and concluded that no significant new evidence had been presented by the Joint Intervenors.
In so doing, the Board erred, and, therefore, its decision in ALAB-775 must be reversed.
B.
Failure to Address Competent Evidence After setting forth the standarus apolicable to g motion to reopen the record -- notably omitting the foregoing vermont Yankee analysis -- the Board summarily concluded that the Joint Intervenors failed to meet them.
With the exception of a single,
w.
___....,_.,_.___,,____________.,_,,,_,,_m,__.__,,._,,__,_,m_,,_.
. footnote regarding small bore piping practices,2/ the Board failed to address any of the extensive evidence supporting the motions, instead asserting only that:
the novants have not presented evidence that 7-.J
establishes uncor.teted design or construction errors that endang r safe plant operation.
Nor-have they demonstrated that there has been a breakdown of the applicant's quality assur-ance program that raises legitimate doubt that the facility can operate safely.
- Moreover, our searching review of the motions reveals nothing that causes us to question the con-tinuing validity of the conclusions we reached in ALAB-756 and ALAB-763 -- conclusions that followed extensive evidentiary explorations of construction and design quality assurance at Diab 3o Canyon.
ALAB-775, at 9-10 (footnote omitted).2/
As if to excuse its failure to confront tne evidence, the Board theN noted that "the
~
papers run well over a thousand pages," and hence
[ijndividual treatment of each of the movants' varied charges -- matters that do not readily lend themselves to being grouped together --
I/
Notably, the Board purported to resolve any material factual disputes concerning the numerous small bore piping issues by citing a letter from PGandE to the NRC asserting that, despite conceded error, no modifications were necessary.
ALAB-775, at 9-10 n.20.
Not only does this ignore obvious disputes regarding the extent of the QA errors, adequacy of the review and corrective action,. appropriateness of the methodology, and generic impli-cations of the deficiencies, but it ignores also the fact now well known to the Commission that the NRC inspector principally responsible for the review -- Isa Yin -- has quit the review team because he felt the errors were so significant and the review so inadequate that to remain part of the review team would compromise his integrity.
To conclude that no factual dispute exists justifying a hearing on this significant safety issue makes a mockery of the administrative process.
I/
The adequacy of the so-called " extensive evident [ary explorations of construction and. design quality assurance at Diablo Canyon" is, in and of itself, a matter of unresolved controversy.
See Joint Intervenors' petitions for review of ALAB-756 and ALAB-763.
c would consume many pages but have no practical precedential value.
Such a decision would add little of consequence to the already expansive administrative record of this proceeding.
L Id. at 12.
The Board's f ailure to address the evidence on the record constitutes an abuse of discretion and effectively
--: precludes meaningful appellate scrutiny of its asserted " searching rev'iew" and ultimate decision.
As such, the Board has violated the fundamental requirement of administrative law that an agency must provide an explanation of its reasons in rejecting competent evidence on an issue of critical importance to safety, such as
~. _;qu a l_i,ty _ a s_s_u r anc e.
- See, e.g., In the Matter of Public Service Co.
of New Hampshire (Seabrook Station, Units 1_and 2), NLAB-422, CCH
~
.. ___.... N u c. Re g. Rp tr. 1 30,216 (1977); In the Matter of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC.ll79 n.2 (1973); see also Greater Boston Television Coro.
v.
F.C.C.,
444 F.2d 841, 851 (D.C.Cir. 1970),
cert. denied, 403 U.S. 923, 91 S.Ct. 2229 (1971); Environmental 3.
Defense Fund v. Ruckleshaus, 439 F.2d 584, 596-98 (D.C.Cir. 1971).
Accordingly, ALAB-775 must be reversed.
C.
Lack of Substantial Evidence Although the Board's failure to address the evidence renders difficult any substantial evidence analysis on appeal of its' decision, the evidence submitted by the Joint Intervenors in support of both the design and construction quality assurance motions was clearly suf ficient to meet the threshold for reopening of the record and to preclude a finding of " reasonable assurance E
that any and all serious [ design or] construction infirmities have been detected or rect'ified."
Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB,__, a t 8 -9 (1984).
As y...a result, " legitimate uncertainty remain [s]" regarding whether Diablo Canyon has been properly designed and. constructed,. and, accordingly, no license may be issued.
Id.d[
1.
Desion.
On February 14, 1984, the Joint Intervenors filed a motion to augment or reopen the record on the issue of design quality assurance.
The motion was based primarily on two affidavits of former Diablo Canyon engineer Charles Stokes and recently revealed confirmation of his allegations by the NRC Staff's own investigation and the U.S. Department of Labor.
Among the deficiencies documented were inadequate procedures, lack of document control, inadequate training of engineers, inadequate corrective action, use of questionable engineering practices to approve f ailed pipe supports, destruction of calculations showing failure of equipment, undocumented codifications, inadequate design drawings, poorly controlled field modifications, retalia '
tion against engineers who questioned poor design practices, and
~
i n
S/
Significantly, this is not a situation in which allegations are made without documentation or support.
