ML20212Q733
| ML20212Q733 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 01/29/1987 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#187-2455 CPA, NUDOCS 8702020347 | |
| Download: ML20212Q733 (84) | |
Text
l I
UNITED STATES O
NUCLEAR REGULATORY COMMISSION OR/GWAL IN THE MATTER OF: DOCKET NO: 50-445-CPA TEXAS UTILITIES ELECTRIC COMPANY (Comanche Peak Steam Electric Station, Unit 1)
O LOCATION: BETHESDA, MARYLAND PAGES: 1 - 82 DATE: THURSDAY, JANUARY 29, 1987
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l UNITED STATES OF AMERICA 2 NUCLEAR REGULATORY COMMISSION 3 BEFORE THE 4 ATOMIC SAFETY AND LICENSING APPEAL BOARD
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x In the Matter of: :
6 : Docket No. 50-445-CPA i TEXAS UTILITIES ELECTRIC COMPANY :
7 :
(Comanche Peak Steata Electric :
I 8 Station, Unit 1) :
l :
d 9 ------------------x 10 1
Nuclear Regulatory Commission Fifth Floor Hearing Room 11 4350 East-West Highway
! Bethesda, Maryland 12 9
() 13 Thursday, January 29, 1987 14 The oral argument in the above-entitled matter convened 15 at 10:00 a.m. '
16
- 17 BEFORE
i i 1
I JUDGE ALAN S. ROSENTHAL, Chairman
! Atomic Safety and Licensing Appeal Board i 19 U. S. Nuclear Regulatory Commission Washington, D. C.
l JUDGE W. REED JOHNSON, Member j 21 Atomic Safety and Licensing Appeal Board
. U. S. Nuclear Regulatory Commission 4
22 Washington, D. C.
1 1 23 JUDGE THOMAS S. MOORE, Member I Atomic Safety and Licensing Appeal ' Board U. S. Nuclear Regulatory Commission 24 Washington, D. C.
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1 APPEARANCES:
2 l On behalf of Applicants:
.i 3
THOMAS G. DIGNAN, JR., ESQ.
l 4 WILLIAM S. EGGELING, ESQ.
Ropes & Gray 225 Franklin Street 5
i Boston, Massachusetts 02110 4
6 i On behalf of the United States 7 Nuclear Regulatory Commission Staff:
8 GEARY S. MIZUNO, ESQ.
- 9 LAWRENCE CHANDLER, ESQ.
Office of General Counsel 10 United States Nuclear
. Regulatory Commission yy Washington, D. C.
12 On behalf of Consolidated
. Intervenors (CASE and j 13 Meddie Gregory):
14 ANTHONY Z. ROISMAN, ESQ.
, Trial Lawyers for Public 15 Justice 2000 P Street, N.W.
16 Washington, D. C. 20036 17 i
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d 29624.0 3 cox 1 PROCEEDINGS 2' CHAIRMAN ROSENTHAL: Good morning.
4 3 This board is hearing oral argument today on the i
- 4 appeals of the Applicants and the NRC Staff from the
] 5 licensing board's October 30, 1986 memorandum and order, 6 and this construction permit extension proceeding involving 7 the Comanche Peak steam electric station. In that order, I
8 the licensing board accepted for litigation an amended 9 contention submitted by the Consolidated Intervenors, j 10 Citizens Association for Sound Energy and Meddie Gregory.
11 The argument is governed by the terms of our 12 December 22 order as provided therein,--cach side has been 13 allotted 45 minutes for the presentation of argument. If
} 14 they wish, the Appellants may reserve a portion of their i j 15 time for rebuttal. I will now call upon counsel for the i
r 16 respective parties to identify themselves formally for the l 17 record. We will start with Mr. Dignan.
i 18 MR. DIGNAN: Mr. Chairm'an, members of the board, ,
4 19 my name is Thomas D. Dignan, Jr., I am a member of the firm 20 of Ropes & Gray, 225 Franklin Street, Boston, Massachusetts.
j 21 With me is my partner William S. Eggeling. We appear for j 22 TU Electric, the Applicant herein.
23 CHAIRMAN ROSENTHAL: Thank you, Mr. Dignan.
f 24 Mr. Mizuno?
- i f 25 MR. MIZUNO: Your Honor, my name i~s Gary S.
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/ 1 Mizuno. I am appearing for the NRC Staff. I am from the 2 Office of General Counsel.
3 With me, to my right is Mr. Lawrence Chandler, 4 also from the Office of General Counsel.
5 CHAIRMAN ROSENTHAL: Mr. Mizuno, has there been 6 an agreement reached between you and Mr. Dignan with 7 respect to the division of time on your side of the case?
8 MR. MIZUNO: Yes. Mr. Dignan will go first and
! 9 he will have 25 minutes, and the Staff will go second.
10 CHAIRMAN ROSENTHAL: All right. Thank you, 11 Mr. Mizuno.
12 Mr. Roisman.
l 13 MR. ROISMAN: Mr. Chairman, my name is Anthony p)s 14 G. Roisman of the firm of Trial Lawyers for Public Justice.
15 I represent the Consolidated Intervenors at this oral 16 argument, which is Meddie Gregory and the Citizens 17 Association for Sound Energy.
18 CHAIRMAN ROSENTHAL: All right. Thank you, 19 Mr. Roisman.
20 Mr. Dignan, you may proceed.
21 MR. DIGNAN: Mr. Chairman, members of the board.
22 I would like to begin by noting I would like to reserve 23 five minutes of my time for rebuttal.
24 This case has its genesis in a May 2, 1986 order, 25 in which the licensing board admitted a single contention (1)
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-t i 1 for litigation in this matter.
2 In this same order, a number of other ,
3 contentions were excluded, I think it's important to note 1
4 at this time a particular certain contentions denominated ;
} 5 case numbers 3 through 5 and 7 and Gregory 2 were excluded -
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! 6 as being inadmissible under the doctrines laid down by the
$ 7 lCommissionintheWPPSScaseCLI-8229. So much of the l '
i 8 order as admitted the single contention was cppealed by the 1
I 9 Staff and the Applicants to this board, and on July 2, 1986, 10 this board, after oral argument, certified a question to l
11 the Commission as to whether or not the contention was l
12 foreclosed as a matter of law. ,
] ,
13 CHAIRMAN ROSENTHAL: Mr. Dignan, I think you can l 14 assume that the board is fully familiar with all of this 15 background.
i i 16 MR. DIGNAN: Thank you, Mr. Chairman. I will I
., 17 proceed directly to my argument. Thank you.
l 18 JUDGE MOORE: Excuse me, Mr. Dignan, if we find
(
19 that one of those contentions, whether the one that was up i
20 before us previously, when we certified a question to the i ;
j-21 Commission, or the one that is the subject of this appeal,
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i 22 is admissible, we need not decido the other appeal.
i 23 MR. DIGNAN: I don't believe you have before you 24 the contentions on the other appeal, except for the one l
f 25 that we appealed to you.
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29624.0 6 cox 1 JUDGE MOORE: Correct. If we find either that 2 contention admissible, or this contention admissible, we <
3 don't have to turn to the one -- the other one; do we?
4 f MR. DIGNAN: By that contention, your Honor 5 refers to the contention that was on appeal the last time.
,6 JUDGE MOORE: Correct.
7 MR. DIGNAN: I believe I have indicated it's 8 closed, 8615. If the board believes that context is 9 admissible, they would not have to reverse this one.
10 CHAIRMAN ROSENTHAL: Or vice versa.
11 JUDGE JOHNSON: Would you explain to me which 12 part of CLI-8229 was relied upon by the board to deny the 13 contentions 1 through 5 and whatever the ones were that 14 were denied in the earlier board order.
15 MR. DIGNAN: Yes, your Honor. You wlll recall 16 that what the licensing board did in the prior order was 17 referenced as its grounds for denying those contentions the i
18 Applicant's brief passim. If you review our brief with 19 respect to those contentions, I believe you will find that 20 case number 3 we argued fell under the language at pages 21 1225 and 1230 on the basis that CLI-8229 said contentions 22 looking only to the future events would not be admissible 23 that case number 4, which raised essentially a reasonable 24 assurance standard, was out under CLI-8229 at page 1227; 25 that the management competonce issue, which was also part i (1) l 4
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\-) 1 of case number 4, was out under the language appearing at 2 page 1224, 1225 and 1230; case number 5 --
3 JUDGE JOHNSON: Well, can you give me in 4 shorthand --
5 MR. DIGNAN: Because what tho -- I am sorry, 6 your Honor.
7 JUDGE JOHNSON: The version of what those pages 8 say.
9 MR. DIGNAN: Yes. Well, the reason I refer to 10 two sets of pages, ych will recall the structure of that 11 decision, they listed all the contentions. Then the 12 Commission had a discussion and ruled on them in the second 13 round. All of those, or that one that I just indicated, 14 they had made a management competence contention, and it 15 appeared at pages 1224, 1225 and 1230. They ruled that out 16 as a matter of law on the grounds that it was something 17 that should be in an OL proceeding, not in a construction 18 permit extension.
j 19 JUDGE JOllNSON: Did the Commission decision, 20 8615, pertain in any way to parts of, in your opinion, 21 parts of 8229 other than the violation of NRC regul,ations, l 22 discussion which appeared on pages 1230 and 31?
23 MR. DIGNAN: I believe not, your Honor. As we 24 indicated in our brief, we don't think that the Commission I
25 decision in this case impinged at all upon CLI-8229.
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N/ 1 It is clear that they reined in what they had 2 said in the Seabrook decision somewhat. They indicated a 4
3 mechanical application of the Seabrook decision would not 4 be appropriate in this case. I think *. hey left fully 1
5 intact so much of CLI-8229 as you and I have just been 6 discussing.
7 CHAIRMAN ROSENTHAL: You agree, Mr. Dignan, that i 8 - in the Allens Creek decision they left, 590 still rules the j 9 waves as the standard for determining whether there is a 10 sufficient basis in an alleged contention.
i 11 MR. DIGNAN: There is no question that Allons 12 Creek today stands as the last pronouncement of the appeals 13 board and I should say unruled on the Commission by any 14 case as the standard.
4 15 CHAIRMAN ROSENTHAL: Wo should judge the 16 contention under consideration today against ALAB-590.
17 MR. DIGNAN: I have prepared, I hope to persuado 18 you, that under the facts and law of that case the cases 19 are distinguishable and should come out the opposite way.
20 JUDGE MOORE: Mr. Dignan, if the licensing board, 21 if wo agree with you that the contentions 2, 3, 5, 7, I 22 believe are the numbers, that the licensing board found 4
23 inadmissible. If we agree with you as to the analysis of 24 why thoso woro inadmissible, why it's on the WPPSS decision, i
25 wo nevertheless can conclude that the licensing board (E)
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- reached the right result for a wrong reason, then you ,
) 2 haven't addressed any possibility like that in your brief. ,
3 In other words, it's entirely possible that'we i 4 accept what you say as to the WPPSS decision, which is the
] 5 only reference given by the licensing board for why it 1
! 6 wasn't admitting those contentions. It may well be that we, !
I 7 in looking at thoso, would find they were admissible for l 8 different reasons, and that the licensing board is ruling, i
! 9 in effect, it was irrelevant at that point.
)
10 Can wo do that in this case?
f 11 MR. DIGNAN: I think if you reach that decision.
j 12 JUDGE MOORE: And then use those as the I
13 Intervonor has done to suggest that those are a [
f 14 reformulation, if you will, of old contentions? !
j 15 MR. DIGNAN: I want to be absolutely suro I l As I understand it, I 2
16 understand your premiso, Judge Moore.
l 17 the promise is that the appeal board reviews those l 1 ,
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18 contentions and says, one of them, at least, should have 1
j 19 boon admitted because --
i 20 JUDGE MOORE: No. Strictly for the purpose.
l 21 You contend that they can't possibly be old contentions j
22 that can como into play. Now, either by way of
{ 23 reconsidotation or admitting to this now contention that 1 i i 24 was admitted, contention 2, and the reason for that you ,
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j 25 give as -- and you point to the WPPSS decision -- the i
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licensing board relied on WPPSS in getting rid of this.
1 2 That may be correct. But if the licensing board 5
3 was in error in light of ciccumstances today, in finding 4 those inadmissible, then shouldn't we look at them to seo 5 if this is, as Mr. Roisman contends, an amended contention?
