ML20198B865
| ML20198B865 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/04/1985 |
| From: | Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-084, CON-#485-84 NUDOCS 8511070326 | |
| Download: ML20198B865 (18) | |
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UNITED STATES OF AMERICA
$4 NUCLEAR REGULATORY COMMISSION gU s
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V In the Matter of
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445-2 COMPANY, et al.
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and 50-446-2
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(Comanche Peak Steam Electric
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Station, Units 1 and 2)
)
CASE OPPOSITION TO MOTION FOR DIRECTED CERTIFICATION I.
INTRODUCTION 1
In their petition Applicants seek the following relief (pp. 16-17):
1.
Instruct the Licensing Boards to cease permitting any consideration of management character or competence unless and until a formal sua sponte declaration has been made with respect thereto by the Board in Docket #1 (the only Board which has jurisdiction over such an issue).
2.
Instruct the Licensing Boards that in 1
It is actually difficult to determine precisely what Applicants are seeking in the Petition.
Many pages are devoted to an attack on a wide variety of rulings and reasonings of the Licensing Board Orders of August 29 and October 2 but their Petition seeks certification only of " Licensing Board Order of October 2, 1985".
Moreover the relief sought is significantly narrower than the rulings in the October 2 Order and narrower s
than the relief sought in the Applicants' September 25, 1985 5
Motion for Modification.
See page 2 of the Motion.
We assume, as we believe this Board should assume, that Applicants seek only the relief identified on pages 16-17 of their Petition.
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s the event a decision is reached to declare a sua sponte issue, such issue may not include
- inquires [ sic] as to the character and compe-tence of individuals no longer involved in the project nor inquires [ sic] as to the prior conduct of this litigation; 3.
Grant to the applicants such other and-further relief as the Appeal Board deems proper in the circumstances.
This relief should be denied since it would involve either
-an impermissible advisory opinion from this Board and/or an inappropriate ruling by'this Board on the scope of the licensing
. proceeding in the context of an unjustified interlocutory appeal.
On numerous occasions Appeal Boards have summarily
. rejected interlocutory appeals of issues related to the day to i
day management of a licensing hearing.
E.g. Arizona Public Service Company (Palo Verde, Units 2 & 3) ALAB-742, 18 NRC 380, 383 and fn.5 (1983) and cases cited there.
Tais is such a case.
In this case the allegedly improper ruling as to which EApplicants seek review is not a ruling at all but a statement of current-concerns of-the Hearing Board designed to assist Applicants in preparing their case - an approach specifically p.
4 recommended in Commonwealth Edison Company-(Byron Units 1 & 2),
19 NRC 1163, 1169 (1984).
Moreover even if the Hearing Board
.were to now decide to sua sponte make management character and competence an issue in this case (assuming the issue of management attitude is not-already in the case) that decision l
would-not affect the basic structure of the proceeding in a l-Lpervasive or unusual manner (Arizona Public Service Company (Palo Verde, Units 2& 3),. supra 18 NRC at 383) since the data which i
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t Applicants believe would be relevant to this "new issue" is clearly relevant to issues that are indisputably already in this l
proceeding.
In the decision in Arizona Public Service Company (Palo Verde, Units 2& 3), supra, the Appeal Board made clear that it would be inclined from that point forward "to reject such petitions [for interlocutory review] summarily if their lack of merit appears manifest".
Id. at 384, fn.9.
We particularly urge that course of action here.
In the instant case, as our last argument will make abundantly clear, Applicants' position is totally meritless.
However, should this Board express its reasoning on the merits of the issue it would necessarily pre-empt the development of the issue at the Hearing Board level.
Since Applicants complaint, as best as it can be discerned, is that the Hearing Board may in the future do something objectionable, there is by definition no fully developed Hearing Board position and it is therefore premature for this Board to address that issue one way or the other at this time.
For this rearon our primary argument here is based on the procedural inadequacy of the Applicants petition.
II. Argument A. The Petition Is Procedurally Defective In their first request for relief Applicants seek to prohibit the Hearing Board from " permitting any consideration of 2
management character and competence."
Petition, p.16.
A review l
2 What Applicants refer to as " character and competence" of the 3
of the Petition fails to clearly disclose at what actions this request is addressed and it appears that there are no current actions to which it could be addressed.
Long before the August 29th and October 2 Orders, the Hearing Board indicated that its opinion of present management's performance would be influenced in part by how present management responds to the conduct of past management.
