ML20210A371
| ML20210A371 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/06/1985 |
| From: | Mizuno G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-170 OL, OL-2, NUDOCS 8511150006 | |
| Download: ML20210A371 (28) | |
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__ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION *d5 gy BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 15 7 gg,
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f' 50-446 TEXAS UTILITIES ELECTRIC j ' COMPANY, et al. and
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(Comanche Peak Steam Electric ) 50-445/2 Station, Units 1 and 2) ) 50-446/2 NRC STAFF REPLY TO APPLICANTS' PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF OCTOBER 2, 1985 Geary S. Mizuno Counsel for NRC Staff l 9-November 6, 1985 e
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~ f' In the Matter of ) Docket Nos. 50-445 50-446 TEXAS UTILITIES ELECTRIC COMPANY, _et _al. and (Comanche Peak Steam Electric ) 50-445/2 Station, Units 1 and 2) ) 50-446/2 NRC STAFF REPLY TO APPLICANTS' PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARD ORDER OF OCTOBER 2, 1985 Geary S. Mizuno Counsel for NRC Staff 4.
, November 6, 1985
TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................... ii I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. BACKGROUND . . . . . . . . . . . . . ... . . . . . . . . . . . 2 III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. APPLICANTS' OCTOBER 21, 1985 PETITION DOES NOT MEET THE STANDARDS FOR DIRECTED CERTIFICATION AND SHOULD BE DENIED. . . . . . . . . . . . . . . . . . . 8 B. THE LICENSING BOARDS' HANDLING 0F MATTERS RELATING TO MANAGEMENT ACTIVITIES DOES NOT WARRANT DISCRETIONARY REVIEW. . . . . . . , . . . . . . . . . . . 11
- 1. While Management Character and Competence Are Not Issues in This Proceeding, Matters Relatino to Applicants' Management Activities in the Design and Construction of, and Imple-mentation of a QA/QC Program for, Comanche Peak Have Been Raised by the Evidence Relating to Contention 5. . . . . . . . . . . . . . . . . . . 11
- 2. The Licensing Boards' Expression of Their Views Regarding The Potential Declaration of a Sua Sponte Issue Was Not Improper. . . . . . . . . . . . 15
- 3. The Licensing Boards Correctly Concluded that the Activities of Applicants' Past Management ,
l Are Relevant . . . . . . . . . . . . . . . . . . . . 19 IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3
- ii -
TABLE OF AUTHORITIES Page NUCLEAR REGULATORY COMMISSION PROCEEDINGS
. Commission Metropolitan Edison Co. (Three Mile Island Nuclear
. Station, Unit 1), CLI-85-9, 21 NRC 1118 (1985) . . . . . . . . 19,20 Atomic Safety and Licensing Appeal Board Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 382 (1983) . . 9,10 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105 (1982). . . . . . 10 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190) (1977) . . . . . . . . . . . . . . . . . . . . . . 9 Public Service Co. of New Hampshire (Seabrook Station, Unit:; I and 2), ALAB-271,1 NRC 478 (1975) . . . . . . . . . . 9 Virginia Electric and Power Co. (North Anna Station, Units 1 and 2), ALAB-741, 18 NRC 371, 374 (1983) . . . . . . . 9 Atomic Safety and Licensing Baard Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-16, 21 NRC 1539 (1985) . . . . . . . . . . . . . . . . . . . . . . 6 Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-32, 22 NRC 434 (1985). . . . . . . . . . . . . . . . . . . . . . . 7,15,17
22 NRC (October 2, 1985). . . . . 7. . . . . . . . . . 2,8, 16,17 Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-41, 22 NRC (October 31, 1985) . . . . . . . . . . . . . . . . 4
- iii -
Page Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), " Memorandum (Ron Jones Referral)" (unpublished memorandum) (November 1, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Texas Utilities Generating Station, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-43, 18 NRC 122 . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Texas Utilities Generating Station, et al. (Comanche Peak Steam Elec'iic Station, Units 1 and 2), LBP-83-60, 18 NRC 672 . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Texas Utilities Generating Station, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-69, 18 NRC 1084 ......................... 3 Texas Utilities Generating Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), " Order Subsequent to the Prehearing Conference of April 30, 1980" (unpublished order) (June 16, 1980). . . . . . . . . . 12 REGULATIONS 10 C.F.R. Q 2.760a ........................ 1,8,15, 16,17 10 C.F.R. Q 50.57(a) ....................... 12
4 November 6, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
, In the Matter of ) Docket Nos. 50-445
) 50-446 TEXAS UTILITIES ELECTRIC )
. COMPANY, et _al.
