ML20211D023

NRC Staff Response to Case Motion to Compel.* Denial of Motion Recommended Due to Lack of Merit of Requests

ML20211D023
Person / Time
Site:	Comanche Peak
Issue date:	02/17/1987
From:	Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20211D026	List: ML20211D023 ML20211D059
References
CON-#187-2536 OL, NUDOCS 8702200303
Download: ML20211D023 (9)

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February 17, 1987 i I

'87 FEB 19 R2 3 2 UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION I BEFORE THE ATOMIC SAFETY AND LICENSING BOA I r q, "

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In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445 o L COMPANY, et al. ) 50-446

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(Comanche Peak Steam Electric )

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Station, Units 1 and 2) )

URC STAFF RESPONSE TO CASE MOTION TO COMPEL I. INTRODUCTION On January 21, 1987 CASE filed a " Motion to Compel NRC Staff to Supplement Responses to Question 1 of CASE's 2/10/82 First Set of Inter-rogatories and Requests to Produce to NRC Staff" (Motion). In its Motion CASE asks the Licensing Board to request the NRC Office of Investi-gations (OI) to make a determination as to whether certain enumerated actions by Staff witnesses constitute " material false statements". Motion at 10-11. CASE also asks the Board to order the Staff to provide CASE with "all trend analyses (by whatever name) similar to those discussed in INRC Office of Inspector and Auditor Report], along with all internal memoranda , handwritten notes. . .and any other relevant documents re-garding such trend analyses. . . ." Id. at 11. Finally, CASE moves that the Staff be required to " respond anew" to Interrogatory 1(a) through (d) of CASE's First Set of Interrogatories and Requests to Produce of February 10, 1982. Id. at 12.

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Pecause these CASE's requests are without merit, the Staff urges the I.icensing Board to deny CASE's Motion.1 II. BACKGROUND In Board Notification 86-24 (December 11, 1986), the Board and parties were advised of the issuance of a report by the NRC Office of Inspector and Auditer (OIA) regarding allegations of misconduct by Pcgion IV management with respect to CPSES. A redacted version of OIA Report 86-10 vras attached to the board nctification. EI One of the matters discussed in the OIA Report was an allegation that a Region IV manager deleted a " trend analysis" from NRC Inspection Report 85-07/05, contrary to the wishes of the NRC inspector who wrote the inspection report and " trend analysis".

Previously, " trend analyses" and " trend reports" were sought by CASE in a 1983 discovery request to the Staff which requested " audits to detect trende that may be detrimental to safe station operation at CPSES."

CASE's First Eet of Interrogatories and Requests to Produce to the NRC Staff (February 10, 1062) (First Set of Interrogatories). Discovery was completed when internal trend reports for calender years 1976-1970 were provided to CASE.

1/ On February 9, 1987, CASE expressed no objection to an extension of time to February 17, 1987 for filing of the Staff's response to CASE's 5!otion.

~2/ The Commission is currently determining whether to release addi-tional contents of the OIA Report, as well as the attachments to that report.

III. DISCUSSION a A. Material Falen Statements CASE first asks that the Board request OI to look into whether the Staff was responsible for four " material false statements." Motion at 11.

The Board should reject CASE's suggestion, since CASE prPPents no information suggesting that the Staff provided false or withheld information, material 3,/ to any issue in the proceeding that would warrant referral. A 3/

" Material false statements," as applied by the Commission, is a term of art applied to statements of licensees and applicants, rather than to representations by the Staff. The Commission's proscription on material false statements is grounded upon Section 186 of the Atomic Energv Act of 1954, which permits a license to be revoked "for any material false statement in the application or any statement of fact required under section 182" of the Act. The Commission decision which first addressed the concept of material false statement concerned a licensee's duty to provide correct information to the egency. Virginia Electric and Power Co. (North Anna Power Station , Units 1 and 2), CLI-76-22, 4 NRC 480 (1976), see also Houston Power and Lighting (South Texas Project, Units 1 and 2),

C LI-80-32, 12 NRC 281, 291 (1980). The Staff knows of no

, proceeding in which the term, " material false statement" was applied to representations of the Staff in a licensing proceeding.

l Honetheless, the Staff acknowledges that it has it has an absolute obligation to promptly inform the Licensing Board of new information, or of inaccurecies in information provided earlier. Consolidated Edison Co. of N.Y. (Indian Point Station , Units 1, 2 and 3),