To the contrary, each matter raised is documented through sworn affidavits from workers as well as through exhibits in support of the affidavits.
The affiants are past and present workers at Diablo Canyon whose knowledge and experience are first' hand and whose technical understanding of the requirements and deficient practices is comparable to that of PGandE and NRC technical personnel.
In addition, much of the support for the design motion comes f rom the NRC Staf f, whose principal inspector, Isa Yin, substantiated virtually all of the allegations by former Diablo Canyon engineer Charles' Stokes.
That the Board apparently concluded none of this deserved mention in ALAB-775 suggests strongly that the Ecard's decision is unsound.
an effectively uncontrolled " Quick Fix" program for making design changes in the field.'
The motion was further supplemented on March 3, 1984 at the direction of the Board to include the transcript of a meeting between Mr. Stokes and the-NRC Staff comprised of further related allegations; and on April 6,1984 to include NRC Inspector Isa Yin's draft Inspection Report confirming l
....some 47 categories of QA/QC deficiencies.
Replies incorporating reply affidavits to PGandE and NRC Staff responses were filed on l
March 15 and June 11, 1984.
l 2.
Construction.
On February 22, 1984, the Joint Intervenors filed a motion to reopen the record on the issue of co.nstruction quality assurance.
This 65-page motion was' based on l
over 1000 pages of sworn affidavits and documentation from past and present Diablo Canyon workers, alleging pervasive deficiencies in j
welding, NDE, hydrostatic testing, vendor quality assurance l
practices, painting, training, inspection acceptance criteria, l
disclosure of QA violations, corrective action procedures, recorgs, and independence of quality assurance from production.
In particular, the evidence -- including an affidavit from Pullman
~
[
Power Product's own internal auditor -- demonstrated that the wide-spread deficiencies in QA/QC practices found in 1977 by Nuclear Services Corporation ("NSC") in its audit of Pullman continue uncorrected even today.
The motion was supplemented on March 3, 1984.by further affidavits confirming this evidence and by a reply incorporating further responding affidavits on June 11, 1984.
l 3.
ALAB-775., On June 28, 1984, the Appeal Board rejected the foregoing evidence in its entirety with little more 1
-a.
l t
that a conclusory assertion that the reopening standards had not been met.
Its failurs to apply the relevant standards to the specific evidence submitted in support of the mot. ions renders its 1.-
, e,- action. arbitrary and capricious and without substantial basist i
accordingly, ALAB-775 must be reversed.
III. CONCLUSION 1--
- _y i
For the reasons stated herein, the Joint Intervenors request that this Petition for Review be granted and ALAB-775 be l
reversed.
[
l..,
Dated:
July 17, 1984 Respectfully submitted, l
l ;;,,
JOEL R. REYNOLDS, 7,SQ; ETHAN P. SCEULMAN, ESQ.
ERIC HAVIAN, ESQ.
l JOHN R. PHILLIPS, ESQ.
Center for Law in the l
Public Interest l
10951 W. Pico Boulevard
)
Los Angeles, CA 90064 f
(213)470-3000 l
DAVID S. FLEISCHAKER, ESQ.
P. O. Box 1178 Oklahoma City, OK 73101 O
-~ ~
By s
EL R.
OQS Attorneys for Joint Intervenors i
SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
ECOLOGY ACTION CLUB SANDRA SILVER l
GORDON SILVER ELIZABETH APFELBERG JOHN J. FORSTER,,
1 UNITED STATES OF AMERICA
- !.*si.s."
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
^^
'8d 'M 20 m) :15 d5dyj[Ijh.
)
In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos.50-275 0.L.
~
)
50-323 0.L.
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
)
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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of July,1984, I have served copies of the foregoing JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-775, mailing them through the U.S. mails, first s
class, postage prepaid, to the attached list.
m CHRISTINA CONCEPCION e
M u.
e
SERVICE LIST Nunzio Palladino, Chairman James Asselstine, Commissioner U.S. Nuclear _ Regulatory U.S. Nuclear Regulatory Commission Commission Wa.shington, D.C.
20555 Washington, D.C.
20555
.n.
a y
Lando.W. sech, Jr., commissioner Frederick;3ernthal, commissione!
r,-
U.S. Nuclear' Regulatory U.S. Nuclear Regulatory
,3 Commission Commission l Mashington, D.C.
20555 Washington, D.C..
20555
. Thomas Roberts, Commissioner Samuel J. Chilk,' Secretary i
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Thomas S. Moore, Chairman Dr. W. Reed Johnson
.Atamic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board
,U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. John B. Buck Docket and Service Branch Atomic Safety & Licensing Office of the Secretary Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Lawrence Chandler, Esq.
Office of the Executive Legal Director - BETH 042 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 David 8. Fleischaker, Esq.