On May 24, 1985 the Hearing Board stated that (Memorandum (Case Management Plan), slip op. pp.3-4):
To assist the Board in assessing the adequacy of Applicants' current management team, the Board required that by June 15, 1985, Applicants file a statement of their current view of the status of the plant, including their assessment of the adequacy of the record that Applicants have created in this case.
This view should delineate the responsibility of individual plant and company officials and executives and assess their performance and, if they are continuing with the company, whether they are competent to continue to perform their current functions.
We expect this filing to be a frank, honest assessment.
To the extent that there are important current uncertainties, Applicants should describe and explain those uncertainties.
Management's ability to understand and willingness to disclose its understanding of the plant condition and of prior management actions could powerfully influence our subse-quent decisions.
See also Memorandum (CASE Motion for Evidentiary Standard) March 12 1985, slip op. at p.2.
Applicants not only did not challenge this statement past management has been generally understood by CASE and the Hearing Board as the attitude of past management toward the finding and reporting of safety problems.
As fully articulated in Paragraph B, infra, this latter concept is a central issue to the admitted cantention in Docket 2.,
1
and directive but explicitly purported to respond to it in their Current Management Views and Management Plan for Resolution of All Issues (June 28, 1985) pp. 5-16.
Among the topics addressed there were "Responsibilty, Performance and Competence of Management" (pp. 9-12) and " Prior Management Actions" (pp.12-16)
By accepting the Board's inquiry on these matters Applicants are estopped from repudiating that acceptance, particularly where it appears that the repudiation is based on Applicants' perception that the Hearing Board has not " bought" their explanation of past management's conduct and has not ruled that Docket 2 is moot.
It would create chaos in licensing hearings if parties were free to acquiesce in board rulings that they thought would benefit them and when things did not work out as they plan repudiate those rulings and seek a new, diametrically opposed ruling.
Such attempts should be particularly unacceptable from parties like Applicants here who are represented by four very large law firms, at least three of whom have had extensive experience in NRC licensing hearings.
Nor can Applicants claim at this time that they are being compelled to respond to discovery or go to hearings on the issue of character and competence.
Applicants have recently refused to respond to discovery which they perceive is directed at character and competence of current or past management (see Applicants (1) Response to CASE's September 4, 1985 Request for Production of Documents, and-(2) Motion for Protective Order, October 9, 1985 pp. 7-11, 14-18), although its earlier objections to answering discovery implied that it would only answer questions related to character and conpetence.
See Applicants' )
Response to CASE's Motion to Compel July 3, 1985 Discovery (August 13, 1985) at p.8: "For example, applicants object to discovery which is irrelevant to the issue of competence and character of the current organization", and see also id at p.5.
To date Applicants rave not been compelled to answer any discovery related solely to management character or competence and in a recent Order (Memorandum (Status of Pending Motion)
October 29, 1985, p.6) was merely told its August 13, 1985 objections were " inapposite" and to " evaluate discovery requests, including these, with an eye toward responding rather than objecting".
Id.
Nor are any hearings scheduled or issues for hearing established in which character and competence is identified.
The only consideration currently being given to management character and competence in this proceeding (other than by Applicants)'is that the Hearing Board is obviously thinking about it.
Surely Applicants are not seeking an order directing the Hearing Board to stop thinking about management's character and competence.
Thus, as to Applicants' first request there is nothing now pending to which it could or should be addressed and this Board should not gratuitiously comment on an issue not before it.
Applicant's second request clearly seeks an advisory opinion respecting a possible future course of conduct about which even applicants' must concede they can only speculate.
Given the Appeal Board's reluctance to consider interlocutory appeals of sharply drawn real controversies as an unnecessary waste of the resources of the Board and the parties (Arizona Public Service Company, supra at 384) it surely should not waste those resources to address hypothetical questions based on asumptions of alleged future illegal conduct by the Hearing Board.
See Northern States Power (Prairie Island Units 1 & 2),
ALAB-419, 6 NRC 3, 6(1977): "We are not in the business of deciding abstract questions"; and Toledo Edison Co. (Davis-Besse) ALAB-297, 2 NRC 727, 729 (1985). The standard for interlocutory appeal in cases where a hearing board has not even entered a ruling is even more restrictive than for normal interlocutory appeals. What is required is compelling circumstances such as an emergency requiring an immediate and final determination.