6 MR. DIGNAN: I don't think you should look at j
7 them. If you do, and reach a result that, well, in light
] 8 of something the board didn't consider below, and I really 9 don't think there is much room for that, but let's assume 10 you reach that conclusion, the least I would expect is that 11 the appeal board would follow the rule that is many timos 12 enunciated.
l 13 JUDGE MOORE: Sond it back.
j 14 MR. DIGNAN: Or announce this is the tentative
- 15 view and give mo a chance to brief that question. Because 16 it has not been argued by my learned friend reprosenting 17 the Intervonors botore you, that that is the caso. I think
^
18 I could give you a pretty persuasivo argument on almost any 19 thoory that is o.l.octed that that isn't the caso, because I I
20 think the board was absolutely right in its treatment of 21 the WPPSS decision. I have to say that if for no other 22 reason than they adopted the decision I wrote them in my 23 brief. I am loath to give that up.
24 In all seriousness, if that should be the 25 appeals board view, I should at leant be given the i C)
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2 JUDGE JOHNSON: One further question raised by 3 the chairman regarding Allens Creek as the standard for the 4 basis of requirement. In ALAB, pardon me, CLI-8229, the 5 Commission eventually allowed one of the Intervonors' 6 contentions to survive. .
7 However, it was sent back to the licensing board 8 with the order that the licensing board have the Intervonor 9 particularize and support that particular c'ntention.
o i 10 In fact, the Intervenor subsequently did 11 particularize and support that particular contention.
12 Does this not raise the possibility that, at ,
13 least in the Commission's view, there might be a higher l 14 standard for the basis in a construction permit extension 15 procooding than the admittedly low standard ospoused in 16 Allons Crook?
! 17 MR. DIGNAN: Dr. Johnson, it may well be that 18 that decision could be road that way. But as I indicated, 19 I don't have to do that, and if I could go directly to this 20 question, it skips me through the argument.
21 Cl! AIRMAN ROSENTilAL: Yes.
22 MR. DIGNAN: Let's go to the basis right now,
- 23 Allons Crook's facts wore this. Allons Creek, as I recall 24 the facts of that caso, camo in and said I want to litigate 25 a biomass. I think ovorybody sitting on the board, even O
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I the author's majority opinion which is clear from 2 Mr. Ferrer's concurrence in which he called it a curious 3 item, probably thought that biomass item was not going to
.i 4 fly as an alternative.
l 5 What I understand Allens Creek did is they took
! 6 a look at what had happened. Staff had written an FES and !
7 said biomass is not a reasonable alternative because it 8 won't be available within a time frame to be useful. The j 9 Intervonor came in and said here is this Project i
l 10 Independence report, which had some credibility as a i
j 11 document. It says it will be and I want to litigate it.
12 The unremarkable decision to me, at least in Allens Crook, t
13 was they have stated a basis.for contention. They have i 14 pulled out a document that is at direct variance with the 15 position taken by the Staff. They say they want a hearing i
i l 16 on it. I didn't think it was all that remarkable, j 17 Now, I know the Applicants bar is sspposed to 1
} 18 think it's remarkable, but I, at least, never did, because [
i 19 they showed a document. That is what has not been done in i i
i 20 this caso.
I j 21 CilAIRMAN ROSENTHAL: There has been nothing i
j 22 shown which would provido a basis for a claim that your l 23 clients deliberately embarked upon a course of conduct that ;
! 24 was inconsistent with Commission regulations, which course 25 of conduct was embarked upon for the purpose of getting
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. 1 that plant built in a hurry.
2 There is nothing, there are no documents that 3 were before this licensing board that could possibly 4 provide that inference?
5 MR. DIGNAN: To begin with, there were none 6 before the licensing board in this case. They went over 7 the other record together.
8 CHAIRMAN ROSENTHAL: What is wrong with that?
9 MR. DIGNAN: We decided since Massachusetts the 10 last time was allowing that sort of thing to go on, that 11 maybe it is okay.
12 3 But to get to the question directly,
^
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13 Mr. Chairman, I would like to answer this question at some 14 length.
15 The Commission, in CLI-8615, I submit to the-I 16 board, opened a very narrow window. People think it was 17 right, wrong or indifferent, the window was narrow. The
, 18 contention comes in on a construction permit extension case, 19 as I read that decision, has to have two elements both of 20 which havet to have a basis. The first is a policy to flout 21 Commission regulations.
22 Essentially,' darn it, almost an allegation of 23 criminal conduct. All -- now that is part one. L 3 24 Now, all of the documents and the rhetoric that s
25 the Intervenors have given you in this case, amount to a O
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I 1 yell that there's been a lot of mistakes at Comanche Peak, ;
2 both in construction --
3 JUDGE MOORE: This is a looking back situation.
4 This is past conduct?
5 MR. DIGNAN: That's right. There's been 6 mistakes in hardware and perhaps in procedures. There's 7 probably no question there's been some mistakes at least at 8 Comanche Peak because it's been recognized by the appeal 9 boards in ALAB-740, none of these projects come through 10 free of construction error or free of OA error.
11 If it be enough to list a number of as yet 12 uncorrected errors, or errors allegedly not corrected soon 13 enough to suit the Intervenor or the trier-of fact, and 14 charged that this is the result of a policy, and asked the 15 board to make an inference from those facts that this is 16 part of a policy, then every construction permit extension 17 case that anyone desires to have go to hearing is going to 1
18 go to hearing.
19 There is no distinction, cognizable at law, I 20 submit to you, between X plant with one mistake, and Y 21 plant with 1000 mistakes. Because --
22 JUDGE MOORE: How about Y plant with a pattern <
23 of mistakes?
24 MR. DIGNAN: It's still the same. You still 25 have to, according to the Intervenors, you have to get your O
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~ 1 basis by asking the trier of fact to draw '_he inference of 2 what amounts to a criminal mindset.
3 Now, if that be so, every single construction 4 permit' extension case that comes before the board, also 5 what he has to do is say look here, here is the' Staff
'6 finding a bunch of OA errors over here. Might only . be - four 7 or five. We charged that was part of the deliberate policy .
8 of management. That's why it happened. You have to 9 automatically draw the inference we want you to, and we 10 want a hearing.
' 11 CHAIRMAN ROSENTHAL: How would an Intervenor, i 12 under your standard, ever provide a basis for a claim that 13 this pattern of irregularities was a result of the i 14 deliberate policy?
15 obviously the utility isn't going to put that in.
I 16 writing and put it in their files, and it's a little 17 difficult to get into the head of the utility; isn't it?
, 18 If you have a pattern of these, it may be deliberate, may 19 not. You are quite right .about that.- Why isn't it enough 20 to get beyond the threshold of the admission of.the
! 21 contention and then you can litigate whether this pattern 22 in the particular case was due to sirp).y negligence,or 23 whether it was due to a deliberate endeavor to violate i
24 Commission regulations.
25 MR. DIGNAN: If that be the law, I repeat, maybe O
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29624.0 16 cox O- 1 to say " pattern," Judge Moore, I need two errors, and I 2 will get them at any plant. Here is my pattern, Judge. I 3 charge it was policy. The mistakes are out there. You 4 make the inference for me, I want a hearing and every CPE 5 goes to hearing. That cannot be what the Commission 6 intended under 8615.
ma7 CHAIRMAN ROSENTHAL: But none of them go to 8 hearing --
9 MR. DIGNAN: Not on this basis, no, your Honor.
10 I said before, I do not believe on the facts of TU, as I 11 understand them. There is room for a hearing.
1 12 CHAIRMAN ROSENTHAL: At any time, no matter how 13 many errors there might be, if an Intervenor came in,'would 14 be faced.with exactly the same argument you just presented.
15 This is the way it is. We know when you are building a 16 large project such as a nuclear power plant, you have OA 17 'rregularities. ,
18 MR. DIGNAN: I am not alone in saying that, your 19 Honor. The appeal board said it in ALAB-740. I am saying 20 that alone is not enough to get you a hearing in a 21 construction permit.
22 CHAIRMAN ROSENTHAL: It seems.to me --
23 MR. DIGNAN: You can never get one out of errors.
J 24 You can't get one on the basis of errors in construction or 25 policy.
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1 JUDGE MOORE: Mr. Dignan, in the appendix to 2 Consolidated Intervenors' brief, they quote, and 3 unfortunately, there is not a page number, but it appears 4 as page 4, the bottom of the page, 1979, it states, "the 5 NRC found that the QA/QC' program was ineffective because 6 the Applicants," skipping to the second paragraph, this is 7 from an NRC inspector that is being quoted.
8 MR. DIGNAN: I am sorry, your Honor, I have lost 9 the reference because the pages are unnumbered.
10 JUDGE MOORE: Page 4, Mr. Dignan.
11 MR. DIGNAN: Of the appendix?
12 JUDGE MOORE: Correct.
4 13 MR. DIGNAN: Is this the one with the page that 14 begins "and following - "
15 JUDGE MOORE: Correct; down at the bottom, 16 second paragraph, quoting from an NRC inspector, "what I 17 have begun to see, but have difficulty proving, is that the 18 Brown & Root construction philosophy is to build something 19 any way they want to and then put it up to the engineer to 20 document and approve the 'as-built' condition. If the 21 engineer refuses, he is blamed for being too conservative 22 and not responsible to the client's needs, and, thus, the 23 driving force behind my request for a special engineering i
24 audit of site operations." '
25 Now, if that is an accurate quotation from a j (1)
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. - b(~s 1 Staff inspector, is that not, in and of itself, combined 2 with a pattern of OA/QC difficulties supportive of an 3 inference that there was a corporate damn the torpedoes, 4 full speed ahead, philosophy policy directive?
5 MR. DIGNAN: First of all, there are two answers
^
6 to that. It's Brown & Root. Not the Applicant. That's 7 one answer. The second it seems to me is simple. The 8 business of asking your engineers to document --
9 JUDGE MOORE: Brown & Root is someone for whom 10 the Applicant is responsible; are you not?
11 MR. DIGNAN: We are responsible for them, but 12 it's a long reach to say anything Brown & Root does out on 13 the job is off of the corporate policy of the Applicant.
14 We are dealing with a charge of essentially criminal 15 conduct. There has got to be a standard of some' kind 16 applied to it and not just an inference from a pattern.
17 More importantly, if you look at this and read 18 it in context, what they are saying is Brown & Root is big.
19 I am not saying this is a good policy, on pencil whipping 20 problems. But pencil whipping problems by engineers has 21 been going on in the nuclear business for years. It hardly ,
22 shows a mind set to violate regulations.
23 The classic thing, when the Staff comes in on an 24 inspection and says, this doesn't make it under regulation 25 so and so, is the first thing the engineers do is sharpen O
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.I 29624.0 . 19 cox I 1 their pencils and see if there is enough margin in here 2 they can satisfy the staff that-a fix is not necessary.
3 This has been' going on in nuclear power sites certainly as 4 long as I have been in this business. I hardly think it 5 demonstrates a policy to flout regulations.
6 What it demonstrates --
7 JUDGE MOORE: In other words, you are saying 8 this does not support an inference.
9 MR. DIGNAN: I do'not think it does. This is my 10 problem. In addition to saying inference alone makes it 11 without more of a -- I don't like this raised smoking gun 12 let's use it, because you are going to have a hearing in 13 every case.
14 I would like to . track on through this next 15 al i.ega t ion . The next thing that must be alleged under 16 CLI-8615 is there has been a failure to repudiato. Take a 17 look at what has been done for basis here.- The first thing 18 is the sam,e people are there.
19 JUDGE MOORE: Is there any sense 'to the 20 Commission's discard and repudiate? That is the language.
21 Is it redundant?
22' MR. DIGNAN: I think so.
> 23 JUDGE MOORE: Even though " repudiate" is not a 24 synonym of " discard"?
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/^N kJ 1 linguist than me. I read them as synonymoos in this 2 setting.
3 JUDGE JOHNSON: Mr. Dignan, would not the 4 Applicant have to accept'the allegation that he 5 deliberately violated the Commission, had a policy to 6 deliberately violate Commission regulation before he 7 repudiated it?
8 MR. DIGNAN: Well, I am not sure he would have 9 to accept it. In theory an affidavit could be filed or 10 something saying we don't accept it. But if it was ever 11 there, we repudiate it. But, what is more important, and 12 comes out of your question, Dr. Johnson, is what bothers me '
13 about this allegation. They have given us two bases for 14 this one, same people. I think the Staff did a very good 15 job of this. They aren't the-policymakers we are talking 16 about. The other real basis they are saying is they never 17 admitted the policy. But we deny the policy. We have 13 shown they don't have any basis for this essentially 19 criminal charge, and it can't be a basis for the back half-t 20 of this charge either.