Post Office Box 1178 oklahoma City, OK 73101 Bruce Norton, Esq.
Norton, Burke, Berry & French P.O. Box 105d9 Phoenix, A2 85016 Malcolm H. Furbush, Esq.
Vice President & General Counsel Philip A. Crane, Esq.
Pacific Gas and Electric Company Post Office Box 7442 San Francisco, CA 94120
l i
John Van de Kamp, Attorney General l
Andrea Sheridan Ordin, Chief Attorney General I
Michael J. Strunwasser, Special Counsel to the Attorney General l
Office of the Attorney General 6.-
State of California 3580 Wilshire Boulevard, suite 800 l
Los Angeles, CA 90010 Richard B. Hubbard MMB Technical Associates 1723 Hamilton Avenue Suite K l
San Jose, CA 95125 I
Virginia and Gordon Bruno Pecho Ranch Post Office Box 6289 Los Osos, CA 93402 l
Sandra and Gordon Silver 1760 Alisal Street j
San Luis Obispo, CA 93401
~
Carl Neiburger Telegram Tribune Post Office Box 112 San Luis Obispo, CA 93402 Tom Devine l
Government Accountability Project 1901 Que Street, N.W.
Washington, D.C.
20009 Eric Navian, Esq.
l Heller, Ehrman, White & McAuliffe 44 Montgomery Street., 31st Floor San Francisco, CA 94133 i
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- UNITED STATES OF AMERICA ff./.'Or,)
NUCLEAR REcuLATORY COMMISSION BEFORE THE COMMISS ON All:59
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In the Matter of
)
)
PACIFIC GAS AND ELECTRIC
)
Docket Nos. 50-275 0.L.
COMPANY
)
50-323 0.L.
i
)
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
I l
l ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO l
JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-775 i
l l
l I
l INTRODUCTION l
Pursuant to 10 CFR 2.786(b)(3), Pacific Cas and Electric Company (PGandE) files this Answer to assist the l
Commission in its deliberations regarding Joint Intervenoris' Petition for Review of ALAB-775.
i on October 24, 1983, the Appeal Board denied an earlier Motion to Roopen the Record on Construction Quality l
Assurance (CQA).
The Appeal Board's opinion ( ALAB-756) was issued December 19, 1983.
On February 14, 1984, the Joint Intervenors filed a Motion to Augment or in the Alternative, to Reopen the l
l L
i Record on Design' Quality Assurance (DQA).
At the time the motion was filed, the Appeal Board had under, consideration the Proposed Findings of Fact and Conclusions of Law of the parties in the reopened DQA Hearings, ALAB-763.
On March 20, 1984, the Appeals Board decided ALAB-763.
On April 8, 1984, the Joint Intervenors filed supplements to their Motion to Augment or Reopen on DQA.
On February 22, 1984, the Joint Intervenors filed a Motion to Augment or in the Alternative to Reopen the Record on Construction Quality Assurance and Licensee Character and competence.
On March 3, 1984, the Motion to Augment or to Reopen on CQA was supplemented by the Joint Intervenors.
On March 6, 1984, PGandE answered in opposition to the Motion to Reopen on DQA, and on March 19, 1984, PGandE answered in opposition to the Motion to Reopen on CQA and Character and Competence.
By Order dated May 23, 1984, the Appeals Board, sua spente, provided the Joint Intervenors the opp' ortunity to file a Reply to the final responses of PGandE and the staff to both Motions and supplements.
The order required that the Reply be accompanied by affidavits which clearly established significance to plant safety of each item raised by the Joint Intervenors and stated why the responses 'of PGandE and Staff were insufficient.
i.
On June 11, 1984, Joint Intervenors filed their Reply.
The Reply failed to meet the requi,rements of the Board order as it did not establish significance to plant safety of gy items raised by the multitudinous allegations proffered by Joint Intervenors.
On June 28, 1984, the Appeal Board issued its Decision (ALAB-775) denying both motions of the Joint Intervenors.
The Joint Intervenors filed a Petition for Review of the Appeal Board's Decision ALAB-775 on July 17, 1984.
II ARGUMENT 1.
The Appeal Board Acted Correctly.
The proponents of a motion to reopen the record in a licensing proceeding carry "a heavy burden."
Kansas cas and Electric Co.
(Wolf Creek Generating station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978).
Contrary to the position taken by the Joint Intervanors, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclea'r Power Station), ALAB-138, 6 AEC 520 (1973), alone, is not the
" precise test" to be applied to a motion to reopen.
The test to be applied to a motion to reopen is the tripartite test found in Wolf Creek, supra.
Metropolitan Edison Company (Three Mile Island Station, Unit No. 1) ALAB-738', 18 NRC 177, 180 (1983).
To satisfy the Wolf Creek test,
"[t]he ' motion must be both timely pre-sented and addressed to a si safety or environmental issue.gnificant Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973);
Georaia Love" JC.