) and
)
(Comanche Peak Steam Electric ) 50-445/2 Station, Units 1 and 2) ) 50-446/2 NPC STAFF REPLY TO APPLICANTS' PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARDS' ORDER OF OCTOBER 2, 1985 I. INTRODUCTION On October 21, 1985, the Applicants filed " Applicants' Petition for Directed Certification of Licensing Board Order of October 2,1985"
(" Applicants' Petition"). Applicants' Petition asks the Atomic Safety and Licensing Appeal Board (" Appeal Board") to direct the Atomic Safety and Licensing Boards 1/ (" Licensing Boards") to cease consideration of management character and competence unless and until the subject has been declared to be a sua sponte issue pursuant to 10 C.F.R. 6 2.760a.
Applicants' Petition, p. 16. Applicants also ask that the Appeal Board
- instruct the Licensing Boards that any sua sponte issue on management 1/ Two Licensing Boards have been constituted for this proceeding. The first Licensing Boatd (Docket 1) was empaneled as a result of a notice in the Federal Register following the docketing of the operating license application for Comanche Peak. 44 Fed. Ry . 15815 (March 15, 1979). By request of the Docket 1 Licensing Boarc , a second Licensing Board (Docket 2) was empaneled in 1984. 49 Fed.
Reg. 13613 (April 5, 1984).
character or competence may not include inquiries as to the character and competence of " individuals no longer involved in the project nor inquiries as to the prior conduct of this litigation." 2/ ., p. 16-17.
- The NRC Staff (" Staff") agrees with many of the principles for the proper conduct of the Licensing Boards' proceedings set forth in Appli-cants' Petition. However, the Staff does not agree that Applicants have demonstrated that their Petition meet the standards for directed certification of the Licensing Boards' October 2, 1985 Order.
II. BACKGROUND In this proceeding, only Contention 5 remains to be resolved. This contention alleges:
The Applicants' failure to adhere to the quality assurance / quality control provisions required by the construction permits for Comanche Peak, Units 1 and 2 and the requirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed specifically in regard to concrete work, mortar blocks, steel, fracture toughness testing expansion joints, placement of the reactor vessel for Unit 2, welding, inspection and testing, materials used, craft (as they may affect QA/QC) and training and organization of QA/QC personnel, have raised substantial questions as to the adequacy of the construction of the facility. As a result, the Commission cannot make the findings, required by 10 C.F.R. 6 50.57(a) necessary for i issuance of an operating license for Comanche Peak.
I 2/ Applicants have defined " management character and competence" as "the ability and willingness of the people who will be responsible for operating the plant to follow Commission regulations during the life of the operating license." " Applicants' Petition for Directed Certification of the Licensing Board Order of October 2, 1985" (October 21, 1985), p. 10.
From 1982 through early 1984, a number of witnesses for Citizens Association for Sound Energy (" CASE") testified or submitted affidavits to the Docket 1 Licensing Board alleging: (1) technical deficiencies in the design or construction of various systems or components of the facility, (2) improper functioning of the QA/QC program, and (3) instances of haras-sment or intimidation by supervisors when the witness sought to report alleged deficiencies, or otherwise properly perform his/her work duties.
Applicants' rebuttal evidence was directed toward rebutting the allega-tions of technical deficiency, improper functioning of the QA/QC program, and the allegations of harassment or intimidation. The Staff's evidence was primarily related to the allegations of technical deficiencies. The Licensing Board ruled upon many of the evidentiary issues relating to construction and QA/QC program adequacy in a series of orders. 3/ During this same time period, the Board became aware through the NRC Staff, as well as through briefings by the NRC Office of Investigations ("01"),
that 0I was conducting a number of investigations into allegations of both technical deficiencies and intimidation. A number of these investiga-
-3/ Texas Utilities Generating Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-43, 18 NRC 122 (1983); Texas Utili-ties Generatin Units 1 and 2)g Co., et al. 18
, LBP-83-60, (Comanche Peak Steam NRC 672 (1983); Electric Station, Texas Utilities Generating Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-69, 18 NRC 1084 (1983).
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l tions have been completed, and some of the reports on the investigations have been provided to the Board, and to the parties in redacted form. O Early in 1984, a second Licensing Board "to preside over the proceeding on all allegations of intimidatior and harassment" was empaneled at the request of the first Licensing Board. El During 1984, a largenumberof"evidentiarydepositions"5/wereconductedinDocket2, and hearings and additional evidentiary depositions were conducted in late 1984 and early 1985 to conclude the litigation of Docket 2 issues.
However, litigation was not completed, in part because the Staff had yet to reach a final position on intimidation in Docket 2. l
-4/ See, e.g., Letter from Stuart A. Treby, Counsel for Staff, to the Docket 1 Licensing Board (March 13,1984), enclosing copies of 01 Investigation Reports 4-83-001(August 24, 1983), and 4-83-013 (November 3, 1983); Letter from Stuart A. Treby to the Docket 2 Licensing Board (April 3, 1984), enclosing copies of OI Investigation Report 4-84-006 (March 7, 1984); " Response to Board Order Directing Disclosure of 01 Reports" (October 25,1984), enclosing 4 OI reports in their entirety i.1d 19 OI reports with portions deleted.