CLI-77-2, 5 NRC 13, 15 (1977), Louisiana Power and Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076, 1091 and n.18 (1983), Pacific Gas and Electric Co. (Diablo Canyon l

Nuclear- Power Plant, Unit 1), DD-84-8, 19 NRC 924, 928, n.S (1984),

f/ The proper agency office for referral of the metter would be the Office of Inspector and Auditer (OIA), and not OI. NFC Manual l Chapter 0702. The NRC Office of Investigations (OI) is responsible for investigation of licensee and appifcant wrongdoing. NRC Manual Chapter 0119. By contrast, the OIA is responsible for conducting inquiries into wrongdoing by NRC employees. NRC Manual Chapters 1 0113, 0702.

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CASE first alleges that the Staff's " withholding of the 1976-1979 Trend Analyses," was an example of Staff misconduct. Motion , p . 11.

There is no basis for this accusation. In fact, the situation referred to by CASE was but a discovery dispute between CASE and the Staff -- a dispute which has long since been resolved. CASE's First Set of Interrogatories (Interrogatory 1) requested the Staff to identify and supply for copying "any audits [ conducted by the NRC] to detect trends that may be detrimental to safe station operation at CPSES" (emphasis added). No mention was made of trend reports" in the interrogatory.

The Staff's early March 1982 response to Interrogatory 1 referred CASE to the UR C's Systematic Assessment of Licensee Performance (SALP)

Reports, as well as the Region IV inspection reports.

Subsequently, CASE made clear that it "did not mean just audits (or paper trails) but any trending about construction at Comanche Peak."

1 CASE's Motion to Compel NRC Staff to Provide Complete Answers to CASF's First and Second Set of Interrogatories (March 22, 1986). Upon receiving CASE's clarification, the HRC inspector responding to the inter-rogatory informed Staff counsel of the 1976-3979 trend reports , and in mid-April 1982, Staff counsel provided CASE with copies of the 1976-1979 trend reports. In Fum, the 1976-1979 trend reports were provided to CASE once the Staff understood what CASE was attempting to discover.

There is r.othing further to be gained by revisiting this matter.

Secondly, CASE argues that it was misinformed by the Staff in 1982 that " trending was not being performed except as in NRC Inspection Re-ports and SALP Reports." Motion at 11. Putting aside the fact that CASE has not identified a specific instance where the the Staff made such

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an assertion in the specific contert of " trend reports", 5/ the fact is that such an assertion would not have been wrong when made, nor would it be i

incorrect today. The last trend report written as a separate document J

was written for calender year 1979, or over two years prior to 1982.

Affidavit of Eric II. Johnson (Johnson Affidavit). Certainly, this is some evidence that Region IV had discontinued its earlier practice of preparing trend reports which were separate from its regular inspection reports and SALP reports. However, the most compelling fact is that since 1980, Region IV has not issued any trend reports similar to the 1976-1970 reports. Id. The Staff reiterates that since 1980 all Region IV " audits" or inspections of CPSES have been documented in inspection reports, SALP P.eports, or other published docur:ents. Id.

That a " trend report" may have been drafted in an early version of NRC Inspection Report 85-07/05 is not inconsistent with these statements.

To the ertent that the 85-07/05 " trend report" was being prepared, it was being developed for inclusion in Inspection Report 85-07/05 -- which is consistent with the Staff's 1982 response to CASE's Interrrogatory 1, f and is just as CASE understood would be done. -

j -5/ CASE merely alleges that "it was our understanding" that Region IV l wes no longer conducting "t rending ," and simply refers to the l " record of these proceedings" without any specific citation to the l

record.

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Even if the the 85-07/05 " trend report" were viewed as a separate

! report prepared independent of the Inspection Report itself -- a matter belied by the facts -- it was, nonetheless, only a draft report which was not finalized or otherwise officially approved or adopted by the Staff, does not reflect the Staff's essessment of this matter, and therefore, is not within CASE's 1982 discovery recuest.

See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

XEAB-355, 4 NRC 397 (1976); Consolidated Edison Co. of New York (Indian Point, Unit 2), ALAB-209, 7 AEC 971, 973 (1974).

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CASE next contends that the Staff made a material false statement by

" withholding...the trending report recently identified in the OIA Report."