(Alvin W.
Vogtle Nuclear Plan 3, Units 1 and 2), ALAB-291, 2 NRC 404, 409 (1975).
Beyond that, it must be established that 'a different result would have been reached initially had
[the material submitted in support of the motion) been considered.'
Northern Indiana Public Service Co.
erating Station, Nuclear"~1),(Bailly Cen-ALAB-227, 8 AEC 416, 418 (1974).
However, even assuming that Vemont Yankee, alone, constitutes the standard for a motion to reopen, the Joint Intervenors failed to satisfy that standard.
- First, as we have indicated earlier (see ALAB-124, RAI-73-5 at 1
364-65),
the board must consider (1) the timeliness of the motion, i.e.,
whether the issues sought to be pre-sented could have been raised at an earlier stage, such as prior to the close of the hearing;18 and C2) the significance or gravity of those Lesues.
A Board need lot grant "a motion to re-Epen which raises matters which,"~ eve n
~
taough timely presented, are Lot of "ma or significance to plant safetF'
(
-124, RAI-75-5 at 365).
By the same token, however, a matter may be of such gravity that the motion to reopen should be granted notwithstanting that it might have been presented earlier (ALAB-124, RAI-75-5 at 635, fn. 10; see also ALAB-126, RAI-73-6 at 394).
If these questions are resolved in the mW ant's favor, the Board must theri proceed to consider whether one or more of the issues requires the receipt of further evidence for its resolution.
If
- not, there is obviously no need to reopen the record for an additional evi-dentiary hearing.
As is always the 4
j t
j i
case, such a hearing need not be held l
unless there is a triable issue of fact.
l (Vermont Yankee Nuclear Power o
i l-(Vermont Nuclear Power Stat on,
I l.
ALAB-130, 6 AEC 520, 523 (1973).
i Under the y,ggggn1 M standard, Joint Intervonors are not t
entitled to prevail on their motion to reopen without a threshhold showing of the significance to plan ~t safety of l
i i
the items they raised.
Since no much showing was made, or even attempted, the motions to reopen were properly denied.
l l
l In order for new evidence to constitute a
, significant safety issue for a motion to reopen predicated
(
l on alleged deficiencies in the Licensee's quality assurance program, the evidence must establish either that uncorrected construction errors endanger safe plant operation, or that t
there has been a breakdown of the quality assurance program i
sufficient to raise legitimate doubt as to the plant's j
i capability of being operated safely.
Egg, Union Electric j
t gg.
(callaway Plant, Unit 1 ALAS-740, 18 NRC 343, 346 f
i (1983); Pacific gag g}j Electric Company (Diablo Canyon i
Units 1 and 2) ALAS-756, 18 NRC 1340, _
(1983).*
(
i If the moving party cannot establish the safety l
significance of the new evidence, there is no purpose to l
reopening the record for a further hearing.
Vermont Yankee, i
4 AEC 520, 523.
Where the evidence submitted in response to i
l a motion to reopen demonstrates that a significant safAty f
t issue does not exist or has been resolved, and the evidence remains unrebutted by the moving party, the moving party has i
i t
L 5-
+
e failed to meet the heavy burden necessary to reopen a closed record.
,ht, south Carolina Electric g4 gg gg,., g d.
, Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 16
(
NRC 1183, 1185 (1982); Vermont Yankee, 6 AEC 520, 523.
In this case, the Board gave the Joint Intervenors ample opportunity to demonstrate the safety significance of their new evidence.
ordinarily a moving party has no right to file a Reply to a Response to a Motion.
10 CFR I 2.730(c).
However, the Board permitted the Joint Inter-venors to file a Reply, provided it was accompanied by
~
, affidavits of qualified individuals that clearly establish why the detailed item by item sworn responses of PGandE and l
NRC Staff were insufficient and demonstrating the safety significance of Joint Intervenors' eissertions.
The Reply I
I filed by the Joint Intervenors failed to comply with the Board's directions.
While Joint Intervenors presented i
historical evidence of design and construction discrepancies that were resolved through the operation of the quality
- assurance program, their Reply failed to demonstrate the t
safety significance of a single deficiency.
By their own l
i admission, and as noted by the Appeal Board, "few deficiencies will be demonstrably
'significant' if considered individually."
(Joint Intervenors' Reply dated 1
June 11, 1984, at 6.)
Joint Intervenors did not even bother to point out which of the "few deficiencies (were) demonstrably significant."
t I
l t
j As a 'second and subordinate
- issue, Joint Intervenors claim that the Appeal Board failed to specify I
_. reasons for its. determination that Joint Intervenors l3.,.
affidavite failed to show required safety significance.
!.-. s.-
.gontrary to the position of the Joint Intervenors, the Board l
De*d only Particularise its reasons for its denial when it l:: ;.: :c...
is addressing a party's proposed contentions and findings 1
arising out of a hearing.