5/ As litigation of the intimidation allegations in Docket 2 proceeded, the evidentiary matters to be resolved have increasingly involved the assessment of technical issues in Docket 1. Because of the increasing difficulty in distinguishing between the proper scope of each of the Dockets, the Staff has requested that the Licensing Boards clarify the jurisdiction and scope of each of the Dockets.
, See "NRC Staff's Response to Licensing Board Questions Raised During October 15, 1985 Conference Call" (October 25, 1985), pp. 9-11.
the Licensing Boards. Texas The Staff'sGenerating Utilities request was Co.,denied et al.by(Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-41, 22 NRC (October 31,1985).
-6/ It was agreed that the depositions would be in lieu of formal testimony in the presence of the Board, and that they would be in evidence unless objections were presented at the deposition, with the Board to rule on the objections at a more convenient time.
Tr. 13,940 et seq.
Also in 1984, the Staff organized a Technical Review Team ("TRT") to conduct an evaluation of all allegations known or subsequently submitted to the Staff regarding the Comanche Peak facility. The Staff issued a
. series of letters beginning in September 1984 summarizing the findings of
' the TRT, and from late 1984 through spring of 1985, issued Supplementary Safety Evaluation Reports ("SSERs") Nos. 7, 8, 9, 10 and 11, which present, in more detailed form, the TRT's findings and conclusions in the areas of electrical / instrumentation and test programs, civil and structural disciplines, protective coatings, the mechanical and piping disciplines, and' quality assurance ("QA") and quality control ("QC"),
respectively. The TRT SSERs are not yet in evidence; however, copies have been provided to the parties and to members of the Boards.
As a result of the Staff's TRT findings, the Applicants have established the Comanche Peak Response Team ("CPRT"). As described in the CPRT Program Plan (Revision 2, June 28, 1985), the CPRT is primarily a " third party" effort to conduct extensive evaluations and inspections of TRT-identified issues, as well as issues identified by the Licensing Board in the hearing, the Staff in various reports and inspections, and Intervenor CASE. ~The CPRT process also involves corrective actions by Applicants. See CPRT Program Plan, pp. 2-3. The CPRT Program effort is not'yet completed and is not part of the evidentiary record in the proceeding, but may serve to supersede some evidence of record and moot the importance of some issues raised in the litigation of Contention 5.
Nonetheless, as the evidentiary record of the proceeding now stands, there remain a large number of issues subsumed under Contention 5 that remain to be litigated. See "NRC Staff Response to Applicants' Statement
of Current Views and Proposed Case Management Plan" (August 2, 1985)
(" Staff Response to Applicants' Management Plan").
LitigationofissuesinboththeMainDocket(Docket 1)andthe
. Intimidation Docket (Docket 2) proceeded until early 1985, when the Licensing Boards suspended litigation in both dockets at the request of the Applicants. See Letter from Robert Wooldridge to Peter Bloch (Janu-ary 20, 1985); Letter from Robert Wooldridge to Peter Bloch (March 21, 1985), item 9.
In anticipation of the resumption of litigation on Contention 5, on April 26, 1985, Applicants filed a " Proposed Case Management Plan"
(" Applicants' Proposed Management Plan"), which outlined a proposed procedure and schedule for defining the scope of issues requiring resolution in the two CPSES dockets. After receiving the responsive filings of the Staff El and intervenor CASE, 8/ the. Boards jointly issued an order directing the Applicants to file a "further elaboration" of Applicants' Proposed Management Plan, listing five matters that Appli-cants' filing should address. Texas Utilities Electric Co., et al.
(Comanche Peak Steam Electric Station, Units 1 & 2), LBP-85-16, 21 NRC 1539(1985). On June 28, 1985, Applicants responded to the Board's request by filing " Applicants' Current Management Views and Management Plan for Resolution of All Issues" (" Applicants' Management Plan").
Z/ "NRC Staff Comments on Applicants' Proposed Case Management Plan" (May 10, 1985).
'-8/ " CASE's Answer To Applicants' 4/26/85 Proposed Case Management Plan (In Main Docket, 50-445 and 50-445) (May 13, 1985); " CASE's Proposed Management Plan (Docket 2)" (May 9, 1985).
Applicants' Management Plan argued that because of the corrective action being undertaken by the Applicants (CPRT), litigation of currently-identified issues-in-controversy should be refocused on the CPRT Program
. Plan. With regard to intimidation, Applicants argued that this subject was moot and that there was no further need for litigation in Docket 2.