(Toledo Edison Co.,
supra, 2 NRC at 729):
In short as a general rule we will not avail ourselves of our Section 2.718(i) certification authority unless and until the Licensing Board has been afforded at least a reasonable opportunity to decide itself the question sought to be certified.
An exception to that rule will be made only in the most compelling circumstances (such as the pressure of an emergency situation giving rise to a manifest need for an almost invalid determina-tion of the question).
3 No such emergency showing is or could be made here.
Applicants' second request is also a totally 3
In their motion for modification (September 25, 1985) Applicants raise some of the matters they raise here but only indirectly and with the same lack of concreteness which pervades the present Petition.
Apparently, Applicants do not perceive that the questions raised here have ever been presented to the Hearing Board since they make no reference to the Hearing Board's conclusions in its October 2 Order that all the matters which may have an impact on what Applicants call character and competence are independently relevant as part of the inquiry into the root causes of the failure of QA/QC.
See Paragraph B, infra.
inappropriate and unwarranted attack on the integrity of the Hearing Board.
Applicants assume, without any basis in this record, that if the Hearing Board raises the issue of management character and competence sua sponte, it will not follow the applicable rules.
We urge this Board to strongly admonish Applicants for making such assumptions of improper conduct by i
hearing officers of the NRC and basing motions on such improper assumptions.
Applicants' third request is a totally unfocussed catch-all to which no response is warranted or possible.
Throughout their pleading Applicants discuss why they believe the Hearing Board erred but, except to assert that the ruling affects the basic structure of the case in a pervasive and unusual manner, they offer nothing to prove that they meet this threshold test.for directed certification.
Their complaint is that a t some time in the future the Hearing Board might make current management's character and competence an issue and that they are upset by that possibility.
A Hearing Board might add any issue to a proceeding sua sponte.
Most applicants never know which issue and are all upset at that possibility.
Applicants here have been given an advanced warning of a possible sua sponte issue and should be pleased, not upset.
The issue of present management's character and competence is hardly a major issue in this case in which the plant has already been found to have massive design flaws, QA/QC failures and construction deficiencies.
Applicants wish that their current management's character and competence were their biggest problem.
It is (or would be) at most an important secondary issue in the case and -
does not affect the basic structure of the case.
For instance relatively little discovery has been addressed to questions that bear on it and no discovery where relevance depends upon it.
In short, Applicants meet none of the tests laid down for the grant of a directed certification and their Petition should be summarily denied.
B. The Objections Raised in the Petition For Directed Certification Are Meritless Applicants claim that the Hearing Board is allowing and/or directing inquiry into a whole range of matters whose relevance is only justified as bearing on the character and competence of past and present management.
This assertion is totally wrong.
The matters of inquiry are directly related, or at least reasonably likely to lead to information related, to issues already in this case unrelated to management's character
~
and competence.
Applicants assume that the conduct of past management, whose harassment, intimidation and other discouragement of QA/QC inspectors is an admitted issue in this case, is not a proper subject of inquiry merely because those managers have now left.
Like Caesar, the " evil that [these] men do lives after them" (William Shakespeare, Julius Caesar, Act III, Sc.2) and unless and until Applicants concede the complete breakdown of QA/QC CASE is entitled to continue to gather evidence of the root causes of that breakdown.
Applicants, not CASE, have characterized the inquiry into these management related root causes as " character and competence".
CASE is seeking proof of the attitude of these managers toward QA/QC to prove a generic cause of the failure and
_9_
to prove that at least some of their prior testimony was not truthful and thus to discredit all of their testimony upon which 4
Applicants still rely.
On pages 2-3 of the October 2 Order the Hearing Board reiterates the fact that in Docket 2, where the existence of a failed QA/QC program is alleged and the cause of that failure is alleged to be harassment, intimidation and otherwise discouraging QA/QC inspectors from reporting safety problems, there is a
~
continuing issue regarding the way in which past management (some of whom are still working at CPSES) exercised their 5
responsibility for the construction of the plant.
In attacking 4
Applicants cite the decision in Metropolitan Edison (TMI, Unit 1) CLI-85-9, 21 NRC 1118, 1137-39 (1985), affirmed, Three Mile Island Alert v.
NRC,-----F.2d----
(3rd Cir.,
1985), for the proposition that past management character and competence is irrelevant for deciding whether a plant should operate.
But the issue there was the character-and competence of current management.