Where no hearing is required to i
be conducted the Board need not particularise its reasons, l
for example, as to the lack of safety significance for each' and every allegation raised by Joint Intervonors.: 5 U.S.C.
557(a) and (c).
I l
Even if the rule were to apply as urged by Joint -
Intervenors, there should be no requirement for the Board to make specific findings or particularize its reasons inasmuch j
as Joint Intervenors failed even to try to meet their burden,
[
under Vermont Yankee to show safety significance after Applicant and Staff filed their extensive responses to the i
motions to reopen.
Where Joint Intervenors failed to meet i
preliminary procedural requirements for commencement of a i
t process, substantive requirements should not even come into play.
Having failed to particularize their claims regarding t
safety significance, they should not be allowed to demand a l
i particularized response from the Appeal Board.
(
1 Nevertheless, even applying the rule suggested by Joint I
Intervenors, the Appeal Board satisfied its requirements.
l l
! i l
I
i L
I' t
What is required is that a Board " articulate in reasonable detail the basis for those determinations."'.Retthgrn 113333 l
~ ~
$"ggggg (Prairie Island Nuclear generating plant,
- s.4
)
Unita 1 and 2) ALAB-104, 6 AEC 179 (1973).
The Board clearly set forth its reasons for denying the motions on i
, pages 9 and 10 of its order.
As pointed out'in hblig
~
~b gg 31 M g Eaapahlre (seabrook station, Units 1 and l
2), ALAB-422, 6 WRC 33, 40:
i
[A] decision need not refer individually to every proposed finding: "it meets the requirements of the Adkninistrative Pro-cedure Act and the commission's Rules of Fractice if it sufficiently informs a r
party of the disposition of its contentions."
(citations omitted).
While contentions are not here involved, the Board clearly indicated why Joint Inte:venors failed to meet the requirements of Vermont Xgd33 The " path" of its reasoning can readily be discerned.
RW Rgg12 v. [SE, 418 F.2d 1153, s
1156 (D.C. Cir. 1969).
As a final basis for the petition for review, Joint Intervenors assert that because they clain that QA deficiencies exist or existed, a license may not be issued.
citing commonwealth Edison go. (Bryon Nuclear Power Station, Units 1 and 2), ALAB-770 -
NRC (1984).
The RXI2D case is distinguishable from the instant proceeding.
In Byron, the proceeding was remanded for a I
hearing upon the adequacy of a reinspection program which i
was initiated after significant quality assurance l
P t
deficiencies wer's found.
In this case, hearings on design quality assurance and construction quality, assurance have l
,,..already been held.
(ALAB-743 and ALAB-756, respectively)-
.....In ALAB 763, the adequacy of Applicant's verification i
l program which was established pursuant to this commission's i
I :, ;,..
e
. order was extensively reviewed.
Any " cloud" that previously i
.,,, c may have existed over the adequacy of quality assurance and l
the ability of the plant to operate without endangering i
public health and safety was removed by such hearings.
1 l.
As a final matter, Joint Intervenors claim that
,,,, he Appeals Board " disregarded" the anonymous affidavits t
which it submitted with their Reply.
That is not so.
As can be seen in the Order, the Appeal Board reviewed the l
anonymous affidavits as it did all other affidavits submitted by Joint Intervenors.
t l
CONCLUSION s
t Joint Intervenors have failed to meet the burden placed upon them by Vermont Innht.t, and its successors.
Th,ey failed to respond to even the additional op'portunity afforded them by the Board to demonstrate the safety
[
l significance of the allegations they raised.
They should i
not be heard to complain now.
To grant a motion to reopen given the record in this proceeding, would forever invite repeated attack and delay upon the administrative proce$s of I
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7-.
this comunission.
A party's day in court, once had, does not continue forever.
Respectfully submitted, ROBERT OHLBACH PHILIP A. CRANE, JR.
RICHARD F. LOCKE DAN G. LUBBOCK Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94120 (415) 781-4211 ARTHUR C. GEHR snell & Wilmer 3100 valley Bank Center Phoenix, AZ 85073 (602) 257-7288 BRUCE NORTON THOMAS A. SCARDUZIO, JR.
Norton, Burke, Berry & French, P.C.
P. O. Box 10569 Phoenix, AZ 85064 (602) 955-2446 Attorneys for Pacific Gas and Electric Company i
By
- A*3-Bruce Norton DATED:
July 27, 1984.
UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket No. 50-275
)
Docket No. 50-323' Diablo Canyon Nuclear Power Plant, )
'C ni "
Units 1 and 2
)
N 30 All:5g CERTIFICATE OF SERVICE
'.f
,a The foregoing document (s) ofPacificGasandElectrihibbkdd5y h:s (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:
Judge John F. Wolf Mrs. Sandra A. Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission fashington DC 20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O. Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board US Nuclear Regulatory Commission John Phillips, Esq.