Following the submission of responsive briefs by the Staff and CASE,El the Licensing Boards jointly issued an order addressing the pro-cedural and substantive issues raised by Applicants Management Plan.
Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-32, 22 NRC 434 (1985) (" Governance Order"). Although the Licensing Boards indicated that Applicants' Plan, if successfully completed, "will withstand challenges brought by CASE...",
the Boards denied Applicants' motion. In the Governance Order the Licensing Boards discussed, among other matters, questions of "independ-ence of the CPRT effort", questions about management " responsibilities" in connection with a number of matters raised in the evidence, and some matters relating to discovery and to withdrawn evidence.
Applicants filed a motion for modification of the Governance Order on Sep> ember 2, 1985. " Motion for Modification with Respect to the Board's Memorandum of August 29,1985 (Proposal for Governance of this Case)." Applicants requested that the Board modify its order to reflect
-9/ "NRC Staff Response to Applicants' Statement of Current Views and Proposed Case Management Plan" (August 2, 1985); " CASE's Initial Response to Applicants' 6/28/85 Current Management Views and Manage-ment Plan for Resolution of All Issues" (July 29, 1985) (Docket 1);
" CASE's Response to the Alleged Mootness of Docket 2 Issues and Proposed Schedule for Docket 2" (July 16, 1985) (Docket 2).
D that while the independence or relative lack thereof of the CPRT may affect the credibility and reliability of the CPRT's testimony and evidence, it does not affect the admissibility of the CPRT testimony and evidence. Id. at pp. 2-3. The Applicants also moved the Board to modify
- its order to delete all references to management competence and character, arguin1 that the subject matter was not part of Contention 5, and that it should not be raised even as a sua sponte matter by the Board. I_d. at pp. 4-10. The Board granted the Applicants' motion for modification with respect to the admissibility of the CPRT testimony, but denied those portions of Applicants' motion concerning management character and competence. Texas Utilities Electric Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP , 22 NRC (October 2, 1985) (" Modification Order"). Thereafter, the Applicants' Petition was filed with the Appeal Board.
III. DISCUSSION A. APPLICANTS' OCTOBER 21, 1985 PETITION DOES NOT MEET THE STANDARDS FOR DIRECTED CERTIFICATION AND SHOULD BE DENIED In their Petition, Applicants argue that the " basic structure of the proceeding has been affected in a pervasive and unusual manner" because the Licensing Boards have "left the appifcants in a position where they
- do not know what is or what is not to be litigated," and because the Licensing Boards are not complying with NRC regulations and Comission directives governing the exercise of the 10 C.F.R. Section 2.760a sua sponte power. Applicants' Petition, p. 8. The Staff does not regard these alleged errors as affecting the basic structure of this proceeding
in so pervasive and unusual a manner as to require Appeal Board intervention.
As Applicants concede, " interlocutory appellate review of licensing board orders is disfavored and will be undertaken as a discretionary
- matter only in the most compelling circumstances." Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3),
ALAB-742, 18 NRC 380, 383 (1983) (footnotes omitted); accord Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483-86 (1975). Directed certification is exercised "only upon a clear and convincing showing that the licensing board order under attack either (1) threatens the party adversely affected by it with serious and irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affects the basic structure of the proceeding in a pervasive or unusual manner.'" Palo Verde, 18 NRC at 383, quoting Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-405, 5 NRC 1190, 1192 (1977). Moreover, because directed certification is an extraordinary remedy requiring extraordinary circumstances, see, eg ., Palo Verde, supra; Marble Hill, supra; Public Service Co. of New Hampshire (Seabrook Stations, Units 1 and 2), ALAB-734
-- 18 NRC 11, 15 (1983), a showing that a licensing board may have committed legal error is insufficient to demonstrate that the basic structure of the proceeding has been affected in a pervasive or unusual manner.
Virginia Electric and Power Co. (North Anna Station, Units 1 and 2),
ALAB-741, 18 NRC 371, 374 (1983); Seabrook, 18 NRC at 15. Nor is the requirement satisfied by a showing that the consequence of the ruling complained of is "the litigation of issues that counsel believes should
notbetried[.]" Palo Verde, 18 NRC at 384. As the Appeal Board stated in Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15'NRC 1105, 1113 (1982), "a licensing board
. order may well be in error but, unless it is shown that the error fundamentally alters the very shape of the ongoing adjudication, appel-late review must await the issuance of a final licensing board decision."
(Emphasis added).
When considered in light of these principles, it is clear that Applicants' Petition should be denied. If Applicants' complaint is that
-the Licensing Boards are improperly pursuing management competence and character despite the wording of Contention 5 (see Applicants' Petition, pp. 6, 9-11), the Staff submits that this is simply an instance where a licensing board may require "the litigation of issues that counsel believes should not be tried." Such orders, as the Appeal Board in Palo Verde pointed out, are not appropriate for directed certification.