21 But, more importantly, putting the two together.
i 22 JUDGE MOORE: Where do you deny the policy?
23 This is one of the problems to try to backfit any analysis, 24 if you will, on the way we are now presented with this case.
25 In your application for an extension, O
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- 1. construction permit extension, there is no mention of 2 repudiation, obviously, because you didn't foresee the turn 3 of events.
4 MR. DIGNAN: No charge had been-made.
5 JUDGE MOORE: True enough.
6 MR. DIGNAN: I don't think you have to refute a 7 charge before it's made.
8 JUDGE MOORE: We will look to you for your l 9 denial.
10 MR. DIGNAN: My point is this. We do obviously 11 deny it. More importantly, what they are doing with this j 12 basis, they are saying because they haven't denied it.
rT 13 This is the second basis we have to have that there is a 1 .U
! 14 policy that has not been repudiated now, this is all the t
15 way through. You are asked to get them a basis for their
! 16 contention, for part 1, by inferring what-amounts to h
17 criminal conduct; and then give them the number two basis 1
4 18 because my client has the audacity to refuse to admit that
, 19 i it engaged in the criminal conduct that they haven't given 20 us any basis for it.
21 Now, that is what this is all about when you put 22 it together.
23 JUDGE MOORE: Isn't there additional. basis that 24 they claim, that is, there is a continual pattern of the 25 same mistakes that one can draw the' inference from that you O
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!' I ss/ 1 didn't repudiate, because you are not getting it right yet.
2 MR. DIGNAN: Continuing pattern of same mistakes 3 has no better basis than the first mistakes as'I indicated l 4 earlier. If you want to throw the word " pattern" in, it 5 doesn't accept, except I have to tell you you need two ,
6 mistakes per case.
- 7 JUDGE MOORE
- Let's go back to square 1. What i
4 8 is the purpose of the basis requirement?
9 MR. DIGNAN:' The purpose of the basis 10 requirement? The purpose of the basis requirement, to 11 start with, as stated in Allens Creek, is no doubt to 1 12 inform you of what you are charged with. Your Honor, what 13 am I charged with? I have no idea. I have been given two i 14 things, their recitation of certain documents, which is 15 attached to this appeal board brief, an outline of what
- 16 they say we did. A judge below has referenced a whole pile
) 17 of documents in another proceeding and told me to go~1ook 18 there because he knows it's there. What am I charged with?
j 19 I don't know what I am charged ~with.
l 20 So ur.dar Allens Creek, this contention is just 21 as dead as it should be. That's why I am not here to take 4 .
i 22 on Allens Creek today. Only aside from the views I know i 23 certain judges hold on Allens Creek.
l 24 But you don't have to take on Allens Creek.
- 25 This one goes right down the chute under- Allens Creek.
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29624.0 23 cox 1 CHAIRMAN ROSENTHAL: Your time has -- I am going 2 to allow you a couple more minutes now. I will give you 3 five minutes of rebuttal. I recognize you have been'under 4 rather heavy questioning.
5 MR. DIGNAN: Well, your Honor, I am not sure I l 6 want a great deal more of time except to say I do rely on 7 my brief and the other points I made we do think the 8 procedural points are valid. We haven't discussed them 9 here today and I hope they are clear in the brief.
10 JUDGE MOORE: Mr. Dignan, Peach Bottom years ago 11 which really is the first explanation of what basis 12 requirement is all about, the appeal board gave three. The 13 first one was, at the pleading stage, to be sure that the 14 hearing process is not improperly invoked, is what we said, 15 stating, for example, a licensing proceeding before this 16 agency is plainly not the proper forum for an attack on 17 applicable statutory requirements or for challenges to the 18 basic structure of the Commission's regulatory process.
19 We then said a second purpose to be served oy 20 the basis requirement. Another purpose is to help assure l 21 that the other parties are sufficiently put on notice so 22 that they will know at least generally what they will have 23 to defend against.
24 Then we listed a third purpose to be served by.
i 25 the basis requirement. Still another purpose is to assure O
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/"'g kJ 1 that the proposed issues are proper for adjudication in a 2 particular proceeding.
3 In contrast to that, we also spoke as to what 4 the specificity requirement was.
5 You have not objected, anywhere along the line, 6 to the specificity charge, which is that particularization, 7 if you will, of a bill of particulars, as to the'i's that 8 weren't dotted and the t's that weren't crossed.
9 But don't you, in a general sense, understand 10 what the charge against you by the Intervenors is in this 11 construction permit extension proceeding?
12 MR. DIGNAN: No.
13 JUDGE MOORE: You have engaged in a corporate N.)S 14 policy, if you will, a full speed ahead, damn the 15 consequences, and that you failed to repudiate that policy 16 now.
17 MR. DIGNAN: But the problem --
18 JUDGE MOORE: Isn't this essentially a factual 19 matter?
20 MR. DIGNAN: There is no question if it gets into 21 hearing, it's a factual matter. But the point I am getting 22 at, I was asked, fits this to the Allens Creek standard.
23 In that case, the Applicants lawyer knew the following, he 24 wanted a biomass marine farm, his basis for it was that 25 report.. He could take that report, call up a witness, tear o
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' - 1 that report apart, give me an affidavit and I will;come in 2 for disposition. What can I do?
3 CHAIRMAN ROSENTHAL: How about Grand Gulf, which 4 was the original decision in that line, where the 5 individuals came in and simply argued that there had not 6 been an adequate consideration of the geothermal 7 l alternative. Didn't come in with any documents, that was 8 the argument. .
9 MR. DIGNAN: I know what the geothermal 10 alternative is precisely. I can pul1 out an expert 11 tomorrow who will give me a discussion of how likely it is ,
12 to have geothermal in the State of Texas, State of New 13 Hampshire, State of Vermont, wherever I am, and wherever it 14 will be a reasonable alternative. The allegation you l 15 haven't given proper treatment in the FES that is usually
)
16 charged to a certain alternative. You know exactly what 17 you are dealing with.
- 18 CHAIRMAN ROSENTHAL
- Why can't you come.in in 19 this case and demonstrate that these QA irregularities over 1
20 the course of years were what is normally to be expected of 21 a construction endeavor of this magnitude and that there j 22 was no corporate basis, no basis in fact, for a claim that 23 there was deliberate intent toLflout Commission regulations?
24 MR. DIGNAN: Now you are making me prove'that i 25 there was no basis for a charge, rather than that the C) 1 1
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~-) I charge is not true. That's the difficulty.
2 CHAIRMAN ROSENTHAL: No evidentiary basis.
3 MR. DIGNAN: That's what you are. making we prove 4 now, a negative.
5 JUDGE MOORE: But you-are asking in the basis 6 requirement for an Intervenor to prove a negative on the 7 repudiation.
8 MR. DIGNAN: No. I am asking him to back up an 9 allegation, with a basis that is sufficient.
10 JUDGE MOORE: You mentioned documents. Is that 11 the only basis you can have?
12 MR. DIGNAN: What you can't have is inference, 13 but you can have a basis. Keep in mind the only thing --
14 JUDGE MOORE: An inference is merely a logical 15 conclusion from a previous given state of facts; am I not 16 correct?
17 MR. DIGNAN: All right, your Honor, let me try 18 this one out on you. Let us suppose the next four ,
19 decisions that this board hands down are reversed by the 20 Commission.
21 JUDGE MOORE: Entirely possible.
22 MR. DIGNAN: Should I infer from that a 23 deliberate intent of the appeals board to flout the 24 regulations of the Commission?
25 CHAIRMAN ROSENTHAL: Some people might.
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5 CHAIRMAN ROSENTHAL: All right.
6 Mr. Mizuno. I would like you to, Mr. Mizuno,
- 7 address briefly, and I stress "briefly," the contention of 8 the Intervenors that your appeal should be dismissed as 9 untimely.
t 10 MR. MIZUNO: Understood, Mr. Chairman. I would o 1
l 11 like to reserve two minutes of my time for rebuttal.
)
12 Mr. Chairman, members of the board,-the 13 licensing board's decision admitting Consolidated 14 Intervenors amended contention 2 was in error bas;cally in j 15 two respects: First, the . licensing board improperly found l 16 that the Consolidated Intervenors had provided inadequate I 17 basis for their claim that- the permittee had a policy to 1 .
18 violate or ignore NRC requirements.
19 Second of all, the licensing board also i
I 20 improperly found that the Intervenors had provided an 21 adequate basis for their claim that that policy had not yet 22 been repudiated by the permittee.
t 23 In essence, what we have here, is the licensing
)
24 board permitting a Consolidated Intervenor to challenge the i 25 adequacy of corrective action program, a kind of result CE)
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- 2 in WPPSS. '
3 Turning to the point of whether the Staff's 4 appeal was timely filed, section 2.714-A of the Commission's 5 regulations, state that appeals of requests to intervene l 6 must be appealed within 10 days after service-of the order.
7 Section 2.710 provides that whenever the party has a right 8 to do some act, and I am quoting from the' regulations at 9 this point, "within a prescribed time period, after the 10 service of a notice or other paper upon him or her, and the 11 notice or paper is served by mail, five days shall be added 12 to the prescribed" --
13 CHAIRMAN ROSENTHAL: I am familiar with that.
1 O 14 It was not served upon you by-mail. It was served upon you 15 through the Commission's internal distribution processes;
, 16 and so I would like to know on what basis you construe the 17 five-day provision for service by mail to apply to internal 18 distribution within the Commission.
19 MR. MIZUNO: Because section 2.710 makes no 20 distinction between mail handled by the United States 21 Postal Service versus mail handled by the Commission.'
3 22 JUDGE MOORE: 2.712 that says " mail" means 23 deposit in the United States mail? I might have the 24 section wrong, it might be in 11.
25 MR. MIZUNO: All I see is under section 2.712-C l
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'cox 1 is that service may be made by, among other things, 2 personal delivery, first class mail, certified or 3 registered mail, including air mail, by telegraph or as 4 otherwise authorized by law.
] 5 CHAIRMAN ROSENTHAL: Do you think, Mr. Mizuno, 6 it's a little strange if something is dispatched by Express 7 Mail, you get two days and not five days, but if it's in 1 8 the internal distribution of this Commission, which ,
9 shouldn't take more than a day, you get the full five days.
10 That's rather irrational, isn't it?
- 11 MR. MIZUNO
- No, because the.0ctober.-- first of 12 all, the board's October 30' order was served on the Staff
- 13 on October 31 but, more importantly, the question is, how 14 is the Staff going to dispute time? Clearly, if we don't 15- do it by this document, it-was not served by Express Mail.
16 If the appeal board is now contending that it was not-17 served by mail -- ~
18 CHAIRMAN ROSENTHAL: I am not contending I
19 anything. I am asking you a question. I am asking you on 20 what basis you construe the term " mail" as including, in 1
l 21 addition to the United States mail, an internal 1 22 distribution system within the Commission. I am not making 23 a contention. Your opponent has suggested your appeal is 24 untimely. I am asking you to respond to that.
25 MR. MIZUNO: The Intervenors did not base their O
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29624.0 30 cox I argument upon a question of what " mail" meant. They 4 2 appeared to base their argument on the question of whether i 3 the October 31 memo that was submitted by the licensing 4 board 'a day af ter, was a suf ficient basis. They made no 5 argument about whether 2.710 required that mail, the word 6 " mail" only applied to mail that was delivered by the
- 7 United States Postal Service.
8 CHAIRMAN ROSENTHAL: Without pursuing this any 4
9 further. We ought to get on to the merits. I take it ycor.
10 position basically is that the word " mail," as used in the 11 section in question, applies to the internal distribution
~1 12 system of the Commission. That's basically what it is?
j .
13 MR. MIZUNO: Yes. The reason for that'is there J .
14 has to be a certain way, an absolute certain way of 1
15 computing when the Staff's appeal is due.
] 16 CHAIRMAN ROSENTHAL: .I am going to ask you to 17 take back to your superiors my belief-that there ought to
! 18 be an immediate endeavor made to amend that section to make j 19 that section clear. I don't think, frankly, it's that 20 clear as the section is currently read, or, rather, reads.
21 MR. MIZUNO: Yes. Your views will be i 22 transmitted.
1 23 CHAIRMAN ROSENTHAL: All right. You may go to 24 the merits.