WCshington DC 20555 Joel Reynolds, Esq.
Eric Havian Judge Jerry R. Kline Center for Law in the Public Interes
. Atomic Safety and Licensing Board 10951 W. Pico Blvd. - Suite 300 US Nuclear Regulatory Commission fos Angeles CA 90064 Washington DC 20555 David F. Fleischaker, Esq.
Mrs. Elizabeth Apfelberg P. O. Box 1178 C/o Betsy Umhoffer Oklahoma City OK 7.'
01 1493 Southwood 52n Luis Obispo CA 93401 Arthur C. Gehr, Esq.
Snell & Wilmer scnica E. Kerr, Esq.
3100 Valley Bank Center Public Utilities Commission Phoenix AZ 85073 State of California 5246 State Building Bruce Norton, Esq.
350 McAllister Street Norten, Burke, Derry & French, P.C.
SCn Francisco CA 94102 P. O. Box 10569 Phoenix AZ 85064 Mrs. Raye Fleming 1920 Mattie Road Chairman Shall Beach CA 93449 Atomic Safety and Licensing Board Panel Mr. Frederick Eissler US Nuclear Regulatory Commission SCOnic Shoreline Preservation Washington DC 20555 Conference, Inc.
4623 More Mesa Drive Scnta Barbara CA 93105
_hairman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington DC 20555 US Nuclear Regulatory Commission Washington DC' 20555 Secretary US Nuclear Regulatory Commission Judge W.
Reed Johnson W:shington DC 20555 Atomic Safety and Licensing Appeal Board Attn Docketing and Service US Nuclear Regulatory Commissior.
Section Washington DC 20555 C Lawrence J.
Chandler, Esq.
Judge John H. Buck H:nry J. McGurren Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 Ar. Richard B. Hubbard Commissioner Nunzio J. Palladino MHB Technical Associates Chairman 1723 Hamilton Avenue Suite K US Nuclear Regulatory Commission S:n Jose CA 95125 1717 H Street NW Washington DC 20555 Mr. Carl Neiberger Telecram Tribune Commissioner Frederick M. Bernthal P.,0.
Box 112 US Nuclear Regulatory Commission S n Luis Obispo CA 93402 1717 H Street NW Washington DC 20555 Michael J. Strumwasser, Esq.
Susan L. Durbin, Esq.
Commissioner Lando W.
Zech, Jr.
Pater H. Kaufman, Esq.
US Nuclear Regulatory Commission 3580 Wilshire Blvd.
Suite 800 1717 H Street NW Los Angeles CA 90010 Washington DC 20555 curice Axolrad, Esq.
Commissioner James K. Asselstine N wman & Holtzinger, P.C.
US Nuclear Regulatory Commission 1025 Connecticut Ave. NW 1717 H Street NW W2shington DC 20036 Washington DC 205F5 Commissioner Thomas M. Roberts US Nuclear Regulatory Commission 1717 H Street NW Washington DC 20555 o
Those copies delivered by courier.
N N
Date:
July 27, 1984 54*
Druce Ziorton
-R-
t 38 8
O 4
O 4
ATTACHMENT 5 4
s S
e
m UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ttlISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC C0ftPANY Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant Units 1and2) i i
NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-775 s
Lawrence J. Chandler Special Litigation Counsel August 1, 1984 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0milSSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant Units 1and2)
NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-775 I.
INTRODUCTION On July 17, 1984, Joint Intervenors filed a Petition for Review of ALAB-775, pursuant to 10 C.F.R. I 2.786.
In this Memorandum and Order, issued on June 28, 1984, the Atomic Safety and Licensing Appeal Board (Appeal Board) denied Joint Intervenors' Motion to Augment, or, in the Alternative, to Reopen the Record on the Issue of Design Quality Assurance, and their Motion to Reopen the Record on the Issues of Construction Quality Assurance and Licensee Character and Competence.
^
For reasons discussed below, the NRC staff (Staff) opposes the Petition and urges that it be denied.
II.
BACKGROUND As relevant to the subject Petition, on February 14, 1984, Joint Intervenors filed a Motion to Augment, or, in the Alternative, to Reopen the Record on the Issue of Design Quality Assurance. This motion, as...
supplemented, was foundgd principally on affidavits of Mr. Charles Stokes and Mr. John Cooper,I/ onner' project employees, and on statements made by f
J/
Joint Intervenors appear, in their Petition, to abandon reliance on Mr. Cooper's assertions.
. ~
Mr. Isa Yin, an NRC Region III inspector assigned to review certain of the voluminous allegations concerning Diablo Canyon.
See Petition, at 2 n.1 and at 7-8.