18 NRC at 384.
If, on the other hand, the Applicants are complaining that the Licensing Boaros have improperly informed the parties that they may possibly declare management character and competence to be a sua sponte issue or pursue the issue as part of Contention 5, the Staff does not regard the Licensing Boards' actions as improper or otherwise affecting I the basic structure of this proceeding in an unusual manner. As discussed in Section !!I.B.2 below, the Licensing Boards did not act improperly in informing the parties of the potential relevance of evidence on management activitles to existing issues-in-controversy under Conten-tion 5, and in notifying the parties that management character and l
/ -.
competence could be declared to be a sua sponte issue under certain circumstances.
In sum, the Applicants' Petition for Directed Certification should
, be denied by the Appeal Board.
B. THE LICENSING BOARDS' HANDLING 0F MATTERS RELATING TO MANAGEMENT ACTIVITIES DOES NOT WARRANT DISCRETIONARY REVIEW
- 1. While Management Character and Competence Are Not Issues in This Proceeding, Matters Relating to Applicants' Management Activities in the Design and Construction of, and Implementation of a QA/QC Program for, Comanche Peak Have Been Raised by the Evidence Relating to Contention 5 The Staff is in agreement with Applicants that Contention 5 by its terms does not encompass management competence and character such that the Board must make a specific 10 C.F.R. Section 50.57(a) finding with regard to the Applicants' character and competence to design, construct or operate the Comanche Peak facility. Not only do the words of Con-tention 5 fail to mention the words ' manage ent competence and character,"
. but in this proceeding CASE twice .+.1 -29t . s to propose new contentions regarding these subjects for litigation in this proceeding IS/andinboth instances CASE's requests were denied by the Licensing Board. 11/
b
--10/ See CASE Proposed Contention 1, in "Intervenor's Supplement to Petition for Leave to Intervene and Contentions" (May 7, 1979);
" CASE's Motion to Add a New' Contention" (September 14,1982).
~~11/ Texas Utilities Generating Co., et al. (Comanche Peak Steam Electric Station, Units 1 and 2), " Order Subsequent to the Prehearing Conference of April 30, 1980" (unpublished order) (June 16,1980);
Tr. 4451 (transcript of September 13, 1982 hearing session).
Applicants make a sharp distinction between issues relating to
" adequacy of construction" and "the ability and willingness of the people who will be responsible for operating the plant to follow Commission
- regulations during the life of the operating license." Applicants' Petition at 10. The Staff concurs with Applicants that management character and competence to operate Comanche Peak are not matters within the scope of Contention 5.
That, however, does not mean that there are no issues in this proceeding relating to management activities in connection with the design, construction and implementation of quality assurance and quality control at the Comanche Peak facility. In this proceeding, there are currently a number of evidentiary istues, aspects of which raise questions relating to: management activities in connection with asserted design defects, construction deficiencies and deficiencies in the imple-mentation of the QA/QC Program. For example, the "T-shirt incident" E
-12/ The "T-shirt incident" occurred in March 1984, when 8 QC employees c in the electrical department who wore T-shirts bearing the words,
, " Comanche Peak Nit-Pickers. We're in the business of picking nits,"
were held in an office for a morning, then directed to leave the project site. The QC inspectors were told that they could return to the worksite the next day if they did not wear the offending T-shirts. For a more complete description of this incident, see the "NRC Staff Proposed Findings of Fact on Allegations of Intimidation, Threatening and Harassment of Quality Control Inspectors and Other Quality Assurance Personnel at the Comanche Peak Steam Electric Station" (September 4, 1984) ("NRC Staff's Proposed Findings of Fact on Intimidation"), pp. 116-127.
and the events surrounding the termination of William Dunham, E l raise questions regarding whether (1) the response of management personnel was indicative of or resulted in an adverse affect on performance of elec-trical inspectors and other plant quality control personnel and (2) the
- QA/QC program was properly i;nplemented and functioning. The deficiencies in the design and document control systems identified in the evidentiary record by the NRC's Construction Appraisal Team (" CAT"), and matters raised - but not yet in evidence - by the TRT and Applicants' auditor Management Analysis Company ("MAC") raise concerns regarding the adequacy of management supervision of the actual implementation of the QA/QC program. In another area, coacerns have been raised regarding the ade-quacy of Applicants' piping and pipe support design QA program. In addressing these allegations and issues, the Applicants have offered affirmative evidence regarding the Applicants' management's " commitment to quality." El
-13/ William Dunham was a painting QC inspector who complained to his supervisors about the harassment of painting QC inspectors in his group. Subsequently, Mr. Dunham was terminated while in a counsel-ing session. For a more complete description of Mr. Dunham's
- termination, see the NRC Staff's Proposed Findings of Fact on e Intimidation, pp. 19-27.