25 MR. MIZUNO: Under the Commission's order in 4
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5 1
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- 1 CLI-8615, it's clear that the Consolidated Intervenors have 2 to allege and provide a sufficient basis for two separate 3 elements. First, that there was a corporate policy.to 4 speed construction by violating or ignoring NRC -
5 requirements; and the second element is that that policy 6 has not yet been " discarded and repudiated" by the 7 permittee.
8 CHAIRMAN ROSENTHAL: How did they demonstrate 9 the second of those two propositions?
10 JUDGE JOHNSON: Can I start on a little bit of 11 an earlier -- how do you get two out of that? I get three. ;
! 12 There has to be a corporate policy to speed construction ,
13 perhaps can still be one. But the next thing is, you have 14 to -- in my opinion, you have to indicate that the policy 15 is to violate Commission regulation. In other words, you 16 have a policy to speed construction by violating Commission i
17 regulations. Surely you can't be hung for a policy to
) 18 speed construction alone. Therefore, you have to have a
} 19 policy to speed construction by violating Commission i
20 regulation; and, thirdly, you must then fail to discard and
- 21 repudiate that policy to violate NRC regulations.
f 22 Doesn't that make sense to you?
l 23 MR. MIZUNO: No, Dr. Johnson. I think the
~
24 crucial thing is that there was a policy to violate or 25 ignore NRC requirements. Whether' they did it to speed
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2 As long as -- the crucial thing here is that 3 they attempted to violate the NRC requirements. That's
~
4 what we are trying to proscribe. We don't want a permittee 5 to violate NRC requirements, for whatever reason.
6 So, therefore, I would say that we should not i 7 consider the question of whether they had to speed 8 construction or not.
9 JUDGE JOHNSON: But the first element, speed i
10 construction, is basically irrelevant. The_f.irst element 11 is policy, corporate policy.
12 MR. MIZUNO: That's correct.
, 13 JUDGE JOHNSON: The second is to violate 14 Commission regulation.
i 15 MR. MIZUNO: That's correct.
16 JUDGE JOHNSON: The third is failure to discard 17 and repudiate. Does that not add up to three?
18 MR. MIZUNO: The Staff has essentially.
19 considered first two together as being part of the same
{
20 element.
21 JUDGE JOHNSON: That's my problem. If someone 22 violates a Commission regulation inadvertently, would you 23 ! say that was a basis for a hearing in this case? I 24 MR. MIZUNO: Absolutely not. This goes to our 1
25 point that mere violations and a mere list of violations by 1 4 l
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29624.0 33 cox 1 the Intervenors, as they have done in their petition to 2 amend their contention, is not sufficient.
3 You have to show a pattern, and that is what 4 they have not done.
5 They have listed deficiencies.
6 JUDGE JOHNSON: I beg your pardon, sir. Did not 7 the Commission say "a policy." Isn't it a policy, or not a 8 policy, and a pattern, first of all, I don't know what a 9 pattern is. But are not -- I do know what a policy is. It 10 doesn't seem to me to be the same thing as a pattern, and I 11 would ask you, do you believe that they are the same thing?
12 MR. MIZUNO: They are not the same at all. The rs 13 point is that the Intervenors here concede that there are U 14 no " smoking guns" that show a policy. Therefore, the only 15 way that you can conclude that there was a policy is to 16 infer it from the information that is provided by the 17 Consolidated Intervenors.
18 CHAIRMAN ROSENTHAL: If you can't infer the 19 policy, then is not the result that an Intervenor never 20 would establish a basis, unless the company was stupid 21 enough to announce, in a newspaper advertisement, that it 22 is our deliberate intent to flout Commission regulations to 23 get this plant built? Now, if you can't draw inferences, 24 how is an Intervenor ever going to establish a basis? Are 25 you saying, seems to me the Applicant is saying, that there CE) !
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s- 1 is just no way in which an Intervenor can put forth a 2 contention that would survive the basis requirement.
i s 3 MR. MIZUNO: I think you have misunderstood the i
'4 Staff's position. Let me make it clearer. We think that 5 an inference is an acceptable way of approving the --
.; 6 proving their point. The point-is that in this case, they 7 have not provided the information from which an inference ,
j 8 could be made. A reasonable inference could be made that 1
! 9 there was a policy to violate NRC requirements so the 10 problem is not whether or not it's acceptable to use i
j 11 inference, the question here is whether it provided the 1
12 basis, the factual basis, whether they have cited documents 13 which one can look at and reasonably infer that there was a
! s j 14 possibility of a corporate policy to violate NRC 15 requirements.
1
- 16 CHAIRMAN ROSENTHAL
- You say that the documents i
17 to which the Intervenors refer just would not permit that 18 inference; is that correct?
j 19 MR. MIZUNO: Yes. We have touched this and 20 discussed this pretty extensively, in our brief, as well as 21 in our past brief and oral argument. I just want to touch 22 on a couple of the big points, i
- 23 First of all, it appears that the main way that I
24 the Intervenors are trying to show a pattern is that there 25 have been criticisms of the Applicant's design construction
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O. 1 and QA program, and that they have gone unanswered by the
- - 2 permittee Applicant.
l 3 That is an acceptable wayz of showing a pattern.
4 The problem is that, in fact, the evidence that is out 5 there shows that that is not the case.
i .
! 6 It appears that, at least as far as the examples 7 that they have cited to, that the Applicants had attempted
! 8 to take corrective action, or,.they felt that corrective l
', 9 action was not necessary, 10 JUDGE MOORE: Why should I pick your" facts over 11 his facts, allegations or claims? ;
12 MR. MIZUNO: Because'of this, they are asserting c
13 that nothing occurre'd. If there is some information there, -
14 which I don't think -- I don't think the Intervenors can 1
! 15 reasonably dispute, that, in fact, there was a response, it 16 so fundamentally undercuts the position that nothing j 17 occurred.
- 18 JUDGE MOORE
- Is what you are arguing to me a 19 factual matter? ,
j 20 MR. MIZUNO: It's a factual matter in the sense --
l 21 JUDGE MOORE: And you want me to accept the 22 f acts that you are propounding now in order to strike down
- 23 his claimed basis?
- 24 MR. MIZUNO
- It's a factual matter in the sense i i
! 25 that the Intervenors have come forth with some information
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k- 1 or have referred the licensing board to specific documents 2 which they say show that there was no response by the 3 Applicants.
4 Yes, and I am asking you to look at those 5 documents and say, yes, there is in f o rma tion in those 6 documents that shows a response. It's so contradictory.
7 JUDGE MOORE: You are asking me to accept your 8 version of the facts now at the admission of the contention 9 stage; are you not?
10 MR. MIZUNO: No. Tha problem is that once you 11 get to that point, I am saying -- I am not asking you to 12 come to an ultimate conclusion. The ultimate conclusion T 13 here.
t 14 JUDGE MOORE: Just enough of a conclusion to say 15 that he is wrong?
16 MR. MIZUNO: That's right.
17 JUDGE MOORE: That's a classic case of deciding 18 the facts in favor of one party. Isn't that the whole 19 function of the next stage once a contention is admitted?
20 MR. MIZUNO: No. What I am -- what-the Staff is 21 asking you to do here is to look at the information that 22 was provided by the Intervenor with regard to the basis 23 that there was -- with regard to the basis that one can 24 infer a corporate policy; and we are saying -- we are not 25 asking you to make an ultimate conclusion about whether
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p 1 there was a policy or not. We are saying, even getting to l
4 2 that point,'let's go to just the basic pleadings stage, in 3 which the Commission requires that a basis be provided.
4 That some information be provided that tends to support l 5 your position; and we are saying that if you look at it, there is simply nothing there.
6 7 CHAIRMAN ROSENTHAL: Let me go back to Allens-8 Creek. In that case, should we have looked at that. report, 9 the Project Independence report, to determine whether, in
{
10 fact, it supported the proposition that a biomass plant 11 might have been a substitute for the Allens Creek facility?
12 We certainly didn't do that.
13 MR. MIZUNO: Yes. Allens Creek is precisely 14 what I am trying to point out here. The Intervenors -- I ,
i i j 15 am sorry, the Staff in that case said that biomass was not
! 16 a viable alternative.
4 17 Here, and in that case, the Intervenors came j 18 forward with a report and said this report says that !
19 biomass alternative is an alternative.
]
- 20 CHAIRMAN ROSENTHAL: Shouldn't we have looked at i
. r !
i 21 the report to see whether that was the fact, because there 22 were those who believed that that Project Independence 23 report didn't support that claim at all, the claim being i
24 that the biomass plant could be a substitute for a large f l
j 25 nuclear generating facility. '
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29624.0 38 i cox l . . MR . MIZUNO: I believe that one has to look, at 2 least to see if what the-Intervenors are claiming a report 3 does, at least basically supports their proposition.
i 4 Otherwise, they could pick up the CFR and say this thing 5 says that biomass is an acceptable alternative. Would that 6 be an acceptable --
i 7 CHAIRMAN ROSENTHAL: Did we do that in Allens 8 Creek? Is there anything in our opinion in Allens Creek to 9 indicate that we looked at Project Independence report to 10 determine whether it supported or might support the 11 Intervenors' claim?
12 MR. MIZUNO: Your Honor, I can see of no other (w
s 13 reasonable or logical alternativo other than to, at least,
~
14 look at the report to sea if it talked about biomass.
15 CHAIRMAN ROSENTHAL: I am asking you if we did 16 that.
17 MR. MIZUNO: You cannot tell from-the words of l
18 the decision. But I submit'to you that if they didn't do 19 it, if they didn't say, I would submit that that is what 20 should be done.
21 Even assuming that the Staff -- sorry, even
' ~
22 assuming if we find that there was a basis for the claim --
23 JUDGE MOORE: Before you go on to repudiation, 24 the appendix attached to the Intervenors' briefs, it is 4
25 your position that that does not establish material from
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3 MR. MIZUNO: This is the appendix they were 4 referring to or appendix to the brief?
5 JUDGE MOORE: Attached to their brief.-
6 MR. MIZUNO: Yes, I don't think that was a -
7 sufficient basis.
8 JUDGE MOORE: On repudiation, is it fair to 9 characterize your brief as suggesting that the Applicant's 10 CPRT program is -- in and of itself -- puts the lie to any 11 notion that there was not repudiation, if there was such a 12 policy?
13 MR. MIZUNO: I would say it was the CPRT in O 14 combination with other concurrent efforts, along with the 15 CPRT. I just want to be clear on that.
16 JUDGE MOORE: How do you get to that conclusion?
17 Are you not drawing an inference from the fact that a 18 corrective action program was undertaken?
19 MR. MI2UNO: There is no inference. They are 20 undertaking -- the CPRT together with the associated 21 efforts conducted by the Applicant.
22 JUDGE MOORE: Yes, it's an inference that that 23 is repudiation. The fact that you undertake a corrective 24 action program doesn't necessarily mean that you repudiate P
25 the prior conduct. You can undertake it.
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29624.0 40 cox 1 As in this instance, when a gun is placed to 2 your head. Am I not correct that the Staff wrote the 3 Applicant and said you will develop a program to fix all of 4 the things that we have-found that are, wrong?
5 MR. MIZUNO: Yes.
6 JUDGE MOORE: Did not the Applicant then develop 7 the CPRT program to do just that?
8 MR. MIZUNO: Yes.
I 9 JUDGE MOORE: Is that a voluntary effort when 10 the Staff said, if you want us to finish reviewing your 11 application, you will do this?
j 12 MR. MIZUNO: Well, the Staff didn't quite put it 13 in those terms. But I think what is more important is that
.O 14 the CPRT and the associated efforts by the Applicants, went 15 far beyond the reach of the specific problems that were i
l 16 found by the Staff's TRT and associated inspection efforts.
1 17 What we are saying is that the effort by the Applicant was i
18 not just simply coming back and saying, yes.
i 19 JUDGE MOORE: Excuse me, counsel, the Staff 20 stated, on September 18, 1984, "you are requested to submit 21 additional information to the NRC in writing,. including a 22 program and schedule for completing a detailed and thorough 23 assessment of the issues identified."
24 Now, does that not carry the language that if 25 you don't do this, we are not going to do anything further j C) !
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. yp. p O: 1 on behalf of your applications?
2 MR. MIZUNO: I don't read it as that. The 3 Applicants could have come back and indicated that they.
4 disagreed with the findings of the. Staff.
.i
? 5' Under the terms of what the-Consolidated 3 6 Intervonorsfare arguing, they could continue to maintain-7 their old path and continue to dispute that problems are i 8 not problems.
j 9 In fact, what'they.did was to-look.':at the 10 problems that were identified by the Staff and come up with 11 a very broad-based program in design, construction and QA.