The issue here is past management's conduct in order to assess why QA/QC failed and why CPSES was not prope ly built.
In addition the Commission explicitly found in TMI that among the factors relevant in assessing the character and competence of present management was their willingness to acknowledge the wrongdoing of their predecessors.
Id. at 1139.
See also Houston Light and Power (South Texas Units 1 & 2) ALAB-799, 21 NRC 360, 371 (1985) discussing the relevant factors to test the integrity of current management:
Specifically, the Board concluded that it was necessary to scrutinize HL&P's record of compliance with NRC regulations, its response to noncompliances, and its candor in dealing with the Commission, the Board, the staff and other parties.
We find no fault with the Board's approach.
(Footnote omitted, emphasis added.)
5 Since Applicants have not conceded that there has been a plant-wide failure of QA/QC implementation which would require a 100% reinspection of the plant, the underlying issues in Docket 2 related to the root cause of the QA/QC breakdown remain.
If, 'as CASE contends, the root cause was a generic defect in the way in j
this proposition Applicants do not explain why the evidence sought regarding the attitude of past management toward QA/QC is not relevant to issues already in this hearing and shift focus to the Hearing Board's statement that present management's assessment of past management's conduct could impact on the perception of present management's attitudes toward safety.
See fn.4 supra.
Surely Applicants could not argue that present management has no attitude about past management's conduct.
Applicants previously conceded that in searching for root causes of the QA/QC breakdown they would explore past management conduct (Applicants Current Management Views and Management Plan for Resolution of all Issues (June 28, 1985) p.12) although they now appear to be reneging on that commitment (Applicants Memorandum in Support of Motion for Modification With Respect to the Boards' Memorandum of August 29 [ sic] 1985 (Proposal for Governance of This Case) September 25, 1985, pp.5, 8.)
In any event it is a which management treated QA/QC inspectors who reported safety problems, then the effects of that generic failure would be to infect the entire QA/QC implementation and require an alternative method of proving that the plant was properly built.
It is CASE's view that nothing in Appendix B authorizes a substitute for compliance with its requirements.
Inherent in the structure of Appendix B is the premise that unless a proper QA/QC program is properly implemented during construction there is no way to establish that the plant was properly built.
This premise is well-founded given the complexity of construction of a nuclear power plant and the extent to which critical components and aspects of construction are totally inaccessible and/or buried behind or under other components of the plant.
For such totally inaccessible items there is no way to assure proper construction occurred except to rely upon the work product of the failed QA/QC program.
While this is not the time or place to argue this issue, it is an important element of CASE's position in Docket 2.
proper inquiry of current management to which they are free to make any response.
They can respond that they have categorically rejected past management attitude as a root cause of QA/QC 6
failures.
What Applicants are really attacking is the unavoidable position in which they have put themselves.
This all began with the now indisputable fact that QA/QC failed to detect a substantial number of construction activities which were not in 7
accordance with applicable procedures.
Applicants must find the root causes of these'OA/QC failures in order to be certain that all similar construction deficiencies are located 6
Applicants act as though it is automatically unacceptable for them to respond that past management's conduct is irrelevant to finding the root causes of and determining the breadth of the QA/QC failures.
This is not what the Hearing Board has required.
CASE contends that such a response would be factually and legally erroneous.
See CASE Motion for Evidentiary Standard (February 4, 1985) and CASE's Response to the Alleged Mootness of Docket 2 Issues and Proposed Schedule for Docket 2 (July 16, 1985), pp.
2-5.
7 See, SSER#11, May 1985, which states:
The pattern of failures by QA and OC personnel to detect and document' deficiencies suggests an ineffective B&R and TUGCO inspection system.
This pattern, coupled with (a) the past problems in the document control system, (b) deficiencies in the QC qualification program, (c) ineffectiveness of the quality audit and surveillance systems, (d) a rudimentary and ineffective trending and corrective action system, (e) QC problems as shown in QA/QC Category 8, AQ-50; and (f) instances of improper workmanship of hardware as found by all of the TRT groups, challenges the adequacy of the QC inspection program at CPSES on a system-wide basis.
Corrective action will require high-level management' attention and a new management emphasis on the importance of quality as a vital element of an adequate construction program. i t
and corrected.
The more generic the root cause, the more widespread the OA/QC failure and the more complete must be the reinspection and rework effort.
Unavoidably, CPSES' current management will provide a revealing insight into their character and competence by how they deal with the past QA/QC failures.