-14/ For example, Applicants presented evidence in Docket 2 on their
! management's commitment to quality. See "NRC Staff Findings of l Facts on Allegations of Intimidation, Threatening and Harassment of Quality Control Inspectors and Other Quality Control Personnel at the Comanche Peak Steam Electric Station" (September 4, 1984),
pp. 7-18, and the " Applicants' Prehearing Proposed Findings of Fact Concerning Allegations of Harassment, Intimidation and Threats of Quality Control Inspectors at the Comanche Peak Steam Electric Station"(September 4,1984),pp.183-244.
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The Staff recognizes that Applicants intend that the CPRT comprehensively reassess and reinspect the plant, and intend that any identified deficiencies in design or construction will either be corrected or demonstrated to have no safety significance, in this manner
- Applicants intend to demonstrate that Comanche Peak is in fact properly
^
constructed. Thus, Applicants argue that past errors or disputes over construction or QA/QC practices, including questions concerning past activities of certain members of management, would no longer have a material bearing on the ultimate findings that are required of the Licensing Board. Applicants' Management Plan, pp. 29-43, 60-64. The Staff agrees that this is a preferable course of action, and that the litigation in this proceeding should be redirected to focus on the adequacy of the CPRT Program in identifying, properly evaluating and resolving all identified deficiencies or concerns with design, construction and the QA/QC Program for Comanche Peak. See Staff Response to Applicants' Management Plan, pp. 5-12. However, the CPRT Program Plan is not yet finalized, it has not yet been completed, and the results of its implementation are not yet in evidence. On the other hand, as pointed out above, the existing evidence, in many cases
. introduced by Applicants, puts in issue the activities of management personnel, many of whom were witnesses in the proceeding. The existing evidence also raises questions regarding the credibility of these witnesses. The testimony (and/or affidavits) of these witnesses has not been withdrawn nor is it yet clear how the results of the CPRT Program will affect the existing evidentiary record.
In sum, while the Staff agrees that management competence and character are not issues in this proceeding, there are a number of matters remaining to be litigated under Contention 5 which raise questions of management activities in connection with alleged design ar d 6 construction deficiencies, as well as deficiencies in the implementation of the Applicants' QA/QC Program. The Licensing Boards should not be precluded from pursuing these matters.
- 2. The Licensing Boards' Expression of Their Views Regarding The Potential Declaration of a Sua Sponte Issue Was Not Improper The Applicants essentially argue that the Licensing Boards' expression of their " tentative, preliminary and non-binding views" El regarding the circumstances under which management character and competence could be declared as a sua sponte issue transgressed the bounds of the Licensing Boards' authority to govern the conduct of the proceeding. The Staff disagrees.
Under 10 C.F.R. Q 2.760a, a licensing board has the authority to examine and decide an issue not placed in controversy by the parties if it determines that a " serious safety, environmental, or common defense and security matter exists." In this proceeding the Licensing Boards
[ have not declared management character and competence as a sua sponte
- issue, but rather, as indicated above, set forth " tentative, preliminary and non-binding" conclusions and questions on this matter. Governance M/ See Governance Order, 22 NRC at 437-39.
Order, 22 NRC at 437-39. In their Modification Order, the Licensing Boards explained their actions as follows:
With respect to sua sponte matters, our view of our responsibilities differs from that of Applicants. In particular, the timeliness factors that affect us are 1 different from those affecting intervenors.
5 Intervenors must submit new issues in a timely manner when information relevant to those matters raises their suspicions. It is not, on the other hand, appropriate for a Licensing Board to act on suspicion. We wait. We hear the presented evidence.
We declare issues sua sponte when the evidence suggests the necessity for our doing so.
Our unwillingness to act on suspicion is tempered by our awareness that in complex litigation it may be proper to discuss our views, in a preliminary and non-binding manner, in order to assist the parties in anticipating their evidentiary needs. This can avoid the extensive delay that might arise if our views came as a surprise to a party later in the litiga-tion. Hence, we prefer to put the parties on notice of our preliminary views -- providing them with a fair opportunity to assemble and present relevant evidence.
Modification Order, p. 2. The Applicants appear to read this as a statement by the Licensing Board that it is not required to declare sua sponte issues in a timely fashion (see Applicants' Petition, p. 6). The Staff does not agree with this reading. The quoted language appears to be no more than a statement that the Licensing Boards believe that the
. basis for making a 10 C.F.R. 5 2.760a finding must be higher than the basis necessary to support a new contention, and that the information available to the Licensing Boards at this time is insufficient to justify a 10 C.F.R. % 2.760a declaration.