12 That is entirely contradictory of a concept that there has 13 been no repudiation.
14 I granted that one has to infer that there was-15 repudiation. The Staff submits that given'the broad scope 16 of the program that the Applicants have committed to, that 17 the only reasonable inference is that-there has been '
I 18 repudiation, and there can be no other inferende, 19 reasonable inference.
20 Let me go back -- ~
21 JUDGE JOHNSON: Is an inference on one side as 22 good as an inference on the other side? In other words,-
23 there are two or three prongs of the criteria set down by 24 the Commission under which such a contention would be
' 25 litigated in a construction permit extension case, is it O .
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\/ 1 fair to infer that there was a policy to violate NRC 2 regulations, is it not equally fair, by looking at the 3 evidence, to infer that there has been discard and 4 repudiation?
5 MR. MIZUNO: Your Honor, my time is running out.
6 But let me answer your question.
7 JUDGE JOHNSON: Please answer my question. You 8 will get your time.
9 MR. MIZUNO: Okay. It is always fair to make 10 inferences. The Staff is not arguing about whether it is 11 proper or not proper to make an inference. What we are 12 arguing about is whether there is information that supports
'm 13 that reasonable inference.
N 14 That is the basis requirement and that is what 15 the Consolidated Intervenors have not done. They have not 16 provided that factual information from which one could make 17 a reasonable inference. Did I answer your question?
18 JUDGE JOHNSON: No, but that's all right.
19 MR. MIZUNO: In sum, the Staff believes that the 20 Applicants -- I am sorry, the Consolidated Intervenors 21 simply have not provided a basis for either of their claims 22 that there was a policy to violate NRC requirements or that 23 that policy has been repudiated.
24 For these reasons, the appeal board should 25 reverse the licensing board's decision to admit this
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cox I amended contention and given the Staff's earlier position,-
2 that was filed with the appeal board, that there is no ,
i 3 other contention before the appeal board at this time,
~4 given-the fact that the Consolidated Intervenors have 5 amended, effectively amended.their original contention, the 6' proceeding'should be terminated.
7 CHAIRMAN ROSENTHAL: All right. We will take-a I 8 10-minute recess, and we will then hear from counsel for 9 the Consolidated Intervenors.
10 (Recess.)
s 11 CHAIRMAN ROSENTHAL: Mr. Roisman.
12 MR. ROISMAN: Mr.-Chairman, members of the board.
!l 4
13 This case really begins with a rather thin pleading. The I
14 Applicants filed a letter under oath with the Nuclear j 15 Regulatory Commission a year ago today. That' letter said 1
16 they should get an extension of their construction permit.
- 17 The Staff, shortly thereafter, filed an equally thin I
18 document that purported to grant that permission, based '
!. 19 upon an analysis of .the Applicant's application. Neither 20 the application, nor the Staff's analysis, addressed the
- 21 questions that are before this boardftoday, or the 22 underlying merits.
23 JUDGE JOHNSON: Is thatnunusual, in your mind, 24 Mr. Roisman, were not the questions we are talking about l 25 today primarily the decision of a Commission that.was r
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- 2 MR. ROISMAN: The underlying issues that you, 3 particularly, Dr. Johnson, have been talking about, the ,
4 so-called " merits" of the position that the Intervenors 5 were taking, were presented two days later on the 31st of 6 January in fair and substantial detail.
7 Later than the application, not later than the 8 rebuttal, not later than the Staff's analysis, and not 9 later than the Staff's conclusions. The point is, this 10 hearing, unlike the CPA hearings which have traditionally 11 been in front of this agency, is occurring after the CPA 4
12 has been approved.
13 So what is really on the table is an analysis of 14 the correctness of that position. -That's not to say that 15: the Applicants or the Staff are inherently foreclosed from
- 16 going beyond the four corners of what was there.
17 What it is to say is that we are dealing here 18 with a situation in which the issues that are going to be 19 litigated have never had the Staff or the Applicant take a 1
20 position on them.
21 You have had to ask the Staff, in questions when 22 Mr. Mizuno was in front of you, whether or not there was an 23 inference to be drawn that this utility has' repudiated any 24 past practices that may have caused the delay which has 25 necessitated the extension of time.
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^)/ Isn't that curious, why hasn't the utility 1
2 simply said it. Why have they not announced that they 3 repudiate and discard any policies which they engaged in 4 which would have been engaged in for the purpose of 5 speeding up the construction of the plant by violating 6 Commission's regulations.
7 CHAIRMAN ROSENTHAL: Because their position is, 8 Mr. Roisman, that they had never engaged in the policies 9 that you are now suggesting they should repudiate. I 10 wouldn't repudiate a policy that I claimed had never 11 existed.
12 MR. ROISMAN: Then I take it, Mr. Chairman, that g 13 in a case such as this, the basis for the second order,
'u.)
14 under Dr. Johnson's view, the third of the tests, namely 15 repudiation, is met by admission. This utility does not 16 repudiate, because it hasn't yet accepted the fact that it 17 did anything wrong. We couldn't have any stronger basis 18 than that for purposes of, at least, proving that that part 19 of the basis test is met, conceding that when we get to 20 hearing, the utility will never get hung on that failure 21 unless we establish at the outset that the cause for the 22 delay was their deliberate decision to violate Commission 23 regulations.
24 CHAIRMAN ROSENTHAL: Isn't there some 25 responsibilities on the part of your client to assert a
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'/ 1 basis for your client's contention that the alleged policy 2 has never been repudiated? In other words, in order to 3 satisfy the Commission's burden, do you not have to assert 4 both that there was a deliberate policy to flout Commission 5 regulations in order to get this plant built, and that that 6 policy has not been discarded or repudiated?
7 MR. ROISMAN: Absolutely.
8 CHAIRMAN ROSENTHAL: So it's your burden, under 9 the Commission's decision, not the utility's burden, to 10 present at this stage, a basis for the rejection of that 11 two-pronged assertion.
12 MR. ROISMAN: What I am saying is that as a
(~N 13 matter of pleading, when you have a utility which dentes V
14 prong 1 or prongs 1 and 2, and, therefore, refuses to 15 repudiate, we meet the basis test. We have gone beyond 16 that, but we meet the basis test simply by pointing out the 17 fact, which we have already done, in our pleadings, that 18 they have never repudiated anything.
19 CHAIRMAN ROSENTHAL: How could they repudiate 20 something which they insist never existed?
21 MR. ROISMAN: How do we prove beyond showing we 22 didn't repudiate what they say existed any more basis than 23 the repudiation of that? Obviously we are not going to 24 find anything in the CPRT which is going to allow us to 25 draw the inference that they have repudiated their past (1) l ACE-FEDERAL REPORTERS, INC.
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\ 1 conduct, since they are going to continue to say the CPRT.
2 doesn't represent such a repudiation because we had nothing 3 to repudiate.
4 What I am saying is, that as a legal matter, all-5 the basis that an Intervenor in a case like this one --
6 this may be the only one -- all of Mr. Dignan's talk about 7 the parade-of horrors, I will wait to see case 2 before I 8 worry about it.
9 Right now, this looks like case 1 and only, as 10 far as I am concerned. The Commission even referred to 11 this as a once-in-a-lifetime experience to'begin with.
12 CHAIRMAN ROSENTHAL: Supposing that the chief gn 13 executive officer of a company had come out with a V) 14 statement to the following effect: One, we stoutly deny 15 that there was ever a policy to flout Commission 16 regulations. Whatever quality assurance errors might have 17 occurred had occurred because you will have such errors in 18 the construction of a large project such as this.- Two, 19 while we stoutly deny that there was any such policy, we go 20 on to say that had there been such a policy, it is now 21 totally repudiated and discarded. Signed chief executive 22 officer.
23 Now, do I take it that if they had done that 24 this would be a different case, in your view? You seem to 25 rely on the fact that they hadn't formally repudiated this O
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2 MR. ROISMAN: It would be different in this 3 respect. We give you three reasons why they have not 4 repudiated. Reason one is they haven't said they repudiate 5 it. Reason two is the key people who were responsible for 6 the QA/QC breakdown are still there performing much the 7 same functions.
8 Number three, the CPRT, when substantively 9 reviewed, indicates that it does not represent a 10 repudiation of the policy, but, in fact, is nothing more 11 than an attempt to justify the policy; and, I might add, 12 that is further supported by counsel for the utility who r 13 tells us in another pleading, which we have quoted in our (3
m) 14 brief, that the CPRT is not even of record, it's not 15 governed by Appendix B, and it's a litigation tool. It's 16 being used by the lawyers to figure out a way to deal with 17 the allegations, not a repair program, not a "We have got a 18 problem."
19 Now, if they had made the statement, 20 Mr. Chairman, that you just articulated, then point one of 21 that three-part basis wouldn't be there. They would at 22 least have that to go on. We would have to look and see, 23 did we have a basis to believe t?lat that statement was, 24 itself, not valid? I don't think our case would be 25 materially weaker, but I don't want to leave you with the CZ)
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(._) 1 impression that I think that it is insignificant that this 2 utility has consistently refused and that its ally, the 3 Staff in this case, has to infer, from the things that it 4 is doing, that it is admitting its wrongdoing in trying to 5 make amendments.
6 CHAIRMAN ROSENTHAL: Mr. Dignan relies on the 7 fact that as appeal boards have noted in the past, there 8 are going to be OA irregularities in the construction of a 9 nuclear power plant; the nature of the beast.
10 Now, what is it that you have served up that 11 might support an inference that in this instance the OA 12 irregularities were something more than just what is 13 expected in the construction of a large nuclear power plant?
14 We have seen these irregula ri ties in virtually every one of 15 these cases. Mr. Dignan said, that is all that is involved 16 here.
17 Now, what have you offered which would permit 18 the d rawing of an inference that in this case, at least,
- 19 the QA irregularities may have been something more than 20 what is normally to be expected, albeit regrettably, in the 21 construction of a nuclear power plant.
22 MR. ROISMAN: Mr. Chairman, would you indulge me 23 for a one-minute diversion, as a prelude to answering that 24 question.
25 CHAIRMAN ROSENTHAL: As long as you get around n
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29624.0 50 cox x 1 to the answer.
! 2 MR. ROISMAN: You will get the answer, I promise.
3 The test, the basis test, I think, is worth examining again, 1
2 4 and I was -- I listened with care to the utility and to the i
j 5 Staff's attempt to explain this board's decisions in Allens 6 Creek and Grand Gulf.
7 I would merely like to point the board's 8 attention, as I am sure it is already directed, to page 548 9 of 11 NRC, wherein ALAB-590, the Allens Creek decision, the i 10 board looked specifically, first, back at Grand Gulf, then i 11 at the situation in front of it, and very significantly 12 says, don't go to the question of the facts.
13 It had precisely the kind of challenge that you 14 are hearing here today. The Applicant comes in, in one of l
15 those cases, I believe in Grand Gulf, and says, there are I 16 no geothermal resources in this state; and the Intervenor l 17 says, oh, yes, there are. And the Applicant says, I have i
18 got evidence that says there aren't any here. The board 19 says, that is not the issue in this case. The issue is, i
- 20 have you given us a reason to allow you to go further?
! i i 21 In fact, at the end of that page, in talking
! 22 about Mr. Potoft, who is the Intervenor in the Allens Creek l l
23 case, they say, more specifically, all that was required of
{ 24 Mr. Potoft on the petition level was to state his reasons, l l
j 25 i.e., the basis, for his contention that biomass
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1 alternatives should receive additional considerations.
2 That's what we are looking at. That is the test. There is i , 3 no other test that this agency has laid down. We.have met 4 that test.
, 5 The reasons runneth over for why we believe that 6 the utility has not repudiated its past conduct and that l
7 its past conduct represented an attempt by the utility to 8 violate the Commission's regulations and thereby speed up i 9 construction.
10 I submit that would be sufficient under the test.
! 11 Now, if I may, I will answer the chairman's
{ 12 question and go specifically to that.
13 Number one, we have a finding, in SSER-11, which 14 is a staff document, not mentioned in the Staff's pleading, 15 I might add, which is not an insignificant document and i 16 it's not an insignificant finding.
17 What the Staff concluded in SSER-11, and that is
{
18 particularly relevant here, the pattern -- I am quoting now, 19 from page P-35, the pattern of failures by OA and OC 20 personnel to detect a document deficiency, suggests an 21 ineffective B&R and TUGCO inspection system.