Motion at 11. The ' Staff entirely disagrees with CASE. The 85-07/05

" trend report" was merely a draft, and not a report which was officially approved and adcpted by Region IV. Absent a discovery request re-questing draft reports , there was no obligation to disclose the unap-proved " trend report" draft. U Interrogatory 1 (the only discovery request which CASE cites as the basis for expecting disclosure of this document) did not request drafts of such material. Since the original interrogatory did not ask for drafts, the Staff was under no obligation to supplement its. 1982 response by disclosing the existence of the unapproved " trend report." -

As for CASE's accusation that the testimony of an NRC Staff witness regarding the " amount of reinforcing steel left out of the concrete at Comanche Peak" is a material false statement, the Staff merely notes that this subject appears to be entirely unrelated to the question of whether trend reports were produced in the post-1979 time frame. Since it is 7/ The Staff will not contest the independent proposition that the Staff has an obligation to supplement its discovery responses, since the Staff is mindful of a previous order of the Board, LD P-81-22, 14 NPC 150 (1981) directing the parties, in accordance with 10 C.F.R.

I 2.740(e)(3), to " supplement the responses [to discovery) to keep them currently accurate," 14 NRC st 156, as well as of the provisions of 10 C.F.R. I 2.740(e) itself.

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8/ If Interrogatory 1 is construed to include a recuest to provide draft , as well as final documents, the Staff points out that disclo-sure could be withheld by 10 C.F.R. I 2.790(a)(5), the executive or deliberative process privilege.

entirely inexplicable how this NRC witness' testimony could constitute a deliberotely inaccurate statement, the CASE allegation is unfounded.

't In sum, none of the four situations raised by CASE suggest any wrongdoing on the part of NRC staff members which would warrant referral to OIA. El

P. Need for Additional Discovery CASF asks the Board to direct the Staff t) " respond anew" to Inter-rogatory 1 of its First Set. P. lotion at 12. In addition, CASE moves the Eoard to direct the Staff to supply CASE with "all trend analyses (by whatever name) similar to those discussed in the recent DIA Report," as well as all " internal memoranda, handwritten notes,...and any other rele-vant documents." Id. at 11. In particular, it asks for Attachment E and F of OIA Report 86-10 Id. The Board should deny these reouests.

As discussed in note 5 above, the Staff recognizes its obligation in i

this proceeding to supplement its discovery responses as necessary to keep them currently accurate. However, the Staff asserts that its origincl response to Interrogatory 1 of CASE's First Set continues to be accurate. As discussed in Section A above, the Staff has not issued any trend reports after 1980 other than those contained in NRC inspection I

reports , SALP reports, or other publicly available documents. .Tohnson Affidavit. There is, then, no need for the Staff to supplement its earlier response to Interrogatory 1.

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Notwithstanding the Staff's view that CASE's Motion merely raises a routine discovery dispute, the Staff is informing OIA of the P. lotion for such action as it might consider appropriate, t

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With regard to CASE's request for " trend analyses similar to those discussed in the recent OIA Report" and other " relevant" documents (Motion at 11), to the extent that CASE is rcouesting unadopted drafts of

" trend reports," the Staff submits that such discovery is not necessary.

As set forth in the Johnson Affidavit, the Staff knows of no draft " trend reports" other than th'at which was the subject of CIA Report 86-10. E Regarding CASF's request that the Doard order production of Attschments E and F to the OIA Rcport, the Staff points cut that the Commission is currently considering the matter. See note 1 above.

Given the pendancy of Commission consideration and action on this matter, the Staff submits that it would be prudent for the Board to await the Corrmission's decision on the matter of public disclosure of the attachments to OIA Report 86-10. N 10/ To the extent that CASE's discovery request seeks information on Staff wrongdoing, such issues are not issues for litigation in this proceeding unless related to witness credibility. CASE has not i attempted such a showing. Allegations of Staff wrongdoing are to be referred to and investigated by OIA; the operating license proceedinsr is not the forum for investigation and resolution of such allegations.

-11/ At such time as the Commission determines whether to release addi-tional contents of the OIA Report and its attachments, it will then be available for public inspection and copying. The Staff notes that CASE already has pending a discovery request for the OIA Report in its entirety. See December 4,1986 letter form Anthony Roisman to Lawrence Chandler, and December 5, 1986 letter from Lawrence l Chandler to Anthory Roisman.

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-g-IV. CONCLUSION For the reasons set forth above, the Licensing Board should deny CASE's Motion in all respects.

Respectfully submitted, T&u Ceary S. Mizuno u

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Counsel to NRC Staff Dated at Dethesda, Maryland this ///l$ day of February,1987 I

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