Fairly read, the Licensing Boards' Modification Order identifies the circumstances under which evidence relevant to management activities regarding alleged deficiencies in design, construction and in the imple-
mentation of the QA/QC program, including allegations of harassment and intimidation, muy also raise sufficient question about management compe-
\
tence and character to operate the plant such that the Boards may seek to pursue a sua sponte issue on such matters.
. If Applicants are complaining that they are being prejudiced by the Licensing Boards' determination to assess the evidence on Contention 5 to see if a significant safety concern is raised such that a sua sponte issue should be declared, the Staff does not support Applicants' position.
All applicants face the possibility that information, either submitted for the record or developed outside the record and brought to the atten-tion of a licensing board, may be the impetus for the declaration of a sua sponte issue, at least until an initial decision is rendered by the licensing board. Licensing boards have the authority pursuant to 10 C.F.R. Q 2.760a to raise issues sua sponte where the Board determines that a serious safety, environmental or comon defense and security matter exists. Thus, it is not inappropriate for the Boards to decline to raise an issue sua sponte on the basis of speculation or inference but to wait for a more substantial indication that there is such a " serious" i
matter.
. The fact that these Licensing Boards chose to inform the Applicants I about the potential for declaration of a sua sponte issue does not in any manner prejudice their rights, and in fact may help the Applicants in preparation of their case, as well as in their implementation of the CPRT Program Plan. Indeed, the Applicants are not required by either the Governance Order or the Modification Order to do anything with regard to management character and competence. It is also likely, based upon
1 the Board's past practice, that Applicants will receive an opportunity, should the Licensing Board decide to declare a sua sponte issue, to contest that ruling before the Licensing Board.
The Staff agrees with Applicants that the Licensing Boards should
+ not act as " roving commission [s] to ferret out and ... punish alleged wrongdoing by the applicants in the prior conduct of this litigation."
Applicants' Petition, pp. 7, 14-16. However, the Staff does not agree with Applicants that the Licensing Boards' Governance or Modification Orders indicate such an intent. Nothing in the Boards' Governance or Modification Orders indicates that they intend to pursue " wrongdoing" for the purpose of imposing enforcement sanctions (an action which the Licensing Boards have no authority), or that they will depart from their past practice of referring matters of potential impropriety to the properCommissionofficeforfurtheraction.15/
The Staff concludes that neither Applicants nor any other party in this proceeding was prejudiced by the Licensing Boards' expression of their tentative and non-binding views on the declaration of a sua sponte question. Accordingly, there is no reason for reversal of the Licensing Boards' actions in this regard.
N Y
--16/ See, e.g., Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2) (Docket 2), " Memorandum (Ron Jones Referral)" (unpublished memorandum) (November 1, 1984).
- 3. .The Licensing Boards Correctly Concluded that the Activities of Applicants' Past Management Are Relevant Applicants contend that under Coninission case law, tho character and competence of management personnel no longer involved in the Comanche Peak project is an irrelevant consideration in determining whether the plant should operate, relying upon the Commission's 1985 decision in TMI-1 Restart proceeding. E/ Applicants' Petition, pp. 6-7, 13-14. The Staff agrees that the iseue of " management character and competence" to operate Comanche Peak El is not, as discussed in Section III.B.2 above, in this proceeding. Rather, what is properly before the Licensing Boards is the concern with past managements' activities in design, construction and implementation of the QA Program. Therefore, the Commission's decision in TMI-1 is inapposite. The TMI-1 proceeding involved the startup of the undamaged unit of the TMI facility. In the course of that proceeding, there had been an extensive discussion of past management activities of the licensee, Metropolitan Edison Company. Subseauently, GPU Nuclear replaced Metropolitan Edison as the company responsible for operating TMI-1, and had appointed:
. . . a new Chairman and a revised Board of Directors, a new President, Executive Vice President, Vice Presi-dent of TMI-1, Chairman of the General Operations Review Board, and numerous other lower-level managers, as well as [ instituting] a substantially modified
- organizational structure and operational procedures.
e
-17/ (Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
M/ See footnote 2 above.
CLI-85-9, 21 NRC at 1137. Thus, the Commission stated that the relevant issue was with "the management and company that would operate Unit I today, and with their willingness and ability to operate the plant according to the high standards that we require..." Id. E The Staff
, points out that the TMI-1 situation differs materially from that in the Comanche Peak proceeding. The Staff concludes that while past activities of management personnel no longer employed by a licensee may not be an essential element in a proceeding like the TMI-1 restart proceeding in determining whether a facility may be licensed to operate under its current management, it is incorrect to read CLI-85-9 as standing for the proposition that past management activities are irrelevant, as a matter of law, in a licensing proceeding. Rather, it is essential to address the relevance of past management activities to the issues in this proceeding. It is the Staff's position that there are several relatively specific areas where past menacement activities are relevant.