) 22 You will note it's not only Brown & Root. I 23 must say I was stunned to hear a representative of a i
j 24 nuclear utility wash his hands of the contractor who is i 25 building the nuclear plant they are trying to license.
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> 1 CHAIRMAN ROSENTHAL: He didn't wash his hands of 2 it; he suggested you can't attribute deliberate conduct to 3 the utility management on the basis of what the contractor 4 might have done. I don't know why that isn't right. It 5 may be ultimately the utility is responsible for the acts 6 of its contractor, but you can't really, can you, go over 7 the bridge from the contractor to the question as to 8 whether the utility management had embarked upon a 9 deliberate course of flouting Commission regulations 10 without something more.
11 MR. ROISMAN: I may be wrong, and I am willing 12 to stand corrected if I am, since this issue has come up 13 only at oral argument, and not in the briefs, but I believe 14 that the Commission's decision on the criminal conduct in 15 Surry laid that issue to rest. I believe that they held 16 that the utility would be held responsible, and it would be 17 fined, and it would be deemed to be its act, when its 18 contractor failed to fully disclose it.
19 JUDGE JOHNSON: That's not the same thing.
20 CHAIRMAN ROSENTHAL: That's not the same thing, 21 is it, as to whether this company's management had itself a 22 policy of deliberately flouting Commission regulations?
23 The fact that the management might be held criminally or 24 otherwise responsible for the acts of its agents doesn't 25 seem to me -- I could be wrong -- to bear on the question O
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29624.0 53 cox s 1 as to whether you can impute an intention on the part of 2 the corporate management to violate Commission regulations 3 from the fact that some contractor violated them. That 4 seems to me to be two separate issues.
5 JUDGE JOHNSON: In a similar vein, Mr. Roisman, 6 if I may get a word in here, it is very well-known that 7 further down the level, it is routine for craftsmen who 8 work for contractors or subcontractors, who work for 9 contractors who subsequently work for AEs who subsequently '
10 work for the utility, to delay the project at the end so 11 that they will continue to have a job.
12 Would you attribute that to a corporate policy 13 represented by the craf tsmen who are delaying the job so 14 that they will continue to be employed for a lengthy time?
15 MR. ROISMAN: Doctor, with all due respect, I 16 know of no evidence to support that rather extraordinary 17 charge. I have heard it frequently from utilities without 18 any evidence. To the best of my knowledge, craftspeople 19 who work in this industry, while they make many mistakes, 20 have not been proven guilty of that one. At least on their 21 behalf, a few of whom I have represented in my time, I 22 would like to strongly stato my resentment that you would 23 make that statement here.
24 That is an incorrect, false statement, and I am 25 aware of no facts to support it. In fact, in most O
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(~) I whistleblower cases, Doctor, you may know that is precisely 2 the defense that has been raised by the utility on the 3 merits, and has tended to lose those cases or settle them 4 away.
5 As to the more basic question, in this case, we 6 are not talking about construction, we are talking about 7 OA/0C, whose responsibility lies exclusively with the 8 management of the owner of the plant, and the Staff, in its 9 statement that I quoted, refers both to Brown & Root and 10 TtucO's inspection system.
11 It was a TUGCO employee, Mr. Tolson, who ran the 12 OA/0C program. There were then two independent (x 13 contractors' employees, Mr. Brant, who was working for
(.) 14 EBASCO on assignment to TUGCO, and Mr. Purdy, who was at 15 the time working for Brown & Root who were the persons 16 carrying out that 0A/0C program. Incidentally, those are 17 two persons, among others, who are still at the plant and 18 still working in similar capacities.
19 JUDGE JOHNSON: I would like to ask an 20 additional question, Mr. Roisman. You have provided us i
21 with a large number of documents as part of the basis for 22 the contention we are discussing here. Is it permissible, 23 in your view, for this board to review those documents to 24 determine whether they provide the basis for your 25 contention or not?
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_) 1 MR. ROISMAN: We submitted the documents to go 2 beyond the basis requirement to show that in addition to a 3 basis, we even had evidence. It's certainly permissible 4 for the board to look at those. I am sure that the board 5 will find there is evidence that goes both ways in those 6 documents. I don't think the board will find that any of 7 the documents failed to contain evidence that supports our 8 position, but it's not -- I wouldn't tell the board that it 9 is impermissible to go and look at them. I don't think if 10 you look at them and were to conclude that on the whole the 11 document intended to support the position of the utility or i 12 the Staff and not the position of the Intervenor, that that 13 would in any way undercut our belief that we have a basis
~)
~
14 for our contentions.
15 JUDGE JOHNSON: That's what I don't understand.
16 If the documents are submitted in support of your claim of 17 basis, or to provide your basis, then they must be 18 meaningful in some way. In other words, they must have 19 information in them to provide that basis.
20 But I don't quite understand your argument that 21 that information can only act in one direction. In other 22 words, if you look at those documents, it would seem quite 23 possible to arrive at the other conclusion, and I would 24 think that this board -- and that that conclusion would be 25 that there was no deliberate policy to violate regulation, O
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k-- 1 which then would undercut or eliminate your claim of basis.
2 It would seem to me that those documents would serve both 3 to provide or to negate your claim of basis.
4 In fact, in order to get this contention heard 5 in a hearing, which is really what we are here for, it 6 would seem to me that the first -- you have to satisfy the 7 three prongs of the Commission's new balance, and one of 8 those prongs is the policy. And you submit a document to 9 support your allegation that there is such a policy, but it 10 only seems fair to me that those documents can prove the 4
11 negative of that.
12 MR. ROISMAN: Right. I think what you have done, i /~T 13 Doctor, is really put your finger on the difference between V
14 what I believe is the issue, when we are at this stage, and
- 15 what would be the issue were this a hearing now, and those 16 documents ware our evidence of the allegations that we have 17 made.
i 18 At this stage, if the document -- I am not ;
i j 19 agreeing with the premise, but let's, for argument 's sake ,
i 20 accept the premise that I must go into the document and
, 21 find some evidence in that document that shows that my
- basis is valid on the merits, even though I might find in 23 that document a statement that supports it, and there is 24 another statement, or maybe five statements that rebut it; 25 that would not be a reason for this board, at this stage in C) 4 ACE-FEDERAL REPORTERS, INC.
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- 1 the proceeding, to say that we do not have a basis for the j 2 contention. The basis consists of the statements that 3 support us, if we use the working premise, i 4 You want to decide the merits. If you want to 1
5 decide the merits, I want the chance to complete my 6 evidentiary presentation of-those merits, including maybe 7 calling some of the authors of these documents to better-8 understand what the author meant; or, getting some of the
- 9 underlying documentation that was used in order for the 10 document to contain any of the statements it contains, 11 those that may support us or thosp that may not support us.
j 12 JUDGE JOHNSON: I thought the merit here was 13 whether, for some reason, the construction permit extension j 14 should be issued, and what we are talking about right now i
15 is a very narrow set of constraihts established by the l
- 16 Commission in 8615, under which they said such a question i
! 17 may be taken to a hearing.
18 In other words, in order for this thing to go to
! 19 a hearing, for the contention to be acceptable, even, and i 20 this is what the contention -- the Commission was talking i
21 about, is the contention acceptable, there have to be three l
l 22 conditions met. And it seems to me that this established --
23 that the papers you presented, as your basis, have got to i 24 establish to us, or, in our judgment, that these three 4
l 25 conditions do exist, before we can accept the contention.
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4 29624.0 58 i COX 1 MR. ROISMAN: ~ I think we have fundamentally
- 2 disagreed about that premise. That's right, what you are 1 3 calling conditions, I would call allegations.
4 What I believe this board has required us to do 5 is to specify a basis for the allegation, that is, give the i 6 reason for the allegation. What you seem to be saylig is, l 7 no, you must go further. You must actually establish the 8 validity of the allegation before you can get a hearing on ;
l 9 the CPA extension request. We just really disagree about l 10 whether we have to go that far.
11 JUDGE JOHNSON: Let me go back one step.
l 12 MR. ROISMAN: I think we have gone part way 13 toward that. I am not going to concede, even if you were 14 to read all the documents, and look at the totality of the i
15 case, and give the documents that deserve the weight I i j 16 think they deserve their proper weight, that you would not 17 have met your condition test, but I don'.t agree that we 1
} 18 have to meet that test.
19 JUDGE JOHNSON: I took issue with something you i 20 said a few minutes ago. And now -- but your contention is 21 that this utility had a corporate po. icy to. violate NRC l 22 regulations. I believe that what you are saying now is 23 that this contention could go to hearing with no more i
! 24 substantiation than your saying so, than your client saying i
25 so.
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\-) 1 In other words, you are saying that all of these 2 documents, we submitted them, but they are not really 3 relevant, and you can't use them except to back up what we 4 have said. Therefore, what you are saying is that my --
5 your statement, your client's statement that the Commission 6 -- that this utility had a corporate policy to violate 7 Commission regulations, and have not repudiated or 8 discarded that policy, that is all that is necessary. You 9 said it, therefore, we go to hearing; and all of this i
10 documentation can be read to support that, but not to 11 negate that.
12 MR. ROISMAN: Somewhere in between that. It 13 wouldn't be enough for us to state it. We would have to 14 give a basis. What you and I are disagreeing about is 15 whether the basis has to be evidence that proves the point, 16 or, rather, some reason to believe.
17 JUDGE JOHNSON: We don't have any evidence that 18 it disproves the point. You are saying it can't be, I 19 think.
20 MR. ROISMAN: I am saying that you cannot prove 21 -- you cannot use evidence as the standard, and what I 22 think this board has said, and what I think it was saying 23 in that section I quoted from Allens Creek is, it has to l i
24 have some reason to it. If we showed up here and simply !
25 made the statement that you stated and had nothing --
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29624.0 60 cox J 1 CHAIRMAN ROSENTHAL: Let's see if we can't get 2 this down to a more specific basis. What are you saying is 3 the minimum amount that you would have to advance in order 4 to meet the basis requirement. Now, we are starting out 5 with the fact, nobody challenges this, that there were QA i
6 irregularities. There way be disagreeraent as to how many, 7 but it's agreed that there were some.
8 Now, the question here is what do you have to 9 assert, and with what degree of basis, in order to 10 initially meet the Commission's requirement that the 11 irregularities be the result of a deliberate policy to i
12 flout Commission regulations. What did you have to otfer, 13
(-}
V because Mr. Dignan tells us that if what you offered is 14 enough, then any case where there is a demonstration of 15 aqme construction irregularities, and there will be in 16 every case, an Intervenor could obtain a hearing. Was he i
17 right about that -- and this really hinges upon what you 18 tell me, and I want you to be extremely specific about this.
19 What is the minimum amount you have to come forward with?
20 MR. ROISMAN: First of 'all, we did not merely 21 cite the errors.
22 The first thing I started with, which is SSER 11, 23 we have a pattern of errors, which the Staff in that same 24 document on the same page refers to as, challenges the 25 adequacy of the CO inspection program on a systemwide basis; o
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! I prong one, not just errors but a pattern of errors 1that 2 challenge the adequacy on a systemwide basis.
3 CHAIRMAN ROSENTHAL: I don't.know what you mean 4 by a pattern. A pattern of errors'is just a number of i 5 errors over a number of time?
6 MR. ROISMAN: No.
i j 7 CHAIRMAN ROSENTHAL: What does " pattern" means?
8 MR. ROISMAN: " Pattern" is they show up in f 9 certain kinds of repeated problems, repeated types of
- l
) 10 problems.
I 11 CHAIRMAN ROSENTHAL: All right.
j i 12 MR. ROISMAN: Secondly, the pattern in this case, t
13 the Staff goes on and says, coupled with past problems in l
3 l 14 document control, and then they list some other past
- 15 problems. All right, that is part 1, I am not saying that
! 16 that is all we have got.
) 17 CHAIRMAN ROSENTHAL: I am not asking you is that I
18 enough. I am talking now about what you may or may not 19 have. What I tried to get at is what your view is ,,
i 20 respecting what needs to be advanced in order to provide a 21 sufficient basis in this area.
I 22 MR. ROISMAN: I think if we showed you repeated 23 problems or some indication that there had been~ repeated
! 24 problems in the same area, that that would be a minimum i 25 that would meet the test for basis from which the inference C:) l i
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29624.0 62 cox 1 could be drawn. We do not rely only on that.
2 Very importantly --
3 CHAIRMAN ROSENTHAL: All right. But that would i
4 be enough in your view?