Extensive replies were filed by both the Licensee and Staff. See ALAS-775, slip op. at 4
- n. 9.U On February 22, 1984, Joint Intervenors filed a Motion to Reopen the
- Record on the Issues of Construction Quality Assurance and Licensee Character and Competence. This motion, as supplemented, wat based on a number of affidavits executed by present and former employees (some anonymous). Again, extensive replies were filed by the Licensee and Staff.M Upon censideration of the foregoing motions and replies, the Appeal Board, on June 28, 1984, issued ALAB-775. Therein, the Appeal Board concluded that, in spite of the volume of Joint Intervenors' submittals, they had failed to satisfy the standards for reopening the record and thus denied each motion.
Joint Intervenor's Petition followed.
s III. DISCUSSION Although the Comission has the ultimate discretion to review any decision of its subordinate boards, a petition for Comission revtew "will not ordinarily be granted" unless important safety, procedural, comon defense, antitrust, or public policy issues are involved.
10 C.F.R.
5 2.786(b)(4). When measured against the standards of 10 C.F.R. I 2.786, y
In ALAB-763, the Appeal Board's decision on the reopened design quality assurance ipsues, the Appeal Board expressly retained jurisdiction over this rotion. Slip opinion, March 20, 1984, at 102-103.
Petitions for Review of ALAB-763 are currently pending before the Comission.
3/
Id. As noted by the Staff, the allegations on which this motion is based are essentially identical to those filed in support of Government Accountability Project petition filed pursuant to 10 C.F.R. i 2.206. See Staf f s Answer at 2-3.
n
.. the matters asserted by Jo' int Intervenors in their Petition do not warrant the exercise of the Comission's discretion to grant the Pettition, i.e.,
important questions of fact, law, or policy are not presented.
10 C.F.R.
I2.786(b)(1).
-Asintherast,U the Joint Intervenors misconstrue both the applicable standard for reopenir.g the record and the Appeal Board's disposition of the " evidence" submitted in support of their motions to reopen.
A.
Standards for Reopening Joint Intervenors contend that, based upon the Appeal Board's decision in Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),ALAB-138,6AEC520,523-525(1973), the sole standard to be applied to a motion to reopen is whether the papers submitted are suffi-cient to withstand sumary disposition.
(Petitionat3-4).
In so casting the standard, Joint Intervenors ignore the long-recognized factors relevant to a motion to reopen set forth in Vermont Yankee, supra, and its progeny.
Those factors require consideration of (1) the timeliness of the motion, (2)thesignificanceoftheinformationonwhichthenotionisbasedin terms of the safe operation of the facility, (Id.), as well as (3) the effect of such information on the outcome of the proceeding, that is, might
. consideration of the " evidence" affect the decision below.
Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978). Only if the foregoing are resolved in the movant's y
See, Joint Intervenors' Petition for Review of ALAB-756 dated January 9,1984, pending before the Comission.
4 favor does o..e then proceed to determine whether the " evidence" submitted in support of the motion is sufficient to overcome sumary disposition, thereby presenting a triable issue. Vermont Yankee, supra, at 523.
Having concluded that Joint intervenors failed to meet the applicable threshold standards for reopening (Vermont Yankee; Wolf Creek) ALA8-775, slip op. at 8-10, it was not necessary, as Joint Intervenors imply (Petition at 3-7, 8-9), for the Appeal Board to give discrete consideration to each one:
... while it is useful from an analytical standpoint to keep separate the factors to be considered on a motion to reopen, it will not always be possible, in passing upon the motion, to give them separate consideration. The questions of whether the matter sought to be raised is significant and whether it presents a triable issue may often be intertwined, and can be so treated...
Vermont Yankee, supra, at 524.
The Appeal Board's resolution of the motions to reopen from the stand-point of the law fully comports with the Comission's traditional standards and thus raises no important question of law warranting Comission review, i
B.
Disposition of the " Evidence" Joint Intervenors complain that the Appeal Board's decision fails to address the voluminous " evidence" presended in the respective motions, instead stating merely a conclusion that Joint Intervenors failed to meet the standards for reopening.
Petition at 4-7, 8-9.
In criticizing the Appeal Board for its allegedly sumary treatment of the so.-called " evidence," Joint Intervenors have chosen to ignore both the applicable caselaw and the extensive factual infomation filed by the Licensee and Staff in rebuttal. The Appeal Board succinctly stated the former as follows:
O In ALAB-756, we highlighted what constitutes a "significant safety issue" for motions predicated on asserted deficiencies in a construction quality assurance program. We stated.that perfection in plant construction and the facility quality assurance program is not a precondition for a license' under either the Atomic Energy Act or the Commission's regulations. What is required instead is reasonable assurance that the plant, as built, can and will be operated without endangering the public health and safety....
... In order for new evidence to raise a "significant safety issue" for purposes of reopening the record, it must establish either that uncorrected...
errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to the plant's capabilityofbeingoperatedsafely....j6/
Although the focus of ALAB-756 was a motion to reopen on the issue of construction quality assurance, what we said there is equally applicable to reopening motions directed to the issue of design quality assurance.