First, evidence on the past activities of Applicants' management personnel involved in current reassessment activities would have a relevant bearing on questions concerning the adequacy of remedial efforts under their supervision. Second, the past activities of management
, personnel no longer associated with Comanche Peak, but who have pre-
- viously testified on issues which remain open, could be relevant to the e
extent that it bears on the credibility of their testimony. The effect
-19/ See also TMI-1, 21 NRC at 1139: "[T]he issue before the Conrnission is not whether GPU Nuclear has made mistakes, but whether GPU Nuclear as presently constituted and staffed has the necessary integrity to provide reasonable assurance that it will safely operate TMI-1."
of the TRT and the CPRT efforts on prior testimony is, at present, unclear.
To the extent that Applicants continue to rely on this prior testimony, the past activities of these witnesses could be relevant. Except for these instances, there appears to be little value in delving into past c activities of Applicants' management personnel who are no longer asso-ciated with the Comanche Peak project.
In sum, there are aspects of the past activities of management personnel which may in certain instances have a relevant bearing on issues in this proceeding.
V. CONCLUSION The Appeal Board should deny Applicants' Petition for directed certification.
Respectfully submitted, Ge ry Mizuno Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of November, 1985
UNITED STATES OF AMERICA NUCLEAP REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD o In the Matter of ) Docket Nos. 50-445
) 50-446
- TEXAS UTILITIES ELECTRIC )
. COMPANY, et al.
) and
)
(Comanche Peak Steam Electric ) 50-445/2 Station, Units 1 and 2) ) 50-446/2 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF REPLY TO APPLICANTS' PETITION FOR DIRECTED CERTIFICATION OF LICENSING BOARDS' ORDER OF OCTOBER 2, 1985" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or deposit in the Nuclear Regulatory Commission's internal mail system (*), or by express mail or overnight delivery (**), or by hand delivery (***), this 6th day of November, 1985:
Peter B. Bloch, Esq., Chairman
- Mrs. Juanita Ellis**
Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Renea Hicks, Esq.
Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protection Division Dean, Division of Engineering P.O. Box 12548, Capital Station Architecture and Technology Austin, TX 78711 Oklahoma State University Stillwater, OK, 74078 Nicholas S. Reynolds, Esq.***
= William A. Horin, Esq.
, Elizabeth B. Johnson Bishop, Liberman, Cook, Administrative Judge Purcell & Reynolds Oak Ridge National Laboratory 1200 17th Street, N.W.
P.O. Box X, Building 3500 Washington, DC 20036 Oak Ridge, TN 37830 Billie Pirner Garde
-Dr. Walter H. Jordan Citizens Clinic Director Administrative Judge Government Accountability Project 881 W. Outer Drive 1901 Que Street, N.W.
Oak Ridge, TN 37830 Washington, DC 20009
/ __ _ .._ _ _
Herbert Grossman, Alternate Chairman
- Mr. W. G. Counsil Administrative Judge Executive Vice President Atomic Safety and Licensing Board Texas Utilities Generating Company U.S. Nuclear Regulatory Comission 400 North Olive Street, L.B. 81 Washington, DC 20555 Dallas, TX 75201 o Ellen Ginsberg, Esq.* William L. Brown, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 Washington, DC 20555 Arlington, TX 76011 Robert A. Wooldridge, Esq. Lanny Alan Sinkin Worsham, Forsythe, Samples 3022 Porter Street, N.W., #304
& Wooldridge Washington, DC 20008 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 James T. McGaughy Southern Engineering Co. of Georgia Mr. James E. Cummins 1800 Peachtree Street, N.W.
Resident Inspector / Comanche Peak Atlanta, GA 30367-8301 Steam Electric Station c/o U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board P.O. Box 38 Panel
- Glen Rose, TX 76043 U.S. Nuclear Regulatory Comission Washington, DC 20555 William H. Burchette, Esq.***
Mark D. Nozette, Esq. Atomic Safety and Licensing Appeal Heron, Burchette, Ruckert Board Panel ***
& Rothwell U.S. Nuclear Regulatory Comission Suite 700 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.
Washington, DC 20007 Docketing and Service Section*
Office of the Secretary Robert D. Martin U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission Washington, DC 20555 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Robert A. Jablon, Esq.
Spiegel & McDiarmid Anthony Z. Roisman, Esq.*** 1350 New York Avenue, N.W.
- Trial Lawyers for Public Justice Washington, DC 20005-4798 2000 P Street, N.W., Suite 611
, Washington, DC 20036 Joseph Gallo, Esq.
Isham, Lincoln & Beale Suite 840, 1120 Connecticut Avenue, N.W.
Washington, DC 2C136 Gearf 5.(_MiJz no U Counsel TUF NRC Staff
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