5 MR. ROISMAN: That's right.
6 CHAIRMAN ROSENTHAL: That would be enough?
7 MR. ROISMAN: That's right.
8 JUDGE JOHNSON: Wait a minute, now, you are 9 saying repeated problems in the same area is sufficient to 10 prove or communicate a corporate policy; is that what you ,
11 said?
12 MR. ROISMAN: Yes.
( 13 JUDGE JOHNSON: Corporate policy has got to be 14 conveyed, doesn't it?
15 MR. ROISMAN: I am reminded of Richard III:
16 Don't tell anybody to kill the children in the tower, but 17 we all knew what he had in mind, and when they got killed, 18 he got very upset.
19 JUDGE JOHNSON: I am no longer a member of the 20 board.
21 MR. ROISMAN: No, but it does have precedential 22 value.
23 JUDGE JOHNSON: That's right. What I want to ,
- 1 24 know is a policy -- you are saying that there is a 1 j 25 corporate policy, and I would like to know, one, what you
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k) m 1 think that policy was, and how it was conveyed, and a 2 little bit more information about that policy.
3 Was it policy to violate every single NRC 4 regulation?
5 MR. ROISMAN: No. The policy was to get this 6 plant built on time and not to let the regulations get in 7 the way.
8 My second point, which is the one that is laid 9 out in the pleading that we attached to our brief, and I 10 apologize for the lack of pagination on there, but starting 11 on page 3, where we begin with the management analysis 12 company.
13 1978, MAC report, indicates the following. It O
\_/
14 says the present system of expediting field changes by 15 referring design changes to the original design 16 organization for approval after the fact does not meet the i 17 intent of 10 CPR 50 Appendix B, nor of ANSI 45.2, .2.11.
18 JUDGE JOHNSON: I have questions on what you 19 have just said. First of all, does that particular MAC 20 report havo Appendix A or Appendix B on it? I have got MAC 21 reports in some of your filings, that I can't identify the l
22 dates on.
23 MR. ROISMAN: I am sorry, my reference here 24 doesn't tell me that either. I can give you that 25 information by letter after the fact, if you want it.
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1 JUDGE JOHNSON: That would be helpful.
.i 2 MR. ROISMAN: Okay.
3 JUDGE JOHNSON: But there are other statements 4 mado in that MAC report, are there not?
5 MR. ROISMAN: Oh, yes. !
l I 6 JUDGE JOHNSON: Are not many of those statements !
I 7 supportive of the quality assurance program of the 1 8 Applicant?
]
9 MR. ROISMAN: Sure, yes.
l 10 MR. ROISMAN: Does this reflect, and do not 11 quality assurance programs, in and of themselves, represent, 1
j 12 one, delay in completing construction and, two, conformance 13 within NRC regulations?
14 MR. ROISMAN: Yes.
15 JUDGE JOHNSON: You are saying the corporate l
. 16 policy, then, was to violate Commission regulations with l 17 respect to a particular part of th'e construction, but not l
1 18 to violate it in some other particular parts; is that right?
19 MR. ROISMAN: Yes, I think if you had~no OA l
l 20 program you would probably realize you wouldn't get away i
21 with that.
22 JUDGE JOHNSON: The MAC report, if you need the 23 entire thing, isn't it supportive of most aspects of the OA i
! 24 program?
25 MR. ROISMAN: Well, this particular aspect of. i
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cox 1 the OA program turns out to have resulted in the plant 2 having to do what they now 'say is a virtually 100 percent 3 reinspection of the design work of the program. I consider j 4 that a fairly fundamental flaw. I don't say that this 5 company had to violate everything. This particular one is 6 in here because it is illustrative of how you get specd.
7 One of the great slowdowns in these construction 8 facilities is to wait on the design chango to be approved j 9 by the designer, before construction personnel are allowed
} 10 to go ahead.
11 In '78, the company is told, gee, you shouldn't l
r 12 do that.
I 13 Then, the company is told, in an INPO-approved j 14 study in 1982, you shouldn't do that.
i 15 Then in 1985 the Staff concludes in SSER-ll, you i
j 16 shouldn't do that. This company kept doing it.
I j 17 It is more than a reasonable inference to draw
)
18 from that that the reason they insisted on continuing to do 19 it in the face of so much external criticism was that they i 20 were not willing to slow the plant down. ;
21 They thought, by what Mr. Dignan has called i 22 poncil whipping, I thought it was pistol whipping at first I 23 when he mentioned it. Whatever it is, it is not okay. If 24 overy other plant in the nuclear system is doing it, then' j_ 25 they deserve to got equally criticized. It doesn't make it
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29624.0 66 cox 1 all right. Every criminal brought before every bar of 2 justice will give you a line of excuses for why they did 3 what they did, and usually it's everybody is doing it, I 4 had to do it, I didn't know. Now, I am telling you, your 5 Honor, that I repudiate it. We don't even have that.
6 JUDGE JOHNSON: I hate to interrupt such 7 eloquence, but let me get back to the MAC statement that 8 you made. Doesn't that statement, and I can't remember it 9 all, but doesn't it say that there is delay in reviewing 10 plant field run changes, that they are not contemporaneous.
11 In other words, it's not that the reviews are not being 12 done, but they are being delayed because they are not --
13 they are being stacked up.
14 MR. ROISMAN: That's right. The words are --
15 the design engineers' comments may be received after the 16 specific construction work is complete, resulting in 17 possible loss of design integrity, undue pressure on the 18 designer to justify what has been done, loss of designer 19 responsibility, or possible extensive repairs, yes. It i
20 says all of those.
21 JUDGE JOHNSON: Which does mean, however, that 22 these things are, in fact, going to be reviewed.
23 MR. ROISMAN: That's right.
24 JUDGE JOHNSON: In fact, they may have to be 25 ripped out after the fact.
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29624.0 67 cox 1 MR. ROISf1AN: That's right.
2 JUDGE JOHNSON: We are not neglecting them 3 entirely, as you suggest; we are talking about criminals.
4 I can't equate what you are talking about here 5 with criminal acts or even deliberate violation of NRC 6 regulation. It is maybe not the best way to run it, maybe 7 it doesn't meet the precise intent of Appendix B in this 8 area, but I, frankly, don't see that as a corporate policy 9 to violate NRC regulations.
10 JUDGE MOORE: Mr. Roisman, may I switch tracks 11 for a moment.
12 MR. ROISMAN: Excuse me, Judge Moore, if I just 13 may, I made Mr. Rosenthal a promise. I don't want to 14 renege on the promise. I believe that.the coupling of the 15 patterns of violations with the patterns of ignored 16 criticisms -- I don't take a lot of stock in the Staff's 17 view that it's not ignored if they get up and say, you are 18 wrong, and keep saying you are wrong. When we use ignore, 19 we may disregard the substantive merit of the position, 20 which ultimately, as yott know, they have had to agree with.
21 Those two together, Mr. Chairman, form what we
- 22 say is more than adequate basis to draw the inference of a 23 corporate policy. There are other examples that we lay out.
24 CilAIRMAN ROSENTilAL: Then the explanation, I 25 take it, in your view of all of these things that O
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29624.0 68 cox 1 Dr. Johnson has been raising, would be merit issues for j 2 trial, which would get into what is the significance of 3 what the Applicant did here or the Applicant did there.
4 MR. ROISMAN: Correct. Yes, that is correct.
5 CHAIRMAN ROSENTHAL: You would say then, for the '
6 threshold, all that is necessary for you to point to -- I r
7 just want to make certain I am clear of your poniti.on -- is, ,
8 one, the fact that there were a significant number of OA i
j 9 violations coupled with the fact that even when some of i 10 these irregularities were called to their attention, that .;
- 11 they did not, at that point, embark upon some different 12 course.
f ;
13 MR. ROISMAN: And the ultimate that those -
14 concerns were validated, in other words, let's say that
- 15 after three times being told you are doing the design 16 change wrong, they had finally been told at the end, it's l; 17 okay. You really did do it all right. All those three
]
! 18 guys were wrong. We wouldn't be in a good position. The 19 fact they are doing a 100 percent reinspection, as Judge
! 20 Moore pointed out, under the whip of the Staff, goes a long I
i 21 way towards substantiating our position. 1 l
22 CHAIRMAN ROSENTHAL: What about on repudiation?
23 What do you have to allege on that?
l 24 MR. ROISMAN: Can I go on? Then I will answer 25 yours.
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29624.0 6'9 Cox 1 JUDGE MOORE: Yes.
2 MR. ROISMAN: On the question of repudiation,
, 3 there are really three points. ,
4 One, some of the people who were responsible for 5 these OA/0C breakdowns, noticeably, but not exclusively, 6 Messrs. Brant and Purdy, are still there. 'l 4
7 The Commission said --
8 JUDGE MOORE: MN. Roisman, the Staff says there
. 9 is no' basis for that claim on your part because what you 10 point to to substantiate that doesn't say that, the 11 interrogatories, according to the Staff, of answers from 12 the Applicant to you.
) -
13 MR. ROISMAN: What the Staff would like to do is 14 to say that because the interrogatory did not fully l 15 explicate the job descriptions of Messrs. Brant and Purdy, i
{ 16 that the' fact that they still remain at the plant in jobs t
17 that are at levels -- at the second or the third level down 18 from their counsel, means that we don't have any basis for 19 the claim.
20 I concede to you we did not give you all the 21 evidence that will show you exactly what job they are doing.
22 I didn't show you the nonconformance reports that Mr. Brant ,
T 23 is processing that are being produced by the CPRT in which ,
24 he is deciding whether something has safety significance or l 25 not. So I didn't fit them- in to that extent. But these r
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(-). 1 were senior people; they continued to be employed by the 2 plant. If you look at the answer to the discovery, you 3 will see that they continue to have titles -- these are 4 janitors now.
5 CHAIRMAN ROSENTHAL: Your time is rapidly 6 running out. I know Mr. Moore has some more questions.
7 Let's see if we can answer these questions a little more 8 concisely.
9 MR. ROISMAN: All right. Secondly, the CPRT 10 itself is not a substantive program. It's the only reason 11 given by this utility why it wants more time: engage-the 12 CPRT. By their counsel's own admission the CPRT is not 13 designed as litigation strategy --
O 14 JUDGE MOORE: You haven't pointed that out 15 anywhere in any of the matters before us, have you?
16 MR. ROISMAN: No, I have. I have cited you to 17 the statement made by their counsel, Mr. Gad, in a 18 prehearing argument -- well, now, I am not putting my 19 finger on it. I don't want to lose time; I have cited you 20 to Mr. Gad's statement. It's possible we-did.
21 And we did incorporate by reference in here, our 22 response to your request for comments on 8615, and Mr. Gad's 23 -- the actual quote from Mr. Gad may be in.
24 CHAIRMAN ROSENTHAL: What is the third reason?
25 MR. ROISMAN: The third reason is when you do an O
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1 analysis of the'CPRT itself, you see the CPRT is continuing l l
2 a number of the problems which were originally the cause of I 3 these delays in the first place, like no Appendix B 4 compliance with that particular plan, like the lack of 5 independence, so that the same people who run the plant are 6 now also taking a major role in this.
- 7 JUDGE MOORE: Do you put any significance in the
+ 8 fact that the Commission used the words " discard" and 9 " repudiate" in 86157 -
10 MR. ROISMAN: I do. I think particularly when i 11 we go back and look at TMI, the " discard" means to get rid 12 of. But " repudiate" is a public statement. I think in TMI, l 13 when the Commission finally addressed the management l 14 question, as it did in TMI, they felt it was important that 15 there was a certain mea culpa. That's a way of testing 16 these -nternals that we don't really have. We are not 17 going to be able to open up the heart of any one of these 18 people and look inside of it.
I 19 A public statement that says, okay, I done wrong, l 20 is not insignificant. So I think they are two different 21 things.
22 JUDGE MOORE: Do you agree with the Applicant's 23 position that the Commission's most recent decision in 24 CLI-8615 does not impact the Commission's prior WPPSS 25 decision in CLI-8229?
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29624.0 72 cox 1 MR. ROISMAN: I think it fills gaps. I mean,.
2 they didn't reverse anything that they sai6 in there; I 3 don't contend that.
4 But they, by their own statement, and you, when 5 you sent thic up to be certified in the first place, I 6 thought made very clear that there is a gap. What do you 7 do in this fact situation?
- 8 So it's more than a gloss, it's an important 1 9 extension.
10 Frankly, the Commission finally, moving all the 11 way towards adopting what this board had laid out, I think 12 it was in ALAB-722, was that you really have two ways of a
c.s j -
13 getting a construction permit extension: you focus on the 14 delay or you focus on the good cause for the extension.