Rarely does the NRC have a concrete case study by which to test the real qualities of plant management.
If CPSES ' management attempts to ignore, cover-up or otherwise improperly respond to the facts about the past QA/QC failures, that information is properly relevant in assessing their character and competence.
Conversely if they respond properly to the past breakdown and accept a more expensive and time-consuming correction process it will be powerful evidence of proper character and competence.
Nothing can be lawfully done to extricate Applicants from 8
this dilemma of their own making.
Applicants can not find fault with the Hearing Board putting them on notice that responses to the root causes of the QA/QC breakdown will be relevant to matters of character and competence of present management and that if those responses raise sufficiently serious questions about present management's character and competence the Hearing Board may raise the character and competence issue sua sponte.
The Appeal Board in Commonwealth Edison Company (Byron),
recommended that a hearing board give advance notice of concerns 8
of course if the scope of the QA/QC failure and the root causes of it are no broader than Applicants appear to be asserting today, then there is no dilemma for them.
Current management is only conflicted if it has to choose between an honest and extremely painful assessment or a less candid but more palatable assessment.
to enable the parties to have time to respond to them and not be surprised.
Applicants would be far more disturbed if the Hearing Board did not warn them in advance that answers to legitimate issues in the proceeding could form the basis for adding new issues to the proceeding.
CONCLUSION Applicants find themselves in an extremely difficult position as a result of their failure to design or build this a
plant in compliance with applicable rules, regulations and procedures.
As the Hearing Board recently observed in a different context (Memorandum (Status of Pending Motions) October 29, 1985, slip op. p.7):
We are in the advanced stages of a complex case in which Applicants have already lost on the merits on one occasion [ design] and have attempted to withdraw their summary disposition motions on a second occasion.
This atypical situation in NRC licensing proceedings produces the atypical problems now faced by applicants - i.e.,
no easy choices.
This is a " fact of adjudicatory life" (Palo Verde, supra at 384) which Applicants cannot avoid by an improper and erroneous Petition for Directed Certification.
We urge this _. _.
Board to summarily reject the Petition because its " lack of merit I'
appears manifest".
Id. at 384, fn 9.
Respectfully submitted, 3.
Em a = > A l
ANTHONY Z.
ISMAN T--
BILLIE P.
RDE Trial Lawyers for Public Justice, P.C.
2000 P Street, N.W.,
Suite 611 Washington, D.C. 20036 (202)463-8600 Counsel for CASE l
l l
l -.
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
TEXAS UTILITIES GENERATING
)
COMPANY, et al.
)
Docket Nos. 50-445-2
)
and 50-446-2 (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE's Opposition to Motion for Directed certification have been sent to the names listed below this 4th day of November, 1985, by:
Express mail where indicated by *;
Hand-delivery where indicated by **; and First Class Mail unless i
otherwise indicated.
Administrative Judge Peter B.
Bloch U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Herbert Grossman Alternate Chairman ASLB Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Kenneth A. McCollom, Dean Division of Engineering, Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74074 i
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.. ~ _. _..
pn
--2 Dr. Walter H. Jordan L-
.881 W. Outer. Drive Oak Ridge, Tennessee 37830 Ms. Ellen Ginsberg, Law Clerk U.S. Nuclear Regulatory Commission Washington, D.C.
.20555 Robert A. Wooldridge, Esquire Worsham, Forsythe,.Sampels
& Wooldridge 2001 Bryan Tower, Suite 2500 Dallas, Texas -75201 Nicholas Reynolds, Esquire Bishop,-Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.
Washington, D.C.
.20036 Stuart Treby, Esquire Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory. Commission Washington, D.C.
20555 Docketing & Service Section Office of the Secretary
'U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Renea' Hicks, Esquire Assistant Attorney General Environmental Protection Division-Supreme Court Building Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S.
Polk Dallas,. Texas 75224 Mr. W.G. Counsil Executive Vice President
' Texas Utilities Generating Co.
Skyway Tower, 25th Floor 400 N. Olive Street Dallas, Texas 75201
r -
Mr. Roy P. Lessy, Jr.
Morgan, Lewis & Bockius 1800 M Street, N.W.
Washington, D.C.
20036 Mr. Thomas G.
Dignan, Jr.
Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Alan S.
Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. W.
Reed Johnson Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas S. Moore, Esq.
Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 N
ANTHONY J ROISMAN