Further, the Connission has emphasized in this very proceeding that the proponent of a reopening motion must present
"'significant new evidence... that materially affects the decision," not " bare allegations or simple submission of new contentions.,E/ At a minimum, therefore, the new material in support of a motion to reopen must be set forth with a degree of particularity in excess of the basis and specificity requirementscontainedin10C.F.R.I2.714(b)foradmissible contentions.
Such supporting information must be more than mere allegations; it must be tantamount to evidence. And, if such evidence is to affect materially the previous decision (as required by the Connission), it must possess the attributes set forth in 10 C.F.R. I 2.743Cc) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be " relevant, material, and reliable." J8/
- 16) ALAB-756, supra, 18 NRC at 1344 (citations omitted).
$ CLI-81-5, 13 NRC 361, 362-63 (1981).
_18/
In other words., only facts raising a significant safety Tssue, not conjecture or speculation, can support a reopening motion. The facts must be relevant to the proposition they support, and prcbative of the safety issue presented. General
.t*
statements are of no value. Similarly, although hearsay may be admissible in NRC proceedings, it must be shown to be reliable if it is to be considered as support for the anotion.
Also embodied in the reliability requirement of 10 C.F.R.
2.743(c) is the motion that evidence presented in affidavit form must be given by competent individuals with knowledge of the facts or experts in the disciplines appropriate to the issue raised. Becausethecompetence(oreventheexistence) of unidentified individuals is impossible to determine, statements of anonymous persons -- so-called anonpous affidavits -- cannot be considered as evidence to support a motion.
For adjudicatory proceedings, in camera filings and requests for protective orders are avaiTable in appropriate circumstances to protect the legitimate interests of a party of other person. This situation should be contrasted to the staff's responsibilities cutside the adjudicatory arena where even anonymous charges receive attention. The staff has, in fact, investigated a vast number of such allegations with respect to Diablo Canyon.
ALAS-775, slip op. 6-8.
With respect to the latter, the record developed before the Appeal Board in connection with the motions includes extensive responses submitted by both the Staff and PG&E, each supported by affidavits executed by appropriate expert individuals countering the allegations contained in the motions and supporting documents.
In essence, these replies established-s that the allegations do not raise matters of significance in terms of the safe operation of the facility or otherwise demonstrate a breakdown of the quality assurance program sufficient to raise doubt as to the plant's ability to be safely operated. Nevertheless, as a matter of discretion, the Appeal Board gave Joint Intervenors still another chance to establish their position.
In an Order issued on May 23, 1984, the Appeal Board
~
provided Joint Intervenors an opportunity to respond to the answers to their motions to further ident,1fy what matters of material fact continue to exist and the significance to plant safety of such matters.
See Order, May 23, 1984, unpublished, at 2, 4). Joint Intervenors, in their reply of June 12, 1984 chose not to substantively deal with these issues; Joint
Intervenors have not established that, either individually or collectively, the allegations submitted in support of their Motions prese'nt'a significant
___ issue in terms of the safe operation of the plant Vemont Yankee, supra.,
that might affect the earlier decision, Wolf Creek, supra.
(See ALAB-775, slip op. at 9, n. 19). To lay at the doorstep of the Appeal Board, the
- ~
obligation to then individually address each of the myriad allegations, an undertaking the Joint Intervenors themselves were unwilling and/or unable to accomplish, flies in the face of credibility; simply put, it is the Joint Intervenors who have failed to sustain the'ir burden, not the Appeal Board.
Similarly, Joint Intervenors' argument that the Appeal Board erred by failing to provide an explanation for its rejection of allegedly competent eviden:e'(Petition at 6), is unfounded.
Indeed, in its totality ALAB-775 is clear in explaining the rejection of information - in some instances, it simply was not possible.to determine whether the " evidence" was competent (see slip op, at 8 n.I8), in other instances, irrespective of whether the " evidence" may be competent, because of the form of its presentation, it was not'possible for the Appeal Board to do that which the Joint Intervenors, who had the burden, did not do, namely, establish the significanch and affect of the " evidence" (see slip op. at 8-12, in particular footnotes 19, 20,22).
Thus, contrary to Joint Intervenors' complaint, the Appeal Board properly addressed the " evidence" submitted and articulated the basis for rejecting it, consistent with Comission regulations and caselaw.
In brief, Joint Intervenors have failed to present any important,
question of fact or policy rai, sed by ALAB-775 warranting Comission review.
M
s.
IV. CONCLUSION For the foregoing reasons, Joint Intervenors' Petition' for Review of ALAB-775 fails to establish the existence of any important issue of fact, law or policy warranting Commission review and, therefore, should be denied.
Respectfully submitted,
/
>>U b>12 9'LW 4
Llwrence J. Chandler Special Litigation Counsel l
Dated at Bethesda, Maryland this 1st day of August, 1984 s
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