15 JUDGE MOORE: The Applicant claims that you 16 haven't, in your newest contention 2, which you have dubbed 17 an amended contention, amended any of the previous 18 contentions submitted in response to the Commission's 19 notice of hearing, opportunity of hearing.
20 What contentions does your contention 2 amend?
21 MR. ROISMAN: Well, it does it in two' ways, I 22 guess. Combines old case 3, 4, 5, 6-and 7, in tbat sense 23 it's an amendment, because if you look at the words, a lot 24 of those words are changed. But it also amends in another g
25 way, which is it amends all of the contentions by adding C) i 4
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i 29624.0 73 cox I two new ones, two that weren't,there, at least not in a
2 exactly that form, before.
3 So it does it in two different ways.
4 There are two points --
5 CHAIRMAN ROSENTHAL: Your time is about up. I 6 will give you two minutes. Dr. Johnson has questions.
7 JUDGE JOHNSON: Why don't you go. ahead.
i 8 MR. ROISMAN: There.were t,wo points. Mr. Dignan
' focused on the criminal situation and indicated we were, in
- 9 J
10 effect, accusing them of' criminal conduct. We are not.
11 When we get around to the test, if thisecase 12 goes to hearing, it will be very important that we'will not l 13 be held to the standard of a criminal willfulness in order q 14 to prevail. Wa will have the civil standard that is 15 applicable.
16 secondly, Mr. Dignan raised this hypothetical 17 for you, would you draw the inference if this board were to 18 be reversed four times by the Commission; I would say that
- 19 if the Commission reversed you four times on exactly the i
1 20 same point, that the inference'would be a not-illegitimate 4
21 one for someone to draw: four times they had to tell you i 22 exactly the.same thing, and you kept doing it again. I 23 think the inference would be quite reasonable to draw that 24 you were doing it willfully and intentionally.
- . 25 CHAIRMAN ROSENTHAL
- Dr. Johnson.
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(/ 1 JUDGE JOHNSON: In your brief, at page 21, you 2 cite the Commission brief before the D.C. Circuit and the 3 subsequent oral argument, indicating that the Commission 4 had ordered a hearing, and then at that time the licensing 5 board had admitted a contention, and that contention was 6 under appeal.
7 Are you suggesting there that this board does 8 not have the right to overturn or that this board has been 9 ordered by the Commission not to overturn the licensing 10 board's admission of that contention which provides you 11 with the hearing?
12 MR. ROISMAN: Not to overuse the word, I would
<~ 13 say there is an inference there that the Commission, in N.3) 14 making a representation to the Court of Appeals that there 15 was going to be a hearing, knowing full well that this i
16 issue was there, at least, if this contention were on its 17 face, flawed, on its. face, wrong.
18 JUDGE JOHNSON: This contention, as it now 19 exists, did not exist at the time those statements were 20 made.
21 MR. ROISMAN: That's right, in exactly these 22 words. It did not. As we have said before, I think the 23 substance was there, but not in this form.
24 JUDGE JOHNSON: Is it not possible that the l
25 contention you raise could be admissible under CLI-8615, CZ') l ACE-FEDERAL REPORTERS, INC.
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-29624.0 75 Cox 1 the most recent balance struck, and at the same time still i
2 be inadmissible under the other doctrine set down by the 3 Commission in CLI-8229, that issues that could be taken up 4 in an OL proceeding are not permissible in a CP extennion 5 proceeding? In other words, does it not have to pass two 6 tests or at least two tests?
7 MR. ROISMAN: I would say that that is the kind 8 of finding that the Commission, by its statement to the 9 Court of Appeals, where it incidentally focused, among 10 other things, on the availability of the operating license 11 proceeding, is one way to deal with some of our concerns.
12 That probably its statements to the Court of Appeals %-should l'3 at least be reasonable inference that it would not have j 14 allowed for that decision to be made.
i 15 But we do brief in here, in our brief, why the 16 policy that underlay that is not violated here. We are not 17 dealing with, as you wer'e dealing in this case, and as the 18 Commission, I think, was directing its attention to, and as 19 this appeal board directed its in earlier opinions, to a 20 situation where an issue has been fully litigated, put to 21 bed, and now when somebody comes back in a new hearing and 22 says, I want to litigate that contention again, I have got
- 23 another way to do it.
24 JUDGE JOHNSON: That is not exactly the posture 25 of 8229; is it, these were the issues raised at the CP O
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l 29624.0 76 cox 1 1 extension, and the. proposed contention had never been 2 litigated, I don't believe, because they dealt with 3 construction, and management.
4 MR. ROISMAN: Right. The concern was the F 5 duplication of the hearings. What-I have indicated here, 6 and what no one focused on there, was the availability in 7 2.716 to avoid the duplication problem. I mean, if the 1
i 8 licensing board here wants to suspend construction, wait'-
9 for the merits of the issues relevant to the CPA litigated.
10 JUDGE JOHNSON: I see your point. I am back I
! 11 before that. The Commission, in 8229 said, that if an 12 jssue could be raised in the OL, that would be a bar to it i
13 being raised in a construction permit extension hearing.
1 l 14 MR. ROISMAN: Yes.
f 15 JUDGE JOHNSON: I would like to know why the 1
j 16 issues that are before us today are not similarly barred 17 because they, indeed, deal with management performance, 18 quality assurance, management competence, all of which were 19 raised in the WPPSS case as proposed contentions and all of 20 which were denied in the WPPSS case in 8229.
21 MR. ROISMAN: First, because it's not so much 22 the underlying issue, as you have described it, that is the i
23 key. The key is what is the consequence. This is the only 24 hearing in which we have available the. consequence of 25 constructi'on being halted. It's no.t available in the O
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29624.0 77 cox O 1 hearing. That is the issue, the issue in this case.
2 Everything else in this case are subsidiary issues. Either 3 construction permit extension should be granted -- should 4 be granted with conditions or should be cenied. Those are 5 the issues here; that's not the same issue.
6 JUDGE JOHNSON: Well, what we are dealing with 7 in totality, and the end point is, will this plant. operate 8 or not? Obviously it would not operate if it's not 9 completed.
10 MR. ROISMAN: No, but --
13 JUDGE JOHNSON: On the other hand, we have in 12 progress an operating license proceeding the. purpose of-13 which is to determine, among other things, whether the 14 plant is safely built and the utility is qualified to 15 operate that plant, and it would seem to ne that a decision 16 there is far more important, is it properly constructed, 17 and is the utility properly qualified to operate it,-than a 18 subsidiary hearing, to answer the question, should a 7
19 construction permit be extended? In ALAB-8229, the 20 Commission made a point of using common sense in this 21 matter; and in relation to that it referred back to the 22 appeal board decisions on earlier cases.
23 As I read that decision, it made common sense to 24 the Commission not to begin up another hearing to hear 25 issues that could have been raised in an OL hearing. Why O
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29624.0 78 cox 1 is this issue not one like that and why is this issue not 2 barred by 8229?
3 MR. ROISMAN: Number one, because in this 4 particular case, I think this is the more important hearing 5 than the OL. If this hearing is held, and the consequences ;
6 that we urge are ultimately proved to be correct, the 7 utility will either be forced to abandon the plant, which' I l 8 don't think they will do, or they will be forced finally to 9 truly abandon this past policy and to adopt the right kind 10 of reinspection effort that will get the plant an operating ;
11 license.
12 If this hearing doesn't take place, and the OL 13 hearing goes on, the utility will continue down the road 14 that it is now on~sometime in 1988 or '89, it will be ,
15 denied an operating license and it will not recover from 16 that. This is a far more important hearing. This.is an 17 opportunity for this utility to be brought into compliance 1
18 against its will, and I don't pretend to understand the 19 internal motivations'that would make a utility persist in 20 this policy. I don't think that that is an issue in the 21 proceeding. .'
22 But the fact is, just as Judge Moore pointed out
! 23 in an earlier point, it took the Staff telling the utility,
- 24 you have got two choices, guys, you either don't get us-to 1 25 continue reviewing your plant or you do do some things that
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1 you should have done a long time ago.
2 This hearing is an important opportunity to do 3 that on a broad-scale basis and to do it in a way, and the 4 only way that we see, to bring the plant into the realm of 5 potentially licenseable. So I think this is the more 6 important hearing. It's not the other way around'. We are 7 at a critical juncture. This is a good time for this to 8 happen.
i l 9 JUDGE JOHNSON: That gave me the opportunity to 1
} 10 think of seven more questions. Have you got seven more 11 answers?
12 MR. ROISMAN: I am willing to listen to seven 13 more answers. Only you will know whether I have seven more 14 answers. You referred to ALAB-722, which was the appeal 15 board's final decision on the WPPSS construction permit J-16 extension case.
4 17 Do you recall what that decision said with 18 respect to inferences?
l 19 MR. ROISM$N: No, I do not.
20 JUDCE JOHNSON: That leaves me with not many l
21 more questions.
J 22 I tD ._ n k , there, the appeal board took a very 23 narrow view of the definition of dilatory, and one of the 24 key words, you know, in this type of hearing.
J 25 It seemed to me, in reading that decision, that
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(\d 1 the appeal board there was unwilling to accept an inference 2 that the utility or the Applicant's behavior tended for 3 delaying the plant, and that there had to be direct intent 4 to delay the plant.
- 5 It seems to me that 722, in fact, weakens the 6 position on the basis of inference, you can establish a i
7 basis for your contention.
8 MR. ROISMAN: Let me just answer this much. I 9 think there is a difference between what we need to
- _ 10 establish for basis and what we may need to establish to j'
11 prevail.
12 JUDGE JOHNSON: Excuse me, I realize'that, but
~
13 they were talking about the admission of a contention at 14 that point.
15 MR. ROISMAN: I understand. But I didn't want 16 you to think that we didn't realize that we need more than 17 what is here.
18 CHAIRMAN ROSENTHAL: I think that's fairly plain,-
7 19 Mr. Roisman. I think we all understand that.
, 20 JUDGE JOHNSON: I am through.
21 CHAIRMAN ROSENTHAL: All right. I think your j 22 time has expired. < .
4 23 MR. ROISMAN: Thank you.
24 CHAIRMAN ROSENTHAL: Mr. Dignan, you have five 25 minutes. ,
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29624.0 81-CoX O 1 MR. DIGNAN: Your Honor, I heard nothing I wish 2 to make rebuttal on.
3 CHAIRMAN ROSENTHAL: Thank you.
4 Mr. Mizuno, you have two minutes.
5 MR. MIZUNO: We have no rebuttal, your Honor.
6 JUDGE MOORE: Mr. Mizuno, I failed to read you q
7 .the sentence after I said that the Staff, on September 18, 8 1984, indicated that the Applicant would develop a program 9 such as the CPRT.
10 Following that direction, the Staff stated, "This 11 program plan and its implementation will be evaluated.by 12 the Staff before NRC considers the issuance of an operating 13 license for Comanche Peak Unit 1."
14 Doesn't that seem to make your assertion that-15 the CPRT itself is repudiation questionable?
16 MR. MIZUNO: No. The Applicant always has the 17 option to disagree with the Staff's findings, and the 18 Applicants had the option there to disagree with the 19 findings. The-fact is, though, the important thing, they 20 came back not with just a plant that addressed the j 21 specifics that were found by the TRT, but, in fact, brought 22 in a much broader plan.
23 CHAIRMAN ROSENTHAL: Thank you, Mr. Mizuno.
24 On behalf of the entire board, I wish to thank ,
l 25 counsel for the respective parties for their illuminating l CE)
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ACE-FEDERAL REPORTERS, INC.
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29624.0 82 cox 1- presentations this morning.
- _ 2 On that note, . this appeal stands submitted, along 3 with the appeal that has been pending for some. time from 1
4 the earlier order of the licensing board admitting a 5 L different contention.
l 6 (Whereupon, at 12:05.p.m., the oral argument was -
7 concluded.)
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! ACE-FEDERAL REPORTERS, INC.
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CERTIFICATE OF OFFICIAL REPORTER v
J This is to certify that the attached proceedings before 4
the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING: TEXAS' UTILITIES ELECTRIC COMPANY "
, (Comanche Peak Steam Electric Station, Unit 1)
DOCKET NO.: 50-445-CPA i
PLACE: BETHESDA, MARYLAND DATE:. THURSDAYi JANUARY 29, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
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(sigt) x (TYPED)
WENDY S. COX Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation O '
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